Preview
Filing # 147920776 E-Filed 04/19/2022 10:17:33 AM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA.
CASE NO: 50-2021-CA-007517-XXXX-MB
JAMES N. MANOLAKOS,
Plaintiff,
vs.
RONALD PAUL HIMEBACK,
Defendant.
/
PLAINTIFF’S MOTION FOR LEAVE TO AMEND
Plaintiff, JAMES N. MANOLAKOS (hereinafter referred to as Plaintiff),
pursuant to Fla. R. Civ. P. 1.190, moves the court for an order granting leave to
amend and for grounds states:
1. Plaintiff needs leave to amend to drop Defendant RONALD PAUL
HIMEBACK and join THE CITY OF WEST PALM BEACH.
2. The proposed second amended complaint is attached as Exhibit A.
3. The privilege of amending has never been abused by Plaintiff.
4. This is Plaintiffs second request for leave to amend.
5. The amendment would not be futile.
6. Liberality is the general rule on allowing amendments.
7. Granting leave to amend will not result in any unfair prejudice.
WHEREFORE, Plaintiff respectfully requests the court’s order granting leave
1
'** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/19/2022 10:17:33 AM ***to amend and immediate issuance of summons for the newly added party.
MEMO OF LAW
Fla. R. Civ. P. 1.190(e) provides in relevant part that pleadings may be
amended at any time in furtherance of justice and upon such terms as are just.
Specifically, Fla. R. Civ. P. 1.190(e) states relevant part (emphasis supplied) :
(e) Amendments Generally. At any time in furtherance of justice,
upon such terms as may be just, the court may permit any process,
proceeding, pleading, or record to be amended or material
supplemental matter to be set forth in an amended or supplemental
pleading.
Fla. R. Civ. P. 1.190(e) is to be liberally construed. Arch Specialty Ins. Co. v.
Kubicki Draper, LLP, 16 So.3d 149 (Fla. 4th DCA 2014). Mere possibility that the
plaintiff has a cause of action requires that leave to amend the pleadings be given,
provided the privilege to amend has not been abused. General Container service, Inc.
v. McGee & Co., 734 So.2d 570 (Fla. 3d DCA 1999). As a general rule, refusal to
allow amendment to a pleading constitutes an abuse of discretion unless it clearly
appears that allowing the amendment would prejudice the opposing party, the
privilege to amend has been abused, or amendment would be futile. Karn v. Coldwell
Banker Residential Estate, Inc., 705 So.2d 680 (Fla. 4th DCA 1998).
‘WHEREFORE, Plaintiff requests leave to amend and asks this court to allow
the second amended complaint attached as exhibit A to be filed and served.
THEREBY CERTIFY that a true and correct copy of the foregoing has been servedby filing it with the clerk of the court on this Sy of April 2022 and by email
true and accurate copies hereof to: dstephens@oslegal.com, LOlds@oslegal.com,
volds@oslegal.com, PPecaro@lawdrive.com, gigi@lawdrive.com,
pastillman@gmail.com, phil@baderstillman.com, alexis@baderstillman.com,
Diego C. Asencio, P.A.
4440 PGA Blvd. Suite 600
Palm Beach Gardens, FL 33410
ego C. Asencio, Esq.
Florida Bar #: 352942EXHIBIT AIN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA.
CASE NO: 50-2021-CA-007517-XXXX-MB
JAMES N. MANOLAKOS,
Plaintiff,
vs.
CITY OF WEST PALM BEACH,
Defendant.
/
SECOND AMENDED COMPLAINT
Plaintiff, JAMES N. MANOLAKOS (hereinafter MR. MANOLAKOS), sues
Defendant, CITY OF WEST PALM BEACH, a political subdivision organized
and existing under the laws of the State of Florida (hereinafter WEST PALM
BEACH) and alleges:
1.
2.
This is an action for damages that exceed the sum of $30,000.
At all times material hereto, MR. MANOLAKOS is and was a resident and
domiciliary of Palm Beach County, Florida.
. At all times material hereto, WEST PALM BEACH was and is a political
subdivision organized and existing under the law of the State of Florida.
At all times material hereto, WEST PALM BEACH was responsible for theconduct of its employees and/or agents committed incident to and within the
scope and course of their employment.
. On or about 11-08-2020 Ronald Paul Himeback, while incident to and with
the scope and course of his employment and/or agency for the WEST PALM
BEACH, did negligently operate a motor vehicle by driving too fast for
conditions, failing to maintain a proper look out, and crashing into MR.
MANOLAKOS who was a pedestrian walking in a residential area.
. MR. MANOLAKOS timely furnished pre-suit notice under F.S.
§768.28(6)(a) to WEST PALM BEACH of his claims and more than ninety
(90) days has passed since notice was furnished.
. Asa direct result of the above, MR. MANOLAKOS suffered bodily injury
and resulting disability, disfigurement, expense of medical and nursing care
and treatment, loss of earnings, loss of ability to earn money, loss of
capacity for the enjoyment of life, aggravation of a previously existing
condition, and loss of ordinary and necessary household services. These
losses are permanent or continuing in nature and MR. MANOLAKOS will
suffer these losses in the future. MR. MANOLAKOS also claims damages
for pain, suffering, mental anguish, and inconvenience based on having
satisfied the tort threshold of the Florida Motor Vehicle No-Fault Law.
WHEREFORE, MR. MANOLAKOS demands damages againstWEST PALM BEACH together with his costs pursuant to F.S. §§92.231,
57.041, 57.071 and Fla. R. Civ. Pro. 1.390(b) and further demands trial by
jury.
