In this article we will look at a situation where, having filed a statement of claim, you received (by mail or “by messenger” in court) a court ruling, according to which your statement was left without progress.
By the way, not only the statement of claim, but also statements submitted to the court of first instance in accordance with other procedural proceedings can be left without progress.
In some cases, this is regulated by the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation), such as an application for the award of compensation for violation of the right to legal proceedings within a reasonable time, in others, the courts are guided by the analogy of law, as happens, for example, when filing an application for issuance of a court order.
Study of the statement of claim by a judge and acceptance of it for court proceedings
After the statement of claim is received by the court, it is registered in the court office and sent directly to the judge for review. The procedure for accepting a claim for court proceedings and the procedure for considering a case in court is regulated in detail by the norms of the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation). So, by virtue of Art. 133 of the Code of Civil Procedure of the Russian Federation, the judge, within five days from the date of receipt of the claim, is obliged to consider the issue of its acceptance for proceedings, about which he issues an appropriate ruling. Thus, within the 5 days allotted to him, the judge is obliged to familiarize himself with the claim and the documents attached to it and decide whether the claim complies with the requirements of the law. If the claim is drawn up in accordance with the requirements of the law, the judge makes a decision to accept the case for trial and sets a date for the court hearing in the case.
However, in practice, the period for accepting a case to the court, as a rule, is delayed and can range from one week to two or more months. In this regard, I recommend that after the 5 days established by law for the case to be accepted by the court, you personally contact the court and the judge to whom the case was transferred to obtain information about the date of setting the trial.
Questions from our readers
How to respond to a court ruling in pursuance of the arbitration court ruling on leaving without movement?
Information about leaving a claim without progress can be obtained on the court’s website. After receiving the document, you must carefully study it. The website will provide the reasons for such a decision, as well as the required measures.
To resume progress on the case, it is necessary to eliminate the shortcomings. To do this, an application is submitted in pursuance of the determination. It can be sent by mail or in person to the court office.
Determination to leave the statement of claim without progress
If the judge did not accept the claim for court proceedings, but issued a ruling and left the statement of claim without progress, you must immediately obtain a copy of the judge’s ruling and carefully read it.
The grounds for leaving a claim without progress are specified in detail in Article 136 of the Code of Civil Procedure of the Russian Federation. The article reads: the judge, having established that the statement of claim was filed in court without complying with the requirements established in Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation, makes a ruling to leave the statement without progress, notifying the person who filed the statement, and giving him a reasonable period to correct the deficiencies claim.
Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation provide for strict requirements for the content of the statement of claim and for the list of documents that must be attached to the claim. The statement of claim is submitted to the court in writing. The statement of claim must indicate:
- the court to which the application is filed;
- the plaintiff, his place of residence, as well as information about the representative;
- the defendant, his place of residence or, if the defendant is an organization, its location;
- what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claims against the defendant;
- the circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
- the price of the claim, if it is subject to assessment, as well as the calculation of the collected or disputed amounts of money;
- information about compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
- list of documents attached to the application.
The application may indicate telephone numbers, fax numbers, email addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the plaintiff’s requests. The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.
The following are attached to the statement of claim:
- its copies in accordance with the number of defendants and third parties;
- a document confirming payment of the state duty;
- power of attorney or other document certifying the authority of the plaintiff’s representative;
- documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies (evidence in the case);
- evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;
- calculation of the recovered or disputed amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.
If the judge, having read the claim, discerns from the statement of claim that it does not comply with the requirements of the law or that all necessary documents are not attached to it, the judge leaves the statement of claim without movement and gives the plaintiff a period to correct the deficiencies.
If the plaintiff, within the prescribed period, fulfills the judge’s instructions listed in the ruling, the application is considered filed on the day of the initial application to the court and the judge accepts it for court proceedings. Otherwise, if the shortcomings of the claim are not corrected within the prescribed period, the application is considered not filed and is returned to the applicant with all documents attached to it (Article 136 of the Code of Civil Procedure of the Russian Federation).
