NORTH CAROLINA CIVIL PROCEDURE - …s3.amazonaws.com/mythm-vids-prod/NC.Marshall.CivPro.pdfNORTH...

NORTH CAROLINA CIVIL PROCEDURE PROFESSOR BILL MARSHALL

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

INTRODUCTION, SUBJECT MATTER JURISDICTION AND PERSONAL JURISDICTION

A. Introduction

• North Carolina Civil Procedure is similar to Federal Civil Procedure

o Useful to review the two subjects together - reinforcement

Exam Tip 1: Pay close attention to time limits and rules of service of process as you go through the materials.

B. Subject Matter Jurisdiction—Organization of the North Carolina Court System

1. General Court of Justice

o Appellate Division

Supreme Court Court of Appeals

o Trial Division

Superior Court District Court

• Small Claims Court

2. Supreme Court of North Carolina

o Highest court—No further appeal in the state from its decisions o Jurisdiction—Review on appeal any decision of the lower state courts on any matter of law

or of legal inference

Reviews errors in legal procedures or in judicial interpretation of the law Has the power to issue any remedial writs necessary to give it general supervision over

proceedings of the lower courts

a. Appeals as of Right

Civil cases

• If there was a _____________________ in the court of appeals • Substantial state or federal constitutional question

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• From any decision of a court, either final or interlocutory, that holds that an act of the North Carolina General Assembly is ____________________________________ on the basis that the act violates the North Carolina Constitution or federal law

• Final judgments in complex business cases and certain interlocutory orders of a business court

b. Discretionary Review

A party may petition the supreme court for discretionary review of an adverse decision by the court of appeals.

The supreme court may also review a case directly from the trial court, bypassing the court of appeals, either on _____________________________________________ or upon the request of a party.

3. Court of Appeals

o Intermediate appellate court—Reviews for errors of law or legal procedure o All civil cases appealed from the superior and district courts (except when the appeal lies of

right directly to the supreme court) o Direct appeals from certain of the state’s administrative agencies o The court of appeals has the power to issue any remedial writs necessary to give it general

supervision and control over the proceedings of the lower courts.

4. Superior Court

o Trial court of general jurisdiction in North Carolina o All civil cases involving _____________________ $25,000 o All constitutional cases o Cases dealing with trusts, wills, and administration of decedents’ estates

5. District Court

o Civil actions involving _________________ $25,000 o Family law issues o Juvenile cases involving children under the age of _______ who are delinquent and children

under the age of ______ who are undisciplined, dependent, neglected, or abused o Appeal of district court cases is to the ___________________________________________.

6. Small Claims Court

o Part of the district court o Handles civil cases in which a plaintiff requests relief of $__________________ or less

7. Transfer Between Trial Court Divisions

o If an action is brought in an improper forum, any party may move to transfer it to the appropriate court.

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o The court may also order a transfer on its own motion.

C. Personal Jurisdiction

• The Constitutional bases for personal jurisdiction are covered in the Themis Multistate Civil Procedure outline.

• Here, we discuss statutory bases for jurisdiction in North Carolina.

Note 1: Even if you have a constitutional basis for jurisdiction, you must also have a statutory basis for jurisdiction. To satisfy the statutory jurisdiction requirement, you need only one statutory provision, even if there are several.

Example 1: While staying at his summer home on the outer banks, Donald from New York negligently drove his Lexus into the Ford Focus owned by Mary from Nags Head. Mary sues Donald in Dare County, serving him with process while he is in his summer home. North Carolina could have jurisdiction over Donald based on a number of statutory provisions such as his presence in the state when served, or the fact that he committed an act within the state that caused injury to a person or property. Either of these statutory bases alone would be sufficient to establish jurisdiction.

1. North Carolina Long-Arm Statute—Bases For In Personam Jurisdiction

a. North Carolina allows for in personam jurisdiction based on:

1) ___________________________ within the state;

2) Domicile within the state;

3) Incorporation within the state; or

4) Substantial ____________________________ within the state.

b. North Carolina also allows personal jurisdiction in the following circumstances:

Special Jurisdiction Statutes—personal jurisdiction over an action when specifically granted by statute

Torts—Local Act or Omission

• The action is for injury to person or property or for wrongful death, and it arises out of an act or omission committed in the state (a local act)

• There is personal jurisdiction even if the injury takes place outside the state.

