How can an incorrect birth date be fixed on a Certificate of Naturalization? The first question is when did you naturalize, was it  before  or  after  October 1, 1991? If it was before that date, then you must go back to federal court where you naturalized and file a federal lawsuit. If it was after that date, then you would have to file an application with United States Citizen and Immigration Services (USCIS) to seek relief.

Unfortunately, if your naturalization certificate was issued before October 1, 1991, only the federal court where the certificate was issued has jurisdiction to amend it. This means that you would need to file a lawsuit in federal court against USCIS to fix it! A well drafted petition would include reasons for the error and what steps you have taken to try to fix the problem yourself. This would technically be a Rule 60(b)(6) motion under the Federal Rules of Civil procedure. Some of the issues that will concern the court is whether the application was made timely and whether there are "extraordinary circumstances" that would justify relief. The court most likely will be looking for "clear and convincing" evidence that the birthdate on the certificate is wrong, that there is no fraud, and that there is reliable evidence of the new date.

If your naturalization certificate was issued on or after October 1, 1991, you would file a Form N-565, Application for Replacement Naturalization/ Citizenship Document, with USCIS. Keep in mind that federal regulations prohibit USCIS from issuing a replacement naturalization certificate unless there was an error on the part of USCIS. Otherwise, you would be required to first obtain an order from a state court order or other vital record correcting the birth date. Then, you may apply for a replacement Certificate of Citizenship with the correct date. This situation sometimes arises when a child is born abroad and the date of birth is unknown or is an estimate. The parents may want to come back later to correct the date of birth through this process.

In either case, changing the date of birth on a Certificate of Naturalization can be a complicated process. Also, if there is any indication that this application raises questions of fraud, you should speak with an attorney before proceeding. Keep in mind that a federal judge and USCIS have the ability to revoke naturalization certificates. 

If you are trying to amend a naturalization certificate, especially one issued by a federal court prior to October 1, 1991, please make an appointment today.

What do you do when a city or county offers you money for an easement on your property? How much is an easement worth?

 

A governmental entity, such as a city or county, may have a need for a utility easement across your property. This may be for a new sewer or sewage easement. It could also be for a new roadway, or the expansion of an existing street or road. Sometimes, a utility company may also want to cross your land to provide services for a neighbor and also offers you money. 

 

Typically, in a situation like this, the homeowner or property owner will first receive a letter from the governmental entity or utility company seeking the easement. What are three things that you need to know about that letter?

 

1) Do not ignore the letter or other written communication! Often times, we see homeowners that are too busy and they don’t pay attention to official letters about proposed developments. Remember, this is your property!  If the city or county believes that they need your property, they will likely take it through, what is called, eminent domain proceedings. 

2) Consult with an attorney before signing anything. A package with an offer from the city or county attorney, or perhaps a right of way agent, often contains a description of the property to be taken and an appraisal they have done for the property. This normally is a starting point for the negotiations, not the end of the negotiations. I have had cases where the homeowner has come to me after signing an offer from the city. At that point, it’s likely too late for an attorney to get involved, because the person is likely bound by what they signed.

 

3) Get an accurate understanding about what the easement may be worth. The valuation of an easement depends on several factors. For example, how much land is being taken for a permanent easement? What restrictions will be placed on your use of the area? Is there a temporary construction easement area involved? Does the governmental entity need to cross other parts of your property to get to the easement? Will there be other damages to your property (called severance damages), such as the removal of roadways, parking, pathways, lighting, trees, shrubs, mailboxes, walls, or gates? Will the easement affect the overall value of your property, or perhaps even make your property hard to sell later? Does the easement affect your property so much that it essentially is a complete taking? 

Getting a complete and accurate understanding of the offer from an experienced attorney is important. These types of consultations are free at A.G. Linett & Associates. Also, if we decide to accept your case, it is on a contingency fee basis, so there is no up-front charge. Our goal is to make sure you get the best value for your property and to protect your rights. If you have any further questions, please make an appointment today by calling 336-316-1190.

