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ely Couple of questions Have prepared motion for sanctions

ely Couple of questions Have prepared motion...
ely

Couple of questions

Have prepared motion for sanctions and e mailed a copy to both lawyers they disagree with the motion "it is baseless"

What I am trying to do with the sanctions motion is to focus on the failure of the contractor and sub-contractor to ask a new hire if they have a disability and discuss accommodations, which is required by law they failed to do this.

their approach is to ignore their failure and claim even if we did survey his disability would not be accommodated for various reasons.

In the sanction motion I am asking the judge to order the Defendants to produce the new hire disability questionnaire if they cannot, then grant the sanctions.

if the judge denies the sanctions I guess my next move would be to dismiss

Can you comment on this strategy?
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Answered in 11 minutes by:
6/21/2013
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102,694
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello friend, I hope you are well. Thank you for requesting me. I am currently away from the site but shall reply in under a few hours. I hope this is acceptable. If not, let me know and I will opt out and open this up for others. If it is okay, then no need to respond to this communique and I will follow up soon...
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G,

My apologies for the wait.

"if the judge denies the sanctions I guess my next move would be to dismiss
Can you comment on this strategy?"

I am a little confused why you are filing a Motion for Sanctions. You have already filed a lawsuit. The matter of the contractor/sub-contractor failing to accomodate under the law is the basis of the suit, is it not, or at least one of the issues? If so, then the Court will hear this matter at trial. A motion for sanctions is filed if a party is doing something wrong during the suit such as improper filings, questionable tactics, or lying in responses, etc. In other words, you cannot file a motion for sanctions to "punish" the other party for the cause of action you are pursuing. This matter will be heard at trial.

As for the motion to dismiss, I am not even sure why you are doing this, or thinking about doing so. A motion to dismiss asks the Court to dismiss the case all-together.

So either you are a little off-base, or, I am misunderstanding you. Please let me know.

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Customer reply replied 4 years ago

 


I am off base. You are right it is about failing to accommodate


 


They have asked for production of documents over 10 years of work, tax returns etc.


 


I have an 80% disability for PTSD, my doctors have told me recently that they are recommending a 100% rating,


 


It is very difficult for me to concentrate and it aggravates the depression where I can't function I have no options but to dismiss


 


what can expect when I file the motion to dismiss


 


thank you for your help

G,

Thank you for your reply. I did not mean to state anything negative, and I hope it did not come off like this.

what can expect when I file the motion to dismiss

If you file a Motion to Dismiss, then the Court will dismiss the case. This can happen in one of two ways - either the Court will do it automatically when when you send it in, or, the court will require a quick hearing:

1) The Motion to Dismiss is filed by you; and a copy is sent to the other party via certified mail;
2) Once the motion is filed with the court, one needs to call the clerk and ask if (a) the Judge will simply sign off on it, or (b) the Judge will need a quick oral hearing - it can be either way.
3) If the Judge will simply sign off on it, then they will in few days, and the matter will be considered closed;
4) If the Judge will require an oral hearing, then you can set a date/time with the clerk, let the other party know, and show up. Then after a quick hearing, the Judge should dismiss the case.
5) With the motion, one would also need to file a proposed ORDER for the dismissal in order to have the Court sign off on, i.e. the Court will not draft the order - the party must - and have the Judge sign off on it.

I hope this helps and clarifies. Best of luck.

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Customer reply replied 4 years ago


do I need to state a reason for dismissal, can the other party object ? and ask for monies , what happens if they do

Thank you for your reply.

One does not need a reason for dismissal. Normally, no legal fees/attorney cost money is awarded at dismissal.

The other party can only object if they have filed a counter-suit. If so, then you can dismiss your complaint but cannot dismiss their counter-complaint.

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Customer reply replied 4 years ago


can they file a counter suit after receiving the motion to dismiss

Customer reply replied 4 years ago


reading rule 41 (a)(1) if the defendants have filed an answer does this mean an answer to the amended complaint?


 


which rule applies

Hello friend. Yes a countersuit counts as an answer. And yes, they can file it after the motion to dismiss is filed, buy before it is heard.
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Customer reply replied 4 years ago


so the action is dismissed and they file a counter suit no doubt for their legal fees


 


than the whole suit begins again


 


how does the the court view this counter suit for their fees and can they be successful?

They cannot file a countersuit once the action is dismissed. They cannot open a new suit simply to ask for legal fees.

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Customer reply replied 4 years ago


I am sorry ely


 


I am confused I file a motion to dismiss by court order or without court order. the local rules say I need to file three days before motion is heard


 


that gives the defendants time to answer is that when they will file a counter claim, what is the content of the counter claim?


 


I just need this whole thing to go away before I end up in the hospitial


 


 


 


 


 

Hello. I am on the road at the moment, so I reply as soon as I can which will be towards the evening. At that time, I will be able to thoroughly clarify everything and clear up your confusion. I just wanted to give you an FYI that I have not forgotten, but shall reply towards the evening. My apologies for the inconvenience in advance. No need to reply to this communique. I will reply in the evening.
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Gary,

Apologies again for the wait.

If you would allow a little constructive criticism - it is very easy to over-think something in the legal realm. With every action, there may be hundreds of consequences. "What if" is possible in every scenario - what if they do this, what if they do that, etc.

What someone in your situation wants to do is to end the suit, correct? If so, then one in your situation wishes to file a Motion to Dismiss.

If they have not filed an answer, then the matter should be dismissed almost automatically. No legal fees should be appointed.

If they have filed an answer, then the Court will want to have a hearing, but it is still likely to be dismissed. No legal fees should be appointed.

If they have filed a cross-claim, then the matter will not likely be dismissed, I am afraid, and they can still press on with their counter-claim. Yes, a counter-claim counts as an answer. In fact a counter-claim is an answer along with an action against the plaintiff (i.e. you).

I am confused I file a motion to dismiss by court order or without court order. the local rules say I need to file three days before motion is heard

You will need a proposed court order to be filed along with your Motion to Dismiss, yes. This would be the order that the Judge would sign if the motion is approved.

It seems that local court rules need said motion to be set for a hearing (check with the clerk). If so, then the "three days" may refer to the time given to the other party before the hearing, at least. In other words, you have to serve the other party at least three days before the hearing is to be heard by the Court. Yet in another words, after the motion is set for a hearing, the other party needs three days or more notice for time/date of the hearing. I believe that this is what you are reading.

that gives the defendants time to answer is that when they will file a counter claim, what is the content of the counter claim?

This is where we are getting into over-thinking. Yes, this gives them time to file a counter-claim, technically. But if they do not want this suit any more than you do, then they likely will not. Finally - and again - one cannot start a new suit simply for legal fees from the old suit.

Best of luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely
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