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67 Cards in this Set
- Front
- Back
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Subject Matter Jurisdiction
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- Can't be acquired by waiver or consent of the parties.
- State has no power to enact laws which operate upon things or persons outside its territory. - Jurisdiction limits - <$10K for district court and >$10K for superior court - aren't mandatory and are often ignored. - No NC Ct has juris to enforce penal laws of another state |
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Determining Amount in Controversy
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Interests and costs aren't included, but claims can be aggregated in 2 situations: (1) where a single party asserts two or more properly joined claims, and (2) where two or more parties properly joined and their interests are aligned.
- value of any property siezed in attachment, claim and delivery, or other ancillary proceeding isn't in controversy and isn't considered. - Mutually exclusive claims aren't aggregated, and neither are successive claims in which satisfaction of one will bar recovery of the other. - Where multiple claims are NOT subject to aggregation, the highest claim is the amount in controversy. - Where value of relief to a claimant differs from its cost to an opposing party, the higher amount is determinative. |
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District Court SM Jurisdiction
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1. Civil cases where claim is for $10K or less.
2. All proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody, enforcement of separation or property settlement agreements b/t spouses, and recovery for the breach thereof, w/out regard to amt in controversy 3. proceedings to terminate parental rights of any child in the custody of a county DSS or licensed child-placing agency 4. Any case involving a juvenile alleged to be delinquent, undisciplined, abused, neglected, or dependent 5. all criminal actions below the grade of felony (including municipal ordinance violations) - i.e. petty misdemeanors 6. All proceedings under the Protection of the Abused, Neglected, or Exploited Disabled Adult Act 7. Proceedings to commit the mentally ill 8. Small claims actions in which the amt in controversy doesn't exceed $5K |
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Superior Court SM Jurisdiction
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1. all civil cases where the amt in controversy exceeds $10K
2. the probate of wills and the administration of decedents' estates 3. certain civil actions 4. Proceedings involving the appointment of guardians and the administration of express trusts by legal guardians and trustees of express trusts of the estates of their wards and beneficiaries 5. proceedings wherein prop is being taken by condemnation under eminent domain 6. actions for corp receiverships 7. all criminal actions not assigned to district court (except for some misdemeanors) 8. partition of real property, proceedings to establish boundaries when in dispute, and actions to quiet title |
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Civil Actions over which Superior Court has SMJ
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Where the principal relief sought is:
1. injunctive relief against or compelling the enforcement of any statute, ordinance, or regulation 2. declaratory relief to establish the validity or lack thereof of any statute, ordinance, or regulation 3. the enforcement or declaration of any claim of constitutional right |
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Misdemeanors that can be tried in Superior Court
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1. which is a lesser included offense of a felony on which an indictment has been returned, or a felony info as to which an indictment has been properly waived
2. when the charge is initiated by presentment 3. which may be properly consolidated for trial w/ a felony b/c of a common transaction, scheme or plan 4. to which a plea of guilty or nolo contendere is tendered in lieu of a felony charge 5. when a misdemeanor conviction is appealed to the superior ct for trial de novo, to accept a guilty plea to a lesser included or related charge |
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Appellate Division SM Jurisdiction
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Supreme Ct and Ct of Appeals have juris to review upon appeal decisions of the Superior Ct, District Ct, and admin agencies upon matters of law or legal inference
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Appellate Courts
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Supreme Court & Court of Appeals
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Supreme Court SM Jurisdiction
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1. All appeals cases in which the D is convicted of murder in the first degree and is sentenced to death.
2. Any decision of Ct of Appeals in a case which directly involves a substantial question arising under the US constitution or the NC constitution, or in which there's a dissent |
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Court of Appeals SM Jurisdiction
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1. appeals from Superior ct criminal actions other than capital murder
2. Appeals from any final judgment of Sup Ct or Dist Ct in a civil action 3. Appeals from any interlocutory order or judgment of a superior ct or dist ct which affects a substantial right, determines the action, and prevents a judgment from which an appeal might be taken, discontinues the action, or grants or refuses a new trial |
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Areas of Concurrent Jurisdiction
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Supreme Ct and Ct of Appeals have juris to issue the writ of habeas corpus, mandamus, prohibition, cert, and supersedeas
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Subject Matter Jurisdiction - Definition
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the competence to hear a type of suit
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Personal Jurisdiction - Definition
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the power of a Ct to bind the parties to the suit (or the property at issue) by its judgment
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Due Process Questions when determining Personal Jurisdiction
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1. Is it fair to require the defendant to defend in the state?
