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As indicated, respondent filed a Motion To Dismiss For
Failure To State A Claim Upon Which Relief Can Be Granted, and
the Amendment thereo. On October 6, 1995, the day after
respondent filed her motion to dismiss, the Court issued an order
calendaring respondent's motion for hearing and also directing
petitioner to file a proper amended petition in accordance with
the requirements of Rule 34. In particular, the Court directed
petitioner 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. Petitioner
failed to respond to the Court's order.
Respondent's motion to dismiss was called for hearing in
Washington, D.C., on November 8, 1995. Counsel for respondent
appeared at the hearing and presented argument on the pending
motion. Petitioner did not appear at the hearing nor did she
file a Rule 50(c) statement with the Court.3
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
which would entitle him or her to relief. Conley v. Gibson, 355
3 Petitioner was reminded of the applicability of Rule
50(c) in the Court's Order dated Oct. 6, 1995.
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