How to File a Motion to Dismiss for Lack of Jurisdiction

To file a motion to dismiss for lack of jurisdiction in federal court, you file a written Rule 12(b) motion before your answer is due, specify whether you are challenging subject matter jurisdiction under Rule 12(b)(1) or personal jurisdiction under Rule 12(b)(2), and back it with a memorandum of law and supporting declarations. The deadline is short and the stakes are high: a personal jurisdiction objection that is not raised in your first response is waived permanently.¹

Pick the Right Rule Before You Draft Anything

Federal Rule of Civil Procedure 12(b) gives you two separate jurisdictional grounds, and they behave differently at every stage of the case.

Rule 12(b)(1) attacks subject matter jurisdiction, meaning the court’s power to hear this kind of case at all. Federal courts are courts of limited authority. Most cases get in through one of two doors: a federal question, where the claim arises under the Constitution, a federal statute, or a treaty,² or diversity of citizenship, which requires every plaintiff to be a citizen of a different state from every defendant with more than $75,000 at stake.³ If neither door opens, subject matter jurisdiction is missing.

Rule 12(b)(2) attacks personal jurisdiction, meaning the court’s power to compel this particular defendant to defend in this particular state. The Fourteenth Amendment’s Due Process Clause sets the constitutional floor: the defendant must have “minimum contacts” with the forum state, and exercising jurisdiction must not offend basic fairness.⁴

You can raise both grounds in the same motion. Many defendants do.

Get the Timing Right

A defendant who has been formally served with the summons and complaint generally has 21 days to respond. If you waived formal service under Rule 4(d), the window extends to 60 days from when the waiver request was sent, or 90 days if you are outside the United States. A Rule 12(b) motion must be filed before you file your answer, or the defense must appear in the answer itself.¹

Filing the motion pauses the clock on your answer. If the court denies the motion, you have 14 days from notice of that decision to serve your answer.¹

The waiver rules are where defendants get burned. They cut in opposite directions for the two types of jurisdiction:

Personal jurisdiction is waivable. If you file a preliminary Rule 12 motion on some other ground and fail to include your personal jurisdiction objection, you have waived it permanently. Same result if you skip the motion and file an answer that does not raise the defense. Rule 12(h)(1) is unforgiving.
Subject matter jurisdiction can never be waived. The court must dismiss whenever the defect surfaces, at any stage, and you can raise it for the first time on appeal. The court will raise it on its own if the parties do not.⁵

The practical rule: if you have any personal jurisdiction argument, put it in your very first filing. There is no second chance.

What Goes in the Filing

Local rules vary by district, so check the specific court’s requirements before you file. That said, most federal courts expect the same core package.

A notice of motion identifying the motion, the rule under which it is brought (12(b)(1), 12(b)(2), or both), the relief requested, and the hearing date if the court schedules oral argument.
A memorandum of law setting out the legal argument. For a 12(b)(1) motion, you show that diversity is incomplete, the amount in controversy is not met, or no federal question is presented. For a 12(b)(2) motion, you demonstrate the defendant’s insufficient contacts with the forum state and connect the facts to the minimum contacts standard.
Supporting declarations or affidavits providing the sworn factual basis. These matter most for personal jurisdiction, covering where the defendant lives, where business decisions are made, whether there are offices or employees in the forum, and the extent of activity in the state.
A proposed order granting the motion, which many courts require so the judge can sign it if persuaded.
A certificate of service confirming that every other party received the papers. In courts using electronic filing, service on registered users happens through the system, but paper copies go to anyone not registered.

Evidence You Need to Gather

The evidence looks different depending on which rule you are invoking.

For a 12(b)(1) Subject Matter Challenge

If you are attacking diversity, you need proof of citizenship for every party. For individuals, that means state of domicile. For corporations, both the state of incorporation and the principal place of business. If any plaintiff shares citizenship with any defendant, complete diversity fails. You might instead challenge whether the amount in controversy genuinely exceeds $75,000.³

If you are arguing there is no federal question, you show that the complaint on its face does not arise under federal law. A dispute based purely on state contract or tort claims generally does not belong in federal court absent diversity.

For a 12(b)(2) Personal Jurisdiction Challenge

Personal jurisdiction motions are fact-intensive. Useful evidence includes declarations from company officers about where the business operates and where decisions are made, financial records showing the absence of forum-state revenue, and confirmation that the defendant has no offices, warehouses, or agents there. Travel records, email logs, and contract terms placing performance elsewhere all help show that any connection to the forum was incidental rather than the result of the defendant purposefully directing activity into the state.

