![]() If there is no estate open, you can get one open and file your lawsuit against the estate before the statute of limitations runs. (You might be surprised how often this happens!) If so, and if an estate is open, you can sue the estate within the statute of limitations. In the “dead defendant” scenario I alluded to above, my only suggestion is to think about doing whatever you can well ahead of the statute of limitations to determine if your intended defendant has died.If you initiate discovery right away after receiving the motion to dismiss, the court will likely give you an opportunity to conduct enough discovery to hopefully defend against the motion to dismiss. Do not wait until the motion to dismiss is on for hearing. You may be able to show that the incorrect defendant and the right defendant are so intertwined that the right defendant, in fact, got notice of the lawsuit. If you file on the eve of the statute of limitations and you draw a motion to dismiss based on the contention that you’ve sued the wrong defendant, initiate discovery immediately – interrogatories, request for production, depositions – to test the defendant’s contention.When you file early, send discovery with the complaint – interrogatories and request for admissions - designed to uncover any defense that you sued the wrong defendant. ![]() (You knew I was going to say that didn’t you?) File early enough that you can hopefully ferret out any problems with your choice of defendant and correct it before the statute of limitations expires.
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