Questions about Reply Briefs and Other Motion Practice

[Paul84]

What is the name of your state (only U.S. law)? New York, Federal Court

In my case, after the defendants filed a brief in support of motion to dismiss (MTD), I filed a brief in opposition and amended my complaint, at which point they withdrew their motion as moot. A few weeks later, they submitted a 2nd brief in support of MTD. Their 2nd brief took no notice of points in my original opposing brief but just addressed the verified amended complaint, which provided much more detail than the original verified one but did not change the causes of action. Their 2nd brief also repeated much of their original brief verbatim and added perhaps 20% new content and case precedents.

Questions:

1. If we assume my original opposing brief was not nonsense, did they avoid addressing it in their 2nd brief in support of MTD because the original opposing brief also became moot and "ceased to exist"? I've prepared a 2nd opposing brief, based on my original opposition and their 2nd brief, so I expect their reply will finally address my legal points.

2. Can a reply brief refer only to issues raised in the opposition brief and introduce only new exhibits in support of those points, or is it free to cover anything? The analogy would be direct examination, cross, and redirect in trial - or is that, also, dependent on the jurisdiction or what individual judges allow?

3. Since they limited their 2nd brief to 35 pages (the max allowed without getting judge's permission to exceed), I've done the same, even though I have some minor points left uncovered. I did, however, add at the end a request for permission to re-plead if the judge grants any of their motion. Is that okay? I assume it's sort of like getting/giving advance notice for a motion to reconsider.

 

[tranquility]

1. Briefs are for issues. The prior brief was in relation to the prior issues in the motion to dismiss. Assume it has no current effect to convince.

2. A reply deals with the thing being replied to. It does no good to do more and new "exhibits" might not be allowed. ( depending on what you mean)

3. No judge will consider a request to allow more argument on an issue if he decides against the party making the request.

 

[Willlyjo]

What is the name of your state (only U.S. law)? New York, Federal Court

In my case, after the defendants filed a brief in support of motion to dismiss (MTD), I filed a brief in opposition and amended my complaint, at which point they withdrew their motion as moot. A few weeks later, they submitted a 2nd brief in support of MTD. Their 2nd brief took no notice of points in my original opposing brief but just addressed the verified amended complaint, which provided much more detail than the original verified one but did not change the causes of action. Their 2nd brief also repeated much of their original brief verbatim and added perhaps 20% new content and case precedents.

Questions:

1. If we assume my original opposing brief was not nonsense, did they avoid addressing it in their 2nd brief in support of MTD because the original opposing brief also became moot and "ceased to exist"? I've prepared a 2nd opposing brief, based on my original opposition and their 2nd brief, so I expect their reply will finally address my legal points.

2. Can a reply brief refer only to issues raised in the opposition brief and introduce only new exhibits in support of those points, or is it free to cover anything? The analogy would be direct examination, cross, and redirect in trial - or is that, also, dependent on the jurisdiction or what individual judges allow?

3. Since they limited their 2nd brief to 35 pages (the max allowed without getting judge's permission to exceed), I've done the same, even though I have some minor points left uncovered. I did, however, add at the end a request for permission to re-plead if the judge grants any of their motion. Is that okay? I assume it's sort of like getting/giving advance notice for a motion to reconsider.

When the Defendants withdrew their Motion to Dismiss based on the fact you filed an Amended Complaint, they would have to have filed a new Motion to Dismiss your Amended Complaint. Did they do this? If not, then any subsequent briefs responding to your original Complaint will not be addressed by the Court.

 

[Sloop John D]

What is the name of your state (only U.S. law)? New York, Federal Court

In my case, after the defendants filed a brief in support of motion to dismiss (MTD), I filed a brief in opposition and amended my complaint, at which point they withdrew their motion as moot. A few weeks later, they submitted a 2nd brief in support of MTD. Their 2nd brief took no notice of points in my original opposing brief but just addressed the verified amended complaint, which provided much more detail than the original verified one but did not change the causes of action. Their 2nd brief also repeated much of their original brief verbatim and added perhaps 20% new content and case precedents.

