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CalAttorney2
CalAttorney2, Attorney
Category: Legal
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Experience:  Civil litigation attorney for individuals and businesses.
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I sued someone. I spoke to their attorney and was told to

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I sued someone. I spoke to their attorney and was told to come in and meet with them to discuss a settlement. I was pro se. I was told that there was no need in wasting 2 years of our lives, lets just sit down and come to an agreement. I would have accepted almost anything they offered as long as it included letting me out of my lease. We had a scheduling hearing on Friday. I did not show up. I was under the impression from the other side attorney that we were just going to settle this on Wednesday. I received a letter from the other side attorney today saying that they canceled our meeting because the case was dismissed in court on Friday for me not showing up. (COURT DISMISSES CASE FOR FAILURE TO APPEAR). Is there a motion that I can file to have this case put back on the docket? If not not what should I do?

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today. Do you know whether your case was dismissed with or without prejudice?

Customer:

Hello

Customer:

Thank you for taking my question

Customer:

this is what it says online

Customer:









BURRELL, SHARON V
Docket Text:COURT (BURRELL, J.) DISMISSES CASE FOR PLAINTIFF'S FAILURE TO APPEAR.
Customer:









SCHEDULING HEARING (BURRELL, J.) HELD. PLAINTIFF FAILED TO APPEAR.
Audio Media:02-071213 Start: 09:10:44 Stop: 09:11:47
Customer:

i cant really tell if it was with or without

Customer:

if it helps to look at what i am see

Customer:

the court case number XXXXX

Customer:

376137V

Customer:

and the website is

William B. Esq. :

My pleasure, I do hope I can be of assistance. In these cases, you generally can petition the Court for relief from the order as a "motion for reconsideration" or a motion for relief from default, but the distinction between a judge that has ordered a dismissal with prejudice and one without prejudice may make a difference. The Court is exercising its discretion when it issues these orders, and you are working to show the court why it should exercise its discretion to change its mind when it has the right to dismiss your case as a matter of law. (Generally, under the circumstances you have described, most courts would be inclined to reverse the order, but you will have to file the motion for reconsideration).

Customer:

ok so i should go to the court house and look at the actual file and see if it says with or without prejudice

Customer:

and if it says without then file the motion for reconsideration

Customer:

what happens if it says with predjudice

Customer:

And what would be the reasons listed in the motion

William B. Esq. :

You can file the motion either way. The only reason I ask is that the way the Court has ordered it will give you an idea of the tenor of the Court's decision.


If the dismissal is "without prejudice" you may be able to address the matter more simply by refiling the action with a new complaint and serving a new summons - this way you are guaranteed of the result, a new case is filed and you can start again.

Customer:

if i file the motion and they deny it does that mean that i can not refile the case

Customer:

nothing has been heard on the case

William B. Esq. :

You can refile your case as long as the dismissal is without prejudice.

Customer:

it was only at the scheduling hearing stage

William B. Esq. :

You can also file a new case if there are other grounds to file the complaint (this is a little more complicated and will bring up other issues such as related causes of action etc. as defenses for the defendant, but it is still possible).

Customer:

ok and if it is WITH prejudice what are my options

William B. Esq. :

I am having a little bit of difficulty pulling up your case on the website, can you give me the County you are in (I am trying to look it up quickly, so that makes it a little tough).

Customer:

montgomery county curcuit court

Customer:

sorry

William B. Esq. :

If you are dismissed WITH prejudice, you cannot refile the same case on the same causes of action. You can file a different case with different causes of action and different facts (for instance, if the defendant is your landlord and he continues to violate the terms of the lease, you can file a new action based on the new breaches, but you cannot file it based on the claims in the current action.

Customer:

376137v

Customer:

which one does the judges look more favorable on. filing a new case or motions to reconsider?

Customer:

i dont want to upset the judge before i even get before him..lol

William B. Esq. :

I cannot tell you which one to file (I cannot give you specific legal advice or instruction, both because I am prohibited by the forum and because I don't have the knowledge of this specific judge to ensure I give you the proper advice - a self help desk or legal aid attorney would be best suited to do that).


I can tell you that hearing your motion for reconsideration, and the basis for the non-appearance would not be frivolous. In addition, allowing you to continue with the current suit would reduce the "waste of judicial time and resources" (a good phrase for these types of motions) as you would not have to start a brand new lawsuit and incur those additional costs and fees. Everyone has already appeared, and you would simply be bringing everyone in a second time.


I cannot promise how this will work out, the exercise of judicial discretion is something that attorneys guess at all the time, but making a party file a brand new lawsuit for no other reason than they missed a single appearance (with good cause) is particularly unusual.


I reviewed your court docket, it makes no reference to "with or without" prejudice. I would recommend that you pay close attention to whatever order is issued by the Court or proposed by the defendant and make sure that order does not come out "with prejudice" as that will quash your efforts to file a new case in the event your motion for reconsideration is denied.

Customer:

thank you very much!!!

Customer:

you were very helpful

CalAttorney2 and 4 other Legal Specialists are ready to help you
Dear Customer,
Thank you for the kind rating, it is greatly appreciated. I wish you the best of luck with this matter. If you have further questions regarding this type of issue, or any other legal matter, please do not hesitate to use our service in the future. You may post a question for any of our experts in general, or to me directly by titling your question “To CalAttorney 2…”
Best wishes, and thank you,
Bill

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