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In civil procedure Rule 16 “pretial procedure...

Resolved • Response time 5 minutes

7 Dec 2021

In civil procedure Rule 16 “pretial procedure formulating issues” does a party ever motion the Court to direct the parties/case for any of the 11 subsections, or only the judge uses this Rule 16? Thank you!
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7 Dec 2021

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Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

Hello, my name is ***** ***** I'm an attorney expert with Just
Answer.  I have reviewed your initial question and would like to help you
resolve your legal issue.  Please give me a few minutes to type out my
response and I'll then be happy to discuss any follow up questions you might
have.   I appreciate your patience.

7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

As stated in the first section of Rule 16, the purposes of the conference is to accomplish any of the objectives listed (specifically section C(2)).  The court will direct parties to attend this conference and participate in good faith to achieve a more efficient path through the end of the discovery process and up to trial.  Any party called to participate in the conference may raise the issues listed within this Rule, but the Court will also have their own standard issues that they address at every conference.

If there is a particular subsection of Rule 16  that you wish to raise yourself (or through your attorney), this conference is where it is brought up.  There is no need to make any motion or draft any other writing prior to the hearing in order for a particular issue to be discussed.  The judge, when necessary, will then reduce any agreements or decisions made at the conference to a pretrial order.

Let me know if this addresses your concerns or if you have additional questions.

7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

The full text of the Rule 16 can be found here:

Rule 16

7 Dec 2021
Customer reply
7 Dec 2021
Ok. This is really great TY. My follow up thoughts are this:I want to use rule 16 to bring up the fact that the Clerk never entered default when the Defs failed to file an Answer or Rule 12 Motion according to the tracking order. They filed 7 days late. The clerk did not enter default. I feel 60(a) could work? I wanna get them to notice the clerk never entered the default and have the Court move the case into ADR, or settlement conference. I know it’s a big ask, a fools dream. But I wanna try to get that default entered.
7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

Did the clerk give you a reason for not entering the default?  Was it ordered by the judge?

7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

Also, in reviewing Rule 60, it concerns "clerical errors," not errors by the clerk.  These are two very different things.  I do think the court would be very happy to hear that you would prefer ADR rather than a full blown trial.  However, it would be very unlikely that it would be ordered so close to trial unless the other party agreed to it.

7 Dec 2021
Customer reply
7 Dec 2021
Massachusetts Standing Orders 1-88 Time Standards G(i)(2), if the defense fails to Answer or file a Rule 12 Motion according to these standing orders “the clerk shall issue a default…and notify all parties.”I don’t think any of us caught it, except the Defendants who must know they missed the deadline.I don’t know how to get the Court to look at this matter of possible default.
7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

I think that the conference would be the perfect time to raise that issue.  I don't see any reason why, if that's what happened, you should not bring it up then.

7 Dec 2021
Customer reply
7 Dec 2021
But can I request a conference for just that to be dug into? Or can the matter be raised orally by motion at a hearing on another matter?I don’t know how to bring this matter up. Maybe it’s a motion for clarification with request for hearing.I’m sorry I am so dense. I am also dyslexic so it takes me a lot of time to “decode” written language. I apologize.
7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316
Attorney

No, not at all, you're absolutely fine.  I believe you should bring up the default issue at the Pretrial Conference.  I assume that it is already scheduled, correct?

7 Dec 2021
Customer reply
7 Dec 2021
No. It isn’t scheduled. The defendants just filed Answers, but they are late. My state doesn’t require a responsive pleading to defense answers. Suppose to move onto Discovery now, but their late filing is soooo late it’s beyond ALL the litigation required filings on the tracking order. It’s now past discovery etc. it’s so late that there remains only final judgement left on the tracking order. It’s a mess. Can I request for the Court to have. Conference to clear the case up?
7 Dec 2021
Customer reply
7 Dec 2021
It even makes this question a mess. Haha!!
7 Dec 2021
Lawyer's response
7 Dec 2021
RaymondS316
RaymondS316

If it is that late then you will have to wait until it is and address it then.  There really is not anything else you can do.

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RaymondS316
RaymondS316
Attorney
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7 Dec 2021
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Customer reply
7 Dec 2021
Ok thank you. I appreciate your patience.
7 Dec 2021

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