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Post by jayhawk1 on Jun 14, 2010 16:09:22 GMT -5
I think you are mistaken. Hodges filed a claim, the Defendants filed a motion to dismiss. Hodges has to file an opposition to prove there is reason for these defendants to answer at a hearing. On 7/19, the Judge is gonna decide if this case has merit concerning the current defendants (Nazareth et al.) and if it does, they will then proceed to a scheduling conference on 7/26 to set a date when the Hearing concerning actual evidence will be heard. IMHO.
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Post by cashisking on Jun 14, 2010 17:47:49 GMT -5
Bottom line....
IF HODGES DOES NOT PRESENT ANY CREDIBLE EVIDENCE TO CONTINUE AND GO TO TRIAL BY JULY 26, 2010 TO THE JUDGE THEN THE CASE WILL BE DISMISSED.
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Post by varnson on Jun 14, 2010 21:58:17 GMT -5
Yes solid evidense will be needed but this guy has played in the big leagues for 40 years so he knows the score.
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Post by hurricane on Jun 14, 2010 23:42:45 GMT -5
Being an optimist...Didn't the defense position state that a Bivens type suit does not apply to this type of case. So it could be possibe if we do not hear from our legal team and the judge throws out the case that we would have to file another type of suit? ? Bottom line... If the money is there and it is earmarked with our names on it I would think that there is alot of legal possibilities to explore. Especially if u are waiting on just one signature. Hurricane
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Post by hafizesh on Jun 16, 2010 7:18:31 GMT -5
so what this all this mean.. are we going to get paid if its dismissed?
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4star
Diamond Finder
Posts: 80
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Post by 4star on Jun 16, 2010 7:21:33 GMT -5
Yes solid evidense will be needed but this guy has played in the big leagues for 40 years so he knows the score. Varnson.. is that you?
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Post by goodolboy on Jun 16, 2010 7:21:38 GMT -5
I think you are mistaken. Hodges filed a claim, the Defendants filed a motion to dismiss. Hodges has to file an opposition to prove there is reason for these defendants to answer at a hearing. On 7/19, the Judge is gonna decide if this case has merit concerning the current defendants (Nazareth et al.) and if it does, they will then proceed to a scheduling conference on 7/26 to set a date when the Hearing concerning actual evidence will be heard. IMHO. You could very well be right. But I asked a few questions and was told there can be no status conference before the defendants file the answer to the complaint. True, from my understanding as well. If this is not dismissed, I would expect another continuance til sometime in September. But, there is a slim chance that Mr. Hodges could file for summary judgement if a continuance is not ordered and the defendants do not answer the complaint. Paper thin.
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Post by sweetsp7 on Jun 16, 2010 10:57:51 GMT -5
Good Read: Motion to Dismiss.
We know that the defendants filed their motion to dismiss under 12b(1) and 12b(6).
A "motion to dismiss" is a request that a civil case be dropped without a judgment. In other words, if a person is sued, they can give the judge a motion to dismiss, and if their reasoning is persuasive enough, the judge will kick their attacker out of court.
Generally, a motion to dismiss argues that, assuming that all the facts alleged by the plaintiff are true, the plaintiff has no legal basis of recovery.
Motions to dismiss vary from jurisdiction to jurisdiction. This writeup focuses on how such motions work in the United States federal court system.
Filing the motion
When a plaintiff starts a civil action, they send a complaint (often in the form of a summons) to the defendant. After the defendant receives this complaint, they have twenty days to answer. In most cases, the defendant can request more time for their answer, and the plaintiff will oblige (lawyers will almost always do this out of professional courtesy; people acting pro se might not).
The defendant can answer the complaint by responding with their own version of the facts, or they can file a motion to dismiss the complaint altogether. (There are a few other rarely-used motions that can be introduced in lieu of an answer to the complaint, including the motion to strike and motion for more definite statement.)
Reasons to dismiss
You can't just move to dismiss a case because you don't want to go to trial. A motion to dismiss has to have a legal basis. The possible bases of the motion are laid out in Rule 12(b) of the Federal Rules of Civil Procedure, which govern how U.S. federal courts function. As of 2004, Rule 12(b) lists seven possibilities:
Lack of subject matter jurisdiction - In a 12(b)(1) motion, the defendant claims that the court cannot hear a case on the matter being brought by the plaintiff. There are two ways to claim this. The defendant can mount a facial attack, in which they argue that there is no claim under federal law, or they can mount a factual attack, in which they argue that the claim is too frivolous to warrant a hearing before the court.