Dated this day of April 2022.
Diego C. Asencio, P.A.
4440 PGA Blvd. Suite 600
Palm Beach Gardens, FL 33410
Tel: (561) 844-0840
iPhone: (561) 573-1758
Email: diego634c@aol.com
By:
Diego C. Asencio, Esq.
Florida Bar No.: 352942
Preview
Filing # 147920776 E-Filed 04/19/2022 10:17:33 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO: 50-2021-CA-007517-XXXX-MB JAMES N. MANOLAKOS, Plaintiff, vs. RONALD PAUL HIMEBACK, Defendant. / PLAINTIFF’S MOTION FOR LEAVE TO AMEND Plaintiff, JAMES N. MANOLAKOS (hereinafter referred to as Plaintiff), pursuant to Fla. R. Civ. P. 1.190, moves the court for an order granting leave to amend and for grounds states: 1. Plaintiff needs leave to amend to drop Defendant RONALD PAUL HIMEBACK and join THE CITY OF WEST PALM BEACH. 2. The proposed second amended complaint is attached as Exhibit A. 3. The privilege of amending has never been abused by Plaintiff. 4. This is Plaintiffs second request for leave to amend. 5. The amendment would not be futile. 6. Liberality is the general rule on allowing amendments. 7. Granting leave to amend will not result in any unfair prejudice. WHEREFORE, Plaintiff respectfully requests the court’s order granting leave 1 '** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/19/2022 10:17:33 AM ***to amend and immediate issuance of summons for the newly added party. MEMO OF LAW Fla. R. Civ. P. 1.190(e) provides in relevant part that pleadings may be amended at any time in furtherance of justice and upon such terms as are just. Specifically, Fla. R. Civ. P. 1.190(e) states relevant part (emphasis supplied) : (e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. Fla. R. Civ. P. 1.190(e) is to be liberally construed. Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 16 So.3d 149 (Fla. 4th DCA 2014). Mere possibility that the plaintiff has a cause of action requires that leave to amend the pleadings be given, provided the privilege to amend has not been abused. General Container service, Inc. v. McGee & Co., 734 So.2d 570 (Fla. 3d DCA 1999). As a general rule, refusal to allow amendment to a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Karn v. Coldwell Banker Residential Estate, Inc., 705 So.2d 680 (Fla. 4th DCA 1998). ‘WHEREFORE, Plaintiff requests leave to amend and asks this court to allow the second amended complaint attached as exhibit A to be filed and served. THEREBY CERTIFY that a true and correct copy of the foregoing has been servedby filing it with the clerk of the court on this Sy of April 2022 and by email true and accurate copies hereof to: dstephens@oslegal.com, LOlds@oslegal.com, volds@oslegal.com, PPecaro@lawdrive.com, gigi@lawdrive.com, pastillman@gmail.com, phil@baderstillman.com, alexis@baderstillman.com, Diego C. Asencio, P.A. 4440 PGA Blvd. Suite 600 Palm Beach Gardens, FL 33410 ego C. Asencio, Esq. Florida Bar #: 352942EXHIBIT AIN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO: 50-2021-CA-007517-XXXX-MB JAMES N. MANOLAKOS, Plaintiff, vs. CITY OF WEST PALM BEACH, Defendant. / SECOND AMENDED COMPLAINT Plaintiff, JAMES N. MANOLAKOS (hereinafter MR. MANOLAKOS), sues Defendant, CITY OF WEST PALM BEACH, a political subdivision organized and existing under the laws of the State of Florida (hereinafter WEST PALM BEACH) and alleges: 1. 2. This is an action for damages that exceed the sum of $30,000. At all times material hereto, MR. MANOLAKOS is and was a resident and domiciliary of Palm Beach County, Florida. . At all times material hereto, WEST PALM BEACH was and is a political subdivision organized and existing under the law of the State of Florida. At all times material hereto, WEST PALM BEACH was responsible for theconduct of its employees and/or agents committed incident to and within the scope and course of their employment. . On or about 11-08-2020 Ronald Paul Himeback, while incident to and with the scope and course of his employment and/or agency for the WEST PALM BEACH, did negligently operate a motor vehicle by driving too fast for conditions, failing to maintain a proper look out, and crashing into MR. MANOLAKOS who was a pedestrian walking in a residential area. . MR. MANOLAKOS timely furnished pre-suit notice under F.S. §768.28(6)(a) to WEST PALM BEACH of his claims and more than ninety (90) days has passed since notice was furnished. . Asa direct result of the above, MR. MANOLAKOS suffered bodily injury and resulting disability, disfigurement, expense of medical and nursing care and treatment, loss of earnings, loss of ability to earn money, loss of capacity for the enjoyment of life, aggravation of a previously existing condition, and loss of ordinary and necessary household services. These losses are permanent or continuing in nature and MR. MANOLAKOS will suffer these losses in the future. MR. MANOLAKOS also claims damages for pain, suffering, mental anguish, and inconvenience based on having satisfied the tort threshold of the Florida Motor Vehicle No-Fault Law. WHEREFORE, MR. MANOLAKOS demands damages againstWEST PALM BEACH together with his costs pursuant to F.S. §§92.231, 57.041, 57.071 and Fla. R. Civ. Pro. 1.390(b) and further demands trial by jury. Dated this day of April 2022. Diego C. Asencio, P.A. 4440 PGA Blvd. Suite 600 Palm Beach Gardens, FL 33410 Tel: (561) 844-0840 iPhone: (561) 573-1758 Email: diego634c@aol.com By: Diego C. Asencio, Esq. Florida Bar No.: 352942