Can they "start" the lawsuit before proof of summons has been submitted?

[TigerD]

What did I miss?

Apparently the proper venue.

TD

 

[suitandtie]

Apparently the proper venue.

TD

Oh. And I need an attorney. You forget that part.

Am I supposed to amend my complaint to have the proper venue?

What about Q 1-4?

 

[TigerD]

Oh. And I need an attorney. You forget that part.

Am I supposed to amend my complaint to have the proper venue?

What about Q 1-4?

You are in over your head. Giving you any substantive advice - other than to seek the advice of counsel - would merely serve to help you dig your hole deeper.

I'm sorry you don't like that answer. But perhaps you should take it for what it is and not make a federal case out of it.

TD

 

[Mark Maroon]

Is there any case law on point about

1. Asking that the court adhere to it�s own rules about needing the proof of service, making them wait until I get this document done?
2. Does the govt have the right to download from pacer cases not served and start filing motions?
3. Do I have a right to request a motion for an extension of time on this basis? What case law is on point? .
4. Do I have a right to request a motion for an extension of time on the basis that I want representation? How much time might I get?

I agree with the other commenters that you are in over your head and if you don't get an attorney you are likely to be lucky if you get out of this case without having to pay their attorney's fees. As to you questions, perhaps my answers below will help show why you are in over your head...

1. Asking that the court adhere to it�s own rules about needing the proof of service, making them wait until I get this document done?
The rule for service says that you have 120 days to serve them. It says NOTHING about when they can respond. They can respond as soon as they know that you sued them (irrespective of when or how you think you served them).

2. Does the govt have the right to download from pacer cases not served and start filing motions?
Same answer as to #1. Yes, the defendant can download documents from the court docket for the case using PACER and start filing motions - irrespective of when you think that you served them or wanted to serve them or were going to serve them. If they found out from "a little birdie" that you filed against them, then they can download the complaint and file an answer or motion to dismiss immediately. They don't have to wait for you to "serve" them. They can "accept service" simply by saying that they received a copy of the complaint from the court on their own.

3. Do I have a right to request a motion for an extension of time on this basis? What case law is on point?
You have a right to request a motion for an extension of time, but your basis for the request appears to be that "I didn't want them to respond so quickly" and I personally don't think that is likely to be received well by the court.

4. Do I have a right to request a motion for an extension of time on the basis that I want representation? How much time might I get?
Same answer as to #3. You can request more time so you can get an attorney, and your request might be granted, but if their motion to dismiss for lack of venue makes sense to the court, then they're likely to grant the defendant's motion and not your motion for more time to get an attorney if they believe that your attorney won't be able to surmount their motion to dismiss anyway.

 

[suitandtie]

You can request more time so you can get an attorney, and your request might be granted, but if their motion to dismiss for lack of venue makes sense to the court, then they're likely to grant the defendant's motion and not your motion for more time to get an attorney if they believe that your attorney won't be able to surmount their motion to dismiss anyway.

Mark I cannot thank you enough for taking time to write this reply.

However, if what your saying is correct, the courts are messed up, for the Court would be deciding one motion on the basis of another without consideration of the opposing side's view. Consider the case in which only an attorney, not a pro se litigant, would be capable of arguing that venue is correct, and that the venue is correct, and that the motion to dismiss is wrong. In that case, the Court is essentially deciding to not allow the motion to oppose dismissal to be considered in deciding to deny a motion to extend time on that basis (that the complaint should be dismissed even though the Court has not heard the opposition yet).

Their motion to dismiss is due to an argument about venue, not merits. It argues that there are two more appropriate venues. So an attorney might argue the venue is correct or if not "convert" the motion to dismiss to a motion to transfer venue, which would indeed surmount their motion to dismiss, would it not?

If the case is dismissed can one file a motion to transfer afterwards? If so, how?

 

[FlyingRon]

However, if what your saying is correct, the courts are messed up. Consider the case in which only an attorney, not a pro se litigant, would be capable of arguing that venue is correct, and that the venue is correct, and that the motion to dismiss is wrong

The courts are not messed up. You filed the complaint, you are presumed to be properly represented when you filed the complaint. You can't go around later arguing you have inept counsel.
As stated, this sort of summary action on a motion typically occurs when there's no likely valid contest that the court envisions the opposing party could possibly bring up to be valid. You'll have to appear and make your case (possibly arguing for time to respond).

If the case is dismissed can one file a motion to transfer afterwards? If so, how?

