No response

[annemichellesdad]

State of GA

Forty-four days ago, I filed a lawsuit for damages against my ex.

It included:
1 - a verified complaint
2 - a summons (based on standard form provided by Georgia's court sysem)
3 - sherrif's acknowledgment of service (again, a form)

She was personally served by the sheriff just 2 days following its filing.

The documents have been checked and double-checked for accuracy.

As of today, I have received no response. State law permits me to file a motion for default judgment after 30 days if no response has been forthcoming. Before I do that, I want to stand back and look at the situation and see if there is something which I may be missing. She may or may not have an attorney. Her father has been involved as both plaintiff and defendant in 28 separate civil lawsuits in just 12 years and has always been pro se, and he may have counciled her to do the same. He also has a strong history of not responding to motions and not showing up for hearings. (He has lost more than he has won.)

ONE QUESTION:

Based on what I have said, do you readily see any pitfall into which my complaint may have fallen so as to not obligate her to respond in any way?

I understand that the issue of service and a summons is crucial to beginning each case and paid particular attention to these details. I just don't want to assume that she's willing to have a default judgment against her, and want to explore any avenues before filing it.

[socrateaser]

>ONE QUESTION:
>
>Based on what I have said, do you readily see any pitfall into
>which my complaint may have fallen so as to not obligate her
>to respond in any way?

I don't know the facts concerning subject matter (the nature of the complaint) and personal jurisdiction (whether the court can fairly assert authority over the defendant), so I can't answer.

You are quite the pro se litigator, I will give you that.

[annemichellesdad]

One count is malicious prosecution. Another is for false imprisonment. The third is for a declaratory judgment for the recognition of parental rights in GA as established under administrative law and judgment in VA. (She claimed in one of maliciously prosecuted allegations that I had "voluntarily relinguished [my] parental rights". What?? Even if it were possible, I'd NEVER!!)

The county where it was filed is her own county of residence. The superior court of her own county should be able to excercise both personal and subject matter jurisdiction over the matter.

I've poured over every word looking for a "fatal flaw" which might justify no response, but simply can't find it. There's plenty of facts that she could ARGUE, but to not respond at all is bewildering.

The complaint 1) is in standard format, 2) details the parties to the action, 3) states jurisdiction, 4) alleges facts of wrongdoing and causes of action, 5) prayer for relief, summons, certificate of service, and verification. It was filed with the court clerk and served by the sheriff at her home.

Here is the statute regarding declaratory judgments:
Title 9, Chapter 4, Section 2 (9-4-2)
(a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(b) In addition to the cases specified in subsection (a) of this Code section, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(c) Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.

>
>I don't know the facts concerning subject matter (the nature
>of the complaint) and personal jurisdiction (whether the court
>can fairly assert authority over the defendant), so I can't
>answer.
>
>You are quite the pro se litigator, I will give you that.

I have to be... this woman is addicted to litigation and keeps me busy! Every few months, she brings a civil action or criminal charge, and EVERY single one has either been dismissed by her voluntarily, by the judge, or by prosecutors! One time, after dismissing the a motion for contempt, she actually demanded that I pay her attorney fees! I figured that she needs to be on the defending side some time, or it will never stop! :)

[socrateaser]

Since you updated this, I assume you're looking for further comment, even though you haven't actually asked a question.

The only thing that seems a little weird is that your count for declaratory relief really has no relevance to your other civil actions.

I don't know that I would have originated both in the same pleadings -- I probably would have pled them as separate cases -- although that would be more expensive to file, it would keep the issues clear, and you would get a different judge assigned, which generally improves your odds of winning. Sort of like playing two hands of blackjack instead of one -- mo money on the table, but less likely to lose both hands over the long haul.

Anyway, since you're apparently getting a default, it doesn't really matter what you filed, because you win all the marbles.

So file for the default and let's see if your opponent's hole card is an ace.

[annemichellesdad]

Much thanks! We'll try for the default, then!

[dancurry]

"I probably would have pled them as separate cases "

Just curious. My understanding is that you must plead all causes of action against a party in one complaint just as the defendant must plead all affirmative defenses in their answer.

Also, I don't know about his State, but even though I have a default against my ex in a Civil case, I'm still required to prove any damages in excess of acutal monetary losses. Because of this, I will have to prepare for a proveup hearing and prepare a trial brief and such. Not a walk in the park when it comes to proving losses from emotional damages. In my case I will likely hired, at great expense, a forensic psychologist to proved this evidence.



