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What is the meaning of a deadline for a demurrer argument and brief?

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republicrat

Junior Member
UPDATES/EDITS IN BOLD
What is the name of your state (only U.S. law)? Virginia Circuit Court

First, thanks in advance to the wonderful creators of this forum for allowing me to ask a question in the hopes of getting less confused.

Situation: I am confused. Any help at all would really help me. Please chime in if possible.

Ok, I filed complaint. They filed a demurrer, which is like a motion to dismiss but for Virginia and California. I filed a motion to oppose this demurrer. At the hearing, the judge gave me 10 days to file an amended complaint, and 10 days for them to file a response. I filed my amended complaint on time. They had 10 days, and they then filed a demurrer #2 on time with 3 paragraphs but no request for a hearing cover sheet. Then, a few weeks later, they asked what dates were ok for a hearing, BUT filed a much bigger demurrer with the last paragraph incorporating by reference another new brief. Question: are they allowed to have a new brief filed now? What I don't understand is what was due from them 10 days after I filed my amended complaint? What is the point of any deadline at all if they can file two different demurrers (actually a total of three now). I guess my real question is what local or state rule is being followed or not here? Is it the case that I can move to strike if they changed the arguments between the one filed 10 days after I filed my amended complaint? What rule might be violated?

I am on a five page strict limit but they are not? The thing is I don't have enough space to address all of their 10 pages, but I have space to address the initial demurrer (#2, not #3 which is 10 pages even though there is a 5 page limit). There is a 5 page limit, but they have two five page documents back to back on the new demurrer, with the 2nd 5 pages totally new. Is that 100% normal? Is it the case that the deadline was only for "placeholder" arguments which could be fleshed out at any time? Am I allowed to say in my argument I did not address stuff submitted after their initial 10 day deadline? If so, what phraseology might be appropriate?

Again, any thoughts would help.
 
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Ok, I filed complaint. They filed a demurrer... At the hearing, the judge gave me 10 days to file an amended complaint, and 10 days for them to file a response. They filed a demurrer #2 with 3 paragraphs but no request for a hearing cover sheet. Then, a few weeks later, they asked what dates were ok for a hearing, and filed a much bigger demurrer with the last paragraph incorporating by reference another new brief.
The judge gave you 10 days from his order to file an amended complaint, and he gave the defendant 10 days after your file (or perhaps serve them with) your amended complaint for them to file a response of any kind to your amended complaint.

I am going to ignore your other questions for the moment because there's not enough background to answer them.

On what date did the judge give you 10 days to file an amended complaint?

Did you file an amended complaint? On what date did you file an amended complaint?

On what date did the defendant file demurer #2 and was that a demurer to your amended complaint or something else?

On what date did the defendant file demurer #3 and was that a demurer to your amended complaint or something else?
 

single317dad

Senior Member
Second the advice for an attorney. You're not only beyond your capabilities, but likely those of this or any forum.

My guess is they're not responding to your complaints because they want them dismissed based on arguments they've stated, but that's a shot in the dark with this limited information.
 

Paul84

Member
I'm also a pro-se plaintiff (non-attorney) in federal court, and something similar happened to me. I filed a complaint; defendants then filed a motion to dismiss. Within the 21 days' time limit of receipt of their motion to dismiss ("MTD"), I filed an amended complaint to add facts and more detail that addressed points in their motion to dismiss. Federal court rules allow this, without requiring the judge's permission. Defendants then asked the judge to declare their first MTD moot and filed a second one. Their second MTD was virtually identical to the first. It was just a ploy to delay the proceedings, which is what corporate defendants do.

In your case, it sounds as if defendants filed a 2nd demurrer (adding a few points to their first one), and then consolidated the two into a third demurrer to address your amended complaint, making moot the original demurrer (and probably the 2nd as well). Maybe that's allowed. Contact your court's pro se office and ask.
 

republicrat

Junior Member
Hi Mark. Thanks for your help.
On what date did the judge give you 10 days to file an amended complaint?
April 3.
Did you file an amended complaint?
Yes, I filed my amended complaint on time. I am sorry that this was not clear, but since it isn't an issue I thought it was implied.
On what date did you file an amended complaint?
April 13 (on time, the last day allowed)
On what date did the defendant file demurer #2 and was that a demurer to your amended complaint or something else?
They filed a small demurrer #2 on time: April 23, 2015. Yes it was to my amended complaint.
On what date did the defendant file demurer #3 and was that a demurer to your amended complaint or something else?
May 3, but it has an extra 5 pages of argument not in the demurer #2. I think they came up with new arguments and points of memoranda, so they wanted to sneak it in past the deadline. The question is are they allowed to have done this. Can they alter this demurer #2? If not, what rule should I cite in my motion to oppose expanded demurrer (#3).
Does that answer all of your questions?
 
