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David Stewart
David Stewart, Attorney
Category: Legal
Satisfied Customers: 174
Experience:  Highly experienced attorney Commercial Law, Litigation, Intellectual Property Law, and Family Law
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I’m in North Carolina. Have a contract between a corporation

Customer Question

I’m in North Carolina. Have a contract between a corporation and consumer. A dispute develops between the parties and the corporation files a lawsuit against the consumer for breach of contract. The consumer counter claims against the corporation and the principal individually claiming a bunch of nonsense; fraud, deceptive trade practices, with the hope of piercing the corporate veil. Lawyer suggest filing a motion to dismiss against the individual on a summary judgment but is concerned because there is discovery/interrogatory requests pending. Another lawyer says that they don't need to be answered beforehand because they had no good faith basis for suing the individual in the first place and you shouldn't have to answer the discovery to prove they're no good faith basis so we should win on the motion and may be able to go for sanctions as well.
Submitted: 3 months ago.
Category: Legal
Expert:  David Stewart replied 3 months ago.

Hello: sounds like you are dealing with one crazy consumer that is willing to say about anything to try and win a case. I likely need more information to be completely accurate in my response, but based on what I read in your question I believe a motion to dismiss would be an good approach without doing further discovery. A motion to dismiss will force the individual to clearly and fully state facts that support each of their claims for fraud, deceptive practices, etc... This is very difficult to do because the attorney making the claims has a duty to make allegations in good faith and here it looks like they failed to fully research the claims to make sure there is evidence before making them.

In reference to a motion for summary judgement, the standard a court will apply is a little different. Your attorney will present the facts and evidence as to your defense to the claims and the other side will be allowed to respond. This also could be done in this instance without further discovery, but to respond the consumer will likely request some discovery in order to respond or the court will deny the motion for summary judgement finding their is a dispute as to material facts in the case that a jury must decide.

Overall, I like the approach of filing a motion to dismiss and seek sanctions because they do not have a good faith basis to make the allegations in the counterclaim and see what happens. If they have zero evidence, the likely result will be they will voluntarily dismiss some or all of the claims before the Judge gets a chance to sanction them for acting like idiots. I hope this helps, and sure sorry you are dealing with litigation. It is no fun at all, especially with crazy people! All the best, David

Also, feel free to reply with any follow up if I did not fully respond to your question.

Expert:  David Stewart replied 3 months ago.

Also, I know you have a lot of lawyer help right now, but I am going to offer a call for us to discuss everything in more detail if you believe that would help. The different types of motions, discovery, and legal standards can get very confusing and I want to make sure you have gotten all your concerns fully addressed. Thanks, David

Customer: replied 3 months ago.
What more information do you need to be completely accurate?
Expert:  David Stewart replied 3 months ago.

I would need to know if there is any evidence even if it is extremly weak to support the counterclaims? If so, you will waste time and money filing a motion to dismiss and a motion for summary judgement may be in order because the court will be weighing whether there is a dispute as to any material facts involved. In addition, I suggest looking at the facts alleged to support the counterclaims as objectively as possible and if there is an e-mail or any truthful testimony the consumer can provide in support of them you will be wasting time and money filing a motion to dismiss or a motion for summary judgement because the Judge will have to let the issue go to a jury to decide or risk being overturned on appeal. In short, I would need to know all the facts and supporting evidence to give you a full response that would include my opinion of your probability of success, but based on what you have stated you likely have the best shot trying a motion to dismiss and seek sanctions to place maximum heat on the consumer and their attorney.

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