What do you do when a case against you grinds to a screeching halt? When your opponent fails to prosecute his case, move in front and finish the race on your terms.
Your case starts like many others. A creditor sues you for say $2000. The creditor sends a lawyer to small claims court to collect. Everyone in the courtroom knows that in most cases the defendant either doesn’t show up or ends up with a judgment for far more than he owes.
In most cases, the creditor’s attorney, who has paid $100 for the debt, walks away with a judgment that he’s skilled in collecting. But your case is different. You not only show up, but you’ve filed an answer, affirmative defenses, and a motion to dismiss. More importantly, you’re pro se. You may have money constraints, but you don’t have time constraints. So you dig in your heels.
The creditor’s attorney tries to bully you into agreeing to pay more than you owe. You decline and say, “Bring it on!” You’re pissed at the creditor for various reasons and have no intention of paying.
For two years, you’re in a race, filing motions, pleadings, and notices. You go back and forth with discovery. You attend lots of hearings. Finally, from sheer frustration, your opponent’s attorney, who is not used to lengthy litigation, moves for summary judgment. The beleaguered small claims judge, wanting the case off his docket, grants it.
You appeal and win! The attorney has to pay you $439 in appeals expenses. Rather than voluntarily dismiss the case, the attorney does nothing more on it. You send out more discovery.
Five years later, the case against you seems to have run out of steam. It’s in limbo. It’s been two years since anything has been filed. What do you do?
The attorney has spent 4 times more money and 10 times more effort than he anticipated on this case, and he’s tired of it. Anything he does now is a money drain. He’s hoping to do nothing more and let the court dismiss the case sua sponte (on its own motion). The case would then go away, and the attorney would have no more obligation.
That sounds good. Just let the case die. Right? Maybe. Believe it or not, you actually have options when a case is in limbo. Read on to learn about those options.
Option 1: Do nothing. Let the judge dismiss the case for lack of prosecution. Do this, however, and the case lingers for perhaps years. You’re not filing documents regularly, but there’s still a case pending against you. This has its own level of stress. Further, if you move out of state, you’re stuck with the cost and hassle of defending yourself from miles away if the case heats up again.
Option 2: File a motion for summary judgment (or some other motion). To get a summary judgment, you must show that there are no genuine issues of material fact in dispute and that you are entitled to judgment as a matter of law. Since the appellate court has agreed that the plaintiff’s case has not been proven, summary judgment sounds good, right? But hold up. You have a similar problem as did the plaintiff. To prevail, you must also show that there are no genuine issues of material fact in dispute and that you are entitled to judgment as a matter of law. Can you do this?
Option 3: Move to dismiss for failure to prosecute. In most jurisdictions, the plaintiff has a limited time to prosecute his case, especially if it is for a small amount. Five, six, even seven years for a small claims case is unusual but not impossible. Cases that go on for many months without any activity can be a hardship on a defendant. So courts give them the opportunity to move for dismissal when a case is inactive.
What’s the Best Option?
Of the three choices, doing nothing is the least desirable. It takes power away from you, and the judge might take years to clear the docket. Further, if the case dies of old age, you won’t get court costs.
Moving for summary judgment is a viable option if you can meet the requirements. The reason people spend so much time in discovery before moving for summary judgment is because you need evidence. Further, if you move for summary judgment, you might miss the opportunity to move on the issue of failure to prosecute because the case will no longer be dormant.
That leaves failure to prosecute, the best option. Courts are reluctant to dismiss cases without addressing the merits. Still, you’ve already won in court once, and it’s been months or even years since the plaintiff filed anything. Chances are, he or she doesn’t have a case. Under the above described circumstances, moving for failure to prosecute is a good gamble.
In most states, you first file a notice saying that nothing has happened for some time. This gives the plaintiff a chance to reactivate the case. If nothing more is filed, move to dismiss for failure to prosecute. Is it that simple? Not always. Like everything else in litigation, there’s a process. Review the statutes for your jurisdiction, and take it from there.
The best news is that if you win a dismissal or summary judgment, you get court costs. As a pro se litigant, you can’t get attorney fees, so make your opponent pay some other way. Pile on. Charge for everything you possibly can, years of parking, mileage, court fees, gas, paper copies, paper clips, paper cuts, etc.
Litigation can feel like a race, especially in the early stages. What you do at any given time can be the difference between finishing first and losing it all. So, when there’s a chance to finish big, seize it. Winning on failure to prosecute is one of those cool showers after a hard run kinda wins. Don’t miss the experience when the opportunity arises.