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  1. #11
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    Quote Quoting adjusterjack
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    I disagree. You appeal the judge's "decision" which was to ignore your motion and grant the other party's motion.

    I see a couple of issues that might work against you.

    According to LRS C.C.P Art 561A(4)

    "A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal."


    No. Even if your motion had been granted, the plaintiff would have found out about the motion anyway and would have had 30 days to file a motion to set aside the dismissal. If the motion to set aside the dismissal had been denied then they could have appealed the denial.

    https://legis.la.gov/Legis/Law.aspx?d=112183

    According to the Supreme Court of Louisiana:



    Quoted from:

    http://www.lasc.org/opinions/2001/00cc3010.opn.pdf

    (The 5 years mentioned in the case citation has apparently been changed to 3 years by statute.)

    Another thing is that judges disfavor dismissals when a case can be adjudicated on its own merits.

    I'm guessing that your next step might be to file a motion for reconsideration on the grounds that exception 1 has not happened and the judge erred in granting the motion for the substitution of plaintiff.

    That cannot be ex parte so you would have to serve the motion on the plaintiff who would have the opportunity to respond with an explanation of why exception 1 applies.

    It's anybody's guess as to how the judge will rule on that.

    But if he rules against you I hope you are prepared to raise a defense based on not owing the money rather that some technicality that you manage to come up with.

    HE CANNOT appeal. This is NOT a final appealable order. He can appeal this when the case is finished. He should have objected to lack of standing by the plaintiff and because he didn't (he filed on the wrong grounds) he lost that argument because they filed to substitute.

    Did you serve the other side a copy of your motion to dismiss?

  2. #12
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    This is a specific, statutory motion that is filed under Louisiana law. The purpose of the motion is for a party who should already have benefited from dismissal to get an order to that effect. Case law indicates that the order may be entered without hearing and without notice to the other party, because it does not actually involve the court doing anything more than carrying out a ministerial act on a case that should already have been dismissed as a matter of law (I paraphrase, but that's the gist of it).

    Either he is entitled to a dismissal on the basis that no action was taken by the plaintiff within the prescribed period, or he is mistaken in his calculation of the time since the last activity on the case. It's not something that anybody here can analyze without access to the court's docket entries, and perhaps the contents of the case file.

  3. #13
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    Feb 2013
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    Quote Quoting adjusterjack
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    I disagree. You appeal the judge's "decision" which was to ignore your motion and grant the other party's motion.
    That is the kind of thing I am trying to sort out, as in, how does one appeal a decision when there did not seem to even be a decision. At the time I posted this, it seemed that no one even knew where my motion was.
    I see a couple of issues that might work against you.

    According to LRS C.C.P Art 561A(4)

    "A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal."
    Correct. If my motion is granted, the plaintiff will have 30 days in which to file a motion to set aside. And, they get 60 days in which to appeal. But this issue is more, shall I say, academic than many. The idea is this--if 3 years have indeed passed since the most recent action by plaintiff to prosecute his case, then the court SHALL dismiss, as the law is written. The code of judicial conduct in my state makes it clear that whenever the word "shall" appears in statute, the judge MUST take that action if the prerequisite conditions are all there. the court is not given discretion to ignore the dismissal if they wish to. In this instance, dismissal is always without prejudice. There is loads of case law from our appeals courts and state supreme court that uphold this law. Even on appeal, if the 3 years has indeed passed, the dismissal is affirmed. So while they can appeal, the only 2 ways that the outcome should change is if I erred in my calculations of the 3 years, or if there were some circumstance that prevented the plaintiff from moving forward that were outside of the plaintiff's control, such as a natural disaster. This second option does not apply, as the plaintiff's attorney has been in contact with me for more than 18 months and kept changing some of their claims and threats to act.



    No. Even if your motion had been granted, the plaintiff would have found out about the motion anyway and would have had 30 days to file a motion to set aside the dismissal. If the motion to set aside the dismissal had been denied then they could have appealed the denial.
    I know they would have found out about the motion anyway, but that is not the point. My point is, they should never have been allowed to give their input into the matter, because the law specifies that this is an automatic operation, by ex parte motion, and that the court's only requirement to dismiss is whether or not the court record shows that no action had taken place for 3 years. They were called by the law clerk, asked for their thoughts, asked to write a letter detailing their plans for the case--and that letter was sent to the judge. The judge used the information from that phone call and letter to decide to deny my motion and grant theirs. When you see the law and the case law involved in Art. 561 dismissals, it becomes clear that this was very inappropriately done. Throughout the entire state, no other district court that I've sen operates this way. In fact, going through the case law from the appeals courts, it is clear that the opposing party was never permitted to know ahead of time, or to argue against dismissal, the way that this plaintiff was permitted to.



    (The 5 years mentioned in the case citation has apparently been changed to 3 years by statute.)
    Yes, this is correct.

    Another thing is that judges disfavor dismissals when a case can be adjudicated on its own merits.
    yes, I know that this is true as well, but in the specific case of dismissal due to abandonment, that is not permitted here. As long as the 3 years has passed, the only permissible option according to the appeals courts and supreme court is to dismiss.

    I'm guessing that your next step might be to file a motion for reconsideration on the grounds that exception 1 has not happened and the judge erred in granting the motion for the substitution of plaintiff.
    I'm checking into that right now.

    That cannot be ex parte so you would have to serve the motion on the plaintiff who would have the opportunity to respond with an explanation of why exception 1 applies.

    It's anybody's guess as to how the judge will rule on that.

    But if he rules against you I hope you are prepared to raise a defense based on not owing the money rather that some technicality that you manage to come up with.
    Thank you, I do have several defenses. Plaintiff admitted in writing to selling the debt to an unrelated third party--in fact, they sold the same debt twice to two different parties, not sure how they expect that to stand, but it is what it is at this point. Second, I have proof of payment of the debt, payments that they admitted to receiving and cashing but somehow were never applied to the balance.

    Last I left off today with the judge's law clerk (she called today), she first said that they were going to deny my motion. Her reasoning was that the motion was not timely, that the plaintiff had said that it had been involved in discovery with me, so they decided not to dismiss. The problem is, the plaintiff tried to send me discovery requests 3 months after their 3 year limit expired. According to my state law, if I respond to their discovery, I waive abandonment because I chose to move the case forward. In short, the plaintiff's attorney lied to the law clerk, claiming that discovery had been ongoing for longer than it really had been. Discovery requests were set to me via certified mail, so I can prove when they were sent and received. And here is the issue that the judge's office was claiming I had wrong:

    https://scholar.google.com/scholar_c...19&as_ylo=2012

    "The last step in the prosecution or defense of this action occurred on July 20, 2006, when defendant filed an answer to plaintiff's supplemental and amending petition.[1] Although plaintiff attempted to serve interrogatories on defendant on October 15, 2009, the abandonment period already had run.[2] Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit"

    Judge's office claimed that the plaintiff can simply file a new motion for whatever and it would restart the clock, even if the clock had run out already. The case I quoted is from LA Supreme Court, and shows that the opposite is true. In fact, Murray v. Brown is precisely the same thing that happened in my case here--they served discovery requests 3 years and 3 months after the most recent activity on their complaint had occurred.

    When I mentioned this case specifically to the law clerk as the basis for my contention--it is also cited with my motion--she decided that they had to take a second look at the situation. I am told that I will be contacted tomorrow with their decision on my motion, and if they do grant dismissal, the plaintiff's earlier motion will be moot. Thanks for all your input, I really appreciate it.

    This is a specific, statutory motion that is filed under Louisiana law. The purpose of the motion is for a party who should already have benefited from dismissal to get an order to that effect. Case law indicates that the order may be entered without hearing and without notice to the other party, because it does not actually involve the court doing anything more than carrying out a ministerial act on a case that should already have been dismissed as a matter of law (I paraphrase, but that's the gist of it).

    Either he is entitled to a dismissal on the basis that no action was taken by the plaintiff within the prescribed period, or he is mistaken in his calculation of the time since the last activity on the case. It's not something that anybody here can analyze without access to the court's docket entries, and perhaps the contents of the case file.
    Thanks for that, you explained it better than I did.

    The docket entries regarding plaintiff's complaint look like this:

    1/13, complaint filed

    I was granted extension of time to answer, and filed answer with affirmative defenses in 3/13.

    Nothing else took place from any party, including the court, until plaintiff sent me discovery requests in 6/16. No motions, no scheduling conferences, no pre-trial conferences, nothing of any kind. There has been a lot of communication, but all of it informal. No actions taken before the court, and aside from 6/16, no discovery attempts. In this regard, my case looks an awful lot like Murray v. Brown, which is linked in my last post from the LA Supreme Court. In that case, the Supreme Court agreed that the clock had run out and ruled in favor of the defendant.

    Quote Quoting Ohiogal
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    HE CANNOT appeal. This is NOT a final appealable order. He can appeal this when the case is finished. He should have objected to lack of standing by the plaintiff and because he didn't (he filed on the wrong grounds) he lost that argument because they filed to substitute.

    Did you serve the other side a copy of your motion to dismiss?
    I was not aware of the lack of standing until more recently. I did not know until just this past week that the plaintiff did not have standing at the time the lawsuit was filed, I just learned now that they sold the debt in 2007. I was informed that they had sold it to this more recent third party, but the attorney represents both the original plaintiff and the new one. Said attorney has been telling me this whole time that they were subbing in the new plaintiff, and it became clear at that time that a motion to dismiss for lack of standing would just cause them to sub the new guys in. I was fine letting it sit where it was, because at that time I had no idea that this new party could not have standing either. I did not serve the motion on the other party because the law in question specifies that this is operative on ex parte motion.

