I have a motion to dismiss 12()(6) with a civil rule 7(k) attached to it. Please explain what i need to do. I am a pro

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Customer: I have a motion to dismiss 12(b)(6) with a civil rule 7(k) attached to it. Please explain what i need to do. I am a pro se litigant
Answered by JKEsq in 11 mins 2 years ago
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JKEsq
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JKEsq
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JKEsq, Expert

Hello I will be the attorney assisting you today. Please note this site is for general information for educational purposes only and does not constitute legal advice, nor does it establish an attorney-client relationship. You may receive an offer from the site for a phone call that I have no control over being offered to you. This is an optional paid service and another expert would call you when available as I do not participate in calls as an actively practicing attorney.

A 12b motion is a motion to dismiss which is set for hearing and heard by a judge.

A 7(k) is the Virginia local court rule. It says:

"(K) Motions Against Pro Se Parties: It shall be the obligation of counsel for any party who files any dispositive or partially dispositive motion addressed to a party who is appearing in the action without counsel to attach to or include at the foot of the motion a warning consistent with the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). The warning shall state that:

(1) The pro se party is entitled to file a response opposing the motion and that any such response must be filed within twenty-one (21) days of the date on which the dispositive or partially dispositive motion is filed; and

(2) The Court could dismiss the action on the basis of the moving party's papers if the pro se party does not file a response; and (3) The pro se party must identify all facts stated by the moving party with which the pro se party disagrees and must set forth the pro se party's version of the facts by offering affidavits (written statements signed before a notary public and under oath) or by filing sworn statements (bearing a certificate that it is signed under penalty of perjury); and (4) The pro se party is also entitled to file a legal brief in opposition to the one filed by the moving party

Per the rule title, 7(k) is only for cases with counsel is AGAINST a pro se party, not when you ARE a pro se party. 7(k) doesnt apply to you if you ARE pro se filing a motion or pleading. The rule says " It shall be the obligation of counsel for any party who files any dispositive or partially dispositive motion addressed to a party who is appearing in the action without counsel "

You dont/didnt need a 7(k) attached to your motion. But there is nothing to "do" with it. It is just meant to be a warning to the opposing (pro se) party of their rights to file a response and must do so within 21 days.

Please let me know if you have any questions about my reply or in general. I'll be glad to answer them. If I've answered your question fully I would greatly appreciate a 3-5 star (hopefully 5) rating at the top right of this chat box ★★★★★ and hit "Submit." This is a rating for my level of service helping you, not whether the law agrees with you or not or the answer was not what you hoped to hear. See ww2.justanswer.com/sites/default/files/help/Untitled.gif how to rate.

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Customer
i want to amend to zero in on certain claims. Do i motion to amend or do i just get to amend without leave of court?
Customer
I filed a suit. I filed it Pro Se. I got a motion to dismiss from defense. So i dont have to get anything notarized? And when i file an amendment do i just file it or do i motion to amend and attach amended complaint?
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JKEsq, Expert

If you would like to ask a different question you would need to leave the 3-5 star rating so I get my credit and then I can address a separate question on amending the motion.

Amendments are under Rule 15- you need court permission (motion for leave to amend) if it is beyond 21 days after serving it is the bot***** *****ne.

"(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later."

Customer
i can amend as a matter of course since im answering 12(b)(6) without asking the court, yay or nay?
Customer
I definetly gave you 5 stars
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JKEsq, Expert

This was already answered

"(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Under 21 days since serving yes. After 21 days motion for leave.

Customer
Sorry i didnt understand at 1st. So motion to amend and attach amendment? Got it. And rule 7(k) doesnt apply to me, the pro se plaintiff?
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JKEsq, Expert

Yes

And no 7(k) says " It shall be the obligation of counsel for any party who files any dispositive or partially dispositive motion addressed to a party who is appearing in the action without counsel " You arent counsel

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JKEsq, Expert

It doesnt hurt you to have a 7(k) notice though; you wont be scolded for having it as its just a notice

Customer
Ok..that saves me some work..i hope the court is even open to file this..hope you're healthy n safe
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