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This is a question for Lucy Lucy, you helped me before,

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This is a question for Lucy

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.
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Answered in 9 minutes by:
7/22/2013
Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 30,997
Experience: Lawyer
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Hi,

Thank you for opening a new question for me.

You have the option of filing a Supplemental Affidavit in Opposition to Motion to Dismiss. The Supplemental Affidavit should state that it was not available prior to filing or Opposition and that you did not have the ability to obtain it earlier. If you wanted to make additional arguments related to that affidavit, you could move to amend your response.

I saw from your other question that you were discussing a Motion to Amend the Complaint. If you did not file that, another option may be to file a Motion to Amend, because you would then be able to put all relevant information in the Amended Complaint - which in many cases makes the Motion to Dismiss moot.

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.
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Customer reply replied 4 years ago

I already amended the complaint once, and this time I just want the judge to see this new affidavit. As I mentioned, the other party has already filed 9A package on July 3d with our Opposition to their Motion to Dismiss. Can we still file this supplemental affidavit (today is July 22....) ? there is no time limit?


Also, how exactly do I do that? Do I need to ask for leave of court?

A person can ask for permission to file the Supplemental Affidavit or file a Motion to Amend Opposition. Amendment is allowed whenever it's in the interests of justice. With the hearing so far away, the judge could allow it. A Motion to Amend would have to be filed with the court before the Amended Opposition was accepted. In some cases, judges will accept Supplemental Affidavits filed without leave of court. Just be aware that they might try to strike it. You'll have to be prepared to explain why the affidavit should be accepted, in the interests of justice.

If they filed a Reply to your Opposition, you could also request to file a Surreply, but that only works if the new affidavit is directly responsive to the issues raised in the Reply Brief.
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Customer reply replied 4 years ago

Let me see if I understood correctly: have two options:


1. Supplemental Affidavit or 2. Motion to Amend Opposition


1.How do I file Supplemental Affidavit? This is not a motion, so I am not sure what would be the procedure.


2. If I file a Motion to Amend the Opposition and if it is allowed, then I file the amended opposition. In this case, do I send it to the Defendant as usual and they have to file another 9A package?


What are the advantages/disadvantages of option 1 vs option 2?


 


 

I'm assuming they didn't do a reply, because that could change things.

If you just want the judge to see the affidavit, it's possible to ask the other party if they will file it as a Supplement to the 9A packet. You could also ask the opposing party if they would object if you just file a Supplemental Affidavit. if they're going to object and try to strike it, then it would save time to file a Motion to Amend.

If you want to make arguments based on the new affidavit, then you would have to amend the Opposition - because the opposition now doesn't mention it. 9A applies to all motions filed in Superior Court.

There are a lot of considerations. If they're going to object to everything you do, and drag it out, and then try to charge you with their attorney's fees, then it could save both time and money to file the 9A packet asking the judge to change your opposition.
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Customer reply replied 4 years ago

This is what happened: I've already asked them - here is a copy of our e-mail exchange:


me:


We are planning to introduce an affidavit of Mr. X.
Please let us know if you have any opposition to the filing of this affidavit with the court’ clerk along with the 9A package that has been filed. For your information please find a copy of the said affidavit attached to this e-mail.


 


Them:


You may file any documents that you wish with the Clerk’s Office. I have already filed the Rule 9A package with the Court, on July 2, 2013.

Regards,


 


I should probably ask them if they agree to file it as a Supplement to 9A packet. But now looking at their reply it looks like they're saying: we've filed everything and you can do what ever you want....

That doesn't sound as if they plan to object if you file a Supplemental Affidavit.
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Customer reply replied 4 years ago

How exactly do I do that - is this the same as what you called "a Supplement to the 9A packet"?

Yes. A Supplemental Affidavit is or a Supplement to the 9A packet would be the same thing.
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Customer reply replied 4 years ago

So how exactly do I do that? Should I send it to the Defendant and ask them to file a Supplement? This is not a motion, so I am not sure about the procedure...(i.e. who does what).

From the email, it does not sound as if they would file it for you. But you can send the documents to the clerk, asking them to file them, with a copy to the opposing party. If the other party doesn't object, because it's not a separate motion, it should be accepted.
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Customer reply replied 4 years ago

I am just wondering if there is a rule as to who is supposed to file things like that. I mean, if this affidavit is intended to supplement 9A packet, is there a requirement that it has to be filed by the party that filed this 9A packet on the first place?

Rule 9A doesn't mention supplements at all. They could file it as a courtesy, but the rule doesn't state that they would have to.
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Customer reply replied 4 years ago

I see. So this is basically up to the clerk to accept it or to reject it. And if I understand everything correctly, to file a Motion to Amend would be the safe way to go.

I've seen this done in the past, and the clerk may accept it. If they don't, a motion would have to be filed.
Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 30,997
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Customer reply replied 4 years ago

Lucy, the clerk would not take affidavit, so I filed a motion. Now I am waiting for the defendant's opposition. I have the following question: when I file a rule 9A package, do I ask for hearing on this motion (that's what is normally done as I understand)? All I really want is the affidavit to be attached to the case. What should I ask for? I mean, how do I put it into words? I don't think I really need a hearing for this, am I wrong?

If you don't want a hearing, there's no reason to request one. The other party can ask for a hearing if they think it's necessary. There isn't specific language for not wanting a hearing - the motion just doesn't include language asking for one.
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Lucy, Esq.
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