A Defendant filed a Motion to Dismiss a LawSuit in January and in August the Court DENIED it, and remanded seeking further testimony/evidence from the Defendants? This evidence and testimony was submitted, Court Hearing was held in January. This evidence and testimony amounted to a review for a Summary Judgement (although in their Motion the Defendants, in a footnote, had asked the Court "not to" make a Summary Judgment?) The Civil Process is moving into the time scheduled for "Discovery" and so should the Plaintiff just wait and allow the Court to make a Judgment (based on the Defendants Motion to Dismiss and the new evidence and testimony) , or does the Plaintiff need to file a separate Motion for Judgment to force the Court to rule on the Motion to Dismiss? Although the Court has all it needs to make a Summary Judgment should the Plaintiff wait what may be another seven months? For, although the Court has sufficient evidence to rule that the Defendants did "knowingly, and with evil intent" violate the Plaintiffs Civil Rights, the Plaintiff, through discovery, wants to collect more evidence regarding the pain and suffering the Defendants unlawful behavior caused the Plaintiff?
The way you have discribed this is very confusing. The standards for a motion to dismiss and a motion for summary judgment are very different. A party has to make a motion, the Court does not just make a judgment. It is not clear who made the motion for summary judgment. If the Court denied the motion to dismiss, that motion is res adjudicata (adjudicated). The defendant would have to file a new motion on other grounds. It sounds like you really need to consult with an attorney with your file to go over the docket.
I'm not licensed in MA and cannot answer your question.
Your terminology is confusing. Remands are for cases removed to federal court and then sent back to state court.
Avvo questions shouldn't be so complicated that you run out of characters. This requires review of all the documents filed in the case and all the court orders issued, which is a multi-hour task. You're best off seeking an in-depth consultation with a MA-licensed lawyer.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
Your facts are a little confusing. First, a "remand" occurs when an appellate finds some error that is more than harmless but less than necessary for a reversal. A Motion to dismiss asks the court to find that there are no issues in controversy that entitles a party to judgment. The issue is ejected out of the court without any ruling for any party (but may be a constructive victory for the Defendant or moving party) Summary Judgment, although similar is different. When You seek Summary Judgement, you are telling the Court that a trial or hearing is not necessary as the pleadings warrant a finding. There is more to these but that is the basic idea.
As to the question of discovery, a party may still perform discovery pending either motion. When such a motion is pending, the deadline for discovery is suspended but not the ability unless ordered by the court. As with any rule or concept, there are exceptions. If this was my case, I would be inclined to perform discovery especially if some of the evidence may be time-sensitive. My experience is that any discovery can potentially lead to time-sensitive evidence as the potential to require testimony is present. Memories fade. I hope this helps you to understand these concepts. Nothing will take the place of good representation by a qualified attorney, however. He/she would know more of the specifics and form better responses.
No answer provided by this attorney in this forum is to be considered legal advice. No attorney-client relationship is created in responding to this question, and advice provided is based solely on very limited facts presented, and therefore may not be correct. You are advised that it is always best to contact a competent and experienced with the practice of law in the county in which you reside.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline