Can I reply to defendant's answer?

[Tammy_b]

What is the name of your state (only U.S. law)? Fl

I filed a lawsuit against my neighbor over a property boundary. His attorney filed an answer, with some standard affirmative defenses that I don't think will hold up. Can I respond to this answer, with case law citing why these defenses will not work, or do I have to wait until we go to court?

Also, there was a motion for a more definite statement. I don't have a problem clarifying my statement, but do I have to wait for the judge to rule on the motion, or can I just respond to it?

Thank you in advance.What is the name of your state (only U.S. law)?

 

[OldandTired]

What is the name of your state (only U.S. law)? Fl

I filed a lawsuit against my neighbor over a property boundary. His attorney filed an answer, with some standard affirmative defenses that I don't think will hold up. Can I respond to this answer, with case law citing why these defenses will not work, or do I have to wait until we go to court?

Wait until you are in front of the Judge. You can't answer an answer.

Also, there was a motion for a more definite statement. I don't have a problem clarifying my statement, but do I have to wait for the judge to rule on the motion, or can I just respond to it?

Have your material immediately ready for presentation in Court. Give one copy to the attorney, and have one available for the file.

 

[VeronicaLodge]

actually i think you can answer an answer (although i will apologize if im wrong), i think its called a "reply"

 

[justalayman]

there would be no purpose to respond in the manner the OP is considering. They have stated their defense in their answer. Now you get to prepare your rebuttal to their defense. Then each of you present it to the court and let them decide.

Don;t argue this before going to court. That is why you are going to court, so they can decide who is right.

 

[154NH773]

You can reply (also called a replication) to his answer, but unless it contains misstatements of facts that you can prove as such, it probably doesn't need to be answered.

Also, there was a motion for a more definite statement. I don't have a problem clarifying my statement, but do I have to wait for the judge to rule on the motion, or can I just respond to it?

You can file an objection to any motion entered by the opposing side, and in most cases you should. You indicated it is not a problem for you to comply with his motion for a more definite statement, so just wait for the court to rule on his motion and order you to make the "more definite statement". The court may not see a need for it, and deny his motion.

 

[Tammy_b]

Thank you all for your quick responses and advice. As I'm sure you know, even when you know you're right, the legal system is a scary and confusing place!

Happy Holidays!

 

[chuck126]

Tammy_b:
In addition to the responses here. I think/know Veronica lodge is correct with the answer thing. Fla. R. Civ. P. 1.100[a] Pleadings and Motions, last paragraph states: "if an answer or third-party answer contains an affirmative defense and the opposing party[you] seeks to avoid it, the opposing party shall file a [reply] containing the avoidance. No other pleadings shall be allowed."
You don't have to reply to the answer, but if you don't reply to avoid the affirmative defenses, that would be deemed a waiver on your part and you could be precluded from bringing up your reply/avoidance at a later date [see Rule 1.140 (h) waiver of defenses], when you have/had the opportunity to do so at the pleading stage. Fla. R. Civ. P. 1.140[a][1] states you have twenty days to [reply] after service of the answer, if to close to deadline, file for an extension of time to file your reply. If you feel you have a good argument to the answer/affirmative defenses, then file a reply. A [reply] [should be] filed to avoid the affirmative defenses and demand strict proof. The [reply] should be short and sweet and is similar to an answer.
Example:
IN THE EIGHTEENTH JUDICIAL CIRCUIT COURT
IN AND FOR WHATEVER COUNTY, FLORIDA


TAMMY_B,
Plaintiff,
v. CASE NO. 08-1234-CC
Joey Neighbor,
Defendant.
________________/

REPLY

PLAINTIFF, Tammy_b replies to affirmative defenses filed by Defendant, Joey Neighbor and states with regard to each:
1. Plaintiff denies the first affirmative defense and demands strict proof.
2. Plaintiff denies the second affirmative defense and demands strict proof.
3. Same deal as above.
_________________________________
Tammy_b, Plaintiff,

