IN THE [________________________________] COURT OF [________________________________] COUNTY

STATE OF MISSISSIPPI

[PLAINTIFF'S FULL NAME],

Plaintiff,

v.

Civil Action No.: [____________________]

[DEFENDANT'S FULL NAME],

Judge: [________________________________]

Defendant.

DEFENDANT'S MOTION TO DISMISS

PURSUANT TO M.R.C.P. 12(b)

TIMING NOTICE

In Mississippi, a defendant has 30 days after service of process to file a responsive pleading. M.R.C.P. 12(a). This Motion is filed in lieu of an answer prior to the deadline. If this Court denies this Motion or postpones its disposition until trial, the responsive pleading shall be served within 10 days after notice of the Court's action, unless otherwise ordered. M.R.C.P. 12(a).

Note on Outside Evidence: If matters outside the pleadings are presented in connection with a M.R.C.P. 12(b)(6) motion and not excluded by the Court, the motion shall be treated as one for summary judgment under M.R.C.P. 56, and all parties shall be given a reasonable opportunity to present all material pertinent to such a motion. M.R.C.P. 12(b).

GROUNDS FOR MOTION

NOW COMES Defendant, [________________________________] ("Defendant"), by and through counsel, [________________________________], and pursuant to M.R.C.P. 12(b), moves this Court to dismiss Plaintiff's Complaint on the following grounds (check all that apply):

☐ M.R.C.P. 12(b)(1) — Lack of jurisdiction over the subject matter.
This Court lacks subject matter jurisdiction to hear and determine the claims asserted in Plaintiff's Complaint.

☐ M.R.C.P. 12(b)(2) — Lack of jurisdiction over the person.
This Court lacks personal jurisdiction over Defendant.

☐ M.R.C.P. 12(b)(3) — Improper venue.
Venue in [________________________________] County is improper under Miss. Code Ann. § 11-11-3.

☐ M.R.C.P. 12(b)(4) — Insufficiency of process.
The process issued in this action is legally deficient.

☐ M.R.C.P. 12(b)(5) — Insufficiency of service of process.
Service of process upon Defendant was legally insufficient.

☐ M.R.C.P. 12(b)(6) — Failure to state a claim upon which relief can be granted.
Plaintiff's Complaint fails to state a claim upon which relief can be granted under Mississippi law.

☐ M.R.C.P. 12(b)(7) — Failure to join a party under M.R.C.P. 19.
Plaintiff has failed to join a party whose joinder is required under M.R.C.P. 19.

☐ Statute of Limitations:
Plaintiff's claims are time-barred under the applicable Mississippi statute of limitations.

☐ Failure to Meet Heightened Pleading Standard for Fraud — M.R.C.P. 9(b):
Plaintiff's fraud-based claims fail to plead fraud with the particularity required by M.R.C.P. 9(b).

WAIVER OF DEFENSES — M.R.C.P. 12(h)

PRACTITIONER'S NOTE: Under M.R.C.P. 12(h)(1), the defenses of (1) lack of personal jurisdiction, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process are waived if not raised either in a motion under M.R.C.P. 12 or in the first responsive pleading. These defenses must be consolidated: if a party files a Rule 12 motion, all available Rule 12(h)(1) defenses must be raised in that first motion or they are waived. M.R.C.P. 12(g).

Subject matter jurisdiction (12(b)(1)) and failure to state a claim (12(b)(6)) are not subject to waiver under 12(h)(1) and may be raised at any time.

STATEMENT OF FACTS

1. Plaintiff [________________________________] filed the Complaint in this Court on [__/__/____].

2. Defendant was served with process on [__/__/____].

3. Defendant's responsive pleading is due on [__/__/____] (30 days after service).

4. This Motion is filed before the expiration of Defendant's time to answer.

5. [________________________________]

6. [________________________________]

7. [________________________________]

8. [________________________________]

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

I. LEGAL STANDARD — MISSISSIPPI PLEADING STANDARD AND RULE 12(b)(6)

Mississippi courts apply a notice pleading standard under M.R.C.P. 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." This standard does not require a plaintiff to plead detailed facts but does require sufficient allegations to provide notice of the nature of the claim.