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republicrat

Junior Member
Thanks for your story Paul.
I'm also a pro-se plaintiff (non-attorney) in federal court, and something similar happened to me. I filed a complaint; defendants then filed a motion to dismiss. Within the 21 days' time limit of receipt of their motion to dismiss ("MTD"), I filed an amended complaint to add facts and more detail that addressed points in their motion to dismiss. Federal court rules allow this, without requiring the judge's permission. Defendants then asked the judge to declare their first MTD moot and filed a second one. Their second MTD was virtually identical to the first. It was just a ploy to delay the proceedings, which is what corporate defendants do.
You failed to file a motion to oppose their MTD!!!! That makes little sense. Had you done that, there could have been a hearing to rule on each MTD, so I am confused about your strategy. You failed to challenge, so they will win by default, but I guess you caved in and just amended your complaint.

In your case, it sounds as if defendants filed a 2nd demurrer (adding a few points to their first one), and then consolidated the two into a third demurrer to address your amended complaint, making moot the original demurrer (and probably the 2nd as well). Maybe that's allowed. Contact your court's pro se office and ask.
No. My amended complaint is immune to any prior demurrers, since that was already ruled upon. They have done their damage, which was to make me reveal some facts and points but not other points, which I had to delete. There can only be one demurrer attacking a given amended complaint, and once an amended complaint is filed it matters not what was in any earlier demurrers or complaints, unless there is a motion to object to something in the new complaint. I don't think they were allowed to have filed demurrer #3 and was hoping someone here could point me to the court's rules. I am sure there have to be rules preventing one to amend demurrers but I don't know the rule. The nice thing about federal court is that the rules are online.
 
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republicrat

Junior Member
My guess is they're not responding to your complaints because they want them dismissed based on arguments they've stated, but that's a shot in the dark with this limited information.
Thanks for your help single317dad. In fact, they did respond to my complaint and my amended complaint. Why did you have any idea to the contrary?
 
I think they came up with new arguments and points of memoranda, so they wanted to sneak it (ie. what you refer to as demurer #3) in past the deadline. The question is are they allowed to have done this. Can they alter this demurer #2? If not, what rule should I cite in my motion to oppose expanded demurrer (#3).
First off, I may have missed it, but is this case filed in state court or federal court? Here are my thoughts in general (I don't know what court you are in, so I don't know the specific rules of the court that you are in).

You filed an amended complaint on time, as allowed by the court's order. They responded to your amended complaint with demurer #2 on time, as allowed by the court's order. You can file a motion to strike their demurer #3 as having been filed out of time (later than allowed by the court's order).

Presumably the defendant needs to schedule a hearing date to have their demurrer #2 that they filed on time in response to your amended complaint heard before the court. So instead of filing a motion to strike their demurer #3, you could simply object at the hearing for their demurer (#2) to anything that they filed after the time limit imposed upon them by the court (ie. demurrer #3).
 

republicrat

Junior Member
First off, I may have missed it, but is this case filed in state court or federal court?
Circuit county Virginia court, not federal.
You can file a motion to strike their demurer #3 as having been filed out of time (later than allowed by the court's order).
Yes, but what rule do I cite, and when is this motion due? I assume it can be filed as long as I am allowed to file my motion to oppose demurrer #2?
Yes, they hearing date is already set, and my motion to oppose demurrer #2 and/or #3 is due shortly. Presumably the defendant needs to schedule a hearing date to have their demurrer #2 that they filed on time in response to your amended complaint heard before the court. So instead of filing a motion to strike their demurer #3, you could simply object at the hearing for their demurer (#2) to anything that they filed after the time limit imposed upon them by the court (ie. demurrer #3).
Good. This is what I thought. So you think the notion that "the supporting brief" of the demurrer can be filed later than April 23 is 100% ridiculous and incorrect. I would appreciate anyone else insight, refutation, or confirmation. Of course any help in what rule to cite or how to get the county circuit court rules would also help, since it is a local rule I guess they are breaking, or would it be the supreme court va rules? Are they the same?
 
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Silverplum

Senior Member
Circuit county Virginia court, not federal.
You can file a motion to strike their demurer #3 as having been filed out of time (later than allowed by the court's order).
Yes, but what rule do I cite, and when is this motion due? I assume it can be filed as long as I am allowed to file my motion to oppose demurrer #2?

