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  1. #1
    Join Date
    Mar 2009
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    Key West, FL
    Posts
    2,350

    Default What Happens to Pro Se Motions After Attorney is Hired

    My question involves court procedures for the state of: FLORIDA

    I am the plaintiff. 3 defendants filed motions to dismiss. Two are attorneys, all appeared pro se. The motions were so bad a first year law would be embarrassed. They didn't cite any rule, not one legal citation among them and most of the stuff does not even go into a MTD. These were done months ago and nobody scheduled them for a hearing.

    There is another group of defendants including a newspaper, and their attorney and I have been having a paper war.

    Recently an attorney filed notice of appearance for the 3. I noticed a couple of strange things on the docket lately and went to the clerks office.

    I discovered that without filing a Notice of Hearing, much less serving it, they somehow got a hearing for two of the motions to dismiss. The attorney put in an appearance which the court granted. One of the defendant attorneys claimed that he notified me by telephone. (Mind you, NOT the attorney representing the defendants.)

    (TOTAL LIE. The number I gave all of them in an 800 number, all calls are logged and recorded automatically so they are admissible. Caller ID is NOT admissible in Florida.)

    I had filed responses with serious case law and they never even replied.

    On top of it, this scumbag attorney filed a Rule 57 motion and nobody appearing pro se can get attorney fees. It makes no difference that he is an attorney. Mind you, this attorney was chief assistant state attorney for 8 years and for 10 years has been a special master for the City of Key West.

    Luckily our judges are not crooks and he denied the motion and suggested that we all have a case management hearing. The newspapers MTD/exceptions to magistrate's recommendation is scheduled for hearing later, but that isn't going to happen as I have a big trick up my sleave.

    THE QUESTION: The attorney now appearing for the three defendants has not filed any MTD or anything to take on the pro se filings. The question: Doesn't this render those motions MOOT? If the defendants filed anything pro se now they would be moot, null and void.

    QUESTION TWO:

    In what form would I bring the fraud upon the court to the attention of the judge and demand a hearing for sanctions?

  2. #2
    Join Date
    Sep 2005
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    74,906

    Default Re: What Happens to Pro Se Motions After Attorney is Hired

    If motions were properly filed, the addition or substitution of attorneys doesn't make them go away. If they're scheduled for hearing, you can expect them to be heard as scheduled. if not, you'll have to wait and see if the new attorney notices them for hearing or if they just sit.

    What fraud upon the court are you talking about?

  3. #3
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: What Happens to Pro Se Motions After Attorney is Hired

    I have done some additional research since my posting.

    You didn't seem to read the details. There was no notice of the hearing filed or served. The court minutes reflect that. The court didn't grant the MTD or Rule 57, just told the defendant/counsel is set a scheduling meeting with me.

    Actually, when a pro se files a motion and later gets an attorney, the motion is moot unless the attorney adopts it. What you said is true, in the case of attorneys, but not a pro se defendant who has or gets an attorney. Anything filed by a defendant pro se who has an attorney is null and void, period, unless the attorney adopts it as his own. The fact that the defendant is an attorney is immaterial, he was still a pro se litigant representing himself.

    The defendant and new counsel got the MTD scheduled, though I don't know how. They did not file or serve a notice. The defendant claims to have called me to tell me about the hearing. Total lie. The only number I gave them is a toll free number. All the calls are logged and legally automatically recorded. Also ANI is admissible, but caller ID is not. These people have never called me. This was an underhanded trick to try to get the case dismissed.

    It was also fraud because NO pro se litigant, an attorney included, can get attorney fees in Florida and the only thing he did was file the rule 57 motion and a one page MTD without any case law or even citing any FRCP and you can NOT get fees for the motion asking for fees. The attorney he just hired has not done anything except put in an appearance and never adopted that motion.

    The defendant had no business calling me anyway now that he has counsel. I am sure the attorney wasn't paid enough to lie to the court, but he still has an ethical violation here.

    Lying to a judge or attempting to mislead the judge is a big ethical no no and can lead to serious sanctions.

    I was looking for some idea in what form, or what I would call the notice to the court. Actually I will just call it Notice of Fraud on the Court with Demand for Sanctions.

    In fact, I just read a FL 5th DCA case where at a hearing on a MTD the plaintiff arrived at the hearing with new counsel and they filed an amended complaint on the spot. Defense counsel was pissed, and probably the judge too as that would moot the MTD hearing. However defense counsel told the judge he had the discretion to dismiss the amended complaint and the case. So he did. The 5th DCA REVERSED as the judge had NO DISCRETION to dismiss or deny the amendment and the attorney was sanctioned by the DCA for lying to the court to the tune of 150k.

    My note: Although an MTD is a responsive pleading for purposes of the complaint, it is NOT a responsive pleading for purposes of filing a first amended complaint without leave of the court. I am going to do this too and it will moot all the MTD's that have been filed. The complaint is so solid, their only meaningful objection is that it is too long. The best they can do is dimissal with leave to amend, but I am not going to give any of them that. This is a many count multi-party case. There are 7 defendants in basicly two groups so thankfully I only have to deal with two attorneys now.

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