Sometimes judges act in strange ways....There are things you can do

[Bruce Weatherly]

Excerpts from  a  filing  will be self explanatory on events of the strange hearing that prompted it.  We want to show there are ways to make the court deal with its violations  of procedure  and of your rights.

 

On March 26, 2018 hearing was held on Plaintiff’s Motion for Summary Judgment .  The court has withheld its decision for the present. 

As the transcript of the hearing will show when obtained, prior to the beginning of the hearing Defendants attempted to advise the court of certain procedural facts and  ask clarity of the court  on  certain matters that would affect the necessity of the going forth of the hearing.

As the record will show, Defendants were denied the opportunity to seek clarity on these points and the hearing proceeded.

The court had issued its order EXTENDING DEADLINES for filing of all motions to March 15, 2018. See exhibit ED attached.

On [[date]] and  on [[date]] of record in this case,  Defendants had  filed MOTIONS TO COMPEL DISCOVERY on two separate discovery responses that were not satisfactory which motions are of record before the court.

Further, on [[date]] Defendants had filed a MOTION TO DISMISS also within the court’s deadlines. Defendants had  asked the clerk to set  hearing for these motions  and were told the court did  that or we could make application for hearing.

On February 9, 2018 Plaintiff filed their Motion for Summary Judgment.

In its order of March XX, of record in the case,  the court had originally set Plaintiff’s  Motion for Summary Judgment to be heard March 26, 2018 but the order was without reference to the 3 motions Defendant had also filed within the time allowed under the court’s order and without these being set for hearing.

On March 20, 2018, having received the setting order of the court, Defendants hand delivered  a letter to the Court pointing out the fact Defendants’ motions, though  timely filed, had not been set by the court for hearing with Plaintiff’s motion. See exhibit L attached.

On March 21  the court issued a second order of record in the case  only reaffirming Plaintiff’s  summary judgment motion for hearing on March 26.

The record shows neither Defendant nor the Plaintiff made any formal applications for hearing. Nor had either party filed a separate brief in support of any of their motions.

Never the less, Plaintiff’s motion for summary judgment was set for hearing and the motions of  the Defendant were not.

Defendant requests declaratory ruling of the court as to the basis and justification of the court for this action under Montana law.

 

II.

Further, under Rule 56 of the Rules of Procedure,

(2) Hearing. 
 (A) The right to a hearing is waived unless a party requests a hearing within 14 days after the time for filing a reply brief has expired. 
The record of this case shows  Plaintiff had made no such request within the time allowed, waiving his right to a hearing on their motion. Yet despite this, and despite the efforts at gaining hearing for their motions Defendants had consistently made, the court never the less exercised its own prerogative and set plaintiffs’ motion for hearing alone.

Defendant requests declaratory ruling of the court as to the basis and justification of the court for this action under Montana law.

 

III.

Under Rule  2 of the Rules of Procedure  (a) The moving party shall file a supporting brief upon filing a motion. (b) Failure to File Briefs. Failure to file briefs may subject the motion to summary ruling. The moving party's failure to file a brief shall be deemed an admission that the motion is without merit.

As the record shows, Plaintiff has filed no supporting brief in support of his motion in this instance.  Defendant acknowledges they have filed no briefs they are aware of in support of their motions either.

Defendant requests declaratory ruling of the court,  given the apparent procedural failures of both parties regarding their motions,  why  the court has set any of these motions for hearing instead of setting them all aside under Montana law?

 

IV.

Further, In its order of March 21 the court ruled…’other issues under   discovery  will be deferred  until  the court  resolves  the motion for summary  judgment,’  which defers decision on motions to compel more evidence on two sets of discovery. Further,  the record shows, the court has not scheduled a time for discovery  to close in this case so more  evidence may come forward. And  even now response is outstanding  in a third set of discovery  served the Plaintiff on  March 5. See exhibit D3 attached.

As the court knows both by Rule and case law summary judgment is only  granted when there are “no genuine issues of material fact in dispute requiring trial”.

As the court  knows, the court must review all  evidence  matters before it– admissions,  discovery, affidavits, etc.

But on the day of its hearing of summary judgment  the court was unable to do that. 

With evidence from 3 sets of discovery unresolved,   by the court’s own deferment NOT to resolve it  yet.   the court did  not  know on the day of hearing March 26,  what  Defendants’ evidence  was  going to windup being. 

Further,   the Plaintiff could  not yet show there was  no evidence to support  the  defenses of the Defendants ”, which they must do as a matter of law to ask for  summary judgment.

If any other evidence for Defendants’ case were to arise in the future from the 3 sets of discovery presently unresolved, the court would have to rehear any efforts for summary judgment by the Plaintiff to allow them to defend against any additional arguments such further evidence might support in additional  pleadings of the Defendant making the hearing of March 26 little more than an exercise in futility.

Given these facts on the day of hearing,  Defendant requests declaratory ruling of the court as to the basis and justification of the court under Montana law for its decision to allow the motion on summary judgment to be heard that day.  

Now the court will have to explain its actions which we do not believe they can do under the rules, Dr Weatherly

 

On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life.
I know, I have been with Him for 40 years.
And when we finally leave this world, we'll live with Him forever,  
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.
 Dr. Weatherly