MemoinSupportofMotion - IN THE CIRCUIT COURT, FOURTH...

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IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASENO.:06-1234 DIVISION:A REAL ESTATE SALES COMPANY, INC., a Florida corporation, Plaintiff, v. REAL ESTATE DEVELOPMENT COMPANY, INC., a Florida corporation, Defendant. _______________________________/ PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS INTRODUCTION Plaintiff REAL ESTATE SALES COMPANY, INC. (“Plaintiff”), has filed complaint against the Defendant REAL ESTATE DEVELOPMENT COMPANY, INC. (“Defendant”) for breach of a real estate contract dated January 3, 2006. Plaintiff states that Defendant failed to make payments of deposit stipulated in the contract, and therefore breached the agreement. Plaintiff has filed complaint for damages and Defendant has filed a motion to dismiss. Defendant alleges that Plaintiff did not effectively serve process within the required 120 days after filing, did not attach a legible copy of the contract to the complaint, and asked the court to grant dismissal with prejudice. Plaintiff filed the Complaint on June 1, 2006. The Defendant was served with the complaint on December 15, 2006, and filed a motion to dismiss on December 16, 2006. Plaintiff asserts that the claims are insufficient and asks the court to deny the motion to dismiss. QUESTIONS PRESENTED Page 1 of 6
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I. Under Florida Rule of Civil Procedure 1.070(j), does a computer malfunction constitute good cause or excusable neglect for failing to obtain service within 120 days after the complaint was filed? II. Under Florida Rule of Civil Procedure 1.130, does failure to provide the original contract or the provision of an illegible copy of a contract upon which action is brought provide causation for the dismissal of the complaint? III. Whether failure to obtain service within 120 days after the complaint was filed or failure to provide the original contract or a legible copy of an attachment upon which a claim is brought provide causation for the complaint to be dismissed with prejudice. STATEMENT OF FACTS Plaintiff, REAL ESTATE SALES COMPANY, INC., is a Florida corporation with its principal office located in Jacksonville, Duval County, Florida. (Compl. ¶ 2.) Defendant, REAL ESTATE DEVELOPMENT COMPANY, INC., is a Florida corporation with its principal office located in Jacksonville, Duval County, Florida. (Compl. ¶ 3.) Plaintiff and Defendant entered into a valid contract for the purchase of real property on January 3, 2006. (Compl. ¶ 4.) Plaintiff has performed all of its obligations under the contract. (Compl. ¶ 7.) Defendant has breached the contract by failing to make the first deposit due on the date of execution of the contract and by failing to make the second deposit due thirty days after the execution of the contract. (Compl. ¶ 8.) Defendant has also failed to obtain a topographical survey within the required thirty days as to the agreement. (Compl. ¶ 9.) ARGUMENT The Defendant has alleged that Plaintiff has violated various civil procedure rules that
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This note was uploaded on 04/18/2008 for the course LP ??? taught by Professor Shingelton during the Spring '07 term at Florida Coastal School of Law.

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MemoinSupportofMotion - IN THE CIRCUIT COURT, FOURTH...

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