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threat of counterclaim in defendant's original answer


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#1 rpm1023

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Posted 19 November 2012 - 02:15 PM

Defendant's attorney states in original answer to plaintiff that a counterclaim will be filed, but it has not. Is this considered a threat?

#2 Guest_FindLaw_Amir_*

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Posted 19 November 2012 - 02:39 PM

Threat regarding what legal matter?

#3 rpm1023

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Posted 19 November 2012 - 04:18 PM

Dedendant's original special exceptions and affirmative defenses, general denial answer contained the following in the "preliminary statement": Defendant will therefore be filing a motion pursuant to ch 27 TCPRC - AntiSLAPP.
But, no other information in his answer and no motion has been filed with clerk... Including Up to the first hearing for special exceptions six days ago.

#4 adjusterjack

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Posted 19 November 2012 - 05:12 PM

No, it's not a "threat."

It's just notice to the court and to the other party that a motion will be forthcoming.

Once an answer is filed reserving the right to file a counterclaim, there might be a time limit involved but you'll have to check your state's Rules of Civil Procedure to find out.

Or, you can ask your lawyer. Do you have one?

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#5 rpm1023

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Posted 19 November 2012 - 06:36 PM

Time limit is 60th day after day of service.
No. I cannot afford one.
Service date oct 4th, 2012
Ive been researching if this statement without following thru is an intimidating tactic to have the suit dropped and eligible for review as unethical conduct of an atty. "Atty will not threaten to participate in bringing legal claims for the unlawful purpose of gaining advantage in a civil matter." The statement included this "motion" would ask for atty fees, sanctions, court costs... Without making the motion.
And, thank you for responding. Ive tried all sorts of juxtapositions of my question... But, no clear direction on what or how the "threats" can be defended against or examples of those threats.

#6 pg1067

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Posted 20 November 2012 - 07:38 AM

I'm not sure why you think there might be any legal significance as to whether anyone might consider the statement to be a "threat."

Of course, whether it is a "threat" will depend on whether the laws of your unidentified state define that term in any relevant way.

It would appear that you think making a "threat" is illegal, but it's not in most circumstances. You appear to have cited an ethical rule (although you used quotation marks, you clearly didn't actually quote whatever it was that you read), but there is nothing illegal or unethical about threatening a legitimate tactic within the context of a civil action. Again, while you didn't identify your state, the rule typically prohibits threats of criminal or administrative action in order to gain an advantage in a civil action.

Also, an anti-SLAPP motion is not a counterclaim.

#7 adjusterjack

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Posted 20 November 2012 - 11:52 AM

Time limit is 60th day after day of service.
Service date oct 4th, 2012


60 days from when the answer was served on you? Then there is still a couple of weeks left till Dec 4.

Ive been researching if this statement without following thru is an intimidating tactic to have the suit dropped and eligible for review as unethical conduct of an atty. "Atty will not threaten to participate in bringing legal claims for the unlawful purpose of gaining advantage in a civil matter." The statement included this "motion" would ask for atty fees, sanctions, court costs... Without making the motion.
And, thank you for responding. Ive tried all sorts of juxtapositions of my question... But, no clear direction on what or how the "threats" can be defended against or examples of those threats.


If the deadline passes and there is no motion, you can petition the court to impose sanctions on the lawyer. There is no way to predict whether a judge would see it as a threat. And even if he does, I'm guessing that the lawyer will have an acceptable excuse and the judge might deny sanctions.

Worse, because you don't have a lawyer, you likely are missing all the technicalities of a lawsuit. For all you know the items in the attorney's answer could be standard wording used in all answers.

When you petition for sanctions you have to show grounds, not just say what he did and how you perceived it, you have to give legal points and authorities that show how the courts have ruled on the issue in the past.

If you want further discussion on the matter, kindly provide some details as to the nature of your lawsuit, the court level you are in, and the state where this is taking place.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#8 Tax_Counsel

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Posted 21 November 2012 - 09:15 AM

Defendant will therefore be filing a motion pursuant to ch 27 TCPRC - AntiSLAPP.
But, no other information in his answer and no motion has been filed with clerk... Including Up to the first hearing for special exceptions six days ago.


The citation suggests to me a reference to the Texas Civil Practice and Remedies Code. Chapter 27 of that Code deals with actions involving the exercise of certain Constitutional rights, including the right to free speech. It basically contains Texas' version of an Anti-SLAPP law. Section 27.003 provides for the timing of the filing of the motion:

"Sec. 27.003. MOTION TO DISMISS. (a) If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.
( b ) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause.
( c ) Except as provided by Section 27.006( b ), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss."

So, assuming I'm correct that this is in Texas, since the complaint was evidently served on you October 4, the 60 days has not yet run and the defendant has time yet to file the motion. Moreover, the defendant may file it after the 60 days if he can show good cause.

The statute does not, however, sanction the lawyer for failing to file such a motion. Whether a statement in the answer saying such a motion will be filed would draw sanctions if, in fact, no such motion is forthcoming would require researching Texas case law. Whether you need to get into that, though, obviously depends on whether the defendant does or does not file the motion on time.

#9 pg1067

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Posted 21 November 2012 - 10:13 AM

If the deadline passes and there is no motion, you can petition the court to impose sanctions on the lawyer. There is no way to predict whether a judge would see it as a threat. And even if he does, I'm guessing that the lawyer will have an acceptable excuse and the judge might deny sanctions.


I would all but guarantee that, even if the defendant doesn't file the motion, no judge would impose sanctions for either a statement in an answer (whether or not the statement constitutes a "threat") that the defendant will file an anti-SLAPP motion or for not following through on that statement. I'm not entirely sure why a defendant might want to preview for the plaintiff that the defendant intends to file an anti-SLAPP motion (perhaps the defendant might hope that the plaintiff will dismiss the case rather than deal with the motion, but tipping off the plaintiff would give the plaintiff additional time to marshal his/her/its evidence and possibly take some discovery), but the defendant certainly would be entitled to change his/her/its mind about filing the motion.




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