order directing plaintiff provide documents

[annajosie]

What is the name of your state? Fl. On 9-12-07 the judge ordered plaintiff (plaintiff's attorney) to provide documentation related to debt.

the order reads:
order directing plaintiff to provide documentaiton related to debt

ORDERED:
1. Plaintiff shall have 20 days from the date hereof within which to file with the Court and forward copies to the Defendant the appropriate documentation related to Defendant's account supporting the monies sought to be recovered herein.

2. Failure to comply with this Order may result in a dismissal of this action.

3. If after the receipt of said documentation by Defendant the matter is not resolved between the parties through either a Stipulation or Consent Final Judgement, Plaintiff may schedule this matter for final hearing or trial.

DONE AND ORDERED, in Chambers, Florida this 12day of September, 2007.

My question is what if the plantiff does not respond within the 20 days the court is allowing. Would the case be dismissed? Also, when you count 20 days, do you count weekends and/or holidays or do you not?

Any advice would be appreciated.

 

[seniorjudge]

Q: My question is what if the plantiff does not respond within the 20 days the court is allowing. Would the case be dismissed? Also, when you count 20 days, do you count weekends and/or holidays or do you not?

A: The case could be dismissed. Or the plaintiff could be given more time. I don't know the Florida rule on counting days; if I were the plaintiff, I would assume it included business days, weekends, and holidays and get it filed asap.

 

[Chien]

I had occasion to address this for a member on Banking and Credit Cards:
(Deleted a great deal, but those are the relevant rules.)
Rule 1.090
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(e) Additional Time after Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

Rule 1.380
(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:
************************************************
(2) Motion. If . . .a party in response to a request for inspection submitted under rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted under rule 1.360(a) objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party’s custody or legal control for examination, the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request.
************************************************
(4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees,
(b) Failure to Comply with Order.
**************************************************
(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, . . .the court in which the action is pending may make any of the following orders:
(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.*****************************************************************
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to
Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, (2) to serve answers or objections to interrogatories submitted under rule 1.340 after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees . . . .

 

[annajosie]

Many thanks for your reply. Wow, this is a lot of information to digest.

I was wrong about the date on this, it was actually 9-10-07, not 9-12-07, but I don't know if that really makes a difference.

The way I'm reading it is that the time starts running on 9-11-07 and ending on the 20th day assuming that day is not a weekend or holiday. There would be an additional 5 day period if papers were mailed. Do you know if that 5 day period would include holidays or weekends?

My head is spinning with all this. Glad I never thought of becoming a lawyer. I don't know how you guys digest all this info. I am very impressed.

again, thanks alot for info.

 

[Chien]

HaHa. I would read it the same way, so I hope the answer is yes to your interpretation.

I'm sorry for the amount, but I didn't know what you were doing or if the Rule citations might be important. There was twice as much but, the more that I edited, the less clearly it read.

In my experience, weekends and holidays are counted in the mailing time, except that, if the final day for receipt falls on a "no mail" day, receipt is extended. The sensible thing, as SJ points out, is to get it done and not cut yourself too close. I've had to deliver by messenger; it's expensive.

 

[annajosie]

Hi Chien,

Another question, please. If the plaintiff fails to respond during the period of time allowed by the Court, what happens after that?

Does the Defendant have to do anything at this point? How is it determined if the case would be dismissed?

Plaintiff sued in order to get judgement, defendant asked for documentation from plaintiff to prove that the debt was legitimately his. I imagine the ball is in the plaintiff's court right now, but I don't know that for a fact.

If the defendant is only on social security, with a house which is protected, and very little in the way of non exempt assets, could the plaintiff decide that is just isn't worth the time and trouble to go after the judgement? TIA

 

[Chien]

OP – I did not realize that an additional question was added. Sorry.

If the plaintiff fails to respond . . . what happens after that?

Part of what was edited out of Rule 1.380(a)(2) was the next step, which is an “meet and confer” requirement. This is a pretty standard pre-condition to sanctions and refers to a good faith effort by the propounding party (because it could be plaintiff’s or defendant’s discovery) to “confer or attempt to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action”. In other words, a letter to the following effect:
“Discovery was due on X date and has not been received. I will allow ten (10) days from this letter date for you to cure the delinquency and will then seek a court order to compel responses and will seek sanctions. By reason of the delinquency, any and all objections to discovery are regarded as waived.”

In your state, you must attach a certificate to your motion attesting to the fact that such effort has been made. That supports a request for sanctions. I know there was a lot of data there, but the next step is a Motion to Compel (when you’re talking about non-response to a production demand).

Per 1.380(a)(2), the court makes an Order requiring production be made within X days, and is likely to award costs and fees to the party making the motion (1.380(a)(4)) and possibly monetary sanctions too.

If production is still not made in another X days, a second motion is filed for Failure to Comply (1.380(b)).
At that point, you’re asking for all the sanctions that you can get. You Rule doesn’t specifically provide for dismissal (also called a “terminating sanction”). That’s pretty harsh, and it usually takes something very flagrant to drive a court that far. However, as you can see from 1.380(b)(2), the court can get you as good as there by (1) allowing disputed facts to be established in your favor, (2) refusing to let the adverse party present evidence and/or claims or defenses, (3) striking out pleadings or parts of pleading or (4) dismissing the pleading in whole or part.

Having filed the suit, I think it’s unlikely that they would just say “forget about it – never mind”, but they could have their legs cut out from under them in the foregoing manner.

 

[annajosie]

Hi Chien, thank you again for taking the time to answer my question. It is very much appreciated.

