Thanks for pointing out my "at law" mistake. I've corrected that in my complaint. By the way, if someone is an "Attorney at law", does that mean he/she can't pursue or defend a case seeking relief in equity? Just kidding.
I really cannot understand why a court would basically leave someone no choice but to sue the pants off of someone, when all they want is a simple, easy-to-comply-with equitable remedy. I read in Black's Law Dictionary under "Irreparable Injury Rule":
“The irreparable injury rule has received considerable scholarly attention. In 1978, Owen Fiss
examined the possible reasons for the rule and found them wanting. A vigorous debate over the
economic wisdom of applying the rule to specific performance of contracts began about the same
time, and soon came to center on the transaction costs of administering the two remedies. Both
Fiss and Dan Dobbs have noted that the rule does not seem to be taken very seriously, and in a
review of Fiss's book, I argued that the definition of adequacy pulls most of the rule's teeth. The
Restatement (Second) of Torts dropped the rule from the blackletter and condemned it as
misleading, but replaced it only with a long and unstructured list of factors to be considered....
[M]any sophisticated lawyers believe that the rule continues to reflect a serious preference for
legal over equitable remedies.” Douglas Laycock, The Death of the Irreparable Injury Rule 9 (1991).
Has the law basically been set up so that people can make money with lawsuits rather than just doing the right thing, which costs next to nothing?
60-901 of the Kansas Statutes defines injunction as:
“Injunction is an order to do or refrain from doing a particular act. It may be the final judgment in an action, and it may also be allowed as a provisional remedy.”
I'm getting conflicting definitions of what "Provisional Remedy" means. One website quotes West's Encyclopedia of American Law, edition 2, as defining it this way:
"A provisional remedy is one that is adapted to meet a specific emergency. It is the temporary process available to the plaintiff in a civil action that protects him or her against loss, irreparable injury, or dissipation of the property while the action is pending. Some types of provisional remedies are injunction, receivership, arrest, attachment, and Garnishment."
Others say it's only if there is "irreparable harm" imminent.
Like I said, the FMCSA can't get all the necessary records, which means the injunction would still be needed to force them to release the rest. And I don't know what other agency could do that. Also, I don't think this company wants the Dept. of Transportation or any other government agencies on their backs.
>>Also, should a hearing be set concerning the permanent injunction, what's the best way to get specific people from the former company to appear? I'm sure my immediate boss will, but I'd like for his boss and the office lady who handled all my paperwork to appear as well.
If you get to that point, you subpoena them to appear, of course. You know that from our discussion on your thread on the defamation claim, I think.<<
I just wasn't sure if there wasn't a different procedure in this situation, such as having to list the names on the initial complaint or something.
More good news:
FMCSR 391.51(c) states: "...each driver's qualification file shall be retained for as long as a driver is employed by that motor carrier and for three years thereafter." And FMCSR 391.53(c) states: "The safety performance histories received from previous employers for a driver who is hired must be retained for as long as the driver is employed by that motor carrier and for three years thereafter."
I'll be subpoenaing all these documents. And I've been gone from that company for less than a year. I can't wait to see what happens when the company either a) ponies up the information all of a sudden, or b) is forced to admit that they broke the law by not retaining the records. Of course, I'll give them the option to pony up the records first, and then drop the whole thing. This would also leave the option open of suing them in civil court for keeping me out of work so long by not providing information to prospective employers up to this point.
I'm also considering subpoenaing the email that got me fired, as I described in my defamation of character post:
Reason being, I believe they may be doing this in retaliation for what that person said I did. Would I be able to get this made part of the court file? My ex-boss would never know that I would be doing that in order to have it made "official", and thus, more likely to be accepted by the other court.
Also, if I give them the option to pony up the records can I, without getting in trouble, tell them that if they don't include the email, and an affidavit attesting to it's authenticity, then the injunction will go to a court hearing? I know that could be considered "blackmail" but I wanted to run it past everybody.
At the very least, a hearing will provide a transcript with evidence of my past work history with that company. Correct?