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17 Cards in this Set
- Front
- Back
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What must a complaint contain?
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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 giving rise to the claim.
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When must a party respond to a complaint?
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within 30 days of receipt of the summons.
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What matters must be pled with particularity?
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fraud/duress/mistake
special damages punitive damages medical malpractice foreign law capacity to sue |
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What does a motion for judgment on the pleadings do?
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can be made if there's no material issue of fact on which to try the case. Based solely on the pleadings.
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What are the 7 12b6 defenses?
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lack of SMJ
lack of PJ improper venue insufficiency of process insufficiency of service of process failure to state a claim upon which relief can be granted failure to join a necessary party |
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Which of the 7 12b6 defenses can be waived if not raised?
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lack of PJ
improper venue insufficiency of process insufficiency of service of process |
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What is a 12b6 motion?
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failure to state a claim upon which relief can be granted.
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What are the two issues raised by a 12b6 motion?
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1. the allegations of the claim, even if taken as true, do not state a legal cause of action because they are missing some of the necessary allegations, such as an element.
2. even if the allegations state a cause of action, that cause of action is not recognized in NC. |
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What are the 3 ways to amend a pleading?
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1. once as a matter of course - any time before responsive pleading is served.
2. written consent of adverse party 3. leave of the court (broad discretion) |
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When are default judgments appropriate?
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When there has been absolutely no response by a defending party after receiving the summons/complaint.
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What is summary judgment?
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when there is no genuine issue as to any material fact and ANY party is entitled to judgment as a matter of law.
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What is a directed verdict?
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Made after presentation of the evidence and if there is insufficient evidence for a jury to find for the nonmoving party, should be granted.
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What is a JNOV
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judgment notwithstanding the verdict - must be made within 10 days of the judgment and must have made a directed verdict motion at the end of evidence.
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What are some reasons for a judge granting a new trial?
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irregularities in the trial
misconduct of jury accident or surprise not avoidable newly discovered evidence manifest disregard of jury instructions excessive/inadequate damages insufficiency of evidence error in law |
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When must a relief from judgment be requested by and what are some reasons for granting it?
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within 1 year of judgment.
Can be granted for mistake, inadvertence, surprise or excusable neglect (which does NOT include lawyer neglect) |
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What is claim preclusion (res judicata)?
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Valid final judgment on the merits involving the same parties and same claim cannot be retried.
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What is issue preclusion (collateral estoppel)?
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same issue of fact in both cases was actually and necessarily decided against the party.
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