DocDraft Logo

West Virginia Motion to Dismiss

In West Virginia you move to dismiss under W. Va. R. Civ. P. 12(b) within the 30-day answer window.

Introduction

In West Virginia, you challenge a complaint before answering by filing a motion to dismiss under W. Va. R. Civ. P. 12(b). The state keeps the federal terminology rather than using a demurrer or preliminary objections: Rule 12(b) lets a party assert seven enumerated defenses by motion instead of in the answer, and Rule 12(b)(6), failure to state a claim upon which relief can be granted, is the merits ground. West Virginia expressly retains a Rule 12(b)(7) ground for failure to join a party under Rule 19. The timing tracks your answer window. A defendant must serve an answer within 30 days after being served with the summons and complaint under Rule 12(a)(1)(A), and a motion making any Rule 12(b) defense must be made before pleading. Serving the motion alters that clock: if the court denies the motion or postpones its disposition to trial, the responsive pleading is due within 14 days after notice of the court's action under Rule 12(a)(2)(A). The motion's form follows Rule 7(b), which requires a writing that states with particularity the grounds and the relief sought, and Trial Court Rule 6.01 sets the format for motions and memoranda. You file in the Circuit Court where the action is pending. Miss the window and you risk a default. DocDraft drafts a West Virginia-formatted motion to dismiss from your facts, with attorney review available before you file.

0/5000

Key Things to Know

  1. 1

    The West Virginia vehicle is a motion to dismiss under W. Va. R. Civ. P. 12(b), a pre-answer motion filed in Circuit Court. West Virginia has no separate-name vehicle: there is no demurrer like California or Virginia, no preliminary objections like Pennsylvania, and no peremptory exception like Louisiana. Rule 12(b) tracks federal Rule 12(b), and Rule 12(b)(6), failure to state a claim upon which relief can be granted, is the merits ground.

  2. 2

    Rule 12(b) enumerates seven defenses a party may assert 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. West Virginia expressly retains the Rule 12(b)(7) failure-to-join-a-party ground as a dismissal basis, so a missing-necessary-party objection can be raised by motion rather than only in the answer.

  3. 3

    Timing follows the answer window. A defendant must serve an answer within 30 days after being served with the summons and complaint under Rule 12(a)(1)(A). A motion making any Rule 12(b) defense must be made before pleading if a responsive pleading is allowed, meaning before the answer, so the motion lands inside that 30-day, not 20-day, response period (the 30 days reflects the amendment to Rule 12(a)(1)(A) effective January 1, 2025).

  4. 4

    Serving the Rule 12(b) motion alters the answer clock. Under Rule 12(a)(2)(A), if the court denies the motion or postpones its disposition until the trial, the responsive pleading is served within 14 days after notice of the court's action. So a denial does not leave you in immediate default; your time to answer instead runs 14 days from notice of the ruling.

  5. 5

    West Virginia has no statewide meet-and-confer requirement as a precondition to a Rule 12(b) motion to dismiss. Neither Rule 12 nor the Trial Court Rules on motions practice condition a motion to dismiss on a prior conference with opposing counsel. Many circuits set their own motion-practice and briefing expectations, so check the specific Circuit Court's local rules and any standing order before you file.

  6. 6

    The most common ground is Rule 12(b)(6), failure to state a claim upon which relief can be granted. It tests whether the complaint, accepting its well-pleaded facts as true, states a legally cognizable claim. The motion's form is set by Rule 7(b): it must be in writing, state with particularity the grounds for seeking the order, and state the relief sought, and Trial Court Rule 6.01 governs the format of the motion and any supporting memorandum (clear black image on white paper, double-spaced, type no smaller than 12-point, bound at top left, with the required caption).

  7. 7

    You file in the Circuit Court, West Virginia's general-jurisdiction civil trial court, with the clerk of the Circuit Court where the action is pending. The Magistrate Court handles smaller civil claims up to $20,000, while larger claims proceed in Circuit Court. The Rule 12(b) motion is filed in the same Circuit Court action as the answer it replaces; no statewide rule requires a memorandum of law to accompany every motion, but Trial Court Rule 6.01 sets the format if you file one.

