Can I have a case dismissed because the plaintiff didn't serve me if I already filed a cross-complaint?

Asked over 1 year ago - Walnut Creek, CA

They didn't serve me properly. They gave me the papers themselves. This is a small claims suit. I filed a countersuit. Does this give up my right to have the case dismissed for their failure to serve me? I can't make the court date, and I don't have time to pursue this at this time, so that's why I just want to dismiss it.

Attorney answers (3)

  1. Michael Charles Doland

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Once you filed a cross complaint you agreed to the jurisdiction of the court. Dismissals based on lack of service are very hard to win if you were just to dismiss your cross compolaint and try to win on the complaint only.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may... more
  2. Robert Pecco Baker

    Contributor Level 13

    Answered . No. Once you appear, service is irrelevant. You said you filed a counterclaim, I assume you answered as well. Two reasons service does not matter.

    You can't dismiss it because you did not bring it. Call the plaintiff and offer to both fold your tents and retire from battle- you can get rid of the entire lawsuit that way.

  3. Adrienne Patricia Allen

    Contributor Level 15

    Answered . Most likely you filed an Answer with the Cross-Complaint, so even if you dismiss the Cross-Complaint you would still be subject to the court' jurisdiction. You cannot dismiss the initial case as a defendant but you can challenge the complaint for lack of service. At this point you may as well keep your Cross-Complaint on file and try to mediate a ettement with the small claims mediator. Good luck.

    I am licensed in California only and my answers on Avvo assume California law. The above answer is for general... more

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