Motion to Dismiss

IN THE COURT OF COMMON PLEAS

[____________________] COUNTY, OHIO

[PLAINTIFF'S FULL NAME],

    Plaintiff,

v.                                            Case No. [____________________]

[DEFENDANT'S FULL NAME],

    Defendant.

DEFENDANT'S MOTION TO DISMISS

PURSUANT TO OHIO CIV.R. 12(B)

[DEFENDANT'S FULL NAME] ("Defendant"), by and through undersigned counsel, moves this Court pursuant to Ohio Civ.R. 12(B) to dismiss the Complaint filed by [PLAINTIFF'S FULL NAME] ("Plaintiff"), with prejudice, on the grounds set forth below.

I. INTRODUCTION

This action was filed on [__/__/____] by Plaintiff, asserting claims for [________________________________]. The Complaint must be dismissed because [briefly state primary grounds, e.g., "it fails to state a claim upon which relief can be granted," "this Court lacks personal jurisdiction over Defendant," and/or "the claims are time-barred under the applicable statute of limitations"].

II. PROCEDURAL HISTORY

1. Plaintiff filed the Complaint on [__/__/____] in the [____________________] County Court of Common Pleas.

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

3. This Motion is timely. Under Ohio Civ.R. 12(A)(1), a defendant must serve a responsive pleading within 28 days after service of the summons and complaint. Filing this pre-answer motion extends the answer deadline pursuant to Ohio Civ.R. 12(A)(2).

4. Pursuant to Ohio Civ.R. 12(G), a party making a pre-answer motion must include all available Rule 12 defenses in that motion. Defendant raises all applicable defenses herein.

III. GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint on the following grounds under Ohio Civ.R. 12(B) (check all that apply):

☐ Civ.R. 12(B)(1) — Lack of Jurisdiction Over the Subject Matter
This Court lacks subject matter jurisdiction over the claims asserted in the Complaint because [________________________________].

☐ Civ.R. 12(B)(2) — Lack of Jurisdiction Over the Person
This Court lacks personal jurisdiction over Defendant because Defendant lacks sufficient minimum contacts with Ohio to satisfy the Due Process Clause. See R.C. 2307.382 (Ohio Long-Arm Statute).

☐ Civ.R. 12(B)(3) — Improper Venue
Venue is improper in [____________________] County because [________________________________]. The proper venue is [____________________] County pursuant to Ohio Civ.R. 3(B).

☐ Civ.R. 12(B)(4) — Insufficiency of Process
The process served upon Defendant was insufficient because [________________________________], in violation of Ohio Civ.R. 4 et seq.

☐ Civ.R. 12(B)(5) — Insufficiency of Service of Process
Service of process was insufficient because [________________________________].

☐ Civ.R. 12(B)(6) — Failure to State a Claim Upon Which Relief Can Be Granted
The Complaint fails to state a claim upon which relief can be granted. Even accepting all factual allegations as true and drawing all inferences in Plaintiff's favor, the Complaint does not state a legally cognizable claim for [________________________________].

☐ Civ.R. 12(B)(7) — Failure to Join a Party Under Civ.R. 19 or 19.1
The Complaint fails to join a party required under Ohio Civ.R. 19 or 19.1, specifically [________________________________], without whom complete relief cannot be granted.

IV. STATEMENT OF FACTS

5. Plaintiff is [________________________________], a [resident/entity] of [____________________].

6. Defendant is [________________________________], a [resident/entity] of [____________________].

7. The dispute at issue concerns [________________________________].

8. The Complaint alleges [________________________________] (Complaint ¶ [____]).

9. The Complaint further alleges [________________________________] (Complaint ¶ [____]).

10. [Continue with additional factual paragraphs as needed.]

11. Despite these allegations, Plaintiff has failed to state a legally cognizable claim, as set forth in the argument section below.

V. MEMORANDUM OF LAW

A. Ohio's Notice Pleading Standard

Ohio is a notice pleading state. Under Ohio Civ.R. 8(A), a complaint "shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader claims to be entitled." The purpose of notice pleading is to give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.

On a motion to dismiss under Ohio Civ.R. 12(B)(6), the Court must:

1. Accept all factual allegations in the Complaint as true;
2. Draw all reasonable inferences in favor of the plaintiff; and
3. Determine whether the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992); O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975).

