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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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continuing the same thought, may i file such a 3rd modifed

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continuing the same thought, may i file such a 3rd modifed motion or complaint during the trial, since there is a gap in time from last weeks 1st days trial to 2nd day in  June? May either party file per email copy , when an oppoising party refused said accepting email per 2.516? ie one party certifies delivery per FL Juduicial rule 2.516, the other rejects it, what is the result?

Submitted: 3 years ago.
Category: Legal
Expert:  TexLaw replied 3 years ago.
Hello again,

Here is the rule on Amended Pleadings and Motions:

(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

(b) Amendments to Conform With the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

(d) Supplemental Pleadings. Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

You will need to seek "Leave of Court" to file the amended pleading. It is a bad idea to attempt this during the actual trial, as you are looking at it being excluded and having to prove that the facts should allow the amended pleading. You need to file a "Motion for Leave to Amend Complaint/Motion" and simply ask the court for permission under the above-stated rule.

In regard to your question regarding email, if you have objected to using email, you cannot serve by email. YOu will have to serve in the manner in which you have not objected to being served by.

Customer: replied 3 years ago.

I'll need to read above closely but for now to specify your answer, must I have filed rejecting email or is it simply that the petitioners attorney filed a desire to utize email, then thus must I acept ? , and thus petitioner efiled at 8pm on a deadline date .(is there a time of day one must exchage docs) yet the magistrate ordered specifically the doc;s per expenses must be exchanged physcally. do you see my issue? I wish to refuse-exclude expenses by the petitioner since said were not exchanged clearly per the ordered deadline specifying a certain date in time? got me ?

Expert:  TexLaw replied 3 years ago.
I'm not sure I follow you.

Email is the default manner of service under the rule cited.

If you have been ordered by a magistrate to serve documents in a physical exchange, and that is the manner that you have been ordered to serve all documents, then you need to follow that order.

Does that answer your question?
Customer: replied 3 years ago.

yes, thank you you confirm the petitioners attoney did not comply with the order on time . say it was the 18th of the month and said esq. emailed docs at 8pm on the18th .. Magistrate clearly oreder specific docs be physically delivered, that did not happen. So I will object to the docs due to petitioner not fowing the order. right ? is there a time of day for instance at 4:30pm or 6 pm or is the deadling per a day deadline time at 23:59;59 seconds??

Expert:  TexLaw replied 3 years ago.
Yes, you would file an objection to the documents, by filing a "Motion to Strike".

If you are going to serve by hand delivery, then you must do it by 5 pm on the deadline day.
Customer: replied 3 years ago.

ok now you give 5pm if had delivered, is there a time of day per email ? Point is twofold resons to strike that docs are not filed on time due date and by the time of day> so I asked is there a time of day per efile per rule 2.516. I do not see a time of day specified is there one?

Expert:  TexLaw replied 3 years ago.
On email, it is considered delivered on the day the email is sent. IN other words, you must send it before midnight to be considered having been served on that day.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience: Lead trial/International commercial attorney licensed 11 yrs
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