State Court Motion to Dismiss

DEFENDANT'S MOTION TO DISMISS

(State of Delaware — [Superior Court / Court of Chancery / Court of Common Pleas])

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion to Dismiss

4. Memorandum of Law in Support
   4.1 Nature and Stage of Proceedings
   4.2 Statement of Facts
   4.3 Legal Standards
   4.4 Argument

5. Request for Oral Argument

6. Conclusion
7. Rule 11 Certification
8. Certificate of Service
9. Exhibit A — Proposed Form of Order

1. CAPTION

IN THE [SUPERIOR COURT / COURT OF CHANCERY / COURT OF COMMON PLEAS]
OF THE STATE OF DELAWARE
IN AND FOR [________________] COUNTY

[PLAINTIFF NAME], Plaintiff,

v. — C.A. No. [________________]

[DEFENDANT NAME], Defendant.

Hearing Date: [________________]
Hearing Time: [________________]
Courtroom: [________________]
Judge: Hon. [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time], or as soon thereafter as the matter may be heard, in [Courtroom/Chambers] of the above-entitled court, located at [Courthouse Address, City, Delaware], before the Honorable [Judge Name], Defendant [Defendant Name] ("Defendant") will, and hereby does, move this Court for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to [Del. Super. Ct. Civ. R. 12(b) / Del. Ch. Ct. R. 12(b)], on the following grounds:

1. Lack of subject-matter jurisdiction (Rule 12(b)(1));
2. Lack of personal jurisdiction (Rule 12(b)(2));
3. Improper venue (Rule 12(b)(3));
4. Insufficiency of process (Rule 12(b)(4));
5. Insufficiency of service of process (Rule 12(b)(5));
6. Failure to state a claim upon which relief can be granted (Rule 12(b)(6)); and/or
7. Failure to join a party under Rule 19 (Rule 12(b)(7)).

The motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[DELAWARE BAR NO. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorneys for Defendant [Defendant Name]

3. MOTION TO DISMISS

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to [Del. Super. Ct. Civ. R. / Del. Ch. Ct. R.] 12(b)([________________]) for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff"). In support of this Motion, Defendant relies upon the accompanying Memorandum of Law filed herewith.

4. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

4.1 Nature and Stage of the Proceedings

Plaintiff filed the Complaint on [Date], asserting claims for [briefly describe claims]. Defendant was served on [Date]. This Motion is timely filed in lieu of an Answer pursuant to Rule 12(b).

4.2 Statement of Facts

For purposes of this Motion only, Defendant summarizes the non-conclusory factual allegations in the Complaint and any documents integral thereto.

4.3 Legal Standards

Rule 12(b)(1) — Lack of Subject-Matter Jurisdiction
The burden rests with Plaintiff to establish that the Court has subject-matter jurisdiction. The Court may consider facts outside the pleadings when resolving a jurisdictional challenge. See Del. Super. Ct. Civ. R. 12(b)(1).

Rule 12(b)(2) — Lack of Personal Jurisdiction
Plaintiff bears the burden of establishing personal jurisdiction. The Court must determine whether there is a statutory basis for service under Delaware's long-arm statute, 10 Del. C. § 3104, and whether the exercise of jurisdiction comports with due process. See Del. Super. Ct. Civ. R. 12(b)(2).

Rule 12(b)(6) — Failure to State a Claim
On a motion to dismiss for failure to state a claim, the Court must accept all well-pleaded factual allegations as true, draw all reasonable inferences in Plaintiff's favor, and determine whether the Complaint states a claim that is plausible on its face. Conclusory allegations and unwarranted inferences are disregarded. See Del. Super. Ct. Civ. R. 12(b)(6); Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011).

4.4 Argument

A. [First Ground for Dismissal]

B. [Second Ground for Dismissal]

C. [Third Ground for Dismissal — if applicable]

5. REQUEST FOR ORAL ARGUMENT

Defendant respectfully requests oral argument on this Motion. Defendant believes that oral presentation will assist the Court in resolving the jurisdictional and pleading issues set forth herein.

6. CONCLUSION

WHEREFORE, Defendant respectfully requests that this Court:

1. Dismiss the Complaint in its entirety with prejudice;
2. Award Defendant costs and such other relief as the Court deems just and proper; and
3. Enter the Proposed Order attached as Exhibit A.

7. RULE 11 CERTIFICATION

In accordance with [Del. Super. Ct. Civ. R. / Del. Ch. Ct. R.] 11, the undersigned counsel certifies that to the best of counsel's knowledge, information, and belief, formed after reasonable inquiry, this Motion is well-grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose.

8. CERTIFICATE OF SERVICE

I hereby certify that on [Date], a copy of the foregoing Motion to Dismiss and all accompanying papers was served via [File & ServeXpress / e-Filing / hand delivery / first-class mail] upon the following counsel of record:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name]
[Delaware Bar No. ________________]

EXHIBIT A — PROPOSED FORM OF ORDER

IN THE [SUPERIOR COURT / COURT OF CHANCERY / COURT OF COMMON PLEAS]
OF THE STATE OF DELAWARE
IN AND FOR [________________] COUNTY

[PLAINTIFF NAME], Plaintiff,

v. — C.A. No. [________________]

[DEFENDANT NAME], Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

AND NOW, this ______ day of ________________, 20____, the Court having considered Defendant's Motion to Dismiss (the "Motion"), any opposition thereto, the authorities cited, and the entire record in this action, IT IS HEREBY ORDERED that:

1. The Motion is GRANTED for the reasons set forth therein.
2. The Complaint is DISMISSED WITH PREJUDICE.
3. The Clerk of the Court is directed to CLOSE this case.

IT IS SO ORDERED.

______________________________
[Vice Chancellor / Judge] [NAME]