Questions abut when to file motion

[jetliner2]

I am a defendant is a lawsuit. If I loose the case, I will be able to take care of the judgment well enough in a descent amount of time. In other words, I'm not too worried about that, but I do think I have a good chance of winning the case, so I am fighting it. I don't want to go into the details of the case, openly, online, and it wouldn't matter to my question anyway.

Here's where I am at, and what I'm stuck with. The plaintiff filed some documents as evidence in their case. However there was one key piece missing. So I filed a request for document. They should have this, and it would not surprise me if they did end up locating it. But since they failed to do so thus far, and they have the burden of proof, I sent them my request, along with filing a copy of it in the courthouse.

About a week and a half later, I was looking at the papers that I did get, and I suddenly realized a problem with one of the documents they had sent. I had looked this over I don't know how many times and hadn't caught it before then. Basically, with the info as stated on the document, it could very well render the document useless to the case. So I sent another request for document, and filed it with the court, asking for documents to support their claim that this document was supposed to support.

In the mean time, their 30 day window for the first request has passed, and instead of sending the requested document, they sent something wanting to do a settlement. I don't want to settle, I want to go all the way. As I said, I feel I can win, and I'm willing to risk it. But, when I got that letter, I went on the USPS website to check when they got the second request, and it shows that it's being returned to me as undeliverable the way it's addressed.

I know that the next step is to file a motion to compel to have the court order them to produce the documents. So, should I go ahead and file the motion for the first one now, or should I wait and see and file both together. Also, I would think I need to send them another copy of my second request. Does this start the 30 day clock over again for them, or since it was filed in the court, can I go ahead after the original 30 days and file the other motion to compel?

 

[fredrikklaw]

Motion to Compel Not Warranted; yet!

NO!

Going by the information you have provided, not only is it way too early to file a Motion to Compel, as the circumstances do not meet the standards or the essential elements warranting its filing either. So you would be jumping the gun here if you did file the motion and you would also run a big risk of incurring the wrath of the presiding judge and opening yourself up to a move by the plaintiff for sanctions against you for filing a frivolous motion.

The right moves for you would be to first and foremost reject the settlement offer properly by way of a written response or in any other manner as directed by the letter. You can then either wait until you receive the notice of the non-delivery of your discovery requests before sending out another one, or you may wish to save a little time and energy and send it concurrently as your rejection letter.

A motion to compel should be considered only in the event the plaintiff is chronically tardy with his response to interrogatories and the requests for admissions, and also, that your repeated attempts/requests to the same have gone unanswered and it looks more likely than not that no response will be forthcoming without the court's interference.

fredrikklaw

 

[jetliner2]

Just as an update - the PO shows that the second request did arrive. I noticed it shows a different zip code, and I went back and looked at the records for the first request, and it showed delivered to that same zip code. This zip code matches the return address of the letter they just sent me, so I'm assuming they have moved offices and failed to let me know.

The settlement they sent was just a letter, not written as something that would be filed in the court. I've also checked the court's website daily, and so far, nothing new, so I don't think they filed it with the court. I think it's just a side letter they sent to me.

So, that said, the 30 day time frame that I specified in the request for the first document has expired (And then some to allow for the mail.) The 30 day time frame for the request for the other document is approaching. So, once that time comes and goes, without them producing the requested documents, what would be the next step? Would I then send a second request to them, or file the motion to compel?

 

[fredrikklaw]

One more try and then you compel!

At this stage of the litigation, you are to exercise option number 1. Give them the benefit of the doubt and send your discovery request one more time and make sure to note on the cover letter that it is a re-send, so they do not act shocked and bewildered if at a later date you are forced to file to compel production.

Also, you might want to shorten the leash a bit; by half would be a good start by limiting the plaintiff to 14 business days to respond, and it would not go amiss to mention in passing that failure to respond will be followed by a motion to compel without further notice, to be followed by a Motion for Discovery Sanctions which if granted, will basically end the proceedings in your favour; meaning the case will be dismissed with PREJUDICE.

So, their procrastination, feet dragging, or gamesmanship, may well be of benefit to you.

fredrikklaw

 

[jetliner2]

Sounds like a plan, however, I'm not sure about the 14 day part. I've found the Rules of Civil Procedure for Florida, and it says:

"The party to whom the request is directed shall serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time."

Even though this is a second request, would I still have to allow the 30 days stated here? I know it says the court may allow a shorter time, but I wouldn't know for sure without involving the judge.

Another question - I know that in some cases if you say "I will sue you" instead of "I may exercise my rights to bring legal action" this can blow up in your face. Im assuming that when mentioning that I will file the motion to compel that I need to also word it as I may file a motion to compel rather than I will?

 

[fredrikklaw]

Not for Courtesy Communications!

Yes, you are right about the 30-day grace requirement for response to discovery requests, but only on the first attempt and not on subsequent attempt, or attempts, made as a matter of courtesy. And there are no provisions contained within any of the state or the Federal Rules of Civil Procedure regulating Courtesy.

