Determined1

Motion to Dismiss vs. Motion for Summary Judgement

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I am at a point in a lawsuit in Florida where I intend to file either a Motion to Dismiss or a Motion for Summary Judgement. The issues that would support either motion vary a bit, but this case surrounds a claimed breach of contract by a bank. To date, they haven't proved the debt with any account statement or billing record, or any record that shows proof of a breach of contract on my part. They provided an Affidavit which was not made based upon personal knowledge of the affiant, and was declared hearsay at a prior hearing.

My question is one I hope can help many here. What's the best way to get a case like this dismissed, filing a Motion to Dismiss, or a Motion for Summary Judgment? Which has a higher legal standard to meet, and which motion is more easily rebuffed by a determined Plaintiff?

Thank you. Looking forward to hearing your opinions...

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A motion to dismiss under rule 1.140(B) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial. Meadows Cmty. a$$’n v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 3d DCA 2006). With respect to a breach of contract claim, an action cannot be dismissed "unless it clearly appears as a matter of law that the contract cannot support the action alleged." Helms v. Gen. Film Dev. Corp., 346 So. 2d 1064, 1065 (Fla. 3d DCA 1977). The trial court is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn from "the recitals in the complaint, together with the exhibits attached," must be construed in the light most favorable to the plaintiff. Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989).

1.510 Summary Judgment

This rule was published to the web on Monday, 20 September 2010

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

(B) For Defending Party. A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.

© Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant by mail at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. On motion under this rule if judgment is not rendered upon the whole case or for all the relief asked and a trial or the taking of testimony and a final hearing is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. On the trial or final hearing of the action the facts so specified shall be deemed established, and the trial or final hearing shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

(f) When Affidavits Are Unavailable. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt.

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I am at a point in a lawsuit in Florida where I intend to file either a Motion to Dismiss or a Motion for Summary Judgement. The issues that would support either motion vary a bit, but this case surrounds a claimed breach of contract by a bank. To date, they haven't proved the debt with any account statement or billing record, or any record that shows proof of a breach of contract on my part. They provided an Affidavit which was not made based upon personal knowledge of the affiant, and was declared hearsay at a prior hearing.

My question is one I hope can help many here. What's the best way to get a case like this dismissed, filing a Motion to Dismiss, or a Motion for Summary Judgment? Which has a higher legal standard to meet, and which motion is more easily rebuffed by a determined Plaintiff?

Thank you. Looking forward to hearing your opinions...

Is this a credit card case? We have zero info about this case, so it's hard to point you in the right direction. However, that said, if it IS a CC case, you're barking up the wrong tree. No written contract is usually required by courts if the cause of action is "Account stated." Therefore, dismissal as I read it in the statute I posted does not seem appropriate.

If they sued under Breach of Contract, they should have attached the contract to the complaint and explained how you breached it. No contract, no case. If the dummy who wrote the complaint messed up and used the wrong cause of action, too bad for them. In that case dismissal may be the way to go. Make sure it is with prejudice, which means they can't file again. If the complaint states TWO causes of action or more, a motion to strike that one count would be appropriate

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Thanks Legaleagle. The case is based on a single count of alleged breach of contract with a bank line of credit. They attached the main body of the contract to the suit, but left out an important addendum. No proof of the alleged debt has been provided, and they have provided no evidence of any fashion that I breached this contract. If the lawsuit goes the distance, I can prove they were he party who breached, but I'd like to knock them out early and get the case dismissed.

My research for a Breach of Contract shows they need to prove: (1) a contract existed, (2) the contract was breached, and (3) damages flowed from that breach. They can prove #1, but not #2 or #3.

Any suggestions?

Edited by Determined2

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"unless it clearly appears as a matter of law that the contract cannot support the action alleged."

I think from what you posted that dismissal is not in the cards. If the basic contract they attached in any way suggests that you agreed to pay back money lent, that is sufficient for any court to establish a cause of action. For the contract to fail the requirement, it would have to be poorly drafted....IE, they left out the part where you have to pay back the money, something like that, which is unlikely. Courts are very generous in the interpretation of pleadings. They give the pleader the benefit of the doubt. If it substantially shows any cause of action, they will let it proceeed. It is then up to you to defeat the claim.

