MYRTLE GANNON v. JOHN CUCKLER, M. D. ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MYRTLE GANNON, )
)
Appellant, )
)
v. ) Case No. 2D17-4888
)
JOHN CUCKLER, M.D.; ALABAMA )
MEDICAL CONSULTANTS, INC.; )
BIOMET, INC.; BIOMET )
ORTHOPEDICS, LLC; BIOMET U.S. )
RECONSTRUCTION, LLC; and BIOMET )
MANUFACTURING, LLC, )
)
Appellees. )
)
Opinion filed October 16, 2019.
Appeal from the Circuit Court for Collier
County; Lauren L. Brodie, Judge.
Jennifer Anne Gore Maglio of Maglio
Christopher & Toale, P.A., Sarasota,
for Appellant.
Jonathan S. Lawson of LaDue Curran &
Kuehn, LLC, South Bend, Indiana; and
Stacy D. Blank, Lee P. Teichner, and
Patrick M. Chidnese of Holland & Knight
LLP, Tampa, for Appellees.
SALARIO, Judge.
This is a technical opinion about provisions of a rule of civil procedure
regulating the presentation of defenses to a complaint; it starts out a bit dry and dense
but picks up some steam at the end as we certify conflict with several other
cases. Myrtle Gannon is appealing from a final order of dismissal, specifically that part
of the final order that dismissed her claims against Biomet, Inc., Biomet Orthopedics,
LLC, Biomet US Reconstruction, LLC, and Biomet Manufacturing, LLC—we refer to
them collectively as Biomet—for lack of personal jurisdiction. The issue is whether
Biomet waived that defense by failing to assert it at the time and in the manner required
by subsections (b), (g), and (h) of Florida Rule of Civil Procedure 1.140. Ms. Gannon
says it did because it filed a motion to dismiss that failed to assert personal jurisdiction
under the rule. Biomet says that is not a problem because it denied personal
jurisdiction in its answer and filed an amended motion before the dismissal hearing that
did raise the defense. We hold the text of rule 1.140 is unambiguous and precludes
Biomet's arguments. We affirm so much of the trial court's order as Ms. Gannon has
not challenged and reverse to the extent the trial court dismissed on personal
jurisdiction grounds. Recognizing that the Third, Fourth, and Fifth Districts have
reached a different result on whether the filing of an amended motion to dismiss prior to
a hearing cures a failure to raise personal jurisdiction in an earlier motion, we certify
conflict as we describe below.
I.
The underlying litigation is, at bottom, a products liability case about an
allegedly defective hip replacement. According to Ms. Gannon, the hip replacement
was manufactured by Biomet. Dr. Cuckler and his business, Alabama Medical
Consultants, were involved in the development and promotion of the product. We refer
to those two parties collectively, for convenience, simply as Dr. Cuckler.
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Ms. Gannon filed her complaint against Biomet and Dr. Cuckler on April 8,
2016 in circuit court in Collier County, Florida. Speculation about why she chose that
forum is fair game.1 Ms. Gannon does not herself live in Florida, and her hip
replacement surgery was not performed here. Biomet is organized under Indiana law
and has its head offices there. It looks like Biomet's manufacture of the hip replacement
has no connection whatever to the Sunshine State. And at the time of the conduct that
matters in this case, Dr. Cuckler was resident in Alabama. As it happens, though, Dr.
Cuckler later retired to Naples, Florida. The complaint alleged that jurisdiction was
proper in Florida because that is where Dr. Cuckler now resides.
On May 4, 2016, Biomet and Dr. Cuckler filed a joint motion to dismiss the
complaint based on forum non conveniens (i.e., the idea that Florida is an inconvenient
forum for resolution of the case) under rule 1.061 and to dismiss certain counts of the
complaint for failure to state a claim upon which relief can be granted under rule
1.140(b). This motion did not assert that the court lacked personal jurisdiction over any
defendant. At about the same time, Biomet and Dr. Cuckler each filed separate
answers. Those answers did not assert lack of personal jurisdiction as a defense either.
