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Note: Florida Rules of Civil Procedure have been updated since this article was written. For up-to-date information always use SmartRules Guides.
Florida Circuit Court Motion to Dismiss
Use this At A Glance Guide to learn the Florida Rules of Civil Procedure related to bringing a motion to dismiss in Florida Circuit Courts. For more detailed information, please see the SmartRules Motion to Dismiss Guides for the court where your action is pending.
Must Be Filed Before Answer
Motions to dismiss pleadings are based on an allegation of failure to state a cause of action and are governed by Fla. R. Civ. P. 1.140. A motion to dismiss must be filed before the answer is filed. Motions to dismiss are substantively and procedurally distinct from voluntary and involuntary dismissals under Fla. R. Civ. P. 1.420
There are specific timing requirements for motions to dismiss after the commencement of the action and before the hearing. Select the appropriate jurisdiction in our Florida Motion to Dismiss guides for specific timing requirements.
Complaints that are dismissed under Rule 1.140 are typically dismissed “without prejudice,” with leave for the non-moving party to amend the complaint.
Body of Motion Requirements
The body of the motion must contain the required elements of the grounds for relief sought in the motion. This will vary according to substantive law and must be stated with particularity. Motions to dismiss are based on legal arguments and the court looks only at “the four corners” of the complaint to determine its sufficiency. As such, there is no evidence presented.
Failure to State Cause of Action
A motion to dismiss for failure to state a cause of action will be granted only if the movant establishes that the pleader has failed to properly plead all of the necessary elements of the particular claim. This hinges on the substantive law for the different elements of different causes of action. Motions to dismiss may be targeted at one or more than one count in a cause of action. The court looks at “the four corners of the complaint” in determining whether it is properly pled. Although not explicitly stated in the rule, the commentary to Rule 1.140 indicates that evidence, such as affidavits or testimony, is not permitted. Fla. R. Civ. P. 1.140
The authorities cited in this At A Glance Guide were current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.