Section 106.718  Motions, Responses

a)         All motions before a hearing must be presented to the hearing officer at least 10 days before the date of the hearing.

b)         The complainant's motion to voluntarily dismiss an action as to any or all claims must be directed to the Board and may be made orally upon the hearing record, or may be made in writing at any time before the Board issues its decision.

c)         All motions must be served on all parties, including the Agency and its representative and the hearing officer, with proof of service.

d)         Unless made orally on the record during a hearing or unless the hearing officer directs otherwise, a motion must be in writing, must state the reasons for and grounds upon which the motion is made, and may be accompanied by any affidavits or other evidence relied on and, when appropriate, by a proposed order.

e)         Within 7 days after a written motion is served, or another period that the Board or hearing officer may prescribe, a party may file a response to the motion, accompanied by affidavits or other evidence.  If no response is filed, the parties will be deemed to have waived objection to the motion, but the waiver of objection does not bind the Board.  The moving party does not have the right to reply, except as the hearing officer or the Board permits.

f)          No oral argument will be heard on a motion before the Board unless the Board directs otherwise.  A written brief may be filed with a motion or an answer to a motion.

g)         The hearing officer may rule upon all motions, except that the hearing officer has no authority to dismiss, or rule upon a motion to dismiss or decide a proceeding on the merits, or for failure to state a claim, or for want of jurisdiction, or to strike any claim or defense for insufficiency or want of proof.

h)         No interlocutory appeal of a motion may be taken to the Board from a ruling of the hearing officer.

i)          After the hearing, the Board may review the hearing officer's rulings. The Board will set aside the hearing officer's ruling only to avoid material prejudice to the rights of a party.  The hearing officer, if a member of the Board, may vote upon motions to review his or her rulings as hearing officer.

j)          Unless the Board orders or this Subpart provides otherwise, the filing of a motion will not stay the proceeding or extend the time to perform any act.