When a trusted teacher or religious leader abuses or mistreats a child, the impact on the child and child’s family is no doubt devastating. While the physical impacts of the abuse, whether it is improper discipline, neglect, or sexual abuse may heal, the long-term emotional aspects may follow the child for the rest of his or her life.

 

The question often presented in these types of cases is what type of liability, if any, should the church, religious institution, or school have for the bad acts of their agent or volunteer? This is a fact specific question and will depend on what happened in each case. However, the most important question is what prior notice did the institution have of their employee’s or volunteer’s potential threat to the children in his or her care.

The applicable legal term is “foreseeability.” One dictionary defines “foreseeable” as “being such as may be reasonably anticipated.” If the actions of the agent or volunteer are “foreseeable,” then the institution may be held liable under the theories of negligent retention or negligent supervision. One North Carolina case that discusses this is Smith v. Privette, 128 N.C. App. 490, 494-95 (1998), which states that a negligent supervision claim requires “that the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee’s incompetency.”

 

So, in these types of cases, a school or religious institution is not automatically responsible when one of their agents mistreats a child. The teach or religious leader can, of course, be prosecuted, dismissed, and sued. But to make a claim against the institution, more is needed. The institution had to know, or have a reason to know, that the person was a threat.

 

In some cases, prior complaints against that individual by other children or parents may serve as that notice. In other cases, the prior complaints may have been made by co-workers, co-employees, or volunteers. Sometimes the parents become aware of complaints from other parents or teachers. Other times, its necessary to hire a private investigator to research the background of the individual and determine if there are other complaints.

 

In any case, lawsuits against institutions such as churches, religious institutions, or schools, are not straightforward and will require substantial research and likely litigation by an experienced plaintiff’s lawyer. If your child or loved one was abused or maltreated by a teacher, volunteer, or religious leader in North Carolina, make an appointment to speak with us today. We have about two decades of experience in handling such cases and can evaluate whether or not you should make a claim.  

It is a challenge to fix a wrong date of birth on a US Passport. However, there are several options that may be available to you.

First, if the error was due to a typographical error/clerical error by USCIS (not by you or your family), then your Certificate of Naturalization or Certificate of Citizenship may be replaced by filing a Form N-565 (Application for Replacement Naturalization/Citizenship Document) with the necessary proof. You may then use the replacement document to obtain a US passport with the correct date of birth.

However, in most cases, the problem with the birthdate is usually due to an error by the parent or other preparer of the child’s initial application. In these cases, the remedy depends on how the child later obtained the US citizenship.

For example, sometimes children born abroad obtain US citizenship automatically. These children may have obtained a US Passport as proof of their automatically acquired US citizenship but never applied or submitted an N-600 Application for Certificate of Citizenship. In these situations, the child may be able to file for a Certificate of Citizenship (for the very first time), with proof of the correct birthdate, and then apply for a new US Passport once the document is obtained.

Other situations arise where a foreign-born child obtains a Certificate of Citizenship either before or after applying for a U.S. passport. Assuming that the original Certificate of Citizenship has an incorrect birth date, the child may be able to apply for a replacement certificate. To do so, he or she must submit a Form N-565 after obtaining a court order or other state-issued document with the correct date of birth. Having obtained a new Certificate of Citizenship, he or she can apply for the new US Passport.

Finally, there are situations where a child, after reaching the age of majority, applies to naturalize by filing a Certificate of Naturalization (N-400). Unfortunately, USCIS cannot make any changes to a Certificate of Naturalization where a person themselves submitted incorrect information on an application, and then later swore to the facts of the application by signing.

So, while there are situations where the date of birth on a US Passport or in the records of other government agencies such as the social security office can be corrected, it depends on how the citizenship was obtained. Of course, your situation may be different and we encourage you to make an appointment today with us or another knowledgeable immigration lawyer.

If you or a loved one has become sick or has passed away due to COVID-19 exposure in the workplace, our hearts go out to you. While we try to reopen the economy and return to normal business operations, there may be some essential workers or emergency response workers who are affected by the ongoing pandemic. What rights do you have under North Carolina law?

