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Lets discuss better pleading strategies please


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While many posters say pleading should be quick and dirty for us to get up to speed, wouldn't better demurres(were available), motions to strike and other forms of technical pleading used in non credit card cases be a better choice.

can step by step compare what works and what doesn't

There is much hardship in this area where we should be punching. we all know that the JDB's and some OC's don't have the docs initially to prove wouldn't it be better to use that offensively?

lets see what works best.

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The problem as I see it from reading all these different state ROPs lately, there is so much variety in what each state allows that you could never develop a "one fits all" strategy. A motion to strike in one state can mean something entirely different in another. Motions to dismiss seem to be a sore point, the application varies greatly from state to state and may not be proper procedure in some states. There also seems to be a bit of confusion as to which one is proper in each state, a MTD or an MSJ.

Strategy as to how to view the overall case would be better in my opinion, let the individual defendants sort out the technicalities of the rules

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and post it then some of us from other states try to take it down in a mock court situation.

we can elect judges and really hash out the issues state by state.

This board is basically a scholarlly pursuit, whether we like it or not we have been forced law so we have to learn and teach and develop realistic scenarios

as for the mock court style it will also tune up the oral arguements for some of the members who may have a phobia about court.

The pleading strategy expansion will work to good advantage.

for the mock court format we assign a "judge" at random and that person heres the case for all matters. the poster asking for help has to make a pleading and argue it. the opposition will be picked at random also. The pleadings and such will have hearings and such to try to give people a taste of court.

Many will say that would give the JDB and CA's intel but if they see us getting stronger they just might say fugetaboutit and take their ball and go home.

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Quite an ambitious undertaking. You realize very, very few collection cases actually go to "trial." They're won and lost on paper. That may be where you want to focus your attention.

You are correct, Nascar, that was my take, although I expressed it a bit differently. The confusion over what motion means what in each state is what needs to be resolved. For instance, in CT, a motion to dismiss is strictly limited to whether or not the court has jurisdiction over the parties, service of the papers, or the type of case filed; IE federal claim in state court, wrong venue, etc. It does not allow you to have your case "thrown out" on the merits.

Maybe this is semantics, but it needs to be hashed out as to what motion is proper in each state for each situation. Most posters seem to think that an MTD can be used in place of an MSJ. Maybe in some states it can. This needs to be clarified so we can give proper opinions.

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Althought there are always exceptions to the rule, a "motion to dismiss" is generally limited to grounds enumerated in Fed. R. Civ. P. 12(B), and further, are limited only to the pleadings. (Note that "pleadings" are defined as the complaint, answer, counterclaim, etc. and not motions, discovery documents and so on).

If a party files a "motion to dismiss" and there have been other documents or evidence placed before the court (in addition to the "pleadings"), the "motion to dismiss" is automatically converted to a "motion for summary judgment."

The same holds true for a "motion for judgment on the pleadings." If additional papers are before the court (in addition to the "pleadings") the motion is treated as one for summary judgment.

Finally motions to dismiss are not always dispositive as to the merits of the case, whereas summary judgments are. Motion to dismiss may granted for deficiencies in the pleadings, lack of jurisdiction, etc. In nearly all these cases, the plaintiff will be granted leave to cure his defect(s) and refile.

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I post it all the time. It does not make it right, but it's my opinion. Cases are won and lost during discovery. Not in initial pleadings or motions to dismiss or strike. If you have a case that is outside the statute of limitations, by all means move to dismiss.

However, a strong strategic plan during discovery will win or lose a case. I caught a JDB lying, to the point where there was no way out of it. I did this by asking the same question just in a slightly different way but spreading it out over four rounds of discovery.

Then I put my argument together and was able to say, okay which is it? You claim you sent me this letter A. because you got an address notification change from the post office B. I never sent you a DV C.I sent you a DV but you properly validated so were free to keep sending. D. I called you to settle so it was a follow up letter and I initiated the contact.

It's all important but I think the focus has shifted more to trying to attack the initial complaint and come up with fancy affirmative defenses. Those are important but I think the focus should not be so heavily on that area.

I would think a better idea would be to determine which states or courts allow a general denial and which you have to be more specific. Then guide the poster to defiantly give a strong answer but not put so much focus on the answer but on actually winning the case by a good ole butt whopping during discovery and if your lucky an actual trial.

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Quite an ambitious undertaking. You realize very, very few collection cases actually go to "trial." They're won and lost on paper. That may be where you want to focus your attention.

While you are correct on this, I think one important aspect to consider is that you should be prepared to go to trial and the other side should know that you are willing, prepared and able. That will force them to do a cost benefit analysis, and if they don't think that they can win a MSJ or bully you into rolling over, they may just cut and run.

