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  1. #1
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    Default How to Get a Court to Rule on a Motion to Dismiss

    My question involves court procedures for the state of: Louisiana

    This is regarding a debt collection matter that's been dragging on for some time in Louisiana. Case originally filed early in 2013. I responded with denial, affirmative defenses, and also added a reconventional demand(that's what a counter claim is called in my state for those who are not familiar). Fast forward about 1 year after the case was originally filed, the plaintiff admits in writing to having sold the alleged debt(it was not theirs in the first place, but that's another matter for another day). Now, having no standing to continue, they allowed the case to sit dormant in the court. In LA, the law allows for dismissal due to abandonment if the case has gone past 3 years with no action by the plaintiff to prosecute its case, and no action by the defendant to defend against the plaintiff's claim.

    It's now been more than 3 years since anything was done relating to the plaintiff's complaint. So, I filed an ex parte motion to dismiss due to abandonment in accordance with LRS C.C.P. Art. 561. I filed this motion 19 days ago. I've got my stamped copy proving that it was filed. Once it left my hands, it disappeared, never to be seen again. The court clerk's office first told me that it had been mailed to the judge's office for consideration. Today, the court clerk's office tells me that it was not mailed, but was brought to the judge's office by a runner. There's been no word of what happened to this motion, the judge apparently has not even seen it yet. In the meantime, the plaintiff apparently got word of my motion(I believe they were tipped off by the clerk's office, it has happened before), and hurried to file an ex parte motion to substitute a new plaintiff. My motion was filed 19 days ago and no one can even tell me where it went. Their motion was filed one day....two days later, the judge signed the order...the very next morning, the clerk filed the order in the docket....and the next day after that, it was out with the sheriff's office for service. Total time elapsed? Four days from start to finish. This is an important detail, because in my state, the law is clear that any motions filed by the plaintiff once the 3 years has passed are moot, the plaintiff cannot revive its case once 3 years has passed. Their only option would be to appeal after dismissal or to file a new complaint with the new plaintiff.

    My question is, what remedy is available for me to get this resolved? Since the judge apparently does not even know that I filed to dismiss, plaintiff was allowed to continue litigation that should have been dismissed. Neither the original plaintiff nor the newly inserted plaintiff have any standing. The first judge to preside over the case ignored my earlier motion to dismiss due to their failure of conditions precedent, and said that those issues are to be sorted out at trial. That same judge also denied my motion for preliminary default way back when as well, without explanation. LA allows 15 days to answer a claim or counter claim. When they did not answer, I allowed a few extra days, then filed the motion for prelim. Judge denied my motion without any comment or reason as to why. There is a new judge on the case now. I know that I can appeal once this is over but there's no need to spend the time and money on this at that point, when by rule of law it should have already been dismissed. Any thoughts are appreciated. First thought would have been an appeal, but since the court did not deny my motion, there's nothing to appeal at this point, is there?

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

    First thought would have been an appeal, but since the court did not deny my motion, there's nothing to appeal at this point, is there?
    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."

    Their only option would be to appeal after 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:

    “an ex parte dismissal may be rescinded by rule to vacate it upon a showing that a cause outside the record prevented accrual of the five years required for abandonment.” DeClouet v. Kansas City Southern Railway Co., 176 So. 2d 471, 476 (La. App. 3rd Cir. 1965). Only two categories of causes outside the record are permitted; namely, those causes falling within the two jurisprudential exceptions to the abandonment rule. Those two exceptions are: (1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiff’s control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.
    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.

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

    My apologies, I already have to update this.....and WOW, I'm at a total loss right now.

    OK, here is the actual word for word statute, Art. 561:

    "Art. 561. Abandonment in trial and appellate court

    A.(1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:

    (a) Which has been opened;

    (b) In which an administrator or executor has been appointed; or

    (c) In which a testament has been probated.

