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Filing # 87930874 E-Filed 04/12/2019 04:46:45 PM.
IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
LEAH M. HUBBARD, CASE NO, 2018CC001057
Plaintiff
VS,
THE YATES LAW FIRM
E. CLAYTON YATES, P.A.
Defendants.
/
DEFENDANT COUNTER-PLAINTIFE’S MOTION TO STRIKE PLAINTIFF
COUNTER-DEFENDANT’S THIRD AMENDED COMPLAINT TITLED AMENDED
STATEMENT OF CLAIM/COMPLAINT PURSUANT TO F.R.C.P. 1,140(c); AND FOR
INVOLUNTARY DISMISSAL PURSUANT TO F.R.C.P 1.420(b)
COMES NOW, the Defendant Counter-Plaintiff, E. CLAYTON YATES P.A.,
(YATES, P.A.”), and files this Motion to Strike the Plaintiff. Counter-Defendant’s, LEAH M.
HUBBARD, (“HUBBARD”), third amended complaint titled Amended Statement of
Claim/Complaint, and for an entry of involuntary dismissal pursuant to F.R.C.P 1.420(b) and as
grounds therefore state:
1. On April 20, 2018, HUBBARD filed a Statement of Claim,
2. On May 23, 2018, YATES, P.A., timely filed an Answer, Affirmative Defenses, and
a Counter Claim.
3. On June 6, 2018, HUBBARD filed her Answer to YATES, P.A.’s Counter Claim.
4. On December 17, 2018, ata hearing on HUBBARD’S Motions to Strike Response to
Request for Admissions and Plaintiff Counter Claim Defendant’s Motion for Final
Summary Judgment, which were both denied, HUBBARD orally requested
permission to file an amended complaint, and e-filed an amended complaint entitled
Amended Statement of Claim/Complaint.5.
10.
On December 26, 2018, YATES, P.A., submitted its Motion to Dismiss for Failure to
State a Cause of Action or in the Alternative for A More Definite Statement with
Memorandum of Law.
On January 9, 2019, HUBBARD filed a Motion to Strike Defendant’s Motion to
Dismiss and More Definite Statement and a Motion for Default.
On January 16, 2019, HUBBARD set a hearing date on her Motion to Strike
Defendant’s Motion to Dismiss and More Definitive Statement and Motion for
Default for February 25, 2019,
On February 21, 2019, HUBBARD filed a Notice of Cancellation of hearing and filed
a Second Amended Complaint without leave of the Court to do so.
On February 25, 2019, a hearing was held on the pending motions being: YATES,
P.A.’s Motion to Dismiss for Failure to State a Cause of Action or in the Alternative
for a More Definitive Statement and HUBBARD’s Motion to Strike Defendant's
Motion to Dismiss and More Definitive Statement and Motion for Default, at which
time HUBBARD made an ore tenus motion for permission to file a Second
Amended Complaint. The Court ordered the parties to return for her decision on
pending matters on March 25, 2019.
On March 22, 2019, YATES P.A., filed a Motion to Dismiss Second Amended
Complaint for Failure to State a Cause of Action with Memorandum of Law.il.
13.
15.
On March 25, 2019, the Court granted YATES, P.A.’s Motion for More Definitive
Statement and denied HUBBARD’s oral request to file a Second Amended
Complaint. The Court orally specified HUBBARD should provide a more definitive
Statement as to Paragraphs 11, 12, and 13 of HUBBARD’S last Amended Complaint
dated December 17, 2018.
. On that same date, March 25"" HUBBARD filed what amounts to a third amended
complaint still attempting to allege a cause of action for civil theft as evidenced by
her claim for treble damages in paragraph 13, and the” Wherefore” clause of this last
amended complaint. This third amended complaint still fails to state a cause of action
with a “short plain statement of the ultimate facts showing that the pleader is entitled
to relief”, as required under Fla. R. Civ. P. 1.1 10(b).
Plaintiff, by submission of this third amended complaint, willfully disregarded the
Court’s Order that she file a more definite statement as to paragraphs | 1., 12. and 13
of her second amended complaint.
- F.R.C.P. 1.104(e) governs motions for a more definitive statement and provides “if
the motion is granted and the order of the court is not obeyed within 10 days after
notice of the order or such other time as the court may fix, the court may strike the
pleading to which the motion was directed ...”
F.R.C.P. 1.420(b) states: “Any party may move for dismissal of an action or of any
claim against that party for failure of an adverse party to comply with the Florida
Rules of Civil Procedure or any order of court.” “A ‘motion to strike’ that regards
such failure should be treated as a motion for involuntary dismissal under Rule1.420(b)” Rosenberg v. Miller, 453 So, 2d 885, 886 (Fla. 3d DCA 1984).
WHEREFORE, for the foregoing reasons, Defendant, Counter-Plaintiff respectfully
requests this Court enter an Order striking Plaintiff Counter Defendant’s fourth complaint titled
Amended Statement of Claim/Complaint pursuant to Rule 1.140(e); an entry of involuntary
dismissal pursuant to Rule 1.420(b), and such other relief as this Court deems appropriate.
