Motion to Dismiss - South Carolina

STATE OF SOUTH CAROLINA

IN THE COURT OF COMMON PLEAS

[____________________] JUDICIAL CIRCUIT

DEFENDANT'S MOTION TO DISMISS

DEFENDANT'S MOTION TO DISMISS

Pursuant to Rule 12(b), South Carolina Rules of Civil Procedure (SCRCP)

Defendant [________________________________] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Rule 12(b) of the South Carolina Rules of Civil Procedure (SCRCP) to dismiss Plaintiff's Complaint, in whole or in part, for the reasons set forth in the accompanying Memorandum of Law. Defendant shows the Court as follows:

I. GROUNDS FOR DISMISSAL

Defendant seeks dismissal on the following grounds (check all that apply):

☐ Rule 12(b)(1): Lack of Jurisdiction Over the Subject Matter
This Court lacks jurisdiction over the subject matter of this action.

☐ Rule 12(b)(2): Lack of Jurisdiction Over the Person
This Court lacks personal jurisdiction over Defendant.

☐ Rule 12(b)(3): Improper Venue
Venue is improper in this Court.

☐ Rule 12(b)(4): Insufficiency of Process
The process issued in this action is insufficient.

☐ Rule 12(b)(5): Insufficiency of Service of Process
Service of process upon Defendant was insufficient.

☐ Rule 12(b)(6): Failure to State Facts Sufficient to Constitute a Cause of Action
The Complaint fails to state facts sufficient to constitute a cause of action.

☐ Rule 12(b)(7): Failure to Join a Party Required Under Rule 19
Plaintiff has failed to join an indispensable party under SCRCP Rule 19.

☐ Rule 12(b)(8): Pendency of Another Action
Another action is pending between the same parties for the same claim.

II. STATEMENT OF THE CASE

On or about [__/__/____], Plaintiff filed a Complaint in the Court of Common Pleas, [____________________] Judicial Circuit, asserting claims of [________________________________] against Defendant. Plaintiff's Complaint purports to allege [________________________________].

Defendant was served on [__/__/____]. Under SCRCP Rule 12(a), Defendant has 30 days from service to answer or otherwise respond. This Motion is timely filed.

III. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

A. South Carolina Pleading Standard

South Carolina employs a notice pleading standard. Under SCRCP Rule 8(a)(1), a pleading that sets forth a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This is a liberal pleading standard that requires only that the defendant be given fair notice of the claim and its basis.

B. Standard for a Rule 12(b)(6) Motion

Note on South Carolina's Unique Terminology: Under SCRCP Rule 12(b)(6), the South Carolina standard is "failure to state facts sufficient to constitute a cause of action" — which is slightly different from the federal "failure to state a claim upon which relief can be granted." South Carolina courts have emphasized that the standard is based "solely upon the allegations set forth by the plaintiff" — the court may only look at the face of the complaint.

When ruling on a Rule 12(b)(6) motion, the Court must:

1. View solely the facts alleged on the face of the complaint in Plaintiff's favor;
2. Determine whether a valid cause of action has been asserted and the elements thereof alleged.

Dismissal is not appropriate if the facts alleged and the inferences reasonably deducible from the pleadings would entitle the plaintiff to relief on any theory of the case. The Court may not consider matters outside the four corners of the complaint on a Rule 12(b)(6) motion. Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602 (1995).

A motion to dismiss under Rule 12(b)(6) should be granted only when "it is certain that the plaintiff cannot prove any set of facts in support of the claim that would entitle plaintiff to relief." Gentry v. Yonce, 337 S.C. 1 (1999).

Important: In South Carolina, it is generally improper for a trial court on a Rule 12(b)(6) motion to consider whether the plaintiff can ultimately prove the facts alleged. The question is only whether the complaint states a cognizable cause of action. Stiles v. Onorato, 318 S.C. 297 (1995).

C. Dismissal vs. Leave to Amend

Dismissal of an action under Rule 12(b)(6) for failure to state sufficient facts does not automatically result in the right to amend. Leave to amend under SCRCP Rule 15(a) is within the Court's discretion and should be granted when justice so requires.

IV. ARGUMENT

A. This Court Lacks Subject Matter Jurisdiction — Rule 12(b)(1)

(Complete this section if Ground 1 is checked)

The South Carolina Court of Common Pleas has general civil jurisdiction under S.C. Code Ann. § 14-5-340, but certain matters are subject to exclusive jurisdiction in other forums.

This Court lacks subject matter jurisdiction because:

☐ The claims at issue fall within the exclusive jurisdiction of the South Carolina Workers' Compensation Commission under S.C. Code Ann. § 42-17-10.

