Kohn v. City of Miami Beach, 611 So. 2d 538 (Fla. 3d DCA 1992). · Go Syfert
Search
Kohn v. City of Miami Beach, 611 So. 2d 538 (Fla. 3d DCA 1992). Cases Citing This Book View Copy Cite
Quick Summary

A pro se litigant is held to the same standard as a competent attorney and dismissal with prejudice is generally not an abuse of discretion after more than three amendment attempts.

A pro se litigant appealed the dismissal with prejudice of his complaint against a city and a county after he failed to cure defects in four successive amendment attempts. The court considered whether a pro se litigant should be held to a lesser standard than a reasonably competent attorney. Applying the principle that the privilege to amend decreases as an action progresses, the court held that dismissal with prejudice is generally not an abuse of discretion when a party has attempted more than three amendments. The court further determined that a pro se litigant must be held to the same standard as a competent attorney.

75 citation events (58 in the last 25 years) across 3 distinct courts.
Strongest positive: Devenson Walker v. Est. of Robert Yee, 376 So. 3d 758 (Fla. 4th DCA 2024)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
How cited ↗
Cited for
At page 539 Decreasing privilege of amendment in civil actions36 citing casesWe conclude that it is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.8 citing courts put it this way
  • Devenson Walker v. Est. of Robert Yee, 376 So. 3d 758 (Fla. 4th DCA 2024).published
    ([I]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.)
  • Richard Namon, Jr. v. Barbara Namon, 366 So. 3d 1153 (Fla. 3d DCA 2023).published
    (We conclude that it is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.)
  • Martin J. Bradley, III v. Jose Trespalacios, 353 So. 3d 1282 (Fla. 3d DCA 2023).published
    (While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.)
  • L. E. B. v. D. D. C., 304 So. 3d 54 (Fla. 2d DCA 2020).published
    ([I]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.)
  • Toscano Condo Assoc. v. Dda Engineers, 274 So. 3d 487 (Fla. 3d DCA 2019).published
    (It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice.)
  • Owens v. Ridley, 870 So. 2d 886 (Fla. 1st DCA 2004).published
    (While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.)
  • Juan Alberto Goya v. Rosa M. Hayashida, 418 So. 3d 652 (Fla. 4th DCA 2025).published
    Wife, “as a pro se litigant, was still required to adequately present [her] arguments on appeal.” Walker v. Est. of Yee, 376 So. 3d 758 , 758 (Fla. 4th DCA 2024). “[I]t is a mistake to hold a pro se litigant to a lesser standard than a rea…
  • SDSol Tech., LLC v. Stardam LLC, 389 So. 3d 647 (Fla. 3d DCA 2023).published
    “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”
  • Ivan Kapitanov v. Spinnaker Bay at the Waterways Condo. Ass'n, 349 So. 3d 538 (Fla. 3d DCA 2022).published 2 cites
    “Where a trial court grants a motion to dismiss with prejudice based on too many attempts to plead a cognizable complaint, we review such dismissal for abuse of discretion.” Griffin v. City of Sweetwater Police Dep’t, 319 So. 3d 89 , 92 (F…
  • Carlos Enrique Luna Lam v. Univision Commc'ns, Inc., 329 So. 3d 190 (Fla. 3d DCA 2021).published
    See id. at 1238 (“Generally, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or t…
Show 26 more citing cases
  • Eric Readon v. WPLG, LLC, 317 So. 3d 1229 (Fla. 3d DCA 2021).published
    Any amendment would therefore relate back. 15 [or her] discretion in dismissing with prejudice.” Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992).
  • Fritz v. Fritz, 219 So. 3d 234 (Fla. 3d DCA 2017).published
    (While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.)
  • Wilson Sr. v. Kade, 215 So. 3d 632 (Fla. 3d DCA 2017).published
    Coral Gables Distrib., Inc. v. Milich, 992 So.2d 302, 303 (Fla. 3d DCA 2008) (observing that “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in di…
  • Michael Gerstein v. Int'l Asset Value Grp., LLC, 199 So. 3d 979 (Fla. 4th DCA 2016).published
    (affirming dismissal with prejudice after four unsuccessful attempts to amend pleading to state a cause of action)
  • Carter v. State, 173 So. 3d 1052 (Fla. 3d DCA 2015).published
    “[I]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney”
  • Silveira v. Guardianship of Quiroga, 156 So. 3d 574 (Fla. 3d DCA 2015).published
    “lesser standard than a reasonably competent attorney”
  • Millen v. Millen, 122 So. 3d 496 (Fla. 3d DCA 2013).published
    “[i]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney”
  • Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178 (Fla. 3d DCA 2010).published
    (explaining that “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice)
  • Burgess v. PFIZER, INC., 990 So. 2d 1140 (Fla. 3d DCA 2008).published
