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    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
    Junior Member
     
    #1

    Nov 19, 2009, 10:10 PM
    Paternity lawsuits filed in different counties
    Hi, I have a situation and not sure if this is the correct way to handle it or if there is more to it. A paternity case was filed in Lancaster County, Nebraska in June by the State of Nebraska. But the paperwork needing to be served has been unsuccessful due to the father’s lack of permanent residency and being self-employed. The father filed a paternity case in Dodge County, Nebraska in August. The same case can't take place in different counties can it? And the one that commenced first takes precedence so the second case should be automatically dismissed by the judge due to lack of jurisdiction, right? Or is a hearing required regardless? If so, what usually happens in this stage? In the meantime, I have created a Motion to Dismiss and hoping someone can review and let me know if I am missing something. Thank you in advance!

    Comes now the Defendant, Amy, and requests the Court to dismiss the Complaint of Plaintiff’s action pursuant Rule 12(B) of the Federal Rules of Civil Procedure for Improper Venue. The Defendant moves the court as follows:

    1. The Defendant is a resident of Lancaster County, Nebraska.

    2. The Plaintiff is not a resident of Dodge County, Nebraska.

    3. The children of the parties, reside in Lancaster County, Nebraska with Defendant.

    4. Court proceedings for Paternity of said parties commenced in Lancaster County, Nebraska on June 8, 2009.

    WHEREFORE, the Defendant prays for an order of the Court to dismiss the Plaintiff’s action on the ground that the court lacks jurisdiction.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #2

    Nov 20, 2009, 08:33 AM

    I don't like "do it yourself" Court papers because the Law is complicated. However, if you are determined to handle this yourself, and I am only speaking for NY, you MUST cite the specific Law.

    For example, "In accordance with Section X of X."

    I don't know how formal the Courts in Nebraska are.
    cdad's Avatar
    cdad Posts: 12,701, Reputation: 1438
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    #3

    Nov 20, 2009, 03:26 PM

    Aother thing is that part of the story is missing in the form of a timeline. It may be that the filing on your part IS the illegal one. What type of timeline has there been in this case ? Who moved and how long ago ?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #4

    Nov 20, 2009, 09:42 PM

    Hi Judy and thanks for responding! When you said that I must cite the specific law, was I totally off the mark when I stated the “pursuant Rule 12(B) of the Federal Rules of Civil Procedure for Improper Venue” then listed the reasons below how the court lacked jurisdiction?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #5

    Nov 20, 2009, 09:46 PM
    Hi Califdad, I could easily make this 10 pages long but will do my best to make this brief. I had a temporary child support order that ended earlier this year. My kids are on Medicaid so the State filed a paternity suit against the father in June for child support and health insurance coverage on my kids.

    The father moved from his residency in June (he has not seen the kids since then either). He has not filed a forwarding address so the State cannot serve the paperwork until his address with the post office comes back as a valid address. The State made 5 address attempts and they all came back non-valid. So I got a lawyer and paid the retaining fee in August to help get the paperwork served for September 1st to his last known address (the father stated that he moved into his mother's house). I was served a paternity suit by the father at the end of August (I believe he did this because he's hoping to get the same child support order of only $100/month).

    My lawyer had a family emergency and wasn't at the office to return my messages (until October). Because I couldn't get a response from my lawyer, I talked with other lawyers during the free Initial Consultation in September where one lawyer made a comment that they would file a Motion to Dismiss since there was already a paternity case filed. I wasn't able to hire another lawyer because I couldn't afford the retaining fee so I filed the above Motion to Dismiss myself the day before the 30 days deadline (end of September).

    When my lawyer contacted me in October, he took over the case. He filed a praecipe (which I don't understand) and has rescheduled the hearing twice at the last minute. Now he has sent the father's lawyer the Statute that states the paternity action and requested that the case be dismissed and also stated a day that he's available for court if the other lawyer decides to still move forward.

    What frustrates me is that I was given the impression that it should be a simple matter of getting the 2nd paternity case dismissed but instead its being dragged out, costing me time and money.
    cdad's Avatar
    cdad Posts: 12,701, Reputation: 1438
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    #6

    Nov 21, 2009, 07:14 AM

    From the way your saying it your motion to dismiss is invalid. Did you get permission from your lawyer to file or was your lawyer dismissed in some way from your case ? Were they original orders for temp support out of a court where you lived or where he currently lives ? All of that makes a huge difference.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #7

    Nov 21, 2009, 09:56 AM

    Now I'm confused - you have an Attorney but are preparing the Motion yourself?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #8

    Nov 21, 2009, 09:50 PM

    Oops I am so sorry!! Now I see where I created confusion. I had filed a Response to the paternity complaint with the above reasons, not a Motion to Dismiss. I was going to file a Motion to Dismiss on my own if my lawyer did not get involved in the 2nd one. I thought he would just file a Motion to Dismiss and the case would be closed.
    cdad's Avatar
    cdad Posts: 12,701, Reputation: 1438
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    #9

    Nov 22, 2009, 08:39 AM

    This is getting very confusing. I will try to explain a few things and the rest is up to the timeline.
    1) a lawyer is not like a mechanic or doctor or anyone else in the sense that once you hire one to represent you you have to go through specific hoops to stop actions. In your case since you were represented already unless you got paperwork from your lawyer showing that you were going to represent yourself for a hearing or response then it may be invalid.
    With other professions you can drop and run and do what you like but in the legal profession that's a huge no no.

    2) He filed a praecipe (which I don't understand)
    Ref:
    Praecipe - Wikipedia, the free encyclopedia

    Fancy term for motion/or writ to show caus in an action.

    3) The timeline is the guideline for your case. Depending on where the initial order was filed and dates / times of actions. In other words it is now a big mess to be sorted out. And yes its going to cost money because every time your lawyer picks up a phone or writes a letter etc then there is going to be a charge for it.

    The bottom line is depending on how you want to play it then you might not want to dismiss the action but run with it so he can't be avoided. Hes against the wall at this time and the longer it drags out the more expensive its going to be. If child support is only 100 or 200 dollars then imagine how much catching up its going to take with a $5,000 lawyer bill on your hands.

    Figure out what you want and the most quick way to get there.
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
    Junior Member
     
    #10

    Nov 22, 2009, 09:34 PM

    Thank you Calif, I really appreciate that you took the time to explain all that! You did give me a different way of looking at this whole deal.

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