This is the second in a two-part series. Read part one here.
Now that you have submitted the client’s Articles of Organization to the North Carolina Secretary of State’s office for filing, it’s time to prepare a draft operating agreement.
Here’s what NCBarBlog readers found most interesting on our pages this week:
By Isaac Thorp
You served the following request for admission and got this response:
Request: Admit that the second paragraph of the contract attached as Exhibit A states: “… (verbatim quote).”
Answer: The document speaks for itself.
Is this an appropriate objection?
Numerous federal courts have held that asserting that a document “speaks for itself” is not a proper objection to a request to admit that a document contains quoted language. In Miller v. Holzmann, 240 F.R.D. 1, 66 Fed. R. Serv. 3d 977 (D.C. Cir. 2006), plaintiff served a request for admission that a document contained language quoted in the request. The defendant objected on the grounds that the document “speaks for itself.” The court held that the objection was improper:
“It is astonishing that the objection that a document speaks for itself, repeated every day in courtrooms across America, has no support whatsoever in the law of evidence. . . . The tautological ‘objection’ that the finder of fact can read the document for itself to see if the quote is accurate is not a legitimate objection but an evasion of the responsibility to either admit or deny a request for admission, unless a legitimate objection can be made or the responding party explains in detail why it can neither admit nor deny the request.” Id. at 4.
North Carolina statute N.C.G.S. Section 84-5 prohibits corporations and limited liability companies from practicing law in this state. This prohibition occasionally arises in the litigation context when an entity—usually domiciled in another state—serves a pro se answer (or other response) to a complaint filed in a North Carolina court. Given that a plaintiff’s goal usually is to obtain a judgment as quickly and efficiently as possible, what should the plaintiff do in this situation?
In short, the plaintiff should file a motion asking the court (i) to strike the defendant’s responsive pleading, and (ii) for entry of default and default judgment. Seeking all such relief in one motion may seem aggressive in light of the court’s inclination to have disputes decided on the merits. Fortunately, however, for plaintiffs finding themselves in this scenario, there is authority supporting the award of such relief in a single hearing.
Gamblers aren’t the only ones complaining about pay-outs in North Carolina casinos. According to a class/collective action complaint (Clark v. Harrah’s NC Casino, LLC, 1:17-cv-240) filed on August 31, 2017, in the Western District of North Carolina, Harrah’s NC Casino Company, LLC, has failed to pay employees wages and overtime compensation.
Joseph Clark, the named plaintiff, filed on behalf of himself and other similarly situated employees at Harrah’s Cherokee Valley Rivery Casino & Hotel and Harrah’s Cherokee Casino Resort, both of which are operated by Harrah’s NC Casino Co. The complaint includes both Fair Labor Standards Act and North Carolina Wage and Hour Act claims.
Specifically, the complaint states that “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and other similarly situation gaming floor employees all overtime compensation in violation of the FLSA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It also explains, “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and similarly situated gaming floor employees all promised and earned wages on their regular pay day for all hours worked in violation of the NCWHA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It further alleges violations of the FLSA and NCWHA related to requiring the plaintiff and similarly situated employees to perform work without pay prior to the start of their scheduled shifts.
Clark, in the complaint, asserts that the NCWHA class could be comprised of at least 1,000 individuals. This case is in its infancy, but it’s one to keep an eye on.