Motion To Strike Out

 

REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT TAGUIG CITY Branch ___

 ________________________  ______________ __________

 Plaintiff,

-versus-

Civil Case No. ____ For: Refund or Tax Credit of

 ________________________  ______________ __________  Defendants. x------------------------------------------x

OPPOSITION WITH MOTION TO STRIKE OUT Plaintiff  _____________  ______________________  _________   (“Plaintiff”) (“Plaintiff”),, by and through the undersigned counsel, unto this Honorable Court, most respectfully avers that: 1.  On 1 October 2019, Plaintiff _____ was in receipt of a copy of Defendants’ Manifestation with Motion to Admit Amended Pre-trial Pre-trial Brief dated 19 September 2019 (“subject (“subject motion”). motion”).   2.  However, the subject motion bears no notice specifying the time and date of the hearing thereof. The subject motion is therefore defective as it violates Sections 4 and 5, Rule 15 of the Rules of the Court (“Rules”) which expressly states that: “Section 4. Hearing of motion. –  “Section motion. –  Except  Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant . Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing , unless the court for good cause sets the hearing on shorter notice.”

Section 5. Notice of hearing. hearing. –   –  T he noti notice ce of hea hear i ng shall shall

be ad addr dre ess sse edthe to allhearing par partitie e swhich concerned concermust ned,, and shall shall sspe peci ciffy the time me not be later than ten ti (10) and date of

 

days after the filing of the motion. (Italics and underscoring supplied) 3.  The Supreme Court, in a number of cases, has repeatedly held that the requirements of Sections 4 and 5 of Rule 15 are mandatory and that failure to comply therewith is fatal to the movant’s cause. cause. In fact, in “ Manila  Electric Company vs. La Campana Food Products, Inc. Inc.,” ,” 247 SCRA 77, [1995], the Supreme Court had the occasion to rule that: “The attention of Meralco is drawn to the fact that it indeed failed to indicate in its motion for extension of time to file an answer a notice of place and date of hearing, an omission for which it could offer no explanation. As we declared in the case of Gozon, et al. v. Court of Appeals: Appeals: ‘It is well-entrenched well-entrenched in this jurisdiction that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon.’” (Emphasis supplied)  supplied)  4.  In the instant case, a perusal a  perusal of Defendants’ Manifestation with Motion to Admit Amended Pre-trial Brief would show that they failed to set the same for hearing and neither did it contain a notice of hearing setting the specific date and time thereof. 5.  Considering the foregoing, it is axiomatic that the subject motion is a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon. 6.  The filing of such motion was obviously calculated to blindside Plaintiff and deprive it of the chance to adequately and timely oppose it. 7.  This is precisely what the hearing and notice rule is supposed to  prevent and avoid. The Supreme Court established established the rationale for the three (3) day notice rule under Rule 15 in “ Jehan Shipping Corporation Corporation vs. NFA NFA,,”1  to wit: “As an integral component of procedural due process, the three-day notice required by the Rules is not intended for the  benefit of the movant. Rather, the requirement is for the  purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by the court. Principles of natural justice demand that the right of a party 1 G.R.

No. 159750, December 14, 2005. 2

 

should not be affected without giving it an opportunity to be heard. (Underscoring supplied) 8.  Having failed to comply with Sections 4 and 5, Rule 15 of the Rules, Defendants’ Manifestation with Motion is Motion is a mere scrap of paper. 9. 

With all due respect, Plaintiff submits that such unwarranted and

callous disregard of the Rules should not be allowed. The point here is that  parties must be given time to study the motion in order to enable them to  prepare properly and engage the arguments of the movant consistent with  protecting their their right to pr procedural ocedural due pr process. ocess. 10.  Accordingly, as the subject Motion was filed in clear violation of the afore-cited rules, it deserves no consideration from this Honorable Court and should be denied outright as held in “ Meris vs. Ofilada:” Ofilada:”2  “…the court will not act on the motion if there is no proper notice and/or proof of service of the notice  on the adverse  party. I t is i s not nothi hing ng but a use usele less ss pie piece of pap paper fi le led d wi wi th the

court. cour t. I t is is not a moti tion. on. I t pr pr ese sents nts no questi uestion on whi which ch the cour courtt could de deci cide de.. T he co cour urtt has no re reason ason to co consi nsi der i t and and the clerr k has no rrii g ht to r ecei cle cei ve i t w wii thout thout that that com compliance li ance wi th the rules. Harsh as they may seem, these rules were introduced to avoid a capricious change of mind in order to provide due process to both parties and ensure impartiality in the trial. trial.”” (Italics and underscoring supplied for emphasis) 11.  Therefore, as the subject motion is nothing but a useless piece of  paper filed filed with tthe he court, P Plaintiff laintiff prays that Defendants’ Manifestation with  with  Motion to Admit Amended Pre-trial Brief should be denied and stricken off the record of the instant case. PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court that Plaintiffs’ Opposition with Motion to Strike be Strike be granted and Defendants’ Manifestation Defendants’ Manifestation with Motion to Admit Admit Amended Amended Pre-trial Pre-trial Brief  Brief   dated 19 September 2019 be denied and stricken off the record of the instant case for being procedurally defective. Other reliefs just and equitable under the circumstances are likewise  prayer for. Respectfully submitted.  ______ City for Taguig C City. ity. 11 October 2019 2 A.M.

No. RTJ-97-1390, August A ugust 5, 1998 citing Manakil v. Revilla, 42 Phil 81. 81 . 3

 

 _______________________  _______________________ Counsel for Plaintiff  

4

 

NOTICE OF HEARING

THE CLERK OF COURT  ________________  ____________ ____

Counsel for Defendants  ________________  ____________ ____

G R E E T I N G S! Please submit the foregoing Opposition with Motion to Strike Out  for   for the consideration of this Honorable Court on _______________ or soon thereafter as may be convenient to the calendar of this Honorable Court subject to this Honorable Court’s pleasure and discretion. 

 ________________________  ______________ __________

5

 

COPY FURNISHED: 

Counsel for Defendants  _______________________  ____________ ___________

CERTIFICATION/EXPLANATION ON MODE OF SERVICE

Plaintiff, through undersigned counsel, hereby states and manifests that: 1. The service of the foregoing Opposition with Motion to Strike Out upon Defendants herein was made by registered mail due to time constraints and lack of messengeria messengeriall staff. 2. This Certificatio Certification/Explanation n/Explanation is being made in compliance with Section 11, Rule 13 of the th e 1997 Rules of Civil Procedure.

 ______________________   ______________ ________  

6