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
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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.
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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.
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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.
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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.
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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.
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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.
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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 before you file
Before you file a Motion to Dismiss in North Dakota, a few decisions shape the document: which option to choose and what each one means. The Motion to Dismiss guide walks through them.
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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.