Dismissed without prejudice, filing suit again???

[CeLaw]

I live in Ohio.

If a collection agency previously files suit, then asks the court to dismiss WITHOUT prejudice, can they try to sue again with a different attorney? First, what is meant by “with” or “without” prejudice? I have no idea.

To make a short story long, I went to court last year with this same debt collector over the same exact alleged debt. In the court filing, the CA included exhibit “A”. This was an affidavit from an employee of the CA stating they had personal knowledge that I owed this debt. This is the only proof provided to the court in the filing of the suit. I answered stating that a claim of personal knowledge of a debt being owed is woefully inadequate means of proof and requested the CA provide proper documentation of the debt. The court allowed the preliminary hearing to proceed without the CA fulfilling my request. At the hearing, I asked the CA’s attorney for the proper documentation and he explained that he did not yet have that information. I explained to the judge that it this information should have been in the CA’s possession prior to filing suit and that it was a little late for discovery. The judge disagreed and indicate that filing suit and coming to a hearing unprepared is routine, …I can believe it. The CA’s attorney filed a motion a few weeks later requesting the court dismiss the case without prejudice.

Now, one year later, the same CA files suit again for the same exact amount, but now it is with a different attorney. Can they do this? Will the court allow a repetitive action to be set into place that allows this process to repeat itself until I eventually wear down either emotionally, financially, or both? Can they request the court appeal its own decision to dismiss the case? I honestly believe the new attorney has no idea that this issue has went before this same court once before. I also believe the CA simply has no way of deleting my file and my name just keeps popping up in the “to do list” These types of people simply buy faceless claims of debt hoping to win, if even for only a few bucks at time. I feel that filing a second law suit is nothing more than harassment and a way to try to catch me off guard hoping I don’t show up or that I will just pay up …sucker!

What I want to do is to file a motion to dismiss based upon the fact that the plaintiff had a chance to prove their case, but failed to do so. And if the court allows the suit to proceed, it will go against the court’s previous decision to dismiss the case. My biggest challenge is that I don’t know exactly how to file a motion to dismiss. This debt is only for $1300 and not worth a couple of grand to hire an attorney.

Thanks in advance for all your replies! CeLaw

PS> any one know what the SOL is for Ohio?

[CourtClerk]

I did not read your entire post, however, when a case is dismissed without prejudice, it can be refiled.

[Chien]

No disrespect to you intended, but there are confusing and contradictory statements in your post, and it makes a more complete response than the one given by CourtClerk difficult. Not that that response is inaccurate. It isn’t. But your post suggests that there are things you might have done the first time and possibly should do this time, and a more complete understanding could be helpful.

Accept that a case dismissed without prejudice can be re-filed and has been. You alternately refer to “the court dismissing” and “the attorney dismissing”. It sounds as if the attorney dismissed, the court accepted and you were beaten to the punch.

You say “I asked the CA’s attorney for the proper documentation”. In formal discovery? It does not appear so. But, by asking and then complaining to the court, you raised a red flag. They saw a problem with their case and dropped it before you could drop them. By dismissing without prejudice, they probably had time to try to fix the problem and then re-file. You’ll only know by doing the discovery this time.

If you had originally done discovery and they lacked adequate evidence to support their claim, you might have moved for Summary Judgment in your favor and been done with it. The court didn’t disagree that they were unprepared. That was your chance to capitalize.

Hindsight is 20-20 and none of this is meant to criticize. It’s meant to suggest that a different approach may be more productive this time, but they also may have gotten their act together. If the amount in contention isn’t worth the effort, then try to negotiate a settlement, because the judgment they’ll take will be more costly. Don’t spend time on the motion. The court is not going to dismiss the pending case simply because the plaintiff dismissed the prior action. And, because it dismissed the prior action, it wasn’t required to prove its case.

You can try if you wish, but I predict frustration and a continuing need to litigate this one.

And you didn’t state what SOL you were looking for. Ohio is 15 years on a written contract and 6 years on an oral or written account.

[clyde824]

I just had my case yesterday and the attorney wanted to dismiss without predjudice. I knew she did not have any proof the debt was mine so I asked the judge to dismiss with predjudice.

Had I not come to this and other forums I wouldn't have even known I could ask the Judge to dismiss with predjudice.

He said he was going to dismiss with predjudice.

Please read my other posts under clyde824, maybe the responses to all of my questions will help.

Good luck to you.

Also go to [url]www.creditinfocenter.com[/url] for more advice on the matter. I did and it helped.

Clyde824

[Chien]

Clyde’s post makes this thread more ironic than would be imagined, as Clyde’s original question didn’t deal with the “prejudice” issue. (OP, please PM me, if you need a more complete explanation, but it’s really a secondary matter.) I note that we indirectly answered your original question as well. I thought that was an adequate response but, if it was not, a dismissal of a case “without prejudice” means the case can be re-filed. Dismissing a case “with prejudice” means that the case cannot be re-filed and neither can a “re-designed” case making exactly and solely the same factual allegations be filed.

