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					MEMORANDUM

To:      Jodi Siegel
From:    Lisa Ellison-Cherny
Re:      Redundant Motions to Dismiss
Date:    March 2, 2008

QUESTION PRESENTED

         Whether Defendant should be able to file a second motion to dismiss for failure to state a cause

of action when the first motion to dismiss for failure to state a claim is still pending and both motions

address the exact same issues. 1

BRIEF ANSWER

         No. Motions to dismiss are intended to promote the early and simultaneous presentation and

determination of preliminary defenses, to facilitate the expeditious resolution of litigation, and to

prevent the type of practices that, under the old regime, converted a demurrer into an instrument of

delay and harassment. Florida practice and procedure dictates that motions that are directed at the

same issues as motions that are already pending are unnecessary, superfluous, frivolous, confusing,

harassing, bad practice, and ought not to be encouraged. Because the parties may resolve all of their

problems regarding these issues at one hearing, multiple motions directed at the same issues waste the

court’s valuable time and resources and serve only to confuse the issues, to harass the court and the

parties, and to unnecessarily protract the litigation. Thus, in the instant case, because a motion to

dismiss for failure to state a claim is already pending, Defendant should not be permitted to file a



1
  Because Defendant filed its first motion in federal court, Defendant entitled its first motion “failure to state a
claim” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Were Defendant to file a second motion
in state court, Defendant would have to entitle this second motion “failure to state a cause of action” pursuant to
Rule 1.140(b)(6) of the Florida Rules of Civil Procedure. The traditional distinction between “claim” and “cause of
action,” a distinction that still rings true in federal court, is that a “cause of action” is a set of operative facts out of
which “claims” may arise. Florida courts have ruled that a “cause of action” in state court is substantively
equivalent to a “claim” in federal court. E.g., Luckie v. McCall Mfg. Co., 153 So. 2d 311, 314 (Fla. 1st DCA 1963).
Either way, the distinction is a moot point here considering there is only one claim pending; thus, the terms
“claim” and “cause of action” may harmlessly be used interchangeably to refer to the legal proceeding.
                                                        Page 1 of 9
second motion to dismiss for failure to state the same claim. The second motion would be redundant,

confusing, harassing, and a glorified waste of time.

PROCEDURAL HISTORY

        Plaintiff filed state and federal claims in Florida state court. Defendant then removed to federal

court and filed a motion to dismiss for failure to state a claim on the state claim. Plaintiff amended the

complaint by completely taking out the federal claim. Plaintiff left the state claim unaltered. Plaintiff

also responded to Defendant’s motion. Because Plaintiff had dropped the federal claim, the federal

court remanded the state claim (the only remaining claim) back to state court. The federal court did not

rule on Defendant’s motion. Even though Defendant’s motion is still pending, even though Plaintiff has

already responded to Defendant’s motion, and even though Plaintiff’s amended complaint left the state

claim unaltered, Defendant seeks to file a second motion to dismiss for failure to state a cause of action

on this same state claim.

DISCUSSION

        Whether Defendant should be permitted to file a second motion to dismiss for failure to state a

cause of action (“second motion”) when the first motion to dismiss for failure to state a claim (“first

motion”) is still pending and both motions address the exact same issues is a novel question in Florida.

However, the policy behind both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rule

1.140(b)(6) of the Florida Rules of Civil Procedure, as well as the policy behind motions directed at

motions, indicate that the second motion would be improper.

        Motions to dismiss for failure to state a claim/cause of action are intended to promote the early

and simultaneous determination of preliminary defenses, to facilitate the expeditious resolution of

litigation, and to prevent the type of practices that, under the old regime, converted a demurrer into an

instrument of delay and harassment. E.g., Wright & Miller, Fed. Prac. & Proc., 5B FPP §§ 1349, 1355.