    “a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims”
  • Charles v. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157 (Fla. 3d DCA 2008).published
    “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”
  • Aspsoft, Inc. v. WebClay, 983 So. 2d 761 (Fla. 5th DCA 2008).published
    “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”
  • Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440 (Fla. 5th DCA 2006).published
    “a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims”
  • Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005).published
    (holding that the trial court did not abuse its discretion where the plaintiff failed in four attempts to cure the defects in the complaint)
  • Rohlwing v. Myakka River Real Props., 884 So. 2d 402 (Fla. 2d DCA 2004).published
    Although amending four to ten times has been held excessive in other cases, see, e.g., Gladstone *407 v. Smith, 729 So.2d 1002 (Fla. 4th DCA 1999); Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992), there is no magical num…
  • Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001).published
    While the number of times a plaintiff has been allowed leave to amend may impact whether justice requires granting leave to amend, in the sense that a court should consider the effect defending against frivolous litigation would have on a…
  • Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000).published
    Id. at 539 (citations omitted).
  • Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999).published 2 cites
    “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”
  • Spancrete v. Ronald E. Frazier & Assoc., 630 So. 2d 1197 (Fla. 3d DCA 1994).published
    Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992).
  • Wiendl v. Hughes, Wiendl, 403 So. 3d 349 (Fla. 2d DCA 2025).published 2 cites
    See Kohn, 611 So. 2d at 539 ("There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims." (citing Feigin v. Hosp.
  • Arnaud Girard D'albissin v. Florida Fish & Wildlife Conservation Comm'n, 351 So. 3d 1124 (Fla. 3d DCA 2022).published
    See Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992) (“It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dis…
  • Victor R. Griffin v. City of Sweetwater Police Dep't, 319 So. 3d 89 (Fla. 3d DCA 2021).published
    See Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992).
  • Balch v. HSBC Bank, USA, N.A., 128 So. 3d 179 (Fla. 5th DCA 2013).published
    “We first note, ‘[i]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney”
  • Turkali v. City of Saf. Harbor, 93 So. 3d 493 (Fla. 2d DCA 2012).published
    See Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) (“[A]s an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his [or her] discretion in dismissing w…
  • Coral Gables Distrib., Inc. v. Milich, 992 So. 2d 302 (Fla. 3d DCA 2008).published
    See Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) ("It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dism…
  • Stueber v. Gallagher, 812 So. 2d 454 (Fla. 5th DCA 2002).published
    (holding that "it is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney)
  • Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999).published
    See Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992).
At page 540 Pro se representation does not relieve procedural obligations2 citing cases“a party’s self-representation does not relieve the party of the obligation to comply with any appropriate rules of civil procedure”1 citing court quotes it
  • Joyce Baker v. Max Yokell, 429 So. 3d 1090 (Fla. 5th DCA 2026).published
    “a party’s self-representation does not relieve the party of the obligation to comply with any appropriate rules of civil procedure”
  • James v. Crews, 132 So. 3d 896 (Fla. 1st DCA 2014).published
    As stated in Kohn v. City of Miami Beach, 611 So.2d 538, 540 (Fla. 3d DCA 1992): Compassion for a pro se litigant and justice under law are entirely different concepts that should not be confused.
At page 538 611 So.2d 538 (1992) Marvin KOHN, Appellant, v. CITY OF MIAMI BEACH, et al., Appellees. No. 91-2636. District Court of Appeal of Florida, Third District.…1 citing caseopening of page *538 (no citing court says what it cites this page for)
  • Gregg v. Lindsay, 649 A.2d 935 (Pa. Super. Ct. 1994).published
    Accord: Miami Beach Community Church, Inc. v. Stanton, 611 So.2d 538, 538 (Fla.App.1992) (per curiam); DeMaris v. Asti, 426 So.2d 1153, 1154 (Fla.App.1983).
Other citing cases3 with no pin cite or quoted language on record
Marvin KOHN, Appellant,
v.
CITY OF MIAMI BEACH, et al., Appellees.
91-2636.
District Court of Appeal of Florida, Third District.
Dec 8, 1992.
Published opinion
611 So. 2d 538
1992 Fla. App. LEXIS 12346
1992 WL 360847
Schwartz, C.J., and Hubbart and Nesbitt.
Cited by 51 opinions  |  Published

