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Zachary
Zachary, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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I am plaintiff in a superior court case, civil matter in Massachusetts. The

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I am plaintiff in a superior court case, civil matter in Massachusetts.
The defendant made motion to dismiss and in the alternative to compel arbitration and I responded. When the Defendant submitted the 9a package to the court they requested a leave of court to file a reply brief to my opposition. They referenced rule 9A(a)(3) and said the request is timely. It so happens that a status conference on the case was scheduled 4 business days from now. The court called me and said that they had just granted Defendant's leave request and that they would use the status conference to hear oral arguments on the motion.
What should I prepare for? Am i giving something up by allowing this or is there a move I should make? What does request is timely mean? Is the defendant being allowed to get his written reply in without my seeing it beforehand? I checked rule 9A (a)(3) and there is nothing in my response they could not reasonably have been addressed in the initial motion. Any advise would be appreciated.
Submitted: 1 year ago.
Category: Business Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question.

The rules of the Superior Court states that as a matter of course, the parties may only file a Motion and then a Response. If the party which filed the motion wants to reply to your response, then it must seek leave of court within 5 days of when you filed the response. That is what is meant by the "request is timely."

If you want to file a Sur-Reply to their Reply (which is another way of saying a response to their reply), the rule allows that you may do so by moving for leave of court just like they did.

You ask whether you are giving up something by allowing this. The answer is that it is not up to you whether the defendant gets to file a reply, its up to the court, and the court has decided to let it happen. You are not losing anything by this happening, the defendant is simply responding to the arguments you made in your response.

The biggest issue here is that you need to prepare for your hearing and you need to see what their arguments are in the allowed reply.

How do you usually receive documents filed by the Defendant?
Customer: replied 1 year ago.

I agree.... I meant allowing the oral argument 4 days from now with a written reply I have not seen or will see with very little time to review. They send me documents by mail. Will the judge have read everything beforehand?


 


Also, they challenged my standing as an individual for a corporate contract in the original motion. My response included the assignment of a dissolved corporation where i was sole shareholder and director. In the articles of dissolution I was assigned as follows: " The company shall assign and convey any and all rights, title, and interests of the Corporation; including, but not limited to, any contracts and/or claims under contract, or under contract previous to dissolution or otherwise, to (me) as of and from (date of dissolution)". How could they argue this assignment if they try?

Expert:  Zachary replied 1 year ago.
The way around this problem is for you to agree with the Defense to exchange documents via email instead of through the mails. Because you are concerned about not getting their Reply prior to the hearing, your best move would be to call the Defense counsel and ask that they send you a copy of the Reply via email. If the do not get it, and you do not have it prior to the hearing, then you will have to orally object at the hearing and tell them that you were never served with the Reply and that it is thus not properly before the court.

An oral hearing over a motion before a federal court is a semi-formal proceeding. At it you will argue the merits of your motion. It is best to have a brief outline of your argument prepared. In this case, because it is the Defenses motion, they will stand and address the court and present the motion. You will need to be prepared to meet each and every argument they put forward as to why the case should not be dismissed. When addressing the court, always stand, be polite, call the judge "your honor" and never interrupt. Because you are acting pro se, the judge will likely help you by asking you direct questions that the court wants answered in regard to the motion to dismiss.

So, the best thing you can do to prepare is know your argument inside and out.

In regard to arguing an assignment as here, without knowing your case, it is hard to say. The first thing that comes to my mind though is that most contracts contain a "non-assignability" clause which would prohibit the contract from being assigned to you without their assent.

Are you suing them for breach of contract?
Customer: replied 1 year ago.

3 counts; a 93a based on fraud, etc.; breach of contract and misrepresentation. Will the judge read the motion and response beforehand and if so in good detail?


 

Expert:  Zachary replied 1 year ago.
Generally, federal court judges are very good about full reading all the motions and papers submitted to the court. I would go into it expecting that the court would have read everything and also being prepared to answer questions the judge may have about the motion.
Customer: replied 1 year ago.

Here is what is happening. The court granted the movant a 5 page, 10 day reply. When the clerk saw that a status meeting was on the docket she turned it into an oral argument on the motion which is now three business days from now. She telephoned the parties two days ago. Could it be that the movant will not write a reply but simply make his new arguments orally. If so can I object that he is not sticking to the arguments in the motion? Can I request to file a sur-reply at the oral argument?

Expert:  Zachary replied 1 year ago.
Generally, federal courts hear motions by submission (based only on the written pleadings) rather than by oral argument. However, here the court has changed its mind and wants oral argument, which it may do.

The court just wants to hear the arguments orally rather than have additional rounds of written pleadings.

So, the objection that the arguments are not in the motion will not work. You will have to be prepared to respond to the arguments orally. If there is an argument which believe needs to be briefed, what you do is you argue against the point then tell the court that you will brief the court on your argument against the other side's argument if it pleases the court.
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3820
Experience: Internationational Commercial Attorney
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