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Nevada Motion to Dismiss

In Nevada you move to dismiss under Nev. R. Civ. P. 12(b); failure to state a claim is 12(b)(5), in 21 days.

Introduction

In Nevada you challenge a complaint before answering by filing a motion to dismiss under Nev. R. Civ. P. 12(b). The rule lets a party assert certain defenses by motion in place of the responsive pleading, and the post-2019 restyled NRCP enumerates six grounds: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficient process; (4) insufficient service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under Rule 19. The numbering is the trap most practitioners hit: in Nevada, failure to state a claim is NRCP 12(b)(5), not the federal 12(b)(6). A 12(b) motion must be made before pleading, within the same 21-calendar-day window the answer is due under NRCP 12(a)(1)(A) for a private-party defendant. Serving the motion suspends the time to serve a responsive pleading, and if the court denies the motion or postpones its disposition until trial, the answer must be served within 14 days after notice of the court's action. Cases run in the District Court, Nevada's general-jurisdiction trial court. Missing the window risks a default judgment. DocDraft drafts a Nevada-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Nevada's pre-answer challenge to a complaint is a motion to dismiss under Nev. R. Civ. P. 12(b). Every defense to a claim must be asserted in the responsive pleading, but a party may assert the enumerated defenses by motion instead, made before pleading.

  2. 2

    NRCP 12(b) enumerates six grounds with Nevada's numbering: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficient process; (4) insufficient service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under Rule 19. Failure to state a claim is 12(b)(5) here, not the federal 12(b)(6).

  3. 3

    A 12(b) motion is made before pleading, within the same window the answer is due: 21 calendar days after being served with the summons and complaint for a private-party defendant under NRCP 12(a)(1)(A). The State of Nevada or its political subdivisions have 45 days under NRCP 12(a)(3).

  4. 4

    Serving the motion suspends the time to serve a responsive pleading. If the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action.

  5. 5

    A supporting memorandum of points and authorities is required, and NRCP 7(b) requires a motion to be in writing and to state with particularity the grounds and the relief sought. In Clark County (Eighth Judicial District / Las Vegas), EDCR 2.20 requires a memorandum with each motion and the absence of one may be construed as an admission that the motion is not meritorious. Page limits and exact local-rule wording vary by district, so check the local rules of the court where your case is pending.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, which Nevada numbers as 12(b)(5), not 12(b)(6). The motion tests whether the complaint, taken as pleaded, states a claim on which the court could grant relief.

  7. 7

    You file the motion with the clerk of the court named in the caption: the District Court for unlimited civil matters and claims over $15,000, while the Justice Court handles limited civil matters up to $15,000. There is no statewide NRCP meet-and-confer prerequisite for a 12(b) motion to dismiss, unlike a discovery motion under NRCP 37.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

DISTRICT COURT [JUDICIAL DISTRICT] JUDICIAL DISTRICT COURT [COUNTY] COUNTY, NEVADA

[PLAINTIFF NAME], Plaintiff,

v.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER] Dept. No.: [DEPARTMENT]

MOTION TO DISMISS UNDER NRCP 12(b)

Defendant [DEFENDANT NAME], pursuant to Nev. R. Civ. P. 12(b), respectfully moves the Court to dismiss the Complaint. This motion is made before pleading, in place of a responsive pleading, and is supported by the following memorandum of points and authorities, the pleadings and papers on file, and any argument the Court may permit.

GROUNDS

  1. This motion is made before pleading, within the time the responsive pleading is due under NRCP 12(a), and is filed in place of an answer.

  2. The Complaint should be dismissed on the following ground(s) enumerated in NRCP 12(b):

    [Select the applicable ground(s):] ( ) (1) Lack of subject-matter jurisdiction. ( ) (2) Lack of personal jurisdiction. ( ) (3) Insufficient process. ( ) (4) Insufficient service of process. ( ) (5) Failure to state a claim upon which relief can be granted. ( ) (6) Failure to join a party under Rule 19.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION This motion challenges the Complaint under NRCP 12(b). [State which ground(s) apply and why. Note that in Nevada failure to state a claim is NRCP 12(b)(5).]

II. STATEMENT OF RELEVANT FACTS [Summarize the allegations of the Complaint as relevant to the ground(s) raised.]

III. ARGUMENT [State the legal basis for each ground. For a motion under 12(b)(5), explain why the Complaint, taken as pleaded, fails to state a claim upon which relief can be granted.]

