Duane B. and Linda L. Erwin, et al. - Page 8

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            an order calendaring respondent's motion for hearing and also                                  
            directing petitioners to file a proper amended petition in                                     
            accordance with the requirements of Rule 34.  In particular, the                               
            Court directed petitioners to file a proper amended petition                                   
            setting forth with specificity each error allegedly made by                                    
            respondent in the determination of the deficiency and separate                                 
            statements of every fact upon which the assignments of error are                               
            based.  Petitioners did not file an amended petition and did not                               
            otherwise respond to the Court's Order.                                                        
            Respondent's motion to dismiss was called for hearing in                                       
            Washington, D.C., on August 2, 1995, and again on August 16,                                   
            1995.  Counsel for respondent appeared at both hearings and                                    
            presented argument and evidence in support of the pending motion.                              
            Petitioners did not appear at either hearing, nor did they file                                
            any written statement of their position under Rule 50(c).4                                     
            Discussion                                                                                     
                  Rule 40 provides that a party may file a motion to dismiss                               
            for failure to state a claim upon which relief can be granted.                                 
            We may grant such a motion when it appears beyond doubt that the                               
            party's adversary can prove no set of facts in support of a claim                              
            that would entitle him or her to relief.  Conley v. Gibson, 355                                



            4 Petitioners were reminded of the applicability of Rule                                       
            50(c) in the Court's Order dated June 30, 1995, calendaring                                    
            respondent's motion for hearing.                                                               




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