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Went to Court this am, slimball Attorney did not file the motion to dismiss like she said she would.


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Lucky, I had heard about this law firm doing that to others, say they would file the dismiss, the defendants dont show in court, and they get the default. 

So I show up and a Rent a Lawyer shows up for my case.  they also had another case with same law firm to appear at the same time as me.

 

Attorney introduces himself to me, and I say "M and J told me they were going to dismiss this case with prejudice, why was that not done?" and he says oh I guess we could do that (dam right you can) Unless you would like to settle"

I say do I look stupid to you? Why on earth would I want to settle when I have a dismiss WITH prejudice? He says "well I don't know the particulars"  I said well the particulars are I already settled this case and your attorneys are suing me for a bad debt they bought.  He says "I didn't read that in your affirmative answers"  I said well obviously you did not read through the entire case then.  I may have not had the stipulation letter, but there is serious question into the trustworthiness of what chase gave your clients.

 

So judge comes in and Plaintiff's attorney states they will dismiss with prejudice, each party to pay their own fees.

 

I said uh, no, I would like my fees reimbursed.  

 

So Judge says ok, your going to dismiss with prejudice, (looks at me) "you did quite a bit of work on this case didn't you?" (he picks up the case of 1 1/2 inches thick of paperwork)

I said yes your honor, it was not for very much money, but there was a principal here, and I was not going to pay for a debt that I already settled.  I didn't have the stipulation letter from my settlement, so I had to defend it another way.

 

He says you know, I get hundreds of these type cases in here all year long.  I really never pay much attention to any of them, but I remember this one, and have been following it. I was actually looking forward to hearing oral arguments.  You did a really good job if defendant is dismissing WITH prejudice.  That almost never ever happens.

 

As to your court costs, why do you feel you should be reimbursed for those?  I said, well because plaintiff would be able to get their costs and attorney fees if they had been the prevailing party, so I should get at least my fees back.  As you said I put alot of work into it, and I feel like this case should have never ended up here to begin with, but the plaintiff would not listen to my defense before they filed suit.

 

He said "I would love to give you your fees back, but I need some law behind it.  You are right, prevailing party is usually entitled to their fees, but I need some law from you to be able to grant it.

I said well would I file that in a motion with case law to back it up?  He said exactly, I will give you 7 days to get that filed, then I will give the plaintiff 5 days to respond before I rule.

 

OK thank you judge.  Shook hands with slimeball and that was that. 

 

OK, so can someone direct me to some law for the prevailing party?  I am going to see what is in Colorado rules, but a little case law can't hurt.   ::punk::  ::punk::  ::punk::  ::punk::  ::punk::  :yahoo:

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The only thing I can find on the subject matter is this rule http://web.lexisnexis.com/research/retrieve?_m=9b550cb9a40527e1182d4cb2508bb507&docnum=8&_fmtstr=FULL&_startdoc=1&wchp=dGLzVzk-zSkAb&_md5=ee09b8415f0322a47afdaa65f6f30bb6

 

In it sates this  (d) Costs. Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.

 

Is that all I need? EVERYTHING I can find relates to the plaintiff getting  awarded costs and attorney fees, or a judgement with attorney fees.  Sheesh, the court acts like if you bring a suit against someone, you get paid if you win, but to bad so sad if you lose, each pay their own. Not fair-- so maybe some good case law would help?

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Great job, Shellieh98! Way to stand your ground. I'm not sure what can be done about your costs but the judge definitely opened the door so I am sure there is something. Keep in mind, though, if the stipulated dismissal states that each party pays their own costs then they can withdraw the dismissal if you go after your costs. Just food for thought. Don't know how much you have invested money wise (time is not compensated to my knowledge). It may be a good idea to let it go if it is not too much. You are technically not the prevailing party, they quit before it got to trial. If proceedings had commenced and they quit then you would be the prevailing party. Wait for others to chime in but that's my two cents.

 

All that being said, great work!!

 

xThudx  - - - - - - - - - - - - - - - -   ::BigGun:: 

    them                                                     you 

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Congrats. The judge is asking you to show him/her case law where a defendant was reimbursed court fees when a case was DISMISSED rather than ruled in their favor. It may not exist, but that is what you must find, and cite. I agree with Flyerfan (as  I usually do) in weighing your fees vs. being over with and the possibility of a withdrawal of dismissal.

 

A lot of it probably depends on principal, how they treated you, and whether or not you can find that case law.

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@shellieh98

 

The rule you cited is 54(d) which is based upon a judgment.  There was no judgment in your case.  I believe you'd need something based upon Rule 41(a).

 

Rule 41. Dismissal of Actions.

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action may be dismissed by the plaintiff without order of court upon payment of costs: (A)   By filing a notice of dismissal at any time before filing or service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or (B)   by filing a stipulation of dismissal signed by all parties who have appeared in the action or by their attorneys. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once previously dismissed in any court an action based on or including the same claim.

