Sign in to follow this  
HarryGotHurt

I'm being sued. Filing Motion To Dismiss in Florida?

Recommended Posts

I found out I was sued months after the filing was done by a random records search of my name. This is what the sue reads:

 

COUNT-I OPEN ACCOUNT

1.     This is an action for damaged which do not exceed $5,000

2.     The defendant made purchases of various and diverse consumer goods and/or effected cash advances through the use of his credit account from the Plaint on Account Number XXXXXX

3.     Defendant has faulted to pay the balance due on the account

4.     Defendant(s) owe(s) the Plaintiff $xxxx.xx that is due according to the attached account (Exhibit A)

 

WHEREFORE, Plaintiff demands judgement against the Defendant(s) for damages of $XXXX.XX and any further relief this court deems just and proper.

 

COUNT-II ACCOUNT STATED

5.     Plaintiff repeats and realleges the allegations of paragraph 1 and 2 as if fully set forth herein.

6.     Before the institution of this action Plaintiff and Defendant has business transactions between them and they agreed to the resulting balance.

7.     Plaintiff rendered a statement of account to Defendant and Defendant did not object to the statement.

8.     Defendant(s) owe(s) the Plaintiff $xxxx.xx that is due according to the attached account (Exhibit A)

 

WHEREFORE, Plaintiff demands judgement against the Defendant(s) for damages of $XXXX.XX and any further relief this court deems just and proper.

 

I have not been served for this. This was originally filed two years ago and its still open. The Plaintiff has attempted to serve me a few times but has failed to do so.

Would my response to the lawsuit or a filing a motion to dismiss be considered 'serving myself'?

This is less than $1500, should I consider the arbitration route?

 

DEFENDANTS MOTION TO DISMISS PLAINTIFF'S COMPLAINT


Comes now the defendant, Boisvert, pro se, pursuant to Florida Rules of Civil Procedure and moves this Honorable Court an order dismissing Plaintiff’s Complaint on one or more grounds stated as follows.

1.     Plaintiff, JDB LAWFIRM, filed the lawsuit against the defendant, on or about Month xx, 2015 for Open Account and Account Stated Claim. 

 

2.     Plaintiff failed to attach a contract and/or signed contract between Plaintiff and Defendant. The Documents attached and denoted as Exhibit A to the Amended Complaint are insufficient and do not establish a contractual relationship as the terms are missing.

 

3.     Count-I Open Account fails to state a cause of action as this claim states the existence of a contract . Open Account fails to state a cause of action. In order to state a valid claim of an open account, the plaintiff must attach an itemized copy of the account. Moor vs Boyd, 62 So.2d 427 (Fla 1952)

 

4.     Plaintiff Lack of Service. FRCP 1.070 (j) states that a complaint must be served upon the defendant within 120 days after the complaint is filed. If it is not served within this time frame, a motion to dismiss is appropriate.

 

This is what I have so far. Im hoping @LawKittyand @debtzapper or anyone can help. 

Share this post


Link to post
Share on other sites
On 10/8/2018 at 8:02 AM, Boisvert said:

I found out I was sued months after the filing was done by a random records search of my name. This is what the sue reads:

 

COUNT-I OPEN ACCOUNT

1.     This is an action for damaged which do not exceed $5,000

2.     The defendant made purchases of various and diverse consumer goods and/or effected cash advances through the use of his credit account from the Plaint on Account Number XXXXXX

3.     Defendant has faulted to pay the balance due on the account

4.     Defendant(s) owe(s) the Plaintiff $xxxx.xx that is due according to the attached account (Exhibit A)

 

WHEREFORE, Plaintiff demands judgement against the Defendant(s) for damages of $XXXX.XX and any further relief this court deems just and proper.

 

COUNT-II ACCOUNT STATED

5.     Plaintiff repeats and realleges the allegations of paragraph 1 and 2 as if fully set forth herein.

6.     Before the institution of this action Plaintiff and Defendant has business transactions between them and they agreed to the resulting balance.

7.     Plaintiff rendered a statement of account to Defendant and Defendant did not object to the statement.

8.     Defendant(s) owe(s) the Plaintiff $xxxx.xx that is due according to the attached account (Exhibit A)

 

WHEREFORE, Plaintiff demands judgement against the Defendant(s) for damages of $XXXX.XX and any further relief this court deems just and proper.

 

I have not been served for this. This was originally filed two years ago and its still open. The Plaintiff has attempted to serve me a few times but has failed to do so.

Would my response to the lawsuit or a filing a motion to dismiss be considered 'serving myself'?

This is less than $1500, should I consider the arbitration route?

 

DEFENDANTS MOTION TO DISMISS PLAINTIFF'S COMPLAINT


Comes now the defendant, Boisvert, pro se, pursuant to Florida Rules of Civil Procedure and moves this Honorable Court an order dismissing Plaintiff’s Complaint on one or more grounds stated as follows.

