DOCSLIB.ORG

Responding to a Complaint: Kentucky

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Responding to a Complaint: Kentucky View the online version at http://us.practicallaw.com/w-000-1823 Responding to a Complaint: Kentucky COLIN H. LINDSAY AND MATTHEW BARSZCZ, DINSMORE & SHOHL LLP, WITH PRACTICAL LAW LITIGATION A Q&A guide to responding to a complaint in a PRE-ANSWER RESPONSES trial court of general jurisdiction in Kentucky. This 4. If motions, demurrers or the like are permitted: Q&A addresses the time to respond, extending Are there any preliminary requirements (for example, meet and the time to respond, pre-answer motions, confer with the plaintiff's counsel, have a conference with the court)? What grounds can be asserted (for example, subject matter answers, replies to the answer, counterclaims, jurisdiction, personal jurisdiction, failure to state a claim)? crossclaims, third-party claims (also known as Are available grounds that are not asserted waived (either just impleader) and defensive interpleader. for pre-answer litigation or for the whole case)? What papers are required (for example, notice of motion, motion, affidavit, memorandum of law)? OVERVIEW OF RESPONDING TO A STATE COMPLAINT Can the defendant offer evidence outside the complaint? 1. When must a defendant respond to the complaint? When and how does the plaintiff respond? Can the defendant reply? If so, when and how? A defendant must serve its answer within 20 days after service of the Does the court hear oral argument before deciding? summons (Ky. R. Civ. P. 12.01). Is discovery stayed until the court decides? If the court does not dismiss the complaint, how much time 2. How, if at all, can one obtain an extension of time to does the defendant have to file an answer? respond (for example, by stipulation, so-ordered stipulation, ex parte motion, motion on notice) MOTION TO DISMISS Preliminary Requirements Parties often stipulate to an extension between themselves, however Kentucky case law requires this agreement to be reduced to an There are no preliminary requirements to filing a motion to dismiss in agreed order signed by the court (Moffitt v. Asher, 302 S.W.2d 102 (Ky. Kentucky. 1957)). Grounds Asserted A motion to dismiss may be made on any of the following grounds: 3. What types of responses are permitted (for example, answer, motion, demurrer, special appearance)? Lack of subject matter jurisdiction. Lack of personal jurisdiction. In Kentucky, the following types of responses are permitted: Improper venue. An answer (Ky. R. Civ. P. 8.03). Insufficiency of process. A motion to dismiss (Ky. R. Civ. P. 12.02). Insufficiency of service of process. A motion for a more definite statement (Ky. R. Civ. P. 12.05). Failure to state a claim upon which relief can be granted. A motion to strike (Ky. R. Civ. P. 12.06). Failure to join an indispensable party. (Ky. R. Civ. P. 12.02.) © 2014 Thomson Reuters. All rights reserved. Responding to a Complaint: Kentucky Waiver Serving an Answer or Other Response If a party makes a motion under Rule 12 of the Kentucky Rules of Civil If the court denies a motion to dismiss, the defendant has ten days Procedure, but omits any defense or objection available under Rule from the date of entry of the court's order in which to serve its answer 12 and which Rule 12 permits to be made by motion, the party cannot (Ky. R. Civ. P. 12.01). later make a motion on the omitted defense or objection, other than: MOTIONS FOR A MORE DEFINITE STATEMENT Failure to state a claim upon which relief can be granted. Failure to join an indispensable party. Preliminary Requirements Failure to state a legal claim to a defense. There are no preliminary requirements to filing a motion for a more definite statement. (Ky. Rs. Civ. P. 12.07 and 12.08.) Grounds Asserted Required Papers A motion for a more definite statement can be filed only when the The Kentucky Rules of Civil Procedure do not set out what papers are complaint is so vague and ambiguous that the defendant cannot required for a motion to dismiss. Counsel should check the local rules respond. A defendant must point out the defects and the details in a given jurisdiction, as different courts throughout Kentucky have desired. (Ky. R. Civ. P. 12.05.) different requirements. Some courts require only a motion and other courts require a separate memorandum of law. Waiver Outside Evidence A defendant cannot complain about the lack of particularity in the complaint where it does not seek a more definite statement Scott( v. In most cases, presentation of evidence outside the pleading itself is Farmers State Bank, 410 S.W.2d 717 (Ky. 1966)). disfavored. If a court accepts outside evidence, a motion to dismiss for failure to state a claim upon which relief can be granted converts into Required Papers a