Motion to Dismiss - North Dakota

IN DISTRICT COURT

[____________________] JUDICIAL DISTRICT

[________________________________] COUNTY, NORTH DAKOTA

Case No.: [____________________]
Judge: [________________________________]

DEFENDANT'S MOTION TO DISMISS

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

TIMING NOTICE

In North Dakota, a defendant has 21 days after service of the summons and complaint to serve an answer. N.D.R.Civ.P. 12(a)(1)(A). A motion under N.D.R.Civ.P. 12(b) must be made before pleading if a responsive pleading is allowed. N.D.R.Civ.P. 12(b). This Motion is filed before the answer deadline.

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

Motion Practice — N.D.R.Ct. 3.2: Under North Dakota's motion practice rules, the moving party must serve and file a brief and other supporting papers with the motion. The opposing party has 14 days after service of the moving party's brief to serve and file an answer brief and other supporting papers, and the moving party may serve and file a reply brief within 7 days after service of the answer brief. N.D.R.Ct. 3.2(a)(2). Upon the filing of briefs, or expiration of the time for filing, the motion is submitted to the court on the briefs unless a party timely requests a hearing. A request for a hearing (oral argument, an evidentiary hearing, or both) must be made no later than 7 days after expiration of the time for filing the answer brief, and the requesting party must secure a hearing time within 14 days of the request or the request is waived. N.D.R.Ct. 3.2(a)(3). [Consult the applicable local judicial district rules for any additional page limits or timeframes.]

This Motion is filed through North Dakota's Odyssey File & Serve electronic filing system.

Hearing Request: ☐ Defendant requests a hearing on this Motion pursuant to N.D.R.Ct. 3.2(a)(3).

GROUNDS FOR MOTION

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

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

☐ N.D.R.Civ.P. 12(b)(3) — Improper venue.
Venue in [________________________________] County is improper under N.D.C.C. §§ 28-04-01 et seq.

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

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

☐ N.D.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 Dakota law.

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

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

☐ Other:
[________________________________]

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

PRACTITIONER'S NOTE: Under N.D.R.Civ.P. 12(g)(2) and 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 consolidated in this Motion. A party may not file a second Rule 12 motion asserting a defense omitted from the first.

Subject matter jurisdiction (12(b)(1)) may be raised at any time and is never waived. N.D.R.Civ.P. 12(h)(3). Failure to state a claim (12(b)(6)) and failure to join an indispensable party (12(b)(7)) may be raised through trial. N.D.R.Civ.P. 12(h)(2).

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 ordinarily 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. [________________________________]

BRIEF IN SUPPORT OF MOTION TO DISMISS

I. LEGAL STANDARD — NORTH DAKOTA NOTICE PLEADING AND N.D.R.CIV.P. 12(b)(6)

North Dakota follows a notice pleading standard under N.D.R.Civ.P. 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." North Dakota's notice pleading standard is liberal and tracks the pre-Twombly federal standard. North Dakota has not adopted the heightened federal pleading requirements established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

On a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the Court accepts all well-pleaded factual allegations as true and construes the complaint in the light most favorable to the plaintiff. Riemers v. City of Grand Forks, 2006 ND 224, ¶ 4, 723 N.W.2d 518. 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 which would entitle the plaintiff to relief. Id. The complaint is to be liberally construed in favor of the plaintiff. Langer v. Bartholomay, 2008 ND 40, ¶ 12, 745 N.W.2d 649.

While the standard is liberal, conclusory allegations, unwarranted factual inferences, or legal conclusions are not accepted as true. Larson v. Baer, 418 N.W.2d 282, 288 (N.D. 1988). The complaint must allege facts that, if taken as true, would constitute elements of a valid claim under North Dakota law.

Outside Evidence: If matters outside the pleadings are presented on a 12(b)(6) motion and not excluded by the Court, the motion must be treated as a motion for summary judgment under N.D.R.Civ.P. 56, and all parties must be given a reasonable opportunity to present all pertinent material. N.D.R.Civ.P. 12(d).

II. ARGUMENT

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

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

North Dakota District Courts have general civil jurisdiction under N.D. Const. art. VI, § 8. However, subject matter jurisdiction may be lacking because:

☐ This claim falls within the exclusive original jurisdiction of the North Dakota Workers' Compensation Bureau/Workforce Safety & Insurance: N.D.C.C. § 65-01-01 et seq.
☐ This claim must be brought before an administrative agency: [________________________________], pursuant to N.D.C.C. § [________________________________].
☐ Federal law preempts this claim and grants exclusive federal court jurisdiction over [________________________________].
☐ Plaintiff lacks standing because Plaintiff has suffered no cognizable legal injury.
☐ This claim is moot because [________________________________].
☐ The amount in controversy does not meet this Court's jurisdictional requirements. [Note: Small Claims Court: $15,000 or less; District Court: unlimited civil jurisdiction.]
☐ Other: [________________________________].

