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Arizona Legal Forms
Current Through The 2009 Update
Civil Procedure
Daniel J. McAuliffe[a0]
Rule
12. Defenses and Objections
Rule
12(b) How Presented; Motion to Dismiss
§ 12.11.Allegation of lack of jurisdiction over subject matter
Defendant alleges that this Court lacks jurisdiction over the subject matter of this action upon the grounds and for the
reason that this action concerns title and the right to possession of real property situated wholly outside the State of
Arizona and beyond this Court's jurisdiction.
Notes
Commentary
The defense that the Court lacks jurisdiction over the subject matter of the action is one that may be raised at any time.
Swichtenberg v. Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991); Hibbs ex rel. Arizona Dept. of
Revenue v. Chandler Ginning Company, 164 Ariz. 11, 790 P.2d 297 (App. 1990); Lightning A Ranch
Venture v. Tankersley, 161 Ariz. 497, 779 P.2d 812 (App. 1989); Carlson v. Brown, 118 Ariz. 387, 576
P.2d 1387 (App.1978).
The parties to an action cannot by consent confer on a Court subject matter jurisdiction which it otherwise would not
have. Guminski v. Arizona State Veterinary Medical Examining Board, 201 Ariz. 180, 33 P.3d 514 (App.
2001); Solomon v. Findley, 165 Ariz. 45, 796 P.2d 477 (App. 1990) . Mitchell v. Gamble, 207 Ariz. 364,
86 P.3d 944 (App. 2004); Satterly v. Life Care Centers of America, 204 Ariz. 174, 61 P.3d 468 (App.
2003); Rashedi v. General Board of Church of the Nazarene, 203 Ariz. 320, 54 P.3d 349 (App. 2002) ;
Subject matter jurisdiction is an issue of law to be resolved by the trial court, and appellate review of that determination is de
novo. Guminski v. Arizona State Veterinary Medical Examining Board; Harris v. Harris, 195 Ariz. 559, 991 P.2d
262 (App. 1999); Fairway Constructors v. Ahern, 193 Ariz. 122, 970 P.2d 954 (App. 1998) ; In re
Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 (App. 1994). An action for dissolution of marriage abates,
and the Superior Court loses subject matter jurisdiction over it, when one of the spouses involved dies before any order is
entered, other than one for a preliminary injunction. Van Emmerik v. Colosi, 193 Ariz. 398, 972 P.2d 1034 (App.
1998). In addition, a party's failure to resort to and exhaust available administrative remedies deprives the Superior Court of
jurisdiction to hear that party's claim. McNutt v. Department of Revenue, 196 Ariz. 255, 995 P.2d 691 (App.
1998). In determining whether exhaustion of administrative remedies is required, the court must first determine whether an
administrative agency has original jurisdiction over the subject matter of the action, as a litigant should not be required to
exhaust administrative remedies when such an effort would be futile. Moulton v. Napolitano, 205 Ariz. 506, 73 P.3d
637 (App. 2003). Once a court determines that it lacks subject matter jurisdiction, it has no authority to address the merits
of a case. Washburn v. Pima County, 206 Ariz. 571, 81 P.3d 1030 (App. 2003).
In federal court, an Indian plaintiff cannot bring an action against a non-Indian when a tribal court would also have
jurisdiction without first exhausting such recourse as is available in Indian courts. Astorga v. Wing, 211 Ariz. 139,
118 P.3d 1103 (App. 2005). This principle does not apply to proceedings in state court and, in instances where courts of
separate sovereigns have concurrent jurisdiction, the two courts may proceed simultaneously until one court reaches
judgment. Astorga, 118 P.3d at 1103. That first judgment will then have res judicata effect in the other proceeding.
Astorga, 118 P.3d at 1103. While an action may not be dismissed for failure to exhaust available tribal court remedies,
the Superior Court does have discretion to stay it and, in the exercise of that discretion, it is appropriate to give some degree
of deference to tribal courts that may have jurisdiction over a parallel proceeding. Astorga, 118 P.3d at 1103.
Arizona has adopted the doctrine of primary jurisdiction which determines whether a court or an administrative agency
should make the initial decision in a particular case. Wonders v. Pima County, 207 Ariz. 576, 89 P.3d 810 (App.
2004); Qwest Corp. v. Kelly (McMahon), 204 Ariz. 25, 59 P.3d 789 (App. 2002). Because it derives from the
constitutional mandate of the separation of powers, the doctrine applies when an initial decision by the judiciary could
interfere with the effective operation of an agency created by a co-equal branch of government. Coconino County v.
Antco., Inc., 214 Ariz. 82, 148 P.3d 1155 (App. 2006). The doctrine, which is distinct from the doctrine requiring
the exhaustion of available administrative remedies, is a discretionary rule created by the courts to effectuate the efficient
handling of cases in specialized areas where an administrative agency's expertise may be helpful. The doctrine of exhaustion
of administrative remedies determines when judicial review is available; the doctrine of primary jurisdiction determines who
should make the initial determination of the issues presented. Southwest Soil Remediation v. City of Tucson, 201
Ariz. 438, 36 P.3d 1208 (App. 2001). Both doctrines are techniques for sound judicial administration, rather than
questions bearing on the court's subject matter jurisdiction. Original Apartment Movers v. Waddell, 179 Ariz. 419,
880 P.2d 639 (App. 1993).
The First Amendment and the ecclesiastical abstention doctrine preclude civil courts from inquiring into ecclesiastical
matters. Rashedi v. General Board of Church of the Nazarene, 203 Ariz. 320, 54 P.3d 349 (App. 2002) .
Civil courts must accept the decisions of the highest adjudicatory bodies of religious organizations of hierarchical structure
on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. Id. The doctrine does not preclude a
civil court from adjudicating, however, a church-related dispute which can be resolved by applying neutral principles of law
without inquiry into religious doctrine and without resolving a religious controversy. Id.
An issue related to, but also quite distinct from, that of subject matter jurisdiction is that of “standing to sue.” In Arizona,
which does not have a “case or controversy” requirement such as is found in the federal constitution, the issue is not one of
constitutional dimension. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005); Fernandez v. Takata
Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005); Armory Park Neighborhood Ass'n v. Episcopal
Committee Servs., 148 Ariz. 1, 712 P.2d 914 (1985); Karbal v. Arizona Dept. of Revenue, 215 Ariz.
114, 158 P.3d 243 (Ct. App. Div. 1 2007) , review denied, (Oct. 30, 2007). Rather, the issue is approached as one
raising questions of judicial restraint, and courts will exercise that restraint to insure that the case is not moot and that the
issues will be fully developed by true adversaries. Id.; Blanchard v. Show Low Planning & Zoning Commission,
196 Ariz. 114, 993 P.2d 1078 (App.1999). Generally, to have standing, a plaintiff must have suffered injury in fact,
economic or otherwise, from the conduct complained of, and that injury must be distinct and palpable so that the plaintiff has
a personal stake in the outcome. Aegis of Arizona, L.L.C. v. Town of Marana, 206 Ariz. 557, 81 P.3d 1016
(App. 2003). If the issue is raised, however, the standing requirement will be waived only in exceptional circumstances.
Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005) ; Fernandez v. Takata Seat Belts, Inc., 210
Ariz. 138, 108 P.3d 917 (2005). Whether a party has standing to sue is a question of law which is reviewed on appeal
de novo. Schalkenbach Foundation v. Lincoln Foundation, Inc., 208 Ariz. 176, 91 P.3d 1019 (App. 2004).
A person aggrieved by a zoning decision of a legislative body or board may appeal that decision by special action to the
superior court. The plaintiff, however, must have suffered an injury in fact, economic or otherwise. Center Bay Gardens,
L.L.C. v. City of Tempe City Council 214 Ariz. 353, 153 P.3d 374 (App. 2007). General economic losses or
general concerns regarding aesthetics in the area without a particularized, palpable injury are not sufficient to confer
standing. Id.
Where a case has been removed to federal District Court because it is related to a pending bankruptcy, and is then
transferred to, but remanded by, the Bankruptcy Court, the Superior Court reacquires jurisdiction upon the entry of the order
of remand, and not when the order is mailed by the Bankruptcy Court clerk. Health for Life Brands v. Powley, 203
Ariz. 536, 57 P.3d 726 (App. 2002).
West's Key Number Digest
West's Key Number Digest, Courts 3
West's Key Number Digest, Pleading 87, 104
Legal Encyclopedias
C.J.S., Courts § 9
C.J.S., Pleading §§ 160 to 162, 179
[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Westlaw. © 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
1 AZ-LF § 12.11
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.12.Allegation of lack of jurisdiction over person
Defendant alleges that [he/she/it] was served with process in this action outside the State of Arizona, that [he/she/it] is
not and never has been a citizen or resident of the State of Arizona, that [he/she/it] has not personally or through agents
conducted any business in the State of Arizona or caused any event to occur in the State of Arizona giving rise to the
claims for relief asserted herein, and that this Court, accordingly, lacks personal jurisdiction over this defendant.
Notes
Commentary
The defense of lack of personal jurisdiction must be asserted by initial motion or pleaded in the answer or it is waived. It
cannot be asserted by a defendant who appears and seeks affirmative relief from the court. Martin v. Martin, 156 Ariz.
452, 752 P.2d 1038 (1988); National Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz. 434,
682 P.2d 439 (App.1984). See discussion in Section 6 of the Introduction to this Chapter.
West's Key Number Digest, Courts 10
West's Key Number Digest, Pleading 87, 104
Legal Encyclopedias
C.J.S., Courts §§ 39 to 40
C.J.S., Pleading §§ 160 to 162, 179

1 AZ-LF § 12.12
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.13.Allegation of improper venue
Defendants allege that they do not reside in the county in which this action has been instituted and that no provision of
A.R.S. § 12-401 authorizes this action to be brought in [Specify County where Action Brought].
Notes
West's Key Number Digest, Pleading 87, 104(2)
West's Key Number Digest, Venue 32(1)
Legal Encyclopedias
C.J.S., Pleading §§ 160 to 162, 179
C.J.S., Venue §§ 109 to 111