 

(2) By Order of Court. Except as provided in subsection (a)(1) of this subdivision of this Rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice.

 

 If they're dismissing under C.R.C.P. 41(a)(2):

 

Tillery v. District Ct., 692 P.2d 1079, 1084 (Colo.1984) (trial court may award costs and fees to defendant as a term and condition of voluntary dismissal); Powers v. Professional Rodeo Cowboys, 832 P.2d 1099, 1102 (Colo.App.1992) (same).

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Regarding dismissal withe prejudice, "Such a dismissal is considered an adjudication on the merits." See O'Done v. Shulman, 124 Colo. 445, 448, 238 P.2d 1117, 1118 (1951); see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991)(voluntary dismissal with prejudice under Fed.R.Civ.P. 41(a)(2) is a complete adjudication on the merits and no adjudication in favor of defendants, by court or jury, can rise higher).

 

Accordingly, Defendant is prevailing party and entitled to recovery of costs. See Cobai v. Young, 679 P. 2d 121 (Colo. Ct. App. 1984)

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Cobai vs Young

 

Normally when a case is dismissed it is with out prejudice, for a decision with prejudice the merits of the case have to be examined.

 

For a case to be dismissed with prejudice, normally the defendant, in your case, need to show to the court why and how the other party has prejudiced them, vexatious litigation, or a case brought in bad faith, or when there has been a failure to prosecute it within a reasonable time. When a plaintiff who has commenced an action fails to comply with discovery devices, a court, which has issued the order of compliance, may sua sponte(of his or her own accord) dismiss the case with prejudice.

 

Normally, when there is a voluntary dismissal of an entire action, the action is no longer pending and the court's jurisdiction over the parties and the subject matter terminates. (In re Casa de Valley View Owner's Assn. (1985) 167 Cal.App.3d 1182, 1192.)

 

dismissal pursuant to a settlement agreement. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437.)

 

While the case is pending, the court can expressly reserve jurisdiction to enforce a settlement agreement after the entry of dismissal (Wackeen v. Malis, supra, at p. 437

 

but the parties cannot confer such jurisdiction simply by including language in the settlement agreement. The parties must make a specific request to the Court that it retain jurisdiction. Without such request and consent of the court, language in the settlement agreement is a nullity. (Hagan Engineering v. Mills, supra, at p. 1008.)

 

You must serve and file a Memorandum of Costs within the required time limit. If the plaintiff objects to any item, the plaintiff will need to file a Motion to Tax Costs. Otherwise, you will be awarded the costs that you requested.

 

Here is the precedent law

(Santisas v. Goodin, 17 Cal.4th 599, 621 (1998); Cano v. Glover, 143 Cal.App.4th 326, 331 (2006).)

Because plaintiffs voluntarily dismissed this action WITH PREJUDICE, the seller defendants are defendants in whose favor a dismissal has been entered]

 

Brown v. Desert Christian Center(2011) 193 Cal.App.4733, 735 [in personal injury case,
defendant was successful in proving its affirmative defense that plaintiff’s injuries were within the exclusive jurisdiction of the workers’ compensation system, so the trial court dismissed the action and defendant was a prevailing party.]
 

 

 

You need to show that you are prevailing party within the meaning of CCP 1032 (a)(4).

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Would you mind putting up what your costs are? Just curious if this is all worth it for you. I get the principal motivation, I really do. My concern for you is, if this is a stipulated dismissal, it is a dismissal based on terms. If you do not sign it with the terms and abide by those terms they can withdraw. I'd hate to see them withdraw and go after you based on principal.

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Boy you guys are good.   My costs were not much around 100.00 if that. 76.00 was the filing fee, other fees were all for CMRRR, so probably not worth fighting for.  I may have to think on that a minute.  I didn't know they could withdrawl the dismissal, I would hate to see that happen, even though I do believe I would win, I don't know that I want to exert anymore time into it if they did withdrawl.  Thank you so much for the education!. 

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Boy you guys are good.   My costs were not much around 100.00 if that. 76.00 was the filing fee, other fees were all for CMRRR, so probably not worth fighting for.  I may have to think on that a minute.  I didn't know they could withdrawl the dismissal, I would hate to see that happen, even though I do believe I would win, I don't know that I want to exert anymore time into it if they did withdrawl.  Thank you so much for the education!. 

 

Just to clarify, if it is a stipulated dismissal. Does it require your signature? Are there terms? 

 

Don't let this stop you from your happy dance. You still kicked their a$$ and you cost them a hell of a lot more than $100!

 

::travolta::

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no I didn't sign anything, went in, he told the judge they were dismissing with prejudice, judge so ordered it.  so that would mean no stipulation?

 

Possible. Do you have a copy or can you get one? Did they give you a copy of the order?

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