                                                Page 2 of 9
        Florida practice and procedure dictates that motions that are directed at the same issues as

motions that are already pending are unnecessary, superfluous, frivolous, confusing, harassing, bad

practice, and ought not to be encouraged. See Trawick, Fla. Prac. & Proc. § 9:5 (2007-2008 Ed.), citing

Berens v. Berens, 30 F.Supp. 869, 869 (D.C.D.C. 1939), Hochstadt v. Gerl, 678 So. 2d 1310, 1312-13 (4th

DCA 1996), and State ex rel. McVay v. District Court of Fourth Judicial District, in and for Missoula

County, 126 Mont. 382, 393-99 (Mont. 1952). Because the parties may resolve all of their problems

regarding these issues at one hearing, multiple motions directed at the same issues waste the court’s

valuable time and resources and serve only to confuse the issues, to harass the court and the parties,

and to unnecessarily protract the litigation. McVay, 126 Mont. at 393-99. Expeditious resolution of the

issues demands that the first motion be set for hearing and that the motions addressing the same issues

as the first motion be stricken. Id. at 398-99; Trawick, Fla. Prac. & Proc. § 9:5 (2007-2008 Ed.). Berens,

Hochstadt, and McVay provide excellent examples of these principles.

        In Berens, the plaintiff made a motion for temporary injunction. 30 F.Supp. at 869. In response

the defendant made a motion to dismiss the plaintiff’s motion. Id. In response to that, the plaintiff

made a motion to enjoin defendant. Id. In a three sentence opinion, the Berens court proclaimed: “The

motion of defendant to dismiss plaintiff’s motion for temporary injunction will be stricken. It is an

unnecessary pleading, which ought not to be encouraged. The motion of plaintiff to enjoin defendant is

denied.” Apparently it did not take the Berens court too much analysis to conclude that because all of

the parties’ concerns regarding an issue can be resolved at one hearing on the issue, redundant motions

are bad practice and should be stricken.

        After a foreclosure proceeding, the parties in Hochstadt filed motions for clarification as well as

several motions to strike or dismiss these motions for clarification. 678 So. 2d at 1312. On rehearing,

the Hochstadt court held that “[b]oth motions for clarification are denied. All other motions are moot.”

Id. In his concurrence, Judge Farmer remarks that the post-opinion motions to strike or dismiss other
                                              Page 3 of 9
motions are “frivolous and a waste of our time.” Id. Judge Farmer continues that it is never necessary

to move to strike improper motions, “not even ‘to make a record.’” Id. Finally, Judge Farmer makes it

clear that not only do these types of motions increase the court’s work and force the court to waste

time that should be dedicated to deciding other cases, but “these motions also have the effect of

diminishing my ardor for the arguments of lawyers who so squander our attention.” Id.

        McVay is the epitome of why redundant pleadings should be stricken from the record. McVay

deals with a divorce decree, the ex-husband’s attempts to modify the child custody provisions of the

divorce decree, and the ex-husband’s attempts to disqualify the presiding judge. The procedural history

is enough to make anyone dizzy. For the sake of brevity, the chronological and loquacious procedural

history is as follows: Plaintiff’s First Notice of Motion to Modify Decree, Plaintiff’s Second Notice of

Motion to Modify Decree, Disqualifying Affidavit No. 1, Defendant’s Motion to Quash Plaintiff’s Motion

to Modify, Plaintiff’s Third Notice of Motion to Modify, Disqualifying Affidavit No. 2, Defendant’s Motion

to Set Aside and Deny Plaintiff’s Motion to Modify, Plaintiff’s Fourth Motion to Modify, Disqualifying

Affidavit No. 3, Order for Children’s Removal and Staying Proceedings. McVay, 126 Mont. at 384-92.

        In response to the parties’ rapid succession of motions and affidavits, the McVay court

pronounced that because “no question not open on the hearing of the original or main motion” is

presented by motions or demurrers directed at the original or main motion, “such a motion or demurrer

is regarded as superfluous, frivolous, confusing, and bad practice.” 126 Mont. at 393. The McVay court

continued that the defendant’s motions to quash the plaintiff’s motions were “irregular,” “improper,”

and “not necessary” because “[e]ach and every question attempted to be raised by defendant’s motion

to quash plaintiff’s motion could and should have been presented [during the] hearing of plaintiff’s

original motion to modify the decree.” Id. at 393-94. In fact, the court states that “[s]uch motions are

irregular in all cases where the questions in issue are open on the original motion.” Id. at 394.

