Motions

(1) General (a) Presentation of and Opposition to Motions. Any Party may request of the Presiding Officer any order or action not inconsistent with law or 360 CMR 1.00. Such a request shall be called a motion. The provisions of 360 CMR 1.21(2) through (10) shall not be construed to limit a Party's right to make a motion, not listed in 360 CMR 1.21(2) through (10), not inconsistent with law or 360 CMR 1.00. Motions may be made in writing at any time after the commencement of an Adjudicatory Proceeding or may be made orally during a hearing. Each motion shall set forth the grounds for the desired order or action and state whether a hearing is desired. A Party filing a motion shall serve together with the motion a statement of reasons, including supporting authorities, why the motion should be granted and shall include any other information required by 360 CMR 1.00. Affidavits and other documents setting forth or evidencing facts on which the motion is based shall be filed and served with the motion. Any time within ten days after a written motion is filed, any Party may file a written opposition to the motion and shall request a hearing if one is desired. With the opposition, the Party may file and serve a statement of reasons, together with 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 filed and served with the opposition. (b) Hearings and Rulings on Motions. The Presiding Officer may, in his discretion, act upon any motion, with or without a hearing; except that where a Party requests a hearing on a motion to dismiss or for summary decision, the Presiding Officer shall not act on the motion without a hearing unless it appears from the Papers filed with the Authority that failure to rule on the motion before a hearing is held will cause irreparable harm to the moving Party, or the public health, safety, welfare or the environment. The decision to hold a hearing on any other motion shall be within the discretion of the Presiding Officer. The Presiding Officer shall make the decision and based upon whether a hearing would be necessary or helpful to a disposition of the motion, or is required by law. If the Presiding Officer acts on a motion without a hearing, he shall consider all timely filed Papers regarding the motion. If a motion is made orally at a hearing, the Presiding Officer may act on the motion during the hearing. If the Presiding Officer holds a subsequent hearing on a motion made orally at a hearing, notice of the time and place of the hearing shall be given to the Parties at least three days in advance. The Presiding Officer may grant requests for continuances for good cause shown, or in the event of an unexcused absence of a Party, may permit the hearing to proceed and the unexcused Party's motion or opposition will be considered on the basis of the Papers timely filed by the Party. If the Presiding Officer grants a motion that results in a termination of the proceeding, he shall issue a written decision pursuant to 360 CMR 1.26(c). (c) Factual Basis. At a motion hearing, a Party may offer only evidence relevant to the motion. The evidence may consist of facts presented orally by sworn testimony, by affidavit, or through records, files, depositions, answers to interrogatories, or requests for admission of fact. (2) Motion for a More Definite Statement. If a pleading to which a responsive pleading is required is so vague or ambiguous that a Party cannot reasonably be required to frame a response, the responding Party may, within the time permitted for the responsive pleading, move for a more definite statement before filing his responsive pleading. The motion shall set forth the defects complained of and the details desired. If the motion is granted, the more definite statement shall be filed within ten days after the Presiding Officer rules on the motion, or within such other time set by the Presiding Officer. If the more definite statement is not filed within the prescribed deadline, the Presiding Officer may dismiss the Adjudicatory Proceeding, strike the pleading to which the motion was directed, or make any other order he deems just. (3) Motion to Strike. Any Party, or the Presiding Officer on his own initiative, may move to strike from any pleading any insufficient allegation or defense, or any redundant, immaterial, impertinent, or scandalous matter. (4) Motion for Directed Verdict. Any Party may move for a directed verdict at the close of an opponent's evidence and may offer evidence in the event that the motion is not granted, without having reserved the right to do so to the same extent as if the motion had not been made. A Party may also move for a directed verdict at the close of all the evidence. A motion for a directed verdict shall state the grounds it is based upon. The Presiding Officer may act upon the motion when it is presented, or may wait until the close of all the evidence. (5) Motion to Dismiss for Failure to Prosecute or Comply with Orders. Any Party may move to dismiss for failure of another Party to prosecute or to comply with 360 CMR 1.00, or with any order of the Presiding Officer. When the record shows that the Party has failed to file Papers required by 360 CMR 1.00, or file a responsive pleading, or respond to notices or comply with any order, or if the record otherwise indicates an intention not to prosecute a claim or action, the Presiding Officer may issue an order requiring the Party to show cause why his claim or action should not be dismissed for failure to prosecute. If the Party fails to show cause, the claim or action may be dismissed with prejudice. (6) Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted. In place of filing an Answer, or otherwise, a Party may move that the Claim for Adjudicatory Proceeding or Order to Show Cause be dismissed for failure to state a claim upon which relief can be granted. In deciding whether to grant or deny a motion to dismiss, the Presiding Officer shall assume to be true all facts alleged in the Claim or Order, but not conclusions of law alleged therein. If, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the Presiding Officer, the motion shall be treated as one for