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  1. #1
    tball is offline Member
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    Case dismissed "without prejudice" questions...

    What is the name of your state? Florida

    I recently had a complaint I filed dismissed without prejudice. The judge informed me I didn't follow proper procedure in the statment of my complaint, but said he was not deciding that I did not have grounds for the suit. He said I could re-file up to four more times.

    I was informed by the defendants attorney after the hearing that he would mail me the paperwork indicating the judges ruling. He never did.

    I have been suffering emotionally and psychologically as a result of the defendants actions and have this medically documented, thus delaying my refiling.

    I recieved a letter today that the defendants attorney filed asking for a dismissal "with prejudice" without a hearing due to my not refiling an amended complaint within 20 days.

    I was unaware and never notified of this timeframe to respond, and due to dealing with my health conditions have not reponded yet, but fully intended to re file.

    I want to respond asking to continue or stay the original order of dismissal without prejudice.

    How should I formulate the response and is this feasable? What should I be aware of?
  2. #2
    Shay-Pari'e is offline Senior Member
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    Unless the judge stated a time frame to refile, then file again in the appropriate manner.
  3. #3
    moburkes is offline Senior Member
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    And, by the way, the defendent's attorney is not required to send you anything. Unless you plan onpaying him for his services.
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    Originally Posted by arazi
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  4. #4
    tball is offline Member
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    Quote Originally Posted by Shay-Pari'e View Post
    Unless the judge stated a time frame to refile, then file again in the appropriate manner.
    Thanks, the judge did not state a timeframe, but I'm concerned because they sent the judge papers to sign for a final judgement of "dismissed with prejudice" without a hearing, if the judge agrees.

    In the letter to the judge they make it appear as if a timeframe was agreed to. Should I respond indicating to the judge that no timeframe was mentioned or agreed to? I'm worried he may just sign the papers and then I'm done before I get to refile. I need time to refile.

    Is there some presumed 20 day timeframe by law in thtis case that I am unaware of?
  5. #5
    tball is offline Member
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    Quote Originally Posted by moburkes View Post
    And, by the way, the defendent's attorney is not required to send you anything. Unless you plan onpaying him for his services.
    I only say that becasue I'm presuming that if there were a 20 day timeframe to refile, I should have been notified of this somehow, unless it's just a presumed stipulation that attorneys know about and average people do not. But apparently that's not the case.

    Not saying he owed me any papers, he was about to hand me papers after the hearing regarding he judges decision, and then said he would mail them to me. Trying to find out how one would know of a 20 day time frame if a judge did not declare one.

    Should I respond to this motion to dismiss with prejudice, even though the judge already dismissed it without prejudice?

    I don't want them to get this dismissal with prejudice simply becasue I don't respond.
  6. #6
    moburkes is offline Senior Member
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    I take it that you didn't have an attorney. Your attorney would know the rules of the court. Also, if you defend yourself, you are supposed to know the rules of the court.
    My new signature:
    Originally Posted by arazi
    I'll take you on one-to-one in a volcabulary test anywhere, anyplace, anytime.
  7. #7
    tball is offline Member
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    Quote Originally Posted by moburkes View Post
    I take it that you didn't have an attorney. Your attorney would know the rules of the court. Also, if you defend yourself, you are supposed to know the rules of the court.
    Thanks but that is why I'm here in an advice forum, not to be told I should know the rules, but to find them out, so that I know the rules.

    If anyone knows if there is an implied/automatic 20 day timeframe in Florida regarding refiling a case dismissed wihtout prejudice, I'd be gratfull to know of this, or what the actual rules and limitations are in such a case.


    That's why Im asking this in advice forum to begin with.
  8. #8
    Quaere is offline Member
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    tball, why didn't you get a copy of the order FROM THE COURT, in the mail? They are required to send you a copy of all orders.

    You need to get a copy of the original order and see exactly what it says.

    It sounds strange that the complaint was dismissed. Normally, if your complaint was deficient, the court would instruct you to file an amended complaint.

    Call the court and find out what the order says. If the order said you had 20 days to do something but you never recieved a copy of the order, move for an extension of time in which to comply.