☐ The claims fall within the exclusive jurisdiction of the South Carolina Family Court under S.C. Code Ann. § 63-3-530.

☐ This matter involves a federal question within the exclusive jurisdiction of the federal courts.

☐ Plaintiff has failed to exhaust mandatory administrative remedies required by [________________________________].

☐ The South Carolina [________________________________] has exclusive original jurisdiction over this type of claim under S.C. Code Ann. § [________________________________].

☐ Other: [________________________________].

Specific facts supporting this ground:

[________________________________]

Subject matter jurisdiction may not be conferred by consent or waiver. A court lacking subject matter jurisdiction has no authority to act regardless of the consent of the litigants, and the defense may be raised at any time. Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994).

B. This Court Lacks Personal Jurisdiction — Rule 12(b)(2)

(Complete this section if Ground 2 is checked)

South Carolina's long-arm statute, S.C. Code Ann. § 36-2-803, permits South Carolina courts to exercise personal jurisdiction over nonresidents on specific enumerated grounds, provided that doing so is consistent with the due process requirements of the Fourteenth Amendment.

Under § 36-2-803(A), personal jurisdiction over a nonresident may be based upon:
(1) transacting business in South Carolina;
(2) contracting to supply services or things in South Carolina;
(3) causing tortious injury in South Carolina by an act in South Carolina;
(4) causing tortious injury in South Carolina by an act outside South Carolina if the person regularly does or solicits business in South Carolina;
(5) having an interest in, using, or possessing real property in South Carolina;
(6) contracting to insure any person, property, or risk located in South Carolina;
(7) entry into a contract to be performed in whole or in part by either party in South Carolina;
(8) production, manufacture, or distribution of goods with the reasonable expectation that those goods are to be used or consumed in South Carolina and are so used or consumed.

Defendant is not subject to personal jurisdiction in South Carolina under § 36-2-803 because:

☐ Defendant has not transacted business in South Carolina.

☐ Defendant has not contracted to supply services or things in South Carolina.

☐ Defendant has not caused tortious injury in South Carolina and does not regularly solicit business in South Carolina.

☐ Defendant has no interest in real property in South Carolina.

☐ Defendant did not enter into a contract to be performed in whole or in part in South Carolina.

☐ Defendant did not produce, manufacture, or distribute goods with the reasonable expectation that they would be used or consumed in South Carolina.

☐ The claims do not arise out of or relate to any of Defendant's activities in South Carolina.

☐ Exercising jurisdiction would not comport with fair play and substantial justice under the due process analysis of International Shoe Co. v. Washington, 326 U.S. 310 (1945).

Supporting Facts:

Defendant [________________________________] is a [________________________________] with its principal place of business in [________________________________]. Defendant does not maintain offices in South Carolina, is not registered to do business in South Carolina, and has no agents or employees in South Carolina. See Declaration of [________________________________], attached hereto as Exhibit A.

C. Venue Is Improper — Rule 12(b)(3)

(Complete this section if Ground 3 is checked)

Venue in South Carolina civil actions is governed by S.C. Code Ann. §§ 15-7-10 through 15-7-100. Section 15-7-10 governs actions tied to the situs of real or distrained personal property (e.g., recovery of real property, partition, mortgage foreclosure, landlord-tenant matters); it does not set general venue for actions against individuals. General venue for actions against individual and corporate defendants is instead governed by S.C. Code Ann. § 15-7-30, as amended in 2005.

For actions against a resident individual defendant, S.C. Code Ann. § 15-7-30(C) provides that venue is proper in the county in which the defendant resided at the time the cause of action arose, or in which the most substantial part of the alleged act or omission giving rise to the cause of action occurred.

For actions against a domestic corporation, S.C. Code Ann. § 15-7-30(E) provides that venue is proper in the county of the corporation's principal place of business at the time the cause of action arose, or in which the most substantial part of the alleged act or omission giving rise to the cause of action occurred. (Different subsections of § 15-7-30 apply to nonresident individual defendants and foreign corporations.)

Venue is improper in [____________________] County because:

☐ Defendant did not reside, and did not have its principal place of business, in [____________________] County at the time the cause of action arose.

☐ The most substantial part of the alleged act or omission giving rise to the cause of action did not occur in [____________________] County.

☐ The contract at issue was made and to be performed in [____________________] County.

☐ The real property at issue is located in [____________________] County.

☐ Other: [________________________________].

Proper venue for this action is [____________________] County because: [________________________________].

D. Process Was Insufficient — Rule 12(b)(4)

(Complete this section if Ground 4 is checked)

Under SCRCP Rule 4(b), the summons must be signed by the clerk, bear the seal of the court, identify the court and parties, be directed to the defendant, state the name and address of the plaintiff's attorney, state the time within which the defendant must appear, and notify the defendant of the consequences of failure to appear.

