Legal Question in Civil Litigation in Florida
Rule 1.140(a) vs. Rule 1.150
In a Florida civil action, defense filed a Motion to Strike under Rule 1.150, but has not filed an answer or any other motions under Rule 1.140. Even though Rule 1.150 states that a Motion to Strike may be filed at any time, does a Rule 1.150 Motion to Strike take precedence over, supercede or supplant the Rule 1.140(a) requirement for an answer? or, has the defendent defaulted?
If a Rule 1.150 Motion to Strike introduces new material not contained in the Complaint, which should correctly be brought in a pleading as an affirmative defense, may the motion be granted? "Affirmative defenses may not be asserted as grounds for motion to dismiss [strike] complaint, even though availability of defense as bar to action may appear on face of complaint." Fletcher v. Williams, 153 So.2d 759 (1963). Would the assertion of an affirmative defense in the Motion to Strike render the motion moot?
2 Answers from Attorneys
Rules priority 1.140 vs. 1.150
The filing of any motion tolls the time for further action. There has been no default. You need to call up the mt. to strike and have the judge rule on it.The pleader can still rsise the new matters in an affirmative defense.
Rule priority Rule 1.140 vs. 1.150
I agree with Mr. Fernandez. You need to getthe Court to rule on the motion to strike. TheDefendant then is usually given ten to twentydays to file an answer in which they can raiseaffirmative defenses.
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