I sent to plaintiff motion to dismiss. 16 days later an opposition to motion is shipped. it is past what is allowable for time pursuant to 9A
Do I still have to send their opposition to my motion? or Can I just send without plaintiff's opposition to court now stating they did not follow 9A Rules by showing shipping date that is marked by FEDX.
If you sent your motion by mail, note that the the opposing party gets and additional 3 days (according to MRCP 6(d) - see below) to serve the opposition. If a weekend or holiday is involved, it may be more than 3 days per 6(d).
You cannot file your 9A package until waiting 3 business days after the date the opposition was due according to 9A (see Sup. Ct. R. 9A(b)(2)). Check the dates against Rule 6 to be sure that the opposition is not timely.
Even if it is not timely, if you have received the opposition before you have filed your Rule 9A Package, as a matter of practice, you should file it as the Court likely will not prevent the opposing side from doing so. Also, you will have to explain the issue to the Court in your 9A affidavit of compliance and the Court may not look favorably on you for not filing it when you have received it, albeit late.
Note that you need to write a letter to the Presiding Justice seeking leave to file a reply brief to address any new issues in the opposition and you must do so within 5 days of service of the opposition (see Sup. Ct. R. 9A(a)(3)). If you do, you may want to mention that the opposition technically was served late just to create a record in case this type of noncompliance occurs again.
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes those days specified in Mass. G.L. c. 4, § 7 and any other day appointed as a holiday by the President or the Congress of the United States or designated by the laws of the Commonwealth.
(b) Enlargement. When by these rules or by a notice given thereunder or by order or rule of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; or (3) permit the act to be done by stipulation of the parties; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), except to the extent and under the conditions stated in them.
(c) 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 later than 7 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(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.
(d) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other papers upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.
Mr. Thomas is licensed to practice law in Massachusetts. This response is not legal advice and does not create an attorney/client relationship. This response is in the form of legal education and is intended to provide general information about the matter within the question. Often, the question does not include significant and important facts and timelines that, if known, could significantly change the reply. Mr. Thomas strongly advises the questioner to confer with an attorney to make sure he or she gets all relevant information to make informed decisions about the subject matter.
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They file their own opposition with the court, you don't have to do it.
Your reply to their opposition can mention (but I wouldn't stress it) that their opposition was served late, if it was. Make sure you check the rules for services by FedEx.
regardless of any procedural argument you may have, it's much more important to address their substative arguments opposing your motion. That's what you should focus on in your reply.
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Send it in with cover letter.
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