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Richard
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under what conditions can one receive an injunction to tie

Resolved Question:

under what conditions can one receive an injunction to tie up the contents of a sale and/or keep all parties from doing any more business, as a form of relief or to pressure a quick settlement to collect on a verbal contract backed up by written correspondence
Submitted: 2 years ago.
Category: Legal
Expert:  Richard replied 2 years ago.

Good afternoon. An injunction is an equitable remedy issued by a court when you can show that legal remedy of monetary damages are not going to be adequate. When you file your lawsuit, you will need to show that you will be irreparably harmed if the court doesn't prohibit the delivery of the machinery to the buyer. You will need to be able to show that money damages are not sufficient, and if you can show the buyer doesn't have the financial wherewithal to pay any monetary damages or that because the machine will be in another country and beyond your reach, that will usually suffice.

I hope this has given you information that has been helpful to you. I wish you the best of luck!

 

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Please be aware that the information provided here is not legal advice. Rather it is simply general information. All states have intricacies in their laws and any information given is simply information only and specifically is not intended to be, nor does it constitute, legal advice. This communication does not establish an attorney-client relationship with you. I hope this answer has been helpful to you.

Customer: replied 2 years ago.
This is the circumstances, We sold three cat mining trucks for $8.9 M approximately a year ago to an Australian buyer. This Australian buyer asked for first right of refusal on the second batch of trucks when and if they came available, which we gave him. The second batch of trucks came available and my partner did the deal without me. When I found out the deal was going down, my partner lied to me that it was happening(is this grounds for punitive damages,i.e intent to defraud?) I confirmed it through another source that deal was in fact done. I confronted him again, and he admitted he had sold them but he was not going to pay me half as we have always done, but wanted to buy me out for $10K. The trucks were torn down, moved to Galveston, with a balance kept back till they were reassembled in Galveston ready to ship. My partner would have received his last payment at that time, roughly the first to the middle of March and title would have passed, but they are still on the water and have not arrive in Australia yet, and not cleared Australia customs. I have tried to negotiate an equatable deal, but he is ignoring me. So if i understand you correctly, It would be possible to get the injunction, but I would have to sue him and show the court that i need this relief to get paid...and to not permit the trucks to enter Australia till I am paid. And could I have him not do any business with the Australian and the client we bought the machinery from till we resolve this?
Expert:  Richard replied 2 years ago.
Yes, it would be possible to get an injunction...but it will be up to the judge; given the risk of the trucks getting to Australia and out of your control will work to your advantage. The other point is that even if the Australian company had the right to presume your partner had the authority and may have had the legal authority to enter into this contract, and the court rules the Australian company has a legitimate contract with your company, you would still have a claim against your partner for breach of fiduciary duty, fraud, and embezzlement for taking for his own assets...i.e., the payment for the trucks...that belong to the company. You can not only seek actual and punitive damages, but also pursue criminal prosecution.
Customer: replied 2 years ago.
So, if i am going to do this, because he has not been willing to settle, I need to move to sue now. Is there any legal liability on my part if i use the above answer to try persuade him to settle this now and or would that alert him to be able to protect himself....and if he doesn't respond, sue him, or should i not give him notice and just sue?
Expert:  Richard replied 2 years ago.

Yes...I would file immediately. I would file your suit...he's already shown he can't be trusted and you don't want him to collect any payment and hide it. What you should ask the court is to hold any payments made by the Australian company in escrow so that your partner can't take it and hide it somewhere.

Customer: replied 2 years ago.
Also let me make something clear, we are are separate companies, with each only having one employee, that being ourselves. And this was strictly a brokerage deal, that he should have split the profits with me, and he/his company has already collected all the proceeds from the sale. Since he/his company has already taken all the proceeds on the sale, I would assume he has spent a considerable amount of the proceeds already. But if i understand you, all monies he has already collect could be frozen until this is resolved?

Expert:  Richard replied 2 years ago.
Yes....you would want to ask the judge to freeze these and/or put them in escrow until your suit can be adjudicated.
Customer: replied 2 years ago.
I live in San Diego...he lives in Tuscaloosa, Alabama...the trucks came out of Jasper, Alabama going to Perth, Australia....What court should i sue him in that gives me the advantage and puts the most pressure on him to settle or very difficult to fight if he chooses to not settle, Federal Court or a San Diego County Court?
Expert:  Richard replied 2 years ago.
You could most likely file this in Federal Court given the diversity of citizenship and the dollar amount involved. The only risk would be that the court would order it removed to state court if it didn't find you met the requirements to file in federal court. If state court, unless he had the minimum contacts with CA, you would have to file in Alabama. But, if he has the minimum contacts in CA by doing business there, you can file in CA.
Customer: replied 2 years ago.
Thank you....you have been most helpfull
Expert:  Richard replied 2 years ago.

You're welcome. It's been a pleasure working with you! Take care!

Richard, Attorney
Category: Legal
Satisfied Customers: 47084
Experience: Attorney with 29 years of experience.
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