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The process of suing a business varies based on the type of business (i.e., a partnership or a corporation), the laws of the jurisdiction, the specific facts of the case, and the applicable legal theories.
Key Takeaways:
To successfully sue a business, you must first determine what your legal claim(s) are, gather evidence in support of your claim against the business, choose the correct court to hear your claim, send the business a formal demand letter, and then file a complaint with the court.
The business will then have the opportunity to respond to the demand letter and, if not, to the complaint. They will need to file an Answer in response to your complaint or a Motion (either a Motion to Dismiss, Motion for Summary Judgment, Motion to Strike, or Motion for a More Definite Statement).
Once a business submits an Answer or Motion in response to the complaint, the case may proceed to discovery, depositions, and potentially to trial if no settlement is reached before the trial date.
How-To File Suit Against a Business:
- Determine What Claims You Have Against the Business: There are several claims a person may bring against a business. The type of claims may vary based on state law or court-created law, which is established through a court's decision in a case of precedent-setting significance. Some common reasons to sue a business include:
- The business terminated a person's employment in an illegal manner.
- A person was harassed while working for the business or when visiting the business as a patron (e.g., a retail store worker harassed them).
- A business fails to pay an employee their salary, or the business does not return money that is owed (e.g., a security deposit).
- The business misleads someone about a product or the business's financial situation (e.g., an investor sues when they are led to believe that a company would be profitable and they were not, which causes the person a loss of money).
- The business violated a person's intellectual property rights or plagiarized a person's work (i.e., the business presents another person's work as the work of the business).
- The business breached a contract or warranty.
- The business injured a person in some way (e.g., they failed to maintain safe premises, an employee of the business injured the person, or a product made by the business harmed someone).
Generally, the business either knew or should have known that the business (or its employees) should not have done something, was exposing people to dangerous products, or that the business was not doing something that should have been done.
- Determine What Legal Theory On Which You Will Base Your Lawsuit: From the above information, you will then determine what legal theories support the right to sue a business based on the specific facts of your case. Common legal theories under which a business can be sued are as follows:
- Breach of contract
- Personal injury
- Discrimination or harassment
- Premises liability
- Professional Malpractice
- Product liability
- Nuisance
- False advertising
- Defamation
- Tax fraud
- Other violations of federal laws
Generally, the elements to prove each of the above legal theories, as well as defenses to those theories, will vary by state and/or jurisdiction. See local legal counsel to better understand each of the above legal theories/strategies.
- Determine What Court Has The Ability To Make A Decision On Your Claim:
- Generally, persons can file a lawsuit in State court (in the county where you reside or where the business is located) or Federal court in limited circumstances (the business is a company from another country or operates in a completely different state where the person suing resides, or the matter deals with federal law or a state claim that has the same facts related to a federal claim).
- For example, a federal case involving diversity of citizenship (citizens from completely different states) also involves a related state law claim. The federal court can hear both under supplemental jurisdiction.
- Federal courts have limited jurisdiction, and you must "have the right key" (federal law claim or diversity of citizenship) to "unlock the federal court doors" for a Federal court to hear your case.
- There are various pros and cons when deciding whether to bring your claim in State or Federal court. Seek local legal counsel to determine the best course of action specific to your case.
- File the Complaint: You must first file what is known as a complaint against the business in a court with the ability to hear and decide your lawsuit (whether State or Federal). This is what is called jurisdiction.
- Pay the Filing Fee. You will have to pay a filing fee to submit a complaint. Each jurisdiction will have its own filing fee.
- Serve the Business. You must serve the business with the complaint and notice of the lawsuit within a certain period after you file the complaint with the court (this is typically within 90 days of filing the complaint, but varies depending on the jurisdiction, specific circumstances, and legal claims). A person filing the lawsuit cannot serve the legal papers to the business themselves. A process server or an adult not named in the suit must be hired to do it on the person's behalf.
- Be aware of the Statute of Limitations for Your Lawsuit. Certain claims against a business must be brought before a court within a certain time period, or they cannot be brought at all (they will be dismissed based on a statute of limitations being reached).
For example, in State A, the statute of limitations for medical malpractice claims is two years from the date of the injury, or when the injury should have been discovered by the person suing. This means an injured patient or their family in State A has only two years to file a lawsuit against a healthcare provider. In some states, there are some exceptions to this rule (e.g., if the injured patient is a child, then the length of time to bring a suit may be longer than two years).
How Long Does a Lawsuit Take?
It depends! Court schedules are usually very busy, and there will be, more likely than not, cases on the court's schedule ahead of yours. In addition, each side may file many motions, subpoenas, and discovery requests and take several depositions as the case advances toward trial.
For example, the defendant may file a motion to dismiss or motion for summary judgment, arguing your case is not legally sound or that you do not have enough evidence to go to trial, or based on the evidence, no jury would reach a different conclusions about the case.
Courts also sometimes require several court conferences before your case gets to be heard in the courtroom (trial scheduling conferences, pretrial conferences, settlement conferences, and status conferences, to name a few). There will likely be several depositions taken from individuals with knowledge of the facts of the case.
During depositions, lawyers for both parties interview witnesses. You, as the filer of the complaint, will probably have your deposition taken by the business's lawyer before trial.
A definite time frame cannot be estimated as it could take weeks, months, or years before a case is resolved (is settled). It is essential to note that settlement offers can be accepted before the trial's commencement, and any settlement negotiations made during the trial cannot be used as evidence.
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