Motion to Dismiss

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE

[SUPERIOR / DISTRICT] COURT DIVISION

[________________________________] COUNTY

[PLAINTIFF'S FULL NAME],

Plaintiff,

v.

File No.: [____________________]

[DEFENDANT'S FULL NAME],

Judge: [________________________________]

Defendant.

DEFENDANT'S MOTION TO DISMISS

PURSUANT TO N.C. R. CIV. P. 12(b)

TIMING NOTICE

In North Carolina, a defendant has 30 days after service of the summons and complaint to serve a responsive pleading. N.C. R. Civ. P. 12(a)(1). A motion to dismiss under Rule 12(b) must be made before a responsive pleading if a further pleading is permitted. N.C. R. Civ. P. 12(b). This Motion is filed before the expiration of the answer deadline.

If this Court denies this Motion or postpones its disposition until trial on the merits, Plaintiff's counsel should note that the responsive pleading must be served within 20 days after notice of the Court's action (either ruling on the motion or postponing its disposition). N.C. R. Civ. P. 12(a)(1).

Under N.C. R. Civ. P. 12(d), if the motion to dismiss for failure to state a claim is considered together with matters outside the pleadings, it must be treated as one for summary judgment under Rule 56, and all parties shall be given a reasonable opportunity to present all pertinent material.

Hearing: This Motion should be heard before a trial on the merits per N.C. R. Civ. P. 12(d), unless the Court orders deferral until trial. This Motion is noticed for hearing on [__/__/____] at [____]:[____] ☐ a.m. / ☐ p.m. in the [________________________________] County Courthouse, [________________________________], North Carolina [________].

This Motion is filed through NC eCourts, North Carolina's electronic filing system.

GROUNDS FOR MOTION

NOW COMES Defendant, [________________________________] ("Defendant"), by and through counsel, [________________________________], and pursuant to N.C. R. Civ. P. 12(b) (N.C. Gen. Stat. § 1A-1, Rule 12(b)), moves this Court to dismiss Plaintiff's Complaint on the following grounds (check all that apply):

☐ N.C. 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.

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

☐ N.C. R. Civ. P. 12(b)(3) — Improper venue.
Venue in [________________________________] County is improper.

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

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

☐ N.C. 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 North Carolina law.

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

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

☐ Other Defense:
[________________________________]

CONSOLIDATION AND WAIVER — N.C. R. CIV. P. 12(g) AND 12(h)

PRACTITIONER'S NOTE: Under N.C. R. Civ. P. 12(g), a party that files a motion under Rule 12 must consolidate all available Rule 12 defenses in that single motion. Under N.C. 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 omitted from a motion in which any of those defenses could have been included, or from a responsive pleading or an amendment allowed as a matter of course. All available 12(h)(1) defenses MUST be raised in this Motion.

Under N.C. R. Civ. P. 12(h)(2), failure to state a claim (12(b)(6)) and failure to join an indispensable party (12(b)(7)) may be raised in any pleading, by motion for judgment on the pleadings, or at the trial on the merits. Under N.C. R. Civ. P. 12(h)(3), lack of subject matter jurisdiction (12(b)(1)) may be raised at any time.

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 [__/__/____] (30 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 — NORTH CAROLINA NOTICE PLEADING AND RULE 12(b)(6)

North Carolina follows a notice pleading standard under N.C. R. Civ. P. 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment." North Carolina's pleading standard is generally liberal and does not require detailed factual allegations.

On a motion to dismiss under N.C. R. Civ. P. 12(b)(6), the Court considers the allegations of the Complaint as true and the trial court must consider whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Dismissal is appropriate only when it appears, to a certainty, that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Harris v. NCNB Nat'l Bank of N.C., 85 N.C. App. 669, 673, 355 S.E.2d 838 (1987).

North Carolina courts have not adopted the Twombly/Iqbal federal pleading standard. North Carolina's notice pleading standard remains substantially more liberal than the federal standard. McClenney v. Digital Intelligence Sys., LLC, 245 N.C. App. 218, 782 S.E.2d 200 (2016).

However, even under notice pleading, a complaint must allege the existence of each element necessary to sustain relief, and "[t]he court need not accept as true mere legal conclusions unsupported by specific factual allegations." Stanback, 297 N.C. at 192.