motion for summary judgment (Ky. R. Civ. P. 12.02). The Kentucky Rules of Civil Procedure do not set out what papers are When a plaintiff attaches documents as exhibits to a complaint (such required for a motion for a more definite statement. Before filing a as in a breach of contract claim), those exhibits are treated as part motion, counsel should check the local rules in a given jurisdiction, as of the pleading for purposes of a motion to dismiss (Underwriter's different courts throughout Kentucky have their own local rules. at Lloyd's v. Abundance Coal, Inc., 352 S.W.3d 594, 596 n.2 (Ky. App. 2011)). Outside Evidence The nature of a motion for a more definite statement does not lend Response by Plaintiffs itself to the presentation of outside evidence. A plaintiff is typically allowed to file a response to a motion to dis- miss, although there is no time period set out by the Kentucky Rules Response by Plaintiffs of Civil Procedure about when that response must be filed. Counsel A plaintiff is typically allowed to file a response to a motion for a more should check the local rules in a given jurisdiction, as different courts definite statement, although there is no time period set out by the throughout Kentucky have different rules on responsive pleading. Kentucky Rules of Civil Procedure about when that response must be Reply by Defendants filed. Before filing a response, counsel should check the local rules in a given jurisdiction, as different courts throughout Kentucky have It is customary in Kentucky to allow the defendant a reply as a matter their own local rules. of right. There is no rule that specifically addresses this issue. Counsel should check the local rules in a given jurisdiction, as different courts Reply by Defendants throughout Kentucky have their own local rules concerning motion It is customary in Kentucky to allow the defendant a reply as a practice. matter of right. There is no rule that specifically addresses this issue. Oral Arguments Before filing a reply, counsel should check the local rules in a given jurisdiction, as different courts throughout Kentucky have their own A motion to dismiss must be heard by the court before a trial (Ky. R. local rules. Civ. P. 12.04). Enforcement of this rule varies under local practice. Oral Argument Stay of Discovery The Kentucky Rules of Civil Procedure do not require oral argument Discovery is not automatically stayed while a motion to dismiss is on a motion for a more definite statement. Counsel should check pending, although courts have discretion to stay discovery pending the local rules in a given jurisdiction, as different courts throughout a motion to dismiss. This can be accomplished by filing a separate Kentucky have their own local rules for oral arguments on motions for motion to stay discovery. (Clark v. Cincinnati Ins. Co., No. 2005-CA- a more definite statement. 000356-MR, 2006 WL 1044461, at *2 (Ky. App. Apr. 21, 2006).) 2 © 2014 Thomson Reuters. All rights reserved. Responding to a Complaint: Kentucky Stay of Discovery Oral Argument Discovery is not automatically stayed while a motion for a more The Kentucky Rules of Civil Procedure do not require oral argument definite statement is pending, although courts have discretion to stay on a motion to strike. Counsel should check the local rules in a given discovery pending a motion for a more definite statement. This can jurisdiction, as different courts throughout Kentucky have their own be accomplished by filing a separate motion to stay discovery. Clark,( local rules for oral argument on a motion to strike. 2006 WL 1044461, at *2.) Stay of Discovery Serving an Answer or Other Response Discovery is not automatically stayed while a motion to strike is pend- If the court denies a motion for a more definite statement, the defen- ing, although courts have discretion to stay discovery pending a mo- dant has ten days from the date of entry of the court's order in which tion to strike. This can be accomplished by filing a separate motion to to serve its answer (Ky. R. Civ. P. 12.01). stay discovery. (Clark, 2006 WL 1044461, at *2.) Serving an Answer or Other Response MOTION TO STRIKE If the court denies a motion to strike, the defendant has ten days from Preliminary Requirements the date of entry of the court's order in which to serve its answer (Ky. There are no preliminary requirements for motions to strike. R. Civ. P. 12.01). Grounds Asserted ANSWERING THE COMPLAINT A motion to strike can be filed to request that the court strike any 5. What are the required and optional contents of an answer? sham, redundant, immaterial, impertinent, or scandalous matter (Ky. R. Civ. P. 12.06). REQUIRED CONTENTS Waiver In Kentucky, an answer must indicate whether the defendant is admitting or denying the allegations in the complaint (Ky.
