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An employment dispute more difficult than wrongful dismissal or several pay

This is one of my numerous employment law cases representing an employer in China. This case is more difficult than other employment disputes I handled, such as the wrongful dismissal or several pay cases.

My friend (let's call her "FRIEND") owns a tax preparation service  ("ABC Tax Services"). FRIEND's former employee (let's call her "FORMER EMPLOYEE") filed a false lawsuit against FRIEND in federal court.

Also named as a defendant is what we assume is intended to be her company but the plaintiff got the name wrong (let's say "ABC Tax Shinola").  The caption looks something like this:

*FORMER EMPLOYEE, Plaintiff v. ABC TAX SHINOLA, FRIEND Defendants. *

Friend's company ABC Tax Services, owns a federal trademark for "ABC Tax," the only federal trademark in the state for ABC Tax (someone 40 miles away in a neighboring state has this trademark).

Friend thinks that we can add in our answer or motion to dismiss something about the fact that some non-existent company (Shinola) other than hers (Services) is improperly named as the defendant.

I thought about doing this in the answer or motion to dismiss. I got a motion for a 2-week extension granted last week for FRIEND. Turns out the Answer for ABC Tax Shinola is due today and I am busy.

I am considering throwing together an Answer indicating that I represent ABC Tax Services and that the plaintiff named the wrong party, the nonexistent ABC Tax Shinola, and will likely soon fix the caption.

But wouldn't that require me to enter an appearance on behalf of my client ABC Tax Services (as a Defendant?  as an intervenor?) to do that?  And wouldn't that be waiving my ability to do - whatever it is I can do to get the case dismissed with regard to ABC Tax Services - because the Plaintiff put the wrong name (Shinola) in the caption?

Maybe it would just make more get an extension today for ABC Tax Services as an intervenor (?) and then later file a Motion to Dismiss for ABC Tax Services, indicating that P named the wrong party...?

But I am concerned that my client will think I am losing "the element of surprise." I have a ton of other things due today and can use a spot of advice. Highly doubtful the case gets dismissed naming the wrong company. because:

1) it was served properly to the company
2) the name is close enough

All they will have to do is ask the court to change the name of the party due to scriveners error.

Just answer the complaint as the proper company and state in the answer that the company was wrongfully named and should be named XYC.  And yes that should be part of your denial when it says they worked for ABC, you deny but admit they worked for XYZ.

This is not an uncommon error and the judge, on my motion to dismiss, is going to ask me about two questions

1) did the company get the petition
2) did the petitioner work for the company and if the answer is yes to both those, they are on notice and any error can be very easily rectified by the plaintiff.

Unless my client absolutely insists (and pays a nice hefty retainer for it) do not waste the courts time or my client's money actually arguing a motion to dismiss.  If I feel I must file a motion to dismiss, file it as the company is named wrong and then call up OC, ask them to amend their pleadings naming the correct company and agree to what additional time after the amending pleadings are given to me to respond.

 

 

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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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