IN THE DISTRICT COURT OF THE [____________________] JUDICIAL DISTRICT

OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF [________________________________]

[PLAINTIFF'S FULL NAME],

Plaintiff,

vs.

Cause No.: [____________________]

[DEFENDANT'S FULL NAME],

Department: [____]

Defendant.

DEFENDANT'S MOTION TO DISMISS

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

TIMING NOTICE

In Montana, a defendant has 21 days after service of the summons and complaint to serve an answer. M. R. Civ. P. 12(a)(1)(A). A motion under M. R. Civ. P. 12(b) must be made before pleading if a responsive pleading is allowed. M. R. Civ. P. 12(b).

If this Court denies this Motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the Court's action. M. R. Civ. P. 12(a)(4).

This Motion is filed through Montana's Odyssey electronic filing system. [If applicable, note: this district/court has mandatory e-filing.]

Hearing Request: ☐ Defendant requests oral argument on this Motion.
Proposed Hearing Date: [__/__/____] Time: [____]:[____] ☐ a.m. / ☐ p.m.
Location: [________________________________] County Courthouse, [________________________________], Montana [________]

GROUNDS FOR MOTION

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

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

☐ M. R. Civ. P. 12(b)(3) — Improper venue.
Venue in [________________________________] County is improper under Mont. Code Ann. § 25-2-118 et seq.

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

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

☐ M. R. Civ. 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 Montana law.

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

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

☐ Absolute Immunity / Qualified Immunity:
Defendant is entitled to immunity from this action.

CONSOLIDATION REQUIREMENT — M. R. CIV. P. 12(g) AND 12(h)

PRACTITIONER'S NOTE: Under M. R. Civ. P. 12(g)(2), a party that makes a motion under Rule 12 must not make another Rule 12 motion raising a defense that was available but omitted from the earlier motion. Under M. R. Civ. 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 in the first Rule 12 motion or in the first responsive pleading. All available 12(h)(1) defenses must be raised in this Motion.

Subject matter jurisdiction (Rule 12(b)(1)) and failure to state a claim (Rule 12(b)(6)) are not subject to 12(h)(1) waiver and may be raised at any time before or at trial. M. R. Civ. P. 12(h)(2)-(3).

STATEMENT OF FACTS

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

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

3. Defendant's responsive pleading would be due on [__/__/____] (21 days after service), subject to the tolling effect of this Motion.

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 — MONTANA NOTICE PLEADING AND RULE 12(b)(6)

Montana courts apply a notice pleading standard under M. R. Civ. P. 8(a), which requires only a short and plain statement of the claim showing the pleader is entitled to relief. Montana has not adopted the heightened federal pleading standards from Twombly or Iqbal; Montana courts apply a more liberal pleading standard. Plouffe v. State, 2003 MT 62, ¶ 9, 314 Mont. 413, 66 P.3d 316.

On a motion to dismiss under M. R. Civ. P. 12(b)(6), the Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the plaintiff. Bacher v. State ex rel. Univ. of Montana, 2006 MT 259, ¶ 9, 334 Mont. 137, 144 P.3d 948. The motion should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Seltzer v. Morton, 2007 MT 62, ¶ 11, 336 Mont. 225, 154 P.3d 561.

While Montana's standard is liberal, legal conclusions and unsupported conclusions of law are not accepted as true. The complaint must contain "some direct or inferential allegation respecting every material element necessary to sustain a recovery." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) [Note: This federal standard has not been formally adopted in Montana, but courts occasionally look to it for guidance.].

If matters outside the pleadings are presented and not excluded: The motion must be treated as one for summary judgment under M. R. Civ. P. 56, and all parties shall be given a reasonable opportunity to present all pertinent material. M. R. Civ. P. 12(d).

