loribebe

Summary Judgment- Motion to dismiss

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I am being sued by in Minnesota. I was served Summons and Complaint in October of 2012. I answered and then recieved Interogs/Discovery in August of 2013. I responded to everything in a timely manner. I did not ask for discovery. They filed with the court on December 9th and recently served me with all the pleadings for a Summary Judgment. I have quite a stack of paperwork.

 

In sum, the action was commenced (I was served by process server) on October 9th of 2012 and they filed with the court on December 9th, 2013. I think they missed their deadline. Could it really be this easy? The rule was ammended as of July 2013. Maybe they missed it?

 

File a motion to dismiss as a matter of law?

 

Minn. R. Civ. P.

 

5.04 Filing; Certificate of Service

Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period. This paragraph does not apply to family cases governed by Rules 301 to 378 of the General Rules of Practice for the District Courts.

All documents after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, except disclosures under Rule 26, expert disclosures and reports, depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless upon order of the court or for use in the proceeding.

The administrator shall not refuse to accept for filing any documents presented for that purpose solely because it is not presented in proper form as required by any court rule or practice. Documents may be rejected for filing if tendered without a required filing fee or a correct assigned file number, or are tendered to an administrator other than for the court where the action is pending.

(Amended effective March 1, 1994; amended effective January 1, 1997; amended effective March 1, 2001; amended effective September 1, 2012; amended effective July 1, 2013.)

 

 

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Not sure but I think they did. They filed within a year of commencement, correct?  Your words:  "they filed with the court on December 9th, 2013"

 

Now the fact that they have done nothing with the case in a year could be a reason to have the case dismissed, but I don't think that rule is referring to that.

 

I could be wrong, just how I read it.

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They filed everything, summon, complain, interogs, motion for summary judge, etc.. There was no court file number on any pleadings until after I got a notice from the court admin that they had filed on December 9 2013. I was served on November 2, 2012. This was the first time in over a year they filed with the court and the rule states:

 

Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period.

 

How else could you interpret this?

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Commencement is you being served. You were served and then they filed. They fulfilled their obligation to file within one year.

 

That being said, I agree that is they abandoned the case and ignored it for a year you may be able to get it dismissed. I just disagree that this rule is the one you want to use. I did a quick search through your rules and did not see it but I'm sure there is something in there. I forget how it is typically worded.

 

They filed for an MSJ in December. Did their discovery request in August have a case number? If so, (and it should) they must have filed before then.

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The served me/commenced the action in November of 2012. 13 months later they filed it with the district court. That's over a year. Am I missing something?

 

Yes.

 

You answered discovery in August of '13, 11 months later, correct?

 

My assumption is that the discovery had a case number. If so, that is given by the court, after they file, after you are served.

 

What they filed in December '13 was the MSJ, correct?

 

Check the discovery they sent you and see if it has a case number.

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Yes, in MN the commencement of the action is the service of the Summons and Complaint. This is a new ammendement to the rule, as of July 2013. I am guessing that this is a way for them to keep a handle on the junk debt buyers? In the past, they could file  years later and then.........who has records? maybe a little protection for us Minnesoootans......

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@loribebe

 

3.01

A civil action is commenced against each defendant:

(a) when the summons is served upon that defendant, or
(
b) at the date of acknowledgement of service if service is made by mail, or
© when the summons is delivered to the sheriff in the county where the defendant resides for service; but such delivery shall be ineffectual within 60 days thereafter the summons is actually served on that defendant or the first publication thereof is made.

5.04 Filing of Certificate of Service

Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period.

 

 

Discovery might not be considered an action.  You can't dismiss discovery requests.  It would appear that "action" refers to the lawsuit, or possibly a motion that must be filed.

 

Does your court require that discovery requests be filed with the court?  If not, "action" would have to refer to the lawsuit itself or a motion.  But since a motion to dismiss is a motion, I don't see how it could apply to a motion.  (Try saying 3 times really fast)


 

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It is is permanent. I just found the order from the MN Supreme court. It says that no action shall be involuntarily dismissed persuant to 5.04 until one year after its affective date....July 13, 2013. So there is my grandfather clause.......I don't think I can use it - bummer

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Here is what I found. Here is the link:

 

http://mn.gov/lawlib/archive/supct/9611/civpro.htm
 

5.04 Filing Certificate of Service

Upon the filing of any paper with the court, all papers required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter; but unless filing is ordered by the court on motion or upon its own initiative, depositions, interrogatories, requests to admit, and requests for production and answers and responses thereto shall not be filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of taking deposition need not be filed. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, except expert disclosures and reports, depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless upon order of the court or for use in the proceeding.

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