2. Does the state have a reasonable nexus w/ the dispute? 3. Has the D received adequate notice of the action & an opportunity to be heard? - NOTE: Long-Arm statutes can't extend the state's juris beyond its own territory if the due process requirements are satisfied. |
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Bases for in personam juris recognized by the US Supreme Court
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1. Personal service w/in the state
2. Domicile of the D in the state 3. Consent of the D to be sued in the state, whether express or implied (e.g. by nonresident motorist) 4. Sufficient purposeful contacts w/ the state (long-arm juris) |
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In Personam Jurisdiction
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Gives the court power to award a judgment imposing personal liab on the D.
Judgment attaches to the person of the D and follows wherever he goes. The P, as judgment creditor, can execute against any of the D's prop w/in the state, and if that's insufficient, can sue on the state court judgment in other states and execute against prop located there. |
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NC requirement for In Personam Juris
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NC Statutes allow service on any individual, public agency, association, or corporation w/in the state or outside the state, if the D has sufficient contacts w/ the state to satisfy due process standards.
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Authorized Persons and Methods for Serving a Complaint
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Proper Persons: sheriff of the county where the service is to be made, or other persons so authorized by law. Outside of NC, service may be made by anyone not a party to the case who is at least 21, and is duly authorized by the law of the place where service to be made
Methods: 1. Natural persons not under disability: a. Delivering copy to him b. leaving copy at his dwelling c. Deliver to authorized agent d. Send by certified or registered mail, return receipt requested e. Use a private delivery service and obtain a delivery receipt f. Mailing copy by signature confirmation of USPS g. Publication, if all other methods fail - NOTE: Email is NOT authorized method of service |
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NC's Long-Arm Statute
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extends state's jurisdiction to any case where personal juris is authorized by the current due process standards.
RULE: A state court having SMJ has personal juris over a person served pursuant to Rules 4(j) or 4(j)(1) in any action: 1. regardless of where claim arose, when service of process is made upon: a natural person present or domiciled w/in the state, a domestic corp, or a party engaged in substantial activity w/in the state regardless of whether it is wholly interstate or intrastate 2. brought under a special juris statute. 3. claiming injury to persons or prop or for wrongful death w/in or w/out the state arising from an act or omission w/in the state 4. for wrongful death or injury to person or prop w/in the state arising from an act or omission outside the state if at the time of injury business activities were carried on in the state on behalf of the D or the D's products or services were used in the state. 5. involving services performed w/in the state or involving goods to be provided by the D to the P or the P to the D where delivery is made from or to the state 6. involving an interest in real prop located w/in the state and claims involving tangible prop located w/in the state either at the time of first use, ownership, control, possession, or commencement of the action 7. to recover a deficiency judgment upon an obligation secured by a mtg or other instrument in a foreclosure action in this state involving real, personal, or intangible prop w/in the state 8. against a director or officer of a domestic corp where the claim arises from the D's conduct in that capacity or from corp activity during the D's tenure 9. for the collection of taxes or assessments imposed by a taxing auth of NC 10. arising from a contract insuring property, lives, or interests w/in the state where the P resided in NC when the claim arose or the event from which the claim arose occurred in NC 11. against a personal rep to enforce a claim against the deceased person represented where one or more of the grounds above would provide a basis for juris if the decedent was alive 12. involving divorce, alimony, or child support that arises from a marital relationship w/in the state notwithstanding one's spouse's departure if the other spouse continues to reside in NC. |
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Special Jurisdiction Statutes
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1. Filing or Defending Suit
2. Nonresident Motorist 3. Corporations |
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Special Juris Rule - Filing or Defending Suit
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State ct having SMJ may exercise persona jurs over a person who makes a general appearance in an action or in counterclaims against a person who filed a claim in NC
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Special Juris Rule - Nonresident Motorist
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Nonresident operating a motor vehicle int he state is deemed to have consented to the appt of the Commissioner of Motor Vehicles as his attny upon whom process may be served in any proceeding arising out of an accident or collision in which the person or his agent was involved while operating a motor vehicle on NC roads.
