Motion to Dismiss - Vermont

STATE OF VERMONT

[____] COURT, [________________________________] UNIT

[________________________________] DIVISION

Docket No.: [____________________]

DEFENDANT'S MOTION TO DISMISS

Pursuant to Vermont Rule of Civil Procedure 12(b)

I. INTRODUCTION

Defendant [________________________________] ("Defendant"), by and through counsel, respectfully moves this Court pursuant to Vermont Rule of Civil Procedure 12(b) to dismiss [☐ all claims / ☐ the following claims: ________________________________] asserted in Plaintiff [________________________________]'s [☐ Complaint / ☐ Amended Complaint / ☐ other: ____________________] (the "Complaint"), filed on [__/__/____].

As demonstrated below, Plaintiff's [☐ entire Complaint / ☐ certain claims] must be dismissed because:

(Check all that apply)

☐ This Court lacks subject-matter jurisdiction over [☐ all / ☐ some of] Plaintiff's claims;
☐ This Court lacks personal jurisdiction over Defendant;
☐ Venue is improper in this court;
☐ Process is insufficient;
☐ Service of process was insufficient;
☐ The Complaint fails to state a claim upon which relief can be granted;
☐ Plaintiff has failed to join a required party under Rule 19.

II. PROCEDURAL INFORMATION

A. Filing Deadline and Timeliness

Under Vermont Rule of Civil Procedure 12(a)(1)(A), a defendant must serve an answer within 21 days after service of the summons and complaint. Defenses raised under V.R.C.P. 12(b)(2)–(5) must be raised in the responsive pleading or by motion before the responsive pleading. Defenses under 12(b)(6) and 12(b)(7) may be raised in any pleading allowed or ordered under Rule 7(a), by motion for judgment on the pleadings, or at trial.

• Date Complaint was filed: [__/__/____]
• Date Defendant was served: [__/__/____]
• Answer/response due date (21 days after service): [__/__/____]
• Date this motion is filed: [__/__/____]

B. Briefing Schedule

Under V.R.C.P. 7(b)(4), a motion to dismiss is a dispositive motion, so the following deadlines apply:

• Motion and supporting memorandum: Filed simultaneously (required for dispositive motions);
• Opposition memorandum: Due within 30 days after service of the motion (or such other time as the court orders);
• Reply: Due within 14 days after service of the opposition memorandum.

C. Electronic Filing — Vermont Odyssey File & Serve System

Vermont courts use Odyssey File & Serve, the Vermont Judiciary's electronic case management and filing system (part of the Tyler Technologies Odyssey Case Management System). The Vermont Judiciary requires represented parties in civil superior court proceedings to file documents electronically through Odyssey File & Serve where mandatory e-filing is in effect, under the 2020 Vermont Rules for Electronic Filing. Check the Vermont Judiciary website for current mandatory e-filing court locations and any recent amendments to the electronic filing rules: https://www.vermontjudiciary.org/attorneys/efiling.

III. STATEMENT OF THE CASE

A. The Parties

1. Plaintiff [________________________________] is [☐ an individual residing at ________________________________ / ☐ a corporation organized under the laws of ________________________________, with its principal place of business at ________________________________ / ☐ other: ________________________________].

2. Defendant [________________________________] is [☐ an individual residing at ________________________________ / ☐ a corporation organized under the laws of ________________________________, with its principal place of business at ________________________________ / ☐ other: ________________________________].

B. Claims Asserted

Plaintiff's Complaint asserts the following causes of action:

C. Key Factual Allegations

Plaintiff alleges: [________________________________].

IV. MEMORANDUM OF LAW

A. Vermont's Notice Pleading Standard

Vermont follows a notice pleading standard under V.R.C.P. 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Vermont's notice pleading standard is more liberal than the federal plausibility standard from Twombly and Iqbal.

However, under Vermont law, a complaint must allege facts sufficient to constitute a cognizable legal claim. Conclusory allegations and bare legal conclusions, without supporting factual allegations, are insufficient to withstand a motion to dismiss. Colby v. Umbrella, Inc., 2008 VT 20, 184 Vt. 1.

Standard for Rule 12(b)(6): In ruling on a motion to dismiss for failure to state a claim:

• The court accepts all well-pleaded allegations as true;
• The court draws all reasonable inferences in favor of the plaintiff;
• Dismissal is appropriate only if it is clear that no set of facts consistent with the complaint could entitle the plaintiff to relief.

Powers v. Office of Child Support, 173 Vt. 390, 396 (2002); Richards v. Town of Norwich, 169 Vt. 44, 49 (1999).

B. Argument on Each Ground

GROUND 1: V.R.C.P. 12(b)(1) — Lack of Subject-Matter Jurisdiction

(Complete this section if applicable.)

