A motion is a request. If you need to extend a deadline, reschedule your hearing, or anything else, file a motion explaining what you request and why. All motions must be in writing, except that some motions may be made orally during the hearing. Before you submit the motion, you should confer with the other side.
Motions, like all documents filed at DALA, must include a statement that you have given that document to all the other parties. This is called a “certificate of service.” See the section You Must Give Documents to the Other Party.
Some motions commonly filed at DALA:
- Motion to dismiss: If a respondent (usually the agency) believes that the appeal can be decided in its favor for some preliminary, non-substantive reason, the respondent can ask for the appeal to be dismissed. One common basis for a motion for dismiss is when the appeal was filed after the applicable deadline. Another common basis is when all of the facts asserted by the petitioner (usually the non-agency party) would not entitle the petitioner to win the appeal and obtain any relief, even if all of those facts are true. 801 C.M.R. 1.01(7)(g)(3).
- Motion for Summary Decision: If there is no genuine disagreement about the facts and one side believes the law clearly supports their position, that party may request summary decision. 801 C.M.R. 1.01(7)(h). See the section Motions for Summary Decision.
- Motion for Continuance: There are deadlines for various stages of the case. If you cannot meet a deadline or a date on which you have to make an appearance, you may ask for a postponement, which is called a “continuance,” with a motion. If you miss a deadline, your case can be dismissed.
- DALA continuances will be granted only for good cause.
- You should submit a written request (motion) as early as possible and, except in an emergency, at least three days before the event.
- It is best to speak with the other parties before asking DALA for a continuance. Specifically, you should: (a) ask whether they agree to the request, and (b) try to agree on new dates for the deadline, conference, or hearing.
- Once you have talked to the other parties, submit your request to DALA. You can send your motion by mail, fax, or email.
- It is best for your request to:
- Include the reason why you need to postpone (the “good cause” for the continuance) and how long you have known about the good cause. 801 C.M.R. 1.01(7)(d);
- State whether the other party or parties assent to the motion (agree to the request); and
- Propose alternative dates.
- Emergency motions to continue may be submitted less than three days in advance (if necessary). Such a motion should be entitled “Emergency Motion to Continue” and should explain in detail (1) why the motion could not have been filed sooner; (2) which, if any, other parties are opposed to the request; and (3) if you do not know another party’s position, what steps you have taken to contact that party and determine his/her/its position.
- There is additional information about motions to continue on DALA’s website.
Motions for Summary Decision
Moving for Summary Decision
Sometimes you or the agency may believe that a hearing isn’t needed because the important facts aren’t genuinely in dispute and the law clearly favors one side. In that situation, either party may ask the magistrate to decide the case without a hearing by filing a motion for summary decision. This is a request for the magistrate to rule that you or the agency wins either part or all of the case without having a hearing. You or the agency will file documents with the motion that you feel prove your case or the agency feels prove its case. The party requesting summary decision may ask for the magistrate to consider hearing oral arguments from the parties about the motion.
If an agency files a motion for summary decision, you have seven days from the date the motion is filed to file your written response to the motion. It is very important that you file a written response to the motion by the deadline (or, if necessary, request additional time to do so). If you do not, the magistrate may decide all or part of the case against you without a hearing.
Opposing a Motion for Summary Decision
When the opposing party moves for summary decision, and you want the case to go forward to a hearing, you can file a written response arguing against their motion. You are essentially arguing that the case should continue because the facts are genuinely in dispute. When you respond to a motion for summary decision, you need to explain why there are questions about the facts of the case that require a full hearing. It is helpful to point out to the magistrate if different witnesses tell different stories about the facts in question, or if documents support your side of the story. You must state your best case in writing to the magistrate in your response to a summary decision motion. In addition, you may ask the magistrate to consider hearing oral arguments from the parties about the motion.
In your response, you may include your own testimony in the form of a sworn affidavit or an unsworn declaration under penalty of perjury. You don’t need to get your testimony notarized. This testimony should include the facts that you feel show that you should win the case. Also, you may include with your response all documents that you feel show that you should win the case, which could include, as appropriate, letters, printed emails, reports, medical records, invoices, contracts, business records, photographs, audio recordings, and videos.