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South Dakota Motion to Dismiss

In South Dakota you move to dismiss under SDCL 15-6-12(b) within the 30-day answer window.

Introduction

In South Dakota you challenge a complaint before answering by filing a motion to dismiss under SDCL 15-6-12(b). South Dakota is unusual in that it codifies its rules of civil procedure as statutes inside SDCL Title 15, chapter 6, which governs procedure in the circuit courts, rather than in a separately promulgated rulebook. SDCL 15-6-12(b) lets you assert certain defenses by motion at the pleader's option, and it enumerates six grounds: 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 upon which relief can be granted, and failure to join a party under SDCL 15-6-19. The numbering surprises practitioners who expect the federal frame, because failure to state a claim is 15-6-12(b)(5) here, not 12(b)(6), and subject-matter jurisdiction starts the list at (b)(1). You file the motion in place of the answer within the 30-day window set by SDCL 15-6-12(a). Serving the motion alters that clock: if the court denies it or postpones it to trial, your responsive pleading is then due within ten days after notice of the court's action under SDCL 15-6-12(a)(1). Missing the window risks a default judgment. DocDraft drafts a South 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

    South Dakota's pre-answer challenge to a complaint is a motion to dismiss under SDCL 15-6-12(b). South Dakota codifies its rules of civil procedure as statutes in SDCL Title 15, chapter 6, which governs procedure in the circuit courts, so the dismissal rule is a statute rather than a court-promulgated rule. SDCL 15-6-12(b) allows the enumerated defenses to be made by motion at the pleader's option.

  2. 2

    SDCL 15-6-12(b) lists six grounds with South Dakota's distinctive numbering: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; (4) insufficiency of service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under SDCL 15-6-19. Note that failure to state a claim is 15-6-12(b)(5) here, not the federal 12(b)(6).

  3. 3

    A 15-6-12 motion is filed in place of the answer within the same window. The answer in a general civil action is due within thirty days after service of the complaint under SDCL 15-6-12(a), and the motion stands in place of the answer within that window.

  4. 4

    Serving the motion alters the answer clock. Under SDCL 15-6-12(a)(1), if the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading must be served within ten days after notice of the court's action, unless the court fixes a different time.

  5. 5

    No statewide rule mandates a supporting brief or memorandum with the motion. The former rule that required a brief with the motion (CIV TEN) was repealed effective December 6, 2019, so any brief requirement is now a matter of local circuit practice. The motion itself must be in writing, state the grounds with particularity, and set forth the relief sought under SDCL 15-6-7(b); check your court's local rules for any brief requirement.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, which South Dakota numbers as 15-6-12(b)(5). If matters outside the pleading are presented on a 15-6-12(b)(5) motion, the motion is treated as one for summary judgment under SDCL 15-6-56.

  7. 7

    You file the motion with the clerk of the circuit court named in the summons. The circuit court is South Dakota's trial court of general jurisdiction, and SDCL chapter 15-6 governs procedure in the circuit courts. A written motion and notice of hearing must be served not later than ten days before the hearing under SDCL 15-6-6(d).

Key decisions before you file

Before you file a Motion to Dismiss in South Dakota, 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 DAKOTA IN CIRCUIT COURT COUNTY OF [COUNTY] [NUMBER] JUDICIAL CIRCUIT

[PLAINTIFF NAME], Plaintiff,

v.

[DEFENDANT NAME], Defendant.

Civ. No. [CASE NUMBER]

MOTION TO DISMISS UNDER SDCL 15-6-12(b)

Defendant [DEFENDANT NAME], pursuant to SDCL 15-6-12(b), respectfully moves the Court to dismiss the Complaint. This motion is made in writing, states the grounds with particularity, and sets forth the relief sought, as required by SDCL 15-6-7(b). It is filed in place of an answer within the window set by SDCL 15-6-12(a).

GROUNDS

The Complaint should be dismissed on the following ground(s) enumerated in SDCL 15-6-12(b):

[Select the applicable ground(s):] ( ) (1) Lack of jurisdiction over the subject matter. ( ) (2) Lack of jurisdiction over the person. ( ) (3) Insufficiency of process. ( ) (4) Insufficiency of service of process. ( ) (5) Failure to state a claim upon which relief can be granted. ( ) (6) Failure to join a party under SDCL 15-6-19.

GROUNDS AND AUTHORITY IN SUPPORT

I. INTRODUCTION This motion challenges the Complaint under SDCL 15-6-12(b). [State which ground(s) apply and why.]

II. STATEMENT OF RELEVANT FACTS [Summarize the allegations of the Complaint as relevant to the ground(s) raised.]

III. ARGUMENT [State the legal basis for each ground. For a motion under 15-6-12(b)(5), explain why the Complaint fails to state a claim upon which relief can be granted. Note that if matters outside the pleading are presented and not excluded by the court, a 15-6-12(b)(5) motion is treated as one for summary judgment under SDCL 15-6-56.]

[No statewide rule mandates a separate supporting brief; the former CIV TEN brief requirement was repealed effective December 6, 2019. Check your local circuit's rules and practice for any brief requirement and supply a separate brief if your circuit requires one.]

