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CalAttorney2
CalAttorney2, Attorney
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Experience:  Civil litigation attorney for individuals and businesses.
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I am short on time and probably should not file motion

Customer Question

I am short on time and probably should not file for a motion for summary judgement because I am less than 90 days from trial date and hope the Judge takes it. I could make a motion to continue the trial date. So I have two choices.
Either 16 A.R.S. Rules of Civil Procedure, Rule 12(b)6 Failure to state a claim upon which relief can be granted.
Or A.R.S. Rules of Civil Procedure, Rule 12(c) Motion for judgment on the pleadings.
Either one puts me into a Rule 56 Motion for Summary judgement when I provide facts
I did use the affirmative defense Failure to state a claim upon which relief can be granted in my answer to the Complain. I am the Defendant and in Arizona.
Submitted: 1 year ago.
Category: Legal
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

If you are closer to trial than 90 days, the time to file is closed (the Court loses the ability to hear your motion under Rule of Court 130, http://www.azcourts.gov/portals/74/rcipljc/0928/jcrcp09232011.pdf, this is true even if the current trial date is continued (the deadline is based on the trial date as originally scheduled).

If you make a motion to the court asking that they hear the motion anyway, you can attempt this, but be prepared for (1) the other side to vigorously oppose this; and (2) for this to take a significant amount of time (remember, an MSJ is not like most other motions, the other party will have extended time to respond, you will have time to file an opposition, the court requires time to review the moving papers and hear argument - this is all part of why the hearing date must be before the 90 days).

You are not precluded from your Motion for Judgment on the Pleadings, but be aware, if anything outside the pleadings appears, the court is instructed to review this as an MSJ (see Rule 129(g)).

Again, you can file the motion and attempt to get the court to grant this pre-trial motion, but just be aware of the limitations as you file it (and most importantly if you are inside the 90 day window, prepare for trial - don't rely on this motion to help you avoid the matter, you may need to focus more on the merits of trial, where you can also raise these defenses as well, both in Motions in Limine (pre-trial), and argue them during trial, but you must prepare for the entire matter (so you likely have a lot of work ahead of you - don't waste too much time on a motion that may be a long shot).

Customer: replied 1 year ago.
The Justice court equivalent is as follows: 129 g. Motion for judgment on the pleadings. After the pleadings in a case have been filed, any party may file a motion for judgment on the pleadings. The motion shall be granted if, for purposes of the motion only, all of the allegations in the pleadings are considered to be true, and a party would be entitled to judgment in their favor on those allegations as a matter of law. If matters outside the pleadings are presented to the court, the motion shall be treated as a motion for summary judgment under Rule 130So I take it that this ends up being a summary judgement anyway and the 90 day rule applies everytime. This is really sad as this is not my fault to miss this Summary Judgement. The only pleadings on this is the Complaint and my Answer. I have received no discovery yet and the Plaintiff has provided no disclosure yet. The problem is the Complaint really worthless so I really don't want to let it go as being true in any manner and take a chance. Although I probably would prevail just on the Answer alone as I do give facts but there are no documents filed with the court to support them. Can you maybe define what that 129g means?.
Customer: replied 1 year ago.
I am going to paste in my Answer to the Complaint and see if I can go with it using 129g so hold on a minute
Expert:  CalAttorney2 replied 1 year ago.

A Motion for Judgment on the Pleadings (129(g)) means that if you take everything that is stated in the complaint as true, and interpret it as favorably towards the plaintiff as reasonably possible, if there is no valid cause of action, judgment will be entered against the plaintiff.

  • A good example of this would be if a defense of statute of limitations is raised (we will use a hypothetical state and statute to help avoid any possible confusion): in State Purple, the statute of limitations for Fraud is 20 years, the Plaintiff alleges that 25 years ago the Defendant lied to him about a car he bought, and 2 years later he found the lie. The Defendant moves for Judgment on the Pleadings, because the Plaintiff's Complaint shows that on the face of the complaint itself the complaint is time barred (all of this occurred over 20 years ago).

Please do not post your documents, I cannot review them on this forum, we can provide general legal information only - a local attorney can provide you with a formal review of your documents.

