Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal
This answer was rated:

Is NOT refuting a Defense response on an amended complaint

In a FEDERAL court Civil...

In a FEDERAL court Civil case, is NOT refuting a Defense response on an amended complaint moving to dismiss, that has several counts to it, grounds for the Court to conclude the plaintiff concedes Defense arguments? And if so, can this be grounds for Plaintiff to appeal?

Show More
Show Less
Ask Your Own Legal Question
Answered in 6 minutes by:
2/10/2014
Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 44,462
Experience: 30 years in civil, probate, real estate, elder law
Verified

Ray :

Hi and welcome back.Ray here to help you today.

Ray :

You could file a motion for partial summary judgment concerning the issues the defense did not refute.

Customer:

The PLAINTIFF did NOT refulte.

Customer:

Plaintiff filed a 7 count civil complaint.

Customer:

Defense moved to dismiss, going through each count.

Ray :

Sorry you can still file a partial summary judgment under the rules.

Ray : Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.


(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.


(c) Procedures.


(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:


(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or


(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.


(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.


(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.


(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.


(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:


(1) defer considering the motion or deny it;


(2) allow time to obtain affidavits or declarations or to take discovery; or


(3) issue any other appropriate order.


(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:


(1) give an opportunity to properly support or address the fact;


(2) consider the fact undisputed for purposes of the motion;


(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or


(4) issue any other appropriate order.


(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:


(1) grant summary judgment for a nonmovant;


(2) grant the motion on grounds not raised by a party;or


(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.


(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.


(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

Customer:

Civil theft, conversion and one other related count were NOT responded to by the Plaintiff in response to the Motion to Dismiss.

Ray :

This would be the means here to seek to limit the issues and have court rule in your favor on these issues.

Customer:

The court has already Ordered a dismissal with prejudice. Trying to decide to appeal or not.

Ray :

So they ruled in your favor here.

Customer:

Negative.

Customer:

I'm the plaintiff.

Ray :

Ok so you have appeal rights but they are time limited.

Customer:

the 30th day landed on a Saturday, so I believe that extends to Monday.

Ray :

That would be correct you get until then to decide.

Ray :

Rules for reference.

Customer:

Ray, is the original question at the top valid?

Ray :

You would have the right to appeal the dismissal of the suit here and seek reinstatrment on appeal.

Customer:

But an appeal must have merits. Without giving advice, in principle, is the original question valid?

Ray :

You will have to argue that your complaint and any other pleadings did put it all in dispute here.

Ray :

Start with notice of appeal here.

Customer:

So a district court judge's opinion can be reversed?

Ray :

Yes you would have a right to appeal the dismissal.You just need to do so within the time frames.

Customer:

Is there a tendency for for Appellate Courts to dismiss pro se actions out of hand?

Ray :

Well honestly the odds are long for an appellant.But it does happen that they reverse some dismissals.

Ray :

As long as you realize it is an uphill struggle no harm in trying.

Customer:

Are there any statistics for how long these odds are?

Ray :

I would tell you that maybe one out of five gets reversed on appeal.Say a 20% chance ballpark.

Ray :

Your court of appeals..

Ray :

More self help

Customer:

Ray, I must return to my original question, and forgive me if I missed your answer in this thread, but is NOT refuting in a Plaintiff's RESPONSE the arguments made by the Defense on Civil Theft and Conversion, GROUNDS for the Court to conclude Plaintiff is not contesting the Defense Arguments?

Ray :

You certainly may want to give it a shot on appeal here.

Ray :

All I can tell you on that issue is the Federal Judge here felt that it was grounds to dismiss the appeal.The court would in this case have reviewed the pleadings and felt like your pleadings were lacking and that dismissal was appropriate.

Customer:

Thanks.

Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 44,462
Experience: 30 years in civil, probate, real estate, elder law
Verified
Ray and 87 other Legal Specialists are ready to help you
Ask your own question now
Ask Ray Your Own Question
Ray
Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 44,462
44,462 Satisfied Customers
Experience: 30 years in civil, probate, real estate, elder law

Ray is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,353 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,727 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

42,358 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

292 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
Federal court. If judge issued an Order for a case status
Second opinion] Federal court. If judge issued an Order for a case status report "no later than 7 days" from 12/27/2017, what is the latest possible date and hour to respond? And what happens if that … read more
Amadeo Rivera
Amadeo Rivera
JD
82 satisfied customers
I want to file a Complaint in Federal court against the
I want to file a Complaint in Federal court against the Federal Energy Regulatory Commission under the Administrative Procedures Act. The case meets all 4 prongs of the test to determine if the facts … read more
INFOLAWYER
INFOLAWYER
Attorney
Doctoral Degree
20,727 satisfied customers
I have sued a family Court judge in Federal Court under US…
I have sued a family Court judge in Federal Court under US…However, a duly elected or appointed judge who makes decisions within the scope of his judicial authority and upon the presence of subject ma… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
42,358 satisfied customers
When a federal court concludes that it lacks subject-matter
When a federal court concludes that it lacks subject-matter jurisdiction, and then states "the court must dismiss the complaint in its entirety." Do they mean, remand it to state court if it has been … read more
Legal Expert Justin
Legal Expert Justin
Law Degree
229 satisfied customers
How do I file a legal claim in Federal Court? I live in
I live in Idaho, but the claim is of national interest. … read more
INFOLAWYER
INFOLAWYER
Attorney
Doctoral Degree
20,727 satisfied customers
In a federal court contract dispute can a pro se plaintiff
In a federal court contract dispute can a pro se plaintiff who prevails apply for reimbursement of his out of pocket attorneys fees in those cases where an attorney assisted him?… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
I have a docket sheet of a federal court case, I need help
I have a docket sheet of a federal court case, I need help to determine result of the case.… read more
Michael Bradley
Michael Bradley
JD
1,191 satisfied customers
I have won my wages case in newyork at the federal court but
Hi i have won my wages case in newyork at the federal court but the defendant fails to pay me what next step do i take … read more
Damien Bosco
Damien Bosco
3,370 satisfied customers
When a defendant files a complaint in federal court how many
when a defendant files a complaint in federal court how many days does the defendant have to respond to complaint. I read on line 21 days plus 60 days for date of filing . let me give u a example if I… read more
LegalGems
LegalGems
Juris Doctorate
10,647 satisfied customers
How can I move Federal court case to state court and what is
How can I move Federal court case to state court and what is the process to cancel settle and or close case to remove from records … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
42,358 satisfied customers
When requesting documents from the federal court, they ask
When requesting documents from the federal court, they ask whether you want the documents certified or not. What's the legal difference from receiving documents from the court that have been certified… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I got approved in federal court for disability after many
I got approved in federal court for disability after many denials and now they tell me I cannot get SSI because of my husband's income and that I don't have current credits for SSDI because FICA was n… read more
Ray
Ray
Lawyer
44,462 satisfied customers
In federal court can prior settlement communications be
In federal court can prior settlement communications be discussed in a motion to compel arbitration?… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,290 satisfied customers
I just received a subpoena today from the Federal Court in
I just received a subpoena today from the Federal Court in the Eastern District of North Carolina to give a deposition testimony as a witness in a federal civil lawsuit at an attorney's office in Rale… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I am the plaintiff in federal court southern district new
I am the plaintiff in federal court southern district new york. Before the case started the defendents made a motion to dismiss. My lawyers filed an amended complaint to answer the motion. The A?C was… read more
Ray
Ray
Lawyer
44,462 satisfied customers
How can I get Federal Court records for in cases Roanoke Va,
how can I get Federal Court records for in cases Roanoke Va … read more
Ely
Ely
Counselor at Law
Juris Doctor
24,353 satisfied customers
Can a ruling in a federal court on a civil matter be quoted
Can a ruling in a federal court on a civil matter be quoted as a precedent in a Florida State civil case of the exact same type? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
If the federal court grants a party's motion to dismiss with
If the federal court grants a party's motion to dismiss with leave to amend, and the amended pleading contains the same or new deficiencies, can the party file a second motion to dismiss?… read more
Andrew
Andrew
Attorney
Juris Doctorate
197 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x