Questions.

1. (regarding first paragraph) Am I off base, misunderstanding the subject matter or just goofy?

2. (regarding second paragraph). Does this differ much from state to state? If so, perhaps I should have filed in a different state to better my odds? :-)

[socrateaser]

>Questions.
>
>1. (regarding first paragraph) Am I off base, misunderstanding
>the subject matter or just goofy?

Plaintiff must plead all causes of action arising under of the "same transaction or occurance." Poster's facts suggest that he's suing for torts, and then asking for declaratory relief that has nothing to do with the tortious events.

If it weren't for the default, opposing counsel could probably get the declaratory count dismissed.

>
>2. (regarding second paragraph). Does this differ much from
>state to state? If so, perhaps I should have filed in a
>different state to better my odds? :-)

Damages are pretty consistent across jurisdiction, except where professional malpractice issues are concerned.

[annemichellesdad]

I've given it more time for a response, and one hasn't been forthcoming, so I'm going to go ahead with a motion for default judgment. Her father seems to be doing the same thing with a divorce, so maybe he's counciled her in that direction... it's kind of a habit for him. I thought for a while maybe she had an attorney and he had found some fatal flaw in the lawsuit that would not require her to answer, but she's done some things lately which clearly suggest she doesn't have an attorney at all.

However, I have two questions about the motion for default judgment. The original complaint consisted of several counts. One of the stated requests for relief was for reimbursement of attorney fees for my defense of her claim which was dismissed (economic damages). For that, I requested an actual dollar amount, and provided an exhibit showing the amount. However, I also requested non-economic damages "in an amount to be determined at trial". A jury trial was requested.

1 - If there's no trial, and no jury to decide upon the damages, how will these damages be decided?

2 -  Should the motion for default judgment address the issue of amounts in any way?

Thank you!

[socrateaser]

>I've given it more time for a response, and one hasn't been
>forthcoming, so I'm going to go ahead with a motion for
>default judgment. Her father seems to be doing the same thing
>with a divorce, so maybe he's counciled her in that
>direction... it's kind of a habit for him. I thought for a
>while maybe she had an attorney and he had found some fatal
>flaw in the lawsuit that would not require her to answer, but
>she's done some things lately which clearly suggest she
>doesn't have an attorney at all.
>
>However, I have two questions about the motion for default
>judgment. The original complaint consisted of several counts.
>One of the stated requests for relief was for reimbursement of
>attorney fees for my defense of her claim which was dismissed
>(economic damages). For that, I requested an actual dollar
>amount, and provided an exhibit showing the amount. However, I
>also requested non-economic damages "in an amount to be
>determined at trial". A jury trial was requested.
>
>1 - If there's no trial, and no jury to decide upon the
>damages, how will these damages be decided?

Well, you seem to have finally identified the reason why your ex never answered your complaint.

Legal Damages 101.

Malicious Prosecution and False Imprisonment are tort actions. Damages in such cases must be foreseeable, unavoidable, causal, and CERTAIN.

In short, you must plead for a specific amount of money in your complaint or your judgment will grant you only nominal damages.

On your count for declaratory relief, you're not asking for damages, so you won't get any.

As for attorney fees, they are not allowed in a tort action, unless your case acts to provide a benefit for the entire public (called the "private attorney-general doctrine"). Also, you can't get attorney fees unless you have an attorney (or you are an attorney and you are charging for the reasonable cost of your own legal services, which you would have otherwise had to pay an attorney for, had you not been an attorney).

In short, what you will win on your default -- is nothing ($1.00 USD is the standard "nominal" damage award).

>2 -  Should the motion for default judgment address the issue
>of amounts in any way?

You need to amend the complaint and plead a specific damage amount, and serve it on the defendant. Example:

"Wherefore, plaintiff prays for general damages in the amount of $________,"

General damages are damages intended to make the plaintiff whole, i.e., to compensate for the pain and suffering which defendant caused plaintiff.

You could also pray for special damages, but you must specifically request them. Example: "Plaintiff further prays for special damages in the amount of $______ to recover for lost work occuring during plaintiff's incarceration."

Special damages are damages for injuries sustained that are a natural consequence of the injury suffered, and which were reasonably foreseeable in advance.