Customer: replied 1 year ago.
Defendants for their Answer to the Complaint ofPlaintiff hereby admit, deny and allege as follows:
1. Hampton admit that Plaintiff paid monies for the tour in France entitled “A Week of Cultural Delights in Provence.”
2. Hampton deny that Plaintiff “got dumped off at a mostly deserted condo complex with no attendants, access to food, transportation or food service.” Hampton further affirmatively allege that no representations were made to Plaintiff that the condominium complex would be filled to capacity, would have services provided as one might find in hotel or that transportation was available. In fact the website, the website for French Vintage Vacations states, about the lodging, that it is approximately a 5 to 8 minute walk to the town of Gordes.
3. Hampton admit that the Plaintiffs requested transportation to Marseille and that Hampton made arrangements for that transportation.
4. Hampton admit that they did not provide Plaintiff with a refund.
AFFIRMATIVE DEFENSES
As and for their affirmative defenses, Hampton allege as follows:
1. Failure to state a claim upon which relief can be granted.
2. Assumption of Risk.
3. Waiver and estoppel.
4. Performance of contract.
5. Plaintiff completed the French Vintage Vacation Reservation Form 2014 on March 8, 2014 which form contained the following clause: “By submitting this reservation form and the deposit I/We agree to all the Terms and Conditions listed below. Those terms and conditions stated in relevant part:
No refund will be made for cancellations received less than 30 days before the first scheduled tour. Prices are per person, double occupancy. We highly recommend that you purchase trip cancellation insurance as we will not be able to deviate from this policy. The tour is sold as a package and there will be no refund for any unused portions such as meals, services, transportation, and accommodations not utilized by any guest for reason.6. Failure to mitigate.
7. Plaintiff voluntarily terminated the tour.
NOW, WHEREFORE, Hampton request that this Court dismiss the Complaint with prejudice and award them their attorney’s fees pursuant to A.R.S. §12-340.10 as this matter arises out of contract
Customer: replied 1 year ago.
The Judge will not know what the heck is going on probably. All the plaintiff said was they got "dumped off with no attendants , no access to food, telephone and transportation" That is the Complaint the end of the story and I have gotten nothing else from the Plaintiff. These people simply abandoned the tour and demanded money back.
Customer: replied 1 year ago.
I do not even see any grounds for relief or proof of anything. They did say they asked for transportation out because they could not indure the tour. This was the most bizarre thing that has ever happened to us in 20 years of doing tours in France. They quit the tour before it even got started. Anyway what I was hoping is to see if you though I could go with the 129g Rule and take a chance. I guess the the Judge could just turn down and i go to CT. Can I ask for a Judge to decide or do I end up with a jury trial? The Plaintiff will probably do nothing and may not even go to the trial or end up in CT. I hope to get some bang for my buck.
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Remember, the Motion for Judgment on the Pleadings will read the pleadings "in the light most favorable to the adverse party" (so they are going to look at the complaint and read them in the way most favorable to the plaintiff.

Allegations made in the Answer do not suffice to contradict the allegations in the Complaint.

If the Answer does not allege sufficient facts to support a cause of action, you may be able to make a claim - but the Plaintiff may also be able to simply address this with an amended complaint.

Unfortunately you are very, very late in the litigation process to deal with this matter (I don't mean to overstate the obvious, but I am trying to provide you with more context into the remedies for dealing with a plaintiff like this - you can file motion to strike, a motion for judgment on the pleadings (at the outset of your case), make discovery requests, make motions to compel responses to discovery, then make a motion for summary judgment).

I would prepare for trial if I was in your position - as you don't have a lot of information to go on, start gathering your documents that you do have, and any witnesses you can find (I would recommend at least visiting your local law library and review a trial practice guide to help prepare, and perhaps sit in on the trial calendar for an hour or two to get a better feel for how the process works). If you have not yet paid a jury deposit and requested a jury trial (and/or the other party has not), you are most likely going to have what is called a "bench trial" where you appear before the judge - not a jury - as the decider of fact.

Customer: replied 1 year ago.
OK I pretty much got it. FYI I had my attorney on this just before I left for France so he could take care of it while I was gone. Right away the court set a date for mediation which he got continued until I got back 6 months later. My atty was to withdraw. So I personally went to the mediation the 4th of November which tanked. At some point right after mediation the court set the date for trial on Feb 10th which I knew nothing about because my Atty got the notice. Meanwhile I had sent for Discovery because I had nothing from the Plaintiff. I called the Court asking if how long before a trial date was going to be set and found out it already had. That is why I am within the 90 days. I am not very happy with my attorney right now. This is how shit happens. My atty has still not sent me the withdrawal to sign. I will reread what you have sent shortly.
Expert:  CalAttorney2 replied 1 year ago.

I am sorry to learn of this situation.

You appear to have a building legal malpractice case against your attorney (you may not be prepared to move forward on this now, but knowing this may help motivate your attorney to help you in dealing with this matter now in order to reduce any potential claim you may want to bring against him in the future - damages in malpractice claims are based on the amount of loss in trial, so if they can reduce your damages by helping now, they may reduce their own potential risk).

Customer: replied 1 year ago.
That did indeed cross my mind. My attorney didn't have much to do to on this. A Summary Judgement was a simple thing for him to do in this case. What is sad is in one email to me (when I was gone) he said he would go for discovery and a MSJ. That mediation didn't hold up him from doing that as he kinda alluded to.
Expert:  CalAttorney2 replied 1 year ago.

See if you can work something out with him now. Unfortunately once they get going, legal malpractice cases are very complicated (for both sides).

Legal malpractice cases are based almost entirely on expert testimony. You must not only find an attorney to act as an expert witness regarding the standard of care for your prior lawyer (to prove the "negligence" elements of the case), but also an attorney expert (and potentially other experts) to testify regarding the underlying claim (you must prove that absent the attorney's malpractice you would have achieved a better result - often termed "the case within the case").

Due to the complexity of these claims, I highly recommend that you retain a legal malpractice plaintiff's lawyer (also called trial attorneys). Fortunately the majority of these attorneys will provide you with a free consultation, and many will represent you on a contingency basis (they will advance the costs of litigation and legal services in exchange for a portion of your successful settlement or judgment).

You can find local attorneys using the State and Local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

Customer: replied 1 year ago.
Thanks for the input. I'm not going to try and push it other than to encourage my attorney to find a way to get to court to accept a MSJ from me. I do not have the expertise to do what it takes to make motions like that. I can do the MSJ as it is quite straight forward documentation that the Plaintiffs signed. The thing in my favor is that the Plaintiff is even dumber than me (I hope) and has done nothing required on this case other than file the lawsuit to cause me trouble.
Expert:  CalAttorney2 replied 1 year ago.

You are welcome, and I do wish you the best with this matter.

Thank you for using our forum, and please do not forget to rate my service so that I can receive credit for assisting you.

If you would like to direct future questions to me specifically, you can do so by starting your new question with "For William B. Esq." and a moderator will notify me.

Thank you again, and again I wish you the best.

Bill