IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

[________________________________] COUNTY

[________________________________],
Plaintiff,

v.

[________________________________],
Defendant.

C.A. No.: [________________________________]

DEFENDANT'S MOTION TO DISMISS

(Pursuant to Del. Super. Ct. Civ. R. 12(b))

IMPORTANT DELAWARE NOTE: Delaware has multiple courts with separate jurisdiction. This template is designed for the Delaware Superior Court, which handles most civil litigation matters (tort, contract, etc.). For equity matters and many corporate disputes, the Delaware Court of Chancery (with its own rules and procedures) may have jurisdiction instead. For small claims, the Justice of the Peace Court has jurisdiction. Ensure you are filing in the correct court.

INTRODUCTION

Defendant [________________________________] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Rule 12(b) of the Delaware Superior Court Civil Rules for an Order dismissing the Complaint filed by Plaintiff [________________________________] ("Plaintiff") in its entirety, with prejudice. This Motion is supported by the Memorandum of Law set forth herein and the record in this action.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss this action on the following grounds (check all that apply):

☐ Ground 1 – Lack of Subject Matter Jurisdiction [Del. Super. Ct. Civ. R. 12(b)(1)]
The Court lacks jurisdiction over the subject matter of this action because [________________________________].

☐ Ground 2 – Lack of Personal Jurisdiction [Del. Super. Ct. Civ. R. 12(b)(2)]
The Court lacks jurisdiction over the person of Defendant because Defendant does not have sufficient minimum contacts with the State of Delaware to satisfy constitutional due process requirements. [________________________________].

☐ Ground 3 – Improper Venue [Del. Super. Ct. Civ. R. 12(b)(3)]
Venue is improper in [________________________________] County. Proper venue lies in [________________________________] pursuant to 10 Del. C. § [________________________________].

☐ Ground 4 – Insufficiency of Process [Del. Super. Ct. Civ. R. 12(b)(4)]
The process issued in this action is insufficient because [________________________________].

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

☐ Ground 6 – Failure to State a Claim [Del. Super. Ct. Civ. R. 12(b)(6)]
The Complaint fails to state a claim upon which relief can be granted. The factual allegations in the Complaint, even accepted as true, do not plausibly give rise to any cognizable cause of action under Delaware law.

☐ Ground 7 – Failure to Join Indispensable Party [Del. Super. Ct. Civ. R. 12(b)(7)]
Plaintiff has failed to join [________________________________], an indispensable party required under Del. Super. Ct. Civ. R. 19 because [________________________________].

☐ Ground 8 – Statute of Limitations
Plaintiff's claims are time-barred under 10 Del. C. § [________________________________], 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 [__/__/____] between the same parties concerning the same claims.

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

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

☐ Ground 12 – Government Immunity
Defendant is immune from suit pursuant to [________________________________] because [________________________________].

☐ Ground 13 – Wrong Court — Should Be Filed in Court of Chancery
Plaintiff's claims are equitable in nature and the appropriate forum is the Court of Chancery, not the Superior Court. [________________________________].

☐ 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 Del. Super. Ct. Civ. R. 12(a)(1), Defendant must serve an answer within 20 days after service of process. This Motion is filed within that period, and before Defendant's answer, as required by Del. Super. Ct. Civ. R. 12(b).

4. Defendant's answer deadline is [__/__/____]. This Motion is timely filed.

5. Note on partial motions to dismiss: Under Delaware Superior Court practice, a partial motion to dismiss tolls the answering deadline for both challenged and unchallenged claims, pending resolution of the motion. See Morris James LLP, "Superior Court Holds that a Partial Motion to Dismiss Tolls the Answering Deadline for Both Challenged and Unchallenged Claims."

6. [Additional relevant procedural history:]
   [________________________________]

MEMORANDUM OF LAW

I. INTRODUCTION

[Provide a concise summary of the argument for dismissal.]

[________________________________]
[________________________________]

II. LEGAL STANDARD

A. Standard Under Del. Super. Ct. Civ. R. 12(b)(6) — Failure to State a Claim

On a motion to dismiss for failure to state a claim under Del. Super. Ct. Civ. R. 12(b)(6), the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).

Delaware courts apply a "reasonable conceivability" standard — somewhat more lenient than the federal Twombly/Iqbal "plausibility" standard. A complaint survives a motion to dismiss if it alleges facts that "may support a reasonable inference" that the defendant is liable. Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011). The reasonable conceivability standard "asks whether there is a conceivable set of circumstances susceptible of proof under the complaint." Id.

However, the plaintiff must plead facts, not mere conclusory allegations. Iqbal, 556 U.S. 662 (2009) (while federal standard, cited as persuasive in Delaware). Legal conclusions are not accepted as true. The court evaluates whether the plaintiff has "alleged facts sufficient to support each element of [the] claim." In re Tri-Star Pictures, Inc. Litig., 634 A.2d 319, 326 (Del. 1993).