1.     Plaintiff, JDB LAWFIRM, filed the lawsuit against the defendant, on or about Month xx, 2015 for Open Account and Account Stated Claim. 

 

2.     Plaintiff failed to attach a contract and/or signed contract between Plaintiff and Defendant. The Documents attached and denoted as Exhibit A to the Amended Complaint are insufficient and do not establish a contractual relationship as the terms are missing.

 

3.     Count-I Open Account fails to state a cause of action as this claim states the existence of a contract . Open Account fails to state a cause of action. In order to state a valid claim of an open account, the plaintiff must attach an itemized copy of the account. Moor vs Boyd, 62 So.2d 427 (Fla 1952)

 

4.     Plaintiff Lack of Service. FRCP 1.070 (j) states that a complaint must be served upon the defendant within 120 days after the complaint is filed. If it is not served within this time frame, a motion to dismiss is appropriate.

 

This is what I have so far. Im hoping @LawKittyand @debtzapper or anyone can help. 

SEND LAWKITTY A PM.

Share this post


Link to post
Share on other sites

This is something you have to be careful about.

In some situations, this can be thrown out for lack of service.  In many jurisdictions, after some period of time the court will automatically dismiss the case without prejudice for lack of prosecution.  

In SOME cases moving for a dismissal w/o prejudice for lack of service within two years will work.  However, every judge is different.  Some judges will think you are just a deadbeat and deserve whatever blah blah blah, and will say you have been properly served because you found out about the case.  That may or may not fit in with the law, but judges often ignore laws they don't like.  

In some situations it may be best to let a sleeping dog lie.  If they haven't served you, and they haven't done a publication service, and they haven't moved for a default judgment, then they will probably just let this one be until the court finally throws out the case.  If they don't know where you are, then they might not file again.  They may just let the case die.  This has been known to happen.  If you fight it, then they will know where you are, and they might prosecute this case or refile with your current address.  

I certainly can NOT give you any legal advice, and if I could I wouldn't know your state very well at all.  In my state I can follow all the actions of a case online.  In my state I could see if they are doing a publication service (not even sure if that is a thing in your state).  In my state I could see if they are filing for a default judgment.  In fact, in one case a plaintiff DID file for a default judgment against me, and the judge threw it out with a disgusted look on his face, since I had done everything required in my state for a publication service.  

Share this post


Link to post
Share on other sites
16 hours ago, debtzapper said:

SEND LAWKITTY A PM.

I did. She hasn't answer. Can you PM me her contact details, if available? 

Share this post


Link to post
Share on other sites
4 hours ago, BackFromTheDebt said:

This is something you have to be careful about.

In some situations, this can be thrown out for lack of service.  In many jurisdictions, after some period of time the court will automatically dismiss the case without prejudice for lack of prosecution.  

In SOME cases moving for a dismissal w/o prejudice for lack of service within two years will work.  However, every judge is different.  Some judges will think you are just a deadbeat and deserve whatever blah blah blah, and will say you have been properly served because you found out about the case.  That may or may not fit in with the law, but judges often ignore laws they don't like.  

In some situations it may be best to let a sleeping dog lie.  If they haven't served you, and they haven't done a publication service, and they haven't moved for a default judgment, then they will probably just let this one be until the court finally throws out the case.  If they don't know where you are, then they might not file again.  They may just let the case die.  This has been known to happen.  If you fight it, then they will know where you are, and they might prosecute this case or refile with your current address.  

I certainly can NOT give you any legal advice, and if I could I wouldn't know your state very well at all.  In my state I can follow all the actions of a case online.  In my state I could see if they are doing a publication service (not even sure if that is a thing in your state).  In my state I could see if they are filing for a default judgment.  In fact, in one case a plaintiff DID file for a default judgment against me, and the judge threw it out with a disgusted look on his face, since I had done everything required in my state for a publication service.  

It has been on the docket for over 2 years now. 2 years and several months just lingering there without any action. Last action by the Plaintiff was over 6 months ago. I can see all the actions online but I figure the court with drop the case by now for lack of service yet it's still there.

Share this post


Link to post
Share on other sites
2 hours ago, Boisvert said:

It has been on the docket for over 2 years now. 2 years and several months just lingering there without any action. Last action by the Plaintiff was over 6 months ago. I can see all the actions online but I figure the court with drop the case by now for lack of service yet it's still there.

You would expect that.  Sometimes courts forget about these cases.  Sometimes this is done based on the last action.  Usually if it is over 6 months, the case is eligible to be dropped.  Probably at some point in the next few months the court will send the Plaintiff a letter saying "hey, give us some reason not to drop this case."  At that point, the Plaintiff will have to actually DO something, or else the case is dropped.  At that point they can either file it again, or let it sit until the SOL drops off.  

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this