1 AZ-LF § 12.13
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.14.Allegation of insufficiency of process
Defendant alleges that the summons issued and served in this action is insufficient in that it is not signed by the Clerk of
the Court and fails to specify the time within which defendant is required to appear and defend.
Notes
Commentary
Insufficiency of process is based on the form of papers used to accomplish service. Schwartz v. Arizona Primary
Care Physicians, 192 Ariz. 290, 964 P.2d 491 (App. 1998). Insufficiency of service of process, on the other hand,
deals with the manner in which service was accomplished, which may result in a defendant not receiving actual notice of a
pending action. Id. That distinguishes it from insufficiency of process, which concerns itself solely with defects in the papers
themselves. Id.
West's Key Number Digest, Pleading 87
West's Key Number Digest, Process 152, 155
Legal Encyclopedias
C.J.S., Pleading §§ 160 to 162

C.J.S., Process §§ 93 to 94, 96 to 97

1 AZ-LF § 12.14
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.15.Allegation of insufficiency of service of process
Defendant alleges that service of process in this action was purportedly effected by leaving a copy of the summons and
complaint with a person resident at an address which was not defendant's dwelling house or usual place of abode, and
was, therefore, ineffective to confer jurisdiction over defendant.
Notes
Commentary
The insufficiency of service of process is waived, and cannot be asserted if the defendant answers on the merits without
pleading the defense. Montano v. Scottsdale Baptist Hospital Inc., 119 Ariz. 448, 581 P.2d 682 (1978).
Insufficiency of process is based on the form of papers used to accomplish service. Schwartz v. Arizona Primary Care
Physicians, 192 Ariz. 290, 964 P.2d 491 (App. 1998). Insufficiency of service of process, on the other hand, deals
with the manner in which service was accomplished, which may result in a defendant not receiving actual notice of a pending
action. Id. That distinguishes it from insufficiency of process, which concerns itself solely with defects in the papers
themselves. Id.

West's Key Number Digest, Process 153, 155
Legal Encyclopedias
C.J.S., Process §§ 94, 96 to 97

1 AZ-LF § 12.15
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.16.Allegation of failure to state a claim upon which relief can be granted
Defendant alleges that the Complaint, and each Count thereof, fails to state a claim upon which relief can be granted
against this answering defendant.
Notes
Commentary
The defense that the plaintiff's complaint fails to state a claim for relief is so basic that it cannot be waived. Mallamo v.
Hartman, 70 Ariz. 420, 222 P.2d 797 (1950). The Court can raise the issue sua sponte at trial even though the issue
has not been listed in the pretrial statement. Zuniga v. Tucson, 5 Ariz.App. 220, 425 P.2d 122 (1967). See
discussion in the Introduction to this Chapter and Comment to § 12.29, infra.

West's Key Number Digest, Pretrial Procedure 675
Legal Encyclopedias
C.J.S., Dismissal and Nonsuit §§ 74 to 81
C.J.S., Pleading §§ 159, 423, 495

1 AZ-LF § 12.16
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.17.Allegation of failure to join an indispensable party
This action to quiet title in plaintiff in the property described in the Complaint is subject to dismissal because plaintiff
has failed to join [Specify], to whom a portion of the property has been sold and who, therefore, has an interest in the
subject matter of this action that may leave the parties subject to inconsistent obligations and in whose absence complete
relief cannot be accorded among those already parties.
Notes
Commentary
The test for indispensability is a restrictive one. A party is deemed indispensable only where no judgment can be entered
that will do justice among the parties without injuring the rights of the absent party. King v. Uhlmann, 103 Ariz. 136,
437 P.2d 928 (1968). These issues are discussed more extensively in Section 12 of the Introduction to this Chapter and in
the Introduction to the Chapter of Forms under Rule 19, Ariz.R.Civ.P.
West's Key Number Digest, Parties 75
Legal Encyclopedias
C.J.S., Parties § 121

1 AZ-LF § 12.17
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.18.Motion for change of venue—General form
[Court Caption]
[Parties]
NO. ____________
MOTION FOR CHANGE OF VENUE
Assigned to the Honorable
[Designate Judge]
[(Oral Argument Requested)]
Defendant [Identify], by and through counsel undersigned, hereby moves the Court for a transfer of this action to the
Superior Court for [Specify] County, where defendant resides, on the grounds and for the reason that there is no
applicable provision of A.R.S. § 12-401 which permits this action to be brought in any other county. This Motion is
supported by the accompanying Memorandum of Points and Authorities and the Affidavit of [Identify] submitted
herewith, which are incorporated herein by this reference.
RESPECTFULLY SUBMITTED this ____________ day of ____________, 20___.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
Attorney for Defendant
[Identify]
[Service Certificate]
Notes
Commentary
The venue requirements for civil actions are set forth in A.R.S. § 12-401. The plaintiff has the option of bringing suit
in any county in which venue is proper. Cacho v. Superior Court, 170 Ariz. 30, 821 P.2d 721 (1991). When an
action is filed in a county where venue is improper, the Court in which it is filed nevertheless has jurisdiction of the
controversy. Mohave County v. James R. Brathovde Family Trust, 187 Ariz. 318, 928 P.2d 1247 (App.
1996). The defendant must contest venue by appropriate affidavit and request transfer to an appropriate county or the defect
is waived. A.R.S. § 12-404. Thus, when the adversary of the moving party fails to dispute under oath statements made in
the motion to transfer, the trial court has no choice but to transfer the action. Morgan v. Foreman ex rel. County of
Maricopa, 193 Ariz. 405, 973 P.2d 616 (App. 1999). The Superior Court is a single, unified trial court, separated
into divisions by county, and the transfer of a case filed in one division of the Superior Court to a Superior Court Judge
regularly assigned to another county does not represent an improper change of venue. Lerette v. Adams, 186 Ariz. 628,
925 P.2d 1079 (App. 1996). As a rule, venue generally lies in the county where a defendant resides unless the cause of
action falls within one of the nineteen (19) statutory exceptions listed in A.R.S. § 12–401. Amparano v. ASARCO,
Inc., 208 Ariz. 370, 93 P.3d 1086 (App. 2004). The exception in § 12–401(12) for real property actions, which
must be brought in the county where the real property is located, is based on the notion that that is more convenient for
witnesses and prevents more than one court from acting on title to real property. Amparano v. ASARCO, Inc., 208
Ariz. 370, 93 P.3d 1086 (App. 2004).
This statutory scheme was inconsistent with Rule 12(b)(3), as originally adopted, which contemplated seeking the
dismissal (rather than the transfer) of actions initially filed in an improper venue. The Rule was amended in 1961 to resolve
this conflict. The text of the amendment, and the accompanying State Bar Committee Note, make clear that a motion to
dismiss for improper venue is available only in those limited situations where the venue defect cannot be cured by transfer of
the action to another county.
The denial of a motion for change of venue is a nonappealable order that is appropriately reviewed by a petition for
special action. Behrens v. O'Melia (Behrens), 206 Ariz. 309, 78 P.3d 278 (App. 2003); Morgan v. Foreman ex
rel. County of Maricopa. Lakritz v. Superior Court, 179 Ariz. 598, 880 P.2d 1144 (App. 1994). In determining a
venue question, the Court looks to the allegations of the complaint, construing them liberally in favor of the plaintiff's choice
of venue. Id. The venue statutes either created limited venue choices for plaintiffs, or presumptively appropriate venues.
Maricopa County v. Barkley, 168 Ariz. 234, 812 P.2d 1052 (App. 1990). While appellate courts will generally
not interfere with a venue ruling in the absence of a clear abuse of the trial court's discretion, when a proper request for
change of venue is made, the trial court must direct the transfer of the case. Lakritz v. Superior Court; Maricopa County v.
Barkley.
Under A.R.S. § 12-406(B)(3), a trial court has discretion to order the transfer of a case from one county, where venue
is proper, to another county for “good and sufficient cause.” There is “good and sufficient cause” for directing such a transfer
so that the case can be consolidated with another case arising out of the same underlying event, because such a consolidation
will serve the interests of judicial economy, and will ensure that 100% of all damages are awarded, and no more, and
properly allocated among all parties at fault, as required by A.R.S. § 12-2506. Behrens v. O'Melia (Behrens), 206
Ariz. 309, 78 P.3d 278 (App. 2003).
A.R.S. § 12-408(A) entitles a party opponent of a county in a civil action to have venue of the action changed as a
matter of right from that county to some other county. Unlike changes of venue pursuant to A.R.S. § 12-406, for which a
moving party must show cause and as to which the trial court has discretion, changes of venue under A.R.S. § 12-408
require no showing other than that the county is an opposing party and there is no discretion not to order a transfer upon such
a showing. Yarbrough v. Montoya–Paez (Roberts Enterprises, Inc.), 214 Ariz. 1, 147 P.3d 755 (App.
2006). The transfer is not required to be to a county in which venue would have been proper under Section 12-401; nor is
the selection of the county to which to transfer the action governed by Section 12-407, which requires that transfer be to the
most convenient adjoining county. Yarbrough v. Montoya–Paez (Roberts Enterprises, Inc.), 214 Ariz. 1, 147
P.3d 755, 760, 761 (App. 2006). Rather, the selection of the transferee county is governed by Section 12-411, which
directs that transfer be to the most convenient county to which the objections of the parties do not apply or at least applicable.
Yarbrough v. Montoya–Paez (Roberts Enterprises, Inc.), 214 Ariz. 1, 147 P.3d 755, 762 (App. 2006).
West's Key Number Digest, Venue 58
Legal Encyclopedias
C.J.S., Venue §§ 224, 227, 231