Expect the plaintiff to counter with contracts negotiated or performed in the forum, marketing aimed at forum residents, physical presence like a regional office, or a pattern of sales into the state. The burden of establishing jurisdiction ultimately falls on the plaintiff, so the more concrete your denials, the harder their showing becomes.

How the Court Will Decide It

Courts analyze jurisdictional motions along two axes: whether the attack is facial or factual, and who carries what burden.

A facial attack argues that the complaint itself, even if every allegation is accepted as true, fails to establish jurisdiction. The court treats it as a pure legal question and takes the plaintiff’s factual statements at face value.

A factual attack goes further, contending that the jurisdictional allegations are actually wrong, and it comes in with outside evidence. When a factual attack is raised, the court looks beyond the complaint to affidavits, declarations, deposition testimony, and exhibits from both sides. The court no longer accepts the plaintiff’s allegations as true and can weigh conflicting evidence.

The party claiming jurisdiction, usually the plaintiff, carries the burden. In a facial attack, the plaintiff only needs to show that the complaint alleges facts that, if true, would support jurisdiction. In a factual attack, the plaintiff must prove jurisdictional facts by a preponderance of the evidence.⁶ When the jurisdictional facts overlap with the merits, courts often defer the final ruling rather than force the plaintiff to prove the case just to keep the courtroom open.

If the papers conflict on a key jurisdictional fact, the court has options. It can decide the motion on the papers, allow limited jurisdictional discovery, or hold an evidentiary hearing that functions like a focused mini-trial. Discovery is generally granted when the plaintiff can show a reasonable basis to believe it will produce facts supporting jurisdiction. Clearly frivolous jurisdictional claims do not earn discovery.

After the Ruling

If the motion is granted, the case is dismissed. Dismissal for lack of subject matter jurisdiction is almost always without prejudice, letting the plaintiff refile in a court with authority over the dispute. Dismissal for lack of personal jurisdiction is also ordinarily without prejudice, because the defect is about where the case was filed rather than the merits of the claim. A granted motion typically counts as a final judgment, so the plaintiff can appeal immediately.

Instead of dismissing, the court may transfer the case. Federal law allows a court that finds it lacks jurisdiction to transfer the action to another federal court where it could have been brought, if the transfer serves the interest of justice.⁷ A transferred case is treated as though it was originally filed in the receiving court on the date it was first filed, which protects the plaintiff from limitations problems.

If the motion is denied, the case continues. The defendant must serve an answer within 14 days of notice.¹ Denial does not permanently settle the issue. The defendant can preserve the objection and raise it again on appeal after final judgment. Denials of personal jurisdiction motions are generally not immediately appealable as interlocutory orders; the defendant usually must wait for final judgment, with only narrow exceptions.

Watch the Limitations Clock If You Win Dismissal

A without-prejudice dismissal preserves the right to refile, but it does not automatically stop the statute of limitations from running. In some situations the limitations period may expire while the original case was pending, barring the claim even though the dismissal was technically without prejudice.

Federal law offers narrow protection: when supplemental state-law claims are dismissed from federal court under 28 U.S.C. § 1367, the limitations period is tolled while the federal case was pending, plus 30 days after dismissal. That protection does not extend to every jurisdictional dismissal. If your case is dismissed on jurisdictional grounds, treat refiling as urgent and check the applicable limitations period immediately.

Transfer under 28 U.S.C. § 1631 avoids the problem entirely, because the case is treated as filed in the correct court from the beginning.⁷ When transfer is available, it is almost always preferable to dismissal for that reason alone. If you are drafting the motion, consider asking the court, in the alternative, to transfer rather than dismiss if it finds jurisdiction lacking; that request costs nothing and can save the case.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections
2
Office of the Law Revision Counsel. 28 USC 1331 – Federal Question
3
Office of the Law Revision Counsel. 28 USC 1332 – Diversity of Citizenship; Amount in Controversy; Costs
4
Legal Information Institute. US Constitution – 14th Amendment
5
Legal Information Institute. Subject Matter Jurisdiction
6
Legal Information Institute. Preponderance of the Evidence
7
Office of the Law Revision Counsel. 28 USC 1631 – Transfer to Cure Want of Jurisdiction