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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 117372
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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CONTRACT I worked 11/6/15 - 2/12/16 from my home in

Customer Question

I worked 11/6/15 - 2/12/16 from my home in Cambridge under an agreement ("quoted" hereafter) with BITS Inc. of Falls Church, VA to write software for TIAG Inc. of Reston, VA. TIAG paid BITS and BITS paid me. On the phone they called it "corp-to-corp" and I incorporated for this purpose. I used the corporation name only once, on their "Vendor Direct Deposit Enrollment" form for "Vendor Name", and used my name as "Name of Person Completing Form". For the bank account I used my personal bank account.
"Contractor shall submit an invoice on the last day of a calendar month for services performed. Invoices shall be paid 30 calendar days after receipt of a correct invoice and previous month report." My 3 invoices detailed what I was doing each minute. I also constantly forwarded emails detailing my work at their request. "Company or contractor may terminate by giving 30 days written notice."
During January this year I was told by TIAG that the programmers who know their system well (I never worked on it before) are more productive that I am, and that is a concern. On 1/29/16 I received an email from BITS saying "We plan on removing you from the team 2/12/16." On 2/11/16 they wrote again, using the word "terminated". On 2/12/16 the project leader announced that she is sad to say that I have to leave the project, and she and the other programmers thanked me for a job well done and wished me luck on my next assignment with BITS. We planned an informal reunion as soon as I can make it.
"Any controversy or claim arising out of or relating to this Agreement will be submitted to and settled by mediation. Within 10 days the parties shall agree upon a sole mediator. The mediation and final agreement shall occur within 30 days after appointment of the mediator and shall be final and conclusive. (Otherwise) the claim may be submitted to and settled by arbitration in Fairfax County, Virginia, in accordance with the rules of the American Arbitration Association. Each party shall bear the cost of its attorneys' fees. The parties submit to the jurisdiction of the state and federal courts of the Commonwealth of Virginia and waive any objection to jurisdiction in any Virginia state or federal court."
Q1. Can I sue him under Massachusetts or Virginia state law?
Q2. Which jurisdiction would be most favorable to me?
If I tried to sue him under Massachusetts law:
Q3. When should we know if it will be allowed?
Q4. If not allowed, how does that affect my chances for successful arbitration?
Q5. How many hours would this typically take for:
A. Filing suit?
B. Settle before the trial?
C. Having the trial?
D. Enforcing the judgment?
Q6. Will I be able to attach his bank account, Union Bank and Trust Company in Virginia?
Q7. Should I try to involve his customer, TIAG?
BITS has a time-sheet system in which each time-sheet it "approved" by the manager who hired me. At first they immediately approved my time-sheets and paid my invoice on-time. But when my final date was known, they made a number of calculated and unusual moves designed to keep as much of my pay as they could while allowing me to finish the contract for their customer.
1. They approved the time-sheets as long as there was future work, but refused to approve my last time-sheet after which there was no more work.
2. They were late paying my last invoice that was due while I was working, then told me they had money problems while acknowledging they owe me the money, claiming other contractors weren't getting paid either. However, they have another worker continuing on this project who in fact is continuing to be paid. I never received payment for that invoice and have no approved time-sheet for the last invoice due in the future
3. They asked me to interview for another project, but took the unprecedented move of arranging for the client to pay me directly, thus removing them from responsibility and my ability to withhold future work based on not being paid for past work.
So now I have been paid for less than 1/4 of my work and they are attempting to start up another contract independent of my first contract.
Q8. Is his misconduct normally grounds for:
A. Treble damages?
B. Fraud?
C. Suing him in Massachusetts or Virginia court because it goes beyond the agreement?
I have been paid (rounded to k=$1,000.00) $12k for my first invoice. I have not been paid $16k for my 2nd, overdue, invoice, $16k for my 3rd invoice (due in 1 week) or $8k for my 4th invoice that I can only bill in 1 week, a total of $39k due. If we count the 2 weeks I missed because they violated the 30 day notice clause, that's an additional $8k for a total of $47k unpaid.
Q9. How much would you charge by the hour?