summary decision and disposed of as provided in 360 CMR 1.21(8), and all Parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 360 CMR 1.21(8). The Presiding Officer may treat a motion to dismiss for failure to state a claim upon which relief can be granted as a motion for more definite statement. If the Presiding Officer determines that a motion for more definite statement would be allowed and that the Claim or Order states a claim upon which relief can be granted, the motion to dismiss shall be denied, and the Presiding Officer shall order a more definite statement to be filed. If the Party ordered to file a more definite statement fails to do so within the time prescribed by the Presiding Officer, the Adjudicatory Proceeding shall be dismissed with prejudice. If a more definite statement is filed, the Presiding Officer shall read it, together with the Claim or Order, and shall order the Proceeding to go forward if the Claim or Order read together with the more definite statement can be answered and states a claim upon which relief can be granted. Otherwise, the Adjudicatory Proceeding shall be dismissed with prejudice. If the Presiding Officer determines that a motion for more definite statement would not be allowed and that the Claim or Order fails to state a claim upon which relief can be granted, the motion to dismiss shall be granted and the Adjudicatory Proceeding shall be dismissed with prejudice. (7) Motion for Decision on the Pleadings. After the pleadings are closed and within such time as not to delay the Adjudicatory Proceeding, any Party may move for a decision on the pleadings. If matters outside the pleadings are presented and not excluded by the Presiding Officer, the motion shall be treated as one for summary decision and all Parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 360 CMR 1.21(8). (8) Motion for Summary Decision. Any Party may move with or without supporting affidavits for a summary decision in the moving Party's favor upon all or any of the issues that are the subject of the Adjudicatory Proceeding. (a) Contents of Motion. A motion for summary decision shall identify with particularity the issues on which summary decision is sought, and shall state whether a hearing is requested or the Party will allow the motion to be decided on the Papers filed in support and opposition. The motion shall be accompanied by a memorandum containing: 1. a statement of the issue or issues presented; 2. an argument in summary form; and 3. a short conclusion stating precisely the relief sought. (b) Affidavits. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all Papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Presiding Officer may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, requests for admission of fact, or further affidavits. When a motion for summary decision is made and supported as provided in this rule, a Party opposing the motion may not rest upon the mere allegations or denials of the Party's pleading, but must respond, by affidavits or as otherwise provided herein, setting forth specific facts showing that there is a genuine issue for hearing on the merits. If the Party does not so respond, summary decision, if appropriate, shall be entered against him. Should it appear from the affidavits of a Party opposing the motion that he or she cannot for reasons stated present by affidavit facts essential to justify his opposition to the motion, the Presiding Officer may deny the motion for summary decision or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. Should it appear to the satisfaction of the Presiding Officer at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the Presiding Officer shall order the Party filing the affidavits to pay the other Party the amount of the reasonable expenses which the filing of the affidavits caused him or her to incur, including reasonable attorney's fees. (c) Decision on the Motion. The Presiding Officer shall enter summary decision for the moving party if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving Party is entitled to a decision in its favor as a matter of law. A summary decision, interlocutory in character, may be rendered on any issue although there is a genuine controversy as to other issues. When appropriate, summary decision may be rendered against the moving Party. A ruling on a motion for summary decision shall contain a statement of the reasons for the decision, including a determination of every issue of fact or law necessary to the ruling. If on motion for summary decision a decision is not rendered upon the whole case or for all the relief asked and a hearing on the merits is necessary, the Presiding Officer, by examining the pleadings and evidence, and by interrogating counsel if there is a hearing on the motion, if practicable, shall ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. The Presiding Officer shall thereupon make an order specifying the facts that appear without substantial controversy including the extent to which the amount of damages, costs, or penalties, or other relief is not in controversy, and directing further proceedings as are just. At the hearing on the merits, the facts so specified shall be deemed established and said hearing shall be conducted accordingly. (9) Motion for Substitution of Parties. The Presiding Officer may, on motion, at any time in the course of an Adjudicatory Proceeding, permit such substitution of Parties as justice or convenience may require. (10) Motion for Consolidation of Proceedings. Where there is more than one pending Adjudicatory Proceeding and these Proceedings involve common questions of law or fact any Party may move for consolidation of the Proceedings, and in making said motion shall identify with particularity the common questions of law or fact and the Presiding Officer may in his or her discretion consolidate the Proceedings. (11) Motion to Amend or Supplement Pleadings. A party may move to amend or supplement a Claim for an Adjudicatory Proceeding, an Answer or any other pleading, such motion to amend shall be heard by the Presiding Officer, and amendments shall be granted when justice so requires.