Motion to Dismiss - Washington

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR [________________________________] COUNTY

Case No.: [____________________]

Judge: [________________________________]

DEFENDANT'S MOTION TO DISMISS

Pursuant to Washington Superior Court Civil Rule CR 12(b)

And/Or Motion to Dismiss Under RCW 4.105 (Uniform Public Expression Protection Act)

I. RELIEF REQUESTED AND SUMMARY OF GROUNDS

Defendant [________________________________] ("Defendant") moves this Court pursuant to Washington Superior Court Civil Rule CR 12(b) [☐ and/or RCW 4.105] to dismiss [☐ all claims / ☐ the following claims: ________________________________] in Plaintiff [________________________________]'s [☐ Complaint / ☐ Amended Complaint / ☐ other: ____________________] (the "Complaint"), filed on [__/__/____].

Grounds for Dismissal (check all that apply):

☐ CR 12(b)(1) — Lack of subject-matter jurisdiction
☐ CR 12(b)(2) — Lack of personal jurisdiction over Defendant
☐ CR 12(b)(3) — Improper venue
☐ CR 12(b)(4) — Insufficiency of process
☐ CR 12(b)(5) — Insufficiency of service of process
☐ CR 12(b)(6) — Failure to state a claim upon which relief can be granted
☐ CR 12(b)(7) — Failure to join a party under CR 19
☐ RCW 4.105 — Anti-SLAPP: Claims based on protected public expression
☐ Statute of Limitations — Claims are time-barred under RCW 4.16
☐ Other: [________________________________]

II. PROCEDURAL INFORMATION

A. Filing Deadline and Timeliness

Under Washington CR 12(a), a defendant must serve an answer within 20 days after service of the summons and complaint. Under CR 12(g)-(h), defenses under CR 12(b)(2)–(5) (personal jurisdiction, venue, process, and service of process) are waived if omitted from an initial CR 12 motion or not included in the responsive pleading, and so must be asserted before or simultaneously with the responsive pleading. By contrast, defenses under CR 12(b)(6) (failure to state a claim) and CR 12(b)(7) (failure to join a party under CR 19) are not waived by omission and may be raised in any pleading, in a motion for judgment on the pleadings under CR 12(c), in a pre-answer motion, or at trial. CR 12(h)(2).

• Complaint served on Defendant: [__/__/____]
• Answer due date (20 days after service): [__/__/____]
• Date this motion filed: [__/__/____]

B. Noting Schedule

Washington motions are noted for hearing under the local court rules. In [________________________________] County Superior Court:

• Motions under CR 12 are typically noted on the court's [☐ weekly / ☐ bi-weekly] civil motion calendar;
• Notice of the hearing must be provided to opposing parties at least [____] court days before the hearing under Local Civil Rule [____________________];
• Opposing party's response is due [____] court days before the hearing;
• Movant's reply is due [____] court days before the hearing.

Hearing is set for: [__/__/____] at [____]:[____] [☐ AM / ☐ PM]

C. Electronic Filing

Washington Superior Courts use electronic filing through the Odyssey court case management system. Mandatory e-filing applies in most Washington superior courts for represented parties. File through the court's Odyssey portal or through a court-approved e-filing service provider.

III. STATEMENT OF THE CASE

A. The Parties

1. Plaintiff [________________________________] is [☐ an individual residing at ________________________________ / ☐ a [state] corporation with its principal place of business at ________________________________ / ☐ other: ________________________________].

2. Defendant [________________________________] is [☐ an individual residing at ________________________________ / ☐ a [state] corporation with its principal place of business at ________________________________ / ☐ other: ________________________________].

B. Claims Asserted

C. Key Allegations

Plaintiff's Complaint alleges, in relevant part: [________________________________].

IV. MEMORANDUM OF LAW

A. Washington's Notice Pleading Standard

Washington uses a notice pleading standard under CR 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." This is the same standard as former federal Rule 8 before Twombly/Iqbal. Washington has not adopted the federal plausibility standard, and courts generally construe pleadings liberally.

