Motion to Dismiss - West Virginia

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

Civil Action No.: [____________________]

The Honorable [________________________________]

DEFENDANT'S MOTION TO DISMISS

Pursuant to West Virginia Rule of Civil Procedure 12(b)

I. INTRODUCTION

Defendant [________________________________] ("Defendant"), by counsel, moves this Court pursuant to West Virginia Rule of Civil Procedure 12(b) to dismiss [☐ the entire Complaint / ☐ the following claims: ________________________________] filed by Plaintiff [________________________________] ("Plaintiff") on [__/__/____].

As set forth in the accompanying Memorandum of Law, dismissal is warranted because:

(Check all that apply)

☐ W. Va. R. Civ. P. 12(b)(1) — This Court lacks subject-matter jurisdiction;
☐ W. Va. R. Civ. P. 12(b)(2) — This Court lacks personal jurisdiction over Defendant;
☐ W. Va. R. Civ. P. 12(b)(3) — Venue is improper in this Court;
☐ W. Va. R. Civ. P. 12(b)(4) — Process is insufficient;
☐ W. Va. R. Civ. P. 12(b)(5) — Service of process is insufficient;
☐ W. Va. R. Civ. P. 12(b)(6) — The Complaint fails to state a claim upon which relief can be granted;
☐ W. Va. R. Civ. P. 12(b)(7) — Plaintiff has failed to join a necessary party under Rule 19;
☐ Statute of Limitations — Claims are time-barred under W. Va. Code § 55-2;
☐ Other: [________________________________].

II. PROCEDURAL INFORMATION

A. Filing Deadline — 2025 Revised Rules

Important 2025 Rules Change: The West Virginia Rules of Civil Procedure were comprehensively revised effective January 1, 2025 (per the West Virginia Supreme Court of Appeals order). Under the 2025 revised rules, the deadline for a responsive pleading or motion to dismiss is 30 days after service of the summons and complaint (changed from the prior 20-day deadline in many circumstances).

• Complaint served on Defendant: [__/__/____]
• Answer/motion due (30 days after service under 2025 revised rules): [__/__/____]
• Date this motion filed: [__/__/____]

Waiver Reminder: Under W. Va. R. Civ. P. 12(h), defenses of lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived if not asserted in the first responsive pleading or pre-answer motion. The defense of failure to state a claim is not waived and may be raised at trial.

B. Briefing Requirements

Under applicable West Virginia rules and local court practice:

• Supporting memorandum of law: Filed herewith (required for dispositive motions);
• Opposition memorandum: Due within [____] days of service of this motion (check local court rules);
• Reply: Due within [____] days of service of opposition;
• Page limits: Check local rules for the [________________________________] County Circuit Court.

Hearing: Defendant requests oral argument on this motion. ☐ Oral argument requested / ☐ Submitted on briefs.

C. Electronic Filing

The West Virginia judiciary has implemented mandatory electronic filing for circuit court civil actions. Circuit and family court e-filing is provided through the West Virginia Circuit and Family Courts E-File system (built on the CourtPLUS case management platform), which went live statewide on July 15, 2024. Under the 2025 revised rules, represented parties are required to file and serve documents electronically through this system unless a waiver for good cause is granted by the presiding judge. Access e-filing at: https://efile.courtswva.com (general information at https://www.courtswv.gov/legal-community/e-filing/circuit-family-courts/about).

(Note: File & ServeXpress (FSX) is the separate e-filing provider used only for the West Virginia Supreme Court of Appeals, the Intermediate Court of Appeals, and the Mass Litigation Panel — it is not used for circuit court trial-level filings such as this motion.)

All parties who are unable to utilize e-filing and service may file a written motion seeking a waiver.

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

The Complaint alleges: [________________________________].

IV. MEMORANDUM OF LAW

A. West Virginia's Liberal Pleading Standard

West Virginia applies a liberal notice pleading standard under W. Va. R. Civ. P. 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief."

Critically: The West Virginia Supreme Court of Appeals has expressly rejected the federal Twombly/Iqbal ("Twiqbal") "plausibility" pleading standard. In Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of West Virginia, 244 W. Va. 508, 854 S.E.2d 870 (2020), the West Virginia Supreme Court held that W. Va. R. Civ. P. 8 and 12 "are more generous and weighted toward resolving cases on their merits than what is allowed by federal courts under the federal rules," and that West Virginia courts "continue to firmly abide by" the pre-Twombly "beyond doubt" standard rather than the federal plausibility standard.

The standard for a Rule 12(b)(6) motion in West Virginia is:

• Accept all well-pleaded allegations of fact as true;
• Construe the complaint in the light most favorable to the plaintiff;
• Dismiss only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim entitling the plaintiff to relief.

The motion to dismiss for failure to state a claim should be viewed with disfavor and is rarely granted in West Virginia. Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695 (1978); Highmark West Virginia, Inc. v. Jamie, 221 W. Va. 487 (2007).

