2 Questions - Objection to Hearing

[sbmcg]

What is the name of your state? FL

I've received a Notice of Hearing for Plaintiff's 2nd Motion for Summary Judgment. The case is in the Circuit Court. I filed a Motion to Dismiss for the first Motion for Summary Judgment, and in order to set a date for my motion, the JA demanded I collaborate with the Plaintiff's Attorney to establish a mutually agreeable date.

I have not been contacted by the Plaintiff's Attorney regarding establishing a agreed upon date for this hearing. I have already filed a Motion for Sanctions against the Attorney, and I am currently drafting a Motion to Strike Plaintiff's Motion for Second Summary Judgment. I would like to have my motions heard before the Plaintiff's.

1. How do I object to the set date and time alloted for the hearing?

2. How do I have my motions heard before the Plaintiff's Motion?

Thank you for any and all advice you can give me.

[Chien]

Two questions, one answer:

Assuming the you still have time under FL RCP, file your motion ex parte, and reference the time and date of plaintiff’s motion in your “good cause” argument.

The best that you may be able to hope for (and the most logical approach for the court to take) is to have both motions heard on the same date. Your argument is that plaintiff’s motion is moot, if your motion to strike is granted, however your motion is potentially a nullity if not heard before or at the same time as plaintiff’s.

[sbmcg]

Chien,

You are correct. My argument is that the Plaintiff and the Plaintiff's attorney have submitted a fraudulent Affidavit, and are relying on the fraudulent Affidavit to seek a Summary Judgment. I am asking the Judge to Sanction the Plaintiff and the Plaintiff's attorney and to dismiss this case with prejudice due to their purjerous actions and documents . When I submitted my Motions, the Plaintiff's attorney immediately asked for a Notice of Hearing for his Second Motion for Summary Judgment. He is trying to "railroad" me in this case before I have a chance to have my argument heard. The hearing isn't until November, and I just received the Notice of Hearing. I don't want to lose my chance at presenting my argument.

Pardon me for not understanding completely, but I am not a lawyer, but when you say,"file your motion ex parte" are you saying that the document I have to file is captioned "Motion Ex Parte"?

Thanks again.

[Chien]

OP – I apologize. I did make assumptions about your understanding of the advice and did not provide a further explanation. The problem now is that I have reviewed your Rules of Civil Procedure and of Judicial Administration in the hope of directing you to FL law and find no statutory authority. At the same time, I find FL cases where the procedure has been used (?).

This being the case, I believe it best to provide you with an example of what I was describing, a sample of an ex parte application to shorten time and a suggestion that you contact your court to schedule a hearing, if you feel that it is necessary. I trust that they can tell you the requirements for notice to opposing counsel.

The approach that I suggested is really a 2-step process. The first step involves going into court on an “application” on short notice (in my state, 24-hour advance notice by telephone to opposing counsel will suffice). The only purpose of the application (called an “ex parte application for an order shortening time”) is to ask the court to permit you to have a motion heard more quickly than would ordinarily be allowed. In this case, you want your Motion to Strike to be heard on or before the date for plaintiff’s S/J Motion.

As a definition and example:
n. an order of the court in response to the motion of a party to a lawsuit which allows setting a motion or other legal matter at a time shorter than provided by law or court rules. Shortening time is usually granted when the time for trial or some other court action is approaching and a hearing must be heard promptly by the judge. Example: the local rules require that a party give the other side 10 days' notice before a hearing. A hearing on adding a witness to the expert list would be useless unless heard in five days, since the trial is set to be called in nine days. The court may shorten the time to schedule the hearing to five days, provided the notice is served within 24 hours.

If you decide to do this, have your Motion prepared and attached to the application to show the court what you’ll be serving. If the Court issues the Order Shortening Time, it will also provide for an expedited means and time for service and response, as mentioned in the example.

The Application is fairly simple, but you will have to justify your request. Here is a sample Application:
[url]http://www.lectlaw.com/forms/f142.htm[/url]

[sbmcg]

Chien,

Thanks again. I'm sorry for asking so many questions, but I am representing myself pro se, and I am struggling with everything.

