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littlebluedog
littlebluedog
Tim
Thursday, August 25th, 2011 02:02 pm
lawsuit, cont'd

Last I posted on this was two months ago. Since then, I filed a Motion to Dismiss the case, based on lack of jurisdiction, the theory being that he should have filed in Small Claims, and avoided the jurisdictional limit of mandatory filing in Small Claims by (1) ignoring payment I've already tendered, and (2) including attorney fees in his total. I don't see any excuse for the first, and there's good case law saying the second is a no-no.

I also suggested that he violated some civil procedure rules, such as taking a position unsupported by law (i.e., claiming attorney fees), making a declaration not supported by facts (i.e., misstating the claim amount), and needlessly increasing the expense of the lawsuit (i.e., by misfiling and requiring me to fight it).

In reply to this, he filed a Response. Remember, we're at a very preliminary stage here, in which the ONLY issue is whether he filed correctly. But his Response brings in a bunch of background stuff unrelated to the jurisdiction issue, which just functions to make me out to be a creep in this dispute. He also argues, with respect to jurisdiction, that only the amount claimed determines jurisdiction, regardless of how the claim is calculated, and as such my arguments about that are irrelevant. He also characterizes the attorney fees as consultant fees not directly related to the present action. He explains that it wouldn't be fair to have to file in Small Claims because he would have to go up in court against me unrepresented by counsel. He also moves to strike my allegations of rule violations.

I get the last word, at least at this stage, so on Tuesday I filed what's called a Reply, in which I addressed what he brought up. I said the narrative of the dispute he provided was misleading, inaccurate, and also irrelevant, and pointed out a few unsupported allegations. I also said his logic is ridiculous and drains the jurisdictional statute of any meaning, since any litigant could "claim" a completely made-up amount in order to avoid having to file in Small Claims. I also argued that fees that are paid to an attorney are indeed attorney fees, and as such verboten in the same action in which services are rendered. I said the protest about fairness was already provided for in the statutes, which allow any party to ask consent of the judge to be represented in Small Claims. I also noted that since I've never been involved in litigation before, either personally or professionally, I'm just as inexperienced as he is. Finally I said my stuff about rules violations should stay in, and added more examples of such violations.

The hearing--which is just on the jurisdictional issue--is in a few weeks.

After I filed the Motion, I got a few angry emails from his attorney, threatening sanctions unless I remove the stuff about the rules violations. I'm kind of expecting another one or two resulting from the filing of my Reply, but my inbox has been quiet. I'm anxious.

3CommentReply

kaleidoscopeeye
kaleidoscopeeye
Kaleidoscope Eyes
Friday, August 26th, 2011 01:52 am (UTC)

I can't wait to see how this plays out.


ReplyThread
drjeff
drjeff
Raoul Duke
Friday, August 26th, 2011 04:19 am (UTC)

Dang, dog. Sending love and support, in any necessary amount. :)


ReplyThread
dryad271
dryad271
nitemare hippie girl
Saturday, August 27th, 2011 05:38 am (UTC)

Jeebus crust, what an idiot. On so many levels. Not the least of which is HELLO, CUSTOMER SERVICE. I too am looking forward to seeing how this plays out. Feh.


ReplyThread