IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

ONSITE HEALTHCARE SERVICES, INC., ) 5:10-cv-00112-RS-AK

)

Plaintiff ) Judge Richard Smoak

)

v. )

)

)

CASSI LAYNE, TONY LAYNE, and )

SENIOR DENTAL CARE, LLC, )

)

)

Defendants. )

_________________________________________

PLAINTIFF’S MOTION TO REOPEN AND FOR 

LEAVE TO FILE AMENDED COMPLAINT

The Plaintiff, ONSITE HEALTHCARE SERVICES, INC., by its undersigned 

counsel, moves the Court to reopen this matter and to permit the filing of the attached 

amended complaint. In support of this motion, Plaintiff alleges as follows:

1. It filed its complaint in this case on 5/10/2010.

2. It filed a motion for preliminary injunction on 5/20/10.

3. Defendant filed a motion to dismiss/motion for a more definite statement 

and memorandum in support thereof on 6/3/2010.

4. Local counsel did not receive notice of this motion and memorandum 

through the CM/ECF system.1

 

1

Indeed, local counsel learned of the dismissal from out of state counsel, and then, checking his email 

history, discovered that he had received no emails from the CM/ECF system from May 27 through June 11, 

and none between June 16 and June 24. For most of this period, external email generally was received. All 

external email failed to come through from late June 21 until after mid-day June 23 and from morning June 

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5. From 6/3/2010 onwards out of state counsel for the Plaintiff has been 

drafting an amended complaint which would address the issues raised by the Defendant’s 

motion for a more definite statement and some of the issues raised by Defendant’s motion 

to dismiss, thereby avoiding the need for the Court to spend resources considering the 

merits of these motions.

6. Out of state counsel mistakenly assumed that local counsel had received 

copies of the motions and memorandum and would advise him if there was a need to file 

an amended complaint or a response within three weeks or to seek an extension of time.

7. On June 23, 2010, the Court entered its order dismissing the case without 

prejudice, pursuant to N.D. Fla.Loc.R. 7.1(C)(1).

8. Counsel’s failure to file a responsive memorandum was inadvertent, and, 

at least in part, was caused by factors outside their control. Plaintiff intended to file the 

amended complaint on June 24, 2010--- just three weeks after the Defendant had filed its 

lengthy motion to dismiss and memorandum in support thereof.

9. Attached hereto as Exhibit A is the amended complaint which the Plaintiff 

intended to file.

10. Counsel for Plaintiff has conferred with counsel for the Defendant with 

respect to this motion as required by this Court’s rule and the Defendant opposes this 

motion.

 

9 through mid-day June 11. It remains a mystery why CM/ECF mail did not reach local counsel during the 

described periods. Counsel was aware that the Defendants contemplated a motion, because he received a 

faxed message that defense counsel wished to confer with him about it. However, he was unable 

immediately to return her call and assumed that she had conferred with Mr. Carney, since notice of the 

motion did not arrive from the CM/ECF system. Had local counsel received the CM/ECF notice, he would 

certainly have made sure that Mr. Carney was aware of Local Rule 7’s time constraints. Whether 

excusable or not, counsel’s mistake was certainly inadvertent.

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WHEREFORE, the Plaintiff requests this Court to grant this motion, and to direct 

the Clerk to reopen the case and receive the amended complaint for filing.

Respectfully submitted

/s/ Michel Stone

Michel Stone

Florida Bar No.: 0256791

STONE & SUTTON, P.A.

116 East Fourth Street

Panama City, Florida 32401

(850) 785-7272

(850) 785-7094 fax

mlstone@stonesuttonlaw.com

James T. Carney

PA. ID. No. 00232

845 Northridge Dr.

Pittsburgh, Pa. 15216

(412) 657-002

(412) 561-1613 fax

jtcarney10@comcast.net

Attorneys for the Plaintiff

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