I believe I have found something that will help me in this matter, and fits the situation I am in. I stumbled across Rule 1.150 Sham Pleadings of the Florida Rules of Civil Procedure. If I am interpreting the Rule correctly, if I file a Motion to Strike and I support my Motion with an Affidavit, then my motion must be heard before the Plaintiff's Motion for Summary Judgment. Does this preclude me from filing the ex parte Application on short notice and my Motion will by law be heard before the Plaintiff's Motion? Or will I still need to file the ex parte Application?

[Chien]

OP – I don’t really feel that I understand your intention. I also know that you are pressed for time. I try to explain my responses but, for someone unfamiliar with civil procedure, we are touching on a very large subject – too large for the limits of this type of communication. You don’t have to act on the opinions, but you will have to take them on faith.

Because Rule 1.150 authorizes a Motion to Strike a Sham Pleading, when supported by a verified affidavit, I understand you to be asking if attaching such an affidavit to your Motion to Strike the plaintiff’s Motion for Summary Judgment will allow you to have your Motion heard without the need for an Order Shortening Time or, alternatively, if attaching an affidavit precludes you from seeking an Order Shortening Time.

I don’t know the timeframes with which you are dealing. I have always assumed that you could not regularly calendar your Motion for hearing on or before the date of the plaintiff’s, or we would not be having this discussion. Based on that same assumption, I do not believe that Rule 1.150 helps or hinders you. I do not believe that it is applicable to your situation, and I believe that you must proceed ex parte to get your motion heard.

To be very brief, a Motion for Summary Judgment is grounded on the proposition that there are no material facts in dispute in the action. A Motion to Strike a Sham Pleading would have to allege essentially the opposite – i.e. that there was no truth or factual basis for the allegation of the pleading – it was a fiction, a sham. I can’t really imagine that it would be possible for you to file a verified affidavit (meaning sworn under oath) that there was absolutely no factual basis for any contention made in the S/J Motion, especially when it is being brought for the second time. It’s just not conceivable for me.

Accordingly, I don’t see how the Rule serves your needs and you must file the Application. I haven’t seen any of the pleadings, and if I’m missing something, feel free to clarify.

[Chien]

OP –
I thought about this more and just wanted to encourage you to pay particular attention to my concluding comment about not having seen the pleadings. I don’t even know the facts of the case.

We have been discussing strictly procedural matters. I admit that I still can’t see how an affidavit would help – proof to the satisfaction of the court that 1 out of 100 material issues was still in dispute would defeat a S/J Motion, and that doesn’t require a sworn affidavit – but you’re moving to strike based on their use of perjured evidence. It’s an unusual set of conditions in many ways. If you think that your tactic is best suited to your case, you needn’t be deterred because I’m “not getting it”. I’m also not seeing the whole picture.

[sbmcg]

Chien,

Thank you for your responses. I know I am asking a lot from you and this forum based on very little information from me. Since this is an active case, I have chosen to limit the amount I disclose here.

Although, you may feel your advice is contrary to my objective, I, on the other hand, have found your advice invaluable and extremely helpful.

Thank you again for your assistance. I feel highly confident in your knowledge, and would gladly share the details of my case with you if you are so inclined to inquire.

[Chien]

OP – I have no problem with what you do or do not disclose; I have felt it appropriate to limit certain personal disclosures on the forum myself. I also had not considered my advice contrary to your objectives, or I would not have entered into the thread. If you found it helpful, I’m pleased. That’s why we post.

The point that I was making was for your benefit and was this: up to a certain stage in litigation, many procedural rules are sufficiently general that they are applicable to any case without regard for its nature. They are intended to be. Past a certain stage, tactical and strategic considerations may have bearing on how the rules are used. I can give you general information but, if the specifics of your case dictate doing something differently, fell free to ignore the information. I would not knowingly lead you astray, but it was what I didn’t know that I wanted to emphasize. We’re both aware of it, and it hasn’t prevented a dialogue.

I’m not going to inquire about your case but, if you want to PM me on a point, feel free to do that too.