Motion to Dismiss

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF [________________________________]

Case No.: [________________________________]

DEFENDANT'S MOTION TO DISMISS

(Pursuant to Ariz. R. Civ. P. 12(b))

INTRODUCTION

Defendant [________________________________] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Rule 12(b) of the Arizona Rules of Civil Procedure for an Order dismissing the Complaint of Plaintiff [________________________________] ("Plaintiff") in its entirety, with prejudice, on the grounds set forth below. This Motion is supported by the accompanying Memorandum of Points and Authorities.

GROUNDS FOR DISMISSAL

Defendant moves for dismissal on the following grounds (check all that apply):

☐ Ground 1 – Lack of Subject Matter Jurisdiction [Ariz. R. Civ. P. 12(b)(1)]
The Court lacks jurisdiction over the subject matter of Plaintiff's claims because [________________________________].

☐ Ground 2 – Lack of Personal Jurisdiction [Ariz. R. Civ. P. 12(b)(2)]
The Court lacks personal jurisdiction over Defendant because Defendant does not have sufficient minimum contacts with Arizona to satisfy constitutional due process. [________________________________].

☐ Ground 3 – Improper Venue [Ariz. R. Civ. P. 12(b)(3)]
Venue is improper in [________________________________] County. Proper venue lies in [________________________________] County pursuant to A.R.S. § [________________________________]. (Note: under Ariz. R. Civ. P. 12(b), a party may assert improper venue as a defense only if the action cannot be, or could not have been, transferred to the proper county under A.R.S. § 12-404; if transfer is available, request transfer rather than dismissal.)

☐ Ground 4 – Insufficiency of Process [Ariz. R. Civ. P. 12(b)(4)]
The process issued in this matter is insufficient because [________________________________].

☐ Ground 5 – Insufficiency of Service of Process [Ariz. R. Civ. P. 12(b)(5)]
Service of process upon Defendant was insufficient because [________________________________].

☐ Ground 6 – Failure to State a Claim [Ariz. R. Civ. P. 12(b)(6)]
The Complaint fails to state a claim upon which relief can be granted. Under Arizona's notice-pleading standard, Plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof, even accepting the well-pled factual allegations as true.

☐ Ground 7 – Failure to Join an Indispensable Party [Ariz. R. Civ. P. 12(b)(7)]
Plaintiff has failed to join [________________________________], an indispensable party whose joinder is required under Ariz. R. Civ. P. 19 because [________________________________].

☐ Ground 8 – Statute of Limitations
Plaintiff's claims are barred by the applicable statute of limitations under A.R.S. § [________________________________], which provides a [____]-year limitations period. The cause of action accrued on or about [__/__/____], and this action was not filed until [__/__/____].

☐ Ground 9 – Res Judicata / Claim Preclusion
Plaintiff's claims are barred by res judicata based on the prior final judgment in Case No. [________________________________] entered on [__/__/____].

☐ Ground 10 – Collateral Estoppel / Issue Preclusion
Issues necessary to Plaintiff's claims were previously litigated and decided in Case No. [________________________________].

☐ Ground 11 – Lack of Standing
Plaintiff lacks standing to bring this action because [________________________________].

☐ Ground 12 – Arizona Public Records Law / Immunity
[________________________________].

☐ Ground 13 – Preemption
Plaintiff's state law claims are preempted by [federal law / other applicable law]: [________________________________].

☐ Ground 14 – Other
[________________________________].

PROCEDURAL BACKGROUND

1. On or about [__/__/____], Plaintiff filed the Complaint in the [________________________________] County Superior Court.

2. Defendant was purportedly served with the Summons and Complaint on [__/__/____].

3. Under Ariz. R. Civ. P. 12(a)(1)(A), Defendant must serve an answer within 20 days after service of the Summons and Complaint. (For FASTAR cases — Limited Jurisdiction cases under the Fast, Affordable, Simple Trial program — the deadline is shorter; verify with the assigned court.)

4. This Motion is timely filed before the expiration of Defendant's answer deadline of [__/__/____], and before pleading, as required by Ariz. R. Civ. P. 12(b).

5. [Additional relevant procedural facts:]
   [________________________________]

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION AND SUMMARY OF ARGUMENT

[Provide a concise overview of why dismissal is warranted.]

