Advisory to the Pro Se Litigant #9: If Served with a lawsuit, you must respond

If You Have Been Served With A Complaint, You Must Respond In Some Manner If you have been served with a lawsuit, you first need to determine how you want to respond. You have two primary options: a) file an Answer that responds to each statement in the Complaint; b) file a Motion which attacks the legal sufficiency of the lawsuit. (A Motion is a request to the Court). An answer is a factual reply to the lawsuit, generally one that responds to the complaint, paragraph by paragraph. There are nine types of Motions one might file in response to a Complaint are: a) Motion to Dismiss for failure to state a claim upon which relief can be granted b) Motion to Dismiss for lack of jurisdiction over the person c) Motion to Dismiss for improper venue d) Motion to Dismiss for insufficiency of Process e) Motion to Dismiss for insufficiency of service of process f) Motion to Dismiss for lack of jurisdiction over the subject matter g) Motion to Dismiss for failure to join a party under Rule 2-211 h) Motion to Dismiss due to discharge in bankruptcy i) Motion to Dismiss for governmental immunity Each of these motions seeks to dismiss (throw out) the case, effectively allowing the defendant(s) to “win” without having to defend the case itself. A Motion to Dismiss For Failure To State A Claim Upon Which Relief May Be Granted is the Appropriate Response to A Complaint Which Alleges Behavior Which No Relief May Be Granted to the Plaintiff If someone sues you for an alleged “wrong” that is not actually unlawful, you may file a Motion to Dismiss for failure to state a claim upon which relief may be granted. There are four primary reasons what one may want to file such a motion: 1. No Law Violated: If the complaint fails to allege that a law was violated, it is appropriate to file a motion to dismiss. For instance, the facts alleged may amount to a moral or ethical wrong that is not made unlawful by state or federal law. In that instance, dismissal would be appropriate—as courts are only permitted to rule on issues concerning American law. 2. Facts Don’ Violate Law: If the complaint fails to allege facts that, if proven true, would violate the law, it is appropriate to file a motion to dismiss. For instance, it may be that the complaint alleges that a law was violated, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the law was in fact violated. In that instance, dismissal would be appropriate – as courts are not expected to hear cases where there is no possible hope of recovery. 3. Wrong Defendant: If the complaint alleges that a law was violated and alleges appropriate facts that would violate the law, but sues the wrong defendant, it would be appropriate to file a motion to dismiss. For instance, it may be that the facts may allege a legal violation, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the defendant is legally responsible for the violation. In that instance, dismissal would be appropriate (at least for that defendant) – as courts are not expected to hear cases where there is no possible hope of recovery. 4. Wrong Plaintiff: If the complaint alleges that a law was violated and alleges appropriate facts that would violate the law, but the plaintiff is not someone with a right to recover under the law, it is appropriate to file a motion to dismiss. For instance, it may be that the facts allege a legal violation, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the plaintiff is entitled to a recovery – because someone other than the plaintiff is the alleged victim. In that instance, dismissal would be appropriate (at least for the claims brought by the particular plaintiff) – as courts are not expected to hear cases where there is no possible hope of recovery. Additional Motions to Dismiss Are Available to Defendants When the Court in Which Suit Has Been Brought Cannot Legally Provide the Remedy Sought, Courts are prohibited from hearing cases they are not established to hear. Thus, if you are served with a lawsuit before a court which you believe is not empowered to hear the case, you may file one of the following motions: • Motion to Dismiss because of Lack of Jurisdiction over the Person or • Motion to Dismiss because of Lack of Jurisdiction over the Subject Matter Just as Courts (in general) are not authorized to issue decisions on disputes that don’t involve American laws, Maryland courts are not