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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 116780
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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Last week I had a problem where a party I served process did

Customer Question

Last week I had a problem where a party I served process did not show to court. The judge had written an intermediate order in this malicious prosecution case, claiming he did not have to show,....Your response was to file an interloc. appeal. The clerks have been giving me a hard time about that...but none the less it looks they will file it.//During the summary judgment hearing, I actually though I was winning the argument on statute of limitations. Then the judge jumped in and stated he thought that if federal claims were dismissed, state time is no longer tolled. I had federal motions dismissed in May 2015. I was told to file them in state court in June 2015. I also appealed the federal order from May 2015. That federal appeal is still open. (May 2016)
How could it be that if a Federal Order states your claims are dismissed, but you have 30 days to file state claims that the claims would get thrown out? The state claims were old at this point.....tolling of time was the only thing keeping them alive. But thinking the alternative makes no sense. That would have required me to file state claims before the final Federal order came out, an such an action would have been unnecessary. I will ensure that the Interloc Appeal is filed today. I'm working on a motion for consideration concerning what the judge's statements were/they made no sense.
An answer from the federal court is needed to make a determination on the lower court summary judgment motions, which were all granted to the defendenants
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Actually the response was a suggestion to file a motion for leave to file an interlocutory appeal, not to file the appeal itself. You need permission of your court, if the case has not received a final judgment, to file an interlocutory appeal. So if the judge did not dismiss the entire case, you need to write a motion for leave to file an interlocutory appeal and explain to the court why full justice cannot be obtained without a decision on the issue subject to the interlocutory appeal.
So if he dismissed the entire claim, then you would be able to file an appeal as a statutory right without an interlocutory appeal.
The court can dismiss federal claims and refuse to hear state claims, that is the judge's right under their concurrent jurisdiction authority and if they do so, then you need to file in the state court if possible.

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