Re: the definition of final order
- From: nospam@xxxxxxx
- Date: Wed, 04 Jul 2007 23:48:24 GMT
On 4 Jul 2007, "puppa" <finchlady888@xxxxxxxxxxx> said further about a
U.S. district judge's grant of summary judgment dismissing this
poster's federal lawsuit on the ground that it was time-barred:
Defendant's attorney ADMIT almost every
paragraph of my 56.1 statements . . . . [each
of which] has citation(s) (Answer, Discovery
document,,,). * * * District court has the
opinion that plaintiff failed to present evidence.
This raises these two questions, the first of which you appear to
answer (implicitly), but in a manner not favorable to you, and the
second of which you have not answered at all in your previous or
present postings:
If this is the gist of your contention in this
connection (though you do not actually so say),
for what, if any, factual reason would it not be
proper to determine the time-bar:yes?/no?
question as a matter of law based entirely on
not disputed and (as a matter of documentary
evidence on file in the case) not reasonably
disputable facts (such as, e.g., when you allege
in your complaint the wrong for which you seek
redress occurred and when you first filed your
complaint and, perhaps, whatever is the proof
of service of process you obtained and filed) --
i.e., what, if there are any, are the disputed
facts about any material aspect of this issue
that need to be tried to determine the motion?
Even if one were to assume that you would be
able to answer the above question here, did you
present that evidence, i.e., evidence in opposition
to defendant's motion for summary judgment?
Ordinarily - in light of frequently made and often needed distinctions
between "allegation" and "proof" - a reference to a statement in a
pleading is not itself of sufficiently evidentiary weight to satisfy
this requirement - unless, f'r'instance, it is to an allegation in a
"verified" pleading, so that it may used as the functional equivalent
of an affidavit (or, in Calif., of a "declaration" if made under
penalty of perjury) with the same effect as oral testimony, or a
pleading allegation that incorporates by reference some attached or
otherwise supplied document important to the case, or an admission in
a pleading of some material fact alleged by the adverse party - and,
too, your reference here, without more, to some sort of not specified
"Discovery document" also does not enable someone whose knowledge of
the lawsuit is limited to what you say in your postings to know
whether whatever that document may be has or does not have any
evidentiary content.
Perhaps more to the point, what you go on to say and complain of below
raises the two questions, which you do not answer here or in your
other posting, (i) whether any evidence is required besides when you
alleged in your complaint the wrong you complain of occurred and, as a
matter of the court's own records, when you commenced your lawsuit to
require a dismissal on the ground of an alleged affirmative defense of
lapse of time given whatever is the applicable statute of limitations
and (ii) whether you provided the court with that evidence in your
opposition papers even if there were such.
I am very confused why admitted 56.1 statement is
not admissible evidence in summary judgement motion.
Unfortunately, because (other than generally to summarize the stated
basis for the grant of summary judgment dismissing it) you continue
not actually to report most of the factual specifics of the lawsuit,
there is not any way to tell only from what you said earlier and say
here whether your statement of (undisputed? disputed?) facts contained
any evidentiary material (albeit you also do not report here what
evidence the court said you did not submit that you should have if you
wanted to defeat the summary judgment motion).
There arguably ought be not shame in especially pro se lay persons
being "confused" about these issues, although, if you are (confused),
it may be hard for a reader to credit your immediately following
statement:
District court's ruling is inconsistent to other case
laws.
Maybe, it is; but, maybe, it isn't. But, again, whether the motion to
which you refer required a factual determination other than "as a
matter of law" by reason of whatever were the documents submitted by
the respective parties and admissions (or not disputed issues) of fact
in their respective pleadings is not certainly (reliably) determinable
(one way or t'other) by anything you have so far said in this thread.
The second issue is defendants never wrote one single
word and never present any evidence to support the
defense of statute of limitation in their motion paper.
Defendant's Answer asserts the defense. District court
ruled that plaintiff's claim is time-barred.
Litigants and their lawyers frequently argue sometimes incorrectly
that some fact and issue material to the case is "clear on its face";
but, sometimes, an issue is "clear" from the "face" of some document
that is not in dispute or which cannot be fairly disputed.
