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Lucy, Esq.
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Procedural questions Florida Civil

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Can I file a motion to have the case stricken ? I am the Defendant in a Civil Case of unjust enrichment, The matter came before the Court for Calendar Call December 14, 2012, but I fail to appeal for reasons due to health situation..Pursuant to the judge's instruction at calendar Call, Plaintiff's counsel was ordered to file a Unilateral Pretrial Statement within ten (10) days of the date of the Order, with a courtesy copy to Defendants and the Court. The initial order setting non-jury trial had set the calendar call to above date, and the UNIFORM TRIAL PROCEDURE. Plaintiff's counsel , as per this document, is deficient for not having organized a mediation, communicate exhibits and not having organized to prepare a pre-Trial stipulation. His Unilateral Pretrial Statement is 90% objectionable too.. The non Jury trial hearing is set for Jan 8th 2013

Submitted: 1 year ago.
Category: Legal
Expert:  Lucy, Esq. replied 1 year ago.
Hi,
My name is XXXXX XXXXX I'd be happy to answer your questions today.
A Motion to Strike is to have information removed from the pleading that is "redundant, immaterial, impertinent, or scandalous". Rule 1.140. If you want the entire case decided in your favor, a Motion to Strike is not the means of accomplishing it. If the plaintiff had filed a Joint Pretrial Statement with which you disagreed entirely, then you could file a Motion to Strike. However, where it's a unilateral pretrial statement, your option is to file your own pretrial statement setting forth your version of events.
If you are asking the judge to rule in your favor because the plaintiff has not complied with the Rules of Court, or not done what the judge has ordered him to do, then the option would be a Motion for Sanctions. The judge will only entirely dismiss a case due to a failure to comply with the rules in very egregious circumstances.
If you have any questions at all about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service at 3-5 faces/stars so that I get credit for helping you today. Thank you.
Customer: replied 1 year ago.

Hi Lucy, thank you for your reply and the exact term, Motion for Sanctions sounds fine but what is going to be the outcome and more specially the request ? Should I ask a Case Management conference to be scheduled, and a mediation,. Also, a count of Plaintiff's claim is subject to motion for summary judgment, How does this all combine together ?
Are you familiar with the Florida Rules of Civil Procedures ? When you say "your option is to file your own pretrial statement setting forth your version of events", the court order stipulates :


UNILATERAL PRETRIAL


STATEMENTS ARE DISALLOWED, UNLESS APPROVED BY THE COURT
It's my understanding that I should therefore file a motion to leave to file an unilateral pretrilal statement ?

Customer: replied 1 year ago.

Hi Lucy, thank you for your reply and the exact term, Motion for Sanctions sounds fine but what is going to be the outcome and more specially the request ? Should I ask a Case Management conference to be scheduled, and a mediation,. Also, a count of Plaintiff's claim is subject to motion for summary judgment, How does this all combine together ?
Are you familiar with the Florida Rules of Civil Procedures ? When you say "your option is to file your own pretrial statement setting forth your version of events", the court order stipulates :


UNILATERAL PRETRIAL


STATEMENTS ARE DISALLOWED, UNLESS APPROVED BY THE COURT
It's my understanding that I should therefore file a motion to leave to file an unilateral pretrilal statement ? The order specifies :


F. FILING OF PRE-TRIAL STIPULATION




. Failure to file the Pre-Trial Stipulation or a Court


Approved Unilateral Stipulation as above provided may result in the case being stricken from the


Court's calendar at its sounding or other sanctions.




Expert:  Lucy, Esq. replied 1 year ago.
I'm afraid I can't predict the outcome - I really don't have nearly enough facts. I can tell you that dismissal, again, is extremely unusual. A party would usually have to ignore court orders and lesser sanctions before you would get anywhere near that point. If the opposing attorney is representing his client, that's not grounds for sanctions. If he's not doing what he's supposed to be doing, that would be grounds. Judges have a lot of discretion when it comes to sanctions - you can ask for any sanctions that you believe would be appropriate.
If the judge did not give you permission to file your own pretrial statement when he initially ordered the plaintiff to do so, yes, Florida requires that you file a Motion for Leave to File Unilateral Pretrial Statement. You would explain, briefly, what the deficiencies in the unilateral statement are and ask that you be allowed to present your side.
Customer: replied 1 year ago.