Despite the liberal standard, a complaint must still allege facts that, if proven, would entitle the plaintiff to relief under a recognized legal theory. Bare, unsupported legal conclusions, without any factual basis, may be disregarded.

B. Argument on Each Ground

GROUND 1: W. Va. R. Civ. P. 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 immunity: The claim against [a West Virginia state agency / officer] is barred by sovereign immunity. West Virginia has not waived sovereign immunity for the type of claim asserted here under the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1 et seq. Specifically, [________________________________].

☐ Exclusive jurisdiction: Exclusive jurisdiction over this matter is vested in [the West Virginia Supreme Court of Appeals / the Workers' Compensation Board of Review / the Public Service Commission] by W. Va. Code § [____________________].

☐ Federal preemption: This claim is preempted by federal law, specifically [________________________________], which divests this Court of jurisdiction.

☐ Standing: Plaintiff lacks standing because [________________________________].

☐ Other: [________________________________].

Authority: [________________________________].

GROUND 2: W. Va. R. Civ. P. 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 West Virginia.

General Jurisdiction: Defendant is not subject to general personal jurisdiction in West Virginia because:
☐ Defendant is not a West Virginia resident or domiciliary;
☐ Defendant is not incorporated in West Virginia and does not have its principal place of business in West Virginia;
☐ Defendant does not maintain offices, employees, or agents in West Virginia;
☐ Defendant is not registered to do business in West Virginia.

Specific Jurisdiction (West Virginia Long-Arm Statute — W. Va. Code § 56-3-33): Defendant is not subject to specific personal jurisdiction because Defendant has not:
☐ Transacted any business in West Virginia (§ 56-3-33(a)(1));
☐ Contracted to supply services or things in West Virginia (§ 56-3-33(a)(2));
☐ Caused tortious injury in West Virginia by an act or omission in this state (§ 56-3-33(a)(3));
☐ Caused tortious injury in West Virginia by an act or omission outside this state, with the requisite West Virginia business connections (§ 56-3-33(a)(4));
☐ Had an interest in, used, or possessed real property in West Virginia (§ 56-3-33(a)(5));
☐ Contracted to insure any person, property, or risk located in West Virginia (§ 56-3-33(a)(6)).

Constitutional Due Process: Even if a provision of the long-arm statute were technically satisfied, exercise of personal jurisdiction would violate due process under International Shoe Co. v. Washington, 326 U.S. 310 (1945) because Defendant has not purposefully availed itself of the privilege of conducting activities in West Virginia and it would offend traditional notions of fair play and substantial justice to require Defendant to defend this action here.

Authority: W. Va. Code § 56-3-33; In re State Public Building Asbestos Litigation, 193 W. Va. 119 (1994).

GROUND 3: W. Va. R. Civ. P. 12(b)(3) — Improper Venue

(Complete this section if applicable.)

Venue is improper in [________________________________] County because:

☐ Under W. Va. Code § 56-1-1 [SELECT SUBSECTION], venue is proper in [________________________________] County because [FACTS SATISFYING THAT ROUTE]. Do not import a generic contract-performance alternative; subsection (a)(1) states defendant residence or where the cause arose, while other defendant and claim classes have separate routes.

☐ The parties' agreement requires disputes to be brought in [________________________________]. See Exhibit [____].

☐ [Other ground: ________________________________].

Requested Relief: Transfer to [________________________________] County under W. Va. Code § 56-9-1.

GROUND 4: W. Va. R. Civ. P. 12(b)(4) — Insufficiency of Process

(Complete this section if applicable.)

The process in this case is insufficient because:

☐ The summons fails to include the required information under W. Va. R. Civ. P. 4(a) (time to respond, parties, court);
☐ The summons was not properly signed or authenticated;
☐ Other defect: [________________________________].

GROUND 5: W. Va. R. Civ. P. 12(b)(5) — Insufficiency of Service of Process

(Complete this section if applicable.)

Service of process was insufficient because:

☐ Personal service defective: Service was not personally delivered to Defendant or an authorized agent as required by W. Va. R. Civ. P. 4(d)(1)(A);

☐ Substituted service defective: Substituted service was not left at Defendant's dwelling or usual place of abode with a person 18 years of age or older who resides there, as required by W. Va. R. Civ. P. 4(d)(1)(B);

☐ Service on entity defective: Service was not made on an officer, director, trustee, or authorized agent of the defendant entity as required by W. Va. R. Civ. P. 4(d)(4);

☐ Secretary of State service defective: Service through the Secretary of State was defective because [________________________________] under W. Va. Code § 56-3-33(c);

☐ Time for service: Service was not made within the required time;

☐ Other defect: [________________________________].

GROUND 6: W. Va. R. Civ. P. 12(b)(6) — Failure to State a Claim

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

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

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

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

Why the Claim Fails:

☐ No set of facts supports the claim: Even under West Virginia's liberal notice pleading standard, the Complaint fails to allege any facts that would, if proven, support the element of [________________________________]. Plaintiff's sole allegation regarding this element — "[________________________________]" (¶ ____) — provides no factual basis whatsoever.

