ManFriday Posted September 27, 2010 Report Share Posted September 27, 2010 Why would a plaintiff ask the judge to dismiss a case? Don't they have the right in all states to simply write a letter to the clerk and the clerk will remove it from the docket immediately?I am just wondering if there might be a confused lawyer for the plaintiff who needs to be schooled in how things work...There were a few irregularities in the pre-trial which caused the defendant to have the upper hand, so the plaintiff is going to dismiss it voluntarily, but why would they pray the court to dismiss it when it is in their power? Link to comment Share on other sites More sharing options...
WhoCares1000 Posted September 27, 2010 Report Share Posted September 27, 2010 Because it really is not in their power to dismiss, it is in the power of the judge. In this case, it sounds like discovery has been done and it does not look good for the plaintiff. The plaintiff is therefore probably requesting a dismissal w/o prejudice so that they can file the case and try again. The smart defendant at this point would request a dismissal w/prejudice which would mean the plaintiff cannot bring this issue back to court (although it looks like they are doing so in some states anyways). The argument in the motion would be that they have gone through the work of putting together their evidence in the case and have just as much right to the courts to prove their innocence. Has been used against the RIAA many times with good results over the past couple of years.Hence, even with dismissals, there are legal issues which may need to be decided by a judge and as such, only a judge can issue a dismissal, not the plaintiff. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted September 27, 2010 Report Share Posted September 27, 2010 it depends on how far a case progresses and the jurisdiction one is in. sometimes a case can be dismissed by the plaintiff voluntarily with no judicial intervention. other times after multiple hearings, an appearance by the defendant, discovery a judge would have to take a look before allowing the dismissal or having the case adjudicated on the merits. Link to comment Share on other sites More sharing options...
tempteroffate Posted September 30, 2010 Report Share Posted September 30, 2010 Let's not forget that if the Defendant filed a Counterclaim, the Plaintiff can't just back out (dismiss) without the Defendant getting a word in edgewise. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 1, 2010 Report Share Posted October 1, 2010 Why would a plaintiff ask the judge to dismiss a case? Don't they have the right in all states to simply write a letter to the clerk and the clerk will remove it from the docket immediately?I am just wondering if there might be a confused lawyer for the plaintiff who needs to be schooled in how things work...There were a few irregularities in the pre-trial which caused the defendant to have the upper hand, so the plaintiff is going to dismiss it voluntarily, but why would they pray the court to dismiss it when it is in their power?What are the counterclaims? (and case pretrial irregularities)? How did the Plaintiff ask to dismiss - reason.A voluntary dismissal sounds like Plaintiff is asking the court to allow another go. Link to comment Share on other sites More sharing options...
Massive Posted October 1, 2010 Report Share Posted October 1, 2010 What are the counterclaims? (and case pretrial irregularities)? How did the Plaintiff ask to dismiss - reason.A voluntary dismissal sounds like Plaintiff is asking the court to allow another go.It's called abuse of the legal process in my book. I've had two recent incidents helping debtors. On one the original creditors alleged Attorney failed to appear at the Pretrial Conference, although he had an assistant handle other cases at the same date and time. Judge dismissed without prejudice. I would have objected and moved the Court to dismiss with prejudice on the spot. The other case was a junk debt buyer whose alleged Attorney could not answer the Requests For Admissions so just before the limitations of time had expired they voluntarily dismissed without prejudice. Prime examples of lawsuits, both original creditor and junk debt buyer, whereby the Plaintiff's were fishing for default judgments. Once an action has commenced, that should be it, or should I say the Defendant should demand and move the Court for a dismissal with prejudice. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 1, 2010 Report Share Posted October 1, 2010 It's called abuse of the legal process in my book. I've had two recent incidents helping debtors. On one the original creditors alleged Attorney failed to appear at the Pretrial Conference, although he had an assistant handle other cases at the same date and time. Judge dismissed without prejudice. I would have objected and moved the Court to dismiss with prejudice on the spot. The other case was a junk debt buyer whose alleged Attorney could not answer the Requests For Admissions so just before the limitations of time had expired they voluntarily dismissed without prejudice. Prime examples of lawsuits, both original creditor and junk debt buyer, whereby the Plaintiff's were fishing for default judgments. Once an action has commenced, that should be it, or should I say the Defendant should demand and move the Court for a dismissal with prejudice.United States v. Harvey, 64 M.J. 13 (four factors determine whether post-trial delay violates due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). Link to comment Share on other sites More sharing options...
WhoCares1000 Posted October 1, 2010 Report Share Posted October 1, 2010 I would think that as long as the defendant does not have to expend too much time preparing for the case, then for the first filing, a dismissal without prejudice is fine. There are many cases, where it goes too far but that because many times the defendant does not know the the difference between w/prejudice and w/o prejudice, then never make the request. The 2 cases above suggest the later.Now, once there is a 2nd filing and still no evidence, even most judges see the abuse of process and will not dismiss w/o prejudice for any reason. Therefore, the most the plaintiff has is 2 bites at the apple. I know in some RIAA cases, the RIAA wanted to dismiss w/o prejudice once they realized they would lose but the judge would not allow it because the defendant expended great effort in setting up their defense (to the tune of $60,000+ in legal fees) and hence, was entitled to their day in court to prove their innocence as much as the plaintiff was entitled to their day in court to prove the defendants guilt. The case ended up being dismissed w/prejudice.My suggestion would be to file a motion in opposition to dismiss w/o prejudice and then file a motion to dismiss with prejudice if the court has not rules already on the plaintiffs motion and see what happens. The worst is that the judge will say no and then you are in no worse situation than before. The case has ended for the time being. Link to comment Share on other sites More sharing options...
