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
... How do you feel anout Arsenal's chances this year?