State Court Motion to Dismiss

DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

(State of Florida — [Circuit / County] Court)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion to Dismiss

4. Memorandum of Law in Support
   4.1 Preliminary Statement
   4.2 Background / Procedural Posture
   4.3 Applicable Legal Standards
   4.4 Grounds for Dismissal and Argument

5. Request for Oral Argument

6. Conclusion and Prayer for Relief
7. Certificate of Good-Faith Conference (if required)
8. Certificate of Service
9. Proposed Order

1. CAPTION

IN THE CIRCUIT COURT OF THE [________________] JUDICIAL CIRCUIT
IN AND FOR [________________] COUNTY, FLORIDA

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

Hearing Date: [________________]
Hearing Time: [________________]
Courtroom: [________________]
Judge: Hon. [________________]
Courthouse: [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time], or as soon thereafter as the matter may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, Florida], before the Honorable [Judge Name], Defendant [Defendant Name] ("Defendant") will, and hereby does, move this Court for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to Fla. R. Civ. P. 1.140(b), on the following grounds:

1. Lack of jurisdiction over the subject matter (Rule 1.140(b)(1));
2. Lack of jurisdiction over the person (Rule 1.140(b)(2));
3. Improper venue (Rule 1.140(b)(3));
4. Insufficiency of process (Rule 1.140(b)(4));
5. Insufficiency of service of process (Rule 1.140(b)(5));
6. Failure to state a cause of action (Rule 1.140(b)(6)); and/or
7. Failure to join an indispensable party (Rule 1.140(b)(7)).

The motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[FLORIDA BAR NO. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [FAX]
[EMAIL]
Attorneys for Defendant [Defendant Name]

3. MOTION TO DISMISS

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Fla. R. Civ. P. 1.140(b)([________________]) for an order dismissing the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff"). In support of this Motion, Defendant relies upon the accompanying Memorandum of Law filed herewith.

4. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

4.1 Preliminary Statement

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel and pursuant to Fla. R. Civ. P. 1.140(b), respectfully moves this Court to dismiss the Complaint filed by [Plaintiff Name] ("Plaintiff") in its entirety. As set forth more fully below, [summarize grounds — e.g., the Complaint fails to invoke this Court's jurisdiction, does not state a cognizable cause of action, and was not properly served on Defendant].

4.2 Background / Procedural Posture

1. On [Date], Plaintiff filed a [________________]-count Complaint alleging [brief summary of claims].
2. Plaintiff effected purported service on Defendant on [Date] by [describe method].
3. Defendant's responsive pleading deadline is presently [Date] pursuant to Fla. R. Civ. P. 1.140(a)(1) (20 days after service). This Motion is therefore timely.
4. No discovery has commenced, and no case-management order has been entered.

4.3 Applicable Legal Standards

Motion to Dismiss Generally
Under Fla. R. Civ. P. 1.140(b), a defendant may, before filing an answer, assert certain defenses by motion. On a Rule 1.140(b)(6) motion, the Court must accept well-pleaded ultimate facts as true but need not accept legal conclusions. Conclusory allegations unsupported by ultimate facts warrant dismissal.

Lack of Subject-Matter Jurisdiction (Rule 1.140(b)(1))
A challenge under Rule 1.140(b)(1) may be raised at any time and must be decided prior to addressing the merits.

Insufficient Service of Process (Rule 1.140(b)(5))
Service must comply with Fla. Stat. ch. 48 and Fla. R. Civ. P. 1.070. Rule 1.070(i) requires service within 120 days after filing the initial pleading. Failure to perfect service within that period warrants dismissal without prejudice.

4.4 Grounds for Dismissal and Argument

A. Lack of Subject-Matter Jurisdiction (Fla. R. Civ. P. 1.140(b)(1))

B. Failure to State a Cause of Action (Fla. R. Civ. P. 1.140(b)(6))

C. Insufficient Service of Process (Fla. R. Civ. P. 1.140(b)(4)–(5))

5. REQUEST FOR ORAL ARGUMENT

Pursuant to [Local Rule or Administrative Order] and consistent with the Court's preferences, Defendant respectfully requests oral argument on this Motion. Defendant estimates [________________] minutes will be required. A separate Notice of Hearing will be filed and coordinated with Plaintiff's counsel and the Court's judicial assistant.

6. CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court:

1. Dismiss the Complaint in its entirety, or alternatively dismiss each deficient count;
2. Quash purported service of process and require proper service (if dismissal is not granted on other grounds);
3. Award Defendant its costs as permitted by law; and
4. Grant such other and further relief as the Court deems just and proper.

7. CERTIFICATE OF GOOD-FAITH CONFERENCE

Pursuant to [Local Rule] requiring counsel to confer before filing certain motions, the undersigned certifies that on [Date], he/she conferred with counsel for Plaintiff via [method]. The parties were unable to resolve the issues presented herein.

8. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on [Date], a true and correct copy of the foregoing was filed using the Florida Courts E-Filing Portal and served via the Portal's E-Service system in compliance with Fla. R. Jud. Admin. 2.516(b)(1) on all counsel of record.

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name]
[Florida Bar No. ________________]

9. PROPOSED ORDER

IN THE CIRCUIT COURT OF THE [________________] JUDICIAL CIRCUIT
IN AND FOR [________________] COUNTY, FLORIDA

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

THIS CAUSE came before the Court on Defendant's Motion to Dismiss (the "Motion"). Having considered the Motion, the record, argument of counsel, and being otherwise fully advised in the premises, it is hereby:

ORDERED AND ADJUDGED that:

1. The Motion is GRANTED.
2. The Complaint is DISMISSED [WITH / WITHOUT] PREJUDICE.
3. Plaintiff shall file any amended complaint within ______ days of the date of this Order.
4. [Alternative relief — e.g., Service of Process is QUASHED.]
5. The Clerk shall CLOSE this case if no amended pleading is filed within the time permitted.

DONE AND ORDERED in Chambers at [________________] County, Florida, this ______ day of ________________, 20____.

______________________________
CIRCUIT / COUNTY JUDGE

Copies furnished to: Counsel of Record