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Motion to Dismiss

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Ohiogal

Queen Bee
I didn't think Ray got testy in his other thread. He explained WHY he deleted, and his reasoning made sense. It would have been simple to explain why we prefer to have all the info together, rather than calling him/his actions ridiculous. <shrug>
He got testy when he stated he wasn't concerned about irritating people here with his way of doing things. If he is not concerned with irritating us, why should we be concerned with helping him? I do believe his actions are ridiculous. And I stand by that. He is also rude and has no consideration for the volunteers who could help him -- not when he is not concerned about irritating them because he wants to do what he wants when he wants and how he wants.
 


Ray246

Member
The general rule under federal law and in most states is that an answer does not need to be served until a motion to dismiss has been resolved and lost. For specifics about your state and time frames, I recommend looking here: http://www.plf.net/pro/mociv.htm

Check under the section on Pleadings and Motions.
Thanks for the link Sloop John. While I haven't found the state specific information yet on filing a motion to dismiss and an answer I did find another reason it could be dismissed. Under Rule 67.03 Involuntary Dismissal Effect Thereof it states that a defendant may move for an involuntary dismissal of the civil action for prematurity of action. Since the the motion to modify was filed prior to the 30 days it takes for the previous motions judgement to be final would that not qualify under this rule? I would assume that it would be viewed as premature for a motion to be filed against a motion that wasnt final.

OhioGirl - I have apologized for my previous etiquette violations and I am trying to move forward following proper etiquette.

Stealth2 - Thank you for your support
 

Ray246

Member
Check rule 55.25
According to that I would have 10 days to file an answer if the motion to dismiss is rejected.

My thinking is that I have two grounds for which to ask for a dismissal. The first being that the motion to modify was premature because the other motion was still pending. A motion for appeal would have been appropriate in this situation not a motion to modify. The second being there has been no change in circumstances since the judgement handed down last month. The case has been assigned to the same judge so I would think that would increase my chances for dismissal.
 

Ray246

Member
The only Motion to Dismiss that has ever been granted in my case was granted AFTER the trial, the original judgment, the motion to reconsider, the new trial, and the issuance of the new judgment. Approximately 2 years passed in the interim.

An answer is always a good bet.
Sounds like your example is not far from my situation other than a motion to reconsider was not part of it. Is there any down side to filing for a motion to dismiss and possibly having it rejected other than obviously the time and money involved to do so?
 

CJane

Senior Member
Sounds like your example is not far from my situation other than a motion to reconsider was not part of it. Is there any down side to filing for a motion to dismiss and possibly having it rejected other than obviously the time and money involved to do so?
I don't think that you're thinking of things realistically.

1. It does not take 30 days for an order to become effective or permanent. It is effective the moment the judge issues it - even if it's a bench order and there's nothing in writing yet.
2. Mom CANNOT file an appeal for an order that ISN'T a final judgment. So if, as you believe, this is not yet a final judgment, and appeal is not the correct course of action.
3. Before an appeal can be filed, Mom MUST ask the court to reconsider the judgment, AND THEN let the court know that she intends to appeal if she loses that reconsideration.
4. It is far better to file a Motion for Dismissal, COMBINED WITH an answer.
 

Ray246

Member
I don't think that you're thinking of things realistically.

1. It does not take 30 days for an order to become effective or permanent. It is effective the moment the judge issues it - even if it's a bench order and there's nothing in writing yet.
2. Mom CANNOT file an appeal for an order that ISN'T a final judgment. So if, as you believe, this is not yet a final judgment, and appeal is not the correct course of action.
3. Before an appeal can be filed, Mom MUST ask the court to reconsider the judgment, AND THEN let the court know that she intends to appeal if she loses that reconsideration.
4. It is far better to file a Motion for Dismissal, COMBINED WITH an answer.
I am going by what the attorney I used in my motion to modify explained to me. According to that attorney once the judge makes a judgement the Respondant has 30 days in which to appeal the judgement sending it up to the appellate court. The appellate court then has 90 days to take action on it. If no action is taken by the appellate court then the lower courts judgement stands. If no appeal is filed by the Respondant within the 30 days then the judgement becomes final (stands?). The judgement was in writing and signed off on by the judge. Maybe it is my terminology that is incorrect of was I incorrectly informed? The 30 days since judgement has now expired.
 

Ray246

Member
This seems to agree with what the attorney had explained to me:

RULE 81.05 JUDGMENTS WHEN FINAL PREMATURE FILING OF NOTICE OF APPEAL COMPUTATION OF TIME
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(a) Finality as Affected by After-trial Motions. For the purpose of ascertaining the time within which an appeal may be taken:

(1) A judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed.
(2) If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:
(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.