With respect to Ms. Gannon's allegation that the court had jurisdiction, however, the
answers asserted that the allegation "contains legal conclusions to which no response is
1Biomet makes a convincing case that she chose Florida to avoid removal
to federal court based on diversity jurisdiction on the basis that, as we describe above,
she has named one Florida resident as a defendant. See 28 U.S.C. § 1441(b)(2)
(2016). Avoiding federal court enables Ms. Gannon to avoid having her case
transferred to the United States District Court for the Northern District of Indiana, where
a federal multidistrict litigation proceeding concerning the hip replacement at issue here
is currently pending. See 28 U.S.C. § 1407(a).
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required." They also stated that "to the extent a response is required," the allegation is
denied.
At this point, the procedure in the trial court gets a little complex. The
same law firm that represented Ms. Gannon had also filed several other complaints
against Biomet and Dr. Cuckler in Collier County on behalf of other plaintiffs. The
defendants and Ms. Gannon agreed that a hearing on the motion to dismiss in this case
would be delayed pending a hearing on a motion to dismiss in another one of these
cases called Eanes v. Cuckler. Biomet and Dr. Cuckler had also raised forum non
conveniens in their motion in Eanes, and the parties thought that a decision in Eanes
would inform the decision in this case. The trial court granted the defendants' motion to
dismiss in Eanes in October 2016, and this court affirmed that order without opinion in
April 2017. See Eanes v. Cuckler, 225 So. 3d 811 (Fla. 2d DCA 2017) (table decision).
Three months later, on July 3, 2017, the defendants filed an amended
motion to dismiss in this case. Like the original motion, the amended motion urged
dismissal based on forum non conveniens. It differed from the original, however, in that
it jettisoned the argument that the complaint failed to state a claim and introduced a new
argument that the claims against Biomet should be dismissed for lack of personal
jurisdiction.
The personal jurisdiction argument was based on the factual assertions—
which Biomet later supported with affidavits—that Biomet was not organized under
Florida law, did not maintain operations in Florida, and did not do anything related to the
hip replacement in Florida and that neither Ms. Gannon nor anything about her hip
replacement bore any connection to Florida. As legal support, the amended motion
relied on the recent decision in Bristol-Myers Squibb Co. v. Superior Court of California,
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San Francisco County, 137 S. Ct. 1773 (2017), in which the United States Supreme
Court held that the due process clause did not permit a court to exercise specific
personal jurisdiction over the manufacturer of an allegedly dangerous drug in materially
similar circumstances. Biomet further asserted that its failure to argue personal
jurisdiction in its original motion did not result in a waiver because the filing of an
amended motion asserting the defense prior to a hearing timely preserved it.
With the agreement of the parties, the trial court considered the motion
without a hearing on the basis of legal memoranda and affidavits related to jurisdictional
facts. It then rendered an order granting the motion. It dismissed the claims against
Biomet "with prejudice" based on a lack of personal jurisdiction. It further held that
Biomet and Dr. Cuckler, to the extent not dismissed based on a lack of personal
jurisdiction, were dismissed based on forum non conveniens. After the trial court denied
a motion for rehearing on the waiver issue, Ms. Gannon took this timely appeal.
II.
Ms. Gannon's sole argument on appeal is that Biomet's failure to include
personal jurisdiction in its original motion to dismiss resulted in a waiver of that defense
under rule 1.140.2 The facts are undisputed. Resolution of the issue requires no more
2Because the trial court also dismissed on the basis of forum non
conveniens, one might wonder "why bother?" Ms. Gannon is concerned that the
personal jurisdiction dismissal will be argued to expose her to the running of the statute
of limitations when she refiles in an alternate forum, and she believes that the forum non
conveniens dismissal will not. See Fla. R. Civ. P. 1.061(c) (providing that a party
seeking dismissal on the basis of forum non conveniens stipulates that when the action
is filed in the new forum, it will be treated as filed on the date it was filed in Florida). We
further note that the trial court's order says that the personal jurisdiction dismissal is
"with prejudice," while it does not say the same with respect to the forum non
conveniens dismissal. See Fla. R. Civ. P. 1.420(b). Although we question the
correctness of the trial court's "with prejudice" determination on the jurisdictional
dismissal, Ms. Gannon has not raised that as an appellate issue here.
