NC Civil Procedure

Question 1

Trial Jurisdiction Comparison

Answer 1

District and superior courts generally have concurrent jurisdiction over civil matters.

Exclusive district: juvenile delinqueny

Exclusive superior: probate

$10K is the dividing line, but not mandatory.

Question 2

District Court Jurisdiction

Answer 2

1) under $10K
2) family law
3) juvenile delinquency
4) disabled/mentally ill
5) small claims

Question 3

Superior Court Jurisdiction

Answer 3

1) over $10K
2) civil equity actions (injunctive/declaratory)
3) Const rights
4) probate
5) govt actions (eminent domain, agencies, receiverships…)

Question 4

Appeals of Right to NC Supreme Court

Answer 4

1) Sentenced to death
2) substantial question under NC or US Constitutions
3) Dissent in Court of Appeals’s decision

Question 5

Appeals of Right to Court of Appeals

Answer 5

1) Superior court criminal actions
2) Final judgments in civil actions (sup or dist)
3) interlocutory orders in dist/sup court:
(A) affect substantial right
(B) determine action and prevents judgment that could be appealed
(C) discontinues action, OR
(D) grants/refuses new trial.

Question 6

Writs of Concurrent Appellate Jurisdiction

Answer 6

1) Habeas corpus
2) Mandamus
3) Prohibition
4) Certiorari - require lower court to produce record of particular case in order to determine whether errors occurred that justify review.
5) Supersedeas - command to halt legal proceedings

Help
Me
Poo
Cheese
Sticks

Question 7

Bases for personal jurisdiction

Answer 7

1) Presence/service in state (NC follows transient rule; service in state = don’t need minimum contacts); but fraud.
2) DOMICILE in NC
3) Consent: implied (corporations doing business), general appearance in court, nonresident motorists (Comm. of Motor Vehicles can receive process on behalf)

Question 8

PJ by Presence/Service in state

Answer 8

Transient rule: service in state = don’t need minimum contacts

Fraud defeats, as does presence for special appearance.

Question 9

PJ by Consent

Answer 9

Corporations:
1) foreign: implied from doing business

2) NC corp: principal office, place of business, or where entity regularly engaged in carrying on business (if neither of other two).
3) Registered agent = agent for service, notice, demand.
4) If no registered agent, the Secretary of State is agent for service/notice/demand.

Question 10

PJ by Minimum Contacts

Answer 10

NC: to the limits of due process.

Question 11

Venue - Individuals

Answer 11

1) Proper in any county in which a party resides when suit is brought.
2) If no parties reside in state, proper wherever plaintiff brought the action.

Question 12

Venue - Domestic Organizations (corp/LLP/LP/LLC)

Answer 12

1) Principal office.
2) where maintains a place of business, OR
3) if no principal office or place of business, where regularly engaged in carrying on business.

Question 13

Venue - Foreign Orgs (corps/LP/LLP/LLC)

Answer 13

1) County where action arose
2) County where org usually did business or has property, or
3) County where plaintiff lives if plaintiff is:
(A) resident of NC, for any cause of action.
(B) nonresident in any county where he is regularly engaged in carrying on business, AND
(C) nonresident when the cause of action arose or subject of action is located in state.

Question 14

Improper Venue

Answer 14

1) Waived by failure to object.

2) Remedy in NC: transfer, not dismissal.

Question 15

Change of Venue

Answer 15

1) Not brought proper county
2) Convenience of witnesses or ends of justice promoted by change, or
3) Judge is interested party

Question 16

Pleading backgrounds

Answer 16

Notice pleading; pleadings construed liberally

Plaintiff may plead alternate or inconsistent theories.

Question 17

The Complaint

Answer 17

1) Must contain:
(A) statement of claim sufficiently particular to put court and parties notice of transactions/occurrences and shows pleader entitled to relief.
(B) Demand for judgment for relief.

2) Negligence actions or punitive dams involved: “greater than $10k,” but no specific $ amount.
3) Pff not limited by demand for judgment.
4) Have to plead specific acts of negligence by D.

Question 18

Info and belief

Answer 18

May not have all facts, okay to allege on info and belief.

Also okay in D’s answer.

BUT NOT ALLOWED IF THE PARTY KNOWS OR SHOULD KNOW.

Question 19

Pleadings - Signature/Verification

Answer 19

1) Signature required on all pleadings, w/ signers address (either atty or pro se party).
2) Improperly signed can be sanctioned.

3) Verified Pleadings: sworn under oath to be true.
(A) not required in most instances
(B) required in derivative suits and injunctive relief.