This Court lacks subject-matter jurisdiction over [☐ all / ☐ the following] claims because:

☐ State immunity / Vermont Tort Claims Act: Plaintiff's claim against [a Vermont state agency / official] is barred by sovereign immunity. Vermont's limited waiver of sovereign immunity is set forth in 12 V.S.A. § 5601 et seq. (Vermont Tort Claims Act). The claim at issue does not fall within any waiver because [________________________________].

☐ Exclusive jurisdiction in another tribunal: Jurisdiction over this matter is exclusively vested in [the Vermont Supreme Court / the Vermont Public Utility Commission / federal court] by virtue of [________________________________].

☐ Mootness: This controversy is moot because [________________________________] and there is no longer a live case or controversy.

☐ Ripeness: The claims are not ripe for adjudication because [________________________________].

☐ Standing: Plaintiff lacks standing to bring this action because:

• Plaintiff has not suffered a concrete, particularized injury;
• Any injury is not fairly traceable to Defendant's conduct;
• The injury is not redressable by court order.

☐ Other: [________________________________].

Authority: [________________________________].

GROUND 2: V.R.C.P. 12(b)(2) — Lack of Personal Jurisdiction

(Complete this section if applicable.)

This Court lacks personal jurisdiction over Defendant because:

General Jurisdiction: Defendant does not have the continuous and systematic contacts with Vermont necessary to support general (all-purpose) jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).

Specifically:
☐ Defendant is not domiciled or incorporated in Vermont;
☐ Defendant does not maintain offices, employees, or agents in Vermont;
☐ Defendant is not registered to do business in Vermont;
☐ Defendant does not own property in Vermont.

Specific Jurisdiction: Defendant also lacks minimum contacts with Vermont for specific jurisdiction because:

☐ The claims do not arise out of or relate to any activity by Defendant directed at Vermont;
☐ Defendant has not purposefully availed itself of the privilege of conducting activities in Vermont;
☐ Exercising jurisdiction would offend traditional notions of fair play and substantial justice.

Vermont Long-Arm Statute: Vermont's long-arm statute, 12 V.S.A. § 913, does not reach Defendant's conduct because [________________________________].

Authority: 12 V.S.A. § 913; International Shoe Co. v. Washington, 326 U.S. 310 (1945); [Vermont case law: ________________________________].

GROUND 3: V.R.C.P. 12(b)(3) — Improper Venue

(Complete this section if applicable.)

Venue is improper in this Court because:

☐ Under 12 V.S.A. § 402(a), a Superior Court action belongs in a unit where a party resides if either party resides in Vermont, or in the unit where the land lies if the action concerns real estate. The selected basis is [________________________________]; the case was filed in [________________________________] Unit.

☐ The parties' written agreement expressly designates [________________________________] as the mandatory venue for disputes. See Exhibit [____].

☐ The nature of this action requires it to be filed in [________________________________] under [________________________________].

Requested Relief: Transfer to [________________________________] County pursuant to 12 V.S.A. § 406.

GROUND 4: V.R.C.P. 12(b)(4) — Insufficiency of Process

(Complete this section if applicable.)

The process issued in this case is defective because:

☐ The summons does not name the court or the parties as required by V.R.C.P. 4(b);
☐ The summons does not state the time within which the defendant must appear and defend;
☐ The summons lacks the required signature or seal;
☐ Other defect: [________________________________].

GROUND 5: V.R.C.P. 12(b)(5) — Insufficiency of Service of Process

(Complete this section if applicable.)

Service of process was defective because:

☐ Improper personal service: Process was not personally delivered to Defendant or an authorized agent as required by V.R.C.P. 4(d)(1);

☐ Defective substitute service: Substitute service at Defendant's dwelling or usual place of abode was not left with a person of suitable age and discretion, or did not comply with V.R.C.P. 4(d)(1)(B);

☐ Service on entity defective: Service on the defendant entity was not made on an officer, director, or registered agent as required by V.R.C.P. 4(d)(4);

☐ Time limit violated: Service was not effectuated within 60 days after the filing of the complaint as required by V.R.C.P. 3 (or such extended time as ordered by the court);

☐ Other defect in service: [________________________________].

GROUND 6: V.R.C.P. 12(b)(6) — Failure to State a Claim

(Complete this section for each claim that fails to state a claim.)

Claim 1: [________________________________] — Failure to State a Claim

Elements Required Under Vermont Law: To state a claim for [________________________________], Plaintiff must allege: (1) [________________________________]; (2) [________________________________]; (3) [________________________________]; and (4) [________________________________].