--------------------------------------------------------------------------------

The question I now have is does a Motion to Modify Child Support count as an Authorized after-trial motion?
 

CJane

Senior Member
I am going by what the attorney I used in my motion to modify explained to me. According to that attorney once the judge makes a judgement the Respondant has 30 days in which to appeal the judgement sending it up to the appellate court. The appellate court then has 90 days to take action on it. If no action is taken by the appellate court then the lower courts judgement stands. If no appeal is filed by the Respondant within the 30 days then the judgement becomes final (stands?). The judgement was in writing and signed off on by the judge. Maybe it is my terminology that is incorrect of was I incorrectly informed? The 30 days since judgement has now expired.
The attorney was incorrect.

The respondent has TEN days after the judgment is filed/date stamped to inform the court that an appeal will be filed - IF THERE IS NO NEW MOTION FILED. The respondent has THIRTY DAYS to file a new motion (motion for reconsideration). AFTER the new motion is decided/dismissed, THEN the Respondent has ANOTHER 10 DAYS to file the appeal.

http://www.courts.mo.gov/page.jsp?id=842
 

tranquility

Senior Member
It seems to me the proper claims on a motion to dismiss at this time are in 55.27.

Otherwise, there should be an answer. Since we don't know the facts we cannot advise as to the content, but it seems the OP is claiming issue preclusion. That is, the issue has already been decided upon and the ex is trying to re-litigate the issue without there being a bona fide change in circumstances. If a win on issue preclusion, he might be able to move for costs and fees for ex being a vexatious litigant where this motion is nothing more than a continuation of ex's groundless and unsuccessful litigation against OP.
 

CJane

Senior Member
It seems to me the proper claims on a motion to dismiss at this time are in 55.27.

Otherwise, there should be an answer. Since we don't know the facts we cannot advise as to the content, but it seems the OP is claiming issue preclusion. That is, the issue has already been decided upon and the ex is trying to re-litigate the issue without there being a bona fide change in circumstances. If a win on issue preclusion, he might be able to move for costs and fees for ex being a vexatious litigant where this motion is nothing more than a continuation of ex's groundless and unsuccessful litigation against OP.
I think that IS his claim. However, I don't think - based on his deleted thread - that it's a GOOD or SOUND claim. I think that Ex's motion is likely to be heard. Whether it will sway the judge is anyone's guess. But I think it WON'T be dismissed.
 

tranquility

Senior Member
I think that IS his claim. However, I don't think - based on his deleted thread - that it's a GOOD or SOUND claim. I think that Ex's motion is likely to be heard. Whether it will sway the judge is anyone's guess. But I think it WON'T be dismissed.
I only stated the proper claims for a motion to dismiss at this time. I agree with you the main possibility from what he has said is that there is another action pending between the same parties and same cause in this state. I also think that is a loser. I believe he must answer. But, notwithstanding different facts not in evidence here, the ex should have some change of circumstances claim if she is litigating some money aspect less than a month from a prior judgment.
 

Ray246

Member
I think that IS his claim. However, I don't think - based on his deleted thread - that it's a GOOD or SOUND claim. I think that Ex's motion is likely to be heard. Whether it will sway the judge is anyone's guess. But I think it WON'T be dismissed.
Everything that the Ex put as changing circumstances was already heard by the Judge. The only things listed that are new are that she now has attorney fees and medical bills to pay. There were income and expense items her previous attorney presented in the prior motion to modify that the judge elected not to include on the final Form 14 that she is listing. The same judge has been appointed to the new motion to modify support. Am I wrong to think he will favor his own previous ruling and dismiss it rather than change it based on no new evidence?
 
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CJane

Senior Member
Everything that the Ex put as changing circumstances was already heard by the Judge. The only things listed that are new are that she now has attorney fees and medical bills to pay. There were income and expense items her previous attorney presented in the prior motion to modify that the judge elected not to include on the final Form 14 that she is listing. The same judge has been appointed to the new motion to modify support. Am I wrong to think he will favor his own previous ruling and dismiss it rather than change it based on no new evidence?
You *might be wrong. All of these things should be addressed in your Motion to Dismiss AND your Answer. It IS possible that the judge will change the ruling to reflect the items from the original income and expense statement if an attorney properly points out that they are statutorily required to be included. Having the judge deny it a second time sets the stage for appeal.
 
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