Motions to Dismiss

THE FOLLOWING IS FOR EDUCATIONAL PURPOSES ONLY - NO LAWYER CLIENT RELATIONSHIP EXISTS UNTIL I ACKNOWLEDGE IT IN WRITING AND I HAVE RECEIVED THE AGREED UPON RETAINER

Once a complaint has been filed, it is highly likely the Defense will file a motion to dismiss.  Motions to Dismiss essentially test whether the pleadings (complaint) are legally sufficient, and set forth a recognized cause of action in accordance with the Court Rules.  Most of the Rules governing a Motion to Dismiss are set forth by Fla.R.Civ.P. 1.140(b).  However, in a nutshell, the most common reasons a motion to dismiss are filed are the following:

1)  The Plaintiff has failed to attach necessary documents, i.e. the contract they are suing on, in violation of Fla.R.Civ.P. 1.130.  (Hence the complaint fails to state a cause of action).
2)  The Plaintiff has failed to state a cause of action, i.e. each cause of action has a number of required elements and the Plaintiff has failed to plead one or more of them.
3)  The Plaintiff alleges in his complaint allegations at odds with, and contradicted by, the documents he attaches.
4)  The Court lacks jurisdiction over the person or subject matter.
5)  Less commonly, motions to dismiss are filed based on lack of prosecution, improper service, failure to join a necessary party.

Generally, when the Court grants a motion to dismiss, the Plaintiff is given several further opportunities to amend their complaint, so the primary benefit of filing one is largely tactical.

A sample motion is set forth below:

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA

CASE NO.:  05-2008-CA-0XXXX-XXXX-XX

HEFFER RENTAL, INC.,

a Florida corporation,

            Plaintiff,

vs.

GREEN GRASS MULCH, FENCE & SOD,

INC., a Florida corporation,

Defendant.

___________________________________/

MOTION TO DISMISS

COMES NOW Defendant, GREEN GRASS MULCH, FENCE & SOD, INC., a Florida corporation, by and through its undersigned counsel, and pursuant to Fla.R.Civ.P. 1.140(b) and 1.130, hereby moves this Court to dismiss the complaint filed by Plaintiff for failure to state a cause of action, and in support thereof states as follows:

1.         Plaintiff alleges that Defendant executed an Application for Credit with Plaintiff, on or about April 17, 2007.  (Plaintiff’s Complaint, paragraph 4).  The Application for Credit is attached to the Complaint as Exhibit 1.

2.         Thereafter, Plaintiff alleges that it furnished equipment to Defendant, which was damaged while in Defendant’s care, and for which Defendant is liable.  (Plaintiff’s Complaint, paragraphs 5, 6 and 12).

3.         In support thereof, Plaintiff cites to Exhibit 1, the Application for Credit, which lists BOB DOE, a principal of Defendant, as the only authorized renter on Defendants account.

4.         However, Exhibit 2 shows that SCOTT LASTNAME signed for the equipment in question.  As noted on the Application for Credit, SCOTT LASTNAME is not an authorized renter on Defendant’s account.

5.         It is well settled that

“[a]ny exhibit attached to a pleading shall be considered a part thereof for all purposes,” Florida Rule of Civil Procedure 1.130(b), and that “[i]f an attached document negates the pleader's cause of action ... the plain language of the document will control and may be the basis for a motion to dismiss.” Health Application Sys., Inc. v. Hartford Life & Accident Ins. Co., 381 So.2d 294, 297 (Fla. 1^st DCA 1980); accord Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490 (Fla. 3^rd DCA 1994), cited in

Florida Farm Bureau General Ins. Co. v. Insurance Co. of North America, 763 So.2d 429 (Fla. 5^th DCA 2000).  See also  Fladell v. Palm Beach County Canvassing Bd., 772 So.2d 1240 (Fla. 2000)

6.                  In this instance, Exhibit 2 to the Complaint indicates that the equipment in question was rented to SCOTT LASTNAME.  Exhibit 1 indicates SCOTT LASTNAME was not authorized to rent equipment on Defendant’s account.  Accordingly, Plaintiff has failed to set forth a cause of action against Defendant.

WHEREFORE, Defendant respectfully requests that this Court grant this Motion, Dismiss Plaintiff’s Complaint and award Defendant costs and attorney’s fees, pursuant to the application for credit and F.S.A. 57.105.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Motion to Dismiss was furnished to MARK LAWYER, Esq., 2 Kennedy Road, Tampa, FL 33602 on this 19^th day of January, 2009. 

     By:   _________________________________________

                                                                        Michael B. Lesage

                                                            815 South Washington Ave

                                                                        Titusville, FL 32780

                                                                        321-269-6833                                                                                                                                        

                                                                        Florida Bar No.:  00xxxx

                                                                        Attorney for the Defendant