What Is a Motion to Dismiss?
A motion to dismiss asks the court to throw out a case, or certain claims, before trial — usually on the ground that even if everything the plaintiff alleges is true, there is a legal defect that prevents the case from proceeding. It tests the legal sufficiency of the complaint rather than the underlying facts.
Common Grounds in Florida
Under Florida Rule of Civil Procedure 1.140(b), defenses that can be raised by motion to dismiss include:
- Lack of jurisdiction over the subject matter or the person
- Improper venue
- Insufficient process or service of process
- Failure to state a cause of action — the most common ground
How the Court Decides
On a motion to dismiss for failure to state a cause of action, the court accepts the complaint's well-pleaded factual allegations as true and looks only within the four corners of the complaint. If the motion is granted, the court often allows the plaintiff leave to amend to fix the defect; dismissal "with prejudice" is reserved for defects that cannot be cured.
Related Terms
- Pleading — What a motion to dismiss challenges
- With Prejudice — A dismissal that bars refiling
- Cause of Action — What a complaint must state
Barnes Walker Litigation
Barnes Walker's litigation attorneys file and oppose motions to dismiss in Florida civil cases. Request a legal inquiry for assistance.
Florida Law Reference
Fla. R. Civ. P. 1.140(b)
Lists defenses that may be raised by motion to dismiss, including lack of jurisdiction, improper venue, insufficient service of process, and failure to state a cause of action.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC