bambi

being sued, what's next?

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 I never actually filed a motion to deem admitted, because I found out it was sent after the 42 days of discovery, (which I wan't aware of, due to my ignorance), and so I'm guessing they wouldn't be deemed admitted anyways. 

 

That is a dangerous way of thinking.

 

"I won't do it because I'll probably lose anyway".  That will be the death of you.

 

I forget who said this quote.  "Whether you think you can or you think you can't... you're probably right."  Very true.

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So are you saying I should still file a motion to deem admitted?  I need to closer at our rules because I'm not sure I need to even file a motion, or if they are automatically admitted if not answered.

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So are you saying I should still file a motion to deem admitted?  I need to closer at our rules because I'm not sure I need to even file a motion, or if they are automatically admitted if not answered.

Nothing will ever "automatically" happen. To get an admission on record you would have to motion the court to have it deemed as such (of course I don't know your rules, but I would think that's the case).

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In some courts they are deemed admitted without the judge ruling on your motion (per se)but all that means is that the plaintiff is not allowed to respond or object. They missed the time, they're admitted...

 

BUT

 

...only if you make the courts aware. Remember that they do not follow the timeline of discovery. Does the court know you got them late?  Not yet.

 

Check your court rules and file the motion.

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OK, thank you, that will be my next motion.  I did find out from the courts that the hearing for this fri. is cancelled because I withdrew the motion.  Now.....question #1,

 

Do I need to let the Plaintiff know, or is that his responsibility?

 

The judge also said she was not treating his objection as a motion, so there is no further hearing, just pre-trial on 9/9.  If he wants to file a motion, he can, but as of now there is no motion out there.  Question #2

 

Should I still respond to his objection then?

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I guess I have really been missing a lot in your post & have been in the dark. I thought you were fighting a motion for summary judgment, since you are not you are a whole lot better off.

I would get back to the discovery issues & no more mistakes.

Also, so I don't have to search your thread: what objections has he made?

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OK, so I don't have to file anything against his objections right?  He filed a response to Dfendant's motion to compel and request for leave to file a dispositive motion.

But the judge said this was not a motion, so she wasn't scheduling a hearing.  This is what he requested:

 

 

7.  Plaintiff further asserts that this Honorable Court's original dispositive motion cutoff date has passed prior to Plaintiff being able to compile the documents in support of this matter.     

 

8.  Plaintiff has since presented over two years of statements as well as cancelled checks evidencing the account has become "stated" and there were no objections to the balance prior to those payments. 

9.  That the final balance on the account is consistent with the amount prayed for in the Complaint.

 

10.  That the evidence now offered is support of Plaintiff's action in indisputable proof that the account existed, that Defendant consistent to the balance by use and payment on said account, and that there remains no material issue of fact for this Honorable Court to decide.

 

11>  That proceeding to trial in this matter is unduly prejudicial to Plaintiff.

 

12.  That it is in the interests of justice and judicial economy to allow Plaintiff to bring a dispositive motion before this Honorable Court to reduce the costs of litigation to the parties and the expenditure of resources by the court to address a matter for which there exists no cognizable legal defenses.

 

WHEREFORE, Plaintiff hereby requests this Honorable Court deny Defendant's Motion to Compel Discovery and grant Plaintiff leave to file a dispositive motion in this matter.

 

So. . . this is what I was working on the last couple of days, but now should I still file anything?  There isn't any motion.

 

Also, I have my rough draft of a motion to deem admitted.  I'll post soon.  Oh. . .  and do I need to let him know the hearing has been cancelled?

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It's not his objections you need to be concerned about (now moot since you dropped the MTC)it is his request for leave (permission) to file a dispositive motion (a summary judgment). I would still file an opposition to his request for leave to file the DM. You pretty much have all the objections down from what we were posting in the last few days. The #'s 7-12 need to be objected to, and I think they are almost all ready to go from what's in the last several post, you just may have to tune them up a bit.

That's where I got lost. They were asking for permission to file for a summary judgment, but I thought they already filed one, and that was where you were headed on Friday. You are so much better off now.

If you actually FILED paperwork with the court to drop your motion; then you would be required to send the lawyer a copy. If you just talked to the clerk and it was handled, then you don't. Technically you probably are not required to do anything (and could just ignore it, like they did your settlement offer) or you could call them and tell them the hearing has been cancelled. I am sure they will find out before they drive to court anyway.

The motion to deem admitted is probably a good idea as well as pursuing any other discovery request (I think you may have some timing issues, but it's worth a try).

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I thought you said you sent the RFA out of the discovery time frame which is why they did not respond.  Get that motion to oppose SD filed tommorrow with one or more reasons it should go to trial. This is critical. Go to the hearing on Friday. Admit your name. Do not let them badger you or make you settle unless it is a small amount with pmts you could agree to.  But get that motion done and filed and mailed to them tommorrow.     Please!!!!

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@hot in az

The Friday hearing is cancelled because she dismissed her MTC. The plaintiff has not filed a SD; they are asking permission from the court to file one. She is working on filing an opposition to their request to file the SD (which is basically the same thing).

I am not sure if she really is late with the discovery because her pre trial hearing is not until next month. But either way she is going to be filing the motion to deem admissions and let the judge decide.

As far as the amount goes; it's 21k.

I believe I am finally up to speed and this is what's going on. This has been a hard thread to follow.

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The judge set the time for discovery for 42 days, dated 4/24.  This came in a letter from the court.  Case preparation and scheduling order.

 

1.  Discovery is granted and shall remain open for 42 days, which period may be extended upon request and in the court's discretion.

 

2.  Dispositive motions and motions to amend or strike pleading shall be filed within 21 days of the close of discovery.

 

And then a couple of points about the pre-trial and trial.

 

Is the opposition the same as a motion?  Do I have to pay to file it?  

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Definitely oppose any dispositive motions ......... by the judge's own words "Dispositive motions and motions to amend or strike pleading shall be filed within 21 days of the close of discovery."

 

They're too late ........... or are going to be in short order ........ it's close.

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2.  Dispositive motions and motions to amend or strike pleading shall be filed within 21 days of the close of discovery.

That's part of your argument for why they should NOT be allowed to file the DM. Of course it also kills your timing on filing the RFA's deemed. This is the shortest discovery period I have ever seen.

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Yes, Savior it is disheartening.  So. . . I'm assuming that will not be allowed.  But I'm also reading that I do not have to file a motion, they are automatically deemed admitted, (if the judge would allow it,) I just have to make the court aware of it.  

 

Here's my timeline:  Discovery opened on 4/24 (for 42 days, which brings it to 6/5)

                                 5/6  ROGS sent by Plaintiff

                                 5/28  ROGS answered by me

                                 5/29  ROGS sent by me  (just POD)

                                 7/12  RFA sent by me

 

OK, I do have another question.  The Plaintiff filed and sent me a witness and exhibit list.  On the witness list, it says  "keeper of records for FIA card services."

 

In my ROGS I requested :

 

Copies of all reports and documents utilized by an expert which plaintiff proposes to call at trial, including the name, address and job title as well as what they will by testifying about.

 

His answer was:  Plaintiff will not call an expert witness.

 

so is the "keeper of records", not an expert witness?  

 

So now I need to get my objection to his leave request finished and sent in right?  Forget the RFA's?

 

According to my estimate they are way too late to file a DM.  Should I include that somewhere in my opposition?

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But I'm also reading that I do not have to file a motion, they are automatically deemed admitted, (if the judge would allow it,) I just have to make the court aware of it.  

 

I'm confused. You say that if the judge is made aware then the admissions are deemed admitted and then you go on to ask...

 

 

Forget the RFA's?

 

Their admissions being deemed admitted will destroy their case. Why would you not make this a top priority?

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RESPONSE TO POST # 296

The keeper of records is not an expert witness. An expert witness is usually someone who is paid to testify to thing related to their area of expertise; assuming they can lay a proper foundation for themselves.

"according to my estimate they are way to late to file a DM. Should I include that somewhere in my opposition"? SEE POST #294. The answer is YES.

And YES it has been established several times that you DO need to file an objection to their request for leave to file a DM, you need to "get it finished and sent in" ..RIGHT?

You probably can forget about wining the RFA's to be admitted (since they were untimely), but you never know (the judge COULD) allow leniency (but I doubt it). However it would force them to spend time on the case and make them have to fight harder. I would want to be a thorn in their side as much as possible.

It may help if you read some of these post over again as they are repetitive.

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