Injunctions

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Latest post Wed, Jul 20 2011 9:30 PM by Taxagent. 57 replies.
  • Thu, May 19 2011 4:37 PM

    • Dave381
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    Injunctions

    I have decided to get an injunction against my former employer to force them to release employment information that is required by law.  You can read the details of how they are preventing me from getting a job here:

    http://community.lawyers.com/forums/t/114164.aspx

    I've seen samples of Petitions for Injunction that have been filed in this same court (Wyandotte County, KS), so I'll have a guide for drafting my petition.  These are all connected to domestic abuse, stalking, etc., though.  This is a business-related injunction.

    I'm looking to get an immediate temporary injunction, pending a hearing on a full injunction.

    I'm looking for guidance on what to include or not include so that the judge won't just dismiss it, and will sign a temporary injunction to be served immediately.

    Thank you.

  • Fri, May 20 2011 1:06 PM In reply to

    • LynnM
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    Re: Injunctions

    "I'm looking for guidance on what to include or not include so that the judge won't just dismiss it, and will sign a temporary injunction to be served immediately."

    Well, first things first, no one at this site can provide specific legal advice. That's not what we do. If you are not going to hire an attorney I suggest you find a law library and start doing the research.

    Second, to do so would be premature. I believe the regulations you cite in your other post provide a remedy through an administrative procedure. You have to exhaust that procedure before you can go to court.

     

  • Fri, May 20 2011 1:17 PM In reply to

    • Drew
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    Re: Injunctions

    I'm no lawyer but ---

    1. If you expect a state court to enforce a federal agency  you may have a long wait unless there relevant state law requires them to do so.

    2. If there is an administrative proceedure to access your records and you fail to use it, completely, then that become a clear reason to toss your request to the courts, you failed to exercise your administrative remedies.

    3. What works in KS is not  a for sure workable tool in MO.



  • Fri, May 20 2011 7:00 PM In reply to

    • Dave381
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    Re: Injunctions

    >>Well, first things first, no one at this site can provide specific legal advice.<<

    I'm just lookng for general information.

    >>Second, to do so would be premature. I believe the regulations you cite in your other post provide a remedy through an administrative procedure. You have to exhaust that procedure before you can go to court.<<

    Something I forgot to mention:  According to the person at FMSCA's field office, a prospective employer only has to show that they made good faith attempts to get the information.  However, many companys' insurance carriers require it.

    >>If you expect a state court to enforce a federal agency  you may have a long wait unless there relevant state law requires them to do so.<<

    Not all of the information is necessarily required by the federal agency.  But they are still causing me harm by not providing it.

    >>If there is an administrative proceedure to access your records and you fail to use it, completely, then that become a clear reason to toss your request to the courts, you failed to exercise your administrative remedies.<<

    I can see that as a reason to not issue the permanent injunction, and I intend to tell the court that (if they bring it up.)  The injunction I've drafted so far states, "Plaintiff knows of no other adequate remedy of law."  I realize that the word "adequate" can mean different things, but I'm hoping the judge will see that waiting and waiting for a federal agency to do something when I'm currently unemployed and someone is trying to hire me is not an "adequate remedy".  Also, I will mention that the company probably would rather not have a federal agency on their backs, when they can so easily just drop the foolishness and release information.  Also, other former drivers are probably being harmed by this company's foolishness, and deserve the same injunctive relief.

    If the temporary injunction is issued, and the prospective employer releses the information, then I may be able to get it from them, have them notarize it or do something to make it official, and then I'll have it to show an employer in the future.  I can also have it ready when hearings come up for the permanent injunction.  Once it becomes part of the court record, there is no way they can deny it.

    >>What works in KS is not  a for sure workable tool in MO.<<

    All of this takes place in Wyandotte County, KS.  Missouri is not involved.

    FYI--I got out my little tape recorder and made a recording of the office lady telling me how that can't release information (she was actually nice about it, she's a nice lady.), and also of the indignant, smart-alecky woman in the corporate office's "Employment Verification" department, telling me that they don't have to provide anything, when the law states that they certainly do.

    Also, would it do any good for me to post the contents of the actual petiton, names of people and companies excluded?

  • Fri, May 20 2011 7:24 PM In reply to

    • LynnM
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    Re: Injunctions

     "Plaintiff knows of no other adequate remedy of law."  There's a problem with that. It's not true and you know it. But putting that aside what you are not understanding is tha if there is an administrative remedy that has not been follwed the court CANNOT act. It can only dismiss whatever you file and tell you to come back when you have exhausted the remedy.

    Were you actually in the office with the smart aleck lady or did you record a phone call?

    No one here can offer specific advice so posting your document is not helpful. But the critical point is that even if the judge is incredibly sympathetic he cannot, as a matter of law, take any action UNTIL the administrative remedy is exhausted. SO all that can possibly happen is that you spend money to file a motion and get bounced out of court as soon as the other party responds. If not sooner.

