Determined1

Time frame for filing Opposition Memorandum to Motion to Strike Affirmative Defenses

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Hi,

I am looking to file an Opposition Memorandum to Plaintiff's Motion to Strike Affirmative Defenses in a Florida Circuit Civil court case. I can't seem to find the rule regarding time frame in which I have to file and serve my opposing motion. I've found the Federal Rule, but not the rule for State Court.

If I serve and file it on Monday, that will be 12 days prior to the Hearing set by the Plaintiff for their Motion to Strike my Affirmative Defenses. Is this sufficient time for my Opposition Motion to be considered?

Any assistance is greatly appreciated!

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I didn't post them again because they were addressed in great detail in another thread. Now I just need to confirm the time deadline for filing / serving my Opposition Motion before the Hearing.

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Should be in your rules. 15 days sounds about right. Defenses raise the red flag, most of them are completely useless, you should repost them and give us your argument as to why you think they are valid. Betcha they are not.

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Bruno, thanks for your input. I cant find the time frame in Florida Rules, only the Federal. I don't want to waste mine and everyone else's time to re-post and re-argue my Affirmative Defenses. If they were useless, the other side would not be objecting to them and seeking to strike them.

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LOL, good grief I surrender. I was looking for a time frame in which to file my Opposition Memorandum. We've already debated my Affirmative Defenses and their Motion to Strike in great detail in two other threads and through PMs.

I am only seeking a time deadline for a filing I can't find in the FL rules.

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LOL, good grief I surrender. I was looking for a time frame in which to file my Opposition Memorandum. We've already debated my Affirmative Defenses and their Motion to Strike in great detail in two other threads and through PMs.

I am only seeking a time deadline for a filing I can't find in the FL rules.

The reason I asked is because sometimes you can find the timeline in the rule under which the motion was made.

From the cases I've read, a motion to strike affirmative defenses would fall under either 1.140(B) or 1.140(f). However, a time to respond is not clear.

But, I'm wondering if this applies your case:

Rule 1.140(B)...at the end.

If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.

That seems to state that filing a motion to strike a defense must have been done within 20 days after they got your answer. Did they do that?

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BV80, I should have known better than to have thrown in the towel when you chimed in. I was getting punchy after the prior two posters wanted to re-debate my Affirmative Defenses.

They waited 6 months to respond to my Affirmative Defenses with their Motion to Strike. However, Florida Rule 1.140 (f) Motion to Strike states: "A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time."

Part of their reasoning is to claim my Affirmative Defenses are redundant. They weren't. For example, while several appear to repeat a similar defense, my reasoning was the Plaintiff's actions simultaneously gave rise to Unjust Enrichment, their Breach of Contract, and Breach of Florida's Covenant of Good Faith and Fair Dealing. Other improper actions by the Plaintiff were both Unconscionable and should be deemed Unclean Hands. I wasn't being redundant, but rather explaining the multiple ways their actions both violated the law and support my defense.

So they'll say I was being redundant - allowing them to use Rule 1.140 (f). If I understand you correctly, I can come back at them with 1.140 (B) saying they waited too long?

My apology for my frustrated reply earlier.

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No problem. Believe me, I understand frustration. Court rules are not made for non-attorneys to interpret and understand.

Since they've claimed your defenses are redundant, it would appear 1.140(f) would apply. If they had claimed you didn't state a legal defense, the other rule would have applied.

The timeline given in the rules is as clear as mud. It's time for a call to an attorney just to get an answer.

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Under 1.140(a)(1), you have 20 days to answer a complaint. Not, let's take rule 1.140(a)(3) apart.

RULE 1.140. DEFENSES

(a) When Presented.

(3) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days after notice of the court‘s action or, if the court grants a motion for a more definite statement, the responsive pleadings shall be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.

Take out the phrase "except a motion for judgment on the pleadings or a motion to strike under subdivision (f)".

"The service of a motion under this rule alters these periods of time..."

That appears to state that the 20 days is altered by motions. Now look at the phrase we removed.

"except a motion for judgment on the pleadings or a motion to strike under subdivision (f)".

I could be wrong, but I believe this rule giving a 10 day response time applies to all motions EXCEPT a motion for judgment on the pleadings or a motion to strike under subdivision (f). That's what it means by "alters these periods of time".

I believe "these periods of time" refers to the time periods given in 1.140(a)(1) and (2). So I'm thinking you have 20 days as prescribed in 1.140(a)(1).