Under Washington's notice pleading standard, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief. Hoffer v. State, 110 Wn.2d 415, 420 (1988).

Standard for CR 12(b)(6):

• All facts alleged in the complaint are accepted as true;
• All reasonable inferences from the pleaded facts are drawn in the plaintiff's favor;
• The complaint is construed most favorably to the plaintiff;
• Dismissal is appropriate only where the plaintiff can prove no facts to support the claim.

Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961 (1978).

Despite the liberal notice pleading standard, a complaint must still allege facts sufficient to state each element of a cognizable cause of action.

B. Argument on Each Ground

GROUND 1: CR 12(b)(1) — Lack of Subject-Matter Jurisdiction

(Complete this section if applicable.)

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

☐ State tort claims act: Plaintiff's claim against a state governmental entity is barred by sovereign immunity under the Washington Tort Claims Act, RCW 4.92 et seq., because [________________________________].

☐ Exclusive jurisdiction: Exclusive jurisdiction over this matter is vested in [________________________________] by virtue of [________________________________].

☐ Federal preemption: This matter is governed exclusively by federal law, specifically [________________________________], which vests jurisdiction in federal court.

☐ Ripeness/mootness: This dispute is [☐ not ripe / ☐ moot] because [________________________________].

☐ Standing: Plaintiff lacks standing because [________________________________].

☐ Other: [________________________________].

Authority: [________________________________].

GROUND 2: CR 12(b)(2) — Lack of Personal Jurisdiction

(Complete this section if applicable.)

This Court lacks personal jurisdiction over Defendant because Defendant lacks the requisite minimum contacts with Washington.

General Jurisdiction: Defendant is not subject to general jurisdiction in Washington because:

☐ Defendant is not domiciled in or incorporated under the laws of Washington;
☐ Defendant's principal place of business is not in Washington;
☐ Defendant does not have the continuous and systematic contacts with Washington necessary to render Defendant essentially at home in Washington.

Specific Jurisdiction: Defendant is also not subject to specific jurisdiction in Washington because:

☐ The claims in this lawsuit do not arise out of or relate to Defendant's contacts with Washington;
☐ Defendant has not purposefully directed any activities at Washington such that Defendant could reasonably anticipate being sued here;
☐ Exercise of jurisdiction would not comport with fair play and substantial justice.

Washington Long-Arm Statute (RCW 4.28.185): Jurisdiction is not established under Washington's long-arm statute because Defendant has not:

• Transacted business in Washington;
• Committed a tortious act in Washington;
• Owned, used, or possessed real property in Washington;
• Contracted to supply goods or services in Washington; or
• Otherwise engaged in any of the enumerated acts under RCW 4.28.185(1).

Supporting Declaration: [☐ The Declaration of ________________________________, attached hereto as Exhibit ____, sets forth the basis for this jurisdictional challenge.]

Authority: RCW 4.28.185; International Shoe Co. v. Washington, 326 U.S. 310 (1945); Tyee Constr. Co. v. Dulien Steel Prods., Inc., 62 Wn.2d 106 (1963).

GROUND 3: CR 12(b)(3) — Improper Venue

(Complete this section if applicable.)

Venue is improper in [________________________________] County because:

☐ Under RCW 4.12.020 et seq., venue is proper where [the defendant resides / where the cause of action arose / where the contract was to be performed], which is [________________________________] County.

☐ The parties' agreement at [Exhibit ____] designates [________________________________] as the exclusive venue for disputes arising from [________________________________].

☐ Other: [________________________________].

Requested Relief: Transfer to [________________________________] County under RCW 4.12.030(3).

GROUND 4: CR 12(b)(4) — Insufficiency of Process

(Complete this section if applicable.)

The process issued in this case is defective because:

☐ The summons fails to include the time within which the defendant must appear and defend as required by CR 4(b)(1);
☐ The summons does not identify the parties as required by CR 4(b)(1);
☐ The summons is not properly signed or authenticated;
☐ Other defect: [________________________________].

