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RGMacEsq
RGMacEsq, Attorney
Category: Business Law
Satisfied Customers: 17124
Experience:  Licensed Texas General Practice Attorney
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With your prior answer on Bivins, which was great, can you

Customer Question

With your prior answer on Bivins, which was great, can you think of how to tie in a constitutional violation if the overall substance is tortious interference? We own a start up newspaper and a former disgruntled employee claimed many things to the feds where in their investigation they have visited many of our advertisers who, due to the visit and hard ball approach stating I and the LLC is under federal criminal investigation, among other intimidating statements--we have lost a number of those advertisers. Completely provable. Same with staff, we have lost staff as they were approached and a number of the LLC members were approached. All hardball, but the loss of advertising is significant.So, I need to tie in a constitutional claim.Thoughts?
Submitted: 1 month ago.
Category: Business Law
Expert:  RGMacEsq replied 1 month ago.

The Supreme Court created a private damages action against federal officials for constitutional torts (civil rights violations), which are not covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right of action against federal law enforcement officials for damages from an unlawful search and seizure. Since a Bivens action is brought against a federal official in the official’s personal capacity, it is not considered to be an action against the United States and therefore is not barred by sovereign immunity. Bivens is not a general tort law. The plaintiff seeking a damages remedy under Bivens must first demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979) ]

Tortious interference is a tort, and not covered by FTCA (generally speaking no intentional torts are). Since a Bivens action addresses constitutional wrongs and not tortious wrongs, tortious interfeence is not something that you could bring up in such a case. Now the elements of tortious interference could be part of a Bivens case (in that the same facts could lead to the conclusion that the actors violated constitutional rights) but is not necessarily so.

Now a lawsuit by an LLC means that you have to have a lawyer. A lawyer has to represent an LLC in court. An LLC cannot represent itself pro se in federal court, as domestic corporations must be represented by licensed counsel. See United States v. Cocivera, 104 F.3d 566, 572 (3d Cir. 1996), cert. denied 520 U.S. 1248 (1997)("the Supreme Court has stated, 't has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel.'")(quoting Rowland v. California Men's Colony, 506 U.S. 194, 201-02,***** 716, 721, 121 L. Ed. 2d 656 (1993)); see also Simbraw, Inc. v. United States, 367 F.2d 373, 374-75 (3d Cir. 1966)("'a corporation can do no act except through its agents and . . . such agents representing the corporation in Court must be attorneys at law[.]'")(quoting MacNeil v. Hearst Corporation, 160 F. Supp. 157 (D. Del. 1958)); see also Poore v. Fox Hollow Enterprises, No. C.A. 93A-09-005, 1994 WL 150872, at *2 (Del. Super. Ct. Mar. 29, 1994)(in deciding whether an LLC more closely resembles a partnership that may represent itself or a corporation requiring representation by counsel, Court determined that nature of LLC for liability purposes is more analogous to a corporation and thus held that the "underlying purpose of the rule prohibiting the appearance of a corporation by anyone other than [licensed counsel] also applies to the representation of Limited Liability Companies.").

That being said, you need to contact an attorney in your area that deals with Bivens / Federal tort cases (as the type of lawyer that handles Federal tort cases will also handle Bivens actions). Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

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Expert:  RGMacEsq replied 1 month ago.

Did you have any other questions before you rate this answer?

Expert:  RGMacEsq replied 1 month ago.

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

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