Why Have Rules?

[ouidaja]

What is the name of your state (only U.S. law)? Ohio

So I file a civil rights action in federal district court. Im proceeding pro se and sought application to proceed IFP. The magistrate judge assigned to the case issues and order granting IFP status and ordering the US Marshal to serve the summons and complaint on the defendant and the deft being ordered to answer or otherwise respond to the complaint in 45 days. Fed. R.Civ. P. 12(a)(1)(A)(i) states 21 days. Nothing within the 51 pages of the court's local rules permits 45 days to respond. I submit objections to the judge basically saying the same thing above and he responds affirming the magistrate's order giving the deft 45 days to answer under Rule 6(b)(1)(A) of the fed. civil rules. Rule 12 says the deft MUST respond within 21 days. HOw does rule 6 permit a magistrate to grant a deft 45 days to respond when the mandatory language of rule 12 and the rule itself says otherwise? The magistrate didn't even offer an explanation and I vaguely received one from the judge upon ruling on my objection. But I don't see anywhere that a magistrate can grant 45 days to respond to a complaint when rule 12 says otherwise and there is no waiver of time under rule 4 nor has any party consented or requested the extension/enlargement. If you can add some clarity I would appreciate it; especially if you have some law to support your position.

 

[davidmcbeth3]

You could have filed a motion to strike and address the late filing (that would have been the proper pleading to file) but in reality, late filings are generally allowed if it was before a default judgement was ordered by the court.

Have you gone to google scholar?

 

[Ohiogal]

What is the name of your state (only U.S. law)? Ohio

So I file a civil rights action in federal district court. Im proceeding pro se and sought application to proceed IFP. The magistrate judge assigned to the case issues and order granting IFP status and ordering the US Marshal to serve the summons and complaint on the defendant and the deft being ordered to answer or otherwise respond to the complaint in 45 days. Fed. R.Civ. P. 12(a)(1)(A)(i) states 21 days. Nothing within the 51 pages of the court's local rules permits 45 days to respond. I submit objections to the judge basically saying the same thing above and he responds affirming the magistrate's order giving the deft 45 days to answer under Rule 6(b)(1)(A) of the fed. civil rules. Rule 12 says the deft MUST respond within 21 days. HOw does rule 6 permit a magistrate to grant a deft 45 days to respond when the mandatory language of rule 12 and the rule itself says otherwise? The magistrate didn't even offer an explanation and I vaguely received one from the judge upon ruling on my objection. But I don't see anywhere that a magistrate can grant 45 days to respond to a complaint when rule 12 says otherwise and there is no waiver of time under rule 4 nor has any party consented or requested the extension/enlargement. If you can add some clarity I would appreciate it; especially if you have some law to support your position.

Did you read Rule 6(b)(1)(A)? Let me help you:

(b) EXTENDING TIME.

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires;

Even when an act must be done, the COURT MAY extend the time. And they can do it upon their own motion. That is what they did. If you understood the rules you would have understood that. It gives the courts a loophole even when it states something MUST be done.

Waiver of time under rule 4? Seriously? Rule 4 talks about WAIVER OF SERVICE.

Also did you completely read rule 12:

(a) TIME TO SERVE A RESPONSIVE PLEADING.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d) , within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

Rule 6 allows for the time to be changed. It is not that difficult. If you have issues comprehending that, you are going to dig yourself a hole from which you may not emerge. You NEED an attorney.

 

[You Are Guilty]

You NEED an attorney.

I strongly suspect the defendant in this case would disagree with you. (Care to bet at the end of those 45 days, P gets a 12(b) motion and not an answer? )

 

[Ohiogal]

I strongly suspect the defendant in this case would disagree with you. (Care to bet at the end of those 45 days, P gets a 12(b) motion and not an answer? )

Well I strongly suspect the defendant would disagree. But this is the Plaintiff here and the Plaintiff NEEDS an attorney for any chance of having a case. And I won't take that bet because it sounds like a sucker bet.