Motion to Dismiss
1Elements and Case Citations
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To determine the adequacy of a complaint, the trial court must accept all allegations as true and draw all reasonable inferences in favor of the pleader. City of Miami v. Cruz, 342 So.3d 741, 742 (Fla. 3d DCA June 22, 2022); Swerdlin v. Florida Municipal Ins. Trust, 162 So.3d 96 (Fla. 4th DCA 2014). The court’s review cannot exceed the complaint’s four corners and exhibits. Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry and Dry Cleaners, Inc., 296, So. 3d 584, 589 (Fla. 1st DCA 2020). Dismissal of a count or complaint is permissible only where all of the facts supporting an affirmative defense appear on the face of the complaint and conclusively establish that the count is barred as a matter of law. Schneiderman v. Baer, 334 So. 3d 326, 330 (Fla. 4th DCA 2022)(citing Garofalo v. Proskauer Rose LLP, 253 So. 3d 2, 5 (Fla. 4th DCA 2018)). In essence, the trial court must determine if the allegations of the complaint, when assumed to be true, would entitle the pleader to the relief sought.
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[/MM_Access_Decision] [MM_Access_Decision access='true']To determine the adequacy of a complaint, the trial court must accept all allegations as true and draw all reasonable inferences in favor of the pleader. City of Miami v. Cruz, 342 So.3d 741, 742 (Fla. 3d DCA June 22, 2022); Swerdlin v. Florida Municipal Ins. Trust, 162 So.3d 96 (Fla. 4th DCA 2014). The court’s review cannot exceed the complaint’s four corners and exhibits. Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry and Dry Cleaners, Inc., 296, So. 3d 584, 589 (Fla. 1st DCA 2020). Dismissal of a count or complaint is permissible only where all of the facts supporting an affirmative defense appear on the face of the complaint and conclusively establish that the count is barred as a matter of law. Schneiderman v. Baer, 334 So. 3d 326, 330 (Fla. 4th DCA 2022)(citing Garofalo v. Proskauer Rose LLP, 253 So. 3d 2, 5 (Fla. 4th DCA 2018)). In essence, the trial court must determine if the allegations of the complaint, when assumed to be true, would entitle the pleader to the relief sought.
Florida is a fact-pleading jurisdiction, not a notice-pleading jurisdiction. Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 681 (Fla. 5th DCA 2006). As such, a complaint must contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b). “Fla. R. Civ. P. 1.120(b) mandates that ‘[i]n all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with such particularity as the circumstances may permit.’ Failure to allege a specific element of fraud in a complaint is fatal when challenged by a motion to dismiss.” Strack v. Fred Rawn Const., Inc., 908 So. 2d 563, 565 (Fla. 4th DCA 2005)(citing Peninsular Fla. Dist. Council of Assemblies of God v. Pan Am. Inv. Dev. Corp., 450 So.2d 1231 (Fla. 4th DCA 1984)). In Strack, “the plaintiffs failed to allege all of the elements of fraudulent misrepresentation after having been given multiple opportunities to do so. [Therefore, the Appellate Court found] no error in the trial courts order dismissing the count for fraudulent misrepresentation.” Id. Additionally, “[a] motion to dismiss tests the legal sufficiency of the complaint and does not determine factual issues.” Gann v. BAC Home Loans Servicing LP, 145 So. 3d 906, 908 (Fla. 2d DCA 2014) (citing Florida Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006)).
FLORIDA STATE COURTS
Supreme Court: Boca Burger, Inc. v. Forum, 912 So.2d 561, 568 (Fla. 2005) (Granting original motion to dismiss and permitting the defendant to raise its preemption defense in the motion to dismiss); State v. Rodriguez, 523 So.2d 1141, 1142 (Fla. 1988) (Motion to dismiss denied due to insufficient oath).
First District: Barley v. Ward, 283 So.3d 1271 (Fla. 1st DCA 2019) (Denying motion to dismiss); Moise v. Disney Pop Century Resort, 244 So.3d 403, 406 (Fla. 1st DCA 2018) (Granting motion to dismiss).
Second District: Davis v. Mishiyev, 2022 WL 1482687, *4 (Fla. 2d DCA May 11, 2022) (Quashing the denial of the motion to dismiss); Travel Ins. Facilities, PLC v. Naples Cmty. Hosp., Inc., 330 So.3d 108, 112 (Fla. 2d DCA 2021) (Denying the motion to dismiss).
