What is appropriate motion?

[hermano]

I have mentioned before that I am in federal court defending myself (pro se) against charges of defamation, intentional infliction of emotional distress, blah, blah... against a sociopathic ex-brother in law who is an attorney. My sister is a co-defendant.

I have now been sued individually in local California court, with essentially a refiling of the same charges, with a bunch of other wild accusations tacked on.

HOWEVER, in this initial complaint (which is 43 pages long), he has clearly indicated (which is obviously pretty stupid) that he has been eavesdropping and recording conversations between my sister and myself during the federal trial and is attempting to use this material as part of his claims. He has also indicated that he has been intercepting e-mails, as well. There are multiple felonies -- I know this, and the statutes that have been violated, etc.

I now need to file a motion in federal court, since his illegal and criminal motions are clearly going to prejudice the proceedings. I am thinking that an ex-parte motion might be appropriate, since it would be expedited. I also wish to request sanctions, including dismissal with prejudice. Any thoughts on what approach toward the motion would be most appropriate?

 

[dee_dub]

I now need to file a motion in federal court, since his illegal and criminal motions are clearly going to prejudice the proceedings.

A motion for what?

Assuming you want the evidence barred, and bearing in mind I don't know civil procedure in your jurisdiction and that your terminology may vary, what you probably want to do is demand his list of documents (i.e. the evidence he will rely on) and give notice to produce. Conceivably he might not rely on those documents he gained illegally. If he does, you file a motion to suppress at that time. Perhaps you also bring a motion for summary dismissal if he has no other case against you.

 

[hermano]

I'm thinking along the lines of an ex parte motion for dismissal with prejudice, and order for criminal sanctions.

 

[jharris352]

I'm thinking you better get an attorney or you are going to be in serious trouble. There is ABSOLUTELY NO POSSIBILITY that a Judge would entertain an Ex Parte Motion to Dismiss. The very idea is like saying. . . .never mind just trust me that is just wrong in so many ways I can't even explain it to you.

Ex parte orders are at best temporary emergency motions/orders that prevent some imminent harm until a full hearing can be had. A Judge is absolutely BARRED from hearing anything final on an Ex Parte basis.

I am having a great deal of trouble understanding what you are after.

How are his motions "illegal" ? On what grounds would you be asking for an Expedited hearing?

My friend, and I say that because I believe you are right and I have no animosity toward you, federal civil procedure is one of the most difficult subjects in law school. His motions are not going to "prejudice" anything. They are his side of the story and will get appropriate weight.

I don't even know how to advise you because I haven't seen the pleadings you are referring to. But even if I had, we are WELL INTO unauthorized practice of law by trying to LITIGATE on your behalf. I know you don't want to hear this but you can't handle this with spitballs and rubberbands. You need a real defense.

 

[dee_dub]

I don't think you will succeed in obtaining either of the orders you mention above. The first, for the reasons jharris gives - if his suit is crap, it will be patently evident, but it is premature at this point to apply for a dismissal. It also would be inappropriate to make such an application on a ex parte basis and you would just make yourself look bad.

The second is unlikely because this is a civil matter, and a judge won't hand out criminal sanctions. If the other party has broken the law, go to the police.

 

[jharris352]

Dee is absolutely correct. While the Judge could make a referral to a DA he is unlikely too unless he gets tired of this "attorney" and his frivolous actions. You however can take his statements to a court and use them in a warrant application.

 

[hermano]

I'm thinking you better get an attorney or you are going to be in serious trouble. There is ABSOLUTELY NO POSSIBILITY that a Judge would entertain an Ex Parte Motion to Dismiss. The very idea is like saying. . . .never mind just trust me that is just wrong in so many ways I can't even explain it to you.

Ex parte orders are at best temporary emergency motions/orders that prevent some imminent harm until a full hearing can be had. A Judge is absolutely BARRED from hearing anything final on an Ex Parte basis.

I am having a great deal of trouble understanding what you are after.

How are his motions "illegal" ? On what grounds would you be asking for an Expedited hearing?