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than that we interpret rule 1.140 and apply it to the undisputed facts. Our review is de
novo. See Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla. 2006);
Tunison v. Bank of Am., N.A., 144 So. 3d 588, 590 (Fla. 2d DCA 2014).
A.
We approach the interpretation of a rule of civil procedure in much the
same way as we approach the interpretation of a statute. See Koppel v. Ochoa, 243
So. 3d 886, 891 (Fla. 2018) (quoting Saia, 930 So. 2d at 599). We begin with the
ordinary meaning of the text of the rule, and if that text is unambiguous, we end there as
well. Koppel, 243 So. 3d at 891; see also Metcalfe v. Lee, 952 So. 2d 624, 628 (Fla. 4th
DCA 2007) (holding that courts must interpret rules of civil procedure in accord with
their "plain and ordinary meaning" (quoting Weber v. Dobbins, 616 So. 2d 956, 958 (Fla.
1993))). When a rule is unambiguous, we cannot add words we wish were there,
remove words we wish were not, or do anything other than apply the rule as written.
See Deutsche Bank Nat'l Tr. Co. v. Quinion, 198 So. 3d 701, 703 (Fla. 2d DCA 2016);
cf. Kephart v. Hadi, 932 So. 2d 1086, 1091 (Fla. 2006) (explaining that when statutory
language is unambiguous, its meaning comes exclusively "from the words used without
involving rules of construction or speculating as to what the legislature intended."
(quoting Zuckerman v. Alter, 615 So. 2d 661, 663 (Fla. 1993))). A rule is ambiguous
when it can reasonably be understood as meaning more than one thing. Koppel, 243
So. 3d at 891. If a rule fits that bill, we can select among those competing meanings
with the help of other aids to construction. See id. (citing Gulfstream Park Racing Ass'n,
Inc. v. Tampa Bay Downs, Inc., 948 So. 2d 599, 606 (Fla. 2006)).
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We turn, then, to the text of rule 1.140. The rule regulates the
presentation of defenses in response to a civil complaint.3 It provides that a defendant
must raise all of its defenses to a complaint in an answer, which is a form of "responsive
pleading" provided for in the civil rules. See Fla. R. Civ. P. 1.140(a)(1); see also Fla. R.
Civ. P. 1.100(a). However, the rule also permits some defenses to be presented by a
motion filed prior to the answer. See Fla. R. Civ. P. 1.140(a)(3), (b). Rule 1.140(b)
provides in relevant part:
Every defense in law or fact to a claim for relief in a pleading
must be asserted in the responsive pleading, if one is
required, but the following defenses may be made by motion
at the option of the pleader: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5) insufficiency
of service of process, (6) failure to state a cause of action,
and (7) failure to join indispensable parties. A motion
making any of these defenses must be made before
pleading if a further pleading is permitted. The grounds on
which any of the enumerated defenses are based and the
substantial matters of law intended to be argued must be
stated specifically and with particularity in the responsive
pleading or motion. Any ground not stated must be deemed
to be waived except any ground showing that the court lacks
jurisdiction of the subject matter may be made at any time.
(Emphasis added.) With respect to the personal jurisdiction issue in this case, the rule
has only one reasonable interpretation. Its text says (1) that a personal jurisdiction
defense may be asserted in a pre-answer motion or the answer; (2) that either way, the
3The rule also governs the presentation of defenses and objections to any
pleading to which a responsive pleading is permitted and so covers things like defenses
or objections to be asserted in response to a counterclaim, a third-party claim, or an
affirmative defense. See Fla. R. Civ. P. 1.100(a) (defining pleadings to include a
complaint, a petition, an answer, an answer to a counterclaim, an answer to a
crossclaim, a third-party complaint, and a third-party answer); 1.140(b) (describing
defenses to a claim asserted in a pleading and requiring that the defenses be asserted
in a motion or responsive pleading). For simplicity's sake, we discuss the rule as it
applies in the context of this case, involving a response to a complaint.
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grounds for the defense and the matters of law intended to be argued must be stated
specifically and with particularity; and (3) that any rule 1.140(b) defense not stated in the
motion or the answer is waived, except for subject matter jurisdiction.
