spacejam

Cach vs Spacejam need help please

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@spacejam double check the online case detail for activity. If it does show inactive, compare that to what your rules state for dismissals, failure to prosecute by the Plaintiff after a certain period of time. The court may dismiss on its own after the case is inactive.

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(b)  Involuntary Dismissal; Effect. 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 him or her.
	
    (1)  Want of Prosecution on Motion of Party. Any civil action shall be dismissed, without prejudice, for want
of prosecution whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff neglects to note
the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure
to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion
to dismiss shall come on for hearing only after 10 days' notice to the adverse party. If the case is noted for
trial before the hearing on the motion, the action shall not be dismissed.
	
    (2)  Dismissal on Clerk's Motion.
	
    (A)  Notice. In all civil cases in which no action of record has occurred during the previous 12 months, the
clerk of the superior court shall notify the attorneys of record by mail that the court will dismiss the case for
want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or
files a status report with the court indicating the reason for inactivity and projecting future activity and a
case completion date.  If the court does not receive such a status report, it shall, on motion of the clerk,
dismiss the case without prejudice and without cost to any party.

 

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@CCRP626 looking online it looks like its been inactive since my original trial when I asked for a Motion to Dismiss, but thats my assumption it could just be a poorly maintained site.  So i cannot confirm nor deny that this is accurate.  

Should I make a stop at the court house and ask about the activity?

Will my inquiry start the clock again on activity?

Also would you or @BV80 know if a case is open and while its open that the statute of limitations is met does that benefit me at all?  Or does that not apply?

I tried researching this, and couldn't find any information.  Also the case was opened prior to the SOL and since they haven't moved forward it has now been exceeded if that helps to know.

 

Thanks again for all your help.

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6 minutes ago, spacejam said:

@CCRP626 looking online it looks like its been inactive since my original trial when I asked for a Motion to Dismiss, but thats my assumption it could just be a poorly maintained site.  So i cannot confirm nor deny that this is accurate.  

Should I make a stop at the court house and ask about the activity?

Will my inquiry start the clock again on activity?

Also would you or @BV80 know if a case is open and while its open that the statute of limitations is met does that benefit me at all?  Or does that not apply?

I tried researching this, and couldn't find any information.  Also the case was opened prior to the SOL and since they haven't moved forward it has now been exceeded if that helps to know.

 

Thanks again for all your help.

Calling the clerk of court to ask if there's been any more activity shouldn't affect anything. 

The sol (stopped) tolled when the lawsuit was filed. 

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SOL only will apply now if this current case gets dismissed.  If you motion to dismiss and the court ends up dismissing it, you would then be able to use expired SOL as an affirmative defense if they tried to sue you again.  Personally, I would file that MTD on the grounds of want of prosecution.  What happened when you filed the last MTD?  did the court ever rule on it?

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 @BV80 Thanks for the info will be calling the clerk later today.   Will update on what I hear back.

 

@kraftykrab When I filed the last MTD, the judge didnt rule on it and instead dismissed it (not sure if that is the correct term) due to the fact that the case has only been opened for 5 months.  

 

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Update:

Just got off the phone with an office clerk and have some good news.   

Last activity was on October 1 2015.  The clerk  filed a Motion to Dismiss with the Plaintiff due to inactivity.  

December 1, 2015 it was filed to be dismissed due to no response from the Plaintiff.

Was I supposed to receive a copy of that filing?   As I did not and was unaware.

She also mentioned the site has outdated information as they have been going through a long legacy software upgrade.  Although my case was filed to be dismissed, it hasn't been officially dismissed yet.  They are working through a hefty backlog, and its delayed because of the upgrade.  

 

@CCRP626 @BV80 @kraftykrab

Is there anything else I need to do? or just wait it out?

Thanks in advance!

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Just wait it out and check back with the clerk every so often. I wouldn't point out you haven't received a notice.