    (2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, unless it is a succession proceeding:

    (a) Which has been opened;

    (b) In which an administrator or executor has been appointed; or

    (c) In which a testament has been probated.

    (3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

    (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. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

    (5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.

    (6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

    B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

    C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court."

    I just got off the phone with the assistant at the judge's office. The clerk's office had no info and suggested that I check there instead. Well, some key points from the statute....

    1--an ex parte order is appropriate
    2--the court "shall" dismiss upon timely ex parte motion, meaning there is no discretion in the law for a judge to do what they prefer. The issue is an issue of fact. If the clock has run, then dismissal is the ONLY appropriate action for the court to take, as laid out in the law.

    I won't go nuts posting case law, but the case law in this state, including some from the LA Supreme Court, says that even if the plaintiff were to file motions after the 3 yrs has run out, it cannot revive the clock and the case still must be dismissed.

    So, here's where I am going with this. The assistant from the judge's office just told me that my motion is sitting at their office. Once they received my motion, they called the attorney for the plaintiff, and asked said attorney if they wished to continue the case or not. Naturally, that attorney said that they did. So, my motion is supposedly going to be denied. They tipped off the plaintiff that an ex parte motion to dismiss was filed. They ignored the "shall enter a formal order of dismissal" portion of the law and decided that they would much rather allow the case to continue. And then, the assistant wanted to debate with me over the phone two points. She claimed that I erred when I filed this as an ex parte motion, that no motion to dismiss should be filed ex parte, even though the law and tons of case law examples in my state say otherwise. Then, she claimed that even if the 3 year clock runs out, the plaintiff can simply file any motion they choose and continue like nothing happened. When I wrote the motion, I cited the law specifically and quoted it, showing that it calls for an ex parte motion. Then I cited a few case law examples, showing that the clock cannot be restarted by any action of the plaintiff once it has run out.

    Thanks for reading this far, I never intended for this to be so long and drawn out. The assistant is calling me back tomorrow to let me know when I can expect to have something in writing about this decision. Any thoughts, anyone??? Thanks....

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

    What do you mean what do you do?

    If your motion is not granted prior to the scheduled hearing you show up in court and argue your motion for dismissal was proper and should be granted. You don't get to argue your motion outside of the courtroom so your protestations and proofs of your position are meaningless, especially since you seem to be attempting to defend your motion to the court clerk or judges assistant.

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

    There is no scheduled hearing. There's a time consideration here in play that will not permit us to wait that long. That's the issue. This case has been sitting dead for more than 3 years, and the judge's office just ignored everything that both the statute and the case law say. Here's the time issue....there's a statute of limitations on this matter....it has passed by more than a year. That is in addition to the 3 year clock for abandonment. The statute is clear that the court SHALL issue an order of dismissal. That means, and case law in my state agrees, that the court has no option to rule differently as long as the MTD is timely. There are only two exceptions to the "shall dismiss". The first is if the reasons for the delay are beyond the plaintiff's control, and that simply does not exist here. The second is if I as the defendant waive abandonment by taking steps such as discovery. Plaintiff's attorney has known for more than 2 years that the named plaintiff sold the account and has no standing. They still kept threatening to move ahead with the case even though. They sent me discovery requests not too long ago, and if I respond to them, I waive abandonment. Like I said, there is a time issue. My conversation with the assistant was NOT "defending my motion". It was asking her why they are using a standard that completely goes against both the written law and all the case law that exists going back decades on the point. There was no arguing going on or anything like that, I asked her a question, and mentioned that the law states the opposite. She then replied that the law does allow what they did. That was the end of the "defending".

    So yes, I am asking what the best course of action is, because I am not an attorney and I am trying to show respect and handle things appropriately. I hope that makes sense. My question, more specifically, is without having an order from the court granting or denying a motion, how do you argue your claim to that court? There's no hearing scheduled, and if I make a motion for one, I risk waiving the very thing I'm trying to preserve. If there were a denial of the motion, I at least would have something that I could appeal. But without one either way, the plaintiff is trying to continue their case even though the law and case law say it is over. And by not rendering a decision on the proposed order, the court is allowing that to happen.

