Current through Register 1531, September 27, 2024
(1)
Motions in General. Motions shall be made in writing, state with particularity the grounds therefor, set forth the relief sought, and include a proposed order. Motions shall contain a statement of the reasons, including supporting authorities, why the motion should be granted and may include a request for a hearing. Motions shall contain affidavits and other documents setting forth or evidencing facts on which a motion is based.
(2)
Format and Length for Motions, Oppositions, Replies and Memoranda. All motions, oppositions, replies, memoranda and other documents, except for exhibits, shall be filed on 8 1/2" by 11" paper, when not filed electronically, and be typed in no less than 12-point type and double spaced, provided that the case caption, footnotes and quotations may be single spaced. The title of each document shall appear on the first page thereof. Unless leave of the Commission is provided in advance, all motions, oppositions, and memoranda shall not exceed 20 pages, and any reply or sur-reply shall not exceed ten pages.
(3)
Motions at Public Hearing. Motions made during the public hearing may be stated orally on the record. The Hearing Commissioner may require oral or written supplementation if deemed necessary.
(4)
Parties Required to Confer Prior to Filing. When the parties are represented by counsel or counsel for the Commission is prosecuting the matter, prior to any motions being filed, the parties are required to confer in good faith to attempt to reach resolution of the issues raised and relief being sought. The moving party shall be responsible for arranging said conference. Conferences may be conducted by telephone or other electronic means. All motions filed shall contain a certificate affirming compliance with the requirement to confer. Motions unaccompanied by such a certificate may be denied without prejudice to renew when accompanied by the required certificate.
(5)
Procedure for Serving and Filing Motions, Oppositions and Replies.
(a)
Original Motion. Where both parties are represented by counsel, the moving party shall first serve a copy of the motion and the other supporting documents on every other party or counsel, including counsel for the Commission who has entered an appearance.
(b)
Opposition to Motions. A party opposing a motion may serve the moving party with a memorandum in opposition within 14 days of service of the motion. The memorandum in opposition shall include a statement, with any supporting authorities, why the motion should not be allowed. Affidavits and other documents setting forth or evidencing facts on which the opposition is based shall be served with the opposition. Opposing parties shall serve on the moving party an original and a copy of the opposition, and serve a copy on every other party.
(c)
Reply and Sur-reply. Following receipt of the memorandum in opposition, the moving party may serve a reply within seven days of service, following which any opposing party may serve a sur-reply within seven days of service. Reply and sur-reply memoranda shall be limited to addressing matters raised in the opposition or the reply that were not, and could not have been, addressed previously.
(d)
Filing of Motion Packet.
1. Upon receipt of the opposition or a sur-reply, if one is made, the moving party shall attach the original opposition and any reply and sur-reply to the original motion and shall file with the Commission the combined documents and a document listing the title of each paper in the motion packet within ten days of service of the opposition or, if a reply was served, within ten days of service deadline for sur-reply, unless the moving party has notified all parties that the motion has been withdrawn within ten days of service of the opposition or sur-reply.
2. If the moving party does not receive an opposition within three business days after expiration of the time permitted for service of an opposition, the moving party shall file the motion with the Commission and include an affidavit reciting compliance with 804 CMR 1.13(5)(a) and no receipt of a timely opposition.
3. The moving party shall give prompt notice of the filing of the motion to all other parties by serving a notice of filing which should include a listing of the title of each paper filed and the date the motion packet is filed with the Commission. Motions, oppositions and replies shall include the attorney's name, address, telephone number and an email address.
(e)
Service. Motions, oppositions and replies may be served electronically, by U.S. mail or via personal service. If a motion, opposition, reply or sur-reply is served by mail, any time period identified in 804 CMR 1.13(5) shall be increased by three days.
(6)
Sanction for Noncompliance. The Commission need not act on any motion that fails to comply with the requirements of 804 CMR 1.13.
(7)
Motion Conferences. In the event the Commission determines that a conference is necessary or shall aid in the disposition of a motion, the Commission may order the parties to appear to answer questions and present oral argument in support of their respective positions.
