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I am opposing summary judgment with prejudice based on the

statute of limitations expiring in...
I am opposing summary judgment with prejudice based on the statute of limitations expiring in April 19 2012 due to pro se litigant's failure to serve defendants with summons and complaint which lawyer directed me not to serve. Lawyer took case and filed and served defendants with amended complaint in June 19, 2012. Found out this information on June 18, 2013. I am now pro se again. Is there any way I can get around this? Have the defendants waived their rights to summary judgement based on this? Please help.
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Answered in 1 hour by:
7/2/2013
LegalKnowledge
LegalKnowledge, Attorney
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Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I have heard of a party moving for summary judgment, when there is no genuine issue of material fact. I have also heard of a party asking the court to dismiss the case with prejudice. However, I have not heard of a summary judgment with prejudice, since it would contradict the intended purpose. Can you please clarify what they are trying to do? I understand that there is an issue with the statute of limitations and the complaint was amended. Are the defendants pro se as well? What is their basis to have the case dismissed WITH prejudice?
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Customer reply replied 4 years ago
The defendants are not pro se. They are a law firm. I am a pro se litigant as of 4/19/13. The defendants have made a motion for summary judgment and have requested that the amended complaint be dismissed in its entirety with prejudice. I have until August 18 to file my opposition. The basis for the motion of summary judgment among other things are that the statute of limitations ended on 4/19/12 as I was advised by the lawyer not to serve the defendants with the first complaint on March 26 and the amended complaint drafted by the lawyer according to the defendants does not address any triable issues or fact on which ot base the claim
Thank you for the additional information. An amended complaint reverts back to the filing of the original complaint. The statute of limitations is the time in which the cause of action needs to be filed. If you filed you claim PRIOR to the statute of limitations running, there should not be a basis to dismiss it, on those grounds. However, if you filed it after the time had passed, the Judge can likely grant their motion, unless the defendants acted in bad faith. Summary judgment will be granted if there is no genuine issue of material fact, so the defendants could proceed. Based upon what you stated above, there does not seem to be anything that prevents the defendants from moving for summary judgment or asking the court to dismiss the claim with prejudice. If it is dismissed with prejudice, the cause of action could not be brought back. In your response, you certainly want to address and attack their arguments, showing there is a genuine issues of material fact and the case does need to proceed to trial and that you are within the time to file the complaint and it should not be dismissed.

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Customer reply replied 4 years ago

specifically, I filed the complaint on 26 march and did not serve the summons and complaint within the 21 day period as the lawyer told me not to do it. He subsequently drafted an amended complaint and served it on the defendants on 19 june 2012. Does the defendant have the right to use this fact as a matter of law to seek summary judgment? last question

That is a procedural issue for a basis to dismiss the case. Summary judgment goes to the facts of the case. As such, the Judge may dismiss it but even then, it may be without prejudice and you could refile it. What you described above sounds as though they are proceedings with two motions, hoping that one gets granted, to end this.
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