GROUND 5: CR 12(b)(5) — Insufficiency of Service of Process

(Complete this section if applicable.)

Service of process was defective because:

☐ Improper personal service: Personal service was not effected in accordance with RCW 4.28.080 or CR 4(d);

☐ Defective substituted service: Substitute service was defective because [________________________________], in violation of RCW 4.28.080(15) or CR 4(d)(2);

☐ Service on entity defective: Service was not made on an authorized officer, director, or registered agent of the defendant entity under RCW 4.28.080 or CR 4(d)(2);

☐ Service outside Washington: Service outside Washington was defective because [________________________________];

☐ Time limit: Service was not timely completed under [applicable rule or order];

☐ Other defect: [________________________________].

GROUND 6: CR 12(b)(6) — Failure to State a Claim

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

Claim 1: [________________________________]

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

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

Why the Claim Fails:

☐ Missing element: Even construing the Complaint liberally, Plaintiff has not alleged facts sufficient to support the element of [________________________________]. The sole allegation on this element — "[________________________________]" (¶ ____) — is a naked legal conclusion, not a factual allegation.

☐ Statute of limitations: The claim is barred by the [____]-year limitation period under RCW 4.16.[____]. The claim accrued on [__/__/____] and the Complaint was filed on [__/__/____], which is [____] [years/months] after the limitations period expired.

☐ No recognized cause of action: Washington courts have not recognized a cause of action for [________________________________] under these circumstances because [________________________________]. See [authority].

☐ Economic loss rule / independent duty doctrine: Plaintiff's tort claim is barred by Washington's independent duty doctrine. Tort liability in Washington requires an independent duty beyond the contract; no such independent duty exists here. Eastwood v. Horse Harbor Foundation, Inc., 170 Wn.2d 380 (2010).

☐ Government immunity: Defendant is a public entity entitled to immunity under RCW [____________________] because [________________________________].

☐ Other: [________________________________].

Authority: [________________________________].

Claim 2: [________________________________]

Elements: [________________________________].

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

Why the Claim Fails:

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

Claim 3: [________________________________]

Elements: [________________________________].

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

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]

GROUND 7: CR 12(b)(7) — Failure to Join a Party Under CR 19

(Complete this section if applicable.)

This action should be dismissed, or the missing party joined, because Defendant contends that [________________________________] is a party needed for just adjudication under CR 19 and:

☐ Complete relief cannot be accorded among the existing parties in that party's absence;

☐ That party claims an interest relating to the subject of the action and is so situated that disposing of the action in the party's absence may: (i) as a practical matter impair or impede the party's ability to protect that interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest;

☐ Joinder of that party is not feasible because [________________________________ (e.g., joinder would destroy jurisdiction, the party is not subject to service of process, etc.)];

☐ In equity and good conscience, the action should not proceed among the parties before the Court, and should instead be dismissed, because [________________________________].

Note: Unlike the defenses in CR 12(b)(2)–(5), this defense is not waived by omission from an initial motion; under CR 12(h)(2) it may be raised in any pleading, by motion for judgment on the pleadings, or at trial.

Authority: CR 19; CR 12(b)(7); CR 12(h)(2).

GROUND 8: RCW 4.105 — UNIFORM PUBLIC EXPRESSION PROTECTION ACT (ANTI-SLAPP)

(Complete this section if the claims arise from protected public expression activity.)

A. Overview of RCW 4.105 (Washington's Anti-SLAPP Law)

Washington enacted the Uniform Public Expression Protection Act (UPEPA) as RCW 4.105, effective July 25, 2021, replacing the prior anti-SLAPP statute (RCW 4.24.525) that was struck down in Davis v. Cox, 183 Wn.2d 269 (2015) as unconstitutional.

