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Ask Dave Kennett Your Own Question
Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27689
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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I filed a Motion to Dismiss Defendants counterclaim in Circuit

Customer Question

I filed a Motion to Dismiss Defendants' counterclaim in Circuit Court in IL, and the Defendant never responded.

Is there a rule thet tells me a time limit within which Defendant should have filed a response?
Submitted: 5 years ago.
Category: Legal
Expert:  Dave Kennett replied 5 years ago.
Dear JACUSTOMER - Whenever a motion to dismiss a complaint or counterclaim is filed and no response is filed by the opposing party then the court will decide the motion on its merits. This is not the same as when an opposing party fails to file an answer and the a motion for default is filed. Basically a counterclaim is the same as a complaint which requires a responsive pleading, either a reply or a motion to dismiss. Since you have met your obligation of filing your motion to dismiss then it will be up to the court to issue a decision on the motion to dismiss. Many courts set their ow local rules as to a response time so you can contact the clerk of courts but you will simply have to wait for the court to rule on your motion as there is nothing else you need to file.
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Customer: replied 5 years ago.

Thank you, Dave. Agreed, I really could not file a Motion for Default - as I filed my MTD and the other side just failed to answer (according to the local rule I found - copied below it appears that they would have 28 days to respond to the motion).

Thereafter those 28 days, they have waived their right to respond, and the court would just issue a decision on my motion.

However, last time we were in court, the judge seemed to allude to "any other" motions I may file - I should notice them up for our next status - Jan 9th. I am still wondering what that other motion could be? Motion to have the court rule on my Motion without a response (?) That does seem unnecessary - but possible.


Expert:  Dave Kennett replied 5 years ago.
While your other motion is pending I see no reason to "flood" the court with more motions. If they wait longer than the 28 days it would be up to the judge as to whether to accept a late filing. Typically a judge will not accept a late filing unless a motion has been made to extend the time or some really good cause is shown for being late. Obviously I cannot predict what will happen.