Stan Martin – June 5, 2014
Lawsuits that proceed under, say, eight or more causes of action typically either (a) recite egregious acts by a group of defendants, or (b) mask a lack of substance in the plaintiff’s case. A recent federal Court of Appeals decision describes the latter, in what might otherwise be a mundane case of terminated contractor battling public authority.
A contractor was engaged to renovate and expand five schools. The public authority terminated the contracts a year or so later and demanded the surety complete the work. The contractor sued the awarding authority and its architect and owner’s rep. The causes of action included – in addition to typical breach of contract claims – defamation, violation of first amendment rights, civil rights violations coupled with reputational harm (known as “stigma-plus” claims), retaliation for exercising first amendment rights, tortious interference, and property seizure (this last claim was never really explained in the decision, and the appellate court held that it had been waived).
The lawsuit was filed in 2003, and in 2012 the federal District Court issued summary judgment against the contractor on most of the causes of action, and that decision was appealed. One can surmise that the nature of the claims asserted and the duration of the case was the result of much energy that generated more heat than light, although an intervening bankruptcy reorganization may have contributed to the delay. The Court of Appeal affirmed all issues. Even a breach of contract claim was dismissed as the contractor had assigned its contract rights to the surety. The case is D&D Associates, Inc. v. Bd. of Educ. Of North Plainfield, 552 Fed. Appx. 110, 2014 U.S. Appl. LEXIS 305 (3rd Cir. 2014).
Pleading causes of action is not like a negotiation, where one expects to concede some of the points in order to reach closure. What many parties fail to grasp is that this “everything but the kitchen sink” theory of pleading invariably sends the wrong message to the judge, and does not actually help the plaintiff’s case.