Sued by Midland in OK by Love, Beal & Nixon

[BV80]

@saytar
 

 

Yes BV80 a motion to dismiss for lack of prosecution or action (refer to statutes for proper verbage under Time Limits for Actions). Think 6 months is long enough to wait???

 

 

That's based on one's statutes or court rules.  In some states, it's 6 months but, in others, it can be a year or two.  The OP needs to find the rule/statute.

[saytar]

KINTER v. BASKIN
1974 OK 36
520 P.2d 679
Decided: 03/19/1974
Supreme Court of Oklahoma

BURL KINTER, APPELLANT,
v.
ZADAH LEE BASKIN, APPELLEE.

 

Appeal from District Court of Tulsa County; Joe Jennings, Judge.

¶0 Motion by appellant, plaintiff in trial court, to vacate order of dismissal of action for lack of prosecution. Motion to vacate denied and plaintiff appeals.

Affirmed.

 

Frederick L. Boss, Jr., Tulsa, for appellant.

 

Joseph Lapan, Tulsa, for appellee.

HODGES, Justice.

 

¶1 In a tort action petition was filed by plaintiff and defendant demurred. The demurrer was overruled for failure by demurrant to present the matter. Defendant was given ten days to answer. No answer was ever filed. The cause in that state of the pleadings was set on a pre-trial docket. The pre-trial hearing was passed to the next pre-trial docket at plaintiff's request. On the next setting of the pre-trial defendant appeared by counsel but plaintiff did not. The trial judge thereupon on April 5, 1971, dismissed the action without prejudice for want of prosecution.

 

¶2 Fifteen months later plaintiff filed a motion to vacate the dismissal order. The motion was denied by the trial court and plaintiff appeals.

 

¶3 The time for filing a motion for a new trial or for lodging an appeal from the order of dismissal had elapsed, so the only avenue of review, if any, is by a motion to vacate under one of the provisions set out in 12 O.S. 1971 § 1031 et seq or by showing the judgment is void on its face.

 

¶4 A court has discretionary power to dismiss without prejudice a lawsuit for want of prosecution, or where a plaintiff fails to appear at a hearing or refuses to comply with an order concerning the proceeding. Goins v. Fox, Okl., 332 P.2d 220.

 

¶5 Plaintiff's position in the present case is that the court has no power to dismiss a lawsuit while the case is pending in default of an answer, and no authority to set the case on a pre-trial docket when it was not at issue. But this argument does not take into consideration the power of a court to regulate its docket and dispose of cases where there has been no activity or interest shown in prosecuting it. 12 O.S. 1971 §§ 682 , 683; Hambright v. City of Cleveland, Okl., 360 P.2d 493.

 

¶6 Admitting arguendo, the cause was not at issue and was inappropriately placed on the pre-trial docket when the court dismissed the action, it was nevertheless incumbent on the plaintiff to file a motion objecting to the pre-trial setting or appear and show cause why the case should be stricken. Plaintiff did neither even though he did appear at the first pre-trial, where without making any objections to the pre-trial setting, the case was passed at his request until the next pre-trial docket. Under these circumstances the setting of the case on the pre-trial docket did not render the subsequent dismissal void.

 

¶7 In addition to his failure to appear at the second pre-trial the plaintiff had also allowed the defendant to be in default of answer from July 6, 1970 until April 15, 1971, the date of dismissal. Surely these circumstances showed such a lack of interest in prosecuting the case that would invoke the discretionary powers of the court to dismiss the lawsuit. Then to wait fifteen months later before attacking the dismissal only solidifies the judgment of the trial court that the case should be dismissed for want of prosecution. Such dismissal without prejudice seems in this circumstance classically within the gambit of 12 O.S. 1971 § 682 .

 

¶8 The judgment of dismissal became res judicata when not appealed. The judgment refusing to vacate the order of dismissal is affirmed and costs in this court taxed to appellant.

¶9 DAVISON, C.J., WILLIAMS, V.C.J., and IRWIN, BERRY, LAVENDER, BARNES and SIMMS, JJ., concur.

[saytar]

@saytar

 

 

That's based on one's statutes or court rules.  In some states, it's 6 months but, in others, it can be a year or two.  The OP needs to find the rule/statute.

True.............haven't found OK yet, but most other jurisdictions say 10 months with a 60 day grace period for opponent to file something or object.

 

Personally I'd start pushing on the Motion to Compel.........................force them to either dismiss or settle......they'll never get the signed CC agreement. And JAMS will only hold the case open 60-90 days tops before closing it and you'd have to refile with them again...no loss no gain, but it IS a lever to get the plaintiff to dismiss as going to arbitration with the court requiring the CC agreement, the lack of production at either venue should torpedo the case. An arb decision for the plaintiff would be appealable when trying to domesticate that judgment if it was in conflict with state law......JAMS has to follow the rules as closely as possible.......discovery is very relaxed in arb, but the laws have to be generally followed.......

 

Only advantage to pushing it for arb is to get them in ARB before they could get the CC agreement.............which their not going to get anyway, its not there to get.

 

Or maybe a better course is to sit tight...................................let JAMS close case.......it's not hard to just refile it. Let them stew or ask/push them to an agree to a joint motion for dismissal with predjuice.

[shellieh98]

Well you only mentioned arbitration. If they do anything to try and get the case going again, I would again amend my answer, get an agreement and compel arb with JAMS. Do it if they try and move forward.

[pureguava]

@BV80

 

I was referring to whatever motion/thing I could do. They've been sitting on this since they filed Req for Interog, except some inquiry about if I was in the military, for 2 or 3 months. I was hoping there was something I could file to force them to do something or it be dropped, or start that process/time limit. I don't like the fact that there is some open and looming suit against me.

