Preview
Filing # 38260274 E-Filed 02/25/2016 11:08:15 AM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
ONE AND ONE, LLC d/b/a COMPLETE
REHAB AND MEDICAL CENTER OF
HOLLYWOOD, ORTHOPEDIC & SPINE CASE NO.: CACE15-021427
CENTER OF SOUTH FLORIDA, LLC
d/b/a NEUROSURGICAL ASSOCIATES
OF SOUTH FLORIDA, ORTHOPEDIC &
SPINE CENTER OF SOUTH FLORIDA LLC,
and UNIVERSAL MEDIQUIP, LLC,
Plaintiffs,
vs.
TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM, TODD CASH ALOFS, P.A., KAPLAN &
SCONZO, P.A., and DAVID GUNTER,
Defendants.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO STRIKE
COME NOW, the Plaintiffs, ONE AND ONE, LLC d/b/a COMPLETE REHAB AND
MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC AND SPINE CENTER OF SOUTH
FLORIDA d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, and UNIVERSAL
MEDIQUIP, LLC (collectively, the “Responding Plaintiffs”), by and through undersigned counsel
and hereby files this Response to Defendant TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM’s Motion to Strike, and states as follows:
1. Defendant’s Motion to Strike is wholly without merit and must be denied.
2. Rule 1.190(a), of the Florida Rules of Civil Procedure provides that:
“A party may amend a pleading once as a matter of course at any time before
aresponsive_pleadingis served or, if the pleading is one to which
no responsive pleading is permitted and the action has not been placed on the trial
calendar, may so amend it at any time within 20 days after it is served.”
(Emphasis Added).
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 2/25/2016 11:08:15 AM.****3. This rule has been interpreted to mean that plaintiffs have an absolute right to
amend the complaint before a responsive pleading is served. Boca Burger, Inc. v. Forum, 912 So.
2d 561, 567 (Fla. 2005); Vanderberg v. Ross, 798 So. 2d 806, 807 (Fla. 4th DCA 2001).
4, Further, a motion to dismiss is not a responsive pleading because it is not a
“pleading” as contemplated under the Rules of Civil Procedure. Boca Burger, 912 So. 2d at 567;
Vanderberg, 798 So. 2d at 807; See Fla. R. Civ. P. 1.100(a) (designating permissible pleadings
and providing that “[n]Jo other pleadings shall be allowed”).
5. Accordingly, the filing of a motion to dismiss does not terminate a plaintiff's
absolute right to amend the complaint “once as a matter of course.” Boca Burger, 912 So. 2d at
567.
6. Moreover, a judge's discretion to deny amendment of a complaint arises only after
the defendant files an answer or if the plaintiff already has exercised the right to amend once or if
the plaintiff already has exercised the right to amend once. See Boca Burger, 912 So. 2d at 567.
7. Ina similar case, Boca Burger, Inc. v. Forum, 912 so. 2d 561, 567 (Fla. 2005), the
Florida Supreme Court held that a customer could amend his complaint without leave of court,
regardless of a pending motion to dismiss, and that the trial court erred in refusing to recognize the
amended complaint.
8. The Court held “[u]nder the plain language of the first sentence of rule 1.190(a), a
plaintiff has an absolute right to amend the complaint before a responsive pleading is served.” Id.
The court found that because Boca Burger had not served its answer, and had only filed a motion
to dismiss, Forum (the customer) had the right to file an amended complaint, even if that
amendment was filed on the day of-or even just before-the hearing on Boca Burger's motion todismiss the original complaint. Id. The Court stated the “rule clearly grants a plaintiff one free
amendment to perfect the complaint before an answer is served.” Id.
9. Accordingly, contrary to Defendant’s assertion, Defendant’s Motion to Dismiss is
not a responsive pleading to Plaintiffs’ Complaint.
10. To date, the Defendant has not served Answer to Plaintiffs’ Complaint.
11. Accordingly, Plaintiffs had an absolute right to amend their complaint as a matter
of course without seeking leave of this Court.
WHEREFORE, for the foregoing reasons, Plaintiff, ONE AND ONE, LLC d/b/a
COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC AND
SPINE CENTER OF SOUTH FLORIDA d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH
FLORIDA, and UNIVERSAL MEDIQUIP, LLC, respectfully request this Honorable Court enter
an order denying Defendant’s Motion to Strike, and grant such other and further relief as this
Honorable deems just and proper.
Dated: February 25, 2016 SPYREDES LAW FIRM, P.A.
4400 North Federal Highway, Suite 408
Boca Raton, Florida 33431
Tel: 561-405-9000; Fax: 561-221-6730
Designated Emai!
Primary: Servi
Secondary: monica@spylaw.net
jocuments@spylaw.net
/S/ Sheena D. Smith
Sheena D. Smith, Esq.