[________________________________]
[________________________________]

II. LEGAL STANDARD

A. Standard Under Ariz. R. Civ. P. 12(b)(6) — Failure to State a Claim

A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. When ruling on a 12(b)(6) motion, the court accepts as true all well-pleaded factual allegations and resolves all reasonable inferences in the plaintiff's favor. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 189 P.3d 344 (2008).

Arizona follows a notice pleading standard under Ariz. R. Civ. P. 8(a)(1), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 8, 284 P.3d 863, 867 (2012).

Arizona has expressly declined to adopt the federal Bell Atlantic Corp. v. Twombly "plausibility" pleading standard. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008) (holding that Ariz. R. Civ. P. 8, as previously interpreted by the Arizona Supreme Court, continues to govern the sufficiency of pleadings, and that only the Arizona Supreme Court may modify that standard). Under Rule 12(b)(6), a claim must be dismissed only if, as a matter of law, the plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Coleman, 230 Ariz. at 356 ¶ 8. The court looks only to the pleading itself and considers the well-pled factual allegations contained in it, assuming the truth of those allegations and indulging all reasonable inferences in the plaintiff's favor — but mere conclusory statements are insufficient to state a valid claim. Cullen, 218 Ariz. at 419 ¶ 7.

Importantly, the court may not consider matters outside the pleadings on a 12(b)(6) motion without converting it to a motion for summary judgment under Ariz. R. Civ. P. 56, although it may consider documents referenced in and central to the complaint, or public records, without conversion. Coleman, 230 Ariz. at 356 ¶ 9.

B. Standard Under Ariz. R. Civ. P. 12(b)(1) — Subject Matter Jurisdiction

The court may consider evidence outside the pleadings when ruling on a 12(b)(1) motion for lack of subject matter jurisdiction. The plaintiff bears the burden of establishing jurisdiction. Subject matter jurisdiction may be challenged at any time, even on appeal.

C. Standard Under Ariz. R. Civ. P. 12(b)(2) — Personal Jurisdiction

The plaintiff bears the burden of making a prima facie showing of personal jurisdiction when challenged. Arizona's long-arm rule, Ariz. R. Civ. P. 4.2(a), extends jurisdiction to the fullest extent permitted by the United States and Arizona Constitutions. Meyers v. Hamilton Corp., 143 Ariz. 249 (1984).

III. ARGUMENT

A. [SUBJECT MATTER JURISDICTION — complete if applicable]

This Court lacks subject matter jurisdiction over the present action because [________________________________].

The Arizona Superior Court has general jurisdiction under A.R.S. § 12-123, but that jurisdiction is subject to constitutional and statutory limitations. [Cite applicable statute or constitutional provision.]

Specifically, [explain why subject matter jurisdiction is lacking]: [________________________________].

Because this Court has no power to adjudicate this matter, the Complaint must be dismissed pursuant to Ariz. R. Civ. P. 12(b)(1).

B. [PERSONAL JURISDICTION — complete if applicable]

This Court lacks personal jurisdiction over Defendant because Defendant lacks the constitutionally required minimum contacts with Arizona.

Defendant is [a non-resident individual / a corporation organized under the laws of / an entity with its principal place of business in] [________________________________].

Under Ariz. R. Civ. P. 4.2(a), Arizona's long-arm statute, personal jurisdiction over a non-resident extends to the fullest extent permitted by the Fourteenth Amendment's due process clause. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (interpreting Arizona long-arm rule).

Defendant lacks the requisite minimum contacts:

1. Defendant is not domiciled in, incorporated in, or has its principal place of business in Arizona.

2. Defendant did not commit any act in Arizona that gives rise to the claims in this case.

3. Defendant has not purposefully availed itself of the privilege of conducting business in Arizona.

The maintenance of this action in Arizona would offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). The Complaint must be dismissed pursuant to Ariz. R. Civ. P. 12(b)(2).