    In your motion you will have to explain to the court why you missed a deadline. Weren't you EXPECTING to see a copy of the order and if you didn't get one, why didn't you call the court and ask when they were going to mail it?
  9. #9
    tball is offline Member
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    Quote Originally Posted by Quaere View Post
    tball, why didn't you get a copy of the order FROM THE COURT, in the mail? They are required to send you a copy of all orders.

    You need to get a copy of the original order and see exactly what it says.

    It sounds strange that the complaint was dismissed. Normally, if your complaint was deficient, the court would instruct you to file an amended complaint.

    Call the court and find out what the order says. If the order said you had 20 days to do something but you never recieved a copy of the order, move for an extension of time in which to comply.

    In your motion you will have to explain to the court why you missed a deadline. Weren't you EXPECTING to see a copy of the order and if you didn't get one, why didn't you call the court and ask when they were going to mail it?

    Thanks, thats what I needed to know. I never recieved a copy of the court order. I beleive it says 20 days because the defendants attorney referenced the court order saying 20 days in their recent filing. This was not discussed in the hearing at all. It was likely dismissed because the defendant filed a motion to dismiss it. The judge simply said dismissed without prejudice and that I could re-file up to four more times. I will do what you recomended.


    I was expecting a copy but being unrepresented was unaware I should call the court, is my medical situation a sufficient reason to explain why I didn't call them (it is documented), or my being unaware?

    Should I respond to the defendants motion asking for it to be dismissed, or just file a motion asking for an extension of time in which to comply and explain why I need this?



    Thanks again.
    Last edited by tball; 09-22-2007 at 12:26 AM.
  10. #10
    Quaere is offline Member
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    Why are you talking about defaulting on something without saying what it is? If you recd. a motion to dismiss for your failure to do something, that motion certainly states what it is that you were supposed to do and most likely even quotes the order.

    It was likely dismissed because the defendant filed a motion to dismiss it.
    Yes, but ordinarily, the judge will not dismiss a procedurally deficient complaint. Instead, the court usually instructs the plaintiff to amend the complaint. I think before deciding the proper response to the current motion, you are going to have to find out what the order said.

    is my medical situation a sufficient reason to explain why I didn't call them (it is documented), or my being unaware?
    The court is required to send you notice of an order. They donít expect you to be responsible for complying with an order you never received. On the other hand, you have not given us a timeframe for any of this. Has it been 20 days since your hearing or has it been six months? It makes a difference.
  11. #11
    tball is offline Member
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    Quote Originally Posted by Quaere View Post
    Why are you talking about defaulting on something without saying what it is? If you recd. a motion to dismiss for your failure to do something, that motion certainly states what it is that you were supposed to do and most likely even quotes the order.
    Not sure what you mean by the question, but yes the motion states what I didn't do (reply in time) and quotes the order (I haven't even seen the motion as it was mailed to another address and relayed to me).


    Quote Originally Posted by Quaere View Post
    Yes, but ordinarily, the judge will not dismiss a procedurally deficient complaint. Instead, the court usually instructs the plaintiff to amend the complaint. I think before deciding the proper response to the current motion, you are going to have to find out what the order said.
    The defendant filed a motion to dismiss for failure to show cause (sorry if I relayed it wrong before), the judge granted it without prejudice in the hearing, said nothing about a time frame to file an amended complaint. I'm picking up a copy of the order on Monday, so right now my only reference is what the motion states, that there was a 20 day timeframe.



    Quote Originally Posted by Quaere View Post
    The court is required to send you notice of an order. They don_t expect you to be responsible for complying with an order you never received. On the other hand, you have not given us a timeframe for any of this. Has it been 20 days since your hearing or has it been six months? It makes a difference.
    The hearing was August 15, order entered on the 20th, so the 20 day timeframe gave me until September 10th. I recieved the new motion to dismiss on Sept 20th.