Court ruling. Elimination of defects
If the statement of claim does not comply with the above requirements, it is left without movement, about which the judge makes an appropriate ruling.
The determination indicates what shortcomings served as the basis for leaving the application without progress, and the period within which they must be eliminated.
If the applicant fulfills the judge’s instructions listed in the ruling within the prescribed period, the application is considered submitted on the day of its initial submission to the court.
Otherwise, the application will be considered unsubmitted and returned to the applicant with all documents attached to it (for details on returning the application, see this section, page “The court returned your application”).
The period appointed by the judge is a procedural period; the law (Article 111 of the Code of Civil Procedure of the Russian Federation) provides for its extension by the same judge (about procedural terms on the page “Calculation of procedural terms”).
So, if you do not have time to correct the deficiencies specified in the determination within the allotted time, you can apply to the court to extend the assigned procedural period.
Based on the results of the consideration, the court makes a decision to extend the period or to refuse it. In most cases, the applicant's request is granted.
I would like to immediately note that the extension of the procedural period appointed by the court is carried out upon the application of the interested person submitted before the expiration of the procedural period previously appointed by the court (judge). Otherwise, such an application cannot be satisfied.
This position, set out by the Supreme Court of the Russian Federation back in 2004 in Determination No. 45-GO3-28 dated January 14, 2004, seems quite logical - it is impossible to extend a period that has already expired .
In order to better navigate procedural deadlines, you need to learn one simple rule:
The procedural deadlines established by federal law are restored, but they must be missed, i.e. expired.
Procedural deadlines assigned by the court are extended; the deadlines must not expire.
This does not apply to situations where you have received a ruling to leave the statement of claim without progress after the expiration of the period appointed by the court to eliminate deficiencies.
In this case, the judge, in the absence of documentary evidence that a copy of the ruling has been served on you, does not have the right to return the application and must reschedule the deadline.
Complying with the judge’s instructions and correcting deficiencies in the statement of claim
As a rule, the judge in the ruling indicates in sufficient detail the comments he has on the statement of claim. But, if the text of the ruling is not clear to the plaintiff, it is necessary to contact the assistant judge or the judge to clarify the circumstances of leaving the statement of claim without progress. If the plaintiff sees and understands from the ruling what needs to be corrected in the filed claim, then it must be done within the time period clearly specified by the court.
If the court’s comments related to the content of the statement of claim, I recommend preparing a new statement of claim, which should be called an updated claim. In the updated claim in accordance with Art. 131 of the Code of Civil Procedure of the Russian Federation and the instructions of the judge, correctly state your claims. If the court’s comments related to the attachment to the statement of claim, provide the judge with the documents he requires and copies of them.
In order to correct the deficiencies in the statement of claim and file an amended claim or documents required by the court, prepare an application to correct the deficiencies in the statement of claim. In the application, indicate what shortcomings of the claim you have corrected and what documents you are attaching to the application, and also ask the court to accept the case for trial and set a date for trial.
An application to eliminate deficiencies, together with an updated claim and missing documents, is sent to the court by mail with a receipt receipt and an inventory of the contents, or is submitted by the plaintiff personally to the court. When sending documents by mail, the date of filing the application with the court will be considered the day it is delivered to the post office. If, within the period specified in the court ruling, the plaintiff cannot correct the shortcomings of the claim, the judge must file a petition to extend the period for correcting the shortcomings of the claim.
Please note that all the shortcomings of the claim listed by the judge must be eliminated, since in case of failure to fulfill any of the requirements, the judge will regard it as a failure to fulfill the entire court ruling. After the judge’s demands have been fulfilled and all the shortcomings of the statement of claim have been eliminated, the plaintiff needs to track the acceptance of the case by the court and the setting of a trial date for the case.
How to correct the abandonment of a claim without progress if there is not enough time to fulfill the court’s demand.