1 AZ-LF § 12.18
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.19.Demand by state for change of venue
[Court Caption]
[Parties]
NO. ____________
DEMAND FOR CHANGE OF VENUE
[Designate Judge]
The State of Arizona [or other governmental defendant], by and through the Attorney General [or other counsel],
hereby demands, pursuant to the provisions of A.R.S. § 12-822(B), that the venue of this action be changed to the
Maricopa County Superior Court.
DATED this ____________ day of ____________, 20___.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
A.R.S. § 12-822(B) provides that, in an action against the State of Arizona, upon written demand of the Attorney
General, the venue of the action shall be changed to Maricopa County. To be effective, the demand must be in writing and
filed and served on or before the time for answer. The power to make such a demand may be delegated and exercised by a
private attorney specially retained by the State. State of Arizona v. Fenton, 163 Ariz. 174, 786 P.2d 1025 (App.
1989). The statute does not apply, however, to actions seeking judicial review of administrative rulings or actions. Cochise
County v. Borowiec, 162 Ariz. 192, 781 P.2d 1379 (App. 1989).
A change of venue to Maricopa County, pursuant to a demand made pursuant to A.R.S. § 12-822(B), does not
preclude a subsequent change of venue under A.R.S. § 12-406, but the party moving for such relief must produce
convincing evidence that Maricopa County is not a convenient venue. Dunn v. Carruth, 162 Ariz. 478, 784 P.2d 684
(1989).
West's Key Number Digest, States 200
Legal Encyclopedias
C.J.S., States § 315

1 AZ-LF § 12.19
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.20.Order for change of venue
[Court Caption]
[Parties]
NO. ____________
ORDER TRANSFERRING ACTION
This matter came on before the Court on defendant's Motion for Change of Venue, and the defendant having
satisfactorily established by affidavit that defendant does not reside in this County and the real property in issue is not
located in this County, and there being no provision of A.R.S. § 12-401 which would permit this action to be
maintained in this County;
IT IS, THEREFORE, ORDERED that this action be, and it hereby is, transferred to the Superior Court of [Specify]
County and the Clerk of the Court is hereby directed to transmit to the Clerk of the Superior Court of [Specify] County
all pleadings and other papers filed, and any transcripts of proceedings had, in this action.
DONE IN OPEN COURT this ____________ day of ____________, 20___.
[Signed]
___________________
Judge of the Superior Court
Notes
West's Key Number Digest, Venue 75
Legal Encyclopedias
C.J.S., Venue §§ 276 to 277, 279 to 281

1 AZ-LF § 12.20
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.21.Motion to dismiss—Forum non conveniens
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Name] herein, by and through undersigned counsel, hereby moves the Court for dismissal of the above-
entitled action on the grounds that, although the venue selected by plaintiff is nominally proper under A.R.S. § 12-
404, it would impose undue convenience, hardship and expense upon defendant [Name] to litigate this action in
[Identify Court in Which Action Pending], and both jurisdiction and venue would be proper in [Identify Alternative
Court], which would be a more convenient forum in which to litigate the present dispute. The grounds for this Motion
are more fully set forth in the accompanying Memorandum of Points and Authorities, and the Motion is also supported
by the accompanying Affidavit of [Identify Affiant], both of which are, by this reference, incorporated herein.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Name]
Notes
Commentary
A motion to dismiss for forum non conveniens is distinguishable from a motion for change of venue in that it assumes
that the venue selected for the action by the plaintiff is proper, but inconvenient. To obtain a dismissal based upon forum non
conveniens, the defendant must show that there is an alternative forum available to hear the case and that, on balance, that
alternative forum is a more convenient place to litigate the matter. The issue is one committed to the trial court's discretion
based on a balancing of several factors. The fact that one of the parties is a citizen of Arizona does not preclude dismissal.
While some deference should be given to the plaintiff's choice of forum, a forum that has no significant factual connection to
the underlying cause of action should not try the case. Coonley & Coonley v. Turck, 173 Ariz. 527, 844 P.2d
1177 (App. 1993).
West's Key Number Digest, Pretrial Procedure 551, 554
Legal Encyclopedias
C.J.S., Dismissal and Nonsuit §§ 49, 52 to 56, 58 to 62, 66

1 AZ-LF § 12.21
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.22.Motion to dismiss—Lack of jurisdiction over subject matter
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Name] herein, by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of
Rule 12(b)(1), Ariz.R.Civ.P., for dismissal of the above-entitled action on the grounds that this Court lacks jurisdiction
over the subject matter in that [Specify Claimed Jurisdictional Defect]. This Motion is supported by the accompanying
Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
Hibbs ex
The defense that the court lacks jurisdiction over the subject matter of the action may be raised at any time.
rel. Arizona Dept. of Revenue v. Chandler Ginning Company, 164 Ariz. 11, 790 P.2d 297 (App. 1990);
Carlson v. Brown, 118 Ariz. 387, 576 P.2d 1387 (App.1978). The parties to an action cannot by consent confer
upon a Court subject matter jurisdiction which it otherwise would not have. Guminski v. Arizona State Veterinary
Medical Examining Board, 201 Ariz. 180, 33 P.3d 514 (App. 2001) ; Solomon v. Findley, 165 Ariz. 45,
796 P.2d 477 (App. 1990). Where jurisdictional fact issues are not intertwined with fact issues that go to the merits of
the claims asserted, those jurisdictional issues are to be resolved by the trial court. In resolving those issues, the Court may
consider affidavits, depositions and exhibits, and does not thereby convert a motion to dismiss for lack of jurisdiction into a
motion for summary judgment. Mitchell v. Gamble, 207 Ariz. 364, 86 P.3d 944 (App. 2004); Satterly v. Life
Care Centers of America, 204 Ariz. 174, 61 P.3d 468 (App. 2003); Rashedi v. General Board of Church
of the Nazarene, 203 Ariz. 320, 54 P.3d 349 (App. 2002); Swichtenberg v. Brimer, 171 Ariz. 77, 828
P.2d 1218 (App. 1991). Where subject matter jurisdiction turns on a disputed issue of fact, and a party has had an
opportunity to be heard on that issue, a judgment entered by that Court cannot be attacked on that ground in a collateral
proceeding. Alegria v. Redcherries, 168 Ariz. 267, 812 P.2d 1085 (App. 1991). Subject matter jurisdiction is an
issue of law to be resolved by the trial court, and appellate review of that determination is de novo. Guminski v. Arizona
State Veterinary Medical Examining Board; Harris v. Harris, 195 Ariz. 559, 991 P.2d 262 (App. 1999); Fairway
Constructors v. Ahern, 193 Ariz. 122, 970 P.2d 954 (App. 1998); In re Marriage of Crawford, 180 Ariz.
324, 884 P.2d 210 (App. 1994). An action for dissolution of marriage abates, and the Superior Court loses subject
matter jurisdiction over it, when one of the spouses dies before any order is entered, other than one for a preliminary
injunction. Van Emmerik v. Colosi, 193 Ariz. 398, 972 P.2d 1034 (App. 1998). In addition, a party's failure to
resort to and exhaust available administrative remedies deprives the Superior Court of jurisdiction to hear that party's claim.
McNutt v. Department of Revenue, 196 Ariz. 255, 995 P.2d 691 (App. 1998). In determining whether
exhaustion of administrative remedies is required, the court must first determine whether an administrative agency has
original jurisdiction over the subject matter of the action, as a litigant should not be required to exhaust administrative
remedies when such an effort would be futile. Moulton v. Napolitano, 205 Ariz. 506, 73 P.3d 637 (App. 2003).
Once a court determines that it lacks subject matter jurisdiction, it has no authority to address the merits of a case.
Washburn v. Pima County, 206 Ariz. 571, 81 P.3d 1030 (App. 2003).
In federal court, an Indian plaintiff cannot bring an action against a non-Indian when a tribal court would also have
jurisdiction without first exhausting such recourse as is available in Indian courts. Astorga v. Wing, 211 Ariz. 139,
118 P.3d 1103 (App. 2005). This principle does not apply to proceedings in state court and, in instances where courts of
separate sovereigns have concurrent jurisdiction, the two courts may proceed simultaneously until one court reaches
judgment. Astorga, 118 P.3d at 1103. That first judgment will then have res judicata effect in the other proceeding.
Astorga, 118 P.3d at 1103. While an action may not be dismissed for failure to exhaust available tribal court remedies,
the Superior Court does have discretion to stay it and, in the exercise of that discretion, it is appropriate to give some degree
of deference to tribal courts that may have jurisdiction over a parallel proceeding. Astorga, 118 P.3d at 1103.
Arizona has adopted the doctrine of primary jurisdiction which determines whether a court or an administrative agency
should make the initial decision in a particular case. Wonders v. Pima County, 207 Ariz. 576, 89 P.3d 810 (App.
2004); Qwest Corp. v. Kelly (McMahon), 204 Ariz. 25, 59 P.3d 789 (App. 2002). Because it derives from the
constitutional mandate of the separation of powers, the doctrine applies when an initial decision by the judiciary could
interfere with the effective operation of an agency created by a co-equal branch of government. Coconino County v.
Antco., Inc., 214 Ariz. 82, 148 P.3d 1155 (App. 2006). The doctrine, which is distinct from the doctrine requiring
the exhaustion of available administrative remedies, is a discretionary rule created by the courts to effectuate the efficient
handling of cases in specialized areas where an administrative agency's expertise may be helpful. The doctrine of exhaustion
of administrative remedies determines when judicial review is available; the doctrine of primary jurisdiction determines who
should make the initial determination of the issues presented. Southwest Soil Remediation v. City of Tucson, 201
Ariz. 438, 36 P.3d 1208 (App. 2001). Both doctrines are techniques for sound judicial administration, rather than
questions bearing on the Court's subject matter jurisdiction. Original Apartment Movers v. Waddell, 179 Ariz.
419, 880 P.2d 639 (App. 1993).
Failure to comply with the former “claims statute,” A.R.S. § 12-821, was held not to be jurisdictional, and it was not
appropriate to raise the issue of failure to comply with the statute by a motion to dismiss for lack of subject matter
jurisdiction. Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990) ; Howland v. State of Arizona, 169
Ariz. 293, 818 P.2d 1169 (App. 1991). The requirement that a claim be submitted prior to instituting suit was held to
be more analogous to a statute of limitations, and properly raised by a motion to dismiss for failure to state a claim. Id. In
April 1993, the Arizona Legislature, as part of comprehensive “tort reform” legislation, repealed the former “claims statute”
and replaced it with a new A.R.S. § 12-821, which now simply prescribes a one-year statute of limitations for actions
against any public entity or public employee. In 1994, however, the Legislature adopted a new A.R.S. § 12-821.01, which
provides that persons with claims against a public entity or employee must file such claims with an authorized public official
within one hundred and eighty (180) days after the cause of action accrues. Cf.Clark Equipment Company v. Arizona
Property and Casualty Insurance Guaranty Fund, 189 Ariz. 433, 943 P.2d 793 (App. 1997). Such claims
remain subject to the one-year statute of limitations in A.R.S. § 12-821.
The First Amendment and the ecclesiastical abstention doctrine preclude civil courts from inquiring into ecclesiastical
matters. Rashedi v. General Board of Church of the Nazarene, 203 Ariz. 320, 54 P.3d 349 (App. 2002) .
Civil courts must accept the decisions of the highest adjudicatory bodies of religious organizations of hierarchical structure
on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. Id. The doctrine does not preclude a
civil court from adjudicating, however, a church-related dispute which can be resolved by applying neutral principles of law
without inquiry into religious doctrine and without resolving a religious controversy. Id.
An issue related to, but also quite distinct from, that of subject matter jurisdiction is that of “standing to sue.” In Arizona,
which does not have a “case or controversy” requirement such as is found in the federal constitution, the issue is not one of
constitutional dimension. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005); Fernandez v. Takata
Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005); Armory Park Neighborhood Ass'n v. Episcopal
Committee Servs., 148 Ariz. 1, 712 P.2d 914 (1985); Karbal v. Arizona Dept. of Revenue, 215 Ariz.
114, 158 P.3d 243 (Ct. App. Div. 1 2007) , review denied, (Oct. 30, 2007). Rather, the issue is approached as one
raising questions of judicial restraint, and courts will exercise that restraint to insure that the case is not moot and that the
issues will be fully developed by true adversaries. Id.; Blanchard v. Show Low Planning & Zoning Commission,
196 Ariz. 114, 993 P.2d 1078 (App.1999). Generally, to have standing, a plaintiff must have suffered injury in fact,
economic or otherwise, from the conduct complained of, and that injury must be distinct and palpable so that the plaintiff has
a personal stake in the outcome. Aegis of Arizona, L.L.C. v. Town of Marana, 206 Ariz. 557, 81 P.3d 1016
(App. 2003). Lack of standing is not a jurisdictional defect and will not bar consideration of the merits on appeal if the
issue is not raised. If the issue is raised, however, the standing requirement will be waived only in exceptional circumstances.
Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005) ; Fernandez v. Takata Seat Belts, Inc., 210
Ariz. 138, 108 P.3d 917 (2005). Whether a party has standing to sue is a question of law which is reviewed on appeal
de novo. Schalkenbach Foundation v. Lincoln Foundation, Inc., 208 Ariz. 176, 91 P.3d 1019 (App. 2004).
Where a case has been removed to federal District Court because it is related to a pending bankruptcy, and is then
transferred to, but remanded by, the Bankruptcy Court, the Superior Court reacquires jurisdiction upon the entry of the order
of remand, and not when the order is mailed by the Bankruptcy Court clerk. Health for Life Brands v. Powley, 203
Ariz. 536, 57 P.3d 726 (App. 2002).
Legal Encyclopedias

