Q: Can a federal district judge grant a motion to dismiss minutes after the defendant submitted it?
Federal district court judge granted motion to dismiss to defendant within minutes. The plaintiff had no time to oppose the motion before the judge granted it. Despite, the plaintiff filed the opposition to dismiss motion in a timely manner. How can judge grant a motion to dismiss without giving the plaintiff time to oppose the motion?
The Local Rules of the Southern District of Texas provide that an opposed motion will be submitted to the judge 21 days after filing and that any Response must be filed before the submission date. Unopposed motions may be taken up and ruled upon more promptly.
It would be rare for a judge to grant a motion to dismiss a case without giving the Plaintiff an opportunity to respond. However, any procedural error in ruling so quickly without an opportunity for a response would need to be reviewed by an appellate lawyer for harmless error. Pro se plaintiffs often file cases in federal court even though the federal court does not have subject matter jurisdiction on the face of the pleading. Similarly, they also often file cases in federal court that substantively lack merit on their face. So, in evaluating whether it may be worthwhile to appeal the decision, your appellate lawyer will need to closely examine the pleading and the reasons stated in the motion to dismiss.
Appealing a federal court dismissal requires an experienced attorney licensed to practice before the Fifth Circuit. This is not a task that most pro se plaintiffs are capable of handling successfully. Be aware that there is a limited time to appeal such a decision so it is important that you act immediately to locate and schedule an appointment with such an attorney.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.