C. [IMPROPER VENUE — complete if applicable]

Venue is improper in [________________________________] County. Under A.R.S. § 12-401 or § [________________________________], venue for this type of action is proper in [________________________________] County because:

[Explain why current venue is improper under applicable statute.] Under Ariz. R. Civ. P. 12(b), improper venue may be raised as a Rule 12(b)(3) defense only if the action cannot be, or could not have been, transferred to the proper county under A.R.S. § 12-404; if a transfer under § 12-404 is available, the appropriate remedy is transfer, not dismissal. The action should therefore be [dismissed / transferred] to [________________________________] County pursuant to Ariz. R. Civ. P. 12(b)(3) and, if applicable, A.R.S. § 12-404.

D. [INSUFFICIENCY OF PROCESS / SERVICE — complete if applicable]

Defendant was not properly served as required by Ariz. R. Civ. P. 4. The deficiencies in process and/or service are:

☐ The summons was not issued or signed by the clerk of court as required by Ariz. R. Civ. P. 4(a).

☐ Service was not made within 90 days after the filing of the Complaint as required by Ariz. R. Civ. P. 4(i).

☐ Service was not made on a proper person or by an authorized method. Specifically, [________________________________].

☐ Service on a corporation/entity did not comply with Ariz. R. Civ. P. 4.1(i) because [________________________________].

☐ Other: [________________________________].

Because proper service is a prerequisite to the Court's exercise of personal jurisdiction, this action must be dismissed pursuant to Ariz. R. Civ. P. 12(b)(4) and/or 12(b)(5).

E. [FAILURE TO STATE A CLAIM — complete if applicable]

The Complaint fails to state a claim upon which relief can be granted under the standard set forth in Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 8, 284 P.3d 863 (2012), and must be dismissed pursuant to Ariz. R. Civ. P. 12(b)(6).

Count [____]: [Name of Cause of Action]

To state a claim for [cause of action] under Arizona law, Plaintiff must allege: (1) [element]; (2) [element]; (3) [element]; and (4) [element]. [Citation], [____] Ariz. [____], [____] P.[____] [____] ([____]).

The Complaint is deficient for the following reasons:

1. [Element not adequately pleaded]: The Complaint alleges only that "[quote from complaint]." This bare assertion is a conclusory legal conclusion, not a factual allegation. The Complaint contains no facts showing [________________________________].

2. [Missing element]: The Complaint wholly fails to allege [________________________________], an essential element of [cause of action]. Without such facts, no plausible claim exists.

3. [Other deficiency]: [________________________________].

As pled, Plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Coleman, 230 Ariz. at 356 ¶ 8. Therefore, dismissal is required.

[Repeat analysis for each count.]

F. [STATUTE OF LIMITATIONS — complete if applicable]

Plaintiff's claims are time-barred under A.R.S. § [________________________________].

The applicable statute of limitations for [type of claim] in Arizona is [____] year(s). The cause of action accrued on [__/__/____] when [describe the accrual event]. See [Arizona accrual case].

Plaintiff filed this action on [__/__/____], which is [____] days / months / years after the limitations period expired on [__/__/____].

No tolling doctrine applies:

☐ The discovery rule does not save the claim because Plaintiff knew or reasonably should have known of the claim by [__/__/____]. [Citation].

☐ The fraudulent concealment doctrine does not apply because [________________________________].

☐ The minority / disability tolling provision under A.R.S. § 12-502 does not apply because [________________________________].

All claims are time-barred and must be dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendant [________________________________] respectfully requests that this Court:

1. Grant this Motion to Dismiss in its entirety;

2. Dismiss Plaintiff's Complaint [with / without] prejudice;

3. ☐ Transfer this action to [________________________________] County where venue is proper;

4. Award Defendant its reasonable attorney's fees pursuant to A.R.S. § 12-341.01 (if arising out of contract) and/or other applicable authority; and

5. Award Defendant its taxable costs pursuant to A.R.S. § 12-341; and

6. Grant such other and further relief as this Court deems just and proper.

REQUEST FOR ORAL ARGUMENT

☐ Defendant requests oral argument on this Motion pursuant to Ariz. R. Civ. P. 7.1(d).

☐ Defendant does not request oral argument and submits this matter on the briefs.

Estimated argument time: [____] minutes per side.

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully prays for this Court's Order granting this Motion to Dismiss, dismissing Plaintiff's Complaint with prejudice, and for such further relief as the Court deems appropriate.