Example 2: Harry buys a product that was manufactured in North Carolina. It blows up and injures Harry in Texas. There is jurisdiction over the defendant in North Carolina if Harry brings suit there. Nothing else is needed.

Editor's Note 1: The Professor misspoke in the above example regarding the parties. The issue is whether the NC court has jurisdiction over the defendant manufacturer when the injury occurred in Texas. The answer is yes because the negligent act occurred when the product was manufactured in NC.


Torts—Local Injury; Foreign Act

• The action is for wrongful death or injury to person or property that occurred in the state and the action arises out of an act or omission committed outside the state

• State courts have personal jurisdiction if at the time of the injury:

o The defendant solicited or carried on services _________________ the state; o Products, materials, or things processed, serviced, or manufactured by the

defendant were used or consumed within the state in the __________________ ____________________________________; OR

o The defendant sent unsolicited bulk commercial e-mail into or __________________ the state illegally or in violation of the e-mail service provider’s policies.

Example 3: Sally buys a product in Tennessee and brings it to her home in North Carolina. The product explodes and injures Sally. Does the fact that she has been injured by a product in North Carolina give rise to jurisdiction over the defendant? No. She needs to show other activity by the defendant within North Carolina in order to come within the long-arm statute.

Contracts—Local Services, Goods, or Contracts

• State courts have personal jurisdiction over actions that:

i) Arise out of a promise by the defendant to perform services or to pay for services to be performed _____________________ the state (regardless of where the promise was made);

ii) Arise out of services actually performed _______________________ the state by or for the defendant;

iii) Arise out of a promise by the defendant to deliver or receive _______________ the state, or ship from the state goods, documents of title, or other things of value (regardless of where the promise was made);

iv) Relate to goods, documents of title, or other things of value shipped from the state by the plaintiff to the defendant; or

v) Relate to goods, documents of title, or other things of value actually received by the plaintiff in the state from the defendant through a carrier without regard to where delivery to the carrier occurred.

Note 2: Ask whether anything that is in the contract took place in NC (performance, delivery, shipment). Keep in mind that a contract that is merely made within the state does not give rise to jurisdiction on its own.

Example 4: Two businesswomen from New York sign a contract at RDU. Everything in the contract occurs in New York. Does North Carolina have


jurisdiction? No. Even though the contract was entered into in North Carolina, there is no jurisdiction in North Carolina because no part of the contract takes place in North Carolina.

Local Property—North Carolina courts have jurisdiction over claims that arise out of:

i) A promise made by the defendant regarding the ownership, control, or possession of property ___________________ the state, regardless of where the promise is made;

Example 5: Two people in Tennessee make a contract concerning real estate in North Carolina. There is jurisdiction over the defendant.

ii) A claim to recover a benefit derived by the defendant through the use, ownership, control, or possession of tangible property located ____________________ the state;

iii) A claim that the defendant return, restore, or account to the plaintiff for property that was within the state when the defendant obtained possession or control of it.

Note 3: If a matter relates to property (real and tangible) within the state, the Long-Arm Statute gives rise to jurisdiction.

Example 6: A Texas insurance broker, with no other ties to North Carolina, promises to provide insurance coverage for property within North Carolina but fails to do so. Does North Carolina have jurisdiction? Yes. There is jurisdiction over the Texas broker for the breach of that promise because it regards real property located in North Carolina.

Director or Officer of a Domestic Corporation—North Carolina courts have in personam jurisdiction over a defendant who is or was an officer or director of a domestic corporation, when the action arose out of:

i) The defendant’s conduct as an officer or director, or

ii) The corporation’s conduct while the defendant was an officer or director.

Insurance or Insurers—North Carolina courts have in personam jurisdiction over a defendant when the action arises out of an insurance contract, regardless of where the contract was entered into, if:

i) The plaintiff was a resident of North Carolina when the event occurred out of which the claim arose; or

ii) The event giving rise to the claim occurred in North Carolina, regardless of where the plaintiff resided.