Under RCW 4.105.020, a party may file a motion to dismiss a "legal action" that is based on the party's protected public expression activity. "Public expression" includes:

• Oral or written statements or petitions made in a legislative, executive, judicial, administrative, or other governmental proceeding or body;
• Oral or written statements or petitions on issues under consideration in a governmental proceeding;
• Oral or written statements made in connection with a public issue in a public forum;
• Oral or written expression on an issue of public concern.

Key Features of RCW 4.105:

• Burden: The moving party must establish that the legal action is based on protected public expression. The burden then shifts to the responding party to establish that the UPEPA does not apply or to demonstrate a prima facie case.
• Stay of discovery: On filing, discovery is stayed pending ruling on the motion.
• Court standard: The court shall consider the pleadings, motion, any reply or response, and any evidence that could be considered in ruling on a CR 56 summary judgment motion.
• Attorney's fees: If granted, the court shall award costs and reasonable attorney's fees to the moving party.
• Timing: Motion must be filed and served within 60 days of service of the legal action, or later by court order.

B. Application to This Case

☐ The claims against Defendant are based on Defendant's exercise of protected public expression, specifically:

☐ Statements in a governmental proceeding: Defendant made statements [________________________________] in [a legislative proceeding / a judicial proceeding / an executive proceeding / an administrative proceeding] regarding [________________________________].

☐ Statements on issues under governmental consideration: Defendant made statements regarding [________________________________], which is [an issue under consideration before ________________________________].

☐ Statements in a public forum on a public issue: Defendant made statements in [________________________________], a public forum, on the public issue of [________________________________].

☐ Other protected expression: [________________________________].

☐ Plaintiff's claim for [________________________________] is based on, related to, or in response to Defendant's protected public expression because [________________________________].

☐ Defendant requests that discovery be stayed pending resolution of this motion as provided by RCW 4.105.030.

☐ Upon granting this motion, Defendant requests an award of costs and reasonable attorney's fees under RCW 4.105.090.

V. CONCLUSION AND PRAYER FOR RELIEF

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

1. GRANT this Motion to Dismiss;

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

3. ☐ STAY discovery pending ruling on the RCW 4.105 motion;

4. ☐ AWARD Defendant its costs and reasonable attorney's fees under RCW 4.105.090 upon granting the anti-SLAPP motion;

5. ☐ In the alternative, if the Court does not dismiss all claims, ORDER Plaintiff to replead within [____] days to cure deficiencies identified herein;

6. ☐ TRANSFER this action to [________________________________] County if the Court declines to dismiss for improper venue; and

7. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[LAW FIRM NAME]

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

ATTORNEY FOR DEFENDANT [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused the foregoing Defendant's Motion to Dismiss to be filed with the [________________________________] County Superior Court through the Odyssey electronic filing system and served upon all parties and/or counsel as listed:

[________________________________]
[Attorney Name]

SOURCES AND REFERENCES

• Washington Superior Court Civil Rule CR 12: https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=cr&ruleid=supcr12
• Washington Superior Court Civil Rule CR 19 (Joinder of Persons Needed for Just Adjudication): https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=cr&ruleid=supcr19
• RCW 4.105 (Uniform Public Expression Protection Act): https://app.leg.wa.gov/RCW/default.aspx?cite=4.105&full=true
• RCW 4.105.030 (Stay): https://app.leg.wa.gov/RCW/default.aspx?cite=4.105.030
• RCW 4.105.090 (Costs, Attorneys' Fees, and Expenses): https://app.leg.wa.gov/RCW/default.aspx?cite=4.105.090
• RCW 4.28.185 (Washington Long-Arm Statute): https://app.leg.wa.gov/RCW/default.aspx?cite=4.28.185
• RCW 4.16 (Limitation of Actions): https://app.leg.wa.gov/RCW/default.aspx?cite=4.16
• Washington State Courts: https://www.courts.wa.gov/
• Davis Wright Tremaine — Washington Anti-SLAPP Analysis: https://www.dwt.com/insights/2021/07/washington-state-new-anti-slapp-law