The summons in this case is deficient in the following respects:

☐ The summons was not signed by the clerk of the court.

☐ The summons does not bear the seal of the Court of Common Pleas.

☐ The summons fails to state the time within which Defendant must appear and defend.

☐ The summons does not identify Plaintiff's attorney and address.

☐ Other deficiency: [________________________________].

E. Service of Process Was Insufficient — Rule 12(b)(5)

(Complete this section if Ground 5 is checked)

SCRCP Rule 4 governs service of process in South Carolina. Proper service is a jurisdictional prerequisite. Roche v. Young Bros., 318 S.C. 207 (1995).

Service upon Defendant was deficient because:

☐ Service upon an individual was not made by personal delivery, leaving process at Defendant's dwelling house or usual place of abode, delivery to an authorized agent, or other authorized method. SCRCP Rule 4(d)(1).

☐ Service upon a corporation was not made upon an officer, managing or general agent, or registered agent. SCRCP Rule 4(d)(3).

☐ Service was attempted by a method not authorized under SCRCP Rule 4(d).

☐ The person upon whom service was made was not authorized to accept service on Defendant's behalf.

☐ Service was not effected within the 120-day period following filing as required under SCRCP Rule 4(j).

☐ Service by publication was not properly completed under SCRCP Rule 4(e).

☐ Other deficiency: [________________________________].

Supporting Facts:

[________________________________]

F. The Complaint Fails to State Facts Sufficient to Constitute a Cause of Action — Rule 12(b)(6)

(Complete this section if Ground 6 is checked)

Even accepting all well-pleaded factual allegations on the face of the Complaint as true and all reasonable inferences in Plaintiff's favor, the Complaint fails to allege facts sufficient to constitute a cognizable cause of action.

The standard under South Carolina Rule 12(b)(6) focuses on the "facts alleged on the face of the complaint." In considering a motion to dismiss for failure to state facts sufficient to constitute a cause of action, the trial court must base its ruling solely on the allegations set forth in the complaint. Doe v. Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007).

Specific deficiencies in the Complaint:

Count [____] — [________________________________] — Fails to State a Cause of Action

To state a cause of action for [________________________________] under South Carolina law, Plaintiff must allege facts establishing: (1) [________________________________]; (2) [________________________________]; (3) [________________________________]; and (4) [________________________________]. See [________________________________].

The Complaint specifically fails because:

Deficiency No. 1: The Complaint's allegation that "[________________________________]" (Compl. ¶ [____]) is a bare legal conclusion that is not supported by factual allegations. Under South Carolina pleading standards, Plaintiff must allege actual facts — not conclusions — to support a cause of action.

Deficiency No. 2: The Complaint fails entirely to allege [________________________________], which is an essential element of the cause of action for [________________________________].

Deficiency No. 3 (if applicable): [________________________________].

Count [____] — [________________________________] — Fails to State a Cause of Action

(Repeat as necessary for each count)

[________________________________]

Statute of Limitations

☐ The face of the Complaint establishes that the claims are time-barred.

The applicable statute of limitations is:

☐ S.C. Code Ann. § 15-3-530(1) — 3 years (contract)
☐ S.C. Code Ann. § 15-3-530(5) — 3 years (personal injury / negligence)
☐ S.C. Code Ann. § 15-3-530(7) — 3 years (fraud, from discovery)
☐ S.C. Code Ann. § 15-3-545 — 3 years (medical malpractice)
☐ S.C. Code Ann. § 15-3-550 — 2 years (libel, slander, false imprisonment)
☐ S.C. Code Ann. § 15-3-530(6) — 3 years (wrongful death, accruing on the date of death)
☐ Other: [________________________________]

The cause of action accrued on [__/__/____] when [________________________________]. The Complaint was filed on [__/__/____], which is [________________________________] after the limitations period expired. The face of the Complaint establishes this untimeliness because: [________________________________].

G. Failure to Join a Required Party — Rule 12(b)(7)

(Complete this section if Ground 7 is checked)

SCRCP Rule 19 governs joinder of required parties. A party who is subject to service of process must be joined if:

(a) Complete relief cannot be accorded among existing parties in that person's absence; or

(b) That person claims an interest in the subject of the action and disposing of the action without them may impair their ability to protect that interest, or leave existing parties subject to inconsistent obligations.

The following person must be joined:

Name: [________________________________]
Relationship to Action: [________________________________]
Reason Joinder Is Required: [________________________________]
Whether Joinder Is Feasible: ☐ Yes ☐ No

If joinder is not feasible because [________________________________], the Court must determine in equity and good conscience whether this action should proceed or be dismissed. This action should be dismissed because [________________________________].

