Anatomy of Bad Lawering – Part I
Reference To Exhibit B, dated 5/30/13 thru 6/21/13.
[this matter occurred in NY Supreme Court, Commercial Division, by EFile. For those of you not familiar with the EFile system, it is the court’s electronic-filing system whereby all documents are uploaded and served on the opposing parties by computer. It is relevant, on occasion, to the timing of opposing filings].
On May 30, 2013, Acme commenced an action against Smith for breach of employment contract. Smith had started his own company, in alleged violation of the contract’s anti-compete clause.
ERROR 1: Acme failed to seek an injunction against Smith’s continued operation of the business.
On June 21, 2013, Smith commenced an action against Acme alleging unpaid wages running to millions of dollars, and as much as $20 million, with statutory damages. More on this in a future blog entry.
ERROR 2: Acme serves subpoenas on several non-parties. Without court order. Prior to “joinder of issue”. This was an attempt to engage in pre-action discovery, because no discovery demands can be made without an Answer being served to a Complaint.
“Discovery” means the legal devices used to obtain documentary or deposition evidence from parties and non-parties to a lawsuit.
Joinder of Issue: Simply means an Answer has been served in response to a Complaint.
Pre-Action Discovery: CPLR § 3102(c)
You should be asking at this juncture, “why are there two complaints, instead of a complaint, and an answer?” NOTE: an Answer can include a “counterclaim” which, for almost every purpose, has the same effect as the complaint [there are certain technical timing issues that in rare occasions favor the defendant, for example the timing of discovery demands]
Thus: we now have two separate lawsuits, on two independent Efile tracks (and different index numbers), and no Answers to either Complaint (an “index number” is simply the number for the case assigned by the court system).
Procedurally, is there anything that should be done at this point? Find out what happened in next week’s post.