[COURT SEAL OR LETTERHEAD, IF REQUIRED]

STATE OF SOUTH DAKOTA )
_ JUDICIAL CIRCUIT ) IN CIRCUIT COURT
[COUNTY] COUNTY )
) File No.: [CASE NUMBER]
[PLAINTIFF NAME], )
)
Plaintiff, ) DEFENDANT [NAME]’S
) NOTICE OF MOTION AND
v. ) MOTION TO DISMISS
) [WITH REQUEST FOR ORAL ARGUMENT]
[DEFENDANT NAME], )
)
Defendant. )
_________ )

[// GUIDANCE: Insert the correct Judicial Circuit (e.g., “Fourth Judicial Circuit”) and ensure the caption matches the style of the summons and complaint already on file.]

NOTICE OF MOTION

PLEASE TAKE NOTICE that on the ___ day of _, 20, at : _.m., or as soon thereafter as counsel may be heard, at the [COURTHOUSE NAME & ADDRESS], Defendant [DEFENDANT NAME] (“Defendant”) will move the Court, pursuant to S.D. Codified Laws § 15-6-12(b) and any other applicable authority, for an Order dismissing the Complaint filed by Plaintiff [PLAINTIFF NAME] (“Plaintiff”) in its entirety, or in the alternative dismissing the specific claims identified below.

[// GUIDANCE: Under SDCL 15-6-6(d), a written motion and notice of hearing must generally be served at least nine (9) days before the hearing date if served by mail. Verify local/circuit-specific rules or scheduling orders for different timeframes, electronic service allowances, or judge-specific preferences.]

MOTION

Defendant hereby moves the Court to dismiss:

1. The Complaint in its entirety pursuant to S.D. Codified Laws § 15-6-12(b)(5) for failure to state a claim upon which relief can be granted; and/or
2. [ALTERNATIVE OR ADDITIONAL GROUNDS, IF ANY]:
   a. Lack of subject-matter jurisdiction (§ 15-6-12(b)(1));
   b. Lack of personal jurisdiction (§ 15-6-12(b)(2));
   c. Insufficiency of process (§ 15-6-12(b)(3));
   d. Insufficiency of service of process (§ 15-6-12(b)(4));
   e. Failure to join an indispensable party (§ 15-6-12(b)(6)).

This Motion is based upon the accompanying Memorandum of Law, the pleadings and papers on file, any matters of which the Court may take judicial notice, and such oral argument as the Court may permit.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

TABLE OF CONTENTS

1. Introduction
2. Relevant Procedural History & Allegations
3. Applicable Legal Standards
   3.1 Rule 12(b)(5) – Failure to State a Claim
   3.2 [Other Grounds Invoked]
4. Argument
   4.1 The Complaint Fails to State a Claim Upon Which Relief Can Be Granted
   4.2 [Additional Arguments]
5. Conclusion
6. Request for Oral Argument (Optional)

[// GUIDANCE: Delete or add headings to match the exact grounds raised.]

1. Introduction

Defendant respectfully submits that Plaintiff’s Complaint fails, as a matter of law, to state any cognizable claim. Even accepting all well-pleaded allegations as true, the Complaint lacks the requisite factual specificity and legal elements necessary to survive a S.D. Codified Laws § 15-6-12(b)(5) challenge. Accordingly, dismissal is warranted.

2. Relevant Procedural History & Allegations

[SUMMARIZE procedural posture and relevant allegations in 1-2 concise paragraphs. Include docket dates where useful.]

3. Applicable Legal Standards

3.1 Failure to State a Claim – § 15-6-12(b)(5)

Under South Dakota law, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” S.D. Codified Laws § 15-6-8(a)(1). To withstand a motion to dismiss, the complaint must allege facts, not mere conclusions, that plausibly give rise to an entitlement to relief.

[// GUIDANCE: Cite additional South Dakota cases or persuasive federal precedent only if counsel is 100 % certain of accuracy.]

3.2 [Other Grounds]

[INSERT standards for any additional Rule 12(b) defenses invoked.]

4. Argument

4.1 The Complaint Fails to State a Claim

1. Elemental Deficiency:
   a. Plaintiff fails to allege facts supporting element ___.
   b. The alleged conduct does not constitute a legally cognizable wrong.