Q10. How much would you charge on contingency in state court or arbitration, if settled before filing suit, after filing but before the trial, after the trial and after judgment is enforced?
Q11. At this point could you say what you think I should do?
I would want this to be on contingency only of the rate were a lot less than 1/3.
I would be interested in trying for treble damages in Massachusetts, depending on your answers to Q1-Q4
Submitted: 1 year ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
1) I am afraid based on the contract language you provided, the contract would be heard under VA law in VA. Because you agreed to that contractual agreement, you gave up your right to try to sue for breach of contract in MA.
2) MA would have likely been more favorable to you, but unfortunately the MA courts would have to enforce that clause and would not be able to take jurisdiction over your case as MA courts honor and enforce choice of forum/jurisdiction clauses.
3) If you filed in MA, the company would argue the contract specifically places jurisdiction in VA and as such the MA court has no jurisdiction, meaning the MA court has to immediately dismiss. You can also be made to pay the costs of the company for filing in the wrong jurisdiction contrary to terms of your contract.
4) The choice of jurisdiction really does not impair your chances of success in arbitration. Your chances of success in arbitration, just like in court, depend solely on the wording of your contract and the evidence you present as to how the contract was breached and refuting the company's claims.
5) This is an impossible question, we attorneys never know "how many hours will" any case take until we get all of the documents and evidence in the case from the client and begin writing the complaint and as far as dealing with negotiations or trying to settle, that depends on the other party and how much they want to fight. Just off of what you are saying above, one could figure at least 100 hours of time for all of those activities you mention, but that is such a rough estimate as I said in the outset because it is usually impossible to predict with any certainty.
6) If you were to win your dispute against them in VA, you could file a motion to seize or lien their bank accounts or other property if they do not pay on the judgment.
7) TIAG had no contract with you and from what you said above TIAG had a right to their opinion about your performance, that does not make them generally liable for expressing their opinion. IF your contract with BITS could be terminated at any time under the terms of the contract and TIAG was concerned because you had not worked on their systems before, that is their right as a customer. If you have proof that their statements were KNOWINGLY FALSE to them at the time they made them then you could include them for tortious interference with your contact based on their known false statements. Other than that they are not liable for saying they were concerned because you had not worked on their systems and your performance was not as good as those who had.
8) The failure to pay you on the agreement is breach of contract and you have to sue for any breach of contract, by the contract terms, must be handled in VA under VA law. So you alleged they failed to pay your invoices, which is a breach of contract. If you prove the breach of contract is malicious and willful, then a court has discretion to award punitive damages and attorney's fees for breach of contract. It is not mandatory under any law or statute, it is discretion to the judge if you prove the company had no valid basis for denying the payment.
STATE LAW FORBIDS ANY EXPERT ON THIS SITE FROM REPRESENTING ANY CUSTOMER FROM THE SITE, so the below answers are based on generally what an attorney in VA would charge.
9) Typically an attorney in VA will charge about $200 per hour plus costs for a case of breach of contract.
10) Generally these claims are not taken on a contingency fee basis, it is a contract between to companies. Contingency contracts are more for personal injury claims only, where there is insurance and a guarantee of payment should they win the case (this is a common misconception of the public that attorneys take every type of case on a contingency fee agreement and it is not so).
11) I think you need to file for mediation and arbitration and pursue the payments that you can prove you are entitled to based on the hours and work performed.
Expert:  Miel-cssm replied 1 year ago.
We received your customer service inquiry, however, we are unable to respond to you because we do not have your email address. Please contact customer support at***@******.*** and provide us with your email address and a link to this question page so that we can help you. Thank you, ***** ***** Customer Support Team.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reading the answer, do you have any further information you would like?

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