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Robby8900

Friend filed motion to dismiss for failure to prosecute

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This is interesting. A friend was sued by Jefferson Capital Systems regarding a debt they purchased over a car loan. My friend and his wife were jointly sued, on April 22, 2019, and never answered the complaint. The loan agreement does have an arbitration clause stating all disputes or breach of contract are to be resolved by arbitration with AAA. I, understand they should have answered and filed a MTC and stay the proceedings, however they did not. The plaintiff's attorney never filed default judgement, and on July 23rd, the court sent the plaintiff's attorney a ''Status Notice/Warning Issued To Plaintiff/Atty''; for those who don't know what that is, its a warning that the court is going to dismiss the case for want of prosecution, and that the attorney needs to file default judgment along with the affidavit of competent witness. As of today, 30+ days since the court noticed the attorney my friend filed a motion to dismiss for failure to prosecute.

I went to the court house with him, and when he began speaking to the clerk about filing the motion, the clerk stated that he was not allowed to file the motion to dismiss because the 28 day is past and he had not answered the complaint. I look at my friend and said "did you see that written any where in Rule 41" then she looked at me and down at the motion and said hold on i will be right back. About 4 minutes later she returned and told him he was allowed to file the motion so he did and we left. What are the chances that he could get the motion granted, after the court noticed the attorney and he hasn't filed for the default as of today?

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We had court dismiss for lack of prosecution on a credit card debt. At the time our lawyer advised "laying low" (like not refinancing house, etc.) because the longer the plaintiff waited to "reopen" the case, the less likely it was for the court to grant them leeway. Eventually they did try to reopen the case and their request was denied. In our case SOL had expired, so plaintiff needed to get the original case re-instated. In your situation they may just be able to refile.

 

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1 hour ago, Goody_Ouchless said:

We had court dismiss for lack of prosecution on a credit card debt. At the time our lawyer advised "laying low" (like not refinancing house, etc.) because the longer the plaintiff waited to "reopen" the case, the less likely it was for the court to grant them leeway. Eventually they did try to reopen the case and their request was denied. In our case SOL had expired, so plaintiff needed to get the original case re-instated. In your situation they may just be able to refile.

 

If it gets dismissed, and they refile, then he can answer and file MTC arbitration.

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Right - so you want to find whatever your statutes say about reopening rather than refiling. In our case, when they did wake up, they argued rules from Justice Court, even though the case was in Superior, which apparently was't a good look as far as the judge was concerned.

 

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On 8/26/2019 at 7:12 PM, Goody_Ouchless said:
 

Right - so you want to find whatever your statutes say about reopening rather than refiling. In our case, when they did wake up, they argued rules from Justice Court, even though the case was in Superior, which apparently was't a good look as far as the judge was concerned.

 

Question, if the plaintiff's attorney fails to respond to the motion to dismiss for failure to prosecute within 14 days, will the plaintiff be barred from opposing the motion after the time has passed, pursuant to Ohio Civ. R. 6(C)(1) which states:

   ''Responses to a written motion, other than motions for summary judgment, may be served within fourteen days after service of the motion''. http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

The court did set a hearing date to hear the motion. here is a copy of my friends motion. As of today the plaintiff's attorney has not filed a response nor a default judgement.

motion to dismiss failure to prosecute.pdf

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It all depends on how your court operates. In Civil matters they tend to be more flexible with deadlines, etc. In this case, thought, it seems like plaintiff has lost interest - I think in our case the lead attorney quit, so everything got "lost" until new lawyer took over, and by then it was too late.

 

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On 9/5/2019 at 11:33 AM, Goody_Ouchless said:

It all depends on how your court operates. In Civil matters they tend to be more flexible with deadlines, etc. In this case, thought, it seems like plaintiff has lost interest - I think in our case the lead attorney quit, so everything got "lost" until new lawyer took over, and by then it was too late.

 

My friend filed an affidavit into his case, based on a non response to his motion from the plaintiff's attorney

 

Affidavit-1.pdf

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The attorney filed a response in opposition to my friends motion to dismiss yesterday. However, it is past the time for motion responses. How do ya deal with that in the reply?

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File an opposition motion and cite whatever statutes/rules talk about the time limit. Also see if there is anything in the rules about exceptions to the rules about Failure to Prosecute. In our case the rules stated that "Settlement Negotiations" where among things that were NOT good reasons for failure to prosecute, and we had been in settlement negotiations, so that was highlighted in our motion to oppose.

Also point out the length of time that has elapsed - our lawyer said it's one thing if they are a day late in responding, but another if they let a couple months go by, for example.

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On 9/25/2019 at 7:30 PM, Goody_Ouchless said:
 

File an opposition motion and cite whatever statutes/rules talk about the time limit. Also see if there is anything in the rules about exceptions to the rules about Failure to Prosecute. In our case the rules stated that "Settlement Negotiations" where among things that were NOT good reasons for failure to prosecute, and we had been in settlement negotiations, so that was highlighted in our motion to oppose.

Also point out the length of time that has elapsed - our lawyer said it's one thing if they are a day late in responding, but another if they let a couple months go by, for example.

The plaintiff's attorney filed a response after defendant filed affidavit in support of motion to dismiss. Mind you the defendants' never answered the complaint, but the attorney brought up the arbitration clause stated in the affidavit, arguing sub judice that the Retail Installment Contract was separate from the Purchase Agreement that contained the arb clause, and never argued that they failed to answer within 28 days of service. Here is the attorney's response.  