  4. #14
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    Feb 2013
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    Quick update:

    I just got a copy of the order in the mail today. This just seems way off. I know, you guys probably hear that a thousand times a day. I'm happy to accept your points of view, being that you are the attorneys and I am not one.

    So, the motion was denied. All told, this motion took the judge's office 32 days to process. At the same time, the plaintiff filed its own ex parte motion to sub in a new plaintiff. Their motion was processed from start to finish in less than one week. I called the judge's assistant and requested an update on when the motion was to be signed and sent back....thats when I was told on 11/3 that they had denied the motion that day and it was signed and heading back to the court clerk at that time. My first concern is that according to my state law and Supreme Court, this issue is to be resolved simply by checking the records of the case. If 3 years really has passed since last action of record, then the court "shall issue an order of dismissal". I'm concerned that, rather than follow those requirements, the judge's staff consulted with opposing counsel, asked them to explain their side of the deal. Then, plaintiff's attorney sent a letter to the judge in which their arguments against my motion were laid out. I believe that to be prohibited...LA's code of Judicial Conduct specifies two things. First, that when the law uses the word "shall", the judge does not have broad discretion. "Shall" appearing in the text of the law, according to this code, means the judge is in violation if other measures are taken. Second, the Code of Judicial Conduct also prohibits ex parte communication between judge and a party in which arguments are made that are designed to convince that judge to rule a certain way. I believe that this is what took place. The judge's clerk was not shy with details, she clearly said that she contacted plainitff's attorney to get their take on my motion, and that they then sent the letter to the judge requesting that my motion be denied. At first glance, at least, this seems like all the wrong things were done. No one seems to know why my motion took so long, when an ex parte motion from the plaintiff was in my hands 7 days after it was originally filed. Just seems wrong, that one side in a case can get a drastically faster response than the other. Both were ex parte motions that according to my state code of civil procedure did not require any additional proof to address, so should have taken at least a somewhat similar amount of time.

    Second concern, the judge's staff appears to have intentionally misled me as to the status of my motion. I do not expect to win the case by speaking with the judge's assistant or law clerk. But I also do not expect that each time they call or I call them, their story is different. In the end, I was given three separate dates that they supposedly signed the motion and sent it back, and none of them ended up being the actual one. They told me that plaintiff's attorney informed them that a motion to sub in a new plaintiff would be forthcoming, and the law clerk even told me that my motion was "left on the desk" until the other party had an opportunity to file their motion first. There just seems to be collaborating between the judge's staff and the plaintiff that should not be taking place. My motion did not rely on theirs in any way and theirs did not rely on mine. Also, because of the timing of mine, according to the law, theirs is moot.

    Third, when I finally did get the copy of the motion back, it was simply denied. The only sort of explanation I was given is that since the plaintiff had already taken the action of filing their motion to sub in a new plaintiff, that my motion was no longer timely, and so it was denied. This flies totally in the face of what the law says on this in my state. Hence the plan to appeal. But at this point, the only way I can find to look at this is that they got my motion, held it intentionally while they contacted the plaintiff and gave plaintiff the opportunity to take action, and then denied my motion(wrongly) because of said action by plaintiff. Case law from the Supreme Court does not permit this kind of "sitting on the desk" for a month approach. They actually told me that because they knew the plaintiff was going to file their motion, they parked mine with the intention to deny it after.

    Please, is this the way that courts are supposed to remain impartial, by informing the other party and then sitting on one party's filing so the other has a chance to act first? As I mentioned, I am not an attorney, but this just seems very improper to me. All thoughts are welcome, thanks for your time and please don't beat down on the non-attorney in the room thanks

  5. #15
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    If you disagree with the judge's ruling, you can seek reconsideration, or you can appeal. There may be a provision to seek leave to appeal while the case remains pending, or you may need to (or opt to) wait until the trial proceedings are over. As appeals can be very technical, it makes sense to discuss your situation with a local lawyer who handles appeals, and to do so before any time period for an interlocutory appeal (an attempt to appeal before the end of the case) expires.

  6. #16
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    Feb 2013
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    Thank you for such a fast reply. I've actually got a local attorney in mind that I'm calling in the morning. Since I dont seem to sleep until at least 2am my time...ever...I figured I would ask in here to see what you guys and gals thought. I would prefer not to let this drag out any longer than it needs to, especially since it's been sitting all this time already. Art. 561 does go on to say that if the motion to dismiss is denied, I am permitted 60 days from the date of mailing of the order in which to appeal.

    Hate to be a pain, but I'd like to ask one more question. Do you know if it's permissible for a judge's assistant or law clerk to sign the judge's name on a court order? I now have two orders from the same judge, within a couple weeks of each other, and the handwriting on them is incredibly different. The handwriting on one of them closely matches signatures I have seen for the law clerk on other unrelated documents. My limited understanding says that the judge must sign the order, or the order may be void.

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