Skip to main content

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

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

Posted

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 analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Mark as helpful

1 lawyer agrees

Posted

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 information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

Mark as helpful

Posted

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.

Mark as helpful

1 found this helpful

Civil motions topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics