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North Dakota Motion to Dismiss

In North Dakota you file a Rule 12(b) motion to dismiss within 21 days, with a brief under N.D.R.Ct. 3.2(a).

Introduction

In North Dakota the pre-answer challenge to a complaint is a motion to dismiss under N.D. R. Civ. P. 12(b), and the feature that sets North Dakota practice apart is that the motion does not stand alone: under N.D.R.Ct. 3.2(a), upon serving and filing a motion the moving party must serve and file a brief and supporting papers, and the rule contemplates a brief with every motion. The adverse party then has 14 days after service of the moving brief to serve and file an answer brief. Rule 12(b) lets a defendant raise seven defenses by motion instead of in the answer: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 19. The most common ground is the 12(b)(6) failure to state a claim, the analog to a no-cause-of-action challenge. The motion is made in lieu of an answer and shares the answer window: 21 days after service under N.D. R. Civ. P. 12(a)(1)(A). North Dakota also commences a civil action by service, the pocket-service mechanic shared with Minnesota, so the 21-day clock can run before anything is filed with the clerk. DocDraft drafts a North Dakota-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 Dakota's pre-answer challenge to a complaint is a motion to dismiss under N.D. R. Civ. P. 12(b). North Dakota's Rule 12 tracks the restyled federal Rule 12, so the failure-to-state-a-claim ground is 12(b)(6), the analog to a demurrer or no-cause-of-action challenge in other states.

  2. 2

    Rule 12(b) lists seven defenses a defendant may raise by motion: (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficient process, (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

  3. 3

    The motion is made in lieu of an answer and shares the answer window: a defendant must serve an answer within 21 days after being served with the summons and complaint under N.D. R. Civ. P. 12(a)(1)(A), and a Rule 12(b) motion is made before that responsive pleading.

  4. 4

    North Dakota commences a civil action by service of the summons and complaint, not by filing with the court, the pocket-service mechanic also used in Minnesota. The 21-day Rule 12(a) clock for the answer or a Rule 12(b) motion can run before the case appears on any court docket.

  5. 5

    A supporting brief is required. Under N.D.R.Ct. 3.2(a), upon serving and filing a motion the moving party must serve and file a brief and supporting papers, and the rule contemplates a brief with every motion. The adverse party then has 14 days after service of the moving brief to serve and file an answer brief.

  6. 6

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

  7. 7

    You file in District Court, North Dakota's single-level trial court of general jurisdiction, with the clerk of the District Court in the county named in the summons. Failing to file the required brief carries a consequence bearing on the motion, so confirm the brief and answer-brief deadlines and your court's local rules.

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 DAKOTA IN DISTRICT COURT COUNTY OF [COUNTY], [JUDICIAL DISTRICT] JUDICIAL DISTRICT Civil No.: [CASE NUMBER]

[PLAINTIFF NAME], Plaintiff,

 vs.

[DEFENDANT NAME], Defendant.

MOTION TO DISMISS

[N.D. R. Civ. P. 12(b)]

NOW COMES Defendant [DEFENDANT NAME], appearing [by counsel / self-represented], and pursuant to N.D. R. Civ. P. 12(b), moves the Court for an order dismissing the Complaint filed by Plaintiff [PLAINTIFF NAME], and each claim for relief therein. This motion is made in lieu of an answer. In support of this motion, and pursuant to N.D.R.Ct. 3.2(a), Defendant serves and files the accompanying brief and supporting papers.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint on the following ground(s) under N.D. R. Civ. P. 12(b):

  1. Failure to state a claim upon which relief can be granted. (N.D. R. Civ. P. 12(b)(6).)

[Add any additional applicable grounds from Rule 12(b): (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (7) failure to join a party under Rule 19.]

BRIEF IN SUPPORT OF MOTION TO DISMISS

[Served and filed with this motion as required by N.D.R.Ct. 3.2(a). The adverse party has 14 days after service of this brief to serve and file an answer brief and supporting papers.]

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 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, where applicable, 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.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Attorney ID No., if applicable] [Address] [Telephone] [Email] Attorney for Defendant / Defendant, self-represented

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing MOTION TO DISMISS and the accompanying brief and supporting papers on the party or parties listed below by [method of service] on the date set forth below.