Question 20

Pleading Special Matters

Answer 20

1) Capacity / legal existence / authority
2) Fraud / duress / mistake / condition of mind
3) Conditions precedent in K action
4) Special damages (lost wages, medical bills)
5) Punitive damages, incl aggravating factors (fraud, malice, will and wanton; C&C evid)

6) Medical malpractice
(A) rule 9j certification by expert re: standard of care, OR
(B) res ipsa loquitur
(C) Pff may file for 120 day extension to get 9j report, even if passes SoL.

Question 21

Service of Process

Answer 21

1) Action commences upon filing complaint.
2) Summons must issue w/in 5 days; clerk gives to sheriff in county where to be served or other person authorized by law. (Private server if sheriff unable to execute.)
3) Service outside NC: any non-party over 21 who is auth by law of other jurisdiction.
4) In person or by leaving copy at dwelling w/ person of suitable age/discretion (or to agent).
5) Or by cert/reg mail w/ return receipt.
6) Corp: can serve officer, director, managing agent, or resident agent.

Question 22

Service by Publication

Answer 22

1) Only allowed if can’t serve personally or by mail despite due diligence.
2) Must be published once a week for three consecutive weeks in a newspaper where the party is thought to be located.
3) If party’s location is unknown, then notice should be published in the newspaper of the county where the action is pending.

Question 23

Time limits for service

Answer 23

1) Must be w/in 60 days of issuance of summons.

2) Extensions available
(A) endorsement or
(B) alias or pluries summons.
(C) Need an extension for each 90 day period after issuance.

Question 24

Failure to Serve

Answer 24

1) No service or extension = action discontinued as to any unserved party.
2) Action may be renewed by later endorsement or A&P summons, but will not relate back to date of filing for commencement. New commencement is date of issuance of endorsement/A&P.

Question 25

What must be served

Answer 25

All pleadings, motions, orders, notices, and other papers must be served on other party.

Service made to party’s attorney unless service upon party herself is ordered; allowed by mail or delivery.

Question 26

Computing Time

Answer 26

Day not included.

Last day included unless Sat/Sun/holiday.

Period < 7 days, intermediate Sat/Sun/holidays don’t count.

Parties can ask court for more time before period expires, w/ or w/o motion. Parties may also stipulate to enlarge period up to 30 days.
(A) Must show excusable neglect to get extension from court.
(B) No extensions for particular motions.

Three days added to period if party is served by mail and must respond.

Question 27

Answer

Answer 27

1) Responds by denying/admitting allegations or raising affirmative defenses.
2) Answer must be served w/in 30 days of service of summons/complaint on defendant.
3) If Rule 12 Motion filed, time for answer is extended by 20 days after motion denied/postponed (or after more definite statement provided by pff).

Question 28

Affirmative Defenses - Pleadings

Answer 28

Looks like all of them have to be pleaded in Answer.

Question 29

20 year SoL

Answer 29

Adverse possession w/ no color of title

Question 30

10 year SoL

Answer 30

1) Actions on judgment or decree or state/fed court.
2) Actions on mortgages (FC or redemption).
3) Actions not specifically provided for by statute

Question 31

7 year SoL

Answer 31

1) AdvP under color of title.

2) Creditor actions against decedent’s administrator/executor.

Question 32

6 year SoL

Answer 32

Action for damages arising from unsafe condition from improvement to real property, if brought against those making the improvement.

Question 33

4 year SoL

Answer 33

UCC contract breach actions.

Question 34

3 year SoL

Answer 34

1) Contracts
2) Statutory liability
3) Trespass real prop
4) Trespasses to chattels
5) Criminal conversation/alienation of affection
6) Actions for fees due to clerk/sheriff/other officer by judgment of court.
7) Actions for relief on mistake/fraud grounds. Accrues from discovery.
8) Actions against public officer for trespass under color of office.
9) Negligence
10) Assault/battery/false imprisonment

Question 35

2 year SoL

Answer 35

1) Actions for double usurious interest
2) Wrongful death
3) Claims against municipalities/counties.

Question 36

1 year SoL

Answer 36

1) Libel/slander
2) Widow’s allowance
3) Deficiency judgments

Question 37

Reply

Answer 37

Permitted in two situations:
(A) Counterclaim; has to be made
(B) If court orders one

Question 38

Grounds for Motion to Dismiss

Answer 38

1) SMJ
2) PJ
3) Fail to state claim
4) Improper venue (not NC)
5) Insufficient process
6) Insufficient service of process
7) Fail to join necessary party

Question 39

Standard for Failure to State Claim (12b6 motion)

Answer 39

1) All allegations in complaint taken as true.
2) Denied unless appears beyond doubt that plaintiff could prove no facts in support of claim which would entitle to relief.
3) Court may allow pff to amend pleadings in response.

