How to file a motion for reconsideration

In numerous instances, litigants do not approve of a decision rendered by a judge. Most of the time, one party wins and another loses whenever a judge make a decision, and the losing party may not like the holding of a court. In certain instances, parties can ask a judge to reconsider a decision the court has made so long as a party satisfies a number of conditions. There are a few things litigants and their attorneys should keep in mind when filing a motion for reconsideration to have the best chance at obtaining a favorable outcome.

Sometimes, if a judge did not consider facts when rendering an initial decision, then new facts can form the basis of filing a motion for reconsideration. There are a variety of ways how new facts can form the basis of a motion for reconsideration. If the judge did not seem to consider critical facts in the record when rendering the initial decision, this can be brought to light when a litigant asks the judge to reconsider the decision. In order to prove that a judge did not consider facts in the initial decision, the litigant should point to the lack of those facts in the decision and the fact that said facts were in the record before the motion court.

In some instances, a litigant may be able to present new evidence that was not included in the initial motion when asking a court to reconsider a decision. However, such instances are rare so that a court does not have to reconsider decisions lightly. An experienced lawyer should know how to frame arguments so that new facts have the best chance of serving as the basis of a motion for reconsideration.

Sometimes new law can also form the basis of filing a motion for reconsideration. Oftentimes, a judge may not base her or his decision on the right points of law. This can be because the matter is not properly briefed or because the court made a mistake in understanding the legal issues that were involved with a matter. Trial courts have a responsibility to follow the authority handed down by higher courts, and if a litigant can show that a decision contradicts authorities, then a litigant may be able to have a trial court reconsider a decision.

In addition, the law changes all of the time and a court may not be aware of changes to the law. For instance, legislation is passed frequently that can have an impact on a wide variety of legal issues. In addition, higher courts may hand down decisions often that can impact how a trial court should evaluate a matter. If a litigant shows that a new law was passed, or a higher court handed down a relevant decision that contradicts the trial court’s decision, then a motion for reconsideration may have a better likelihood of being successful.

It should be noted that there are oftentimes strict deadlines associated with filing a motion for reconsideration. Courts justifiably do not want to be subject to a reconsideration request months or years after an issue was originally decided. This is because delays in filing a motion for reconsideration can add time to the life of a case and it might be difficult to evaluate the merits of a prior decision when the decision was handed down a long time ago.

The amount of time that a litigant has to file a motion for reconsideration varies from jurisdiction to jurisdiction. This might be as little as 20 to 30 days and some jurisdictions might have more flexible standards for determining whether a request to file a motion for reconsideration was timely. Litigants should consult with an experienced litigation attorney to ensure that they still have time to file a motion for reconsideration in their case.

It should be noted that sometimes courts welcome filing a motion for reconsideration or a motion to reargue a matter. In some situations in litigation, parties may file an early motion for relief before significant information or documents have been exchanged in a case. For instance, parties sometimes file motions for summary judgment early in the litigation so that parties can obtain relief as soon as possible and while spending the least amount of money possible. Courts may deny such motions as premature since the parties need to exchange documents and information so that the court can better evaluate an issue.

In such instances, courts may indicate that their order is without prejudice and that litigants can seek a motion to reargue the point at a later time after the case has progressed and a court has more information upon which to base its decision. A court may not preserve this right unless counsel makes it clear that they wish to file the motion again, so it is important that litigants and attorneys try and preserve the ability to reargue matters at a later time.

The Rothman Law Firm is experienced with all kinds of litigation matters including filing a motion for reconsideration. If you are looking for an experienced New York and New Jersey attorney to handle your lawsuit or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.

(a) Motions for reconsideration may be made only for final decisions on appeal and will only be granted if a party can establish that:

(1) New and material evidence is now available that, despite the party’s due diligence, was not available when the record closed;

(2) The final decision was based on an erroneous interpretation of law or there has been an intervening change in the controlling law; or

(3) A manifest injustice, clearly apparent or obvious on its face, will occur if the motion for reconsideration is not granted.

(b) A motion for reconsideration and accompanying brief shall be filed within 30 days of the date of the Commission’s final decision and shall be served on all parties, limited participants, and intervenors, if any. A motion for reconsideration shall explain the circumstances requiring reconsideration.

(c) A party may file only one motion and accompanying brief for reconsideration.

(d) Opposition briefs shall be filed within 20 days after the motion is filed.

(e) A reply brief to the brief in opposition shall be filed within 15 days of service of the brief in opposition.

(f) The Commission shall issue a decision on reconsideration within 30 days of the filing of the reply brief or of the expiration of the time to file a reply brief, whichever is later. The Commission shall issue a brief statement of the reason(s) for its decision.

(g) If the Commission grants the motion, it may reverse or modify the decision, in whole or in part, from which reconsideration is sought or may remand to the Chair for further consideration.

(h) The filing of a motion for reconsideration will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Commission.

Under New Jersey law, when a party’s motion has been denied by the court, the party may file a motion for reconsideration. However, this is only available if the matter meets certain criteria demonstrating an error has been made. The purpose of making a motion for reconsideration is not to give a party another opportunity to make the same arguments but to advise the Court of facts it overlooked or controlling law the Court did not consider. If a litigant cannot make this showing, he/she risks being sanctioned for making a motion in bad faith, as evidenced by a recent appellate decision.

In Calbazana v. Cooper, the parties went to Court regarding payment of college expenses for their child. Their Property Settlement Agreement provided that “if the parties could not agree on payments for child support and/or college expenses while [the] child attends college, either party could apply to a Court of competent jurisdiction for determination of the disagreement.” The plaintiff filed a motion to compel the defendant to contribute to his son’s past and future college costs. The Family Part judge concluded that the defendant should pay half of the son’s community college costs and, going forward, 68% of the son’s costs for attending Rutgers University. The defendant filed a motion for reconsideration which the Family Part judge not only denied but also required the defendant to pay the plaintiff’s attorney’s fees.

The New Jersey Appellate Division agreed with this decision noting that reconsideration is intended only for cases in which either “1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.” Furthermore, Rule 4:49-2 requires that the motion for reconsideration “state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.”

In the Calbazana case, the defendant attempted to argue the judge failed to consider some of the factors required under New Jersey law regarding what portion of college expenses a child may reasonably demand of a non-custodial parent. The Family Part judge found there was no new information or cases since the time of the original motion date, nor anything that the Court overlooked when rendering its prior decision. As a result, the judge ruled against the defendant and awarded attorney’s fees to the plaintiff based on the defendant’s bad faith in filing the motion for reconsideration.

The takeaway for litigants who are considering filing a motion for reconsideration is to carefully and specifically articulate to the Court why its decision was “palpably incorrect or irrational,” and/or what specific “probative, competent evidence” the Court overlooked. If a litigant is unable to do so, filing a motion for reconsideration may result in counsel fees being awarded to the other litigant.

What is a Motion for Reconsideration?

After a trial, there are several types of motions that can be filed to address possible trial errors. The most common type of post-trial motion is a Motion for Reconsideration in which you are asking the judge to reconsider his/her ruling and change one specific part of the court order or the court’s overall ruling. Depending on your state’s laws, a Motion for Reconsideration may be an option in the following situations:

  • when you believe the judge did not consider or properly examine certain evidence or correctly apply the law; or
  • when new evidence is available that you were not able to present before the judge made a decision.

If you are considering also filing an appeal, however, talk to a lawyer about the pros and cons of filing a Motion for Reconsideration first. If the judge rules against you on your motion, s/he may use it as an opportunity to make the ruling harder to appeal by strengthening his/her factual findings or legal analysis against your position. For more information about appeals, see our File an Appeal section.

  • Yes
  • No

When do I file a Motion for Reconsideration?

The deadline to file a Motion for Reconsideration will be a certain period of time after the judge has issued the order that you would like to have reconsidered or after you are served with the order, often between 14 and 30 days. You may want to speak with a lawyer in your state about the time line to file a motion. Usually filing a Motion for Reconsideration will suspend the deadline for filing a Notice of Appeal, and the “clock” won’t start until the trial court judge decides the motion. It is important to confirm with a lawyer in your state whether this is true in your state.

  • Yes
  • No

What will a judge consider in a Motion for Reconsideration?

The exact factors a judge will consider when deciding whether to grant your Motion for Reconsideration will depend on your state’s laws. Generally, a judge will consider factors such as whether:

  • there is new evidence that is significant to the legal issue and was not available when the case ended, despite your best efforts to get that evidence;
  • the final decision was made after an incorrect interpretation of the law or the law has changed since the judge made his/her final decision; and
  • denying the Motion for Reconsideration will result in an obvious injustice.

These are general examples of what a judge may consider and may not be the specific factors in your state. You will want to contact a lawyer to find out what state laws apply to your situation.

How to Format a Motion to the Courts

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When a criminal or civil case has been decided and a judgment rendered, it is possible for any party of the case to file a motion for reconsideration if the party believes the decision to be an error. A motion for reconsideration typically asks the deciding court to reconsider its decision due to the court’s failure to review specific legal arguments. Alternatively, perhaps the court misconstrued the argument presented. Filing a motion for reconsideration allows the moving party to clarify the legal arguments and possibly change the outcome of the case.

Create the caption of your motion. The caption should contain the names of the parties, the name of the judge, the case number and the court that handled the case. You can reference the judgment entry or other motions filed in your case to see how the caption is formatted.

Write your memorandum of law. The memorandum is the body of your motion for reconsideration. This is where you will thoroughly explain to the judge the points of law he overlooked. If the judge misinterpreted the argument or points of law previously presented to him, you must clarify your argument to eliminate confusion.

Reference statutes and case law following each of your arguments. Choose case law that presents similar facts and arguments as your case. In order to successfully convince the judge that a mistake was made, you must present cases that support your assertions.

