South Carolina Motion to Dismiss

Introduction

Key Things to Know

1. 1

   South Carolina's pre-answer challenge to a complaint is a motion to dismiss under Rule 12(b) of the South Carolina Rules of Civil Procedure (SCRCP 12(b)). Every defense must be asserted in the responsive pleading, except that the listed defenses may, at the option of the pleader, be made by motion.

2. 2

   SCRCP 12(b) enumerates eight grounds, one more than the federal rule's seven: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts sufficient to constitute a cause of action, (7) failure to join a party under Rule 19, and (8) another action is pending between the same parties for the same claim. Ground (8), prior action pending, is the South Carolina-specific eighth ground absent from federal Rule 12(b).

3. 3

   The motion shares the answer window. A defendant must serve an answer within 30 calendar days after service of the complaint under SCRCP 12(a). Serving a Rule 12 motion alters that period, so filing the motion tolls and replaces the 30-day answer clock until the court acts.

4. 4

   SCRCP 12(a) provides that the service of a motion permitted under Rule 12 alters the answer period, unless the court fixes a different time by order. The specific number of days you have to answer after the court rules on the motion is set by SCRCP 12(a) or by the court's order, so confirm the post-ruling answer date against the rule and any scheduling order in your case.

5. 5

   South Carolina's Rules of Civil Procedure impose no statewide meet-and-confer precondition to filing a Rule 12(b) motion to dismiss. The conferral duty in the SC rules attaches to discovery motions under Rule 37, not to Rule 12 dispositive motions. Individual circuits or judges may add local conference or calendaring practices, so check your court's local rules.

6. 6

   The most common ground is failure to state facts sufficient to constitute a cause of action, which is subsection (6) of SCRCP 12(b). South Carolina phrases this ground in state-pleading terms, asking whether the complaint alleges facts that constitute a cause of action, rather than the federal phrasing of a claim upon which relief can be granted.

7. 7

   You file in the Court of Common Pleas, the civil division of the Circuit Court, which is South Carolina's court of general jurisdiction. File with the clerk of court for the county named in the summons. Magistrates Court handles civil claims up to $7,500 under S.C. Code Ann. Title 22; general civil actions above that threshold are in Common Pleas.

South Carolina Requirements for Motion to Dismiss

• Answer or move within 30 days of service

  A defendant must serve an answer within 30 calendar days after service of the complaint under SCRCP 12(a). A Rule 12 motion is made within that same window, before the responsive pleading.

• Know that the motion tolls the 30-day answer clock

  SCRCP 12(a) provides that the service of a motion permitted under Rule 12 alters the answer period, unless the court fixes a different time by order. Serving the motion tolls and replaces the 30-day answer clock until the court rules.

• Confirm the post-ruling answer date against the rule

  The time to serve an answer after the court rules on the motion is set by SCRCP 12(a) or by the court's order. Confirm the post-ruling answer date against the rule and any scheduling order entered in your case.

• Identify the grounds under SCRCP 12(b)

  Select grounds from the eight enumerated in SCRCP 12(b): (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts sufficient to constitute a cause of action, (7) failure to join a party under Rule 19, and (8) another action pending between the same parties for the same claim.

• Raise failure to state a cause of action under SCRCP 12(b)(6)

  The failure-to-state-a-claim ground is subsection (6) of SCRCP 12(b), phrased as failure to state facts sufficient to constitute a cause of action. It tests whether the complaint alleges facts that constitute a cause of action under South Carolina's state-pleading standard.

• Put the motion in writing and state grounds with particularity

  Under SCRCP 7(b)(1), an application to the court for an order shall be by motion made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. No statewide SCRCP page limit or mandatory supporting-brief requirement was located, so confirm any briefing rules in your court's local rules.

• File in the Court of Common Pleas for the proper county

  File with the clerk of court in the Court of Common Pleas, the civil division of the Circuit Court and South Carolina's court of general jurisdiction, for the county named in the summons. Magistrates Court handles civil claims up to $7,500 under S.C. Code Ann. Title 22; general civil actions above that threshold are in Common Pleas.

• Serve the motion and complete a certificate of service

  Serve the motion to dismiss on the plaintiff or plaintiff's counsel and complete a certificate of service. Any proposed-order practice for a Rule 12(b) motion is local circuit or chambers practice rather than a statewide rule, so check your court's local rules.