AP notice received today ... scared ... stressed ... long story thanks for helping

[scbendel]

Thanks Des. I will download the audio and give it a listen. The initial hearing was very short, and I'm about 98% sure since be moved the rule 16 conference to 45 days out, he didn't open discovery. His rules even state that discovery doesn't happen until much later. When I listen to the audio, if it says nothing about discovery, what then? Is a break of procedure grounds for dismissal? Wishful thinking maybe?

[despritfreya]

Scb,

You need to check the adversary docket on PACER. You will find that all hearings are available for audio download. You need to listen to the hearing. Do not go on memory alone. During the hearing, if discovery was opened up, there will be a reference to it. It might even be towards the end. Since the other side has sent out some discovery my guess is that your judge authorized it. If not then you can mention it at the next hearing along with an indication that you have had not contact but for the discovery. Again, it is important for you to listen to the recording of the last hearing.

Des.

[scbendel]

Hello Des, Thank you for replying. We have not had our meet and confer yet, the attorneys on the other side have not reached out to us for this meeting. Our scheduling conference is on September 19, and this was supposed to be done by them before hand. There is no discovery plan, we have not met with the attorneys yet, we do not have initial disclosures from them and have not sent them to them. We received their discovery request today, and it is simply asking for us to produce all documents we will submit as evidence. Any suggestions?

[despritfreya]

You need to listen to the recording of your last hearing. Did your judge open discovery up? Did you put on the record a "discovery plan"? Access your PACER account and download the minute entry from your last hearing that is marked "audio recording" or some similar phrase or icon.

Des.

[LadyInTheRed]

Probably just a finger waggling from the judge. You need more than procedural errors to get a case dismissed.

[scbendel]

I will speak with the deputy today and see what she thinks. If they are acting prematurely, is this grounds for dismissal? Or just another slap on the wrist from the judge?

[LadyInTheRed]

I think sending discovery before you have met and conferred is premature. See Federal Rule 26(d) "Timing and Sequence of Discovery": http://www.law.cornell.edu/rules/frcp/rule_26 But, also check the local rules and your judge's procedures.

ETA: Keep in mind that I have no experience with APs. I just looked up the Federal Rules of Procedure.

[scbendel]

So, we have another status conference on September 19th, and still have not been reached out to by the plaintiff's counsel. They did submit discovery requests, today, which I'm waiting for the mail to see what they're asking for...but have not followed any of the judge's procedures (meet and confer withing 14 days before hearing, etc). What can I do, if anything? I understand it's their burden to reach out to us, and they still have not. Would this be grounds for dismissal yet? Should I do anything? I called the court to request another continuance, but am awaiting a call back. This is just ridiculous how they're waiting to the last minute, hoping we won't have time to get anything together before the next scheduling hearing. They haven't even sent initial disclosures or their half of the pretrial statement.

Is asking for discovery when they haven't done anything else even something they are allowed to do yet?

Please anyone let me know ASAP so I don't lose any more time.

Thank you all in advance!

[scbendel]

Ok so I went to the hearing last Tuesday. The judge seemed irritated that my wife wasn't there. He made a joke with opposing counsel about not following his specific procedures and left it at that. We have another rule 16 conference next month. I reiterated the facts that we are disputing, and that's all that the plaintiff needs to prove, but his attorney felt the need to rehash the entire civil case; which is not necessary. If that happens at trial, I will be objecting based on relevancy. What we did at the time isn't relevant if it doesn't help prove the allegations in 523a4 and a6, correct?

Anyhow, we will be waiting for the initial disclosures and first draft of their half of the joint pretrial statement in order to send ours and then add our half to it. I'll keep y'all posted.

On a lighter note, I called the clerk today and she entered our discharge!! So for that part, I'm very excited. But still have this pit in my stomach about the impending trial.

Ok that's all for now, I'll post more when I hear from the other side.

[despritfreya]

You just inform the judge, assuming the other side shows up in some way. If no show then do a speaking motion to dismiss for lack of prosecution.

Des.

[scbendel]

Okay, so the hearing is tomorrow. The other side still has not reached out to us to prepare a joint pretrial statement. I found an order on our judge's rules listing that orders they serve a copy of this judge's particular rules of AP on us, and that also was not included in the filing as ordered. Would this be a grounds for filing a dismissal based on their lack of following procedures? Or should I just speak up about it at the hearing tomorrow? All I currently have are my initial disclosures to the other party, but I obviously have not sent them since they haven't reached out to us yet.

[scbendel]

Thanks Des! I found the number to appear telephonically. I'll be there for sure in person.

I'm drawing up my initial disclosures tonight.

[despritfreya]

You can represent the "marital community" however, if your wife wishes to participate she can probably do so telephonically. Call the court to see if that is possible and, if so, to get the call-in number for your Judge. I do recommend at least one of you physically attend. Just looks good.

Des.

[scbendel]

Des, can I go alone? Or does my wife need to be there? We're having trouble getting a sitter and I know how the court frowns on children in the courtroom.

[despritfreya]

So should I still write up my initial disclosures and send them to the attorney?

Yes, not because you are required to, but because it puts you in a good light with the Judge. . . poor pro se defendants are actively trying to move things along while Plaintiff with lawyer is not following the Rules. Remember, file with the Court (in the AP case number) a Notice of Service of Initial Disclosures.

At this point, would it be safe to file a MSJ and/or a motion to dismiss? Since they haven't done their due diligence in contacting me, would this be a grounds for dismissal? What exactly is a MSJ? Sorry for all the questions.

It may not be "ripe" for such a Motion and since you will need to research how to properly do one (look up other AP cases), you do not want to rush it. A MSJ is asking the Court to rule in one's favor based upon the pleadings and evidence before the court. It is alleging that based upon those pleadings and evidence there simply is no need for a trial as the documents show that there are no material questions of law or fact therefore the Judge can rule "now".

I might suggest you review what was filed in the following AP as it relates to a MSJ. I followed this case as it was big news in the Valley last year - the largest jury award ever given. There was no way the Debtor was going to defeat a MSJ - no matter how hard she tried.

2-12-ap-01036

While you certainly can ask (especially if the Plaintiff fails to appear at the Scheduling Conference), typically the answer would be "no" - failure to contact you for the required "meet & confer" is not grounds for dismissal. If the Plaintiff appears at the Hearing the Judge may admonish the other side and leave it at that. However, if the other side does not appear (physically or by phone) you can make a speaking "Motion to Dismiss for Failure to Prosecute".

Des.