On April 20, 2018 a
Motion-Secondary
was filed
involving a dispute between
Hubbard, Leah M,
Independent Services Of Vero Beach Llc,
and
E Clayton Yates Pa,
Yates, E Clayton Pa,
Yates Law Firm,
for MALPRACTICE - OTHER PROFESSIONAL
in the District Court of Indian River County.
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Filing # 87975806 E-Filed 04/15/2019 01:25:22 PM
IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
LEAH M. HUBBARD CASE NO.: 312018CC001057
Plaintiffs,
THE YATES LAW FIRM
E. CLAYTON YATES, P.A.
Defendants.
RESPONSE TO DEFENDANT’S MOTION TO STRIKE AND
INVOLUNTARY DISMISSAL
LEAH M. HUBBARD (hereafter, “Plaintiffs” and individually as “Counter-Claim
Defendant”), files this Response to Defendant’s Motion to Strike and Involuntary Dismissal and
states as follows:
1. On March 25, 2019 a hearing was held where this Court denied the Plaintiff's Second
Amended Complaint and explained to the Plaintiff and the Defendant that the Plaintiffs
new cause of action, Civil Theft with Felonious Intent, could be argued within the breach
of contract cause of action already stated in the Amended Statement of Claim/Complaint
dated December 17, 2018. Therefore, there was no new allegation in the Second
Amended Complaint and therefore the Court denied the Plaintiffs request for leave to
amend.
2. The Court further confirmed for the Plaintiff that in paragraph’s 11, 12 and 13, the
Plaintiff could copy and paste information from the proposed Second Amended
Complaint to provide a more definitive statement for the Defendant. Therefore the
Plaintiff complied with the instructions of the Court.
3. The Court granted the Defendant’s motion for more definitive statement and gave the
Plaintiff 10 days to amend and the Defendant 20 days to Answer. The Plaintiff amended
paragraphs 11, 12 and 13 under the direction of the Court within the 10 day period as
ordered. The Defendant’s due date for the answer is April 15, 2019 and the Defendant
has failed to comply with the Court’s order by refusing to file the answer.4. The Plaintiff further states that a Motion to Strike and Involuntary Dismissal under
F.R.C.P. 1.140(4) should have been filed within 10 days of the filing of the Plaintiffs
amendment, therefore the filing of the Motion on April 12, 2019 is untimely. Moreover, a
motion to strike is not used when a party alleges failure to comply with a court order.
5. It is the position of the Plaintiff that once the Court denied the Plaintiff leave to amend
the Amended Statement of Claim/Complaint dated December 17, 2018, the proposed
Second Amended Complaint became a dead document and therefore the Third Amended
Complaint that the Defendant is attempting to strike and involuntarily dismiss does not
exist.
6. As the Plaintiff has complained to this Court ad nauseum, the Defendant has chronically
and intentionally frustrated the proceedings in this case through gamesmanship, delays
and stubbornly refuses to move the case forward.
7. The Plaintiff is asking this Court to deny the Defendant’s Motion to Strike and
Involuntary Dismissal and compel the Defendant to answer the Amended Statement of
Claim/Complaint.
Wherefore, the Plaintiff requests the entry of an order denying the Motion to Strike and
Involuntary Dismissal and for such other and further relief as this Court deems just and proper.
DATED: April 15, 2019
/S/
Leah M. Hubbard
2046 79% Avenue
Vero Beach, FL 32966
407-866-4931CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by e-portal to E. Clayton Yates, P.A., cyates@feeyateslaw.com and eservice@yateslawfla.com
this 15 day of April, 2019.
/S/
Leah M. Hubbard
2046 79 Avenue
Vero Beach, FL 32966
407-866-4931
Document Filed Date
April 15, 2019
Case Filing Date
April 20, 2018
Category
MALPRACTICE - OTHER PROFESSIONAL
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Filing # 87975806 E-Filed 04/15/2019 01:25:22 PM IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA LEAH M. HUBBARD CASE NO.: 312018CC001057 Plaintiffs, THE YATES LAW FIRM E. CLAYTON YATES, P.A. Defendants. RESPONSE TO DEFENDANT’S MOTION TO STRIKE AND INVOLUNTARY DISMISSAL LEAH M. HUBBARD (hereafter, “Plaintiffs” and individually as “Counter-Claim Defendant”), files this Response to Defendant’s Motion to Strike and Involuntary Dismissal and states as follows: 1. On March 25, 2019 a hearing was held where this Court denied the Plaintiff's Second Amended Complaint and explained to the Plaintiff and the Defendant that the Plaintiffs new cause of action, Civil Theft with Felonious Intent, could be argued within the breach of contract cause of action already stated in the Amended Statement of Claim/Complaint dated December 17, 2018. Therefore, there was no new allegation in the Second Amended Complaint and therefore the Court denied the Plaintiffs request for leave to amend. 2. The Court further confirmed for the Plaintiff that in paragraph’s 11, 12 and 13, the Plaintiff could copy and paste information from the proposed Second Amended Complaint to provide a more definitive statement for the Defendant. Therefore the Plaintiff complied with the instructions of the Court. 3. The Court granted the Defendant’s motion for more definitive statement and gave the Plaintiff 10 days to amend and the Defendant 20 days to Answer. The Plaintiff amended paragraphs 11, 12 and 13 under the direction of the Court within the 10 day period as ordered. The Defendant’s due date for the answer is April 15, 2019 and the Defendant has failed to comply with the Court’s order by refusing to file the answer.4. The Plaintiff further states that a Motion to Strike and Involuntary Dismissal under F.R.C.P. 1.140(4) should have been filed within 10 days of the filing of the Plaintiffs amendment, therefore the filing of the Motion on April 12, 2019 is untimely. Moreover, a motion to strike is not used when a party alleges failure to comply with a court order. 5. It is the position of the Plaintiff that once the Court denied the Plaintiff leave to amend the Amended Statement of Claim/Complaint dated December 17, 2018, the proposed Second Amended Complaint became a dead document and therefore the Third Amended Complaint that the Defendant is attempting to strike and involuntarily dismiss does not exist. 6. As the Plaintiff has complained to this Court ad nauseum, the Defendant has chronically and intentionally frustrated the proceedings in this case through gamesmanship, delays and stubbornly refuses to move the case forward. 7. The Plaintiff is asking this Court to deny the Defendant’s Motion to Strike and Involuntary Dismissal and compel the Defendant to answer the Amended Statement of Claim/Complaint. Wherefore, the Plaintiff requests the entry of an order denying the Motion to Strike and Involuntary Dismissal and for such other and further relief as this Court deems just and proper. DATED: April 15, 2019 /S/ Leah M. Hubbard 2046 79% Avenue Vero Beach, FL 32966 407-866-4931CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-portal to E. Clayton Yates, P.A., cyates@feeyateslaw.com and eservice@yateslawfla.com this 15 day of April, 2019. /S/ Leah M. Hubbard 2046 79 Avenue Vero Beach, FL 32966 407-866-4931