Respectfully submitted,

Dated: [__/__/____]

[________________________________]
[________________________________] (Ariz. Bar No. [________________________________])
[________________________________]
[________________________________]
[________________________________], Arizona [____]
Telephone: ([____]) [____]-[____]
Facsimile: ([____]) [____]-[____]
Email: [________________________________]
Attorney for Defendant [________________________________]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused the foregoing DEFENDANT'S MOTION TO DISMISS and Memorandum of Points and Authorities to be served upon the following counsel of record and/or parties by the method indicated:

[________________________________]
[________________________________]
[________________________________]
[________________________________]

☐ AZTurboCourt (Arizona e-filing system) — electronic service upon all registered users.

☐ U.S. Mail, First Class, postage prepaid.

☐ Hand Delivery.

☐ Electronic Mail (by agreement): [________________________________]

☐ Facsimile: ([____]) [____]-[____]

[________________________________]
[Print Name / Signature]

FILING NOTES AND INSTRUCTIONS

Filing Deadline: Under Ariz. R. Civ. P. 12(b), this Motion must be filed before filing the answer. Defendant's answer is due within 20 days of service (Ariz. R. Civ. P. 12(a)(1)(A)). For FASTAR (Fast, Affordable, Simple Trial) cases and justice court cases, different timelines apply. Verify the applicable deadline for your specific case type.

Page Limits: Under Ariz. R. Civ. P. 7.1(a)(2), a motion and its supporting memorandum together may not exceed 17 pages, exclusive of attachments and any required statement of facts. Under Ariz. R. Civ. P. 7.1(a)(3), a responsive memorandum may not exceed 17 pages, and a reply memorandum may not exceed 11 pages, both exclusive of attachments and any required statement of facts. A court may order otherwise or grant an extension for good cause.

Response Deadline: Under Ariz. R. Civ. P. 7.1(a)(3), the opposing party must file any responsive memorandum within 10 days after the motion and supporting memorandum are served.

Reply Deadline: Under Ariz. R. Civ. P. 7.1(a)(3), the moving party may file a reply memorandum within 5 days after the responsive memorandum is served, addressing only matters raised in the response. (Because both periods are less than 11 days, intermediate Saturdays, Sundays, and legal holidays are excluded from the count under Ariz. R. Civ. P. 6(a)(2).)

Good Faith Consultation Certificate: Under Ariz. R. Civ. P. 12(j), a motion asserting improper venue (Rule 12(b)(3)), failure to state a claim (Rule 12(b)(6)), judgment on the pleadings (Rule 12(c)), or a motion to strike (Rule 12(f)) must be accompanied by a good faith consultation certificate complying with Ariz. R. Civ. P. 7.1(h), certifying that the movant tried in good faith — in person or by telephone — to resolve the issue with the opposing party before filing. This requirement does not apply to grounds raised solely under Rule 12(b)(1), (2), (4), or (5).

E-Filing: Arizona uses AZTurboCourt for e-filing in superior courts. Visit https://azturbocourt.gov/. E-filing is mandatory in most Arizona counties.

Tolling Effect: Service of this Motion tolls the obligation to file an answer. If the Court denies the Motion or postpones its disposition until trial, the answer is due within 10 days after notice of the Court's action, unless the Court sets a different time. Ariz. R. Civ. P. 12(a)(2)(A).

Attorney Fees: A.R.S. § 12-341.01 authorizes an award of attorney fees to the successful party in any contested action arising out of a contract. If Plaintiff's claims sound in contract and you prevail on this Motion, consider including a fee application.

Waiver of Defenses: Under Ariz. R. Civ. P. 12(h)(1), defenses of personal jurisdiction (12(b)(2)), improper venue (12(b)(3)), insufficiency of process (12(b)(4)), and insufficiency of service (12(b)(5)) are waived if not raised in the first Rule 12 motion or in the answer. Subject matter jurisdiction (12(b)(1)) cannot be waived.

Sources and References:

• Arizona Rules of Civil Procedure: https://www.azleg.gov/rules/
• Arizona Courts (AZTurboCourt): https://azturbocourt.gov/
• Arizona Revised Statutes: https://www.azleg.gov/arstitle/
• Coleman v. City of Mesa: 230 Ariz. 352, 284 P.3d 863 (2012)