authorized to issue decisions on cases don’t involve Maryland residents, Maryland businesses, or incidents occurring in Maryland. Thus, even if the complaint alleges a law was violated and alleges appropriate facts that would violate the law, but there is no legally sufficient reason why a Maryland court should hear the case, it is appropriate to file a motion to dismiss. For instance, if the alleged wrongdoing occurred outside Maryland and the defendant has had no interactions inside Maryland, nor a resident of Maryland, dismissal would be appropriate. In addition, one should not file in circuit court a case where the district courts have exclusive jurisdiction -- and should not file in district court a case where the circuit court has exclusive jurisdiction. See 4d above. (It should be noted that many judges will sooner transfer a case to a proper jurisdiction than dismiss for lack of jurisdiction. However, as with most complicatd areas of law, case law may be consulted, but no precise result can be guaranteed and you should consider consulting an attorney for further guidance.) Motion to Dismiss for Improper Venue Similarly, even when cases are properly brought in Maryland, they should be brought in the proper county. For instance, a resident of Montgomery County having a dispute with another resident of Montgomery County, concerning a matter occurring solely in Montgomery County, thereby under the laws of Montgomery County, should not bring their dispute to court in another venue, and runs the risks of dismissal for improper venue for that reason. (It should be noted that many judges will sooner transfer a case to a proper venue than dismiss for lack of venue. However, as with most complicated areas of law, case law may be consulted, but no precise result can be guaranteed and you should consider consulting an attorney for further guidance.) Maryland provides for the following optional motions as well: Motion to Dismiss for insufficiency of ProcessWhere there is an important error on the documents served on Defendant(s), such as if it mis-states the deadline to respond to the suit or fails to provide an address with which the defendant can respond, a court may grant defendant’s motion to dismiss for insufficiency of process. Motion to Dismiss for insufficiency of service of processWhere there is an important error concerning how the documents were served, such as if they were handed to a minor child or left with a neighbor, defendant may have grounds for a motion to dismiss. To better understand the Motion to Dismiss for insufficiency of process, please review section 7 above to better understand what is expected of a party serving a defendant. Motion to Dismiss for failure to join a party under Rule 2-211Where there is another person or persons who should have been sued, or joined as a co-plaintiff, Defendant may file a motion to dismiss, arguing that plaintiff failed to sue or join all the right parties—and thus the suit as designed should not proceed. For instance, someone who has a patent on the processing of a product may sue another company for using the same processing without the patent-holders’ consent. However, in such a suit, the patent-holder is required by federal law to include any co-owner as a co-plaintiff -- and failing to do so may be the basis of a motion to dismiss for failure to join a party under Rule 2-211. Motion to Dismiss due to discharge in bankruptcyWhen an individual or company is granted a discharge of past debts through a bankruptcy (which can only be done through the United States Bankruptcy Courts), a plaintiff cannot thereafter recover for those debts. Therefore, a defendant, once being sued for a debt or liability that was discharged through a bankruptcy may ask the court to dismiss the suit. If you have a claim against a defendant who is proceeding in a bankruptcy, you should contact a lawyer or the United States Bankruptcy Court to pursue your rights to recover in that forum. Motion to Dismiss for governmental immunityThe Eleventh Amendment to the United States Constitution, and similar terminology in various state constitutions provide that the government is immune from lawsuits in all areas in which immunity have not been waived. For instance, in the employment law context, the federal government cannot be held financially liable under the Family Medical Leave Act, although it can be liable under Title VII of the 1964 Civil Rights Act.

