Civ Pro: Road To Trial

Front 1

What is the purpose of pleadings?

Back 1

To provide notice to the defendnat and clarify the nature of the lawsuit

Front 2

What are the components of pleadings?

Back 2

1. complaint (original, amended and cross claims)
2. answer (may include a counterclaim)
3. reply tot he counterclaim
4. answer to the counterclaim
5. third party complaint
6. third party answer
7. reply alleging last clear chance (when the answer alleges contributory negligence)

Front 3

What is the pleading requirement in North Carolina?

Back 3

Notice Pleading

Front 4

What does notice pleading require?

Back 4

a short and plain statement of the claim sufficiently particular to give the court and parties notice of the transactions & occurrences

Front 5

How long does the party have to file and answer or preanswer Rule 12 motions in NC?

Back 5

30 days

Front 6

After the court has ruled on a Rule 12 preanswer motion, how long does the party have to file an answer?

Back 6

20 days

Front 7

What are the components of an answer?

Back 7

Responses, affirmative defenses, counterclaims

Front 8

How can a party respond to the allegations in the complaint?

Back 8

1. admit
2. deny
3. no knowledge/info insufficient to form a belief
4. admit in part, deny in part
5. no response (considered a conclusive and incontestable judicial admission)

Front 9

What must be affirmatively alleged in the answer?

Back 9

affirmative defenses

Front 10

List 7 affirmative defenses:

Back 10

contributory negligence, accord & satisfaction, arbitration & 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, statute of frauds, truth (defamation cases), usury, waiver, lack of notice or opportunity to conduct discovery, etc.

Front 11

What is verification and when is it required?

Back 11

sworn statement that the doc can be relied on as a sworn statement

1) divorce & child support
2) shareholder derivative actions

Front 12

What happens if a complaint lacks required verification?

Back 12

It is subject to 12(b) dismissal for lack of SMJ

Front 13

What does NC Rule 11 require?

Back 13

every pleading, motion or paper must be signed by the attorney of record (or pro se litigant)

Front 14

What does Rule 11 signing certify?

Back 14

1. the signor has read the doc
2. to best info and belief, after reasonable inquiry, doc is well grounded in fact,
3. made in good faith, and
4. not interposed for improper purpose

Front 15

What happens if a party fails to sign pleading?

Back 15

Must sign when omission brought to light, or pleading will be stricken

Front 16

What happens when a party falsely certifies a document under Rule 11?

Back 16

violator subject to sanctions, including attorney's fees

Front 17

What happens if a plaintiff demands incorrect relief?

Back 17

the court is still obligated to grant the correct relief warranted under the law

Front 18

How are default judgments limited?

Back 18

By due process

Front 19

How do you demand relief in NC?

Back 19

Ex: Plaintiff requests damages in excess of $10,000 (no exact amounts)

Front 20

What matters must be pled with particularity in NC?

Back 20

1. Fraud, duress, mistake
2. Special damages
3. Punitive damages (aggravating factor)
4. Medical malpractice
5. Foreign Law (pleaded and proven)
6. Capacity to sue

Front 21

What are the heightened pleading requirements for medical malpractice suits?

Back 21

1. Medical expert (reasonably expected to qualify) willing to testify medical care did not comply with the standard of care,
2. Specific assertion that the party will seek to have the expert qualify, or
3. Res ipsa loquitur (and no expert needed)

Front 22

What are the requirements for a testifying expert in a med mal case?

Back 22

licensed health care provider, in the same specialty as the defendant, active in the preceding year

Front 23

What is the test for admitting expert testimony in NC?

Back 23

Expert testifying based on a sufficiently reliable method (lower test than Daubert)

Front 24

What is a motion for more definite statement?

Back 24

when the pleading is so vague or ambiguous that you can't respond

Front 25

What is a motion to strike?

Back 25

used to strike redundant, irrelevant, immaterial or scandalous matter, or insufficient defenses

Front 26

When must a motion to strike be made?