Marital Relationship—North Carolina courts have in personam jurisdiction over an action that arises out of a marital relationship within the state, even if the defendant no longer resides in the state.

Example 7: Harry and Sally are married in North Carolina. Harry runs off to Florida. North Carolina still has personal jurisdiction over Harry in actions regarding the marriage, including an action for divorce.

2. Jurisdiction over Things

o North Carolina can exercise in rem or quasi-in-rem jurisdiction in certain actions:

Real Property Located in the State Divorce or Annulment Attachment of Property

o “Catch-all”—North Carolina courts also have in rem or quasi-in-rem jurisdiction in any other action in which such jurisdiction may be constitutionally exercised.

3. Appealabilty of denial of motion to dismiss for lack of personal jurisdiction

Unlike in federal court, the denial of a motion to dismiss for lack of personal jurisdiction is immediately appealable in North Carolina.

SERVICE OF PROCESS AND VENUE

Exam Tip 2: Service in North Carolina is different and more complex than the federal rule and is frequently tested.

A. Service of Process

1. Time Period for Service

o Service of process must be made within ________ days after the clerk issues the summons. o Summons—formal process that requires the defendant to respond

Note 4: North Carolina rule is 60 days, not the 90 days allowed under the Federal Rules of Civil Procedure.

2. Extension of Time for Service

a. A & P summons

If a defendant in a civil action is not served within the 60 days, the action may be _____________________________ by obtaining one of the following:

• An endorsement from the clerk; or • An alias or pluries summons (“A&P” summons)

These methods of extension may be used interchangeably, regardless of the form of the preceding extension.


There may be multiple extensions

Note 5: Either form of extension must be secured within _______ days of the original summons or last extension.

ALSO: If the defendant is served outside of the United States, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least once every two years.

Example 8: Selena files an action against Justin within the appropriate statute of limitations. But Selena is unable to serve Justin, slippery devil that he is, within the 60 days as required under the North Carolina rule. May Selena get an extension of the time to serve Justin? Yes, by getting an A & P summons or an endorsement from the clerk, but she must do so within 90 days of the original summons or last extension.

b. Discontinuance of action if no extension

If there is no extension, the action is discontinued as to any defendant not yet served with the summons.

The action may be _____________________ by an alias or pluries summons or by an endorsement by the clerk, but the action is deemed to have commenced on the date of the issuance or endorsement.

Note 6: This means it does not relate back to the original filing date for statute of limitations purposes.

3. Who Can Serve Process

a. Within the state

The sheriff of the county in which service is to be made or some other person authorized by law to serve a summons

If a summons is returned unexecuted, it may be served by anyone who is at least 21 years old, not a ______________ to the action, and _____________________________ by blood or marriage to a party to the action or to a person upon whom service is to be made.

b. Outside the state

Anyone who is ________ a party and at least _______ years old or anyone duly authorized to serve summons by the law of the place where service is to be made.

4. Method of Service

a. Individuals

Personal service on an individual in North Carolina can be achieved by:

1) Delivering a copy of the summons and complaint to the defendant;


2) Leaving the summons and complaint at the defendant’s home or usual place of abode with a person of suitable age and discretion that ____________________ there;

3) Delivering the summons and complaint to an _____________ of the defendant that is authorized by the defendant or by law to be served.

4) ___________________ a copy of the summons and complaint, by registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee;

5) Depositing a copy of the summons and complaint with a designated delivery service, addressed to the party to be served, delivering to the addressee, and obtaining a delivery ___________________ (which includes an electronic or facsimile receipt); or

6) Mailing a copy of the summons and complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.

Note 7: If the defendant lives in an apartment building, service must be made to the defendant's apartment; it cannot be left in a common area.

b. Minors and Incompetents

When the defendant is a minor or an incompetent, process must be served on the minor or incompetent by any of the methods listed above for an _______________________.

