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Refiled CC lawsuit question (Ohio)


alh
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Two years ago, I had a credit card suit against me dismissed by the court due to the complaint not having enough specific information about the account.  

 

I am now being sued again (in a new case) by the same company for the same alleged debt.  

 

In the original dismissal, the court stated that the suit could be filed again if the missing information was added by the plaintiff

 

In the new case the information the court required in the original ruling is still missing.

 

My question is I am trying to figure out what type of motion to file with the court that says that this new complaint is for the same account as a case that was dismissed two years ago.

 

And that the new suit still does not have the court required specific account information.  

 

In essence, I am not sure how to point the new case back to the old case and let the court know they have already ruled on this.

 

I can't seem to find any information on proper motions for that type of scenario

 

If anyone could point me in the correct direction that would be awesome.

 

As a side note, if you are in Ohio an excellent defense that may be useful is a "Motion for a more definite statement" if anyone is interested in how I was able to get the original suit dismissed

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Except and unless you got a dismissal WITH prejudice, the case can be refiled.  And here, you admit that the Court expressly authorized a refiling.  That certain items might not be in the pleading does not mean they do not exist.  The simple reality is that the threshold for FILING is a very low bar.  It is then incumbent upon the Respondent to file the appropriate Answer and Motions as necessary. 

 

There are a lot of motions in both civil and criminal that you are not going to find in ProDocs.  This is why we learn how to do free-form Motion practice that comports with the RCP and applicable Local Rules.  Welcome to the world of practice...you wanted to play lawyer, and now you get to find out what it is about.

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I guess to further clarify, the original dismissal stated that the case could be refiled if the missing information was provided.  

 

In the new filing the missing information was not provided.

 

Is it possible to get a dismissal on that basis?

 

Also, I can certainly file the same motion that ultimately led to the first case being dismissed, however I would like to try for a dismissal with prejudice, so I want to point out to the court that this is a refiling and not a totally new case.  I want to tie it back to the earlier case.

 

I am not sure if there is a "proper" way to do that.

 

I am happy to perform research.  I am not asking for someone to write any type of motion for me.    I am just asking if anyone has any ideas on the best way to approach this. 

Maybe someone else has had a similar situation.

 

I also tried to provide some information for the community on how I was able to get the first case dismissed in case anyone might find that useful.

 

Thanks

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Motion to dismiss for failure to comply with the RCP. They blew the time limit, thusly depriving the court of subject matter and personal jurisdiction.

 

The majority decision, written by Justice DeWine, explained that R.C. 2305.19(A) states that if a case is commenced, and fails for a reason other than the merits, then the Plaintiff may refile the case within one year.  Moore v. Mt. Carmel Health Sys., 162 Ohio St.3d 106, 2020-Ohio-4113.

Edited by legaleagle2012
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11 hours ago, shifter said:

What a douchey and useless reply. The OP clearly asked for specific information about the reply he should file. Seems like a quality first posting IMO. 

Look, the reality is that A LOT of motion practice in unique situations requires you to draft your own motion, and that holds just as true in civil as it does in the criminal practice arena.  And if someone cannot do that, they need to consult local counsel. 

 

Their question was answered...they are trying to get out of the case having been refiled after expressly telling us that the court had granted leave to refile. 

 

Lastly, you of all people (having been here as long as you have) should know that I am NOT about to engage in the practice of law with an individual who is NOT my client and is dealing with a matter in a State other than my own.  So I am NOT about to draft anything for someone to cut and paste.

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On 9/21/2022 at 5:30 AM, alh said:

I guess to further clarify, the original dismissal stated that the case could be refiled if the missing information was provided.  

 

In the new filing the missing information was not provided.

 

Is it possible to get a dismissal on that basis?

 

Also, I can certainly file the same motion that ultimately led to the first case being dismissed, however I would like to try for a dismissal with prejudice, so I want to point out to the court that this is a refiling and not a totally new case.  I want to tie it back to the earlier case.

 

Thanks

 

My opinion is this:  the dismissal was without prejudice so they can refile.  What you assumed is that to do that they were required to provide the missing information when they filed.  I don't believe you can get a dismissal on that basis.  Can you try?  Sure but the Plaintiff has the legal right under the RCP to file an opposition to that motion and my educated guess is their answer will be "we have that information and the Defendant needs to do discovery or it will be presented at trial" and the court will deny your motion on that basis.  Most states do not require that all the evidence be attached to the complaint at the time of filing.  This is what trips up most pro-se defendants.  They assume because no proof is attached the Plaintiff has none and do not bother or know to do discovery then get steam rolled at trial when the Plaintiff/creditor shows up with a box full of statements and the contract for the credit card and wins.

