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191 Cards in this Set
- Front
- Back
Subject Matter Jurisdiction
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power of court to hear the claim
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Is SMJ waiveable?
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No
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When can SMJ be raised?
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by any party at any time (or by the court) including appeal
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What is the difference between the jurisdiction of Fed vs NC courts?
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Federal Courts are courts of limited jurisdiction.
NC Courts are courts of general jurisdiction. |
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Cases that Federal CTs have exclusive jurisdiction? (7)
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- federal anti-trust
- bankruptcy - patent/copyright - postal - foreign diplomats - cases where US is a party - admiralty |
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Where are workmans compensation claims heard?
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Industrial Commission
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When is there an appeal as of right to the NC SCT? (4)
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- dissent in CT of appeals
- substantial constitutional issue (state or fed) - rate making in utilities - death penalty |
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NC CT of App hears cases relating to (5)
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- superior and district CT rulings
- insurance rate - administrative agencies - workers compensation - NC state bar |
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What are the 2 types of SMJ in NC trial courts?
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- exclusive
- proper |
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Exclusive Jurisdiction
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matters over which the trial court has sole jurisdiction
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Proper Jurisdiction
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- preferred court to hear the matter
- if no party objects, the court may hear the matter. |
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Exclusive Jurisdiction of Superior CT
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probate matters
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Proper Jurisdiction of Superior CT (3)
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- civil actions > $10K
- injunctive relief / declaratory judgment action to establish a validity of statute or ordinance - appt guardians and administrator of trust or ward |
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Exclusive Jurisdiction of District CT
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juvenile matters
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Proper Jurisdiction of District CT (3)
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- civil actions < $10K
- family law matters - traffic matters |
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What is a Magistrate Court?
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a subdivision of district court which can handle civil actions < $5K
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Two primary bases for Fed CT SMJ
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- diversity of citizenship
- federal question |
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Rules for Diversity of Citizenship (2)
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- controversy > $75K
- complete diversity (across the v) |
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Rule for aggregation of claims to meet the amount in controversy
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unless there is an undivided common interest among P's against the same D's no aggregation
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Rules for a single P adding claims
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single P can all all his claims against the same D, but multiple P's cannot
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P1 and P2 sue D claiming co-ownership of real estate worth $100K, is the claim $100K or $50K each.
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100K
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How can you determine the value of injunctive relief? (3)
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- value of object of litigation
- amt to comply - amt of damage incurred if not granted |
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When is citizenship determined?
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time of filing
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Individuals are citizens of the state which (2)
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- they are residents
- have an intent to remain their indefinately |
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How is domicile determined?
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subjectively
(insurance, real estate, car registration) |
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Corporations are citizens of (2)
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- state of incorporation
- state of principal place of business |
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Tests for principal place of business? (3)
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- nerve center - HQ (most common)
- muscle - employees - combination |
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Unincorporated associations/partnerships are citizens of
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every state where members are citizens
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What is Federal Q Jurisdiction?
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P's claim must arise from a federal law, the US Constitution, or a treaty
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What is supplemental jurisdiction, in general
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where a claim may be part of the same case or controversy and centers around a common nucleus of operative facts and the claim is pleaded it may be attached to the Fed claim
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When can a court decide (discretion) to decline exercise of supplemental jurisdiction (4)
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- state claim involves novel or complex issue of state law
- state claim substantially predominates over the claim which is before the court - district court has dismissed all claims over which it had original jurisdiction - any other exception circumstances |
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Pendant Juris
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covers claims made by P which do not otherwise meet SMJ of the fed ct
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Ancillary Juris
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covers claims made by D, generally involving diversity but not limited to that
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Pendant Party Juris (2)
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occurs when the P adds a claim in a federal question case over
- an additional D for whom there is no federal question or diversity - that claim arises out the same transaction or occurrence of the original claim |
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Removal (28 USC 1441)
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the procedure used when a D removes a case filed in state court to the federal court
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How long does a party have to exercise removal power?
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30 days
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Special issue for removal of SMJ cases (2)
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- 1 year limit
- all D's must agree |
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Erie Doctrine (general)
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in a federal case based on diversity jurisdiction the fed court will apply state substantive law
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Examples of state law applied under Erie Doctrine? (4)
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- substantive law areas (tort, contract)
- SoL - burden of proof - choice of law rules |
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Personal Jurisdiction (GR)
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the power of the court to adjudicate the rights of and liabilities of the D
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May PJ be waived?