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One thing you might do is check your state's rules of procedure.  For example, in my state, we have Article 561, which says that the case is automatically abandoned if neither party has taken a step in the prosecution (plaintiff) or defense (defendant) in the case for a period of three years.  This statute goes on to say that abandonment is automatically occurring, and does not require the court to make a decision---it says that the court SHALL dismiss either upon its own order or upon ex parte order from the defendant.  This means that once that ball is set in motion, there is not much chance of the plaintiff coming along and restarting that clock.  In my state, the case law regarding Art. 561 also says that no action by the plaintiff can breathe new life into the lawsuit once that 3 year clock has run out. 

I'm actually in the middle of this exact thing right now myself.  I filed a MTD due to abandonment, and it should be pretty much academic at this point.  The docket record backs me up on this, the plaintiff filed its action back in 2013 and we just passed three years, so I filed.  Waiting to get the response from the court.  My point is, your state might have a specific law like this, so that you could be sure that you're done with the mess.  It's always best to know the law involved, so you can know your options and what to expect.  Even though you're waiting for the court to catch up to the case load, it would really suck if during that waiting time the plaintiff came along and decided to file something to try to keep the case alive.  If you know what your state laws say, you can be better prepared no matter what does or does not happen next.

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@kraftykrab

This is all i found as for Superior Court Civil Rules, it just expands on what @BV80 posted above which is from CR41

 

 (2)  Dismissal on Clerk's Motion.
	
    (A)  Notice. In all civil cases in which no action of record has occurred during the previous 12 months, the
clerk of the superior court shall notify the attorneys of record by mail that the court will dismiss the case for
want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or
files a status report with the court indicating the reason for inactivity and projecting future activity and a
case completion date.  If the court does not receive such a status report, it shall, on motion of the clerk,
dismiss the case without prejudice and without cost to any party.
	
    (B)  Mailing notice; reinstatement.  The clerk shall mail notice of impending dismissal not later than 30 days
after the case becomes eligible for dismissal because of inactivity.  A party who does not receive the clerk's
notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time
after learning of the dismissal.
	
    (C)  Discovery in process.  The filing of a document indicating that discovery is occurring between the
parties shall constitute action of record for purposes of this rule.
	
    (D)  Other grounds for dismissal and reinstatement.  This rule is not a limitation upon any other power that
the court may have to dismiss or reinstate any action upon motion or otherwise.

 

So from what the clerk said they haven't responded to the the original notice.  So I wouldn't think that they would be eligible to reinstate the case, well depending on what the court deems as a reasonable time.  


What are your thoughts?

 

 

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My concern is this....you apparently did not receive any notice from the court clerk stating that the case was due to be dismissed unless action was taken to notify the court.  The statute states that the clerk of court shall send notice of impending dismissal to "the attorneys of record".  This leads me to believe that they are supposed to notify both parties, otherwise the statute would say that the clerk of court must notify the attorney of record, or notify the movant in the case, etc. 

 

And, since you apparently received no notice yourself, and only learned about this status by checking with the clerk yourself, it would stand to reason that the plaintiff's attorney possibly did not get one either.  Once this case gets dismissed, it's possible that their attorney will motion the court to reinstate the case due to lack of notice.  Either way, you're really still at the mercy of whatever happens next for the time being though.

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@spacejam if the Plaintiff's excuse for why this should remain active is because they didn't get notice that doesn't really explain why they didn't file any paperwork the previous 12 months. They started the case and need the court to remind them? I'd say enjoy this. Usually it's a defendant stuck after a default judgment is entered having to explain they never received paperwork. Let the Plaintiff argue with the court. One or both of them screwed up.

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UPDATE:

So I've been patiently waiting and randomly checking the status online, and didn't see any movement.  So I decided to call and follow up.

According to the latest person I spoke with, they said all the dismissals that went out in October 1, 2015 was actually a system glitch and notices did not go out.  She said that it technically wasn't filed by the clerk to dismiss due to inactivity, and she also said that doesn't mean that it won't happen either, it's just that all of the ones that went out in October 1, 2015 are invalid. 