Review your motion for reconsideration and check for errors. Sign your motion in blue ink. Make the number of copies required by the rules of the court and file your motion with the clerk of court.

Warnings

  • The law is very complex. It may be in your best interest to consult an attorney who can help you with your particular case.
  • Check the rules of the court that decided the case. Every court has very strict rules that must be followed. You will only have a specific number of days from the date of the decision to file a motion for reconsideration. After the number of days has lapsed, the court may refuse to accept your motion.
  • Check the rules of the court that decided the case. Every court has very strict rules that must be followed. You will only have a specific number of days from the date of the decision to file a motion for reconsideration. After the number of days has lapsed, the court may refuse to accept your motion.
  • The law is very complex. It may be in your best interest to consult an attorney who can help you with your particular case.

Maria Lassen has many years experience in the legal field. She was a practicing hair and nail technician for 10 years and has been a freelance writer since 2010. Lassen studied creative writing at Bowling Green State University and holds a certificate in paralegal studies.

DEAR PAO

How to file a motion for reconsideration

Dear PAO,

I lost in a civil case involving land. My lawyer admitted that he received a copy of the decision but inadvertently failed to file a motion for reconsideration. I can still remember what he said before he died that there are instances where the court may admit pleadings even after the lapse of the reglementary period. I am intending to get another lawyer, but I do not know whether said motion will be admitted by the court. Further, what is the purpose of filing a motion for reconsideration instead of appealing the decision directly to a higher court?

Aleli

Dear Aleli,

The period for filing a motion for reconsideration is governed by Section 1, Rule 37 of the 1997 Revised Rules of Court, as amended, which states that: “Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial x x x.” Correlative thereto, Section 2, Rule 40 of the said Rules, as amended states that:

“An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment or final order.

“The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.”

The period provided by the same Rules must be observed. The purpose of said period was explained in the case of Yap-Sumndad, et al. vs. Friday’s Holdings, Inc. (GR 235586, Jan. 22, 2020), where the Supreme Court speaking through Chief Justice Diosdado Peralta stated:

“The purpose of filing a motion for reconsideration within the period to appeal is to allow an inferior court to correct itself before review by a higher court. However, if the motion for reconsideration is filed beyond such period, the motion ipso facto forecloses the right to appeal.

“In Building Care Corporation v. Macaraeg, the Court emphasized, “the resort to a liberal application, or suspension of the application of procedural rules, must remain as the exception to the well-settled principle that rules must be complied with[,] for the orderly administration of justice.” If the Court relaxes the rules of procedure even in cases where there are no sufficient justification of meritorious and exceptional circumstances attendant, then such relaxation of the Rules will render the latter inutile. The relaxation of the application of the Rules in exceptional cases was never intended to forge a bastion for erring litigants to violate the rules with impunity.

“In Ponciano, Jr. v. Laguna Lake Development Authority, et al., the Court refused to admit a motion for reconsideration filed only one day late, and pointed out that the Court has, in the past, similarly refused to admit motions for reconsideration which were filed late without sufficient justification.”

Applying the above-cited decision in your situation, the purpose of filing a motion within the period to appeal is for the lower court to correct itself before its decision is reviewed by the higher court. A motion for reconsideration filed beyond the period to appeal which is 15 days upon actual receipt of the decision by the lawyer or party may not be admitted by the court especially if the late filing is without sufficient justification. The Rules of Court must be complied with for the orderly administration of justice. Thus, your belated filing of motion for reconsideration may not be admitted.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]

How to file a motion for reconsideration

Defendants who are convicted of a crime can face a number of different penalties, including incarceration, fines, probation, and community service. During the sentencing hearing, the defense can attempt to persuade the judge to impose the lightest sentence possible on the defendant. However, these attempts are not always successful. Fortunately, defendants may have one more chance to fight for a lighter sentence. Here’s what you should know about filing a motion for reconsideration:

What is a Motion For Reconsideration?

A defendant who has been convicted and sentenced for a crime can file a motion for reconsideration if he would like to ask the judge for a lighter sentence.

For example, let’s say a defendant is convicted of driving under the influence (DUI). The judge sentences the defendant to one year in jail, which is the maximum penalty for first-time DUI defenders. The defendant can file a motion for reconsideration and ask the judge to reconsider the original sentence. He can argue that since this was his first criminal conviction, he does not deserve the maximum penalty. If the judge agrees, the defendant’s sentence can be lightened.

Who Can File a Motion For Reconsideration?

Many defendants think they can only file a motion for reconsideration if they have been sentenced to prison, but that’s not the case. Any defendant who has been convicted and sentenced is eligible to file a motion for reconsideration, regardless of the severity of their sentence.

In most cases, defendants choose to file a motion for reconsideration if they believe the penalties imposed upon them were unfair. Other defendants file a motion if they believe they have been rehabilitated and deserve another chance. It’s up to the judge to review the defendant’s request and determine if he deserves a lighter sentence.

When Can a Motion For Reconsideration Be Filed?

Defendants must move quickly if they would like to ask the judge to reconsider their sentence. If you are not appealing the verdict, the motion for reconsideration must be filed within 126 days after sentencing. If you are appealing the verdict, the motion for reconsideration must be filed within 126 days after the appellate court’s decision.

If you have been convicted of a crime, speak to the criminal defense attorneys at Reisch Law Firm. Let our criminal defense attorneys file a motion for reconsideration and prove that the punishment does not fit the crime. Schedule a free consultation today by calling 303-291-0555 or filling out this online form.

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Motion for Reconsiderations, although an essential litigation tool, are very difficult to win. In the interest of finality, Motions for Reconsideration are granted sparingly because parties should normally not be free to re-litigate issues a court has already decided. However, attorneys should not be concerned with the odds for success if they have reasonable grounds for the motion.

As with other motions, time is of the essence in a Motion for Reconsideration. Generally, the timeline for filing a Motion for Reconsideration is short and therefore you need to act quickly. The standard 10-day filing timeline is short and concrete therefore, if you need a transcript to support your motion, you will need to expedite service as quickly as possible.

The strategy for a motion to reconsider needs precision and swiftness. Articulate precisely and economically the grounds for reconsideration. Trial courts generally do not prefer too many motions for reconsideration in their dockets. Therefore, you need to have solid grounds for evoking the motion. Cite the specific grounds that best apply to your situation. Generally a Motion for Reconsideration is filed under three grounds:

  1. The availability of new evidence not previously available;
  2. An intervening change in controlling law; or
  3. The need to correct a clear error of law or to prevent manifest injustice.

The motion should specifically include the controlling cases or legal errors that the attorney believes the court has overlooked or erred. It’s important to remember that a Motion for reconsideration is not an opportunity to re-litigate already decided issues. It should never be a medium to put forward additional arguments that could have been made but neglected to make before judgment. Where evidence is not newly discovered, it may not be submitted in support of a Motion for Reconsideration.

Apart from the above, urge the policy of judicial economy to the court. Permitting a trial court to correct any mistakes prior to entry of final judgment serves the interests of judicial economy and the rules for reconsideration fulfills the same. However, remember to keep your tone neutral and not appear to be critical or argumentative in nature.

One of the advantages of going in for a Motion for reconsideration is that it acts as a cost effective appeal. You don’t have to pay fresh filing fees or submit records to overcome the wrong decision. You just need to convince the court that new developments, accurate law or a correct view of the facts justify a new ruling. If you think your case has solid grounds that support a Motion for Reconsideration, go ahead – it may help you win the war.

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A motion for reconsideration asks the court consider changing a previous decision. A motion for reconsideration must be made BEFORE the trial court enters a final judgment. See Local Rule 7.3.

A party cannot file a motion for reconsideration without permission from the court. Therefore, before filing a motion for reconsideration, the party must file a motion for leave to file a motion for reconsideration.

Form and Content of Motion for Leave: A motion for leave to file a motion for reconsideration must be limited to seven pages and must specifically meet at least one of the following two criteria:

(1) (A) the facts or applicable law are materially different from the facts or applicable law that the parties presented to the Court before entry of the order for which reconsideration is sought, and

(B) despite the exercise of reasonable diligence, the party applying for reconsideration did not know such fact or law before entry of the order; or

(2) new material facts emerged or a change of law occurred after entry of the order.

A motion for leave to file a motion for reconsideration may not simply repeat arguments made previously to the court. If you file such a motion, the court may impose sanctions on you.

No response needs to be filed to a motion for permission to file a motion for reconsideration unless the court requests it.

If the judge decides to permit reconsideration, the judge will fix an appropriate schedule.

Table of Contents

How do you file an objection to a motion?

Follow these steps to respond to a motion:

  1. Fill out the forms. You have to fill out at least 2 forms, maybe more, to file your opposition.
  2. File the forms. Turn in your completed forms by mail or efiling.
  3. Serve the other party.
  4. Get ready for the hearing.
  5. Prepare an order.

How do you argue in moot court?

Practice your oral argument several times before the moot. Speak slowly and carefully. Try to engage the court by varying the tone of your voice and making eye contact with the judges where possible. Bear in mind that this is an exercise in communication.

How to file a motion for reconsideration

Is an objection a motion?

In parliamentary procedure, an objection to the consideration of a question is a motion that is adopted to prevent an original main motion from coming before the assembly. This motion is different from an objection to a unanimous consent request.

How do you get another judge to hear your case?

Under the California Code of Civil Procedure section 170.6 you are allowed to file an affidavit to send the case to a different judge. You just have a very small window of time to file your request and you don’t know where you will be sent to.

How do I write a letter requesting reconsideration?

Steps for Writing a Reconsideration Letter Explain the purpose of your letter, and mention your previous request. Explain the reasons behind the rejection or the unfavorable decision you would like to be reconsidered. Ask for a reconsideration of the company’s position. Explain the dispute in detail.

Is a motion a responsive pleading?