One example that might illustrate the latter "sometimes" is this (or
something close): in a jurisdiction governed by a three-year statute
of limitations to recover damages for negligently caused personal
injury, plaintiff for the first time on June 15, 2007 files and causes
the personal service on defendant of a summons with a complaint that
alleges that defendant, who at all material times had been amenable to
suit (i.e., who had not absconded from the jurisdiction and was
readily findable therein by use of ordinary diligence and who had not
said or done anything else that prevented plaintiff from suing so that
there would not be an occasion for a "tolling" claim or for estoppel
against relying on a time-bar defense), injured plaintiff on June 15,
2000 as the result of some sort of otherwise sufficiently alleged
negligent act whereupon defendant within the time required by the
applicable rule therefor serves and files an answer alleging that the
lawsuit is barred by the said statute of limitations.
In this example, no further evidence from defendant would be needed to
sustain a dismissal on time-bar grounds, although it is at least
theoretically conceivable that plaintiff might present evidence (e.g.,
if there are facts to this effect, of estoppel by reason of acts by
defendant that ought preclude defendant from relying on that defense);
and although I do not know (because you have not said here) that you
had a fact-based response to why defendant's motion ought not have
been granted on the basis of what you alleged in your complaint in
light of whatever the applicable statute of limitations may be, you
have not reported any (such facts) in your postings.
I have a case law (2d cir) that says if a defense is not
asserted in summary judgement motion, then the defense
is abandoned. Furthermore, defendants never asserted
the issue in their motion paper. Certainly, I did not
repond the issue. The issue regarding statute of limitations
is never briefed (heard) before district court.
What, then, was(were) the ground(s) for and evidence submitted in
support of defendant's motion?
If you saying are that the court sua sponte invoked the time-bar
defense, it is at least theoretically possible (even if that defense
was alleged in the answer) that you may have a (perhaps:
hypertechnical?) objection in this connection if you were also able to
show that you have been prejudiced by such judicial act.
It is just that in this respect, too, there is not any way for a
reader only what you so far said in this thread to evaluate whether
the procedural objection you here raise is (or isn't) well-founded.
Certainly, however, you have not yet said in this thread that (much
less how) you have been prejudiced by even a sua sponte such dismissal
although you seem to suggest that you were not prejudiced (especially
if, as you say did occur, defendant had alleged the time-bar defense
in the answer) and (as already discussed) you have also not yet shown
(at least not in your postings in this thread) how/that the time-bar
defense is not properly resolvable as a matter of law based entirely
on what you had caused to be filed in the lawsuit.
(Nor, BTW, have you yet reported that you are in the 2d circuit and,
whether or not you are, you have not cited the decision to which you
refer so that one can tell whether you are/aren't reading it correctly
in light of whatever are the documents in the case on which, as
presumably he said in filed findings, the district judge relied.)
I am very confused if district court can
decide an issue without a hearing. This is
a matter of due process.
You suggest the possibility, not probability (much less certainty),
that you've been denied due process. However, evaluating whether the
court subjected you to any such denial would require knowing the
details of what you and defendant alleged in your respective
pleadings, on what ground(s) defendant moved for summary judgment, and
what each of you and defendant submitted to the court in support of
and in opposition to that motion -- in other words, the factual
specifics you have been assiduous in your postings in this thread in
refraining from reporting.
The other point is there is no evidence on record
that shows plaintiff can discover the facts to commence
this action on the date stated in district court's opinion.
Unless/until further explained factually, this is an incoherent -
anyway, not meaningfully evaluatable - statement. It may also be an
irrelevant statement bearing in mind that you do not identify what
facts a plaintiff in your position (that is: you) would claim to need
to "discover" as a predicate to suing (assuming, if perhaps
incorrectly, that the grant of summary judgment would not be a basis
in light of some combination of "res judicata" or "collateral
estoppel" principles to bar a second lawsuit regardless what facts
plaintiff discovered and whenever plaintiff might discover them) or,
even if there were such (facts yet to be discovered) whether there is
a basis in law for pre(second)suit discovery.
Again, however, none of these comments are to argue that you have not
been wronged in some not yet by you adequately specified way or that
your appeal (if timely filed and prosecuted) would not be merited
because you have not provided anywhere enough factual information
about the lawsuit to enable any such argument (or counterargument).
.
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