MD - Filed Motion To Compel - No Answer - What Next?

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Latest post 11-30-2009 9:29 PM by adjuster jack. 11 replies.
  • 11-12-2009 9:45 PM

    MD - Filed Motion To Compel - No Answer - What Next?

    Hello,

    I am in MD and have a $30k lawsuit against a plumber in Baltimore City.  I won an initial judgment against him (he failed to appear) but he claimed he was never served so we have to go through the whole process again.

    This time around I sent him several certified sets of interrogatories (same questions, mailed multiple times).  He never responded, so I filed a motion to compel.  The judge ordered the motion and copies were sent to me and the plumber giving him notice he has 15 days to file his answers.  This upcoming Monday will be 15 days since the order.

    My question is, once he has failed to answer within the alloted time, what is my next step in the process?  Should I ask that he be held in contempt?

    Alos, our trial is set for December 1st.  If he fails to appear for that and I get another default against him, can he also claim not to have been served on that one?  Thanks in advance for any help you can offer!

  • 11-12-2009 9:54 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    BummedInBaltimore:
    My question is, once he has failed to answer within the alloted time, what is my next step in the process? Should I ask that he be held in contempt?

    Yes.

    Do you know how to do that?

    BummedInBaltimore:
    Alos, our trial is set for December 1st. If he fails to appear for that and I get another default against him, can he also claim not to have been served on that one?

    He can "claim" anything he wants to, but I doubt if the judge will buy it unless you made the mistake of not using a professional process server to hand him the summons and complaint.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-12-2009 9:57 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    Thanks for the quick reply!  I don't know how to ask him to be held in contempt, nor do I know what outcome that means for him or myself.  It is my general understanding that would essentially result in fines for him.  Is that correct?

    As for service, he was served by the court for both trials.  The only reason the judge allowed me to continue with the original hearing was because they had proof of service.  He was sneaky when he filed his appeal to the default judgment and never served me notice, so I didn't show for that hearing.  I'll know better next time...

    Thanks again!

  • 11-12-2009 10:20 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    BummedInBaltimore:
    I don't know how to ask him to be held in contempt,

    I found this form on the District Court forms list. It's not exactly what you need but it's close enough so that you can retype it on your computer with appropriate changes to show your court and your specifics.

    http://www.courts.stat...

    I would first check with your court's website or clerk, though, to see if there is a similar form that is specific to your court and issues.

    This one is apparenlty for post-judgment issues as the Rule 3-633 has to do with post judgment enforcement and not pre-trial discovery.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-12-2009 10:31 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    Thanks for finding that!  Is it reasonable to check the "Jail Requested" portion of this form in a situation like this?  If I don't check that box, what incentive does the defendant have to show in court?

  • 11-12-2009 10:48 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    BummedInBaltimore:
    Is it reasonable to check the "Jail Requested" portion of this form in a situation like this?

    Oh, I'd certainly check it.

    It probably won't happen, but I'd hope that it'd sure freak out the defendant.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-13-2009 3:12 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    I'd file for a Default Judgement Motion or ask for sanctions including jail if he fails to respond to the interrogatories by COB Monday. BTW- Was it 15 calendar or business days?

    Even if you win a judgment, how do you plan on collecting?

  • 11-13-2009 3:24 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    mudpie:
    I'd file for a Default Judgement Motion or ask for sanctions including jail if he fails to respond to the interrogatories by COB Monday.

    Maybe YOU would, but it would be denied or just ignored.

    That's not a proper motion for issues that arise during the discovery period with regard to the exchange of documents.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-23-2009 7:23 AM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    I had filed this case previously and won a default judgment since the defendant did not show (though I did need to conduct the trial, interview witnesses, etc. for the judge since it is a high dollar case).  Before we were able to proceed with that trial the judge confirmed the defendant was properly served notice.  The defendant waited to receive notice of the judgment, then filed to have it overturned (without sending me notice of his motion) and was granted his motion.

    So, now I am litigating the case again and it looks as if he is going to do the same thing.  He was properly served notice of the upcoming trial by the court, but any certified mail I have sent (interrogatories, etc.) has been returned.  I am suing the company itself, and mail has been sent to their business address, so I know someone is receiving the mail, but they are deliberately refusing it.

    My question is, if I get another default judgment against the company because he doesn't show up, can they just file to have it thrown out again, or can they only do that once?  Is there anything I can do during the court case (show pictures of their business address to prove it is the same) to prevent this from happening again?

    Thanks for any help you can provide!

  • 11-23-2009 10:19 AM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    BummedInBaltimore:
    if I get another default judgment against the company because he doesn't show up, can they just file to have it thrown out again,

    You have to understand the difference between being able to do something and the consequences of doing it.

