Defendant answered complaint with motion for summary judgement???

[quarrelsome]

In Federal Court, defendant answered complaint with motion for summary judgement. Rule 12d refers to motions presenting matters outside of pleadings and not excluded by court must be handled as rule 56 (summary judgement). However the defendant only refers to issues plead in original complaint in motion for SJ. Is this improper under rule 12? The defendant has not answered and we are not yet at issue! What is best way to proceed to counter this as SJ can be very final. Thank you in advance for your thoughts.

 

[quarrelsome]

any procedural gurus around here to comment?

 

[army judge]

You need a lawyer. This is far too complex and detailed for an Internet forum. As far as the form and substance of any motion, that's for the court to determine.

 

[Michael Wechsler]

quarrelsome, I agree with army judge that this is a complex issue and a public online forum is probably not an appropriate way to help you with a case as complex as this one and in Federal Court. I'm not quite sure that what you're saying is consistent or lacks an understanding on how Rule 12 works and the presentation of defenses at that stage.

 

[fredrikklaw]

QUARRELSOME:

The Federal Rules of Civil Procedure can seem quite Draconian at times and the (compared to state and local rules) breakneck speed at which matters proceed can and does overwhelm even the most seasoned of attorneys, and this is just at the lowest level; The U.S. District Courts. Appeal a case to a U.S. Court of Appeals and the Rules of Procedure become even faster and more demanding to the point where Briefs (for example) are so heavily regulated in their length and breadth that even the color of the cover used to bind the Brief is proscribed.

So, whereas in a state court a party cannot file a Summary Judgment Motion until 60 days from the date of general appearance in the action or proceeding of each party, a party in Federal Court can file for Summary Judgment at any time until 30 days after close of discovery deadlines and he can do so without first answering the complaint; in fact, a party should absolutely move for Summary Judgment before answering the complaint because the tenets of an answer and that of summary judgment occupy two very opposite poles and the party who answers the complaint first and then moves for summary judgment manages only to contradict himself and assure victory for his opponent.

Now, I think a little clarification regarding Rules 56 and Rule 12 and their relations to presenting matters outside of the scope of a pleading, is in order.

Rule 56 of Federal Rules of Civil Procedure (F.R.C.P.) deals with drudges of filing a Summary Judgment Motion, like when it is appropriate and what should be included in either the moving papers or the response in opposition to it.
The 7 Motions contained in Rule 12 (F.R.C.P.) however are objections (Defenses) to the complaint, known also as Provisional Remedies. A party making a motion based on one or more those premises is afforded the privilege of making only a special appearance in the case, meaning that he will not be conferring personal jurisdiction on the court as long as he confines his argument within the parameters of the motion.

Let's say the Defendant files a Rule 12 (b)(6) Motion, which is failure to state a claim upon which relief can be granted and is the first cousin of the States' Demurer. Therefore, as the rules proscribe for such a motion, only matters that appear on the face of the complaint can be argued against and nothing else. So if the Defendant's claim for relief is that the action is time barred (statute of limitation has expired), then he should confine his argument to that point and that point alone and leave it be.

But the second he starts arguing matters not within the scope of the motion, then the rules say that the motion will automatically be treated as one for Summary Judgment. So if Joe starts by saying that the Plaintiff's complaint clearly says the injury happened 10 years ago and he is 6 years too late to recover anything, then gets cocky and argues against other matters in the complaint, then his Special Appearance turns into a General Appearance and a Rule 12 (b)(6) will be treated as if the moving party had filed for a Summary Judgment.

And you are right of course in saying that a Summary Judgment is a motion of finality, because once denied, the case will be dismissed and the litigation is over. What the Defendant is saying here by filing Summary Judgment, is that you have not said anything in the complaint that can be taken issue with and that there is no defense to it. Hence, the words: no issue as to any material facts.

Now, a Summary Judgment is a very specific motion in its make-up in that the movant has to refer to every line and verse of your complaint he opposes in his motion. As such there is a possibility that the Judge may see in the complaint something that is of issue which should be left to the jury to decide, in which case he will grant parts and deny other parts of the motion. In other words, it will be a partial decision. If however the Judge does agree with the entire movant's argument, then you will be dismissed from the court immediately.

In what will be your response to the Summary Judgment, you simply must include a SWORN AFFIDAVIT in which you will declare under the penalty of perjury that you were genuinely and despite all due diligence are unaware if there are any factual issues. This might not swing the pendulum your way entirely, but will give the Judge a reason to allow you time and order you to file a First Amended Complaint which shall keep you alive in the case.

fredrikklaw

 

[quarrelsome]

thanks for replies. I am still processing yours Fred ... How do you feel anout Arsenal's chances this year?

 

[fredrikklaw]

Arsenal crowned Champions with 3 games to go!

QUARRELSOME:

With Sir Alex (Ferguson) retired (THANK GOD!), Man United is not going to be the same force under Moyes who is way out of his league, NO WAY, and Man City will fall apart as was always on the cards for a team brought together piecemeal and by force of money, and I really get the feeling that my beloved Arsenal with Wenger at the helm is going to go right for the jugular of the EPL Title.

Oh, and as for Chelsea; well, as magnificent and world class a manager that Mourinho is, some things just cannot be replicated, which was the awesome Chelsea team of 4 years ago. It is a bit like marrying your ex-wife again. And did somebody say Tottenham Hotspur?

Ahhemmmm! O.K., well; back to the law and vagaries of Civil Procedure.

fredrikklaw

 

[quarrelsome]

Fred, I am going to try to contact you outside this forum. I have found some contact info. If you would like to leave particular contact information here, please do so. Or if you prefer not to be contacted outside this forum. Please say so as well. Thanks.

 

[fredrikklaw]

By all means!

QUARRELSOME:

By all means, and here is the e-mail address I use for legal communicaitons and you are most welcome to contact me at this address: fredrikklaw11@yahoo.com.

fredrikklaw