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Legal Memorandum: Time Constraint for Filing a Motion to Dismiss

Issue: Is there a time constraint for filing a motion to dismiss and/or a counterclaim in a Florida state court action?

Area of Law: Litigation & Procedure
Keywords: Motion to dismiss; Time constraint for filing a motion
Jurisdiction: Florida
Cited Cases: None
Cited Statutes: Fla. R. Civ. P. 1.140(b); Fla. R. Civ. P. 1.170(b)
Date: 01/01/2009

Motion to Dismiss.  It appears that generally a motion to dismiss may be made at any time before trial, although such a motion on certain grounds, such as lack of subject matter jurisdiction, must be made in the responsive pleading or a motion filed before the responsive pleading.  Fla. R. Civ. P. 1.140(b). 

Counterclaim.  It appears that under the Florida Rules of Civil Procedure any counterclaim in the state action must be brought as a compulsory counterclaim:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon that party’s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.

Fla. R. Civ. P. 1.170(b).  The time period for bringing a counterclaim is not specifically stated.

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