Key Delaware distinction: Delaware applies the reasonable conceivability standard, not the federal plausibility standard. A claim survives if it is "reasonably conceivable" from the alleged facts that the defendant is liable, even if not probable or even particularly likely.

The court may consider the complaint, documents incorporated by reference, and matters subject to judicial notice. The court may not consider matters outside the pleadings on a 12(b)(6) motion without converting it to a summary judgment motion.

B. Standard Under Del. Super. Ct. Civ. R. 12(b)(1) — Subject Matter Jurisdiction

Subject matter jurisdiction may be challenged at any time; it cannot be waived. The Superior Court has jurisdiction over civil actions at law under 10 Del. C. § 541. Equity jurisdiction generally lies in the Court of Chancery under Del. Const. art. IV, § 10. If a plaintiff brings equitable claims in the Superior Court, the court may lack jurisdiction.

C. Standard Under Del. Super. Ct. Civ. R. 12(b)(2) — Personal Jurisdiction

The plaintiff bears the burden of establishing a prima facie case of personal jurisdiction. Delaware's long-arm statute, 10 Del. C. § 3104, extends jurisdiction to the fullest extent permitted by the United States Constitution. Boone v. Oy Partek Ab, 724 A.2d 1150 (Del. Super. Ct. 1997).

III. ARGUMENT

A. [SUBJECT MATTER JURISDICTION — complete if applicable]

This Court lacks subject matter jurisdiction because [________________________________].

The Delaware Superior Court has jurisdiction over civil actions at law under 10 Del. C. § 541. However, this Court lacks jurisdiction over the subject matter here because [________________________________].

[Apply specific jurisdictional limitation.] Specifically, [________________________________].

Because this Court lacks the authority to adjudicate this matter, the Complaint must be dismissed pursuant to Del. Super. Ct. Civ. R. 12(b)(1).

Note on Court of Chancery: If the Complaint asserts primarily equitable claims (specific performance, injunction, fiduciary duty, trust, etc.), jurisdiction may lie exclusively in the Delaware Court of Chancery rather than the Superior Court. Del. Const. art. IV, § 10. [See 10 Del. C. § 341.] If the claims are equitable, the proper motion is to transfer or dismiss for lack of jurisdiction.

B. [PERSONAL JURISDICTION — complete if applicable]

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

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

Delaware's long-arm statute, 10 Del. C. § 3104(c), authorizes personal jurisdiction over non-residents who, among other bases:

1. Transact any business or perform any character of work or service in Delaware;
2. Contract to supply services or things in Delaware;
3. Cause tortious injury in Delaware by an act or omission in Delaware;
4. Cause tortious injury in Delaware or outside Delaware by an act or omission outside Delaware, if the person regularly does or solicits business in Delaware or derives substantial revenue from services rendered in Delaware;
5. Have an interest in, use, or possess real property in Delaware; or
6. Act as director, officer, or otherwise participate in a corporation incorporated under the laws of Delaware.

None of these statutory bases applies here:

1. Defendant does not transact business in Delaware and has no operations, offices, employees, or presence in Delaware.

2. The alleged wrongful acts occurred in [________________________________], not in Delaware.

3. Defendant does not own property in Delaware.

4. ☐ Although [name of entity] is incorporated in Delaware (as are most U.S. corporations), mere incorporation in Delaware does not, by itself, establish personal jurisdiction over a Delaware corporation for claims unrelated to its corporate status. Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016) (holding that Delaware registration of foreign corporation's registered agent does not confer general personal jurisdiction).

Because Defendant lacks the minimum contacts necessary for this Court to exercise personal jurisdiction, the Complaint must be dismissed pursuant to Del. Super. Ct. Civ. R. 12(b)(2). International Shoe Co. v. Washington, 326 U.S. 310 (1945).

C. [IMPROPER VENUE — complete if applicable]

Venue is improper in [________________________________] County. Under 10 Del. C. § [________________________________], the proper venue for this type of action is [________________________________] County because [________________________________].

[Explain why current venue is improper.] The action should be dismissed or transferred pursuant to Del. Super. Ct. Civ. R. 12(b)(3).

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

Plaintiff failed to properly serve Defendant as required by Delaware law. The deficiencies include:

☐ The summons did not comply with Del. Super. Ct. Civ. R. 4(b) in that [________________________________].

☐ Service was not made within 120 days after filing the complaint as required by Del. Super. Ct. Civ. R. 4(j).

☐ Service was not made on a proper person or in a proper manner. Specifically, [________________________________].

☐ Service on a corporation was not made in compliance with 8 Del. C. § 321 or Del. Super. Ct. Civ. R. 4(h) because [________________________________].

☐ Service through the Delaware long-arm statute (10 Del. C. § 3104) was not properly effectuated because [________________________________].

☐ Other: [________________________________].

Because proper service is a prerequisite to personal jurisdiction over Defendant, this action must be dismissed pursuant to Del. Super. Ct. Civ. R. 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 reasonable conceivability standard of Central Mortgage, 27 A.3d at 537, and must be dismissed pursuant to Del. Super. Ct. Civ. R. 12(b)(6).