Ohio Standard vs. Twombly/Iqbal: Ohio has not adopted the federal Twombly/Iqbal plausibility standard. Ohio courts apply the traditional notice pleading standard, asking whether the plaintiff can prove any set of facts consistent with the allegations that would entitle the plaintiff to relief. This is a more plaintiff-friendly standard than the federal plausibility test. Ohio courts will not dismiss a complaint under Civ.R. 12(B)(6) merely because the plaintiff seems unlikely to prevail on the merits.

However, Ohio courts will dismiss under Civ.R. 12(B)(6) where:

• The Complaint alleges bare legal conclusions without supporting facts;
• The Complaint's allegations, even if true, fail to establish a legally recognized claim; or
• The Complaint is clearly barred by affirmative defenses apparent on the face of the pleading (e.g., statute of limitations).

B. Failure to State a Claim — Civ.R. 12(B)(6)

(Include if Civ.R. 12(B)(6) is checked)

1. General Standard

The test under Ohio Civ.R. 12(B)(6) is whether 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. O'Brien, 42 Ohio St.2d at 245. The Court must accept all material factual allegations as true and draw all reasonable inferences in plaintiff's favor.

Nonetheless, bare legal conclusions without any supporting factual allegations are insufficient. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988). Where the complaint on its face shows that plaintiff's claims are legally deficient, dismissal is appropriate.

2. Count [____] — [Name of Claim]

To state a claim for [________________________________] under Ohio law, a plaintiff must allege:
(1) [________________________________];
(2) [________________________________];
(3) [________________________________]; and
(4) [________________________________].

See [Ohio case citation / Ohio Revised Code provision].

The Complaint fails to state this claim because:

a. The Complaint alleges (¶ [____]): "[________________________________]." This is a legal conclusion without factual support.

b. Plaintiff has not alleged [________________________________], which is a required element of [this claim].

c. Under no set of facts consistent with the Complaint's allegations could Plaintiff prove [________________________________] because [________________________________].

Therefore, Count [____] must be dismissed for failure to state a claim.

3. Count [____] — [Name of Additional Claim]

[Repeat for each count in the Complaint.]

C. Lack of Subject Matter Jurisdiction — Civ.R. 12(B)(1)

(Include if Civ.R. 12(B)(1) is checked)

Ohio Courts of Common Pleas have general jurisdiction over civil actions under R.C. 2305.01. However, subject matter jurisdiction is lacking where [________________________________]. Subject matter jurisdiction is a non-waivable defect that may be raised at any time, including for the first time on appeal. See Ohio Civ.R. 12(H)(3).

In this case, this Court lacks subject matter jurisdiction because [________________________________]. Specifically, [________________________________].

D. Lack of Personal Jurisdiction — Civ.R. 12(B)(2)

(Include if Civ.R. 12(B)(2) is checked)

Ohio's long-arm statute, R.C. 2307.382, permits Ohio courts to exercise personal jurisdiction over non-resident defendants who have:
(a) Transacted any business in Ohio;
(b) Contracted to supply services or goods in Ohio;
(c) Caused tortious injury by an act or omission in Ohio;
(d) Caused tortious injury in Ohio by an act or omission outside Ohio if the person regularly does or solicits business in Ohio, or derives substantial revenue from goods used or consumed or services rendered in Ohio, or expects or should reasonably expect the act to have consequences in Ohio and derives substantial revenue from interstate or international commerce;
(e) Caused injury in Ohio to any person by breach of warranty expressly or impliedly made in the sale of goods;
(f) Had an interest in, used, or possessed real property in Ohio;
(g) Contracted to insure any person, property, or risk located within Ohio; or
(h) Caused tortious injury to any person by an act outside Ohio committed with purpose to injure persons.

See R.C. 2307.382(A). In addition to satisfying one of these statutory predicates, jurisdiction must comport with the Due Process Clause of the Fourteenth Amendment. Goldstein v. Christiansen, 70 Ohio St.3d 232, 234-35 (1994).

In this case, personal jurisdiction over Defendant is lacking because:

a. Defendant does not satisfy any of the statutory predicates in R.C. 2307.382 because [________________________________].

b. Even if a statutory predicate were satisfied, exercising jurisdiction would violate due process because Defendant lacks minimum contacts with Ohio — specifically, [________________________________].

c. Defendant is not incorporated in Ohio, does not have a principal place of business in Ohio, and has not conducted sufficient activities in Ohio to support general jurisdiction.

