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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Consumer Protection Law
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Experience:  Lawyer
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I missed the discovery deadlines because I do not reside in

Resolved Question:

I missed the discovery deadlines because I do not reside in the state where I am being sued. They have filed for summary judgement because I didn't respond. How do I defeat the summary judgement?
Submitted: 8 months ago.
Category: Consumer Protection Law
Expert:  Lucy, Esq. replied 8 months ago.
Hi,

My name is XXXXX XXXXX X'd be happy to answer your questions today. I'm sorry to hear that this happened.

There are two ways to defeat summary judgment: One is to show that there are disputed, material facts that must be decided following a trial. That is usually the easier way to have the motion denied. That may require you to attach an affidavit laying out your version of events (as opposed to what the other party is saying). You will also probably have to send the discovery, because that will help your case significantly.

If the other party did not file a Motion to Compel, you also have the option of arguing that denying you the opportunity to introduce the evidence is an extreme remedy that is not appropriate for a first discovery violation, especially if the other party never contacted you to discuss it or filed the Motion.

The other way to defeat a Motion for Summary Judgment is to show the judge case law showing that, legally, the other party is not entitled to a judgment, even if he believes their version of the facts. That is more difficult, but still possible.

A person filing an Opposition to a Motion for Summary Judgment has the ability to argue both that there are disputed facts and that the law does not support the other party, if both arguments apply.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 8 months ago.

Lucy, thank you for your quick response. I think I only have one follow up question. I should have been more specific in my initial question. This is a consumer debt case for a credit card debt from Capital one. It is 5 yrs old. I live in Arkansas. My father owns a company in Missouri. I was served papers in missouri at my father's company. I responded to the papers I was served. I did not, however, respond to the discovery because I did not get it in time, nor did I even know what it was. I told the judge in court that I was not a resident of missouri, but he said it was too late. They filed for summary judgement for failing to meet discovery time limits. The judge "seemed" a bit partial to my plight. He was very specific when he told me to concentrate on their motion based upon failing to meet discovery. Almost as if I could easily beat it. I want to say something like this in my Opposition For Summary Judgement: {The contract was initially signed in Arkansas. I live in Arkansas. They cannot successfully sue me in Arkansas. The statue of limitations for barred debt in Arkansas is 3 years. This debt is 5 years old. Etc, etc, etc.}


Do you think that this is the appropriate? Along with your recommendation of, "If the other party did not file a Motion to Compel, you also have the option of arguing that denying you the opportunity to introduce the evidence is an extreme remedy that is not appropriate for a first discovery violation, especially if the other party never contacted you to discuss it or filed the Motion?" Thanks again, Jason

Expert:  Lucy, Esq. replied 8 months ago.
If you did not dispute the court's personal jurisdiction over you when you first received notice of the case, it is unfortunately too late to do that now. A motion to dismiss for lack of jurisdiction is the first thing that should be filed. Statute of limitations is also something that should be asserted in the initial response to the document as a defense.

It sounds like the judge is telling you that if you just give the discovery to the other party, he will deny their request for Summary Judgment. That is a viable option, although you are allowed to raise any other arguments you have at the same time. Also, look at the contract to see if it states which state's laws should apply. If it requires an interpretation under Arkansas law, you can try asking the judge to dismiss based on the statute of limitations.
Lucy, Esq., Lawyer
Satisfied Customers: 19515
Experience: Lawyer
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