    So, yes, they CAN file another motion to vacate or set aside the judgment. Then it's up to the judge to grant or deny the motion. Given the circumstances, my guess would be that he'd deny it.

    BummedInBaltimore:
    Is there anything I can do during the court case (show pictures of their business address to prove it is the same) to prevent this from happening again?

    No.

    Not to prevent another motion.

    A litigant is entitled to try to use any and every legal process and procedure available to him.

    There's nothing you can do to prevent it from happening, you can only fix it when it does.

    You can certainly file a response to the motion, opposing it, and presenting whatever evidence you have that will show that the motion is spurious.

    By the way, did you file a response to the first motion to vacate?

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-30-2009 8:40 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    Thanks again for your help with this.

    I did actually file a motion in response to the defendant's first motion to vacate.  I argued on the grounds that I was not served a notice for his motion, that he had in fact received notice and that he had no meritorious defense of the facts.  The court sent me a note saying the "motion is moot."

    My mistake was sending an e-mail to the defendant the day after the first trial asking him to set up a payment plan for the judgment.  He filed his motion to vacate and I was never notified.

    So, now we have the re-trial tomorrow morning and I will once again have to pay my expert witnesses to attend and waste an afternoon in court.  So, if you're not tired of this thread yet, I have a few more questions.

    1) Is it reasonable for me to ask for the costs of the expert witnesses for the 2nd trial as part of my damages?

    2) It is my understanding that after a certain period the defendant cannot file a motion to vacate. How long is this period?

    3) Since I am suing a corporate entity, how do I go about finding what assets are owned in the corporate name?  I know I can send interrogatories, but is there a way to find out about property or autos outside of that?

  • 11-30-2009 9:29 PM In reply to

    Re: MD - Filed Motion To Compel - No Answer - What Next?

    BummedInBaltimore:
    I did actually file a motion in response to the defendant's first motion to vacate. I argued on the grounds that I was not served a notice for his motion, that he had in fact received notice and that he had no meritorious defense of the facts. The court sent me a note saying the "motion is moot."

    Yeah, that's common. Courts prefer to hear cases on the merits so they are very liberal about vacating default judgments.

    BummedInBaltimore:
    My mistake was sending an e-mail to the defendant the day after the first trial asking him to set up a payment plan for the judgment.

    Yes.

    A mistake. And a sign of weakness and vulnerability.

    When you have a judgment for X dollars, it's 100% payable and you enforce it that way. You don't negotiate voluntary payment plans with the defendant. That just puts you right back where you started from. No money.

    BummedInBaltimore:
    So, if you're not tired of this thread yet, I have a few more questions.

    Nope. Not tired of it. Always happy to provide what little help that I can.

    BummedInBaltimore:
    1) Is it reasonable for me to ask for the costs of the expert witnesses for the 2nd trial as part of my damages?

    Sure.

    It's reasonable to ask.

    You just won't get it. Each party bears his own costs. That's how the system works. There are exceptions. Like if you had a contract specifying that loser pays winner's litigation costs. Do you have that?

    BummedInBaltimore:
    2) It is my understanding that after a certain period the defendant cannot file a motion to vacate. How long is this period?

    30 days according to MD Rules Title 2 Civil Procedure - Circuit Court, Rule 2-613. Default Judgment, paragraph (d):

    http://michie.lexisnex...

    You can find all the rules of court at

    http://michie.lexisnex...=

    BummedInBaltimore:
    3) Since I am suing a corporate entity, how do I go about finding what assets are owned in the corporate name? I know I can send interrogatories, but is there a way to find out about property or autos outside of that?

    You're mileage may vary but here's a couple of suggestions:

    1 - Have somebody visit the business and look around.

    2 - County assessor to see if corporation owns any real estate.

    3 - County recorder for any recorded documents in the corporation name. In addition to deeds, look for UCC filings that would indicate that the corporation financed some sort of personal property or equipment. Could be other documents as well, that might lead you to other leads.

    4 - DMV to see if vehicles are titled under the corporate name. You can try taking your judgment to the DMV and see if that's good enough to get the information released to you. If not, you'd have to hire an investigative service that has access. Not sure it would do you much good as most corporate owned vehicles are financed or leased and the process of executing against a vehicle is expensive and iffy and not worth doing unless the corporation owns expensive cars outright.

     

    If you win the judgment again, I suggest you take a run at the corporate bank account, wherever it might be. You'll have to wait 10 days after the judgment is entered per Rule 2-632 (b):

    http://michie.lexisnex...

    The details about garnishment of bank accounts are in Rule 2-645:

    http://michie.lexisnex...

     

    Good hunting tomorrow.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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