Motion to Dismiss for Lack of Subject-Matter Jurisdiction

When the lack of subject-matter jurisdiction is used

Timing: usually before the answer — but this defense is never waived. These motions usually come early, often before or with the answer. As a result, they can end or narrow a case before discovery starts.

What the rule requires

• A motion asserting a Rule 12(b) defense must be made before pleading if a responsive pleading is allowed.
• If the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action (Rule 12(h)(3)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Civ. P. 12(b)(1) online. Also, the federal judiciary publishes the current rules and recent amendments.

The lack of subject-matter jurisdiction in state court

This page covers the federal version. In state court, the lack of subject-matter jurisdiction may have a different name, a different deadline or a different form. For example, a state may count days differently or require a separate notice. So start with your state’s rules of civil procedure, then check the local rules. Our state procedures guide links to the official rules for every state and DC.

Key terms

In addition, these terms come up often with this procedure:

• Jurisdiction: a court's power to hear a case and make binding decisions.
• Subject-matter jurisdiction: a court's power to hear a particular type of case. Federal courts can hear only the kinds of cases the Constitution and Congress allow.

Related procedures

Similarly, these procedures often come up alongside it:

• Motion to Dismiss for Failure to State a Claim: a motion arguing that, even if the facts alleged are true, the complaint does not state a claim upon which relief can be granted.
• Motion to Remand to State Court: a motion asking a federal court to send a removed case back to the state court it came from.
• Notice of Removal: the filing a defendant uses to move a case from state court to federal court when the federal court would have had original jurisdiction.

Before you rely on this page

First, read the current text of the rule. After that, check your court’s local rules and any standing order from the judge. In addition, look at recent decisions from your own court. They show how judges apply the rule in practice. For advice about your own case, speak with a licensed attorney, for example through our directory.