Motion to Dismiss
I took over a case from a lawyer who filed a good case about two years ago and did not issue summons. I filed an amended petition and issued summonses and served it. The defense has filed a motion to dismiss, citing 12 O.S § 2004(I) Rule 9 of the Rules for District Courts and 12 OS § 1083. I think that with an amended petition and fresh summonses served timely that there is no basis for dismissing the petition now, particularly since I guess I could refile under 12 O.S. § 100. Any thoughts?
Answer: I suspect your heartburn here comes from Wiley Elec., Inc. v. Brantley, 1988 OK 80, 760 P.2d 182. There, the plaintiff tried to file an amended petition in an already dismissed case. The Court held you couldn’t do that because once the first case was dismissed, the court had no jurisdiction. Take a look at Medlin v. Texaco, Inc., 1996 OK CIV APP 96, 926 P.2d 804. There, the suit remained pending as to another defendant, so the court held that circumstance distinguished Wiley Electric. You also need to be aware of several cases holding the filing of an amended petition without leave of court is a nullity. See: Sedbrook v. Rouse, 1994 OK CIV APP 181, 894 P.2d 435 and Hunter v. Echols, 1991 OK 114, 820 P.2d 450. I’m concerned with how the court will treat your filing of an amended petition. If the court says that was your second filing, life could become very difficult for you.
Posted on Mon, December 28, 2009
by Sharon Coleman