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MisRep with forum-selection Clause

Discussion in 'Alternative Dispute Resolution' started by aviddiver, Jul 2, 2010.

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  1. aviddiver

    aviddiver Law Topic Starter New Member

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    I am an IT Consultant based in California and was recruited by a Consulting Company based in Maryland for a client in New York. During recruitment, I was told that a contract duration for client is for 12 months+ and to telecommute (remote access from home). I was selected and performed my job from home in SoCal, during the time, I pass up other opportunities. After 4 months, I was told the contract was not extended, therefore, I was out of job. I found out that the contract job was actually for 4 months only. I sued the consulting company for Fraudulent Misrepresentation (Truth in Hiring).

    When I was selected for the position, the employer (Consulting Firm) made me sign an Employment Agreement which includes an At-Will clause and a forum-selection clause. At-Will deals with termination while my lawsuit of Truth-in-Hiring deals with hiring, so, no issue here. My issue is with the forum-selection clause, wherein, any legal actions will only be brought in Maryland.

    I filed my case in California thinking that remedy to a Fraud MisRep may/can rescind the Employment Agreement, therefore, will strike down At-Will and forum-selection clauses - this is what I am thinking/hoping.

    My question is, how will the judge read my case? Will the judge accept my case and hear it in California?

    Thank you very much.
     
  2. army judge

    army judge Super Moderator

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    The theory of your case is flawed.
    Actually, it is nonexistent.
    This wasn't a case of misrepresentation.
    You performed the work for which they hired you.
    For that work, you received the agreed upon compensation.
    Then, the work ended.
    It doesn't matter why, it just ended.
    Your work was at will.
    Therefore, the contract was terminated (no doubt, in accordance with the contract terms).

    You're claiming misrepresentation, yet you're suing because the contract didn't run one year as you anticipated.
    You're wasting your time, even if the court on California has (or can obtain jurisdiction) over an entity in another state.
    Jurisdiction opens up another can of worms for you to overcome, which you can't.
    Can't, that is, unless you sue in federal court.

    But, if you sue in federal court, you're up against the Federal Rules of Civil Procedure.
    To get your case in the hopper, your pleadings must be perfect.
    That is just for starters.
    Plus, the amount in dispute must exceed $75,000.

    Beyond all those issues, none of which are minor, consider the following scenarios.
    What, if after three months you had fallen ill, or were severely injured in an auto accident?
    The illness or the injury, cause you to be unable to work.
    Do you think the employer would have a case against you for misrepresentation?

    Consider this interesting scenario.
    What if you had won the lottery for $500,000,000, or your great-aunt Hilda passed away leaving you her estate worth $50,000,000 and her business empire grossing another $300,000,000 annually?
    Could the employer sue you because you suddenly quit?

    Finally, think about this.
    One day you wake up and decide you want to sit on the beach and pray.
    Or, you no longer want to do IT work, but write your autobiography.
    So you give your two weeks notice.
    Can the employer sue you because you no longer want to do IT work?

    You're free to pursue your lawsuit.
    But, any first year law student will prevail for the person you're suing.
    The entity you're suing isn't going to hire a first year law student, however.
    You're going to go against a litigator.
    And, in the end, you might be ordered to pay the legal fees of the person/entity you're suing.

    Your theory of the case isn't just flawed, its nonexistent.
    There isn't one.
    You're way off base.

    Please don't take my thoughts in a negative light.
    I'm being honest with you.
    I wish I could encourage you.
    But, you should let this go.
    You can proceed, but you will never prevail.
     
    Last edited: Jul 2, 2010
  3. aviddiver

    aviddiver Law Topic Starter New Member

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    Good grief, armyjudge, I can't believe you are way, way off on this. Please google "Truth in Hiring" and get back to me with your new thoughts. Better yet, follow link for article:

    http://www.entrepreneur.com/tradejournals/article/154005369.html

    I believe I have a case and would appreciate some insight regarding forum-selection clause.

    As always, I appreciate your straight-forward thoughts.
     