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Great feedback BV80, thank you. So they can wait 6 months to file their Motion to Strike, and I only have 20 days to respond? What I'm really filing is a "Memorandum in Opposition to Plaintiff's Motion to Strike Affirmative Defenses." Technically speaking, its not a Motion. Does this alter my ability to file it later, i.e. 12 days before the Hearing on this matter?

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I could be wrong, but I believe this rule giving a 10 day response time applies to all motions

I read it a bit differently, the 10 day rule does not apply to the motion itself, it specifies the time frame for responsive pleadings AFTER the court rules on the motion. I can't find anything that says how long you have to file an opposition to a motion.

if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days

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I could be wrong, but I believe this rule giving a 10 day response time applies to all motions

I read it a bit differently, the 10 day rule does not apply to the motion itself, it specifies the time frame for responsive pleadings AFTER the court rules on the motion. I can't find anything that says how long you have to file an opposition to a motion.

if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days

I was referring to the OP's specific question responding to an MTS based upon 1.140(f). I understand that the timeline in rule 1.140(a)(3) applies to a response after the court rules on the motion.

My point was that the rule excludes motions filed under 1.140(f).

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My point was that the rule excludes motions filed under 1.140(f).

Yeah, but then it doesn't tell you how long you have for the excluded motions. The 20 days is to answer the complaint, not respond to a motion. He already answered the complaint, otherwise they would not be able to file a motion to strike his defenses, which are in the complaint. They had 20 days to file that motion. Now all that's missing from the puzzle is how long he has to file an opposition, if he even has that option. I don't see anything in the rules that even says he is supposed to oppose this. Ask Nascar, he'll know.

1972 Amendment. Subdivision (a) is amended to eliminate the unnecessary statement of the return date when service is made by publi-cation, and to accommodate the change proposed in rule 1.100(a) making a reply mandatory under certain circumstances. Motions to strike under subdivision (f) are divided into 2 categories, so subdivision (a) is also amended to accommodate this change by eliminating motions to strike under the new subdivision (f) as motions that toll the running of time. A motion to strike an insufficient legal defense will now be available under subdivision (B) and continue to toll the time for responsive pleading. Subdivision (B) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a motion to strike. Subdivi-sion (f) is changed to accommodate the 2 types of motions to strike. The motion to strike an insufficient legal defense is now in subdivision (B). The motion to strike under subdivision (f) does not toll the time for responsive pleading and can be made at any time, and the matter can be stricken by the court on its initiative at any time. Subdivision (g) follows the terminology of Federal Rule of Civil Procedure 12(g). Much difficulty has been experienced in the application of this and the succeeding subdivision with the result that the same defenses are being raised several times in an action. The intent of the rule is to permit the defenses to be raised one time, either by motion or by the res-ponsive pleading, and thereafter only by motion for judgment on the pleadings or at the trial. Subdivision (h) also reflects this philosophy. It is based on federal rule 12(h) but more clearly states the purpose of the rule.

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Yeah, but then it doesn't tell you how long you have for the excluded motions. The 20 days is to answer the complaint, not respond to a motion. He already answered the complaint, otherwise they would not be able to file a motion to strike his defenses, which are in the complaint. They had 20 days to file that motion. Now all that's missing from the puzzle is how long he has to file an opposition, if he even has that option. I don't see anything in the rules that even says he is supposed to oppose this. Ask Nascar, he'll know.

An MTS filed under 1.140(f) can be filed at any time. That's the rule under which the opposition in the OP's filed the MTS.

1.140(a)(1) & (2) gives the timeline for responses to complaints.

1.140(a)(3) says that a motion filed under this rule ((a)(3)) ALTERS these periods of time. That would be the periods of time previously stated in (1) & (2).

But the rule excludes a motion filed under 1.140(f). It specifically states "except a motion for judgment on the pleadings or a motion to strike under subdivision (f)". That would have to mean that the time periods previously stated are not altered for a motion under subdivision (f).

I agree about Nascar. I wish he'd chime in.

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Yeah, this thing is clear as mud. Me, I'd find out who wrote the statute and subpoena them to court and make them explain this. Maybe an amicus curia brief in is order. However, this is our mentality, we will pursue this forever where nobody else will. The question I have is this......does the poster have judicial authority to file an opposition pleading? Is it provided for or does he just have to wait for a ruling? Oppositions to motions are common, but I'll be darned if I can find anything in the FLA rules that addresses this. All they mention are responsive pleadings, which are after the fact.

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Thanks for the incredible feedback. I'm not going to sweat a non existent rule. I'm just going to file it tomorrow and let the chips fall where they may. Thanks!

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