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lwpat
lwpat, Attorney
Category: Business Law
Satisfied Customers: 25386
Experience:  Attorney with over 35 years of business experience.
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In a Federal case where defendant B is named only for deep

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In a Federal case where defendant B is named only for deep pocket is removing this party by motion or answer in the pleadings? If by motion (FRCP 56 or other) what proof do I need other than affidavits? Background: Party A contracts with party B. Party A does not perform but sues party B for payment claiming party B d/b/a as Party C when in fact not true . . . Party C named under theory of Unjust Enrichment. Party A and B have contract Party C not party to contract and received no benefit.
Submitted: 7 years ago via USLaw.
Category: Business Law
Expert:  lwpat replied 7 years ago.
Sorry but I cannot understand your situation. Can you elaborate with specific details since your scenario is not clear.
Customer: replied 7 years ago.
Ok: Party A contracts with Party B. Party A does not perform but bills party B anyway. Party B won't pay. Party A sues claiming that party B d/b/a party C.On this basis Party C is claimed in Quantum Meruit having been conferred a benefit. No benefit exists which is a matter of proof. But having said that party B has never d/b/a party C. C is only there because attorney for party A knows he has deep pocket and that party A does not. How do I lose party C by motion before or after answer, or by Summary Judgement following discovery? My udnerstanding is that if I don't try to dismiss him now I waive that right. I also understand that because party A and party B have contract party A cannot claim under Quantum Meruit but has anyway. Clear enough? Please advise.
Expert:  lwpat replied 7 years ago.

Not really since you still seem to be mixing and matching but I will try.

 

Party A has sued party B in Federal court for payment of work that was never performed and has third partied C in claiming party C received the benefit of the alleged work.

 

Since there is no Federal question then there has to be diversity and the amount has to be over 75,000. I assume that both of those are present.

 

Party B answers claiming the work was not performed. This is a pure contract question.

 

Party C answers denying the claim they received any benefit or that they were never a third party beneficiary of the contract and then files for summary judgment after discovery.

Customer: replied 7 years ago.
party B has not d/b/a Party C. They are completely separate and distinct corporations and we can prove that. Still party C is named under threory of Quantum Meruit but had no participation in either the contract that gives rise to cause of action or any of the alleged benefit conferred. How do I get party C off the suit? Motion or answer to complaint? And what proof other than affidavit and perhaps corporate records, filings, tax returns, if any? Once Party C is gone so is their case for all intents and purposes. If this is still not clear give me an idea of what would make it clear to you, please.
Expert:  lwpat replied 7 years ago.
You have to answer the complaint and then file a motion for summary judgment. In Federal court you need an attorney to do this for you.
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