In addition, a parent or guardian must be served using the same methods. Corporations

Service upon a domestic or foreign corporation may be effected by:

1) Delivering a copy of the summons and complaint to an officer, director, or managing agent of the corporation;

2) Leaving copies of the summons and complaint in the office of an officer, director, or managing agent, with a person who is apparently ____________________________ of the office;

3) Delivering a copy of the summons and complaint to an _______________ authorized by appointment or by law to be served, or by serving process upon the agent in a manner specified by statute;

4) _____________________ a copy of the summons and complaint, by registered or certified mail, return receipt requested, addressed to the officer, director, or agent to be served; or


5) Depositing a copy of the summons and complaint with a designated delivery service, addressed to the officer, director, or agent to be served, delivering to the addressee, and obtaining a delivery receipt.

o Every corporation must keep on file with the Secretary of State the name and address of a registered agent on whom process may be served.

If a registered agent is not appointed or cannot be found, then process can be served by leaving a copy with the ________________________________________________, who then must transmit the process to the corporation.

Serving an employee is not sufficient for good service on the corporation.

Example 9: If you want to sue Coco-Cola, you cannot serve the driver of one of Coca-Cola’s delivery trucks.

c. Partnership

Similar to serving a corporation except must serve a general partner (rather than an officer, director, or managing agent)

Does not allow for delivery to a designated delivery service or to the secretary of state

d. Unincorporated association

Similar to serving a corporation and can also serve a member of the governing body Does not allow for delivery to the secretary of state (these associations are not

registered) Quick Summary—Entities

1) Who Can Be Served?

• Corporations—an officer, director or managing agent; • Partnerships—a general partner; • Unincorporated associations—an officer, director, managing agent, or member of

the governing body

2) How can a corporation, partnership, or unincorporated association be served?

• Delivering a copy to one of the persons noted above; • Registered or certified mail to one of the persons noted above; • Leaving it with a person apparently in charge of the office of one of the persons

noted above; or • Depositing it with a designated delivery service addressed to one of the persons

noted above.


e. Service on non-resident motorists

Accomplished by delivering a copy to the commissioner of motor vehicles (along with a fee of $10.00), and mailing a copy by certified or registered mail, return-receipt requested, to the defendant

Service by publication on a party that cannot otherwise be served Limited to circumstances when the party cannot be found through

___________________________________________ Effect of Service of Process

o Service of process, rather than commencement of the action, begins the 30-day time period for the defendant to file a responsive pleading with the court.

B. Venue

• Venue concerns which court among the courts that have personal and subject matter jurisdiction is the proper __________________ for hearing the matter.

• Venue requirements are statutory. • A defendant must raise improper venue by a motion to dismiss (or through an answer), or the

objection will be ________________________ (the same is true for failing to raise a personal jurisdiction challenge)

1. General Venue Rule

o North Carolina: an action must be brought in the county in which the plaintiffs or defendants, or any of them, reside at the commencement of the suit, or if none of the defendants reside in the state, then in the county where any ________________________ resides.

o If none of the parties ____________________ in North Carolina, venue is proper in any county that the _______________________ designates.

o The residence of a North Carolina ___________________________________, limited partnership, LLC, or registered LLP is the county in which:

It is registered or principal office is located; or It maintains a place of business.

Example 10: If Harry's Bar & Grill is located in 18 counties within the state of North Carolina, venue can be in any of those 18 counties, even if the action did not arise from that particular facility.

Note 8: Venue in North Carolina in most cases is not proper based solely on the location where the _______________________________________ arose.

Example 11: Roy W. is from Orange County and Mike K. is from Durham County. When they are at the ACC Tournament in Guilford County they get into an automobile accident. Where is venue proper? In Orange County where Roy


W. resides? ________. In Durham County where Mike K. resides? ________. In Guilford County? _________, although that is where the cause of action arose.

2. Special Venue Rules

Exam Tip 3: These special venue rules are not commonly tested.

For a civil action concerning real property, or for the recovery of personal property when recovery of the property itself is the primary relief sought, venue lies in the county where the ______________________ of the action is located.

Change of Venue

a. Transfer of Venue—Basic rule

The court may change the venue if the county in which suit was brought is not __________________, or the convenience of witnesses and the ends of justice would be promoted by the change.

b. Appeal

Generally, an order _________________________ a change of venue, or an order denying a change of venue based on convenience, is interlocutory and __________ immediately appealable.

However, an order denying a motion for change of venue as of right (based on a statute) ____________ immediately appealable because it affects a substantial right.

PLEADING

A. Complaint

• The complaint is the initial pleading in an action filed by the plaintiff, and it serves as notice to the opposing party.

