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Author Topic: Ruling on motion  (Read 2608 times)

annemichellesdad

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Ruling on motion
« on: Mar 02, 2007, 05:35:24 AM »
State of GA.

GA law says that rulings on motions will be without oral hearing unless requested otherwise by either party. In my civil action for parental interference, defendant filed a motion to dismiss, and I promptly filed a response. My response was filed 3 1/2 months ago and we have heard nothing from the court. I requested that a jury trial be granted. I did NOT file for a rule nisi.

1 - I know the wheels of justice move slowly, but does this seem unusually long? And if so, is there anything I can do to get things moving?

2 - Defendant's motion was VERY weak. Of course, I expected the motion, but her attorney did not raise the strongest arguments I had anticipated. In fact, the only caselaw she provided was both misquoted AND misinterpreted. Can the judge dismiss the complaint on any basis not specifically raised in defendant's pleading (other than obvious problems such as jurisdictional issues, of which there are none)? I know the "text book" answer, but what happens in the "real world"?

Thank you


socrateaser

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RE: Ruling on motion
« Reply #1 on: Mar 02, 2007, 08:44:32 PM »
>1 - I know the wheels of justice move slowly, but does this
>seem unusually long? And if so, is there anything I can do to
>get things moving?

File a rule nisi.

>
>2 - Defendant's motion was VERY weak. Of course, I expected
>the motion, but her attorney did not raise the strongest
>arguments I had anticipated. In fact, the only caselaw she
>provided was both misquoted AND misinterpreted. Can the judge
>dismiss the complaint on any basis not specifically raised in
>defendant's pleading (other than obvious problems such as
>jurisdictional issues, of which there are none)? I know the
>"text book" answer, but what happens in the "real world"?

Judge can dismiss as de minimis or mootness or nonjusticiable, etc.

annemichellesdad

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RE: Ruling on motion
« Reply #2 on: Mar 04, 2007, 11:58:56 PM »
>>1 - I know the wheels of justice move slowly, but does this
>>seem unusually long? And if so, is there anything I can do
>to
>>get things moving?
>
>File a rule nisi.


1 - Just a white bread rule nisi, asking that the other party appear in court to show cause why my prayers should not be granted?


2 - How will a rule nisi hearing affect the pending motion from the other party to dismiss?

3 - As mentioned earlier, her attorney did kind of poor job on the motion to dismiss. When we appear in court, what would stop the attorney from trying to make arguments not appearing in the original motion? Would seem awfully unfair to be able to argue legal points not raised in the written motion, thus denying me the opportunity to prepare the rebuttal.

Thank you



socrateaser

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RE: Ruling on motion
« Reply #3 on: Mar 05, 2007, 02:33:02 AM »
>1 - Just a white bread rule nisi, asking that the other party
>appear in court to show cause why my prayers should not be
>granted?

You filed a motion to obtain a decision. When you don't ask for a hearing, the judge shoves the motion on the bottom of the inbox file, in favor of all the calendared motion hearings. Put your motion on the calendar, and the judge has to rule.

The only time to waive a hearing is when your position is so obvious that the other party would never contest it (e.g., a continuance for case management purposes).

>2 - How will a rule nisi hearing affect the pending motion
>from the other party to dismiss?

Same thing. Everyone gets in front of the judge who must then decide.

>3 - As mentioned earlier, her attorney did kind of poor job on
>the motion to dismiss. When we appear in court, what would
>stop the attorney from trying to make arguments not appearing
>in the original motion? Would seem awfully unfair to be able
>to argue legal points not raised in the written motion, thus
>denying me the opportunity to prepare the rebuttal.

Generally, a motion for a substantive ruling not previously briefed will be denied by the judge, and if not, then you can request a continuance on any new issue as unfair surprise, so that you can prepare to fairly meet the new issues and evidence.

annemichellesdad

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RE: Ruling on motion
« Reply #4 on: Mar 05, 2007, 06:23:34 AM »

>
>Generally, a motion for a substantive ruling not previously
>briefed will be denied by the judge, and if not, then you can
>request a continuance on any new issue as unfair surprise, so
>that you can prepare to fairly meet the new issues and
>evidence.


Very helpful and a relief to know. Thank you.


 

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