If the case is dismissed without prejudice, you are at leave to refile it from scratch (hopefully this time in the correct venue).

 

[suitandtie]

Thank you very much FlyingRon. I have read your reply FlyingRon, but I guess I am not smart or knowledgeable enough to be persuaded from that. Deciding something without getting the other side intuitively seems wrong to me. The venue has merit IMO, some of the claims more than others, and have one lawsuit instead of two also makes sense to me personally in the spirit of judicial efficiency.

If the case is dismissed without prejudice, you are at leave to refile it from scratch (hopefully this time in the correct venue).

How much time does one have to do that after a dismissal if the original case was filed near the end of a deadline?

 

[TigerD]

Deciding something without getting the other side seems wrong to me. The venue has merit IMO.

1. You are not going to even get the issue before the court to be decided because you do not know what you are doing.
2. Your opinion is based on what legal training?
3. Several legally knowledgeable posters advised you to seek counsel. Federal court is not the place to stumble along blindly.

TD

 

[suitandtie]

1. You are not going to even get the issue before the court to be decided because you do not know what you are doing.
2. Your opinion is based on what legal training?
TD

I had just incorrectly thought that a purpose of the court system was that both sides could be heard. By bad.

"Several legally knowledgeable posters advised you to seek counsel. " i am not in disagreement whatsoever. that is the whole point of this post, to be able to get it. As I already reiterated a few times, see sentence 2 of my op. I think this has been stated in 80% of the "real" responses, but I guess it is a good idea to post yet again about this. I can't interview attorneys in the time to respond and attorneys need time to get up to speed about cases. That is why I am needing to file the extension for time or what ever under whatever rule pro se.

 

[quincy]

I had just incorrectly thought that a purpose of the court system was that both sides could be heard. By bad.

"Several legally knowledgeable posters advised you to seek counsel. " i am not in disagreement whatsoever. that is the whole point of this post, to be able to get it. As I already reiterated a few times, see sentence 2 of my op. I think this has been stated in 80% of the "real" responses, but I guess it is a good idea to post yet again about this. I can't interview attorneys in the time to respond and attorneys need time to get up to speed about cases. That is why I am needing to file the extension for time or what ever under whatever rule pro se.

If you are not in disagreement that you need to seek legal counsel, why are you still on this forum instead of sitting down with an attorney in your area right now? You are wasting time, of which you have little.

An attorney does not need much time to get up to speed on what you need to do right now to salvage your case (if it is salvageable). The attorney can help you respond to the motion to dismiss by filing an opposition (if warranted) and the attorney can try to untangle the mess you have already made of your case.

If you are serious about pursuing your case against the government, in other words, stop playing on the internet and get into an attorney's office now.

Good luck.

 

[tranquility]

What did I miss?

In your complaint, you should have said why the court had jurisdiction for your claim, the parties, and also a section on why venue was appropriate where you filed. What was your statement of venue?

If you did not include one, you better start studying or get an attorney immediately. Because, the court can either dismiss or transfer the case to the proper venue if it finds such a transfer is in the interest of justice. On a bare complaint (If you did not follow formalities like claims of jurisdiction or venue.), I don't see the court finding for you in the interest of justice.

Info edit:
As to the specific questions, I think Mark Maroon answered them completely.

 

[suitandtie]

In your complaint, you should have said why the court had jurisdiction for your claim, the parties, and also a section on why venue was appropriate where you filed. What was your statement of venue?

If you did not include one, you better start studying or get an attorney immediately. Because, the court can either dismiss or transfer the case to the proper venue if it finds such a transfer is in the interest of justice. On a bare complaint (If you did not follow formalities like claims of jurisdiction or venue.), I don't see the court finding for you in the interest of justice.

Thanks for your reply tranquility.

Yes, I had a tiny argument about venue. A few sentences. The motion was 9 pages about why they think it is wrong, however, there are a few holes in what they say IMO. I think some of the claims are best for dc and some could arguably be in another district, but the motion just argues that dc is 100% wrong. It is to be expected since a dismissal is what they want.

 

[tranquility]

Thanks for your reply tranquility.

Yes, I had a tiny argument about venue. A few sentences. The motion was 9 pages about why they think it is wrong, however, there are a few holes in what they say IMO. I think some of the claims are best for dc and some could arguably be in another district, but the motion just argues that dc is 100% wrong. It is to be expected since a dismissal is what they want.