So now that I know that isn't the case and the clerk did not dismiss it,  what course of action should I take? 

Should I wait this out, and wait for the clerk to file the motion to dismiss? 

Should I file my own motion to dismiss?  (I am nervous about this as that means I will have to go to court for this)

If I file my own motion to dismiss, and a trial date is set will we only speak on the motion I filed? Or can the plaintiff's attorney turn it into an actual trial?

 

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4 hours ago, spacejam said:

UPDATE:

So I've been patiently waiting and randomly checking the status online, and didn't see any movement.  So I decided to call and follow up.

According to the latest person I spoke with, they said all the dismissals that went out in October 1, 2015 was actually a system glitch and notices did not go out.  She said that it technically wasn't filed by the clerk to dismiss due to inactivity, and she also said that doesn't mean that it won't happen either, it's just that all of the ones that went out in October 1, 2015 are invalid. 

So now that I know that isn't the case and the clerk did not dismiss it,  what course of action should I take? 

Should I wait this out, and wait for the clerk to file the motion to dismiss? 

Should I file my own motion to dismiss?  (I am nervous about this as that means I will have to go to court for this)

If I file my own motion to dismiss, and a trial date is set will we only speak on the motion I filed? Or can the plaintiff's attorney turn it into an actual trial?

 

I think I would just wait.

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@debtzapper   Yes I think I will just wait it out,  it has gone 3 years untouched, and hopefully it just stays forgotten especially with cach parent company filing for bankruptcy.  I will continue to keep a keen eye on it, and will update this thread with anything new that arises. 

 

Thanks again to everyone on here!

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This case has been pending for almost 4 years with no activity.  If this were me, I would be looking up the time frame allowed for a case to sit idle before it is supposed to be dismissed for want of prosecution and then I would be citing that rule in my motion to dismiss with prejudice and noting what must be many times more over the amount of time required by that rule to wait.

This is clearly an abandoned case.  I'm not one to just let it sit in limbo over my head in perpetuity.

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 Per the Rule

 

 (2)  Dismissal on Clerk's Motion.
	
    (A)  Notice. In all civil cases in which no action of record has occurred during the previous 12 months, the
clerk of the superior court SHALL notify the attorneys of record by mail that the court will dismiss the case for
want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or
files a status report with the court indicating the reason for inactivity and projecting future activity and a
case completion date.  If the court does not receive such a status report, it shall, on motion of the clerk,
dismiss the case without prejudice and without cost to any party.

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1 hour ago, spacejam said:

@debtzapper are you agreeing with @fisthardcheese or are you reaffirming your stance, and think I should maybe politely readdress this with the court's clerk?

 

If nothing has taken place within the time allowed for by the rules, address dismissal with the clerk.

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9 hours ago, BV80 said:

If nothing has taken place within the time allowed for by the rules, address dismissal with the clerk.

Yes.  The rules say the clerk SHALL etc, but then  court clerks don't always do what they are supposed to do.

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UPDATE: 

 

First off I would like to apologize for the lack of responses.  I did decide to leave it alone, and just wait it out and would periodically check on it online, and calling in to speak with the clerk. 

  • It looks like in September 2017 there was an ex parte disposition hearing to start the clock for want of prosecution.
  • September 2018 notice of dismissal went out, with 30 days to respond
  • October 2018 case closed dismissed without prejudice

 

This is now passed the SOL, so I should be okay with this now correct even though it was dismissed without prejudice??

 

Also I would like to thank everyone on this forum, you guys have been beyond a blessing with abundance of advice and information.  I could not have made it this far without you guys.

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Should be good to go. Of coarse they will probably sell it to a new guy who will think they can get a buck so they will send you a dunning letter. As long as they don't sue you, they can ask. You just tell them to never contact you about this debt again as it is out of SOL. Then you can work on an FDCPA case if they do. Congrats! :) 

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