[GulfBreeze]

yes...it can be re-filed. but they will have to pay the filing fee again and if they didnt have much of a case the first time they wont have one later unless these guys have corrected something they should have the first time but didnt because of their haste to get an easy win and didnt think they would be running up against any opposition.

[Chien]

Much as I detest smilies, I’m begining to think there should be a “proceed at your own risk” smiley to accompany Breeze’s posts.

OP – Breeze commonly relies largely on his own life-experiences to inform his statements. That often leads to anecdotal narration that is, at best, irrelevant and, at worst, misleading.

You had already been told three times that a case dismissed without prejudice could be re-filed. Presumably, Breeze felt another affirmation was needed. Anything beyond that is of no consequence. It was speculated that a desire to supplement the plaintiff’s case could have prompted the dismissal that plagued you, but we don’t know that, and the speculation is a reason to adopt a different discovery approach this time.

However, there can be any number of reasons to dismiss and re-file – and to be willing to pay the filing fee to do it. In addition, the Court regularly dismisses cases on its own motion, and some get re-filed. It would be hard to find a relation between Breeze’s explanation and that.

Simply accept the fact that it happened, and revise your defense with recognition of that fact the second time. Further assumptions are not warranted by any information posted yet. I trust that you recognize that. I read you military law exposure and the extent of your experience.

[GulfBreeze]

Originally Posted by Chien

You had already been told three times that a case dismissed without prejudice could be re-filed. Presumably, Breeze felt another affirmation was needed.

Make that four times now. Apparently I wasnt the only one who felt the need to reaffirm it.....

[Chien]

But the only one to repeat it and add nothing.

Trying to just rack up posts, Breeze? Senior status, Breeze? Wasn't that one just one more?

It's the OP's question, not your autobiography that's at issue , Breeze, and you dodged the issue again.

It didn't go down big when you ventured to other forums, did it? Expect the OPs to be warned when you bring it back here. Adventures in "My World" don't translate to the Big Screen. Now, enough of the spotlight on you and back to what's important.

[GulfBreeze]

Originally Posted by Chien

But the only one to repeat it and add nothing.

Trying to just rack up posts, Breeze? Senior status, Breeze? Wasn't that one just one more?

It's the OP's question, not your autobiography that's at issue , Breeze, and you dodged the issue again.

It didn't go down big when you ventured to other forums, did it? Expect the OPs to be warned when you bring it back here. Adventures in "My World" don't translate to the Big Screen. Now, enough of the spotlight on you and back to what's important.

How in the heck is ....."yes...it can be re-filed. but they will have to pay the filing fee again and if they didn't have much of a case the first time they wont have one later unless these guys have corrected something they should have the first time but didn't because of their haste to get an easy win and didn't think they would be running up against any opposition." ....considered an autobiography???

We have much to learn from past experiences. I believe in law its called something like "precedence" and often our parents influence our upbring from theirs and teach us life lessons along the way. Can we not share our personal experience in hopes that it will shed some positive light on some subjects. Giving personal accounts can sometimes explain things better than state statutes...especially when the layman can not fully understand it and doesn't know what to expect. Sure, some people like JDB would not want the common person to know their rights in defending themselves, but I feel a little different than you do. I don't toot my own whistle, but your honking of the horn that I am doing something wrong is silly. Can't we just get along? Oh well......

[Chien]

I’ve made the effort twice, remember? So we’ll see.

And either way, this ends here. I’m not hijacking the OP’s thread for our repartee.

But as for circumscribing posts by your experiences “when the layman can not fully understand it and doesn't know what to expect”, did you happen to take a look at this OP’s background? Prior to this post, he has been posting exclusively in the Military Law forum and doing a very nice job with the UCMJ. As former JAG myself, I suspect that he grasped the concepts quite readily.

[GulfBreeze]

Originally Posted by Chien

I’ve made the effort twice, remember? So we’ll see.

And either way, this ends here. I’m not hijacking the OP’s thread for our repartee.

But as for circumscribing posts by your experiences “when the layman can not fully understand it and doesn't know what to expect”, did you happen to take a look at this OP’s background? Prior to this post, he has been posting exclusively in the Military Law forum and doing a very nice job with the UCMJ. As former JAG myself, I suspect that he grasped the concepts quite readily.

and for my "but...."

this forum is not about you and me only...lots of people read this forum and if it was just about this person and all his and your knowledge...why come here? maybe some of us want to help others....forgive us if not all of us are so educated and former "JAGS" as you say. not all of us "grasp" all the knowledge you posses. maybe they should have a separate forum for us.....

and...actually, to answer his question....it does not have to be a different attorney. the same one can file. he will just have to file and pay the fee again. i didnt look at his past posts or do a background check in his military law career...nor yours. I just answer questions on the fly.