So you (or your client) have been served with a Complaint. What now? The first thing you should do is take stock of your time. The Rules provide that your responsive pleading must be filed within twenty (20) days of service. Failure to do so could subject you to a clerk default and ultimately default final judgment. So, first and foremost, take note of your time limitation. The second thing you should do is evaluate the Complaint to be sure that it states a claim for relief. There are a number of reasons why a Complaint might not state a claim. Here are a few:
- The Plaintiff has not joined an indispensable party. If you’re reading the Complaint and you notice that a party or person has not been named, you should consider moving to dismiss on these grounds. Remember an “indispensable” party is not merely someone who could be included; it is someone who must be included for full relief. For instance, a party to a contract that was allegedly breached would be indispensable to the action.
- The Complaint allegations contradict the attachments. If you’re reading the Complaint and you notice that the Complaint misrepresents, misinterprets or is simply contrary to documents, which are attached thereto – you should consider moving to dismiss on these grounds. Most frequently this arises in the context of breach of contract. It’s important to read the terms of all attachments to the Complaint. If those terms contradict what the Plaintiff has alleged, you have good grounds for dismissal.
- The Complaint does not allege ultimate facts. Although most attorneys believe Florida to be a “notice pleading” State. This is not the case. Florida is a fact pleading jurisdiction (one of the few remaining). Courts have repeatedly held that this standard “forces” counsel to “recognize the elements of their claims” and plead ultimate facts that support each and every element of the offense. If you see a Complaint with bare legal conclusions and no facts to support them – you should consider moving to dismiss on these grounds.
- The Complaint does not allege all elements of the cause of action. Similar to the ultimate fact grounds, you should always be sure that a Complaint states each element of a cause of action. For instance, if a breach of contract has been pled, but no contract (oral or written) has been alleged, the pleader has failed to state each element of its claim. If the Complaint is missing elements – you should consider moving to dismiss on these grounds.
- Affirmative defenses are apparent on the face of the Complaint. Although generally an affirmative defense must be pled in the answer, this rule is displaced where an affirmative defense is apparent on the face of the Complaint. Most commonly the statute of limitations is the defense that can be gleaned from the pleading. If in viewing the Complaint an affirmative defense is clear, without reference to documents or facts outside the four corners of the Complaint – you should consider moving to dismiss on these grounds.
- Shot gun pleadings. The Rules of Civil Procedure require that each cause of action be pled separately. Often times a Complaint will include either multiple parties or multiple causes of action under one heading, or have no headings at all to separate its claims. This is improper, and if you see it in a Complaint – you should consider moving to dismiss on these grounds.
- The Complaint fails to attach necessary documents. The Rules of Civil Procedure also require a party to attach documents on which their claims are based to the Complaint. For instance, a written breach of contract claim must attach the contract at issue to the Complaint. There is a limited exception where the Plaintiff alleges that the pertinent documents are not “in their possession” but will be available through discovery; note that this must be alleged in the Complaint. If you see a Complaint without pertinent documents attached – you should consider moving to dismiss on these grounds.
If any of the above issues are present you should move to dismiss the Complaint (in lieu of filing an Answer to it) under Rule 1.140(b), Florida Rules of Civil Procedure. In crafting your motion to dismiss, remember: the court may only consider facts, circumstances, claims, and documents that are alleged in the complaint or attached to the complaint. If you reference or assert new factual allegations – you’ve already lost the motion. Be sure to keep your allegations entirely in line with what the Plaintiff has already alleged.
In evaluating the Complaint, you should also be on the look out for: (a) possible motion to strike pertinent, scandalous or irrelevant matter under Rule 1.140(f); (b) possible motion to strike a sham pleading, where the Complaint is “good in form” but “false in fact”; (c) lack of subject-matter jurisdiction (complaint does not allege amount in controversy requirements or has been filed in the wrong court based on a statutory requirement); (d) lack of personal jurisdiction (your client is not subject to the jurisdiction of the court); and (e) improper service, or other service issues.
So, next time you are faced with the task of drafting a motion to dismiss, or evaluating your case to determine if one is necessary – keep these components and tricks in mind. Too busy to put it together? Give us a call today; we’d love to support your firm.