Key decisions before you file

Before you file a Motion to Dismiss in West Virginia, 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

IN THE CIRCUIT COURT OF __________ COUNTY, WEST VIRGINIA

[PLAINTIFF NAME], Plaintiff, Civil Action No. __________ v. DEFENDANT'S MOTION TO DISMISS [DEFENDANT NAME], (W. Va. R. Civ. P. 12(b)) Defendant.

MOTION TO DISMISS UNDER W. VA. R. CIV. P. 12(b)

Defendant respectfully moves this Court, pursuant to W. Va. R. Civ. P. 12(b), for an order dismissing the complaint. This motion is made before pleading, as a responsive pleading is allowed, and is supported by the memorandum below and the records and files in this action. As required by W. Va. R. Civ. P. 7(b), this motion is in writing, states with particularity the grounds for the order sought, and states the relief requested.

GROUNDS FOR THE MOTION

The complaint should be dismissed on the following ground(s) under W. Va. R. Civ. P. 12(b):

[ ] 12(b)(1) lack of subject-matter jurisdiction; [ ] 12(b)(2) lack of personal jurisdiction; [ ] 12(b)(3) improper venue; [ ] 12(b)(4) insufficient process; [ ] 12(b)(5) insufficient service of process; [ ] 12(b)(6) failure to state a claim upon which relief can be granted; [ ] 12(b)(7) failure to join a party under Rule 19.

MEMORANDUM IN SUPPORT

[Statement of facts. Argument applying the selected Rule 12(b) ground(s) to those facts. On a Rule 12(b)(6) motion, the argument is that the complaint, accepting its well-pleaded facts as true, fails to state a claim upon which relief can be granted. Format this memorandum per W. Va. Trial Court Rule 6.01: clear black image on white paper, double-spaced, type no smaller than 12-point, bound at the top left, with the required caption. No statewide page limit for a dismissal memorandum was located in the rules; check your Circuit Court's local rules for any briefing or page-limit requirement.]

RELIEF REQUESTED

For the reasons stated, Defendant requests that the Court enter an order dismissing the complaint, together with such other relief as the Court deems just and proper.

DATED this ____ day of ________, 20.

                                    ______________________________
                                    [ATTORNEY / SELF-REPRESENTED PARTY NAME]
                                    [W. Va. State Bar No., if attorney]
                                    [Address]
                                    [Telephone / Email]

[PROPOSED] ORDER

No statewide rule was located requiring a proposed order to accompany a Rule 12(b) motion to dismiss; in e-filing counties the e-filing system may link a motion and any proposed order as a single transaction, and some circuits or judges require one by local rule or standing order. Check your Circuit Court's local practice; if an order is required, attach one for the Court's signature: "Upon consideration of Defendant's Motion to Dismiss, IT IS ORDERED that the motion is GRANTED and the complaint is DISMISSED. ENTERED: __________ ______________________ Circuit Court Judge."

CERTIFICATE OF SERVICE

I certify that on ________, 20, a true and correct copy of the foregoing Motion to Dismiss was served on [PLAINTIFF / PLAINTIFF'S COUNSEL] at [address] by [e-service / mail / personal delivery].

                                    ______________________________
                                    [NAME]

West Virginia Requirements for Motion to Dismiss

Move before pleading, within the 30-day answer window

Under W. Va. R. Civ. P. 12(b) and 12(a)(1)(A), a motion making any Rule 12(b) defense must be made before pleading if a responsive pleading is allowed, in the same window as the answer: within 30 days after being served with the summons and complaint. The 30-day period reflects the amendment to Rule 12(a)(1)(A) effective January 1, 2025.

Use the motion to alter the answer clock

Under Rule 12(a)(2)(A), serving a Rule 12(b) motion alters the answer period. If the court denies the motion or postpones its disposition until the trial, the responsive pleading is served within 14 days after notice of the court's action, unless the court sets a different time.