E. Improper Venue — Civ.R. 12(B)(3)

(Include if Civ.R. 12(B)(3) is checked)

Ohio Civ.R. 3(B) governs venue in civil actions. Proper venue lies in the county:

• Where the defendant resides (Civ.R. 3(B)(1));
• Where the defendant has its principal office in Ohio, if a corporation (Civ.R. 3(B)(2));
• Where the cause of action arose (Civ.R. 3(B)(6));
• Where the contract was to be performed (Civ.R. 3(B)(4)); or
• Where the real property at issue is situated (Civ.R. 3(B)(5)).

In this case, venue is improper in [____________________] County because [________________________________]. The proper venue is [____________________] County because [________________________________]. Defendant respectfully requests that the action be dismissed or, in the alternative, transferred to [____________________] County.

F. Insufficient Service of Process — Civ.R. 12(B)(5)

(Include if Civ.R. 12(B)(5) is checked)

Ohio Civ.R. 4.1 governs the methods of service of process in Ohio. For service on a corporation, process must be served upon the corporation's registered agent, an officer, or a managing agent. See Ohio Civ.R. 4.2(F).

In this case, service was defective because [________________________________]. As a result, this Court has not acquired personal jurisdiction over Defendant through valid service of process, and the action must be dismissed.

G. Failure to Join a Required Party — Civ.R. 12(B)(7)

(Include if Civ.R. 12(B)(7) is checked)

Ohio Civ.R. 19 requires joinder of persons necessary for a just adjudication. A party must be joined where:
(1) Complete relief cannot be accorded in the party's absence; or
(2) The party's ability to protect an interest in the subject of the action may be impaired by a judgment rendered in the party's absence.

See Ohio Civ.R. 19(A).

In this case, [________________________________] is a required party because [________________________________]. Without [________________________________]'s participation, this Court cannot accord complete relief, and/or [________________________________] faces the risk of prejudice. This action should be dismissed to allow Plaintiff to join the required party.

VI. OHIO PROCEDURAL REQUIREMENTS

A. Answer Deadline

Under Ohio Civ.R. 12(A)(1), the defendant must serve a responsive pleading within 28 days after service of the summons and complaint. Under Ohio Civ.R. 12(A)(2), if the defendant files a pre-answer motion, the answer deadline is stayed until 14 days after the Court's ruling on the motion (if the motion is denied in whole or in part).

B. Consolidation of Defenses

Ohio Civ.R. 12(G) requires that a party raising any defense by pre-answer motion must include all Rule 12 defenses then available. Failure to include an available defense in the pre-answer motion results in waiver of that defense (subject to the exceptions in Civ.R. 12(H) for subject matter jurisdiction, failure to state a claim, and failure to join an indispensable party).

Waivable defenses (must be raised in first Civ.R. 12 motion or in answer):

• Civ.R. 12(B)(2) — Personal jurisdiction
• Civ.R. 12(B)(3) — Improper venue
• Civ.R. 12(B)(4) — Insufficient process
• Civ.R. 12(B)(5) — Insufficient service of process

Non-waivable defenses (may be raised at any time):

• Civ.R. 12(B)(1) — Subject matter jurisdiction
• Civ.R. 12(B)(6) — Failure to state a claim
• Civ.R. 12(B)(7) — Failure to join an indispensable party

C. Electronic Filing — Ohio Odyssey

Many Ohio courts have implemented the Tyler Technologies Odyssey case management system for electronic filing. Filing requirements vary by county. Counsel should check the specific county's e-filing procedures.

• Ohio courts e-filing portal: https://courts.ohio.gov/
• Some courts still accept paper filings — verify with the clerk

D. Local Rules

Ohio's Court of Common Pleas courts are organized by county, and each county may have its own local rules governing motion practice. Common provisions include:

Counsel must consult the local rules for the applicable county court.

E. Briefing Schedule

Ohio Civ.R. 12 does not specify a statewide briefing schedule for motions to dismiss. Local rules govern. Typically:

• Opposition/response: 14 days after the motion is served (unless local rule specifies otherwise)
• Reply: 7 days after opposition is served (unless local rule specifies otherwise)

Courts often decide motions without oral argument unless it is requested and granted.