 

Attorney response to motion to dismiss complaint.pdf

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On 9/25/2019 at 7:30 PM, Goody_Ouchless said:

File an opposition motion and cite whatever statutes/rules talk about the time limit.

I had to point this out in my case against LVNV. Everything they did was late, so I had to point that out to the judge. In turn, because I pointed that out, he had no choice but to allow my motion to reply. It works out well when you hold the other side accountable on the record.

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2 hours ago, Robby8900 said:

The plaintiff's attorney filed a response after defendant filed affidavit in support of motion to dismiss. Mind you the defendants' never answered the complaint, but the attorney brought up the arbitration clause stated in the affidavit, arguing sub judice that the Retail Installment Contract was separate from the Purchase Agreement that contained the arb clause, and never argued that they failed to answer within 28 days of service. Here is the attorney's response.  

 

Attorney response to motion to dismiss complaint.pdf 674.2 kB · 3 downloads

The attorney may have an argument depending upon the language in the two agreements.  We would need to see them. 

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34 minutes ago, Robby8900 said:

Friend just sent me this draft reply he is working on to file. here its is and original complaint.

Porter Reply.pdf 102.64 kB · 2 downloads

Complaint.pdf 3.77 MB · 1 download

It can be argued that if the company had desired arbitration to apply to the retail installment agreement, it could have easily included the provision in that agreement.  We would need to see the terms in the purchase agreement in order to try to determine the context of the reference to the retail installment agreement.  

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11 minutes ago, BV80 said:
 

@Robby8900

In addition to my last post, we would also need to see the arbitration provision.

Go to the complaint and scroll down to Exhibit ''A''. The clause is in a box on the left side of page half way down.

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2 minutes ago, Robby8900 said:

Go to the complaint and scroll down to Exhibit ''A''. The clause is in a box on the left side of page half way down.

Will do.  BTW, what about this part of the attorney’s response to the MTD?

“The Court issued its ‘Status/Warning Notice’ to the Plaintiff on or about July 23, 2019.   This Notice provided Plaintiff Notice to proceed with prosecuting this case on or before October 22, 2019.  Therefore, the Defendant’s Motion is premature and must be denied as the Plaintiff still has time to prosecute its claim.”  

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1 minute ago, BV80 said:
 

Will do.  BTW, what about this part of the attorney’s response to the MTD?

“The Court issued its ‘Status/Warning Notice’ to the Plaintiff on or about July 23, 2019.   This Notice provided Plaintiff Notice to proceed with prosecuting this case on or before October 22, 2019.  Therefore, the Defendant’s Motion is premature and must be denied as the Plaintiff still has time to prosecute its claim.”  

Here is the Pa terms #16 references the installment contract on exhibit ''A'' bottom of page. He never answered the complaint, so this arb argument is beyond defense pleadings.

PA Terms and conditions.pdf

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13 minutes ago, Robby8900 said:

Go to the complaint and scroll down to Exhibit ''A''. The clause is in a box on the left side of page half way down.

I’m sorry, but I don’t see the arbitration provision.

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5 minutes ago, Robby8900 said:

Thank you.  I would reference the first sentence of the arbitration provision.. 

“Any controversy, dispute, or claim arising out of or relating to the purchase, finance, or warranty of this motor vehicle...”

The purpose of the Retail Installment Agreement was to finance the vehicle, correct?  

Since your friend is the party asserting that arbitration applies to the Retail Installment Agreement, he probably needs to find OH case law supporting his incorporation claim.

Any insight on the part of the attorney’s response that I cited?  Did the notice give the plaintiff until October 22 to proceed with its prosecution of the lawsuit?

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3 minutes ago, BV80 said:

Thank you.  I would reference the first sentence of the arbitration provision.. 

“Any controversy, dispute, or claim arising out of or relating to the purchase, finance, or warranty of this motor vehicle...”

The purpose of the Retail Installment Agreement was to finance the vehicle, correct?  

Since your friend is the party asserting that arbitration applies to the Retail Installment Agreement, he probably needs to find OH case law supporting his incorporation claim.

Any insight on the part of the attorney’s response that I cited?  Did the notice give the plaintiff until October 22 to proceed with its prosecution of the lawsuit?

Correct on Retail Installment Agreement was to finance the vehicle. i have not seen the notice but i assume it did.

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5 minutes ago, BV80 said:

Thank you.  I would reference the first sentence of the arbitration provision.. 

“Any controversy, dispute, or claim arising out of or relating to the purchase, finance, or warranty of this motor vehicle...”

The purpose of the Retail Installment Agreement was to finance the vehicle, correct?  

Since your friend is the party asserting that arbitration applies to the Retail Installment Agreement, he probably needs to find OH case law supporting his incorporation claim.

Any insight on the part of the attorney’s response that I cited?  Did the notice give the plaintiff until October 22 to proceed with its prosecution of the lawsuit?

And it show the assignment of the Retail Installment Contract to Exeter Finace Corp,

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14 minutes ago, Robby8900 said:

i have not seen the notice but i assume it did.

If it did give the plaintiff until October 22, the attorney is correct that your friend’s MTD for failure to prosecute was premature.  

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18 minutes ago, BV80 said:

If it did give the plaintiff until October 22, the attorney is correct that your friend’s MTD for failure to prosecute was premature.  

I agree, but he did bring up the arbitration mentioned in the affidavit, without stating that the defendant failed to answer the complaint or assert arbitration as an ''affirmative Defense''. As you see, he made the arbitration most of the response, without denying or objecting to it. He attempting to separate that arb clause to avoid the issue of arbitration.

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