How do I file a motion to dismiss or vacate a Harassment Protection Order?
I am going to court to extend an HPO (258E) against someone who filed one against me (falsely). I have evidence proving that this person was the sole aggressor, (including recorded voice mail threats and text/email messages,) and I want to file a motion to have her order against me vacated. I found a form for a general motion (http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/generalpurposemotion.pdf ), is this something I can fill out on my own and submit to a judge? The two orders were from different courts as well, (hers from Quincy and mine from Hingham.)
Answered You will likely have to file the motion to vacate the HPO in the court where the HPO was issued against you as venue for such proceedings is only appropriate in the district division where the plaintiff resides. As for the appropriate form, you may want to call the court where you plan to file that motion to ensure that the form online is the same one used in that court (sometimes the versions are different). You will also have to give the non-moving party notice of the hearing on your motion beforehand. You should check with the court about the proper procedures before filing and a clerk may be able to help you with your motion if you go to court and explain what you are trying to do. Best of luck.
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Please be sure to mark if you find the answer "helpful" or a "best" answer. (It lets us know how we are doing.) Attorney Kremer is licensed to practice in Massachusetts. Please visit her Avvo profile for contact information. In accordance with Avvo guidelines, the following disclaimer applies to all responses given in this forum: The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.
Answered On reflection, I don't think you can apply to have a 258E order vacated.
258E states in pertinent part:
Section 3. (a) A person suffering from harassment may file a complaint in the appropriate court requesting protection from such harassment. A person may petition the court under this chapter for an order that the defendant:
(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
(iii) remain away from the plaintiff’s household or workplace, whether the defendant is an adult or minor; and
(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees."
In contrast, 209A states:
"Section 3. A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including, but not limited to, the following orders"
Basically the difference between 258E and 209A is that 258E does NOT contain words which state: " including, but not limited to, the following orders" - thus a judge may reasonably take the position that the Court can only grant one of the four enumerated things (which I listed above).
Having said all that, there is no harm trying to have the order vacated, the worst thing is that the judge will say "no". I note that 209A does not expressly permit an order to be vacated, it's just the words that said "including, but not limited to".
Atty: 845-704-7777. This answer is provided for informational purposes only and does not constitute legal advice.... more
Atty: 845-704-7777. This answer is provided for informational purposes only and does not constitute legal advice. You should not take action based upon this information without consulting legal counsel. This answer is not intended to create, and does not create, an attorney-client relationship.
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