Pleadings Flashcards
there are three types of permissible pleadings under the North Carolina Rules:
- complaint
- answer
- reply
The basic question for pleadings regards NOTICE:
Was notice proper to the parties?
-entire question
The specific types of pleadings permitted by the North Carolina Rules of Civil Procedure are:
(6)
- π’s complaint
- ∆’s answer
- ∆’s complaint on the counter claim
- ∆’s complaint on the cross claim
- ∆’s complaint on a third party claim
- Answer to each of ∆’s complaint
The primary purpose of pleadings is to
to give fair notice to the parties of the claims and defenses in the action.
Can πplead alternative inconsistent theories of a case?
Yes, can be in a complaint and argued at trial.
Each complaint (or other claim for relief, e.g., a counterclaim) must contain:
- short an plain statement of the claim showing that the party is entitled to the claim
- demand for relief (e.g. money asking for + damages)
DO NOT NEED JURISDICTION STATEMENT
In a demand for relief for damages, how do you draft the pleading?
Not with specificity. If in superior court, say in excess of 10k
Cannot give a specific sanction demand
Is the plaintiff limited by demand for relief in complaint?
No, jury can always award damages not specifically sought
In negligence actions, what must the pleadings have?
Must address the specific acts of negligence
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
The burden of pleading an issue rests on
Whoever will have the burden at trial
What must the caption of the complaint have?
- division of the court (district, superior)
- party names
- type of pleading (answer, complaint, reply)
What must be the form of the allegations of the complaint
- numbered paragraphs
2. If separate actions are claimed: they should be set out separately
What happens if you do not follow rules of pleading?
In most places, can amend the pleadings
-in some cases can be sanctioned
What does a complaint do?
puts the ∆ on notice
What do you do when you do not have all the facts you need to state in the complaint?
Must state the allegations upon “information and belief”
A pleading cannot be based on information and belief if:
the party has the actual knowledge or constructive knowledge (public access knowledge)
What is the signature and verification requirement for pleadings?
An attorney or party has to sign a complaint
- stating that it is a well grounded complaint
- if not can be sanctioned under rule 11
A verified pleading is:
The attorney + party (under oath) sign the complaint
-the party’s oath
Although the general rule is that the pleadings need only give fair notice of the claim, more detailed allegations are required concerning:
Matters to be plead with specificity?
(4)
- fraud, duress, mistake, or condition of the mind
- breach of contract (have to prove condition precedent)
- Requesting Special damages that are in addition to damages flowing from the act
- Punitive Damages
A demand for punitive damages must be plead
with specificity to why punitive damages should be given
-Aggregative factors: fraud, malice, wanton conduct
A complaint for medical malpractice filed on must contain:
-Exception
A certification for an expert in the filed of the merits of the claim (breach of standard of care)
-Reasonable expected to qualify as an expert at trial
Exception when the πcannot tell who to sue (res ipsa loquitor)
What extension for a medical malpractice complaint can be given?
120 days to seek medical malpractice certification when running up on the statute of limitations
When does the lawsuit commence?
The filing of the complaint
What is the window to have a summons issued for service?
5 Days (has to reach service processor within 5 days)
Who must serve a summons and complaint on parties?
∆ in N.C.?
∆ out of N.C.?
In NC
- sheriff;
- if sheriff returns unexecuted, then can hire independent
Outside N.C.
1. process server (any person over 21 years of age licensed by the state to serve process)
How can you serve a ∆?
- personal delivery
- by leaving copies at his dwelling place with a person of suitable age and discretion (lives in home + over 18)
- Service to agents authorized by individual
- Mail copy of service and complaint (return receipt requested)
- Corp: office, director, managing agent, registered agent
What happens if you cannot get service on a person?
Can serve by publication once per week for 3 weeks where the party is located
-if you do not know where they are, have to publish in newspaper in county where suit is brought
How many days do you have to serve a ∆?
60 days
-90 day extension allowed
If there is no service and no extension and the summons dies
You can get an extension; however, the summons does not relate back to the filing of the complaint. The date of the extension becomes the filing date for statute of limitations.
Requirements for service of motions on parties?
All must be served on a party by mail
In computing any period of time prescribed or allowed by the Rules of Civil Procedure:
-If the period is less than seven days?
Do not include first day (filing of complaint, summons delivered, service given)
-Saturdays, Sundays, or holidays are include unless it is the end of the period (will conclude on the next business day)
If
Whenever a party must do some act within a prescribed period after service of a notice upon him and the notice is served by mail:
Add three days
The defendant’s answer responds to the plaintiff’s complaint by:
- denying allegations; or,
2. raising affirmative defenses
The defendant’s answer must be served within?
-if files a rule 12 motion?
30 days
-tolls filing of answer until heard, 20 days after action of the motion.
A ∆’s denial in an answer can be accomplished by
2
- a general denial (∆ denies each allegation of π’s complaint) Have to be able to deny everything (even addresses)
- ∆responds to each allegation with admit, deny, or say they do not have information to form belief
If a defendant denies an allegation “upon information and belief”
- Truthfully
- Untruthfully
- deemed denied
- deemed admitted
A ∆’s affirmative defenses raised in an answer that must be pleaded or it is waive?
(7)
- Statute of Limitations
- Assumption of Risk
- Contributory Negligence
- Estoppel and Fraud
- Res Judicata
- Statute of Frauds
- Full Defense of Truth in Defamation Actions
If an affirmative defense is not raised in the answer, what happens?
It is waived
Statute of Limitations in N.C.
Time period that a specific matter can be brought
-if outside then it is time barred
Statute of Limitations within 20 years
Adverse possession claim without color of title
Statute of Limitations within 10 years
3
- Collecting on a judgement
- Foreclosure on a mortgage
- Any action that does not have a statute of limitations has 10 years max
Statute of Limitations within 7 years
- Adverse possession with color of title
- Creditor of decedents estate
Statute of Limitations within 6 years
- Damages to property
- Injury caused by design to property
Statute of Limitations within 4 years
-UCC sale of goods
Statute of Limitations within 3 years
Most Civil Actions
Statute of Limitations within 2 years
Wrongful death actions
Statute of Limitations within 1 years
Actions for libel and slander
Deficiency judgement after foreclosure
If an action arises outside of N.C. and is time barred where it arose, what is the effect?
It is time barred in N.C.
Statute of limitations when a latent injury occurs in negligence actions?
The period of statute of limitations for an injury occurs
- when it is discovered
- when it should have reasonably been discovered
No cause of action may accure
10 years past when the injury occurred even if latent
Limit on latent injury in professional malpractice actions
the plaintiff must file suit within one year from the time that she discovers or reasonably should have discovered the injury,
but in no event longer than four years from the date of defendant’s last negligent act.
What happens to statute of limitations if a person dies and rep must be appointed for suit?
Add one year to statute of limitaitons
A reply is permitted in only two situations:
- if ∆raises affirmative defense of contributory negligence
- If ∆raises a counter claim against a π
-always a voluntary pleading
Grounds of motions to dismiss?
7
∆ motions
(a) subject matter jurisidiction
(b) personal jurisdiction
(c) improper venue or division
(d) insufficiency of process
(e) insufficiency of service of process
(f) failure to state a claim upon which relief can be granted
(g) failure to join a necessary party
Standard for 12(b)(6): failure to state a claim upon which relief can be granted
Presumptively declined
Must prove beyond doubt that the πcan prove no set of facts that could entitle them to relief
-Generally, directed to amend the complaint than dismiss
12(b)(6) motions are only based upon
the π’s complaint
What is the effect of a 12(b)(6) motion
- if denied
- if affirmed
- if denied then it is an interlocutory order
- if affirmed then it is a judgment on the merits
A motion for judgment on the pleadings is
- made after the pleadings are closed but within such time as not to delay the trial.
- none of the evidence supports the pleadings
What is a Motion for More Definite Statement
If the pleading is so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading:
- Has to be done before the answer
What is a motion to strike?
When there is something so scandalous to the preceding that they need to be stricken from the record
-Before the Answer
A rule 12 motion must
3
- in writing
- state grounds with particularity
- what relief is sought
-file before the answer or with the answer
If a party makes a Rule 12(b) motion to dismiss, he must combine in it
(4)
(b) personal jurisdiction
(c) improper venue or division
(d) insufficiency of process
(e) insufficiency of service of process
Or, if not included in answer, they are waived
The following defenses are not waived by not being raised in a pre-answer motion:
(3)
(f) failure to state a claim upon which relief can be granted
(g) failure to join a necessary party
Lack of subject matter jurisdiction
What rule 12 motion can never be waived?
subject matter jurisdiction
What happens when general damages are specifically plead in a complaint?
Can be sanctioned or amended?
What happens when special damages are not adequately plead in a complaint?
A court can dismiss
What happens if a summons is issued > 5 days after the filing of the complaint?
If not issued within 5 days, the action abates but the filing date is when the summons is revived.
When may a party amend their pleadings
2
- If no responsive pleading has been filed: A party may amend his pleading once as a matter of course without leave of court.
- If there is no responsive pleading required, within 30 days
When will a court allow another claim to be added to pleadings?
where the other party had sufficient notice that they should expect in the original claims
What is the effect of an amended pleading?
It supersedes the amended pleading, if a response was required to the original pleading then is is required to the amended pleading
Exception: the amendment is very minor, such as to fix a name spelling
When can a party move to amend pleadings?
A party may amend his pleadings upon motion at any time (even after judgment) to conform them to the issues and evidence presented.
When do amended claims relate back to the date of filing?
(2)
When do amended pleadings that add new parties relate back?
A claim asserted in an amended pleading is deemed to relate back unless:
The original claim did not give notice to transaction or occurrences in the amended claim (outside scope of original claim) –filing date =amendment date
Adding new parties never gets relation back
What is a supplemental pleading?
It is an amendment to a pleading that adds a claim that has arisen after the original claim
-facts that give rise to the claim arise after the lawsuit is filed
