Marianas Variety

Last updateTue, 23 Apr 2019 12am







    Monday, April 22, 2019-2:23:19P.M.






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Two motions for reconsideration and rescission

WHEN a party files a motion for reconsideration of an order in court he is pointing to errors of fact or law the court made, or telling the court the clear injustice that would result from the order or the need for an order to prevent manifest injustice.

In the CNMI courts, trial and appellate, the party has ten days to file such a motion after issuance of the order moved for reconsideration.  Ten (work) days is really a short time to digest the order, research on the issues and search for authorities in support of your position constituting the errors, and to articulate arguments that clearly manifest the errors to the court. Reconsideration motions are reviewed for abuse of discretion, and discretion is abused if the court applied the incorrect law or rule, or, when the correct law or rule was applied but the result would be illogical, implausible or without support in inferences that may be drawn from the facts in the record.

Court rule on waiver and forfeiture: waiver is the intentional relinquishment or abandonment of a known right whereas forfeiture is the failure to make the timely assertion of a right — the two are really not synonymous.  Waivers of the opposing party must be properly and timely asserted or otherwise it would also be deemed implicitly waived. Yes, waiver or forfeiture arguments may also be waived or forfeited, and many times they are waived or forfeited unwittingly or inadvertently. When waivers or forfeitures are properly and timely asserted, the applicable court rule on procedure, especially the mandatory claim-processing rule, is “unalterable” which the court must “enforce,” so says the U.S. Supreme Court. So, if a court rule says that a process (say, a motion) “must” be filed and served before a certain deadline and the party files on time but fails to timely serve the process, if the party to be served properly and timely asserts that failure to timely serve, the court considering the process “must” declare it waived or forfeited and should deny the relief requested.

When an entry of default is made on the court docket and a demand for default judgment is made to the court for the opposition’s failure to reply to a compulsory counterclaim, the court must consider all factual allegations in the counterclaim as true, and the judgment demanded by motion based on a well-pleaded counterclaim must be granted, especially where the defaulting party did not timely serve its opposition papers in accordance with the written court rule and the counterclaimant asserted that waiver or forfeiture and insisted on the written court rule. This is especially, especially true of an untimely served (much less of unserved) motion to dismiss a counterclaim by the defaulting party, as the motion to dismiss, because of the default, is also a forfeited motion as untimely, forfeited together with all defenses and affirmative defenses that could be raised, and, as the motion to dismiss is not permitted under Com.R.Civ.P., Rule 12(b) as there is no further pleading beyond the reply— on such motion, all factual allegations in the counterclaim are taken as true, too.

I have two motions for reconsideration and rescission of two orders issued on April 5, 2018, two motions for a separate expedited order granting each reconsideration motion, and a motion to strike plaintiffs’ late, late so-called motion (really not a motion) to set aside entry of default for their failure to altogether serve said motion on me — all my motions are unopposed. The first four motions cite the above as manifest errors of law, in addition to other manifest errors of law or fact, and also for the prevention of manifest injustice as the arguments in the orders are manufactured arguments which courts do not do in our adversarial justice system. I respectfully ask Judge Joseph N. Camacho for the orders requested and default judgment to issue expeditiously.


Kagman, Saipan