[*539] Marvin Kohn, in pro. per.

Robert A. Ginsburg, County Atty., and Steven B. Bass, Asst. County Atty., Laurence Feingold, City Atty. for City of Miami Beach and Debora J. Turner, Asst. City Atty., for appellee.

Before SCHWARTZ, C.J., and HUBBART and NESBITT, JJ.

NESBITT, Judge.

Marvin Kohn appeals the dismissal with prejudice of his complaint against the City of Miami Beach and Dade County. We affirm.

Kohn went to Miami Beach to observe the city's Fourth of July festivities, leaving eleven dogs unattended in his camper truck. When Kohn returned to the camper sometime later, he was arrested and charged with cruelty to animals. Thereafter, the Dade County Department of Animal Control picked up the unattended dogs. The Miami Beach Police Department briefly detained Kohn, and then released him. His eleven dogs were returned to him after ten days. Upon being returned, some of the dogs were in poor health and eventually died.

Kohn has failed in four attempts to cure the defects in his complaint correctly urged by the defendants below, including: a) the city and county are rendered immune from liability because the alleged common law torts of their employees are claimed to have been committed with malice and bad faith, see § 768.28(9)(a), Fla. Stat. (1991); b) the civil rights claims under 42 U.S.C. §§ 1983, 1988 (1991) fail because no invalid governmental policy of custom is alleged, see Monell v. Department of Social Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and c) it appears that the county employee named as a defendant is not liable for the damages complained of.

It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice. Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981). While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion. Alvarez, 395 So.2d at 217; American Seafood, Inc. v. First Union Nat'l Bank of Florida, 562 So.2d 437 (Fla. 3d DCA), review dismissed, 569 So.2d 1278 (Fla. 1990); McCuin v. Review Financial Printers, Inc., 582 So.2d 176 (Fla. 3d DCA 1991). There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims. Feigin v. Hospital Staffing Servs., Inc., 569 So.2d 941 (Fla. 4th DCA 1990).

Raised in this case, is the issue of whether Kohn, as a pro se litigant, should be treated differently from litigants in similar situations, represented by counsel. We conclude that it is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney. Section 454.18, Florida Statutes (1991) clearly provides "any person ... may conduct his own[*540] cause in any court of this state ... subject to the lawful rules and discipline of such court." Likewise, in Carr v. Grace, 321 So.2d 618 (Fla. 3d DCA 1975), cert. denied, 348 So.2d 945 (1977), we observed a party's self-representation does not relieve the party of the obligation to comply with any appropriate rules of civil procedure.[1]

Application of any lesser standard can only foment litigation by encouraging a litigant to act pro se and, when his seeming ability to plead a cause of action fails, to then engage an attorney to start again. Moreover, there is no reason to set lower standards for pro se litigants in the Eleventh Judicial Circuit since there is in place an ongoing program purposely designed to make qualified members of the bar available to litigants who qualify for their services.[2] Compassion for a pro se litigant and justice under law are entirely different concepts that should not be confused. Further, we should avoid the temptation to require governmental entities to defend because they seemingly have an inexhaustible supply of legal talent available. To do so would penalize the public who ultimately pays the bill.

Given a number of opportunities to state a claim against the city and county, Kohn failed to do so. Accordingly, the order under review is affirmed.

HUBBART, J., concurs.

SCHWARTZ, Chief Judge (dissenting).

Nothing said by the majority outweighs the fact that the defendants have escaped responsibility for what may well have been an unjustifiable deprivation of the pro se plaintiff's rights only because he has so far been unable to touch all the legal bases in drafting a supportable complaint. I believe that the interests of justice — with which I thought we were primarily concerned — require that he be given one last opportunity to do so.

1 Courts around the country have likewise recognized that once a party chooses to represent himself he cannot expect favored treatment from the court. Meeker v. Grey, 142 Ill. App.3d 717, 97 Ill.Dec. 72, 492 N.E.2d 508 (1986). Accord Copper State Bank v. Saggio, 139 Ariz. 438, 679 P.2d 84 (1983); In re Marriage of Snyder, 701 P.2d 153 (Colo. App. 1985); Basilicato v. Department of Pub. Util. Control, 197 Conn. 320, 497 A.2d 48 (1985); Schneider v. Curry, 106 Idaho 264, 678 P.2d 56 (1984); Terpstra v. Farmers & Merchants Bank, 483 N.E.2d 749 (Ind. Ct. App. 1985); Rochon v. Consolidated Constr. Co., 452 So.2d 404 (La. Ct. App. 1984); McGowan v. Director of Div. of Employment Sec., 388 Mass. 1003, 445 N.E.2d 1066 (1983); State v. Pilla, 380 N.W.2d 207 (Minn. Ct. App. 1986); Boyer v. Fisk, 623 S.W.2d 28 (Mo. Ct. App. 1981); Arcadia State Bank v. Nelson, 222 Neb. 704, 386 N.W.2d 451 (1986); State Bank of Burleigh County Trust Co. v. Patten, 357 N.W.2d 239 (N.D. 1984); Meyers v. First Nat'l Bank of Cincinnati, 3 Ohio App.3d 209, 444 N.E.2d 412 (1981); Kanow v. Brownshadel, 691 S.W.2d 804 (Tex. Ct. App. 1985); In re Marriage of Wherley, 34 Wash. Ct. App. 344, 661 P.2d 155, review denied, 100 Wash.2d 1013 (1983); Annis v. Beebe & Runyan Furn. Co., 685 P.2d 678 (Wyo. 1984).
2 The "Put Something Back" program is the joint project of the Eleventh Judicial Circuit and the Dade County Bar Association with over 4,000 attorneys contributing their time and money to this project. The Florida supreme court in In re Amendments to Rules Regulating The Florida Bar 1-3.1(a) and Rules of Judicial Admin. 2.065 (Legal Aid), 598 So.2d 41, 43 (Fla. 1992), acknowledged as essential, the public's access to attorneys "who bring cases before a court and advocate issues which assure the integrity of the Constitution and protect individual rights in our society" and ordered further steps be taken to assure the availability of counsel to those in need of legal services.