Does a Motion to Dismiss

What is the name of your state? Ohio

Stay a proceeding until the Motion has been determined? The Motion is for lack of personal jurisdiction, but the jurisdiction is apt as the torts were committed against a person that is a resident of Ohio, while they were (are) living in Ohio. So, I know the Motion will be denied.

I am in the process of typing a Motion to Compel Discovery as the suit was filed 6 months ago, three letters written, about 10 phone messages left, all unanswered and still no interogatories answered, no requests for discovery responded to.

Also, the defendant was required to file a response by 31 March to the suit, still hasn't. Would a Motion to Dismiss take the place of that? I wouldn't think so, but I've been wrong before. ;-)

Lastly, is a hearing required to resolve a Motion to Dismiss?

Would appreciate any one's thinking and/or factual info on this...

Anyone?

HG? IAAL? JETX? Anyone?

My response:

A "Motion to Stay or Dismiss", on inconvenient forum grounds, puts the "brakes" on the litigation until the issue can be heard and resolved; i.e., the issue that needs resolving is whether the court has, or lacks, jurisdiction.

A fortiori, if the court has no jurisdiction, then all subsequent pleadings, and procedures, should not go forward or implemented. Ergo, "the brakes".

Yes, such a Motion forestalls the requirement to file an Answer because the question becomes whether or not an Answer should be filed in this court at all; i.e., does the court have jurisdiction to hear the case.

However, you could have circumvented this problem to begin with by filing, long ago, a "Default". But, because you "sat on your rights" when the "Answer" was overdue, you received this Motion instead - - giving the defendant a BIG bite at your apple.

Good questions!

IAAL

"Would a Motion to Dismiss take the place of that?"
*** It would depend on the full contents of the motion. Simply, if the movant includes that the motion to dismiss if granted would make the issue of compelling moot, then the court could consider it.

"Lastly, is a hearing required to resolve a Motion to Dismiss?"
*** Normally yes. However if the motion is made due to a fatal assumption or principal in law, or shows the court compelling evidence that the suit is frivolous or without merit, the court could grant the motion without a hearing.

My further response:

What are the grounds in the Motion to Dismiss?

JetX, you said - -

""Lastly, is a hearing required to resolve a Motion to Dismiss?"
*** Normally yes. However if the motion is made due to a fatal assumption or principal in law, or shows the court compelling evidence that the suit is frivolous or without merit, the court could grant the motion without a hearing."


Can you give me an example, concerning such a Motion, where the court would decide the issue Sua Sponte, taking away a litigant's fundamental rights of Due Process without a hearing?

In effect, you're stating that the court, on it's own, can decide without argument, that a litigant is, or is not, entitled to bring their grievances to court.

IAAL

HG and others

HG, with baseball season upon us, I have to ask... Why are you HomeGuru and not AwayGuru or VisitingGuru?

Also, we filed timely Motions For Default each time the defendant missed a filing, but each time, the file would contain a letter that she had written to the judge and didn't CC us on, asking if she could attend a hearing via telephone. The first time, she said she couldn't afford to come to Ohio, the second time, she said she was afraid to be in an unfamiliar town with us in it.

I had filed two Motions For Default and both times, the judge denied them, due to some behind the scenes action that the Defendant didn't copy us on. The latest extension, that changed it from 28 Feb to 31 March was my Rule 11 Motion for Sanctions, when she filed a response that was so bizarre and disjointed (didn't even respond to all the counts and didn't refer to any of the counts against her, when she did address the count) that her response was stricken and she was given until 31 Mar to file a proper response.

And now she wants to say that she doesn't feel that the judge will give her justice?

Her reason for lack of personal jurisdiction is that none of the events occurred in Ohio, however, they DID. All of them. Then she says that since she isn't a resident nor has she conducted business in Ohio, as such, Ohio does not have jurisdiction. But, they do, per the Rules of Civil Procedure, involving torts. However, the suit is rife with references to events that transpired in Colorado that caused emotional, financial and physical damages here in Ohio within this household.

