TRIAL COURT ERRED IN DISMISSING ORIGINAL COMPLAINT WITH PREJUDICE WITHOUT AFFORDING PLAINTIFF AT LEAST ONE OPPORTUNITY TO AMEND WHERE RESPONSIVE PLEADING HAD NOT BEEN SERVED—PLAINTIFFS PRESERVED THEIR ARGUMENT SEEKING A RIGHT TO AMEND BY RAISING IT IN A MOTION FOR REHEARING

Legal Topics

Jul 08th, 2025 in by admin

Barr v. MS International, 50 Fla. L. Weekly D1059 (Fla. 4th DCA May 7, 2025):

Under Rule 1.190(a) a plaintiff has an absolute right to amend the complaint before a responsive pleading is served. Where a defendant has filed only a motion to dismiss following the filing of a complaint, the trial court does not have discretion to dismiss the action with prejudice even if the amendment of the complaint would be futile.

The court also found that the plaintiffs preserved their argument by raising it in their motion for motion for rehearing.