• In North Carolina, it must contain:

o A short and plain statement of the claim sufficiently ______________________________ to give the court and the parties notice of the transaction(s) or occurrence(s) intended to be proved, showing that the plaintiff is entitled to relief; and

o A demand for judgment for _______________ to which the plaintiff believes she is entitled.

Several different types of relief may be demanded (pleaded in the alternative).

Note 9: North Carolina does not require that "plausibility" be demonstrated. But, unlike the federal rule, the North Carolina statute requires that the pleading be "sufficiently particular." This suggests a level of detail above pure notice.

Exam Tip 4: On the exam, when analyzing whether a pleading meets the North Carolina requirements, use the buzz words "sufficiently particular."


• DO NOT PLEAD SPECIFIC DAMAGE AMOUNTS

o If a plaintiff seeks recovery that exceeds $25,000 in a _________________________ action, then the complaint may not state the ________________________ of damages sought, but it must state that the relief demanded is for damages “in excess of $25,000.”

Editor's Note 2: Professor Marshall misspoke here. This statutory amount was recently changed from $10,000 to $25,000. The correct amount is now $25,000.

The defendant may request a written statement of the monetary relief sought. The court can dismiss with prejudice for a plaintiff's noncompliant statement of

damages sought.

1. Pleading Special Matters

Like the federal rules, North Carolina has matters that must be pleaded with specificity.

a. Fraud

Special Damages (Unexpected Damages)

Example 12: In a car accident case, you would expect damages to property or injury to a person. But, if the car accident prevents someone from going to an appointment, the resulting damages from missing the appointment would be “special damages” that must be specifically pleaded. Again, do NOT plead specific amounts.

b. Libel Cases

c. Medical Malpractice

d. Punitive Damages

Justification for a demand for punitive damages must be specifically stated, except for the ________________________ actually sought

2. Good Faith Pleading Requirement

o The attorney must certify that the pleading is not being filed for any improper purpose, such as to harass or to cause unnecessary delay.

B. Commencement

1. Manner

o A civil action is commenced by ___________________ a complaint with the court. o Commencement tolls the statute of limitations, even though the defendant may not yet be

aware of the lawsuit because service of process has not yet occurred.


o However, a summons must be issued within _____________ days of the filing date of the complaint in order to toll the statute of limitations, even if service does not occur until much later

Note 10: North Carolina also has a process by which an action may be commenced without filing a complaint if the plaintiff requests and is granted permission to file the complaint within 20 days.

2. Time Computation

a. General rule

The North Carolina rule is like the federal rule.

Exam Tip 5: This is often tested.

When a time period is computed in days, the period excludes the day of the event that triggers the period.

It includes the last day of the period unless it is a Saturday, Sunday or legal holiday. In that case, the last day is the next non-weekend or non-holiday day.

Example 13: Kanye was harmed by Kim during a Fourth of July celebration in 2015 and the statute of limitations is three years. Kanye can file his action as late as the next day, July 5, 2018, because the last day of the limitation period fell on a holiday (4th of July).

Motions and affidavits A written motion and notice of a hearing must be served not later than

_________________________ before the time specified for the hearing, unless (i) the motion can be heard ex parte, (ii) the Rules provide for it, or (iii) the court orders otherwise.

b. Additional time after service by mail

When the Rules provide a time period for responding to a service or filing, and the service or filing is made by mail, _____________________ are added to the prescribed period.

C. Defendant’s Response to Suit

1. Timing

o Once served with the summons and complaint, the defendant must respond within ___________ days after service.

Note 11: A response is due 30 days after ______________________, not 30 days after filing.

o Service of a pre-answer motion alters the period of time for a responsive pleading as follows, unless a different time is fixed by order of the court:


The responsive pleading must be served within _________ days after notice of the court’s action in ruling on the motion or postponing its disposition until the trial on the merits;

Example 14: If a party moves to dismiss prior to filing an answer and loses on the motion, the party has 20 days from that point to respond to the complaint.

2. Responsive Pleadings

a. In general

A defendant has two principal options within the 30-day period following service:

1) Serve a ______________________ under Rule 12(b); or

2) Serve an ____________________ to the complaint.