Rule 1.140 contains additional provisions specifying the circumstances
under which a defense may be lost if not properly asserted. Rule 1.140(g) requires that
all rule 1.140(b) defenses be raised in a single motion, stating that "[i]f a party makes a
motion under this rule but omits from it any defenses or objections available to that party
that this rule permits to be raised by motion, that party shall not thereafter make a
motion based on any of the defenses or objections omitted, except as provided in
subdivision (h)(2) of this rule." (Emphasis added.) And rule 1.140(h)(1) states that "[a]
party waives all defenses and objections that the party does not present either by
motion under subdivision[] (b) . . . of this rule or, if the party has made no motion, in a
responsive pleading except as provided in subdivision (h)(2)."4 (Emphasis added.) The
only exceptions to these consolidation and waiver provisions available to the defendant
in an action are the defenses of failure to state a cause of action or failure to join an
indispensable party—which may be raised by motion for judgment on the pleadings or
at trial—and subject matter jurisdiction—which can be raised at any time.5 See Fla. R.
Civ. P. 1.140(h)(2).
4Rule 1.140 also contemplates motions for more definite statement and
motions to strike, and the consolidation and waiver provisions of the rule are implicated
by those motions as well. See Fla. R. Civ. P. 1.140(e)-(h). Again for simplicity's sake,
we discuss the rule in the context presented here, a rule 1.140(b) motion to dismiss.
5There appears to be some potential tension between the text of rule
1.140(b), which provides that any defense except subject matter jurisdiction is waived
unless asserted in a pre-answer motion or answer, and rule 1.140(h)(2), which
considers the defenses of failure to state a claim and failure to join an indispensable
party as additional exceptions to the rule of waiver. See Bruce J. Berman and Peter J.
-8-
Thus, as applied to any rule 1.140(b) defense other than failure to state a
cause of action, failure to join an indispensable party, and lack of subject matter
jurisdiction, subsections (g) and (h) of the rule unambiguously provide that (1) if made in
a pre-answer motion, all such defenses must be joined together and those not joined in
the motion may not be made in a subsequent motion and that (2) any defense not
asserted in a pre-answer motion or the answer (if the party has not made a motion), is
waived. And in general, Florida courts have interpreted and applied the rule in accord
with the understanding its text clearly conveys. See, e.g., Crownover v. Masda Corp.,
983 So. 2d 709, 712 n.2 (Fla. 2d DCA 2008) ("However, '[t]he first step which a party
takes in a case, whether it be the filing of a preliminary motion or a responsive pleading,
must raise the issue of personal jurisdiction or that issue is waived.' " (alteration in
original) (quoting Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794,
795 (Fla. 4th DCA 1987))); Straske v. McGillicuddy, 388 So. 2d 1334, 1336 (Fla. 2d
DCA 1980) (holding that a rule 1.140(b) venue defense was waived when raised for the
first time after the answer).
Applying that understanding to the facts, we know that Biomet made a
motion under rule 1.140(b) that included the defense of failure to state a cause of action
and that did not include the defense of lack of personal jurisdiction. The consequence
is that under rule 1.140(g), Biomet was not free to make another pre-answer motion
asserting personal jurisdiction and that under rule 1.140(h), the defense was waived.
That Biomet responded to Ms. Gannon's jurisdictional allegation in its
answer—first denying that it had any obligation to answer the allegation at all and, as a
Webster, Berman's Fla, Civ. P., § 1.140:28 (2019). That potential tension is not
implicated in this case, however, and we do not address it further.
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backup, denying the allegation to the extent it had such an obligation—is of no legal
consequence for two reasons. The first has to do with the waiver provision of rule
1.140(h)(1). That rule permits a rule 1.140(b) defense to be raised for the first time in
the answer only "if the party has made no motion." The motion to which that phrase
refers is identified earlier in rule 1.140(h)(1) as a "motion under subdivision (b) . . . of
this rule." Thus, the rule permits the assertion of a rule 1.140(b) defense in the answer
only if the party has not made a motion under rule 1.140(b). Here, Biomet made a
motion under rule 1.140(b). Under the rule, then, it was not at liberty to assert the rule
1.140(b) defense of lack of personal jurisdiction in the answer.6
The second reason Biomet's denial of Ms. Gannon's jurisdictional
allegation in its answer is unavailing has to do with rule 1.140(b). That rule requires a
defendant asserting a listed defense, whether in a pre-answer motion or in the answer,
to assert the grounds for the defense and the substantial matters of law to be argued
with respect to the defense "specifically and with particularity." Biomet's response to
Ms. Gannon's jurisdictional allegation, in contrast, is first and foremost a denial of any
obligation to respond to a jurisdictional allegation, not a denial of personal jurisdiction
itself. Furthermore, it does not state either the "grounds" for a personal jurisdiction
6Given the rule's expression "if the party has made no motion," we do not
think that fact the motion and answer were filed simultaneously is of any consequence.