1 AZ-LF § 12.22
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.23.Order of dismissal—Lack of jurisdiction over subject matter
[Court Caption]
[Parties]
NO. ____________
ORDER OF DISMISSAL
This matter having come on before the Court on defendant's Motion to Dismiss, and the Court having considered the
memoranda of the parties and the arguments of counsel, and being fully advised in the premises, and it appearing that
this Court lacks jurisdiction over the subject matter of this action in that [Specify Jurisdictional Defect];
IT IS HEREBY ORDERED that this action be dismissed with prejudice, and defendant have and recover [his/her/its]
costs herein.
[Signed]
___________________
Notes
Commentary
See Comments to §§ 12.11 and 12.22, supra.
Legal Encyclopedias
C.J.S., Dismissal and Nonsuit § 79
C.J.S., Pleading § 511
C.J.S., Pleading § 508(3)

1 AZ-LF § 12.23
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.24.Motion to dismiss—Lack of jurisdiction over person
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Name] herein, by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of
Rule 12(b)(2), Ariz.R.Civ.P., for dismissal of the above-entitled action on the grounds that the Court lacks jurisdiction
over the person of defendant in that defendant is not now, and was not at any time material hereto, either a citizen or
resident of the State of Arizona, has not personally or through agents conducted any business in the State of Arizona or
caused any event to occur in the State of Arizona which gives rise to the claims for relief asserted herein. The grounds
for this Motion are more fully set forth in the accompanying Memorandum of Points and Authorities, and in the
Affidavits of [Identify] submitted herewith, which are incorporated herein by this reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
Although it is the defendant's obligation to raise the issue of whether the court has or may exercise jurisdiction over the
defendant, the burden of demonstrating the propriety of exercising personal jurisdiction is on the plaintiff. Coast to Coast
Marketing Co., Inc. v. G & S Metal Products Co., Inc., 130 Ariz. 506, 637 P.2d 308 (App.1981). The
issue of the extent to which an Arizona court will exercise extraterritorial jurisdiction over a nonresident defendant is
discussed more extensively in the Introduction to the Chapter of Forms under Rules 4, 4.1 and 4.2, Ariz.R.Civ.P.
When the issue of a lack of personal jurisdiction over a defendant is raised by motion, the plaintiff cannot simply rest on
the allegations of the complaint, but must come forward with facts that make a prima facie showing that the exercise of
jurisdiction is proper. Macpherson v. Taglione, 158 Ariz. 309, 762 P.2d 596 (App. 1988). Where resolution of
the jurisdictional issue involves disputed factual questions that are intertwined with the merits of the case, the trial court
should leave such jurisdictional questions for trial rather than determining them on a Rule 12 motion. Bonner v. Minico,
Inc., 159 Ariz. 246, 766 P.2d 598 (1988). See §§ 12.52, 12.53, infra. Where the underlying facts are undisputed,
however, a determination whether personal jurisdiction can properly be exercised is a question of law, which is reviewable
de novo.Morgan Bank v. Wilson, 164 Ariz. 535, 794 P.2d 959 (App. 1990) . Where the jurisdictional question
requires the resolution of factual issues that are not intertwined with the merits of the claims asserted, the resolution of those
issues is to be made by the trial court. Swichtenberg v. Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991). The
Court may consider affidavits, depositions and exhibits, and does not thereby convert the motion to dismiss into one for
summary judgment. Id.
Legal Encyclopedias

1 AZ-LF § 12.24
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.25.Order of dismissal—Lack of jurisdiction over person
[Court Caption]
[Parties]
NO. ____________
ORDER OF DISMISSAL
This matter came on before the Court on defendant's Motion to Dismiss for lack of personal jurisdiction and the Court
finds that the defendant has by Affidavit and otherwise established, and plaintiff has failed to controvert, the following
facts:
1. The defendant was served with process in this action by direct service of a copy of the summons and complaint,
pursuant to Rule 4.2(b), Ariz.R.Civ.P., upon an officer of defendant at its offices in [Specify].
2. The defendant is a corporation organized pursuant to the laws of the State of [Specify] and has its principal place of
business in [Specify].
3. The defendant has not directly, or through agents, conducted any business in the State of Arizona and has not
appointed an agent to receive service of process in this State.
4. The defendant did not directly, or through agents, cause any event to occur in Arizona which gives rise to the
plaintiff's claims for relief.
In light of the foregoing, defendant is not subject to suit in the State of Arizona, and this Court, accordingly, lacks
jurisdiction over the person of the defendant.
IT IS, THEREFORE, ORDERED that this action be dismissed as to defendant [Identify] for lack of personal
jurisdiction.
[Signed]
___________________
Notes
Legal Encyclopedias


1 AZ-LF § 12.25
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.26.Motion to dismiss or quash—Defective summons
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS OR TO QUASH PROCESS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, moves the Court to dismiss the above-entitled action,
pursuant to the provisions of Rule 12(b)(4), Ariz.R.Civ.P., or alternatively, to quash the summons issued and served
upon defendant on the grounds that it does not satisfy the requirements of Rule 4(b), Ariz.R.Civ.P. The grounds for
this Motion are more fully set forth in the accompanying Memorandum of Points and Authorities which is by this
reference incorporated herein.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
themselves. Id.
West's Key Number Digest, Process 157
Legal Encyclopedias
C.J.S., Process §§ 95 to 98

1 AZ-LF § 12.26
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.27.Order quashing defective summons
[Court Caption]
[Parties]
NO. ____________
ORDER QUASHING SUMMONS
This matter came on before the Court on defendant's motion to Dismiss or to Quash Service, and the Court finding that
the form of Summons served upon defendant fails to comply with the requirements of Rule 4(b), Ariz.R.Civ.P., in
that it fails to adequately advise defendant of the time within which defendant is required to appear and defend, and fails
to advise defendant that, in case of a failure to appear, judgment will be rendered by default in favor of plaintiff and
against defendant for the relief demanded in the Complaint;
IT IS ORDERED that the Summons, the service and the return thereon are hereby quashed.
[Signed]
___________________
Notes
Commentary
See Comment to § 12.26, supra.
Legal Encyclopedias

