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IN THE COUNTY COURT AT LAW NUMBER TWO
EL PASO COUNTY, TEXAS
DONALD L. THOMPSON
Plaintiff, Pro-Sevs. Cause No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON
DefendantsAMENDED MOTION TO SET ASIDE ENTRY OF
PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Plaintiff, Pro-Se, Donald L. Thompson, and moves the court to set aside entry of the Partial Summary Judgment entered on May 1, 1996, and as grounds therefore would show to the Court as follows:
I. ALL NECESSARY PARTIES BEFORE THE COURT
Plaintiff would show that appropriate parties to this action are Plaintiff Donald L. Thompson, Defendant Allstate Insurance Company, and Defendant Robert Wilson whose presence will be necessary for proper disposition of this dispute. Plaintiff would show that "reprehensible" and "despicable" acts by Defendant Robert Wilson led to the filing of this suit by Plaintiff.
II. DUE PROCESS
Plaintiff would show that he has not been allowed Due Process according to the 14th Amendment of the Constitution of the United States. That pursuant to Rule 21 of Texas Rules of Civil Procedure, Plaintiff was not properly cited and has not been afforded the opportunity to be heard. That pursuant to Rule 21(a) any party may offer proof that the notice or instrument was not received, or, if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the court may extend the time for taking the action required of such party or grant such other relief as it deems just. Plaintiff contends that he has been denied due process by not being afforded the opportunity to be heard.
III. PROPER NOTICE
Plaintiff was not aware that this action had taken place (without his presence) until June 20, 1996, at which time Plaintiff requested a copy of the order for partial summary judgment. At that time this court ordered defendants attorney to send a copy of same to Plaintiff. Plaintiff received this court ordered document on 2-13-98 which would then be considered, proper notice. Now, before the expiration of 21 days after proper notification of partial summary judgment Plaintiff filed this action to show objection to same and asks this court to grant his motion to set aside partial summary judgment.
IV. STATEMENT
In the interest of justice, judicial notice should be taken by the court, of its right to waive rules if demmed necessary in this action. Since this action has not been severed by the court, Plaintiff comes before this court and asks the court to set aside it's order of Partial Summary Judgment dated May 1, 1996. As this court knows, Pro se complaints, according to the Supreme Court, are held "to less stringent standards than formal pleading by lawyers," and regardless of who represents the plaintiff, a motion to dismiss, or summary judgment is not to be granted unless it appears beyond doubt that the plaintiff can prove no set of acts which would entitle him to relief. Haines v. Kerner, 1972, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S.Ct 594, 496, Reh. Den., 405 U.S. 948, 30 L.Ed. 2d 918, 92 S.Ct. 963. The Court's granting of the defendant's motion for partial summary judgment before adequate discovery could be had was inappropriate. Plaintiff was not afforded time after service to file a response and any opposing affidavits. The plaintiff is entitled to present the best arguments it can in opposition to the defendant's motion for partial summary judgment. Therefore, a plaintiff must have access to information that could support his allegations, which would come from adequate discovery. Texas Rules of Civil Procedure, Rule 166(g) states When Affidavits Are Unavailable, the Court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. In ruling on a motion to dismiss or for summary judgment based on the timeliness of an action a court must construe the pleadings, affidavits, and record in the light most favorable to plaintiff. OFCCP v. CSX Transportation, Inc., 88-OFC-24. Because the plaintiff should also have the opportunity to make specific arguments in support of its opposition to a defendant's summary judgment motion, Plaintiff had a right to discovery before responding to defendant's motion for summary judgment. To determine whether there is a genuine issue of material fact and whether the defendants are entitled to a judgment as a matter of law, the court should rely on the pleadings, depositions, answers to interrogatories, and admissions (in other words adequate discovery). None of which has been afforded Plaintiff to this point, as evidenced by the fact that Plaintiff has also had to file a Motion to Compel such discovery. The defense affidavit filed with defendants motion for partial summary judgment states no facts within their personal knowledge to which they would be competent to testify to establish when Plaintiff's cause of action accrued; rather the affidavit merely states the conclusion that the cause of action accrued on April 8, 1992 instead of November 1994, which was the date of final demand and denial of claim, as contended by the Plaintiff. The same defense affidavit clearly shows that Robert Wilson states that he was responsible for handling and investigating Plaintiff's claim. Plaintiff contends that by reason of Robert Wilson's position in the corporation that Robert Wilson held a position of responsibility and authority such that he could have implemented measures that would have prevented unlawful acts such as the ones that are the subject of this action. As such, the defendant, Robert Wilson owed the same duties to Plaintiff as Corporation he represents, and owed Plaintiff the duty to conduct all duties and activities in good faith and in a competent manner and should remain a part of this action.
WHEREFORE, PREMISES CONSIDERED, and in the interest of justice, plaintiff prays for the Entry of Partial Summary Judgment to be set aside.
Respectfully submitted,
______________________________
Donald L. Thompson, PRO-SE
534 E. Mountain
Seguin, Texas 78155
(830) 372-0365
CERTIFICATE OF SERVICE
I hereby certify that I have served, pursuant to Rule 21a, a true and correct copy of the above and foregoing to Allstate Insurance Company and Robert Wilson, Defendants, at The Law Offices of Victor F. Poulos, P.C., 1520 Campbell Street, El Paso, Texas 79902; on this ________ day of April, 1998.
_________________________________
Donald L. Thompson, Plaintiff, PRO-SE
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