How to file a Lawsuit against Movers in Small Claims Court

Small claims court procedures are said to be simple and inexpensive, and you do not need a lawyer to file your claim. You may read that in a lot of small claims related guides and handbooks, but don’t take it at face value.

If you choose not to be represented by an attorney, the judge will still require that you strictly follow the procedures and the rules, even though you are not a lawyer. You could lose a case simply because you haven’t kept up with the deadlines for filing papers or you have missed your court hearing.

Avoid the courtroom – watch this guide to steer clear of moving company fraud.

You should check with the clerk to confirm that you are allowed to have a lawyer to represent you during the trial. Generally, in the state of California, attorneys and non-attorney representatives (such as an insurance company) are not allowed to represent either one of the parties in small claims cases. You may consult an attorney privately, but you won’t be able to recover the attorney’s fees if you win the case.

Basic considerations to have in mind when you file your lawsuit

• Statute of limitations

In layman’s terms, the “statute of limitations” means that there are limits on how long you can wait to file a lawsuit. Most claims must be filed within a specific period of time. The time limit differs depending on which jurisdiction you sue movers in and what type of claim you file, but, usually, you must file your lawsuit within two years from the time of the dispute. File your case as soon as reasonably possible to prevent the matter from growing stale or to lose your right to recover your monetary damages. Unless your plea for extending the time is based on good legal grounds, your claim will most probably be dismissed.

• Jurisdiction

Next, you need to make sure that you file your case in the appropriate jurisdiction, otherwise your case may be dismissed. Generally speaking, you must sue the defendant in the county (and the area of court location) where the defendant resides. And since you are suing a business, you need to file the case in the county where the business is located. If you have moved locally (within the state), then jurisdiction is no problem for you. However, if you have moved to another state, then jurisdiction may be a significant factor in your case, especially if your contract includes the “choice of law” clause. You must state on your claim why the court in which you have filed your claim is the proper court.

According to Christian Denmon at Denmon & Denmon Trial Lawyers in Florida:

“The rule is that the defendant must have “minimum contacts” with new state in order to be haled into court in a foreign jurisdiction. And, if the moving company routinely does business in your new state, jurisdiction is no-brainer.”

• Amount you can recover

Usually, small claims court can award only money. In California, small claims courts can order a defendant to do something, as long as a claim for money is also part of the lawsuit.

Also, in small claims courts, there is a maximum amount you are allowed to request. In New York, DC and Florida, the maximum amount you can recover is $5000, in Massachusetts – $7000, in California – $7500, in Texas – $10 000. You should check the local rules.

• the Carmack Amendment

John Bisney at the American Moving and Storage Association explains that prior to Carmack, the rule of carrier liability was determined on a state-by-state basis under the general common law, public policy, state statutes and local ordinances. As such, there was little, if any uniformity. Some states allowed carriers to exempt themselves from liability, in whole, or in part, by rule, regulation or contract – others did not. In some states, carriers were subject to different standards within the same state according to locality. The diversity of these varying provisions was so great that it was practically impossible for a consumer to know what the carrier’s actual responsibility should be when it came to obtaining a settlement from a loss or damage claim.

Generally, the Carmack Amendment limits the type of lawsuit you can file against an interstate moving company. You are limited to recovering for actual and foreseeable damages, and not “special” damages. The preemptive effect applies to claims of damage or loss relating to storage or other services provided by interstate movers. You cannot file a lawsuit against interstate movers for negligence, breach of contract, conversion, negligent misrepresentation and negligent infliction of emotional distress.

• Determining the proper party

You will need the correct, legal name and street address of the defendant. You may not realize it, but that is of great importance. You may start the case using the d/b/a name of the company, but if you win the case, you won’t be able to enforce the judgment. Even a single misspelled word can cost you the case. You may be able to give to the judge the correct name and address during the trial, but do not rely on that option.