  • Fri, May 20 2011 8:36 PM In reply to

    • Dave381
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    Re: Injunctions

    I stated:

    'I'm hoping the judge will see that waiting and waiting for a federal agency to do something when I'm currently unemployed and someone is trying to hire me is not an "adequate remedy".'

    Running someone into the ground while waiting for a federal agency to act is not something I see as an adequate remedy.  I believe it is true that it isn't an adequate remedy.  Solving an easy-to-solve problem by causing more and greater problems can't meet any definiton of "adequate" in a reasonable person's mind.

    Also, not all of the information is REQUIRED to be provided by the FMCSA regulations, but their failure to provide it is causing me harm nonetheless.  I could just list the specific non-required information that isn't being provided and just go on that, but I thought that mentioning the violation of the law might bolster my case.  and as I said before, the FMSCA only reuires that a prospective employer show that they made good-faith attempts to acquire the information.

    I could just forget the whole FMCSA bit and state that the former employer is not providing information, and is causing me damage as a result.

    Even if I went through all the administrative procedures with the FMSCA, the other information needed by the prospective employer wouldn't be provided, as the FMSCA can't force them to provide it.  And then we'd all be right back to square one--in court on an injuction all over again.

    Actually, I can't see the company taking time out to appear in court or to pay attorneys to fight this, when it's so much easier for them to just provide the necessary information.

    Also, something that just occurred to me--Kansas will pretty much allow an injunction to anyone who asks for it, as long as it won't harm the defendant.  I should know--I had a scummy individual get a restraining order on me in the exact same court a few years back.  Even though the judge didn't buy the boss's story that I'm a violent individual, the order was granted anyway, as I couldn't show that it would cause me harm (Luckily, it doesn't seem to have done so so far, as no one has done a background check and asked me about it.)

  • Fri, May 20 2011 8:40 PM In reply to

    • Dave381
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    Re: Injunctions

    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.

  • Fri, May 20 2011 8:55 PM In reply to

    Re: Injunctions

    Dave381:
    I'm looking for guidance on what to include or not include so that the judge won't just dismiss it, and will sign a temporary injunction to be served immediately.

    My comments are with respect to injunctions generally, and not specific to KS law.

    The first thing to understand about an injunction is that it considered an extraordinary remedy; one to be used only when no other remedy will suffice.

    Thus, you typically have to show, among other things, that (1) you've exhausted any administrative remedy the law may provide to cure the problem and (2) that there is no "adequate remedy at law." (not "of law''). The phrase "at law" has a very specific meaning, and one that a non-lawyer would not appreciate. A century ago, the civil courts of most states were divided into two types: courts of equity and courts of law. Injunctions are an equitable remedy (though not the only type of equitable remedy) and thus were handled by the equity courts. The basic rule for coming to a court of equity to seek relief was that there was no adequate remedy that could be obtained in a court of law. If a party could be adequately compensated in an action in a court of law, that's where the claim had to be brought. I'm greatly oversimplfying here, but the main remedy "at law" was money damages. Thus, if money damages were available for the claim at issue and would be an adequate remedy, then the claim for money damages had to be brought to a court of law. If that party tried to bring a request for injunction in a court of equity, the court would refuse since there was remedy in the law courts.

    Most states have since combined the courts of law and equity into a single court. But the distinctions between the types of relief remain in many states, and thus it is still the case that injunctions will be denied if a remedy at law, which chiefly means money damages, is available to address the issue.

    The problem I see is that your claim is an economic one. The former employer's failure to provide the records (if it even has them) is preventing you from getting a job, and as a result depriving you of an income. If you can sue the former employer for money damages for the income lost from that failure to provide records, then you have an adequate remedy at law. The money damages will certainly be seen as an adequate remedy for the lost money from lack of employment, as money is fungible, i.e. one dollar is just as good as another. This  is unlike a request for an order of protection (which is also an equitable remedy) because money damages won't fullly compensate you if you're dead. So, an order to keep a stalker at bay is appropriate to seek since there is no other remedy that can adequately address the harm. But money damages for $1,000 to replace $1,000 lost from lack of work would be a sufficient remedy in the eyes of the court. In short, I think you'll have to show that there is no lawsuit available for money damages for this harm in order to succeed in getting an injunction. My guess is that if the employer owes you a duty to provide those records such that an injunction would be appropriate that would also mean that there is a claim for money damages available to you as well.

    As for a temporary injunction, there are additional requirements for those. Often the decision on the temporary injunction is the decisive one if granted because by the time the hearing comes on the permanent injunction the issue has been made moot. Thus, courts are reluctant to grant them without a showing of imminent and irreparable harm and a showing that you'd likely prevail on the merits at the permanent injunction hearing. Again, because this is basically a case of lost income, I think a showing of irreparable harm to you will be quite hard to make. It is unlike the case of a stalker, where getting an order immediately might be needed to prevent serious injury or death. This is why you see lots of injunctions in the domestic relations/stalker type situations but very few in business/economic type cases.

