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Flagbridge-ADR, Arbitrator/Mediator
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What does Dismissed for Lack of Prosecution mean

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We agreed to settle our case before trial. The terms of our settlement were stated in court on the record at that time. Defendants agreed to send settlement $$ to our attorney, to be held in our atty's trust account. All funds were received by our attorney and placed into the trust account. We were subsequently sent a draft settlement agreement proposed by defendants for us to sign, but we didn't agree with terms. Our atty told us we didn't have to worry about signing this formal settlement & general release doc, that all we had to sign was a "Memorandum of Settlement," which basically consisted of 1 paragraph containing very general and benign wording. He told us that the judge would formally dismiss the case according to (1) the terms of settlement as stated earlier on the record and (2) our signed "memorandum of settlement" doc. Final hearing for dismissal was heard before the judge. We haven't talked to our attorney yet. The online Superior Court case summary says "Dismissed for Lack of Prosecution" - no future hearings." Should we be worried???

From a civil court perspective this usually means that a procedural step time has elapsed, i.e. if there was supposed to be an answer from the plaintiff, or a time limit to respond to a request has passed.

The courts discretion in this matter is covered by Code of Civil Procedure §§ 583.410

If a case from a prosecution side (the plaintiff) is stalled unnecessarily the defense, or the court clerk can file a motion for dismissal for lack of prosecution. As such the dismissal could be pursuant to the settlement as a non admission by the responding party.

The key to know if this is a significant issue, is if it is with or without prejudice. Regardless your attorney should have been given 20 days to respond to any such motion.

If your lawyer was at the hearing I don't see an issue here. it appears to be evidence that the case has been dismissed, however it may be refiled if it is not without prejudice.

If this helps please click ACCEPT.


Customer: replied 9 years ago.
Reply to Flagbridge-ADR's Post: Hello. Thank you for your help!

The most recent entry on the Superior Court's online case summary states: "Status: Dismissed for Lack of Prosecution 04/02/2008." "Future Hearings: None."

We've not been able to get ahold of our attorney lately, but we will. The last we heard from our attorney was that the judge would be officially dismissing the case, since all terms of the settlement had been met, in his opinion, and we'd then be able to access the settlement funds which are being held in our attorney's trust account.

If our attorney had been given 20 days to respond to such motion, would one expect to see some indication of that in the case summary? (as opposed to "Future Hearings" None)

One last question: I've been trying to get ahold of the court transcript, but haven't been able to connect with the court reporter. Do you know if it would be possible to find out any important details on this issue (such as with/without prejudice) if we, the plaintiffs, were to go to the court directly and ask to speak to the court's clerk? Or do you know if this information can be obtained over the phone by calling the court?

This information is much appreciated. This was to be the final disposition of our case, which had been going on for over 2 years now at great expense for us.   

I eagerly await any additional help you may be able to provide.

Per your questions.

1. There would be no indication in the summary if this was a result of a court motion, defense motion or if the motion was actually answered or not. Considering he was at the hearing i I doubt it was in absentia.

2. Yes you can go to the court clerk and ask to see what the history of the case was, including what motions had been filed and the actual judgment by the judge. You can call the court clerk with the case ID and ask them for the latest information on the case. They may give you info, but you will get more if you actually go to the court house.

If the filing attorney says they are dropping their complaint, failure to prosecute could be the reflective not in the docket.

Let me know if you need anymore information.

Otherwise please click ACCEPT.


Flagbridge-ADR and other Legal Specialists are ready to help you

I noted from your feedback that you are not satisfied with my answer. Do you have any specific questions you wold like to ask.

Considering the amount of money you spent I want to make sure you are satisfied.

Customer: replied 9 years ago.
Reply to Flagbridge-ADR's Post: I welcomed your help, but I did not fully understand your responses. Some sentences I did not understand whatsoever. I do not consider myself illiterate, but I got the impression that your answers would be more meaningful to an attorney than a layperson such as myself.

But I appreciate that it must be somewhat difficult for an attorney to speak in layman terms. I mean no disrespect.

I tried contacting the court clerk & court reporter, but the court administrator said the court was dark and everyone was unavailable. I could not get any further info until our attorney finally got back to us.

Since then, we received an email from our attorney assuring us that on 4/2/08, the case was settled with prejudice. He made no mention at all of the dismissal referred to in the online case summary. I gather that dismissal must have been related to a motion brought by defense counsel. It just seems rather odd that to this day, there's nothing in the case summary as to the final disposition of our case, but I guess that's how online case summaries work.

These attorneys have messed up so much along the way, that we have reason to question their every move at this point.

Perhaps you might be able to enlighten me on another question. I will pay extra for your help. If you can, or are willing, please let me know how best to proceed.