Special Procedural Rule for 12(b)(6): A Rule 12(b)(6) motion must be made before filing a responsive pleading. If a party has already filed an answer, the proper motion is a motion for judgment on the pleadings under N.C. R. Civ. P. 12(c). See On the Civil Side, UNC School of Government.

II. ARGUMENT

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

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

North Carolina Superior Courts have general subject matter jurisdiction over civil cases. North Carolina District Courts have jurisdiction over small claims and certain other matters. Subject matter jurisdiction may be lacking because:

☐ This claim is within the exclusive jurisdiction of the North Carolina Industrial Commission (Workers' Compensation): N.C. Gen. Stat. § 97-13.
☐ This claim must be heard by the North Carolina Business Court: N.C. Gen. Stat. § 7A-45.4.
☐ This claim is within the exclusive jurisdiction of the North Carolina Utilities Commission.
☐ Plaintiff lacks standing to bring this claim because [________________________________].
☐ Federal law preempts this claim and grants exclusive federal court jurisdiction.
☐ The amount in controversy is below this Court's jurisdictional threshold. [Note: Small Claims: $10,000 or less; District Court: over $10,000 to $25,000; Superior Court: over $25,000.]
☐ This is a probate matter within the exclusive jurisdiction of the Clerk of Superior Court.
☐ Other: [________________________________].

[Develop argument: ________________________________]

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

[Complete this section if asserting personal jurisdiction ground.]

North Carolina's long-arm statute, N.C. Gen. Stat. § 1-75.4, provides jurisdiction over persons and entities on numerous grounds including: (1) local presence or status; (2) special jurisdictions over persons; (3) local act or omission; (4) local injury; (5) local services, goods, or contracts; (6) real property claims; and (7) deficiency judgment actions.

North Carolina's long-arm statute is construed broadly and is coextensive with the limits of due process. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). Due process requires minimum contacts such that the exercise of jurisdiction 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:

☐ Is not present in North Carolina and has no local status (not incorporated, authorized, licensed, or registered to do business in N.C.).
☐ Did not perform any act or omission in North Carolina.
☐ Did not cause any injury within North Carolina.
☐ Has not transacted any business in North Carolina.
☐ Has no contracts to be performed in North Carolina.
☐ Does not own real property in North Carolina.
☐ Has no purposeful availment of North Carolina's business opportunities.
☐ Plaintiff's claims do not arise from any North Carolina contacts.

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

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

[Complete this section if asserting improper venue.]

Venue in North Carolina is governed by N.C. Gen. Stat. §§ 1-76 through 1-84. Under N.C. Gen. Stat. § 1-82, the general venue rule for civil actions is the county where the defendant resides at the time the action is commenced. Under N.C. Gen. Stat. § 1-77, actions for injuries to real property must be tried in the county where the property is situated.

Venue in [________________________________] County is improper because:

☐ Defendant does not reside in [________________________________] County. Defendant resides in [________________________________] County, per N.C. Gen. Stat. § 1-82.
☐ The subject real property is not located in [________________________________] County per N.C. Gen. Stat. § 1-77. It is located in [________________________________] County.
☐ The corporate defendant is not incorporated in North Carolina and does not have a principal place of business in [________________________________] County.
☐ The cause of action did not arise in [________________________________] County.
☐ Other: [________________________________].

The proper venue for this action is [________________________________] County. Defendant requests dismissal or transfer under N.C. Gen. Stat. § 1-83.

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

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

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

☐ The Summons fails to comply with N.C. R. Civ. P. 4(b) requirements because [________________________________].
☐ The Summons was not signed and issued by the Clerk as required by N.C. R. Civ. P. 4(a).
☐ Other: [________________________________].

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

North Carolina service of process is governed by N.C. R. Civ. P. 4. Service on an individual may be made by: (a) delivering a copy of the summons and complaint to the party personally; (b) leaving copies at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion residing therein; (c) delivering a copy to an agent authorized by appointment or law to receive service; or (d) certified mail, return receipt requested, with delivery only to the addressee, to certain parties. N.C. R. Civ. P. 4(j)(1).