VII. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Grant Defendant's Motion to Dismiss and dismiss Plaintiff's Complaint in its entirety, with prejudice, pursuant to Ohio Civ.R. 12(B);

2. In the alternative, dismiss the specific claims identified above;

3. Award Defendant its costs, including reasonable attorneys' fees to the extent authorized by law or applicable statute;

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

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
    [Attorney's Full Name]
    Ohio Supreme Court Reg. No. [____________________]
    [Firm Address]
    [City], Ohio [____]
    Telephone: ([____]) [____]-[________]
    Facsimile: ([____]) [____]-[________]
    Email: [________________________________]

Counsel for Defendant [____________________]

Dated: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Defendant's Motion to Dismiss and Memorandum of Law upon all counsel of record in the following manner:

Counsel for Plaintiff:
[Attorney's Full Name]
[Firm Name]
[Address]
[City], Ohio [____]
Email: [________________________________]

☐ Via Ohio e-Filing System (Odyssey) — electronic service
☐ Via United States Mail, First-Class, postage prepaid, addressed as above
☐ Via Electronic Mail (with prior written consent)
☐ Via Hand Delivery / Personal Service

[________________________________]
[Attorney's Name]
Dated: [__/__/____]

EXHIBIT LIST

OHIO-SPECIFIC NOTES FOR COUNSEL

1. Notice Pleading — Not Twombly/Iqbal: Ohio's standard under Civ.R. 12(B)(6) remains "can the plaintiff prove any set of facts" — a more lenient standard than the federal plausibility test. Cite O'Brien v. University Community Tenants Union (42 Ohio St.2d 242) and its progeny, not Twombly or Iqbal.

2. 28-Day Answer Deadline: Ohio's answer deadline is 28 days — not the 21-day federal deadline or the 30-day deadline used by some states. Calendar carefully.

3. Post-Denial Answer Deadline: If the Civ.R. 12(B) motion is denied, Defendant must answer within 14 days of notice of the ruling. This is a strict deadline.

4. Ohio Long-Arm Statute (R.C. 2307.382): Ohio's long-arm statute lists specific predicate acts — it is not a blanket "to the constitutional limit" statute. Each predicate must be analyzed separately.

5. Cuyahoga County: If the action is in Cuyahoga County, note the Cuyahoga County Court of Common Pleas has its own set of local rules that govern motion practice, including specific formatting and briefing timeline requirements. Check current local rules before filing.

6. Ohio Supreme Court Registration Number: Ohio attorneys use a Supreme Court registration number (not a "bar number"). Include this on all pleadings and court filings.

7. Conversion to Summary Judgment: Ohio Civ.R. 12(B) does not have an automatic conversion provision for matters outside the pleadings. However, if the court considers matters outside the pleadings on a Civ.R. 12(B)(6) motion, the motion must be treated as a motion for summary judgment under Civ.R. 56. Limit arguments to the four corners of the Complaint to avoid conversion.

8. Statute of Limitations — Common Ohio Periods:
   - Written contract: 8 years (R.C. 2305.06) [reduced from 15 years effective June 2012]
   - Oral contract: 6 years (R.C. 2305.07)
   - Personal injury (negligence): 2 years (R.C. 2305.10)
   - Property damage: 4 years (R.C. 2305.09(C))
   - Professional malpractice (medical): 1 year (R.C. 2305.113)
   - Professional malpractice (legal): 1 year (R.C. 2305.11(A))
   - Fraud: 4 years from discovery (R.C. 2305.09(C))
   - Products liability: 2 years from injury (R.C. 2305.10)

SOURCES AND REFERENCES

• Ohio Rules of Civil Procedure: https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/civil/CivilProcedure.pdf
• Ohio Courts Official Site: https://courts.ohio.gov/
• Responding to a Complaint in Ohio (Dinsmore): https://www.dinsmore.com/content/uploads/2024/04/Responding-to-a-Complaint-Ohio3-578-2986.pdf
• Ohio Cuyahoga County Court Local Rules: https://cp.cuyahogacounty.gov/media/1925/civilprocedure.pdf
• R.C. 2307.382 (Long-Arm Statute): https://codes.ohio.gov/ohio-revised-code/section-2307.382