To find out how to name the defendant (your mover) properly, you can contact the clerk’s office for assistance, or you can contact the Secretary of State’s office. You should be able to find the exact name online by searching in the business records database.

Filing your lawsuit

Next, you can move on and contact the clerk to obtain the court forms.

Some courts will allow you to file the forms by fax or via the Internet.

When filing your statement of claim, follow the instructions meticulously and if you hesitate, you’d better check with the clerk. Write your claim in a clear, non-technical language and be precise in your demand.

Fill in the moving company’s legal name and correct address.

Filing fees are generally kept low. However, if you cannot afford to pay the court fees, you can ask (in writing, by filing the particular court form) the court to waive them. Have in mind that the court may decline your request.

After you file your claim, you will be given a case number. The trial day is usually scheduled around 20-30 days from the date you have filed the claim.

Informing the moving company – “Service of Process”

After you have filed the claim, you will have to give a copy of (“serve”) your statement of claim and supporting documents to the defendant.
Know that unless the defendant is properly served the claim, there won’t be a trial, the case will be dismissed or rescheduled. The defendant must be served within the time frame and the procedure defined by the court so that the court hears the case.

You can serve the defendant either through a certified mail, or through a “process server”.
Anyone besides yourself who is 18 years or older and is not a party to the lawsuit may give a copy of the claim form, issued by the court to the defendant. You may also pay a professional process server to give the papers to the moving company. You may need to file an application for approval of a special process server with the clerk’s office. Also, the service won’t be valid if the defendant has been served before the necessary approval has been granted.

You may also serve the defendant(s) by certified mail, returned receipt requested, by restricted delivery, which means that the USPS will deliver the mail only to the named person and receive a signature.

If you realize that you won’t be able to serve the papers within the time frame, ask the court to extend the time, so that you can serve them properly.
Once the defendant has been served the claim of statement, you’ll need to file a proof of service, usually no later than five days prior to the trial date, to show that the defendant has been informed within the time limit.

Mediation

At the time of filing your claim or on trial day, the court may ask you if you are willing to mediate your dispute. The mediator is not a judge and cannot force you to settle. The mediator will just assist you in negotiating the dispute. If you fail to resolve the dispute, then the court will hear your case as scheduled.

Preparing for trial

You should prepare your statement using only relevant facts. If you’re telling the story to your friends, you may be tempted to build some suspense in your story by describing everything in details, but when you’re describing what has happened in front of a judge, you must be brief and present the facts as accurately as possible.

Next, you should gather all the original documentation to support your claim: contracts and agreements, written estimates, receipts and cancelled checks, records, photographs and any other item(s) directly related to the case. Mind that the court may require a copy (or two) of all the relevant pieces of evidence.

While preparing for the trial, you should determine whether there are any witnesses who have first-hand knowledge and can support your story and testify with no bias or self-interest under oath at the hearing. If a subpoena is needed, you have to provide the witness’s complete name and address to the clerk. Do it in a timely manner. You can also arrange for an expert to attend the hearing as a witness.

Forcing someone to testify on your behalf is not really prudent. This person probably won’t make a good witness. So, ask the witness kindly and be respectful. A subpoena may be needed, so your witness can obtain a permission to be absent from work.

Check with the clerk about two days prior to your trial date to confirm that the court will hear the case as scheduled.

Trial and judgment

Be in court on time or even a bit earlier to avoid case dismissal. Only legal excuses for not attending the trial will be accepted. If the defendant doesn’t appear, the judge may still hear your case and a “default judgment” may be entered against the moving company.

While procedures vary from court to court, usually the court clerk calls all cases on the calendar to determine if all parties are there. Also, the court clerk or the judge will briefly explain the procedure to be used in your trial.

Judges usually ask the plaintiff to tell their side of story first and then the defendant is given the same opportunity.

