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Florida Second DCA reverses trial court, finds that defendant in product liability case waived defense of lack of personal jurisdiction by not raising it in initial motion to dismiss

On October 16, 2019, in Gannon v. Cuckler, No. 2D17-4888, the Florida Second DCA reversed a trial court ruling that had granted the defendant’s motion to dismiss a product liability lawsuit on the grounds of lack of personal jurisdiction. The defendant had not raised the personal jurisdiction issue in their initial motion to dismiss, instead arguing only that Florida was an inconvenient forum for the dispute (forum non conveniens). At the same time, the defendant filed an answer to the complaint, which also did not specifically raise any defense of lack of personal jurisdiction but generally claimed that the jurisdictional allegation in the complaint contained “legal conclusions to which no response is required,” or alternatively, “to the extent that a response is required,” it was denied. Several months later and before the original motion had been ruled on, the defendant filed an amended motion to dismiss which introduced the lack of personal jurisdiction defense for the first time. After the trial court granted the motion and dismissed the case with prejudice, the plaintiff appealed. The plaintiff argued and the Second DCA agreed that the defendant’s failure to include the defense of lack of personal jurisdiction in the original motion to dismiss resulted in a waiver of that defense under Fla. R. Civ. P. 1.140, which requires that defenses must either be raised in a responsive pleading or where allowed in a motion to dismiss (as in the case of the defense of lack of personal jurisdiction). In the latter case, all defenses must with only a few inapplicable exceptions be raised in a single motion. The defendant argued that the answer to the complaint generally preserved the jurisdictional defense, but the Second DCA rejected this argument, noting that Rule 1.140 only allows a jurisdictional defense to be raised in an answer if the defendant has made a motion to dismiss. The Second DCA also noted that Rule 1.140(b) requires the defense to be asserted “specifically and with particularity,” and that the defendant failed to do so in this case. The Court acknowledged that Third, Fourth, and Fifth DCAs have held that when a party files an amended motion under rule 1.140(b) before a hearing on an original motion under the rule, it may assert a previously omitted rule 1.140(b) defense in the amended motion and have it treated as timely. See, e.g., Cepero v. Bank of N.Y. Mellon Tr. Co., N.A., 189 So. 3d 204, 206 (Fla. 4th DCA 2016); Snider v. Metcalfe, 157 So. 3d 422, 424-25 (Fla. 4th DCA 2015); Re-Emp. Servs, Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467, 470 (Fla. 5th DCA 2007); Waxoyl, A.G. v. Taylor, Brion, Buker & Greene, 711 So. 2d 1251, 1254 (Fla. 3d DCA 1998). The Second DCA rejected this line of authority as being unsupported by a plain reading of the text of Rule 1.140 and certified the conflict.

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