No, because “[f]or the purposes of [Rule 15(a)], a Rule 12(b)(6) motion to dismiss is not a responsive pleading and thus does not itself terminate plaintiff’s unconditional right to amend a complaint under Rule 15(a).” Op.

How to file a motion for reconsideration

How do you argue a motion to suppress?

8 Tips for Winning Suppression Motions

  1. Use general discovery motions to your advantage.
  2. Always cite Tex.
  3. File a motion in limine along with your motion to suppress.
  4. Request a jury charge.
  5. Don’t reveal specific grounds for the motion until the hearing.
  6. Consider Tex.
  7. Attack the probable cause affidavit.

What are the grounds for the new trial and reconsideration?

EFFECTS OF GRANTING NEW TRIAL OR RECONSIDERATION When new trial is granted on the ground of: 1. Errors of law or irregularities committed during trial, all the proceedings and evidence affected thereby shall beset aside and take a new. The court may in the interest of justice, allow the introduction of new evidence.

How do you ask a judge to reconsider a decision?

You can file a Motion for Reconsideration with the judge and ask the judge to change his or her own decision. (Motions for Reconsideration are called Motions to Alter or Amend or Motions for Relief from Judgments or Sanctions in the Court rules.) In some cases, you can file an Appeal.

What happens at a reconsideration hearing?

If you are denied at the reconsideration, you can ask the SSA for a hearing with an administrative law judge (ALJ). At the hearing, the ALJ will question you and any witnesses you bring and give you or your representative the chance to question your witnesses. You will receive the ALJ’s decision in writing.

Can you file a motion without a lawyer?

Without confirming that a motion is what you should now do, you can file anything without a lawyer.

What is a Rule 21 motion?

21 provides that misjoinder of parties is not ground for dismissal of an action, and that parties may be dropped or added by court order on motion of any party or of the court’s own initiative at any stage in the action and on such terms as are just.

How do you write a motion for reconsideration?

Write your motion for reconsideration.

  1. Just as with your motion to stay, begin your motion for reconsideration by stating who you are, what you are asking of the judge, and which rule gives you permission to ask.
  2. From there on out, use the rule itself as a general outline for your motion.

Can a judge rule on a motion without a hearing?

If the Motion is properly filed, the Judge may schedule a court date to consider and hear evidence about the Motion. Or the Judge may rule on the Motion without a hearing.

How do you argue a motion?

Arguing Your First Motion

  1. You’ve written a motion and submitted it to the court. The court has set it for oral argument – now what?
  2. Read the rules.
  3. Know the judge.
  4. Review your written motion.
  5. Shepardize your cases again.
  6. Review opposing counsel’s written motion.
  7. Note cases that are directly opposed to your argument.
  8. Prepare your argument.

What happens when you file a motion with the court?

When you file your motion, the court clerk will insert the date, time, and place of the hearing on your motion. You must then “serve” (mail) a copy of your filed motion (including all exhibits and the date, time, and place of hearing) to all other parties in the case.

Is a motion a pleading?

This formal writing breaks down into two categories: pleadings and motions. A pleading demands that the other party do something, while a motion requests that the judge in the case do something. Pleadings set forth parties’ positions in the action, such as allegations, claims, defenses and denials.

Can a judge reverse his own decision?

No. The judge can follow the same law but judge the case differently and change a ruling. When you write your motion, though, it is best if you explain clearly why you think the judge should change the ruling.

What is the meaning of motion for reconsideration?

A motion for reconsideration is a prime opportunity to seek relief from a Court Order. A motion for reconsideration is an application to the Court requesting that the Court alter or amend a judgment or order, and it must be served no later than twenty (20) days after the order has been served on all parties.

How do you argue a motion in front of a judge?

I suppose each argument is unique in some respects, but I typically introduce myself; tell the judge which party I represent, including whether it’s a plaintiff or defendant; describe the motion that’s being argued (e.g., “We’re here on my motion for a protective order”); and state the legal issue to be decided in a …

What are the 6 steps in a Supreme Court case?

Terms in this set (8)

  • Reviewing Appeals.
  • Granting the Appeal.
  • Briefing the Case.
  • Holding the Oral Argument.
  • Meeting in Conference.
  • Explaining the Decision.
  • Writing the Opinion.
  • Releasing the Opinion.

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Sometimes, litigants never want to give up the fight. An adverse ruling is rendered against them so what’s next, a motion for reconsideration that does not meet the criteria for motions for reconsideration. What’s next? Typically an appeal. But some times, you even see a motion for reconsideration of a denial for motion for reconsideration. And on and on and on.

Can you even file a motion for reconsideration of a motion for reconsideration? The Appellate Division has definitively said no in the case or Smith v. Smith , an unreported (non-precedential) decision released on August 29, 2013 (a case which I was successfully involved in.)

In affirming the trial court, the Appellate Division agreed with the following analysis by the trial court judge:

The Defendant has brought a motion for reconsideration of the denial of reconsideration. No such motion exists. . . .

The general standard of review for a motion for reconsideration provides that a motion for reconsideration should not be made merely because a party is dissatisfied with the court’s decision. D’Atria v. D’Atria , 242 N.J. Super. [392,] 401 (Ch. Div. 1990). Rather a party is entitled to reconsideration where the court’s decision has a “palpably incorrect or irrational” basis or “it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.” Ibid. “[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.” Ibid. Simply put, [d]efendant did not file the motion for reconsideration within twenty days after service of the order, as required by Rule 4:49-2. This time limit cannot be enlarged.

The Appellate Division further stated:

Defendant appeals from the denial of his motion for reconsideration of the denial of a prior motion for reconsideration. No such relief is provided for in our rules. See R. 4:49-2; D’Atria, supra, 242 N.J. Super. at 401. Filing another motion to reconsider the denial of reconsideration does not resurrect that order, and a party cannot indefinitely extend the period for appeal by filing serial motions for reconsideration.

Moroever, as the original order for which reconsideration was sought was not appealed to, the Appellate Division could not address the merits of the original order for which reconsideration was sought. “Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration,
it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed.”

What are the take aways from this case:

  1. Motions for reconsideration of motions for reconsideration are not appropriate
  2. Motions for reconsideration must be timely filed – the time cannot be extended.
  3. When filed, motions for reconsideration cannot have technical defects. In this case, the Notice to Litigants and Certification of Service were missing and the motion was returned. It was re-filed a few days later but because the rule allowing re-filing of non-compliant papers back to the original filing date does not apply to motions, the motion was rejected.
  4. When appealing the denial of a motion for reconsideration, you also have to appeal the underlying order that you originally sought reconsideration of or that will not be before the Appellate Division.

How to file a motion for reconsiderationMotion for reconsideration filed of the CA decision should be reckoned from the date which the counsel received the Decision and not from the date the party himself received his copy.

Thus, the Supreme Court held in the following case:

Calleon vs. HZSC Realty Corporation

G.R. No. 228572, January 27, 2020

Reckoning point for Motion for Reconsideration of the Court of Appeals Decision; Fifteen (15) days to file motion for reconsideration; Receipt of the Resolution; Service of resolutions; Receipt by counsel vs. receipt by party of personal notice; Receipt by party represented by a counsel is not considered notice in law; TRO issued by the Supreme Court; Remand of the case

The instant controversy stemmed from complaints for illegal (constructive) dismissal, non-payment of salary, 13th month pay, and separation pay, as well as payment of moral and exemplary damages and attorney’s fees filed by respondents John Leanlon P. Raymundo, Emerson D. Angeles, Lloyd T. Ison, Sherwin M. Odoño, Lemuel D. Venzon, and Ronald F. Caling (Leanion, et al.) against respondent HZSC Realty Corporation (HZSC) and its President, herein petitioner Michael Calleon (Calleon), arising from HZSC’s failure to rehire them after more than six (6) months from the temporary shutdown of its business operation due to business losses on January 23, 2015.

LA Ruling:

The Labor Arbiter (LA) declared HZSC and petitioner guilty of illegal (constructive) dismissal for HZSC’s failure to comply with the procedural requirements under Article 283 (now Article 298) of the Labor Code, and ordered them to pay respondents their respective unpaid salary, separation pay, nominal damages, plus ten percent (10%) of the total monetary awards as attorney’s fees.

Aggrieved, HZSC and Calleon appealed to the National Labor Relations Commission (NLRC).

How to file a motion for reconsideration

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NLRC Ruling:

The NLRC dismissed the appeal of HZSC and petitioner,11 and thereafter, denied their motions for reconsideration.

Calleon filed a petition for certioraril before the CA, praying to be absolved from liability in the absence of any finding of malice and fraud on his part.

CA Ruling:

The CA dismissed the petition for failure to comply with the required contents thereof, and the documents which should accompany it.

Calleon received his personal notice of the September 23, 2016 Resolution on October 5, 2016. On October 26, 2016, he filed a motion for reconsideration claiming that: (a) he received (referring to his counsel’s receipt) notice of the September 23, 2016 Resolution on October 11, 2016; and (b) he had already remedied the procedural defects in his petition, attaching therewith an Amended Petition for Certiorari.

The CA denied the motion for reconsideration for having been belatedly filed.

Hence, the petition claiming that petitioner’s counsel, Atty. Ariel C. Santos (Atty. Santos), received notice of the September 23, 2016 Resolution on October 17, 2016, and as such, the motion for reconsideration was timely filed.

Whether or not the filing of the motion for reconsideration should be reckoned from the date of receipt of counsel and not from the date of receipt of the party of personal notice

SC Ruling:

The SC found the petition meritorious.

The SC held that Section 2, Rule 13 of the Rules of Court (Rules) provides that “[i]f any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court.”

Thus, even if a party represented by counsel has been actually notified, said notice is not considered notice in law. “The reason is simple – the parties, generally, have no formal education or knowledge of the rules of procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a litigant relative to the receipt of a decision.

More importantly, it is best for the courts to deal only with one person in the interest of orderly procedure – either the lawyer retained by the party or the party him/herself if [he/she] does not intend to hire a lawyer.”

