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  1. #1
    SkyMaster is offline Junior Member
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    PLEASE review my Motion to Dismiss for Failure to Prosecute

    What is the name of your state (only U.S. law)? Colorado

    Is there anything I should add?
    Is there anything I should remove?


    Defendant respectfully requests that the Court Dismiss the Plaintiff’s case without Prejudice for Failure to Prosecute.

    AS GROUNDS FOR THIS REQUEST, Defendant states and shows the Court:

    1. It has been more than one year since the plaintiff filed this case with the court, on April 21, 2010.

    2. The plaintiff failed to comply with the court’s Delay Prevention Order, to file a Response to Show Cause within 30 days why the case should not be dismissed for failure to prosecute, on July 9, 2010.

    3. A trial date was set more than sixty days from the date of the issuance of the summons. Trial date was set for November 4, 2010.

    4. Six months ago, the plaintiff offered the defendant a unilateral settlement agreement; which was not agreed to by the defendant, on November 4, 2010.

    5. There exists no agreement between the plaintiff and the defendant.

    6. The plaintiff has neither explained the delays nor shown mitigating circumstances. BA Leasing Corp v. Board of Assessment Appeals, 653 P.2d 80 (Colo. App. 1982); Richardson v. McFee, 687 P2d. 517 (Colo. App. 1984); Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961).

    7. “If a person starts the law in motion and does not with reasonable promptness pursue all the steps necessary to bring the litigation to an end, he should suffer the penalty of a default and a dismissal of the action.” Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967).

    8. Therefore, this action should be dismissed without prejudice because of the plaintiff’s failure to diligently prosecute this case.
  2. #2
    tranquility is offline Senior Member
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    Try to dismiss with prejudice.
  3. #3
    antrc170 is offline Member
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    Change the language to have the case dismissed with prejudice so that he cannot just turn and re-file it. Generally a dismissal without prejudice is based upon the parties failure to follow a guideline through no fault of their own, or lack of knowledge. Basically a technical error.

    In your case though, the plaintiff appears to have willfully failed to follow the directions of the court thereby creating a situation where the plaintiff should recieve some punitive decision. Motion for dismissal with prejudice.
  4. #4
    SkyMaster is offline Junior Member
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    Tried with Prejudice

    Last September I filed a Motion to Dismiss for Failure to Prosecute with Prejudice; it was denied. NO Reasoning was given.

    Then in October, I filed a Motion to Reconsider the Motion to Dismiss for Failure to Prosecute; it has not been ruled on.

    I was told that getting a Motion with Prejudice granted, is hard and rare.
    .
    Last edited by SkyMaster; 05-10-2011 at 05:30 PM. Reason: october
  5. #5
    SkyMaster is offline Junior Member
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    Other than that, does it seem perfect?
  6. #6
    KmanStuck is offline Member
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    Quote Originally Posted by SkyMaster View Post
    Other than that, does it seem perfect?
    I would take out the verbiage regarding the case citations and instead put this information in a memorandum of law in support of the motion...I like to keep case citations out of motions and have them in a memo (the memo is usually much longer than the motion)

    I don't see any statutory and/or court rule noted in your motion that would allow the motion to be considered by the court....add it IMO, its needed.

    I would leave out the settlement offer information, tends to hurt.

    No information as to why the trial never occurred ...

    I assume you'll have oral arguments.

    Has the plaintiff been in contact with you & when was the last communication? Has discovery occurred or is still in process? Note this information...if no discovery has been started after 1 yr?

    I see nothing in your post that shows that a 1 yr delay is grounds for the granting of the motion ... search out the case law regarding the time ... highlight this in your memo & note that 1 yr is grounds in your motion.

    Your motion as it is posted is seen to me to be lacking in facts and case law. If I were a judge ruling on the motion I would deny it. I guess you posted this for a critical analysis from us non-lawyers...

    You may wish to have a lawyer file this ... cost should be minimal & may be recoverable..
    Last edited by KmanStuck; 05-10-2011 at 06:35 PM.
  7. #7
    KmanStuck is offline Member
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    Quote Originally Posted by SkyMaster View Post
    Last September I filed a Motion to Dismiss for Failure to Prosecute with Prejudice; it was denied. NO Reasoning was given.

    Then in October, I filed a Motion to Reconsider the Motion to Dismiss for Failure to Prosecute; it has not been ruled on.

    I was told that getting a Motion with Prejudice granted, is hard and rare.
    .

    You can ask for both with & w/o prejudice at the same time. And you are waiting for a motion to reconsider filed in OCT??? w/o a response .. no hearing date was set (thats on you really) -- could be considered abandoned?

    A court generally will not look at another motion until the first one is a final ruling ... you may wish to look into this aspect deeper
  8. #8
    SkyMaster is offline Junior Member
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    Quote Originally Posted by KmanStuck View Post

    No information as to why the trial never occurred ...
    That is true.
    Although, it was set for trial in October. We attempted a settlement. THat didn't work out. That was the last of it.

    Quote Originally Posted by KmanStuck View Post

    Has the plaintiff been in contact with you & when was the last communication? Has discovery occurred or is still in process? Note this information...if no discovery has been started after 1 yr?
    Just for settlement negotiations last November.


    Thank you very much for your advice.

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