The New Hampshire motion to dismiss: lose the jurisdiction motion and you have 30 days to appeal it
New Hampshire procedure · Last verified August 17, 2026
New Hampshire's motion to dismiss carries two waiver rules that have no counterpart in the federal rules or in most states'. One of them is triggered by losing.
Lose, and the clock starts
Rule 9(e) begins generously and ends severely:
A party does not waive the right to file a Motion to Dismiss challenging the court's personal jurisdiction, sufficiency of process and/or sufficiency of service of process by filing an Answer or other pleadings or motions addressing other issues. However, a party who wishes to challenge the court's personal jurisdiction, sufficiency of process, and/or sufficiency of service of process must do so in a Motion to Dismiss filed within 30 days after he or she is served. If a party fails to do so within this time period, he or she will be deemed to have waived the challenge.
So far this is familiar: answering does not forfeit the objection, but thirty days from service does.
Then comes the part that surprises people:
If the trial court denies the Motion to Dismiss: (1) The party will be deemed to have waived the challenge if the party does not seek review of the denial by the supreme court within 30 days of the clerk's final written notice of the trial court's decision.
A denial is not something you preserve for the end of the case. Seek review within thirty days or the challenge is gone. A defendant who loses on personal jurisdiction and settles in to litigate, planning to raise the point on appeal from the final judgment, has waived it.
What happens next depends on the supreme court
Rule 9(e) then sets three different answer deadlines, and the one that applies turns on what the supreme court does with the appeal.
| Path | When the answer is due |
|---|---|
| No review sought | 30 days from the clerk's final written notice of the trial court's decision — and the challenge is waived |
| Appeal declined | 30 days after the date of the supreme court's final written notice declining the appeal |
| Appeal accepted and challenge rejected | 30 days after the date of the supreme court's final decision rejecting the challenge |
The middle row carries a saving clause worth knowing:
The supreme court's declining to accept the appeal does not preclude a party who has complied with this section from challenging the trial court's ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court.
Read the two provisions together and the scheme is coherent. Asking for interlocutory review is what preserves the point. Getting it is not required.
Eighteen defenses, waived if not raised
The second waiver rule is Rule 9(d), and it works differently: it puts affirmative defenses and the motion to dismiss on the same footing and the same clock.
Failure to plead as affirmative defenses or file a Motion to Dismiss based on affirmative defenses, including the statute of limitations, within the time allowed in section (b) of this rule will constitute waiver of such defenses. Affirmative defenses include the following: (1) accord and satisfaction; (2) arbitration and award; (3) assumption of risk; (4) contributory negligence; (5) duress; (6) estoppel; (7) failure of consideration; (8) fraud; (9) illegality; (10) injury by fellow servant; (11) laches; (12) license; (13) payment; (14) release; (15) res judicata; (16) statute of frauds; (17) statute of limitations; and (18) waiver.
Two things follow.
You may move to dismiss on an affirmative defense. Limitations, res judicata, release, accord and satisfaction — each is a proper ground for a New Hampshire motion to dismiss, not merely a defense to plead. That is broader than the federal Rule 12(b) list.
And either route has to be taken in time. The time allowed by section (b) is thirty days after service of the pleading requiring a response. Plead the defense or move on it; do neither within thirty days and it is waived.
The motion-to-dismiss route is set out in Rule 9(b), which also sets the answer deadline after a denial; responding to a New Hampshire complaint covers that provision and the rest of the answer rules.
Writing the motion
Rule 11(a) sets the form for every motion:
A request for court order must be made by motion which must (1) be in writing unless made during a hearing or trial, (2) state with particularity the grounds for seeking the order, and (3) state the relief sought.
Rule 11(b) then governs facts, and it applies to both sides:
The court will not hear any motion grounded upon facts, unless such facts are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties, their attorneys, or non-attorney representatives; and the same rule will be applied as to all facts relied on in opposing any motion.