(8)
Certificates of Service. The final page of every document served in accordance with 803 CMR 1.13 shall contain a certificate of service noting the date of service and the manner in which service was made on every party. The statement may be in the following form:
I hereby certify that a true copy of the above document was served upon (each party appearing pro se and) the attorney of record for each (other) party (and counsel for the Commission) (by hand) (by email) (by mail) on (date). (Signature.)
(9)
Special Requirements/Exceptions from Filing Requirements.
(a)
Pro Se
Parties. When one or more parties are unrepresented, all parties are exempt from 804 CMR 1.13(5)(a) through (d) and the requirement to confer in advance of filing a motion as provided in 804 CMR 1.13(4).
Pro se parties are encouraged to respond in writing to any motion they oppose, and shall:
1. Serve all motions, oppositions, replies and sur-replies on opposing parties;
2. File oppositions within 14 days of service of the original motion;
3. Limit replies and sur-replies to matters raised in the opposition; and
4. File replies within seven days of service of the opposition and sur-replies within seven days of service of the reply.
(b)
Predetermination Motions. Motions seeking an order from the Investigating Commissioner prior to the issuance of an investigative disposition shall be filed with the Investigator assigned to the matter.
1. Motions to amend a complaint pursuant to 804 CMR 1.04(9)(b) and motions for extensions of time pursuant to 804 CMR 1.17(2)(a) filed prior to an investigative disposition need not comply with 804 CMR 1.13(4) or (5)(a) through (d), except such motions shall be served upon any opposing party.
2. Motions for protective orders pursuant to 804 CMR 1.05(12) seeking to prevent disclosure to a party of information submitted during the investigation need not comply with 804 CMR 1.13(4) or (5)(a) through (d), except such motions shall be served upon any opposing party.
3. Generally, investigation of a complaint shall not be stayed pending the ruling on a motion. However, where the Commission's jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
(c)
Post-determination, Pre-certification Motions. Motions to the Investigating Commissioner filed after an investigative disposition has issued, but prior to the certification to public hearing, shall be filed with the Clerk's Office.
(d)
Post-certification Motions. Motions seeking an order from the Hearing Commissioner following certification to public hearing shall be filed with the Clerk's Office in Boston.
(10)
Appeal of Order Granting or Denying a Motion.
(a)
Appeal to Full Commission. The Full Commission may entertain an interlocutory appeal of a ruling by the Hearing Commissioner if such appeal is related to the jurisdiction of the Commission or its authority to proceed on a matter. Prior to the issuance of a hearing decision, an appeal to the Full Commission is not available for any other rulings by the Hearing Commissioner or for any rulings made by the Investigating Commissioner, except as provided in 804 CMR 1.15(4)(g). Requests for relief addressed to the Full Commission shall be filed with the Clerk's Office in Boston. An order of the Full Commission issued in accordance with 804 CMR 1.13(10) is not a final order of the Commission and is not subject to judicial review pursuant to M.G.L. c. 151B, § 6 or M.G.L. c. 30A.
(b)
Motion for Reconsideration of an Order by a Hearing Commissioner. In the absence of new evidence proffered, motions for reconsideration of an order by a Hearing Commissioner shall be denied.
(11)
Emergency Motions.
(a) Motions for emergency relief shall contain a cover page bearing the heading "Emergency Motion" in large, bold type. Such motions shall be filed with the Investigating Commissioner prior to issuance of an investigative disposition, and with the Clerk's Office in Boston thereafter.
(b) Motions for emergency relief shall set forth the facts showing the existence and nature of immediate and irreparable harm.
(c) The moving party shall serve a copy of the motion seeking emergency relief on all other parties, counsel and counsel for the Commission, simultaneous with the filing at the Commission. Such motions are exempt from 804 CMR 1.13(5).
(d) Emergency motions are exempt from 804 CMR 1.13(4), although the Commission encourages all counsel of record to confer in good faith prior to filing any such motion in order to narrow or obtain agreement upon the relief sought.
