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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3008
Experience:  Civil litigation attorney for individuals and businesses.
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To whom it may concern, I am PRO SE and I served an attorney

Resolved Question:

To whom it may concern,
I am PRO SE and I served an attorney with a legal malpractice suit and did not include the general warning or "notice to defendant" and have now been met with a Rule 21 motion demanding the case be dismissed for this for leaving out the "Notice to Defandant" called a summons. I misunderstood the term Summons.
Also, I served defendant by faxing and by delivering via UPS instead of USPS and this is said in the same rule 21 motion to be grounds for dismissal.
Can you refer me to any case law on this matter?

The rule 21 motion was filed after the 30 day period in which a reply to the complaint must be filed. A reply to the complaint has not been filed as of yet. I have sent notice of intention to apply for default judgment.
Can I file for default after the rule 21 motion has been filed but not heard?

Also, can a certificate compliance be part of a motion or must a certificate of compliance be a separate document.
Submitted: 12 months ago.
Category: Legal
Expert:  William B. Esq. replied 12 months ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

The rules for each state vary slightly regarding the requirements for service and the rules for a motion to quash summons or to dismiss. Please give me a couple of minutes to review the Oregon Rules of Civil Procedure to ensure I am discussing the proper procedure to meet your case.

Customer:

Not a problem take your time. I failed to mentuion in my answer that the defendants attorney called and made me aware of the issue with the missing summons. I did serve him with the summans that same day.

William B. Esq. :

I will note that as a practical matter, these situations are often best resolved by filing an opposition in which the Plaintiff simply agrees to re-serve the complaint (withdrawing any default) thereby avoiding the motion to strike or motion to quash, and avoiding the cost and expense (Courts are disinclined to allow judgments by default, and if a plaintiff has failed to follow the procedures the Court may rule against them based strictly on the interpretation of the law).

William B. Esq. :

If you are in contact with the Defendant's attorney, is it possible to make an arrangement to have a new summons served (usually Defense counsel can accept summons and make the process much easier)?

William B. Esq. :

I only ask because I would hate to see you spend a lot of resources (time money and effort) on a motion that will likely end up resulting in forcing you to re-serve the complaint. I am going to review the statute though just to see what we are talking about specifically (I have it up).

Customer:

Yes the obvious would be to reserve the complaint and the summons, my worry is that by today - 2 years ago - I should have been aware that he failed me. I did not inform him of my intentions to file suit till a year ago, But I fear that they will argue that by August 30 2011 I should have known

William B. Esq. :

The deadline is filing suit - not service of the complaint.

William B. Esq. :

(Code Section 12.020)

Customer:

OK, then there is no problem I will just reserve the summons, and the complaint to tomorrow and reply to the Rule 21 motion.

Customer:

Let me ask you, can the certificate of compliance, which is required as part of the Rule 21 motion, be included in the Motion or must it be a separate cerrtificate

William B. Esq. :

Check Subsection (2) of 12.020 and make sure that it applies to your situation - make a quick research on it, it looks like it applies, but I would make sure, it seems to give you 60 days after the date of filing.

William B. Esq. :

Let me check Rule 21

Customer:

Thank you.

Customer:

I am looking at 12.020

Customer:

can I find a "reply to rule 21 motions" form anywhere, a rough outline that I can use as a guide?

Customer:

Can such a rough outline be purchased from you or ANSWER.COM?

William B. Esq. :

Your certificate of compliance is a separate document.

William B. Esq. :

A reply to Rule 21 is going to be a fairly discrete document, I do not know that you will be able to find one available online to use as a template. We do not offer documents online (we cannot practice law through this site). what you can do is find another type of opposition to motion, and then use the law that the defendant used in their motion as a start to doing your own research (the law will be roughly the same), and use their case law and statutes to build your own argument, (their cases will likely lead you to cases that support your own argument, if their cases themselves do not help support your own argument, and you can almost certainly use parts of their cases to discredit their arguments). The form for motions and oppositions do not change (introduction, facts, legal standards, legal argument, conclusion and request for relief).

Customer:

yes, I guess I am looking for a place to start.

William B. Esq. :

(If you do decide to simply serve the new summons in exchange for withdrawal of the Rule 21 motion, you can condition it on a waiver of any statute of limitations issue based on the difference between the date of your "improper" service and the new service (a stay on the statute) if you have any concerns about the reading of the 12.020(2) language.

Customer:

That seems like very good advice. Is it too much to ask you to phrase such a waiver, I am as stated PRO SE and on top of that a foreigner and do not master the law language by far?

William B. Esq. :

I recommend using their motion as a template (it is on point, it has the facts (or at least their version of them), applicable law (although you will have to review, expand, and revise it), and the appropriate format, at least it will be easier to compare the two for the Court, and easier to write - you are just going from one to the other.

Customer:

After we end this discussion is it possible to reconnect with you for more questions (new payment of course) so we don't have to start from scratch

William B. Esq. :

I cannot draft specific language for you (I am very sorry), but generally language staying a statute of limitations says something like "the statute of limitations for any claims or causes of action arising from the representation of client x by attorney y in the matter of jones v client shall be stayed for the period between the date xx/xx when client mailed document z to attorney y until such time that client x serves complaint in case client x v attorney y by and through his attorney and no later than date yy/yy" Again, this is general language, it may or may not work in your situation, I have no basis to understand whether or not it is acceptable to either side, or if it is practical, enforceable, or appropriate for your case.

Customer:

I understand.

William B. Esq. :

You can request to speak directly with me by starting your question with "For William B. Esq. Only ..." and I will be notified by one of our moderators.

Customer:

Ok thank you

William B. Esq. :

(Our customers are identified only by a series of letters and numbers to help maintain anonymity, so you will need to give me a brief note regarding the fact that this is an Oregon Civil Procedure Case so I can come up to speed).

Customer:

If I have more time I would like to explore one more question

William B. Esq. :

You are very welcome, thank you for letting me help you.

Customer:

I would like to ask if there are any statues that talks about the effect of leaqving out the summons, being an attorney that is being sued I would think that the summons had no material value, it did not harm the attorney that the summons was not included as he is supposed to know how to handle him self after receiving a complaint with no summons

William B. Esq. :

No, unfortunately you must serve the summons. The fact that there is no prejudice to the attorney by leaving out the summons does not affect the fact that he has the right to receive the summons (part of the fact is that many issues are based on the date of the service of the summons, so it is a very important issue).

Customer:

Ok thank you I am satisfied for now and need to work with the ORCP 12 before I can ask any more questions.

Customer:

what do i do now in regards XXXXX XXXXX

Customer:

My email address isXXX@XXXXXX.XXX if you feel the need to reconnect or come up with a thought, just drop me a line and I will log on via answer.com

William B. Esq. :

Once you rate my service positively I will be paid. If you have any further questions regarding this specific issue, you can ask them through a follow up and I will answer them in our "Q&A" format which is more like an e-mail system. If you have different questions you can post a second question. If you are in the process of civil litigation and will be asking many questions I would recommend becoming a subscriber to our service in which you pay a monthly fee, but you can ask unlimited questions.

Customer:

I already signed up for subscriber

William B. Esq. :

Excellent.

Customer:

So I will click on excelent, have a continued good Labor day, you are taking that litterally and is laboring on this day!

William B. Esq. :

Thank you very much, I do appreciate it. It appears that you are doing the same. I do wish you the very best of luck, and look forward to corresponding with you in the future.

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3008
Experience: Civil litigation attorney for individuals and businesses.
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