[Certificate of Service]

No need for explanations, reasoning, arguments or case law needed in the reply, you can do that at a future hearing. Your [reply] in most cases is the final pleading. The pleadings frame the case. Then you go into discovery.
Don't wait for the court to help you out. If you wait for the court to do it, you may lose your right to reply.
As to the more definitive statement motion, I would presume the atty. already has indicated what he/she feels needs to be re-written. You stated you have no problem re-doing the complaint, but I think the other poster may be right in going to the hearing on the motion and let the Judge decide. If the Judge grants the motion in part or full, most likely he will allow you to amend your complaint accordingly, within ten days of service of the courts order. If you need more time to respond to amend the complaint, ask the Judge at the hearing to include it in the Order. Research Rule 1.140 for proper guidance in responding to defenses/motion for more definitive statements.
Good luck.

 

[Tammy_b]

Thanks Chuck126

I will be following your advice and filing a reply.

 

[chuck126]

Reply

Your Welcome. Just wanted to add the following I came across in researching Rule 1.510

which governs Summary Judgment Motions and states in the author's comment:

When affirmative defenses are pleaded sufficiently, and such are not contradicted [as in your

reply] or opposed properly this will preclude a Plaintiff [you] from obtaining a Summary

Judgment. Which is where you would make your arguments, supported by case law, or

whatever other future motion that is pertinent to the answer/affirmative defenses and your

reply, as opposed to putting same in your reply.

 

[Tammy_b]

Order to respond

It's been a month now, and I just got a letter from the judge. The motion for a more definite statement was not granted or denied, she just ordered me to respond to the motion. What does this mean? Do I have to argue the motion, or state that I have no objection to the motion, or just clarify the points the other side wants clarified?
I don't want to drag this thing out forever, and it seems that the opposing attorneys want to do just that!

 

[Ronin]

...Do I have to argue the motion, or state that I have no objection to the motion, or just clarify the points the other side wants clarified? I don't want to drag this thing out forever...

If you do not wish to drag this out then file the clarification that was requested, which should have been done when the matter first arose.

 

[Tammy_b]

Clarifying was my first instinct, but it's not so much clarity that they're looking for as explicit detail and proof. There is more than enough information in the complaint to frame a response to the allegations, as the rules of civil procedure only require a "short and plain statement". I can clarify my statements, but isn't the discovery process where the supporting documents (such as surveys) come in? And why didn't the judge just grant or deny the motion? I deliberately did not respond so that the judge could decide what exactly, if anything, was lacking, and after a month of waiting all I get is an order to respond - with memorandums of law and citations - which would only be needed if I was arguing the motion. So I'm not sure what the heck she's looking for. I think I will just file the response and TRY to clarify some things, but note that other items will be provided during discovery.

Thank you all for your help

 

[Ronin]

I deliberately did not respond so that the judge could decide what exactly, if anything, was lacking...

That's a bit risky

..and after a month of waiting all I get is an order to respond - with memorandums of law and citations...

If you have an order to respond from the judge then you need to respond promptly or risk your case being dismissed.

While short and concise statements are expected in the initial complaint, if more detail or argument is requested then by all means do so. When in doubt it is far better to err on the side of overdoing your pleadings than falling short. If this means attaching exhibits of legal documents and property records or other relevant documents then do so. Don't tell the judge that requested or other relevant information will not be provided now but will be forthcoming in discovery.

You need to establish from the beginning that you have a solid legal basis for your allegations and your claims for relief, or your case may never make it to discovery.

If affirmative defenses are raised that could be grounds to dismiss the case, then you need to shoot them down in your Reply. Assuming that at this point the window to file the initial Reply has not already passed.

 

[Quaere]

The court is not looking for evidence; it is looking for a clear statement of what the defendant has done to lead you to believe you have a claim against him. There is no legal claim called, “he hurt me”. You have to know the name the law has given to your claim and you have to state that name. You also have to set forth allegations that would satisfy each element of each claim.

