Yeah, part of me thinks since I elected arbitration in my Answer and filed the MTC first that the MSJ is invalid and it would be a waste of time to file a reply opposing the MSJ as the judge might take it that my reply means I don't think the matter should be arbitrated but be kept in the court since I responded.
But then the other part worries if I don't oppose the summary judgment by filing a reply on the fact that opposing counsel states there is no defenses at issue, when there clearly is a defense at issue (my affirmative defense of binding arbitration and my election of it), that if the judge does not grant my MTC for some reason, that I will have lost my opportunity to file a reply later and judge will grant the MSJ because I didn't file a reply opposing the MSJ.
Motions must be filed and served 16 COURT DAYS before the hearing. Add 5 calendar days if served by personal mail. Proof of service must be filed 5 court days before the hearing.
So I would look to set the hearing out far enough that it is before your court date but with enough time to file and serve a motion.
@elansus You were given leave by the magistrate at a hearing to file your DEFENDANT'S REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND STAY THE CASE PENDING ARBITRATION. If you read MikeB35's threads, the rules that govern a reply to a response are discussed. Normally, you'd have to file a motion for leave (aka permission) to file a reply brief. (IANAL) A reply is limited to addressing only those new issues raised by Plaintiff's Memorandum in Opposition that you did not argue or raise already in your Motion to Compel. You aren't re-arguing what you've already argued and supported in your MTC. Read their Oppo response to see what their main arguments are. You make your arguments to refute theirs and cite the case record, court rules and/or laws that support your arguments. I already pointed out some of these I've noticed in my posts above, with citations from the record. If you can pull a rough draft together, we can refine it here. IMO Here are the main opposition arguments they've raised:
I.) "As the Defendant has failed to assert a basis for use of the Arbitration provision in the Card Member agreement, as set forth more fully herein, this case is not subject to arbitration."
II.) "The Defendant alleges that the terms and conditions governing the account contain an arbitration provision to which the parties are bound. The Defendant is mistaken."
III.) "Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3."
IV.) "The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff."
V.) "His denials in his answer are then a purposeful attempt to mislead the Court."
Dgree - Thanks for your input. I'll make a separate doc for the points & authorities.
Do you know where I can find information on the "timing" of the hearing on the motion ? The Court Reservation System will let me pick any date, but I am thinking this motion should be in the hands of all parties at least 30 days before the hearing date. Or is it 45 days ? and do I need to allow an extra five days due to it being mailed ?
As it stands now, my hearing date is during the week between Christmas and New Years.