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Motion for a more definite statement


Savoir
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Comments and criticisims PLEASE!

The Defendant, Me, Pro Se, respectfully moves this Honorable Court to enter an Order requiring Plaintiff to file a more definite statement pursuant to MCR 2.115(A) and offers the following in support:

1. On October 8, 2011, Defendant was served with Plaintiff’s Summons and Complaint alleging a debt owed to Plaintiff, FIA Card Services.

2. Plaintiff complains that they “allowed the Defendant(s) to charge goods and/or services on open account or pursuant to contract ….”. Plaintiff has provided an account number yet fails to identify what goods and/or services were allowed to be charged and is ambiguous as to whether a contract was involved or not.

3. Plaintiff claims “Upon information and belief, Defendant(s) has possession of the agreement upon which this claim is based”. Defendant, after diligent search of his records, avers that he has no agreement from FIA card Services and, to the best of his knowledge, has never been in possession of said document. Plaintiff has failed to attach alleged agreement.

4. Plaintiff alleges that they have “completed performance and rendered an account stated: copy attached”. Plaintiff does not indicate when alleged debt occurred nor has Plaintiff attached any statements of account as indicated.

5. Plaintiff states that “The principal amount due and owing, over and above all legal counterclaims is $8000.00. Plaintiff has failed to supply information as to how this “alleged principle amount” was determined.

As demonstrated herein, Plaintiff’s Complaint contains insufficient and conclusory allegations.

Without knowing certain minimum ultimate facts, such as the events leading up to the occurrence of the alleged debt, the date of these events, the relationship between the parties, and whether a contract is at issue, Defendant cannot reasonably be required to frame a responsive pleading, and a more definite statement should be granted.

I'd like to polish and refine this and submit it by Friday but after diligent research have found very little reference to More Definite Statements.

Any help out there?

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It sounds more like an argument on the merits than a motion.

Your motion should state:

1. Your request

2. Your legal authority.

3. Your supporting case law.

4. What you are asking to court to do for you.

You can mention the things you have listed in your closing, but I would not make it the "meat" of the motion.

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your next step is not a more definite statement, it is a motion to strike evidence...if you get that granted, then it makes your life easier.

I was served with no evidence attached to the complaint other than an affidavit.

I filed a motion for a more definite statement in lieu of an answer hoping to get some evidence to strike.

Judge hasn't ruled yet but the clerk said that she was going to schedule a hearing for my motion. I was under the impression that the Judge would just rule it denied or order the plaintiff to file a more detailed complaint.

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Your on the right path, Savoir. The Motion for More Definite statement can be a stake in the heart at the start of the case. And you are correct, it is used when no evidence has been submitted therefore a Motion to Strike would be unavailable.

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Rule 2.115 Motion to Correct or to Strike Pleadings

(A) Motion for More Definite Statement. If a pleading is so vague or ambiguous that it fails to comply with the requirements of these rules, an opposing party may move for a more definite statement before filing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and is not obeyed within 14 days after notice of the order, or within such other time as the court may set, the court may strike the pleading to which the motion was directed or enter an order it deems just.

I think you are ahead of yourself. It would be clear to any judge that the plaintiff has made it clear what grounds he is basing the suit upon. It is account stated. No real further detail is necessary. What you need to do is answer the complaint, in which you will either admit or deny the allegations contained therein. No grand explanation is required as to why you do either. All the issues you have raised in your supposed motion are improper in that context. Don't even bother to file something like this. File an answer, then conduct discovery to find out if they actually have all the stuff you claim they didn't provide, none of which is ever attached to a complaint as it is evidentiary in nature.

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Rule 2.115 Motion to Correct or to Strike Pleadings

(A) Motion for More Definite Statement. If a pleading is so vague or ambiguous that it fails to comply with the requirements of these rules, an opposing party may move for a more definite statement before filing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and is not obeyed within 14 days after notice of the order, or within such other time as the court may set, the court may strike the pleading to which the motion was directed or enter an order it deems just.

