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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 29632
Experience:  29 years in civil, probate, real estate, elder law
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Is NOT refuting a Defense response on an amended complaint

Customer Question

In a FEDERAL court Civil case, is NOT refuting a Defense response on an amended complaint moving to dismiss, that has several counts to it, grounds for the Court to conclude the plaintiff concedes Defense arguments? And if so, can this be grounds for Plaintiff to appeal?

Submitted: 7 months ago.
Category: Legal
Expert:  Ray replied 7 months ago.

Ray :

Hi and welcome back.Ray here to help you today.

Ray :

You could file a motion for partial summary judgment concerning the issues the defense did not refute.

Customer:

The PLAINTIFF did NOT refulte.

Customer:

Plaintiff filed a 7 count civil complaint.

Customer:

Defense moved to dismiss, going through each count.

Ray :

Sorry you can still file a partial summary judgment under the rules.

Ray : Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.


(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.


(c) Procedures.


(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:


(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or


(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.


(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.


(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.


(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.


(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:


(1) defer considering the motion or deny it;


(2) allow time to obtain affidavits or declarations or to take discovery; or


(3) issue any other appropriate order.


(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:


(1) give an opportunity to properly support or address the fact;


(2) consider the fact undisputed for purposes of the motion;


(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or


(4) issue any other appropriate order.


(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:


(1) grant summary judgment for a nonmovant;


(2) grant the motion on grounds not raised by a party;or


(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.


(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.


(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

Customer:

Civil theft, conversion and one other related count were NOT responded to by the Plaintiff in response to the Motion to Dismiss.

Ray :

This would be the means here to seek to limit the issues and have court rule in your favor on these issues.

Customer:

The court has already Ordered a dismissal with prejudice. Trying to decide to appeal or not.

Ray :

So they ruled in your favor here.

Customer:

Negative.

Customer:

I'm the plaintiff.

Ray :

Ok so you have appeal rights but they are time limited.

Customer:

the 30th day landed on a Saturday, so I believe that extends to Monday.

Ray :

That would be correct you get until then to decide.

Ray :

Rules for reference.

Customer:

Ray, is the original question at the top valid?

Ray :

You would have the right to appeal the dismissal of the suit here and seek reinstatrment on appeal.

Customer:

But an appeal must have merits. Without giving advice, in principle, is the original question valid?

Ray :

You will have to argue that your complaint and any other pleadings did put it all in dispute here.

Ray :

Start with notice of appeal here.

Customer:

So a district court judge's opinion can be reversed?

Ray :

Yes you would have a right to appeal the dismissal.You just need to do so within the time frames.

Customer:

Is there a tendency for for Appellate Courts to dismiss pro se actions out of hand?

Ray :

Well honestly the odds are long for an appellant.But it does happen that they reverse some dismissals.

Ray :

As long as you realize it is an uphill struggle no harm in trying.

Customer:

Are there any statistics for how long these odds are?

Ray :

I would tell you that maybe one out of five gets reversed on appeal.Say a 20% chance ballpark.

Ray :

Your court of appeals..

Ray :

More self help

Customer:

Ray, I must return to my original question, and forgive me if I missed your answer in this thread, but is NOT refuting in a Plaintiff's RESPONSE the arguments made by the Defense on Civil Theft and Conversion, GROUNDS for the Court to conclude Plaintiff is not contesting the Defense Arguments?

Ray :

You certainly may want to give it a shot on appeal here.

Ray :

All I can tell you on that issue is the Federal Judge here felt that it was grounds to dismiss the appeal.The court would in this case have reviewed the pleadings and felt like your pleadings were lacking and that dismissal was appropriate.

Customer:

Thanks.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29632
Experience: 29 years in civil, probate, real estate, elder law
Ray and 6 other Legal Specialists are ready to help you

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