Anatomy of Bad Lawyering – Part V



anatomy of bad lawyering

Part IV ended with Acme’s case being dismissed.

RECAP:  Smith sued Acme for unpaid commissions.  Acme sued Smith for breach of his employment agreement.  Acme filed and served the first complaint.  Smith, instead of simply answering the complaint, filed a separate complaint.  Acme, instead of moving to consolidate the two actions, filed a motion to dismiss Smith’s complaint- a motion that was doomed to failure.  The spreadsheet showing the course of the 2 competing actions is shown here: Exhibit B – Spreadsheet. The spreadsheet is divided- left side/right side, into the 2 different actions: Acme v. Smith; Smith v. Acme (“v.” means “versus”).  The first name listed signified the plaintiff; the second name is the defendant.

On 12/24/13 (See Exhibit B 11/7/13: Exhibit B – Spreadsheet), Smith filed a motion for partial summary judgment pursuant to CPLR § 3212 in the Smith v. Acme case.  Following on the heals of that filing, Smith filed, a motion to dismiss  pursuant to CPLR § 3211 Acme’s counterclaims (asserted in the Smith v. Jones case) on 1/17/14 (See Exhibit B 11/7/13: Exhibit B – Spreadsheet).  To further confuse the procedural posture of the case, Smith also filed the very same motion to dismiss in the Acme case!

At this stage of litigation, there remains Acme v. Smith, and Smith v. Acme- the identical case, but with different pleadings, operating in tandem!  Why?  Absolutely no good reason.  Remarkably, although a court has fairly broad sua sponte powers (the power to do things in a lawsuit without a party seeking it), a court does not have the authority to sua sponte order the consolidation of two actions, even though the actions are identical.  (See 1 NYJUR 2d§  66).

Why did neither party move to consolidate?  Stay tuned…..

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