As to service of court resolutions, Section 9, Rule 13 of the Rules pertinently provides that judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

How to file a motion for reconsiderationIn the case at bar, a copy of the September 23, 2016 Resolution was sent to Atty. Santos at his registered address in Meycauayan, Bulacan through registered Letter No. BDN-2291. On November 8, 2016, the CA sent a tracer to the Postmaster of Meycauyan, Bulacan directing him to inform the court of the exact date when the said letter was delivered to and received by the addressee. However, prior to the receipt of the Postmaster’s reply, the CA already issued its assailed November 28, 2016 Resolution denying petitioner’s motion for reconsideration for having been belatedly filed, apparently reckoning the same from petitioner’s receipt of his personal notice of the September 23, 2016 Resolution on October 5, 2016.

On December 2, 2016, the CA received the Postmaster’s reply30 to tracer informing the court that Atty. Santos received registered Letter No. BDN-2291 on October 11, 2016. Consequently, petitioner had fifteen (15) days from such receipt, or until October 26, 2016, within which to file his motion for reconsideration. Thus, petitioner’s motion for reconsideration was timely filed, contrary to the ruling of the CA.

Accordingly, there is a need to remand the case to the CA to resolve the motion for reconsideration on the merits. Notably, petitioner had submitted, together with the said motion, an Amended Petition for Certiorari which he claims to have already rectified the procedural deficiencies cited by the CA in its September 23, 2016 Resolution. In view thereof, the other issues raised in this petition which involve mixed questions of fact and law on the substantive merits of the petition should properly be addressed to and resolved by the CA.

Finally, considering that petitioner raises as an issue the propriety of the order adjudging him solidarily liable with the non-operating respondent, HZSC, for the individual respondents’ money claims, which is yet to be resolved by the CA, the TRO issued by the Court on January 25, 2017 enjoining the NLRC from implementing its June 30, 2016 Decision and August 31, 2016 Resolution stands until further orders from the Court.

“All tax assessments where the BIR immediately issued a FAN or FLD after the expiration of the 15 day period for the taxpayer to reply to the PAN, and the BIR did not wait for the taxpayer to submit additional documents within 60 days from the filing of the protest to the PAN, are void.”

Tax remedies have complexities that an ordinary taxpayer may find overwhelming. There are technical intricacies that should be considered when replying to a tax assessment, especially when it already involves a Final Assessment Notice (FAN) or a Formal Letter of Demand (FLD).

How to file a motion for reconsiderationWhat should a taxpayer do, after absorbing the shock of receiving a bloated FAN or FLD? According to Revenue Regulations 18-2013, the taxpayer may protest administratively against the FAN or FLD within 30 days from date of receipt. The said protest must be written and may either be a request for reconsideration or reinvestigation. Request for reconsideration refers to a plea of re-evaluation of an assessment on the basis of existing records without need of additional evidence. Request for reinvestigation on the other hand refers to a plea of re-evaluation of an assessment on the basis of newly discovered or additional evidence.

In both motions for reconsideration and reinvestigation the taxpayer must state the following (i) the nature of protest whether reconsideration or reinvestigation, specifying newly discovered or additional evidence he intends to present if it is a request for reinvestigation, (ii) date of the assessment notice, and (iii) the applicable law, rules and regulations, or jurisprudence on which his protest is based, otherwise, his protest shall be considered void and without force and effect. These are very important details that must not be omitted in a protest. So, a one pager general denial of a tax liability will not fly. A protest must lay down the legal basis for it to be considered valid. If not, the taxpayer will be considered as not having filed a protest at all, making the tax assessment against him final and executory.

According to BIR regulations, in requests for reinvestigation, the taxpayer must submit all relevant supporting documents in support of his protest within 60 days from date of filing of his letter of protest, otherwise, the assessment shall become final. But in a recent case, the Supreme Court ruled that the submission of additional documents within 60 days refers to the Preliminary Assessment Notice (PAN) and not to the FAN or FLD. This SC ruling is contrary to the BIR’s interpretation on when the 60-day period to submit additional documents must be commenced. According to the BIR, it must be reckoned from the submission of the protest to the FAN but according to the SC, it must be counted from the filing of the protest to the PAN. So, effectively all tax assessments where the BIR immediately issued a FAN or FLD after the expiration of the 15 day period for the taxpayer to reply to the PAN, and the BIR did not wait for the taxpayer to submit additional documents within 60 days from the filing of the protest to the PAN, are void. This apparent contradiction between the BIR rules and the recent SC ruling, on when the counting of the 60-day period to submit additional documents must commence, have far reaching legal implications.

In a request for reconsideration on the other hand, the taxpayer cannot submit additional documents. He should only rely on the documents that he submitted when he filed his protest to the FAN or FLD.

In a motion for reinvestigation, the BIR must accept the request for reinvestigation. Some jurisprudence say that such acceptance may either be expressed or implied. What is the significance of the BIR’s acceptance to conduct a reinvestigation? It is only when a request for reinvestigation is accepted that the running of the 5-year prescriptive period for the BIR to collect is tolled. If there is no express or implied acceptance of the taxpayer’s request for reinvestigation, the BIR’s right to collect will be limited only to 5-years from the issuance of the FAN or FLD.

The running of the 5-year prescriptive period for the BIR to collect does not stop in a motion for reconsideration. So, after 5 years from the issuance of the FAN or FLD, taxpayers will have a sigh of relief because when this time comes, the BIR has lost it right to collect.

In filing a protest, the taxpayer must be conscious of the completeness of its content. Also, in choosing whether to file a motion for reconsideration or reinvestigation, the taxpayer must understand that in choosing the latter, he is effectively waiving the 5-year limit for the BIR to go after his properties.

Tax remedies are meant to protect taxpayers against unjust assessments. But taxpayers are expected to do their part and be aware of the consequences of their choices.

The author is a senior partner of Du-Baladad and Associates Law Offices (BDB Law), a member-firm of WTS Global.

The article is for general information only and is not intended, nor should be construed as a substitute for tax, legal or financial advice on any specific matter. Applicability of this article to any actual or particular tax or legal issue should be supported therefore by a professional study or advice. If you have any comments or questions concerning the article, you may e-mail the author at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 8403-2001 local 330.

How to Petition a Judge

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  • How to Write a Motion for Reconsideration With a Memorandum of Law
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  • How to Draft a Legal Complaint

A motion is essentially a legal request to a judge asking for a decision about a case. This specific request varies depending on the person filing the motion, or moving party’s, goals in filing the motion. Typically, your lawyer will file any necessary motions for you. If you are representing your own case, then you are not legally required to have an attorney draft a motion for you. Some common legal motions include motion to dismiss, motion to strike and motion for summary judgment.

How to Format a Motion to the Courts

Step 1

Create a legal heading for your motion. This should include the name of court you are petitioning, the names of the plaintiff and defendant, the case number and name of the judge you are motioning. Here is an example of a header:

STATE OF ARKANSAS

DISTRICT COURT OF BENTONVILLE

Case Number D-3697

Hon. Benjamin T. Smith

Step 2

Capitalize your title head. Begin the legal motion by writing an appropriate title in all capital letters. The title should clearly explain your motion. For example:

PETITIONER’S MOTION TO DISMISS

Step 3

Declare the facts. Under a capitalized heading titled FACTS or DECLARATION, you need to explain only the facts of the case. Do not plead your case yet. Just state the known facts which are relevant to your case.

Step 4

Write the memorandum using the law and legal precedent to plead your case. This is your opportunity to argue the reason why you are motioning the court. This is the time to explain why the law supports your motion and convince the judge to grant your motion.

Step 5

Conclude the motion with a brief summary of your request. Restate your goal in filing the motion and what you hope to move the judge to decide.

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  • Motions: Time for Filing Motion for Reconsideration in Georgia
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Time for Filing Motion for Reconsideration in Georgia

My question involves court procedures for the state of: Georgia

I understand filing a motion for reconsideration does not toll the 30 days you have to file a notice of appeal within, but is there a limited time span that you must file a motion for reconsideration within, other than the same 30 period allowed for notice of appeal, following the order? For some reason I was thinking youy only had 10 days, but can’t find that anywhere. I’m in state court, if it differs from superior or magistraqte.

Re: Time for Filing Motion for Reconsideration in Georgia

(a) The general laws and rules of appellate practice and procedure which are applicable to cases appealed from the superior courts of this state shall be applicable to and govern appeals from the state courts.

(b) The general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state shall be applicable to and govern in the state courts.

(c) The general laws and rules applicable to the execution and enforcement of judgments in the superior courts of this state shall be applicable to and govern in the state courts.

I haven’t found an specifically described deadline for filing a motion for reconsideration outside of the appellate court, save for an older case indicating that it must be filed within the same term of court; however, I would urge you to research the issue yourself or to ask a local lawyer, as it’s easy to miss something and unfortunately I can’t spend all night chasing shadows.

Nead v. Union Cty. Educ. Servs. Comm’n, 2011 WL 166205 (App. Div. Jan. 20, 2011). This case, which resulted in a reversal of a trial court’s decision to dismiss an employment discrimination case, teaches several things about motions for reconsideration. First, the decision clarifies that motions for reconsideration of interlocutory decisions are to be made under Rule 1:7-4, which in turn refers to Rule 4:42-2, rather than under Rule 4:49-2. The plaintiff in Nead had invoked both Rule 1:7-4 and Rule 4:49-2, perhaps in an effort to ensure that no ground for reconsideration was overlooked. This reliance on both Rules has occurred frequently. See, e.g., Cummings v. Bahr, 295 N.J. Super. 374, 382 (App. Div. 1996). Now, it appears no longer to be necessary.

