Re: Case Dismissed....Can I Rest Easy?
- From: duh@xxxxxxxxxxxxx
- Date: Tue, 09 May 2006 19:19:40 GMT
"Razorback" <razorback9926@xxxxxxxxxxx> further wrote:
Assuming the case was dismissed with prejudice (as I'm pretty sure it
was based on the fact pattern), how can the plaintiff file a motion to
have the judgment "corrected?" He can move to have the judgment set
aside on procedural grounds like lack of notice, but he blew his chance
to argue the case on its merits when he failed to appear.
The reason I'm so confident the case was dismissed with prejudice, is
that to dismiss it without prejudice would reward the plaintiff for
failing to appear, while punishing the defendant who did appear. I just
can't see a judge doing that, unless the judge is a rube.
The OP did not say in what court where he was sued.
You therefore do not know whether (as is not uncommon but also is not
uniform throughout the country) there was "a little box" checked as
you guessed or a functionally equivalent docket entry and,
accordingly, you also do not know whether in the particular court in
question more may be required of a plaintiff than the OP reported to
obtain in a way that would later be enforceable a "with prejudice"
dismissal or whether there was not a policy or practice of dismissals
of the sort to which the OP referred being "without prejudice" (as is
also so in some courts in some states).
Many - but in this connection, too, not all - courts in the U.S. are
putatively governed by procedural rules that provide as you relatedly
guess may be so for the OP, although, even when/where present, most
such rules are drafted with some sort of "out" (e.g., in just a
rebuttably presumptive fashion).
Relatedly - bearing in mind, especially, that the OP had asked about
what "can" occur as if the answer to that question were the equivalent
of being told correctly what will occur - in all civil courts in the
U.S. there is an opportunity for a party against whom a dismissal has
been granted to move to set aside the dismissal for whatever is the
court's applicable good cause standard (e.g., that the circumstances
of the default were "excusable" because not willful or even careless
and because the moving party shows a probably well-merited claim or
defense - results rationalized by variations of the very same
principles as those to which you refer which are said to favor
disposition of litigation on the merits rather than on default).
The OP said that, as far as a court clerk knew in the course of early
morning calendar calls, there was not (yet) reason to believe that
plaintiff's attorney's failure to appear was excusable, but he did not
say that he knows of any facts that support concluding that, if there
is a later motion to vacate the default, the facts in support will not
such a valid reason to grant such relief. It may also be that if
plaintiff does make a motion of the sort suggested here, the facts in
support will be to the effect that the judge would be a rube, or
worse, to deny the requested relief. Or, maybe, not. It is just that
you (and I) do not because we cannot yet know.
.
- References:
- Case Dismissed....Can I Rest Easy?
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