Q: Can a judge rule on a case if defendant was not served with a complaint nor was a summons prepared, submitted or issued?
A complaint was filed in civil court. Before it could be served and before a summons was drafted submitted or served, the defendant motioned repeatedly for a dismissal. All were unanswered by the courts as a lawsuit had not been fully initiated; until an ex associate of the defenses lawyer was appointed a judge to replace a retiring judge. The new judge made a preemptive ruling on the unprocessed case highly in favor of the proposed defendant and friend of his and ignoring all laws relating to the initial compliant and even quoting laws that do not actuality exist and laws that have absolutely no relation to any part of the complaint.. He awarded excessive and frivilous attorneys fees in the un opened case and blatantly stated that he did not care what the oregon attorney General had to say regarding the law, he disagreed. Is this legal?
A:
Ordinarily, in a federal lawsuit, the filing of a motion to dismiss by a defendant constitutes an appearance such that the issuance and service of a summons is no longer necessary. The main purpose of a summons is to compel an appearance by the defendant. So, if a defendant appears by filing a motion to dismiss without first being served with a summons, that just saves some time and legal expense for the plaintiff.
A state attorney general’s opinion is not binding on a federal magistrate or district judge. It’s very weak authority to predicate a lawsuit upon.
Once a defendant filed a motion to dismiss, the judge had both the right and the duty to rule on it.
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