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We are a small privately held company (corporation) that has been sued
by one of our former subcontractors. We terminated his contract due to
insubordination (including death threats to company owners, drinking
on the job, failure to appear for work). The termination occured 6
months ago. We were served a summons for small caims court today and
she is seeking $6,500 for wrongful termination.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
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jlutnik@aol.com wrote:
We are a small privately held company (corporation) that has been
sued by one of our former subcontractors. We terminated his
contract due to insubordination (including death threats to
company owners, drinking on the job, failure to appear for work).
The termination occured 6 months ago. We were served a summons for
small caims court today and she is seeking $6,500 for wrongful
termination.
Did you have a written contract? What did it say about termination?
Written, what were the other terms?
Normally, unless there is a contract stating otherwise, a contractor
can be terminated without cause upon reasonable notice.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be
ammended to list the corporation as the defendant, not a
shareholder?
Normally the person named would file a demurrer claiming the wrong
defendant was sued. I don't know about procedures in your state, but
he should be able to do the same thing in small claims simply by
showing up and establishing that the true defendant is a corporation.
One potential glitch I am not aware of: normally a corporate employee
is responsible for his own torts, even if performed in the course and
scope of his employment. I don't know if that would apply to
wrongful termination.
Second question...how is such a case proven/disproven? There are
no witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
If your documents were created at the time of her behavior, they
should be adequate, along with testimony of of those who were
witnesses to some of this.
But again, it is likely not to be wrongful termination in any case.
Stu
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In article <8lp4v3hheqdq7i5nmfsqi7mvdp2pnrsum5@4ax.com>,
<jlutnik@aol.com> wrote:
We are a small privately held company (corporation) that has been sued
by one of our former subcontractors. We terminated his contract due to
insubordination (including death threats to company owners, drinking
on the job, failure to appear for work). The termination occured 6
months ago. We were served a summons for small caims court today and
she is seeking $6,500 for wrongful termination.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
You don't _want_ it amended! You want it *dismissed*. <grin>
The shareholder simply goes to court and requests 'summary judgement'
in defendant's (the shareholder) favor. On the basis that the named
party, _personally_, had no relationship -- let alone any contractual
one that could be 'wrongfully terminated -- to the plaintiff.
*IF* plaintiff chooses to pursue the matter further, plaintiff will have
to _re-file_ from scratch, against the _PROPER_ defendant(s).
There is no reason that a defendant, or anyone related thereunto, should
do anything to make plaintiff's case easier for plaintiff. <grin>
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
The legal standard is "a preponderance of the evidence". This may come
down to 'whom' the judge decides is more believable on 'we said/they said'
matters. _Written_ records, generated _at_the_time_ of the events, and that
can be shown to have been made at that time, are =generally= more persuasive
than unsupported testimony -- *unless* the opposite party can make a persuasive
case that the the records were made _for_the_express_purpose_ of providing a
phony 'justification' for an already-decided-upon action.
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On Apr 1, 11:45 am, jlut...@aol.com wrote:
We are a small privately held company (corporation) that has been sued
Do you have insurance to cover this? If so, let them handle it and
it won't be a distraction from your business.
If not, oops. Every business that hires people, of whatever size,
should have a comprehensive insurance package that protects you
against discriminationn and wrongful termination suits, business
interruption, professional malpractice (if applicable), directors' and
officers' errors & omissions liability, general tort liability (trip
and fall, auto crashes while on company business) and whatever else
your insurance agent convinces you is needed. Too late for this one,
but update your coverage before the next bad event happens.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant.
If she claims that individual was directly involved in the wrongful
acts that harmed her, she can sue him for it. One is always liable
for one's own torts and the corporate shell provides no protection
from that.
How can the lawsuit be ammended
You don't want to amend it, you want to _dismiss_ it. If you have
insurance, htey will hire you a lawyer. If not, your company had
better hire itself a lawyer (and one for the individual defendant too;
I can't tell from your limited factual scenario whether the same
lawyer can do both or whether you would need separate counsel) before
your company does something stupid and shoots itself in the foot.
to list the corporation as the defendant, not a shareholder?
Both are potential defendants and apparently both were named. If you
want to get the individual dismissed, your lawyer will have to come up
with reasons why it was not proper to sue him. Your post doesn't
reveal any..
Second question...how is such a case proven/disproven?
By evidence (testimony or documentation) tending to make it more
likely than not that the state of affairs the plaintiff alleged in her
complaint is in fact true, and applying that evidence to the required
elements of whatever causes of action the plaintiff has alleged to see
if she has come forth with legally sufficient evidence on all the
legally required elements of her claim so as to be allowed to take her
claim to the jury. If her case survives that far, and is not
dismissed or summarily disposed of by the judge for failing to do that
as to one or more elements, the jury then decides whether to believe
her evidence, or to believe your company's. They decide who wins,
and by how much.
Your company needs a lawyer. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
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In article <8lp4v3hheqdq7i5nmfsqi7mvdp2pnrsum5@4ax.com>,
jlutnik@aol.com wrote:
We are a small privately held company (corporation) that has been sued
by one of our former subcontractors. We terminated his contract due to
insubordination (including death threats to company owners, drinking
on the job, failure to appear for work). The termination occured 6
months ago. We were served a summons for small caims court today and
she is seeking $6,500 for wrongful termination.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
I am not sure that it can be ammended without concent of the
former contractor. The law of the land is that anyone can sue
anyone else at any time for anything. The question is if the
suit against the shareholder has any merit and if it will prevail.