This is just another one of her ploys to stall the proceedings and to keep the truth from coming out. We have been putting up with this for years so it really comes as no surprise.

I was just wondering if there was some way we could get this to move along, given that fact that she has written the two letters to the judge that, IMHO, gave him jurisdiction. In my response to the Motion, I cited the Civil Rule regarding out of state persons and torts. I also cited the Ohio Revised Code that says same. I also pointed out that she DID write two letters to the judge about attending hearings via telephone, and that this signifies she waived her right to use the jurisdictional defense.

Ignorance of the law is no excuse, in this situation, wouldn't you think?

Does this help?

I thought the transcription of the Motion might answer some questions... (includes typos, my notes are in parenthes)

VERIFIED MOTION TO DISMISS

NOW COMES the defendant, big fat hairy beast, acting pro se, and moves this Honorable Court for a dismissal and, as grounds therefor, states as follows:

1. This matter was filed with this court on October 1; 2003. (No it wasn't, it was filed 3 October, which is usually moot, but this is a verified motion.)

2. Defendant was served in Aurora, CO. The court has set a response date of March 31, 2004.

3. Defendant appears specially and moves to have this action dismissed on the grounds of lack of personal jurisdiction.

4. Defendant has never resided or done business in the State of Ohio. (Doesn't matter. The torts were committed against residents of Ohio, while they lived in Ohio.)

5. None of the acts complained of occurred in the State of Ohio. (Yes, they did, she just didn't read the complaint, or she lied to whomever wrote this for her. I'm leaning towards lying, as she has a tremendous history of this. I mean, this is a woman who has stolen money from her kids. We would send the kids checks for Christmas, birthdays, graduation, and tho the checks were cashed, the kids would swear they never got the money.)

6. The Complaint is wholly grounded upon alleged conduct with respect to the minor children which alleged conduct was subject to supervision by the courts of Colorado, the state in which the children reside. .(First, this is moot, as the CO courts have admonished her in the past for her actions, in the form of court hearings. She was actually told by a judge there that her actions, at one time, to which she brought to the attention of the court, were so egregious that had we brought it before the judge when it happened, the judge would have taken her kids away. Also, the children are no longer minors, nor have they been for some time now. One of her children has not been a resident of Colorado for four years now. IMO, this is here merely to cloud the issue by calling on the mommy card.)

WHEREFORE, defendant prays that the above case be dismissed for lack of personal jurisdiction

"Can you give me an example, concerning such a Motion, where the court would decide the issue Sua Sponte, taking away a litigant's fundamental rights of Due Process without a hearing?"
I have seen several cases (in small claims courts) where a 'Motion to Dismiss', pointing out that the case filing makes no relevant issues of fact as to a law or where a lawsuit was filed incorrectly, has been granted without a hearing or even a response by the other party.

In fact, it happened to me personally. I had filed a small claims action in Nueces County. When the defendant filed her response and it simply confirmed all of my claims.... (she even offered to make payment!!!), I filed a Motion for Summary Judgment with the court, citing her response and providing citations to both statutes and precedent. The defendant then (AFTER filing her answer) hired an attorney and the next thing I got in the mail was a 'denial of motion' without there even being a hearing!!

Jet, that makes no sense.

To not even give you a chance to respond to the Motion?

The judge here is Common Pleas and we are being given until 30 April to respond. Then she has until 24 April to file her final response and then the judge will consider the motion to be submitted.

I think the judge considers this to be a bogus motion on her part, realizing that he does, in fact, have jurisdiction, but he needs to give her a chance to hang herself.

Had you read the response that she filed, that was subsequently stricken, you would have serious doubts about her sanity, as did I. It was the single most hate-filled document I had every seen. She even included an e-mail (supposedly from me) that was obviously created by her, that was filled with the foulest language.

Oh, and Jet, I keep meaning to ask... What does the phrase under your name mean?

And Jet, I also keep meaning to tell you, when we win, I was planning on letting you collect the judgement! I believe we all must take care of each other on this planet and you sure are one smart cookie!