I think you are ahead of yourself. It would be clear to any judge that the plaintiff has made it clear what grounds he is basing the suit upon. It is account stated. No real further detail is necessary. What you need to do is answer the complaint, in which you will either admit or deny the allegations contained therein. No grand explanation is required as to why you do either. All the issues you have raised in your supposed motion are improper in that context. Don't even bother to file something like this. File an answer, then conduct discovery to find out if they actually have all the stuff you claim they didn't provide, none of which is ever attached to a complaint as it is evidentiary in nature.

It's already a done deal.

The basis for my motion is MCL 445.251[e]

The plaintiff has obfuscated the OC by stating that the servicer of the account (FIA Card Services) is the OC.

Now, when the judge rules on my motion ...... either granted or denied ..... I still have an additional 21 days to file an answer.

If he denies the motion (most likely)...... I'm no further behind than I was at the start other than having additional time to do research.

If he grants my motion (less likely) ....... I'm way further ahead of the game with more time to do additional research.

Opinions on my stategy?

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you are going to want to get in depth discovery. The judge most likely rule for more definite statement as it furthers the case along and stops discovery jankiness.

As far as, in depth discovery you are going to have to ask for things they will not want to give you. Stuff like ESI, potential witness information, record keeping manual, corporate structure, the exact communications between them and the seller, that kinda stuff.

use this time to also prepare your memorandum of the points you are raising in the case (that will help when you need to file or respond to motions and for your trial brief).

it will keep you progressing into the case. it helps to prepare discovery as you go. A couple document requests here a couple interrogatories there admissions(kinda like columbo)

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I think you all are missing the essence of a Motion for More Definite statement. In some jurisdictions, Ohio included, it is similar to California's Bill of Particulars. For credit card cases, you can compel them to produce what should have been included in the filing. If they cannot produce it, the case cannot move forward.

In Ohio, is is REQUIRED to be filed before an answer or it is considered waived.

There are practical applications of law that are not written in the letter of the law. It is based on judicial opinion, and interpretation. So while a Motion for More Definate Statement, or a Bill of Particulars does not seem like much of a legal move, it can stop a lawsuit before it ever gets started, but it is a "use it or waive and lose it" option.

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The Motion for More Definite Statement in all likelihood is not going to be granted.

First off, when dealing with Credit Cards there is a peculiar "legal acceptance" that the mere use of the credit card creates a "contract"...Therefore the argument that there is not a "signed" contract will avail you nothing.

The approach much more likely to bear fruit would be to answer the Complaint with denials and then hit the Plaintiff with Discovery requesting "sworn" responses to your inquires which will include a Request for Production of Documents, to include a copy of the original agreement and any addendum to the original agreement. DO NOT REQUEST A SIGNED CONTRACT this will only hurt you and will not receive any ind of response.

The Plaintiff in all likelihood will not even correctly respond to your Discovery and rEquests for Admissions and you can later you this to your advantage in the Summary Judgment phase...

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Here is a thread that shows a successful motion. aaahttp://www.creditinfocenter.com/forums/there-lawyer-house/309751-motion-more-definite-statement-before-answering-worked-great-me-oh.html

The motion can stop the case in it's tracks if they cannot produce the documentation within the required time.

While it does not make the debt go away, it makes you a much more difficult target. In Ohio after one case is dismissed without Prejudice, if it is brought a second time and dismissed it is with Prejudice.

We are at a disadvantage in the court room, so we need to use every tool available to us to make ourselves more difficult targets.

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I was under the impression that the Judge would rule one way or another on my Motion for More Definate Statement; instead, a hearing has been scheduled.

I don't know if this works to my advantage or not.

IHeart, you've provided very interesting information regarding this tactic and I really appreciate it; can you hazard a guess as to what I'm to expect at this hearing?

