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Need help Plaintiff stalling! Want to file a motion to dismiss...confused

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Hi everyone,

 

I am the defendant in a case that is a few years old. I have requested prod of documents and interrogatories twice and have received nothing in 2 years. The judge files a notice of dismissal n\for failure to prosecute if no action is taken within 60 days. So, Plaintiff files for extension of time which was already denied. Going to hearing and I am sure it will be denied again. It is with the OC not a JDB.

 

I want to file a motion to dismiss but have no idea what reasons to put in this motion. i am confused t so if anyone could help me on what grounds I could use to file a motion to dismiss I would greatly appreciate it!

 

Thank you in advance for your help and cooperation!

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Thinking about this would I file a motion to dismiss or motion for summary judgement? And depending on which, what grounds do I have to stand on. Thank you in advance for all your help!

 

 

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Read your rules of civil procedure, fl has a failure to prosecute rule. Look it up but I believe in fl if you file a motion to dismiss for failure to prosecute the court may dismiss. If I recall right after one year of no activity the court send out the notice like you got, if after 30 days there is no action, the court dismisses, or will dismiss if you file a motion. Sometimes the courts don't get around to it for what ever reason. You need to double check your rule though. If the court denied their extension they may just be waiting for you to move to dismiss. If it gets dismissed, is the statutes of limitations up? Right now it is tolled with the case pending.

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Check the civil and local county rules, but according to what I've read per Florida Rule of Civil Procedure 1.420(e) which dictates that lack of any filings for a 10 month period is cause for dismissal. You do have to file a motion to dismiss though. So you need to get their motion for extension of time thrown out again and then file a motion to dismiss under the Rule 1.420(e). It will be a dismissal without prejudice though.

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Check the civil and local county rules, but according to what I've read per Florida Rule of Civil Procedure 1.420(e) which dictates that lack of any filings for a 10 month period is cause for dismissal. You do have to file a motion to dismiss though. So you need to get their motion for extension of time thrown out again and then file a motion to dismiss under the Rule 1.420(e). It will be a dismissal without prejudice though.

 

First, thank you for your quick responses! It is true that failure to prosecute with no filings can result in dismissal. The court judge sent out a notice saying if no pleadings were filed within 60 days the case will be dismissed. So, the Plaintiff filed a motion for extension of time for req for production and interrogatories and now has filed a motion as bogus as it is within the 60 days. So my question now is what grounds do I have to stand on for motion to dismiss or motion for summary judgement?

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Motion for summary judgement is used when there are no triable issues and should be granted as a matter of law. I do not think that fits your case, so it would probably be denied. (Can you find any fl. Case law that would support MSJ for lack of prosecution?) if you can, go for it.

You can oppose their motion, and motion to dismiss all in one swoop. Write it up as a brief how you tried to initiate discovery twice, and they failed to answer. Have your proof of service of that attached as exhibits. In Fl. A pro se person has to start discovery ( find that rule) cite the rule, state you attempted to litigate in good faith, and plaintiff did not respond. State how long case has been going on, and you object to their motion as they have had plenty of time for discovery, and have failed to do so.

Search out some case law for fl, you can find it through google scholar To support your motion.

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Motion for summary judgement is used when there are no triable issues and should be granted as a matter of law. I do not think that fits your case, so it would probably be denied. (Can you find any fl. Case law that would support MSJ for lack of prosecution?) if you can, go for it.

You can oppose their motion, and motion to dismiss all in one swoop. Write it up as a brief how you tried to initiate discovery twice, and they failed to answer. Have your proof of service of that attached as exhibits. In Fl. A pro se person has to start discovery ( find that rule) cite the rule, state you attempted to litigate in good faith, and plaintiff did not respond. State how long case has been going on, and you object to their motion as they have had plenty of time for discovery, and have failed to do so.

Search out some case law for fl, you can find it through google scholar To support your motion.

Thankyou for yoce, it makes sense. Just one question, what is google scholar?

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In california (won 2 cases): Seems like plaintiff is off the hook on the 10month limit, but it also seems that they don't have an proof. What we do in Calif(and it seems other states do too) is defendent sends plaintiff Bill Of Particulars(BOP), if plaintiff replies with insufficient evidence it gives grounds to deny everything in discovery. 

 

I won both my cases because plaintiff couldn't give an adequate BOP, which in calif (an most states means plaintiff has no case). Send a BOP 

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Flordia does not have a BOP rule

 

So confiesed!!!  Went to google scholar and it was like reading chinese. Wish I knew what grounds I had to dismiss and I have a hard time reading case law. If anyone can help I would more then greatly appreciate it! Thanks in advance!

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