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LadyJustice
LadyJustice, Attorney At Law
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I need help writing an Opposition to motion to dismiss under

Resolved Question:

I need help writing an Opposition to motion to dismiss under Fed. R. Civ. P. 12(b)(6).

I do not need advice on what to put in it, I have all the information needed. I seek help in putting all of my information together into the proper format.
Submitted: 2 years ago.
Category: Legal
Expert:  LadyJustice replied 2 years ago.

Hello and welcome to JustAnswer.com. I am a licensed, practicing attorney. If I answer your question, please be fair and ACCEPT my answer. Thanks

 

Motions follow the same format generally, as far as the caption, case number, court jurisdiction header is concerned. It's just that the title of the motion and content is different. You are going to argue why the other party's argument for dismissal doesn't apply to your complaint, and include a memorandum in response to motion to dismiss with your motion, which includes case law, rules of civil/criminal procedure, and/or statutes, that demonstrate to the court the legal arguments showing why the court should not grant the other party's motion to dismiss.

 

I'm providing a link that provides a sample Motion to Dismiss (MTD) from Oregon State (for the proper format) here:

 

http://www.northwestregisteredagent.com/motion-to-dismiss.html

 

And sample responses to a MTD here:

 

http://baller.com/pdfs/bvub-opposition.pdf

 

 

http://www.scribd.com/doc/10554072/Response-in-Opposition-to-Motion-to-Dismiss-Complaint

 

 

 

 

Customer: replied 2 years ago.
I have many examples like these, but at least its nice to see that they aren't that complicated, just long-winded..
How long does my response to the motion have to be (Yes, I understand that I need to get the facts out there), but the Judge knows that I'm alone & he likes me...
This will be done correctly, I just don't want to make it 20+ pages if I don't have to.

Also, would this be the type of issue that an experienced paralegal (in theory) should be able to put together? Generally speaking of course...

Thanks!
Expert:  LadyJustice replied 2 years ago.

Generally, the motion should be as brief as possible as long as you address all of the opposing side's legal arguments, supported by appropriate/applicable case law, rules, statutes. Brief, concise motions are more desirable than lengthy pleadings.

 

Also look at your judge's local rules on the court's website to see if the judge has specific rules in regard to page length for motions.

 

Yes, indeed a paralegal should be able to put together any type of motion or response to a motion.

LadyJustice, Attorney At Law
Category: Legal
Satisfied Customers: 470
Experience: Licensed Attorney
LadyJustice and 5 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
Could you possibly make a quick set of directions:
IE:

1st, head
2nd- do "this"
3rd- Do that (and don't forget this...)
4th -write this

Etc.

I think my big issue is that I'm being overwhelmed with too many examples, when all I really need is a simple (not IKEA like, I said simple) set of directions.
You already told me what people generally write, so this should be a piece of cake for you! I've also contacted 2 paralegals about this, but I would still like to know for my own personal knowledge.

Thank you!!
Expert:  LadyJustice replied 2 years ago.

Follow the sample in the links I provided.

 

Step one: Type the caption (name of the court, name of parties: Plaintiff vs Defendant; and case number.

 

Step two: Title the Motion: Response to Defendant's Motion to Dismiss

 

Step three: Short introduction of the facts of your case (parties, issues in dispute, etc.)

 

Step four: Your legal argument (why your case should not be dismissed), addressing each of the arguments in the opponent's motion to dismiss, cite the applicable rules of procedure, case law and/or statutes which support your argument. For example,

"Under Federal Rule 12(b)(6) [or the applicable Oregon Rules of Civil Procedure if in state court], the Court must deny the Defendants' motion to dismiss unless the Defendant demonstrates "beyond doubt that the [plaintiff] can prove no set of facts in support of [its] claim that would entitle [it] to relief." Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.1997). In making this determination, the Court must also "accept the factual allegations in the [plaintiff's] complaint as true, and must construe those facts in the light most favorable to the Plaintiff." Id. As demonstrated below, the Defendants' motion cannot survive the application of these standards.

 

Step five: Date, your signature, address, phone number, and email address.

 

Don't forget the Certificate of Service showing you sent a copy to the other party.

 

The terms of service of JustAnswer.com don't permit us to give specific legal advice, so all I can do is give general legal information. For specific legal advice, you should speak to a local attorney in your state.