The Good News (for Legal Diversity):Christianity's Liberty University Law School Accredited

This past August, Liberty University School of Law received accreditation. What makes Liberty University unique among law schools is its uniquely conservative Christian perspective on the legal system. According to its own website, they: "believe that truth is knowable, see law as a creation of God designed to protect life over death, liberty over tyranny, and bring order out of chaos. Founded in and originating from God, law is infused with transcendent principles that surpass time, geography, and politics. Positive law must be in consistent with natural and revealed law." Despite the fact that my perspective on the law is drastically different than that of those promulgating this institution, I am very pleased by this development. In many ways, as I shall explain, I hope this is the sign of things to come. There are approximately 200 law schools in the United States. Most of them claim no ideology other than "success." Thus, although there are indeed differences in offerings among the various law schools, there is also a certain uniformity that makes legal education in one institution fairly interchangeable from another. From what I can tell, most law schools compete with themselves for the students with the best match of high college grades, LSAT scores, and most likely to obtain financial success in the marketplace. Although different schools have different matricies when comparing applicants, for the most part, they are all looking for the same ideal, the "A" student with perfect test scores who is likely to secure a lucrative job and contribute lots of money to the institution. This effectively means that the student's motivation to attend law school is not necessarily a contributing factor to their acceptance or rejection. I remember one law school dean explaining to me, when I was exploring law school, that"no amount of work experience and commitment to the social good can outweigh the combination of good grades and a good LSAT because all we care about is bringing in students who can succeed in our program."

Part of this stems from the fact that schools often compete for funding and respect based on set criteria established by independent groups like US News and World Report. Therefore, schools generally focus their attention on competing in terms recognized by ranking groups like US News and World report.

These rankings are also crucial for student job prospects. Thus, there is a great incentive on the part of the management of each law school to fit to compete in the arenas that draw attention by US News and World Report. This can have the side effect of making law schools as uniform as possible. This uniformity has some favorable effects, such as lawyers having a common set of academic material with which they are all familiar. From the job prospect side, it also means that an employer can trust that a graduate of any law school has a certain knowledge and experience. The downside, however, is that the legal community runs the risk of a paucity of diverse ideological perspectives on the law. This is especially true when law school focus their attention on employability and marketability, rather than directing students to think about how they can contribute to the development of the law or society.

My law school for instance, has a noble history of providing legal education to working class night students, many of whom work during the day and many of whom did not go to fancy colleges. Many of these students have family obligations, and thus do not have the luxury of making law school a full time endeavor. These night students bring an experience to the legal community that is not available to law school students without serious work experience. However, because of the uniformity above discussed, traditional students who come from right from undergrad with stellar grades and test scores are sometimes more attractive students to schools than those with diverse experiences on their record. The cumulative effect of this is that law schools compete for the same students, train students in very similar ways, and encourage them to compete for the same big law firm jobs.

Thus, I see good news in the establishment of Liberty University Law School. In it, I see a possibility of various law schools providing more diversity in the legal profession. For instance, just as Liberty University provides a conservative Christian approach, another school could provide an approach that is uniquely leftist, or another which is more academic oriented. An example of what I have in mind is in recent history, namely Antioch School of Law, which is the predecessor to the law school of the University of the District of Columbia. Antioch was unique because its singular focus was to train lawyers dedicated to public interest and low income advocacy and representation. According to its description on one website, it "pioneered a comprehensive clinic education model." That this is not currently being offered to potential lawyers is a real shame, as there is a very lack of law schools in this country that make concerted efforts to train their students to represent the disadvantaged, and those who cannot afford expensive counsel. Although most law schools profess a commitment to encouraging public interest work to some extent, there is no other school uniquely committed to such an endeavor. In most schools, in fact, the presumption that one is driven to the law for financial gain is so strong, that schools publicly push their students to do a certain amount of pro bono work--because obviously they wouldn't consider more reasonable hourly rates or other creative mechanisms to make their business affordable. Antioch took the radical approach of having their students reside temporarily in low income neighborhoods in order to appreciate the challenges they were being asked to address. As the goal was to encourage service to communities otherwise without legal services, it is quite easy to admire the extent to which Antioch went to advance its agenda. I don't mean to suggest that Antioch and Liberty are sole members of a family of law schools with their own approaches. Certainly Northeastern University deserves lots of credit for its cooperative legal education program. At Northeastern, students are required to intern during the course of their educational career, thus making their experience in the workplace an essential part of their education. Also, all students spend a certain amount of time doing public interest work. The school is very selective. For the class of 2011, there were over 3 thousand applicants competing for the 200 available spots. I envision a world in which there can be more diversity in legal education. In all frankness, I envision a world in which legal education was far less expensive, and perhaps easier to come by. For instance, I went to a college called St. John's College where we read and discussed the great books of Western civilization. We were graded on our engagement with the philosophers, not purely our memorization of theorems. Why not a law school that is drive to engage the philosophers and questioners of law, rather than merely the comprehension of the prevailing method for addressing known legal problems? In the course of this analysis, one must ask whether my suggestion might also lead to the inadvertent specialization of law schools. Perhaps one law school would direct their students to become experts at law for the medical profession and others would direct their students to become experts at law relating to malpractice or auto injury. On one hand, it seems reasonable that a profession might desire newly minted lawyers with specialization in their field. On the other hand, a nation of specialists would be a serious problem. Thus, although it seems reasonable that professions have a right to train a cadre of lawyers to focus on their needs, the fact that lawyers generally have the ability to be generalists and to go from one field to another is a wonderful trait that we must guard against losing. Thus, in applying the ideas in this essay, their must be balance.

