Motion to dismiss

[Hamben]

I am being sued in texas but live in nebraska. I filled a motion to dismiss for lack of jurisdiction and to stay discovery until the motion to dismiss is decided. The judge has not ruled on ether motion and it has been almost 7 months. The judge did rule on the plaintiffs motion to compel discovery and ordered I comply. How can I be ordered to comply and face sanctions if the judge will not rule on my motion for juristidiction? Can I force a judge to rule?

 

[Zigner]

I am being sued in texas but live in nebraska. I filled a motion to dismiss for lack of jurisdiction and to stay discovery until the motion to dismiss is decided. The judge has not ruled on ether motion and it has been almost 7 months. The judge did rule on the plaintiffs motion to compel discovery and ordered I comply. How can I be ordered to comply and face sanctions if the judge will not rule on my motion for juristidiction? Can I force a judge to rule?

Perhaps your motion wasn't in the proper format?
Perhaps your motion is frivolous?

 

[Hamben]

Yes it was in proper format and it is not frivolous ....

 

[Zigner]

Yes it was in proper format and it is not frivolous ....

Why do you feel the court does not have jurisdiction in this matter?

 

[tranquility]

When you say you "filed a motion", what do you mean? Did you do it by "special appearance"?

RULE 120a. SPECIAL APPEARANCE
1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be
made by any party either in person or by attorney for the purpose of objecting to the
jurisdiction of the court over the person or property of the defendant on the ground that such
party or property is not amenable to process issued by the courts of this State. A special
appearance may be made as to an entire proceeding or as to any severable claim involved
therein. Such special appearance shall be made by sworn motion filed prior to motion to
transfer venue or any other plea, pleading or motion; provided however, that a motion to
transfer venue and any other plea, pleading, or motion may be contained in the same
instrument or filed subsequent thereto withoutwaiver of such special appearance; and may
be amended to cure defects. The issuance of process for witnesses, the taking of depositions,
the serving of requests for admissions, and the use of discovery processes, shall not
constitute a waiver of such special appearance.Every appearance, prior to judgment, not in
compliance with this rule is a general appearance.
2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined
before a motion to transfer venue or any other plea or pleading may be heard. No
determination of any issue of fact in connection with the objection to jurisdiction is a
determination of the merits of the case or any aspect thereof.
3. The court shall determine the special appearance on the basis of the pleadings, any
stipulations made by and between the parties, such affidavits and attachments as may be filed
by the parties, the results of discovery processes, and any oral testimony. The affidavits, if
any, shall be served at least seven days before the hearing, shall be made on personal
knowledge, shall set forth specific facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify.
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons
stated present by affidavit facts essential to justify his opposition, the court may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.
Should it appear to the satisfaction of the court at any time that any of such affidavits are
presented in violation of Rule 13, the court shall impose sanctions in accordance with that
rule.
4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the
objection to jurisdiction is overruled, the objecting party may thereafter appear generally for
any purpose. Any such special appearance or such general appearance shall not be deemed
a waiver of the objection to jurisdiction when the objecting party or subject matter is not
amenable to process issued by the courts of this State.

 

[Zigner]

Tranq -

Based on reading that, it seems to me that the judge may be holding off on making a decision on the question of jurisdiction until after the discovery process is complete. Would you agree?

 

[tranquility]

Tranq -

Based on reading that, it seems to me that the judge may be holding off on making a decision on the question of jurisdiction until after the discovery process is complete. Would you agree?

It is certainly possible some facts would need to be determined before deciding on the motion.

When dealing with the question:
The existence of personal jurisdiction is a question of law reviewed de novo by this Court.

Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) said:

However, this question must sometimes be preceded by resolving underlying factual disputes. Id. When, as
here, the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in
favor of its ruling

 

[HomeGuru]

I am being sued in texas but live in nebraska. I filled a motion to dismiss for lack of jurisdiction and to stay discovery until the motion to dismiss is decided. The judge has not ruled on ether motion and it has been almost 7 months. The judge did rule on the plaintiffs motion to compel discovery and ordered I comply. How can I be ordered to comply and face sanctions if the judge will not rule on my motion for juristidiction? Can I force a judge to rule?

**A: discovery and jurisdiction are 2 separate things. You can still participate in discovery even though the jurisdiction issue has not been resolved. Maybe you are confusing the motion to dismiss with the motion on jurisdiction.

 

[Hamben]

Thanks for the help so far. However I am still unclear how to continue. How can a court move forward with discover while there is a question of juristidiction involved. The case is about insurance commissions. Where the plaintiff feels he is in titled to a bonus commission . The plaintiff also signed a contract limiting jurisdiction to the state of nebraska. However he is now saying that it was a forgery. I don't want to have to travel to texas to argue the jurisdiction which is why I filled the motion.. He is pursuing this because his wife is a lawyer and it does not cost him anything...

 

[Hamben]

Thanks for the help so far. However I am still unclear how to continue. How can a court move forward with discover while there is a question of juristidiction involved. The case is about insurance commissions. Where the plaintiff feels he is in titled to a bonus commission . The plaintiff also signed a contract limiting jurisdiction to the state of nebraska. However he is now saying that it was a forgery. I don't want to have to travel to texas to argue the jurisdiction which is why I filled the motion.. He is pursuing this because his wife is a lawyer and it does not cost him anything...

 

[latigo]

**A: discovery and jurisdiction are 2 separate things. You can still participate in discovery even though the jurisdiction issue has not been resolved. Maybe you are confusing the motion to dismiss with the motion on jurisdiction.

You say the OP is "confused"?

Another example of "2 separate things" is knowing what one is talking about and not knowing.

 

[HomeGuru]

Are you an insurance broker and the Plaintiff was an agent of yours? What state are you licensed in and what state was the insurance sold in and what state did the insurance transaction take place?

 

[HomeGuru]

Was there a commission agreement in place and if so, did such an agreement spell out the bonus? Why was the bonus not paid? What type of insurance was sold P&C, life etc.?

 

[Willlyjo]

I am being sued in texas but live in nebraska. I filled a motion to dismiss for lack of jurisdiction and to stay discovery until the motion to dismiss is decided. The judge has not ruled on ether motion and it has been almost 7 months. The judge did rule on the plaintiffs motion to compel discovery and ordered I comply. How can I be ordered to comply and face sanctions if the judge will not rule on my motion for juristidiction? Can I force a judge to rule?

Are you sure the judge didn't rule on your motion? Perhaps your motion was severely flawed and the judge simply ignored it. It certainly sounds like this is the case since the litigation proceeded to Discovery.

 

[Willlyjo]

Tranq -

Based on reading that, it seems to me that the judge may be holding off on making a decision on the question of jurisdiction until after the discovery process is complete. Would you agree?

Absolute nonsense, Zigner. It would be unheard of for a judge to allow Discovery while there is a question of jurisdiction. Perhaps you better stick to what you know.