When you get to court, tell the judge that the shareholder was
not involved and is not party to the actions that you are being
sued over. If the judge agrees, the judge will dismiss the
suit between the contractor and the shareholder.
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
Small claims court is very informal compared to a trial. You
simply show up, present all your evidence, tell your story,
and let the judge decide. Be well organized, leave out anything
that is not core to the actions in question, and be respectful.
That will take you a long way.
In your case, you must have had a contract with this person, and
it likely had a 30 day escape. In that case, 30 days is your
biggest downside exposure. Few contracts specify a minimum
number of hours per day. As a result, you could have simply
extended this person for 30 days at 0 hours per day. Offer
that as your remedy if you did indeed terminate this person
early.
Most contracts also have something in it about doing the work
in a professional and workman like manner. If that is the
case, you can argue that the death threats violated this
clause, and as a result, the subcontractor breeched the
agreement, so the contact was ended at that point in time.
-john-
--
======================================================================
John A. Weeks III 612-720-2854 john@johnweeks.com
Newave Communications http://www.johnweeks.com
======================================================================
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jlutnik,
....
We are a small privately held company (corporation) that has been sued
by one of our former subcontractors. We terminated his contract due to
insubordination (including death threats to company owners, drinking
on the job, failure to appear for work). The termination occured 6
months ago. We were served a summons for small caims court today and
she is seeking $6,500 for wrongful termination.
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
You can't amend her lawsuit in this fashion and you should not mention
this to her. Go into court ptepared toshowthat she is suing the wrong party.
If you are correct she'll need to refile her case.
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
She's suing, so it's up to her to prove her case. You'll be provided with
a brief summary of her case. You should bring copies of contracts, letters
or other proof of your complaints to her, anything connected with this
person's business with your company. If she had a contact person with the
business he should attend and advise you.
Remember though that once you open an issue like "she drank on the job"
you'll need to prove it and show why it was unacceptable.
Good luck,
Dave M.
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On Apr 1, 12:45 pm, jlut...@aol.com wrote:
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
Both questions are questions that you should be asking an attorney to
answer.
You are going to have to make a business decision. Do you want to
spend your time and efforts on representing your business and yourself
in court (assuming that your jurisdiction allows for this) and let
your business suffer or do you hire an attorney and let them represent
you while you manage the business? Either way your going to be
spending money on this.
Mike Boersma
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On Apr 1, 12:45 pm, jlut...@aol.com wrote:
My first question is...her contract was between her and the
corporation. However, she named a corporation shareholder (not the
corporation itself) as the defendant. How can the lawsuit be ammended
to list the corporation as the defendant, not a shareholder?
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
You may want to consult an attorney although of course you probably
can't bring counsel into the small claims courtroom. The plaintiff
does have to prove her case, whatever it may be.
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On Apr 4, 7:40 am, Timothy <Timothy.Horri...@alumni.usc.edu> wrote:
You may want to consult an attorney although of course you probably
can't bring counsel into the small claims courtroom. The plaintiff
does have to prove her case, whatever it may be.
Lest readers think that the prohibition on attorney participation in
small claims cases is universal, I should note that this is not the
rule in all states. MD, for instance, has no such prohibition; in
fact, the general rule is that corporations _must_ be represented by
an attorney, although in small claims they _may_ (as an exception) be
represented by an officer, director or managing agent.
In my original reply on this thread I overlooked the part of OP's post
that mentioned this was brought in small claims for only $6500.
While everything else I said last time still holds, OP may want to
weigh the certain cost of hiring a lawyer to defend both the company
and the individual defendant, vs. the relatively small amount of
damages claimed by plaintiff. I'm not counting the time and
aggravation factor of taking productive employees away from taking
care of business so they can read up on the law, gather their
documentation, prepare their testimony in advance, and actually appear
in court, since they would have to do that anyway (except for the read
up on the law part) even if a lawyer were representing them.
One final point - if, at your trial, you get the feeling the judge
agrees with you that plaintiff's claim is groundless and frivolous and
that she is a nut case (he won't actually say that, but you will get
the drift) don't be afraid to ask for sanctions, in whatever form your
court allows, for having to defend a frivolous lawsuit -- trouble is,
the usual form of sanction is an award of attorney fees, and if you
defend yourself, you don't have any. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Fri, 04 Apr 2008 07:40:01 -0400, "John A. Weeks III"
<john@johnweeks.com> wrote:
Small claims court is very informal compared to a trial. You
simply show up, present all your evidence, tell your story,
and let the judge decide.
That's what most people do, but don't many/most/all small claims
courts give all parties the means to subpoena witnesses and documents,
if they avail themselves of it at a time sufficiently in advance of
the trial??
Be well organized, leave out anything
that is not core to the actions in question, and be respectful.
That will take you a long way.
The OP wrote
Second question...how is such a case proven/disproven? There are no
witnesses. We have documentation of her insubordinate behavior.
However, it's really just her word against ours.
Of course there are witnesses. You must mean there are no
disinterested witnesses. But everyone who was there is a witness to
some or all of it. Including the subcontractor of course, and anyone
from your company was there and not sleeping when any of this
happened.
If you are inclined to email me
for some reason, remove NOPSAM :-)
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