Load more

Recommended publications
  • Kentucky in the 1880S: an Exploration in Historical Demography Thomas R
    The Kentucky Review Volume 3 | Number 2 Article 5 1982 Kentucky in the 1880s: An Exploration in Historical Demography Thomas R. Ford University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/kentucky-review Part of the Social and Behavioral Sciences Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Ford, Thomas R. (1982) "Kentucky in the 1880s: An Exploration in Historical Demography," The Kentucky Review: Vol. 3 : No. 2 , Article 5. Available at: https://uknowledge.uky.edu/kentucky-review/vol3/iss2/5 This Article is brought to you for free and open access by the University of Kentucky Libraries at UKnowledge. It has been accepted for inclusion in The Kentucky Review by an authorized editor of UKnowledge. For more information, please contact [email protected]. Kentucky in the 1880s: An Exploration in Historical Demography* e c Thomas R. Ford r s F t.; ~ The early years of a decade are frustrating for social demographers t. like myself who are concerned with the social causes and G consequences of population changes. Social data from the most recent census have generally not yet become available for analysis s while those from the previous census are too dated to be of current s interest and too recent to have acquired historical value. That is c one of the reasons why, when faced with the necessity of preparing c a scholarly lecture in my field, I chose to stray a bit and deal with a historical topic.
    [Show full text]
  • United States District Court Eastern District of Kentucky Lexington Division
    Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 1 of 5 - Page ID#: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON DIVISION CIVIL ACTION NO. 05-137-JBC EAST KENTUCKY POWER COOPERATIVE, INC., PLAINTIFF, V. MEMORANDUM OPINION AND ORDER GREENWICH INSURANCE COMPANY, DEFENDANT. * * * * * * * * * * * This matter is before the court on the motion of the defendant, Greenwich Insurance Company (“Greenwich”), for leave to file a third party complaint (DE 4), and on the motion of Lexington Coal Company (“LCC”) to intervene and transfer to Bankruptcy Court (DE 7, 8). The court construes the plaintiff’s responses as motions to remand (DE 5, 9). The court, having reviewed the record and being otherwise sufficiently advised, will grant Greenwich’s motion, will reserve ruling on LCC’s motion, and will deny the plaintiff’s motion. Background and procedural history Plaintiff, East Kentucky Power Cooperative (“EKPC”), is a resident of the Commonwealth of Kentucky. It filed a complaint in Clark County Circuit Court against Greenwich, a foreign company, alleging breach of contract and breach of a covenant of good faith and fair dealing. Greenwich removed the case to this court invoking diversity jurisdiction and now seeks to implead LCC and interplead LCC and EKPC. EKPC objects to neither procedural device. However, it is concerned that the impleader of LCC, also a Kentucky resident, will destroy this court’s diversity Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 2 of 5 - Page ID#: <pageID> jurisdiction. Analysis Greenwich’s motion for leave to file a third-party complaint Impleader is proper under Rule 14 where a third party may be liable to a defendant for all or part of a plaintiff’s claim.