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The basis for my motion is MCL 445.251[e]

The plaintiff has obfuscated the OC by stating that the servicer of the account (FIA Card Services) is the OC.

I think you are making a fundamental mistake. FIA card Services is Bank of America's credit card division, for lack of a better term. They ARE the OC, nothing has been obfuscated. The two entities are one and the same. If that's the basis of your motion, I would suggest you withdraw it and save yourself from what the judge is going to tell you at the hearing.

Most of what you put into that motion above is nothing more than a request for production of documents. None of that stuff is required to be attached to the complaint. You have to ask for it. When they fail to produce it, there's your case. Don't keep asking! I tell people this all the time. Why hammer somebody for documents if they didn't have them the first time. You are asking them to produce evidence that will defeat you! If this is what you want, spend a few grand with FIA....I'm sure they'd be happy to do all the research and find all these documents for you. Then you can send them to their attorneys to use against you.

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I think you are making a fundamental mistake. FIA card Services is Bank of America's credit card division, for lack of a better term. They ARE the OC, nothing has been obfuscated. The two entities are one and the same.

Maybe to you but, to an 'unsophisticated consumer' or one who has just been served and looks through his records to find a credit card issued by FIA Card Services and finds no such records .... what is one to do?

I simply want get on record the name of the original creditor.

This is from Wikipedia:

"On January 1, 2006, MBNA merged with and into Bank of America. MBNA America Bank, National Association, (MBNA) then became a wholly owned subsidiary of Bank of America. On June 10, 2006, MBNA changed its name to FIA Card Services, National Association (FIA), which is not an acronym. On October 20, 2006, Bank of America, National Association (USA), a subsidiary of Bank of America Corporation, merged with and into FIA."

I allegedly open this account in 2004 so as you can see, I could become confused.

If that's the basis of your motion, I would suggest you withdraw it and save yourself from what the judge is going to tell you at the hearing.

OK ..... I understand your point. If I withdraw my Motion what effect would that have on my time to file an answer?

I look at it this way ..... Even if the Judge denies my Motion .....I now have another two weeks to do research defending this case. Then another 21 days to file an answer ..... more research time.

I don't know what would happen if I withdrew my Motion.

Then again ..... he might just grant it !!!

Thanks for your input ..... I value it.

Edited by Savoir
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My reccomendation is that you file a simple denial response to the complaint. Forget the motion. Check your rules to see if you can get an extension of time to answer the complaint, this is very common. Don't use frivolous motions which are legally insufficient to buy time for yourself. All you will accomplish is this.....the judges that work these cases will see a couple of things about you that will not serve you well when it finally comes time to appear in open court. I don't know what state you are in, you should post that because every state has different rules of procedure. You should read them, too, and follow them. Who is suing you? I don't see that in your thread. This makes a big difference. As for that motion, if you submit that, it will be denied, count on it.

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Savior,

A 15 Second Google search of "MCR 2.115(A)" told me what state you are in.

You are correct, you will have time to file an answer if denied. You are well within the procedures for your jurisdiction. MCR 2.113(F) states what they need to file with the pleading

Since you have denied possession of the contract, the judge can grant your motion for them to produce the basis of their claim. Since this is the OC, they likely can produce, so it may just be a delay for time, but that is OK.

Unlike the members of the bar, Pro Se litigants have limited exposure to the judge and have less worry about getting on their bad side. Being a Pro Se is enough for some judges to become irritated. Filing a Motion is not beyond reason, legal professionals do it all the time to advocate for their client. If anything, judges are getting tired of sitting in Consumer Debt cases all day when there are more important things to worry about.

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  • 2 weeks later...

I received Plaintiff's response to my motion yesterday; hearing on my motion is tomorrow.

My Motion for a More Definite Statement

Background

On MM, DD, 2011, Defendant was served with Plaintiff’s Summons and Complaint alleging a debt owed to Plaintiff, yada yada (Exhibit 1 attached).

