Have you received a notice of intent to dismiss on a dismissal docket? Or have you received the Court's Universal DWOP Fiat and Notice of Intent to Dismiss?
In either event it will be essential for you to take specific steps in a timely manner or your case may be dismissed without further notice. Depending on which notice you received your procedures may be slightly different.
See the next chapters, one for each circumstance.
Court's Fiat and Notice of Intent to Dismiss
Received the Court's Universal DWOP Fiat and Notice of Intent to Dismiss? This notice is sent on a sua sponte basis when the Clerk, Administrator or Judge happen across a case that appears to be aging excessively or is otherwise languishing. It may be used for various purposes as set forth below.
Responding to the Notice
You will find a notation of the number of days before which no action will be taken and the necessary action will be obvious in the context. Normally, if the indicated action is taken then the case will be retained.
About the form
It is a universal (multiple grounds) form for the Court to dismiss on the Court's own motion for want of prosecution, based on a number of possible grounds including:
- The answer date has passed and no answer has been filed in this case and will be dismissed unless a default judgment is signed or an answer is filed.
- It has been on file for more than six months without service of citation being perfected on any defendant and will be dismissed unless all defendants are served.
- The case has not been disposed of within the Time Standards for Disposition of Cases set by the Texas Supreme Court (Rule 6, Rules of Judicial Administration)
- It has been on file for more than eighteen months and is not set for trial and will be dismissed unless either a judgment is signed or a docket control order with a final setting is signed.
- Court records indicate that there was a settlement, TRCP Rule 11 agreement or mediation that was dispositive of the case and no final judgment or order has been tendered for signature by the judge.
Notice of Intent to Dismiss on Dismissal Docket
In each county of the district a dismissal docket is held approximately every six months. Cases exceeding a certain age and not apparently having current activity will be placed on that docket.
Each attorney of record and each unrepresented party will receive a copy of the notice. Unless specific steps are undertaken the case will be dismissed on the day appointed for the call of that docket. All of these steps are set out in the notice.
To have your case retained, you must:
- File a written, timely Motion to Retain. Explain in detail why the case deserves to be retained on the docket.
- Of course, serve a copy on all other attorneys and unrepresented parties.
- Note: a certificate of conference is not required on this motion but if you have the concurrence of the opposition and note that in the certificate of conference, and if your reasons are extremely well stated and clearly evidence good cause for retention, it is possible to have the case retained without the necessity of appearing at the hearing. You'll need to follow up with the Court Administrator. Unless you have a very good motion, don't try to skip the hearing!
- Unless the foregoing is granted, you must appear at the hearing.
Some things of which to be aware:
- The notice is also a notice of setting for the same day. You may be called to trial as early as that afternoon.
- You will very likely be ordered to mediation and be sent the same day to confer with the mediator about a mediation setting.
- You will certainly be getting a trial date if it is not tried that same day, and may be ordered to develop a Level 3 docket control order that day -- so bring your calendar.