Written by attorney Dana Elaine Quigley

Florida - The Court's Consideration of a Motion to Dismiss - Generally

Motions to Dismiss – Generally

A motion to dismiss for failure to state a cause of action should allege that the pleading in question fails to adequately state any legal recognizable cause of action that can be the basis for the relief sought. (Fox v. Professional Wrecker Operators, Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)); it is to raise nothing more than the sufficiency of the pleading and the court must confine itself strictly to the allegations within the four corners of the complaint. (Thorpe v. Gelbwaks, 953 So.2d 606 (Fla. 5th DCA 2007)) and Albert Properties, Inc. v. Vizcaya at Palm-Aire Ass’n, 841 So.2d 674, 675 (Fla 4th DCA 2003)).

The court may consider only the factual allegations set forth in the complaint, must accept those allegations as true, and must resolve in the plaintiff’s favor all inferences that might be drawn from those allegations. (Mosby v. Harrell, 909 So.2d 323 (Fla. 1st DCA 2005) (Emphasis added)); see, also, Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001).

A motion to dismiss is not to be used as a substitute for a motion for summary judgment or a motion for judgment on the pleadings. (Department of Taxation v. Patafio, 829 So.2d 314, 317 (Fla. 5th DCA 2002) (Emphasis added)). While the defendant may have affirmative defenses which could absolve it of all liability either in summary judgment proceedings or at trial, such defenses are not properly raised in a motion to dismiss because it requires the court to look beyond the four corners of the pleadings. (McWhirter, Reeves, McGothlin, Davidson, Rief, & Bakas v. Weiss, 704 So.2d 214 (Fla. 2d DCA 1998)). Accordingly, arguments that address the merits of the claim(s) rather than the sufficiency of the complaint is an improper basis for a motion to dismiss. (Hill v. Murphy, 872 So.2d 919 (Fla. 2dDCA 2003)(Emphasis added)).

Affirmative defenses are not properly raised in a motion to dismiss because it requires the court to look beyond the four corners of the pleadings. See, Supra; See, also, McWhirter, 704 So.2d 214; Stucchio v. Huffstetler, 690 So.2d 753, 754 (Fla. 5th DCA 1997)(“defense to action may not be considered in deciding motion to dismiss"); Wausau Ins. Co. v. Haynes, 683 So.2d 1123, 1125 (Fla. 4th DCA 1996); Conner v. Walt Disney Company, 827 So.2d 318, 319 (Fla. 5th DCA 2002)(statute of frauds is an affirmative defense that cannot be raised in a motion to dismiss unless complaint affirmatively shows conclusive applicability of such defense to bar action).

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