It is not uncommon that the requirements presented to the plaintiff by the court contain the need to collect documents, while the period specified in the ruling on leaving the statement of claim without progress is clearly not sufficient to obtain such documents through the same MFC.
In this case, you must order these documents (paying a fee for them, if necessary). Next, make a photocopy of the application to receive these documents and send an application to the court with a request to extend the period for correcting the shortcomings that prevent the court from accepting the statement of claim. Attach a copy of the application for requesting documents to this application to the court.
It is advisable to indicate the period in the application that you are asking for an extension to leave the statement of claim without progress.
Statement of claim without progress, private complaint against a court ruling
Most decisions to leave a statement of claim without progress are due to the fact that plaintiffs independently prepare statements of claim without taking into account the requirements of the law. However, there are cases when the court leaves the claim without progress for far-fetched reasons and without legal grounds for not considering the case. For example, due to going on vacation, reporting period, heavy workload, etc. This practice is often found in the courts of Moscow and the Moscow region. The result of making such illegal and unfounded determinations is a violation of the plaintiff’s rights to timely judicial protection and judicial red tape.
In such cases, by virtue of Art. 136 of the Code of Civil Procedure of the Russian Federation, a private complaint may be filed against a court ruling to leave a statement of claim without progress. The complaint is filed with the court within 15 days from the date of the court's ruling. In a private complaint, it is necessary to indicate where the plaintiff disagrees with the court’s ruling and justify his disagreement with reference to the law. Based on the results of consideration of the private complaint, the higher court either leaves the court's ruling in force or cancels it and obliges the court of first instance to accept the claim to the court's proceedings.
However, I recommend that you carefully consider the course of action if your claim does not move forward, since consideration of a private complaint in the courts of Moscow and the Moscow region usually takes a long time and can range from 1 to 3 months. Compliance with the judge’s instructions to correct the shortcomings of the claim, even if you consider them far-fetched and not in accordance with the law, in some cases, will lead to the appointment of a court hearing in the case faster than as a result of the appeal procedure.
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Appeal against the determination
According to Part 3 of Article 136 of the Code of Civil Procedure of the Russian Federation, a court ruling to leave a statement of claim without progress can be appealed.
Therefore, if you believe that the court’s ruling is illegal and your rights are being violated, you have two ways to further develop the situation.
The first is to appeal the determination, the second is to simply eliminate the shortcomings identified in the determination.
As a rule, citizens, when going to court on their own, prefer to dutifully follow the judge’s instructions, which are often not always legal in nature.
Many lawyers do the same, knowing full well that appealing a ruling to a higher authority (especially the cassation court) can take quite a lot of time, i.e. They act on the principle “it’s faster this way.”
We are in no way calling for this method of solving the problem that has arisen, but, as a rule, this method is the fastest transition to the stage of accepting the application for production.
Of course, if there are sufficient grounds, you can appeal the ruling, and perhaps a higher authority, pointing out the mistake to the judge, will cancel it, as a result, you may even receive some moral satisfaction, but still, do not forget that the main thing is to achieve a goal, a certain result - the court's satisfaction of your claims.
If you nevertheless decide to appeal the determination, this is done as follows.
The ruling can be appealed within fifteen days from the date of its issuance by filing a private complaint with a higher court; the complaint is filed through the court whose ruling you are appealing.
Thus, using the Moscow courts as an example, a complaint against a magistrate’s ruling is addressed to the district court and filed through the court that issued the ruling, i.e. through the magistrate.
Simply put, in the “header” of the complaint we indicate the name of the district court that will consider it, and we refer the complaint itself and submit it to the court district of the magistrate with whose determination we do not agree.
Accordingly, we will address the complaint against the district court’s ruling, i.e. submit (not to be confused with the term “surrender”) to the Judicial Collegium for Civil Cases of the Moscow City Court.
We submit the complaint to the district court expedition, i.e. to the court that issued the appealed ruling.