Defects

1. Upon information and belief Plaintiff has failed to identify the alleged original creditor in compliance with MCL 445.251[e].

2. Plaintiff is ambiguous as to Cause of Action.

3. Plaintiff has failed to comply with MCR 2.113 (F) (1) (B).

4. Plaintiff has failed to attach a copy of alleged “account stated” as indicated in paragraph 4 of their complaint.

5. Plaintiff’s complaint does not reveal any information as to when this alleged default on open account and/or breach of contract occurred making it difficult, if not impossible, for Defendant to determine if this alleged debt is legitimate.

Remedies Requested

Wherefore, Defendant respectfully requests this Honorable Court to Order Plaintiff to supply Defendant with details clearly stating the following:

1. The identity of the original creditor.

2. A clearly stated Cause of Action.

3. A copy of the alleged Agreement upon which Plaintiff’s case is based. Defendant is not in possession of, nor, to the best of his knowledge, has he ever been in possession of, an agreement with Plaintiff.

4. A copy of “Account Stated” which delineates how the alleged principle balance of $approx amount.00 was determined.

5. A specific timeline as to when this alleged account was created; when and/or if this alleged account was closed; when and/or if this alleged account was charged off.

Conclusion

As demonstrated herein, Plaintiff’s Complaint contains insufficient, ambiguous and conclusory allegations.

Without knowing certain minimum ultimate facts, such as the events leading up to the occurrence of the alleged debt, the date(s) of these events, the relationship between the parties, and whether or not a contract is at issue, Defendant cannot reasonably frame a responsive pleading, and a more definite statement should be granted.

Their Opposition Papers ………my thoughts on their opposition are in bold italics.

1. After serving Defendant with a copy of Plaintiff’s Complaint, Defendant filed the instant Motion alleging, among other things, that “Plaintiff has failed to identify the alleged original creditor in compliance with MCL 445.251 [e].”

2. However, FIA Card Services, N.A., is, in fact, the legal name of the original creditor that owns this outstanding debt. This credit card debt has not been sold and, consequently, Defendant’s allegation contained it {sic} his Motion is without merit. Defendant may be confused on the basis that “Bank of America” is the name that may have appeared on his credit card, but this is not the legal name of the entity which is the original creditor.

FIA Card Services services a number of different credit cards …. Visa, Master Card, American Express, Huntington Bank as well as a number of different services (ex. Insurance Plans). Without the name of the issuing creditor how was I supposed to know who they were talking about?

3. Furthermore, Plaintiff disputes that it has failed to comply with MCR 2.113(F) (1) (B) or that its … {sic} Complaint is ambiguous as to the cause of action alleged. In addition to having stated the original creditor in its …..{sic} pleadings, Plaintiff has further set forth the account number for the credit card, as well as the outstanding balance at the time of charge-off of the account.

Plaintiff’s own affidavit also states that the account number was changed at charge-off.

4. Plaintiff notes that Defendant complains that more information is needed from Plaintiff regarding a copy of the “alleged agreement” upon which Plaintiffs claim is based,” and additional information and or documentation that Plaintiff needs to advance its …{sic} claim.

5. However, Plaintiff’s Complaint does not serve as a Motion for Summary Disposition, nor does it purport to be a dispositive pleading. Rather, it is a Complaint that meets the Michigan requirements of putting Defendant on notice of the pendency of an action by FIA Card Services, N.A., against him for a sum certain.

6. Defendant’s Motion is better served as a discovery request upon Plaintiff seeking additional documentation that Plaintiff plans to present at the time of Trial in this case, Plaintiff is certainly agreeable to stipulate to converting Defendant’s Motion for More Definite Statement into a Motion for Entry of Discovery Order so that Plaintiff may employ the available discovery rules available to it under MCR 2.300 et Seq.

