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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
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In our Rule 26 conference in Federal District Court on a civil

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In our Rule 26 conference in Federal District Court on a civil case, all parties agreed to service by email. The defendants filed a Reply to my Objection to Defendant's Motion for Attorney's Fees but did not serve me by email, or even snail mail. I only found out about it because I logged onto Pacer. This is the second time this defendant has failed to serve me, and the first time I filed a Motion to Strike due to lack of service, but because it was a pleading which didn't require a responsive pleading from me, the court ruled no harm, no foul. Should I file something for this omission or just let it be?
Submitted: 3 years ago.
Category: Consumer Protection Law
Expert:  Ely replied 3 years ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Now, I cannot tell you what to do because this is only general information and not legal advice.

However, at this point, what someone in your situation may wish to do is not to ignore the setting (because they may claim they served you and then one would have to file a separate motion to get whatever default order was received at that hearing nullified), but show up, and file not a Motion to Strike (which attacks a form of a pleading), but request sanctions within a Motion for Sanctions under FRCP Rule 11, since by filing that motion and not serving you with it and/or notice of hearing, they arguably deceived to the Court and you in their certificate of service part of the motion.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 3 years ago.
1) the certificate of service filed into the court left the date of service blank but says it was served via US Mail and email;
2) a motion for sanctions would entail them responding, which would add to their attorney's fees which I may wind up liable for;
3) this filing was an reply to my answer, to which I'm not allowed to respond, so isn't the court likely to claim no harm no foul, again?
4) I previously filed a motion for sanctions against another defendant for the same reason (he claimed he served me but he didn't, and he claimed it was a clerical error) and the court told me that I better not waste its time with frivolous motions or I would be sanctioned.
Would your advice to a person in this situation change with these new facts?
Expert:  Ely replied 3 years ago.
C,

1) the certificate of service filed into the court left the date of service blank but says it was served via US Mail and email;

In my humble, non-binding opinion, that is cause for FRCP 11 sanction.

2) a motion for sanctions would entail them responding, which would add to their attorney's fees which I may wind up liable for;

Yes, if the motion for sanction fails.

3) this filing was an reply to my answer, to which I'm not allowed to respond, so isn't the court likely to claim no harm no foul, again?

No, because ANY PLEADING must follow the same rules for service/notice, be it complaint, motion, and/or answer/reply.

4) I previously filed a motion for sanctions against another defendant for the same reason (he claimed he served me but he didn't, and he claimed it was a clerical error) and the court told me that I better not waste its time with frivolous motions or I would be sanctioned.

Well this complicates things. The first time, one could see how this may have been seen as a simple mistake. However, two makes it a pattern. SOME parties may wish to chance it and file another motion for sanctions. OTHERS may choose to ignore it. IT really is up to you. There is no right or wrong path here.

Would your advice to a person in this situation change with these new facts?

See above. I cannot tell you to file another motion for sanctions, however, this does seem to be a pattern and the court may recognize it as such more now since the action has repeated itself.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
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