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Yes
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Other than minimum contacts, how may PJ be set (4)
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- waiver (general appearance)
- consent or contract - physical presence (voluntary) - corporations doing business in the state |
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Minimum Contacts (2)
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Due Process Analysis, either
- state authorizes PJ over out of state D (statute) - traditional notion of fair play and substantial justice |
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Seven Events Giving Rise to NC Long-Arm Statute
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- acts or omissions in NC causing injury in NC
- acts or omissions outside NC causing injury in NC - acts arising out of contracts to perform services in NC - acts arising ouf ot contracts to ship goods to or from NC - acts arising from contracts of insurance where the P was a resident of NC - acts arising out of contracts where event causing loss occurred in NC - if a NC statute provides additional specific grounds for PJ |
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In rem juris
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in rem is juris over a thing (usually title to property)
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Quasi in rem juris
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effective way to get effective partial jurisdiction of a person based on having property in the state
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Purpose of Service of Process (2)
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- obtains PJ
- gives not to D |
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Who may serve (in state)
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sheriff of city where service is to be made or any other authorized person
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Who may serve (out of state)
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person 21 years or older who is not a party or anyone duly authorized to serve
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How many days do you have to serve after issuance of summons?
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60 days
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How long is the period for renewal of service?
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90 days
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Renewal Methods (2)
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- endorsement
- alias or pluries summons |
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Endorsement
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P may secure an endorsement of the ORIGINAL summons for an extension of time (not common)
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Alias or pluries summons
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clerk issues summons to extend the action to 90 days and is renewable
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Five methods of effectuating personal service on a natural person
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- in hand (personal delivery)
- leaving a copy at the D's dwelling house with a person of suitable age and discretion residing there - by leaving a copy of summons and complaint with an authorized agent - by mail, registered or certified, return receipt addressed to the party and delivered to the addressee - by depositing with a designated delivery service (UPS) |
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Five methods of effectuating service of process on a corporation
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- delivering a copy to officer, director, or managing agent
- leaving a copy in the office of the above persons with a person who is apparently in charge of the office - by authorized agent - mail mail (cert, ret. receipt) - by depositing in a designated delivery service (UPS) |
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Who to serve for minors? (2)
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- minor
- and parent or guardian with custody |
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Service on mentally incompetent (2)
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- mental incompetent
- and guardian |
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Service on partnerships (3)
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- general partner
- attorney - authorized agent |
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How to you insure a particular member of a partnership can be held liable?
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serve him directly
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Service on nonresident motorists
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Commissioner of Motor Vehicles
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Service to a person in a foreign country
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internationally agreed upon standard
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Result of defect of service through publication (2)
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any defect in service is jurisdictional, rendering any judgment obtained without compliance with the rule on service in this manner is void
- must have made good faith attempt to find person |
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Venue
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proper situs or location of trial
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Is venue waivable?
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if not raised in first response, waived
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Is denial of a motion to remove or dismiss for improper venue immediately appealable?
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Yes
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Is denial of a motion for DISCRETIONARY change is venue immediately appealable?
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No.
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What usually determines venue?
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residence of parties
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3 steps to determining venue
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- county in which any of P's or any of D's reside at the time of commencement OR
- the county where ANY of the P's reside OR - if none of the parties reside in the state, then the county designated in the summons and complaint |
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Venue for Domestic Corporations
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location of registered or principal office or where it maintains its place of business
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Venue for "Foreign" Corporations (3)
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- in county where claim arose
- county whose corporation usually did business or hold property - where a P resides |
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Real Property Venue (3)
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where property is situated if
- action is for recovery of real property - action is to determine rights - injury to real property |
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Objections to Venue (2)
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- of right
- discretionary |
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Effect of Objection to Venue as of Right
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court is without authority to proceed further with any essential matters until venue is resolved (immediate appeal)
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Effect of a Discretionary Objection to Venue
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court may move to another venue where there is grounds to believe a fair and impartial trial cannot be conducted, in the case of civil it may be moved for convenience of witnesses, and is not immediately appealable
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NC Venue
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any county where D or P reside
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Corporation Venue in NC (3)
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- registered office
- principal office - maintains business |
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Venue when D is foreign corporation and P corporation is a NC resident (4)
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- cause of action arose
- D usually did business - D has property - P resides |
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Veneure when D is a foreign corporation and P corporation is a non-resident of NC (5)
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- cause of action
- D usually did business - D has property - P designates in complaint - P regularly engages in business |
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Federal Venue
If all D's reside in one state, venue lies |
in any district in which a D resides or in any district in which substantial events giving rise to the cause of action took place
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Default Federal Venue
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any district where D can be found (Fed Q) or is subject to PJ (diversity)
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Venue for Non-US Citizens
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any district
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Types of Pleadings (7)
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- complaint
- answer (counterclaim) - reply to counterclaim - answer to counterclaim - 3P complaint - 3P answer - reply alleging last clear chance |
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NC Notice Pleading
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A short and plain statement of the claim SUFFICIENTLY PARTICULAR to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences
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How long to file an Answer or preanswer motion under Rule 12 (NC)
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30 days
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If party filed a Rule 12 preanswer motion it will have how many days after the court provides notice that it has rule on the motion or postponed its disposition, to file an answer
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20 days
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An Answer Includes (4)
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- responses to allegations
- affirmative defenses - other defenses - counterclaims |
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Possible response to a Complaint (4)
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- admit
- deny - no knowledge (denial) - admit in part and deny in part |
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How is failure to respond to an allegation in the complaint treated?