In that regard, we have considered the supreme court's decision Florida Department of
Children & Families v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1284 (Fla. 2004), which held
that "a motion to transfer venue, filed simultaneously with a timely asserted objection to
personal jurisdiction, does not waive the jurisdictional objection," but do not think it
applicable here. The question in Sun-Sentinel was whether a "motion to transfer venue
was a request for affirmative relief" that operates to waive jurisdictional objections. Id.
at 1281, 1289. This case presents a different question: whether the text of rule 1.140(h)
creates a waiver when a motion to dismiss is filed that does not raise a jurisdictional
objection, but such an objection is arguably raised in the answer.
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defense or the "substantial matters of law" that defense entails—whether specifically,
with particularity, or otherwise. See Fla. R. Civ. P. 1.140(b). Viewed as favorably to
Biomet as possible, the response is at most an unadorned denial lacking any factual or
legal support. We need not define the outer limits of the requirement that the "grounds
and substantial matters of law" undergirding a rule 1.140(b) defense be "stated
specifically and with particularity" to know that Biomet's response here does not come
close. See Three Seas Corp. v. FFE Transp. Servs, Inc., 913 So. 2d 72, 74 (Fla. 3d
DCA 2005) (holding that a party's argument that "a simple unexplained denial to the
allegation that venue was proper" was sufficient under rule 1.140(b) was "without
merit"); see also Roach v. Totalbank, 85 So. 3d 574, 578 (Fla. 4th DCA 2012) (holding
service of process and personal jurisdiction defenses were insufficiently pleaded where
they "merely recited the defenses without setting forth 'the substantial matters of law
intended to be argued' and without stating 'with particularity' the basis for those
defenses" (quoting Fla. R. Civ. P. 1.140(b))).
Biomet cites a number of federal decisions interpreting Federal Rule of
Civil Procedure 12 that say that a defendant's denial of a complaint's jurisdictional
allegations in the answer is enough to assert the defense. See, e.g., Fabara v. GoFit,
LLC, 308 F.R.D. 380, 400 (D.N.M. 2015) (construing a defendant's "denial of [a]
personal-jurisdiction allegation as effectively asserting a personal-jurisdiction defense");
McDermott v. FedEx Ground Sys., Inc., 520 F. Supp. 2d 254, 257 (D. Mass. 2007)
(finding no waiver where defendant specifically denied plaintiff's allegation of personal
jurisdiction and promptly moved to dismiss thereafter). But see Sergilles v. Waste
Mgmt., Inc., Case No. 07-81213-CIV-RYSKAMP/VITUNAC, 2008 WL 11333170, at *3
(S.D. Fla. June 24, 2008) ("WMI did not preserve its affirmative defense of lack of
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personal jurisdiction when it merely denied those allegations in the complaint."). Those
cases are not useful here, however, because the federal rule differs from rule 1.140(b)
in a crucial respect: It does not contain a requirement that the grounds and substantial
matters of law supporting a defense be stated specifically and with particularity.
To rely on federal decisions interpreting the federal rule to hold that
Biomet's answer sufficiently asserts a personal jurisdiction defense effectively reads the
requirement that the grounds and substantial matters of law supporting a rule 1.140(b)
defense be stated specifically and with particularity out of the rule. As an appellate
court applying principles of statutory construction to interpret a rule of procedure, we
must give meaning to the words that are there and are not at liberty to remove them.
See Nat'l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So. 3d 498, 505 (Fla. 2d DCA
2016) ("It is not within our authority, however, to rewrite an unambiguous statute.").
