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Lack of prosecution

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  • Lack of prosecution

    I posted here awhile back (8+ months ago) about the creditor's attorney not moving forward with their lawsuit against me. This lawsuit was opened up 2 years ago this month. At first, they were hot on it, but I bogged them down with crap for them to prove.. It was just a stall tactic because at the time, I thought we were going to file BK soon. Long story short, we inherited some money and paid off most of our debt, except for this one particular creditor. The stall tactic worked and they stopped moving forward the the lawsuit, bigger or easier fish to fry I suppose.. A period of 6 months went by with absolutely zero contact from them, then I received notice that they were changing the name on the lawsuit (credit card company merged with another company). Again, another 6 months went by and nothing from them. Finally received notice of motion for judgement this week.

    I previously took everyone's advice of not asking for the court to throw out the case for lack of prosecution in fear of waking the giant sort to speak. Figured the longer everything was drawn out, the closer to SOL I would get.

    My question now is: Do I still have the option to request the lawsuit be thrown out because of the lack of prosecution even though they just now filed for judgement? Other than this recent motion for judgement and notice of name change, its been 1 year since they actually filed anything for this lawsuit.

    I'm not at all concerned about the judgement, but it would be nice to just score 1 against the creditors lol.

    I don't have a job, no money in the bank, no car (wife has 1 car in her name and we're probably just barely positive on the financing anyways), no house, no boat, no expensive furniture, no hobbies, no tools... pretty boring people lol.

  • #2
    I am gathering that this is a civil suit in your local civil court, correct?

    If it has been two years since any activity has happened in the case, go in to the clerk of your civil court, and ask to look at your docket. You may find there a docket item that says 'Disposed'. I don't remember the exact term, nor does 'Hub, who is the person that actually checked the status of a lawsuit against us that was stalled.

    But it seems like it was 'Disposed for lack of Prosecution'. We are out of town right now for 'Hub's 50th HS Reunion, so I don't have our files handy. I will check when I get home.

    However, keep in mind, that if you file a Motion to your court to dismiss this case, notices go out to all parties involved, including your plaintiff, who then has the right to file a response, and start all that court stuff up again.

    So if you can keep your head down long enough to get the statement I talked about in the paragraph above this one, you will be good to go.

    I hope that turns out to be the case. Good luck to you!
    "To go bravely forward is to invite a miracle."

    "Worry is the darkroom where negatives are formed."


    • #3
      Probably not, but you will need to check your states Rules of Civil Procedure to find out the definition of "Lack of Prosecution" applies. In many states, it is the court that initiates the dismissal, not the defendant.

      Also, just to correct a possible misunderstanding, the SOL stops once the lawsuit is filed, and you don't get that time back. For example, if the SOL is 6 years, you get sued at the beginning of year 5, the case is pending for 2 years, and is then dismissed; the SOL has not expired. The SOL will still have another year to go after the dismissal.


      • #4
        Thanks for your responses.


        • #5
          Just read florida's Rules of Civil Procedure on "lack of prosecution" and its pretty much up to the court. Even so, they first submit a notice to each party and then give an extra 60 days until they dismiss it. So of course, once the plaintiff gets the notice, then they'll start up again or just do enough to keep it active.


          • #6
            Maybe they won't. I am thinking that coming from the court, the plaintiff will ignore it. However, if you as the defendant made the motion, then THAT would stir them to action.

            Now having said that, I do not recall any documentation coming from our civil court about our case that was 'Disposed'. As I said, we are out of town right now for 'Hub's 50th HS Reunion. We should be back home tomorrow evening.
            "To go bravely forward is to invite a miracle."

            "Worry is the darkroom where negatives are formed."


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