Second, however, the court emphasized that “in order to maintain a consistent methodology for all motions seeking reconsideration, we believe that the same modes of thought and methods of analysis should apply to applications for reconsideration of both interlocutory ( Rule 4:42-2) and final ( Rule 4:49-2) orders. At its core, the guiding principle for all such reviews will always be the furtherance of the interests of justice.” This “uniform approach will also enhance predictability and serve to fortify our observance of precedent.” Thus, as a practical matter, it may not matter under which Rule reconsideration is sought, though the Court’s first lesson clarified that.

Third, though many decisions have expressed unhappiness with motions for reconsideration, Nead makes clear that such motions are appropriate in proper circumstances. The Appellate Division observed that a motion for reconsideration is “after all, an inherent– as well as a rule-based– adjunct to the decisional process of dispute resolution,” and that courts “should not begrudge parties the right” to seek reconsideration.

In Nead, the court stated, the Law Division was not wrong to reconsider its original ruling denying summary judgment. That court “was confronted with a complicated jurisprudential landscape littered with difficult legal principles, many dependent upon subtle principles of federal law.” In those circumstances, reconsideration, which resulted in the grant of summary judgment, “emblemized an attempt to further the interests of justice,” even though the Appellate Division ultimately reversed that summary judgment and reinstated the case.

On a different note, Nead also illustrates the principle of Rule 4:6-2 that when parties submit materials beyond the complaint on a Rule 4:6-2(e) motion to dismiss for failure to state a claim, and the motion judge does not exclude those materials, the motion must be converted to a summary judgment motion under R. 4:46. In Nead, the parties “unflinchingly appended a wealth of discovery materials to their respective moving papers, going far beyond the four corners of Nead’s complaint.” Thus, the Appellate Division considered the merits of the case under the summary judgment standard.

SPECULATION ALERT! This was a per curiam opinion, not signed by any of the three judges who were on the panel. But there is reason to suppose that Judge Harris, one of the listed panel members, authored the opinion. In its discussion of motions for reconsideration, the opinion cites a number of prior cases, including one Chancery Division decision, but omits reference to D’Atria v. D’Atria, 242 N.J. Super. 392 (Ch. Div. 1990). D’Atria was written by Judge Harris, and was one of the first cases to discuss the standards for motions for reconsideration. The Appellate Division has cited it over 100 times, according to WestlawNext, including more than a dozen times in 2010 alone. The absence of D’Atria from Nead may indicate judicial modesty by Judge Harris in deciding not to cite his own opinion.

5 Responses to “Some Lessons About Motions for Reconsideration”

Seeking support for reconsideration of summary judgement in favor of negligent defendant

UNITED STATES OF AMERICA
v
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

DEFENDANT’S MOTION FOR RECONSIDERATION
AND MODIFICATION OF THE COURT’S JANUARY 12, 2001 ORDER

Defendant Jonathan J. Pollard, by his undersigned attorneys, moves for reconsideration and modification of the Court’s January 12, 2001 order (the “Order”) which denied Defendant’s Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order.

The Motion sought to provide Mr. Pollard’s counsel, Eliot Lauer, access to five specified documents presently under seal in the Court’s docket. Mr. Lauer is a member of the bar of this Court and the holder of a “Top Secret” security clearance issued by the government on November 2, 2000 for the specific purpose of enabling Mr. Lauer to represent Mr. Pollard.

The five documents were listed in the motion papers. Copies of the publicly available, redacted versions of the documents were handed up to the Court at oral argument on January 11, 2001.

The documents are:


    Declaration of Secretary of Defense Caspar W. Weinberger, filed with the Court Security Officer on January 9, 1987. A copy of the publicly available version of this document is annexed hereto as Exhibit A.

Defendant Jonathan J. Pollard’s First Memorandum in Aid of Sentencing (undated). A copy of the publicly available version of this document is annexed hereto as Exhibit B.

Defendant Jonathan J. Pollard’s Second Memorandum in Aid of Sentencing, served February 27, 1987. A copy of the publicly available version of this document is annexed hereto as Exhibit C.

Government’s Reply to Defendant’s Sentencing Memorandum, served March 3, 1987. A copy of the publicly available version of this document is annexed hereto as Exhibit D.

  • Minutes of sentencing dated March 4, 1987, at p. 57. A copy of the publicly available version of this document (pages 1, 57, and the court reporter’s certification) is annexed hereto as Exhibit E.
  • For purposes of this motion, each redacted portion of Exhibits A through E has now been marked individually by hand with the designations “R1” through “R 88.” Based upon the size of the redactions, it appears that certain redactions are as short as a single word or phrase (e.g., Ex. A: R13, R 22, R 29, R 32, R 36, R 44, R 45, R 46, R 50), while other redactions go on for several pages (e.g., Ex. A: R 11, R 17, R 27).

    In the Order, the Court stated:

    The Court has viewed the classified materials and finds that the exceptionally grave concern over national security is warranted. These documents contain information that if disclosed, even accidentally, would pose a grave risk to national security.

    We respectfully submit that even if some portions of some of these 88 redacted passages contain information that, if disclosed, would pose a grave risk to national security, surely that description cannot apply literally to each and every redacted passage, or to each and every sentence within each redacted passage.

    Accordingly, we respectfully ask the Court to provide access to security-cleared counsel at least to those redacted passages, or to those sentences within redacted passages, that do not contain information that, if disclosed, would pose a grave risk to national security. We request that the Court conduct a hearing at which the Court Security Officer would testify as to which redacted passages, and which sentences within redacted passages, contain such information and which do not.

    We also address at this time any possible argument of mootness. As of the date of this motion, President Clinton has not announced any decision whether or not to grant clemency to Mr. Pollard. In the event the President grants clemency, this motion will become moot. In the event the President denies clemency, counsel will continue to require access to the sealed materials in connection with contemplated future applications for executive clemency. As a result, in the event President Clinton leaves office without having granted clemency to Mr. Pollard, this motion will not become moot.

    Finally, we respectfully request that the Court waive the requirement of the Local Rules that a memorandum of law be submitted herewith.

    Dated: January 18, 2001

    CURTIS, MALLET-PREVOST,
    COLT & MOSLE LLP

    ________________________________________
    Jacques Semmelman
    (Admitted pro hac vice )
    Eliot Lauer (D.C. Bar No. 203786)

    1801 K Street, N.W.
    Suite 1205L
    Washington, D.C. 20006
    (202) 452-7373

    101 Park Avenue
    New York, New York 10178-0061
    (212) 696-6000

    Attorneys for Jonathan Jay Pollard

    IN THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA
    v
    JONATHAN J. POLLARD,
    Defendant

    Criminal No. 86-0207 (NHJ)

    ORDER

    Upon consideration of Defendant’s Motion for Reconsideration and Modification of the Court’s January 12, 2001 Order, it is by the Court this ____ day of ____________, 2001,

    ORDERED, that the Motion is granted; and it is further

    ORDERED, that the Court Security Officer is directed to appear before the Court for an evidentiary hearing, to be held ______________, 2001, at which the Court Security Officer will testify as to precisely which redacted passages, and which sentences within redacted passages, contain information that, if disclosed, would pose a grave risk to national security; and it is further

    ORDERED, that the requirement in the Local Rules of filing a memorandum of law is hereby waived.

    _____________________________________
    CHIEF UNITED STATES DISTRICT JUDGE
    DISTRICT OF COLUMBIA

    CERTIFICATE OF SERVICE

    CATHERINE LEONARD certifies as follows under penalty of perjury:

    On January ___, 2001, I caused to be served by hand delivery a true copy of the foregoing Defendant’s Motion for Reconsideration and Modification of the Court’s January 12, 2001 Order on:

    This content is from the eCFR and is authoritative but unofficial.

    1. Title 25 – Indians
    2. Chapter III – National Indian Gaming Commission, Department of the Interior
    3. Subchapter H – Appeal Proceedings Before the Commission
    4. Part 581 – Motions in Appeal Proceedings Before the Commission
    5. § 581.6
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    • Citation: 25 CFR 581.6 copy
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    § 581.6 How do I file a motion for reconsideration?

    ( a ) Motions for reconsideration may be made only for final decisions on appeal and will only be granted if a party can establish that:

    ( 1 ) New and material evidence is now available that, despite the party’s due diligence, was not available when the record closed;

    ( 2 ) The final decision was based on an erroneous interpretation of law or there has been an intervening change in the controlling law; or

    ( 3 ) A manifest injustice, clearly apparent or obvious on its face, will occur if the motion for reconsideration is not granted.

    ( b ) A motion for reconsideration and accompanying brief shall be filed within 30 days of the date of the Commission’s final decision and shall be served on all parties, limited participants, and intervenors, if any. A motion for reconsideration shall explain the circumstances requiring reconsideration.

    ( c ) A party may file only one motion and accompanying brief for reconsideration.

    ( d ) Opposition briefs shall be filed within 20 days after the motion is filed.

    ( e ) A reply brief to the brief in opposition shall be filed within 15 days of service of the brief in opposition.

    ( f ) The Commission shall issue a decision on reconsideration within 30 days of the filing of the reply brief or of the expiration of the time to file a reply brief, whichever is later. The Commission shall issue a brief statement of the reason(s) for its decision.

    ( g ) If the Commission grants the motion, it may reverse or modify the decision, in whole or in part, from which reconsideration is sought or may remand to the Chair for further consideration.

    ( h ) The filing of a motion for reconsideration will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Commission.

    (a) Motion for Reconsideration.

    (1) Permitted. A party in a case dismissed by the Clerk pursuant to Rule 45(h) (Sua Sponte Dismissal of Cases) may move for reconsideration by the Clerk. If the Clerk denies such reconsideration, the matter will be referred for decision by a Judge. A party in a case decided by a single judge may move (A) for reconsideration by the single Judge, (B) for panel decision, or (C) in a single motion, for reconsideration by a single Judge or for panel decision in the event the single Judge denies reconsideration. A party in a case decided by a panel may move (A) for reconsideration by the panel, (B) for full Court review, or (C) in a single motion, for reconsideration by the panel or for full Court review in the event the panel denies reconsideration. A party in a case decided by the full Court may move for reconsideration by the full Court.