    [Show full text]
  • Special Appearance
    Special Appearance A special appearance is the only means for contesting a Texas state court’s jurisdiction over the defendant’s person or property.1 Do not confuse the special appearance with a motion to quash service (a general appearance that, if successful, results only in a new citation)2 or a plea to the jurisdiction (which attacks subject matter jurisdiction).3 Special Appearance Procedure Under Rule 120a Reagan W. Simpson The special appearance must follow Texas Rule of Civil Procedure 120a. Rule Partner 120a requires a sworn motion. While the motion should have “special [email protected] appearance” in its title, the substance of any pleading is controlling.4 A “special appearance” that asserts a forum selection clause is not a special appearance.5 But a wrong title is not fatal if in substance the pleading challenges personal jurisdiction.6 Regardless of title, the special appearance must be sworn, and the client is the best candidate for the verification. But an unsworn special appearance does not automatically waive a special appearance, because it can be cured. Rule 120a(1) allows amendments to cure any defects without imposing any deadline.7 In fact, a curative amendment can be filed even after denial of the special appearance, although the prudent practitioner will follow all procedures and promptly cure any defects.8 Rebecca Phelps Not all defects may be curable. Presumably, there is no way to cure an Associate untimely or unfiled special appearance,9 and there may be no post-hearing cure [email protected]
    [Show full text]
  • Panhandle Collections, Inc., a Nebraska Corporation, Appellee, V
    Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/30/2021 01:12 PM CDT - 924 - Nebraska Court of Appeals Advance Sheets 28 Nebraska Appellate Reports PANHANDLE COLLECTIONS v. SINGH Cite as 28 Neb. App. 924 Panhandle Collections, Inc., a Nebraska corporation, appellee, v. Kuldip Singh, appellant. ___ N.W.2d ___ Filed September 29, 2020. No. A-19-933. 1. Courts: Appeal and Error. The district court and higher appellate courts generally review appeals from the county court for error appear- ing on the record. 2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. ____: ____. In instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record. 4. Jurisdiction: Parties: Waiver. The absence of an indispensable party to a controversy deprives the court of subject matter jurisdiction to deter- mine the controversy and cannot be waived. 5. Parties. The language of Neb. Rev. Stat. § 25-323 (Reissue 2016) tracks the traditional distinction between the necessary and indispen- sable parties. 6. Parties: Words and Phrases. Necessary parties are parties who have an interest in the controversy, and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their absence. 7. ____: ____. Indispensable parties are parties whose interest is such that a final decree cannot be entered without affecting them, or that termina- tion of controversy in their absence would be inconsistent with equity.
    [Show full text]
  • 2021 Schedule & Results Mississippi State Kentucky the Rotation What's
    2021 Schedule & Results Mississippi State Kentucky The Rotation February (5-2) Record (SEC): 17-7 (2-4) Record (SEC): 18-4 (5-1) Thursday, April 1, 2021 State Farm College Baseball Showdown (Arlington, Texas; Globe Life Field) H/A/N: 12-5 / 2-1 / 3-1 H/A/N: 15-4 / 3-0 / -- MSU: Christian MacLeod, RHP, Fr. (3Y) 2-2, 3.33 ERA 20 vs. No. 9 Texas (1) FloBaseball.tv W, 8-3 21 vs. No. 10 TCU (1) FloBaseball.tv L, 2-3 Rankings: Baseball America - 5, CBN - 12 Rankings: Baseball America - NR, CBN - 21 UK: Ryan Hagenow, RHP, Fr. 1-0, 1.00 ERA D1Baseball - 8, NCBWA - 8 D1Baseball - NR, NCBWA - NR 22 vs. No. 3 Texas Tech (1) FloBaseball.tv W, 11-5 Friday, April 2, 2021 Perfect Game - 13, USA Today - 7 Perfect Game - NR, USA Today - NR 23 JACKSON STATE SECN+ postponed MSU: Will Bednar, RHP, Fr. (2Y) 1-0, 2.12 ERA 24 JACKSON STATE SECN+ W, 7-3 26 TULANE SECN+ L, 3-7 Head Coach: Chris Lemonis Head Coach: Nick Mingione UK: Cole Stupp, RHP, So. 3-0, 1.47 ERA Record at MSU (Yrs.): 81-26 (3rd) Record at UK (Yrs.): 132-84 (5th) 27 TULANE SECN+ W, 9-5 Saturday, April 3, 2021 28 TULANE SECN+ W, 5-4 Career Record (Yrs): 222-117-2 (7th) Career Record (Yrs): Same MSU: Jackson Fristoe, RHP, Fr. 2-2, 3.28 ERA March (12-5) Trustmark Park (Pearl, Miss.) Batting Average: .270 Batting Average: .300 UK: Zack Lee, RHP, So.