Good. This is what I thought. So you think the notion that "the supporting brief" of the demurrer can be filed later than April 23 is 100% ridiculous and incorrect. I would appreciate anyone else insight, refutation, or confirmation. Of course any help in what rule to cite or how to get the county circuit court rules would also help, since it is a local rule I guess they are breaking, or would it be the supreme court va rules? Are they the same?
No, really. You need an attorney.

You can ignore the good advice of laypersons and an attorney. But if you can't find the rules or know which court you're using, I sincerely tell you to HIRE AN ATTORNEY.
 
So you think the notion that "the supporting brief" of the demurrer can be filed later than April 23 is 100% ridiculous and incorrect.
Personally, I suspect that the defendant can file a "supporting brief" to their second demurer at any time up to and including handing it to the judge on the date of the hearing. The judge gave the defendant x number of days from when you filed your amended complaint for them to file their 2nd demurer. If their "supporting brief" is actually a separate 3ed demurer, then that is something different. We don't know what they actually called it nor what it actually is.
 

republicrat

Junior Member
Personally, I suspect that the defendant can file a "supporting brief" to their second demurer at any time up to and including handing it to the judge on the date of the hearing. The judge gave the defendant x number of days from when you filed your amended complaint for them to file their 2nd demurer. If their "supporting brief" is actually a separate 3ed demurer, then that is something different. We don't know what they actually called it nor what it actually is.
The third demurer says it is the second demurrer that was already filed except for a brand new 5 page brief. So, it is a separate 3rd demurer. The names are also different, but I don't care much about the titles. What I care about is if their new arguments are defeatable by citing a rule, since that will take less work on the part of the judge.

Silverplum: "But if you can't find the rules or know which court you're using, I sincerely tell you to HIRE AN ATTORNEY."
The court is Fairfax circuit court of Virginia. The one thing I expected to get here was someone able to point me to the rules. If a court's rules are not available to all it would imply the 6th amendment to the us constitution is bunk. (It calls for the right to a public trial, but if there are secrets kept from the public, like the rules being used, then it isn't a public trial.)
 
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Thanks for your story Paul.
You failed to file a motion to oppose their MTD!!!! That makes little sense. Had you done that, there could have been a hearing to rule on each MTD, so I am confused about your strategy. You failed to challenge, so they will win by default, but I guess you caved in and just amended your complaint.


No. My amended complaint is immune to any prior demurrers, since that was already ruled upon. They have done their damage, which was to make me reveal some facts and points but not other points, which I had to delete. There can only be one demurrer attacking a given amended complaint, and once an amended complaint is filed it matters not what was in any earlier demurrers or complaints, unless there is a motion to object to something in the new complaint. I don't think they were allowed to have filed demurrer #3 and was hoping someone here could point me to the court's rules. I am sure there have to be rules preventing one to amend demurrers but I don't know the rule. The nice thing about federal court is that the rules are online.
I don't know what your rules of court state, but from what I remember concerning litigation, the Federal Rules are a little bit similar to much of what takes place in Superior Court. For instance, I once filed a Complaint in Superior Court in California and the Defendants responded with a Demurrer. Then I filed an opposition to the Demurrer as well as an Amended Complaint. The Defendants dropped the Demurrer because it became moot as a result of the Amended Complaint I filed. Then they filed another Demurrer which I again, filed opposition papers.

The Defendants filed a brief in response to my opposition and I filed a brief in response to their brief. Perhaps that is what took place in your case. The Defendants filed a brief instead of a 3rd Demurrer that you thought it was.
 
The third demurer says it is the second demurrer that was already filed except for a brand new 5 page brief. So, it is a separate 3rd demurer. The names are also different, but I don't care much about the titles. What I care about is if their new arguments are defeatable by citing a rule, since that will take less work on the part of the judge.
Without reading the document, it sounds to me like the document that you are calling a third demurer is really just a brief in support of the second demurer.

If what you are referring to as a third demurer contains something IDENTICAL to the second demurer plus an additional 5 pages identified as a brief of some sort, then I think it is simply a brief in support of the second demurer. If their brief raises NEW deficiencies that are not mentioned in the second demurer (for instance if the brief argues why your complaint should be dismissed for lack of specificity when that request wasn't made in the demurer itself), then you can argue that the defendants objection to the amended complaint based on lack of specificity should be dismissed because it was filed late and not stated in the second demurer. But if their new brief simply raises a new argument for a deficiency that was mentioned in the second demurer (for instance if the brief argues that your complaint should be dismissed due to lack of specificity because you didn't say X nor Y in your complaint, but the demurer requests that your complaint be dismissed for lack of specificity only because you didn't say X in your complaint), then the brief didn't raise a new demurer - only another reason why the demurer they did raise should be sustained. That's just my personal opinion of course. It's really hard to say without reading the documents.
 
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