Chapter 3: Pleading Flashcards
Complaint
Initial pleading in an action
In NC: must contain a short plain statement of the claim sufficiently particular to give the court and parties notice of the tx/occurrence intended to be proved, showing P is entitled to relief and a demand for judgment to which P is entitled
Can plead different types of relief in the alternative
Don’t plead specific damage amounts
Federal: notice pleading, don’t need “sufficiently particular”. Service generally w/in 120 days of filing.
Matters that must be plead w/ specificity
Fraud, special damages
Libel
Medical malpractice
GF pleading requirement
Attorney must certify that the pleading is not being filed for an improper purpose
Federal Waiver of Service
Requests for waiver of service must be in writing and addressed to individual D, or officer/agent of corp.
Must give D reasonable time to return waiver, at least 30 days
Extends time to serve answer from 21 days after service of process to 60 days when waiver sent.
How is a civil action commenced: NC?
Filing complaint w/ court
Commencement tolls OSL
A summons must be issued w/in 5 days of filing date in order to toll SOL, even if service doesn’t occur until much later
Time computation
Period excludes the day of the event that triggers the period
It includes the last day of the period unless weekend or legal holiday. In that case, next non-weekend or non-holiday day.
When Rules provide a time period for responding to service or filing, and the service of filing is made by mail, 3 days are added to proscribed time period.
Notice for hearing/motion
A written motion or notice of a hearing must be served not later than 5 days before the time specified for the haring, unless the motion can be heard ex parte, the Rules provide for it, or the court orders otherwise.
When must D respond to summons and complaint?
W/in 30 days after service
A responsive pleading must be served w/in 20 days after notice of the court’s action in ruling on the motion or postponing its disposition on the merits
Service of responsive pleadings
Don’t have to be served by sheriff or other officer
D or D’s attorney may served P’s counsel of record by delivery to P’s counsel or mailing to P’s counsel
If no attorney has filed a written appearance for a party, service is made on the party .
D meets deadline by by depositing in mail w/ postage paid and proper address.
Failure to raise 12(b) motions to dismiss waives them:
PJ, improper venue, insufficient process, and insufficient service of process are waived if not immediately raised by D in answer or motion to dismiss.
How long does a D have to respond if 12(b) motion denied?
20 days to answer complaint, not original 30.
Federal: TRO
Preserves the status quo until an opportunity for full hearing
Effective for a limited time, no longer than 14 days unless good cause exists or adversary consents
May be issued w/out notice to adverse party if immediate and irreparable injury will result and movant’s attorney certifies efforts made to give notice and the reason why notice should not be required
Preliminary injunction
Issued prior to a full hearing on the merits, upon notice to D
May be issued if:
P is likely to succeed on the merits
P is likely to suffer irreparable harm in absence of relief
Balance of equities in P’s favor, and
Injunction is in the public interest
Permanent injunction
Once issued, continues until dissolved by court, but any affected person may move for modification or dissolution.
Same standard as PI but P must show actual success on the merits
12(b) motion to dismiss
(i) Lack of SMJ (can be raised at any time)
(ii) Lack of PJ, (iii)improper venue, (iv)insufficient process or (v)service (can be raised preanswer motion or answer otherwise waived)
(vi) Failure to state a claim upon which relief can be granted and (vii) failure to join necessary/indispensable party (can be raised in any pleading, motion for judgment on pleadings or at trial).