    [Show full text]
  • United States District Court Central District of California
    1 O 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 11 TYLER ARMES, an individual, Case № 2:20-cv-03212-ODW (PJWx) 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ 14 MOTION TO DISMISS THE FIRST AUSTIN RICHARD POST p/k/a POST AMENDED COMPLAINT MALONE, an individual; ADAM KING 15 FEENEY p/k/a FRANK DUKES, an 16 individual; UNIVERSAL MUSIC GROUP, INC., a Delaware corporation; 17 DOES 1 through 10, inclusive, 18 Defendants. 19 I. INTRODUCTION 20 Defendant Austin Richard Post, professionally known as Post Malone (“Post”), 21 is a well-known musical artist. (See generally First Am. Compl. (“FAC”) ¶ 1, ECF 22 No. 24.) Plaintiff Tyler Armes claims he co-authored both the composition and sound 23 recording of Post’s popular song Circles (“Composition” and “Recording,” 24 respectively) and deserves credit therefor and a share of the profits from Circle’s 25 success. (Id.) Now before the Court is a Motion to Dismiss the FAC (“Motion”) by 26 Defendants Post, Adam King Feeney, professionally known as Frank Dukes 27 (“Dukes”), and Republic Records, erroneously sued as Universal Music Group, Inc. 28 (collectively, “Defendants”). (Mot. to Dismiss (“Mot.”), ECF No. 28.) The matter is 1 fully briefed. (See Mot.; Opp’n to Mot. (“Opp’n”), ECF No. 29; Reply ISO Mot. 2 (“Reply”), ECF No. 31.) For the following reasons, the Court GRANTS in part and 3 DENIES in part the Motion.1 4 II. BACKGROUND 5 A. Relevant Facts 6 Armes, also a professional musician, is the bandleader, writer, and producer for 7 the bands “Down With Webster” and “Honors.” (FAC ¶ 2.) Armes alleges that Post’s 8 manager, Dre London, has encouraged Armes to collaborate with Post numerous 9 times.
    [Show full text]
  • U:\Judgehovland\Law Clerks\Civil\Motions to Dismiss\Wilkinson V. Sbtwpd.Wpd
    Case 4:08-cv-00087-DLH-CSM Document 118 Filed 05/25/10 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHWESTERN DIVISION Peak North Dakota, LLC, a Colorado ) limited liability company; Peak Energy ) Resources, LLC, a Delaware limited ) liability company, Jack Vaughn, Alex ) McLean, and Matt Gray, ) ORDER ) Plaintiffs, ) ) vs. ) Case No. 4:08-cv-087 ) Wilbur Wilkinson, Standing Bear ) Traders, LLC, a North Dakota limited ) liability company, and the Three Affiliated ) Tribes, Fort Berthold District Court, ) ) Defendants. ) _________________________________________________________________________ ) Wilbur Wilkinson, ) ) Third-Party Plaintiff, ) ) vs. ) ) Standing Bear Traders, LLC, ) a North Dakota limited liability company, ) and Margarita Burciaga-Taylor and ) Richard Howell, individually and ) d/b/a Standing Bear Traders, LLC, ) ) Third-Party Defendants. ) Before the Court is Standing Bear Traders, LLC (SBT) and Margarita Burciaga-Taylor’s (Taylor) “Motion to Dismiss Wilkinson’s Third Party Complaint or, Alternatively, to Abstain from Exercising Jurisdiction Over Wilkinson’s Third Party Complaint” filed on January 15, 2010. See Docket No. 83. Third-Party Plaintiff Wilbur Wilkinson (Wilkinson) filed a response in opposition 1 Case 4:08-cv-00087-DLH-CSM Document 118 Filed 05/25/10 Page 2 of 12 to the motion on March 10, 2010. See Docket No. 106. Taylor and SBT filed a reply brief on March 24, 2010. See Docket No. 108. Taylor and SBT filed a supplemental appendix on March 26, 2010. See Docket No. 111. For the reasons set forth below, the motion is granted in part and denied in part. I. BACKGROUND Peak North Dakota, LLC (Peak North) is a limited liability company organized under Colorado law and authorized to do business as a foreign limited liability company in North Dakota.