- Constitutionally upheld on basis of state's police power to regulate its roads and provide an adequate forum for its injured citizens |
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Special Juris Rule - Corporations
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Corp's registered agent is its agent for service of process, notice, or demand required or permitted by law to be served on the corp. If the corp doesn't have an agent or the agent can't be found, the SoS shall be the agent.
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In Rem Juris - Definition
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Juris based on the physical presence of prop in the state. Not against any one party. By its judgment, court establishes rights in the prop against all potential claimants. No liab is imposed though - the court can dispose of the prop or can affect a person's interest in it, but it can't bind a person beyond that (e.g. by imposing damages)
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Elements of In Rem Juris
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1. the presence of the res in the state
2. adequate notice to persons w/ an interest in the res, so that they can participate in any determination |
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Quasi In Rem Juris - Types
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1. Against particular persons
2. attachment to obtain juris |
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Quasi In Rem Juris - Against Particular Persons
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Court has juris over an action to determine the title to or interest in property of particular persons if the property is located in the state, even if the court doesn't have in personam juris over those persons.
(e.g. mtg foreclosures, quiet title actions) Any person whose interest will be affected by exercise of quasi in rem juris must be named as a D and given notice. Court's decree determines the D's interest but can't impose personal liab on the D. |
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Quasi In Rem Juris - Attachment to Obtain Juris
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juris over a claim not concerning the prop, obtained by the attachment of local assets (i.e. juris over a person for a claim not having to do w/ property (e.g. personal injury), but which will be satisfied w/ attached assets)
Judgment is limited to value of the property attached - the D is not personally liable. |
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Invocation of In Rem or Quasi In Rem Juris in NC
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make be invoked where:
1. D has an interest in real or personal prop in the state and the relief sought consists of excluding him from such interest 2. in an action to foreclose, redeem from, or satisfy a deed of trust, mtg, or lien upon real or personal prop in NC 3. in an action for divorce or annulment of a state resident's marriage 4. in any other action where exercise of such juris is constitutional |
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Venue - General Rule
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Venue in the county in which one of the parties resides, if either of the parties resides in NC. If neither does, then any county where P designates his summons and compliant
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Venue - Special Rules
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1. Real Estate - where the land or some part of it is situated
2. Railroads - must be tried in the county where the cause of action arose or where P resided at the time, or in some county adjoining that in which the cause of action arose. 3. Domestic corps, LPs, LLC,s. or LLPs - where the entity maintains place of business or if none, where entity is regularly engaged in business 4. Foreign Corps - county in which the cause of action arose, in which corp usually did business or has prop, or in which the P resides (in certain cases) |
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Improper Venue - Rule
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Bringing an action in the wrong county is a defect which can be waived by failure to object, so it's NOT a jurisdictional error.
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Pleadings - Purpose
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To give fair notice to parties of the claims and defenses in the action
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Theory of Simplified Notice Pleading
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adopted by NC Rules.