  4. aviddiver

    aviddiver Law Topic Starter New Member

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    Personal Jurisdiction

    A consulting company is based in New York but recruits throughout the United States including California. They also provide services throughout United States including California.
    A lawsuit is filed in California and the company argues forum non conveniens.
    Can California personal jurisdiction defeat the forum non conveniens?

    Thank you.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I had to read this twice but army judge brings up a good point. However, this answer is completely dependent upon the words in your contract. WHAT DO THE WORDS OF YOUR EMPLOYMENT CONTRACT SAY? That is most important.

    Let's say you talked to a recruiter. He said we'll bring you out across the states for work which we are on contract for one year. The contract says it's an at will agreement, which means they can terminate your employment four months later or even the following week. I'm assuming you must have seen this in the agreement. If so, did you discuss it with them? Wouldn't you want some guaranteed period of employment?

    Let's assume you didn't realize this. What exactly was the discussion with the recruiter? Did he offer you a one year contract to work for them specifically? Or did he say that they had a deal with a client and typically they hire employees for a year periods to work with specific clients on a going forward basis as and if they renew their agreements? I have no idea. Proving your case as to what was said on the phone might not be easy. The words in your employment agreement say what they do.

    Now let's talk about forum non-conveniens which is not just an inconvenient forum but an agreed upon clause. Let's assume it's possible you might be able to get the venue changed. But as army judge pointed out, do you even have a case? What do the words of your agreement actually say?
     
  6. aviddiver

    aviddiver Law Topic Starter New Member

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    Thank you, lawprofessor. You are correct, the Agreement includes "At Will" and Forum Selection Clause. The Agreement was sent to me to sign 5 days after I was told that I was selected for the job. When I received it, I was under the impression that the contract duration has not changed. So, I thought the Agreement was simply formality (my mistake - ass/u/me) because my employment depended on the contract. After the contract ended (terminated) I found out that the contract signed by client was for 4 months only. The exact wordings on the requisition are:
    Estimated Start Date: 01/31/yy
    Estimated End Date: 04/25/yy
    Below is the exact content of the email message I received from the recruiter:
    Job Role: omitted
    Location: Remote (meaning offsite, therefore, from home)
    Duration: 12 months with possible extension
    Client: omitted

    Since the recruiter also recruits for clients in California, my feeling is that they are subject to California LongArm Statute (Sect. 410.10), therefore, defeating FSC. This is my first hurdle.

    As always, opinions shared with me are very much appreciated. And such are not taken as legal advise but simply leads for further research.

    Thank you All.
     
    Last edited: Jul 23, 2010
  7. army judge

    army judge Super Moderator

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    Surprise, surprise, surprise, as my old pal Jim Nabors (aka -Gomer Pyle) was wont to say.


    Good luck. Truth in hiring, indeed, another government scam/con-job.


    Sent from my iPhone using Tapatalk
     
  8. aviddiver

    aviddiver Law Topic Starter New Member

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    I don't get it. Does this mean you agree with me?
    I don't get the reference to government scam, either.

    Cheers!
     
  9. army judge

    army judge Super Moderator

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    I'm saying the government misleads people into thinking they protect them. Truth on hiring, hah? Why not a truthful politician's act?





    Sent from my iPhone using Tapatalk
     
  10. jacksgal

    jacksgal Super Moderator

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    Considering Politicians would need to vote on it that wont happen
     
  11. army judge

    army judge Super Moderator

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    I know. That's why I call all politicians, con-artists and scammers.


    Sent from my iPhone using Tapatalk
     
  12. aviddiver

    aviddiver Law Topic Starter New Member

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    Thank you all. But I still do not get the politician issue. If you guys have some beef against the government, so do I. But let us take it offline for now.

    Now, getting back to my Forum Selection Clause.

    Regards.
     
  13. aviddiver

    aviddiver Law Topic Starter New Member

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    Hearing Day

    Is a hearing the same as a Trial?