Note 12: The defendant is required to _______________ (not file) the motion or answer within the 30-day period.

b. Service of responsive pleadings

Documents after the original complaint do not have to be served by a sheriff or other officer.

The defendant or the defendant’s attorney may serve the documents directly on the plaintiff’s counsel of record by delivery to the plaintiff’s counsel or by mailing them to the plaintiff’s counsel.

If no attorney has filed a written appearance for a party, service is made on the party.

Exam Tip 6: Note that service by mail is complete when the document is _________________________ at a post office or official depository with postage paid and the proper address. This means that the defendant meets the deadline by ________________________ her responsive pleading on the due date—it does not have to be received by the plaintiff by the due date. This is a favorite issue for bar examiners.

c. Motions to dismiss and waivability

North Carolina Rule 12(b) setting forth grounds for motions to dismiss has the same categories as the federal rule.

Exam Tip 7: Rule 12(b) motions to dismiss are among the most frequently tested issues on the bar.

Exam Tip 8: The defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process are WAIVED if not immediately raised by a defendant by motion or answer. The defenses of lack of subject jurisdiction, failure to state a claim, or failure to join a necessary party are not waived.

Motion to dismiss—Failure to State a Claim


a) Offering a ___________________________________ that the state does not recognize

Example 15: Jim Carrey sues Emma Stone because she refused to go out with him on a date. That files to state a claim because North Carolina does not recognize legal liability for turning someone down on a date.

b) Alleging insufficient _______________ to support a cognizable claim

Example 16: Harry sues his landlord claiming that the landlord did not properly remove ice from the sidewalk and Harry has a broken arm. Harry did not allege sufficient facts indicating that the landlord’s negligence caused Harry to break his arm. He has failed to state a claim upon which relief can be granted.

Note 13: While a motion under 12(b)(6) is pending, a plaintiff has an unconditional right to ________________ her pleading. However, once a dismissal is entered, plaintiff’s right to amend is terminated.

Denial of a Rule 12 motion gives the defendant days 20 days to answer the complaint and not the original 30.

THE ANSWER AND STATUTES OF LIMITATIONS

A. The Answer

• A pleading by the defendant that responds to a plaintiff’s complaint

o Also filed if responding to a defendant’s __________________________________

• The time for answering a complaint is ___________ days.

o But if the defendant makes a motion to dismiss and the motion is denied, the defendant must then serve an answer to the complaint within _________ days of notice of the denial.

1. Affirmative Defenses ("Yes, But…")

o Not the same as a denial o The pleading must contain a short and plain statement of any affirmative defense

sufficiently particular to give the court and the parties ___________________ of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.

o Rule 8 is a non-exclusive list of affirmative defenses that must be raised in the answer

Example 17: Assumption of risk and contributory negligence are affirmative defenses that must be raised as such in the defendant's answer to a torts claim.

Exam Tip 9: Statute of limitations is an affirmative defense that is commonly tested on the bar exam.


B. Statute of Limitations

• Statutes of limitations are specific time periods within which legal claims must be brought. • The limitations period under the statute of limitations for a claim begins to run when the claim

for relief _____________________. • The legal action must be commenced before the limitations period expires (the period may be

tolled or extended, as discussed below), or the claim will be ___________________________ by law.

• Key North Carolina statutes of limitations to know:

o Contract actions—______________ years o Breach of sales contract under the UCC—Four years o Negligence actions—________________ years o Actions for assault, battery, or false imprisonment—________________ years o Wrongful death actions—Two years o Libel and slander actions—One year o Claims against North Carolina counties, cities, and towns—Two years (contract claims) o Tort of intentional infliction of emotional distress—________________ years o Fraud or mistake—_______________ years o Adverse possession—20 years (Seven years if the possessor has color of title)

Exam Tip 10: It may help to think of _________________________ as the general rule. Then think of the other provisions as deviations from the general rule. Think UP one year for UCC (4 years). Think DOWN one year for wrongful DEATH (2 years). Then think of libel as the disfavored child who only gets ___________________. And finally because adverse possession takes a long time anyway, the limit is 20 years.

1. Accrual (When does the period begin to run?)

o Generally, claim accrues at the time a plaintiff’s right to sue is complete.