II. ARGUMENT

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

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

Montana District Courts are courts of general jurisdiction under Mont. Const. art. VII, § 4. However, subject matter jurisdiction may be lacking in this case because:

☐ This claim falls within the exclusive original jurisdiction of an administrative body or agency: [________________________________], pursuant to Mont. Code Ann. § [________________________________].
☐ Plaintiff lacks standing to bring this claim because Plaintiff has not suffered a justiciable injury.
☐ This claim involves a political question that is nonjusticiable.
☐ This claim is moot because [________________________________].
☐ Federal law preempts this state-law claim and grants exclusive federal court jurisdiction.
☐ The amount in controversy does not meet this Court's jurisdictional threshold. [Note: Justice Court jurisdiction: up to $12,000; District Court: unlimited.]
☐ Other: [________________________________].

Subject matter jurisdiction may be raised at any time under M. R. Civ. P. 12(h)(3) and is never waived.

[Develop argument: ________________________________]

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

[Complete this section if asserting personal jurisdiction ground.]

Montana's long-arm statute, Mont. Code Ann. § 25-2-202, authorizes personal jurisdiction over any person who: (1) is found within the state; (2) has its principal place of business in the state; (3) is incorporated or organized in the state; or (4) commits an act or omission that causes injury in Montana. Montana's long-arm statute has been interpreted to extend jurisdiction to the fullest extent permitted by the due process clause of the U.S. Constitution. Milky Whey, Inc. v. Dairy Partners, LLC, 2015 MT 18, 378 Mont. 75, 342 P.3d 13.

Due process requires that a defendant have "minimum contacts" with Montana 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).

General Jurisdiction: General jurisdiction requires that a defendant's contacts with Montana be so "continuous and systematic" as to render it essentially "at home" in Montana. Daimler AG v. Bauman, 571 U.S. 117 (2014). For an individual, this typically means domicile in Montana.

Specific Jurisdiction: Specific jurisdiction requires that: (1) the defendant purposefully directed activities toward Montana; (2) the plaintiff's claim arises from or relates to those Montana contacts; and (3) the exercise of jurisdiction is reasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).

Defendant is domiciled in [________________________________] and:

☐ Is not domiciled in Montana and has no continuous and systematic contacts with Montana sufficient for general jurisdiction.
☐ Did not purposefully direct activities toward Montana.
☐ Plaintiff's claims do not arise from any Montana contacts.
☐ Exercise of jurisdiction over Defendant would be unreasonable because [________________________________].

[Specific facts: ________________________________] [Cite supporting affidavit: Exhibit [____]]

C. IMPROPER VENUE — M. R. Civ. P. 12(b)(3)

[Complete this section if asserting improper venue.]

Montana venue is governed by Mont. Code Ann. §§ 25-2-118 through 25-2-126. Under Mont. Code Ann. § 25-2-118, actions must be tried in the county in which the defendants or any of them reside at the time of commencement of the action. Under Mont. Code Ann. § 25-2-122, actions for injury to person or property may be tried in the county where the injury occurred.

Venue in [________________________________] County is improper because:

☐ Defendant does not reside in [________________________________] County. Defendant resides in [________________________________] County per Mont. Code Ann. § 25-2-118.
☐ The alleged injury did not occur in [________________________________] County. It occurred in [________________________________] County.
☐ The subject property is not located in [________________________________] County. It is located in [________________________________] County.
☐ The corporate defendant's principal place of business is not in [________________________________] County.
☐ Other: [________________________________].

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

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

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

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

☐ The Summons fails to comply with the requirements of M. R. Civ. P. 4C because [________________________________].
☐ The Summons was not properly issued by the Clerk.
☐ Other: [________________________________].

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

Montana service of process is governed by M. R. Civ. P. 4. Personal service on an individual requires delivery to the person personally, or leaving a copy at the person's dwelling or usual place of abode with someone of suitable age and discretion who also resides there. M. R. Civ. P. 4D.

