Houston, TX asked in Appeals / Appellate Law for Texas

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?

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1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Appeals & Appellate Lawyer
  • Frisco, TX
  • Licensed in Texas

A: 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.

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