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Lucy, Esq.
Lucy, Esq., Attorney
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I need an expert from Massachusetts since it deals with Civ

Customer Question

I need an expert from Massachusetts since it deals with Civ Proc Rule 9A.
What should I (the Plaintiff) do if the Defendant's attorney did not send the Rule 9A package to court in time (it is my understanding that they have to do it within 10 days)?
Submitted: 1 year ago.
Category: Legal
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I am licensed in Massachusetts.

There are a few circumstances that can extend the amount of time they have to file the packet with the court. I just have a few questions for you:
1. Was this a Motion for Summary Judgment?
2. If so, did you serve them with a statement of additional material facts?
3. If not, did any party seek leave to file a reply brief by filing a motion with the court?
4. When was the tenth day?
Customer: replied 1 year ago.

Lucy, thank you


1. No, it was not a Motion for Summary Judgement.


3. No, nobody seek leave.


4. I sent them my Opposition to their MTD on April 17. So they at least a week or so late.


 


 

Expert:  Lucy, Esq. replied 1 year ago.

Yes, that's definitely late, even if you give them the extra time for service by mail.

You may want to start by calling the court tomorrow, just to make sure that it didn't get lost. It's possible that the packet was mailed, and the clerk hasn't docketed it yet - especially if you're in Boston. But it would be odd for the packet to be delayed and your notice of mailing not to arrive.

Rule 9A(b)(6) says that the court does not have to consider any motion that does not comply with the requirements of the rule. That means that, if a party does file the 9A packet late, the other party can file a Motion to Strike for Non-Compliance with Rule 9A. It would also be possible, at any hearing on the motion, to ask the judge to refuse to hear arguments and to deny the motion for that reason.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.

Customer: replied 1 year ago.

If I file a Motion to Strike for Non-Compliance i have a few questions:


1. How many days did they have to send the package - 10 or 13?


2. Do I file this Motion using the regular procedure (i.e. send the opposing party the Motion, then wait to their response and then send the 9A package)?


3. What does normally happen after this Motion is filed (clearly, they are not in compliance - does this mean that I win the case?) - sorry, this might be a naive question....

Expert:  Lucy, Esq. replied 1 year ago.
1. If you served the documents on them by mail, they get 13 days from when you mailed it. But I counted, and that still has it due last week. It shouldn't take three or four days for mail to travel across the state.

2. Rule 9A(b)(1) now requires that all motions filed in the Superior Court follow this procedure. Essentially, all you would need is an affidavit laying out the relevant math, and the rule itself. The judge will be able to see that they're not in compliance.

3. Normally, a judge won't consider a motion that's not filed in Compliance with 9A. But that doesn't automatically mean that the other party wins the case. It just means that the case will proceed. So, if they filed a Motion to Dismiss, then they have to file an Answer. If they don't establish any counterclaims, then the discovery process begins. Basically, it would be the same as if they had never send you the motion in the first place.
Customer: replied 1 year ago.

Let me see if I understand this correctly:


Since they are late, a judge would dismiss their Motion to Dismiss our complaint, and allow our complaint to to proceed, correct?


And one more "silly" question. Should I call the attorney of the opposite party and ask if they have sent 9A package or this is a stupid thing to do? Also, can you think of any reason why they would not send 9A package?

Expert:  Lucy, Esq. replied 1 year ago.
Every case is different. Some attorneys will call opposing counsel in this situation, either as a professional courtesy, or because they want the motion to be heard (this is more common with summary judgment motions), or even just to make sure whether the motion was mailed. If you would prefer to know whether they changed their minds about filing it, calling is one way to keep yourself from waiting and wondering what's happening.

The main reason that the 9A package wouldn't be sent is that the party decided to withdraw the motion, but they're supposed to notify the opposing party. It is also possible that it got lost in the mail, or that they think they can get the judge to hear the motion, anyway (since it says that the judge can refuse to hear it, not that he must refuse to hear it) I can't think of any tactical reason not to file the packet if I want the motion to be heard and granted by the judge (which I usually would, if I'm taking the time to write it).
Customer: replied 1 year ago.