    [Show full text]
  • What Is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer
    What is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer A summary judgment motion was filed in your case. A summary judgment motion asks the court to decide this case without having a trial. Here are some important things to know. What is summary judgment? Summary judgment is a way for one party to win their case without a trial. The party can ask for summary judgment for part of the case or for the whole case. What happens if I ignore the motion? If you do not respond to the summary judgment motion, you can lose your case without the judge hearing from you. If you are the plaintiff or petitioner in the case, that means that your case can be dismissed. If you are the defendant or respondent, that means the plaintiff or petitioner can get everything they asked for in the complaint. How do I respond to a summary judgment motion? You can file a brief and tell the judge about the law and the facts that support your side of the case. A brief is not evidence and the facts that you write about in your brief need to be supported by evidence. You can file sworn affidavits, declarations, and other paperwork to support your case. An affidavit or declaration is a sworn statement of fact that is based on personal knowledge and is admissible as evidence. If you are a plaintiff or petitioner, you cannot win a summary judgment motion just by saying what is in your complaint. Instead, you need to give evidence such as affidavits or declarations.
    [Show full text]
  • Attorney Case Opening Interpleader Complaint Disputed Ownership Fund 28:1335
    Civil – Case Opening - Attorney April 2017 ATTORNEY CASE OPENING INTERPLEADER COMPLAINT DISPUTED OWNERSHIP FUND 28:1335 An equitable proceeding brought by a third person to have a court determine the ownership rights of rival claimants to the same money or property that is held by that third person. The IRS defines a disputed ownership fund (DOF) as a fund established to hold money or property that is subject to conflicting claims of ownership in the registry of the court. Interpleader funds are deposited with the court by a non-owner, third party and invested in the court’s registry pending the court’s determination of ownership and entry of a disbursement order. I. CASE OPENER 1. Open a Civil Case (Attorney) a) After reading information screen click Next b) After reading OFFICE by county screen click Next c) Select Office: Camden, Newark or Trenton; Case type: cv d) Other court name and number – use if appropriate e) After reading information screen click Next f) Enter the following in the appropriate fields: Jurisdiction generally 4 (Diversity) but may be 3 (Federal Question)1 Cause of Action = 28:1335 (28:1335 Interpleader Action) Nature of Suit in most cases it would be 110 (Insurance) however, 190 (Other Contract), 791 (ERISA) and 890 (Other Statutory Action) are other possibilities Origin = 1 (Original Proceeding) Citizenship plaintiff and defendant - Select appropriately Jury demand - Select appropriately County - Select appropriately Fee status defaults to pd (paid), change if appropriate All other fields leave blank or as populated, click Next g) After reading entering parties information screen click Next 2.