1 AZ-LF § 12.27
END OF DOCUMENT
Arizona Legal Forms
Civil Procedure
Rule
Rule
§ 12.28.Motion to dismiss or quash—Insufficient service
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS OR TO QUASH SERVICE
[Designate Judge]
pursuant to the provisions of Rule 12(b)(5), Ariz.R.Civ.P., or alternatively, to quash the return of service of process on
the grounds that, as is set forth in the defendant's Affidavit submitted herewith, the only service attempted upon
defendant was by leaving a copy of the Summons and Complaint at [Specify Location or Address], which is not
defendant's dwelling house or usual abode, with a person not authorized by appointment or law to receive service of
process on behalf of defendant. The grounds for this Motion are more fully set forth in the accompanying Memorandum
of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
A challenge to the sufficiency of service of process cannot be raised after answering the complaint on the merits without
expressly preserving it. Montano v. Scottsdale Baptist Hospital, Inc., 119 Ariz. 448, 581 P.2d 682 (1978) .
The defense is waived if the defendant appears and seeks affirmative relief in the action. National Homes Corp. v.
Totem Mobile Home Sales, Inc., 140 Ariz. 434, 682 P.2d 439 (App.1984) . If the true thrust of the motion is to
challenge the exercise of personal jurisdiction, it will be treated as a motion to dismiss asserting that defense. Pegler v.
Sullivan, 6 Ariz.App. 338, 432 P.2d 593 (1967). The return of service by the sheriff or duly appointed or registered
private process server may be impeached only by clear and convincing evidence. General Electric Capital Corporation
v. Osterkamp, 172 Ariz. 191, 836 P.2d 404 (App. 1992); Mayhew v. McDougall, 16 Ariz.App. 125, 491
P.2d 848 (1971); Phoenix Airport Travelodge v. Dolgin, 12 Ariz.App. 358, 470 P.2d 506 (1970).
themselves. Id.
Legal Encyclopedias

1 AZ-LF § 12.28
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.29.Motion to dismiss—Failure to state a claim
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
pursuant to the provisions of Rule 12(b)(6), Ariz.R.Civ.P., for failure of the complaint to state a claim upon which relief
can be granted in that [Specify Grounds]. This Motion is supported by the accompanying Memorandum of Points and
Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
The defense of failure to state a claim for relief is so basic that it cannot be waived. Mallamo v. Hartman, 70 Ariz.
420, 222 P.2d 797 (1950). The Court can raise the issue sua sponte at trial even though the issue has not been listed in
the pretrial statement. Zuniga v. Tucson, 5 Ariz.App. 220, 425 P.2d 122 (1967).
A motion to dismiss raising the issue at the initial pleading stage, however, is not favored, and sua sponte dismissals for
failure to state a claim are strongly disfavored. Acker v. Chevira, 188 Ariz. 252, 934 P.2d 816 (App. 1997). In
considering such a motion, all material allegations of the complaint are taken as true and read in the light most favorable to
the plaintiff. Fidelity Security Life Insurance Company v. State of Arizona, 191 Ariz. 222, 954 P.2d 580
(1998); Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 922 P.2d 308 (1996); Knoell v.
Cerkvenik-Anderson Travel, Inc., 185 Ariz. 546, 917 P.2d 689 (1996); Citizens' Committee for Recall of
Jack Williams v. Marston, 109 Ariz. 188, 507 P.2d 113 (1973); Sensing v. Harris, 217 Ariz. 261, 172
P.3d 856 (Ct. App. Div. 1 2007); Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216 (Ct.
App. Div. 1 2007); Harris v. Cochise Health Systems, 215 Ariz. 344, 160 P.3d 223 (Ct. App. Div. 2
2007); Galati v. America West Airlines, Inc., 205 Ariz. 290, 69 P.3d 1011 (App. 2003); McDonald v.
City of Prescott, 197 Ariz. 566, 5 P.3d 900 (App. 2000); Johnson v. McDonald, 197 Ariz. 155, 3 P.3d
1075 (App. 1999); Wigglesworth v. Mauldin, 195 Ariz. 432, 990 P.2d 26 (App. 1999); Walters v.
Maricopa County, 195 Ariz. 476, 990 P.2d 677 (App. 1999); Luchanski v. Congrove, 193 Ariz. 176, 971
P.2d 636 (App. 1998); Southwestern Paint & Varnish Co. v. Arizona Department of Environmental
Quality, 191 Ariz. 40, 951 P.2d 1232 (App. 1997), approved 194 Ariz. 22, 976 P.2d 872 (1999); Forum
Development v. Arizona Department of Revenue, 192 Ariz. 90, 961 P.2d 1038 (App. 1997) ; Mulleneaux
v. State of Arizona, 190 Ariz. 535, 950 P.2d 1156 (App. 1997) ; Acker v. Chevira; Buckelew v. Town of
Parker, 188 Ariz. 446, 937 P.2d 368 (App. 1996); Riddle v. Arizona Oncology Services, 186 Ariz. 464,
924 P.2d 468 (App. 1996); Tucson Airport Authority v. Certain Underwriters at Lloyd's London, 186
Ariz. 45, 918 P.2d 1063 (App. 1996). For that purpose, however, the prayer for relief is not considered to be part of
the complaint. Citizens Committee for Recall of Jack Williams v. Marston; Husky v. Lee, 2 Ariz.App. 129, 406 P.2d
847 (1965). Similarly, allegations that represent merely conclusions of law or unwarranted deductions are not credited.
Aldabbagh v. Arizona Dept. of Liquor Licenses, 162 Ariz. 415, 783 P.2d 1207 (App. 1989) . A motion to
dismiss, thus, tests the formal sufficiency of the allegations of a claim for relief; if a complaint is facially sufficient, but
unpled facts establish a legal bar to relief, then the appropriate motion is one under Rule 56. Moretto v. Samaritan
Health System, 190 Ariz. 343, 947 P.2d 917 (App. 1997).
The motion should not be granted unless it appears that the plaintiff would not be entitled to relief under any state of
facts susceptible of proof under the pleadings. Dressler v. Morrison, 212 Ariz. 279, 130 P.3d 978 (2006) ; Logan
v. Forever Living Products International, Inc., 203 Ariz. 191, 52 P.3d 760 (2002) ; Doe ex rel. Doe v.
State of Arizona, 200 Ariz. 174, 24 P.3d 1269 (2001) ; Veach v. Phoenix, 102 Ariz. 195, 427 P.2d 335
(1967); Sensing v. Harris, 217 Ariz. 261, 172 P.3d 856 (Ct. App. Div. 1 2007) ; Yes on Prop 200 v.
Napolitano, 215 Ariz. 458, 160 P.3d 1216 (Ct. App. Div. 1 2007); Airfreight Exp. Ltd v. Evergreen Air
Center, Inc., 215 Ariz. 103, 158 P.3d 232 (Ct. App. Div. 2 2007), review denied, (Jan. 8, 2008); Turley v.
Ethington, 213 Ariz. 460, 146 P.3d 1282 (App. 2006); Douglas v. Governing Board of Window Rock
Consolidated School District, 206 Ariz. 344, 78 P.3d 1065 (App. 2003); Capitol Indemnity Corp. v.
Fleming, 203 Ariz. 589, 58 P.3d 965 (App. 2002); Universal Marketing and Entertainment, Inc. v. Bank
One of Arizona, N.A., 203 Ariz. 266, 53 P.3d 191 (App. 2002) ; Widoff v. Wiens, 202 Ariz. 383, 45 P.3d
1232 (App. 2002); Kremser v. Quarles & Brady, L.L.P., 201 Ariz. 413, 36 P.3d 761 (App. 2001); Albers
v. Edelson Technology Partners L.P., 201 Ariz. 47, 31 P.3d 821 (App. 2001); Republic National Bank of
New York v. Pima County, 200 Ariz. 199, 25 P.3d 1 (App. 2001); Leal v. Allstate Insurance Company,
199 Ariz. 250, 17 P.3d 95 (App. 2000); Kosman v. State of Arizona, 199 Ariz. 184, 16 P.3d 211 (App.
2000); Recorp Partners, Inc. v. Gust Rosenfeld, P.L.C., 198 Ariz. 250, 8 P.3d 418 (App. 2000); Mulleneaux v. State of
Arizona; Acker v. Chevira; Buckelew v. Town of Parker; Riddle v. Arizona Oncology Services; Tucson Airport Authority v.
Certain Underwriters at Lloyd's London. If the deficiency in the complaint is one that can be cured by further pleading, the
motion should be denied or, if granted, the plaintiff should be given leave to amend. Sun World Corp. v. Pennysaver,
Inc., 130 Ariz. 585, 637 P.2d 1088 (App.1981); In re Cassidy's Estate, 77 Ariz. 288, 270 P.2d 1079
(1954).
The complaint must give the opponent fair notice of the nature and basis of the claim and indicate generally the type of
litigation involved, and its failure to do so will render it subject to dismissal for failure to state a claim upon which relief can
be granted. Cullen v. Auto-Owners Insurance Company, 218 Ariz. 417, 189 P.3d 344 (2008) . (In Cullen, the
Court expressly declined to adopt the more particularized pleading standard under the Federal Rules of Civil Procedure
articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 167 L.Ed.2d
929, 127 S. Ct. 1955 (2007).) Even under liberal notice pleading rules, a plaintiff's obligation to provide the grounds for
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
is not sufficient. Dube v. Likins, 216 Ariz. 406, 167 P.3d 93, 224 Ed. Law Rep. 408 (Ct. App. Div. 2 2007) ,
review continued, (Apr. 22, 2008). A wholly conclusory statement of a claim cannot survive a motion to dismiss simply
because the pleadings leave open the possibility that the plaintiff might later establish some set of undisclosed facts to
support a recovery. Dube, 216 Ariz. 406, 167 P.3d 93.
If the motion is supported by matters outside the pleadings, it is to be treated as a motion for summary judgment, unless
those extraneous matters neither add to nor subtract from the pleadings. Smith v. Payne, 156 Ariz. 506, 753 P.2d
1162 (1988); Brosie v. Stockton, 105 Ariz. 574, 468 P.2d 933 (1970); Recorp Partners, Inc. v. Gust Rosenfeld,
P.L.C., 8 P.3d 418 (Ariz.App. 2000); Barry & Sewall Industrial Supply Company v. Estate of Barry, 184 Ariz.
506, 910 P.2d 657 (App. 1996); Lasley v. Shrake's Country Club Pharmacy; Cella Barr Associates, Inc. v.
Cohen, 177 Ariz. 480, 868 P.2d 1063 (App. 1994); Colonial Tri-City Limited v. Ben Franklin Stores,
179 Ariz. 428, 880 P.2d 648 (App. 1993); Menendez v. Paddock Pool Construction Co.; Howland v. State of
Arizona, 169 Ariz. 293, 818 P.2d 1169 (App. 1991); Lawhon v. L.B.J. Institutional Supply, Inc., 159
Ariz. 179, 765 P.2d 1003 (App. 1988). Where the motion is to be treated as one for summary judgment, all parties
must be so advised by the Court and given a reasonable opportunity to present the facts to the Court. Gatecliff v. Great
Republic Life Insurance Company, 154 Ariz. 502, 744 P.2d 29 (App.1987); Parks v. Macro-Dynamics,
Inc., 121 Ariz. 517, 591 P.2d 1005 (App.1979), appeal after remand, 134 Ariz. 495, 657 P.2d 908
(App.1982); Davidson v. All State Materials Co., 101 Ariz. 375, 419 P.2d 732 (1966) ; Allison v. State,
101 Ariz. 418, 420 P.2d 289 (1966). If the motion is supported by factual affidavits which plaintiff fails to controvert,
the court may take the facts stated therein as true. Payne v. Pennzoil Corp., 138 Ariz. 52, 672 P.2d 1322
(App.1983). A contract that is central to a plaintiff's claim is not considered a matter outside the pleadings, and the trial
court does not turn a motion to dismiss into a motion for summary judgment by considering the terms and provisions of such
a contract. Cullen v. Koty-Leavitt Ins. Agency, Inc., 216 Ariz. 509, 168 P.3d 917 (Ct. App. Div. 2 2007),
review granted in part, (Apr. 22, 2008). When matters outside the pleadings are submitted in support of a motion to dismiss,
the trial court has discretion to decline to consider them, and thereby avoid turning the motion into one for summary
judgment. Cullen, 216 Ariz. 509, 168 P.3d 917.
Affirmative defenses may be raised as the basis for, and resolved upon, a motion to dismiss if the facts supporting them
appear on the face of the complaint. Sierra Madre Development, Inc. v. Via Entrada Townhomes Ass'n, 20
Ariz.App. 550, 514 P.2d 503 (1973); Industrial Commission v. Superior Court In and For Pima County,
5 Ariz.App. 100, 423 P.2d 375 (1967).
West's Key Number Digest, Pretrial Procedure 621 to 624
Legal Encyclopedias