Proof of the claim, or evidence, comes later. The complaint only puts you on notice as to what the plaintiff intends to prove. Your job is to make him prove the claim. My guess, without having seen either the contract or the complaint, is that they will allege that the line of credit was established by agreement, utilized by the defendant for goods or other services, the defendant failed to make the agreed upon payments, thus resulting in a monetary loss to plaintiff.

Getting the case dismissed early is not an option unless they did something egregious. Again, courts let people live or die by their complaint. If you can come up with evidence that they breached the contract, you can file a counterclaim. It would help if you posted some of this material for evaluation, especially the complaint. Redact names and round off numbers.

To back up your claim that they have provided no evidence, you have to conduct discovery and ask for production of documents. Don't bother with admissions or interrogatories. Have you done this? If they cannot provide the documents required to win their case, THEN you might file for summary judgment. You have to defeat the allegations in the complaint by showing no material fact is in dispute. Then you are entitled to judgment as a matter of law.

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Your quote comes from succeeding with a Motion to Dismiss, which I agree will be tough. However, your comment leads me to filing a Motion for Summary Judgment, putting the heat on them to prove the debt. They already filed a MSJ against me, which I defeated in large part because they did not prove any debt existed. Now I want to turn the tables....and at a minimum, make it expensive for them to defend...

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Okay, so I'm going with a Motion for Summary Judgement, but could use some advice on strategy. My original Answer was a "general denial" which the Judge gave me a hard time over. I filed only a general denial at the time because they improperly identified my company's name. I think I also need to prepare and submit an Amended Answer with Affirmative Defenses with my MSJ.

The bank's lawsuit is principally based on an alleged breach of contract with my company, and is against both my company and I, jointly, severally and personally for a personal guarantee. My company was dissolved, so the Judge is allowing me to proceed pro se. I don't deny the relationship, and they have attached a portion (but not all) of the contract. My argument is that I did not breach the agreement, but rather the bank did, and can totally prove it with bank statements. However, my dilemma to date is, by providing the bank statements, I may prove part of their claim as well. I've already defeated their Motion for Summary Judgment, where they failed to produce any accounting, bank statement, or proof of the debt.

There are also two present class action lawsuits against this bank for the same tactics, and in those cases the bank has been accused of fraud, unconscionability, unjust enrichment, violation of good faith and fair dealing, among other charges.

So all that being said, here's my question. Do I go "all out" in my Amended Answer, Affirmative Defenses, and Motion for Summary Judgment against them by providing statements that shows improper transactions and proves their breach of contract, list all of my Affirmative Defenses, or a more minimalist approach that seeks MSJ simply because they haven't proved their alleged breach or dollar value claim to date?

Thanks for all who can advise.

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They provided an Affidavit which was not made based upon personal knowledge of the affiant, and was declared hearsay at a prior hearing...

Because there has been additional evidence placed before the court, even if you file a "motion to dismiss," it will, by rule, be converted to a "motion for summary judgment."

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MSJ is not granted because the other side failed to prevail with theirs. It is granted when you prove that no issue remains in dispute. From the sounds of what you posted, I would have to change my opinion. This sounds very complicated, and my guess is that the judge will probably want to let it go to trial since there are so many unanswered questions. Your claim regarding statements perhaps proving both sides of the case would be enough for most judges to rule against you in an MSJ. Keep in mind, MSJs are very hard to win and judges do not like to grant them unless there is very solid ground to stand on.

"There are also two present class action lawsuits against this bank for the same tactics, and in those cases the bank has been accused of fraud, unconscionability, unjust enrichment, violation of good faith and fair dealing, among other charges..."

Inadmissible in my opinion. I would not attempt to raise this issue.

"...providing statements that show improper transactions and proves their breach of contract..."

Again, this is evidentiary in nature and a judge would probably want to let a jury decide whether or not the evidence supports the claim or defense. The documents may have to be verified, affidavits, etc, according to your rules of procedure.

Also, they should be required to produce the entire contract, not the part they like best. A judge would want to have the entire document. Who knows, the part they left out may torpedo their case. Lawyers do this for a reason. The reason is suspect.

All in all, I would have to say that if I were the judge, God forbid, even I, a non lawyer, would not grant your motion. I would give you and the other side an opportunity to hash this out in front of a jury. Then again, like Dennis Miller says, "I could be wrong."

