Olesen-Frayne v. Olesen, No. 2:2009cv00049 - Document 30 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER denying as moot 14 Respondent's Motion to Dismiss; denying 15 Respondent's Motion to Dismiss; denying as moot 19 Respondent's Motion to Continue; granting 20 Respondent's Motion to Continue; granting 25 Respondent's Motion for an Order on the Admissibility of Documents to be Produced to Plaintiff Shortly After the Discovery Deadline to the extent that the documents shall not be inadmissible because they were obtained after the discovery deadli ne; granting nunc pro tunc 27 Respondent's Alternative Motion for Extension of Time to File Motion to Quash to the extent that the Court will allow the filing of Respondent's Motion to Quash Subpoena to Rana Holz, Esq.; denying [28 ] Respondent's Motion for Examination; taking under advisement 29 Respondent's Motion to quash. Petitioner shall file a Response to 29 Respondent's Motion to Quash Subpoena to Rana Holz, Esq. on or before March 10, 2009. The Final hearing shall be held on April 15, 2009 at 9:00 a.m. before the undersigned in Courtroom A, Sixth Floor, Fort Myers, Florida. Signed by Judge John E. Steele on 3/6/2009. (AFR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION TARA OLESEN-FRAYNE, Petitioner, vs. Case No. 2:09-cv-49-FtM-29DNF LARS OLESEN, Respondent. ___________________________________ OPINION AND ORDER This matter comes before the Court on the following motions: (1) Respondent s Motion to Dismiss (Doc. #14); (2) Respondent s Amended Motion to Dismiss (Doc. #15); (3) Respondent s Motion for Continuance of Final Hearing, Extended Discovery, and Expedited Consideration of Motion (Doc. #19); (4) Respondent s [Amended] Motion for Continuance of Final Hearing, Extended Discovery, and Expedited Consideration of Motion (Doc. #20); (5) Plaintiff s Motion for an Order on the Admissibility of Documents to be Produced to Plaintiff Shortly After the Discovery Deadline (Doc. #25); (6) Respondent s Alternative Motion for Extension of Time to File Motion to Quash (Doc. #27); (7) respondent s Request of Father for Mental Examination of Mother (Doc. #28); and (8) Respondent s Motion to Quash Subpoena to Rana Holz, Esq. (Doc. #29). (1) Motions to Dismiss: A motion to dismiss is inappropriate once a responsive pleading has been filed. Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075, 1093 n.35 (11th Cir. 2002). Subsequent to the filing of his Amended Motion to Dismiss (Doc. #15), respondent filed an Answer and Affirmative Defenses (Doc. #17). Therefore, the motions to dismiss will be denied. (2) Discovery Produced After Deadline: Petitioner seeks a ruling that documents to be produced shortly after the current discovery deadline not be determined inadmissible simply because of the timing of the discovery s production. Respondent does not oppose the request, and therefore the motion will be granted. (3) Mental Examination of Petitioner: Respondent s motion for a mental examination of petitioner is governed by FED . R. CIV . P. 35(a). Respondent must establish that petitioner s mental condition or physical condition is in controversy and must show good cause for the mental or physical examination(s). requires an affirmative showing that the mental or This physical condition is really and genuinely in controversy and that good cause exists for each particular examination. This requires a greater showing than for other types of discovery under FED . R. CIV . P. 26. Schlagenhauf v. Holder, 379 U.S. 104 (1964); Ali v. Wang Lab., 162 F.R.D. 165, 167 (M.D. Fla. 1995). The proceeding pending before the Court is not a child custody proceeding, Defenses nothing sufficiently in the places Petition, Answer, petitioner s or mental Affirmative condition in controversy, and insufficient good cause has been shown for such an examination. Therefore, the motion is denied. -2- (4) Continuance: The Court will grant a brief continuance of the final hearing, based largely on its calendar. The final hearing will be held before the undersigned on April 15, 2009, at 9:00 a.m. The discovery deadline will be extended to April 3, 2009, although the parties by mutual consent may agree to further extend the discovery deadline so long as it does not interfere with the final hearing date. (5) Motion to Quash: Respondent s Motion to Quash Subpoena to Rana Holz, Esq. (Doc. #29) will be taken under advisement. Petitioner shall file a response on or before March 10, 2009. Accordingly, it is now ORDERED: 1. Respondent s Motion to Dismiss (Doc. #14) is DENIED as moot in light of the filing of Respondent s Amended Motion to Dismiss (Doc. #15). 2. Respondent s Amended Motion to Dismiss (Doc. #15) is DENIED in light of the filing of an Answer (Doc. #17). 3. Respondent s Motion for Continuance of Final Hearing, Extended Discovery, and Expedited Consideration of Motion (Doc. #19) is DENIED as moot in light of the filing of Respondent s Amended Motion for Continuance of Final Hearing, Extended Discovery, and Expedited Consideration of Motion (Doc. #20). 4. Respondent s Amended Motion for Continuance of Final Hearing, Extended Discovery, and Expedited Consideration of Motion -3- (Doc. #20) is GRANTED. The final hearing shall be held on April 15, 2009 at 9:00 a.m. before the undersigned in Courtroom A, Sixth Floor, Fort Myers, Florida. 5. Plaintiff s Motion for an Order on the Admissibility of Documents to be Produced to Plaintiff Shortly After the Discovery Deadline (Doc. #25) is GRANTED to the extent that the documents shall not be inadmissible because they were obtained after the discovery deadline. 6. Respondent s Alternative Motion for Extension of Time to File Motion to Quash (Doc. #27) is GRANTED nunc pro tunc to the extent that the Court will allow the filing of Respondent s Motion to Quash Subpoena to Rana Holz, Esq. (Doc. #29). 7. Respondent s Request of Father for Mental Examination of Mother (Doc. #28) is DENIED. 8. Respondent s Motion to Quash Subpoena to Rana Holz, Esq. (Doc. #29) is taken under advisement. Petitioner shall file a response on or before March 10, 2009. DONE AND ORDERED at Fort Myers, Florida, this March, 2009. Copies: Counsel of record DCCD -4- 6th day of

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