On a motion to dismiss under M.R.C.P. 12(b)(6), the Court takes the allegations of the Complaint as true and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim. Mississippi ex rel. Hood v. AU Optronics Corp., 2013 WL 8211774 (S.D. Miss. 2013); Luckett v. Mississippi Wood, Inc., 481 So. 2d 288, 290 (Miss. 1985). The Court examines only the complaint and any exhibits attached thereto.

However, Mississippi also recognizes that bare legal conclusions without factual support are insufficient. The complaint must allege facts that, if true, would establish all necessary elements of the claim. Shaw v. Burchfield, 481 So. 2d 247 (Miss. 1985).

Heightened Pleading for Fraud — M.R.C.P. 9(b):

Mississippi's heightened pleading standard for fraud under M.R.C.P. 9(b) requires that "the circumstances constituting fraud or mistake shall be stated with particularity." This means a plaintiff alleging fraud must plead with sufficient specificity the: (1) time; (2) place; (3) content of the alleged misrepresentation; (4) the identity of the person who made the representation; and (5) what was obtained or given in exchange. Ill. Cent. Gulf R.R. v. Hays, 346 So. 2d 1033 (Miss. 1977). Generalized or conclusory fraud allegations do not satisfy M.R.C.P. 9(b).

II. ARGUMENT

A. LACK OF SUBJECT MATTER JURISDICTION — M.R.C.P. 12(b)(1)

[Complete this section if asserting subject matter jurisdiction ground.]

Mississippi Circuit Courts and Chancery Courts have jurisdiction depending on the nature of the case. Chancery Courts have jurisdiction over equity matters, while Circuit Courts have jurisdiction over most civil law claims. Subject matter jurisdiction may be lacking in this case because:

☐ This is an equity matter that must be filed in Chancery Court, not Circuit Court.
☐ This is a legal matter that must be filed in Circuit Court, not Chancery Court.
☐ This claim falls within the exclusive original jurisdiction of an administrative agency: [________________________________], pursuant to Miss. Code Ann. § [________________________________].
☐ This is a probate/estate matter over which the Chancery Court has exclusive jurisdiction under Miss. Code Ann. § 91-1-1 et seq.
☐ Plaintiff lacks standing to bring this claim because [________________________________].
☐ This Court's jurisdictional amount is not met. [Note: Justice Court jurisdiction: under $3,500; County Court: $200-$200,000; Circuit/Chancery Court: over $200.]
☐ Other: [________________________________].

[Develop argument: ________________________________]

B. LACK OF PERSONAL JURISDICTION — M.R.C.P. 12(b)(2)

[Complete this section if asserting personal jurisdiction ground.]

Mississippi's long-arm statute, Miss. Code Ann. § 13-3-57, provides jurisdiction over any nonresident person, firm, or corporation that: (1) makes a contract to be performed in whole or in part in Mississippi; (2) commits a tort in whole or in part in Mississippi; or (3) does business or performs a character of work or service in Mississippi.

Due process requires that a defendant have "minimum contacts" with Mississippi such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).

Defendant is domiciled in [________________________________] and:

☐ Has not made any contract to be performed in Mississippi.
☐ Has not committed any tortious act in Mississippi.
☐ Does not conduct business or perform services in Mississippi.
☐ Has no systematic and continuous contacts with Mississippi sufficient for general jurisdiction.
☐ Plaintiff's claims do not arise out of or relate to any Mississippi contacts of Defendant.

[Develop argument with supporting affidavit — Exhibit [____]: ________________________________]

C. IMPROPER VENUE — M.R.C.P. 12(b)(3)

[Complete this section if asserting improper venue.]

Mississippi venue is governed by Miss. Code Ann. § 11-11-3. For civil cases involving individuals, venue lies in the county: (1) where the defendant resides; (2) where the cause of action accrued; or (3) where the subject matter of the case is situated, as appropriate.

