1.27.11

Handout- #9 Sample Motion + Extra copies of omitted page from handout #7

Review CR 12- will be on Midterm
-All rules mentioned in class should be read through, so that you know where to look for the parts you need on the midterm.

CR 12e - Motion for More Definite Statement
-Motion by D against P for complaint that is so deficient that an intelligent answer is nearly impossible.
-Also called a DEMURRER ("de-mur") in other states. Even if demurrer is sustained, an amendment is generally granted. Can lead to stronger complaint, which may not be to your advantage.

CR 12f- Motion to Strike
-Court may strike any redundant or impertinent or scandalous material from pleadings.

p 188 Failure to Answer CR 55
Options when Complaint is filed-
1. Answer
2. File Motion to Dismiss (CR 12)
3. File a Notice of Appearance

Notice of Appearance
"To the P and to P's counsel, comes now the D by and through his attorney and hereby appears in the action."
-Not an answer, not a challenge, does not stop time period you have to respond.

Default Judgments
A. If you don't answer in 20 days, the other side can take a default. But if they don't default you can answer anytime until they do. You have as much time as you want to answer, provided a motion for default has not been filed. If default has been filed you must ask court for permission to file answer.
B. If you file a Notice of Appearance plaintiff must give defendant five days notice of motion for default. If they've waited a year to file for default, then they must give you 10 days notice of motion for default.
C. Always file Notice of Appearance to insure that you will receive notice of motion for default. If you do not respond to complaint they can get default judgment without notifying you.
D. If you file a Notice of Appearance and you get a motion for default you can still answer the complaint as long as you do so before the motion for default is actually heard.
E. If you do get defaulted, CR 60, Relief from Error, throw yourself on mercy of court. Almost always grant relief, but will likely sanction you (and you will probably lose your job).

-Judges hate default judgments, and will set them aside readily.
-You can get a default without giving notice, but you should give notice, even if they have not filed a notice of appearance.
-Duty to Cooperate Clause- in most Insurance policies- If insured person does not inform insurance company of legal action, insurance will not cover, and you may lose the pocket in your lawsuit.

How to Count CR 6
Four Basic Rules

1.The Day of the Act -or- When do I start counting?
-The day that something is done does not count.
EX John is served Jan. 5th, when is the last day that John can file? (20 days later) 25th
Jan. 5th does not count. Count 20 days beginning on Jan. 6th. The only day that doesn't count is the day that he is served. Count it out on your fingers, best way to be right.
EX Friday hearing. Judge says "have the papers to me 3 days before hearing". What day do you need to have your papers in? Tuesday. (Day of hearing does not count)

2. The 7/11 Rule -or- Do weekends & holidays count?
If the time to do something is less than 7 days, No. STATE- If the time to do something is 7 days or greater, Yes, weekends and holidays count. FEDERAL- If the time to do something is 11 days or greater, weekends and holidays count.
EX Friday hearing. Judge says "have papers to me 7 days before hearing". What day do you need to have your papers in? Friday.
EX Tuesday- File your answer in 5 days. Tuesday.
EX We need to file our response 5 days before the hearing on Friday the 13th. Friday the 6th.

3. The Business Days Rule -or- what if it lands on a non-business day?
If the due date falls on a weekend or holiday (after applying first two rules) it is due the next court day.

4. Post Office Rule -or- When does it need to be mailed?
Add 3 days (calendar days) to deadline, (you have 3 days less). CR 6e
You must mail it while allowing three days for it to arrive within the deadline.
EX Judge says "I want your answer by Friday". You can personally bring the answer on Friday, or mail it Tuesday.

Local Rules- Alphabetical by County
Counties- vary widely

Motion- Request to court for relief of some kind.
CR 7 - Does not define form of motions, state defers to county on form. (Counties cannot make rules that contradict state rules).
- Almost always in writing. Sometimes made orally, called "speaking motions", EX "move to strike". If you anticipate making a motion during the trial, you should have it in written form.

King County Local Rule 7
- Motion- 6 days notice to opponent for motion
- Opposition- 2 court days prior to the hearing by noon- opposition due
EX if motion will be heard on Friday, opposition due Wednesday by noon.
- Reply- 1 court day notice by noon- reply due
- Motion > Opposition > Reply
- Motions to be made in writing unless during trial.
- Motions should be pithy, to the point.
- Oral motions must be DISPOSITIVE (dispose of something- summary judgment, default judgment, motion for dismissal, CR 12b.)
- Motions are a) filed with court, b) to opponent, and c) to judge. (Judges/Working/Chambers copy- generally filed with Judges mailroom.)