January 24, 2024
If You Move to Dismiss Part of a Pleading, Do You Respond to the Rest?

Occasionally, I see good lawyers move to dismiss part of a pleading – maybe one or two counts of a five-count complaint or counterclaim – and simultaneously, needlessly, file an answer to the rest of the pleading “in an abundance of caution.” The good news is that, with just a couple of exceptions, you can throw caution to the wind and save your sinister pleading until after the court rules on your motion, rather than granting your opponent a free preview.

Rule 1.140(a)(3), Florida Rules of Civil Procedure, says:

“The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings must be served within 10 days after the filing of the court’s order or, if the court grants a motion for a more definite statement, the responsive pleadings must be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.”

Thus, if you move to dismiss part of a complaint, counterclaim, or cross-claim under Rule 1.140(b) (e.g. for failure to state a proper legal claim), or if you file a substantive motion to strike one or more affirmative defenses, attacking their legal merit, you can wait until the court rules on that motion before filing your responsive pleading (e.g. answer or reply).

The two exceptions under the tolling rule quoted above are (1) a motion for judgment on the pleadings and (2) a motion to strike “redundant, immaterial, impertinent, or scandalous matter from any pleading.” For those two motions, you must answer the pleading by the usual deadline even though the motion is pending.

Thus, in the typical situation when you move to dismiss only part of a pleading, there is no need to answer the rest of that particular pleading that is the subject of your motion, in an abundance of caution or otherwise, until the court rules on the motion.

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Published: January 24, 2024
Author: Bo Boatman
Categories : Uncategorized