CONCLUSION AND REQUEST FOR RELIEF

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

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Nevada Bar No., if applicable] [Address] [Telephone] [Email] Attorney for Defendant / Self-Represented Defendant

[A memorandum of points and authorities is required. In the Eighth Judicial District (Clark County), EDCR 2.20 requires a memorandum with each motion. Page limits and any proposed-order practice vary by judicial district and department, so check the local rules of the court where your case is pending.]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a true and correct copy of the foregoing MOTION TO DISMISS UNDER NRCP 12(b) on all parties of record by [method of service] in accordance with Nevada law and the local rules of this Court.

[NAME OF PERSON SERVING]

Nevada Requirements for Motion to Dismiss

File within 21 days of service (45 days for the State)

A NRCP 12(b) motion to dismiss must be made before pleading, within the same window the responsive pleading is due. A private-party defendant has 21 calendar days after being served with the summons and complaint under NRCP 12(a)(1)(A); the State of Nevada or its political subdivisions have 45 days under NRCP 12(a)(3).

File the motion before pleading, in place of an answer

Every defense to a claim must be asserted in the responsive pleading, but NRCP 12(b) allows the enumerated defenses to be asserted by motion made before pleading. Serving the motion suspends the time to serve a responsive pleading, so the motion stands in place of the answer until the court rules.

Identify the grounds under NRCP 12(b)

Select from the six grounds in NRCP 12(b): (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficient process; (4) insufficient service of process; (5) failure to state a claim upon which relief can be granted; (6) failure to join a party under Rule 19.

Use Nevada's 12(b)(5) numbering for failure to state a claim

Nevada numbers failure to state a claim upon which relief can be granted as NRCP 12(b)(5), not the federal 12(b)(6). The 2019 restyling aligned NRCP 12 with the restyled FRCP text but kept failure to state a claim at (5), with failure to join a party under Rule 19 at (6).

Account for the answer clock if the motion is denied

If the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action. Until the ruling, serving the 12(b) motion suspended the time to serve a responsive pleading.

Support the motion with a memorandum of points and authorities

A supporting memorandum of points and authorities is required, and NRCP 7(b) requires a motion to be in writing and to state with particularity the grounds and the relief sought. In the Eighth Judicial District (Clark County), EDCR 2.20 requires a memorandum with each motion, and the absence of one may be construed as an admission that the motion is not meritorious.

Check local page limits and proposed-order practice

Page limits and proposed-order practice are set by district-court local rules, not by a uniform statewide NRCP rule, and they vary by judicial district and department. Clark County's EDCR governs Eighth Judicial District filings and Washoe County's WDCR governs the Second Judicial District, so check the local rules and your department's requirements for any page limit and whether a proposed order is expected.

File in the correct court and serve all parties

File with the clerk of the court named in the caption where the complaint was filed: the District Court for unlimited civil matters and claims over $15,000, or the Justice Court for limited civil matters up to $15,000. There is no statewide NRCP meet-and-confer prerequisite for a 12(b) motion to dismiss; serve the motion on all parties and file a certificate of service.

Frequently Asked Questions

In Nevada you file a motion to dismiss under Nev. R. Civ. P. 12(b) before pleading, in place of an answer. You state the enumerated grounds with particularity as NRCP 7(b) requires, support the motion with a memorandum of points and authorities, and file with the clerk of the District Court named in the caption where the complaint was filed. Serve the motion on all parties.

A 12(b) motion must be made before pleading, within the same window the answer is due: 21 calendar days after being served with the summons and complaint for a private-party defendant under NRCP 12(a)(1)(A). The State of Nevada and its political subdivisions have 45 days under NRCP 12(a)(3). Serving the motion suspends the time to serve a responsive pleading.

A dismissal motion is brought under NRCP 12(b), which gathers the defenses into six subsections rather than the federal seven. The practical catch is the numbering: failure to state a claim is 12(b)(5) in Nevada, not 12(b)(6). The other grounds reach lack of subject-matter jurisdiction, lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to join a party under Rule 19.

No statewide NRCP meet-and-confer requirement applies to a 12(b) motion to dismiss, unlike a discovery motion under NRCP 37. District-court local rules govern motion practice generally, and requirements can differ between districts, so check the local rules of the court where your case is pending before filing.

If the court denies the motion or postpones its disposition until trial, the case proceeds and the responsive pleading must be served within 14 days after notice of the court's action. Until then, serving the 12(b) motion suspended the time to serve a responsive pleading, so the 14-day period replaces what remained of the original answer window.

You file with the clerk of the court named in the caption where the complaint was filed. The District Court is Nevada's general-jurisdiction trial court for unlimited civil matters and claims over $15,000. The Justice Court handles limited civil matters up to $15,000. The Nevada Rules of Civil Procedure govern procedure in the district courts.