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Should I file for MSJ since plaintiff has not complied with discovery requests?


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I really need some help here and hope you guys and gals are willing to donate your expertise.

My RCP's states that a defendant can file for MSJ at any time.

Heres the rundown:

After answering the (JDB's) complaint with denials (also with an affidavit striking their affidavit), I requested a very thorough discovery (thanks to the great people from this forum).

Well, they requested for an extension for more time than the original 30 days to comply with the discovery (not filed with the court, just sent me a letter). It is now 2 weeks past what their request was for (Its going into 11 weeks now).

Now I know about the motion to compel, but if I can nail this thing shut, thats what I would like to do since my RCP's states the defendant can MSJ at any time. BTW, Ive sent discovery requests twice (cmrrr), the first initiation, and then again right when the 30 days had expired. I didnt want to appear combative by not allowing them more time, but Im thinking enough time has now passed.

So should I file for MSJ to have it dismissed? And will it look ok (from the judge's point of view) to maybe rule in my favor since I didnt appear combative, by granting the extension of time?

Im worried that the MSJ would be denied by the judge. Im pretty sure the plaintiff suing me doesnt have a solid case, or else at least some of the discovery would have been sent to me by now. There wasnt anything in the complaint about an account number, just a name of a bank. Its like someone pulled my credit report and decided they have the right to sue me based on a charge off.

When I form my MSJ, I plan on providing my discovery requests and copies of the green CMRRR's of the plaintiff receiving them.....and also the plaintiffs letter requesting additional time. Is this ok?

And the biggest question of all, if the judge rules in my favor, how long does the plaintiff have to respond or try to do something about my MSJ?

(btw, Im not worried about it being dismissed with or w/o prejudice) I can elaborate more on that if and after it gets dismissed.

Im hoping to add my venture into the hall of fame sticky where I will provide full details of this battle (the complaint, answer, affidavits, and discovery, all of it). I just dont want to speak to soon, if you know what I mean :p

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I'm pretty much a rookie myself but I would walk in with a motion for summary judgment & your motion to compel. Give the judge your MSJ & if he denies it, politely hand him your motion to compel. If they don't respond to the motion to compel within a week or so, renew your MSJ citing all of the pertinent facts & I'd be pretty darn shocked if he didn't grant the motion.

I'm sure nascar or one of the other gurus will chime in here for more expert advice :)

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The fact that the other side didn't comply with discovery doesn't necessarily mean that you're entitled to summary judgment. The standard for summary judgment is that no questions of material fact remain and that the moving party is entitled to judgment as a matter of law.

If the other side failed to respond to requests for admission, you can move to have the requests deemed admitted (which might get you what you need, depending on how they were written), and you can move to compel the other side to answer your interrogatories, etc. Not having seen any of the documents already filed in your case, it's hard to say whether they would stand on their own; typically not.

In any case, in order to prevail on a summary judgment motion, you need to factually rebut the allegations in the complaint - a general denial is not sufficient. As to the missing discovery, remember, absence of evidence is not evidence of absence. Right now, in terms of evidence, it seems like you are still at the same point where you started.

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Thanks for replying Nascar.

I sent discovery with many of the requests stated in this thread:

nevermind-read post below

I didnt know about sending interrogatories. Since I was the defendant, I didnt know what I should ask. Looking back now I guess I could have come up with something. I mainly just requested production of documents and have the cmrrr to prove the plaintiffs lawyer got them, plus he sent a letter asking for an extension of time to respond with the documents I requested.

So I guess a motion to compel is next. And if that lawyer doesnt send me anything, how long should I wait to file a MSJ to have the case dismissed?

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OK, I feel a little uncomfortable posting this since it is ongoing litigation, but here is what I sent them in discovery:

REQUEST FOR PRODUCTION OF DOCUMENTS

1. “Document” means any written, recorded or graphic matter, whether produced, reproduced or stored on papers, cards, tapes, belts, or computer devices or any other medium in your possession, custody or control, or known by you to exist, and includes originals, all copies of originals, and all prior drafts. It includes all original business records, non-identical copies, computations, memoranda of oral or telephone conversations, tabulations, records of correspondence, notes made on other documents, microfilms, etc. A request to identify a document is a request to state as applicable:

a. The date of the document;

b. The type of document;

c. The names and present addresses of the person or persons who prepared the document and of the signers and addressers of the document;

d. The name of the employer or principal whom the signers, addressers and preparers were representing;

e. The present location of the document;

f. The name and current business and home addresses of the present custodians of the original document, and any copies of it;

g. A summary of the contents of the document; and

h. If the original document was destroyed, the date and reason for or circumstances by which it was destroyed.

2. The alleged credit application from ”Bank of America”, bearing the defendant’s signature;

3. The alleged credit card agreement from “Bank of America” that states interest rate, grace period, terms of repayment, et cetera;

4. Full accounting of amounts going in and out of the alleged account such as Itemized statements or credit card statements from “Bank of America” and "JDB" that demonstrates the complete accounting of how the alleged amount of $XX,xxx was calculated;

5. Complete payment and transaction history, starting with "Bank of America" including the amount of the debt when and if it was sold to the plaintiff, and what fees/interest has been added on to this debt and how the plaintiff determined these fees;

6. A contract, agreement, assignment, or other means demonstrating the full chain of custody that JDB had the authority and capacity, and was legally entitled to collect on the alleged debt from “Bank of America” ;

7. The name and address of the alleged original creditor "Bank of America";

8. Letter(s) sent to the defendant by JDB, demonstrating an attempt to collect on the alleged debt from “Bank of America” and "JDB" ;

9. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

10. The names and present addresses of the person or persons who the plaintiff plans to call upon as witnesses who have personally handled the alleged credit card account as an employee of "Bank of America";

11. Any and all further documents that you believe establish that defendant had an outstanding account or debt related to “Bank of America” and "JDB" ;

12. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

13. Any and all written communication, received by the plaintiff, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s accessing of defendant’s credit report(s).

14. Any and all communications from plaintiff to the defendant explaining why the plaintiff reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

15. Any and all credit report(s) plaintiff obtained from any credit reporting agency concerning the defendant;

16. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or the alleged "Bank of America" account;

17. The plaintiff’s Articles of Incorporation;

18. Certificate of Compliance from the plaintiff of current business tax filings;

I, (Defendant), request that JDB (plaintiff) furnish answers to all requests contained within this document for the purposes of Discovery.

[and then i signed it and stated my address]

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