Plaintiff's Allegations: Plaintiff alleges [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ Missing element: Plaintiff has failed to allege sufficient facts to support [________________________________]. The Complaint contains only the conclusory allegation "[________________________________]" (¶ ____), which is a bare legal conclusion, not a factual allegation. Under Colby v. Umbrella, Inc., 2008 VT 20, conclusory assertions are insufficient.

☐ Statute of limitations: The claim for [________________________________] is time-barred. The applicable limitations period is [____] years under [12 V.S.A. § 511 (general six-year catch-all period) / other applicable claim-specific statute — e.g., 12 V.S.A. § 512 (three years for personal injury/torts)]. The claim accrued on [__/__/____] and the Complaint was filed on [__/__/____], which is beyond the limitations period.

☐ No cognizable claim under Vermont law: Vermont does not recognize a cause of action for [________________________________] under the circumstances alleged because [________________________________]. See [authority].

☐ Economic loss rule: Plaintiff's tort claim is barred by Vermont's economic loss rule because [________________________________]. See Paquette v. Deere & Co., 168 Vt. 258 (1998).

☐ Governmental immunity: [________________________________] is entitled to immunity under 12 V.S.A. § 5601 et seq. because [________________________________].

☐ Preemption: This claim is preempted by [federal law / state statute]: [________________________________].

☐ Other: [________________________________].

Authority: [________________________________].

Claim 2: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

Claim 3: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]

Claim 4: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]

GROUND 7: V.R.C.P. 12(b)(7) — Failure to Join a Required Party

(Complete this section if applicable.)

Plaintiff has failed to join [________________________________] (the "Absent Party"), a required party under V.R.C.P. 19, because:

☐ Complete relief cannot be accorded to the existing parties in the Absent Party's absence;

☐ The Absent Party claims an interest relating to the subject of this action, and proceeding without the Absent Party would:
☐ Impair or impede the Absent Party's ability to protect its interest; or
☐ Leave existing parties subject to a substantial risk of double, multiple, or inconsistent obligations.

☐ The Absent Party's joinder is feasible because [________________________________] (is subject to service of process and joinder will not deprive the court of jurisdiction).

☐ If joinder is not feasible, this action cannot in equity and good conscience proceed without the Absent Party because [________________________________].

V. CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, Defendant respectfully requests that the Court:

1. GRANT this Motion to Dismiss;

2. DISMISS [☐ the entire Complaint / ☐ the following claims: ________________________________] [☐ with prejudice / ☐ without prejudice];

3. ☐ In the alternative, if the Court finds that Plaintiff may be able to plead a cognizable claim, grant Plaintiff [____] days to file an Amended Complaint;

4. ☐ Transfer this case to [________________________________] County if the Court does not dismiss for improper venue;

5. ☐ Award Defendant its reasonable attorney's fees and costs as permitted by law or contract; and

6. Grant such other and further relief as the Court deems just and equitable.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
[Attorney Name]
Vermont Bar No. [____________________]
[Street Address]
[City, VT ZIP]
Telephone: ([____]) [____]-[________]
Fax: ([____]) [____]-[________]
Email: [________________________________]

COUNSEL FOR DEFENDANT [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I filed the foregoing Motion to Dismiss with the Vermont Odyssey File & Serve electronic filing system and served a true and correct copy upon all counsel of record and/or pro se parties as follows:

[________________________________]
[Attorney Name]

SOURCES AND REFERENCES

• Vermont Rules of Civil Procedure — Rule 12: https://www.vermontjudiciary.org/attorneys/rules
• Vermont Rules of Civil Procedure — Rule 7 (Motions, incl. briefing deadlines under 7(b)(4)): https://www.vermontjudiciary.org/attorneys/rules
• Vermont Rules of Civil Procedure — Rule 8 (Notice Pleading): https://www.vermontjudiciary.org/attorneys/rules
• Vermont Rules of Civil Procedure — Rule 3 (Commencement of Action; 60-day service deadline): https://www.vermontjudiciary.org/attorneys/rules
• Vermont Judiciary E-Filing (Odyssey File & Serve): https://www.vermontjudiciary.org/attorneys/efiling
• 12 V.S.A. § 511 (General Statute of Limitations — Six Years): https://legislature.vermont.gov/statutes/section/12/023/00511
• 12 V.S.A. § 913 (Long-Arm Statute): https://legislature.vermont.gov/statutes/section/12/031/00913
• Vermont Tort Claims Act, 12 V.S.A. § 5601: https://legislature.vermont.gov/statutes/chapter/12/231
• Colby v. Umbrella, Inc., 2008 VT 20: https://www.courtlistener.com/opinion/1977798/colby-v-umbrella-inc/