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North Carolina Motion to Dismiss

In North Carolina you move to dismiss under N.C.G.S. 1A-1, Rule 12(b) within the 30-day answer window.

Introduction

In North Carolina the pre-answer challenge to a complaint is a motion to dismiss under N.C.G.S. section 1A-1, Rule 12(b), the state's Rule of Civil Procedure that tracks federal Rule 12(b) closely. Rule 12(b) lists seven enumerated defenses a defendant may raise by motion at the pleader's option rather than in the answer: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue or division, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a necessary party. The motion is made before pleading and shares the same response window: a defendant has 30 calendar days after service of the summons and complaint to answer or move under Rule 12(a)(1). Filing the motion suspends the answer clock. If the court denies the motion or postpones its disposition until trial on the merits, Rule 12(a)(2) gives you 20 days after notice of the court's action to serve your responsive pleading. You can stipulate to enlarge time without court approval up to 30 days in the aggregate, or ask the court for a for-cause enlargement before the period expires, under Rule 6(b). Missing the 30-day window risks a default. DocDraft drafts a North Carolina-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    North Carolina's pre-answer challenge to a complaint is a motion to dismiss under N.C.G.S. section 1A-1, Rule 12(b), the state Rule of Civil Procedure that tracks federal Rule 12(b). Every defense must be asserted in the responsive pleading, except that the seven listed defenses may, at the pleader's option, be made by motion.

  2. 2

    Rule 12(b) lists seven enumerated grounds: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue or division, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a necessary party. Unlike the federal rule, North Carolina lists only these seven.

  3. 3

    The motion is made before pleading and shares the same response window: a defendant has 30 calendar days after service of the summons and complaint to answer or move, under N.C.G.S. section 1A-1, Rule 12(a)(1). Filing a Rule 12 motion before the answer is due suspends the answer obligation.

  4. 4

    If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading is served within 20 days after notice of the court's action, under Rule 12(a)(2). The clock resets to 20 days rather than the original 30.

  5. 5

    North Carolina's Rules of Civil Procedure impose no statewide meet-and-confer precondition to filing a Rule 12(b) motion; Rule 12 states only that the motion shall be made before pleading. Some judicial districts add local pre-motion or calendaring procedures, so check your court's local rules.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, which is subsection (6) of Rule 12(b). It tests whether the complaint, taken as true, alleges facts that entitle the plaintiff to relief.

  7. 7

    You file with the clerk of court in the trial division where the action is pending within the General Court of Justice. The correct division turns on the amount in controversy under N.C.G.S. section 7A-243: the District Court Division for actions of $25,000 or less, and the Superior Court Division for actions exceeding $25,000.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

STATE OF NORTH CAROLINA COUNTY OF [COUNTY]

IN THE GENERAL COURT OF JUSTICE [DISTRICT / SUPERIOR] COURT DIVISION File No. [CASE NUMBER]

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

MOTION TO DISMISS

[N.C.G.S. § 1A-1, Rule 12(b)]

NOW COMES Defendant [DEFENDANT NAME], appearing [by counsel / pro se], and pursuant to N.C.G.S. § 1A-1, Rule 12(b) of the North Carolina Rules of Civil Procedure, moves the Court to dismiss the Complaint filed by Plaintiff [PLAINTIFF NAME]. This motion is made before pleading. In support of the motion, Defendant shows the Court the following:

GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint, and each claim for relief therein, on the following ground(s) under N.C.G.S. § 1A-1, Rule 12(b):

  1. Failure to state a claim upon which relief can be granted. (N.C.G.S. § 1A-1, Rule 12(b)(6).)

[Add any additional applicable grounds from Rule 12(b): (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue or division; (4) insufficiency of process; (5) insufficiency of service of process; (7) failure to join a necessary party.]

MEMORANDUM IN SUPPORT

I. INTRODUCTION This motion challenges the legal sufficiency of the Complaint. On a Rule 12(b)(6) motion, the well-pleaded allegations of the Complaint are taken as true, and the question is whether those allegations state a claim upon which relief can be granted.

II. STATEMENT OF FACTS [Summarize the allegations of the Complaint as relevant to the grounds raised.]

III. ARGUMENT [State the legal basis for each ground. Argue why the Complaint fails to state a claim upon which relief can be granted and/or why any other Rule 12(b) ground applies.]

IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant this Motion to Dismiss.