Liberal discovery procedures, rather than the detailed pleadings of common law, are used to narrow issues for trial |
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Types of Pleadings permitted by NC Rules
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1. P's complaint
2. D's answer 3. D's counterclaim 4. D's cross-claim 5. D's 3rd-party claim 6. 3rd-party's answer 7. Sometimes, a reply |
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Pleadings - NC General Rules
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"all pleadings shall be so construed as to do substantial justice"
Pleadings aren't construed against the pleader, but are construed liberally P can base claim on alternative and/or inconsistent theories, and need not elect b/t alternative theories at trial. D can raise as many defenses as he has all pleadings must be served upon a party |
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Complaint - Requirements
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Must contain:
1. short and plain stmt of the claim sufficiently particular to give the court and the parties notice of the transactions or occurrences intended to be proved showing that the pleader is entitled to relief 2. demand for judgment for the relief to which he deems himself entitled. NOTE: P is not limited by his demand judgment - except in default judgments, every final judgment shall grant the relief to which the party is entitled, even if he hasn't demanded such relief in his pleadings |
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Pleadings - Form
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Must contain a caption setting forth:
1. division of the ct 2. title of the action 3. designation of the pleading (e.g. complaint or counterclaim) Averments made in numbered paragraphs limited as far as practicable to the stmt of a single set of circumstances. Ea averment s/b simple, concise, and direct Must be signed by the party's attny or by the party himself if he has no attny (if not signed, will be stricken) Verification of the pleading (sworn under oath to be true) only required for s'holder derivative suits and suits for injunctive relief |
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Verified Pleading
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One that is sworn under oath to be true
Required for s'holder derivative suits and suits for injunctive relief |
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"Special Matters" (for pleading purposes)
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More detailed allegations required for:
1. Fraud or Mistake 2. Conditions Precedent 3. Special Damages 4. Med Mal 5. Punitive Damages |
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Med Mal Pleading Requirements
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1. specifically asserts that the medical care has been reviewed by a person reasonably expected to qualify as an expert W and is willing to testify
2. specifically asserts that the medical care has been reviewed by person who the complainant will seek to have qualified as an expert W by motion, and the motion is filed w/ the complaint 3. alleges facts establishing negligence under existing common-law doctrine of res ipsa loquitur - For damages to be awarded, trier of fact must be satisfied by the greater weight of the E that the care provided by the doc was not in accordance w/ the standards of practice among members of the same profession w/ similar training and experience and in similar communities |
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Reply
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Only permitted in 2 situations:
1. A reply must be made if the answer contains "a counterclaim denominated as such". If no reply is made, then allegations of counterclaim are deemed admitted. 2. Court may order reply to an answer or a 3rd-party answer, either on its own motion or on motion of a party. No responsive pleadings beyond reply are permitted, and allegations in reply are taken as denied. |
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Rule 12 Motions Attacking the Pleadings
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1. Motions to Dismiss (12b)
2. Motions for Judgment on the Pleadings (12c) 3. Motion for More Definite Stmt (12e) 4. Motion to Strike (12f) |
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Rule 12b Motion to Dismiss - Grounds
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1. Lack of juris over the subject matter
2. Lack of juris over the person 3. Improper venue or division 4. Insufficiency of process 5. Insufficiency of service of process 6. Failure to state a claim upon which relief can be granted 7. Failure to join a necessary party NOTE: D must raise ALL grounds that he can in one 12b motion, or he's deemed to have waived whatever he doesn't raise |
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Standard for Granting Rule 12(b)(6) Motion
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(failure to state a claim upon which relief can be granted)
Allegations of the complaint must be viewed as admitted. Motion shall be denied "unless it affirmatively appears that P is entitled to no relief under any state of facts which c/b presented in support of his claim" (so rarely granted) |
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Rule 12(c) Motion for Judgment on the Pleadings
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Just like a 12b6 motion to dismiss except it's made AFTER the pleadings are closed, but w/in such time as not to delay the trial.
- if supporting affidavits or other material are presented, ct may treat motion as one for summary judgment |
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Rule 12(f) Motion to Strike
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A party may strike from a pleading "any insufficient defense" or "any redundant, immaterial, impertinent or scandalous matter"
- Motion to strike must be made before responding to a pleading, or if no response permitted, w/in 30 days after service of pleading upon movant. - not favored and will be granted only if the allegations attacked have no possible relation to the controversy and may prejudice the other party. |
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Rule 12 Procedure
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The motion:
1. Must be in writing 2. Must state w/ particularity the grounds therefor 3. must set forth relief or order sought - A pre-answer motion must be filed w/in time allowed for serving the answer (30 days after service of summons and complaint) - Service of a motion extends time for answer to 20 days after notice of ct's action upon the motion. 12b and 12c motions are heard and determined BEFORE trial, but the court may defer until the trial. |
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Defenses Waived if Not Raised in Pre-Answer Motion or Answer
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Defenses of:
1. lack of juris over the person 2. improper venue 3. insufficiency of process 4. insufficiency of service of process are waived: a. if not raised in a pre-answer motion OR b. where no pre-answer motion is made, if not raised in the answer or any amendment as of right to the answer. |
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Defenses that may be raised BEFORE or AT trial
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1. failure to state a claim upon which relief can be granted.
