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2 months ago Capital 1 was denied MSJ based on Exhibit 1 (Customer Agreement- dated after billing statements- "no clear chronology"). What do I do next?

-file motion for discovery of correct Customer Agreement

-file motion to strike Exhibit 1

or

-file motion to dismiss complaint

Thank you for any insights.

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2 months ago Capital 1 was denied MSJ based on Exhibit 1 (Customer Agreement- dated after billing statements- "no clear chronology"). What do I do next?

-file motion for discovery of correct Customer Agreement

-file motion to strike Exhibit 1

or

-file motion to dismiss complaint

Thank you for any insights.

Read your RCP to see if there is a Lack of Prosectution time line. If there is I would consider letting the time run. Since you defeated the MSJ they probably do not believe they can win. On the other hand, since they lost due to a faulty customer agreement, they may be awaiting a new one, but I doubt that.

The Motion to Strike is past it's prime since you did not do so at the time of the MSJ. You can still file a Motion in Limine to exclude it if it appears they are going ahead with trial. (Unlikely if no other hearings have been set).

I am not familiar with your RCP's but my thought is your choice would be a MSJ or await the lack of prosecution.

Edited by debtfighter
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Thank you debt fighter- very empirically insightful?.

Do you mean to MSJ before moving to dismiss complaint?

As far as Lack of prosecution would this rule classify:

HRCP 26B2- Discovery Scope Limitations: "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought;"

Any insights are most helpful. Mahalo

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HCCR 41-

(B) Involuntary dismissal: Effect thereof.

(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.

(2) For failure to prosecute or to comply with these rules or any order of the court, the court may sua sponte dismiss an action or any claim with written notice to the parties. Such dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal.

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"They may be awaiting a new one?" Really?? How many are there??

Didn't the Plaintiff put that agreement on the record as being THE ONE??

How bout if a defendant put some bogus document on the record as evidence??

Wait, Plaintiff's do it all the time in the form of monthly statements, robo-signer affidavits, junk debt buyer bill of sales and the list goes on and on. Boy Plaintiff's sure get the benefit of the doubt more often than alleged debtors!!

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HCCR 41-

(B) Involuntary dismissal: Effect thereof.

(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.

(2) For failure to prosecute or to comply with these rules or any order of the court, the court may sua sponte dismiss an action or any claim with written notice to the parties. Such dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal.

This is what I am referring too. In my State it is a year and the court will notify both parties of their intent to dismiss for Lack of Prosecution.

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Thank you for that.

-You mentioned a year for lack of prosecution; 1 year since MSJ or a year since the request for correct customer agreement was made (2yrs ago now)?

Now-

What do you think about citing this rule 26b2ii before 41b (mentioned above)? Worded as such, and added at end of Memorandum and Authorities within opposition letter to SJ, (but worded as Motion to Dismiss of SJ; Now used as Motion to Dismiss Complaint):

V. The Plaintiff has not produced a valid contract through the Defendant’s Request for Documentation (early in pretrial; prior to November 30, 2009). The Plaintiff has had ample opportunity to discover the information sought pursuant to Hawaii District Court Rules of Civil Procedures (“HDCRCP”) Rule 26(B)(2)(ii) stating:

The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought;

{eventhough no MOD was filed, but request CA was made in pretrial?; seems no time limit in HI?}

VI. The Plaintiff fails to prosecute pursuant to Hawaii District Court Rules of Civil Procedures (“HDCRCP”) Rule 41(B) stating:

For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.

{seems no time limit in HI}

See Ralph W. ROLLINS, Appellant, v. UNITED STATES of America, Appellee, 286 F.2d 761. No. 16790. Jan. 18, 1961, Rehearing Denied Feb. 27, 1961. (stating that “…under the facts in that case a motion to dismiss under Rule 41(B) was properly granted for lack of reasonable diligence in prosecution, the opinion of the Court of appeals calling attention to the fact that for some six years there had been 'a complete lack of any prosecutory effort.' The court held further that neither the District Court nor Court of Appeals had authority to make an order permitting service nunc pro tunc.')

{how effect was the citing above}

{furthermore Plaintiff has not complied with rule 56© stating: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." already mentioned as Memorandum 1}?

Thank you, for any insights. And thank you for taking your time in answering, no pun intended?

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