Subject matter jurisdiction may be raised at any time and cannot be waived. N.D.R.Civ.P. 12(h)(3).

[Develop argument: ________________________________]

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

[Complete this section if asserting personal jurisdiction ground.]

North Dakota has no separate long-arm statute; the former statutory chapter on nonresident jurisdiction (N.D.C.C. ch. 28-06.1) was superseded by the North Dakota Rules of Civil Procedure effective 1971. Personal jurisdiction is now governed directly by N.D.R.Civ.P. 4(b), which authorizes a court to exercise jurisdiction over a person who, directly or through an agent, has such contact with North Dakota that the exercise of jurisdiction does not offend traditional notions of justice, fair play, or due process, including: transacting any business in North Dakota; contracting to supply or supplying services, goods, or other things in North Dakota; committing a tort within or outside North Dakota causing injury in North Dakota, or committing a tort within North Dakota causing injury within or outside North Dakota; having an interest in, using, or possessing property in North Dakota; contracting to insure a person, property, or risk in North Dakota; acting as a director, manager, trustee, or officer of a North Dakota corporation; or engaging in any other legal status, capacity, or activity in North Dakota. N.D.R.Civ.P. 4(b)(2). Rule 4(b) is construed to the fullest extent permitted by due process.

Due process requires minimum contacts with North Dakota 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); Hansen v. Scott, 2002 ND 101, 645 N.W.2d 223.

General Jurisdiction: Requires that Defendant's contacts with North Dakota be so continuous and systematic as to render it essentially "at home" in North Dakota. Daimler AG v. Bauman, 571 U.S. 117 (2014). For individuals, this means domicile in North Dakota.

Specific Jurisdiction: Requires (1) purposeful direction of activities toward North Dakota; (2) the claim arises from or relates to those North Dakota contacts; and (3) the exercise of jurisdiction is reasonable.

Defendant is domiciled in [________________________________] and:

☐ Has not transacted any business in North Dakota.
☐ Has not committed any tortious act causing injury in or connected to North Dakota.
☐ Does not have an interest in, use, or possess real property in North Dakota.
☐ Has not contracted to supply or supplied services, goods, or other things in North Dakota.
☐ Has no purposeful contacts with North Dakota under N.D.R.Civ.P. 4(b)(2).
☐ Plaintiff's claims do not arise from any North Dakota contacts (N.D.R.Civ.P. 4(b)(3) limits jurisdiction based solely on contacts to claims arising from those contacts).

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

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

[Complete this section if asserting improper venue.]

North Dakota venue is governed by N.D.C.C. ch. 28-04. Under N.D.C.C. § 28-04-01, an action for recovery of real property, or an estate or interest therein, or for injuries to real property, must be tried in the county in which the property is situated. Under N.D.C.C. § 28-04-04, an action against a domestic corporation or limited liability company must be brought in the county designated in the complaint if the corporation or LLC transacts business in that county. Under N.D.C.C. § 28-04-05, all other civil actions must be brought in the county where the defendant, or one of the defendants, resides at the time the action is commenced; if no defendant resides in North Dakota, venue lies in the county where the plaintiff resides or where the cause of action arose.

Venue in [________________________________] County is improper because:

☐ Defendant does not reside in [________________________________] County. Defendant resides in [________________________________] County. N.D.C.C. § 28-04-05.
☐ No defendant resides in North Dakota, and neither the plaintiff's residence nor the county where the cause of action arose is [________________________________] County. N.D.C.C. § 28-04-05.
☐ The subject real property is not located in [________________________________] County. It is located in [________________________________] County. N.D.C.C. § 28-04-01.
☐ The defendant corporation or LLC does not transact business in [________________________________] County. N.D.C.C. § 28-04-04.
☐ Other: [________________________________].

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

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

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

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

☐ The Summons fails to comply with N.D.R.Civ.P. 4 requirements because [________________________________].
☐ The Summons was not properly signed or issued.
☐ Other: [________________________________].

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

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

☐ Service was not made by an authorized method under N.D.R.Civ.P. 4(d).
☐ Mail or third-party commercial delivery service was defective because it was not addressed to the person to be served and did not require a signed receipt, as required by N.D.R.Civ.P. 4(d)(2)(A)(v).
☐ The person served was not authorized to accept service on Defendant's behalf under N.D.R.Civ.P. 4(d).
☐ Other: [________________________________].

