When do you file pleadings in a tort case if filing Pro Se?
Full Question:
When do you put in any pleadings in a tort/vehicle case. At the time of filing or after filing at your choice? I am filing pro-se, need assistance in when to file pleadings and other documents, in the event this case goes to trial.
04/29/2009 |
Category: Civil Actions |
State: Arizona |
#16373
Answer:
Please see the following Arizona Rules of Cibvil Procedure to Determine applicability:
Rule 7. Pleadings allowed.
(a) Pleadings. There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross-claim, if the
answer contains a cross-claim; a third-party complaint, if a person who
was not an original party is summoned under the provisions of Rule 14;
and a third-party answer, if a third-party complaint is served. No other
pleading shall be allowed, except that the court may order a reply to an
answer or a third-party answer.
(b) Demurrers, pleas, and exceptions for insufficiency abolished.
Demurrers, pleas, and exceptions for insufficiency of a pleading shall
not be used.
Rule 7.1. Civil motion practice.
(a) Formal requirements. An application to the court for an order shall
be by motion which, unless made during a hearing or trial, shall be in
writing, shall state with particularity the grounds therefor, and shall
set forth the relief or order sought. The requirement of a writing is
fulfilled if the motion is stated in a written notice of the hearing of
the motion.
All motions made before or after trial shall be accompanied by a
memorandum indicating, as a minimum, the precise legal points, statutes
and authorities relied on, citing the specific portions or
pages thereof, and shall be served on the opposing parties. Unless otherwise
ordered by the court, affidavits supporting the motion shall be filed and
served together with the motion. Each opposing party shall within ten
days thereafter serve and file any answering memorandum. Within five days
thereafter the moving party may serve and file a memorandum in reply,
which shall be directed only to matters raised in the answering
memorandum. Affidavits submitted in support of any answering memorandum
or memorandum in reply shall be filed and served together with that
memorandum, unless the court permits them to be filed and served at some
other time. The trial court may in its discretion waive these
requirements as to motions made in open court.
The time and manner of service shall be noted on all such filings, and
shall be governed by Rule 6 of these Rules. If the precise manner in
which service has actually been made is not noted on any such filing, it
will be conclusively presumed that the filing was served by mail, and the
provisions of Rule 6(e) of these Rules shall apply. This conclusive
presumption shall only apply if service in some form has actually been
made. The time periods specified in this paragraph shall not apply where
specific times for motions, affidavits or memoranda are otherwise provided
by statute, the Rules of Civil Procedure, or order of court.
The rules applicable to captions and other matters of form of pleadings
apply to all motions and other papers provided for by this Rule, and all
such motions and other papers shall be signed in accordance with Rule
11.
(b) Effect of non-compliance. If a motion does not conform in all
substantial respects with the requirements of this rule, or if the
opposing party does not serve and file the required answering memorandum,
or if counsel for any moving or opposing party fails to appear at the
time and place assigned for oral argument, such non-compliance may be
deemed a consent to the denial or granting of the motion, and the court
may dispose of the motion summarily.
(c) Law and motion day. (1) Unless local conditions make it
impracticable, each superior court shall establish regular times and
places, at intervals sufficiently frequent for the prompt dispatch of
business, at which motions requiring notice and hearing may be heard and
disposed of. The judge at any time or place and on such notice, if any,
as the judge considers reasonable may make orders for the advancement,
conduct, and hearing of actions.
(2) To expedite its business, the court may make provision by rule or
order for the submission and determination of motions without oral
hearing upon brief written statements of reasons in support and
opposition.
(d) Oral argument. Oral argument shall be limited, in accordance with
local rules, to a prescribed number of minutes, which shall not be
exceeded without special permission in advance.
(e) Motions for reconsideration. A party seeking reconsideration of a
ruling of the court may file a motion for reconsideration. All motions
for reconsideration, however denominated, shall be submitted without oral
argument and without response or reply, unless the court otherwise
directs. No motion for reconsideration shall be granted, however, without
the court providing an opportunity for response. A motion authorized by
this Rule may not be employed as a substitute for a motion pursuant to
Rule 50(b), 52(b), 59 or 60 of these Rules, and shall not operate to
extend the time within which a notice of appeal must be filed.