I have printed out the rules (1.380 and 1.090). Now all I have to do is follow the yellow brick road and see if I can do this right.

I can't imagine why they haven't answered this court order, but I'm going to follow your advice and do agree with you, they probably are not going to forget about this; just wishful thinking on my part.

Have a wonderful evening.

 

[GulfBreeze]

I will give you my recent experience with this exact thing.

I just won a case against a southern florida law firm because the court ordered them to provide answers to my productions of records, evidence, interrogatories, discovery etc etc... the judge gave them a week (that is, after i gave them the 30+ days, really around 40 before i filed a MTC). according to the date filed by the court, a week meant a week. it included weekends. they failed to answer them because they objected to them all. the rules and the judge say that this is a failure to answer and is viewed as not complying to the courts order. all their evidence was striken. i was granted a dismissal based on this.

remember to file a MTD the day after the 20 days allowed and ask for a decision in your favor.

PS...i just noticed that this was filed on 9/12...that means it has been more than 20 days. I would run to the court house tomorrow morning and ask the court to toss it. they dont get another 10 days. the court already gave them 20 days and you just gave them a few extra.

sorry, i skipped over everyone's responses because i tend not to read some of them here, especially from the likes of chien and DC. they will offer you the view of the planitiff's. i can only tell you based on what happened to me last week in FLORIDA where I live. They will probably disagree with me, but that is not a surprise. I live in Florida and had this happen to me. They dont live here nor have had FL judge rule in their cases.

 

[GulfBreeze]

if you would like, i will post a copy of what the judge entered as an order. the date it was plus a week came to show that the court counted weekends. it didnt say that they would be allowed mailing time on top of it. the documents had to be in my hands in a week...that is, everything that had answers and documents, and not just a paper that said they objected to my questions.

 

[annajosie]

Hi Gulf Breeze,

thank you so very much for the info. I'm so clueless with this stuff. Do I just go down to the courthouse and ask a clerk or somebody for a motion to dismiss form and do I bring the court order that I received on 9/12?

I don't know how this procedure works. Do I mail the motion to dismiss form to the plaintiff attorney's office or do I file it somewhere in the courthouse?

Any info would be much appreciated. tia

 

[Chien]

GulfBreeze – I have seen your pleadings and explained your own Rules to you. If the OP had requested it, pleadings were available to her. I have walked OPs in this forum through cases in 7 different states, provided templates off-line and intervened with law firms along the way. Florida is by no means special or unique. The case that took you more than a year, should have taken a few months at most for the defendant. Do choose to ignore the postings of others. Choose to imply deficiencies where you know of none. It is only your own knowledge that will remain limited. It would benefit by expansion.

I leave you and this OP to work your way to a successful resolution and leave this thread to you, but I would ask and hope that you can see your way to exchanging documents via PM. You assist her just as much, and the pleadings that you have chosen to post simply are not something that needs be regarded as prototypical by subsequent readers. Links are regularly provided to more utilitarian examples, and others provide documents via PM.

 

[annajosie]

Hi Chien and Gulf Breeze,

I am asking questions because I don't understand the legal system. I said that from the very beginning. I so much appreciate Chien's input and also thank Gulf Breeze for input.

I just wanted some legal guidance; I sure didn't want to get in the middle of some sort of an altercation.

If this is a forum for legal advice, then that's exactly what it should be about.

thanks again for all the information.

 

[Chien]

You’re exactly right. And that’s all you had gotten in response to any of your posts. This forum is 99% defendants. To suggest that anyone who provides information is doing so with a plaintiff’s bias is juvenile and myopic.

This:

i skipped over everyone's responses because i tend not to read some of them here, especially from the likes of chien and DC. they will offer you the view of the planitiff's.

did not help you or other readers with legal advice. It was gratuitous and solely intended to be an affront. If the other member from Florida knew more, posturing would be unnecessary. Competency is self-evident. There was nothing in this post to indicate that you were not represented by counsel, and I believed that you were and wanted to follow more closely. If greater specificity were needed for your own purpose, you had only to ask. But I, for one, have no need or time to be confrontational with the other member from Florida, and it’s not needed on the forum. I don’t choose to indulge in that kind of thing and leave you in his hands.

 

[GulfBreeze]

blah blah blah chien....

anyways, back to the subject at hand...

OP...you dont need anything special when you file a motion to the court. simply, write or type on a piece of paper, your case number, the plaintiffs name and yours, the court which is looking at this and then state your particular case...whether its for motion to dismiss, strike, summary judgment etc...

get right to the point. dont bore the judge with small talk. give statutes or rules and then ask for what you want based on it. ask for a hearing if needed. make sure you sign it and then file it with the court with the clerk for small claims. get a copy stamped with date. call back and see if the judge got it and what the answer was. don't wait and give them any extra time. you dont have to be a fancy big city lawyer or even a little ole country one like chien. you can be a normal everyday joe who just wants the court to treat you on the same playing field and make these guys play fair.

chien and DC will try and misguide people with their continued distractions they post concerning me. you will have to decide what to look at and make your own decision. i just base mine on my past experience with clowns like these that will preach that they know the exact law. i can read too and am not easily fooled. that is how some of these guys win. they pray on the hopes of getting naive, stupid ignorant people and get easy default or wins. if you just take the time and read the statutes, you might find something to fight them with.

i am not here to fool anyone. i will let you know that i am now 4-0 against these debt collectors. not bad for someone who chiens thinks i dont know a thing....lol