While I understand why you answered as you did (Keeping things private by disclosing as little as possible.), it really was not helpful. I asked what your statement of venue was. You came back with your opinion about there being some disagreement. A statement of venue does not need to be much. Something like:
"The incidents upon which this action is based occurred in the District of Columbia." or, more completely
"Venue is proper pursuant to 28 U.S.C. §1291(e) because the alleged wrongs occurred within the District of Columbia. Plaintiff resides, and the defendant officers at all times material herein were stationed within the District of Columbia."

Now, the reason I reply your response was not helpful is because if you keep trying to think rather than follow directions, you will not get past this stage. (Especially if you are up against some limitations issues.) As all and I have said, get an attorney immediately. Thinking is going to get you killed.

 

[Mark Maroon]

Mark I cannot thank you enough for taking time to write this reply.

However, if what your saying is correct, the courts are messed up, for the Court would be deciding one motion on the basis of another without consideration of the opposing side's view. Consider the case in which only an attorney, not a pro se litigant, would be capable of arguing that venue is correct, and that the venue is correct, and that the motion to dismiss is wrong. In that case, the Court is essentially deciding to not allow the motion to oppose dismissal to be considered in deciding to deny a motion to extend time on that basis (that the complaint should be dismissed even though the Court has not heard the opposition yet).

Their motion to dismiss is due to an argument about venue, not merits. It argues that there are two more appropriate venues. So an attorney might argue the venue is correct or if not "convert" the motion to dismiss to a motion to transfer venue, which would indeed surmount their motion to dismiss, would it not?

If the case is dismissed can one file a motion to transfer afterwards? If so, how?

The court could su sponte (on their own, without a request from any party) dismiss your case for lack of jurisdiction or incorrect venue. For instance, if you alleged that the actions giving rise to your claim took place in FL, and you filed in CA, then the CA court could dismiss your claim based on that alone. Why? Because you filed in an inappropriate venue and there's nothing that you or your attorney could say to change that fact.

If the defendant filed a motion to dismiss based on their claim that some other venue is more appropriate, then you should file a brief in opposition to their motion and explain why the venue that you chose is the appropriate venue. You can request that if the court determines that you filed in the wrong venue, then your case should be dismissed without prejudice so that you can re-file it in a more appropriate venue. I've never heard of transferring venue in a civil case (it's not uncommon in a criminal case where the AG filed in the county where a horrific crime was committed, but the defendant requests that the case be transferred to a neighboring venue where jurors are not contaminated by press coverage). Perhaps you think there will be oral arguments. This is federal court. Oral arguments are very unlikely.

If your case is dismissed with prejudice, then you can appeal. If your case is dismissed without prejudice, then you can re-file it (hopefully correcting whatever the court felt was incorrect).

Again, your questions reveal that you are in over your head. You should seek advice from an attorney that you can meet with face-to-face. You should stop taking advice from idiots like me over the internet.

Everything I say is the truth. The previous sentence was a lie.

 

[suitandtie]

The court could su sponte (on their own, without a request from any party) dismiss your case for lack of jurisdiction or incorrect venue. For instance, if you alleged that the actions giving rise to your claim took place in FL, and you filed in CA, then the CA court could dismiss your claim based on that alone. Why? Because you filed in an inappropriate venue and there's nothing that you or your attorney could say to change that fact.

Thanks again Mark. Well, I would think that example is inapplicable. Here is why. There was motion to dismiss. Parties are required to both determine and to indicate if motions are opposed. This motion is indicated as being opposed, so for the court to sua sponta rule on that motion to decide another would be to deny the other side any option to explain why the venue is correct and an injustice. Moreover, it seems possible that an amended complaint might be submitted in response to a motion to dismiss. If so, that is a right. Thus, a sua sponte dismissal might deny rights to amend.

"Perhaps you think there will be oral arguments. This is federal court. Oral arguments are very unlikely."

Wow. Really? A jury trial is requested. How could there not be oral arguments?

"If your case is dismissed without prejudice, then you can re-file it (hopefully correcting whatever the court felt was incorrect)."

How much time to I have to do that?

"You should stop taking advice from idiots like me over the internet."
I think many of the comments have been extremely helpful, but you've perhaps been the most helpful commenter thus far and I for one really appreciate you taking the time to comment. Unlike most comments, neither of yours were intentionally hurtful or cryptically degrading. (That is when one hints are how stupid you are but without really being detailed enough one could understand or refute.) You know you are not an idiot and so does anyone who read your comments. You were the only person to really answer my initial questions and if there is ever something I might do for you just msg. me.