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as an admission
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Weekends and 7 day rule
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- response due on weekend or holiday is due next business day
- it time to respond is less than one week, you do NOT count the weekend |
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What is verification
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sworn statement to complaint
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What actions require verification (2)
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- divorce / child support
- shareholder derivative actions |
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Where do you assert affirmative defenses?
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in the answer
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Affirmative Defenses (20)
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- contributory negl
- accord and satisfaction - arbitration and award - assumption of the risk - discharge in bankruptcy - duress - estoppel - failure of consideration - fraud - illegality - injury by fellow servant - laches - license - payment - release - res judicata - SoF - SoL Truth (defamation cases) - usury - waiver |
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Rule 11 Signing Requirements
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every pleading, motion, or paper of a party represented by an atty must signed by atty of record
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Signing of a Pleading by Atty Certifies (4)
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- read pleading/motion/paper
- to his best interest and belief after reasonable inquiry the pleading or motion will be grounded in fact - warranted by existing law or good faith argument for the extension, modification, or reversal of existing law - is not interposed for improper purpose |
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Failure to Sign Pleading Results in
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stricken, unless signed promptly after omission is brought to the attention of the drafter
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Result of False Certification under Rule 11 (2)
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- sanctions (including fees)
- could strike claim, D, or answer |
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Must a demand for relief be peaded
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Yes
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What should a court do if P requests the incorrect relief?
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still obligated to grant the required relief
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What must be Plead with Particularity (6)
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- fraud, duress, mistake
- special damages - punitive damages - medical malpractice - foreign law - capacity to sue |
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NC Limit on Punitive Damages
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3X compensatory or $250K, whichever is higher
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Medical Malpractice Pleading (3)
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- medical care did not comply with the applicable standard of care
OR - specific assertion that the party will seek to have an expert qualified by a superior court judge OR - the case is based on res ipsa loquitor |
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Motion for More Definite Statement
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used when the pleading to which you must give a response is so vague or ambiguous that you cannot frame a response
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Motion to Strike (2)
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- served before first reponse (or 30 days)
- used to strike redundant, irrelevant, immaterial, or scandalous statements |
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Motion for Judgment on the Pleadings
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after the pleadings are closed, this motion can be made if there is no fact in dispute on which to try the case
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What if the court considers extrinsic evidence on a Motion for Judgment on the Pleadings?
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treated like a Motion for Summary Judgment
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12(b) Defenses (7)
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12(b)(1) lack of SMJ
12(b)(2) lack of PJ 12(b)(3) improper venue 12(b)(4) insufficiency of process 12(b)(5) insufficiency of svc of process 12(b)(6) failure to state a claim 12(b)(7) failure to join necessary pty |
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Which 12(b) defenses are waived if not timely raised?
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- PJ
- improper venue - insufficiency of process - insufficiency of svc of process |
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Insufficiency of Process
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when the summons gives the D incorrect info on how to respond
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12(b)(6) -- (2)
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either
- allegations in the claim, even if true, do not state a legal cause of action because they are missing some of the necessary allegations such as an element OR - even the allegation states a COA, the COA is not recognized inn NC |
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How is a 12(b)(6) motion treated if the court considers extrinsic matters?
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Summary Judgment
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Three ways to amend a pleading
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- once as a matter of course / right
- written consent of adverse pty - leave of court (freely given) |
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General Reasons for Denial to Amend (5)
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- undue delay
- bad faith - undue prejudice - futility of amendment - repeated failure to cure defects |
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Relation Back (NC)
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NC law allows a relation back of CLAIMS only, unlike the federal rule which allows relation back to ptys (wrong name) as well
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If a supplemental pleading asserts a claim or defense which has arisen since the initial pleading, may it be allowed?