☐ Plaintiff did not serve Defendant personally or at Defendant's usual place of abode.
☐ The substitute service was left with a person who does not reside at Defendant's dwelling.
☐ Plaintiff failed to obtain personal jurisdiction through the service method used: [________________________________].
☐ Service was attempted by [________________________________], which is not an authorized method under M. R. Civ. P. 4.
☐ The process server was not authorized under M. R. Civ. P. 4B to serve process.
☐ Service was not made within the time required.
☐ Other: [________________________________].

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

[Complete this section if asserting failure to state a claim.]

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

Claim 1: [________________________________]

The essential elements of [________________________________] under Montana law are:
1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]

☐ Plaintiff's Complaint fails to allege sufficient facts to establish element(s) [________________________________].

☐ Plaintiff's Complaint contains only legal conclusions without the necessary factual support.

☐ The cause of action is not cognizable under Montana law: [________________________________].

☐ The claim is barred as a matter of law by: [________________________________].

Specifically, at Complaint paragraph(s) [____]-[____], Plaintiff alleges: "[________________________________]." These allegations do not state a plausible claim for [________________________________] because [________________________________].

Claim 2: [________________________________] [If applicable]

[Repeat element analysis.]

F. STATUTE OF LIMITATIONS

[Complete this section if raising statute of limitations defense.]

Plaintiff's claim is time-barred under Montana's applicable statute of limitations:

Applicable Limitation Period:
(Common Montana limitation periods: Contract — Mont. Code Ann. § 27-2-202 (5 years for written contracts; 3 years for oral contracts); Tort/Personal Injury — Mont. Code Ann. § 27-2-204 (3 years); Fraud — Mont. Code Ann. § 27-2-203 (2 years from discovery); Medical Malpractice — Mont. Code Ann. § 27-2-205 (3 years from injury or 2 years from discovery, whichever comes last, but no more than 5 years); Legal Malpractice — Mont. Code Ann. § 27-2-206 (3 years); Property Damage — Mont. Code Ann. § 27-2-207 (5 years); Wrongful Death — Mont. Code Ann. § 27-2-204(1) (3 years from death).)

Cause of Action: [________________________________]
Limitation Period: [____] years under Mont. Code Ann. § [________________________________]
Date of Accrual: [__/__/____]
(Under Montana law, a claim generally accrues when all elements of the claim exist or have occurred. Mont. Code Ann. § 27-2-102(1). The discovery rule may apply for certain claims.)
Limitations Period Expired: [__/__/____]
Date Complaint Filed: [__/__/____]

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

[Address any 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. Civ. P. 12(b);

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

3. Award Defendant its costs and expenses pursuant to Mont. Code Ann. § 25-10-101 et seq.;

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

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

SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

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

Dated: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Motion to Dismiss and Brief in Support was 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 Montana Odyssey electronic filing and service system
☐ United States mail, first class, postage prepaid
☐ Hand delivery to the above address
☐ Electronic mail, with consent: [________________________________]
☐ Other: [________________________________]

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

SOURCES AND REFERENCES

• Montana Rules of Civil Procedure, Rule 12: https://archive.legmt.gov/bills/mca/title_0250/chapter_0200/part_0030/section_0120/0250-0200-0030-0120.html
• Montana Long-Arm Statute, Mont. Code Ann. § 25-2-202: https://leg.mt.gov/bills/mca/title_0250/chapter_0020/part_0020/section_0020/0250-0020-0020-0020.html
• Montana Venue Statutes, Mont. Code Ann. §§ 25-2-118 et seq.
• Montana Statutes of Limitations, Mont. Code Ann. §§ 27-2-101 et seq.
• Montana Odyssey e-filing: https://courts.mt.gov/
• Montana Judicial Branch: https://courts.mt.gov/
• Plouffe v. State, 2003 MT 62, 314 Mont. 413
• Milky Whey, Inc. v. Dairy Partners, LLC, 2015 MT 18, 378 Mont. 75