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Missouri Motion to Dismiss

In Missouri you move to dismiss a petition under Mo. R. Civ. P. 55.27 within 30 days in Circuit Court.

Introduction

In Missouri you challenge a petition before answering by filing a motion to dismiss under Missouri Rule of Civil Procedure 55.27. Rule 55.27(a) lets the pleader raise certain defenses by motion instead of in the responsive pleading, and its list runs longer than the federal seven: it enumerates eleven defenses, including lack of subject-matter jurisdiction, lack of personal jurisdiction, insufficiency of process or service, and, most commonly, failure to state a claim upon which relief can be granted at 55.27(a)(6), the Missouri analog to federal Rule 12(b)(6). The motion shares the answer window, so it is due within 30 calendar days after service of the summons and petition (Rule 55.25). The motion itself follows Rule 55.26: it must be in writing, state the grounds with particularity, and set forth the relief sought. In Missouri practice, the supporting argument is filed as suggestions in support, the distinctive Missouri term for a brief of facts and authorities. You file in the Circuit Court named in the caption of the summons. Missing the 30-day window risks a default, so calendar the deadline carefully. DocDraft drafts a Missouri-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    In Missouri the pre-answer challenge is a motion to dismiss under Mo. R. Civ. P. 55.27, which permits certain defenses to be made by motion at the option of the pleader instead of in the responsive pleading.

  2. 2

    Rule 55.27(a) enumerates eleven defenses that may be raised by motion, a longer list than the federal Rule 12(b) seven: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) that plaintiff does not have legal capacity to sue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under Rule 52.04; (8) that plaintiff should furnish security for costs; (9) that another action is pending between the same parties for the same cause in this state; (10) that several claims have been improperly united; and (11) that the counterclaim or cross-claim cannot be properly interposed.

  3. 3

    The motion shares the answer window and is due within 30 calendar days after service of the summons and petition under Rule 55.25; Rule 55.27(a) directs that a motion raising the enumerated defenses be made within the time allowed for responding to the opposing pleading.

  4. 4

    The 30-day clock runs from service of the summons and petition. If matters outside the pleadings are presented on a 55.27(a)(6) motion and not excluded by the court, the motion is treated as one for summary judgment under Rule 74.04.

  5. 5

    No statewide meet-and-confer requirement was located for filing a Rule 55.27 motion to dismiss; the rule conditions the motion on the enumerated defenses, not on a pre-filing conference. Individual circuits may impose local motion-practice requirements, so check the local circuit court rules where you file.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, located at Rule 55.27(a)(6), which tracks federal Rule 12(b)(6).

  7. 7

    File in the Circuit Court, the Missouri trial court of general jurisdiction, with the clerk of the circuit court named in the caption of the summons; civil cases are heard in the Associate Circuit and Circuit divisions.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

IN THE CIRCUIT COURT OF __________ COUNTY, MISSOURI [__________ JUDICIAL CIRCUIT]

__________________________, Plaintiff,

v. Case No. __________ Division __________ __________________________, Defendant.

DEFENDANT'S MOTION TO DISMISS

COMES NOW Defendant __________, and pursuant to Missouri Rule of Civil Procedure 55.27, moves this Court to dismiss the Petition, and in support states as follows:

  1. Plaintiff filed a Petition in this Court on __________.

  2. Defendant was served with the summons and Petition on __________ and brings this motion within the time allowed for responding to the Petition under Mo. R. Civ. P. 55.25 and 55.27(a).

  3. The Petition should be dismissed on the following ground(s) enumerated in Mo. R. Civ. P. 55.27(a):

    [ ] (1) Lack of jurisdiction over the subject matter. [ ] (2) Lack of jurisdiction over the person. [ ] (3) That Plaintiff does not have legal capacity to sue. [ ] (4) Insufficiency of process. [ ] (5) Insufficiency of service of process. [ ] (6) Failure to state a claim upon which relief can be granted. [ ] (7) Failure to join a party under Rule 52.04. [ ] (8) That Plaintiff should furnish security for costs. [ ] (9) That there is another action pending between the same parties for the same cause in this state. [ ] (10) That several claims have been improperly united. [ ] (11) That the counterclaim or cross-claim cannot be properly interposed in this action.

  4. The grounds for this motion are stated with particularity as required by Mo. R. Civ. P. 55.26, and the relief sought is the dismissal of the Petition.

WHEREFORE, Defendant respectfully requests that this Court dismiss the Petition, and grant such other and further relief as the Court deems just and proper.

                                    Respectfully submitted,

                                    ______________________________
                                    [Name]
                                    [Missouri Bar No., if attorney]
                                    [Address]
                                    [Telephone] [Email]
                                    Attorney for Defendant / Defendant Pro Se

SUGGESTIONS IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

[Statement of the relevant facts and the legal authorities supporting each ground asserted above. In Missouri practice the supporting brief is filed as suggestions in support; opposing and reply suggestions follow under the schedule set by local circuit court rules.]