CONCLUSION AND REQUEST FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court dismiss the Complaint and grant such other relief as the Court deems just and proper.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] [Email] Attorney for Defendant / Self-Represented Defendant

NOTICE OF HEARING

PLEASE TAKE NOTICE that the foregoing Motion to Dismiss will be heard before the Court on [DATE] at [TIME], or as soon thereafter as counsel may be heard. This motion and notice of hearing are served not later than ten days before the hearing in accordance with SDCL 15-6-6(d).

[Some circuits or judges request a proposed order be submitted with the motion. No statewide South Dakota statute or circuit court rule requires one for a 15-6-12(b) motion; check your court's local rules and practice.]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a true and correct copy of the foregoing MOTION TO DISMISS on all parties of record by [method of service] in accordance with South Dakota law.

[NAME OF PERSON SERVING]

South Dakota Requirements for Motion to Dismiss

File within the 30-day answer window

A SDCL 15-6-12 motion to dismiss is filed in place of the answer within the answer window. The answer in a general civil action is due within thirty days after service of the complaint under SDCL 15-6-12(a). The motion stands in place of the answer within that window.

Filing the motion alters the answer clock

Under SDCL 15-6-12(a)(1), if the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading must be served within ten days after notice of the court's action, unless the court fixes a different time. The motion is filed at the pleader's option instead of an answer.

Identify the grounds under SDCL 15-6-12(b)

Select from the six grounds in SDCL 15-6-12(b): (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficiency of process; (4) insufficiency of service of process; (5) failure to state a claim upon which relief can be granted; (6) failure to join a party under SDCL 15-6-19.

Use South Dakota's 15-6-12(b)(5) numbering for failure to state a claim

South Dakota numbers failure to state a claim as 15-6-12(b)(5), not the federal 12(b)(6), and subject-matter jurisdiction as 15-6-12(b)(1). If matters outside the pleading are presented on a 15-6-12(b)(5) motion, the motion is treated as one for summary judgment under SDCL 15-6-56.

Put the motion in writing and state the grounds with particularity

Under SDCL 15-6-7(b), the motion must be in writing, state the grounds with particularity, and set forth the relief or order sought. Caption and form-of-pleading rules apply to motions.

No statewide brief requirement after the 2019 repeal

No statewide rule mandates a supporting brief or memorandum with the motion. The former rule that required a brief with the motion, CIV TEN, was repealed effective December 6, 2019, so any brief requirement is now a matter of local circuit practice. Check your court's local rules and supply a separate brief if your circuit requires one.

Serve the motion and notice of hearing on the statutory schedule

Under SDCL 15-6-6(d), a written motion and notice of hearing must be served not later than ten days before the hearing; opposing briefs or affidavits may be filed up to five days before, and reply materials up to two days before, unless the court orders otherwise.

File in the circuit court named in the summons

File with the clerk of the circuit court named in the summons. The circuit court is South Dakota's trial court of general jurisdiction, and SDCL chapter 15-6 governs procedure in the circuit courts in all suits of a civil nature. Serve the motion on all parties and file proof of service. Some circuits or judges may request a proposed order; no statewide rule requires one, so check your court's local rules.

Frequently Asked Questions

In South Dakota you file a motion to dismiss under SDCL 15-6-12(b) in place of an answer. The motion must be in writing, state the grounds with particularity, and set forth the relief sought under SDCL 15-6-7(b). You file it with the clerk of the circuit court named in the summons and serve the written motion and notice of hearing not later than ten days before the hearing under SDCL 15-6-6(d).

A 15-6-12 motion to dismiss is filed in place of the answer within the answer window. The answer in a general civil action is due within thirty days after service of the complaint under SDCL 15-6-12(a). The motion stands in place of the answer within that window, and serving it alters the answer clock under SDCL 15-6-12(a)(1).

South Dakota codifies its rules as statutes, so dismissal defenses live in SDCL 15-6-12(b). The state's numbering also differs from the federal pattern: failure to state a claim is ground (b)(5), not (b)(6). The provision lists six grounds in all, reaching lack of subject-matter or personal jurisdiction, insufficiency of process and of service of process, failure to state a claim, and failure to join a party under SDCL 15-6-19.

No statewide rule mandates a supporting brief with the motion. The former rule that required a brief with the motion, CIV TEN, was repealed effective December 6, 2019, so any brief requirement is now a matter of local circuit practice. The motion itself must be in writing, state the grounds with particularity, and set forth the relief sought under SDCL 15-6-7(b). Check your court's local rules.

If the court denies the motion or postpones its disposition until trial on the merits, your responsive pleading must be served within ten days after notice of the court's action under SDCL 15-6-12(a)(1), unless the court fixes a different time. If matters outside the pleading are presented on a 15-6-12(b)(5) motion, it is treated as one for summary judgment under SDCL 15-6-56.

You file with the clerk of the circuit court named in the summons. The circuit court is South Dakota's trial court of general jurisdiction, and SDCL chapter 15-6 governs procedure in the circuit courts in all suits of a civil nature. A written motion and notice of hearing must be served not later than ten days before the hearing under SDCL 15-6-6(d).