For corporate defendants, Miss. Code Ann. § 11-11-3(1)(a)(ii) provides venue in the county: where the defendant corporation is domiciled or incorporated; where the company's principal place of business is located; where the acts or omissions complained of occurred; or where the plaintiff's injury or death occurred.

Venue in [________________________________] County is improper because:

☐ Defendant does not reside in [________________________________] County. Defendant resides in [________________________________] County.
☐ The cause of action did not accrue in [________________________________] County. It accrued in [________________________________] County.
☐ The corporate defendant's principal place of business is in [________________________________] County, not [________________________________] County.
☐ The alleged acts or omissions occurred in [________________________________] County, not [________________________________] County.
☐ Other: [________________________________].

The proper venue for this action is [________________________________] County. Defendant requests dismissal or transfer.

D. INSUFFICIENCY OF PROCESS OR SERVICE — M.R.C.P. 12(b)(4) AND (5)

[Complete this section if asserting insufficiency of process or service.]

Process Deficiency — M.R.C.P. 12(b)(4):

☐ The Summons fails to comply with M.R.C.P. 4(b) because [________________________________].
☐ The Summons does not identify the court or the parties as required.
☐ Other: [________________________________].

Service of Process Deficiency — M.R.C.P. 12(b)(5):

Mississippi service of process is governed by M.R.C.P. 4. Service on an individual requires personal delivery, leaving a copy at the defendant's usual place of abode with a person of suitable age and discretion, delivery to an agent authorized to accept service, or other methods authorized by Rule 4.

☐ Service was not made in the manner required by M.R.C.P. 4(c)(1) because [________________________________].
☐ Plaintiff used unauthorized means of service: [________________________________].
☐ The person served was not an authorized agent for service of process.
☐ Service was not completed within the time required.
☐ Other: [________________________________].

E. FAILURE TO STATE A CLAIM — M.R.C.P. 12(b)(6)

[Complete this section if asserting failure to state a claim. Analysis limited to the four corners of the Complaint.]

Even accepting all well-pleaded allegations as true, Plaintiff's Complaint fails to state a claim upon which relief can be granted because:

Claim 1: [________________________________]

The elements of a claim for [________________________________] under Mississippi law are:
1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]

Plaintiff's Complaint fails to state a claim because:

☐ Plaintiff has not alleged sufficient facts to establish element(s) [________________________________].

☐ The cause of action is not recognized under Mississippi law: [________________________________].

☐ Plaintiff's claim is barred as a matter of law by [________________________________].

☐ Plaintiff's allegations are conclusory and lack the factual content needed to provide notice of a cognizable claim.

[Specific analysis: Plaintiff's Complaint, at paragraph(s) [____], alleges: "[________________________________]." This allegation is insufficient because ________________________________.]

Claim 2: [________________________________] [If applicable]

[Repeat element analysis.]

F. FAILURE TO PLEAD FRAUD WITH PARTICULARITY — M.R.C.P. 9(b)

[Complete this section if Plaintiff asserts fraud, misrepresentation, or similar claims.]

Plaintiff asserts a claim for [fraud / fraudulent misrepresentation / fraudulent inducement / negligent misrepresentation] at Complaint paragraph(s) [____]-[____]. M.R.C.P. 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."

Under Mississippi law, fraud has the following elements: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) reliance; (8) right to rely; and (9) consequent and proximate injury. Levens v. Campbell, 733 So. 2d 753, 761-762 (Miss. 1999).

Plaintiff's fraud allegations fail M.R.C.P. 9(b)'s particularity standard because Plaintiff has not specifically alleged:

☐ The time of the alleged misrepresentation(s): [________________________________]
☐ The place/location of the alleged misrepresentation(s): [________________________________]
☐ The specific content of the alleged misrepresentation(s): [________________________________]
☐ The identity of the person who made the alleged misrepresentation(s): [________________________________]
☐ What was obtained or given as a result of the misrepresentation(s): [________________________________]

Plaintiff's fraud claim contains only conclusory allegations that Defendant "fraudulently" [________________________________], without the specific factual details required by Rule 9(b). See FDIC v. Skow, 955 F. Supp. 2d 1357 (N.D. Ga. 2013) (applying analogous Rule 9(b) standard).