7. Further, if Defendant is of the belief that Plaintiff’s pleadings are defective, the proper remedy relative to that is either seeking additional discovery as noted above, or filing a Motion to Dismiss or for Summary Disposition on the basis Plaintiff has failed to state a claim upon which relief may be granted. However, Plaintiff disputes that Defendant would be entitled to such relief on the basis that it has fully complied with MCL 600.2145 and applicable Michigan Court Rules regarding proper pleadings, including but not limited to MCR 2.113 (F) (1) (B).

This is a procedural rule that states:

(F) Exhibits; Written Instruments.

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(B) in the possession of the adverse party and the pleading so states;

I have a hearing on my motion tomorrow and would appreciate any feedback on what to expect or how to answer their response.

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I received Plaintiff's response to my motion yesterday; hearing on my motion is tomorrow.

My Motion for a More Definite Statement

Background

On MM, DD, 2011, Defendant was served with Plaintiff’s Summons and Complaint alleging a debt owed to Plaintiff, yada yada (Exhibit 1 attached).

Defects

1. Upon information and belief Plaintiff has failed to identify the alleged original creditor in compliance with MCL 445.251[e].

2. Plaintiff is ambiguous as to Cause of Action.

3. Plaintiff has failed to comply with MCR 2.113 (F) (1) (B).

4. Plaintiff has failed to attach a copy of alleged “account stated” as indicated in paragraph 4 of their complaint.

5. Plaintiff’s complaint does not reveal any information as to when this alleged default on open account and/or breach of contract occurred making it difficult, if not impossible, for Defendant to determine if this alleged debt is legitimate.

Remedies Requested

Wherefore, Defendant respectfully requests this Honorable Court to Order Plaintiff to supply Defendant with details clearly stating the following:

1. The identity of the original creditor.

2. A clearly stated Cause of Action.

3. A copy of the alleged Agreement upon which Plaintiff’s case is based. Defendant is not in possession of, nor, to the best of his knowledge, has he ever been in possession of, an agreement with Plaintiff.

4. A copy of “Account Stated” which delineates how the alleged principle balance of $approx amount.00 was determined.

5. A specific timeline as to when this alleged account was created; when and/or if this alleged account was closed; when and/or if this alleged account was charged off.

Conclusion

As demonstrated herein, Plaintiff’s Complaint contains insufficient, ambiguous and conclusory allegations.

Without knowing certain minimum ultimate facts, such as the events leading up to the occurrence of the alleged debt, the date(s) of these events, the relationship between the parties, and whether or not a contract is at issue, Defendant cannot reasonably frame a responsive pleading, and a more definite statement should be granted.

Their Opposition Papers ………my thoughts on their opposition are in bold italics.

1. After serving Defendant with a copy of Plaintiff’s Complaint, Defendant filed the instant Motion alleging, among other things, that “Plaintiff has failed to identify the alleged original creditor in compliance with MCL 445.251 [e].”

2. However, FIA Card Services, N.A., is, in fact, the legal name of the original creditor that owns this outstanding debt. This credit card debt has not been sold and, consequently, Defendant’s allegation contained it {sic} his Motion is without merit. Defendant may be confused on the basis that “Bank of America” is the name that may have appeared on his credit card, but this is not the legal name of the entity which is the original creditor.

FIA Card Services services a number of different credit cards …. Visa, Master Card, American Express, Huntington Bank as well as a number of different services (ex. Insurance Plans). Without the name of the issuing creditor how was I supposed to know who they were talking about?

What's in your wallet? (credit card commercial) You are supposed to know who extended you credit. They are talking about the credit card which is the subject of the instant action. Read the account number on the complaint, compare it to what you have. Non issue in my opinion.

3. Furthermore, Plaintiff disputes that it has failed to comply with MCR 2.113(F) (1) (B) or that its … {sic} Complaint is ambiguous as to the cause of action alleged. In addition to having stated the original creditor in its …..{sic} pleadings, Plaintiff has further set forth the account number for the credit card, as well as the outstanding balance at the time of charge-off of the account.