Select your grounds under Rule 12(b)

Rule 12(b) enumerates seven defenses a party may assert 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.

Use Rule 12(b)(6) for failure to state a claim, and 12(b)(7) for a missing party

Rule 12(b)(6), failure to state a claim upon which relief can be granted, tests whether the complaint, accepting its well-pleaded facts as true, states a legally cognizable claim. West Virginia expressly retains the Rule 12(b)(7) ground for failure to join a party under Rule 19, so a missing-necessary-party objection may be raised by motion.

Put the motion in writing per Rule 7(b)

Under W. Va. R. Civ. P. 7(b), a motion shall be in writing unless made during a hearing or trial, shall state with particularity the grounds for seeking the order, and shall state the relief sought; the caption and form rules for pleadings apply to motions.

Format the motion and any memorandum per Trial Court Rule 6.01

W. Va. Trial Court Rule 6 (Motions Practice) governs format: under Rule 6.01, motions, memoranda, and other papers must be printed or typed to produce a clear black image on white paper, double-spaced, in type no smaller than 12-point, bound at the top left, with the required caption. No statewide rule requires a memorandum of law to accompany every motion, and no statewide page limit for a dismissal memorandum was located.

File in the Circuit Court and serve the papers

File the motion in the Circuit Court, West Virginia's general-jurisdiction civil trial court, with the clerk of the Circuit Court where the action is pending. The Magistrate Court handles smaller civil claims up to $20,000, while larger claims proceed in Circuit Court. Serve the motion on the opposing party with a certificate of service.

Check local practice on a proposed order

No statewide rule was located requiring a proposed order to accompany a Rule 12(b) motion to dismiss. In e-filing counties the e-filing system may link a motion and any proposed order as a single transaction, and some circuits or judges require a proposed order by local rule or standing order. This is a local-court practice, not a statewide mandate.

Frequently Asked Questions

File a motion to dismiss under W. Va. R. Civ. P. 12(b) with the clerk of the Circuit Court where the action is pending. Under Rule 7(b), the motion must be in writing, state with particularity the grounds for the order, and state the relief sought. Trial Court Rule 6.01 sets the format for the motion and any memorandum. Make the motion before pleading, that is, before your answer is due.

A Rule 12(b) motion must be made before pleading, in the same window as the answer under Rule 12(a)(1)(A): within 30 days after being served with the summons and complaint. Serving the motion before the answer alters that window, and if the court denies the motion or postpones it to trial, the responsive pleading is due within 14 days after notice of the court's action under Rule 12(a)(2)(A).

A motion to dismiss asks the Circuit Court to throw the case out over a defect that appears on the pleadings, without reaching the evidence. W. Va. R. Civ. P. 12(b) lets the defendant contest the court's subject-matter authority and personal jurisdiction over the defendant, whether venue is improper, and whether process or its service was insufficient. The leading merits ground is failure to state a claim on which relief can be granted, plus failure to join a needed party.

No statewide rule requires a meet-and-confer as a precondition to a Rule 12(b) motion to dismiss. Neither Rule 12 nor the Trial Court Rules on motions practice condition the motion on a prior conference with opposing counsel. Individual circuits may set their own motion-practice expectations, so confirm the specific Circuit Court's local rules and any standing order before filing.

West Virginia treats a denial as the trigger for your answer. Under Rule 12(a)(2)(A), serving the Rule 12(b) motion suspends the 30-day answer period; if the court denies the motion or postpones it to trial, you must serve the responsive pleading within 14 days after notice of the court's action, unless the court sets a different time. The case then continues toward discovery and the merits.

File in the Circuit Court, West Virginia's general-jurisdiction civil trial court, with the clerk of the Circuit Court where the action is pending. The Magistrate Court handles smaller civil claims up to $20,000, while larger claims proceed in Circuit Court. The motion to dismiss is filed in the same Circuit Court action as the answer it would replace. The West Virginia Rules of Civil Procedure govern the motion.