☐ Statute of limitations: The claim for [________________________________] is barred by the [____]-year limitations period under W. Va. Code § 55-2-[____]. The claim accrued on [__/__/____] and the Complaint was filed on [__/__/____], exceeding the limitations period by [____] [years/months].

☐ No recognized cause of action: West Virginia does not recognize a cause of action for [________________________________] under these facts because [________________________________]. See [authority].

☐ Worker's compensation exclusivity: This claim is barred by the workers' compensation exclusivity provision under W. Va. Code § 23-2-6 because [________________________________].

☐ Deliberate intent exception not pleaded: To bring a personal injury claim against an employer outside of workers' compensation, Plaintiff must plead the "deliberate intent" exception under W. Va. Code § 23-4-2(d)(2)(ii). Plaintiff has not done so.

☐ Governmental immunity: [________________________________] is immune from suit under W. Va. Code § 29-12A-5 because [________________________________].

☐ 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: W. Va. R. Civ. P. 12(b)(7) — Failure to Join a Required Party

(Complete this section if applicable.)

Plaintiff has failed to join [________________________________] (the "Absent Party"), who is a required party under W. Va. R. Civ. P. 19, because:

☐ Complete relief cannot be granted to the existing parties without the Absent Party;

☐ The Absent Party has an interest in the subject of the action, and proceeding without the Absent Party would:
☐ Impair the Absent Party's ability to protect that interest; or
☐ Leave an existing party subject to a substantial risk of double, multiple, or inconsistent obligations.

☐ The Absent Party is amenable to service of process and joinder would not destroy jurisdiction.

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

V. ADDITIONAL GROUNDS: STATUTE OF LIMITATIONS

(Complete if asserting statute of limitations separately.)

The following claim(s) are time-barred:

Common West Virginia Limitations Periods:

• Personal injury (general): 2 years — W. Va. Code § 55-2-12
• Property damage: 2 years — W. Va. Code § 55-2-12
• Contract (written): 10 years — W. Va. Code § 55-2-6
• Contract (oral): 5 years — W. Va. Code § 55-2-6
• Fraud: 2 years from discovery — W. Va. Code § 55-2-12
• Medical malpractice: 2 years — W. Va. Code § 55-7B-4

VI. CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. GRANT this Motion to Dismiss;

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

3. ☐ Grant Plaintiff [____] days to file an Amended Complaint if dismissed without prejudice;

4. ☐ Transfer this action to [________________________________] County if the Court declines to dismiss for improper venue;

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

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

Respectfully submitted,

[LAW FIRM NAME]

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

COUNSEL FOR DEFENDANT [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I electronically filed the foregoing Motion to Dismiss through the West Virginia electronic filing system and served a true and correct copy upon all counsel of record and/or pro se parties as follows:

[________________________________]
[Attorney Name]

APPENDIX: WEST VIRGINIA-SPECIFIC NOTES FOR PRACTITIONERS

2025 Rules Update Summary

The West Virginia Rules of Civil Procedure were comprehensively revised effective January 1, 2025. Key changes relevant to motions to dismiss include:

West Virginia Workers' Compensation — Unique Considerations

West Virginia has a unique workers' compensation system (now privatized). Personal injury claims by employees against employers are generally barred by the exclusivity provision of W. Va. Code § 23-2-6, unless the plaintiff can plead and prove the "deliberate intent" exception under § 23-4-2(d)(2)(ii). This is a highly specific pleading requirement that requires particularized allegations.

West Virginia Rejection of Twombly/Iqbal

West Virginia has expressly declined to adopt the federal plausibility pleading standard. This is an important distinction from federal practice and from many other states. West Virginia courts apply a more liberal standard, and motions to dismiss for failure to state a claim are generally viewed with disfavor and rarely granted on purely pleading grounds.

SOURCES AND REFERENCES

• West Virginia Rules of Civil Procedure (2025 Final): https://www.courtswv.gov/sites/default/pubfilesmnt/2025-02/RCP%20Final.pdf
• 2025 WV Rules Amendment Summary: https://wvbar.org/wp-content/uploads/2024/08/2025-WV-Rules-Amendment-Deadlines-Summary-4882-9674-5388-6-002-1.pdf
• W. Va. Code § 56-3-33 (Long-Arm Statute): https://code.wvlegislature.gov/56-3-33/
• West Virginia Circuit and Family Courts E-File (CourtPLUS): https://www.courtswv.gov/legal-community/e-filing/circuit-family-courts/about
• WV Bar — New Playbook: https://wvbar.org/wp-content/uploads/2024/10/RCP-St-Bar-Regional-Meetings.pdf
• JD Supra — WV Rejects Federal Plausibility Standard (Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of West Virginia, 244 W. Va. 508, 854 S.E.2d 870 (2020)): https://www.jdsupra.com/legalnews/west-virginia-supreme-court-rejects-95907/