What I said

Plaintiff’s own affidavit also states that the account number was changed at charge-off. Can be disputed but not a big deal

4. Plaintiff notes that Defendant complains that more information is needed from Plaintiff regarding a copy of the “alleged agreement” upon which Plaintiffs claim is based,” and additional information and or documentation that Plaintiff needs to advance its …{sic} claim.

5. However, Plaintiff’s Complaint does not serve as a Motion for Summary Disposition, nor does it purport to be a dispositive pleading. Rather, it is a Complaint that meets the Michigan requirements of putting Defendant on notice of the pendency of an action by FIA Card Services, N.A., against him for a sum certain.

6. Defendant’s Motion is better served as a discovery request upon Plaintiff seeking additional documentation that Plaintiff plans to present at the time of Trial in this case, Plaintiff is certainly agreeable to stipulate to converting Defendant’s Motion for More Definite Statement into a Motion for Entry of Discovery Order so that Plaintiff may employ the available discovery rules available to it under MCR 2.300 et Seq.

Exactly. Your entire motion is no more than a request for documents etc. They are being nice to you here

7. Further, if Defendant is of the belief that Plaintiff’s pleadings are defective, the proper remedy relative to that is either seeking additional discovery as noted above, or filing a Motion to Dismiss or for Summary Disposition on the basis Plaintiff has failed to state a claim upon which relief may be granted. However, Plaintiff disputes that Defendant would be entitled to such relief on the basis that it has fully complied with MCL 600.2145 and applicable Michigan Court Rules regarding proper pleadings, including but not limited to MCR 2.113 (F) (1) (B).

Correct

This is a procedural rule that states:

(F) Exhibits; Written Instruments.

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(B) in the possession of the adverse party and the pleading so states;

I have a hearing on my motion tomorrow and would appreciate any feedback on what to expect or how to answer their response.

I think you'll lose. You need to study the rules better and know what constitutes a motion and the legal basis therefore. Then again, I could be wrong! This all goes toward procedural errors, which are routinely overruled.

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I think you'll lose. You need to study the rules better and know what constitutes a motion and the legal basis therefore. Then again, I could be wrong! This all goes toward procedural errors, which are routinely overruled.

.... with all due respect, I was asking for advice on how to answer their opposition at my hearing tomorrow, not unhelpful criticism.

Edited by Savoir
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in there in court. and remind the court that the state your in is a fact pleading state. The affidavit is from an out of state affiant.

Tomorrow file with the court a counter affidavit. and then you will be able to use it for the next thing a motion to strike their affidavit if theirs is more than 10 days before the complaint.

I attach one for michigan here.

the pleading time has been expanded now get in there and punch a little.

also does your state allow demurrer? In cali we have a pleading called a demurrer that you can use if the state no cause for which relief can be given.

the demurrer hear can be filed at the same time as the answer.

So you could choose that route which happens alot when people are represented by counsel. If the court sustains a demurrer they would have to file an amended complaint michigan only allows 1 amended complaint so you can do all the stuff over again.

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in there in court. and remind the court that the state your in is a fact pleading state. The affidavit is from an out of state affiant.

Tomorrow file with the court a counter affidavit. and then you will be able to use it for the next thing a motion to strike their affidavit if theirs is more than 10 days before the complaint.

I attach one for michigan here.

the pleading time has been expanded now get in there and punch a little.

also does your state allow demurrer? In cali we have a pleading called a demurrer that you can use if the state no cause for which relief can be given.

the demurrer hear can be filed at the same time as the answer.

So you could choose that route which happens alot when people are represented by counsel. If the court sustains a demurrer they would have to file an amended complaint michigan only allows 1 amended complaint so you can do all the stuff over again.

Michigan does not allow for a demurrer .....

I intend to file a counter - affidavit with my answer which, according to MCR, must be filed withing 10 days of complaint or answer. I have 21 days to reply after the court rules on my motion.

Thanks for the attached file .. I appreciate your help.

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