1 AZ-LF § 12.29
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.30.Alternative motion—For dismissal or summary judgment
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS OR FOR SUMMARY
JUDGMENT
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, moves the Court for an order dismissing the above-entitled
action, pursuant to the provisions of Rule 12(b)(6), Ariz.R.Civ.P., on the grounds that the complaint fails to state a claim
upon which relief can be granted against defendant; or, in the alternative, granting summary judgment for the defendant
pursuant to the provisions of Rule 56, Ariz.R.Civ.P., on the grounds that there is no genuine issue as to any material fact
and that the defendant is entitled to judgment as a matter of law. This Motion is supported by the accompanying
Memorandum of Points and Authorities, and the Affidavits of [Identify] submitted herewith which are incorporated
herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
West's Key Number Digest, Judgment 183
West's Key Number Digest, Pretrial Procedure 621 to 624
Legal Encyclopedias
C.J.S., Judgments §§ 252, 254 to 257, 259, 267 to 268, 274

1 AZ-LF § 12.30
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.31.Order of dismissal for failure to state a claim

[Court Caption]
[Parties]
NO. ____________
ORDER OF DISMISSAL
This matter came on before the Court on defendant's Motion to Dismiss for failure to state a claim, and it appearing to
the Court that plaintiff has failed to allege in the Complaint the requisite elements of a cause of action for [Specify] as
against defendant;
IT IS HEREBY ORDERED as follows:
1. Defendant's Motion to Dismiss is hereby granted; and
2. Plaintiff shall have fifteen (15) days from the date of this Order within which to submit an Amended Complaint, and
defendant shall have ten (10) days following service thereof to answer or otherwise plead with respect to it; and
3. If Plaintiff fails or declines to amend the Complaint within such fifteen (15) day period, this action shall be dismissed
with prejudice.
[Signed]
___________________
Notes
Commentary
Legal Encyclopedias

1 AZ-LF § 12.31
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.32.Motion to dismiss—Failure to join an indispensable party
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS FOR FAILURE TO JOIN
INDISPENSABLE PARTY
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court for dismissal of the above-entitled
action, pursuant to the provisions of Rule 12(b)(7), Ariz.R.Civ.P., on the grounds that [Identify] is an indispensable party
who should be joined in this action under Rule 19(a), Ariz.R.Civ.P., and has not been made a party hereto. The
grounds for this Motion are more fully set forth in the accompanying Memorandum of Points and Authorities which is
incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
An absent party is deemed indispensable only where no judgment or decree can be entered that will do justice among the
parties present without injuring the rights of the absent party. King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928
(1968). The test for indispensability is discussed more extensively in Section 12 of the Introduction to this Chapter and in
the Introduction to the Chapter of Forms under Rule 19, Ariz.R.Civ.P.
Legal Encyclopedias
C.J.S., Dismissal and Nonsuit §§ 53, 64

1 AZ-LF § 12.32
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.33.Order of dismissal for failure to join an indispensable party
[Court Caption]
[Parties]
NO. ____________
ORDER OF DISMISSAL
This matter came on before the Court on defendant's Motion to Dismiss for failure to join an indispensable party, and the
Court having considered the briefs and arguments and being fully advised in the premises, finds as follows:
1. This is an action for specific performance of a contract for the sale of certain real property to plaintiff, and to quiet title
to such property in plaintiff; and
2. A portion of the property to which plaintiff seeks title has been sold and conveyed to [Identify], who has not been
made a party to this action;
3. The adjudication of plaintiff's claim of title in the absence of [Identify] may impair the interest of [Identify] in the
property in issue, and subject defendant to multiple and/or inconsistent obligations, such that [Identify] is a party who
should be joined in this action under Rule 19, Ariz.R.Civ.P.
IT IS, THEREFORE, HEREBY ORDERED as follows:
1. Defendant's Motion to Dismiss for failure to join an indispensable party is hereby granted; and
2. Plaintiff shall have fifteen (15) days from the date of this Order within which to submit either (1) an Amended
Complaint in which [Identify] shall be joined as an additional party defendant, or (2) a statement as to the reasons that
joinder of [Identify] is not feasible and an application that the action proceed among the present parties.
[Signed]
___________________
Notes
Commentary
Legal Encyclopedias


1 AZ-LF § 12.33
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.34.Motion to dismiss or stay—Prior pending action
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS OR STAY
[Designate Judge]
Defendant [Name] herein, by and through undersigned counsel, hereby moves the Court for dismissal of the above-
entitled action, on the grounds that the claims and issues in this action are identical to those presented in a presently
pending action previously commenced by Defendant [Name] in [Identify Court in Which Prior Action is Pending].
Alternatively, defendant [Name] requests that this Court stay all further proceedings in this action until the final
disposition of said prior pending action. The grounds for this Motion are more fully set forth in the accompanying
memorandum of Points and Authorities, which is by this reference incorporated herein.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Name]
Notes
Commentary
In the majority of situations where identical or related actions have been filed in different jurisdictions, the appropriate
remedy will be to order a stay, rather than a dismissal, of the later filed action. While the pendency of a prior filed action
sometimes operates to abate a subsequently filed action, such instances of abatement are limited to: (1) in personam actions
that are brought in the same jurisdiction, and (2) in rem and quasi-in-rem actions. Tonnemacher v. Touche Ross &
Company, 186 Ariz. 125, 920 P.2d 5 (App. 1996). That abatement rule does not apply to personal actions pending
in different jurisdictions. When related or identical actions are filed in different states, neither sovereign is required to yield to
the other. The same rule applies when the actions are filed in state and federal courts in the same state. Because state and
federal courts operate under different sovereigns, an action pending in federal court will not result in the abatement of an
identical or related action subsequently commenced in state court. The Superior Court, accordingly, has no authority to
dismiss such a subsequently filed action, but it does have the discretion to stay it. Id.
West's Key Number Digest, Abatement and Revival 8
Legal Encyclopedias
C.J.S., Abatement and Revival § 29

1 AZ-LF § 12.34
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.35.Motion to dismiss combining various defenses
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court for dismissal of the above-entitled
action, pursuant to Rule 12, Ariz.R.Civ.P., on the grounds that the complaint fails to state a claim upon which relief can
be granted and this Court lacks subject matter jurisdiction of the action. The grounds for this Motion are more fully set
forth in the accompanying Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Legal Encyclopedias
C.J.S., Pleading §§ 174, 202, 453

1 AZ-LF § 12.35
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.36.Motion to dismiss cross-claim—Combining various grounds
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS CROSS-CLAIM
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of Rules
12(b)(6) and 13(g), Ariz.R.Civ.P., for its Order dismissing the Cross-claim filed herein by [Identify Cross-claimant],
on the grounds that the Cross-claim does not arise out of the transactions and occurrences that are the subject matter of
this action and fails to state a claim upon which relief can be granted. The grounds for this Motion are more fully set
forth in the accompanying Memorandum of Points and Authorities which is incorporated herein by this reference.
RESPECTFULLY SUBMITTED this _______ day of ____________, 20___.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes

1 AZ-LF § 12.36
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.37.Motion to dismiss—Lack of capacity to sue
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves this Court for its Order dismissing the above-
entitled cause on the grounds that the named plaintiff is an infant and lacks the requisite capacity to sue. This Motion is
supported by the accompanying Memorandum of Points and Authorities, and the Affidavit of [Identify], which are
incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
The standards for capacity to sue in particular situations are set forth in Rule 17, Ariz.R.Civ.P., and are discussed in the
Introduction to the Chapter of Forms under that Rule. An infant or incompetent person may sue only through a duly
appointed representative or, if no representative has been appointed, by a next friend or guardian ad litem.
Legal Encyclopedias
C.J.S., Dismissal and Nonsuit §§ 53, 64 to 65