Incidental damages are actual out-of-pocket costs (a species of compensatory), resulting from the injury, which should be pled separately, although, as they are the easiest to prove, they can usually be dumped into the compensatory damage award, unless they're really big (e.g., cost of posting bail, impound fees, ambulance/ER room charges in personal injury action, etc.).

Finally, you could also plead for punitive damages where defendant's actions are intentional, willful and malicious.  False imprisonment and malicious pros are both intentional torts, so punitives are allowed, but in some jurisdictions you must file a motion to plead punitive damages, showing good cause as to why court should punish the defendant, rather than plead for punitives in the complaint itself.

Also, some jurisdictions place limits on punitives, and there are constitutional limits created by the due process clause, which essentially says that punitives more than something between 3 and 10 times compensatory damages violate the defendant's right to be free from arbitrary, capricious and unfair government action.

So, it's back to the drawing board.

[annemichellesdad]

I had a feeling that an amendment might be in order if she did not respond.

The attorney fees I requested were not to compensate for the tort action, but rather the fees accrued in defense of her malicious prosecution accusation. I spent $2500 on an attorney defending myself last year. Several months after being successfully defended, I wrote to her attorney requesting that she pay at least HALF of those fees, since her charge was obviously frivilous and malicious, and, of course, terminated in my favor. No response, of course.

>
>Well, you seem to have finally identified the reason why your
>ex never answered your complaint.
>
>Legal Damages 101.
>
>Malicious Prosecution and False Imprisonment are tort actions.
>Damages in such cases must be foreseeable, unavoidable,
>causal, and CERTAIN.
>
>In short, you must plead for a specific amount of money in
>your complaint or your judgment will grant you only nominal
>damages.
>
>On your count for declaratory relief, you're not asking for
>damages, so you won't get any.
>
>As for attorney fees, they are not allowed in a tort action,
>unless your case acts to provide a benefit for the entire
>public (called the "private attorney-general doctrine"). Also,
>you can't get attorney fees unless you have an attorney (or
>you are an attorney and you are charging for the reasonable
>cost of your own legal services, which you would have
>otherwise had to pay an attorney for, had you not been an
>attorney).
>
>In short, what you will win on your default -- is nothing
>($1.00 USD is the standard "nominal" damage award).
>
>>2 -  Should the motion for default judgment address the
>issue
>>of amounts in any way?
>
>You need to amend the complaint and plead a specific damage
>amount, and serve it on the defendant. Example:
>
>"Wherefore, plaintiff prays for general damages in the amount
>of $________,"
>
>General damages are damages intended to make the plaintiff
>whole, i.e., to compensate for the pain and suffering which
>defendant caused plaintiff.
>
>You could also pray for special damages, but you must
>specifically request them. Example: "Plaintiff further prays
>for special damages in the amount of $______ to recover for
>lost work occuring during plaintiff's incarceration."
>
>Special damages are damages for injuries sustained that are a
>natural consequence of the injury suffered, and which were
>reasonably foreseeable in advance.
>
>Incidental damages are actual out-of-pocket costs (a species
>of compensatory), resulting from the injury, which should be
>pled separately, although, as they are the easiest to prove,
>they can usually be dumped into the compensatory damage award,
>unless they're really big (e.g., cost of posting bail, impound
>fees, ambulance/ER room charges in personal injury action,
>etc.).
>
>Finally, you could also plead for punitive damages where
>defendant's actions are intentional, willful and malicious.
>False imprisonment and malicious pros are both intentional
>torts, so punitives are allowed, but in some jurisdictions you
>must file a motion to plead punitive damages, showing good
>cause as to why court should punish the defendant, rather than
>plead for punitives in the complaint itself.

Yes, GA is such a jurisidiction in which punitive damages must be plead in a separate motion. In fact, I've heard of cases being overturned in which punitive damages were awarded when requests were made in the original pleading rather than a separate motion. (I guess attorneys make mistakes, too!) Georgia has also placed a cap on punitive damages of $275, and 75% of any such punitive award goes to GA's own general treasury.

>
>Also, some jurisdictions place limits on punitives, and there
>are constitutional limits created by the due process clause,
>which essentially says that punitives more than something
>between 3 and 10 times compensatory damages violate the
>defendant's right to be free from arbitrary, capricious and
>unfair government action.
>
>So, it's back to the drawing board.

Yep, I didn't go through all the trouble to collect only the $2500!