Motion to dismiss, FL

[928fan]

What is the name of your state? Florida.

I filed a small claims suit against a business owner, who in return filed a (retaliatory) suit against me. However, for the defendant she put my name DBA "the company name", but the DBA is owned by a corporation, not me the individual. Thus I am looking to have the case dismissed for insufficiency of process.
I've looked on my county's web site for a form, but cannot find any. How do I go about filing a motion to dismiss and where can I find the form?
Thanks!

 

[dcatz]

If there isn't a Small Claims form, the normal practice is to default to the procedure used in a higher forum.

Take a look at your SC statute and you'll probably see something like "except as provided herein, all actions and procedures shall follow Article A, Chapter B of such and such". That means you do it the long way.

But it's very probable that you don't have to worry. SC is informal. You sued her, so you'll be making an appearance anyway. If the judge doesn't inquire, "And Mr. fan, you're doing business under the fictitious business name of "the company name?" (expecting a "yes"), just tell him/her as the case starts:

"Your honor, I'm here as the plaintiff. The cross-defendant was served as [me] dba "the company name". That is not my dba; [I have no dba ?]. I have never registered that name. That dba is owned by and registered to XXX, Inc., and I have evidence to that effect. That service was defective." Show the court a fictitious name filing or business license or whatever you've got.

The court will rule that service was defective.

Your post doesn't suggest what might come next. Did she intend to file the cross-claim against you or against "the company name"? If it was against you, the court will probably ask whether, since you're there anyway, would you stipulate to service and allow the whole case to be heard? If you won't, it will be continued to a future date to allow her to make service properly, and you all go home.

If she intended to serve "the company name", the same thing will happen to allow her to serve "company".

Bottom line: there's a cross-claim. The court isn't going to throw hers out and just hear yours. They'll be heard together on that date or some other, so decide in advance what you're prepared to do - get it all out of the way or wait and, if the cross-claim was to be against you, defend that date or at some time in the future, when your own claim will also be heard.