Author Topic: Discover Filed  (Read 958 times)

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CleaningUp

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Re: Discover Filed
« Reply #15 on: August 10, 2018 03:42:22 AM »
If  you haven't been served, the suit hasn't been joined.  A suit that hasn't been joined cannot proceed.

But here's were problems can arise...Sewer service is one of the problems...They claim service but never actually did it.  Leaving it with someone at the last known address.  Nail-and-Mail service.  Even service by publication.

All of these can allow the court to proceed without a defendant, and the plaintiff gets a sneaky default judgement.

The answer to that would then be a motion to set aside for improper or no service.  That sort of motion is generally granted almost pro forma.  You'd get served right there in the court house, and the game would begin again.

MooKoo

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Re: Discover Filed
« Reply #16 on: August 10, 2018 04:18:12 AM »
I previously made a motion to dismiss ineffective service at a hearing of the merits for a suit filed by another major OC, which was granted/case dismissed, and they did not serve me in the courthouse during that hearing.

That was a different OC from Discover...

What if I make a motion to dismiss for ineffective service in writing & give it to the clerk a few days before the Discover hearing?

Bubbles

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Re: Discover Filed
« Reply #17 on: August 10, 2018 07:34:12 PM »
You could file a motion to dismiss for insufficiency of service of process.

I think the precise motion would actually be: Motion to quash insufficiently served process.

But that appearance would show that you were at least aware of the existence of the process.

Which would subsequently be sufficiently served.

And you would then have to proceed with your defense to avoid a default judgment.


« Last Edit: August 10, 2018 07:52:08 PM by Bubbles »

Bubbles

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Re: Discover Filed
« Reply #18 on: August 10, 2018 10:11:37 PM »
Also

If you just want to harrass plaintiff, go for it.

But you may end up harrassing yourself for no real gain.

//

You can't just hand clerk a written motion and run.

You file a motion with the court - and you'll have to certify under penalty of perjury that you served plaintiff with a copy of your motion.

And then there is the matter of scheduling a hearing.

All of which is fine, but will not be despositive of your case.



« Last Edit: August 10, 2018 10:20:17 PM by Bubbles »

MooKoo

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Re: Discover Filed
« Reply #19 on: August 11, 2018 12:47:42 AM »
In a prior case I made a motion during the hearing of the merits to dismiss for insufficient service and it was granted. The case was dismissed that day and the OC did not serve me with a warrant in the courtroom...

So it looks like avoiding service & not showing up to the hearing is a good defense at this point as the statute of limitations will soon run out.

Would you recommend not showing up to the initial hearing of the merits and hoping the judge enters a not served?

Bubbles

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Re: Discover Filed
« Reply #20 on: August 11, 2018 03:36:42 AM »
Ok,  so did they subsequently serve you?


In a prior case I made a motion during the hearing of the merits to dismiss for insufficient service and it was granted. The case was dismissed that day and the OC did not serve me with a warrant in the courtroom...

MooKoo

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Re: Discover Filed
« Reply #21 on: August 11, 2018 04:39:10 AM »
No they did not ever serve me for that case.

Bubbles

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Re: Discover Filed
« Reply #22 on: August 11, 2018 04:48:46 AM »
By a fluke?

Or because you were hiding out?

Bubbles

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Re: Discover Filed
« Reply #23 on: August 11, 2018 05:33:09 AM »
Also, how many times have you been told:

SOL clock ticks from date of accrual to date action filed.

Then SOL clock is tolled.


MooKoo

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Re: Discover Filed
« Reply #24 on: August 11, 2018 09:29:38 PM »
Which case are you saying the SOL clock is tolled for?

And yes, maybe by fluke but I have also been sort of 'hiding' out since that time:)

Bubbles

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Re: Discover Filed
« Reply #25 on: August 11, 2018 10:08:52 PM »
Do you understand:

The SOL clock is tolled.


In a prior case I made a motion during the hearing of the merits to dismiss for insufficient service and it was granted. The case was dismissed that day and the OC did not serve me with a warrant in the courtroom...

So it looks like avoiding service & not showing up to the hearing is a good defense at this point as the statute of limitations will soon run out.

Would you recommend not showing up to the initial hearing of the merits and hoping the judge enters a not served?

MooKoo

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Re: Discover Filed
« Reply #26 on: August 12, 2018 06:00:05 PM »
In that previous court date the case was dismissed so I don't think the SOL clock is tolled on that account.

Clydesmom66

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Re: Discover Filed
« Reply #27 on: August 12, 2018 06:19:28 PM »
The other case has NOTHUNG to do with this one. Stop bringing it up.  The SOL on the current cse is TOLLED.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bubbles

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Re: Discover Filed
« Reply #28 on: August 12, 2018 07:35:57 PM »
+1

Exactly.

But I wonder if OP has the following probably erroneous two part strategy:

1. After suitable delay, quash insufficiently served process.

2. Then invoke SOL for dismiss with prejudice if subsequently sufficiently served.

I'll let forum take over as to defects in both 1. and 2.

The other case has NOTHUNG to do with this one. Stop bringing it up.  The SOL on the current cse is TOLLED.
« Last Edit: August 12, 2018 07:56:45 PM by Bubbles »

Bubbles

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Re: Discover Filed
« Reply #29 on: August 12, 2018 07:53:23 PM »
And related:

What happens in case of dismiss w/o prejudice at a time more than SOL after accrual of action?

Does tolling protect plaintiff from defendant immediately invoking SOL defense?

For example, suppose action accrues 1 day less than SOL at time plaintiff files.

A month later defendant served.

Six months hence defendant wins motion to dismiss w/o prejudice.

Can plaintiff refile complaint that day to avoid SOL defense?

 

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