My question relates to our attorneys missing the discovery cutoff for destructive testing in our construction defect case. We paid $24K for destructive testing, and later discovered that none of the results were made part of settlement. The estimated cost to repair defects found in destructive testing was $500K.

We have an outstanding balance with our attorneys for approx $180K, and now that our case has been officially dismissed, they're expecting to be paid. We're wondering if we can negotiate anything off their bill in this situation. We're wondering if what they did was malpractice. However, we did agree to settle (because our expert was out of the country and unavailable for settlement discussions, his official report was unavailable, and we would have had to proceed to trial 1 week later.

Anyway, if you could let me know how best to gain some helpful info in this regard (so that we may try to negotiate our attorneys fees if at all possible), that would be fantastic. As I say, I do not mind spending the extra money for some guidance in this regard.

We do not know what to do at this point - what our rights are under the circumstances.   


I am sorry to hear of your situation.

The lawyer does not need to use the destructive testing results as part of the negotiations if they do not want to. This is a strategic decision and Bar Rules stipulate this is up to the lawyer to determine.

It on its face is not negligence, but worth an explanation. The explanation may in fact demonstrate if it is negligence or not.

I am assuming this was a time and materials bill. If so, I would suggest you hire an auditor to go over the bill, and make sure there have been no administrative errors. While you can try to negotiate the bill, you have very little ground to expect a reduction after the fact, unless you can show errors in the bill, or establish a clear mistake or negligence in the performance.

So my basic advice would be to spend a few bucks and have the invoices audited, to make sure there is no padding.

Let me know if you need more information, and please do not click ACCEPT unless you are positively satisfied.

Customer: replied 9 years ago.
Reply to Flagbridge-ADR's Post: One question for clarification: Bar rules state that an attorney does not have to use updated damages (test results which added approximately $500K to the amount of damages sought in the case) if he does not want to? To follow that through to trial: Do Bar rules state that the attorney does not have to include updated test results which added approximately $500K to the amt of damages sought in the case at the Trial as well?

FYI: This destructive testing uncovered the fact that the sheer walls of our bldg were improperly constructed & will most likely not withstand a major earthquake. So of course the cost to repair the sheer walls which had recently been discovered ($100+) were not made part of the settlement.

In consideration of settlement, we had to agree to waive Civil Code 1542 which would enable us to go after the builder and contractors should this bldg cause personal injury or death as a result of sheer walls construction; however we never got 1 cent extra for their repair.

Does this change or affect your response in any way? If we find that the DT was not included because our attys missed the discovery cutoff (as stated by defense counsel before testing began), would that rise to the level of negligence?

When I said that the lawyer does not need to include the results in their negotiations, that is correct, PROVIDED that the exclusion is not a result of negligence.

If the attorney had missed the deadline to be able amend the complaint, and this was as a result of negligence, then settlements that occur after the fact "may" be tainted, as an effort by the negligent attorney to resolve the issue without the barred evidence.

Your follow up paints a very different picture then your previous question.

I am not convinced that the lawyer can rely on the strategy rules to be able not be held liable for missing the inclusion of the destructive testing.

You will not be able to re-open the case for this, but may have a claim against your attorney.

I think it is worth your while to talk to a Malpractice Attorney about this issue, to review the cases.

There is clearly a lot of information in the dynamics of the case, and potentially some disclosure issues with your lawyer.

Does this help?

Customer: replied 9 years ago.
Reply to Flagbridge-ADR's Post: It does help. We are so very angry with our attorneys leaving this destructive testing out of settlement (and therefore assuming it would have been precluded from trial as well), especially in light of the FACT that we had been begging our attorneys to perform destructive testing since the very beginning of our case (January of 2007), in several phone conversations and several emails as well.

Right before the destructive testing, defense threated to have results barred on the basis of the discover cutoff, and threated to file a motion in limine to preclude results from the upcoming trial.

BotXXXXX XXXXXne, we could NEVER get our attorneys to understand the importance of this destructive testing, and this is the damage as a result. WE'RE BEGGING for DT, and they're supposed to be the construction defect litigation experts??

The lawyer may have had valid reasons not to want to proceed with Destructive Testing. In part because it may be difficult to use to persuade a jury with. We do not know and only a proper evaluation of the lawyers strategy and reasoning will determine if it in fact is negligence or strategic decision.

That is why it is very dangerous to say with any sort of certainty that this is negligence or not.

However as you had specifically asked for it, and provided you were going to pay for it, then you may wonder why it is being ignored. Well in part if the test turn out not to be in your favor those results would also be admissible against you. The lawyer may have wanted to avoid this risk, and really wanted to settle.

Can you see my trepidation, and why I think you need to have a proper malpractice attorney look at this whole case to see if in fact this was negligence?

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