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Ely
Ely, Counselor at Law
Category: Legal
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The community group that I belong to and manage was provides

Customer Question

the community group that I belong to and manage was provides signature gathering services for initiatives locally. We contract with other campaigns that have an initiative they want to get on the ballot, we hire contractors to do the work, the campaign pays us, we keep a cut and pay the contractors.
A national food/retail chain store is mad that the circulators that work for for the contractors were collecting signatures in front of their store. They have sued our community organization now, myself, and they sued another campaign organization that has nothing to do with this but that I am a board member of, as well as two other board members. They are alleging Trespass, Nuisance, Inverse Condemnation-taking Land (State law), Inverse Condemnation-taking land (fed law), Violation of Rights of Free Expression Under State Law, and Violation of Free Speech Rights Under Federal Law.
They are seeking a preliminary injunction, on Thursday, the complaint is for declaratory and injunctive relief.
A couple of items - one should we even be liable if we use contractors
How soon do we have to get our answer in?
Can we ask for a continuance?
The job is actually over today also. Will the hearing still go on?
Also, the two petitioners were actually carrying the one we hired them for and two others for two other campaigns, how come we are the only ones sued - could we file a joinder of some kind?
Do we have counterclaims?
What defenses (although I have read a lot about the subject, so I have some idea of what that entails related to a number of WA State and even federal cases about the rights of signature gatherers working on initiatives and that it depends in part on the type of location that the individuals are at.
But, what about the fact that we contracted the job out and have individual independent contractor contracts with everyone, i.e. we cannot direct where they work and that we have not created any kind of agency relationship with them?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry to hear about this situation.
1) What state is this in?
2) Is this in federal (U.S. District) Court, or, state court?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
Washington State, King County Superior Court
Customer: replied 1 year ago.
Here is the complaint
Customer: replied 1 year ago.
Here is the motion also
Expert:  Ely replied 1 year ago.
How soon do we have to get our answer in?
You have 20 days from the date the Complaint is served to file an answer.
Can we ask for a continuance?
To file an answer you mean? Yes. Although it is not guaranteed. It may be simpler/more practical to retain counsel and file an answer. An answer may be supplemented later.
The job is actually over today also. Will the hearing still go on?
Yes, as the lawsuit may still pertain to what happened already, even though it is not happening now.
Also, the two petitioners were actually carrying the one we hired them for and two others for two other campaigns, how come we are the only ones sued - could we file a joinder of some kind?
No. One cannot join another third party to a lawsuit unless in very specific circumstances. If the Plaintiff chose to go after one party only as Defendant, that does not give that Defendant the right to join other parties as other Defendants. That is the Plaintiff's decision.
Do we have counterclaims?
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.
Unless they did some kind of legal wrong, i.e. tort, there is no counter-suit, I am afraid.
What defenses (although I have read a lot about the subject, so I have some idea of what that entails related to a number of WA State and even federal cases about the rights of signature gatherers working on initiatives and that it depends in part on the type of location that the individuals are at.
See here for an introduction. I cannot say what specific defenses may be argued since I am not involved here and this is general information only and not legal advice. However, it seems that affirmative defenses would be most useful here.
But, what about the fact that we contracted the job out and have individual independent contractor contracts with everyone, i.e. we cannot direct where they work and that we have not created any kind of agency relationship with them?
This may be a good argument because the main party is not liable for contractors, only employees.
However, they worked under law of agency, i.e. being your agents. "This court has recognized that a special relationship giving rise to a duty to control a party with known dangerous propensities may exist where there is a "`definite, established and continuing relationship between the defendant and the third party.'" Taggart, 118 Wash.2d at 219, 822 P.2d 243 (quoting Honcoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188 (1988)). Such a duty exists, however, only where the actor has authority to control the third party's conduct. The Court of Appeals recognized this principle. Funkhouser, 89 Wash.App. at 654, 950 P.2d 501 (though stating that the authority must be legal authority)." CJC v. Corporation of Catholic Bishop, 985 P. 2d 262 - Wash: Supreme Court 1999. As such, the Defendant might still be liable - this is up to the Court to decide.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Customer: replied 1 year ago.
