[TX] If I got late notice of a hearing to dismiss my case, should I seek a continuance now or challenge the dismissal afterward?

TX Personal Injury

Attorney Matt

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The timing strengthens your position. If they requested the submission hearing right after your expert deadline and gave late notice (Nov. 10 for Nov. 17), it suggests they are trying to push dismissal before you can respond. (Fed. R. Civ. P. 6(b)) The best strategy is to act now—file a motion for continuance or objection citing insufficient notice under Texas Rule of Civil Procedure 21(b). Emphasize:

You were entitled to 10 days’ notice
The short notice limits your ability to respond (Fed. R. Civ. P. 6(c)(1))
There is a Dec. 1 hearing that could affect deadlines

Judges usually prefer resolving notice issues before ruling rather than undoing a dismissal later. Do you have questions about this approach?

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Hi, I have a medical malpractice case in which the defendants requested a submission hearing to dismiss with prejudice on the 7th for the 17th. The request was granted. However, their attorney did not send me the notice until the 10th, which does not meet the 10-day requirement. What is the best legal strategy:

Ask for a continuance now? (I have a submission hearing to modify deadlines on December 1) OR
Don't say anything and, if the judge dismisses the defendants with prejudice, file a motion to set aside the judgment due to lack of required 10-day notice?

Please advise.

Lexi, Chatbot

I understand how stressful it can be to navigate a medical malpractice case. Have you already consulted with an attorney about your situation?

No.

Lexi, Chatbot

What specific outcome are you hoping to achieve from the submission hearing on December 1?

Best legal strategy and pros and cons.

Lexi, Chatbot

Is there anything else the lawyer should know before I connect you? Rest assured they'll be able to help with your legal strategy.

No.

Attorney Matt

Hello! This is Attorney Matt. I understand you're dealing with a medical malpractice case involving a submission hearing to dismiss with prejudice. Could you tell me the state, county, and court?

Harris County Texas, District Court.

Attorney Matt

Thank you. If I understand correctly, the submission hearing is set for December 1st. You received the motion papers, even if late. Is that correct? Have you responded in writing?

However, he only recently requested the submission hearing, probably because the expert designation was due on 11/8.

Attorney Matt

You were entitled to 10 days’ notice
The short notice limits your ability to respond (Fed. R. Civ. P. 6(c)(1))
There is a Dec. 1 hearing that could affect deadlines

Judges usually prefer resolving notice issues before ruling rather than undoing a dismissal later. Do you have questions about this approach?

Yes… I’m not trying to make it convenient for the judge. If I ask for a continuance, it gives the judge another chance to dismiss later. Why not keep the “weapon” to set aside the order?

Attorney Matt

I understand. However, waiting is risky. Once a dismissal with prejudice is entered, the burden shifts to you to undo it, which takes time and additional filings. That said, doing nothing and later moving to set aside based on lack of notice is legally defensible—but risky.

From experience, it’s safer to request a continuance or at least file written opposition now rather than deal with a dismissal afterward.

Ultimately, it’s your strategic choice.

Well I would have to ask for a hearing for a continuance, right? The quickest date is Dec. 1 (after Nov. 17)

Attorney Matt

Let's break it down:

Request a continuance now:
- Pros:
  - Addresses notice defect proactively
  - Gives more time to prepare
  - May delay hearing until after Dec. 1
- Cons:
  - Judge could still dismiss later
  - Requires immediate action
Wait and file motion to set aside:
- Pros:
  - Keeps your “weapon” intact
  - May catch opposing party off guard
- Cons:
  - Risky—harder to reverse dismissal
  - Must prove notice defect clearly
  - No guarantee court grants relief

Let me know if you have more questions.

Thank you!

Attorney Matt

You're welcome.

Attorney Matt

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