CERTIFICATE OF SERVICE

I certify that on __________ a true copy of the foregoing was served on all parties of record [by the Court's electronic filing system / by mail / by hand] at the addresses of record.

                                    ______________________________
                                    [Name]

Missouri Requirements for Motion to Dismiss

File within 30 days of service

Under Mo. R. Civ. P. 55.25 the response is due within 30 calendar days after service of the summons and petition, and Rule 55.27(a) directs that a motion raising the enumerated defenses be made within the time allowed for responding to the opposing party's pleading. Calendar the 30-day deadline from the date you were served.

Raise the defense by motion under Rule 55.27

Mo. R. Civ. P. 55.27(a) permits the pleader to make enumerated defenses by motion instead of in the responsive pleading. Select the applicable ground from the rule's list before drafting.

Identify the ground from the eleven in Rule 55.27(a)

Rule 55.27(a) enumerates eleven defenses: lack of subject-matter jurisdiction; lack of personal jurisdiction; lack of legal capacity to sue; insufficiency of process; insufficiency of service of process; failure to state a claim upon which relief can be granted; failure to join a party under Rule 52.04; that plaintiff should furnish security for costs; another action pending between the same parties for the same cause in this state; improper joinder of claims; and that a counterclaim or cross-claim cannot be properly interposed.

Use failure to state a claim under 55.27(a)(6) where the petition is legally insufficient

The most common ground is failure to state a claim upon which relief can be granted, located at Rule 55.27(a)(6), the Missouri analog to federal Rule 12(b)(6). If matters outside the pleadings are presented and not excluded by the court, the motion is treated as one for summary judgment under Rule 74.04.

Put the motion in writing and state the grounds with particularity

Under Mo. R. Civ. P. 55.26 an application to the court for an order shall be by motion that, unless made during a hearing or trial, shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.

File suggestions in support

In Missouri practice the supporting argument is filed as suggestions in support, the distinctive Missouri term for a written brief of relevant facts and authorities, with opposing and reply suggestions. No statewide page limit was located in the rules; page limits and briefing schedules are set by local circuit court rules, so check the local rules where you file.

Check local circuit rules for motion practice

No statewide meet-and-confer requirement was located for a Rule 55.27 motion, and no statewide requirement of a proposed order was located in Rule 55.26 or 55.27. Many Missouri circuits set motion-day, briefing, and proposed-order expectations by local rule, so confirm against the local circuit court rules where the case is filed.

File in the Circuit Court and serve all parties

File in the Circuit Court, the Missouri trial court of general jurisdiction, with the clerk of the circuit court named in the caption of the summons; civil cases are heard in the Associate Circuit and Circuit divisions. Serve a copy on all parties of record and include a certificate of service.

Frequently Asked Questions

File a written motion to dismiss under Mo. R. Civ. P. 55.27 in the Circuit Court named in the summons, before filing your answer. Under Rule 55.26 the motion must be in writing, state the grounds with particularity, and set forth the relief sought. Missouri practice files the supporting argument as suggestions in support, a written brief of facts and authorities.

The motion shares the answer window and is due within 30 calendar days after service of the summons and petition under Mo. R. Civ. P. 55.25. Rule 55.27(a) directs that a motion raising the enumerated defenses be made within the time allowed for responding to the opposing party's pleading.

Mo. R. Civ. P. 55.27(a) runs longer than the federal list, enumerating eleven defenses that may be made by motion. These include lack of subject-matter jurisdiction, lack of personal jurisdiction, lack of legal capacity to sue, insufficiency of process and of service, failure to state a claim, failure to join under Rule 52.04, and another action pending between the same parties. Personal jurisdiction, process, and service defenses are waived if not raised first; subject-matter jurisdiction and failure to state a claim stay preserved.

No statewide meet-and-confer requirement was located for a Rule 55.27 motion to dismiss; the rule conditions the motion on the enumerated defenses, not on a pre-filing conference. Individual circuits may set local motion-practice requirements, so check the local circuit court rules in the court where you file.

If the court denies the motion, the case continues and the defendant must file a responsive pleading. The Missouri rules set the response time relative to the time allowed for responding to the opposing pleading under Rule 55.27(a). The exact time to answer after a denial is set by the court and the applicable rules, so confirm the deadline with the court's order and the local circuit rules.

File in the Circuit Court, the Missouri trial court of general jurisdiction, with the clerk of the circuit court named in the caption of the summons. Civil cases are heard in the Associate Circuit and Circuit divisions of the circuit court.