Lack of jurisdiction over the person - In a 12(b)(2) motion, the defendant claims that the court does not have jurisdiction over one or more of the parties in the suit. This can mean that parties are in the same state and suing over a small amount, or that one of the parties is in a foreign country not covered by the court's jurisdiction. If such a motion is filed, the plaintiff has the burden of proof to show that the parties in question are within the jurisdiction of the court.
Improper venue - In a 12(b)(3) motion, the defendant claims that the case should not be in the court where it was filed. One common situation is when a contract specifies that disputes be settled in a certain court or jurisdiction, but one of the parties files suit elsewhere. Another is when the defendant is initially believed to be living near the venue, but is later discovered to be living far away. If the motion is granted, the court will usually transfer the case to a more appropriate venue.
Insufficiency of process - In a 12(b)(4) motion, the defendant contests the adequacy of the summons that informed them of the lawsuit. Usually, this happens when a person or corporation's name is misspelled on the summons itself. If the motion is granted, the plaintiff usually has to make another summons and serve it upon the defendant.
Insufficiency of service of process - In a 12(b)(5) motion, the defendant contests how the summons was delivered to them, or whether it was delivered to them at all. Like a 12(b)(4) motion, a successful 12(b)(5) motion will usually result in the plaintiff having to make a new summons and serve it properly.
Failure to state a claim upon which relief can be granted - In a 12(b)(6) motion, the defendant argues that the facts set out in the plaintiff's complaint are not enough to warrant any remedy under the law. To grant this motion, the judge must conclude that no reasonable judge or jury could possibly rule for the plaintiff based on the facts in the complaint. Often, the defendant uses an affirmative defense, such as immunity, laches, or statute of limitations, as the basis for the motion. Once a 12(b)(6) motion is granted, the case is over and the plaintiff has to either appeal or give up. This type of motion was originally called a "demurrer," and still carries that name in many jurisdictions.
Failure to join a party - A 12(b)(7) motion doesn't mean that the plaintiff is staying out of a party; it means that another defendant needs to be brought in, and the plaintiff has not made them join the suit. The plaintiff isn't required to sue everyone, but the plaintiff is required to make sure that all parties essential to a fair resolution of the suit are present. The defendant has the burden of proof to show that the party in question is essential to the claim.
Sources Cound et al., Civil Procedure (8th ed., West 2001) Federal Rule of Civil Procedure 12 (2004)
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Post by deltadon30228 on Jun 16, 2010 12:49:22 GMT -5
This is what to prepare for:
Agreement will be made on or before July 19th to release the funds. END! (not too convince of this, still more needs to be accomplished in Washington)
OR: Which this is what I think will more than likely be the case.
Hodges will file a opposition to prove reasons and merit for a court date to be set, he will show enough evidence to move to a trial date.
On July 26th Judge will make a court date for sometime in the fall or late 2010 or even maybe early 2011, then sometime between July 26th and that set court date, we will see a agreement made between both parties to release the funds.
As far as I can see these are the only two ways this can unfold, because WE WILL WIN, some will attack me and say the other option is July 17th judge will say there's not enough evidence and case closed NO PAYOUT! I don't believe this option will happen.
Think Timed event, I just don't think they're quite ready yet, I hope I'm wrong. First option would be nice. I don't think the roller coaster ride is quite over yet.
Please understand I'm not trying to say this IS what's going to happen, THIS IS MY GUESS! Did you bashers hear that?
I believe EVERYONE and I mean EVERYONE who is involved in this operation is doing their part of a compartmentalized plan, including Mr. Hodges. The battle for the money was done a long time ago, it's not a matter of fighting someone for the money, it's a matter of getting that money released at the right time. As much as I hate to say it again, this has a political aspect that is driving that timeline or release date.
TIMED EVENTS
Don, IMHO!
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Post by davesaint on Jun 16, 2010 16:15:25 GMT -5
Look's like a two week delay because some joker wants to go on vacation. Look's like Al agreed. If Al agreed it will be signed by the judge and there will be the two week delay.
Davesaint
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Post by Brigantine on Jun 16, 2010 17:14:08 GMT -5
Can we get a direct link to that document, please?
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Post by sweetsp7 on Jun 16, 2010 17:23:52 GMT -5
It is real, i just verified it on the PACER. They should make this its own thread...
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Post by gjfromfla on Jun 16, 2010 17:36:55 GMT -5
Mr Hodges should just take a stand !! There is no way, all those defendants are ever going to have a "Convenient" schedule, so go forward!!
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Post by jimbob on Jun 16, 2010 17:38:14 GMT -5
It may be real but it doesn't look like it belongs to us; where is cmkx, Al Hodges, or anyone else?
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Post by lovindiamonds on Jun 16, 2010 17:39:26 GMT -5
Man, the defendants really are squirming...
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