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Dropping a lawsuit that there is a countersuit to

Discussion in 'Civil Court, Procedure & Litigation' started by rutnbuck, Feb 1, 2012.

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  1. rutnbuck

    rutnbuck Law Topic Starter New Member

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    We need to drop our lawsuit but the other party has a countersuit, can we drop our lawsuit and if they don't drop their counter we will just deal with that? We have told our lawyer three times now to drop it over the past 4 months and she refuses to saying it is against the law, that they have the right to counter. We understand that but we can defend ourselves against that if they don't drop it also. So can we drop ours.
     
  2. army judge

    army judge Super Moderator

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    You hired a lawyer.

    You paid good money to retain that lawyer.

    I'd follow your lawyer's advice.

    If you insist on dropping your lawsuit, I suppose you could fire your lawyer.

    Then you could file a motion to dismiss your lawsuit.

    That leaves you open to a default judgment, because if you're allowed to dismiss your lawsuit, that doesn't mean the counter suit goes away.

    By the way, you can't dismiss your lawsuit.

    You can ask the court to dismiss your lawsuit.

    If that motion is granted, it'll be up to the court.
     
  3. rutnbuck

    rutnbuck Law Topic Starter New Member

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    Thank you, but if our lawyer was doing her job in the first place we would not even have to consider trying to drop!
     
  4. army judge

    army judge Super Moderator

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    I can't comment on that.

    But, this might help you.

    It is as I thought, once a counter claim has been brought; a plaintiff is barred from dismissing their original claim.

    Your lawyer is doing her job.

    You can't move to dismiss your lawsuit, because you have been counter claimed against.

    Now the counter claim MUST be heard.

    Only the person asserting the counter claim can move to dismiss their lawsuit.

    This is called due process.



    D. A party shall not be allowed to nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, cross claim or third-party claim which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the counterclaim, cross claim or third-party claim can remain pending for independent adjudication by the court.


    http://leg1.state.va.us/cgi-bin/legp504.exe?000+coh+8.01-380+501038











    If you're unsatisfied with the performance of your attorney you can fire her.

    I wouldn't, she appears to be saving your rear!!!!

    You might want to thank her and heed her admonishment.

    You can also report her to the state bar association outlining your concerns.

    Here is the website to lodge such a complaint in your state.

    http://www.vsb.org/site/regulation/lawyer-discipline

    This site will list information about most VA lawsuits and or cases.

    http://www.courts.state.va.us/

    This site offers some general information about court cases.

    http://www.courts.state.va.us/courtadmin/aoc/legalresearch/faq.pdf

    Virginia is a very progressive state, insofar as obtaining information about legal matters online!!!!


     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    In addition, if you're being countersued and you drop your lawsuit during that time, might it appear to a judge or jury that you dropped your lawsuit because it was frivolous? Are you thinking that if you drop your lawsuit they will drop their lawsuit? I doubt that will happen, especially after you've required them to hire an attorney and get hauled into court. Unless you get a stipulation to settle all matters, this seems like a bad idea and, as you were told, your attorney might have a better handle on the reality of the situation.
     
  6. army judge

    army judge Super Moderator

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    Absolutely spot on legal analysis, Professor.

    But, a plaintiff in VA is barred by statute from nonsuiting their lawsuit (or having their lawsuit dismissed)!!!

    Your rationale behind this matter is correct.

    Public policy directs that our society is best served by penalizing those that bring frivolous lawsuits.

    It also allows an accused party (the defendant) to clear their name by legal process, not by dismissal.

    However, if the plaintiff and defendant agree, the matter can be dismissed.

    But, if I were counsel for such a plaintiff, I'd only advise my client to agree to this only if they were properly compensated for such agreement. I'd also make sure the defendant paid my legal fees, too!
     
  7. bluemann33

    bluemann33 New Member

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    we just had the same going on we found out ...it is a way that the lawer gets paid without you knowing
     

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