Questions:

1. If we assume my original opposing brief was not nonsense, did they avoid addressing it in their 2nd brief in support of MTD because the original opposing brief also became moot and "ceased to exist"? I've prepared a 2nd opposing brief, based on my original opposition and their 2nd brief, so I expect their reply will finally address my legal points.

2. Can a reply brief refer only to issues raised in the opposition brief and introduce only new exhibits in support of those points, or is it free to cover anything? The analogy would be direct examination, cross, and redirect in trial - or is that, also, dependent on the jurisdiction or what individual judges allow?

3. Since they limited their 2nd brief to 35 pages (the max allowed without getting judge's permission to exceed), I've done the same, even though I have some minor points left uncovered. I did, however, add at the end a request for permission to re-plead if the judge grants any of their motion. Is that okay? I assume it's sort of like getting/giving advance notice for a motion to reconsider.

1. Yes. They filed their original motion to dismiss against your original complaint. When you amended your complaint, they withdrew their brief and refiled to account for changes that you made.

2. Generally, a reply is limited to arguments raised in the opposition. You shouldn't need to introduce any exhibits for a motion to dismiss a complaint. Normally a motion to dismiss is only addressing the facts raised in the complaint, and those facts are assumed to be true for purposes of the motion. The main issue addressed in a motion to dismiss is whether or not the facts you have alleged actually create legal liability.

3. 35 pages is pretty hefty. The judge is probably going to be displeased about that already. I'm not all that familiar with procedural rules for NY, but unless this is an extremely complex case, I doubt he'll grant permission to exceed.

 

[Paul84]

When the Defendants withdrew their Motion to Dismiss based on the fact you filed an Amended Complaint, they would have to have filed a new Motion to Dismiss your Amended Complaint. Did they do this? If not, then any subsequent briefs responding to your original Complaint will not be addressed by the Court.

Thanks for your replies. Yes, the defendants filed a 2nd MTD after writing to the judge for permission to withdraw the first one, and the court categorized the case under complex litigation.

I didn't introduce any exhibits because they're all business records, and I assume that, until asked for under formal discovery, they belong to the defendants. Is that true? I don't want to risk their claiming I improperly used, or failed to return, any business information even though they were gathered in the course of normal business operations, have nothing remotely confidential, and were saved for the purpose of litigation and earlier quasi-judicial proceedings. The other side attached about 20 exhibits, all referred to in the amended complaint, but none of these contradict the complaint; in fact some of them buttress the arguments there.

 

[Paul84]

Making False Statements; Adoptive Admissions; and Crime-Fraud Exemption to Privilege

In my case, the defendants, through their counsel, made provably false, material statements via briefs to both a U.S. federal agency and federal court that affect decisions on three of my claims. I pointed out what I charitably called these "errors" to the magistrate judge via a letter posted to the Court's ECF system. When the defendants did not respond, the judge ordered them to do so. I have not called for monetary sanctions because I prefer to keep costs for both sides to a minimum. I also did not realize and show the falsity of the statements until after both sides had fully briefed the defendants' motion to dismiss, so I had not fully raised the points in my opposing brief.

Questions:

(1) can I take defendants' initial failure to respond to the letter, served to the court and to them via ECF, as an adoptive admission?
(2) for discovery related to these three instances, would the crime-fraud exemption apply and waive attorney-client/work product privilege?
(3) could I potentially ask for an adverse-inference sanction, which would be dispositive for each of the three claims?

 

[tranquility]

(1) can I take defendants' initial failure to respond to the letter, served to the court and to them via ECF, as an adoptive admission?

No.

(2) for discovery related to these three instances, would the crime-fraud exemption apply and waive attorney-client/work product privilege?

No.

(3) could I potentially ask for an adverse-inference sanction, which would be dispositive for each of the three claims?

You can always ask.

 

[quincy]

I agree with tranquility.

And thank you, Paul84, for reviving one of your old threads instead of starting a new one. You have started several threads on this same case of yours and it is very hard keeping track of them all. Perhaps from now on you can stick to just this one.

 

[Paul84]

No.


No.


You can always ask.