G. STATUTE OF LIMITATIONS

[Complete this section if raising statute of limitations defense. The bar must be apparent on the face of the Complaint.]

Plaintiff's claims are time-barred under Mississippi's applicable statute of limitations:

Applicable Limitation Period:
(Common Mississippi limitation periods: Contract — Miss. Code Ann. § 15-1-49 (3 years for oral; Miss. Code Ann. § 15-1-23: 6 years for written contract on an instrument signed by the defendant); Tort/Negligence — Miss. Code Ann. § 15-1-49 (3 years); Fraud — Miss. Code Ann. § 15-1-49 (3 years from discovery); Medical Malpractice — Miss. Code Ann. § 15-1-36 (2 years, with some tolling provisions); Legal Malpractice — Miss. Code Ann. § 15-1-36 (2 years); Wrongful Death — Miss. Code Ann. § 11-7-13 (3 years from death).)

Cause of Action: [________________________________]
Limitation Period: [____] years under Miss. Code Ann. § [________________________________]
Date of Accrual: [__/__/____]
(Under Mississippi law, most claims accrue when the cause of action can be discovered with reasonable diligence.)
Limitations Period Expired: [__/__/____]
Date Complaint Filed: [__/__/____]

The Complaint was filed [____] days/months/years after the limitations period expired. Plaintiff's claims are therefore time-barred.

[Address any discovery rule or tolling arguments: ________________________________]

III. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court grant this Motion to Dismiss and dismiss Plaintiff's Complaint in its entirety, with prejudice.

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Grant Defendant's Motion to Dismiss pursuant to M.R.C.P. 12(b);

2. Dismiss Plaintiff's Complaint in its entirety, with prejudice;

3. Award Defendant its costs and expenses of this litigation;

4. Award attorney fees where authorized by applicable statute or contract;

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

SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

By: ___________________________________________
[Attorney Name]
Mississippi Bar No.: [____________________]
[Law Firm Name]
[Street Address]
[City, Mississippi ZIP]
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]
Attorney for Defendant [________________________________]

Dated: [__/__/____]

CERTIFICATE OF SERVICE

I, [________________________________], hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing Motion to Dismiss and Memorandum in Support to be served upon:

[Name of Plaintiff's Counsel / Plaintiff Pro Se]
[Firm Name]
[Street Address]
[City, State ZIP]

by the following method(s):

☐ Electronic service through MEC (Mississippi Electronic Courts)
☐ United States mail, first class postage prepaid
☐ Hand delivery
☐ Electronic mail with consent: [________________________________]
☐ Other: [________________________________]

___________________________________________
[Attorney Name]
Mississippi Bar No.: [____________________]
Dated: [__/__/____]

SOURCES AND REFERENCES

• Mississippi Rules of Civil Procedure: https://courts.ms.gov/research/rules/msrulesofcourt/rules_of_civil_procedure.pdf
• Mississippi Long-Arm Statute, Miss. Code Ann. § 13-3-57: https://law.justia.com/codes/mississippi/section-13-3-57/
• Mississippi Venue Statute, Miss. Code Ann. § 11-11-3
• Mississippi Limitations Statutes, Miss. Code Ann. §§ 15-1-1 et seq.
• MEC Electronic Filing: https://courts.ms.gov
• Levens v. Campbell, 733 So. 2d 753 (Miss. 1999)
• Luckett v. Mississippi Wood, Inc., 481 So. 2d 288 (Miss. 1985)
• Uniform Civil Rules of Circuit and County Court Practice: https://courts.ms.gov/research/rules/msrulesofcourt/UCRCCC%20Post-070117.pdf