[PLAINTIFF / PLAINTIFF'S COUNSEL NAME AND ADDRESS]

Dated: [DATE]

[NAME OF PERSON SERVING]

[N.D.R.Ct. 3.2(a) requires a brief and supporting papers to be served and filed with the motion. Some courts may expect a proposed order with the motion; no statewide proposed-order requirement was located, so check your District Court's local rules and the assigned judge's requirements for proposed orders, page limits, and scheduling.]

North Dakota Requirements for Motion to Dismiss

Answer or move within 21 days of service

A defendant must serve an answer within 21 days after being served with the summons and complaint under N.D. R. Civ. P. 12(a)(1)(A). A Rule 12(b) motion is made in lieu of the answer and before that responsive pleading.

Track the clock from service, not from filing

North Dakota commences a civil action by service of the summons and complaint, not by court filing, the pocket-service mechanic also used in Minnesota. The 21-day Rule 12(a) window for serving the motion or answer can run before the case is filed with the court.

Identify the grounds under Rule 12(b)

Select grounds from the seven enumerated in N.D. R. Civ. P. 12(b): (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficient process, (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

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

The failure-to-state-a-claim ground is 12(b)(6) of N.D. R. Civ. P. 12. North Dakota's Rule 12 tracks the restyled federal Rule 12, and 12(b)(6) is the analog to a no-cause-of-action challenge. It tests whether the well-pleaded allegations of the complaint, taken as true, state a claim upon which relief can be granted.

Serve and file a supporting brief with the motion

Under N.D.R.Ct. 3.2(a), upon serving and filing a motion the moving party must serve and file a brief and supporting papers, and the rule contemplates a brief with every motion. A motion to dismiss must be accompanied by this brief.

Note the 14-day answer-brief period

Under N.D.R.Ct. 3.2(a), the adverse party has 14 days after service of the moving brief to serve and file an answer brief and supporting papers. The official ndcourts.gov comments confirm this period was increased from 10 to 14 days effective March 1, 2011.

Do not skip the brief

Because N.D.R.Ct. 3.2(a) contemplates a brief with every motion, failing to file the required brief carries a consequence bearing on the merit of the motion. Confirm the exact effect under N.D.R.Ct. 3.2 and your court's local rules before relying on it.

File in District Court in the county named in the summons

File with the clerk of the District Court in the county named in the summons. North Dakota has a unified single-level trial court of general jurisdiction, and small claims is a division of the District Court. No statewide proposed-order requirement for a Rule 12(b) motion was located; check your District Court's local rules.

Frequently Asked Questions

In North Dakota you file a motion to dismiss under N.D. R. Civ. P. 12(b). The motion is made in lieu of an answer and raises one or more of seven enumerated defenses. Under N.D.R.Ct. 3.2(a), when you serve and file the motion you must also serve and file a supporting brief and any supporting papers, because the rule contemplates a brief with every motion. You file with the clerk of the District Court in the county named in the summons.

A defendant must serve an answer within 21 days after being served with the summons and complaint under N.D. R. Civ. P. 12(a)(1)(A), and a Rule 12(b) motion is made before that responsive pleading. Because North Dakota commences an action by service, the 21-day clock runs from service of the summons and complaint, which can occur before the case is filed with the court.

In North Dakota the motion is governed by N.D. R. Civ. P. 12(b), whose numbering follows the restyled federal model, so failure to state a claim is cited as 12(b)(6). Its seven defenses run from lack of subject-matter jurisdiction and lack of personal jurisdiction through improper venue, insufficient process, and insufficient service of process, closing with failure to state a claim and failure to join a party required under Rule 19.

Yes. Under N.D.R.Ct. 3.2(a), upon serving and filing a motion the moving party must serve and file a brief and supporting papers, and the rule contemplates a brief with every motion. The adverse party then has 14 days after service of the moving brief to serve and file an answer brief and supporting papers. There is no statewide pre-filing meet-and-confer requirement for a Rule 12(b) motion.

If the court denies the motion, the case proceeds and you file a responsive pleading. Under North Dakota's restyled Rule 12, the time to answer runs from notice of the court's action on the motion. Check the court's order denying the motion, which commonly sets the time to answer.

You file in District Court, North Dakota's single-level trial court of general jurisdiction, with the clerk of the District Court in the county named in the summons. Small claims is a division of the District Court. Because the motion requires a supporting brief under N.D.R.Ct. 3.2(a), you serve and file the brief together with the motion.