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Yes - so long as no undue prejudice
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Permissive Joinder (2)
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- all persons may join as P's is they assert any right arising out of the same transaction or occurrence and if any question of law or fact is common to all parties
AND - all persons may be joined as D's if the P's assert any rights or relief arising out of the same transaction or occurrence, and if any question of law or fact is common to all the parties |
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Counterclaims (2)
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- compulsory
- permissive |
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Permissive Counterclaims
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any claims against an opposing party NOT arising out of the same transaction or occurrence
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Compulsory Counterclaims
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any claims which the pleader has against an opposing party arising out of the same transaction or occurrence of subject matter of opposing pty's claim
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Third Party Claims / Impleader
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a party may sue 3P D's who are liable to the 3P P for all or part of the claim against him (in essence it tacks a new lawsuit on between D's)
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Cross-Claim
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a party may state any claim against a co-party which arises out of the transaction or occurrence
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Joinder of Claims
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a party can bring as many claims as it has against an opposing party once the party first complies with the rules on cross-claims and 3P claims
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Necessary and Property Parties Distinguished
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necessary parties should be joined; proper parties can be but are not needed
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What is Intervention of Right
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Anyone who claims an interest related to the property or transaction who may have their interest impaired of otherwise will not be able to protect their interest may intervene (rights are not adequately protected by any existing party)
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What is Permissive Intervention (2)
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- a statute gives a right to the intervenor OR
- an intervener has a question of law or fact common to the lawsuit |
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Requirements of Class Action (6)
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- a class exists
- too numerous for all class to be joined - class members within juris of the court adequately represent those outside - the party representing the class must fairly insure the representation of all class members - adequate notice - class members must share interest in a common question of law or fact |
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What conditions must something be to be discoverable? (2)
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- relevant
- not privileged |
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Work Product
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materials prepared in anticipation of litigation or preparation for trial (not to be confused with atty-client pvlg)
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What is the NC test for Work Product
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Sole purpose test
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Sole Purpose Test
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- sole purpose of gathering info was in anticipation of litigation and strategies
(Qualified immunity) |
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Are atty's (or reps) mental impressions, conclusions, opinions, or legal theories absolutely protected?
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Yes
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Opponent access to documents and tangible objects
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if opposing party can show document (e.g. deposition) is of substantial need and is not obtainable elsewhere without undue hardship, the document may be discoverable
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Types of Expert Witnesses (2)
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- testifying experts
- non-testifying experts |
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Testifying Experts
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experts who developed facts and opinions in anticipation of litigation or in preparation for trial and are expected to testify at trial, in NC, if a pty inquires by interrogatory the receiving party must give name, subject matter, substance of opinion, and grounds for opinion
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Non-testifying Experts
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experts who were formally or informally consulted in anticipation of litigation or preparation for trial are not discoverable except in EXCEPTIONAL circumstances
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Actor/Viewer Experts
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witnesses who may be expert witnesses but also are participants in the transactions or occurrences which are part of the lawsuit are treated as ordinary witnesses
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Protective Orders (4)
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- seal otherwise discoverable material
- show good cause - party or non-party - found untimely if sought after discovery is due |
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When is there a duty to supplement a discovery response (4)
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- responses concerning id and location of persons having knowledge of discoverable matters
- responses giving the identity of experts - if a party shows a prior response was incorrect when made - prior response was correct when made, but no longer is because of change of circumstances |
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Signing of Discovery Documents
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must be signed by atty of record or individual acting as pro se
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Who can give depositions (2)
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- parties
- non-parties |
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Interrogatories (3)
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- only parties
- limit of 50 (NC) 25 (Fed) - unless granted leave of court |
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To whom can production of documents and things and entry upon land be served?
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- parties
- non-party with subpoena duces tecum |
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When may a Physical or Mental Examination of Person be required?
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if it is controversy and good cause is shown
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Effect of Examined Party being given results of mental or physical exam
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other party must receive any similar information
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Request for Admissions (3)
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- narrows issues for trial
- cannot be contested - 30 days to respond to request, else admitted |
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Motion to Compel
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when a party or non-party deponent fails to comply with discovery, then a party may seek a court order to compel them to respond - motion must include certification that opposing party has tried to get info in good faith
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May a Pre-trial conference in NC be waived?
