Florida bank failed to file an amended complaint in the 45 days specified in Order to Dismiss granted to the pro SE defendant . Now , 2 years later , bank has filed and been granted an order of substitution of counsel . What motions should the pro SE defendant file to finalize the order to dismiss that was granted in the case ? Does another motion to dismiss ( with prejudice ) have to filed or it simply a matter of filing the court case closed documents posted on the clerk of court website ? Why is new counsel being introduced if there was a motion to dismiss granted and the bank failed to amend within the time allotted ? What are the bank options at this point ? What are the defendants options ? Much thanks !
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Rule 1.090(b), Fla. R. Civ. P. permits a trial court to enlarge the time for amending a complaint if a request for extension is made before the expiration of time. Otherwise, a Court may permit an amendment only “upon motion made and notice after the expiration of the specified period ... when failure to act was the result of excusable neglect ....” The amount of time that has expired since expiration of the Court’s order is inexcusable and is patently absurd. See e.g., Seay Outdoor Advertising, Inc. v. Locklin, 965 So. 2d 325 (Fla. 1st DCA 2007)(due diligence not shown by delay of 10 weeks in contesting default); Hepburn v. All Am. Gen. Constr. Corp., 954 So. 2d 1250 (Fla. 4th DCA 2007)(holding that setting aside a default judgment was reversible error because of a four-month delay).
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Here is the source of the problem. An often overlooked principle that the failure to amend, or to comply with the court order, does NOT result in an automatic dismissal. What should have happened long ago, about 46th day, was your filing of a new motion to dismiss based upon failure to comply with the order, which would likely have been granted, Unfortunately, you still have to do this, but at least it will be hard for them to argue that they werent afforded proper time to amend. For future knowledge, a common provision added to such orders is that failure to file amended complaint in the time frame results in automatic dismissal to avoid having to delay further with additional hearings and motions etc.