Thanks for the replies, Tranquility and Quincy. I had heard of adverse inferences for tampering with evidence. Can you refer me to any precedents that concern false material statements as a rationale for such a sanction or for, e.g., precluding issues? And do judges ever, sua sponte, institute sanctions such as drawing adverse inferences, or does an opposing party always have to make a motion for these?

 

[You Are Guilty]

Federal MJ and DJs do whatever they want

Anyway, here is some light reading to get you started:

http://muldoongetz.com/issue99.html
http://www.legalvictor.net/the-first-departments-jan-29-spoliation-trifecta/

 

[Paul84]

Federal MJ and DJs do whatever they want

Anyway, here is some light reading to get you started:

http://muldoongetz.com/issue99.html
http://www.legalvictor.net/the-first-departments-jan-29-spoliation-trifecta/

Guilty,
Thanks a lot. These sources were both very helpful.

 

[Paul84]

Piecemeal Amendments to Complaint

I'm a non-attorney, pro se plaintiff and have some additional causes of action for a complaint based on my now-improved understanding of various jurisdictions' laws and terminology. Virtually all the facts are already in the first verified, amended complaint, which is still awaiting a judge's decision on a motion to dismiss from over six months ago.

Questions: should I let the judge and defendants know asap about my intent to add these additional claims and to change the terminology based on the facts and applicable laws? Or should I wait until the ruling on the briefs, in which I had asked for permission to amend the complaint, if neccessary? Also, is it okay to assume that the judge (and defendants' counsel) will already be familiar with what missing claims I may have, on account of their better understanding of the applicable laws?

 

[You Are Guilty]

Questions: should I let the judge and defendants know asap about my intent to add these additional claims and to change the terminology based on the facts and applicable laws? Or should I wait until the ruling on the briefs, in which I had asked for permission to amend the complaint, if neccessary? Also, is it okay to assume that the judge (and defendants' counsel) will already be familiar with what missing claims I may have, on account of their better understanding of the applicable laws?

You are an interesting case - sort of like a legal yo-yo. You certainly seem intelligent and have moments where you demonstrate the capacity to digest necessary information and incorporate it appropriately, but then we bounce back up to a question like this one that makes me wonder what the heck happened.

Read FRCP 15(a)(1)(2) and see if that doesn't explain why I am perplexed.

 

[Paul84]

You are an interesting case - sort of like a legal yo-yo. You certainly seem intelligent and have moments where you demonstrate the capacity to digest necessary information and incorporate it appropriately, but then we bounce back up to a question like this one that makes me wonder what the heck happened.

Read FRCP 15(a)(1)(2) and see if that doesn't explain why I am perplexed.

Thanks again, Guilty. I'm reasonably familiar with the FRCP after having read them all at least once, but am not conversant with the rules' notes or the finer points unless I need to focus on a particular topic. For example, I hadn't realized that I need to get only the defendants' consent to amend the complaint, which seems a lot easier than filing a motion with the judge. So thank you for redirecting me to look at that.

The main issue is that my case is complex (by objective standards). For instance, although the judge hasn't ruled on the 12(b) motion to dismiss, he did order the defendants to respond to an FRCP 44.1 (foreign law) notice on some of the claims. They finally did do so after several months, and I sent a reply. I assume that this exchange could drag out the 12(b) ruling process into next year. I'd prefer not to complicate things even further with one or two additional claims now but want to see how the judge rules on the others because his ruling could make moot any new claims pertaining to foreign law.

Let's say he refuses to dismiss most (or ideally all) of my original claims; and then before discovery, I add these one or two others. Will that delay the discovery process until he rules on a potential, second 12(b) motion for these additional one or two claims? Defendants' counsel is no dummy: the law firm ranks among the "most feared litigators" in a recent annual survey, so they'll try to stick me with whatever procedural point and delaying tactic that they can.

Since the first amended complaint in April, I've been keeping a file of additional facts or issues that I would add whenever I file a second amended complaint--the list grows as ideas come to me. Hence, I prefer to amend the latest version only one more time (or probably twice more, after completion of discovery) rather than in a piecemeal fashion.