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Lucy, Esq.
Lucy, Esq., Attorney
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Experience:  Lawyer
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New question for Lucy As per 1.540(b) mistake, is the failure

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New question for Lucy

As per 1.540(b) mistake, is the failure to state a cause of action of plaintiff a valid reason to file a motion ?

The failure to state a claim is an extremely common (and good) reason for a defendant to file a Motion to Dismiss at the beginning of the case, before filing an Answer. However, if you look at Rule 1.140(b), that defense has to be raised in the first response that is filed to the Complaint. It cannot be raised as a separate motion after the case is concluded.

That's because what the judge does with a failure to state a claim motion is, he reads the Complaint. If he can read the Complaint and find that the information in it does not support a cause of action - assuming that every word in the complaint is true - then the case will be dismissed. He doesn't consider any other evidence (although he can consider the arguments in the briefs). So, the motion can't be brought after trial.
Customer: replied 3 years ago.

that defense has to be raised in the first response that is filed to the Complaint

Was it possible to raise it at the time when the complaint was not mentioning that the $41,100 that allegedly causes the unjust enrichment had been paid by means of a check to the order of my corporation ? Am I supposed to answer precisely to an allegation that is general ?

It was just alleged thta the sum was disbursed to me.

26. As a result, Plaintiff disbursed the remaining $41,100.00 to Defendants since the
Defendants were soon to be owners for the Property.

The evidence of the check itself was not pleaded until the trial hearing and the photocopy of the check was produced to me 3 days before the hearing. So I pleaded at the hearing that the Plaintiff was suing the wrong defendant and that because I was not the beneficiary of the check., Plaintiff failed to state a cause of action.

In my answers to his complaint my lawyer had stated that the check was to refund previous works, which is correct , but again, I had no time to gather the documents of a corporation that i was no longer the CEO of at the trial hearing in anticipation that I had to represent the same corporation thta Plaintiff had failed to join as indispensable party.

So my point is here that the mistake is in the final judgment to ignore the facts and to find thta I benefited of the unjust enrichment by assumption based on no evidence and despite my formal answer ( see above), and the facts could not be pleaded before the trial hearing ?

Now here is my logic : this situation is equivalent to a situation of a default judgment on a case that fails to state a cause of action.

What do you think ?

Could my lawyer have asked me about the $41,100 check and then file a motion to strike the case for failure of stating a cause of action ? In theory, yes, in practice,no, because I took the decision to be hospitalized 3 months after the judge had initially dismissed the complain with leave to amend in 20 days. 3 months > 20 days and the plaintiff amended 4 months later without requesting leave to amend after the largely expired time, for any kind of reason

You're looking at the evidence. Remember, that's not what a motion to dismiss for failure to state a claim is. If I say "I loaned Peter $40,000, he agreed to repay me, and he didn't," on a Motion to Dismiss, the judge has to assume that's correct. He's only looking at whether a cause of action exists when a person agrees to pay back a loan and fails to do so. He doesn't get to consider any other evidence. If the argument is "That check was made out to someone else," that's usually a basis for summary judgment, because it requires that the judge look at the check, which is evidence.

A Motion for Summary Judgment cannot be filed after the judgment is entered, and neither can a Motion to Dismiss. The arguments you're making is that the judge applied the law incorrectly, and that's a basis for appealing to another court.

A default judgment is entered when a person never responds. You can argue that the judge ignored your evidence, that he was unfair, or that he didn't apply the law correctly, but not that he issued a default judgment in error. But, again, those are appellate arguments.
Customer: replied 3 years ago.

Ok, I get your point, thank you, but I am referring to a judicial mistake to assume at trial hearing that a check to the order of a Company is causing an unjust enrichment to one of its members, and for me to file a motion for relief 1.540 (b) against that to avoid the costs of appeal if possible, and otherwise appeal the order if denied and my grounds are solid of course ?

1.54(b) allows for relief from judgment due to a mistake of a party, but it's not used for mistakes made by the judge.
Customer: replied 3 years ago.

Thank you Lucy. Truly, this is very confusing to me, especially the "mistake of a party" so I will need to read some FL bar articles and law cases based on what you say, and ask you some further question a bit later here. Please bear with me.

Take your time. If you have more questions, I'm here.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 27011
Experience: Lawyer
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