 

You did good the first time filing a motion for evidence supporting their claim and the court agreed.  You can file the same motion again.  Is it possible that they simply refiled and do not have the documents the court asked for the first time?  Sure, and if that is the case the Judge would most likely be very amenable to a dismissal with prejudice this time for filing again without that proof.  However, you really need to have a plan for the bigger chance they refiled because they went back and got that evidence and now are ready to proceed to a motion for summary judgment based on that ruling from the first case.  While you may have a plan tying this case to the first time my assessment is so do they.  

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He doesn't need the fact that the information was still not provided; the court should never have to reach that issue. The fact remains that the plaintiff failed to follow the statute and refile within one year. It is assumed that a lawyer would know the court rules.  The judge should not have to tell him there is a time limit.

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29 minutes ago, legaleagle2012 said:

He doesn't need the fact that the information was still not provided; the court should never have to reach that issue. The fact remains that the plaintiff failed to follow the statute and refile within one year. It is assumed that a lawyer would know the court rules.  The judge should not have to tell him there is a time limit.


In another post, you cited Ohio RCP 2305.19(A).  That is a “saving statute” for claims for which the SOL passed while the claims were in litigation.  Even though the SOL is tolled while in litigation, when a lawsuit is voluntarily dismissed  or the court dismisses it without prejudice, it’s as though a lawsuit was never filed and the SOL was never tolled.  The “saving statute” allows the plaintiff to refile within a year even though the SOL may have passed.

 

The OP did not say if the SOL for his debt has passed.  If his debt is still within the SOL, then 2305.19(A) is not applicable.

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There doesn't seem to be anything else in the rules that applies. Rule 41 provides for a dismissal for failure to comply with the rules, but it says nothing about refiling. There has to be a reasonable time limit for this. They had two chances and failed. This can't go on forever.

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2 hours ago, legaleagle2012 said:

There doesn't seem to be anything else in the rules that applies. Rule 41 provides for a dismissal for failure to comply with the rules, but it says nothing about refiling. There has to be a reasonable time limit for this. They had two chances and failed. This can't go on forever.


After reading 2305.19 again, it does apply. But the SOL for the claim still matters.

 

(A) In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.

Read Rule 41(A)(1)(b).  If a lawsuit is dismissed a second time, the dismissal operates as an adjudication of the merits.

 

The rule says that the plaintiff has 2 chances to refile a claim that has been dismissed without prejudice.  Notice the highlighted phrase “whichever occurs LATER”.
 

1)  The SOL expired during litigation, so the plaintiff has one year from the court’s dismissal to refile or;

 

2). It can refile during the SOL.

 

“Under the current version of the statute, a claim may be re-filed using the savings statute on the latter of the following timeframes: (1) within one year from the date of the reversal or failure other than on the merits or (2) within the period of the original applicable statute of limitations." Wright v. Proctor-Donald, 5th Dist. Stark No. 2012-CA-0154, 2013-Ohio-1973.

 

“Under a plain reading of the unambiguous language in the statute, following the dismissal of ‘any action’ that fails otherwise than on the merits, the plaintiff has the right to refile the new action within one of two dates: ‘either the time left in the limitations period, or one year from the date of the prior dismissal.’” Royster v. Imbrogno, S.D.Ohio No. 2:16-cv-1174, 2017 U.S. Dist. LEXIS 57507, 9 (Apr. 14, 2017).

 

The one year limit applies only if the SOL passed during litigation or within a year after dismissal.  In other words, if the one year period is longer because the SOL had already expired, the one year period applies.  However, if the SOL has not expired, then that is the longer (later/latter) period and the one-year time period does not apply.
 

In the OPs case, the plaintiff can still refile if the claim is not time-barred.  
 

Before you say that this allows multiple filings during the SOL for the same claim, that is not the case.  The courts have ruled that 2305.19 applies to any refiled claim, and it can only be used one time.  
 

“In any action that has been dismissed, any refiling of the claims necessary occurs under R.C. 2305.19.”  Rector v. Dorsey, 8th Dist. Cuyahoga No. 109835, 2021-Ohio-2675, ¶ 8.

 

"The savings statute can be used only once to refile a case." Thomas v. Freeman,79 Ohio St.3d 221, 227, 680 N.E.2d 997 (1997)

 

Further, even if the plaintiff refiles the action before the expiration of the statute of limitations, the refiled complaint is considered to be filed through the invocation of R.C. 2305.19. Brown v. Solon Pointe at Emerald Ridge, 8th Dist. Cuyahoga No. 99363, 2013-Ohio-4903, ¶ 24.

 

Therefore, a complaint for the same claim by the same plaintiff can only be filed twice (original filing and one refiling).

 

 

 

Edited by Bluesie58
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