E. Clayton Yates
426 Avenue A
Ft. Pierce, FL 34950
Phone: 772-465-7990
Facsimile: 772-465-1886
Primary Email: cyates@feey:
By:
CERTIFICATE OF SERVICE
IT HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Leah Hubbard, via e-service at leahhubbard0706@email £om and
independentservicesofverobeach@sinail.com on this L 2) i of April, 2019.
layton Yat /
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Filing # 87930874 E-Filed 04/12/2019 04:46:45 PM. IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA LEAH M. HUBBARD, CASE NO, 2018CC001057 Plaintiff VS, THE YATES LAW FIRM E. CLAYTON YATES, P.A. Defendants. / DEFENDANT COUNTER-PLAINTIFE’S MOTION TO STRIKE PLAINTIFF COUNTER-DEFENDANT’S THIRD AMENDED COMPLAINT TITLED AMENDED STATEMENT OF CLAIM/COMPLAINT PURSUANT TO F.R.C.P. 1,140(c); AND FOR INVOLUNTARY DISMISSAL PURSUANT TO F.R.C.P 1.420(b) COMES NOW, the Defendant Counter-Plaintiff, E. CLAYTON YATES P.A., (YATES, P.A.”), and files this Motion to Strike the Plaintiff. Counter-Defendant’s, LEAH M. HUBBARD, (“HUBBARD”), third amended complaint titled Amended Statement of Claim/Complaint, and for an entry of involuntary dismissal pursuant to F.R.C.P 1.420(b) and as grounds therefore state: 1. On April 20, 2018, HUBBARD filed a Statement of Claim, 2. On May 23, 2018, YATES, P.A., timely filed an Answer, Affirmative Defenses, and a Counter Claim. 3. On June 6, 2018, HUBBARD filed her Answer to YATES, P.A.’s Counter Claim. 4. On December 17, 2018, ata hearing on HUBBARD’S Motions to Strike Response to Request for Admissions and Plaintiff Counter Claim Defendant’s Motion for Final Summary Judgment, which were both denied, HUBBARD orally requested permission to file an amended complaint, and e-filed an amended complaint entitled Amended Statement of Claim/Complaint.5. 10. On December 26, 2018, YATES, P.A., submitted its Motion to Dismiss for Failure to State a Cause of Action or in the Alternative for A More Definite Statement with Memorandum of Law. On January 9, 2019, HUBBARD filed a Motion to Strike Defendant’s Motion to Dismiss and More Definite Statement and a Motion for Default. On January 16, 2019, HUBBARD set a hearing date on her Motion to Strike Defendant’s Motion to Dismiss and More Definitive Statement and Motion for Default for February 25, 2019, On February 21, 2019, HUBBARD filed a Notice of Cancellation of hearing and filed a Second Amended Complaint without leave of the Court to do so. On February 25, 2019, a hearing was held on the pending motions being: YATES, P.A.’s Motion to Dismiss for Failure to State a Cause of Action or in the Alternative for a More Definitive Statement and HUBBARD’s Motion to Strike Defendant's Motion to Dismiss and More Definitive Statement and Motion for Default, at which time HUBBARD made an ore tenus motion for permission to file a Second Amended Complaint. The Court ordered the parties to return for her decision on pending matters on March 25, 2019. On March 22, 2019, YATES P.A., filed a Motion to Dismiss Second Amended Complaint for Failure to State a Cause of Action with Memorandum of Law.il. 13. 15. On March 25, 2019, the Court granted YATES, P.A.’s Motion for More Definitive Statement and denied HUBBARD’s oral request to file a Second Amended Complaint. The Court orally specified HUBBARD should provide a more definitive Statement as to Paragraphs 11, 12, and 13 of HUBBARD’S last Amended Complaint dated December 17, 2018. . On that same date, March 25"" HUBBARD filed what amounts to a third amended complaint still attempting to allege a cause of action for civil theft as evidenced by her claim for treble damages in paragraph 13, and the” Wherefore” clause of this last amended complaint. This third amended complaint still fails to state a cause of action with a “short plain statement of the ultimate facts showing that the pleader is entitled to relief”, as required under Fla. R. Civ. P. 1.1 10(b). Plaintiff, by submission of this third amended complaint, willfully disregarded the Court’s Order that she file a more definite statement as to paragraphs | 1., 12. and 13 of her second amended complaint. - F.R.C.P. 1.104(e) governs motions for a more definitive statement and provides “if the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed ...” F.R.C.P. 1.420(b) states: “Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with the Florida Rules of Civil Procedure or any order of court.” “A ‘motion to strike’ that regards such failure should be treated as a motion for involuntary dismissal under Rule1.420(b)” Rosenberg v. Miller, 453 So, 2d 885, 886 (Fla. 3d DCA 1984). WHEREFORE, for the foregoing reasons, Defendant, Counter-Plaintiff respectfully requests this Court enter an Order striking Plaintiff Counter Defendant’s fourth complaint titled Amended Statement of Claim/Complaint pursuant to Rule 1.140(e); an entry of involuntary dismissal pursuant to Rule 1.420(b), and such other relief as this Court deems appropriate. E. Clayton Yates 426 Avenue A Ft. Pierce, FL 34950 Phone: 772-465-7990 Facsimile: 772-465-1886 Primary Email: cyates@feey: By: CERTIFICATE OF SERVICE IT HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Leah Hubbard, via e-service at leahhubbard0706@email £om and independentservicesofverobeach@sinail.com on this L 2) i of April, 2019. layton Yat /