Florida Bar No.: 118919CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically filed with the Clerk of Court via Florida Courts E-Filing Portal and served as
pursuant to Florida Rule of Judicial Administration 2.516, to: Scott S. Warburton, Esq., at
swarburton@adamscoogler.com: chill@adamscoogler.com:; bschultz@adamscoogler.com:
wrivera(@adamscoogler.com.
/S/ Sheena D. Smith
Sheena D. Smith, Esq.
Florida Bar No.: 118919
Preview
Filing # 38260274 E-Filed 02/25/2016 11:08:15 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ONE AND ONE, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC & SPINE CASE NO.: CACE15-021427 CENTER OF SOUTH FLORIDA, LLC d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, ORTHOPEDIC & SPINE CENTER OF SOUTH FLORIDA LLC, and UNIVERSAL MEDIQUIP, LLC, Plaintiffs, vs. TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., KAPLAN & SCONZO, P.A., and DAVID GUNTER, Defendants. / PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO STRIKE COME NOW, the Plaintiffs, ONE AND ONE, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC AND SPINE CENTER OF SOUTH FLORIDA d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, and UNIVERSAL MEDIQUIP, LLC (collectively, the “Responding Plaintiffs”), by and through undersigned counsel and hereby files this Response to Defendant TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM’s Motion to Strike, and states as follows: 1. Defendant’s Motion to Strike is wholly without merit and must be denied. 2. Rule 1.190(a), of the Florida Rules of Civil Procedure provides that: “A party may amend a pleading once as a matter of course at any time before aresponsive_pleadingis served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served.” (Emphasis Added). *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 2/25/2016 11:08:15 AM.****3. This rule has been interpreted to mean that plaintiffs have an absolute right to amend the complaint before a responsive pleading is served. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005); Vanderberg v. Ross, 798 So. 2d 806, 807 (Fla. 4th DCA 2001). 4, Further, a motion to dismiss is not a responsive pleading because it is not a “pleading” as contemplated under the Rules of Civil Procedure. Boca Burger, 912 So. 2d at 567; Vanderberg, 798 So. 2d at 807; See Fla. R. Civ. P. 1.100(a) (designating permissible pleadings and providing that “[n]Jo other pleadings shall be allowed”). 5. Accordingly, the filing of a motion to dismiss does not terminate a plaintiff's absolute right to amend the complaint “once as a matter of course.” Boca Burger, 912 So. 2d at 567. 6. Moreover, a judge's discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once or if the plaintiff already has exercised the right to amend once. See Boca Burger, 912 So. 2d at 567. 7. Ina similar case, Boca Burger, Inc. v. Forum, 912 so. 2d 561, 567 (Fla. 2005), the Florida Supreme Court held that a customer could amend his complaint without leave of court, regardless of a pending motion to dismiss, and that the trial court erred in refusing to recognize the amended complaint. 8. The Court held “[u]nder the plain language of the first sentence of rule 1.190(a), a plaintiff has an absolute right to amend the complaint before a responsive pleading is served.” Id. The court found that because Boca Burger had not served its answer, and had only filed a motion to dismiss, Forum (the customer) had the right to file an amended complaint, even if that amendment was filed on the day of-or even just before-the hearing on Boca Burger's motion todismiss the original complaint. Id. The Court stated the “rule clearly grants a plaintiff one free amendment to perfect the complaint before an answer is served.” Id. 9. Accordingly, contrary to Defendant’s assertion, Defendant’s Motion to Dismiss is not a responsive pleading to Plaintiffs’ Complaint. 10. To date, the Defendant has not served Answer to Plaintiffs’ Complaint. 11. Accordingly, Plaintiffs had an absolute right to amend their complaint as a matter of course without seeking leave of this Court. WHEREFORE, for the foregoing reasons, Plaintiff, ONE AND ONE, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC AND SPINE CENTER OF SOUTH FLORIDA d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, and UNIVERSAL MEDIQUIP, LLC, respectfully request this Honorable Court enter an order denying Defendant’s Motion to Strike, and grant such other and further relief as this Honorable deems just and proper. Dated: February 25, 2016 SPYREDES LAW FIRM, P.A. 4400 North Federal Highway, Suite 408 Boca Raton, Florida 33431 Tel: 561-405-9000; Fax: 561-221-6730 Designated Emai! Primary: Servi Secondary: monica@spylaw.net jocuments@spylaw.net /S/ Sheena D. Smith Sheena D. Smith, Esq. Florida Bar No.: 118919CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of Court via Florida Courts E-Filing Portal and served as pursuant to Florida Rule of Judicial Administration 2.516, to: Scott S. Warburton, Esq., at swarburton@adamscoogler.com: chill@adamscoogler.com:; bschultz@adamscoogler.com: wrivera(@adamscoogler.com. /S/ Sheena D. Smith Sheena D. Smith, Esq. Florida Bar No.: 118919