1 AZ-LF § 12.37
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.38.Motion to dismiss—Statute of limitations
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court to dismiss this action on the ground
that it was not commenced within [Specify] years after the alleged cause of action occurred, and is barred by the
provisions of [Cite Applicable Statute]. The grounds in support of this Motion are more fully set forth in the
accompanying Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
See Comment to Forms, § 8.61. The defense of the statute of limitations may be resolved on a motion to dismiss where
the allegations of the complaint show conclusively that the plaintiff's claim is barred. Ross v. Ross, 96 Ariz. 249, 393
P.2d 933 (1964); Manterola v. Farmers Insurance Exchange, 200 Ariz. 572, 30 P.3d 639 (App. 2001);
Engle Bros., Inc. v. Superior Court In and For Pima County, 23 Ariz.App. 406, 533 P.2d 714 (1975) .
When a complaint shows on its face that the cause of action is barred by the statute of limitations, the burden is on the
plaintiff to show that the running of the statute should be tolled. Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d
698 (App. 1993). Any factual questions raised by the motion, however, are to be resolved as are other disputed issues of
fact, by the jury rather than by the Court. Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990) . By reason of
A.R.S. § 12-510, the state and its political subdivisions are not subject to the running of the statute of limitations. Tucson
Unified School District v. Owens-Corning Fiberglas Corporation, 174 Ariz. 336, 849 P.2d 790 (1993);
Pima County v. State, 174 Ariz. 402, 850 P.2d 115 (App. 1992).
West's Key Number Digest, Limitation of Actions 180(7)
Legal Encyclopedias
C.J.S., Limitations of Actions § 275

1 AZ-LF § 12.38
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.39.Motion to dismiss—Statute of frauds
[Court Caption]
[Parties]
NO. ____________
MOTION TO DISMISS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves for dismissal of this action on the grounds that
the Complaint seeks to enforce a contract for the sale of an interest in real property, which was never reduced to writing
nor performed, in whole or in part, as is required by the provisions of A.R.S. § 44-101. This Motion is supported by
the accompanying Memorandum of Points and Authorities, and the Affidavit of [Identify], which are incorporated herein
by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
Although the Arizona Supreme Court has not had an opportunity to pass on the matter, certain federal courts, under
parallel rules, have permitted the statute of frauds to be asserted by a Rule 12(b) motion. Cf. e.g., Price v. Reynolds
Metals Co., 69 F.Supp. 82 (E.D.N.Y.1946); Butcher v. United Electric Coal Co., 174 F.2d 1003 (7th
Cir.1949). See also Comment to Forms, § 8.60.
Legal Encyclopedias

1 AZ-LF § 12.39
END OF DOCUMENT
Arizona Legal Forms
Civil Procedure
Rule
Rule
§ 12.40.Renewal of motion to dismiss original complaint as against amended complaint
[Court Caption]
[Parties]
NO. ____________
RENEWED MOTION TO DISMISS
[Designate Judge]
The plaintiff having filed and served an Amended Complaint pursuant to the Court's ruling on defendant's Motion to
Dismiss, defendant hereby renews and restates the prior Motion to Dismiss the above-entitled action on the grounds that
the Amended Complaint fails to state a claim upon which relief can be granted and, in support of this Renewed Motion,
incorporates by reference the prior Motion to Dismiss, the Memorandum of Points and Authorities which accompanied
it, and the Affidavits submitted therewith.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes

West's Key Number Digest, Pretrial Procedure 551, 695
Legal Encyclopedias
C.J.S., Pleading §§ 355 to 358, 510

1 AZ-LF § 12.40
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
12(c) Motion for Judgment on the Pleadings
§ 12.45.Motion for judgment on the pleadings
[Court Caption]
[Parties]
NO. ____________
MOTION FOR JUDGMENT ON THE PLEADINGS
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court for judgment as prayed for in
defendant's Answer on the grounds that the pleadings establish that plaintiff has failed to state a claim upon which relief
can be granted and defendant is entitled to judgment. The grounds in support of this Motion are more fully set forth in
the accompanying Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
A motion for judgment on the pleadings can test either the sufficiency of the complaint or of the answer. Mobile
Community Council for Progress v. Brock, 211 Ariz. 196, 119 P.3d 463 (App. 2005) ; Emmett
McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, 58 P.3d 39 (App. 2002). In considering such a
motion, all material allegations of the opposing party's pleadings are to be taken as true. Shannon v. Butler Homes,
Inc., 102 Ariz. 312, 428 P.2d 990 (1967); Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App.
1999); Boatman v. Samaritan Health Services, Inc., 168 Ariz. 207, 812 P.2d 1025 (App. 1990);
American Fed. SCME v. Lewis, 165 Ariz. 149, 797 P.2d 6 (App. 1990); Wenrich v. Household Finance
Corp., 5 Ariz.App. 335, 426 P.2d 671 (1967). The allegations of the answer, to which no response or reply is
required, are deemed denied. Neiderhiser v. Henry's Drive-In, Inc., 96 Ariz. 305, 394 P.2d 420 (1964); Food
for Health Co., Inc. v. 3839 Joint Venture, 129 Ariz. 103, 628 P.2d 986 (App.1981) . Unlike a motion raising
a defense enumerated in Rule 12(b), which is generally filed in response to a Complaint, a motion for judgment on the
pleadings is made after the pleadings are closed and is premature prior to that time. Colboch v. Aviation Credit Corp.,
64 Ariz. 88, 166 P.2d 584 (1946). On appeal from the entry of judgment on the pleadings, the facts are viewed in the
light most favorable to the party against whom judgment was entered. Napier v. Bertram, 191 Ariz. 238, 954 P.2d
1389 (1998).
A motion for summary judgment which is not accompanied by the separate statement of facts required by Rule 56(c)(2),
Ariz.R.Civ.P. is appropriately treated as a motion for judgment on the pleadings. Wieman v. Roysden, 166 Ariz. 281,
802 P.2d 432 (App. 1990).
Legal Encyclopedias

1 AZ-LF § 12.45
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.46.Motion in alternative—Judgment on the pleadings or for summary judgment
[Court Caption]
[Parties]
NO. ____________
MOTION FOR JUDGMENT ON THE PLEADINGS OR
FOR SUMMARY JUDGMENT
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court for judgment on the pleadings,
pursuant to Rule 12(c), Ariz.R.Civ.P., or for summary judgment, pursuant to Rule 56, Ariz.R.Civ.P., on the grounds
that the pleadings on file establish that there is no issue of material fact and defendant is entitled to judgment as a matter
of law. This Motion is based upon the pleadings on file in this action, the accompanying Memorandum of Points and
Authorities, and the Affidavits of [Identify] submitted herewith.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
See Comment to § 12.45, supra. A motion for summary judgment which is not accompanied by the separate statement
of facts required by Rule 56(c)(2), Ariz.R.Civ.P. is appropriately treated as a motion for judgment on the pleadings under
Rule 12(c), Ariz.R.Civ.P. Wieman v. Roysden, 166 Ariz. 281, 802 P.2d 432 (App. 1990).
Legal Encyclopedias
C.J.S., Judgments §§ 252, 254 to 257, 259, 267

1 AZ-LF § 12.46
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.47.Order granting judgment on the pleadings
[Court Caption]
[Parties]
NO. ____________
ORDER
This matter came on to be heard on defendant's Motion for Judgment on the Pleadings, and the Court, having considered
matters outside the pleadings presented to it and treating that Motion as a Motion for Summary Judgment, and being
fully advised in the premises, finds that all well-pleaded and material allegations in the plaintiff's pleadings, establish that
there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law.
IT IS, THEREFORE, ORDERED that defendant's Motion for Judgment on the Pleadings be, and it is, granted.
[Signed]
___________________
Notes
Commentary
West's Key Number Digest, Pleading 350(3)
Legal Encyclopedias
C.J.S., Judgments §§ 267, 270 to 271
C.J.S., Pleading §§ 727, 729, 731

1 AZ-LF § 12.47
END OF DOCUMENT
Arizona Legal Forms
Civil Procedure
Rule
Rule
§ 12.48.Judgment on the pleadings
[Court Caption]
[Parties]
NO. ____________
JUDGMENT
The Court having entered an Order dated [Month, Day, Year] granting defendant's Motion for Judgment on the Pleadings
based upon its finding that there is no genuine issue of material fact and defendant is entitled to judgment as a matter of
law;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this action be dismissed with prejudice and that
defendant have Judgment as against plaintiff and recover the costs of suit herein incurred.
[Signed]
___________________
Notes
Commentary
West's Key Number Digest, Judgment 187 to 188

Legal Encyclopedias
C.J.S., Judgments §§ 267 to 268, 270 to 271
C.J.S., Pleading §§ 727, 729, 731

1 AZ-LF § 12.48
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
12(d) Preliminary Hearings
§ 12.51.Motion for hearing and determination of defenses raised by answer
[Court Caption]
[Parties]
NO. ____________
MOTION FOR PRELIMINARY HEARING ON
DEFENSES
[Designate Judge]
Plaintiff [Identify], by and through undersigned counsel, hereby moves this Court, pursuant to the provisions of Rule
12(d), Ariz.R.Civ.P., for a hearing and disposition prior to trial of the defense asserted in paragraph [Specify] of
defendant's Answer that this Court lacks subject matter jurisdiction over this action, on the grounds that this issue should
be resolved before the parties are subject to the burden and expense of preparing for and conducting the trial of this
matter. The grounds for this Motion are more fully set forth in the accompanying Memorandum of Points and
Authorities which is incorporated herein by this reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
Attorney for Plaintiff
Notes
Commentary
See Comment to § 12.53, infra.
Legal Encyclopedias