Hey Lucy, sounds like your advices are very cool ! I get the picture, I'd be Ok to pay you a second time with a new further question as I appreciate your time, how can I make sure it's going to be you and how can we organize that? My second question is the continutation : the hearing is set for jan 8th, leaves little time, but assuming I file The Motion to Leave to File Unitlateral Pretrial Statement, and I explain the deficiencies in detail, can I also object to the Unilateral Pretrial Statement of my opponent in that same motion ?

Expert:  Lucy, Esq. replied 1 year ago.
Usually, you would attach the Unilateral Pretrial Statement that you want to file to the Motion for Leave to File, so the judge ends up seeing exactly what you're asking to file.
Customer: replied 1 year ago.


How can I ask you further questions tomorrow? I really appreciate your to the point and excellent advices ? I can pay for a second "round"Winktitle="Wink"/>

Expert:  Lucy, Esq. replied 1 year ago.
Just put "For Lucy" on the question, and I'll see it. I'm happy to answer more questions for you tomorrow. Have a good night.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 20781
Experience: Lawyer
Lucy, Esq. and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


For Lucy:

Hi Lucy,

After having reviewed all my options, I am now looking at first filing a


MOTION FOR CONTINUANCE OF HEARING OR TRIAL, due to shortage of time. I am asking the judge to reset a calendar call, in the expectation that this will allow to go through the Unifrom pretrial procedure again without skipping essential parts for my defense, such as stipulations and exhibits matters.

Am I correct in beleiving this ? Please advise.

I prepared the doc and will have it verified by some legal services downtown now.

My second question is the following : should I add a certificate of service at the end, to service to Plaintiff's counsel by email ?

Expert:  Lucy, Esq. replied 1 year ago.
You do need a certificate of service, to show that the other party has received notice of your request, yes.

Based on what you've said, it sounds like a Motion for a Continuance is a good idea, to help you prepare for your case. The judge has a lot of discretion, but may grant the request unless he believes that you're just trying to delay things.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 20781
Experience: Lawyer
Lucy, Esq. and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thank you Lucy for your very good advices. I have an appointment with a Legal Service in 2 hours to review the document below, can you have a quick look at it and tell me your opinion :


MOTION FOR CONTINUANCE OF HEARING OR TRIAL





Defendant, (.... me), Self-represented, respectfully XXXXX XXXXX continuance in this matter due to the following circumstances and reasons:

I. CIRCUMSTANCES:



  1. Just before Xmas and the Holidays, I received notification by mail of an order setting non-Jury Trial for January 8th, 2013, which is less than one week from now.

  2. Being in an indigent situation due to circumstances hereafter detailed, I immediately contacted the Legal Services of Greater Miami, Inc. - Main Office for Free Judicial Assistance as a senior citizen. I was then told that their Legal Services were closed for the Holidays and would reopen on Wednesday, January 2nd, 2013.

  3. A few days ago, just before New Year’s Eve, I received notification by Plaintiff’s Counsel of Unilateral Pre-trial Statement dated Dec 28th, 2012.

  4. On or about November 24th, 2012, I am notified of the withdrawal of my counsel being then left without knowledge of the pending actions and procedures, and their related deadlines.

  5. This notification is coming after my Counsel sent me an email dated November 14th, 2012, stating that he needed to withdraw because I had an outstanding balance and there remains much to do, with no further details.

  6. Because I could not agree less, I immediately notified him by email same day.

  7. Hence I was left without any further knowledge of the status of the case until I received the order setting non-Jury Trial a short while ago.

  8. Since now 2 years I am undergoing major cancer treatments, and more especially I had to go to France for surgery in 2011 and radiations in 2012, for a period of time of over 4 months.

  9. Consequently, while I went through major expenses, I had also to close my business, in August 2012 and sold the car I was benefitting of simultaneously. I was and I am unable to have any further professional activities for now, and therefore my financial situation is extremely precarious and indigent.


 


II. REASONS




  1. 1. The above circumstances oblige me to seek free legal assistance, but the complexity of the case and the amount of paperwork accumulated makes it impossible to find in the short lapse of time in between the notification of the hearing and it’s presently scheduled date. I am therefore left presently without legal counsel and little capability to defend myself.