2. Conclusory Allegations:
   The Complaint offers labels and conclusions devoid of supporting factual content. Such pleadings are insufficient under § 15-6-12(b)(5).

3. Statutory Bar / Preemption (if applicable):
   [EXPLAIN any affirmative statutory defenses apparent on the face of the Complaint.]

4.2 [Additional Arguments]

[ARGUE lack of personal jurisdiction, service defects, indispensable party issues, etc., as applicable.]

5. Conclusion

For the foregoing reasons, Defendant respectfully requests that the Court dismiss Plaintiff’s Complaint with prejudice (or, alternatively, dismiss the specified counts) and award such other relief as the Court deems just and proper.

6. Request for Oral Argument (Optional)

Pursuant to S.D. Codified Laws § 15-6-78, Defendant requests oral argument. Oral presentation will assist the Court in addressing the issues of [complex statutory interpretation / conflicting authority / extensive factual record].

[// GUIDANCE: Some circuits require formal notice of oral argument or the filing of a separate “Request for Hearing.” Confirm with the clerk or scheduling order.]

PROPOSED ORDER

text
STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT
____ JUDICIAL CIRCUIT )
[COUNTY] COUNTY ) File No.: [CASE NUMBER]

[PLAINTIFF NAME], )
)
Plaintiff, ) ORDER GRANTING
) DEFENDANT’S MOTION
v. ) TO DISMISS
)
[DEFENDANT NAME], )
)
Defendant. )
__________ )

The above-entitled matter came before the Court on Defendant [DEFENDANT NAME]’s Motion to Dismiss pursuant to S.D. Codified Laws § 15-6-12(b). The Court, having considered the written submissions, applicable law, and the arguments of counsel (if any), FINDS good cause to grant the Motion.

IT IS HEREBY ORDERED that:

1. Plaintiff’s Complaint is DISMISSED [WITH / WITHOUT] prejudice.
2. [ALTERNATIVE OR ADDITIONAL RELIEF].
3. The Clerk shall enter judgment accordingly.

Dated this ___ day of _, 20.

Hon. [JUDGE NAME]
Circuit Court Judge
____ Judicial Circuit, South Dakota

CERTIFICATE OF SERVICE

I hereby certify that on the ___ day of _, 20, I served a true and correct copy of the foregoing Notice of Motion, Motion to Dismiss, Memorandum of Law, and Proposed Order upon:

• [PLAINTIFF’S COUNSEL NAME & ADDRESS]
• [ADDITIONAL PARTIES, IF ANY]

by: ☐ first-class U.S. mail, postage prepaid; ☐ hand delivery; ☐ electronic filing/service system; ☐ email (by agreement).

[ATTORNEY NAME], Attorney for Defendant
[LAW FIRM NAME]
[BAR NUMBER]
[ADDRESS]
[PHONE] / [EMAIL]

[// GUIDANCE: Under SDCL § 15-6-5(b), service by mail is complete upon mailing. If e-service is used, ensure compliance with the E-Filing Rules adopted by the South Dakota Unified Judicial System.]

ATTORNEY SIGNATURE BLOCK

Respectfully submitted this ___ day of _, 20.

text
[LAW FIRM NAME]

By: ______
[ATTORNEY NAME]
SD Bar No. [NUMBER]
[ADDRESS]
Telephone: [PHONE]
Email: [EMAIL]

ATTORNEYS FOR DEFENDANT [DEFENDANT NAME]

KEY PRACTICAL CHECKLIST

1. Verify proper service timelines under SDCL § 15-6-6(d) and any local scheduling order.
2. Confirm page limits and formatting in the circuit’s local practice (font, margins, exhibits, etc.).
3. Decide whether to file a separate brief or use a combined motion/brief format. Some judges require separate filings.
4. If moving under multiple Rule 12(b) defenses, raise them simultaneously to avoid waiver.
5. Preserve defenses not amenable to Rule 12 motion (e.g., affirmative defenses) in a timely Answer if the motion is denied.

[// GUIDANCE: Delete bracketed commentary and placeholders before filing. Tailor arguments to the actual causes of action pled. Attach supporting exhibits (contracts, affidavits, etc.) only if they can be considered on a motion to dismiss (i.e., integral to the complaint or subject to judicial notice).]