    (2) Prohibited. A party may not move for reconsideration

    (A) of a matter if that party has previously filed a motion for reconsideration of that matter and the Court has denied that motion, or

    (B) of the grant of a motion under subsection (b) for a decision by a panel when the panel’s decision is that the single-judge decision remains the decision of the Court, or

    (C) of the denial of a motion under subsection (c) for full Court review.

    (b) Motion for Panel Decision. A party in a case decided by a single Judge may move for a decision by a panel of the Court.

    (c) Motion for Full Court Review. Motions for full Court review are not favored. Ordinarily they will not be granted unless such action is necessary to secure or maintain uniformity of the Court’s decisions or to resolve a question of exceptional importance. Subject to the requirements of subsections (d), (e), and (f), a party may move for a decision by the full Court-

    (1) after a panel has decided a case, or

    (2) after a panel has denied a motion for reconsideration or granted a motion for a decision by a panel but held that the single-judge decision remains the decision of the Court.

    (d) Time for Motion. Any motion under this Rule shall be filed not later than 21 days (51 days if the motion is filed by an appellant, petitioner, or representative located outside the United States, Puerto Rico, or the Virgin Islands) after the date of the dispositive action for which reconsideration, panel review, or full Court review is sought.

    Practitioner’s Note: Because a motion for reconsideration by the single Judge may be combined with a motion for panel decision, the filing of a motion for reconsideration does not toll the running of the time for filing a separate motion for panel decision. Likewise, because a motion for panel reconsideration may be combined with a motion for full Court review, the filing of a motion for panel reconsideration does not toll the running of the time for filing a separate motion for full Court review. Thus, to be timely, any motion for panel or full Court review must be filed within the 21-day filing period.

    (e) Content of Motion. A motion under this Rule shall contain a supporting argument. In addition-

    (1) a motion for panel decision, or a motion for single-judge, panel, or full Court reconsideration shall state the points of law or fact that the party believes the Court has overlooked or misunderstood;

    (2) a motion for panel decision also must state why the resolution of an issue before the Court would establish a new rule of law; modify or clarify an existing rule of law; apply established law to a novel fact situation; constitute the only recent, binding precedent on a particular point of law; involve a legal issue of continuing public interest; or resolve a case in which the outcome is reasonably debatable; and

    (3) a motion for full Court review shall state-

    (A) how such action will secure or maintain uniformity of the Court’s decisions, or

    (B) what question of exceptional importance is involved.

    (f) Form and Length. Except by the Court’s permission, a motion or response (including any supporting memorandum or brief) under this Rule may not exceed 15 pages. The motion shall otherwise comply with Rules 25 (Filing and Service) and 27 (Motions), but it need not indicate whether it is opposed.

    (g) Response; Action on the Motion. No response to a motion under this Rule may be filed unless it is requested by the Court, but a motion for full Court review ordinarily will not be granted without such a request. A motion for reconsideration will be decided by the Judge or panel that rendered the decision. A motion for panel decision will be referred to a panel. A motion for full Court review or for reconsideration of a full Court decision will be referred to all of the Judges in regular active service. Consideration by the full Court requires the vote of at least a majority of the eligible Judges in regular active service.

    How to file a motion for reconsideration How to file a motion for reconsideration How to file a motion for reconsideration How to file a motion for reconsideration

    It is not uncommon for a litigant to be dissatisfied with a court’s order. Even if you think you have a solid case, there is no guarantee that the court will see things your way. Additionally, judges doHow to file a motion for reconsideration not always get it right. When a court makes a legal error, the typical way to address that error is to file an appeal. But a case has to be decided with finality on all issues to get to the Appellate Division as of right, without having to ask for permission to appeal, which is difficult to get. If a judge makes a legal or factual error, however, during a case then a motion for reconsideration may be the appropriate course of action. This motion allows a litigant to show the judge him/herself what legal error the judge has made, point out any important facts that the judge failed to appreciate or consider before before, or to bring previously unavailable evidence to the court’s attention. Reconsideration “is a matter within the sound discretion of the Court, to be exercised in the interest of justice.” D’Atria v. D’Atria , 242 N.J. Super. 392, 401 (Ch. Div. 1990)) While it can be difficult to convince a judge to change a decision, the New Jersey Rules of Court allow litigants an opportunity to rectify bad orders.

    Rule 4:49-2, which addresses a motion to alter or amend a Judgment or Order, states the following:

    “. . . [A] motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.”

    However, a motion for reconsideration should not be made simply because a litigant is not happy with or disagrees with a court’s ruling. The standard on a motion for reconsideration is a high standard to meet. As noted by our higher courts:

    “Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect [***12] or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . . Alternatively, if a litigant wishes to bring new or additional information to the Court’s attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration .” Cummings v. Bahr , 295 N.J. Super. 374 (App. Div. 1996)

    In the recent decision of Tomasso-Addeo v. Addeo, A-5039-15T1, (App.Div. Feb. 27, 2018), the Appellate Division reviewed a trial court decision denying the defendant’s motion for reconsideration regarding the sale of the parties’ home. The April 4, 2016 order of the lower court granted the plaintiff $55,000 from the net proceeds of the sale of the home after the court found the defendant in violation of litigant’s rights based upon his failure to comply with an earlier June 26, 2015 consent order.

    In the motion for reconsideration, the defendant argued that the order granting plaintiff the $55,000 was contrary to the parties’ previous agreement regarding the distribution of the home sale proceeds. Specifically, the parties signed a marital separation agreement (MSA), which was incorporated into their divorce judgment. The MSA provided that the defendant could either elect to buy out the plaintiff’s equity in the former marital home for $55,000, or the parties would list the house for sale and split equally the net proceeds after closing costs. Subsequently, the parties filed a consent order which stated that the defendant would refinance the mortgage and buy out the plaintiff’s equity by paying her the $55,000 agreed upon in the MSA. The consent order further provided the parties would split equally all closing costs associated with the refinance, with the closing to occur no later than November 30, 2015. The defendant, however, then failed to refinance the mortgage by the November 30 deadline, leading the plaintiff to file a motion to enforce litigant’s rights.

    As a result, the lower court entered an order that required the defendant to close on the refinance by April 30, 2016, or a judgment would be entered against the defendant and in favor of the plaintiff for $55,000 and the court would give the plaintiff a limited power of attorney to sell the house. The order also included a provision instructing the parties to submit a consent order the same day that would supercede the relevant provisions of the court order. The parties submitted a consent order stating defendant was unable to refinance the mortgage, and that the parties were going to re-list the home for sale. The consent order did not address how the parties would distribute the proceeds from the sale of the house.

    The defendant’s motion reconsideration requested that the court vacate provisions of the order regarding the refinance of the mortgage, alleging they conflict with the parties’ consent order. The motion also requested that the court order the parties to split equally the net proceeds, after all closing costs from the sale of the house. The court denied defendant’s motion for reconsideration of the order. The judge reasoned that there was no need to vacate provisions of the court order because the order clearly states the consent order supersedes relevant provisions of the court order. The judge went on to uphold his decision granting plaintiff $55,000 from the net proceeds from the sale of the house, reasoning defendant acted in bad faith in delaying the sale and refinancing of the house. The judge also awarded plaintiff counsel fees associated with defendant’s motion for reconsideration.

    The Appellate Division affirmed the decision of the lower court, holding that the judge’s decision on the motion for reconsideration was not palpably incorrect, nor did defendant offer any evidence the trial court failed to consider. The defendant was unable to meet the high burden of a motion for reconsideration. These applications can be tricky because the standard is so high. If you are in this situation, the office of James P. Yudes, A Professional Corporation may be able to help you.

    The views and opinions expressed in this forum are those of the online action officers and not necessarily those of the Office for Legal Affairs or the Commission on CSC laws, rules and regulations. Also, be reminded that the views of the action officer is a mere advice that does not bind the office.

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    • greg
    • How to file a motion for reconsiderationTopic Author –>
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    Kindly help on my dilemma. My appointment to a certain government position has been disapproved by CSCFO. Our current head of office appealed to the CSCRO in my behalf but CSCRO affirmed the disapproval. Our head of office then advise me to step down and vacate the post I currently hold. This prompt me that he no longer wanted to make an appeal to the CSCCO on my behalf. Would it be alright if I’ll file my own MR even though he made the appeal to the CSCRO? If it’s alright, to whom shall I address the MR? Is there still a need for me to furnish a copy of my appeal to our head of office? to CSCFO? and to CSCRO?

    Another thing that bothers me is that the reason of disapproval of my appointment is I do not met the required experience. But our former head of office, who issued the permanent appointment that was disapproved, had issued me special order (SO) that made me perform the required experience. Though it is true that I never was appointed to the position required, but I already performed the duties and functions of that required position by virtue of the SO. My question is, am I correct with this argument? Kindly enlighten me also on the provision found on Part III. On Experience, Rule VIII. Qualification Standards, of the 2017 Omnibus Rules on Appointments and Other Human Resource Actions.

    Thank you very much in advance. I really appreciate if you could enlighten me before my probation to make appeal ends on August 22.

    Please Log in or Create an account to join the conversation.

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    • How to file a motion for reconsideration–>
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    Please be informed that as a policy, the Commission does not render opinions or rulings on issues that may eventually be the subject of court litigation or appeal before it. This is especially so if the material facts necessary to a judicious adjudication of the issues are not fully presented or substantiated as in this case.

    Nonetheless, we would like to invite your attention to Sections 77 and 78, Rule 16, Revised Rules on Administrative Cases in the Civil Service (RRACCS) which provide, as follows:

    “Section 77. Invalidation or Disapproval; Who may Appeal. – Either the appointing authority or the appointee may assail the invalidation or disapproval of an appointment.”

