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34 Cards in this Set

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How many days do you have to answer a complaint?
30 days
What is the rule for venue?
1) in the county in which plaintiffs or defendants reside at its commencement; or

2) if none of the defendants reside in the state, in the county where plaintiffs reside; or

3) if none of the parties reside in the state, then in any county designated in the summons and complaint.
What is NC's long arm statute?
1. when service of process is made upon a person present domiciled within the state, a domestic corporation, or party engaged in substantial activity within the state regardless of whether it is wholly interstate

2. wrongful death within or without state arising from an act or omission within the state

3. goods to be delivered in the state

4. any action involving real oer personal property

5. recovery of a deficieny judgment upon an obligation secured by a mortgage or other instrument in foreclosure action in this sate

7. any action against a director or officer of a domestice corporation where the claim arises from the defendant's conduct

8. collection of taxes

9. contract insuring property

10. divorce, alimony or child support that arises from a marital relationship within this state.
What is the jurisdiction for nonresident motorist?
a nonresident operating a car in the stae is deemd to have consented to the appointment of the commissioner of Motor Vehicles as his attorney upon whom process may be served in any proceeding arising out of a car accident on NC roads.
How is time computed for civil proceedings?
1. the last of the day of the period is included, unless it is a Saturday, Sunday or a legal holiday or the courthouse is closed for transactions.
How do you compute time for an action less than seven days?
if the period is less than seven days, intermediate Saturdays, Sundays and legal holidays are not included.
How is time computed if someone is served by certified mail?
when a party must do some act within the prescribed period after service of a notice upon him and the notice served by mail, three days are added to the prescribed period.
How does one commence a civil action?
a civil action is commenced by filing a complaint with the court.
When must a summons be sent?
summons signed by clerk notifying defendant of the suit directing defendant to answer must be sent within 5 days of filing.
What is the time of service for a summons?
Service must be within 60 days of the summons
How can a summons be extended?
1. plaintiff may secure an enorsement on the original summons for an extension of time within which to complete service

2. plaintiff may procure an alias or pluries summons to be returned in the same manner as the original process 90 days of the last endorsement.
What rule governs default judgments?
Rule 55
When does the default judgment apply?
the clerk of court is directed to enter the default of a party against whom a judgment for affirmative relief is sought when it appears by affidavit, motion of plaintiff's attorney or otherwise that the party "has failed to plead or is other wise subject to default judgment as provided by the these rules or by statute.
What are the two conditions which have to be met for the clerk can enter default judgment?
1. plaintiff's claim must be for a sum certain or subject to precise computation

2. defendant must have been defaulted for failure to appear and must not have been an infant or incompetent person
What is the rule when a defendant party has appeared in a default action?
once a party or his representative has appeared in the action at any time, default judgment may only be entered by the judge not clerk.

Note: when an apperance has been made by a defaulting party, the defenant must be served with written notice at least 3 days before the hearing.
When can a default judgment be set-aside?
a default judgment otherwise proper may only be set aside upon a showing of both excusable neglect and meritorious defense.

Note at the discretion of the court
What is the rule for setting aside default entry?
setting aside default entry for good cause shown.
What is the test for summary judgment?
on the record before the court, there is any genuine issue as to a material fact. If the court determines that there is no genuine issue as to any material fact.

Note: court looks in favor of the non-moving party.
What are some of the claims that are considered special matters?
1. fraud or mistake

2. conditions precedent

3. special damages

4. medical malpractice

5. punitive damages
How does one plead a medical malpractice case?
1. the pleading specifically asserts that the medical care has been reviewed by a person who is reasonably exepcted qualify as an expert under rule 702 of hte Rules of Evidence and who is willing to testify that the medical care did not comply with applicable standard of care

2. pleading specifically asserts that the medical care has been reviewed by a person that the complaint will seek to have qualified as an expert witness by motion under Rule 702(e)

3. the pleadings alleges facts establishing negligence under the existing common-law doctrine of res ispa loquitur (9j).
What are the 12b motions?
12(b)(1) lack of subject matter jurisdiction

12(b)(2) lack of personal jurisdiction

12(b)(3)improper venue or division

12(b)(4) insufficiency of process

12(b)(5) insufficiency of service of process

12(b)(6) failure to state a claim upon which relief can be granted

12(b)(7) failure to join necessary party
What is a 12(b)(6) motion?
it is a motion to dismiss for failure to state a claim upon which relief can be granted, the allegations of the complaint must be viewed as admitted.
What is a motion to strike?
A party may move to strike from a pleading "any sufficient defense" or any redundant immaterial, impertinent or scandalous matter.

Note: motion is made before responding to a pleading, or if no responsive pleading is permitted within 30 days after service of the pleadings upon the movant.
What are interlocutory appeals?
interlocutory decrees are immediately appealable only when they affect some substantial right to the appellant and will work an injury to him if not corrected before an appeal from final judgment.

Note:An order of the trial court is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.

Note: Interlocutory orders may be appealed only in two instances. The first is where there has been a final determination of at least one claim, and the trial court certifies there is no just reason to delay the appeal. N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 54(b) (1990). The second arises where delaying the appeal would prejudice a substantial right
What is the rule for voluntary dismissal?
the plaintiff has an absolute right to a voluntary, non-prejudicial dismissal up to the time he rests his case. A second dismissal will, however, be an adjudication upon merits.

Note: a new action based on the same claim may be commenced within one year after such dismissal.
How is venue determined?
residence of the parties at teh time the action is commenced is controlling and venue is not subsequent change in residence.
Is venue a substantial right?
Yes, the right to have the case tried in the proper venue is a substantial one, but is not jurisdictional.
Generally, how is venue changed?
upon the power of a court to order a change of venue, a court of general jurisdiction has the inherent authority to order a change of venue in the interest of justice.
Does a defendant have an appeal as a matter of right for a change of venue?
a defendant cannot by motion move for a change of venue for convenience of witnesses and the ends of justice, if such a denial was interlocutory.
What is the test for directed verdict?
a motion for directed verdict presents the question of whether evidence on a claim is sufficient to go to the jury. The test is whether the evidence, taken in the light most favorable to plaintiff, is sufficient as a matter of law to be submitted to the jury.
What is needed to prove collateral estoppel?
1. earlier suit has resulted in a final judgment on the merits

2. that the issue in question was identical to an issue actually litigated and necessary to the judgment

3. that both parties were either parties to the earlier suit or were in privity with parties.
What is res judicata or claim preclusion?
is theory whereby whenever a final judgment is rendered in a court of law, the claim that was settled may not be relitigated by the same parties or by parties in privity with the same parties.
What is needed for a preliminary injunction?
there is probable cause that plaintiff will prevail on the merits and

2. there is reasonable apprehension of ireparable loss unless injunctive relief is granted or such relief appears reasonably necessary to protect plaintiff's rights during litigation.

Note: at the discretion of hte judge.
When will TRO be granted?
if it clearly appears that immediate and irreparable injury, loss or damage will result to the applicant

Note: should be issue only upon a showing of immediate and irreparable injury, loss or damage.

Note: must expire no later 10 days