Motion Denied

[InDebt2]

OK …. I jumped the gun

I have effectively shot myself in the foot. I wanted to be proactive in my case so I answered their suit and almost immediately filed a motion to strike Plaintiff’s Affidavit of Debt and Statement of Ownership.

Hearing was last week and the judge denied my motion so now, the burden of proof shifts to me as I understand prima facie evidence.

They have not provided anything with their complaint. No Agreement, no statement of Account, no billing statements. No Bill of Sale, just an affidavit from the JDB; so you can see why I might have been a bit premature by filing my motion.

I realize now that I should have worked on Discovery requests before my motion but at this point it’s water under the bridge.

Discovery is in the works but not sure of how to initiate it; the wording of the RCP’s regarding Discovery in Michigan is strange to say the least.

Rule 2.302 General Rules Governing Discovery

(A) Availability of Discovery.

(1) After commencement of an action, parties may obtain discovery by any means provided in subchapter 2.300 of these rules.

(2) In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused.

This is in district court.

Questions:

Can a Motion to Strike be resubmitted at a later date or now that it has been ruled upon, is it a dead issue?

Can anyone provide advice as to how to correct my over eagerness?

I’m sure that Summary Disposition is just around the corner if something doesn’t happen soon.

[jackson212]

why was it denied? is there an opinion to go along with the denial?

you need to read the standard of review with regard to motions to strike in your county/state. you can do this by reading case law and appellate decisions and see the ones that were granted vs the ones that got denied.

appellate decisions are usually where i start before i file a motion. this serves multiple purposes but most important you get to see how the appeals court is deciding and you also have case law to back up your motion(s).

if possible, go to the law library and read everything you can on the statute. if your motion is based on rule 2.302 then read everything you can about rule 2.302. its your motion is based on rule 2.4 read everything you can on rule 2.4. usually when you read a full analysis of the statute it will tell you at what stage is appropriate to file the respective motion.

im new to this, but most likely if there is a scheduling order i would wait until discovery is complete then file a dispositive motion (motion to dismiss, summary judgment, etc) but again this is based on whats allowed in your county/state.

now, this is your call, but you need to have strategy. some people during discovery will ask for everything under the sun. others will ask for almost nothing then wait until discovery is over then dismiss. up to you. but finish discovery, then take it from there based on waht has been provided.

you should have about 2 or 3 motions in your back pocket waiting to be filed (to dismiss or to strike) it may take weeks/months before discovery is over during that time read all you can on the case law and statute governing dispositive motions.

by the way, in your answer you should have lack of standing as an affirmative defense. especially if they're a jdb.

[nascar]

why was it denied? is there an opinion to go along with the denial?

I think the general consensus among many out there as to when motions to strike should be used is incorrect.

Most rules of civil procedure, with respect to motions to strike, state something like, "A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time."

The problem is that affidavit or an exhibit is not a pleading and therefore may not be subject to a motion to strike. Moreover, it probably a stretch to argue that an affidavit or an unverified business record meets the defninition of "redundant, immaterial, impertinent, or scandalous."

Evidence should be challenged under the rules of evidence, not the rules of civil procedure.

[InDebt2]

why was it denied? is there an opinion to go along with the denial?

The hearing was held in a huge courtroom filled with people. The judge seemed to be in a big hurry to clear the room out and he never really said why he ruled the way he did. I went to the court house today and looked at my file and there wasn't a reason (opinion) filed either, just the order.

if possible, go to the law library and read everything you can on the statute. if your motion is based on rule 2.302 then read everything you can about rule 2.302. its your motion is based on rule 2.4 read everything you can on rule 2.4. usually when you read a full analysis of the statute it will tell you at what stage is appropriate to file the respective motion.

I thought I had it pretty much covered but .... well ..... I was wrong.

im new to this, but most likely if there is a scheduling order i would wait until discovery is complete then file a dispositive motion (motion to dismiss, summary judgment, etc) but again this is based on whats allowed in your county/state.

There is no scheduling .... no pre-trial hearings ...... no ordered discovery .... this is a small district. In fact, I'm having a hard time determining if I'm even allowed to file discovery. And no, this is not small claims court.

by the way, in your answer you should have lack of standing as an affirmative defense. especially if they're a jdb.

Got that covered ...... just got to get the JDB to produce whatever they are going to call their 'Bill of Sale'.

Thanks for your response and good luck with what you have going on.

[InDebt2]

I think the general consensus among many out there as to when motions to strike should be used is incorrect.....

..... Evidence should be challenged under the rules of evidence, not the rules of civil procedure.

I tried to get the affidavit stricken using MRE 803(6) which is the Hearsay Exception Rule in my district and using MCL600.2145 which lays out the procedural rule of timeliness of submitted affidavits.

I had case law backing both prongs of attack.

I think it was just too early in the case but ..... I'm not a lawyer and maybe it was insufficient in some way.

I appreciate your explaination and will look into how to effectively 'challenge' any evidence ...... IF they present any.

[raspberrypie]

I had submitted motion to strike plaintiff's evidence in my case and they were denied stating that I had to argue it at the hearing. Basically, plaintiff has a right to submit paperwork but whether or not it will be allowed as evidence is not decided until the actual trial at which time I argue the admissibility in person. So maybe that is the same thing with your case?