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Florida Motion to Dismiss

In Florida you move to dismiss under Fla. R. Civ. P. 1.140(b) within the 20-day answer window.

Introduction

In Florida, you challenge a complaint before answering by filing a motion to dismiss under Fla. R. Civ. P. 1.140(b). The rule lists seven defenses you may raise by motion at your option: lack of subject-matter jurisdiction, lack of personal jurisdiction, 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 the phrase failure to state a cause of action, not the federal failure to state a claim. The motion must be made before pleading. A defendant must serve an answer within 20 days after service of the original process and the initial pleading, so the motion shares that 20-day window. Serving it alters the clock: if the court denies the motion or defers it to trial, your responsive pleading is then due within 10 days after the court files its order. The motion must be in writing and state the grounds and the substantial matters of law specifically and with particularity. A new rule, Fla. R. Civ. P. 1.202, added a conferral duty for non-dispositive motions in 2025, but it expressly exempts a motion to dismiss for failure to state a claim and does not apply to pro se parties. Miss the window and you risk a default. DocDraft drafts a Florida-formatted motion from your facts, with attorney review available before you file.

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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.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT IN AND FOR ___________ COUNTY, FLORIDA [For claims of $50,000 or less, file in the COUNTY COURT for the county; see Fla. Stat. ch. 34.]

____________________________, Plaintiff,

v. Case No.: __________________

____________________________, Defendant. _______________________________/

DEFENDANT'S MOTION TO DISMISS

Defendant, ____________________, moves under Florida Rule of Civil Procedure 1.140(b) to dismiss the Complaint, and states the following grounds specifically and with particularity:

GROUNDS FOR DISMISSAL

[Select and state each ground that applies. Under Fla. R. Civ. P. 1.140(b), the following defenses may be made by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a cause of action; and (7) failure to join indispensable parties.]

  1. [e.g., The Complaint fails to state a cause of action upon which relief can be granted because ____________________.]

MEMORANDUM OF LAW

[State the substantial matters of law intended to be argued, specifically and with particularity, as required by Fla. R. Civ. P. 1.100(b) and 1.140(b). Set out the legal authority supporting each ground above.]

WHEREFORE, Defendant respectfully requests that this Court grant this Motion, dismiss the Complaint, and grant such further relief as the Court deems just.

CERTIFICATE OF CONFERRAL

[Conferral is not required for a motion to dismiss for failure to state a claim, and Fla. R. Civ. P. 1.202 does not apply when a party is pro se. If you choose to include this certificate, you may state: Conferral is not required prior to filing this motion under Fla. R. Civ. P. 1.202(c).]

Respectfully submitted,

[Signature] Printed Name: ____________________ Address: ________________________ Phone: __________________________ Email: __________________________ [If represented: Florida Bar No.: __________]

CERTIFICATE OF SERVICE

I certify that on _______, 20, a true and correct copy of the foregoing was served on ____________________ [name and address of opposing party or counsel] by ____________________ [e-service through the Florida Courts E-Filing Portal / mail / hand delivery].

[Signature]

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.

Frequently Asked Questions

Under Fla. R. Civ. P. 1.140(b), you file a written motion to dismiss before your answer is due, raising one or more of the seven enumerated defenses. The motion must state the grounds and the substantial matters of law specifically and with particularity, per Rule 1.100(b). File it with the clerk of the court where the case is pending and serve it on the opposing party. Serving the motion postpones your answer deadline until the court rules.

A defendant must serve an answer within 20 days after service of the original process and the initial pleading, under Fla. R. Civ. P. 1.140(a)(1). The motion to dismiss must be made before pleading, so it shares that 20-day window. The rule sets no separate fixed day-count for the motion itself. If the court denies or defers the motion, the responsive pleading is then due within 10 days after the court files its order.

A motion to dismiss filed in Florida's Circuit Court rests on Fla. R. Civ. P. 1.140(b). Its procedural grounds go to whether the action is properly mounted: jurisdiction over the subject matter or the person, improper venue, and the sufficiency of process or its service. The merits ground is failure to state a cause of action, Florida's phrasing of the federal failure-to-state-a-claim defense. A defendant may also move to dismiss for failure to join indispensable parties.

Generally no. Fla. R. Civ. P. 1.202, added in the 2025 amendments effective January 1, 2025, requires good-faith conferral before filing non-dispositive motions, but it expressly exempts a motion to dismiss for failure to state a claim and does not apply when either the movant or the nonmovant is unrepresented by counsel. A self-represented filer is therefore not required to confer before this motion. Check your court's local rules for any added requirements.

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, the responsive pleading must be served within 10 days after the court files its order. In practice that means you then file your answer to the complaint within that 10-day window unless the court sets a different time.

File in the trial court where the lawsuit is pending. 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 the summons and serve it on the other party. The motion is heard by the same court that has the action.