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Wanted to get an opinion about using summary judgment.

I'm the plaintiff against a CA (FCRA & FDCPA violations), and they have not responded to my discovery, even after almost a month of demanding them to reply.

I've thought about using summary judgment but am wondering if it's "too complex" of a procedure for a pro se to use.

I have a fundamental understanding of it but it seems a bit daunting. Is my apprehension unfounded?

Thanks

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I found this for you....

http://www.weblocator.com/attorney/ca/law/c03.html

The plaintiff has his or her attorney prepare a document called a complaint. The complaint states what the dispute is about, why the defendant is responsible, and asks the court to take a stated action, such as awarding damages. The complaint, along with a summons, is delivered to the party the action has been filed against. A summons is a written order stating that a defendant must answer the plaintiff's complaint. There are requirements for serving a summons. The party served is the defendant. The defendant has a specific period of time to respond to the complaint. This written response is an answer. The answer admits or denies allegations in the complaint, states any defenses to the plaintiff's complaint, and asks the court to decide in favor of the defendant. The defendant also may state claims he or she has against the plaintiff. Any claim by the defendant against the plaintiff is a cross-complaint. The plaintiff must respond to the defendant's cross-complaint. If the defendant does not respond to the complaint, the plaintiff can win the case by default. The complaint, answer, and any cross-complaints are called the pleadings. These documents are filed in superior court.

If it appears that based on all the information presented, one side clearly has the advantage, that side often will file a motion for summary judgment, which requests that the judge rule in favor of the moving party if the judge decides that there is no triable issue of fact. At this same time one party may file a motion to dismiss the case. There are a number of grounds on which a party may move to dismiss a case. For example, a party may claim the court does not have jurisdiction, or that the action was brought too late under the statute of limitations. Statutes of limitation vary in length depending on the type of case.

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I'm definitely not a lawyer, but either party can move for a motion for summary judgment. Good info from the previous poster!!! If they haven't filed a response you might even be able to file a motion for a default judgment just like they do to us!!!! (wishful thinking!!! :D )

Here in my county when you file a motion you have to go to a different clerk to have it put on the motions calendar to set a hearing date/time. It doesn't just automatically get put on the calendar. Wish you luck!!!

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Have you filed a Motion to Compel to force them to respond ??

Yes. I've filed a Motion to Deem Request for Admissions as Admitted and a Motion to Compel Remaining Discovery Requests.

I filed both two weeks back and there's been no response from either the court or defendant.

I'm so frustrated with the whole thing, I'm considering dropping the suit. It takes soooo much of my time.

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If you filed a motion to compel, you must wait fo the court to decide the motion. Judges hate summary judgment motions anyway, and they won't grant you one because the other side simply neglected to answer your discovery.

Chances are, the court will give them 30-60 days to respond. If you do not get responses ( and I don't mean responses you think are adequate, just reponses) by then, you can move to strike their answer and for judgment, or for sumjudg, whatever is appropriate.

This is not Ally McBeal, or the Practice, where cases get done within one hour, including commercials. If you get impatient with the Court, kiss your case goodbye. .

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Thanks for replying

If you filed a motion to compel, you must wait fo the court to decide the motion. Judges hate summary judgment motions anyway, and they won't grant you one because the other side simply neglected to answer your discovery.

Chances are, the court will give them 30-60 days to respond. I hope not and don't see how, since the trial date is set for Nov. 9. If you do not get responses ( and I don't mean responses you think are adequate, just reponses) by then, you can move to strike their answer and for judgment, or for sumjudg, whatever is appropriate.

This is not Ally McBeal, or the Practice, where cases get done within one hour, including commercials. If you get impatient with the Court, kiss your case goodbye. .

One other thing. When we file motions, our local rules say to request a date for an oral hearing. One, I don't need an oral hearing, as everything I want to "say" is in my motion. Second, if I don't put a requested date for an oral hearing, will my motion not be ruled on?

Thnks

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No, most motions, particularly discovery motions, are decided on the papers. You might gently, then, remind the court you have a November 9 trial date, so if the Court needs more time to rule on your motion, maybe the trial should be adjourned to December. You and the other side will need time to react to whatever decision the Court makes.

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Im in Texas. I lost a case for just this reason. I did not respond to the Plaintiff's Request for Admissions of Facts within a 30 day period. At the trial the attorney for the Plaintiff filed a Motion for Summary Judgement and won because of this reason alone. Find out what the time limit is there and include the info on your discovery request. Im no attorney by any means, but I got screwed in court for this reason alone.

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No, most motions, particularly discovery motions, are decided on the papers. You might gently, then, remind the court you have a November 9 trial date, so if the Court needs more time to rule on your motion, maybe the trial should be adjourned to December. You and the other side will need time to react to whatever decision the Court makes.

I'm kind of in the same boat, as our rules are somewhat vague.

Our rule 26 really doesn't address any sort of time table and what happens if you DON'T request an oral hearing when you submit a motion.

http://www.nashville.gov/circuit/circuit/circuitlocalrules.asp#26

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It appears, DSmith, that your motions are heard orally unless the parties agree to submit. If I were bringing a motion, I read the rules as follows: I pick one of the days motions are heard, on a date that is at least 14 days away ( 30 is usually better), and you put that date on your Notice of Motion to teh court and the other side. The rules presume oral argument unless it is waived.

Note Rule 22, which deals specifically with discovery -related motions. Note that in your motion you must show you made a good-faith effort to get discovery or rsolve any differences before you make the motion. This is usually shown by copies of letters you have sent the other side asking them to comply with the discovery demand or move against your demand. Usually you need to show more than one attempt.

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