Edited by legaleagle

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Thanks for the feedback Legaleagle. I appreciate your sense of humor at the end, too.

Part of my strategy is to let this play out very slowly. Time and a court system clogged by bad behavior is my ally here. The last hearing scheduled by the Plaintiff took 3 months to obtain. If this would go to trial, it will take at least a year. In the meantime, every attempt I make to knock one of their legs out from under them is in my favor. At the last hearing the I had their Affidavits stricken. The class actions may be admissible, and provide a further stay of this lawsuit (and proof of my defense), if I join one of them, which I am looking to do.

That being said, if I go file an Amended Answer, Affirmative Defenses, and MSJ, any thoughts on going "all out" with my evidence at this stage (ie. bank statements), or a more minimalist approach, trying to knock out their claim of breach, which is their only claim. Also, I've been reading up on "failure to state claim upon which relief can be granted." They stated a claim - "breach of contract" - but provide no evidence of a breach. Therefore, can I claim they failed to state a claim upon which relief can be granted?

Nascar, thank you also for the feedback. Instead of just filing a MSJ, or MTD, would you suggest captioning my Motion like this - DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT. ?

Thanks again.

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MTD is for sufficiency of complaint, uses the 4 corners of the complaint and is viewed in light most favorable to plaintiff. this is a tall standard as they have adequately pled a cause of action. their allegations that both parties are aware of the contract and its terms it would necessarily say that the cause of action rest within the attached portion. By filing a motion to dismiss you are basically saying that you are a party to the contract and that you now say they have no cause of action because you have evaluated the contract part that is missing and is no cause of action and now know for certain there is no cause of action. But implicitly admits you are a party.

MSJ

This one might bear more fruit but again with the light most favorable to the non moving party and the allowance of the use of affidavits could be troublesome. In a one cause of action case the summary judgment may be denied because of the same thing we advocate to the opposition to summary judgment, triable issues for trial. the court may find it is fitting to go to trial.

What I am getting at is we cannot ask for them to deny motions based on opposition for triable issues and then rule for it when we file under the same arguements the plaintiffs use.

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'Time and a court system clogged by bad behavior is my ally here. The last hearing scheduled by the Plaintiff took 3 months to obtain. If this would go to trial, it will take at least a year."

This works both ways. Courts do have time schedules according to the ROP, and if neither side pursues the case you'll get a nice notice from the court telling you to wrap it up by a certain date. The good part is that you can use this too. If the other side fails to pursue the case in a timely manner, file a motion for dismissal or nonsuit (or whatever your rules suggest) due to lack of diligence. That's what we call it here, your state may be different. It should be under something called "time to plead" in the rules. This is good to use, as it forces the other side to pursue their case rather than letting it go. You let it go, you're giving them more time to find evidence to use against you.

Per the class action suit, I read somewhere that there can be some type of conflict arising from this. If you are pursuing a claim for let's say speeding, and you join a class action suit against the same person for speeding, your original case is likely to be dismissed. You could be getting into double recovery, which is forbidden. You would have to get a better opinion, I suggest asking Nascar.

"Also, I've been reading up on "failure to state claim upon which relief can be granted." They stated a claim - "breach of contract" - but provide no evidence of a breach. Therefore, can I claim they failed to state a claim upon which relief can be granted?"

You have misconstrued what constitutes a cause of action versus a special defense. Complaints are designed to put the defendant on notice as to what the plaintiff intends to prove, nothing more. Evidence is not supposed to be included, at least not where I live. In some cases it can be, but it probably isn't required unless it involves a contract. Evidence is generally a matter to be resolved in discovery. If the count is an accepted cause of action, which this certainly is, forget the defense. It isn't really viable. Your defense is to disprove the claim, not petition the court to strike the count. That would be more appropriate as a motion to strike, in which you would have to cite case law from your state that supported your position. Since this is a common cause of action, you probably wouldn't find much. I have some from CT, it goes both ways. Generally the cause of action is accepted.

You still haven't posted the complaint, so we don't really know what we're dealing with here. Just change a few things so they can't pick you out on the site. If it was me, I'd just answer the complaint for now and forget the affirmative defenses and motions unless you have something that legally stops them from pursuing the case. See the case law, I believe Nascar posted some concerning this. Proceed slowly and follow the rules of the court. Study the rules of evidence, I think that will be your main area of concern. Use your time wisely. Study the things that matter, not technicalities.

