2.2 Pleadings, Motions, and Deadlines

2.2 Pleadings, Motions, and Deadlines

In Florida state courts, pleadings lay the factual foundation for the litigation. Practitioners must understand the distinction between Florida's pleading standard and the federal system, as well as the strict timelines that govern answers, replies, and defensive motions.

Fact Pleading vs. Notice Pleading

One of the most important distinctions between Florida civil procedure and federal civil procedure is the pleading standard. Federal courts operate under a "notice pleading" standard, where a complaint needs only to provide fair notice of the claim and state a plausible case for relief (the Twombly and Iqbal standards).

In contrast, Florida is a fact pleading jurisdiction. Under Florida Rule of Civil Procedure 1.110, a pleading that sets forth a claim for relief (such as a complaint, counterclaim, or crossclaim) must contain:

1. A short and plain statement of the grounds upon which the court's jurisdiction depends;
2. A short and plain statement of the ultimate facts showing that the pleader is entitled to relief; and
3. A demand for judgment for the relief to which the pleader deems himself or herself entitled.

To satisfy the ultimate facts requirement, the plaintiff cannot rely on bare legal conclusions or mere notice of a potential claim. The complaint must allege specific factual allegations that, if proven true, establish every essential element of the cause of action.

Pleading Special Matters

While most allegations can be made generally, certain matters require heightened specificity:

• Fraud or Mistake: In all averments of fraud or mistake, the circumstances constituting the fraud or mistake must be stated with particularity (who, what, when, where, and how).
• Conditions Precedent: A party may allege generally that all conditions precedent have been performed or have occurred. However, a denial of performance or occurrence must be made specifically and with particularity.
• Special Damages: Items of special damages (damages that do not flow naturally from the injury, such as specific medical expenses or lost profits) must be specifically stated.

Responsive Pleadings and the 20-Day Answer Deadline

Once process is successfully served, the clock begins to run for the defendant.

The Default Rule

Under Florida Rule 1.140, a defendant must serve an answer or a pre-answer motion within 20 days after service of the summons and complaint (contrast this with the federal rule, which allows 21 days). If a defendant fails to respond within 20 days, they are subject to entry of a default, which admits all well-pleaded factual allegations of the complaint.

Effect of Pre-Answer Motions

If the defendant files a pre-answer motion (such as a motion to dismiss), the 20-day period for filing the answer is stayed. If the court denies the motion or postpones its disposition until trial, the defendant must serve their answer within 10 days after notice of the court's action.

Reply to Affirmative Defenses

If the defendant's answer contains affirmative defenses, and the plaintiff wishes to avoid them by asserting a new matter (e.g., waiver, estoppel, or statute of limitations), the plaintiff must file a reply within 20 days after service of the answer. If the plaintiff merely wants to deny the affirmative defenses, no reply is required, and they are automatically deemed denied.

Amending Pleadings

A party may amend their pleading once as a matter of course at any time before a responsive pleading is served. If the pleading is one to which no responsive pleading is permitted (such as an answer) and the action has not been placed on the trial calendar, the party may amend it at any time within 20 days after it is served. Otherwise, a party may amend only by leave of court or by written consent of the adverse party. Leave to amend shall be given freely when justice so requires.

Motions to Dismiss

A defendant may challenge the complaint prior to answering by filing a motion to dismiss. Under Rule 1.140(b), a party may assert several defenses by motion:

1. Lack of subject matter jurisdiction;
2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a cause of action (the Florida equivalent of a federal 12(b)(6) motion);
7. Failure to join an indispensable party.

Waiver of Defenses

The timing of these defenses is critical. Florida enforces a strict waiver rule to prevent piecemeal litigation:

• Waivable Defenses: Lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived if they are not raised in the defendant's very first response—either in a pre-answer motion to dismiss or, if no pre-answer motion is filed, in the answer. A defendant cannot file a motion to dismiss for failure to state a cause of action, lose, and then file a second motion to dismiss for lack of personal jurisdiction.
• Non-Waivable Defenses: Defenses for failure to state a cause of action, and failure to join an indispensable party, may be raised at any time, including in the answer, in a motion for judgment on the pleadings, or even at trial.
• Subject Matter Jurisdiction: The defense of lack of subject matter jurisdiction is never waivable. It can be raised at any point in the litigation, including on appeal, or by the court sua sponte.

Counterclaims and Crossclaims

Defendants may also assert claims of their own in their responsive pleading.

• Compulsory Counterclaims: A counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require the presence of third parties over whom the court cannot acquire jurisdiction. If a defendant fails to assert a compulsory counterclaim in their answer, it is forever barred.
• Permissive Counterclaims: A counterclaim is permissive if it does not arise out of the same transaction or occurrence. A defendant may choose to assert it in the current action or bring it as a separate lawsuit later.
• Crossclaims: A crossclaim is a claim asserted against a co-party (e.g., defendant against co-defendant). It must arise out of the transaction or occurrence that is the subject matter of the original action. In Florida, crossclaims are always permissive, meaning a party is not barred from raising the claim in a subsequent suit if they choose not to raise it in the current one.