WHEREFORE, Defendant respectfully prays that the Court:

  1. Dismiss the Complaint, and each claim for relief therein;
  2. Grant such other and further relief as the Court deems just and proper.

This the [DAY] day of [MONTH], [YEAR].

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [N.C. State Bar No., if applicable] [Address] [Telephone] [Email] Attorney for Defendant / Defendant, pro se

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing MOTION TO DISMISS on the party or parties listed below by [method of service] on the date set forth below, in accordance with N.C.G.S. § 1A-1, Rule 5.

[PLAINTIFF / PLAINTIFF'S COUNSEL NAME AND ADDRESS]

This the [DAY] day of [MONTH], [YEAR].

[NAME OF PERSON SERVING]

[Briefing requirements, page limits, and any proposed-order practice for a Rule 12(b) motion are set by local district or Superior Court rules and vary by county. Check your court's local rules for memorandum and calendaring requirements.]

North Carolina Requirements for Motion to Dismiss

Answer or move within 30 days of service

A defendant has 30 calendar days after service of the summons and complaint to answer or move, under N.C.G.S. section 1A-1, Rule 12(a)(1). A Rule 12 motion is made before pleading and suspends the answer obligation.

Note the reset to 20 days if the motion is denied

If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading is served within 20 days after notice of the court's action, under N.C.G.S. section 1A-1, Rule 12(a)(2).

Use a stipulation or for-cause enlargement to extend time

Parties may stipulate to enlarge time without court approval, not to exceed 30 days in the aggregate, or the court may for cause shown order the period enlarged if the request is made before the period expires, under N.C.G.S. section 1A-1, Rule 6(b).

Identify the grounds under Rule 12(b)

Select grounds from the seven enumerated in N.C.G.S. section 1A-1, Rule 12(b): (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue or division, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a necessary party.

Raise failure to state a claim under Rule 12(b)(6)

The failure-to-state-a-claim ground is subsection (6) of Rule 12(b). It tests whether the well-pleaded allegations of the complaint, taken as true, state a claim upon which relief can be granted.

Confirm any local briefing and format requirements

The Rules of Civil Procedure do not set a statewide page limit or a mandatory supporting-brief requirement for a Rule 12(b) motion. Briefing requirements and page limits are set by local district or Superior Court rules and vary by county, so check your court's local rules.

File in the correct trial division by amount in controversy

File with the clerk of court in the trial division where the action is pending within the General Court of Justice. Under N.C.G.S. section 7A-243, the District Court Division is proper for actions of $25,000 or less and the Superior Court Division for actions exceeding $25,000.

Serve the motion and complete a certificate of service

Serve the motion to dismiss on the plaintiff or plaintiff's counsel and file a certificate of service. Any proposed-order practice for a Rule 12(b) motion is governed by local district or Superior Court rules, so check your court's local rules.

Frequently Asked Questions

In North Carolina you file a motion to dismiss under N.C.G.S. section 1A-1, Rule 12(b). The motion is made before pleading and raises one or more of seven enumerated defenses at the pleader's option instead of asserting them in the answer. You file it with the clerk of court in the trial division where the action is pending within the General Court of Justice.

A defendant has 30 calendar days after service of the summons and complaint to answer or move, under N.C.G.S. section 1A-1, Rule 12(a)(1). A Rule 12 motion is made before pleading. Parties may stipulate to enlarge the time without court approval up to 30 days in the aggregate, or the court may order a for-cause enlargement if requested before the period expires, under Rule 6(b).

North Carolina's Rule 12(b) carries a wrinkle the federal rule lacks: its venue ground reads 'improper venue or division,' reflecting the state's division-based trial court structure. The seven grounds otherwise track the standard set, lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process, failure to state a claim (subsection (6)), and failure to join a necessary party.

North Carolina's Rules of Civil Procedure do not impose a statewide meet-and-confer requirement as a precondition to filing a Rule 12(b) motion to dismiss. Rule 12 states only that the motion shall be made before pleading if a further pleading is permitted. Some judicial districts add local pre-motion or calendaring procedures, so check your court's local rules.

If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading is served within 20 days after notice of the court's action, under N.C.G.S. section 1A-1, Rule 12(a)(2). The answer clock resets to 20 days from notice of the ruling rather than the original 30-day window.

You file with the clerk of court in the trial division where the action is pending within the General Court of Justice. The proper division depends on the amount in controversy under N.C.G.S. section 7A-243: the District Court Division for actions of $25,000 or less, and the Superior Court Division for actions exceeding $25,000.