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Due Process Does Not Require Multiple Bites at the Apple: A Court Has No Duty to Give Notice of Its Analysis of Pending Motions or Opportunity For Further Argument Prior to Its Ruling

In Bandler v. Cohen Rosenthal & Kramer, LLC, 2005 VT 115 (September 11, 2015), the Vermont Supreme Court upheld a trial court’s decision that there was no violation of due process in the issuance of a decision without prior notice and opportunity for further argument by the parties.

Issue: Plaintiffs Michael Bandler and MB&Co, Ltd (“Corporation”) brought an interlocutory appeal from the trial court’s decision that Plaintiff Bandler, a non-attorney, may not represent Corporation on the grounds that the trial court’s decision violated his due-process rights. In response to Defendant’s motion to dismiss, Plaintiff Bandler opposed the motion to dismiss and cross-moved to appear on behalf of Corporation, but did not request an evidentiary hearing or oral argument. The trial court issued a ruling finding that allowing Plaintiff Bandler to represent Corporation would be unduly burdensome to the court and to the Defendant, denying the motion to dismiss and giving Corporation thirty days to obtain counsel. Plaintiff Bandler claimed due process required the trial court notify the Plaintiffs of its analysis (or proposed analysis) relating to the pending motions before issuing its decision so Plaintiffs would have an opportunity to address the trial court’s concerns through amended pleadings and further argument.

Holding: The Court affirmed the trial court’s decision, concluding that the trial court acted within its discretion in deciding the pending motions without a hearing or argument and without soliciting further writings from the Plaintiffs. Due process does not require a trial court to give parties advance notice of its analysis of pending motions, or to give parties any opportunity to make contrary arguments before issuing its ruling.

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