2. failure to join a necessary party 3. objection of failure to state a legal defense - may be raised in any pleading, in a motion for judgment on the pleadings, or at the trial - right to raise these defenses is in discretion of judge - these defenses can't be raised for the first time on appeal |
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Nonwaivable Defense
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Defense of lack of SMJ
- may be raised for the first time on appeal |
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Compulsory Counterclaims
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D MUST assert any claim which he has against the P at the time of serving the pleading "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and doesn't require for its adjudication the presence of third parties of whom the ct can't acquire juris"
- for ct to find that an action must be filed as a compulsory counterclaim, ct must find a logical relationship b/t the factual backgrounds of the 2 claims as well as logical relationship b/t nature of the actions. |
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D need NOT assert an otherwise compulsory counterclaim if:
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1. at the action commenced, the claim was the subject of another pending acting
2. it would require the joinder of 3rd parties over whom the court can't acquire juris 3. P brought suit by attachment or garnishment, so that the court doesn't have personal juris over the D. |
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Permissive Counterclaims
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Any claim that doesn't arise out of the same transaction or occurrence as the original claim may be pleaded as a permissive counterclaim.
- court can, for convenience, order separate trials for unrelated actions - permissive counterclaim not barred if not asserted - may be raised in independent action |
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Statute of Limitations for Counterclaims and Cross-Claims
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If the principal action isn't barred by SoL, then neither is the counterclaim or cross-claim that arises from the same subject matter as the original claim. If it's NOT related to the original claim, then they must be asserted w/in appropriate SoL.
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Cross-Claim
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Asserted by one party against a co-party. (e.g. if P sues X and Y, X may cross-claim against Y)
Should be pleaded in the answer, but it's not compulsory. |
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Requirements of Cross-Claim
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Must "arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relate to any prop that's the subject matter of the original action."
Party against whom cross-claim asserted must file an answer. Claim against co-party on unrelated matter can't be raised as a cross-claim. |
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Rule - Cross-Claim b/t Co-Ps
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Only parties against whom a claim has been made can cross-claim against ea other, so co-Ps can cross-claim against ea other only if a D has counterclaimed.
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Third-Party Practice (Impleader)
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allows a D to assert a claim against a 3rd person not a party to the original action who is or may be liab to the D for all or part of the P's claim against the D.
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Amendment as of Right
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Party may amend his pleading ONCE as a matter of course (1) at any time before a responsive pleading has been served, or (2) if no responsive pleading is required and the action hasn't been placed on the trial calendar, w/in 30 days after service of his pleading.
- right to amend isn't lost if a Rule 12 motion is filed. |
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Amendment by Leave of Court
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After expiration of period for amendment as of right, party may amend only by leave of court or written consent.
- leave shall be freely given when justice so requires, and refusal is abuse of discretion if no justification |
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Amendment to Conform to the E
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If a party raises a timely objection at trial that E is outside the pleadings, the court may allow the pleadings to be amended.
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Rule - Relation Back of Amendments
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A claim asserted in an amended pleading is deemed to have been interposed at time claim in original pleading was interposed unless original pleading didn't give notice of the transactions or occurrences to be proved pursuant to the amended pleading.
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Rule - Pleading Amended to Add a Party After SoL has run
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It will relate back if (1) basic claim arises from conduct set forth in original pleading, (2) party brought in had notice, w/in SoL period, of the action, and the party should've been a D, and (3) party brought in isn't prejudiced by failure to file timely claim
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Supplemental Pleading
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Adds to the original pleading, and deals w/ events that occurred AFTER filing orig pleading
Court has discretion to allow |
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Real Party in Interest
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person who, under substantive law, possesses the right sought to be enforced
- every action must be brought in the name of the real party in interest (except for executor, administrator, guardian, trustee, party to beneficiary contract, or party authorized by statute can bring suit in his own name even if acting on someone else's behalf) |
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Necessary Joinder (Rule 19)
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A necessary party - one who is so vitally interested in the controversy that a valid judgment completely and finally determining the controversy is impossible in his absence - MUST be joined.
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