Motion to Dismiss - West Virginia

IN THE CIRCUIT COURT OF [COUNTY] COUNTY, WEST VIRGINIA

Judge: [NAME]

DEFENDANT'S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT

Defendant [name] moves under W. Va. R. Civ. P. 12(b) to dismiss [identify claims or pleading] on the selected grounds below. This motion states the grounds and requested relief with particularity under Rule 7(b).

Grounds and requested relief

Select only grounds supported by this case's record and authority:

• ☐ Rule 12(b)(1), lack of subject-matter jurisdiction: [basis].
• ☐ Rule 12(b)(2), lack of personal jurisdiction: [basis].
• ☐ Rule 12(b)(3), improper venue: [basis].
• ☐ Rule 12(b)(4), insufficient process: [basis].
• ☐ Rule 12(b)(5), insufficient service of process: [basis].
• ☐ Rule 12(b)(6), failure to state a claim: [claim and defect].
• ☐ Rule 12(b)(7), failure to join a party under Rule 19: [party and basis].

Defendant seeks [specific disposition for each challenged claim or party]. If dismissal is requested, specify [with or without prejudice] and supply authority for that choice. If requesting transfer or another remedy, identify the separate authority and facts that permit it. Costs or attorney fees are requested only if a separately identified authority supports them: [authority, if any].

Memorandum of law

Procedural background

Plaintiff filed [pleading] on [date]. Defendant was served on [date] by [method]. Rule 12(a)(1)(A) generally allows 30 days to serve an answer after service of the summons and complaint, unless another time is set by the rule or a statute. A Rule 12(b) motion raising a listed defense must precede a responsive pleading when one is allowed. Verify any case-specific order or different statutory time before filing.

Facts and argument

Ground [number]: [title]. [Identify the precise allegations and relevant record material.] [State the current controlling authority for the selected ground.] [Apply it to each challenged claim and explain the specific relief requested.]

[Repeat for each selected ground. For a Rule 12(b)(7) request, address Rule 19(a)'s required-party conditions and Rule 19(b)'s factors if joinder is not feasible.]

For a Rule 12(b)(6) motion, address Rule 12(d) before presenting matters outside the pleadings: if the court does not exclude them, the motion is treated as one for summary judgment under Rule 56, with a reasonable opportunity to present pertinent material.

Conclusion

Defendant requests that the Court [case-specific relief] for the reasons stated above.

Dated: [DATE]

[ATTORNEY SIGNATURE]
[NAME, WEST VIRGINIA BAR NUMBER]
[ADDRESS, TELEPHONE, EMAIL]
Counsel for Defendant

Notice of hearing, if one is set

To all parties and counsel of record: Defendant's Motion to Dismiss will be heard on [court-set date] at [time], before Judge [name] at [courtroom or remote location]. [State the notice period directed by the court or applicable rule and method of service.]

Rule 78(b) allows a court, by rule or order, to decide a motion on briefs without a hearing. Complete this notice only after the court sets a hearing; do not set a hearing unilaterally.

Dated: [DATE] | [COUNSEL SIGNATURE]

Certificate of service

I certify that on [date], I served this motion, memorandum, [notice of hearing if applicable], and [attachments] on [names and addresses] by [authorized method].

[Signature]

Proposed order for the Court's consideration

IN THE CIRCUIT COURT OF [COUNTY] COUNTY, WEST VIRGINIA

ORDER ON DEFENDANT'S MOTION TO DISMISS

Upon consideration of the motion, response, record, and [hearing if held], the Court orders:

1. The motion is ☐ granted ☐ denied ☐ granted in part as to [claims or parties].
2. [State the ground, affected claims, and whether any dismissal is with or without prejudice as determined by the Court.]
3. [Any other relief the Court actually orders.]

Entered: [DATE] | Judge: [SIGNATURE]

Filing checklist

• Rule 12(g)(2) and (h)(1) can waive available personal-jurisdiction, venue, process, or service defenses if omitted from an earlier Rule 12 motion or not properly raised in the responsive pleading. A general reservation of defenses does not override those rules.
• If a Rule 12 motion is denied or deferred until trial, Rule 12(a)(2)(A) generally allows 14 days after notice of the court's action for the responsive pleading, unless the court sets another time.
• Confirm court scheduling, service method, and any order governing the motion before filing.