Question 40

What is Considered for 12b6 motion

Answer 40

Generally, only the pleading itself, but:
(A) Court may take judicial notice of facts universally known and accepted.
(B) Court may consider whether movant’s own allegations cure any defect in the challenged pleading.
(C) If movant presents affidavits, may be treated as motion for SummJudg.

Question 41

Consequences of Ruling on Motion to Dismiss

Answer 41

1) Remember interlocutory standard and substantial right or effectively determines action.
2) Any interested party may appeal an adverse ruling for in personam or in rem jurisdiction or may preserve appeal for later.
3) Pff can immediately appeal if motion granted. D cannot appeal denied motion.

Question 42

Motion for Judgment on Pleadings

Answer 42

1) Analogous to 12b6, but made after pleadings closed (but without delaying trial).
2) If supporting affidavits or other evidence is presented, court may treat as Rule 56 motion.

Question 43

More Definite Statement

Answer 43

Pleading so vague that party cannot reasonably be required to frame a responsive pleading, move for more definite statement.

Rarely granted, sort of insulting.

Question 44

Procedure for Rule 12 Motions

Answer 44

Formalities:

(a) in writing
(b) state w/ particularity the grounds, and
(c) set forth relief sought.

Time limits: Pre-Answer motions extend time for Answer by 20 days.

Rulings: May be postponed until trial.

Question 45

Waiver of Defenses

Answer 45

If not made in D’s first responsive pleading or motion, the following are waived:

1) PJ
2) improper venue
3) insufficiency of process, and
4) insufficiency of service of process

Not waived, and able to raise at any time, even trial (w/in judge’s discretion):

1) Failure to state claim
2) Failure to join necessary party
3) SMJ

Only SMJ can be raised for the first time on appeal. That’s never waived.

Question 46

Amending Pleadings

Answer 46

Amendment liberally allowed.

Of Right:
1) Once without leave of court:
(A) any time before responsive pleading has been served, OR
(B) if no responsive pleading required and action not on trial calendar, w/in 30 days after service of his pleading.
(C) Motions are not “responsive pleadings.”

By Court’s Leave:

1) After expiration “of right” period; need leave of court or written consent of adverse party.
2) Refusal to grant leave is abuse of discretion w/o some justification:
(a) undue delay
(b) bad faith
(c) dilatory motive
(d) undue prejudice
(e) futility
(f) repeated failure to cure deficiencies
3) Party may amend upon motion at any time, even after judgment, to conform them to issues/evidence presented.

4) Party may object to evidence on grounds that outside pleadings, but Court should allow other party to amend.

Question 47

Effect of Amending Pleadings

Answer 47

1) Supersedes original pleading
2) Response still required unless amendment very minor (w/in 30 days).
3) If issues tried that were not pled, treated as raised in pleadings.

Question 48

Relation Back of Amendments

Answer 48

1) Claim asserted first in amendment relates back if original pleading gave notice of same transactions or occurrences of new claim.
2) When amended after SoL, relates back if amplifies old cause of action as long as D placed on notice of transaction/occurrences involved.
3) Amendments to add new parties do not relate back.

Question 49

Supplemental Pleadings

Answer 49

Deal w/ new information/events, as opposed to overlooked info/events like amendments.

Court has discretion to allow upon reasonable notice and upon just terms.

Merely adds to, instead of superseding original pleading. But may cure a defective pleading.

May also order a response.

Question 50

Joinder - Real Party in Interest

Answer 50

1) If someone other than real party in interest brings suit, reasonable time allowed for joinder/substitution of real party. This RELATES BACK.
2) Assignees/Subrogees are real parties in interest.

Question 51

Joinder - Capacity to Sue/Be Sued

Answer 51

All p-ships and unincorporated associations may sue and be sued under the name by which they are known or doing business without naming individual partners/members.

Question 52

Compulsory Counterclaims

Answer 52

1) Arise out of same occurrence/transaction.
(A) Unless requires joinder of 3P that court has no PJ over.

2) Logical relationship between backgrounds of claims and nature of actions/remedies.

Question 53

Permissive Counterclaims

Answer 53

1) Not same transaction/occurrence.
2) Plaintiff’s consent to PJ for counterclaim is deemed given by bringing suit
3) Still subject to SoL

Question 54

Class Actions - Prerequisites

Answer 54

1) Named representatives show they will represent all class members’ interets fairly and adequately.
2) No CoIs b/w named reps and members of class.
3) Named reps have an interest in case’s outcome.
4) Named representatives w/in NC adequately represent members of class outside state.
5) Class too large to bring all members before court.
6) Adequate notice given to every class member.