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Legaleagle, good comments, but your taking this thread far afield from my question today. The case is now two years old, I've already defeated their MSJ and they haven't provided proof of the debt in that time. I prefer not to post the complaint.

SeaDragon, thanks for your thoughts. I hear what your saying, but in this case their MSJ was based on the claim that I never disputed issues of fact and law, which in fact I had. So I won that hearing on the deficiency of their motion, and my Motion in opposition which made confetti of their affidavits, and raised the issue that they never provided proof of the debt. My planned MSJ is intended to attack their complaint, lack of a complete contract, failure to provide proof of a breach, or proof of the debt. I'm not arguing the same issue in reverse, except for the failure to provide proof of the amount of debt part. My main focus is they never prove a breach of contract.

My specific question is, in an Amended Answer, Affirmative Defenses, and in my MSJ, any thoughts on going "all out" with my evidence at this stage (ie. bank statements), or a more minimalist approach, trying to knock out their claim of breach, which is their only claim. On the one hand, if I provide bank statements, I offer them some ammo which they may not have, on the other hand, the bank statements prove they are the party who breached.

Edited by Determined2

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The judge wants trial it seems, he ruled that their were triable issues. I believe that had you filed cross SJ that he would have denied that also to get to trial. Judges on major issues are want to dispose of a case in SJ because of appealeability of SJ. appellates are naturally wanting to remand for trials on the merits all the time.

In your case, they may have done a favor in keeping this on track for trial and judgment in your favor. They also may be doing them a favor in giving them more time for settlement or dismissal without prejudice.

On dispositive motions plaintiffs usually dish out before the tentative ruling or hearing with the dismissal without prejudice. Leaving a forest denuded from the paperwork of the battle to live to fight another day.

I know you want to put this away, but it seems to me ("I could be wrong") that the court wants this in trial.

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Determined1, in the event the judge who denied the other side's msj wrote more that a 1-liner, if you read the Order very closely, you might be able to use some of the judge's commentary as a basis for your own motion.

For instance, if there's a statement in there where the judge points out the other side has "failed to show ..." or "failed to produce ..." some required element of its case, you might be able to use that. Statements like "there remains a question of fact ... " will be of little help, though.

This seems to have gone on for a very long time.

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Thanks for the thoughtful feedback Nascar & SeaDragon. The main reason this has gone on so long is the Plaintiff failed to prosecute the case for 15 months. Then they filed a MSJ, and lost the hearing. The Judge verbally admonished them for multiple issues, and instructed them to have a settlement discussion with me, which they ignored despite a good faith attempt on my part. Now it seems they still want to fight, so yes, I'd like to put them away. The Judge wrote in the Order denying their MSJ: "Plaintiff's Affidavit as to indebtedness is legally insufficient" - and then cited this portion of Florida Rules of Procedure, 1.510 (e) "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

Here's the part I keep coming back to. I plan to file my own MSJ. My specific question is, any thoughts on going "all out" with my evidence at this stage (ie. using bank statements), or a more minimalist approach, trying to knock out their claim of breach, which is their only claim. On the one hand, if I provide bank statements, I offer them some ammo which they may not have, on the other hand, the bank statements prove they are the party who breached. That's my dilemma.

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The problem I suspect is that if you file for MSJ and attach those documents as exhibits, the other side may pick off the discrepancies you noted before (could go both ways, prove part of their claim) in an objection, which puts you back to square one, a trial.

Me, I'd try for a straight dismissal based on failure to prosecute. If denied, it won't hurt the value of your case one bit as it is not connected to the underlying matters to be resolved. Sounds like this judge has had enough of this clogging up his docket. The ROP have timelines; you can't just blow them off and expect to get away with it.

Give 'em a nice "you know what or get off the pot" motion and see what happens.

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Thanks Legaleagle, but a MTD for lack of prosecution isn't in the cards. Although Florida law for this type of action calls for lack of prosecution after 10 months, Judges will give the suing party a chance to update and further the case almost every time. In this case, since they filed the MSJ, that made lack of prosecution a non issue.

So I am focusing on strategy with my MSJ, and to try and force them to prove my breach, or to prove theirs with my evidence, which may be a double edged sword.

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