Wednesday, April 29, 2009

Allen County Local Rules: Filing Motions

Once more into Local Rules with motions, those documents that we file with a court to get them to do something. To me this Rule is pretty much self-explanatory but I have added some comments for non-lawyers.

LR02-TR7-706 Motions
(1) It is the responsibility of the party that files a motion to schedule the motion for hearing on the Court’s calendar. If the parties agree that the Court should rule on the motion without a hearing, then the parties shall file a stipulation requesting the Court to rule on the motion without a hearing.

How to set a hearing? Call the court and get dates and times the court is available and then call opposing counsel and then call back the court. If the telephone line has conference calling, then use that and have the court and opposing counsle on the line at the same time.

I would also point out that some counties and some judges do not set motions for a hearing. Some judges cannot fight the temptation of a signature line so they sign off on any motion. Which means where one might have some defense or opposition to a motion that defense is lost.

I think a few points can be made about the following subsection.
(2) If a motion is set for hearing, notice of the hearing shall be given within the time limits provided by Trial Rule 6(D). Any written response to a motion set for hearing shall be filed within the time limits provided in Trial Rule 5(A), unless the hearing is set within ten days or less from the date the motion was filed, in which case the response may be filed at or before the hearing. Any other pending motion or motions may be heard at the same time as the previously scheduled motion, if time permits, and subject to notice of hearing being served on the opposing party or parties pursuant to the provisions of Trial Rule 6 (D).
First, it is not clear who prepares the notice of hearing - the filing party or the court. I think the better practice would be including the time and date for the hearing an Order.

Second, it appears that the folks in Fort Wayne provided for a time to respond to a motion. Why is this important? Let just say that in Madison County it seems to depend on the particular judge and their mood as to whether or not they will request a response to a motion.

About those cross-references to the Indiana Trial Rules, here is the language of the Rules.

(D) For motions - Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not less than five [5] days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may, for cause shown, be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(D), opposing affidavits may be served not less than one [1] day before the hearing, unless the court permits them to be served at some other time.

In.Tr.R. 5(A):

Rule 5. Service and Filing of Pleading and Other Papers

(A) Service: When Required. Unless otherwise provided by these rules or an order of the court, each party and special judge, if any, shall be served with:

(1) every order required by its terms to be served;

(2) every pleading subsequent to the original complaint;

(3) every written motion except one which may be heard ex parte;

(4) every brief submitted to the trial court;

(5) every paper relating to discovery required to be served upon a party; and

(6) every written notice, appearance, demand, offer of judgment, designation of record on appeal, or similar paper. No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided by service of summons in Rule 4.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906. For Allen County, I will go to Fort Wayne for divorces, custody cases, and grandparent visitation case.

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