28.02.01.12

.12 Motions.

A. Unless otherwise provided by this chapter, this regulation pertains to all motions filed with the Office.

B. In General.

(1) An application to the Office for an order shall be by motion that, unless made during a hearing, shall be made in writing, and shall set forth the relief or order sought.

(2) A written motion and response to a motion shall state their respective grounds and a party shall attach any relevant documents as exhibits.

(3) An answer to a written motion shall be filed on the earlier of:

(a) 15 days after the date the motion was filed; or

(b) The date of the hearing.

(4) Upon notice to all parties, the ALJ may schedule a prehearing conference or hearing to consider a written motion.

(5) The ALJ may issue a written decision on a motion or state the decision on the record.

(6) If a ruling on a motion is not stated on the record, the ruling shall be included in the ALJ’s proposed or final decision.

(7) The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter.

C. Motion to Dismiss. Upon motion, the ALJ may issue a proposed or final decision dismissing an initial pleading that fails to state a claim for which relief may be granted.

D. Motion for Summary Decision.

(1) A party may file a motion for summary decision on all or part of an action on the ground that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law.

(2) A motion for summary decision shall be supported by one or more of the following:

(a) An affidavit;

(b) Testimony given under oath;

(c) A self-authenticating document; or

(d) A document authenticated by affidavit.

(3) A response to a motion for summary decision:

(a) Shall identify the material facts that are disputed; and

(b) May be supported by an affidavit.

(4) An affidavit supporting or opposing a motion for summary decision shall:

(a) Conform to Regulation .02 of this chapter;

(b) Set forth facts that would be admissible in evidence; and

(c) Show affirmatively that the affiant is competent to testify to the matters stated.

(5) The ALJ may issue a proposed or final decision in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

E. Motion for Judgment.

(1) A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party. The moving party shall state all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of any opposing party's case.

(2) When a party moves for judgment at the close of the evidence offered by an opposing party, the ALJ may:

(a) Proceed to determine the facts and to render judgment against an opposing party; or

(b) Decline to render judgment until the close of all evidence.

(3) A party who moves for judgment at the close of the evidence offered by an opposing party may offer evidence if the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.