Third District: Diaz v. Bravo, 603 So.2d 106, 107 (Fla. 3d DCA 1992) (Reversing the grant of the motion to dismiss); District Bd. of Tr. of Miami Dade Coll. v. Verdini, 2022 WL 1099501, *6 (Fla. 3d DCA Apr. 13, 2022) (Granting the motion to dismiss).
Fourth District: Walsh v. Abate, 2022 WL 852321, *3 (Fla. 4th DCA Mar. 23, 2022) (Granting the motion to dismiss); Quintana v. People’s Trust Ins. Co., 335 So.3d 131, 132 (Fla. 4th DCA 2022) (Denying the motion to dismiss).
Fifth District: Lifestream Behavioral Ctr, Inc. v. Allerton, 327 So.3d 914, 915 (Fla. 5th DCA 2021) (Denying the motion to dismiss); Rogers v. State, 303 So.3d 1266, 1267 (Fla. 5th DCA 2020) (Granting the motion to dismiss).
Sixth District: Summerlin v. L3 Communications Integrated Sys., LP, 348 So. 3d 673, 677-78 (Fla. 1st DCA 2022).
2 Issues And Considerations
(1) Florida Rule of Civil Procedure 1.110 requires pleadings to set forth a claim for relief including, among other requirements, a short plain statement of the ultimate facts showing that the pleader is entitled to relief. Fla. R. Civ. P. 1.110(b) (emphasis added).
(2) Florida requires that litigants state pleadings with sufficient particularity for a defense to be prepared. Horowitz v. Laske, 855 So. 2d 169, 173 (Fla. 5th DCA 2003) (citing Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)).
(3) The complaint must set out the elements of an action and the facts that support them so that the court and the defendant can clearly determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla. 4th DCA 1999).
(4) Florida’s pleading rules force plaintiffs to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Continental Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994).
(5) If a motion to dismiss relies on facts or allegations outside of the complaint, the trial court must deny the motion because “the trial court must confine its review to the four corners of the complaint.” Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry and Dry Cleaners, Inc., 296 So. 3d 584, 589 (Fla. 1st DCA 2020).
(6) The affirmative defenses of res judicata, estoppel, and laches “are not properly raised by a motion to dismiss, but should be pled as part of the answer.” Diaz v. Bravo, 603 So.2d 106, 107 (Fla. 3d DCA 1992).
(7) “If a material fact is disputed, denial of the motion to dismiss is mandatory.” State v. Kalogeropolous, 758 So.2d 110, 112 (Fla. 2000).
(8) “An affirmative defense cannot be raised by a motion to dismiss if the motion requires the court ‘to consider matters outside the four corners of the complaint.’” Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry and Dry Cleaners, Inc., 296, So.3d 584, 589 (Fla. 1st DCA 2020) (citing Attias v. Faroy Realty Co., 609 So. 2d 105, 106 (Fla. 3d DCA 1992)).
(9) The phrase “to the best of my knowledge” being in the oath swearing to the facts in the motion to dismiss was insufficient because a defendant could use the phrase to escape conviction of perjury. State v. Rodriguez, 523 So.2d 1141 (Fla. 1988).
(10) “[F]iling of the notices for pretrial conference and case management conference precludes dismissal under Fla. R. Civ. P. 1.420(e).” Nie v. Beaux Gardens Assocs., Ltd., 923 So. 2d 1200, 1200 (Fla. 3d DCA 2006).
(11) A defendant does not submit to a court’s jurisdiction by filing a motion to dismiss. Pilawski v. Habel, 718 So. 2d 398, 398 (Fla. 4th DCA 1998).
(12) “[D]efenses to [an] action may not be considered in deciding a motion to dismiss.” Stucchio v. Huffstetler, 690 So. 2d 753, 754 (Fla. 5th DCA 1997) (citing Pizzi v. Central Bank & Trust Co., 250 So. 2d 895 (Fla.1971)).
(13) “[A]ffirmative defenses cannot be raised in a motion to dismiss unless the allegations of a prior pleading in the case demonstrate their existence.” Britt v. City of Jacksonville, 770 So. 2d 257, 257 (Fla. 1st DCA 2000) (quoting Byrd v. City of Niceville, 541 So.2d 696, 698 (Fla. 1st DCA 1989)).
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