    “Section 78. Where and When to File. – Appointments invalidated or disapproved by the CSCFO may be appealed to the CSCRO while those invalidated or disapproved by the CSCRO may be appealed to the Commission within the fifteen (15) day reglementary period.

    “To facilitate prompt actions on invalidated or disapproved appointments, motions for reconsideration filed with the CSCFO shall be treated as an appeal to the CSCRO and a Motion for Reconsideration at the CSCRO will be treated as an appeal to the Commission and all the records thereof including the comments of the CSCFO or CSCRO shall, within ten (10) days from receipt of the latter, be forwarded to the CSCRO or the Commission as the case may be.

    “The action of the CSCRO concerned may be appealed to the Commission within fifteen (15) days from receipt thereof.

    “The appeal field before the CSCROs and the Commission shall comply with the requirements for the perfection of an appeal enumerated in Sections 113 and 114.”

    Further, Section 3, Rule VI, Revised Omnibus Rules on Appointments and Other Personnel Actions (CSC MC No. 40, series 1998) states that:

    “Sec. 3. When an appointment is disapproved, the services of the appointee shall be immediately terminated, unless a motion for reconsideration or appeal is seasonably filed.

    “Services rendered by a person for the duration of his disapproved appointment shall not be credited as government service for whatever purpose.

    “If the appointment was disapproved on grounds which do not constitute a violation of civil service law, such as failure of the appointee to meet the Qualification Standards (QS) prescribed for the position, the same is considered effective until disapproved by the Commission or any of its regional or field offices. The appointee is meanwhile entitled to payment of salaries from the government.

    “If a motion for reconsideration or an appeal from the disapproval is seasonably filed with the proper office, the appointment is still considered to be effective. The disapproval becomes final only after the same is affirmed by the Commission.”

    With regard to experience, Part III (1), CSC Memorandum Circular No. 12, s. 2003 (Revised Policies on Qualification Standards) provides, as follows:

    “1. Relevant experience refers to previous employment or jobs or volunteer work on a full time basis in either the government or private sector, whose duties, as ascertained by the Human Resource Management Officer or authorized officials of the previous employer, are functionally related to the duties in the Position Description Form of the position to be filled.”

    We hope to have enlightened you on the matter.

    Please Log in or Create an account to join the conversation.

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    • Child Custody, Support and Visitation
    • How to File a Motion for Reconsideration of Child Support
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    How to File a Motion for Reconsideration of Child Support

    My question involves child support in the State of: New Mexico

    Greetings, I have a long and crazy case, but in short, I am wondering if there is a way to find out what made the Judge rule the way she did so that I can provide appropriate argument in a Motion for Reconsideration?

    The EXTREMELY abbreviated version of my case is that Mother brought action for child support 4 times in last 18 years but when Father said I want visitation she said never mind stay out of our lives and dismissed each of the 4 cases. Now that child is over 18, she filed again and said she changed her mind, admitted to the hearing officer that she told father I don’t want money from you if you just stay out of our lives. Even notarized an agreement of such. But the hearing officer still recommended she get the max allowable. After the report and recommendation was filed, our case was reassigned to a newly-appointed judge who immediately adopted the report and recommendation despite a 20+ page objection to the report.

    My objection included very supportive, point on case law in support of a finding on my behalf. Is there a way to find out what made the judge decided that way? I am astounded that the amount wasn’t lowered somewhat with all the case law and evidence I provided in my objection. I am planning on filing a motion for reconsideration but really don’t know where to start because I don’t know what the judge was thinking.

    Any advice would be greatly appreciated. My family is in crisis and I don’t know where to turn.

    Re: What Made the Judge Decide That

    Why would you believe that the father should not be financially responsible for the child he created?

    Re: What Made the Judge Decide That

    Thank you for your question. I do believe that every father should be responsible for the children they create – both financially and emotionally. However, I do believe there are circumstances that can change this. As I said in my original post, I was giving a very abbreviated version of the case. Here, Father indeed wanted to be part of the child’s life and was always willing to pay child support but never himself sought a court order because Mother consistently told him we don’t want anything from you stay out of child’s life. In the beginning Father did try to give Mother money, she always sent it back. She gave away Christmas, birthday, Easter, etc. presents that were bought for the Child. Because of the fact that mother and father had a horribly tumultuous relationship, Father gave in and thought it would be best for Child not to always see them fighting.

    At every one of the 4 times Mother said she had changed her mind and wanted child support, Father said he would absolutely pay child support. He was always willing to. However, each time, when Father then sought visitation, she would change her mind and say I do not want your money, just stay out of Child’s life.

    This last time Mother sought child support, Father began paying and has been paying ongoing child support starting at age 17 and continuing through high school graduation.

    What I contend is Father should not be responsible for is the retroactive amount because it was not simply a case of Father not paying. The court awarding retroactive support and interest in this case clearly sends a message that one should wait until after Child is 18 and seek to collect then because you will get more money (interest) and be able to keep Father from having a relationship with Child. Mother admitted to Hearing Officer that it was her idea to agree to not collect child support so long as Father had no contact with Child. This was not an agreement suggested by Father. Why should she be allowed to collect the full amount plus interest?

    I do believe in this case, Father should not be responsible for any retroactive support but would even support a finding that Father is responsible for half of that retroactive amount because they both made perhaps not the best decision, but I personally cannot see any reason why Mother should be allowed to make the agreement with Father that she made, admit to having proposed that agreement and then get to change her mind after Child is 18 and after Father can no longer legally seek visitation – the benefit she asked him to give up in exchange for financial support.

    As a side note, I will add that the amount is very high too. Father has CA income and using NM guidelines it makes him look like he has a much higher ability to pay than is reality. So, the amount is severely impacting Father’s ability to support his minor daughter. Should Father then be entitled to assistance to help support this minor? I don’t really think so. Why should State have to provide assistance to another minor because of shenanigans that she pulled? I just think the Court awarding her everything is not a just decision and doesn’t support the purpose of child support. Here is clearly her just playing games with Father.

    Thank you for letting me vent my frustration! Though we may disagree, your feedback is appreciated because it does help me understand where the other side is coming from.

    4:49-2. Motion to Alter or Amend a Judgment or Order

    Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

    The court is required to make a finding of facts or conclusion of laws under Rule 1:7-4. Therefore, it is always important to read the courts written decision or to listen to the courts decision if their findings were placed on the record.

    A motion for a rehearing or reconsideration must be filed with 20 days after service of the order upon all parties. The time period runs from the date of service of the order rather than the date when the judge signed the order.

    It must be emphasized that it is very difficult to prevail on a motion for reconsideration. Many judges simply view motions for reconsideration as an opportunity for an unhappy litigant to air their positions and re-litigate issues that have already been decided. Moreover, many courts believe that motions for reconsideration are an unnecessary duplication of the court time and counsel fees to the client. In light of this view, it is important for a motion for reconsideration to be prepared very carefully and thoroughly. The motion should specifically include the controlling cases or legal errors that counsel believes that the court has overlooked or erred.

    • The court has expressed its decision based upon clearly incorrect or an irrational basis. Some examples would be when the court used incorrect child support guideline sheets, the court uses the wrong numbers in the child support calculations, or the court incorrectly applied the law based upon the application case law or statute.
    • The court did not consider or it failed to note important evidence when it decided the motion.
    • The court’s decision was arbitrary, capricious or unreasonable.

    However, sixty days have passed since the court entered its order. My lawyer has advised me that I am now out of time to file a motion for reconsideration. Is there any other type of legal relief that I can now pursue?

    You can file an appeal. However, bear in mind that the costs to file an appeal are outrageous. The filing fees are very high. Moreover, you have to purchase the transcripts. Finally, appeals require lawyers to write detailed briefs. The legal fees to pursue an appeal in many cases are just not cost effective and practical.

    Alternatively, if a person loses a motion, and if he is out of time to file a motion for reconsideration, then he can file another type of motion called a motion to vacate an order or judgment. This motion is filed pursuant to Rule 4:50-1. A party may seek relief from a court order upon filing a motion to vacate it. The movant must demonstrate one or more of the following reasons to vacate the order:

    • How to file a motion for reconsideration
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    How to file a motion for reconsideration

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    How to file a motion for reconsideration

    Ranell John V. Nuñez

    The Amended 1997 Rules of Civil Procedure (Revised Rules), which became effective on 01 May 2020, revised the rules on motions to dismiss.

    Rule 15, Sec. 12 of the Revised Rules states that a motion to dismiss is a prohibited pleading except when it raises any of the following grounds: (1) the court’s lack of jurisdiction over the subject matter of the claim; (2) the pendency of another action between the same parties for the same cause; and (3) the cause of action is barred by a prior judgment or by the statute of limitations (Rule 15, Sec. 12 [a]).

    The adverse party may file an opposition to the motion to dismiss within five (5) calendar days from receipt thereof without need of an order from the court. The motion to dismiss shall then be resolved by the court within fifteen (15) calendar days from its receipt of the opposition, or upon expiration of the period to file such opposition (Rule 15, Sec. 5[c]).

    It is within the discretion of the court whether to call for a hearing on the motion within fifteen (15) calendar days from filing (Rule 15, Sec. 6).

    When the grounds for a motion to dismiss are instead raised in the answer as affirmative defenses, the court may conduct a summary hearing within fifteen (15) calendar days from the filing of the answer, and shall motu proprio resolve these defenses within thirty (30) calendar days from the filing of the answer (Rule 8, Sec. 12[d]).

    The other grounds to dismiss under the former 1997 Rules of Civil Procedure should be pleaded as affirmative defenses in the answer. The trial court shall motu proprio resolve these defenses within thirty (30) calendar days from the filing of the answer (Rule 8, Sec. 12[c]).