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

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

Even accepting all well-pleaded factual allegations as true and construing the Complaint 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 Dakota law are:

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

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

☐ Plaintiff's allegations as to element(s) [________________________________] are conclusory and unsupported by specific factual allegations.

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

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

Analysis: Plaintiff's Complaint, at paragraph(s) [____]-[____], alleges: "[________________________________]." Even accepted as true, these allegations do not establish [________________________________] because [________________________________]. Under North Dakota law, [________________________________].

Claim 2: [________________________________] [If applicable]

[Repeat element analysis.]

F. STATUTE OF LIMITATIONS

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

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

Applicable Limitation Period:
(Common North Dakota limitation periods: Written or Oral Contract — N.D.C.C. § 28-01-16(1): 6 years; General Tort/Personal Injury (negligence, not otherwise specified) — N.D.C.C. § 28-01-16(5): 6 years; Intentional Torts (libel, slander, assault, battery, false imprisonment) — N.D.C.C. § 28-01-18(1): 2 years; Medical/Legal Malpractice — N.D.C.C. § 28-01-18(3): 2 years from discovery, not to exceed 6 years from the act or omission (physician/licensed hospital); Fraud — N.D.C.C. § 28-01-16(6): 6 years from discovery; Trespass to/Injury of Real Property — N.D.C.C. § 28-01-16(3): 6 years; Injury to or Detention of Personal Property (goods/chattels) — N.D.C.C. § 28-01-16(4): 6 years; Wrongful Death — N.D.C.C. § 28-01-18(4): 2 years from death, or from discovery of malpractice if death results from malpractice.)

Cause of Action: [________________________________]
Limitation Period: [____] years under N.D.C.C. § [________________________________]
Date of Accrual: [__/__/____]
(As a general common-law rule, a cause of action accrues when all elements of the claim are present and the injury is complete. North Dakota has codified a discovery-based accrual rule for specific claims — e.g., fraud (N.D.C.C. § 28-01-16(6)) and malpractice/wrongful death (N.D.C.C. § 28-01-18(3)-(4)) — under which the claim accrues upon the aggrieved party's discovery, or reasonably diligent discovery, of the relevant facts. Confirm the accrual rule applicable to the specific cause of action asserted; do not assume a uniform discovery rule applies to all claims.)
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 N.D.R.Civ.P. 12(b);

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

3. Award Defendant its costs and disbursements as permitted by N.D.C.C. § 28-26-06 and applicable court rules;

4. Award attorney fees to the extent permitted by N.D.C.C. § 28-26-01 (frivolous claims) or other applicable statute or contract;

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

CERTIFICATION UNDER N.D.R.CIV.P. 11

The undersigned attorney certifies that to the best of his or her knowledge, information, and belief, formed after reasonable inquiry under the circumstances: (1) this Motion is not presented for any improper purpose; (2) the legal contentions herein are warranted by existing law or a nonfrivolous argument for modification of existing law; and (3) the factual contentions have evidentiary support.

SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

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

Dated: [__/__/____]

CERTIFICATE OF SERVICE

The undersigned hereby certifies 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 North Dakota Odyssey electronic filing and service system
☐ United States mail, first class, postage prepaid
☐ Hand delivery to counsel's office
☐ Electronic mail, with consent: [________________________________]
☐ Other: [________________________________]

___________________________________________
[Attorney Name]
North Dakota State Bar ID No.: [____________________]
Dated: [__/__/____]

SOURCES AND REFERENCES

• North Dakota Rules of Civil Procedure, Rule 12: https://www.ndcourts.gov/legal-resources/rules/ndrcivp/12
• North Dakota Rules of Civil Procedure, Rule 4 (Persons Subject to Jurisdiction; Process; Service): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/4
• North Dakota Rules of Court, Rule 3.2 (Motions): https://www.ndcourts.gov/legal-resources/rules/ndrct/3-2
• North Dakota Venue Statutes, N.D.C.C. §§ 28-04-01, 28-04-04, 28-04-05
• North Dakota Statutes of Limitations, N.D.C.C. §§ 28-01-16, 28-01-18
• North Dakota Costs and Attorney's Fees, N.D.C.C. §§ 28-26-01, 28-26-06
• North Dakota Odyssey File & Serve e-filing: https://www.ndcourts.gov/district-courts/e-filing-portal
• Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518
• Hansen v. Scott, 2002 ND 101, 645 N.W.2d 223
• Langer v. Bartholomay, 2008 ND 40, 745 N.W.2d 649
• Larson v. Baer, 418 N.W.2d 282 (N.D. 1988)