Rule 35

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Rule 35 Motions Law Firm

Except when specifically required by rule, pleadings or motions need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two [2] witnesses or of one [1] witness sustained by corroborating circumstances is abolished.

The signature of an attorney constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay. If a pleading or motion is not signed or is signed with intent to defeat the purpose of the rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served. For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action.

Similar action may be taken if scandalous or indecent matter is inserted. When in connection with any civil or special statutory proceeding it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind, be verified, or that an oath be taken, it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language:.

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Any person who falsifies an affirmation or representation of fact shall be subject to the same penalties as are prescribed by law for the making of a false affidavit. When such pleadings, motions and affidavits are verified or under oath they shall not require other or greater proof on the part of the adverse party than if not verified or not under oath unless expressly provided otherwise by these rules, statute or other law.

The Elements of Applicable Laws Concerning Rule 35

Affidavits upon motions for summary judgment under Rule 56 and in denial of execution under Rule 9. The time allowed for the presentation of defenses and objections in a motion or responsive pleading shall be computed pursuant to the provisions of Rule 6 C. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:.

The disposition of this motion shall be consistent with Trial Rule 75,. A motion making any of these defenses shall be made before pleading if a further pleading is permitted or within twenty [20] days after service of the prior pleading if none is required. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, any of the defenses in section B 2 , 3 , 4 , 5 or 8 is waived to the extent constitutionally permissible unless made in a motion within twenty [20] days after service of the prior pleading. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

If, on a motion, asserting the defense number 6 , to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule Whether made in a pleading or by motion, the defenses specifically enumerated 1 to 8 in subdivision B of this rule, and the motion for judgment on the pleadings mentioned in subdivision C of this rule shall, upon application of any party or by order of court, be determined before trial unless substantial justice requires the court to defer hearing until trial.

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired.

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If the motion is granted and the order of the court is not obeyed within twenty [20] days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him.

If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted. He may, however, make such motions as are allowed under subdivision H 2 of this rule.

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Counterclaim and cross-claim. But the pleader need not state the claim if:. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. This rule shall not be construed to enlarge any right to assert a claim against the state.

A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment. A pleading may state as a cross-claim any claim by one party against a co-party. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 14, 19 and If the court orders separate trials as provided in Rule 42 B , judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54 B when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

In determining whether or not separate trial of a cross-claim shall be ordered, the court shall consider whether the cross-claim:. In addition, the court may consider any other relevant factors. The statute of limitations, a nonclaim statute or other discharge at law shall not bar a claim asserted as a counterclaim to the extent that:.

A counterclaim may be asserted by or against the transferee or successor of a claim subject to the following provisions:. A claim owing by his predecessor may be interposed against any claim brought by such successor in or outside the court of administration without the necessity of filing such claim or cause of action in the administration proceedings. Counterclaim and cross-claims are subject to restrictions imposed by other statutes and principles of substantive common law and equity, including rules of commercial law, agency, estoppel, contract and the like.

In appropriate cases the court may impose terms or conditions upon its judgment or decree and may enter conditional or noncanceling cross judgments to satisfy such restrictions.

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This provision is intended to deny or limit counterclaims or cross-claims:. Satisfaction of a judgment or credits thereon may be ordered, for sufficient cause, upon notice and motion. The third-party plaintiff must file the third-party complaint with his original answer or by leave of court thereafter with good cause shown. The person served with the summons and the third-party complaint, hereinafter called the third-party defendant, as provided in Rules 12 and 13 may make:. The plaintiff may assert any claim against the third-party defendant who thereupon may assert his defenses, counterclaims and cross-claims, as provided in Rules 12 and A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.

When a counterclaim or other claim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances, which, under this rule, would entitle a defendant to do so. With his responsive pleading or by motion prior thereto, any party may move for severance of a third-party claim or ensuing claim as provided in this rule or for a separate trial thereon.

If the third-party defendant is a proper party to the proceedings under any other rule relating to parties, the action shall continue as in other cases where he is made a party. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty [30] days after it is served.


Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within twenty [20] days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues.

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within one hundred and twenty days of commencement of the action, the party to be brought in by amendment:. The requirement of subsections 1 and 2 hereof with respect to a governmental organization to be brought into the action as defendant is satisfied:.

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.

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If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. In any action except criminal cases, the court may in its discretion and shall upon the motion of any party, direct the attorneys for the parties to appear before it for a conference to consider:. Unless otherwise ordered by the court the pre-trial conference shall not be called until after reasonable opportunity for the completion of discovery. At least one [1] attorney planning to take part in the trial shall appear for each of the parties and participate in the pre-trial conference.

Unless otherwise ordered by the court, at least ten [10] days prior to the pre-trial conference, attorneys for each of the parties shall meet and confer for the following purposes:. Each attorney shall mark for identification and provide opposing counsel an opportunity to inspect and copy all exhibits which he expects to introduce at the trial. Exhibits of the character which prohibit or make impracticable their production at conference shall be identified and notice given of their intended use. Necessary arrangements must be made to afford opposing counsel an opportunity to examine such exhibits.

Written stipulations shall be prepared with reference to all exhibits exchanged or identified. The stipulations shall contain all agreements of the parties with reference to the exchanged and identified exhibits, and shall include, but not be limited to, the agreement of the parties with reference to the authenticity of the exhibits, their admissibility in evidence, their use in opening statements, and the provisions made for the inspection of identified exhibits. The original of the exhibit stipulations shall be presented to the court at the pre-trial conference.

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  5. The attorneys shall stipulate in writing with reference to all facts and issues not in genuine dispute. The original of the stipulations shall be presented to the court at the time of the pre-trial conference. Attorneys for each of the parties shall furnish opposing counsel with the written list of the names and addresses of all witnesses then known.

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