Jump to content

Help! JDB lawyers tying to pull a fast one


Recommended Posts

Hello all:

 

Here's some quick background.  I'm in Ohio... The JDB filed the original complaint and I sent an answer.  The judge accepted my answer as a request for a more definitive statement.  The judge issued the order and a 14 day time frame for the JDB lawyers to get the amended complaint in.

 

So the due date comes and goes and I awaited the judge to make a decision to hopefully dismiss the case.  WELL, the JDB lawyer sent a request for an extension a full 7 days after the judge's due date.  AND for good measure, they filed their request for discovery on the same day.

 

When the copy of the request got to me, it had no stamp or date on it other than a paper from the JDB lawyers stating that the request was filed 15 DAYS before the JDB lawyer actually filed it (I checked the docket).

 

Is there anything that I can do?  Can I object and request a dismissal?  If so, are there any laws that I can use to support my motion?

 

Any help is greatly appreciated...

Link to comment
Share on other sites

How was the plaintiffs complaint deficient.

 

I would answer the JDB's discovery if you dont they may be deemed admitted and you will lose.

 

In Ohio it is clear YOU MUST file a MOTION FOR A MORE DEFINITE STATEMENT BEFORE you file your answer if you intend to seek a MOTION FOR DISMISSAL based on Rule 10(D). More here:

***Plaintiff complied with Civ. R. 10(D) by attaching final monthly statement to its complaint. Furthermore, Defendant's concerns needed to be addressed through a Motion for More Definite Statement. (Point Rental Company v. Posani, 53 Ohio App.2d 183, 368 N.E.2d 1267 (1957). A defendant who fails to file for a more definite statement before filing his answers has waved his right to to assert Civ. R. 10(D) as a basis for dismissing the Plaintiff's complaint. State Farm Mut. Auto Ins v Loken, 2004 Ohio 5074.***
 

Once a Motion for More Definite Statement is filed, the other party has 14 days to file a response. If a response is not filed by the deadline, the Motion will be granted and the claims will be dismissed. If a timely response is filed, the Court might grant the Motion for a More Definite Statement and order the party to provide a more specific statement of claims.

Link to comment
Share on other sites

Here is a draft of a motion to strike and dismiss the complaint.  Any advice is greatly appreciated:

 

DEFENDANT'S MOTION TO STRIKE THE PLAINTIFF'S COMPLAINT AND DISMISS

Now comes the Defendant in the above-captioned proceeding submitting, pursuant to Rule 12(E) of the Ohio Rules of Civil Procedure, this motion to strike the Plaintiff’s complaint and this motion to dismiss the Plaintiff's Complaint with prejudice pursuant to Rule 41( b )(1) for failure to follow a court order.

 

A brief in support is attached hereto and made a part hereof.

 

 

 

Brief in Support

I. Motion to Strike.

 

Plaintiff filed a complaint that was deemed insufficient and on February xx, 2013, the court approved a request for a more definite statement and ordered Plaintiff to amend the complaint within fourteen days of the order (see docket).  Plaintiff failed to comply and respond to the order in the time allotted.

 

Civil Rule 12(E) of the Ohio Rules Of Civil Procedure states that “…if the motion (for definite statement) is granted and the order of the court is not obeyed within fourteen days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed…”  By Plaintiff failing to respond within the fourteen day period after notice of order, Defendant prays that the court strike the complaint accordingly.

 

II. Motion to Dismiss.

 

On February xx, 2013, this court entered orders that required Plaintiff to provide an amended complaint by February xx, 2013.  Plaintiff failed to comply with this order.

 

Civil Rule 41( b )(1) provides:

Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim.

 

It is clear that Plaintiff has failed to obey this court’s orders; thus entitling Defendant to a dismissal.  Accordingly Defendant prays that this case be dismissed with prejudice.

Link to comment
Share on other sites

Hey all, here's an update!

 

I was stressing over this all weekend and then I go to look at the docket this morning and the judge dismissed the case without me having to do anything!  Apparently, he reviewed the JDB lawyer's request for an extension and he overrulled it and dismissed the case!

  • Like 2
Link to comment
Share on other sites

Hey all, here's an update!

 

I was stressing over this all weekend and then I go to look at the docket this morning and the judge dismissed the case without me having to do anything!  Apparently, he reviewed the JDB lawyer's request for an extension and he overrulled it and dismissed the case!

 

Nice!  Good work.   :)%

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.