According to Thomas Simone at Simone and Miller, LLP in DC, you should get to the point – what did the company do wrong that caused you a financial loss. Also, bring proof that the company did something wrong. The burden of proof is on you and your opinion of an item’s value is not relevant. When relating what happened and how you were damaged, do not get emotional. Courts are not set up to allow people to vent. Moreover, the judge does not have time to listen to a long emotional saga and will appreciate your brevity.

Next, the judge will ask the defendant to tell their side. Keep your mouth zipped during the defendant’s statement! Do not raise your voice, do not try to argue or make insulting remarks about the other party, no matter how angry you may become. Do not interrupt the defendant. Make notes and when the other party finish the statement, the judge will give you enough time to reply and object if you feel the other party has stated inaccurate and false facts.

After the judge has heard the facts from both sides, including the witnesses (if any), the judge will then decide who wins the case. Sometimes, the judge may need more time to decide the case and you will be able to quickly find the judgment via the clerk’s office by telling your “case number”.

Beware that in some states, you, the claimant may not be allowed to appeal the small claims court judgment if you lose. In some states, only defendants are allowed to appeal. You should always check the local rules.

Enforcing the judgment

Once you obtain a judgment against the moving company, if they do not voluntarily make payment, you have to enforce that judgment against them. That means using garnishment or bank levy to take company’s assets to satisfy the judgment.

The court won’t collect or pay the judgment award to you. You must undertake the particular legal actions.

If the mover doesn’t want to pay, you may need to put a lien on any land, house or building the mover owns in the county where it is recorded. However, some assets and sources of income are exempt, protected from being taken to pay the judgment.

Most jurisdictions have passed laws that permit you to “docket” a judgment from another state in a local court and it then obtains the effect of a local judgment. So, if you need to collect company’s assets in another jurisdiction (state), you need to undertake further steps. The docketing step is not contested, but it does require some legwork to obtain, complete and file the appropriate forms, and you need to obtain a certified copy of the original judgment.

Filing a lawsuit against movers: Is it worth it?

Before filing a lawsuit, you should consider your options carefully. Perhaps, if your damages are just a few hundred dollars, it may not worth it to file a suit, because, as much as the court fees are kept low, a lawsuit costs money and takes time.

If the moving company has severely damaged your items, it may be better to have a lawyer evaluate your case and advise you, so you can proceed the best possible way. And, most probably, you will need to file the suit in a federal court.

Also, you should take into consideration the fact that even if you win the case, in the end, you may still not get the amount movers owe you.

Going through court procedures may be emotionally draining and the result may not be satisfying. In any case, it would be better to try to resolve the issue out of court. You can also ask the American Moving and Storage Association to mediate your dispute. Almost all (99.99 percent) claims within the AMSA are resolved before arbitration according to John Bisney.

However, if mediation does not work for you, you should consult a lawyer before rushing to file your lawsuit. You can also contact the state bar association to find information regarding the procedures and the trial, or ask for a referral.

Glossary of terms:

Jurisdiction – territory within which a court or government agency may properly exercise its power.
Minimum contacts – a nonresident defendant’s connections with the state where the lawsuit is brought that are sufficient for jurisdiction over that defendant to be proper.
Process server – a person who serves court papers on a party to a lawsuit.
Proof of service – a form that is completed and signed by a person who has served court papers on a party, stating when,where and whom service of process was made.
Subpoena –  a written order to compel an individual to give testimony on a particular subject, often before a court.
Docket – to enter a case into a court calendar.
Garnishment – a garnishment order instructs a third-party who owes money to the defendant to pay some or all of that money to the plaintiff instead of the the defendant. This third party is called a “garnishee.”
Bank levy – enforcement of judgement by resort to the debtor’s checking or saving account at a bank or other financial institution.
Lien –  a legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation.

Sources:

http://www.dccourts.gov
https://www.nycourts.gov
http://www.flcourts.org
http://www.mass.gov
http://www.courts.ca.gov
http://www.texasbar.com
Photos: Scott*, Penn State and Tax Credits @Flickr