In early May 2020, North Carolina passed legislation that granted immunity from civil liability for essential businesses or emergency response entities during the pandemic. The new section is found at North Carolina General Statutes, Section 66-460, is entitled “Essential businesses; emergency response entities; liability limitation.” This statute means that a customer or employee cannot sue a business for any injuries or deaths that they believe were caused as a result of being a customer or being an employee of one of these businesses. This immunity will last as long as the emergency declaration is in effect in North Carolina.

However, there are two exceptions. The first, and most likely most important exception, is found at Section 66-460(b). It provides that an essential business or emergency response entity does not receive immunity for workers’ compensation claims. Specifically, it states:

“This section does not preclude an employee of an essential business or emergency response entity from seeking an appropriate remedy under Chapter 97 of the General Statues for any injuries or death alleged to have been caused as a result of the employee contracting COVID-19 while employed by the essential business or emergency response entity.”

Section 97 of the General Statutes deals with workers’ compensation claims. 

The second exception is if a business engaged in “gross negligence, reckless misconduct, or intentional infliction of harm,” which is more unlikely and a difficult legal standard to meet.

This does not mean, of course, that any injury or death resulting from COVID-19 in the workplace will automatically be an accepted workers’ compensation claim. An employee would still have to prove that he or she had an occupational disease and that this was caused by the employment.  While it may be straightforward enough to document COVID-19 through medical testing, there will likely be significant disagreement about whether it was caused by work. 

Generally speaking, to prove an occupational disease, an employee must show that: (1) the disease must be characteristic of persons engaged in the particular trade or occupation in which the employee is engaged; (2) it must not be an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be a causal connection between the disease and the employee’s job. 

This means that a COVID-19 occupational disease claim would likely be stronger for those essential workers in industries where employment directly exposed the worker to a greater risk of contracting the disease than the general public, such as health care workers or other emergency personnel. While it is not impossible to make a claim for a grocery store employee who becomes disabled or passes away because of COVID-19, it will be a harder argument due to their type of employment.

We anticipate that employers and their insurance companies will take the position that even if there was an increased risk for exposure, that the employee cannot prove that it was caused by their place of work. They may also argue that COVID-19 is not a disease that is characteristic with a particular trade or occupation, but that it is an ordinary disease of life that the general public is equally exposed to outside of employment.

In any event, North Carolina has a two-year statute of limitation for occupational disease claims, which begins to run after a person is diagnosed by a physician. If you or a loved one has become sick or passes away due to COVID-19 contracted from work, please seek legal advice as these will likely be complicated workers’ compensation claims.

Reported Decision

Sanchez v. Truse Trucking, Inc., 74 F. Supp. 3d 716 (M.D.N.C. 2014)

Date: 7/31/2014

Attorney(s):

• Adam G. Linett

Summary

We represented thirteen (13) current and former employees of a North Carolina freight shipping and trucking company who alleged that they were not paid minimum wage and overtime under the Fair Labor Standards Act (FLSA). The employer moved to dismiss the claim for failure to state a claim. However, District Court Judge Beaty denied the motion and allowed the Plaintiffs’ claims to go forward holding that the defendant’s motion was premature and the complaint was sufficiently detailed to state a claim.

Disclaimer: The case(s) referenced herein are sample cases handled by the law firm. The results of each case depend on a variety of factors unique to each case and not all of the firm's results are provided. Prior results do not guarantee similar outcomes.

Reported Decision

Mosqueda v. Mosqueda, 721 S.E.2d 755, 757 (N.C. Ct. App. 2012) appeal dismissed, review denied, 724 S.E.2d 919 (N.C. 2012)

Date: 1/17/2012

Attorney(s):

• Adam G. Linett
• J. Rodrigo Pocasangre

Summary

Four passengers sued the driver of automobile who overturned her vehicle in Alabama while all were in route to North Carolina. The trial court dismissed three of the plaintiffs' claims finding they were barred by the Alabama guest statute. Plaintiffs appealed arguing that the Alabama guest statute was contrary to North Carolina public policy and that it violated the Equal Protection Clause. However, the Court of Appeals upheld the trial court's decision and the North Carolina Supreme Court denied review. The remaining passenger settled after the appeal was concluded as his claim was found exempted from the guest statute as the husband and co-owner of the vehicle.

