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IN THE CIRCUIT COURT, [circNum] JUDICIAL CIRCUIT,

IN AND FOR [county] COUNTY, FLORIDA

[plfName]	)
Plaintiff,	)
)
vs.	)	Case No (LT):	[caseNo]
[defName]	)	Division:	[caseDiv]
)
Defendant,	)

PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S [PLEADINGTITLE] (AS UNTIMELY)

Plaintiff, [plfName], on this [d] day of [MMM] [YYYY], hereby moves this Court - pursuant to Rule 1.140(f) Fla. R. Civ. P. - to strike the “[pleadingTitle]” that Defendant [defName] filed in this court (see Doc #[XX]; [dtFiled]).

Key Points:

Points	untimely; prejudicial;

Grounds	immaterial; waived defense;

Table of Contents:

Context	2nd Page
Motion	3rd Page
Certificates	6th Page
Exhibits	8th Page

Background:	Defendant [wasRequiredToDoSomething]

Problem:	Defendant [failedToDoSomethingOnTime]

Request:	Court strikes Defendant’s pleading

Rule 1.140(f) Fla. R. Civ. P. | Motion to Strike (highlights added)

A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

Precedence

2010-CA-014727-XXXX	- CV-A (8/20/14)

2011-CA-006258-XXXX	- FC-F (2/14/13)

2012-CA-000129-XXXX	- FC-D (11/6/12)

2012-CA-004530-XXXX	- CV-C (11/28/12)

2018-CA-005232-XXXX	- CV-H (7/8/20)

2019-CA-002448-XXXX	- CV-H (6/5/19)

2019-CA-004213-XXXX	- CV-D (10/22/19)

Duval regularly grants similar motions to strike

Abbreviations

4DCA	-	Fourth District Court of Appeals (FL)
AHCA	-	Agency for Healthcare Administration (FL)
OAG	-	Office of Attorney General (FL)
USFLMD	-	US District Court, Florida, Middle District

MOTION

Pertinent History

[hist001].

[hist002].

[hist003].

[hist004].

[hist005].

[hist006].

Analysis

[any001].

[any002]

[any003]

[any004]

[any005]

[any006]

Arguments in Favor of Striking That Pleading

Defendant Waived his Defense

Defendant’s failure to appear/answer on time – and the consequent entry of default – rendered That Motion a nullity. This point has been codified in the rules of civil procedure (highlights added):

“(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered.”

Rule 1.500(c) Fla. R. Civ. P.

Rule 1.140 (ie, the rule which That Motion was filed under3/) further emphasizes this point (highlights added):

“(h) Waiver of Defenses.

(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).”

Rule 1.140(h)(1) Fla. R. Civ. P.

Put together, Defendant waived his right to defend by failing to defend before default was entered. 4DCA engraved this legal operation in its JAB Enterprises decision:

“All other defenses are waived if not raised by motion or responsive pleading.”

JAB Enterprises v. Gibbons, 596 So.2d 1247 (4DCA 1992)

Waived defenses, of course, are immaterial; and unavailable for adjudication (internal citations omitted) (highlights added):

“A motion for set-off is an affirmative defense. Affirmative defenses are waived if not pled. Accordingly, the trial court erred in granting the set-off based on DBR's untimely post-trial motion.”

Jojo’s Clubhouse v. DBR, 860 So.2d 503 (2003)

[arg101]

In the instant case, Defendant waived [his/her] affirmative defense (¶13-15 supra). This is due to the fact that (a) Defendant was untimely (¶7-12); and (b) Defendant never offered any excusable neglect, meritorious defense, due diligence, or intent to defend on the merits (for being untimely).

As such, Defendant has admitted Plaintiff’s entitlement to recover from the damages Defendant inflicted. And, similarly, Defendant is entitled to a hearing on damages:

“the supreme court held that by failure to plead the defendant admitted the plaintiff's right to recover on the pleaded cause of action but nothing more and therefore the defendant was entitled to be heard as to damages.”

Bowman v Kingsland, 432 So. 2d 660 (Fla. 5th DCA 1983)

Prejudice to Plaintiff

[arg201]

For those reasons – among others – That Motion has been an unjust, expensive, and dilatory tactic. A ploy that this Honorable Court is poised to bar (highlights added):

“These [rules of civil procedure] shall be construed to secure the just, speedy, and inexpensive determination of every action.”

Rule 1.010 Fla. R. Civ. P.

The 11th Circuit emphasized this point in Martin (highlights added):

“Courts have the inherent authority to control the proceedings before them”

Martin v Automobili, 307 F. 3d 1332 (11th Cir. 2002)

In Hutto, the US Supreme Court focused this control on attorneys who delay/disrupt/hamper legal proceedings (highlights added):

“An equity court has the unquestioned power to [punish someone] who shows bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.”

Hutto v Finney, 437 US 678 (1978)

Here, Defendant is that dilatory bad actor which the US Supreme Court warned of; and Plaintiff’s entitlement to a full recovery of defaulted damages is what Defendant is trying to hamper. A hampering that has already prejudiced Plaintiff. An injury that this Court is well-positioned to prevent.

CONCLUSION

WHEREFORE, Plaintiff respectfully asks this Court to strike “[pleadingTitle]” {[XX]} for being untimely and prejudicial.

Dated this [D] day of [MMMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[plfAddy]

P: [plfPhn]

E: [plfEml]

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMMM] [YYYY], I electronically filed the foregoing by using the Florida Courts E-filing Portal which will send a notice of filing to the attached service list.

/s/ [plfName]

Endnotes:

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Motions/Strike.html

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

EXHIBIT A

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