Legal Question in Civil Litigation in Florida

I filed a civil complaint along with requests to produce, interrogatories and admissions in Sarasota civil court. Opposing counsel filed for a 20-day extension the day before the defendant's answer was due. However, counsel failed to obtain leave of the court for the extension. Nor did counsel attempt to stipulate an extension of time. Since the defendant failed to obtain leave of the court for the extension I filed for a default judgment (day 35 after complaint was served) for failing to plead or otherwise defend. On day 40 the defendant filed for a motion to dismiss and 3 days later I filed an objection to his motion. On day 50 the defendant filed a motion for protective order prohibiting discovery until his motion to dismiss is heard. The default judgment will be heard the last week of this month and the motion to dismiss and motion for protective order will be heard the first week of Feb. I have written 2 letters (good faith attempts) to opposing counsel requesting his participation in discovery, but to no avail. I maintain by simply filing a motion for protective order does not act as an automatic stay, and the motion does not toll the time for response of objection to the discovery requests. See Rahman Momenah v. Ammache, 616 So 2d 121 (Fla 2d DCA 1993) and Stables v. Rivers, 559 So 2d 440 (Fla 1st DCA 1990). I have prepared a motion to compel discovery however, in looking at local procedures for the magistrate judge (that will hear the motions) it appears when using the court's fill-in the blank form to compel discovery (ex parte) the movant must swear that the opposing party has not filed a motion for protective order. However, I am not planning to use the court's form or request the motion ex parte.

My questions are as follows:

1. Is it allowable or common practice for a party to file for an enlargement of time and move forward as though it was so ordered by the court?

2. Is it normal practice for courts to stay discovery even though the motion for protective order has been filed but not heard? If the answer is yes, how can the courts do this when there is case law that supports the contrary?

3. If the magistrate judge will not hear a motion to compel ex parte because a protective order has been filed, is this because the request is ex parte?

4. If the answer to question #3 is "no", is it worthwhile to write the judge a letter memorializing my objection and citing case law in support thereof?

Thanks in advance for your time and consideration.

Tom


Asked on 1/11/11, 9:58 pm

2 Answers from Attorneys
Tracy Newmark The Newmark Law Firm, PA

1. Yes.

2. No, when there is a hearing compelling the discovery, or calling up the motion for extension of time or objection then the Court usually orders compliance with the discovery within a certain number of days (essentially providing for the extension that the party sought to begin with). If the process is abused, the court may sanction the party who failed to comply with the rules of procedure, but not likely.

3. Yes; now you have to set the motion for protective order for hearing even though you did not file it.

4. Present what you would have put in the contents of the letter to the judge at the hearing on the motion for protective order.

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Answered on 1/17/11, 6:42 am
David Slater David P. Slater, Esq.

In Florida, a party that files a motion is not required to notice it for a hearing. Weird but true. If the opposing party objects to the relief requested, he should file the Notice of Hearing so the court can rule.

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Answered on 1/18/11, 7:16 am


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