Frequently Asked Questions - What Is A Motion To Dismiss?
A motion to dismiss is a pleading that the defense attorney will file to try get your case or part of your case dismissed from the court.
Pursuant to Florida Rules of Civil Procedure 1.140 – a motion to dismiss is based on allegations of failure to state a cause of action. There are specific requirements as to when to file a Motion to Dismiss. If the Complaint or Petition was served on the Defendant, a Motion to Dismiss must be filed within 20 days of service and prior to an Answer being filed.
A motion to dismiss a Complaint must contain certain requirements and the relief sought must be in the Motion. A Motion to Dismiss is based on legal arguments and the Judge can only look at the words in the Complaint ("four corners of the complaint") – there is no evidence presented. Some complaints are just poorly written, lacks merit or does not provide a short and plain statement of the facts and/or a cause of action. The Complaint must set out the elements and the facts that support them so that the Court and the defendant can clearly determine what is being alleged in the complaint ("four corners of the complaint").
If a Motion to Dismiss is filed in your case, it is not the end of the world. Defense attorney's file Motions to Dismiss all the time. Many times the motion to dismiss is filed as a stall tactic for the defendant. If a Motion to Dismiss has been filed the case does not move forward until there has been a hearing on the Motion to Dismiss. If a Judge rules that the Complaint filed does not state a cause of action, or lacks merit, etc., the Judge will allow the Plaintiff's attorney to file an Amended to Complaint to correct the facts within the "four corners of the complaint".
There is another type of Motion to Dismiss that could be filed later on in the case which could have serious consequences. This Motion is called Defendant's Motion to Dismiss based upon Fraud to the Court. This Motion to Dismiss is filed after the defense attorney has the Plaintiff's Answers to Interrogatories, which are a series of questions regarding your accident, your medical history, employment, criminal background, etc. Once the questions have been completed and sent to the defense attorney, shortly thereafter your deposition will be scheduled. The defense attorney now has a chance to ask you all these questions in person (your attorney will be there with you). The interrogatories and depositions are called the "discovery process" of your case. It is usually after the discovery process that the Defendant files a Motion to Dismiss based upon Fraud on the Court.
I will you give a sample as to why the defendant filed a Motion to Dismiss based upon Fraud.
The Plaintiff answered the interrogatories and had his deposition taken. The Plaintiff failed to disclose that he had prior treatment for his back from a previous accident. This was asked of him in the interrogatories and he did not disclose it and then was asked several times at his deposition - did he ever have a prior accident; did he ever have any prior treatment – he said no. The Plaintiff had many chances to correct his answer but he didn't.
Defendant filed a Motion to Dismiss based upon Fraud on the Court which in summary stated:
Plaintiff deliberately provided false and deceitful testimony regarding her prior treatment history, prior injuries, and prior motor vehicle accident history to set in motion some unconscionable scheme to interfere with the judicial system's ability impartially to adjudicate a matter. This deliberate and dishonest conduct far predated Plaintiff's deposition as he failed to provide his medical treatment providers related to this automobile accident with an honest representation of his prior medical issues and prior accident. Not only did the dishonest begin prior to the filing of this lawsuit, but it went well beyond his deposition testimony, and even after being confronted with these prior treatments and complaints, the Plaintiff continued the calculated scheme by providing deceitful testimony.
The statement above asserted by the Defendant really makes the Plaintiff look like a liar. However, sometimes a Plaintiff simply may have just forgotten about prior treatment or accident and was not intentionally trying to hide information.
It is important to note that the insurance companies have a data base that gives them access to any prior claims you may have had. So, if you’re having your deposition taken and the defense attorney asks you about any prior accidents, slip and falls and/or worker’s compensation claims, just to name few – that attorney has all the information even before you answer the question.
If you have a personal injury claim and your attorney files suit in your case, your attorney will discuss how important it is to try to remember every injury and every type claim you have ever been involved in to avoid a Motion to Dismiss based upon Fraud being filed.
Just because the Defendant files a Motion to Dismiss based upon Fraud on the Court does always mean that they will win this argument. If your attorney feels that the Defendant’s Motion to Dismiss based upon Fraud upon the Court, just does not have any merit based on facts, your attorney will aggressively fight this Motion. There would be a hearing in front of Judge and there must be clear and convincing evidence of a scheme calculated to evade the facts, not just poor memory or recollection by the Plaintiff.
However, if the Motion to Dismiss based upon Fraud is granted it could have serious repercussions on the Plaintiff. Not only would the Plaintiff’s personal injury case be dismissed, and the Plaintiff not receive any money, the Plaintiff could owe the Defendant’s attorney’s fees and costs.
No Motion to Dismiss filed is good, but they can be beat by our attorneys. If you find yourself in a lawsuit for your injuries it is important to talk to your attorney and understand all the different phases of your case and the importance of how to handle prior injuries or prior accidents.