Read the Rule Book

If you are going to represent yourself in court, you need to read the rules first.

Every jurisdiction I have litigated in as a pro se litigant had rules posted on their website or somewhere else on-line.

If you can’t find the rules, ask the clerk or ask me. I’ll try to find them for you.

At first glance reading a whole “book” seems daunting. But the rules are fairly simple and you don’t need to memorize them. Writing your papers is an open book exam.

Reading the rules is important because I can almost guarantee, when the opposing counsel sees you are not represented, they will break the rules blatantly.

Here is a motion I filed after one attorney filed a ridiculous “answer and motion to dismiss” combined.

IN THE CIRCUIT COURT OF FAULKNER COUNTY ARKANSAS

CIVIL DIVISION -1st

LAURA HAMMETT, an individual                                                 PLAINTIFF

V.                                   CASE No.  23-cv-20-631                                                         

FIRST AMERICAN HOME WARRANTY

CORPORATION, a California Corporation;

NICHOLSON’S HEATING AND AIR

CONDITIONING, INC., an Arkansas

Corporation; SMARTCOOL OF

ARKANSAS, INC., an Arkansas Corporation,

DOES 1-99                                                                                   DEFENDANTS

PLAINTIFF’S MOTION TO STRIKE THE MOTION TO DISMISS OF SMARTCOOL OF ARKANSAS, INC.

ALTERNATIVELY TO ALLOW FOR THE MTD TO BE TREATED AS A MOTION FOR SUMMARY JUDGMENT UNDER RULE 56

MEMORANDUM OF POINTS AND AUTHORITIES WITHIN

            Motion to Strike   

            Comes now, the Plaintiff, Laura Hammett, (hereinafter referred to as “Hammett” or “Plaintiff”), in pro se, in response to Defendant Smartcool of Arkansas, Inc.’s Motion to Dismiss (“MTD”), states as follows:

1. The MTD is flagrantly deficient.
2. The MTD consists of just one conclusory statement, ⁋1, that “Plaintiff’s complaint fails to state facts upon which relief can be granted.”
3. No memorandum of points and authorities is included.
4. No citation to caselaw or statute is made in support.
5. This violates ARCP § 7(b)(2):” All motions required to be in writing and any responses and replies shall include a brief supporting statement of the factual and legal basis for the motion, response, or reply and the citations relied upon.”
6. The MTD is labeled ”motion”, but it is presented simultaneously and under the same cover as the Answer. It specifies a defense found in ARCP 12(b)(6).
7. “A motion making any of these defenses [including 12(b)(6)] shall be made before pleading if a further pleading is permitted.” ARCP 12(b)
8. “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”ARCP 12(b).
9. The MTD does not specifically incorporate the admissions and denials of averments to the complaint made by SmartCool in its Answer.
10. To avoid argument in the future, if the Court does not strike the motion, it should allow an opportunity for discovery and for the pro se litigant who never attended law school to present material required for a Rule 56 motion.

Memorandum of Points and Authorities

1. “All motions required to be in writing and any responses and replies shall include a brief supporting statement of the factual and legal basis for the motion, response, or reply and the citations relied upon.” ARCP § 7(b)(2).
2.  “Failure to satisfy these requirements shall be ground for the court’s striking the motion, response, or reply.”id.
3.  “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” ARCP 12(b), inter alia.
4.   SmartCool introduced facts by denial of averments in the Plaintiff’s complaint by combining the pleading with a motion, even if it did not make a specific incorporation of the paragraphs above.
5.   “In reviewing a circuit court’s decision to grant a motion to dismiss for an abuse of discretion, the facts alleged in the complaint are taken as true and are viewed in the light most favorable to the complainant.” Davis v. Kelley,  568 S.W.3d 268 (2019).
6.  The Court is not allowed the discretion to accept extraneous facts or denial of averments in granting a MTD.

For the reasons set forth above, the Motion to Dismiss of SmartCool, Inc. should be stricken or alternatively treated as a Motion for Summary Judgment under Rule 56 and Plaintiff should be afforded an opportunity for discovery and to present a rebuttal.

Dated 6/8/2020                                    s//Laura Hammett

                                                              Laura Hammett, in pro se