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I post it all the time. It does not make it right, but it's my opinion. Cases are won and lost during discovery. Not in initial pleadings or motions to dismiss or strike. If you have a case that is outside the statute of limitations, by all means move to dismiss.

However, a strong strategic plan during discovery will win or lose a case. I caught a JDB lying, to the point where there was no way out of it. I did this by asking the same question just in a slightly different way but spreading it out over four rounds of discovery.

Then I put my argument together and was able to say, okay which is it? You claim you sent me this letter A. because you got an address notification change from the post office B. I never sent you a DV C.I sent you a DV but you properly validated so were free to keep sending. D. I called you to settle so it was a follow up letter and I initiated the contact.

It's all important but I think the focus has shifted more to trying to attack the initial complaint and come up with fancy affirmative defenses. Those are important but I think the focus should not be so heavily on that area.

I would think a better idea would be to determine which states or courts allow a general denial and which you have to be more specific. Then guide the poster to defiantly give a strong answer but not put so much focus on the answer but on actually winning the case by a good ole butt whopping during discovery and if your lucky an actual trial.

Speaking of being prepared, discovery just so happens to be a wonderful place to prepare. I too caught the other side lying to me regarding discovery and I let them know about it. That plus the fact that they had no reliable evidence caused them to call me and ask if I would oppose their MTD with prejudice. Would that have happened had I not really started digging and using what I found to craft some discovery requests? That answer is almost certainly a big fat NO. They likely would have just dismissed without prejudice, but I was in a position to really hurt them and they put me there.

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I post it all the time. It does not make it right, but it's my opinion. Cases are won and lost during discovery. Not in initial pleadings or motions to dismiss or strike. If you have a case that is outside the statute of limitations, by all means move to dismiss.

However, a strong strategic plan during discovery will win or lose a case. I caught a JDB lying, to the point where there was no way out of it. I did this by asking the same question just in a slightly different way but spreading it out over four rounds of discovery.

Then I put my argument together and was able to say, okay which is it? You claim you sent me this letter A. because you got an address notification change from the post office B. I never sent you a DV C.I sent you a DV but you properly validated so were free to keep sending. D. I called you to settle so it was a follow up letter and I initiated the contact.

It's all important but I think the focus has shifted more to trying to attack the initial complaint and come up with fancy affirmative defenses. Those are important but I think the focus should not be so heavily on that area.

I would think a better idea would be to determine which states or courts allow a general denial and which you have to be more specific. Then guide the poster to defiantly give a strong answer but not put so much focus on the answer but on actually winning the case by a good ole butt whopping during discovery and if your lucky an actual trial.

That diffently meshes with the pleading strategy. If we do increase our knowledge of pleadings it can be used to setup the win and prevent SJ.

True discovery is the main event, but without covering the bases in the answer and other pleadings, Discovery is only going to get you so far. a lacadasical approach, which people have actually won with, only makes more work for the court trying to figure out what they are saying.

I think the pleadings are a key first step. and everyone needs to pass on and work out the best approach for your state and then you pass it along.

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Okay, just for the record, here is what the CT Practice Book says about the MTD and MTS

Sec. 10-30. Motion to Dismiss; Request for

Extension of Time to Respond

(Amended June 30, 2003, to take effect Jan. 1, 2004.)

Any defendant, wishing to contest the court’s

jurisdiction, may do so even after having entered

a general appearance, but must do so by filing a

motion to dismiss within thirty days of the filing

of an appearance. Except in summary process

matters, the motion shall be placed on the short

calendar to be held not less than fifteen days

following the filing of the motion, unless the judicial

authority otherwise directs. Any adverse party

may, within ten days of the filing of the motion

with the court, file a request for extension of time

to respond to the motion. The clerk shall grant

the request and cause the motion to appear on

the short calendar not less than thirty days from

the filing of the request.

(P.B. 1978-1997, Sec. 142.) (Amended June 30, 2003, to

take effect Jan. 1, 2004; + June 21, 2004, to take

effect Jan. 1, 2005.)

Sec. 10-31. —Grounds of Motion to Dismiss

(a) The motion to dismiss shall be used to assert(1) lack of jurisdiction over the subject matter, (2)

lack of jurisdiction over the person, (3) improper

venue, (4) insufficiency of process, and (5) insufficiency

of service of process. This motion shall

always be filed with a supporting memorandum

of law, and where appropriate, with supporting

affidavits as to facts not apparent on the record.

(B) Any adverse party who objects to this motion

shall, at least five days before the motion is to be

considered on the short calendar, file and serve

in accordance with Sections 10-12 through 10-17

a memorandum of law and, where appropriate,

supporting affidavits as to facts not apparent on

the record.

