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South Carolina Motion to Dismiss

In South Carolina you move to dismiss under SCRCP 12(b) within the 30-day answer window, which it tolls.

Introduction

In South Carolina the 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)). The rule tracks federal Rule 12(b) but is broader: it lets a defendant, at the pleader's option, raise eight enumerated defenses by motion instead of in the answer. Those grounds are lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state facts sufficient to constitute a cause of action, failure to join a party under Rule 19, and another action pending between the same parties for the same claim. 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 the motion tolls and replaces the 30-day answer clock until the court rules. The motion must be in writing, state its grounds with particularity, and set forth the relief sought, as SCRCP 7(b)(1) requires. Missing the 30-day window without filing a motion or answer risks a default. DocDraft drafts a South 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

    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.

Key decisions before you file

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

Open the Motion to Dismiss guide

Customize your Motion to Dismiss Template with DocDraft

STATE OF SOUTH CAROLINA COUNTY OF [COUNTY]

IN THE COURT OF COMMON PLEAS [JUDICIAL CIRCUIT] JUDICIAL CIRCUIT Case No. [CASE NUMBER]

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

MOTION TO DISMISS

[SCRCP 12(b)]

Defendant [DEFENDANT NAME], appearing [by counsel / pro se], pursuant to Rule 12(b) of the South Carolina Rules of Civil Procedure, moves the Court to dismiss the Complaint filed by Plaintiff [PLAINTIFF NAME]. This motion is made before the responsive pleading is due. Pursuant to SCRCP 7(b)(1), Defendant states the grounds for this motion with particularity and sets forth the relief sought below.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint, and each cause of action therein, on the following ground(s) under Rule 12(b) of the South Carolina Rules of Civil Procedure:

  1. Failure to state facts sufficient to constitute a cause of action. (SCRCP 12(b)(6).)

[Add any additional applicable grounds from SCRCP 12(b): (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; (7) failure to join a party under Rule 19; (8) another action is pending between the same parties for the same claim.]

MEMORANDUM IN SUPPORT

I. INTRODUCTION This motion challenges the legal sufficiency of the Complaint. On a motion under SCRCP 12(b)(6), the question is whether the Complaint states facts sufficient to constitute a cause of action.

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 facts sufficient to constitute a cause of action and/or why any other SCRCP 12(b) ground applies.]

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

WHEREFORE, Defendant respectfully requests that the Court:

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

Dated this [DAY] day of [MONTH], [YEAR].

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [S.C. 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 the South Carolina Rules of Civil Procedure.

[PLAINTIFF / PLAINTIFF'S COUNSEL NAME AND ADDRESS]

Dated this [DAY] day of [MONTH], [YEAR].

[NAME OF PERSON SERVING]

[A supporting memorandum is the conventional practice but no statewide SCRCP page limit or mandatory-brief requirement was located; page limits, briefing schedules, and any proposed-order practice for a Rule 12(b) motion are governed by local circuit practice or the court's scheduling order and vary by county. Check your court's local rules.]

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.

Frequently Asked Questions

In South Carolina you file a motion to dismiss under Rule 12(b) of the South Carolina Rules of Civil Procedure. At the pleader's option, the motion raises one or more of eight enumerated defenses by motion instead of in the answer. The motion must be in writing, state its grounds with particularity, and set forth the relief sought under SCRCP 7(b)(1). You file it with the clerk of court in the Court of Common Pleas for the county named in the summons.

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. Serving the motion alters the answer period, so it tolls and replaces the 30-day answer clock until the court rules, unless the court fixes a different time by order.

South Carolina's SCRCP 12(b) phrases its core ground as failure to state facts sufficient to constitute a cause of action, the analog to federal 12(b)(6). The rule enumerates eight grounds rather than the federal seven, covering subject-matter and personal jurisdiction, improper venue, and insufficiency of process or its service. The extra ground is the eighth: another action pending between the same parties for the same claim, alongside failure to join a party under Rule 19.

South 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. 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.

Under SCRCP 12(a), serving a Rule 12 motion alters the answer period, and the rule or the court's order sets the time to answer after the court rules on the motion. The specific number of days you have to serve your answer after a denial is governed by SCRCP 12(a) or by the court's scheduling order, so confirm the post-ruling deadline against the rule and any order in your case.

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, while general civil actions above that threshold are filed in Common Pleas.