Commenting not only on the impracticality of such redundant motions but also on the unwieldy nature
                                              Page 4 of 9
of the titles of the redundant motions, the McVay court instructs that “[i]f there is a good reason why a

motion should not be entertained by the court, such reason may be advanced as a ground in support of

the denial of the motion. The confusion is not confined to the mere records of this court, but to the

orderly presentation of oral argument to the court.” Id.

         The McVay court cites Helena Adjustment Co. v. Predivich, 98 Mont. 162 (Mont. 1934)(overruled

on an unrelated point of law2), a case somewhat factually analogous to the instant case3. 126 Mont. at

397-98. In Helena, the plaintiff “resubmitted in the same court, to the same indulgent and patient

district judge, plaintiff’s same motion to strike from the files and, following such second hearing, the

court made a second order denying plaintiff’s motion.” McVay, 126 Mont. at 397. Agreeing with the

Helena court, the McVay court chastises the Helena plaintiff’s redundant motions as “improper and bad

practice,” and announces that “proper practice required but one hearing at which defendants would be

heard in support of their motion . . . and plaintiff would be heard in opposition thereto thus obviating

the confusing procedure which allowed plaintiff ‘to make three bites of a cherry.’” Id. at 398-99. Again


2
 The McVay court overruled the following sentence in Helena as unnecessary to the determination of the issue in
Helena and therefore obiter dictum: “The proper practice in the case of an unauthorized motion is to strike it from
the files.” Helena, 98 Mont. at 168. While at first glance this seems pertinent to the issue in this memorandum,
when taken in context with the issue in Helena, it is completely unrelated to the issue in this memorandum. The
Helena court, when it made this statement, was referring to waiver of defective service of a motion for a change of
venue. The Helena defendant had served the Helena plaintiff by mail, but had mailed the process with insufficient
postage. Therefore, the Helena plaintiff had to pay $0.03—the difference between the proper postage and the
amount of postage the Helena defendant had actually paid—before the post office would deliver to the Helena
plaintiff the envelope that contained the motion. The Helena plaintiff was trying to strike the motion for a change
of venue because of defective service of the motion. The Helena court rejected this argument, holding that the
Helena plaintiff waived its objection to defective service by paying the $0.03 and accepting the envelope that
contained the motion and thereafter retaining the motion. The Helena court remarked that if the Helena plaintiff
wanted to preserve this waiver argument, the Helena plaintiff should not have paid the $0.03 to obtain the process
and should not have retained the motion. When the Helena court made the statement that the McVay court
overruled, the Helena court was referring to the fact that the Helena plaintiff was not required to pay the extra
postage, and had it not paid the extra postage and accepted the motion, the service would have been defective
and the motion would have been stricken from the record. By overruling the Helena court’s statement, the McVay
court was acknowledging that such this broad statement had nothing to do with the issue of waiver of service.
3
  The difference between Helena and the instant case is that the Helena court ruled on the first motion to strike
before the Helena plaintiff filed its second motion to strike. In the instant case, no court has ruled on Defendant’s
first motion.
                                                    Page 5 of 9
agreeing with the Helena court, the McVay court emphasizes that “such unnecessary, confusing, and

harassing procedure should not twice be indulged by the same judge.” Id. at 398.

        Although Berens, Hochstadt, McVay, and Helena do not specifically deal with second motions to

dismiss when the first motions to dismiss are still pending, these cases do deal with how courts should

proceed when multiple motions address the same or similar issues. The policy issues behind these cases

and the instant case are analogous and also comport with the policy reasons behind Rule 12(b)(6) of the

Federal Rules of Civil Procedure and Rule 1.140(b)(6) of the Florida Rules of Civil Procedure. Therefore,

the court should adopt the actions these cases prescribe and apply them to the instant case: strike

redundant motions from the record, and hold a hearing on the first motion.

        Just as the multiple motions addressing the same issues in these cases were unnecessary,

superfluous, frivolous, confusing, harassing, and bad practice, so too would be the instant Defendant’s

second motion. This is because Defendant’s second motion responds to the exact same claim to which

the first motion responded. Defendant’s second motion offers no new issues—the only issue is whether

Plaintiff’s complaint states a claim/cause of action. Everything Defendant might argue in a hearing on

the second motion could just as easily and effectively be argued in a hearing on the first motion.