Question 55

Class Actions - Existence of Class

Answer 55

1) Class exists when each member has an interest in the same issue of law or fact and that issue predominates over issues affecting only individual class members.
2) Number based on circs of case.

Question 56

Certification of Class

Answer 56

Trial judge has discretion and may apply factors not expressly mentioned in Rule 23.

Question 57

Interpleader

Answer 57

“Come and get it, y’all!”

Question 58

Notice of Class Action

Answer 58

1) Manner/form within court’s discretion
2) Best notice practical.
3) Individual notice to members who can be identified.
4) ASAP after commencement of action.
5) Court may require potential members to opt out

Question 59

Intervention of Right

Answer 59

1) Statute confers unconditional right to intervene, OR
2) Applicant claims an interest relating to the property or transaction that is subject of action, and so situated that disposition of action may impair or impede his ability to protect that interest unless allowed to intervene.

To intervene as defendant, 3P must show has a legal interest in the subject matter of litigation that he will either gain or lose by direct operation of judgment.

Question 60

Permissive Intervention

Answer 60

1) Court’s very broad discretion.

2) Factors:
(A) Conditional statutory right to intervene,
(B) Applicant’s claim/defense involves common question of law or fact (need not be same transaction, or pecuniary interest in the litigation).

Question 61

Intervention Procedure

Answer 61

1) Timely application factors:
   (A) status of case
   (B) unfairness/prej to existing Ps
   (C) reason for delay intervening
    (D) prej to applicant if denied
   (E) Unusual circs.

2) Serve motion on all parties, stating grounds and pleading claim/defense for which intervention sought.

Question 62

Scope of Discovery

Answer 62

Any matter not privileged that is relevant to the subject matter involved in the pending action.

Question 63

Discovery - Relevance and Admissibility

Answer 63

1) Relevance: “appears reasonably calculated to lead to the discovery of admissible evidence.”
2) P may seek discovery of facts already known to the P.

Question 64

Discovery - Privileges

Answer 64

1) Self-incrimination
2) Attorney-client
3) Physician-patient
4) Marital communications

Question 65

Work Product Doctrine

Answer 65

1) Materials prepared in anticipation of litigation are generally not discoverable.

2) Work product may be discoverable upon showing of:
(A) substantial need, AND
(B) undue hardship (cost, financial resources, substantial equivalent)

3) Protection extends to persons other than attorney who represent Party if prepared in anticipation of litigation.
(A) Does not extend to underlying facts, just to the documents/things themselves.

4) Absolute protection for atty’s thoughts/mental impressions.

Question 66

Discovery & Experts

Answer 66

1) No disclosures required.

2) Opposing may seek discovery of testifying expert:
(A) identity
(B) subject matter of testimony
(C) facts/opinions of testimony
(D) summary of grounds for opinions.

3) No rule for discovery from non-testifying experts, but possible if proper showing.

Question 67

Discovery Limits

Answer 67

Court may limit use of discovery methods if:
1) Unreasonably cumulative/duplicative.
2) Obtainable from another less burdensome source.
3) Ample opportunity already to obtain.
4) unduly burdensome/expensive:
(A) needs of case
(B) amount in controversy
(C) limitations on party resources, and
(D) importance of issues at stake.

Question 68

Protective Orders

Answer 68

Court can make “any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.”

Good cause shown.

Question 69

Oral Depositions

Answer 69

Timing:
1) Leave only required if depo w/in 30 days of service on D.
2) Leave not required during 30-day period if:
(A) D has served notice of depo or sought discovery, OR
(B) Pff’s atty certifies the deponent is about to leave and will be unavailable after 30-day period.

Notice and Subpoena:
1) Reasonable notice to all Ps: time/place/name of deponent. Notice compels attendance by P.

2) Subpoena req for non-party, unless volunteers (duces tecum to require docs).
3) Contempt for failing to respond to subpoena.
4) Nonparty may only be required to appear at depo in county where lives or employed.
5) Motion to quash may be filed w/in 10 days after service of subpoena.

Question 70

Use of Depo at Trial

Answer 70

Depo allowed, despite hearsay:

1) Contradicting/impeaching deponent’s testimony as witness. Any party.

2) Substantive use by:
(A) any party adverse to party who called W
(B) party who called W if testimony inconsistent w/ depo.

3) Substantive use of depo of adverse party admissible for any purpose.

4) Depo of any unavailable W for any purpose.
(A) dead
(B) 100+ miles from trial
(C) inform/imprisoned and unable to testify, or
(D) not obtainable by subpoena.

5) If one party offers part of depo, other may require to include other parts that should be included out of fairness.