Motions Flashcards
What does a motion to dismiss do to the proceeding?
The filing of a motion to dismiss: suspends the time to file an answer until resolution of the motion; you have 20 days to file a motion to dismiss after the complaint is filed.
If the motion to dismiss is granted, the court will usually permit the plaintiff to amend the complaint or refile a new complaint
What is the standard of review for a motion to dismiss?
A motion to dismiss must be denied unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Thus, such motions are rarely granted.
Upon a motion to dismiss for failure to state a cause of action, the court must construe the complaint in a light most favorable to the plaintiff and assume all allegations are true
Defenses that are waived if not raised in Answer or Pre-Answer Motion
(1) no PJ,
(2) bad venue,
(3) insufficiency of process, and
(4) insufficiency of service of process (constitutional claims)
Discretionary Defenses
Can bring these at any time during the trial court action: (1) failure to state a c/a, (2) failure to join an indispensable party, and (3) an objection of failure to state a legal defense
However, the right to raise these defenses at trial is not absolute but is in the discretion of the judge.
Nonwaivable Defenses
SMJ is NEVER waivable
Before filing an answer, a defendant may file a motion challenging the sufficiency of the pleadings. Which motions can the defendant make?
- Motion to dismiss
- Motion for Judgment on the Pleadings
- Motion for More Definite Statement
- Motion to Strike
Motion for Judgment on the Pleadings
is analogous to a motion to dismiss for failure to state a claim; the only difference is timing → it is made after the pleadings and all motions related to pleadings are concluded.
This motion claims that based solely on the pleadings, the party is entitled to judgment as a matter of law
Motion for More Definite Statement
if the pleading is so vague or ambiguous that the party cannot reasonably respond
Motion to Strike
a party may move to strike from any pleading that is redundant, immaterial, impertinent or scandalous material
Filing a motion to strike does not toll the time to answer.
Florida also allows a verified motion to strike a sham pleading to be made any time before the cause is set for trial.
What is an impleader?
It is a Third-Party Complaint
Current defendant sues a new party/implores/forces him to join the current lawsuit
The cause of action must be for indemnity, subrogation, or contribution
What defenses does a new party that was added by an impleader?
The third-party defendant may assert any defenses it has against the defendant
Both the original plaintiff and the third party defendant may file claims against each other.
The third party defendant may assert defenses against the original plaintiff and also gets the benefit of any defenses the original defendant could have claimed even if the original defendant doesn’t do it
What is an intervention?
Is a device where a non-party enters the lawsuit on its own initiative
The non-party wishing to intervene must be in a position that the non-party will gain or lose by the judgment
An intervenor has the status of a party, but the intervention is subordinate to the main action
Interpleader
Where you are stuck in the middle → multiple parties have conflicting claims against you
The order of interpleader will require the stakeholder to deposit the funds or property with the court and be dismissed as a party, and entitled to reasonable attorney fees and costs
Amending a pleading
As a matter of course (absolute right), a pleading may be amended once a responsive pleading is served, answer, or a motion to dismiss
After the time period for amendment as of right has expired, a party must make a motion to amend the pleading → must ask the court to amend
An amended pleading is substituted for the former pleading.