LadyJustice, Attorney At Law
Category: Legal
Satisfied Customers: 470
Experience: Licensed Attorney
LadyJustice and 5 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
I've been reading over the defendants motion, and this is going to be easier than I thought!

The attorney is under the impression that I made one complaint, and it was 3 years ago. I saved every email, and every voicemail over the 3 years of dealing with this guy. The guy only gave one letter (dated 2009) to his attorney, and that's it!!
The attorney is claiming that the statute of limitations has expired. The fact is, the last problem I had with his client was less than 8 months ago, or about 1 week before I filed this case.

Their entire Motion is less than 2 pages. (not including the cover sheet, etc.)
I know that you said the shorter the better...so I'm going to go off of the example that I received and not make anything more than 2-3 pages.
The attorney I'm up against is from a huge firm. This person has been out of law school less than 1 year, and they have assumed that I will not have an answer to this.

I can't say that representing myself is something that I ever wanted to do, but I have a very good friend who is a federal attorney & he's insisted that with the amount of evidence I have (and the fact that I'm not afraid of a Judge), I can & should do this myself. After reading the responses I've received from everyone on this site, and seeing that the entire motion is less than 2 pages, I believe my friend may be correct.

Since I am not an attorney, I will still have a few questions (and you've been a great help). This one will be super easy for you:
Do I need to attach a copy of my evidence to the response, or just cite some specific names, dates, places, etc.?

Thanks! Lady-J
Expert:  LadyJustice replied 2 years ago.
It is not necessary to attach evidence to your response, as you will present your evidence at trial and/or during the discovery process. However, if you wish to attach any sworn affidavits which support your claim and/or response, this is fine (such as sworn statements from any witnesses you expect to call or at trial who have personal knowledge).
Customer: replied 2 years ago.
That's good to know!
I was re-reading the defendants motion to dismiss & their complaint is less than 1 paragraph long (3 sentences), then they cite 5 cases (cases that even I know)....that's it!
I have 2 simple questions for you (so more $$ for you).

First question:

Would you say that

"Memorandum of Points and Authorities in Opposition to defendants Motion to dismiss pursuant to FRCP 12(b)"
written as is, will suffice as a title my motion.
OR should I also mention something about this also being an amended complaint...? (such as : "amended complaint & memorandum of points and authorities...)

second question:

The defendant repeatedly claims that my complaint(s) have exceeded the statute of limitations. The defendant did not give his attorney 2 years worth of evidence, that's why the attorney thinks that my issues are too old. So, would a person usually just say that they are incorrect, and then possible list a few issues that have happened within the time limits...?
Generally speaking of course...

Thanks! :)
Expert:  LadyJustice replied 2 years ago.

1. A response to a motion to dismiss (MTD) can be used as a title or the title you suggested. What's more important is the content; appropriate defenses; case law/statutes/rules that support your argument/defenses, not the title.

2. A response to a MTD is not the same thing as an amended complaint. A response to a MTD is appropriately used when no amendment to the initial complaint is needed. Since the defendant already responded to your initial complaint, leave/permission of court is required to amend your complaint. Therefore, if you wish to amend your complaint, a Motion to Amend your Complaint with an attached Amended Complaint would be the appropriate pleading to file, rather than a Response to the opposing side's Motion to Dismiss. See Rule 23 of the Oregon Rules of Civil Procedure regarding Amended and Supplemental Proceedings. I'm providing a link here: http://www.leg.state.or.us/ors/orcpors.htm

3. If it's true that the Statute of Limitations has passed, an appropriate argument/defense would be to show that you are within the applicable statute of limitations and cite the appropriate statute demonstrating this. See the following links to determine the appropriate SOL's for your cause of action: http://www.statuteoflimitations.net/oregon_statute_of_limitations.htm

http://www.leg.state.or.us/ors/012.html

4. For any future questions, please review the Terms of Service for JustAnswer.com. In accordance with the Terms of Service, customers must post a new question unless you are asking "follow-up" questions for clarification on a question you have already posted. In accordance with JustAnswer.com's "Pay-Per-Question Model" you select the price that you are willing to pay for the Site Access Benefits related to a single question." http://ww2.justanswer.com/terms-service-0

5. It is advisable to seek legal advise from a licensed attorney in your state. The information provided here based on the limited facts you provided is not legal advice, but merely general legal information, and no attorney-client relationship or privilege is created between you and I. For legal advice for your specific situation, please seek the services of an attorney in your state.

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