Taking rule 1.140(b) as written, then, even if Biomet's response to Ms. Gannon's
jurisdictional allegation qualifies as a bona fide denial, that denial is insufficient to save
its personal jurisdiction defense from the waiver provisions of rules 1.140(b) and (h).
See Roach, 85 So. 3d at 578 (holding that personal jurisdiction defense was waived
where not pleaded "specifically and with particularity"); Three Seas, 913 So. 2d at 74-75
("As the [rule 1.140(b)] defense of improper venue was not pled with particularity in this
case, the point was waived."); cf. Schoeck v. Allstate Ins. Co., 235 So. 3d 953, 956 (Fla.
2d DCA 2017) (relying on the waiver provision of rule 1.140(h)(1) to hold that the
defense of nonoccurrence of a condition precedent was waived by virtue of a failure to
comply with the particularity requirement for pleading that defense contained in rule
1.120(c)).
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Because Biomet's response to Ms. Gannon's jurisdictional allegation does
not cure its failure to assert personal jurisdiction in its motion to dismiss, we can deem
the defense preserved only if Biomet's assertion of personal jurisdiction in its amended
motion to dismiss does cure that failure. It is to that question that we now turn.
B.
By way of framing the legal question concerning Biomet's assertion of a
personal jurisdiction defense in its amended motion to dismiss, we note that although
the amended motion relied on the United States Supreme Court's opinion in Bristol-
Myers Squibb, which was rendered after Biomet filed its original motion, Biomet
conceded at oral argument that the personal jurisdiction defense was nonetheless
"available" to it when it filed its original motion.7 Fla. R. Civ. P. 1.140(g) (requiring
consolidation of all rule 1.140(b) defenses "available to that party"). Accordingly, the
question before us is whether a party may file an amended motion before a hearing on
an original motion and assert a rule 1.140(b) defense it could have but did not assert in
its original motion without triggering the waiver and consolidation provisions of rules
1.140(g) and (h).
The answer to that question is no because a yes answer is demonstrably
inconsistent with the text of those rules. Under rules 1.140(g) and (h), when a party
"makes a motion" under rule 1.140(b) and fails to join all rule 1.140(b) defenses then
available to it, it cannot "thereafter make a motion" asserting the omitted defense and is
deemed to have waived that defense. Thus, once Biomet filed "a motion" under rule
7This concession was correct. Bristol-Myers Squibb itself states that it
was merely engaged in the "straightforward application . . . of settled principles of
personal jurisdiction." 137 S. Ct. at 1783. And the jurisdictional facts were the same
when Biomet filed its original motion as they were when it filed its amended motion.
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1.140(b) and omitted a personal jurisdiction defense, it waived that defense and could
not "thereafter make" another motion advancing it. The fact that Biomet labeled its
second motion an "amended motion" and filed it prior to a hearing on the original motion
does not matter insofar as the rule as worded is concerned. Whatever Biomet called it
and whenever Biomet filed it, the amended motion was, with respect to Biomet's original
motion, a motion Biomet "thereafter ma[de]."
To make Biomet's argument make sense as a textual matter, we would
need to say that an amended motion filed before a hearing is not, in the parlance of rule
1.140(g), "a motion" that a party "thereafter make[s]" when it has first made an initial
motion—perhaps because the amended motion is just a modification to it that remains
part and parcel of the original. But that is not a reasonable understanding of the
ordinary meanings of the terms "a motion" and "thereafter make." Plainly, the use of the
article "a" before the term "motion" in the rule denotes the filing of a singular motion.
Just as in ordinary conversation "a pencil" denotes one pencil and "a meal" denotes one
meal, the term "a motion" as used in rule 1.140(g) denotes one motion. See, e.g.,
Bautista v. State, 863 So. 2d 1180, 1182-83 (Fla. 2003) (discussing the legislature's use
of the article "a" with respect to allowable units of prosecution under a criminal statute).
And as used with reference to the singular "a motion," the phrase "thereafter make" in
rule 1.140(g) equally plainly denotes a different, discrete motion made after an original.
See Thereafter, Merriam-Webster, www.merriam-webster.com/dictionary/thereafter (last
visited Aug. 16, 2019).
