In re Order of Motions heard. I'm pro se, with a case in Virginia Circuit Court. My opponents have used stalling and procedural tactics throughout the development of the case. One of their primary tactics has been to refuse to appear for hearings, claiming unavailability, unless their favorite Judge is hearing motions.Over the last three months, while they've refused to come to Court, 12 separate motions piled up. Now their favorite Judge is back, and all of a sudden they're shoving docket dates down my throat.Without going into just how disadvantaged I am by having to deal with this particular Judge, a major issue I face is how my opponents appear to control the sequence in which this Judge addresses the various motions. And it matters a lot - this Judge tends to make up his mind very quickly and never change it. He's not exactly the most contemplative member of the bench.Now, having stalled for three months, my opponents have filed a motion to dismiss, based on a technical error (misnomer of a defendant; correct parties served but a Lender, rather than the Trustee to a Deed of Trust for benefit of said Lender, named) in my complaint. I filed a motion to amend and correct the error three months ago, but they would never agree to appear to have it heard. Finally, I put it on the docket without their agreement, whereupon they docketed it for the next time that their favorite Judge was available. When I went to Court to have it heard on my date the sitting Judge that day basically said, "Well, they're coming in a few weeks, that will do" and wouldn't hear my arguments to amend and correct the error.Now we're going back in front of the Judge that thinks any pro se is an automatic idiot, and they are filing a motion to dismiss based on my technical error. If he hears their motion to dismiss without ever hearing that I've been trying to fix it, it's dollars to doughnuts he makes up his mind to toss me out right then and there, and totally ignores any attempt I make to explain that I've been trying to amend and correct the (minor, easily remedied) mistake for months. But if I can make my argument first that I should be allowed to amend and fix it, then I might have a chance (statute of limitations hasn't passed, no one is prejudiced since all appropriate parties have real knowledge - as I mentioned, the correct PEOPLE were served). But last time we heard motions, opposing counsel just stood up and said, "I think we should hear X first," and the Judge said, "Why yes, let's do." And they then proceeded to give me a bloody nose.I'm the Plaintiff, and my motion to amend was literally filed months before their motion to dismiss. Theirs was just filed last week. But I think it's damn near certain they are going to stand up and say, "Let's hear our motion to dismiss first," and the Judge will say, "Sure, that sounds great," before I get to say a word. And then he'll toss me out on my ear, as some sort of lesson in why no one should ever dare to appear in Court without a lawyer, regardless of the actual merits of the case.What is supposed to really determine the order in which motions are heard, particularly when there is a huge logjam of stall tactics and procedural games going on?
Which county is it?
Arlington County Circuit Court, Arlington, Virginia.
Do you have knowledge of the local area?
No, I do not have particular knowledge of that area, but motion practice is largely governed by local rules. I unfortunately am not able to locate the local rules for that county online.
Generally speaking, motions should be heard in the order they are filed. From a practical standpoint, you can file a written objection to the motion to dismiss citing the fact that you had filed motion to amend prior to the filing of the motion to dismiss. The court can take judicial notice of that filing, and since it is relevant to the motion to dismiss, should also consider that motion to amend concurrently with the motion to dismiss.
I hope this answers your questions. Please let me know if you have any follow-up questions.
I'm afraid I could use a bit more guidance.
I've already filed a memorandum in opposition to the motion to dismiss, but this Judge doesn't actually read memorandums (he certainly hadn't read mine the last time I appeared before him) so hoping that he'll take judicial notice of it is probably unrealistic. Having watched him in action a few times now it appears he just shows up and fields things on the fly. So I need a concise argument to present in person. The idea of the motions being interrelated and thus needing to be hearing concurrently is a good start.
Is there any other brief argument you can think of that I could use? Perhaps a way to leverage the fact that I'm the Plaintiff, and with twelve motions pending I should at least be allowed to get a word in edgewise before my opponents set the agenda? Or any other argument you can think of?
Otherwise, I guess all I can do is call the clerk's office and hope I get someone helpful on the phone to explain the local rules. Not blaming you, this is a narrow question... but not everything is a softball and I really could use some help.
From my perspective, this is a fairly straight-forward argument. The defendant has filed a motion to dismiss based on a curable error for which you had previously asked the court for leave to amend and correct. The fact that you have filed that is a defense to the motion to dismiss. If the court dismisses the case without even reviewing your motion to amend, that is grounds for appeal. If you explain in your oral argument the timing of the motions, the court should rule in your favor (assuming the proposed amended filing cures the defect).
Please let me know if you have any follow-up questions. I am happy to clarify.
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