Disclaimer: The case(s) referenced herein are sample cases handled by the law firm. The results of each case depend on a variety of factors unique to each case and not all of the firm's results are provided. Prior results do not guarantee similar outcomes.

Sample Decision

ABC Roofing, Inc. v. Sawyer, 750 S.E.2d 918 (N.C. Ct. App. 2013) (unpublished disposition)

Date: 9/3/2013

Attorney(s): 

• Adam G. Linett
• J. Rodrigo Pocasangre 

Summary

We represented a roofing contractor, ABC Roofing, Inc., who was not paid by a homeowner after having installed new shingles on the Defendant's residence. After a bench trial, the District Court Judge ruled in our favor and ordered the Defendant to pay the amount owed. The Defendant appealed. In an unpublished decision, the Court of Appeals upheld the trial court's judgment.

Disclaimer: The case(s) referenced herein are sample cases handled by the law firm. The results of each case depend on a variety of factors unique to each case and not all of the firm's results are provided. Prior results do not guarantee similar outcomes.

No. You must act quickly.  North Carolina General Statutes Section 97-22 requires an injured employee to give written notice to his employer of an injury or accident as soon as practical or within 30 days of the date of the injury or occupational disease.  An injured worker should fill out North Carolina Industrial Commission Form 18, entitled Notice of Accident to Employer and Claim of Employee, Representative, or Dependent and submit it to the Industrial Commission and their employer.

What happens if a person waits?  There is an exception to the 30-day rule if an employee can show a “reasonable excuse” for the failure to provide written notice and that the employer has not been “prejudiced.” But many times the insurance carrier will deny the claim because of the late notice and the case ends up in litigation.  

Whether or not an employee has a “reasonable excuse” depends on the circumstances.  For example, in Peagler v. Tyson Foods, Inc., the Court of Appeals noted that “A reasonable excuse may be established where the employee does not initially know of the nature or probable compensable character of his injury.” The Court also noted that the plaintiff did not “initially understand the nature or character of his injury .… [and] that plaintiff had a third grade education and was illiterate.”

In any event, it is best not to wait and create unnecessary difficulties with your workers’ compensation case.  Contact us today if you have any questions.

The answer to this question is maybe. We have all heard of cases being thrown out because of an error or mistake in the ticket or pleading. If the officer made a small mistake in the spelling of your name (like Shawn vs. Sean) or if he wrote that your vehicle was a 2007 model when it is a 2008 model, your case will probably not be dismissed on those grounds. Yet, there are other mistakes that may seem trivial, but could result in dismissal.

A critical mistake by an officer or a magistrate that may result in dismissal is if the pleading fails to include each essential element of the crime charged. For example, an essential element of the crime of larceny is that the stolen property must belong to someone else. But that “someone else” must be able to legally own the property in the first place. So, believe it or not, North Carolina courts have consistently held that failure to include at least the “inc.” after a corporation’s name results in a fatal pleading and dismissed the charge if the objection is raised at the appropriate time. In State v. Thompson, for instance, the warrant was fatally defective because it alleged that “Belk’s Department Store” owned the property, but failed to allege that Belk’s is a corporation or a legal entity capable of owning property.

A personal favorite of mine is the case of a Sean Kelly. Mr. Kelly, who was undoubtedly speeding 95 mph in a 60 mph zone on a mountain road near Asheville, was charged by a state trooper with reckless driving. In the citation, the trooper alleged that on 9 January 2010, Mr. Kelly “unlawfully and willfully carelessly and heedlessly in willful and wanton disregard of the rights and safety of others.” You may have noticed that as colorful as the trooper was in describing Mr. Kelly’s conduct, he forgot to include a pretty important detail: that Mr. Kelly was driving a car! The Court of Appeals agreed with Mr. Kelly and vacated his conviction because without that essential element, the trial court had no jurisdiction to enter judgment for that charge.

The purpose of a pleading is to inform a defendant of what precisely he’s being charged with. This is not a nicety extended to you by a friendly police officer; it is a constitutional requirement. Cases like the ones above show why it’s always a good idea to consult with an attorney.