Tolling the statute of limitations

[NeilTheCop]

I originally filed for both.
It did take a while for all the local judges to recuse themselves before they finally assigned a judge from another court to the case.

 

[NeilTheCop]

Thanks for your help. I have a hearing date of December 27, 2018 for the preliminary injunction.
Never been to one so I have no idea what to expect.

 

[TigerD]

Neil - Do you have an attorney on this? If not, you need to. There are a number of issues that you may be waiving if you do not do this right. Health is also a very serious one.

You have a good start, but I would really direct you to an attorney - with environmental law experience.

TD

 

[NeilTheCop]

Current company excluded, I have a poor opinion of attorneys from past experience, so no I don't have an attorney and have no intention of getting one.
As I have put in a jury demand in plenty of time and I'm not asking for any financial compensation I intend to simply show the jury the videos and ask "if this was happening next to your house 10 hours a day, 7 days a week, would you want it to stop?"
If I asked you TigerD, what would you say?

 

[NeilTheCop]

Just an update.
The Defendants attorney has just filed for a continuance citing the inability to get witnesses in time?
This is a preliminary injunction, and as far as a I can tell the onus is on me to show the elements:
(1) suffer irreparable injury unless the injunction is granted (2) the threatened injury outweighs any harm the injunction might cause the Defendant (3) issues of the injunction will not be adverse to the public interest; and (4) there is a substantial likelihood that Plaintiff will prevail on the merits.
I can't see how the Defendant can call witnesses, or am I wrong?

 

[TigerD]

Current company excluded, I have a poor opinion of attorneys from past experience, so no I don't have an attorney and have no intention of getting one.
As I have put in a jury demand in plenty of time and I'm not asking for any financial compensation I intend to simply show the jury the videos and ask "if this was happening next to your house 10 hours a day, 7 days a week, would you want it to stop?"
If I asked you TigerD, what would you say?

What makes you think you will be able to get your video before the jury? Of course, I would want it to stop.

Just an update.
The Defendants attorney has just filed for a continuance citing the inability to get witnesses in time?
This is a preliminary injunction, and as far as a I can tell the onus is on me to show the elements:
(1) suffer irreparable injury unless the injunction is granted (2) the threatened injury outweighs any harm the injunction might cause the Defendant (3) issues of the injunction will not be adverse to the public interest; and (4) there is a substantial likelihood that Plaintiff will prevail on the merits.
I can't see how the Defendant can call witnesses, or am I wrong?

Is their inability to get witnesses in time grounds for a continuance?
What does the case law say about that in relation to temporary injunctions?
How can you distinguish or correlate your facts to the case law?
Always plan on the attorney on the other side being competent.

I understand your concerns, I stand by my typical saying: Pro Se is Latin for fix'in to lose badly.

Good luck

 

[CdwJava]

I have to agree with TigerD. If the other side has an attorney, they likely know how to use the system to their advantage. Their advantage is not yours. You may have to ask yourself whether you want to hold your nose and hire an attorney, or, hold your nose from now unto ad infinitum?

I live in an agricultural community and peculiar aromas (cattle, manure, dried crops, burning stubble, etc.) are a fact of life here. If the farm was there before you were, you may have some problems. An attorney would be a big help, I think.

 

[Taxing Matters]

This is a preliminary injunction, and as far as a I can tell the onus is on me to show the elements:
(1) suffer irreparable injury unless the injunction is granted (2) the threatened injury outweighs any harm the injunction might cause the Defendant (3) issues of the injunction will not be adverse to the public interest; and (4) there is a substantial likelihood that Plaintiff will prevail on the merits.

That's correct. Those are the elements for a preliminary injunction, as set out in the LaBalbo v. Hymes case I cited in reply #41, and it is your burden to prove those things.

I can't see how the Defendant can call witnesses, or am I wrong?

The defendant of course has the right to put up evidence to refute what you present, which would include calling witnesses. It wouldn't be fair to the defendant for the court to only hear your side of it and not have the chance to present his side, too. Why did you think the defendant would not be allowed to do that?

 

[NeilTheCop]

I believe this is simply a delaying tactic, and this belief is compounded by the fact that the attorney supposedly emailed me on the 15th of November which is the same day that he filed the motion for continuance but he says my email server rejected the message? He made no other attempt to contact me despite my phone number being on all the court documents that he received.
Anyway I'm filing an objection citing failure to comply with NMRA 1-007.1(B), and that this is simply a frivolous delaying tactic. But I don't expect it to succeed.

 

[Taxing Matters]

I believe this is simply a delaying tactic,....

Well, literally of course it is a delaying tactic; all continuance motions are. You might be right in your implication that he has no real need for the delay, but proving that is likely a difficult proposition.

Anyway I'm filing an objection citing failure to comply with NMRA 1-007.1(B), and that this is simply a frivolous delaying tactic. But I don't expect it to succeed.

I'm not seeing the argument you're trying to make. That provision says that the movant (the defendant) has to determine if the motion will be opposed or not. If it is not opposed, then the movant needs to submit an order approved by all parties. Did the defendant's attorney say in the motion that it was unopposed?

NMRA 1-007.1(C) deals with opposed motions. If your argument is that the defendant failed to confer with you before filing the motion, then it is (C) that contains that requirement, specifically it says that the defendant must state whether he requested concurrence from you or state why such request was not made. So I'd think that would be the more appropriate provision to cite.

 

[NeilTheCop]

So the attorneys file the motion for the continuance on the 15th, I get the notice on the 20th and file my objection the same day but the continuance had already been granted!

 

[Taxing Matters]

So the attorneys file the motion for the continuance on the 15th, I get the notice on the 20th and file my objection the same day but the continuance had already been granted!

Continuances are in many courts not all that difficult to get, at least the first one or two anyway. So that doesn't particularly surprise me.

 

[NeilTheCop]

A genuine legal question that I just cannot find an answer to.
For my preliminary injunction I have to show the 4 elements
Likelihood of success, irreparable harm, public interest and balance of harm.
I think that I have all of them covered except the proving irreversible harm.
So the question is, as the farm is being operated illegally do I still need scientific proof that breathing in manure dust is not conducive to good health?

 

[Taxing Matters]

So the question is, as the farm is being operated illegally do I still need scientific proof that breathing in manure dust is not conducive to good health?

You still have to make the showing of irreparable harm to get a preliminary injunction. The fact that you allege that the farm is being operated illegally does not change that. Those elements are required because a preliminary injunction grants relief before a full consideration of a permanent injunction can be made.

 

[NeilTheCop]

You still have to make the showing of irreparable harm to get a preliminary injunction. The fact that you allege that the farm is being operated illegally does not change that. Those elements are required because a preliminary injunction grants relief before a full consideration of a permanent injunction can be made.

Thanks. Sort of clutching at straws because I don't know how to prove the obvious, that cow manure dust is bad for you.