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MyraB
MyraB, Attorney
Category: Legal
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Re: FL Rule 1.190. as it relates to the 20 day time frame.

Customer Question

Re: FL Rule 1.190. as it relates to the 20 day time frame. Ex's attorney filed a motion on 8/5 to enforce parenting plan and I responded on 8/20 asking for a dismissal. Now the attorney has submitted an amended motion that now lists a bunch of obvious lies. In ex's verified motion, he claims things such as I moved, didn't tell him and he was unable to contact child. I have never moved and my same address is within the court docs. If I fight his amended motion based on the 20 day time frame limit in rule 1.190 and that it is a "sham pleading" due to the obvious lies in the motion, can I and what do I call it? ...an opposition, request for motion to deny amended motion or what?
Submitted: 11 months ago.
Category: Legal
Expert:  MyraB replied 11 months ago.
Hello and thank you for your question.

You will likely want to file an Opposition to the Motion to Amend the pleading and a Motion to Strike Sham Pleading under FL Rule 1.150 which can be found here http://phonl.com/fl_law/rules/frcp/frcp1150.htm You can combine the two into one pleading, titling it Opposition to Amended Motion and Motion to Strike Sham Pleading, or you can submit them separately.

The Opposition would address the merits of the amended motion including any falsehoods, and the Motion to Strike would focus specifically on why the pleading is a sham and, under the rule, would need to be supported by affidavit.

Please feel free to ask any follow-up questions.
Customer: replied 11 months ago.

What about the 20 days limit? does that pertain to my situation? the attorney filed the original motion 2 months ago. rules seem to say that he only has 20 days to amend? can i get the amendment thrown out due to this? if so, should i schedule this for a umc hearing. do you know what a umc hearing is where the judge has nonevedentiary 10

minute hearings? I

Expert:  MyraB replied 11 months ago.
Thank you for your response.

The amendment here would not fall under the 20 day rule of Rule 1.190. The Rule permits an amendment to a pleading once as a matter of course BEFORE a response is filed OR within 20 days of filing the pleading if no response to the pleading is required. Because you already filed a response to the original motion, your ex can only amend the pleading with the permission of the court. He would need to file a Motion to Amend under Rule 1.190.

You can request that the court dismiss the pleading based on the failure to file a Motion to Amend the pleading. However, this will likely only delay the inevitable or the court may allow the amended pleading to substitute for the original pleading, the rationale being that your ex could have withdrawn the original motion and filed a new motion rather than an amended motion. Therefore, it is likely the best course to address the amended motion on the merits in an opposition as well as request the court to strike the amended pleading for failure to comply with the rule and because it is a sham pleading.

If you file a separate Motion to Strike based solely on the failure of your ex to seek leave to amend the pleading, you could likely set this up for a UMC hearing which would be limited to the procedural issue of filing the amended pleading that was not in accordance with the rule. However, any substantive issues that are contested would not be appropriate for a UMC hearing.

Let me know if you need any further information.
MyraB, Attorney
Category: Legal
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 13 other Legal Specialists are ready to help you
Customer: replied 11 months ago.

Thinking strategy . If I do a motion to strike, based on the 20 day rule only and the judge does not agree, I can then file a second motion to strike for sham, right? for both I can ask for UMC hearing. or can I put them both in the same motion to strike and if he does not agree to strike based on 20 days, I can then try the sham during the same meeting?


That being said, when I responded to this original motion (which limits them to 20 days for amendments) it was within another motion called "Verified motion to Quash deposition and for Protective Order" BUT within my motion, I asked the court to dismiss his motion and wrote the name of it specifically. Does that still count as a "response" within the law or does my response have to look or be titled a certain way?

Expert:  MyraB replied 11 months ago.
Thank you for your response.

A UMC hearing does not seem appropriate on a Motion to Strike Sham Pleading because as you describe the motion it necessarily involves substantive issues and contested facts. However, you may be able to obtain a Special Set Hearing by contacting the Judicial Assistant to schedule a hearing.

Note that Rule 1.190(e) specifically provides that "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." Again, this means that the court will likely allow the amendment and supplementation of your ex's pleading. And under Rule 1.190 you have 10 days to respond to the amended pleading.

Therefore, you may want to file one Motion to Strike arguing both the violation of Rule 1.190 and in the alternative that the amended pleading should be stricken as a sham pleading and ask for a Special Set Hearing on that combined motion. One reason you don't want to wait to file the Motion to Strike based on the sham pleading is that, if that motion is denied, you still want the opportunity to specifically respond to the amended pleading and the court will likely give you the opportunity to file a response outside the 10 days if the motion to strike is denied. If you only file a Motion to Strike based on the Rule 1.190 violation then the court doesn't know there is a problem with the substance, will see there is no new opposition and may decide your ex's motion based on your original response. The combined Motion to Strike would provide notice to the court that there are procedural and substantive issues, and would likely preserve your opportunity to respond to the amended pleading should the motion be denied.

Generally, a response or opposition has some indication in the title that it relates to the motion that was filed, and if you are filing for other relief in addition you add that to the title also. The court needs some way to match the motion and the response. If you mentioned the title of your ex's pleading in the response then the court will know that they go together. If you are unsure that your response will be seen as related to your ex's motion, you can call the clerk and let them know that the Motion to Quash and for Protective Order is also a response to your ex's motion. You can also send a notice of clarification to the court.
Customer: replied 11 months ago.


Thank you so much for your help.


 


1. I am going to do a Motion to Strike based on the two items and ask for a hearing.


 


2. If I want to clarify that the motion I filed before should be considered the response to his initial motion, I can call the JA to clarify but if I put it in writing, what does a clarification to the court look like? Is the document set up like a motion and filed or a letter to the judge? Is there a sample one online you can direct me to? What would be the title?


 


3.I know I am supposed to have 10 days to respond to his last amended motion (the one I want to strike) and I guess I should submit a response and just deny the lies just to make sure I get it in under the deadline, right?


 


Again, thank you so much.

Expert:  MyraB replied 11 months ago.
Thank you for your response.

1. That plan sounds reasonable.

2. There is no form, but generally the court is grateful for any clarification. You can call it a Notice of Response to [other party's] motion to enforce parenting plan, titling it to cover everything and state: The [your party designation] hereby gives notice that the pleading entitled [the title of the pleading you filed] is intended as a response and opposition to the [title of everything it is in response to] and also includes a motion to quash and for protective order.
Sign it, file it and serve it on the opposing party.

3. That may be best as you do not want the court to consider his motion without an opposition. You can state in your response that you have also submitted a motion to strike related to his amended pleading.

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