yarnaholic Posted November 20, 2012 Report Posted November 20, 2012 So for weeks I've been working on my answer to Plaintiff's MSJ but just today I reviewed my Docket Control Order which states that "the deadline to file all motions, except motions in limine, and for movant to secure dates and times for hearings or submissions was OCTOBER 17TH (six weeks prior to the pre-trial conference)." The date is hand written in by the court clerk (I presume) and the Docket Control Order is signed by both the Plaintiff's attorney as well as by myself. According to the County Clerk's Office, the Plaintiff's MSJ was filed on OCTOBER 18TH!! Does this invalidate their MSJ?
Flyerfan Posted November 20, 2012 Report Posted November 20, 2012 So for weeks I've been working on my answer to Plaintiff's MSJ but just today I reviewed my Docket Control Order which states that "the deadline to file all motions, except motions in limine, and for movant to secure dates and times for hearings or submissions was OCTOBER 17TH (six weeks prior to the pre-trial conference)." The date is hand written in by the court clerk (I presume) and the Docket Control Order is signed by both the Plaintiff's attorney as well as by myself. According to the County Clerk's Office, the Plaintiff's MSJ was filed on OCTOBER 18TH!! Does this invalidate their MSJ?Call the court clerk and confirm. Sounds like you got lucky.
yarnaholic Posted November 20, 2012 Author Report Posted November 20, 2012 Yes - call the clerk and check.I did that and spoke to the clerk as well as the court coordinator and nobody really seems to know. Apparently, if it was e-filed, it was filed late, however if the motion was sent by snail mail and was post-marked in time, it MAY be okay, but apparently no one knows for sure (or was willing to tell me). I'm still trying to find out how the motion was filed, but it has always been my understanding that all paperwork had to be in the clerk's possession by the cut-off date.So would I just include this objection along with my almost finished MOSJ?
1stStep Posted November 20, 2012 Report Posted November 20, 2012 Yes- I would...another thing to help is always good.
yarnaholic Posted November 20, 2012 Author Report Posted November 20, 2012 Okay, according to the Certificate of Service, the motion was sent via certified mail and therefore was probably post-marked prior to the deadline. Does anybody know about snail mail deadline matters? Seems like it would be a pretty straight forward answer for the county clerk's office, but apparently not :-/
1stStep Posted November 20, 2012 Report Posted November 20, 2012 I don't know - a missed deadline helped me against LVNV.
Flyerfan Posted November 20, 2012 Report Posted November 20, 2012 Okay, according to the Certificate of Service, the motion was sent via certified mail and therefore was probably post-marked prior to the deadline. Does anybody know about snail mail deadline matters? Seems like it would be a pretty straight forward answer for the county clerk's office, but apparently not :-/Can you view the case on line? See if the MSJ has been entered on the docket.Also, the court clerk should be able to tell you the last entry if you don't see it on-line. If the entered the MSJ on the docket, then it is probably valid.Still include this in your opposition as 1stStep indicated.
yarnaholic Posted November 20, 2012 Author Report Posted November 20, 2012 Can you view the case on line? See if the MSJ has been entered on the docket.Also, the court clerk should be able to tell you the last entry if you don't see it on-line. If the entered the MSJ on the docket, then it is probably valid.Still include this in your opposition as 1stStep indicated.It shows up on the County Clerk's website as being filed on the 18th. It was sent by snail mail so it was (in all likelihood) post-marked on or before the deadline. The question is whether being post-marked by the deadline is acceptable or whether the paperwork has to be in the County Clerk's possession by the dealine. Unfortunately, neither of the two women I spoke with could answer this for me. I'll just include this with the rest of my objections and hope for the best.
Flyerfan Posted November 20, 2012 Report Posted November 20, 2012 It shows up on the County Clerk's website as being filed on the 18th. It was sent by snail mail so it was (in all likelihood) post-marked on or before the deadline. The question is whether being post-marked by the deadline is acceptable or whether the paperwork has to be in the County Clerk's possession by the dealine. Unfortunately, neither of the two women I spoke with could answer this for me. I'll just include this with the rest of my objections and hope for the best.That is your best move.
Rivertime Posted November 20, 2012 Report Posted November 20, 2012 You can look it up in your states rules of civil procedure. In California I think it is CCP 1013 and allows +5 days for snail mail, but your state should have something similar.Good luck
BV80 Posted November 20, 2012 Report Posted November 20, 2012 I agree with Rivertime. Check your rules to see how many days will be added to a date or prescribed period if the document is mailed.
ManFriday Posted November 20, 2012 Report Posted November 20, 2012 I agree with Rivertime. Check your rules to see how many days will be added to a date or prescribed period if the document is mailed.I have noticed that in the Arkansas Rules of Civil Procedure (check your state), that if a particular time restraint in under 14 days or something short, then there is a permitted 3 days or so for the item to be received in the clerk's office. On LONGER time restraints, such as specific days ordered by the court and 30-day time limits, there is no 3-day addendum permitted.Read the rules 10 times, and once you are sure, send in a very short motion to dismiss, with a short proposed order. Add to that a response/reply/answer to the Motion for Summary Judgement, and it will be much longer. Remind the judge there that the MSJ was defective. Make an attached brief to support your response to the MSJ. Use language of "surprise" and "untimeliness". You may also split this out as a motion to strike, claiming that the MSJ was untimely. However you do it, make sure you use language from the Rules of Civil procedure in your state and cover all your bases...Make sure you ask to strike specific parts and the entiretyRespond to the MSJ itself at length as if it is valid and timelyAsk for more time to amend your response or your answer to the suitList affirmative defenses in one of these if you haven't alreadyMention the lack of standing, failure to follow rules, failure to state a claimWrite a proposed order or two for dismissal without prejudice as a sanction against untimely filing of MSJThis may be 2 or 3 separate filings. Hit them all on the Friday after Thanksgiving!
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