H. Another Action Is Pending Between the Same Parties for the Same Claim — Rule 12(b)(8)

(Complete this section if Ground 8 is checked)

SCRCP Rule 12(b)(8) permits dismissal (or stay) where another action is pending between the same parties for the same claim. Unlike the corresponding federal rule, which contains no such enumerated defense, SCRCP 12(b)(8) is a defense unique to South Carolina practice, and it is grouped with the personal-jurisdiction, venue, and process/service-of-process defenses for waiver purposes under SCRCP 12(h)(1) — it is waived if omitted from a motion asserting other Rule 12 defenses, or if not raised by motion or in a responsive pleading.

The following action, pending between the same parties for the same claim, requires dismissal or a stay of this action:

Court and Case Number: [________________________________]
Date Filed: [__/__/____]
Parties: [________________________________]
Claims Asserted: [________________________________]

This action should be dismissed, or in the alternative stayed, because [________________________________].

V. E-FILING AND PROCEDURAL INFORMATION

This Motion is filed through the South Carolina Courts' Electronic Filing System (SCE-File) in compliance with the South Carolina Supreme Court's e-filing administrative orders and the South Carolina Electronic Filing Policies and Guidelines (SCEF).

Electronic Case Number: [________________________________]

Hearing:

☐ Defendant requests that this Motion be heard at the next available motion date.
☐ Defendant does not request a hearing and submits this Motion on the brief.

Briefing:

Under the local rules of the [____________________] Judicial Circuit:

• Response to this Motion is due: [____] days after service
• Reply, if any, is due: [____] days after service of response

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant [________________________________] respectfully requests that this Court:

1. GRANT this Motion to Dismiss in its entirety;

2. DISMISS Plaintiff's Complaint with prejudice as to all counts and causes of action asserted therein;

— OR, in the alternative —

3. DISMISS the following specific counts:
   Count(s) [________________________________] for the following reasons: [________________________________];

4. ☐ DISMISS with prejudice the claims that are barred by the applicable statute of limitations;

5. ☐ TRANSFER venue to the Court of Common Pleas of [____________________] County in lieu of dismissal;

6. ☐ REQUIRE Plaintiff to join [________________________________] as a necessary party;

7. AWARD Defendant its reasonable attorneys' fees and costs as permitted by applicable law; and

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

Respectfully submitted,

Attorney Name: [________________________________]
South Carolina Bar Number: [________________________________]
Firm Name: [________________________________]
Address: [________________________________], [________________________________]
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]

Attorney for Defendant [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Defendant's Motion to Dismiss was served upon all counsel of record by the method(s) indicated:

Counsel for Plaintiff:

Name: [________________________________]
Firm: [________________________________]
Address: [________________________________], [________________________________]
Email: [________________________________]

Method of Service:

☐ Electronic service through the South Carolina Courts' Electronic Filing System (SCE-File)
☐ U.S. Mail, first-class postage prepaid
☐ Hand delivery
☐ Email (with consent)
☐ Facsimile

[________________________________]
Certifying Attorney

EXHIBIT LIST

☐ Exhibit A — Declaration of [________________________________] (personal jurisdiction)
☐ Exhibit B — [________________________________]
☐ Exhibit C — [________________________________]

SOURCES AND REFERENCES

• South Carolina Rules of Civil Procedure — Rule 12: https://www.sccourts.org/resources/judicial-community/court-rules/civil/rule-12/
• South Carolina Code of Laws § 15-3-530 et seq. (Statutes of Limitations): https://www.scstatehouse.gov/code/t15c003.php
• South Carolina Code of Laws § 15-7-30 (Venue): https://www.scstatehouse.gov/code/t15c007.php
• South Carolina Long-Arm Statute § 36-2-803: https://www.scstatehouse.gov/code/t36c002.php
• South Carolina Courts' Electronic Filing System (SCE-File): https://efile.sccourts.org/
• South Carolina Courts official site: https://www.sccourts.org

Note: South Carolina's answer deadline is 30 days after service of the summons and complaint under SCRCP Rule 12(a). SCRCP Rule 12(b) defenses for personal jurisdiction, venue, insufficiency of process/service, and pendency of another action (grounds 2, 3, 4, 5, and 8) are waived if not raised in the first responsive pleading or a pre-answer motion. Rule 12(b)(1) (subject matter jurisdiction) may be raised at any time. South Carolina has 16 judicial circuits, and cases are heard in the Court of Common Pleas at the county level. Local circuit rules may impose additional requirements — always consult the local rules of the specific judicial circuit. The South Carolina Business Court Pilot Program, established by administrative order in September 2007 and expanded statewide effective January 3, 2014, handles certain complex business, corporate, and commercial litigation and has separate procedures.