I made a mistake - I inadvertently typed "motions" rather than "actions." So the correct situation is this: the plaintiff (my ex brother in law) has clearly indicated through his sworn statements - TO ANOTHER COURT - that he has been surreptitiously listening and recording telephone conversations between the other defendant (my sister) and myself, during the course of pretrial for the federal case. Not once, but multiple times. This is not only a felony in its own right, but it has destroyed any possibility of having full integrity of the instant federal proceedings and future proceedings.

A Dismissal with Prejudice is an appropriate sanction under these conditions, and there is plenty of case law to support this. I guess I am simply asking for the best route to get the US Attorney Gen. involved, who is the one statutorily designated to prosecute this felony. A referral from the current judge would be easiest, of course, but maybe there is a separate application to be made. I would LOVE to have an attorney do this, but there is absolutely no chance financially. That's just the way it is.

 

[jharris352]

Which is it? Are you asking my opinion or telling me how it is? You can take my advice or leave it, but you are incorrect about Federal Civil Procedure. I don't care if he recently robbed a bank, his illegal actions are not grounds to support a Motion to Dismiss with Prejudice. You may be able to exclude evidence, you might be able to report his actions on the STATE level where initial criminal complaints should be made and get some sort of warrant for his arrest, but you aren't going to just say, "hey he admitted to committing a crime so his action should be dismissed." Both could be true. You could have defamed him and he could have illegally broken into your email and wiretapped you. One doesn't excuse the other.

I know you are grasping at straws here. If you had "plenty of case law" to back you up you would know what to do. If he has not stated a claim upon which relief can be granted or there is no issue of fact for a trier of fact then you move for Summary Judgment Rule 56 if I remember correctly. You can only really move for Involuntary Dismissal based on Rule 41(b) if he fails to prosecute the case, fails to follow the rules, or fails to follow a court order. It does not apply if he acted improperly in an unrelated issue. Even though your conversations may have been about the case or him it is unrelated to whether or not you defamed him.

The entire rule is here:

Full Text of FRCP 41(b):
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in the rules, other than a dimissal for lack of jurisidicition, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.

I strongly suggest that you spend about a week reading and understanding the Federal Rules of Civil Procedure. That's a tall order and I am not making fun of you. It can however be done. Here is a good primer on the subject:

Federal Rules of Civil Procedure

Good luck. This is not going to be an easy win, no matter what you think right now.

 

[hermano]

Well, then I'm a little unclear on your point. First you tell me that illegal actions related to the case are not grounds for dismissal, and then cite the "Involuntary Dismissal" section from the FRCP, which is typically triggered by a motion from the defendant or sua sponte by the Court.

And while robbing a bank would be unrelated to the case, the plaintiff, admitting in a sworn statement, that he was recording private conversations between defendants, directly related to the case, would be. I hardly think this is "grasping at straws."

 

[jharris352]

Well then why are you asking my opinion. I've only handled about 500 Federal cases including 2 in the US Supreme Court. What do I know?

The point is that his actions do not, whether you believe me or not, kill his case. You not only can't get ex parte relief, it would be illegal for the Judge to even consider ex parte relief for what you are asking.

If you can't figure out why I cited Rule 42(b) then your case is hopeless. I did it to show you that what you want to do is NOT available. An involuntary Motion to Dismiss is ONLY AVAILABLE in cases where the non-moving party has 1) FAILED TO PROSECUTE, 2) FAILED TO ABIDE BY A COURT ORDER, or 3) FAILED TO FOLLOW FRCP.

Now if you are having a hard time understanding that your Motion to Dismiss will not lie, then I don't know what to say.

In a TRIAL, your point will be good information. But right now, the fact that he MIGHT have done something illegal will not, I repeat, WILL NOT, be enough to get your case dismissed involuntarily under Rule 42(b).

Please understand, I do not NEED to win this argument. If you don't believe me file a MOTION under Rule 42(b) and see what happens. Good luck. You are in seriously deep crap if you believe that you can get an ex parte hearing on rule 42(b).