Florida Motion to Dismiss

Introduction

Key Things to Know

1. 1

   Florida's pre-answer challenge is a motion to dismiss under Fla. R. Civ. P. 1.140(b). The rule states that the listed defenses may be made by motion at the option of the pleader, made before pleading if a further pleading is permitted.

2. 2

   Rule 1.140(b) lists seven enumerated defenses you may raise by motion: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a cause of action, and failure to join indispensable parties. Florida uses cause of action, not the federal claim phrasing.

3. 3

   The motion shares the answer window. A defendant must serve an answer within 20 days after service of original process and the initial pleading (Fla. R. Civ. P. 1.140(a)(1)), and the motion must be made before that pleading is due. There is no separate fixed day-count for the motion itself.

4. 4

   Serving the motion tolls the answer clock. If the court denies the motion or postpones it until trial, your responsive pleading must be served within 10 days after the court files its order (Fla. R. Civ. P. 1.140(a)(3)).

5. 5

   You generally do not need to confer before this motion. Rule 1.202, added in the 2025 amendments effective January 1, 2025, requires good-faith conferral before non-dispositive motions, but it expressly exempts a motion to dismiss for failure to state a claim and does not apply when either party is pro se. Check your court's local rules for any additional conferral or proposed-order practice.

6. 6

   Failure to state a cause of action is ground (6) under Rule 1.140(b). The motion must state the grounds and the substantial matters of law intended to be argued specifically and with particularity (Fla. R. Civ. P. 1.100(b), 1.140(b)).

7. 7

   File in the trial court where the action is pending: County Court for claims up to $50,000 and Circuit Court for claims exceeding $50,000 (Fla. Stat. ch. 34). File with the clerk of the court named in your summons.

Florida Requirements for Motion to Dismiss

• File before your answer is due (20-day window)

  Under Fla. R. Civ. P. 1.140(a)(1), a defendant must serve an answer within 20 days after service of the original process and the initial pleading. A motion under Rule 1.140(b) must be made before pleading, so it shares this 20-day window. The rule sets no separate fixed day-count for the motion itself.

• Know the 10-day clock if the motion is denied

  Under Fla. R. Civ. P. 1.140(a)(3), serving the motion alters the answer clock. If the court denies the motion or postpones its disposition until trial, your responsive pleading must be served within 10 days after the court files its order.

• Raise only the enumerated Rule 1.140(b) defenses

  Fla. R. Civ. P. 1.140(b) lists seven defenses you may raise by motion: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a cause of action, and failure to join indispensable parties.

• Use the Florida phrasing: failure to state a cause of action

  The most common ground is ground (6) under Fla. R. Civ. P. 1.140(b), failure to state a cause of action. Florida uses this phrasing rather than the federal failure to state a claim. Identify the specific element of the claim that the complaint does not plead.

• State the grounds with particularity in writing

  Under Fla. R. Civ. P. 1.100(b), the motion must be in writing, state the grounds with particularity, and set forth the relief sought. Rule 1.140(b) further requires that the grounds and the substantial matters of law intended to be argued be stated specifically and with particularity. No statewide page limit or mandatory separate brief is set by the rules.

• Caption and document format per the Florida rules

  Caption the motion per Fla. R. Civ. P. 1.100(c)(2): court name, case number, the first party on each side, and the party filing plus the nature of the paper. Document-format rules such as letter size, font, and margins are in Fla. R. Gen. Prac. & Jud. Admin. 2.520. Check your court's local rules for any additional formatting or proposed-order practice.

• Conferral is generally not required for this motion

  Fla. R. Civ. P. 1.202, added in the 2025 amendments effective January 1, 2025, requires good-faith conferral before non-dispositive motions but expressly exempts a motion to dismiss for failure to state a claim (Rule 1.202(c)(6)) and does not apply when either party is unrepresented by counsel. A self-represented filer is not required to confer before this motion.

• File in the correct Florida trial court and serve the motion

  Under Fla. Stat. ch. 34, County Court handles claims up to $50,000 and Circuit Court handles claims exceeding $50,000. File the motion with the clerk of the court named in your summons and serve a copy on the opposing party, typically through the Florida Courts E-Filing Portal.