Motion to Dismiss

[anzwerz]

My question involves court procedures for the state of: AZ

I filed a "Motion to Dismiss" and the judge denied it because he "didn't like the way it was worded." I have since discovered new information and want to file another Motion To Dismiss. Since the first Motion was denied do I need to file a Motion for Leave of Court to Amend the original motion and file the amendment, or, can I file a new motion to dismiss?

Thank you,
Anzwerz

[cmre3456]

I would file a new motion. You shouldn't need the leave of the court to file motions if they are timely. That's found more when you want to amend a complaint or an answer to a complaint. I might also ask the leave of the court to amend or addend an answer to another party's motion, before the motion had a ruling if I was within the allotted time.

[Conrad Hunter]

First, you do not need leave of the court to file a motion to dismiss. There generally is no particular limit to the number of such motions provided they don't reargue issues already decided by the court. If the court denied your motion on the basis of style or sufficiency, then it was not on the merits. You can refile the motion asking for the same relief. Be sure to cite the proper rule and back up your motion with controlling and relevant case law. You do need to have it scheduled for a hearing for the court to consider it in most cases, though federal court does many things without hearings.

[cmre3456]

Very true. The other side may, in its answer ask for a hearing so they can argue it. As Conrad said, you've not yet had a ruling on the merits. This time you probably will so be sure to get all of your authorities quoted in it.

[anzwerz]

Thank you! During a hearing the judge did give me leave to amend my "answer," which I did. Finding all the case law and authorities for my "Memorandum in support of motion to dismiss" is frustrating as the new information I found has to do with a SOL that has run 3 years ago, the Doctrine of Unclean Hands, and failure to appear (the plaintiff and her atty didn't bother to show up for a court-ordered hearing; no explanation or motion for extension. The hearing was rescheduled and it wasn't even mentioned. It's very difficult being a Pro Se litigant, lots of bias and prejudice. The plaintiff's atty called me inept and stupid so many times in some of her pleadings that I took a Paralegal degree course, just to keep up. It didn't cool her disdain and contempt for me.

Anzwerz

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To: Conrad Hunter:

I want to thank all that have responded with such courteous respect. I had joined two other legal forums and at each one my first question was met with verbal attacks and insults. So, thank you for being so kind and patient.

This is one of those courts that does things without hearings or consideration for the RCP that may apply. And, I am up against much bias and prejudice for being Pro Se.
I filed a "Demand for Production/Inspection of documents and the judge said it was too vague, even though I listed the exact documents I wanted, my motion to compel was denied. So, I resubmitted it and so far the plaintiff hasn't bothered to respond, which is always the case with anything I file that requires a response. She has yet to file an answer to my counterclaims, from Dec 2011. I filed an application for default judgment and it has been ignored and not mentioned at a recent hearing.
My goal now is to get through this BS at the state level and get this into the Appeals court.
Thank you all again, it helps to be able to discuss this issue with others that understand.

Anzwerz

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Very true. The other side may, in its answer ask for a hearing so they can argue it. As Conrad said, you've not yet had a ruling on the merits. This time you probably will so be sure to get all of your authorities quoted in it.

Actually, the only rulings have been on my motion to dismiss and the plaintiff's motion for judicial notice, both of which were denied. However, at a hearing on May 5th the judge did have the old case file in front of him and discussed it with the plaintiff's atty. I objected and told the judge he had denied the plaintiff's motion to take judicial notice of the old case. He looked at me in disbelief, had a moment of speechlessness, and went right on discussing it with her.

I have spent countless hours on the Internet gathering authorities to cite for a new motion to dismiss, but, wanted to make sure of how to file a new motion to dismiss so my opponent and the court wouldn't attack it.

Anzwerz

[tex11]

...It's very difficult being a Pro Se litigant, lots of bias and prejudice...
...My goal now is to get through this BS at the state level and get this into the Appeals court.

You are in for a rude awakening if you feel a pro se has a better chance in a state court of appeals. But that is a lesson in the realities of our judicial system often learned the hard way.

...I have spent countless hours on the Internet gathering authorities to cite for a new motion to dismiss, but, wanted to make sure of how to file a new motion to dismiss so my opponent and the court wouldn't attack it...

Case law generally only supports the underlying statutory authority and facts upon which a motion to dismiss is based. You can cite all the case law in the world, but your motion will fail if you fall short on any procedural requirements of your motion. If you search properly, you can find actual motions to dismiss published online with grounds similar to yours. Your motion can mirror those to the extent necessary. Its a good starting point.