The amended motion to dismiss was quite plainly a different, discrete
motion from the original. It was filed at a later time; it was docketed as a separate court
filing; and it differed substantively from the original predecessor motion in multiple
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respects—most significantly in that it abandoned its predecessor's failure to state a
claim argument and included a new defense of personal jurisdiction. And that
understanding of Biomet's amended motion is consistent with how we ordinarily
understand the concept of amendment when applied to court filings. When a party in a
civil lawsuit files an amended complaint or answer, for example, we regard the
amended document as a new and separate filing that displaces its predecessor. See
Thomas v. Hosp. Bd. of Dirs. of Lee Cty., 41 So. 3d 246, 254 (Fla. 2d DCA 2010) ("[I]t is
a long established rule of law that an original pleading is superseded by an amended
pleading which does not indicate an intention to preserve any portion of the original
pleading." (quoting Arthur v. Hillsborough Cty. Bd. of Crim. Justice, 588 So. 2d 236, 237
(Fla. 2d DCA 1991))). So too when the State files an amended information in a criminal
case. See, e.g., Bryant v. State, 757 So. 2d 617, 618 (Fla. 4th DCA 2000), receded
from on other grounds by State v. Demars, 848 So. 2d 436 (Fla. 4th DCA 2003); State
v. Calle, 560 So. 2d 355, 356 (Fla. 5th DCA 1990). When a party files an amended brief
in this court, we regard the amended filing as a new and separate document and
disregard the old one. As ordinarily understood, then, the amended motion filed by
Biomet here is a new motion that Biomet "thereafter made" within the meaning of rule
1.140(g).
Because it is not possible to make textual sense of Biomet's amendment-
before-hearing argument, we suspect that Biomet may really mean that when a party
amends a rule 1.140(b) motion, we should treat the amended motion as relating back to
the party's original motion. The concept of relation back—the idea that an amended
filing is treated as having been filed together at the same time as the original—appears
in rule 1.190 governing amended pleadings. See Fla. R. Civ. P. 1.190(c). And by the
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terms of that rule, relation back is a concept that applies to amended pleadings, not
amended motions. See id. A motion is not a pleading within the meaning of the civil
rules. See Fla. R. Civ. P. 1.100 (itemizing pleadings and stating that no pleadings other
than those itemized "will be allowed" and defining motions separately as "[a]n
application to the court for an order"); Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567
(Fla. 2005) ("Moreover, a motion to dismiss is not a 'responsive pleading' because it is
not a 'pleading' under the rules."). Thus, to treat Biomet's amended motion as relating
back to the original, we would need to do one of two things—either add a provision
governing amendments and relation back to rule 1.140 or add a provision governing
motions to rule 1.190. Those might be desirable edits to the rules. But they are not
edits that we, as an intermediate appellate court reviewing a final order, enjoy the
freedom to make. See, e.g., Quinion, 198 So. 3d at 703 (declining to read an exception
into rule 1.120(c)'s requirement that conditions precedent be denied with particularity
because "the rule's language does not brook exceptions for certain kinds of conditions
precedent"); Three Seas, 913 So. 2d at 75 (rejecting a party's argument that rule
1.140(b)'s particularity requirement does not apply where a defense appears on the face
of the pleadings because "[r]ule 1.140(b) contains no such exception. The defendant
must follow the terms of the rule."); see also art. V, § 2(a), Fla. Const. ("The supreme
court shall adopt rules for the practice and procedure in all courts . . . .").
We acknowledge that the Third, Fourth, and Fifth Districts 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
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in the amended motion and have it treated as timely.8 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). A review of these opinions and
others cited in them or that cite to them shows that they do not state a basis for an
amendment-before-hearing exception that is at all grounded in the text of rule 1.140.
That is unsurprising: As we have shown, an amendment-before-hearing exception to
the consolidation and waiver provisions of rule 1.140(g) and (h) finds no support in the
text of the rules. The most these decisions assert as reasoning is (1) that not allowing
an exception in such circumstances would be "hypertechnical," Astra v. Colt Indus.
Operating Corp., 452 So. 2d 1031, 1032 (Fla. 4th DCA 1984), and (2) that the purpose
of rule 1.140(g) and (h) is to discourage "dilatory tactics," a concern that is not present
when a party amends before a hearing, Gross v. Franklin, 387 So. 2d 1046, 1049 (Fla.