THe case she cites in the Waremart decision I think does not apply to one of their stores in particular, the Ballard Store - I have researched this quite a bit and it has exceptional features in comparison to their other stores which I think gives it the aspects that are the exception to Waremart, that it has crossed over to the Alderwood decision, that it serves as a public place, forum, "town hall", one of the biggest features is that Fred Meyer cannot bar the public from the property b/c there is a covenant that runs with the property that guarantees that people can enter the property in order to gather at a lookout gathering area that Fred Meyer must maintain in order for the public to have access to the property. In addition, there are no less than eight independent businesses on the property, and inside Fred Meyer also has a community bulletin board that non-profits, businesses, and charities use, FM also maintains a government document center for the public inside, as well as hosting government seminars about healthcare, and allows other non-profits and the Girl Scouts and Boy Scouts, and Salvation Army to solicit on site.
Expert:  Ely replied 1 year ago.
Thank you for your reply.
I am not sure exactly what you are asking below...?
THe case she cites in the Waremart decision I think does not apply to one of their stores in particular, the Ballard Store - I have researched this quite a bit and it has exceptional features in comparison to their other stores which I think gives it the aspects that are the exception to Waremart, that it has crossed over to the Alderwood decision, that it serves as a public place, forum, "town hall", one of the biggest features is that Fred Meyer cannot bar the public from the property b/c there is a covenant that runs with the property that guarantees that people can enter the property in order to gather at a lookout gathering area that Fred Meyer must maintain in order for the public to have access to the property. In addition, there are no less than eight independent businesses on the property, and inside Fred Meyer also has a community bulletin board that non-profits, businesses, and charities use, FM also maintains a government document center for the public inside, as well as hosting government seminars about healthcare, and allows other non-profits and the Girl Scouts and Boy Scouts, and Salvation Army to solicit on site.
Customer: replied 1 year ago.
We are heading to a three star at best, ***** ***** very general information that is only partially useful some of it. I said at the outset that more detail was needed. I'm paying for detail not generalities, and if you are not from Washington State doesn't that put the response at a bit of a disadvantage? WA state law is very specific about independent contractors, that you cannot control their work, where, when, and how, and gathering signatures hardly entails dangerous propensity type situations. Continuance was related to the reply we file to the motion - when is the reply due? If we make a motion for a continuation do we have to have a motion to shorten time also? And, isn't the reply to the motion in general a version of an answer to the complaint.
Expert:  Ely replied 1 year ago.
Hello,
JustAnswer experts provide general information only, not legal advice. This means that I cannot be too specific. I am going to try my best.
WA state law is very specific about independent contractors, that you cannot control their work, where, when, and how, and gathering signatures hardly entails dangerous propensity type situations
I think we had already addressed this: However, they worked under law of agency, i.e. being your agents. "This court has recognized that a special relationship giving rise to a duty to control a party with known dangerous propensities may exist where there is a "`definite, established and continuing relationship between the defendant and the third party.'" Taggart, 118 Wash.2d at 219, 822 P.2d 243 (quoting Honcoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188 (1988)). Such a duty exists, however, only where the actor has authority to control the third party's conduct. The Court of Appeals recognized this principle. Funkhouser, 89 Wash.App. at 654, 950 P.2d 501 (though stating that the authority must be legal authority)." CJC v. Corporation of Catholic Bishop, 985 P. 2d 262 - Wash: Supreme Court 1999. As such, the Defendant might still be liable - this is up to the Court to decide.
I am afraid that other than that, it is a case by case basis. There is no law that identifies "dangerous propensity" and what does not - this is a jury question.
Continuance was related to the reply we file to the motion - when is the reply due?
Ah, I see - least 15 days before the date noted for the hearing
on the motion. RULE 17.4.
If we make a motion for a continuation do we have to have a motion to shorten time also?
You may be using the term "motion for continuation" wrong here. If you mean you wish to extend time to file an answer, then one files a Motion for Leave for more time to file an answer (before filing an answer) - but this is risky.
So let me sum this up here:
ANSWER = 20 days
REPLY TO MOTION = 15 days
A REPLY TO PLAINTIFF'S INJUNCTIVE MOTION SHOULD BE SEPARATE FROM (A) ANY ANSWER, AND, ANY MOTION BY DEFENDANT.
And, isn't the reply to the motion in general a version of an answer to the complaint.
NO. Filing a reply to a motion requesting injunctive relief may not satisfy the requirement to file an actual answer to the complaint. It is highly recommended that an actual ANSWER is filed as well.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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