Rule 12. Defenses and objections; when and how presented; by pleading or
motion; motion for judgment on pleadings.
(a) When presented. (1) A defendant shall serve and file an answer
(A) within twenty days after the service of the summons and
complaint upon the defendant, except as otherwise provided in Rules
4.2(d) and 4.2(m) of these rules; or
(B) if service of the summons has been timely waived on request
under Rule 4.1(c) or 4.2(c), within sixty (60) days after the date when
the request was sent, or within ninety (90) days after that date if the
defendant was addressed outside any judicial district of the United
States.
(2) A party served with a pleading stating a cross-claim against that
party shall serve and file an answer thereto within twenty days after
being served. The plaintiff shall serve and file a reply to a
counterclaim in the answer within twenty days after service of the answer
or, if a reply is ordered by the court, within twenty days after service
of the order, unless the order otherwise directs.
(3) Unless a different time is fixed by court order, the service of a
motion permitted under this rule alters these periods of time as
follows:
(A) if the court denies the motion or postpones its disposition
until the trial on the merits, the responsive pleading shall be served
within ten days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the
responsive pleading shall be served within ten days after service of the
more definite statement.
(b) How presented; motion to dismiss. Every defense, in law or fact, to
a claim for relief in any pleading, whether a claim, counterclaim,
crossclaim, or third-party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the following defenses
may at the option of the pleader be made by motion:
1. Lack of jurisdiction over the subject matter.
2. Lack of jurisdiction over the person.
3. Improper venue.
4. Insufficiency of process.
5. Insufficiency of service of process.
6. Failure to state a claim upon which relief can be granted.
7. Failure to join a party under Rule 19.
A motion making any of these defenses shall be made before pleading if a
further pleading is permitted. No defense or objection is waived by being
joined with one or more other defenses or objections in a responsive
pleading or motion. If a pleading sets forth a claim for relief to which
the adverse party is not required to serve a responsive pleading, the
adverse party may assert at the trial any defense in law or fact to that
claim for relief. The defense numbered 3 may be made only if the action
cannot be or could not have been transferred to the proper county
pursuant to A.R.S., § 12-404. If, on a motion asserting the defense
numbered 6 to dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
(c) Motion for judgment on the pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may move
for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded
by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by Rule 56.
(d) Preliminary hearings. The defenses specifically enumerated as 1
through 7 in subdivision (b) of this Rule, whether made in a pleading or
by motion, and the motion for judgment mentioned in subdivision (c) of
this Rule shall be heard and determined before trial on application of
any party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
(e) Motion for more definite statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, the party
may move for a more definite statement before interposing a responsive
pleading. The motion shall point out the defects complained of and the
details desired. If the motion is granted and the order of the court is
not obeyed within ten days after notice of the order or within such other
time as the court may fix, the court may strike the pleading to which the
motion was directed or make such order as it deems just.
(f) Motion to strike. Upon motion made by a party before responding to
a pleading or, if no responsive pleading is permitted by these Rules,
upon motion made by a party within twenty days after service of the
pleading upon the party or upon the court's own initiative at any time,
the court may order stricken from a pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of defenses in motion. A party who makes a motion
under this rule may join with it any other motions herein provided for
and then available to the party. If a party makes a motion under this
rule but omits therefrom any defense or objection then available to the
party which this rule permits to be raised by motion, the party shall not
thereafter make a motion based on the defense or objection so omitted,
except a motion as provided in subdivision (h)(2) hereof on any of the
grounds there stated.
(h) Waiver or preservation of certain defenses. A party waives all
defenses and objections which that party does not present either by
motion as hereinbefore provided, or, if that party has made no motion, in
that party's answer or reply, except
(1) A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of process
is waived (A) if omitted from a motion in the circumstances described in
subdivision (g), or (B) if it is neither made by motion under this rule
nor included in a responsive pleading or an amendment thereof permitted
by Rule 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under Rule
19, and an objection of failure to state a legal defense to a claim may
be made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.