Back 26

Within 30 days of service of the offending pleading (before responding)

Front 27

What is a motion for Judgment on the Pleadings?

Back 27

Made by either party, after the pleadings, if there are no real material issues of fact on which to tr the case, decision is based only on the pleadings

Front 28

In a motion for judgment on the pleadings, what happens if the court considers matters outside the pleadings?

Back 28

It is considered a motion for summary judgment

Front 29

What are the 12(b) defenses?

Back 29

1. Lack of SMJ
2. Lack of PJ
3. Improper venue as of right
4. Insufficiency of process
5. Insufficiency with service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a necessary party

Front 30

Which of the 12(b) defenses are waived if not asserted in the first response to the pleading?

Back 30

Lack of PJ
Improper Venue as of right
Insufficiency of process
Insufficiency with service of process

Front 31

What is insufficiency of process?

Back 31

When the summons gives the defendant incorrect information

Front 32

What are the two ways a plaintiff can fail to state a claim?

Back 32

1. the allegations of the claim do not state a legal cause of action because they are missing some of the necessary allegations,
2. even though the allegations may state a cause of action, it is not recognized in North Carolina

Front 33

What are the three ways to amend a pleading?

Back 33

1. Once as a matter of course (any time before a responsive pleading is served, or within 30 days of service)
2. Written consent from the adverse party
3. By leave of court (freely given when justice so requires)

Front 34

What are reasons the court may deny a request to amend the pleading?

Back 34

Undue delay, bad faith, undue prejudice, futility of amendment, and repeated failure to cure defects

Front 35

What is relation back?

Back 35

Amendments are taken as though filed on the original filing date

Front 36

What is the NC distinction regarding relation back?

Back 36

NC only allows relation back of claims; federal courts also allow relation back to add parties

Front 37

What are supplemental pleadings and when are they granted?

Back 37

Assert claim or defense that arose after the initial pleading (freely given unless unfairness would result to the other party)

Front 38

For federal rule interpleader, what do you look for?

Back 38

complete diversity across the v.

Front 39

For federal statutory interpleader, what do you look for?

Back 39

diversity between claimants.

Front 40

What are the requirements for a class action?

Back 40

a class exists
numerousity
adequate representation
typicality
adequate notice
commonality

Front 41

When can parties be joined to a law suit?

Back 41

Permissive joinder - anyone can join plaintiffs or defendants by asserting a right arising out of the same transaction if any question of law or fact common to all of the parties will arise in the action

Front 42

What are the two types of counterclaims?

Back 42

Compulsory - claims against the opposing party arising out of the same transaction that is the subject matter of the opposing party's claim

Permissive - claims against an opposing party not arising out of the same transaction or occurrence

Front 43

What are cross claims?

Back 43

claims against a co-party that arises out of the same transaction or occurrence

Front 44

What is impleader?

Back 44

kicking and screaming - 3d party defendants (contribution/indemnification); can raise defense of lack of PJ

Front 45

What is the rule related to joinder of claims?

Back 45

A party can bring as many claims as it has against an opposing party once the party complies with the rules on cross-claims and third party claims (in fed court, look out for SMJ)

Front 46

What are necessary parties?

Back 46

parties that should be joined because the claim cannot be tried without likely prejudicing that party (excludes required joinder of all persons obligated on a joint contract)

Front 47

What are permissive parties?

Back 47

parties they may be joined but are not needed because they have an interest but are not likely to be injured if not in the suit

Front 48

What is intervention?

Back 48

when a party wants in the suit voluntarily and waives PJ objections

Front 49

What is intervention as of right?

Back 49

statute gives the right to intervene

or

Anyone who claims an interest to the property or transaction who may have their interest impaired or otherwise will not be able to protect their interest and their rights are not adequately protected by the people who are already parties

Front 50

What is permissive intervention?

Back 50

when a statute gives a conditional right to the intervenor, or
when an intervenor has a question of law or fact common to the law suit

Front 51

What is interpleader?

Back 51

allows a party facing conflicting claims to bring all claimants under the roof of a single case