QUESTION
I received a motion to dismiss after filing a complaint against an individual and his construction which is a LLC. What is my next action ?
Asked on Apr 30th, 2015 on Breach of Contract - North Carolina
More details to this question:
I filed a complaint against defendant and his construction co. LLC. I have been through small claims and won $7,000 and arbitration and won $28,000 for breach of contract, walking out on the job before finishing. Wrong color cabinets and siding, damaging personal property. The defendant appealed both. I received a motion to dismiss plaintiff's complaint against the individual defendant, stating that no agreement existed between individual defendant and the plaintiff. Stating the plaintiff's contract, if any, was with the corporate defendant. Then his lawyer listed the response to allegations denying everything of the 36 complaints. Could you tell me what my response to this would be? Do I file another complaint just against the LLC? Then there is also a counterclaim stating I backed into his automobile and asking for attorney fees. I'm representing myself so your info would be appreciated.
1 ANSWER
If you have a basis to hold the individual liable, instead of just the llc, you would oppose the motion on that basis. If not, the motion would be granted and the claim against the individual will be dismissed. However, dismissal of the claim against the individual would not result in dismissal of the claim against the LLC, so if the motion is, as you write, only to dismiss the claim against the individual, the claim against the LLC will remain even if you lose the motion, and there will be no need to start another action. You will proceed to litigate that claim, probably beginning with discovery, i.e. each side obtaining information from the other prior to trial through depositions, document requests, interrogatories, etc.
I'm confused, however. I don't understand how you can (or would want to) pursue a claim which you have already sued on and won, twice according to you (unless you're saying that the defendant won both appeals.)
Answered on Apr 30th, 2015 at 11:41 AM