    So it's been roughly 30 days since the order was entered. On Monday I will find out if the judge has reviewed or approved/signed their motion yet or not and proceed with my next filing. I was advised to file a brief letter explaining, as you suggested, if he hasn't decided yet, or to file a motion to vacate, if he has already decided.
    Last edited by tball; 09-23-2007 at 01:34 AM.
  12. #12
    Quaere is offline Member
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    I have no idea what happened here. It sounds like you were ordered to show cause and you failed to meet the requirements of that order. Then OC moved to dismiss and the motion was granted.

    Now there is an order that you have never seen and OC is moving to dismiss with prejudice because of your failure to comply.

    Do I have this right?

    Let us know what the order says and then maybe I can help.
  13. #13
    tball is offline Member
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    Quote Originally Posted by Quaere View Post
    I have no idea what happened here. It sounds like you were ordered to show cause and you failed to meet the requirements of that order. Then OC moved to dismiss and the motion was granted.

    Now there is an order that you have never seen and OC is moving to dismiss with prejudice because of your failure to comply.

    Do I have this right?

    Let us know what the order says and then maybe I can help.
    Sorry for the confusion, I'll try and clarify.

    There was no original court order to show cause. The OC simply filed to dismiss based on lack of cause. In the Aug. 15 hearing regarding this the judge granted it without prejudice.

    Then, according to the "motion to dismiss with prejudice" I recently recieved from the OC, the order from that hearing was entered on Aug 20th giving me 20 days to file an amended complaint.

    I was unaware/did not recieve a copy of this order. It was brought to my attention in the copy of OC's recent motion to dismiss with prejudice that I received.

    Since the OC is referencing the order in their recent motion, it's safe to say the 20 day timefreame was in that order. This was the only court order throughout this matter, which I did not recieve a copy of.

    I will have the order tomorrow and find out exactly what it says, and find out if the judge has already made a decision or not.

    I'm trying to find out what I should do or file if he has made a decision, and/or what I should do if he hasn't?

    Thanks for your patience.
  14. #14
    Quaere is offline Member
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    The OC simply filed to dismiss based on lack of cause. In the Aug. 15 hearing regarding this the judge granted it without prejudice.
    If the case was DISMISSED, you can't file an AMENDED complaint. You have to file a new complaint.

    If the case was not dismissed but instead you were told to amend your complaint, no one would have been talking about whether the order was with or without prejudice. So the facts you are giving here do not compute.

    the order from that hearing was entered on Aug 20th giving me 20 days to file an amended complaint.
    This sounds plausible. What made you think the case had been DISMISSED?

    I will have the order tomorrow and find out exactly what it says, and find out if the judge has already made a decision or not.
    The judge has not made a decision. I know this, because he cannot grant OCís motion to dismiss, before you have an opportunity to oppose it.

    I'm trying to find out what I should do or file if he has made a decision, and/or what I should do if he hasn't?
    You will file a Motion for Extension of Time to File an Amended Complaint. In your motion, tell the court what you thought had been decided in the hearing, explain that you never received a copy of the order, and explain why it never occurred to you to call and ASK if there was an order. That should do it.

    Should I respond to the defendants motion asking for it to be dismissed,
    Prepare your motion for an extension of time. Then, modify the same document to serve as an answer to the motion to dismiss. Both documents are going to tell the same story but they should be filed individually.

    Iím sure you are trying your best, but if you donít know the difference between the court telling you to amend your complaint and dismissing the case entirely, you may not have the aptitude for managing a lawsuit. There may be good reason for your confusion but you have a lot to learn and only a little time to learn it.

    Let us know what the order says.

    Thanks for your patience.
    You are quite welcome.
    I am NOT an attorney and this is NOT legal advice.
  15. #15
    tball is offline Member
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    Quaere,

    I know the difference. The confusion is in that in the hearing the judge clearly dismissed without prejudice, nothing more. No statement about filing an amended complaint.

    Now, according to the OC's recent motion, the order entered after that hearing gave me 20 days to refile the complaint.

    That is all I know right now and will let you know once I get the court order.

    But I'm well aware of the difference. Just don't know exactly what was entered and or if it is different than what the judge said in he hearing... which was "dismissed without prejudice".

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