Opposing a motion to dismiss

[CMH512]

Illinois

Background: I filed a small claim suit against the owner of a wedding venue for breach of contract. My goal is to have my $4000 deposit returned on the basis they were unable to provide contracted services on the date the contracted stated. The defendant filed a motion to dismiss that the summons was not accompanied by a complaint at all and that there is no connection between defendant and plaintiff.

I am starting to write my opposition to the motion and have questions. Do I need to add the business name as the defendant and if so do I do that prior to filing the opposition or wait to hear the outcome? How do I find out if the complaint was issued with the summons?

 

[Ohiogal]

More info is needed

 

[CMH512]

More info is needed

Happy to provide more details, what should I include?

 

[Zigner]

Illinois

Background: I filed a small claim suit against the owner of a wedding venue for breach of contract. My goal is to have my $4000 deposit returned on the basis they were unable to provide contracted services on the date the contracted stated. The defendant filed a motion to dismiss that the summons was not accompanied by a complaint at all and that there is no connection between defendant and plaintiff.

I am starting to write my opposition to the motion and have questions. Do I need to add the business name as the defendant and if so do I do that prior to filing the opposition or wait to hear the outcome? How do I find out if the complaint was issued with the summons?

Frankly, your question goes beyond the type of information that an online can/should provide. You need to speak to an attorney.

 

[adjusterjack]

My goal is to have my $4000 deposit returned on the basis they were unable to provide contracted services on the date the contracted stated.

Why were they unable to provide services?

What does the contract say about refunds?

How do I find out if the complaint was issued with the summons?

Um, this is the Illinois small claims complaint form.

https://courts.illinois.gov/Forms/approved/small_claims/SMC_SmallClaimsComplaint.pdf

It's what you file with the court when you start a small claims complaint and it gets served on the defendant along with the summons.

Didn't you do that?

Do I need to add the business name as the defendant

Is the business an LLC or corporation?

 

[CMH512]

Why were they unable to provide services? Our contract was for 180 adults and 3 children and they were unable to provide a group of that size due to COVID

What does the contract say about refunds?
Non-refundable under the assumption that the contracted services could be provided


Um, this is the Illinois small claims complaint form.

https://courts.illinois.gov/Forms/approved/small_claims/SMC_SmallClaimsComplaint.pdf

It's what you file with the court when you start a small claims complaint and it gets served on the defendant along with the summons.

Didn't you do that?
That form is for amounts under $3000, since mine is over I filed a complaint form with the summons - http://www.cookcountyclerkofcourt.org/Forms/pdf_files/CCM0008.pdf


Is the business an LLC or corporation? it is a sole proprietorship

 

[Ohiogal]

All of the first post wasn’t there when I asked. Just the state.

 

[Ohiogal]

You might not be in the proper court if you are suing for more than 3 k as that is not small claims

 

[Zigner]

You might not be in the proper court if you are suing for more than 3 k as that is not small claims

$10k in Illinois.

 

[Taxing Matters]

Illinois

Background: I filed a small claim suit against the owner of a wedding venue for breach of contract.

If the business was a corporation, LLC, LP, LLP, or LLLP then very likely your contract was with the business entity and not the owner of the entity. In that case, you sue the entity, not the owner. If you sue the owner when it is the entity that was the contracting party your lawsuit is subject to dismissal.

The defendant filed a motion to dismiss that the summons was not accompanied by a complaint at all and that there is no connection between defendant and plaintiff.

A copy of the complaint must be served with the summons. That failure, too, may lead to dismissal. Simply filing an opposition to the motion to dismiss doesn't fix those errors. You may need to simply start over by redoing your complaint to name the correct party, filing that with the court and serving the new summons and complaint on the business entity. That will likely work so long as you don't have a statute of limitations issue. It might be a good idea to get a consult with an attorney in your state as states differ in their rules a bit.

 

[zddoodah]

I filed a small claim suit against the owner of a wedding venue for breach of contract. . . .

I am starting to write my opposition to the motion and have questions. Do I need to add the business name as the defendant and if so do I do that prior to filing the opposition or wait to hear the outcome?

I'm confused. You wrote that you sued "the owner of the wedding venue," so what does "add the business name as the defendant"? Who is the other party to the contract you allege has been breached? Is that whom you sued? It might be helpful if you used fake names. For example: On February 15, 2020, I signed a contract to have a wedding reception at the Chicago County Reception Hall on August 20, 2020. The other party to the contract was Chicago County Events, LLC, and the person who signed the contract on behalf of that entity was Harold Walowicz." In that example, the appropriate defendant would be Chicago County Events, LLC.

How do I find out if the complaint was issued with the summons?

Huh? The complaint is something you would have filed, and the complaint should have been served with the summons. You did that, right? How did you arrange to have the summons served? Did you give whomever served the summons both the summons and complaint? Here's a helpful resource for small claims court in Illinois. Did you do everything listed here correctly?

 

[quincy]

Before you amend and/or refile your complaint and summons - if you find refiling is necessary to correct a process of service error or to amend your complaint to include the business entity as defendant - how carefully did you read your contract with the wedding venue?

You say that your contract had a clause: “Non-refundable under the assumption that the contracted services could be provided” but the actual wording of that provision is important.

You need to find out (preferably through a personal review of the contract by an attorney in your area) if your contract contains a “force majeure” clause or a break clause or something similar that excuses non-performance (such as would be the case with death, natural disaster, pandemic). You need to find out if there is a price adjustment clause or a liquidated damages clause.

If the contract is worded so that you are entitled to a refund for non-performance by the venue, despite a legitimate Covid-19 defense that could be asserted by the venue, starting all over with the complaint and service might be your only option.