  • Fri, May 20 2011 9:09 PM In reply to

    Re: Injunctions

    Dave381:
    Also, something that just occurred to me--Kansas will pretty much allow an injunction to anyone who asks for it, as long as it won't harm the defendant.  I should know--I had a scummy individual get a restraining order on me in the exact same court a few years back.

    Most state courts hand out tempoary orders of protection like candy, for the reason that there is no adequate remedy at law, there is great potential irreparable harm to the requesting party if he or she is severely injured or killed, and the burden on the other party, at least for a temporary injunction, is slight. But you are not seeking an order of protection here. As I said in my first reply, the issue of an adequate remedy at law as well as whether you are facing irreparable harm are quite different in a case where the basis issue is an economic one, not one of personal safety.

  • Fri, May 20 2011 9:10 PM In reply to

    Re: Injunctions

    Dave381:
    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.

  • Sun, May 22 2011 1:36 AM In reply to

    • Dave381
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    Re: Injunctions

     

    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:

    http://community.lawyers.com/forums/t/101413.aspx

    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?

     

     

  • Sun, May 22 2011 1:50 AM In reply to

    • Dave381
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    Re: Injunctions

    This might be a dumb question, but does anyone think it might be better to let the company know what I've got in mind first, thus keeping it completely out of the courts if they provide the records?  Of course, I'd still like to angle for that email if possible.

  • Sun, May 22 2011 1:53 AM In reply to

    • Dave381
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    Re: Injunctions

    Deleted--accidental double-post.

  • Sun, May 22 2011 2:43 AM In reply to

    Re: Injunctions

    Dave381:
    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.

    Without going into the history the equity courts and the origin of the rule, the basic problem for modern courts is a practical one. With a money judgement, the court's role is complete when the judgment is rendered. With an action in equity, the court must retain jursidiction and stay involved for as long as it takes for the injunction/specific performance or other remedy to be carried out. In some cases this results in a court retaining jurisdiction and having to supervise a case for years, which they obviously don't like. You can see, I think, that courts prefer the judgment, which ends their role quickly, over equitable remedies that require their continued involvement, sometime for years. That is one of the reasons behind the continuing vitality of the rule that states there must be no adequate remedy at law.

    Irreparable harm is often a key requirement for a temporary injunction, because temporary injunctions may be granted without giving the other side an opportunity for a full and fair hearing on the merits of the claim. As you can imagine, there must be a compelling reason to grant such a request if you are going to deprive the other side of his normal rights to fully contest the claim.

    Dave381:

    I'm also considering subpoenaing the email that got me fired, as I described in my defamation of character post:

    http://community.lawyers.com/forums/t/101413.aspx

    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?

    I suggest you reconsider that. The e-mail with the defamtory statement is not relevant to your injunction action. It doesn't really matter if they are doing it as retailiation or are simply incompetent at keeping records. Either you are entitled to have them provide the records or you aren't. Why they haven't provided them, other than any argument they have that they are not required to do so, doesn't matter. Besides, all you have is mere speculation that the failure to provide the records is retalitory, and courts don't like you using one action as a subtrefuge to get information for another. Finally, getting the e-mail here would still not solve the issue we discussed of having to lay the foundation for it in that defamation case.

    Dave381:
    At the very least, a hearing will provide a transcript with evidence of my past work history with that company.

    Unlikely. The hearing will be about the arguments for and against an injunction requiring the company to provide the records. Your work history, other than the fact you were employed as a motor carrier driver with the company, would not be relevant to that—it is instead that history you are trying to get the court to order the company to provide. 

    Dave381:
    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.

    One of the general requirements in coming to a court of equity (and while hearing an injunction claim the court sits as a court of equity) is that the party seeking relief must come to the court with "clean hands." Don't undercut your case here by attempting to use this case as leverage to get an advantage in another. As I said, the courts don't like that, and it can particularly hurt you when seeking equitable relief. The court will expect you to limit your actions in this case to those things relevant to the injunction you are seeking, nothing else.

    Besides, if they provide the records you seek, the request for injunction becomes moot and you cannot take it to a full hearing. It would be pointless and the court would not be happy to hear at the hearing from the company that it provided you the records some time ago and you failed to move to dismiss the action. You could be subject to sanctions for that if the judge is ticked off enough.

  • Sun, May 22 2011 2:47 AM In reply to

    Re: Injunctions

    Dave381:

    This might be a dumb question, but does anyone think it might be better to let the company know what I've got in mind first, thus keeping it completely out of the courts if they provide the records?  Of course, I'd still like to angle for that email if possible.

    As I said before, I think if I were you I'd forget about trying to use this case to get that e-mail which is really only relevant for a completely separate case. It is not relevant for the injunction.

    There is likely no harm in telling the company that if it doesn't provide the records you will pursue an injunction and/or civil suit for damages and see if that motivates it to provide the records. If it doesn't respond, worst thing is you need to follow through with going to court, right?

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