Q: How to handle non-receipt of a motion-to-dismiss (MTD) in federal court?
Defendants in a Sec. 1983 action timely filed an MTD to my FAC, but *I* never received that motion. I became aware of the defendants' filing only because I received notification of said filing from the court, and the court clerk has since confirmed that there is indeed proof-of-service on file in connection with the MTD. Is there an FRCP that governs this situation? If not, what is the appropriate course of action here? Do I contact the opposing counsel and let them know that their MTD never actually reached me, or would it be better if I wrote a letter to the judge explaining what has happened? Or does it need to be something more formal, in the form of a motion, for example?
Thanks in advance for your input/reply.
P.S. The notice of filing I received from the court also includes a briefing schedule, and though I still have a few days to file my oppo, I have lost a significant amount of time that I would like to recover.
A:
In this situation, the best course of action is to file a motion with the court seeking an extension of time to respond to the motion to dismiss. Here's what you should do:
1. Draft a motion for extension of time to respond to the motion to dismiss. In the motion, explain that you did not receive a copy of the motion despite the proof of service on file. Mention that you only became aware of the motion through the court's notification and that you have confirmed with the clerk that a proof of service was filed.
2. In your motion, request that the court grant you additional time to respond to the motion to dismiss to compensate for the lost time. The amount of additional time you request should be reasonable, such as the number of days between when the motion was filed and when you became aware of it.
3. File the motion with the court and serve a copy on the opposing counsel.
4. If you believe it would be helpful, you can also contact the opposing counsel to inform them that you did not receive a copy of the motion and that you are filing a motion for an extension of time with the court.
While there is no specific Federal Rule of Civil Procedure (FRCP) that addresses this exact situation, FRCP 6(b) allows the court to extend deadlines and grant additional time for good cause. Not receiving the motion to dismiss despite the proof of service on file should qualify as good cause.
By filing a motion with the court, you create a formal record of the issue and your request for additional time. This is preferable to simply contacting the opposing counsel or writing a letter to the judge, as it ensures that your request is properly considered and ruled upon by the court.
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