    [Show full text]
  • Winning Your Case Before You Go to Trial1
    Winning Your Case Before You Go To Trial Chapter 16 Winning Your Case Before You Go To Trial Michelle May O’Neil O’Neil Anderson Two Lincoln Centre 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 (972) 852-8000 Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Email: [email protected] Hon. William Harris 233rd Judicial District Court Family Law Center, 5th Floor 200 East Weatherford Street Fort Worth, Texas 76196 (817) 224-2686 Co-authors: Nathan Anderson Ashley Bowline Russell O’Neil Anderson O’Neil Anderson Two Lincoln Centre Two Lincoln Centre 5420 LBJ Freeway, Suite 500 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 Dallas, Texas 75240 (972) 852-8000 (972) 852-8000 Website: www.oneilanderson.com Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Blog: www.dallastxdivorce.com Email: [email protected] Email: [email protected] State Bar of Texas Advanced Family Law Course 2009 Honoring the Past… Embracing the Future Chapter 16 Winning Your Case Before You Go To Trial Chapter 16 Michelle May O’Neil Founding Partner O’Neil Anderson Two Lincoln Centre 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 (972) 852-8000 Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Email: [email protected] Ms. O’Neil founded the firm with her friend and partner Nathan T. Anderson based on their desire to provide clients with high- quality representation in a personalized atmosphere. She has over 18 years of experience representing men, women, and children related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms.
    [Show full text]
  • Civil Dispositive Motions: a Basic Breakdown
    Civil Dispositive Motions: A Basic Breakdown 1) Simplified Timeline: Motion for 12(b)(6) Motions JNOV** Summary Judgment Motions* Motion for New Trial Motion Motion for D.V. for D.V. (Rul 10 days Discovery and Mediation Plaintiff‟s Defendant‟s Evidence Evidence Process Complaint Trial Jury‟s Entry of Judgment Filed Begins Verdict * Defendant may move at any time. Plaintiff must wait until 30 days after commencement of action. **Movant must have moved for d.v. after close of evidence. 2) Pre-Trial Motions: Rule 12(b)(6) and Summary Judgment A. Rule 12(b)(6) Motions to Dismiss 1. Challenge the sufficiency of the complaint on its face. Movant asks the court to dismiss the complaint for “failure to state a claim upon which relief may be granted.” 2. Standard: The court may grant the motion if the allegations in the complaint are insufficient or defective as a matter of law in properly stating a claim for relief. For example: a) The complaint is for fraud, which requires specific pleading, but a required element of fraud is not alleged. 1 b) The complaint alleges breach of contract, but incorporates by reference (and attaches) a contract that is unenforceable as a matter of law. c) The complaint alleges a claim against a public official in a context in which that official has immunity as a matter of law. 3. The court only looks at the complaint (and documents incorporated by reference). a) If the court looks outside the complaint, the motion is effectively converted to a summary judgment and should be treated under the provisions of Rule 56.
    [Show full text]
  • Is the Time for Removal of an Action from State to Federal Court Subject to an Extension? George J
    Marquette Law Review Volume 21 Article 3 Issue 4 June 1937 Is the Time for Removal of an Action from State to Federal Court Subject to an Extension? George J. Laikin Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation George J. Laikin, Is the Time for Removal of an Action from State to Federal Court Subject to an Extension?, 21 Marq. L. Rev. 205 (1937). Available at: http://scholarship.law.marquette.edu/mulr/vol21/iss4/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. IS THE TIME FOR REMOVAL OF AN ACTION FROM STATE TO FEDERAL COURT SUBJECT TO EXTENSION' GEORGE J. LAIKIN Both federal and state cases are in conflict as to whether the time for removal of an action from a state court to a federal court is subject to extension by stipulation of the parties, order of the court, or special appearance of defendant. 2 The United States Supreme Court has not yet decided this conflict. Removal from a state court to the federal court is authorized by Section 28, Title 29, of the Judicial Code.- Procedure is prescribed by Section 294, and provides that, in proper cases, jurisdictional prerequi- a Certain phases of Sections 28 and 29, Title 28, of the Judicial Code, 28 U.S.
    [Show full text]