Ignoring an injunction

[Taxing Matters]

The word may have filtered down the grapevine as the trucks have now stopped.
I'm going to file the motion for contempt and to have the original preliminary injunction modified to require the defendant to install a physical barrier.

How much will that barrier cost? You have a temporary injunction and the permanent injunction matter is yet to be heard. Imposing a significant cost to the defendant before the trial on the permanent injunction is probably not something the court will be willing to require for what amounted to a brief violation of the order. After all, if you lose the permanent injunction then the defendant's expense on the barrier is wasted. You can make the motion, of course, all I'm saying is don't get your hopes up too high on this if the barrier you seek will be costly to install.

 

[quincy]

A simple gate could be adequate to block truck travel down Neil’s side of the neighboring property’s U-shaped driveway/road.

But I think that Neil is probably not in a position yet to have a court order the installation of any barrier.

 

[NeilTheCop]

How much will that barrier cost? You have a temporary injunction and the permanent injunction matter is yet to be heard. Imposing a significant cost to the defendant before the trial on the permanent injunction is probably not something the court will be willing to require for what amounted to a brief violation of the order. After all, if you lose the permanent injunction then the defendant's expense on the barrier is wasted. You can make the motion, of course, all I'm saying is don't get your hopes up too high on this if the barrier you seek will be costly to install.

I'm not sure about brief. Is 5.30 AM to sunset for 3 days straight brief?
I have little hope of the judge approving a barrier, but considering they made an access onto a State road without bothering to get a permit, maybe a locked gate is a viable option.
But I filed today, so we shall see what the judge says.
I'll keep you posted

 

[quincy]

I'm not sure about brief. Is 5.30 AM to sunset for 3 days straight brief?
I have little hope of the judge approving a barrier, but considering they made an access onto a State road without bothering to get a permit, maybe a locked gate is a viable option.
But I filed today, so we shall see what the judge says.
I'll keep you posted

Yes. Please keep us informed.

Your adventures with the neighbor’s manure is a bit like Lemony Snickett’s Series of Unfortunate Events. I hope your tale will eventually have a happy ending - perhaps with trucks filled with manure driving off on the road farthest from your property and into a New Mexico sunset.

Good luck with the judge.

 

[NeilTheCop]

Just a quick follow up, I filed a motion for summary judgement following all the rules and procedures, and the motion was accepted by the court.
Anyway we have a telephonic hearing for the motion on August 19th lasting 30 minutes, which seems a little short, so what can I expect at the hearing?

 

[Litigator22]

Just a quick follow up, I filed a motion for summary judgement following all the rules and procedures, and the motion was accepted by the court.
Anyway we have a telephonic hearing for the motion on August 19th lasting 30 minutes, which seems a little short, so what can I expect at the hearing?

In addition to becoming acutely aware that "you have a fool for a client"?

 

[quincy]

Just a quick follow up, I filed a motion for summary judgement following all the rules and procedures, and the motion was accepted by the court.
Anyway we have a telephonic hearing for the motion on August 19th lasting 30 minutes, which seems a little short, so what can I expect at the hearing?

You can expect to be overwhelmed by the other side if the other side has attorney representation.

 

[quincy]

Here is a link to New Mexico’s Rule 1-056, Summary Judgment and related case law:

https://casetext.com/rule/new-mexico-court-rules/new-mexico-rules-of-civil-procedure-for-the-district-courts/article-7-judgment/rule-1-056-summary-judgment


Have you thought about moving yet, Neil?

 

[NeilTheCop]

In addition to becoming acutely aware that "you have a fool for a client"?

As part of the motion I clearly listed 5 items that were not in dispute, to which the attorney gave 7 different responses including adding a statute of limitations defense to his clients actions.

“The Tenth Circuit has expressly adopted the Fifth Circuit’s rule. See Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (applying the Fifth Circuit’s rule that a legal theory “raised not in amended complaint but, rather, in plaintiff’s response to defendant’s motion for summary judgment was not properly before district court”)

Certorari from the Supreme Court of the United States. ID at page 16

Arising from Bye v. MGM Resorts International, Inc., 49 F.4th 918 (5th Cir. 2022)

At least this fool can count

 

[NeilTheCop]

Have you thought about moving yet, Neil?

I won't be driven out of my home by the factory farms.

 

[quincy]

I won't be driven out of my home by the factory farms.

I respect that. Good luck.

 

[Taxing Matters]

Just a quick follow up, I filed a motion for summary judgement following all the rules and procedures, and the motion was accepted by the court.
Anyway we have a telephonic hearing for the motion on August 19th lasting 30 minutes, which seems a little short, so what can I expect at the hearing?

A hearing on a summary judgment is done for one of two reasons: (1) because historically the court had provided hearings on these motions or (2) the judge wants to get the party's views concerning any fact or issue regarding the issue that are not sufficiently clear to the judge.

If this hearing is the former type it'll likely be a pretty routine, procedual hearing where each party can present a summary of their case and get asked a few perfunctory questions from the judge. In this setting the judge may already know how he/she intends to rule on the motion.

If it's the latter, the judge will be asking probing questions about the motion and the law supporting the position of each side. In that situation you have to be fully knowledgeable of the law on summary judgment and on the underlying action involved and be fast on your feet in being able to pull out that information to respond to the judge's questions. In this kind of hearing pro se litigants often don't do very well, especially when the other side has a prepared attorney ready to argue his/her client's case.

 

[Litigator22]

As part of the motion I clearly listed 5 items that were not in dispute, to which the attorney gave 7 different responses including adding a statute of limitations defense to his clients actions.

“The Tenth Circuit has expressly adopted the Fifth Circuit’s rule. See Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (applying the Fifth Circuit’s rule that a legal theory “raised not in amended complaint but, rather, in plaintiff’s response to defendant’s motion for summary judgment was not properly before district court”)

Certorari from the Supreme Court of the United States. ID at page 16

Arising from Bye v. MGM Resorts International, Inc., 49 F.4th 918 (5th Cir. 2022)

At least this fool can count

Sorry, but you are much mistaken. Unfortunately, but not surprisingly you have completely misconstrued your cited legal authorities. None support your belief that the court sitting on your motion for summary judgment must reject the opponent's adding a statute of limitations defense as being untimely.

Each Evans v. McDonald’s Corp., Bye v. MGM Resorts International, Inc. and Johnson v. City of Shelby, Miss addressed the issue of the moving party in a motion for summary judgment adding NEW CLAIMS to their pleadings. None involved a party defending such a motion!

In Evans the plaintiff/movant belatedly and unsuccessfully sought to add to her Title VII claim of constructive discharge a separate count alleging employer retaliation.

The moving party Bye was permitted to amend her Title VII complaint to add a count under The Fair Labor Standards Act (FLSA).

The claimants in Johnson vs. City of Shelby were ultimately allowed to add a Title VII to their common law tort claim.)

Moreover, there is abundant authority permitting asserting the defense of the period of limitations at any time. For instance, in New York. ". . . there is no requirement that a statute of limitations defense be raised solely in a pre-answer motion to dismiss. The defense may be asserted in the answer, and subsequently raised in a summary judgment motion or at trial. " (See NYCPLR)