A motion to dismiss for insufficient service — which turns on what the sheriff did, and where — needs an affidavit. So does the objection to it.
No concurrence certificate is required. Rule 11(c) obliges a moving party to certify a good-faith attempt to obtain concurrence, and then carves out exactly this kind of motion:
Any party filing a motion shall certify to the court that the party or counsel has made a good faith attempt to obtain concurrence in the relief sought, except in the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably assumed that the party or counsel will be unable to obtain concurrence.
Nobody concurs in their own dismissal, and the rule does not pretend otherwise.
Ten days to object — and ask for argument in the same breath
Rule 13(a) is short: "A non-moving party may object or otherwise respond to a motion within 10 days after filing thereof," unless the motion is for summary judgment or the court has set another deadline.
Ten days is fast. Diary it from the filing date, not from receipt.
Rule 13(b) is the one that decides whether anyone gets to speak:
Unless a party requests oral argument or an evidentiary hearing on any motion filed by the party, or on any objection thereto by another party, setting forth by memorandum, brief statement or written offer of proof the reasons why the oral argument or evidentiary hearing will further assist the court in determining the pending issue(s), no oral argument or evidentiary hearing will be scheduled and the court may act on the motion on the basis of the pleadings and record before it.
Silence means the motion is decided on the papers. And the request is not a line in the prayer for relief: it must set out why argument would assist the court. For an ordinary motion that request is due within ten days of the motion's filing.
One sentence at the end of Rule 13(b) protects a party who says nothing: "Failure to object shall not, in and of itself, be grounds for granting the motion." An unopposed motion to dismiss still has to be right.
When the hearing happens
Rule 12(d) puts a floor under the scheduling:
Upon request of a party, hearings on motions to dismiss shall be scheduled as soon as practicable, but no later than 30 days prior to the date set for trial on the merits, unless the court shall otherwise order in the exercise of discretion. All parties shall be prepared, at any such hearing, to present all necessary arguments.
Note the trigger — "upon request of a party." Left alone, a motion to dismiss can sit. And the last sentence means what it says: there is no expectation of supplemental briefing after the hearing, so bring every argument to it.
The three-year sweep
A different kind of dismissal sits in Rule 41, and it happens without anyone moving for it:
All cases which shall have been pending upon the docket for 3 years, without any action being shown on the docket other than being placed on the trial list, shall be marked "dismissed," and notice thereof sent to the parties or representatives who have appeared in the action.
Three years of docket inactivity, and the case is marked dismissed. Being on the trial list does not count as activity.
A short checklist
- Diary thirty days from service for any challenge to personal jurisdiction, process or service.
- Check the affirmative-defense list. Limitations, res judicata and release are motion grounds here, not merely pleaded defenses.
- Plead or move within thirty days — Rule 9(d) waives what you do neither with.
- State the grounds with particularity and say what relief you want; Rule 11(a) requires both.
- File affidavits for facts off the record, and expect the objection to be held to the same standard.
- Skip the concurrence certificate. Rule 11(c) exempts dispositive motions.
- Object within ten days, counted from filing.
- Ask for argument, with reasons, or the motion is decided on the papers.
- Request a hearing date if you want one before trial; Rule 12(d) acts on request.
- If you lose on jurisdiction, seek supreme court review within thirty days. Nothing else preserves the challenge.
Where these rules live
- N.H. Super. Ct. R. 9 — Answers; Defenses; Forms of Denials
- N.H. Super. Ct. R. 11 — Motions — General
- N.H. Super. Ct. R. 12 — Motions — Specific
- N.H. Super. Ct. R. 13 — Objections
- N.H. Super. Ct. R. 41 — Dismissal of Actions
- Responding to a New Hampshire complaint
- New Hampshire summary judgment
This page explains what the Superior Court rules say. It isn't legal advice, and the New Hampshire Circuit Court runs on its own separate rules that this page does not cover.