☐ Service was not made in the manner authorized by N.C. R. Civ. P. 4(j) because [________________________________].
☐ Certified mail service was improperly used for individual defendant (not authorized for individual defendants absent special circumstances).
☐ The person who accepted service was not authorized to accept service on Defendant's behalf.
☐ Service was not effected within the 60-day period required by N.C. R. Civ. P. 4(c).
☐ The complaint was filed more than 60 days before service was obtained, and the action should be dismissed for failure to timely serve per N.C. R. Civ. P. 4(e).
☐ Other: [________________________________].

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

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

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

Claim 1: [________________________________]

The essential elements of [________________________________] under North Carolina law are:

1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]

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

☐ Plaintiff pleads only legal conclusions, not factual allegations, with respect to element(s) [________________________________]: "[________________________________]."

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

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

☐ North Carolina courts have consistently held that [________________________________], which precludes Plaintiff's claim here because [________________________________].

Analysis: Plaintiff's Complaint, at paragraph(s) [____]-[____], alleges: "[________________________________]." Even taken as true, these allegations fail to establish [________________________________] because [________________________________]. See [relevant N.C. case].

Claim 2: [________________________________] [If applicable]

[Repeat element analysis.]

F. STATUTE OF LIMITATIONS

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

Plaintiff's claims are time-barred under the applicable North Carolina statute of limitations:

Applicable Limitation Period:
(Common North Carolina limitation periods: Contract — N.C. Gen. Stat. § 1-52(1): 3 years; Fraud — N.C. Gen. Stat. § 1-52(9): 3 years from discovery; Personal Injury — N.C. Gen. Stat. § 1-52(16): 3 years; Medical Malpractice — N.C. Gen. Stat. § 1-15(c): 3 years from discovery, with 4-year statute of repose; Legal Malpractice — N.C. Gen. Stat. § 1-15(c): 3 years; Property Damage — N.C. Gen. Stat. § 1-52(3): 3 years; Wrongful Death — N.C. Gen. Stat. § 1-53(4): 2 years from death; Written Contracts — N.C. Gen. Stat. § 1-47(2): 10 years on contracts under seal.)

Cause of Action: [________________________________]
Limitation Period: [____] years under N.C. Gen. Stat. § [________________________________]
Date of Accrual: [__/__/____]
(Under N.C. Gen. Stat. § 1-15, a cause of action accrues when the injury or wrong occurs, unless a discovery rule applies.)
Three-Year Period Expired: [__/__/____]
Date Complaint Filed: [__/__/____]

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

[Address any discovery rule or tolling arguments under N.C. Gen. Stat. § 1-15(b) (discovery rule for latent injuries): ________________________________]

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, together with an award of costs as permitted by law.

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

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

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

3. Award Defendant its costs and disbursements pursuant to N.C. Gen. Stat. § 6-18 and applicable court rules;

4. Award attorney fees to the extent permitted by N.C. Gen. Stat. § 6-19.1, § 6-21.5, or other applicable statute;

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

SIGNATURE BLOCK

This the [____] day of [________________________________], [________].

Respectfully submitted,

[LAW FIRM NAME]

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

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Motion to Dismiss and Memorandum of Law in Support were filed with the Clerk of Court and served upon all counsel of record via NC eCourts electronic service or as set forth below, on [__/__/____]:

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

☐ Electronic service through NC eCourts
☐ United States mail, first class postage prepaid
☐ Hand delivery
☐ Electronic mail, with consent: [________________________________]
☐ Other authorized method: [________________________________]

This the [____] day of [________________________________], [________].

___________________________________________
[Attorney Name]
North Carolina State Bar No.: [____________________]

SOURCES AND REFERENCES

• North Carolina Rules of Civil Procedure, Rule 12 (N.C. Gen. Stat. § 1A-1, Rule 12): https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_12.html
• Time Limits on Rule 12(b) Motions, NC Benchbook: https://benchbook.sog.unc.edu/civil/time-limits-rule-12b-motions
• NC Long-Arm Statute, N.C. Gen. Stat. § 1-75.4: https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1/GS_1-75.4.html
• NC Venue Statutes, N.C. Gen. Stat. §§ 1-76 — 1-84
• NC Statutes of Limitations, N.C. Gen. Stat. §§ 1-46 et seq.
• NC eCourts: https://www.nccourts.gov/
• Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)
• UNC School of Government, On the Civil Side blog: https://civil.sog.unc.edu/