    The denial of affirmative defenses cannot be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus. Instead, such denial may be raised on appeal after a judgment on the merits (Rule 8, Sec. 12[e]).

    An order granting the following is considered a dismissal with prejudice and bars the refiling of the same action or claim: (1) a motion to dismiss; or (2) an affirmative defense (a) that the cause of action is barred by a prior judgment or by the statute of limitations, (b) that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished, or (c) that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds (Rule 15, Sec. 13).

    When the Court issues (1) an opinion pursuant to which a final judgment is entered or (2) a summary order and judgment disposing of the appeal, a party may wish to apply for a rehearing. There are two kinds of rehearing. A petition for a panel rehearing requests that the panel of judges that originally heard the case reconsider its decision. A petition for a rehearing en banc requests that all the active judges on the Court rehear the case. A petition for panel rehearing and/or rehearing en banc must be filed within 14 days after the decision determining the case is filed. FRAP 35(c), 40(a)(1); LR 35.1, 40.1. If a party is simultaneously filing a petition for rehearing and a petition for rehearing en banc, both requests must be made in a single document. When a petition for rehearing exceeds 50 pages, including the copy of the opinion or summary order to which the petition relates, the party filing the petition must submit 3 paper copies to the Court. If the petition for rehearing includes a petition for rehearing en banc, the party filing the petition must submit 15 paper copies to the Court. Submission of the paper copies is in addition to any applicable electronic filing requirements.

    In some cases the Court may dispose of an appeal by a final three-judge order for which a FRAP 36 judgment is not entered. In these instances an adversely affected party may file a motion for panel reconsideration and a motion for reconsideration en banc. See LR 40.2. The motion must comply with the requirements for filing a petition for rehearing or rehearing en banc under FRAP 35, FRAP 40, and LRs 35.1 and 40.1. See id.

    If the Court substantively amends a decision, the time for filing a petition or motion begins to run from the date the amended decision is entered. This recalculation of the time does not apply if the Court issues a decision making a non-substantive change (e.g., correcting a typographical error). Each petition or motion must include a copy of the opinion or summary order to which the petition or motion relates.

    The timely filing of a petition for rehearing or a motion for panel reconsideration will stay the issuance of the mandate until disposition of the petition or motion unless otherwise ordered by the Court. If the petition or motion is denied, the mandate issues 7 days after the entry of the order denying the petition or motion unless the time is shortened or extended by order.

    All requests to the Court – for example, permission to file an oversized brief – must be made in the form of a motion that complies with FRAP 27, LR 27.1, and any other applicable rule or statute. The Court requires a motion to be accompanied by the Court’s Form T-1080 Motion Information Statement. In a case in which all parties are represented by counsel, the moving party’s motion must indicate (1) that the movant has notified opposing counsel or why the movant could not do so; (2) opposing counsel’s position on the relief requested, and (3) whether opposing counsel intends to file a response to the motion.

    An affidavit or attorney’s affirmation that contains only factual information must be filed with the motion. The movant may file a memorandum of law that complies with LR 27.1(a)(3).

    A moving party seeking substantive relief from a lower court opinion or agency decision must attach a copy of the opinion or decision and any written decision as a separately identified exhibit. For cases in which a party does not file documents electronically with the Court, a movant must file only an original of the motion. If the motion exceeds 50 pages, the movant must also submit 3 additional paper copies of the motion to the Court. Proof of service on all other parties to the action must accompany the motion papers unless the motion is filed electronically in accordance with LR 25.1.

    Papers in response to a motion must be served and filed within 10 days of service in person or by email , or within 13 days of service by mail. For cases in which the Court does not file require electronic filing of documents, an adverse party must file only an original of the responsive papers. If the response exceeds 50 pages, the respondent must also submit 3 additional paper copies of the response. A substantive motion requiring oral argument is usually heard on Tuesdays when the Court is in session.

    Procedural motions (for example, an extension of time to file a document or permission to file an oversized brief), will not be placed on a motions calendar and need not be noticed for a particular date. Since papers usually are not filed in opposition to procedural motions, the Court does not wait for such papers to determine the motion. As a result, opposition papers should be filed promptly to ensure that the Court considers them. In some instances the Court may request the filing of opposition papers. In that event the opposition papers should be filed in accordance with the deadline set by the Court.

    Certain routine procedural motions are determined by the clerk or the clerk’s designee acting under the clerk’s authority. Other procedural motions are referred to the applications judge. Upon counsel’s request for reconsideration, a clerk’s order may be resubmitted to a judge for determination.

    Once a case is assigned a date for oral argument, all motions filed in that case, including any procedural motions, will be referred to the panel that will hear the appeal. To maintain the anonymity of the panel, a motion decided by the panel is signed by the clerk or the clerk’s designee.

    Motion for Reconsideration on a Final Restraining Order (FRO)

    A New Jersey Domestic Violence Final Restraining Order is ‘forever’. It has no ‘half-life’, and no automatic termination date. In some States, these types of Orders have a limited period of duration – typically of a several-year period. Once that time expires, the Order from that other State expires. In New Jersey, the FRO continues indefinitely. There are steps that can be taken to ask the Court to eliminate the Order, such as by filing a Motion for Reconsideration. These types of applications need to be supported by information establishing that the Order has ‘outlived’ the need for the Order as it was originally issued. In many cases, a ‘Risk Assessment’ is helpful to address any ‘anger’ issues raised as a basis for the Order to have been issued in the first place. Compliance with all terms of the FRO is essential, with no reported violations. The Court requires that the entire transcript of the proceeding where the FRO was initially issued, be provided so the reviewing Court can understand what the issues and concerns were that were the basis for the Order to be issued in the first place. In essence, to file a motion for reconsideration you will need to provide the Court with a complete legal and factual basis for the Court to conclude that the Order is no longer needed.

    Howard W. Bailey, Esq.
    24 Commerce Street, Suite 1000
    Newark, NJ 07102
    973-982-1200

    How to file a motion for reconsideration

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    BVA–MOTIONS FOR RECONSIDERATION

    Motions for Reconsideration (MFRs) are few and far between. These occur when a Veteran petitions the BVA to reconsider his denial. Few are granted and fewer still succeed. Here is an example of same. Sgt. Whacko served from 1959 to 1962. While he could have been in Vietnam, there doesn’t seem to be a record of it. This is not dispositive of the fact as we all know. His time of service indicates he could be a victim of the NPRC fire in 1973. Many records from that era were destroyed or damaged beyond repair.

    Our Vet has an even bigger problem.

    After service, VA records show that in December 1992, 30 years after service with no interval history of psychiatric symptoms, the Veteran suffered a subarachnoid hemorrhage due to an aneurysm, after which the Veteran showed marked personality changes. In May 1994, after psychological testing, the diagnosis was adjustment disorder with mixed disturbance of emotions and conduct. In June 1994, after a psychiatric evaluation by a private physician, the diagnosis was dementia. On VA examination in December 1995, the diagnosis was PTSD not shown and no other diagnosis. Except for psychological testing for memory function by VA in 1997 [placed in the above average range], there is no history of psychiatric symptoms or treatment after 1995.

    While I wouldn’t characterize this as a frivolous filing, I would say that his chances of being in a combat setting in RVN with such a low enlisted rank in 1962 to be slim and none. I have done many a study of historical documents from the Vietnam era and the fact is that we were in an advisory status with few assets on the ground then. Most of those were Special Forces advisors who were training ARVN/Montagnard assets. Most were also officers rather than enlisted men. The Vet testified thus in 1995:

    In May 1995, the Veteran testified that he first had nervous problems in 1962 when he was in Vietnam for three months as an advisor. He stated that before he went to Vietnam he was in an artillery battery in Germany and that he had volunteered with four or five others to serve as advisors in Vietnam. He indicated that his nervous condition was triggered when his patrol was ambushed and most of his patrol was killed.

    One can see the dichotomy here. Artillery batteries are static positions- usually on hilltops with defensive perimeters easily defended. Boomers were not infantry (MOS 11b10). They stood by their guns for fire missions and did not roam the countryside in search of Charlie. The story, on its face simply doesn’t hold water. This assignment would have been a TDY if it were only three months. Rarely would a soldier be sent on TDY so close to the end of his enlistment, too. The fact remains that were this man in RVN and medivaced to Clark AFB in the Philippines, there would be some record of it.

    Additionally, the reader can see VA’s recalcitrance over obtaining a PTSD C&P or doing anything to corroborate the Vet’s contentions. This should come as no surprise to other Vets. This particular claim has been festering now since 1993. You read that right. It’s the same claim he filed way back then. This is a perfect example of VA’s ping pong technique of delay and deny until we die.

    A Motion for Reconsideration always involves an expanded panel of judges in odd increments. The BVA denied in 1997 which means he had a single judge VLJ panel. Therefore the Reconsideration panel would increase by two for an aggregate of three. The reason for an odd number is to prevent a tie vote . The history of MFRs is spotty. VA is not in the habit of granting these unless there is some glaring shortcoming in the legal process. Here, it may have been the absence of a true examination to ascertain exactly what was bent upstairs. Always remember, VA likes to have a good reason for a denial based on sound medical principles. It rarely happens, but the niceties are usually observed and it is made to appear above board. Here, it’s fairly obvious that the gentleman was not accorded all these components. The Board doesn’t have any punitive means to reprimand the miscreants at the RO so they can get away with doing this remand again and again.

    Therefore the Board panel is remanding this to the Waco Church Burners’ RO for yet another go at a definitive C&P to figure out what’s gone south in his noggin. More effort will also be expended to determine if he was in country. Chances are this will be denied some time in 2014 and be appealed yet again up to the Court. Can you imagine how much money in salaries and how many old growth trees were sacrificed on the altar of VA knowledge? This case truly boggles the imagination but does allow a glimpse behind their curtain. The Vet’s C-file must fill a sea chest!