NEED HELP ASAP! Judge granted MSJ before timeframe for me to file response!

[chrispy]

Great people,

I appologize in advance for the lack of specifics at this time. I am at work away from my files. Will post specifics once home today. Just want to get some responses going ASAP since time is of the essence.

Here's the scoop: I received Plaintiffs Motion for Summary Judgement. I prepared a response and went to file a week later. Clerk said that MSJ hasn't been filed. So I decided to hold off on filing my response until they file the motion (bad idea?). I called the court weekly for two wks and the clerk said it has not been filed.

I realized that I forgot to do my weekly check-in last week and decided to check case status online and saw the case was ADJUDICATED in favor of Plaintiff.

I called the court today to see what happened and they said since no response to the MSJ was filed by me, the judged granted it.

NOW... Even if the Plaintiff filed the MSJ immediately, Arizona Rules say I have 30 days from date of service to respond to the MSJ. (I'll post all rules referenced when I get home, unless someone beats me to it. ) I can't remember exactly what day I recieved the MSJ in my mailbox, but it was mailed July 31. Judgement was made August 24. Seems judgement was premature, even if the motion was same-day delivered to me.

I am thinking I need to file a motion to vacate judgement. Is this right? Any advice is helpful.

I need to file that motion by Friday (15 days from judgement date) so ASAP please. I am going by the court to get a copy of the docket to make sure I have all the dates straight (wish they were available online).

Side note: What happens I motion to vacate is granted? Does it eliminate the MSJ? Should I include my response to the MSJ with the motion to vacate?

Thanks friends!

Chrispy

Edited September 5, 2012 by chrispy

[racecar]

http://justicecourts.maricopa.gov/HowTo/Motion_to_Vacate_Judgment_packet.pdf Edited September 5, 2012 by racecar

[chrispy]

Thanks Racecar.

Ok. Home now, and the court docket confirmed the dates that I mentioned: It says the MTD was filed 8/1 (Must have been a delay from when they filed it and when it showed up on the docket). Judgement was made 8/24.

AZRCP Rule 56©(1) states:

Upon timely request by any party, the court shall set a time for hearing of the motion. If no request is made, the court may, in its discretion, set a time for such hearing. A party opposing the motion must file affidavits, memoranda or both within 30 days after service of the motion. The moving party shall have 15 days thereafter in which to serve reply memoranda and affidavits. The foregoing time periods may be shortened or enlarged by the court or by agreement of the parties. The judgment sought shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

There it is. Thirty days. Why would it have been granted in only 23 days????

My concern is now it IS past that 30 day period (by 2-3 days). I was planning on attaching my Response to MSJ to my Motion to Vacate Judgement, so I hope that deadline isn't gonna kill it.

This wouldn't have been an issue if the clerks could see that the MSJ was filed. I walked in on 8/6 and was told there was no MSJ filed by Plaintiff. I called on 8/13 AND 8/20 and was told that there was no MSJ on file. Something is screwy here. Over 20 days to process a filing??

I wonder if I should mention this chain of events in my Motion to Vacate as well, so that it explains why my response was not filed.

Should I have just filed my response right away, or is it weird to file a response to something that's not even on file yet?

[chrispy]

http://justicecourts.maricopa.gov/HowTo/Motion_to_Vacate_Judgment_packet.pdf

Arizona Rules of Criminal Procedure Rule 24.2. Motion to vacate judgment

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=6&ved=0CEUQFjAF&url=http%3A%2F%2Fapaac.az.gov%2Fspecialized-topics%2Ftopics%2Fcategory%2F25-24-p%3Fdownload%3D326%253A14.%2Bmotion%2Bfor%2Bnew%2Btrial%252Fmotion%2Bto%2Bvacate%2Bjudgment%252Fpost-conviction%2Brelief%2B-%2Bclaims%2Bof%2B%2522newly%2Bdiscovered%2Bevidence%2522%2Bunder%2Brule%2B24.2(a)(2)%2Band%2Brule%2B32.1%252C%2Barizona%2Brules%2Bof%2Bcriminal%2Bprocedure&ei=7olGUO3TFMaI2gW2kYHQDA&usg=AFQjCNEIVwG2iJIOXsY3hQiu8iQc0KEhCA

Hey Racecar,

Looks like those links are Rules of Criminal Procedure. Civil Procedure Rules on this are slightly different:

ARCP 59(a)

ARCP 59(d)

[racecar]

What was i thinking guess i will get busy.

http://www.arizonalawreview.org/pdf/53-4/53arizlrev1363.pdf

http://statecasefiles.justia.com/documents/arizona/court-of-appeals-division-two-unpublished/CV20090134Memo.pdf

http://www.omlaw.com/uploads/docs/Roll_v._Janca.pdf

Edited September 5, 2012 by racecar

[BrunoTheJDBkiller]

I think you have to file a motion to reconsider / reargue. State the reasons, attach your supporting evidence. Include the fact that the clerk kept telling you the MSJ had not been filed yet. This sounds pretty routine, you should have the motion granted. It would help if you had an opposition to attach, you don't want it to look like you haven't been doing anything with the case.

[admin]

Maybe you can file an appeal? You'd have to have good grounds.