I don't think it got lost in the mail since there are three plaintiffs and they usually send all the documents to each of the three... Can you please clarify:


1. "..they think they can get the judge to hear the motion, anyway.." - how can they get the judge to hear the motion if they don't send 9A package?


2. "... (since it says that the judge can refuse to hear it, not that he must refuse to hear it)..." - is this from 9A rule?

Expert:  Lucy, Esq. replied 1 year ago.
Yes. The rule says that the judge "need not consider" any motion that fails to comply. it doesn't say "May not consider." So, the judge could still hear it. There tends to be a preference in the law for deciding cases on their merits and not on technicalities. If a party asks the judge not to hear it because of a 9A violation, they can try to argue why it should still be considered. That doesn't mean that they'll be successful, but the judge does have some discretion.
Customer: replied 1 year ago.

Lucy, than you - this is very helpful. Could you point me to the website (or may be you have some sort of a template) where I can find a sample of a Motion to Strike for Non-Compliance?


thank you.

Expert:  Lucy, Esq. replied 1 year ago.
I'm sorry, but I'm not aware of any websites that have samples and we're not able to provide our own templates. The Massachusetts law library system has books that you can copy that should show you exactly what you're looking for. The librarians are really helpful, and you're allowed to check books out if you want extra time to look at them.
http://www.lawlib.state.ma.us/libraries/locations/index.html
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 20484
Experience: Lawyer
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Customer: replied 1 year ago.

Lucy, I am wondering if you could help me one more time. I sent the opposing party my Motion to Strike, as we discussed, and they sent me a letter (not the opposition, but the letter) saying that since they did not file any motion to dismiss my complaint, my motion to strike their motion is moot....I am not sure what to do now. As of right now, the court has my filed complaint, but does not have their motion to dismiss our complaint or our opposition to their motion (since they did not send 9A package) or our motion to strike! Do we ask court to rule in our favor? what should be the next step? thank you.

Expert:  Lucy, Esq. replied 1 year ago.
If the other side has filed absolutely nothing, you can file a Request for Default Judgment.
http://massrules.lawyersweekly.com/wp-files/superior-court-forms/superior6.pdf


The default is entered by the clerk. If necessary, the judge will schedule a hearing to review damages.
Customer: replied 1 year ago.

What they did was they filled Notice of Filing Motion to Dismiss Complaint (pursuant to Sup Ct R 9E), but that was the end of it. They never sent (a package, so the court does not have it, only the notice. Should I still proceed with a request for default? if yes, do I need any other supporting documentsdocuments?

Expert:  Lucy, Esq. replied 1 year ago.
Rule 55 allows a default where a party has failed to plead or defend the action. A notice of intent to file a Motion to Dismiss is not a Motion, and it's not an Answer. At the very least, if you file for default, you may be able to get the judge to order them to file an Answer. They can't just sit back forever and leave the case in limbo without filing anything.

There needs to be an affidavit, but that's included on the bottom of the form.
Customer: replied 1 year ago.

thank you - last question - do we need to send the other party a copy with certificate of service?

Expert:  Lucy, Esq. replied 1 year ago.
Yes. Usually, though, the clerk enters default before they have a chance to respond.
Customer: replied 1 year ago.

Lucy, you helped me before, and I need your help again with my case. This is where I am right now. I am waiting for the court to set the hearing date to hear the Defendant's motion to dismiss my Complaint (this is the First Amended Complaint by the way). The Defendant filed 9A package in Court on July 3d. Few days after that date I obtained an affidavit that I would like to include in my case. What are my options? I talked to the court clerk and he said the hearing won't be until late September, so I have time.


I am not sure how this works, but i am willing to pay for this service. I just really need to know what to do.

Expert:  Lucy, Esq. replied 1 year ago.
I'm happy to answer this for you. However, because questions about the 9A packet are not considered follow-ups to the initial inquiry, the terms and conditions of the site require that I ask you to open a new question.
Customer: replied 1 year ago.

I'd love to do that - I am not sure how...if I just ask a question, anybody else can pick it up... how do I ask a question so it goes to you?

Expert:  Lucy, Esq. replied 1 year ago.
If you put "For Lucy" in the subject, I'll see it. I should be online for another hour or so.

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