    When I went to court for my hearing, I saw a tentative ruling to the motion to stay for reason of non conveniens. The Motion to Stay was granted.

    During the hearing, the judge said that my papers lack evidence and arguments. Maybe because I did not include any case law or cite other laws. Is this what is referred to as authorities? I also did not subpoena the document for evidence.

    So, what do I do now??? Can I appeal this? OR can I file again on federal court?

    I got the idea that to pursue this case I would have to file in Maryland.


    Thank you.
     
  14. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    A hearing is not a trial. It's when a judge hears something like a motion. The judge is saying that your papers didn't provide an argument or evidence to show why the judge should rule for you. What did you write, if anything? If you can't site a law (authority) to show that the law is on your side, the judge isn't going to do it for you. For example, if you want to change the venue (place of the trial), you need to show a law that indicates why changing the venue is appropriate. The judge needs more than your say so "because it should be there" to rule on your behalf.
     
  15. aviddiver

    aviddiver Law Topic Starter New Member

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    You are right, professor. I did not include any site to my response to the defendant's Motion to Stay for Forum Non Conveniens. I didn't know that the judge would decide on the case before the hearing.
    During the hearing, I sited Mcgee v. International Life and International Shoe Co. v. Washington which deals with minimum contact with forum state and I thought this will defeat the forum selection clause in my contract.
    Now that I know I screwed up, what is next? To avoid filing this case in Maryland, can I appeal? Can I file another complaint in federal court?

    Thank you, sir.
     
  16. aviddiver

    aviddiver Law Topic Starter New Member

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    Anyway, I would appreciate if anyone here can tell me how to keep my case in California. Can I file my complaint in federal court?

    Thank you.
     
  17. army judge

    army judge Super Moderator

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    Yes, but the amount in dispute must be very large. How much are your alleged damages? You're wasting your time and your money. You have no case. Truth in hiring doesn't guarantee you a definite term of employment.



    Sent from my iPhone using Tapatalk
     
  18. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I'm not sure I understand. If you lose a motion you can't just keep a case where you want it to be simply because you want it to be there. You can't just file a case in Federal Court and litigate the issue twice. In addition, Federal Court has its own requirements for which you need to qualify, including a high dollar amount or a question of federal law.
     
  19. aviddiver

    aviddiver Law Topic Starter New Member

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    I may refer to my case as "Truth-in-Hiring", however, it is still fraudulent misrep. I don't think I've lost my case, yet, just the forum selection. As for alleged damages, they owe me 8 months of pay at $48/hr which is about 60K. Then, there are other damages.
    As far as question of federal law, I've only found so far: (1) Mcgee v. International Life
    which deals with minimum contact with the forum,and (2) International Shoe v. Washington, 326 U.S. 310. Both cases were decided by US Supreme Court. Both satisfies California Long-Arm Statute (Cal. Code of Civ. proc Section 410.10) - I think.
    Defendant was recruiting for a direct client based in Northern California as recent as June. It sounds that defendant has frequent and systematic presence in CA, thereby, CA can exert personal jurisdiction. Am I correct? Can PJ defeat FSC?

    I am doing this myself because I cannot afford an attorney.

    Again, thank you for your responses.
     
  20. army judge

    army judge Super Moderator

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    My legal opinion is (as an attorney licensed to practice in Texas, Iowa, DC, Illinois, Louisiana, the Military Court of Appeals, the federal bar, the federal appellate bar, and in Australia) you have no case. Even if you did, this issue is res judicata because of your previous decision.

    I know you're upset. I know you feel mistreated. I sympathize with your plight. But, I can only say it one way, you never had a case.

    You don't want to take this case before a federal judge. There is no federal issue, supplemental issue, or issue of diversity.

    Finally, to take a civil dispute before the federal bench the amount in controversy must exceed $75,000. You assert a $60,000 dispute. You can file your case before a federal court, but it'll be kicked because it's $15,000 below the minimum.

    If you doubt what the Professor and I have told you, hire a local attorney and get the same answer for $2,500.
     

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