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Proof of Service

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mnoble

Junior Member
What is the name of your state (only U.S. law)? New York
Last summer I filed a lawsuit in Livingston County NY under federal T.C.P.A. law, against a telemarketer in Broward County Florida and soon afterward had the Sheriff serve them. The Defendant chose not to respond to the suit and my next step would have been to apply for a "Judgment by Default".It is my understanding that the Plaintiff has 120 days after the filing of the suit to file the proof of service.
I had somehow lost the proof of service (oops!). I then requested that the Sheriff send me another proof of service. They sent me a file copy which the Livingston County clerk deemed unacceptable for filing. I have repetedly tried to get Sheriff and the deputy who served the process to send me another original proof of service or a certified copy which they refused to do, and so the 120 days has past.

My question is how do I handle this ?

Do I ?

1) File the suit all over again and have the defendant served again.

2) Subpoena the Sheriff and/or deputy for another original proof of service.

3) Have the Defendant served all over again.

4)Go ahead and file for the default judgment, somehow using the file copy of proof of service.

5) file a FOI request

Please give me an opinion on this or at least point me in the right direction. I've tried to get a definitive answer either in print or from law clerks to no avail. Thanks for any help you can provide.

mnobleWhat
 


seniorjudge

Senior Member
This is in my local county court
Then why did you say you had filed it under "federal T.C.P.A. law"?

Isn't this the same lawsuit you posted over three years ago?

https://forum.freeadvice.com/civil-litigation-46/legal-caoch-needed-300044.html
 

mnoble

Junior Member
Let me clarify: Federal telemarketing laws give me the right to sue (satutory damages) in a local court for T.C.P.A. violations.
 

seniorjudge

Senior Member
1) File the suit all over again and have the defendant served again.

2) Subpoena the Sheriff and/or deputy for another original proof of service.

3) Have the Defendant served all over again.

4)Go ahead and file for the default judgment, somehow using the file copy of proof of service.

5) file a FOI request


Try 4; if that doesn't work, try three. 2 is going to be awfully expensive. 1 and 5 are meaningless.
 

mnoble

Junior Member
I've been seeking an answer to this question for some time now. No one seems willing or able to help.

Any way this may help answer your question:

Federal law, the Telephone Consumer Protection Act ("TCPA") of 1991 establishes the plaintiff's private right of action in an appropriate state court pursuant to Title 47 U.S.C. § 227(b)(3)(B) for violations of the F.C.C. Code of Federal Regulations pursuant to Title 47 C.F.R. 64.1200 et seq.
 

mnoble

Junior Member
Thank You Senior Judge, I am very grateful for your suggestions. Out of curiosity, why are 1 and 5 meaningless?
 

seniorjudge

Senior Member
Thank You Senior Judge, I am very grateful for your suggestions. Out of curiosity, why are 1 and 5 meaningless?
1 is meaningless because you don't refile the petition/complaint because of a procedural defect.

5 is meaningless because FOI does not apply to courts.
 

mnoble

Junior Member
Is it possible to subpeona for documents so that it wouldn,t be neccessary to foot the cost of bringing the person to court with his documents?
 
The problem is that there is only one "original" proof of service. That's the one that has apparently been lost.

If you subpoena the sherrif, you'll just get another copy, which the clerk will reject.

You need to ask the court to issue a new citation and get the sherrif to serve that. You'll get another original proof of service, and you can file that.
 

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