HEARING ARGUMENTS...

REQUEST FOR JUD NOITICE

As every securities litigator knows, the first major event following a case’s filing is
typically the motion to dismiss. Generally, the court’s review of the complaint’s sufficiency
is confined to the four corners of the pleading itself. Two exceptions to this rule, however,
permit the court to consider documents extraneous to the complaint in evaluating a motion
to dismiss: request for judicial notice and the doctrine of incorporation by reference. The
former permits the court to judicially notice an adjudicative fact if it is “not subject to
reasonable dispute.” Fed. R. Evid. 201(b). The latter “treats certain documents as though
they are part of the complaint itself,” Khoja v. Orexigan Therapeutics, Inc., 899 F.3d 988,
1002 (9th Cir. 2018), “if the plaintiff refers extensively to the document or the document
forms the basis of the plaintiff’s claim,” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.
2003).

“And under Florida statutes, the judge must consider evidence to determine
whether or not the plaintiff has a reasonable chance of succeeding on its claim
of proving a breach of trust. And that’s just one example of many, but that’s a
statutory requirement for an evidentiary hearing.

MOTION TO STRIKE

Moreover, the trial court must hold an evidentiary hearing before deciding a Rule 1.150
motion to strike. See Reyes v. Roush, 99 So. 3d 586, 590-91 (Fla. 2d DCA 2012); Furst
v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999). However, the required
evidentiary hearing is not meant to try the issues, but rather determine whether there are
any genuine issues to be tried. Cromer, 861 So. 2d at 525. The argument of counsel at
such a hearing (or any hearing) is not evidence. Reyes, 99 So. 3d at 590–91. The
submission of affidavits does not excuse the requirement for an evidentiary
hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA
1991).

In order to succeed on a motion to strike under Rule 1.150, the movant must
demonstrate that the pleading is “a mere pretense, set up in bad faith and without color
of fact,” or that it is “inherently false and, based on plain or conceded facts, clearly
known to be false at the time the pleading was made.” Sean R. Santini, Motions to Strike
Sham Pleadings and Summary Judgment Motions: Is There A Difference?, 77 Fla. B.J.
52 (Oct. 2003).

Findings If the court makes a finding of good cause to exclude live testimony, it must
state its reasons on the record or in writing

opposing party has an opportunity to cross-examine those witnesses and also call
witnesses of their own after the moving party concludes their direct examination.

opposing party has an opportunity to cross-examine those witnesses and also call
witnesses of their own after the moving party concludes their direct examination.

First, a motion to strike sham pleading requires the court to conduct a full-blown
evidentiary hearing that may include the taking of live testimony. “Rule 1.150(a)
contemplates a full evidentiary hearing[.]” Furst v. Blackman , 744 So. 2d 1222, 1224
(Fla. 4th D.C.A. 1999).