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

    The people you are talking to can't or won't do anything about it. So, either continue to state what you believe the law to be to people that aren't going to change anything or continue on what appears to be the only path you have.

    You were the one that said it was put on
    the court docket. In my area the docket is essentially the courts schedule. If something is on the docket, it is scheduled for action.

  7. #7
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    I'm afraid you misunderstood me. I'm not trying to get the judge's staff to do anything other than tell me when I can expect them to provide a written order for the motion because they are required to do that. I happened to disagree with what she said, but that does not mean that I was trying my case there on the phone with her. Please do not make such assumptions....I can make mention of something without it being me trying to have my whole case heard on the phone. I'm fully aware of the fact that she cannot do anything about the court issue. I was never trying to get her to.

    Also, when I said it was put on the docket, I was referring to the clerk of courts recording the plaintiff's motion to sub in a new plaintiff, not at all anything to do with my motion. In the clerk's office, everything that gets filed is "put on the docket", according to the folks that work there. I was simply saying that the clerk filed the order granting their motion. There is not now, nor has there ever been, a hearing of any kind set for this case. I hope that clears it up. That is why I am asking what my options are--as far as I am aware, I cannot appeal the decision on my motion to dismiss until there is actually a formal decision, correct? So, in the absence of that, I am asking how I can proceed. My options in court are limited because many things would be seen as waiving the abandonment, and I do not want to hand them that. They had 3 years to move their case along, and only after it was too late did they decide to act. That's not me, that is on them and I do not deserve to be punished by a judge ignoring the law simply because I am not an attorney and I'm in their wheelhouse, so to speak. The law makes no distinction about if I'm an attorney or if I'm not---civil procedure is civil procedure. They filed an ex parte motion and no one from the judge's office called ME, so why should they be permitted special treatment?

  8. #8
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    You have spoken with the judge's staff since you filed your motion.

    When you spoke with the judge's staff and asked, did they confirm that they are in receipt of your motion? When you followed up by asking when it would be submitted to the court for review, did they give you an answer?

  9. #9
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    Thanks for posting, I did, yes. I was told yesterday that the law clerk would get back to me on it. She did call me this morning, and now it seems as though I might have another concern on my hands. I was informed this morning that my motion was denied based on communication that the judge's staff had ex parte with opposing counsel. They literally called the plaintiff's attorney and asked if they were OK with my motion to dismiss due to abandonment. When the plaintiff's attorney said that they were not OK, that attorney then wrote a letter to the judge, informing the judge of their plan to continue the case. Because of that letter and conversation, the judge granted their ex parte motion to substitute plaintiff and planned to deny my motion.

    This morning the law clerk informed me of these things. I asked her why they were having ex parte communication with opposing attorney when the law clearly states that the court "shall" dismiss when presented with a timely motion to dismiss, no matter what the plaintiff would prefer. They had 3 plus years to get this moving and have done nothing aside from file the lawsuit. Plaintiff sent discovery, but several months too late according to both state law and relevant case law. Our state Supreme Court has ruled that once the 3 years is up, it's game over for the case. Law clerk heard my concerns and then decided that their planned denial of my motion needs a second look, so I am expecting a call back from the judge's office when that is completed. I'll update as new info comes to light. Thanks again for commenting.

  10. #10
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    Default Re: Is a Court Allowed to Ignore a Motion to Dismiss Without Any Response at All

    You appear to be way over your head, and in need of having competent legal representation.

    If the judge was supposed to grant your motion pursuant to the statute, did not do so, and will not do so, then you will likely end up having to address the issue on appeal.

    When you consult lawyers to help you with your case, you can discuss with them whether you have any basis to seek removal of the judge.

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