Example:

Here is a shortened version of the elements necessary to prove defamation:

1. An unprivileged, false statement of fact that tends to injure a person’s reputation;
2. Made to a third party;
3. Understood to be about plaintiff;
4. Causing damage to plaintiff’s reputation.

So in the complaint you would be sure to make at least one allegation for each element:

On or about November 1, 2008, defendant and plaintiff were riding on the same public bus, as they do every day. Defendant stood up in the middle of the bus and shouted out the false statement that plaintiff is a convicted felon. (element 1)
When defendant made this announcement he pointed at plaintiff and it was obvious to everyone on the bus that defendant was talking about plaintiff. (elements 2 and 3)
The statement was not privileged and it caused emotional and reputational harm to plaintiff.

Now defendant knows the facts upon which your claim is based. It was the incident on the bus. You have shown the court a set of facts that if true, will support a legal claim.

If you don’t correct your complaint by providing such information, the next motion from the defense will be a Motion to Dismiss for Failure to State a Claim. This motion will be based upon your failure to make allegations that address each element of your claim/s.

 

[Quaere]

It is possible to litigate a case for years without ever stepping into a courtroom. Therefore, never assume there is going to be a hearing. Answer motions in writing and file them before they are due.

Even if you know there will be a hearing, you are pro se and it is always in your best interest to respond in writing. Then you get a SECOND chance to persuade the court during the hearing. It is highly unlikely you will be able to make an oral presentation as thoroughly as you can make a written presentation. Besides that, you want the judge to see your argument before the hearing, just as she is seeing the d’s arguments.

>>And why didn't the judge just grant or deny the motion?

She intends to. She is giving you a second chance to defend against it. The D goes to the court and says, “Hey, this complaint is bogus because A, B, and C. The court then waits for you to either prove that D’s arguments are invalid, or immediately correct your deficiencies. If you can’t or won’t do either, as long as there was merit to d’s motion, it will be granted.

You defaulted on this motion and if you were not pro se, she probably would have granted the motion against you already.

>>I deliberately did not respond so that the judge could decide what exactly, if anything, was lacking, and after a month of waiting all I get is an order to respond.

The court will not (cannot) tell you what to do. The d’s motion should spell out what is missing from your complaint. It is your job to find out whether there is merit to d’s motion and if so correct the problem if possible.

>>with memorandums of law and citations - which would only be needed if I was arguing the motion.

D has apparently raised questions of law that would preclude your claims. In other words, he is saying that even if everything in your complaint is true, you have no legal grounds for recovery. He is asking you to tell him exactly what law your complaint is based upon. If you can’t do that…you have no complaint.

>>I think I will just file the response and TRY to clarify some things, but note that other items will be provided during discovery.

Like I said, the court is not looking for evidence. The court is looking for probable cause to drag this d into court. WHAT makes you think you have a legal claim against him?

>>Clarifying was my first instinct, but it's not so much clarity that they're looking for as explicit detail and proof. There is more than enough information in the complaint to frame a response to the allegations, as the rules of civil procedure

Sure, if you sue me for giving you a mean look at the office, I can certainly respond to that allegation. But I would not do so, because there is no law against me giving you a mean look. I would ask you to kindly tell me what law you believe I broke and exactly how you think I broke it. Then you might correct your complaint and inform me that pursuant to Florida Statute blah blah blah, since I was cleaning a hand gun while giving you the mean look, and since I also did x, y, and z, that made you feel threatened, you are suing me for making Terroristic Threats against you. NOW, I (and my lawyer) know what I have to defend against so when I answer your complaint I know the relevant facts that I need to address.

>>I can clarify my statements, but isn't the discovery process where the supporting documents (such as surveys) come in?

You didn’t say they wanted documents, you said they wanted LAW. That is the only thing they should be asking for at this point.