  2. 2. Especially in the light that I have serious health conditions and activity restrictions.

  3. Subject to confirmation, it appears that Plaintiff’s Counsel has failed to organize a conference or any form of good faith cooperation prior to calendar call, in view to draw the Pre-Trial Stipulation described in paragraphs E and F specified in the order setting non jury trial of September 10th, 2012.

  4. Consequently, notwithstanding the fact that I object to almost the entirety of the stipulations and to the non-production of the exhibits, I am left with no time to object until the hearing.

  5. Subject to same confirmation, it also appears that Plaintiff’s Counsel has failed to organize mediation.

  6. Additionally, a deposition of Plaintiff was scheduled on November 12th, 2012. This deposition is very important to better understand Plaintiff’s complaints and to object accordingly. For example, in his first amended complaint, under the count of Civil Theft, Plaintiff is alleging that I ceased residing at the property and in his 2nd amended complaint he is alleging that I was residing at same property to sustain his new claim for alleged rents due. Meanwhile, the insurance documents are showing his sworn affidavit of loss of rents due to termination of lease agreement because of the flood.

    Another example is Plaintiff’s allegation of “future works”, that needs to be clarified when Plaintiff is declaring - in his complaint - that he gave me a check of $41,100 in July 2010 and next that he spent finally $5,000 to put the property back in condition after I left it - in his answers to interrogatories.


 



  1. Plaintiff’s Counsel was notified by my Counsel of his withdrawal on November 5th, 2012, but neither of the two Counsels contacted me about the organization of the scheduled deposition of Plaintiff, to take place a few days later. This deposition is now missing seriously.

    Given the above circumstances and reasons, I respectfully XXXXX XXXXX continuance of hearing with a reset of calendar call in order to have the capability to organize my defense in the present case and to correct the deficiencies of Plaintiff’s Counsel as described above.

    EXHIBITS

    Document 1.
    Medical Certificate #1 – Hartman, Dr Chauveinc
    Document 2. Medical ceritifcate #2 – Dr Amar
    Document 3. Transaltion of Document 1 and 2
    Document 4. Certificate of Dissolution of xxxx, Inc, my previous employer (CEO)
    Document 5. Notice of taking deposition of Plaintiff



  • Document 6 - 12.11.05 Defendant's Counsel's Mtn to Withdraw
    Document 7 - 12.09.12. Plaintiff's Unverified Answers to Rogs
    Document 8 - June 8th, 2010. insurance s STATEMENT OF LOSS AND SETTLEMENT BREAKDOWN showing Plaintiff’s compensation for loss of rents, ref 038
    Document 9 - Plaintiff’s sworn statement to insurance Co in Proof of Loss & Estimate of Oct 2009 , ref 036
    Document 10 - copy of $15,000 Check to Plaintiff for LOSS OF RENTS issued By Insurance _033_



This January ___, 2013. Respectfully Submitted:




___________________________________
cxxxx
Defendant, Self-represented
adress and email

CERTIFICATE OF SERVICE


I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by electronic mail to:

- Paintiff's counsel
- other defendant




  • on this _____ day of January 2013

Expert:  Lucy, Esq. replied 1 year ago.
I'm sorry. The terms and conditions of the site prohibit us from reviewing documents for you and giving specific advice.
Customer: replied 1 year ago.


Ok, np. How can we do that otherwise - if you are interested ?

Expert:  Lucy, Esq. replied 1 year ago.
I'm also not allowed to communicate with customers outside this forum. It's part of the agreement that we make, to help draw a line between providing general legal information and providing specific legal advice.
Customer: replied 1 year ago.


OK

Customer: replied 1 year ago.


Hi Lucy,

Sorry I could not come back any quicker but i have been busy with the case.

I need to ask you a few more questions, is it OK ?


Let me know if I can post here or if I need to open a new question. Thank you

Expert:  Lucy, Esq. replied 1 year ago.
If you have new questions about the case, the terms and conditions of the site require that I ask you to open a new question. I'm happy to answer them - just put "For Lucy" on it so I see it.
Customer: replied 1 year ago.


ok

Customer: replied 1 year ago.


Trying to figure out how to close this question...

Expert:  Lucy, Esq. replied 1 year ago.
I can close it for you.
Customer: replied 1 year ago.


ok

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