(P.B. 1978-1997, Sec. 143.)

----------------------------------------------------------------------

Sec. 10-39. Motion to Strike(a) Whenever any party wishes to contest (1)

the legal sufficiency of the allegations of any complaint,

counterclaim or cross claim, or of any one

or more counts thereof, to state a claim upon

which relief can be granted, or (2) the legal sufficiency

of any prayer for relief in any such complaint,

counterclaim or cross complaint, or (3) the

legal sufficiency of any such complaint, counterclaim

or cross complaint, or any count thereof,

because of the absence of any necessary party

or, pursuant to Section 17-56 (B), the failure to

join or give notice to any interested person, or (4)

the joining of two or more causes of action which

cannot properly be united in one complaint,

whether the same be stated in one or more counts,

or (5) the legal sufficiency of any answer to any

complaint, counterclaim or cross complaint, or any

part of that answer including any special defense

contained therein, that party may do so by filing

a motion to strike the contested pleading or part

thereof.

(B) A motion to strike on the ground of the nonjoinder

of a necessary party or noncompliance

with Section 17-56 (B) must give the name and

residence of the missing party or interested person

or such information as the moving party has

as to the identity and residence of the missing

170

Copyrighted by the Secretary of the State of the State of Connecticut

party or interested person and must state the

missing party’s or interested person’s interest in

the cause of action.

(P.B. 1978-1997, Sec. 152.) (Amended June 28, 1999, to

take effect Jan. 1, 2000.)

Sec. 10-40. —Date for Hearing Motion to

Strike; Request for Extension of Time to

Respond

(Amended June 30, 2003, to take effect Jan. 1, 2004.)

Except in summary process matters, the motion

shall be placed on the short calendar to be held

not less than fifteen days following the filing of

the motion, unless the judicial authority otherwise

directs. Any adverse party may, within ten days

of the filing of the motion with the court, file a

request for extension of time to respond to the

motion. The clerk shall grant the request and

cause the motion to appear on the short calendar

not less than thirty days from the filing of the

request.

(P.B. 1978-1997, Sec. 153.) (Amended June 30, 2003, to

take effect Jan. 1, 2004; amended June 21, 2004, to take

effect Jan. 1, 2005.)

Sec. 10-41. —Reasons in Motion to Strike

Each motion to strike raising any of the claims

of legal insufficiency enumerated in the preceding

sections shall separately set forth each such claim

of insufficiency and shall distinctly specify the reason

or reasons for each such claimed insufficiency.

(P.B. 1978-1997, Sec. 154.)

Sec. 10-42. —Memorandum of Law—Motion

and Objection

(a) Each motion to strike must be accompanied

by an appropriate memorandum of law citing the

legal authorities upon which the motion relies.

(B) Any adverse party who objects to this motion

shall, at least five days before the date the motion

is to be considered on the short calendar, file and

serve in accordance with Sections 10-12 through

10-17 a memorandum of law.

(P.B. 1978-1997, Sec. 155.)

Sec. 10-43. —When Memorandum of Decision

Required on Motion to Strike

Whenever a motion to strike is filed and more

than one ground of decision is set up therein,

the judicial authority, in rendering the decision

thereon, shall specify in writing the grounds upon

which that decision is based.

(P.B. 1978-1997, Sec. 156.)

Sec. 10-44. —Substitute Pleading; Judgment

Within fifteen days after the granting of any

motion to strike, the party whose pleading has

SUPERIOR COURT—PROCEDURE IN CIVIL MATTERS Sec. 10-51

been stricken may file a new pleading; provided

that in those instances where an entire complaint,

counterclaim or cross complaint, or any count in

a complaint, counterclaim or cross complaint has

been stricken, and the party whose pleading or a

count thereof has been so stricken fails to file a

new pleading within that fifteen day period, the

judicial authority may, upon motion, enter judgment

against said party on said stricken complaint,

counterclaim or cross complaint, or count

thereof. Nothing in this section shall dispense with

the requirements of Sections 61-3 or 61-4 of the

appellate rules.

(P.B. 1978-1997, Sec. 157.) (Amended June 30, 2003, to

take effect Jan. 1, 2004.)

Sec. 10-45. —Stricken Pleading Part of

Another Cause or Defense

Whenever the judicial authority grants a motion

to strike the whole or any portion of any pleading

or count which purports to state an entire cause

of action or defense, and such pleading or portion

thereof states or constitutes a part of another

cause of action or defense, the granting of that

motion shall remove from the case only the cause

of action or defense which was the subject of the

granting of that motion, and it shall not remove

such pleading or count or any portion thereof so

far as the same is applicable to any other cause

of action or defense.

(P.B. 1978-1997, Sec. 158.)

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