 

@saytar

 

Yes, in the recording they mentioned (2 or 3 times) that they requested it from their home office/previous creditor/original person and how long ago they requested it.

 

@shellieh98

 

That was my thought behind it. My beliefs were that, if they knew I was looking/trying at filing, they would have done something in response to their knowledge of it.

 

 

I haven't been able to find anything in the statues or rules.

[saytar]

Well you only mentioned arbitration. If they do anything to try and get the case going again, I would again amend my answer, get an agreement and compel arb with JAMS. Do it if they try and move forward.

 

Very good advice.

While their in standby mode, I'd be getting a copy of the agreement and get everything together to file with JAMS (or refile, whatever) including my motion to compel. Be ready to move pretty quick.

 

@BV80

 

I was referring to whatever motion/thing I could do. They've been sitting on this since they filed Req for Interog, except some inquiry about if I was in the military, for 2 or 3 months. I was hoping there was something I could file to force them to do something or it be dropped, or start that process/time limit. I don't like the fact that there is some open and looming suit against me.

 

Their working on trying to get you to doubt yourself...............cat and mouse game. LB&N plays this when they are trying to make Lemonade out of Lemons. They've got your InterRogs right? Their trying to figure just when and how to File their MSJ. Get your ARB motion ready and start leaning about MSJ and what they have to prove to get it.......................then you know what things you will need to be versed on to oppose that motion,,,,sometimes a judge won't go for the ARB (this IS appealable all on its own as it is a determination on the venue of the action), it is better to keep the Arb hearing separate from the MSJ. Read up on the ways and items that need to be attacked (which is usually everything they submitt), Don't just sit hoping.....................that's what the would like you to do, just sit not prepare. Read over the rules of evidence, what is required for a business record to be a true business record, learn the determination of heresay and the exceptions allowed.

 

@saytar

 

Yes, in the recording they mentioned (2 or 3 times) that they requested it from their home office/previous creditor/original person and how long ago they requested it.

 

Make a written transcript of this conversation, have a friend listen and type it up and notorize with their signature..............a recording by and of itself is not admissible in court......a written transcript backed up by a recording is and if included in the case file will follow it to Apeals court if that is necessary..

 

@shellieh98

 

That was my thought behind it. My beliefs were that, if they knew I was looking/trying at filing, they would have done something in response to their knowledge of it.

 

Hate to say it but wish in one hand and do #2 in the other, see which gets full first     ..................truth is they really don't care. They will normally just shoot both barrels at a bunch of accounts and hope they all fall over. I am doubting that at this early stage in the cat and mouse game that they will just up and fold. They just haven't gotten around to your case yet. I've looked at their case's on OSCN.net in the past, sometimes they will not move for some reason on some cases for months......even over a year. Remember they file hundreds of these every month scattered around in most nearly all the 77 counties. So don't feel left out, they''ll get around to you.

 

Once they do things will tend to move along rather quickly.......its hard to play catchup so use this time wisely to learn and prepare.....I knew some of my creditors would sell off the accounts and someone would eventually file. I have been constantly reading article, statutes, case law, lurking on boards, etc for around 2 yrs while waiting for the hammer to drop on some. 2 1/2 yrs later boom, hammer fell. ALL of these JDB's are pretty predictable.......if they have a method that works (right, wrong or screwball) they keep using it until it starts a losing streak......and then they are sometimes slow to improve. They are all just Judgment Mills, cranking them out by the hundreds yearly......most of the REAL work is done by their hired paralegals or 3-4th yr law students. The attorney usually makes limited input.....their are too many case's for one or two attorneys to really pay much attention to all of them..or even a good percentage. Their too busy being prima donna's in court and letting the judge win on the golf course...................

 

 

I haven't been able to find anything in the statues or rules.

 

Oklahoma plays somewhat hard a fast with the rules......some are very obtuse and still not very well organized still (over a hundred years of statehood and still jumbled) and 2 & 3 careful readings are sometimes needed to "understand the arcane statutes". So don't worry and stew and use your gifted time wisely........... I'd be more directed towards learning how to respond to any objections to an arb motion, how to properly respond to their MSJ and evidence, AND IMPORTANTLY how to properly object to their evidence and motion to exclude or strike it...preserve the right to Appeal those items by doing so, than worrying about how to make it go away painlessly...rarely every happens and when it does its a gift from the gods of Litigation.

 

If you've done a good job on working your case and getting objections and good arguments in the case file, then an Appeal if needed, don't sweat it................filing the de novo (accelerated appeal) in OK is not hard and will mostly consist of the work and documents you have done in the trial court. The main issue is proper form of submission and meeting the time restraints.

 

If you've done your homework right and have to fight it out in court and something happens (like a clueless hicky OK judge) then you have at least a good shot of appealing and getting 3 other judges to re-examine it. There are absolutely No guarantees on winning that either, but the better your arguments on the statutes and case law and the more people review it, the better your chances to finally prevail. Basically go from a not fighing 0% chance to a 10% chance half way fighting, to a minimum 50% chance doing it better....a five fold increase.

 

Also, I'm doubting that this is the ONLY account in default........so any preparation you make on this one can mostly be used on any following suits with suitable adjustment for specifics. So the time is not really wasted.

 

So pop a top, enjoy........get a good nights rest and get up and start preparing, just do an hour or two a day of reading preparing, don't over amp the brain. Every day or week that goes by without hearing from them is increasing the chances other matters or case's will become more "important" than yours.

 

And I wouldn't do much if any more talking with them...........they gain more information about you and your possible actions in such discussion's than you realize.