You have already sent Plaintiff a discovery request and it has failed to yield a response within the proscribed time, placing plaintiff squarely in default proper and leaving you free to move for a motion to compel without further notice. Therefore your election to do a re-send is out of courtesy and so not subject to the 30-day restriction, so you can tailor the response time to be as short as a 24 hours and as long as 30 days.

As for the settlement offer: of course, only the final draft of a settlement is presented to the judge for final approval and for its entry into court records and all discussions and negotiations before this point are conducted between the parties with no court involvement. That said, I still recommend that you respond to the offer as ignoring it or rejecting it without any traceable and or recorded communications may work against you down the line. Something along the line of plaintiff's good faith attempt at a settlement meeting with Defendant's bad faith dealing.

Last but not least, you do not need to sugar-coat anything when it comes to litigation and can tell it like it is, and always remember that a threat of legal action is a perfectly legal endeavour and is never considered to be in the same vein as threatening someone with violence. So you can say you WILL be filing a motion of such and thus without fearing any negative backlash.

After all, litigation is nothing if not 100% adversarial.

fredrikklaw

 

[jetliner2]

I don't know why I didn't think of this before, and I don't know if this changes the strategy at this point. After the plaintiff's attorney received my request for document, they filed a request for extension with the court asking for more time so they can get with their client. The reason this just came to mind was they just filed another one in regards to the request for the other document that I had sent, which I got in the mail yesterday.

I know that you said that filing a second request kind of covers me in the event that they want to try to play dumb and act surprised, however since they filed these motions acknowledging that they did in fact receive the requests that I sent, do I still need to file the second request before I file the motion to compel? I'd like to get this thing wrapped up as soon as possible, but I also understand that patience is required as well, so I don't want to rush it either and get hosed.

 

[fredrikklaw]

One piece of information missing!

Of course it is! Plaintiff's filing of a motion to extend the time in which to respond is proof positive that plaintiff is in receipt of your discovery request but it still does not excuse their tardiness in responding, and, it absolves you of having to even remit a second request, albeit as a courtesy. This does put a new twist in the proceedings, but not to the extent to force a material altering of your course of action.

But, alter the course, it does and your next move should obviously be planned and made accordingly. But to do that, we need to know the status of plaintiff's motion. By that I mean its progress report such as if a hearing date has been set, or has an extension already been granted, and if an extension has been granted, what are the terms and what is its duration?

fredrikklaw

 

[jetliner2]

I had filed the first document request on 9/14. According to the post office records they received it on 9/17. They filed their request for more time on 10/1. On the court website it does not show if the request was granted or denied, but I will go down to the courthouse and look at the case file on Monday. I did already once on 10/5 and there was nothing either way, but I understand that was only 4 days later.

So, just to make sure that I'm going the right direction here, correct me if I'm wrong, but if the request for extension was granted then we wait until the granted time frame is up to proceed and if it was denied then I proceed now. Either way the next step is the Motion to Compel.

 

[jetliner2]

Wow. So it's been 29 minutes since I posted that last post, and here comes the mail truck. And in the mail today was another set of copies of the same motion for extension. The only difference is on the certificate of service one is dated 10/24, the other 10/25. They must be so swamped up in case files that they don't even realize they filed the same motion twice???

 

[fredrikklaw]

Do not oppose and pick up some points!

Jetliner2:

Yes, if the request for an Extension of Time to Respond to Discovery is granted, then you will have no choice but to wait until that period has expired before filing a motion to compel; that is of course if they still fail to respond even after the extension period.

But you have an option before that happens, the decision to exercise which is yours and yours alone. Because you will notice that Plaintiff's request is what is referred to as a Noticed Motion which means you can either oppose it or let it be granted unopposed. And should you decide to oppose the motion, you will not only have to write, file, and serve the opposition papers, but will also have to attend the date calendared for the judge to hear oral arguments.

That said, I recommend that you do not offer any opposition, because the motion will almost certainly be granted despite your opposition if it is only the first time that Plaintiff is making such a request. Also, by not opposing the motion you will save yourself a lot of time, energy, and aggravation and score a few brownie points for showing good faith.


fredrikklaw

 

[jetliner2]

I just got back from the courthouse, and here'w where things are at. The second motion for extension (both of them) is not in the case file yet. But I would not expect it to be.

However, back to this first one. The first motion for extension has been filed in the case file, but has never been ruled upon by a judge. It was simply received by the court and filed. The clerk at the records department told me that obviously the judge does not have it in his or her possession to make a ruling since it is there in the case file, and if there was a ruling, it would show up on the docket screen on the clerk of court website, which it has not, now 3 weeks later. So I'm thinking that for one reason or another, it's not going to get ruled on. I'm also wondering if I can go ahead an proceed with the motion to compel, and mention that after they had filed their motion to extend, then then sent correspondence seeking alternatives to the case, which would mean they have conferred with their client, and this is the answer that was provided, therefor they don't need additional time.