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

To state a claim for [cause of action] under Delaware law, a plaintiff must allege: (1) [element]; (2) [element]; (3) [element]; and (4) [element]. [Citation], [____] A.[____] [____] (Del. [____]).

The Complaint fails to state a reasonably conceivable claim because:

1. [Missing or deficient allegation]: The Complaint alleges only that "[quote from Complaint]." This bare conclusion does not supply the factual predicate necessary to support [element]. The Complaint offers no facts from which it is reasonably conceivable that [defendant's act/omission] occurred or constituted [element].

2. [Missing element]: The Complaint wholly fails to allege [element], which is an essential element of [cause of action]. Without any factual allegation going to this element, it is not reasonably conceivable that the cause of action can be established.

3. [Other deficiency]: [________________________________].

[Repeat for each count.]

Even under Delaware's generous reasonable conceivability standard, the Complaint falls short of pleading sufficient facts to support [these / this] claim[s]. Central Mortgage, 27 A.3d at 537. Dismissal is required.

F. [STATUTE OF LIMITATIONS — complete if applicable]

Plaintiff's claims are time-barred under 10 Del. C. § [________________________________], which provides a [____]-year limitations period for [type of claim].

The cause of action accrued on [__/__/____] when [describe accrual event]. See [Delaware accrual case]. The limitations period expired on [__/__/____]. Plaintiff did not file this action until [__/__/____], more than [____] year(s) after the limitations period expired.

No tolling doctrine applies because:

☐ The discovery rule does not apply because Plaintiff knew or reasonably should have known of the claim by [__/__/____]. Doe v. Cahill, 884 A.2d 451 (Del. 2005).

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

☐ No other applicable tolling provision saves these claims.

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. ☐ Transfer this action to the Delaware Court of Chancery, which has proper subject matter jurisdiction over Plaintiff's equitable claims;

5. Award Defendant its costs and reasonable attorney's fees pursuant to applicable Delaware law; 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.

☐ 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 an Order granting this Motion to Dismiss, dismissing Plaintiff's Complaint with prejudice, awarding Defendant its costs and attorney's fees, and for such other and further relief as this Court deems appropriate.

Respectfully submitted,

Dated: [__/__/____]

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

CERTIFICATE OF SERVICE

I, [________________________________], hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing DEFENDANT'S MOTION TO DISMISS and supporting Memorandum of Law to be served upon the following parties of record by the method indicated:

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

☐ Delaware e-Courts / eFiling System — the system will electronically serve 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 Del. Super. Ct. Civ. R. 12(b), this Motion must be filed before the answer deadline. Defendant's answer is due within 20 days after service of the Summons and Complaint (Del. Super. Ct. Civ. R. 12(a)(1)). File this Motion before the answer deadline.

Partial Motion — Tolling Effect: A partial motion to dismiss in Delaware Superior Court tolls the deadline to answer all claims — not just those challenged in the motion. See Morris James LLP blog (2025 update). This means Defendant need not file an answer to any claims until after the motion is resolved, even if only some claims are challenged.

Delaware's Reasonable Conceivability Standard: Delaware applies the "reasonable conceivability" standard on a 12(b)(6) motion — not the federal Twombly/Iqbal plausibility standard. Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, 27 A.3d 531 (Del. 2011). This is a lower threshold for plaintiffs than the federal standard. However, mere conclusory assertions are still insufficient.

Choice of Court — Critical: Delaware has multiple courts:
- Superior Court: Legal claims (tort, contract at law).
- Court of Chancery: Equitable claims, corporate governance, trusts, fiduciary duties. Most major Delaware corporate cases are filed here.
- Court of Common Pleas: Claims between $50,001 and $75,000 (as of current limits; verify).
- Justice of the Peace Court: Small claims under $25,000 (verify current limit).

Filing in the wrong court may result in dismissal for lack of subject matter jurisdiction.

E-Filing: Delaware courts use an electronic filing system. Visit https://courts.delaware.gov/ for current e-filing requirements.

Page Limits: The Delaware Superior Court Civil Rules do not set specific statewide page limits for motions; however, judges may impose limits by standing order. Check the assigned judge's standing orders.

Response Deadline: The plaintiff must respond to this motion before the scheduled hearing date. Check the court's standing orders for specific response timelines.

Waiver: Under Del. Super. Ct. Civ. R. 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 the answer. Subject matter jurisdiction cannot be waived.

Sources and References:
- Delaware Courts: https://courts.delaware.gov/
- Delaware Superior Court Rules: https://courts.delaware.gov/superior/pdf/civil_rules_2016.pdf
- Delaware Code: https://delcode.delaware.gov/
- Central Mortgage Co. v. Morgan Stanley: 27 A.3d 531 (Del. 2011)
- Genuine Parts Co. v. Cepec: 137 A.3d 123 (Del. 2016)