New Hampshire - Florida small claims...

[Garyon]

Small Claims Options ... ??

What is the name of your state (only U.S. law)? New Hampshire

I will try to keep this short ...

I did some artwork for a poker chip manufacturer and online reseller in Florida with the understanding (via emails and various forum postings) that I would receive a royalty based on sales. After 18 months and several requests (also via email) I was met with diversion and deflection but never any kind of payment. ie. ... "I'll get on it, but in the meantime do you want to become the exclusive wholesaler for our ... etc."

I finally contacted an attorney who issued a cease and desist and a demand for an accounting of what was owed and a remittence of payment. The manufacturer calculated that he owed me $700 for sales. I believe that this is a low-ball number but there is nothing I can do to prove otherwise unless I take him to court (possible copyright infringement issues), which would cost me more than I would probably stand to win back even if successful. The manufacturer also wants to liquidate any remaining inventory he holds with my artwork on it.

My legal bill is now in excess of $1000, incurred attempting to get him to finally address this bill. I have told the manufacturer that I would allow him to sell his remaining inventory if he pays $1200: the $700 that he admits that he owes me plus anther $500 ... less than half of the legal expense in getting him to address the issue of payment. He has refused, insisting that he will pay only the $700 and only if I allow him to liquidate his inventory.

I am, at this point, looking at attempting to resolve this issue in small claims court. I would probably sue for something closer to $2000, including the FULL cost of attorneys fees, plus prohibit him from liquidating his remaining inventory.

The questions are ... In New Hampshire ...

1. Can I include the fees incured by the attorney I hired to facilitate collection in the complaint?

2. If I file small my complaint in New Hampshire would a representative from the company have to come here to appear in court?

3. If the manufacturer fails to appear or loses the case, what, if anything can I do to collect?

4. Would there be any benefit to filing this complaint in Florida? I know I would have to travel but collection may be easier.

5. If I filed in Florida and traveled there could I include my travel expenses in the suit?



Any thoughts or advice would be most welcome.

Sincerely,
Gary

 

[tranquility]

I am, at this point, looking at attempting to resolve this issue in small claims court. I would probably sue for something closer to $2000, including the FULL cost of attorneys fees, plus prohibit him from liquidating his remaining inventory.

I assume you're going to sue for breach of contract. Since you have a limited right of discovery in small claims court, how are you going to prove you are owed anything? (If you can prove up a contract from your email and forum postings.) Unless attorney fees are a part of the contract (Which, I bet they're not in your potential contract.), you will not be compensated for them. Finally, most small claims courts don't do injunctions in the first place and, absent a federal copyright suit, I don't see how your damages involve prohibiting him from selling his inventory helps you gain the benefit of the bargain in the second. So, you will lose on proving benefit of the bargain damages, you cannot get attorney fees and you won't get the injunction for at least two reasons.

That's not even talking about jurisdiction issues or if you can prove up a contract.

1. No.
2. Only to file a suit for malicious prosecution if you don't have a good reason for jurisdiction.
3. You would have to domesticate the judgment to where they have property you can seize. If you can and if you win.
4. That seems the place where you might get actual jurisdiction over the company.
5. No.

My thought is that you should just let it go or go to the appropriate court. This is not going to successfully happen in small claims.

 

[Garyon]

I assume you're going to sue for breach of contract. Since you have a limited right of discovery in small claims court, how are you going to prove you are owed anything? (If you can prove up a contract from your email and forum postings.) Unless attorney fees are a part of the contract (Which, I bet they're not in your potential contract.), you will not be compensated for them. Finally, most small claims courts don't do injunctions in the first place and, absent a federal copyright suit, I don't see how your damages involve prohibiting him from selling his inventory helps you gain the benefit of the bargain in the second. So, you will lose on proving benefit of the bargain damages, you cannot get attorney fees and you won't get the injunction for at least two reasons.

That's not even talking about jurisdiction issues or if you can prove up a contract.

1. No.
2. Only to file a suit for malicious prosecution if you don't have a good reason for jurisdiction.
3. You would have to domesticate the judgment to where they have property you can seize. If you can and if you win.
4. That seems the place where you might get actual jurisdiction over the company.
5. No.

My thought is that you should just let it go or go to the appropriate court. This is not going to successfully happen in small claims.

NO ... I am not going to let it go. That's how this guy works ... "If I screw you for small enough amounts of $$ it's not worth your effort to go after me. So I get off scott-free." ... He does this to enough people and he's making bank off the labor of others. It's kinda like the concept of stealing the fractions of pennies that circulate through our banking system (Superman III). No one is going to notice 1/2 a cent missing, but if you steal enough of them you will be rich!! It's wrong ... period (and we aren't talking about pennies). What I have learned so far in this legal journey, however, is that the "Justice" system is grossly mislabeled.

But I digress, to address your comments ... I am suing him for MONEY owed (not simply breach of contract) and the money I have had to spend in order to force him to address the issue of payment (ie. Legal fees). He has already admitted (in writting and a variety of other legal correspondence)that he DOES owe me money and *he* has identified $700 as the amount he owes (not me). So proving that he has breached an agreement should be already resolved via his own admission. While, personally, I think he owes considerably more, there is no way for me prove otherwise, so I will stick with the $700 that he has identified. Additionaly, because he has spent the past 18 months ignoring or deflecting my requests for payment, I have had to incur over $1000 in legal expenses in sending him a cease and desist demand notice, and having an attorney communicate with him whilst he drags his feet and wastes my lawyers time and subsequently more of my money. This could and should have been resolved much more quickly.

The bottom line on prohibiting him from selling his inventory is that I am the undisputed owner of the copyright on the design being sold (also in writing). Being that he IS in breach of contract (if nothing else, implied by his admission of debt, supported by numerous communications), I have issued a cease and desist that demands that he stop selling, manufaturing, distributing, etc. any products with my copyrighted design on it. I am fairly certain that that is within my legal right.


2. What constitutes a "good reason" for jurisdiction? As these are internet transactions how do you determine "jurisdiction"?
3. I am aware of this possibility and that there may be little I can do about it across the state lines.


My lawyer suggests that I have a very strong case in small claims (although he agrees collection might be impossible), so I am curious how you could have such diametrically opposing opinions?


Is there anyone else with small claims experience that could weigh in?


I DO appreciate the input thus far. It is always helpful to get as much information as possible.

Sincerely,
Gary

P.S. - My wife says this sounds confrontational. In no way is it intended to be!! I am genuinely grateful and appreciative for the input and opinions.