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What is procedure to file a mtion for frivolous claim/civil malicious prosecution?
OK. Small claims here. Person suing me I have more than adequate proof that his claim is totally unfounded, including I already won my case against him in which judgment actually voided the contract under which he claims we owe him (he was found guilty of fraud) and despite 4 requests by us to have him drop his claim, he's going ahead with it. We have a civil version of malicious prosecution here, and it is a tort. My question is: if I am wanting to claim malicious prosecution, do I have to file a new counterclaim against him/serve him, etc. appear in court yet another time or do I wait until in court while his case is being tried he loses and then can I MOTION for malicious prosecution and at that time ask for tort damages? My question, I guess, is really what is a 'motion' as oppsed to a filing of a new case or counterclaim? Do I simply verbally ask for the motion and state my reasons and ask for my damages or do I need a form? Do I need to 'serve' it to the other guy (by 3rd party) prior to the hearing or do I hand it to him (like I do copies of my exhibits) when I come to trial? And finally, if I need a form, where can I get one? Or what does it have to contain tobe a proper 'motion'? Thanks!
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Research Res Judicata. The person who sued you lost this claim in another jurisdiction. He cannot go forum shopping in the hope of finding another court or judge who will view his claim differently. Why not make a motion to the court for a order dismissing his claim on the grounds it has already been tried in another court. |
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Even so, how do I 'make a motion' ? (Altho I don't think it's res judicata, as we brought 1st case and this is his countersuit of the same case in same forum--small claims) |
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Hello w:
In superior court, what you want might require a motion... However, in small claims court, they're usually less strict. I believe what you have against him, would be counterclaim. I would go back to the small claims court where your case is being heard, and file it there. The clerk should help you and tell you how you have to serve him. excon |
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What state or province? |
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