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only by the CT
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Date of holding a pre-trial conference in NC
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no later than 7 days before trial
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Two stages of default judgments
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- entry of default
- judgment of default |
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When can a Clerk issue judgment of default?
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sum certain
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Two situations for 12(b)(6)
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- pleading fails to include all the elements of the allegation (ct may allow timely amendment)
- pleading, even though it states a COA, the COA is not recognized in NC |
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When can P ask for a voluntary dismissal
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at any time before the case goes to the jury
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How long do you have to refile after asking for dismissal?
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1 year
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Federal Rule for Dismissal
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can be asked for in written notice prior to answer, or motion SJ, or Stip
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Compulsory Counterclaims and Dismissal
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if an opposing party has a compulsory counterclaim against the party seeking voluntary dismissal without consent, then the rule does not allow dismissal without consent
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Involuntary Dismissal (with prejudice) (2)
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- P fails to prosecute his claim
- P fails to obey order of the court |
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Standard for Summary Judgment
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No genuine issues as to material fact and any party is entitled to judgment as a matter of law (in NC the non-moving party can win, too)
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When must a demand for jury trial be made?
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within 10 days after service of the last pleading directed to that issue
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Difference between Directed Verdict and Motion for SJ
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Directed verdict is made after the presentation of evidence
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Standard for granting Directed Verdict
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sufficient evidence for a jury to reach verdict for NON-moving party (no dispute as to fact)
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Time to file JNOV
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10 days after the entry of judgment
waived if directed verdict motion not made |
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Time to file Motion for a New Trial
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10 days after the entry of judgment
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Grounds for new trial (9)
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- irregularity
- misconduct of jury or prevailing party - accident or surprise which could not have been prevented by reasonable safeguards - newly discovered evidence (reasonable diligence didn't find at trial) - manifest disregard by the jury of jury instructions - excessive or inadequate damages appearing to be based on passion or prejudice - insufficiency of evidence/verdict is contrary to law - error in law occurring at trail and objection had been made - any other reason as appropriate |
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General Verdict (2)
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- who wins
- amt of damages |
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Special Verdict
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- answers of fact the judge will apply to the law
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General Verdict with special finding of facts
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if facts are inconsistent with verdict, the specific findings control
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Entry of Judgment (3)
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- writing
- signed by judge and filed with clerk - served on all parties within 3 days (6 if mailed) |
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How many days to give notice of appeal?
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30 days
|
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Relief from Judgments or Orders (2)
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- clerical error
- final time for appeal passed, but SIGNIFICANT reason to grant relief |
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Six reasons for possible relief of judgment (first 3 must be filed in 1 year)
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-mistake, inadvertence, surprise, or excusable neglect
- newly discovered evidence (due diligence rule) - fraud, misrepresentation, or other misconduct of an adverse party - judgment void - judgment satisfied, released, or discharged - for any other extraordinary reason |
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Three types of Injunctions
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- TRO
- Preliminary Injunction - Permanent injunction |
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TRO
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restraining order issued after showing some potential irreparable harm (interloquitory)
|
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Preliminary Injunction (3)
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- notice
- interloquitory - no appeal |
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Permanent Injuction
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automatic right of appeal
|
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Elements of Claim Preclusion (res judicata) (3)
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- same claim
- same parties (or in privity with parties) - final judgment on merits |
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Elements of Issue Preclusion (collateral estoppel)
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- same issue if fact (not necessarily same claim)
- actually litigated - necessarily litigated (if jury never decided on fact) |
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NC SoL
Defamation |
1 year date of publication
|
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NC SoL
Wrongful Death |
2 years from date of death
|
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NC SoL
Professional Negligence |
3 years from date of act giving rise to claim
|
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NC SoL
Products Liabilities |
3 years but there is a SoR which places an outside limit of 6 years from the date of initial purchase for use or consumption
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NC SoL
Fraud and Mistake (Neg. misrep.) |
3 years from the date of the constituting the fraud or mistake or from the time they should have been discovered
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NC SoL
Negligence (generally) |
3 years
|
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NC SoL
Intentional Torts |
3 years
|
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NC SoL
Conversion |
3 years
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NC SoL
Trespass upon real property |
3 years
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NC SoL
Contract |
3 years from breach
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NC SoL
Claims for loss under an insurance policy |
3 years
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NC SoL
Unfair and deceptive trade practices |
4 years from date of violation
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NC SoL
Contracts under UCC |
4 years
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NC SoL
Contracts Under Seal |
10 years against the principals. If the contract is filed, a counterclaim arising from the same transaction also gets 10 year statute even if it would otherwise have had a shorter statute
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