Chapter 7-2 Motions to Dismiss

7-2 Motions to Dismiss

7-2:1 Introduction

A motion to dismiss should be filed to attack the form of a plaintiff's complaint. It is typically considered a pre-answer motion, meaning that it is not a pleading and further that a pleading need not be filed until after resolution of the motion to dismiss. A motion to dismiss, as a procedural mechanism, may be desirable for defendants, as it allows them additional time prior to filing a responsive pleading.

Motions to dismiss are designed to test whether a plaintiff has stated a cause of action within the four corners of the complaint.¹ If it is determined that the complaint states a cause of action, then the motion to dismiss should be denied.² The court is limited to review of the four corners of the complaint on a motion to dismiss, and is prohibited from considering extrinsic evidence.³ However, the court may consider exhibits annexed to the complaint and may reconcile the face of such exhibits with the allegations raised in the complaint. The court may also consider certain other grounds on a motion to dismiss, such as lack of jurisdiction.⁴ Where a motion to dismiss raises multiple grounds, a trial court may nevertheless enter an unelaborated order denying the motion, which could render each ground of the motion subject to further review.⁵

7-2:2 Common Grounds for Motions to Dismiss

Motions to dismiss are an ill-developed area of case law, because an order denying a motion to dismiss is not a final appealable order.⁶ However, the following arguments are frequently raised on motion to dismiss in foreclosure disputes. First, defendants will allege that a plaintiff has failed to comply with Florida Rule of Civil Procedure 1.130(a), by not incorporating certain documents in or attaching certain documents to the complaint.⁷ Rule 1.130(a) prohibits the annexation of unnecessary papers to a complaint. Further, the limitation in Rule 1.130(a) regarding "documents upon which action may be brought" limit the class of documents in a foreclosure dispute to those which provide contractually-binding duties and remedies.⁸ Even then, where an agreement, such as a short-form mortgage, refers to a part of itself which is recorded in the public records, only the short-form mortgage must be filed with the complaint.⁹

Additionally, motions to dismiss will often include arguments regarding whether a plaintiff has complied with conditions precedent or has failed to demonstrate its standing. Each of these issues presents an affirmative defense and should not be decided on a motion to dismiss.¹⁰ However, there is authority suggesting that foreclosure cases contain standing as an element of the cause of action.¹¹ With regard to standing, defendants may attempt to allege that a plaintiff is not the owner of the note at issue in the case. The requirement is for the plaintiff to be the holder of the note, without regard to ownership interest.¹² Unless the allegations of the complaint or its attachments negate a plaintiff's standing, a motion to dismiss on that ground should be denied.¹³

However, the following arguments are frequently raised on motion to dismiss in foreclosure disputes, and certain opinions have expressed a concern at trial as to whether a plaintiff owned the note.¹⁴ Moreover, because it is permissive for a plaintiff to allege that it owns the note and proceed upon the theory that enforcement may be had based on an ownership interest, defendants may raise the allegation that the plaintiff does not own the note, to narrow this issue early on in the litigation.¹⁵ With regard to allegations as to conditions precedent, a plaintiff is permitted to generally aver compliance and a defendant must then raise in the responsive pleading either a negative averment or an affirmative defense that plaintiff did not comply with a condition precedent.¹⁶ This negative averment or defense must be raised specifically and with particularity.¹⁷ Due to the fact that pleadings regarding compliance with conditions precedent fall under Florida's special pleading requirement, the averment by a defendant is treated as an affirmative defense, for which the defendant bears the burden of pleading and...