Gulf South REO, LLC v. Garrett
The trial court dismissed a fifteen-count complaint with prejudice as time-barred under the applicable statutes of limitations before any responsive pleading was filed. The Sixth District reversed, holding that because a motion to dismiss is not a responsive pleading, the plaintiff retained an absolute right to amend once under Florida Rule of Civil Procedure 1.190(a), and a dismissal with prejudice improperly deprived it of that right.
Key facts
- Gulf South REO, LLC filed a fifteen-count complaint against Garrett; the trial court dismissed the complaint with prejudice as time-barred before any responsive pleading was filed.
- Plaintiff appealed the dismissal with prejudice, arguing it was deprived of its right to amend the complaint.
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Why it matters
This is a clean, quotable rule for everyday motion practice: a defendant cannot obtain a with-prejudice dismissal on a statute-of-limitations motion to dismiss before the plaintiff has used its one amendment as of… — full analysis with a trial
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