The Defendant has filed a Motion to Dismiss against me. Will I get my day in Court? By Peter A. Dyson, Esq.

A Motion to Dismiss or an Order granting a Motion to Dismiss A Motion to Dismiss or an Order granting a Motion to Dismiss can mean a few different things. The good news is that most of the time, it is only a bump in the road, and you will be allowed to continue your case after updating your Complaint. I want to discuss with you the three most typical Motions to Dismiss.
Lawyer holding document and speaking to jury in courtroom
Defendants file Motions to Dismiss to attack your Complaint, or lawsuit. A lawsuit (Complaint) makes allegations to what the Defendant did wrong and what you want to right the Defendant’s wrongdoing.

Defendants file Motions to Dismiss to attack your Complaint, or lawsuit. A lawsuit (Complaint) makes allegations to what the Defendant did wrong and what you want to right the Defendant’s wrongdoing.  

The most common Motion to Dismiss happens when the Defendant claims that the lawsuit is not detailed enough or does not contain a specific language. Florida Rules of Civil Procedure 1.140 (e) controls that type of Motion. 

In that type of Motion to Dismiss, the Defendant says that it cannot respond to the Complaint because it is too vague or they do not understand the allegations. Your attorney may agree and amend the Complaint, or they may fight it in Court. 

You or your attorney only need to put a short and plain statement of facts in your Complaint under Florida Rule of Civil Procedure 1.110 (b). You do not need to plead every exact detail, just the ultimate truths that, if proven, get you to Trial. There is an old, but good, the case on that issue called Kislak vs. Kreedian, 95 So.2d 510 (Fla. 1957).

If the Court agrees and says the Complaint needs more detail, you should not worry. You and your lawyer get another chance and can amend or update the Complaint to put in the detail level required by the Court. While the Court did dismiss your Complaint, you have the opportunity to correct it and move forward. The effect is that it is only a delay in your case, and you will proceed after you make the corrections.

Sometimes a Defendant will try to dismiss a Complaint because they say it is not valid. When reading a Complaint, Defendants will accuse you and your lawyer of lying because they think the allegations are false. Again, there is usually nothing to worry about at this point.   

How does the Court respond to a Defendant claiming that the Complaint is not true? The short answer is that it usually does not matter. Neither does it matter whether the Defenses are true at this point, either. At this stage, a Judge does not have the information to figure out who is telling the truth. Getting that information is called discovery. 

The Courts ingeniously handle this dilemma. In deciding a Motion to Dismiss, the Court must treat all of the allegations as true. There are a lot of cases that address this including Adams v. Kent Insurance Company, 431 So.2d 335 (Fla. 4th DCA 1983); Hylazewski v. Wet ‘N Wild, Inc., 432 So.2d 1371, 1372 (Fla. 5th DCA 1983); and Kaufman v. A-1 Bus Lines, 363 So.2d 61 (Fla. 3rd DCA 1970)

Let us talk about one exception to that rule. One main limitation is that the allegations cannot contradict a document that is attached to the Complaint. Safeco Ins. Co. v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981). That makes sense. If you are suing because you claim that you are owed $10,000 a month, but the attached contract is for only $2,000 a month, there is a contradiction. The Court does not have to accept the claim for $10,000 a month as accurate. There are other exceptions also, but the truth of the matter is usually not decided at this beginning stage of a lawsuit. 

The second most common reason for a Motion to Dismiss is that the correct elements are not in the Complaint. What is an element? Every Count under a lawsuit has to contain specific allegations depending on the type of claim. For instance, in a disability lawsuit, one of the elements is that you have to have a disability. If you do not allege disability, your suit does not have a recognized cause of action. It is like saying the right words to cast a spell in the Harry Potter World. The spell does not work if you do not say the correct words.

The elements are all different depending on your type of case. 

You may still face a Motion to Dismiss if the facts of your case do not fit neatly with the elements or seek to change the law. One example is technology will change the law by changing the elements. Libel or publishing false information that damages a person’s reputation has elements. But what libel was 100 years ago is not what libel is today. The elements had to adapt because a publication had to expand to include the internet. The law had to adapt to the changing world. 

But sometimes the facts will not fit the law, and the Court will dismiss a Count or the entire case. If your attorney cannot ethically make the allegations because they are untrue, the Court will dismiss an individual Count or Complaint, and you will not have your day in Court on those issues. 

The third type, which does end the case, is a Motion to Dismiss for Fraud. This Motion is not filed at the beginning of a case but happens after depositions and written discovery. To prevent dismissal for fraud, tell the truth. That includes telling your attorneys the truth. It is that simple. If a Court grants the Defendant’s Motion to Dismiss for fraud, your case is over. 

A mistake or genuinely forgetting a fact is not enough to have your case thrown out for fraud. It is reserved for extreme circumstances when the whole process is tainted. It is not enough that there is a lie, factual inconsistency, or false statement. It has to corrupt the entire process. Because of that, it is very fact-specific whether a Court will grant the Motion to Dismiss for Fraud.

For the other side to win on a Motion to Dismiss for Fraud, they have to prove that you “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Duarte v. Snap-On, Inc., 216 So.3d 771 (Fla. 2d DCA 2017).

If you are facing this Motion, rely on your attorney’s advice. 

There are other reasons for a Motion to Dismiss, but these are the three most common ones.  

Except for a Motion to Dismiss for fraud, Motions to Dismiss are commonly blips or delaying tactics. You have to correct the lawsuit and move on.

If you need legal help, please contact the experienced trial attorneys at Dyson Law PLLC at

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