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Roger, Attorney
Category: Legal
Satisfied Customers: 31765
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I plan to file a motion with the court and serve papers also

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I plan to file a motion with the court and serve papers also on the opposing party. A couple of questions in regards. First, does the opposing party HAVE to file a response? Second, assuming the opposing party knows little about the legal process how will they know the whens, hows, and wheres of filing a response--will the court contact them after the court receives my motion? Lastly if the opposing party does file a response will I be served with a copy?
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for using JA! I'll be glad to assist you.

1. No, the opposing party is not required to respond, but if he/she/they fail to respond, then the motion can be won by default.

2. There's no real instructions regarding how or when to respond attached to the motion as there is with a pleading. Thus, if the party received the motion, they'd likely need to consult an attorney or review the rules of procedure to determine when to respond/time to respond, where to file (with the clerk), etc.

3. Yes, you should be served with a copy as a certificate of service - - certifying that the response was served on you - - is generally required.
Customer: replied 4 years ago.

If the opposing party does not respond and it turns out there is a hearing, will the opposing party be invited and notified of that hearing? How important is the written reply to the original motion at the hearing itself?


The motion I intend to file is actually one to vacate a judgment based on Rule 60(d)(3) on the grounds of fraud upon the court which is judicial bias. Say the opposing party doesn't answer the motion then doesn't show up at the hearing either--might that result in a "default" in this type of instance, or no?

Yes, the defendant would have to be noticed of the hearing. Usually, the party that files the motion must file a notice of hearing that sets the date, time and location of the hearing. As for the other party responding, sometimes the judge will allow a verbal response and sometimes the judge won't - - it just depends on the judge.

A post-judgment motion is different that a pre-judgment one. It would be very unlikely for the court to vacate a judgment if the other party doesn't respond. This is so because the terms of overturning a post-judgment motion under rule 60 is outlined in the rule. Thus, even if the other party doesn't respond, the court could still uphold the judgment unless the criteria of rule 60 is met.
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