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    credit card lawsuit in MA, judgment-proof: motion to dismiss?

    Jurisdiction / State: Massachusetts

    I'm helping a friend deal with a credit card lawsuit in MA. She is within the judgment-proof income level.

    * Can she move to dismiss, on the grounds that no complaint has been made upon which relief can be granted (b/c she is judgment proof)?

    * Can she move to dismiss b/c the credit card company's lawyers haven't responded to her request for documents? (She just filed the "final request" for interrogatories)

    * Should she move for dismissal with prejudice?

    * What is the procedure for making such a motion in MA?



    And by the way: If the case goes to court - would I be allowed to be next to her for emotional support and to give her advice? (I am not a lawyer)

    Thanks!


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    Demurrer and Discovery Sanctions!

    JUDGMENT PROOF is only a legal definition; it is not a substantive rule of law, a rule of civil procedure, or an affirmative defense and so your friend cannot move to dismiss on the grounds that she is Judgment Proof.

    A motion to dismiss on the grounds that the “complaint does not state a cause of action upon which relief can be given” is a Federal Rule of Civil Procedure, the state equivalent of which is an objection taken by a Demurrer because “the complaint does not state facts sufficient to constitute a cause of action.” In this case, she would be demurring to the complaint.

    Also, she cannot move to dismiss because plaintiff has not responded to her request for interrogatories; not yet any ways. She can however first file a Motion to Compel and if there is still no response, then move for Discovery Sanctions for which an Order To Show Cause hearing will be set and the case will be dismissed if plaintiff does not appear or does not convince the judge why discovery requests were ignored and should the case be dismissed at this point, it will be with prejudice and you won’t even have to ask or make a motion for it.

    And finally, no and definitely not and I would not even entertain the thought. The only time a judge will, or may, allow a non-attorney to sit only in emotional support of a pro se litigant is when restraining orders are being sought and fought over. Your friend can always ask the judge before the proceedings if you can sit at the defendant’s table for emotional support, it does not hurt, and if request is granted, you will surely be admonished in no uncertain terms by the judge to be but a fly on the wall and to hold your peace throughout the proceedings and to refrain from giving advice. You do not want to be charged with practicing law without a license.

    fredrikklaw
    Only a lawyer can use 10,000 words to write a documewnt and then call it a Brief!

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    Quote Originally Posted by fredrikklaw View Post
    JUDGMENT PROOF is only a legal definition; it is not a substantive rule of law, a rule of civil procedure, or an affirmative defense and so your friend cannot move to dismiss on the grounds that she is Judgment Proof.

    A motion to dismiss on the grounds that the “complaint does not state a cause of action upon which relief can be given” is a Federal Rule of Civil Procedure, the state equivalent of which is an objection taken by a Demurrer because “the complaint does not state facts sufficient to constitute a cause of action.” In this case, she would be demurring to the complaint.

    Also, she cannot move to dismiss because plaintiff has not responded to her request for interrogatories; not yet any ways. She can however first file a Motion to Compel and if there is still no response, then move for Discovery Sanctions for which an Order To Show Cause hearing will be set and the case will be dismissed if plaintiff does not appear or does not convince the judge why discovery requests were ignored and should the case be dismissed at this point, it will be with prejudice and you won’t even have to ask or make a motion for it.

    And finally, no and definitely not and I would not even entertain the thought. The only time a judge will, or may, allow a non-attorney to sit only in emotional support of a pro se litigant is when restraining orders are being sought and fought over. Your friend can always ask the judge before the proceedings if you can sit at the defendant’s table for emotional support, it does not hurt, and if request is granted, you will surely be admonished in no uncertain terms by the judge to be but a fly on the wall and to hold your peace throughout the proceedings and to refrain from giving advice. You do not want to be charged with practicing law without a license.

    fredrikklaw
    I left this one for you.
    I was "Jonesing" for one of your insightful, elucidating, humorous responses.

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    Do you have a more "normal people language" reply? im so not into legal stuff...

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