10th District Court of Appeal challenges the response time for a motion to dismiss.

The appellate court held that the trial court prematurely granted a motion to dismiss because it did not wait the full 28 days allowed by Rule 15(C). Civil Rule 6(C) was amended in 2019 to make all motion response times uniform across the state. Civil R. 6(C) states that “responses to a written motion, other than motions for summary judgment, may be served within 14 days after service of the motion.” In Brenson, the defendant filed a motion to dismiss a pro se plaintiff’s complaint. The court waited 16 days before granting the motion. The plaintiff appealed, arguing, in part, that the ruling was premature, and the Court of Appeals agreed, finding that Civ.R. 15 controlled. Civil Rule 15 states that a complaint may be amended as a matter of course within 28 days after service of a motion under Civ.R. 12(B), (E), or (F). The 10th District held that a motion to dismiss is not ripe for ruling until 28 days have passed, thus giving the plaintiff the opportunity to amend.

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