Advisory to the Pro Se Litigant #8: Giving the Defendant Propoer Notice of the Suit

If you are filing a lawsuit, you are responsible to assure that the Defendant(s) learn about the lawsuit. Just as it would be unfair to try you with a crime without affording you the opportunity to respond, it is unfair for you to sue another party without giving them an opportunity to respond. Consequently, court rules provide that you deliver a copy of the court complaint, along with a “summons” to the Defendant. This delivery is known as “service.” If you are suing an individual, it is important that you deliver the complaint and summons to the Defendant personally. The rules also provide that you can deliver the summons and complaint by (1) mailing it to them by certified mail, specifying “restricted delivery” or (2) by leaving the complaint and summons at the Defendant’s residence with a competent adult. See Maryland Court Rule 2-121. Each court and jurisdiction has additional options if these aren’t successful. Once court in New Zealand, with similar rules of service to those in Maryland, accepted service by “facebook” when all other efforts to serve were exhausted. Be advised that you are typically required to serve the defendant usually within sixty days. If you are unable to do so within that time frame, you should contact the court concerning your options. The purpose of the laws of service are to assure that each defendant is given a an opportunity to respond and/or oppose the claims asserted. It would be unfair and improper to proceed without that assurance.

Advisory to the Pro Se Litigant #7: Choosing the Correct Defendant: Identify With Whom You Truly Dispute

It is important that when filing a lawsuit, you sue the proper person or entity, and you name him, her, or it correctly. For instance, let’s say you have a dispute with the managers of a store, and you believe that the dispute is one for which you have a reason to file a lawsuit. You must decide whether your dispute is with the manager personally, or really with the store the manager represents. If you sue the manager personally, you are trying to hold the manager personally financially liable for the harm caused you. If you sue the store itself, you are effectively claiming that the manager’s wrongdoing was of the type for which the store itself should be liable. Choosing the correct defendant is important. If you name a defendant which could not possibly be legally liable for the wrongdoing you claim, a court may dismiss (toss out) your lawsuit. Ultimately, a court could hold you financially liable to the Defendant for pursuing a lawsuit that you should have known was not appropriate. One related problem is the importance of suing the proper entity. This often arises when one is suing a government entity or large corporation. For instance, when interacting with various federal agencies, you may not be immediately aware that the entity you are interacting with is only an element of or subsidiary of a larger federal agency. For instance, the Department of the Navy is an aspect of the Department of Defense—and the Department of Defense is the proper defendant. (Note that when suing federal agencies, you are expected to name the Secretary of the Department in “his or her official capacity.”). Similarly, corporations often have trade names and division names with which you are more familiar than the name of the proper corporate entity with which you have a dispute. When suing a private entity, one resource is available, through which you can investigate the formal name of the entity with which you are in dispute. In Maryland, the State Department of Assessment and Taxation has an online resource (see http://sdatcert3.resiusa.org/ucc-charter/CharterSearch_f.asp) through which you can locate important charter information about corporate entities. It also provides information about the ownership of real property throughout the state. See http://sdatcert3.resiusa.org/rp_rewrite/.