3d DCA 1980).9
8Biomet asserts that this court reached the same conclusion in Sunrise
Assisted Living, Inc. v. Ward, 719 So. 2d 1218, 1219-20 (Fla. 2d DCA 1998), but it
reads that decision too broadly. That case involved a third-party's motion to quash a
postjudgment writ of garnishment from a judgment creditor, which the third-party later
amended to assert a previously unasserted jurisdictional problem. Id. at 1219. Writs of
garnishment are not pleadings to which rule 1.140 applies, but rather they are
postjudgment proceedings governed by their own statutory procedure. See Fla. R. Civ.
P. 1.140(b) (governing the assertion of defenses "to a claim for relief in a pleading");
1.570(a) (stating that the enforcement of a money judgment shall be "by execution, writ
of garnishment, or other appropriate process or proceedings"); see also §§ 77.04, .06,
.061, Fla. Stat. (1997) (governing service of writ, answer to writ, and reply). Our
decision in Sunrise Assisted Living does not purport to interpret rule 1.140 and is not
applicable here.
9Although we cannot claim to have canvassed all of the federal reporters,
the federal decisions addressing the same issue under Federal Rule of Civil Procedure
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Under the supreme court precedents governing interpretation of the civil
rules, we do not believe we have the latitude to permit a concern about
hypertechnicality, even if we agreed with it, to override the clear meaning an
unambiguous rule conveys. And similarly, assuming for argument's sake that the
purpose of the waiver and consolidation provisions of rule 1.140 is solely to discourage
dilatory tactics, an appeal to that purpose also would not be not a permissible basis to
overlook or rewrite a rule's unambiguous language. See Nat'l Auto Serv., 192 So. 3d at
507 ("This appeal to the legislature's assumed purpose as an aid to statutory
construction is irrelevant, however, because the text of section 726.110(1) is
unambiguous."). In the end, the cases that recognize an amendment-before-hearing
exception to the consolidation and waiver provisions of rule 1.140 effectively graft upon
the rule an exception that its drafters did not choose to include. We respectfully
disagree with the reasoning of those decisions and certify conflict with them.
III.
Biomet made a rule 1.140(b) motion to dismiss Ms. Gannon's complaint
and omitted the defense of lack of personal jurisdiction from that motion. The result is
12 appear to be somewhat of a mixed bag, with an amendment-by-waiver exception
(founded in some dated cases) looking like the majority position. Compare MacNeil v.
Whittemore, 254 F.2d 820, 821 (2d Cir. 1958) (holding that the waiver provision of Rule
12 does not "prevent a judge in his discretion from permitting a party to expand the
grounds of motion well in advance of a hearing"), and Seal v. Riverside Fed. Sav. Bank,
825 F. Supp. 686, 692 n. 10 (E.D. Pa. 1993) ("Still, the waiver rules of Rule 12(h) do not
preclude a defendant from adding new grounds to a previously-filed motion to dismiss
before that motion is ruled upon."), with Heise v. Olympus Optical Co., 111 F.R.D. 1, 5
(N.D. Ind. 1986) ("The court concludes that no authority exists under the rules of
procedure for such an amendment."), and Consol. Rail Corp. v. Grand Trunk W. R.R.,
592 F. Supp. 562, 567 (E.D. Pa. 1984) (stating that the court was "unpersuaded" by the
amendment approach because Rule 12's waiver provision "becomes effective upon the
filing of any pre-answer motion to dismiss").
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that Biomet waived that defense and was precluded from asserting it in a subsequent
rule 1.140(b) motion. Under the unambiguous terms of rule 1.140, neither Biomet's
response to Ms. Gannon's jurisdictional allegation in its answer nor its filing of an
amended motion asserting the defense (a year and two months later) excuse or cure
the omission. We therefore reverse the trial court's order to the extent it dismissed the
complaint for lack of personal jurisdiction, affirm it in all other respects, and remand for
the trial court to reenter a final judgment of dismissal solely on the basis of forum non
conveniens. We also certify conflict with Cepero, Snider, Re-employment Services,
Waxoyl, Astra, and Gross.
Affirmed in part; reversed in part; remanded; conflict certified.
SILBERMAN and BADALAMENTI, JJ., Concur.
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