        Because Plaintiff did not modify the state claim, nothing Defendant could assert in its second

motion would contribute to 12(b)(6)’s and 1.140(b)(6)’s goal of simultaneous determination of

preliminary defenses. In fact, because Defendant already has the benefit of Plaintiff’s response to the

first motion, allowing Defendant to craft a second motion would unfairly prejudice Plaintiff by conferring

an unfair advantage on Defendant. Because Defendant already knows Plaintiff’s responses, Defendant

can craft a second motion that would better anticipate Plaintiff’s responses. This is analogous to

allowing Defendant access to Plaintiff’s work product in order to assist Defendant in crafting a second

motion. It is as if Defendant were back on trial team, where the adverserial nature of the proceeding is

feigned and where the participants know each other’s arguments inside and out because they have
                                             Page 6 of 9
practiced with each other so many times. Defendant should not be able to have its first motion be a

practice run for its second motion. The Helena court echoes this sentiment when it remarks that its

plaintiff should not “make three bites of a cherry.”

        Permitting Defendant to file a redundant second motion does not comport with 12(b)(6)’s and

1.140(b)(6)’s goal of facilitating the expeditious resolution of litigation. This is because the court would

be forced to spend its valuable time reconsidering and re-litigating the same issues over and over again.

Judge Farmer in Hochstadt gets especially livid about parties who file extraneous motions, chastising

them for wasting the court’s valuable time that would otherwise be spent dealing with new issues.

Allowing a needless, redundant motion would not promote bringing an early end to the lawsuit;

allowing Defendant to protract the litigation as such would promote Defendant’s misuse of a rule

designed to shorten litigation.

        In fact, Trawick and the McVay court characterize redundant motions as instruments of delay

and harassment. This is exactly what the drafters of 12(b)(6) and 1.140(b)(6) sought to prevent:

practices that, under the old regime, converted a demurrer into an instrument of delay and harassment.

CONCLUSION

        Defendant should not be permitted to file a second motion to dismiss for failure to state a cause

of action when Defendant’s first motion to dismiss for failure to state a claim is already pending.

Allowing Defendant to file a second motion would subvert Rule 12(b)(6) of the Federal Rules of Civil

Procedure’s and Rule 1.140(b)(6) of the Florida Rules of Civil Procedure’s goals of promoting the early

and simultaneous presentation and determination of preliminary defenses, facilitating the expeditious

resolution of litigation, and preventing the type of practices that, under the old regime, converted a

demurrer into an instrument of delay and harassment. Courts have chastised redundant motions such

as the second motion Defendant seeks to file as unnecessary, superfluous, frivolous, confusing,

harassing, bad practice. Courts have emphasized not only that such motions ought not to be
                                             Page 7 of 9
encouraged, but have also explicitly found that “[s]uch motions are irregular in all cases where the

questions in issue are open on the original motion.” McVay, 126 Mont. at 394. Here, Defendant’s

second motion would present the same issue as the original motion, and thus would be irregular and

improper. Courts consistently emphasize that the reason these motions are improper, harassing, and a

waste of time is because the parties can easily resolve all of their problems regarding these issues at one

hearing on the first motion. So too can Defendant easily raise all the points he would raise at a hearing

on the second motion at a hearing on the first motion. There is no purpose for the second motion

except to confuse and harass the parties and the court, and to unnecessarily protract the litigation.

Thus, Defendant should not be permitted to file a second motion; Defendant may raise all of the issues

he has regarding the viability of the cause of action at a hearing on the first motion.




                                                Page 8 of 9
                                             WORKS CITED
Cases
Berens v. Berens, 30 F.Supp. 869 (D.C.D.C. 1939).

Helena Adjustment Co. v. Predivich, 98 Mont. 162 (Mont. 1934).

Hochstadt v. Gerl, 678 So. 2d 1310 (4th DCA 1996).

Luckie v. McCall Mfg. Co., 153 So. 2d 311, 314 (Fla. 1st DCA 1963).

State ex rel. McVay v. District Court of Fourth Judicial District, in and for Missoula County, 126 Mont. 382
        (Mont. 1952).

Rules
Treatises
Trawick, Fla. Prac. & Proc. § 9:5 (2007-2008 Ed.).

Wright & Miller, Fed. Prac. & Proc. 5B FPP §§ 1349, 1355.




                                                Page 9 of 9

				
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