Dr. Evil Posted October 1, 2010 Report Share Posted October 1, 2010 It's called abuse of the legal process in my book. I've had two recent incidents helping debtors. On one the original creditors alleged Attorney failed to appear at the Pretrial Conference, although he had an assistant handle other cases at the same date and time. Judge dismissed without prejudice. I would have objected and moved the Court to dismiss with prejudice on the spot. The other case was a junk debt buyer whose alleged Attorney could not answer the Requests For Admissions so just before the limitations of time had expired they voluntarily dismissed without prejudice. Prime examples of lawsuits, both original creditor and junk debt buyer, whereby the Plaintiff's were fishing for default judgments. Once an action has commenced, that should be it, or should I say the Defendant should demand and move the Court for a dismissal with prejudice.How can we all get a copy of your book? It would really help us to be able to cite your fantastic rules and scholarly opinion as a secondary source in our memos and briefs. Link to comment Share on other sites More sharing options...
Massive Posted October 1, 2010 Report Share Posted October 1, 2010 How can we all get a copy of your book? It would really help us to be able to cite your fantastic rules and scholarly opinion as a secondary source in our memos and briefs.I plan on a publication date of around January 2011. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 1, 2010 Report Share Posted October 1, 2010 (edited) How can we all get a copy of your book? It would really help us to be able to cite your fantastic rules and scholarly opinion as a secondary source in our memos and briefs....it’s already been written and published. Edited October 2, 2010 by FL4answer58 Link to comment Share on other sites More sharing options...
Massive Posted October 2, 2010 Report Share Posted October 2, 2010 Yep Dr. Evil, it is already out!! My next best seller, Exposing The Trolls. Link to comment Share on other sites More sharing options...
Anne Tyler Posted October 2, 2010 Report Share Posted October 2, 2010 Yep Dr. Evil, it is already out!! My next best seller, Exposing The Trolls.Trolls give me the creeps. Don't like trolls. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 2, 2010 Report Share Posted October 2, 2010 (edited) Yep Dr. Evil, it is already out!! My next best seller, Exposing The Trolls.http://briansolis.posterous.com/identifying-the-faceless-exposing-trolls-who Edited October 2, 2010 by FL4answer58 Link to comment Share on other sites More sharing options...
Dr. Evil Posted October 5, 2010 Report Share Posted October 5, 2010 Yep Dr. Evil, it is already out!! My next best seller, Exposing The Trolls.If by troll you mean someone espousing one size fits all legal theories and an elevated sense of self importance resulting from their various courtroom experiences as a debtor, consider yourself exposed. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 5, 2010 Report Share Posted October 5, 2010 If by troll you mean someone espousing one size fits all legal theories and an elevated sense of self importance resulting from their various courtroom experiences as a debtor, consider yourself exposed.Psalm 34:14 Turn from evil and do good; seek peace and pursue it. Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 5, 2010 Report Share Posted October 5, 2010 (edited) Why would a plaintiff ask the judge to dismiss a case? Don't they have the right in all states to simply ... remove it from the docket immediately?There were a few irregularities in the pre-trial which caused the defendant to have the upper hand, so the plaintiff is going to dismiss it voluntarily, but why would they pray the court to dismiss it when it is in their power?Not sure on why Plaintiff 'pray the court to dismiss it'.Was there any counterclaim or maybe avoidance of sanctions here? Edited October 6, 2010 by FL4answer58 Link to comment Share on other sites More sharing options...
ManFriday Posted November 1, 2010 Author Report Share Posted November 1, 2010 Well, no counterclaims and it was before discovery. The defendant showed in his response, (which was not really a response; it was a motion plus an affidavit) that the case was filed by a Homer Simpson lawyer.... Doh .... in the wrong court. Hence the strong upper hand of the Defendant.Here is what happened. The Plaintiff requested a dismissal w/o prejudice and it was granted the next day. (Too fast to hear any counter-motions.) Meanwhile, Defendant with no immediate knowledge sent a motion to strike their motion (since the Plaintiff could have voluntarily dismissed via the Clerk and a few other reasons), and therein requested a dismissal w/prejudice due to Plaintiff's wasting the court's time on stupid motions.The judge then later saw this (probably laughed) and issued a letter stating he had already dismissed w/o prejudice, and that there was no grounds to strike or to dismiss w/prejudice since it was in the Plaintiff's power to non-suit.Thanks everyone for all the Evil surmisings in this thread. He is proud, knowing nothing, but doting about questions and strifes of words, whereof cometh envy, strife, railings, evil surmisings, perverse disputings of men of corrupt minds, and destitute of the truth1 Tim. 6:4 et seq. Link to comment Share on other sites More sharing options...
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