JACK VANDERBERG, APPELLANT,
v.
A. RIOS, KEITH MOSELY, ROBERT SHEPPARD, BRENDA M. WILLIAMS, AND JAMES BLACK, APPELLEES
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Jack VanDerberg, a prison inmate, sued correctional facility officials for abuse of authority and constitutional rights violations. The trial court dismissed the original complaint, but the appellate court reversed because VanDerberg's timely amended complaint rendered the legal sufficiency of the original complaint moot.
The court reversed the dismissal because the filing of an amended complaint rendered the legal sufficiency of the original complaint moot. Since a responsive pleading had not been filed when the amended complaint was filed, the plaintiff was entitled to amend as a matter of course under Florida Rule of Civil Procedure 1.190(a).
[1] A motion to dismiss is not a responsive pleading for purposes of Florida Rule of Civil Procedure 1.190(a).
[2] A party may amend a pleading once as a matter of course before a responsive pleading is served.
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Join FLexlaw to unlock all legal intelligence“A motion to dismiss is not a 'responsive pleading' because it is not even a pleading.”
Establishes the critical distinction that a motion to dismiss does not trigger the restrictions on amending pleadings under Rule 1.190.
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Join FLexlaw to unlock all legal intelligenceIn June 2000, Jack VanDerberg filed suit against prison officials at South Bay Correctional Facility alleging abuse of authority and constitutional vi…
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STEVENSON, J.
In June of 2000, Jack VanDerberg, an inmate at the South Bay Correctional Facility, filed suit against a number of prison officials, alleging abuse of authority and violation of his constitutional rights. The defendants responded by filing a motion to dismiss and setting the matter for hearing. Thereafter, VanDerberg" filed an amended complaint. Despite the amended complaint, the trial court proceeded with the hearing and entered the order which is the subject of this appeal — a dismissal of the original complaint for failure to state a cause of action. We reverse the dismissal of this action because the legal sufficiency of the original complaint was rendered moot by the filing of the amended complaint.
Florida Rule of Civil Procedure 1.190(a) provides in relevant part:
A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party.
Here, when VanDerberg filed the amended complaint, the defendants had filed only a motion to dismiss. A motion to dismiss is not a responsive pleading as contemplated by rule 1.190. See Forum v. Boca Burger, Inc., 788 So. 2d 1055, 1057 (Fla. 4th DCA 2001)(“A motion to dismiss is not a ‘responsive pleading’ because it is not even a pleading.”)(citing Fla. R. Civ. P. 1.100(a)). Since a responsive pleading had not yet been filed, VanDerberg was free to file an amended complaint without obtaining either leave of court or the consent of the defendants. And, the filing of the amended complaint rendered the legal sufficiency of the original complaint moot. See Forum, 788 So. 2d at 1059; Rice v. Clement, 184 So. 2d 678 (Fla. 4th DCA 1966).
Accordingly, we reverse the order of dismissal. On remand, VanDerberg’s suit shall be reinstated and, thereafter, the defendants may either file an answer or a motion to dismiss directed to the amended complaint.
REVERSED and REMANDED.
STONE, J., and CLARK, NIKKI ANN, Associate Judge, concur.
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Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)…nd sentence), depending on the circumstances. Several courts have recognized that the first sentence of the rule grants plaintiffs an automatic right to amend the complaint once before a responsive pleading is served. See, e.g., Vanderberg v. Rios, 798 So. 2d 806, 807 (Fla. 4th DCA 2001); Fusilier v. Markov, 676 So. 2d 1053, 1054 (Fla. 3d DCA 1996); Posey v. Magill, 530 So. 2d 985, 986 (Fla. 1st DCA 1988); Abston v. Bryan, 519 So. 2d 1125, 1127 (Fla. 5th DCA 1988); Fla. Power & Light Co. v. Sys. Council U—4…
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Geer v. David Neal Jacobsen, Brian James Almengual, & Almengual & Warner, P.A., 880 So. 2d 717 (Fla. 2d DCA 2004)….190(a), Geer was entitled to serve an amended complaint once as a matter of course before Almengual served a responsive pleading. See Fla. R. Civ. P. 1.190(a); Picchi v. Barnett Bank of S. Fla., N.A., 521 So. 2d 1090 (Fla.1988); Vanderberg v. Rios, 798 So. 2d 806 (Fla. 4th DCA 2001); Ziff v. Stuber, 596 So. 2d 754 (Fla. 4th DCA 1992). [*720] Once Geer served her amended complaint, Almengual had ten days in which to respond. Fla. R. Civ. P. 1.190(a). Almen-gual’s previously filed notice and motion did not car…
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Dawson Ins., Inc. v. Quantum Cap. Network, LLC., 923 So. 2d 1194 (Fla. 3d DCA 2006)…it is not a “pleading” under the rules. See Fla. R. Civ. P. 1.100(a) (designating permissible pleadings and providing that “[n]o other pleadings shall be allowed”); Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla.2005) (citing to Vanderberg v. Rios, 798 So. 2d 806, 807 (Fla. 4th DCA 2001) (noting that a motion to dismiss is not a pleading)). Second, Rule 1.090(b) indicates that a party must make its request to the court (i.e., file a motion) to enlarge a time period prescribed by the rules of civil procedur…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yawn v. State, 788 So. 2d 1055 (Fla. 2d DCA 2001)
- Brooks Rice v. Baxter L. Clement, M.D., 184 So. 2d 678 (Fla. 4th DCA 1966)