won object to summary judgment, now what

[Fats]

The JDB filed motion for summary judgment, so I filed an objection to SJ and the judge agreed with me that their was genuine issue of facts in the case. I am in Ohio. Can I now file a motion to dismiss case or do something so that the court throws this out. Thanks.

[WhoCares1000]

Really, you just got done arguing that there are issues to be resolved in this case and now you are going to file a motion stating that there are not issues (which is what a motion to dismiss really is)? I bet the judge does not dismiss the case either.

The next step now is to perform discovery. Expect to get a request for documents, admissions and interogatories and learn how to make discovery requests. This is where the real lawyer work is done as this is where you make or break your case.

[admin]

What WhoCares said.

[Savoir]

...... after I beat the Summary Judgement, the Judge denied discovery and set a trial date ....... no discovery involved

During the Summary Judgement hearing I got the JDB's Affidavit of Debt stricken due to lack of knowledge basically kicking the legs out from under an Account Stated cause of action and still, there is a trial on Friday .......

I guess I'm going to trial and see what happens ......... I'm now fighting ownership of the account .......?????

[Guest usctrojanalum]

Once a party defeats a motion for summary judgment the case just goes on like it would have normally.

[skippy1960]

Beating Summary Judgement is no easy task, just keep reading this board for a while. It means that you have done some research and have put a real wrench in the CA's machine.

Still not out of the woods, you will need to prep for trail. Same process as beating MSJ. Get an understanding via Civil Procedures and Court rules what is expected, many courts like to have trail briefs filed XX number of days prior to trial. What ever the triable issue of fact was, is a prime location to concentrate your research. Finally make sure you understand how to force them to bring a witness to testify.

May have time for a quick break but need to be researching if you are going to win this....you can do it.

[Fats]

I have a pre-trial coming up. I used case law to show genuine issues of fact. Not, sure what I need to do for pre-trial? Do I just follow what I have shown in the case laws to show that they have no right to pursue this matter? Would it be wise to consult an attorney on what I need to do to prepare for a pre-trial.

Thanks in advance.

[skippy1960]

You should certainly do whatever you can to get a better understanding of what you are facing. I am not from your jurisdiction so hard for me to offer a great deal of help, but if you can afford a 1hr consult to get you pointed in the right direction would be useful. Although I can tell you prior to attending a consult you should make clear what you are looking for with the attorney.

[nobk4me]

Be careful, the court's denial of their SJ motion could be a ruse to get the parties together to force a settlement or consent judgment. Kind of like a bait and switch. You think you are going to a trial, but the court has something else in mind. I speak from experience in Ohio here.

[Guest usctrojanalum]

Pre-trial conferences are really just the court trying to get the parties to work out their differences. This includes setting dates for discovery, making sure deadlines are met WRT to discovery, asking both parties if settlement negotiations are likely or near. Just show up and request a trial.

[Fats]

The JDB just ask the court to dismiss the case without prejudice. I would like to have it dismissed with prejudice, this is the second time they have taken this to court. But, just glad this chapter is over. thanks for everyone's help.

[WhoCares1000]

File a motion to dismiss with prejudice and cite the fact that this is the 2nd time they have instigated a lawsuit for the same issue without proof and that this is an abuse of the legal process to harass someone. Look it up in the Civil Rules of Procedure for Ohio.

[skippy1960]

The JDB just ask the court to dismiss the case without prejudice. I would like to have it dismissed with prejudice, this is the second time they have taken this to court. But, just glad this chapter is over. thanks for everyone's help.

Fats I am with Who on this one. Your SOL is like forever 15 years, so they will just keep swinging at you until you make an error or miss a deadline, or sell it to the next fella, and you are back in court.

I would oppose the MTD and offer only MTD with prejudice or in the alternative try to find away to force this to trial or decision. Not from Ohio so can only give general idea's.

Certainly if you decide not to fight this time. I would be looking for counterclaims to file the next time. This will allow you some control over the case, they might want to dismiss their portion, but they will need to defend against your counterclaims. This would offer you leverage to ask for mutal dismissal with prejudice and it goes away for good.

[nobk4me]

Check out OCRP Rule 41(A)(1)(: a notice of dismissal operates as an adjudication on the merits of any claim that the plaintiff has once dismissed in any court.

[Fats]

http://www.supremecourt.ohio.gov/PIO/summaries/2007/0627/060235_060310.asp

June 27, 2007) The Supreme Court of Ohio ruled today that the “double dismissal rule” that bars a plaintiff from refiling a civil lawsuit against the same defendant after voluntarily dismissing that complaint twice applies only when both dismissals were unilateral “notice dismissals” filed by the plaintiff under Civ.R. 41(A)(1)(a). The Court's 6-1 decision was authored by Justice Maureen O'Connor.

A provision of Ohio's Rules of Civil Procedure, Civ.R. 41(A)(1)(a) permits a plaintiff in a civil lawsuit to voluntarily dismiss his or her complaint prior to trial “without prejudice” (without impairing the plaintiff's right to re-file the same claim at a later date within the legal time limit for doing so) simply by filing a notice of dismissal with the trial court. The rule goes on, however, to state that if a plaintiff files a notice of dismissal in a case that he or she has previously dismissed against the same defendant, the second dismissal “operates as an adjudication upon the merits” of the plaintiff's case and results in dismissal of the plaintiff's claim “with prejudice” — thereby barring the plaintiff from any future opportunity to re-file his or her claim against the defendant. "

Okay, can someone say this is plain language-My understanding of this means that if the plaintiff request to dismiss case without prejudice the second time(without agreement of defendant) then the case must be dismissed with prejudice. Is that a correct understanding. Thanks!

[nobk4me]

http://www.supremecourt.ohio.gov/PIO/summaries/2007/0627/060235_060310.asp

June 27, 2007) The Supreme Court of Ohio ruled today that the “double dismissal rule” that bars a plaintiff from refiling a civil lawsuit against the same defendant after voluntarily dismissing that complaint twice applies only when both dismissals were unilateral “notice dismissals” filed by the plaintiff under Civ.R. 41(A)(1)(a). The Court's 6-1 decision was authored by Justice Maureen O'Connor.

A provision of Ohio's Rules of Civil Procedure, Civ.R. 41(A)(1)(a) permits a plaintiff in a civil lawsuit to voluntarily dismiss his or her complaint prior to trial “without prejudice” (without impairing the plaintiff's right to re-file the same claim at a later date within the legal time limit for doing so) simply by filing a notice of dismissal with the trial court. The rule goes on, however, to state that if a plaintiff files a notice of dismissal in a case that he or she has previously dismissed against the same defendant, the second dismissal “operates as an adjudication upon the merits” of the plaintiff's case and results in dismissal of the plaintiff's claim “with prejudice” — thereby barring the plaintiff from any future opportunity to re-file his or her claim against the defendant. "

Okay, can someone say this is plain language-My understanding of this means that if the plaintiff request to dismiss case without prejudice the second time(without agreement of defendant) then the case must be dismissed with prejudice. Is that a correct understanding. Thanks!

That's the way I read it. But I am not an attorney. Could we get a legal opinion here - Bump!

[InDebt2]

" — thereby barring the plaintiff from any future opportunity to re-file his or her claim against the defendant. "

I don't read anything in this rule barring another plaintiff from filing suit......

....but then I'm not a lawyer ... nor a judge ....

[Fats]

that is the problem. when the JDB loses they just package the debt and sell to another JDB who just starts the process over again. But, I do think that this ruling gives you a legal ground to ask that the case be dismiss because of the dismissal w/o prejudice twice. Any legal minds that can help!