1 AZ-LF § 12.51
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.52.Order deferring until trial hearing and determination of defenses raised by answer
[Court Caption]
[Parties]
NO. ____________
ORDER
Plaintiff having moved for a hearing and determination before trial of the issue raised in defendant's answer as to
whether the complaint states a claim upon which relief can be granted, and the Court finding that the determination of
that issue involves factual questions more appropriately deferred to, and considered at, the trial of this matter;
IT IS HEREBY ORDERED denying plaintiff's Motion for Preliminary Hearing.
[Signed]
___________________
Notes
Commentary
See Comment to § 12.53, infra.
Legal Encyclopedias
C.J.S., Pleading §§ 727, 729, 731

1 AZ-LF § 12.52
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.53.Order deferring until trial hearing and determination of defenses raised by motion to dismiss
[Court Caption]
[Parties]
NO. ____________
ORDER
Defendant [Identify] having moved to dismiss this action on the grounds that this Court lacks personal jurisdiction over
defendant, and the Court being of the opinion that the issue of whether defendant has caused an event to occur in this
State giving rise to plaintiff's claims is inextricably related to the merits of this action;
IT IS HEREBY ORDERED that the hearing of the aforesaid motion of the defendant [Identify], and the determination
thereof be deferred until the trial of this action;
IT IS FURTHER ORDERED that defendant [Identify] file and serve an answer to plaintiff's complaint within [Specify]
days from the date of service of a copy of this Order.
[Signed]
___________________
Notes
Commentary
Where jurisdictional issues involve disputed factual questions that are intertwined with the merits of the case, the trial
court should leave such questions for trial rather than determining them on a Rule 12 motion to dismiss. Bonner v.
Minico, Inc., 159 Ariz. 246, 766 P.2d 598 (1988). The same rule pertains where factual issues as to meeting the
statute of limitations are raised by motion. Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990) . Where
jurisdictional fact issues are present but are not intertwined with fact issues raised by the merits of the claims asserted, the
resolution of those issues is to be made by the trial court. Swichtenberg v. Brimer, 171 Ariz. 77, 828 P.2d 1218
(App. 1991). The Court may consider affidavits, depositions and exhibits, and does not thereby convert the motion to
dismiss into one for summary judgment. Id.

Legal Encyclopedias
C.J.S., Pleading §§ 727, 729, 731

1 AZ-LF § 12.53
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
12(g) Motion to Strike
§ 12.61.Motion to strike insufficient defense
[Court Caption]
[Parties]
NO. ____________
MOTION TO STRIKE DEFENSE
[Designate Judge]
Plaintiff [Identify] by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of Rule
12(g), Ariz.R.Civ.P., to strike from defendant's Answer [Identify, e.g., the defense designated “Second Affirmative
Defense,” or the defense alleged in paragraph], on the grounds that it is an insufficient defense as a matter of law to
plaintiff's claims herein. This Motion is based upon the accompanying Memorandum of Points and Authorities, which is
by this reference incorporated herein.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
Motions to strike portions of pleadings are not favored. Such a motion should not be granted unless it clearly appears that
the matter challenged can have no possible relation to the subject matter of the litigation and the moving party demonstrates
prejudice resulting from its retention. Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107
(1963). ; Blankenbaker v. Jonovich, 203 Ariz. 226, 52 P.3d 795 (App. 2002), vacated on other grounds 205
Ariz. 383, 71 P.3d 910 (2003). Denial of a motion to strike will be reviewed on appeal only for an abuse of discretion.
Birth Hope Adoption Agency v. Doe, 190 Ariz. 285, 947 P.2d 859 (App. 1997).
A motion to strike may not be used as a substitute for a motion to dismiss for failure to state a claim. Colboch v.
Aviation Credit Corp., 64 Ariz. 88, 166 P.2d 584 (1946). Similarly, the proper way to test the sufficiency of a
motion for summary judgment is by responding to it, not by moving to strike it, and a motion to strike a motion for summary
judgment that essentially challenges the merits of that motion is properly denied on that basis. Birth Hope Adoption Agency
v. Doe. Similarly, the issue of whether a will should be avoided because one of the beneficiaries helped prepare the will and
was engaged in the unauthorized practice of law is not properly raised by a motion to strike. In the Matter of the Estate
of Shumway, 197 Ariz. 57, 3 P.3d 977 (App. 1999), vacated on other grounds 198 Ariz. 323, 9 P.3d 1062
(2000). Such an issue goes to the merits of the petition to approve the will and should be raised by a motion for summary
judgment. Id.
Legal Encyclopedias

1 AZ-LF § 12.61
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.62.Order striking insufficient defense
[Court Caption]
[Parties]
NO. ____________
ORDER STRIKING DEFENSE
This matter having come on before the Court on plaintiff's Motion to Strike Defense, and the Court being of the opinion
that the defense to which said Motion is directed is, as a matter of law, an insufficient defense to plaintiff's claim of
[Specify], and good cause appearing therefor,
IT IS HEREBY ORDERED that [Identify, e.g., the defense designated “Second Affirmative Defense,” or the defense
alleged in paragraph ____________] be stricken from defendant's Answer herein.
[Signed]
___________________
Notes
Commentary

Legal Encyclopedias
C.J.S., Pleading §§ 626 to 627, 720 to 722, 730 to 731, 734 to 739, 743, 745

1 AZ-LF § 12.62
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.63.Motion to strike—Immaterial matter
[Court Caption]
[Parties]
NO. ____________
MOTION TO STRIKE
[Designate Judge]
Defendant [Identify], by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of Rule
12(g), Ariz.R.Civ.P., to strike from plaintiff's complaint herein the following allegations: [Specify allegations or
paragraphs to be stricken], on the grounds that they are immaterial and impertinent to the issues herein. This Motion is
supported by the accompanying Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
[Identify]
Notes
Commentary
Legal Encyclopedias

1 AZ-LF § 12.63
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.64.Order striking immaterial matter
[Court Caption]
[Parties]
NO. ____________
ORDER
This matter having come on before the Court on defendant's Motion to Strike, and the Court finding that the allegations
of the Complaint to which such Motion is directed are impertinent and immaterial to the issues in this case, and good
cause appearing therefor;
IT IS HEREBY ORDERED, pursuant to Rule 12(g), Ariz.R.Civ.P., striking from the Complaint the following
matters: [Specify Allegations to be Stricken].
[Signed]
___________________
Notes
Commentary
Legal Encyclopedias

1 AZ-LF § 12.64
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.65.Motion to strike—Impertinent or scandalous matters
[Court Caption]
[Parties]
NO. ____________
MOTION TO STRIKE
[Designate Judge]
Plaintiff [Identify], by and through undersigned counsel, hereby moves the Court, pursuant to the provisions of Rule
12(g), Ariz.R.Civ.P., to strike from defendant's Answer the following matters: [Specify Matters or Allegations to Be
Stricken], on the grounds that they are impertinent and scandalous, no relevant evidence is admissible in support thereof,
and they are calculated to unduly prejudice the jury against plaintiff. The grounds for this Motion are more fully set forth
in the accompanying Memorandum of Points and Authorities which is incorporated herein by reference.
[Signed]
___________________
[Typed Name]
[Firm Name]
[Address]
Notes
Commentary
Legal Encyclopedias

1 AZ-LF § 12.65
END OF DOCUMENT
Arizona Legal Forms

Civil Procedure
Rule
Rule
§ 12.66.Order granting motion to strike impertinent or scandalous matters
[Court Caption]
[Parties]
NO. ____________
ORDER
This matter having come on before the Court on plaintiff's Motion to Strike, and the Court, being fully advised in the
premises, finds that the allegations of the Answer to which such Motion is directed are impertinent and scandalous, that
any evidence admissible with respect thereto would not be probative of any issues in this case, and that it creates an
undue risk of prejudice to plaintiff were such allegations to remain;
IT IS, THEREFORE, ORDERED that plaintiff's Motion to Strike is granted, and that the following portions of
defendant's Answer be stricken: [Specify Allegations or Matters to Be Stricken].
[Signed]
___________________
Notes
Commentary
Legal Encyclopedias

1 AZ-LF § 12.66
END OF DOCUMENT

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Date/Time of Request: Wednesday, March 17, 2010 16:42 Central

Arizona Legal Forms

Current Through The 2009 Update

§ 12.11.Allegation of lack of jurisdiction over subject matter

West's Key Number Digest

West's Key Number Digest, Courts 3

West's Key Number Digest, Pleading 87, 104

C.J.S., Pleading §§ 160 to 162, 179

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.12.Allegation of lack of jurisdiction over person

West's Key Number Digest

West's Key Number Digest, Courts 10

West's Key Number Digest, Pleading 87, 104

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.13.Allegation of improper venue

West's Key Number Digest

West's Key Number Digest, Pleading 87, 104(2)

West's Key Number Digest, Venue 32(1)

C.J.S., Pleading §§ 160 to 162, 179

C.J.S., Venue §§ 109 to 111

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.14.Allegation of insufficiency of process

West's Key Number Digest

West's Key Number Digest, Pleading 87

West's Key Number Digest, Process 152, 155

C.J.S., Pleading §§ 160 to 162

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.15.Allegation of insufficiency of service of process

West's Key Number Digest

West's Key Number Digest, Pleading 87

C.J.S., Pleading §§ 160 to 162

C.J.S., Process §§ 94, 96 to 97

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.16.Allegation of failure to state a claim upon which relief can be granted

West's Key Number Digest

West's Key Number Digest, Pretrial Procedure 675

C.J.S., Dismissal and Nonsuit §§ 74 to 81

C.J.S., Pleading §§ 159, 423, 495

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.17.Allegation of failure to join an indispensable party

West's Key Number Digest

West's Key Number Digest, Parties 75

C.J.S., Parties § 121

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.18.Motion for change of venue—General form

West's Key Number Digest

West's Key Number Digest, Venue 58

C.J.S., Venue §§ 224, 227, 231

[FNa0] Snell & Wilmer, Phoenix, Member of the Arizona Bar.

Arizona Legal Forms

§ 12.19.Demand by state for change of venue

West's Key Number Digest

West's Key Number Digest, States 200

C.J.S., States § 315