Example 18: If the plaintiff is involved in a car accident, claim accrues on the date of the car accident.

o North Carolina “discovery rule”

Claim for ______________________________ accrues when the plaintiff knows or reasonably should have known that he has been harmed.

No cause of action may accrue more than __________________________ from the defendant’s last act that gave rise to a claim for relief.

Example 19: Through no fault of his own, Charlie does not realize that he has been hit by a BB pellet fired by Wayne. The BB is embedded in Charlie's body years after the shooting occurred. The claim for negligence accrues when Charlie learned or reasonably should have learned that he was harmed by the BB pellet.


Editor's Note 3: The Professor misspoke regarding the parties in the above example. Charlie was hit by a BB pellet fired by Wayne.

Discovery rule in professional malpractice actions

• Generally, _______________-year statute of limitations • Accrues at the time of the defendant’s last act that gives rise to the cause of action

Example 20: If the injury was caused by surgery, the cause of action arises at the time of surgery under the general rule.

o However, if injury is not readily apparent at the time of its origin, and o Damage is discovered or reasonably should be discovered ____________ or

more years after the defendant’s last act o Claimant has __________ year from the date that the injury is discovered to file

suit.

• A defendant cannot be sued more than _______________ years from the defendant’s last act.

o Exception: If the injury is caused by a foreign object that was negligently left in the plaintiff’s body by a professional, the plaintiff must still file suit within one year after discovery, but has up to __________ years after the defendant’s last negligent act to bring a cause of action.

2. Tolling (Statute is not running for a particular period)

a. Incapacity

Time period suspended if the plaintiff is under age __________, insane, or incompetent when the cause of action accrues.

Plaintiff may bring a cause of action within the appropriate limitations period ______________ the disability is removed.

Example 21: If the plaintiff is 17 at the time the action accrues, the statute of limitations does not begin to run until she turns 18.

b. Outside North Carolina jurisdiction

If a person is outside the personal jurisdiction of North Carolina courts when an action accrues against her, the action may be commenced within the time prescribed after her return.

If after the accrual she departs from and resides out of the state, or remains continuously absent for one year, the time of her absence is not counted against the limitation period for commencement of the action.


Example 22: If the defendant leaves the state one month after an action with a three year of statute of limitations, and she then returns to the state one year later, the plaintiff still has two years and 11 months in which to file the action.

c. Death of the plaintiff

If the plaintiff dies before the limitations period has expired and the claim is one that survives death, the plaintiff’s personal representative has ________________________ from the plaintiff’s death to commence the action.

d. Death of the defendant

If the defendant dies before the expiration of the time limit for its commencement, and the cause of action survives, an action may be commenced against the decedent’s personal representative if brought within the time specified for the presentation of claims against a decedent under North Carolina law.

But no actions are allowed if the estate has been settled.

C. Statutes of Repose

• Begins to run when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.

Note 14: The running of the statutory period can prevent a plaintiff’s claim even __________________ his cause of action accrues.

• If a plaintiff does not file before the specified period of time has run, the defendant has a vested right not to be sued.

1. Actions for Damages to Property

o Actions to recover damages arising out of the defective or unsafe condition of an improvement to real property, against persons who performed or furnished design, planning, supervision, or construction of the improvements, must be brought within _____________________________ of the _______________ of:

i) Defendant’s specific last act or omission giving rise to the cause of action, or

ii) Substantial completion of the improvement.

Example 23: Seven years after the contractor worked on a tenant's roof, the roof collapsed. The tenant cannot sue the contractor if the tenant is injured by the collapse, but the tenant can sue the owner. This is because the owner is not protected by the statute of repose.

o This limitation period does not apply to a person in possession or control of property as an ___________________.


2. Action for Damages Based on Product Defect

o Actions for recovery of damages for personal injury, death, or damage to property based on an alleged product defect must be brought within ______________________ after the initial ______________________ of the product for use or consumption.

Example 24: You buy a Coke bottle and keep it in your fridge for 13 years. It explodes. A claim based on product defect cannot be brought because it is outside the statute of repose.

D. Amendments to Pleadings

Exam Tip 11: Amendments are another popular area of testing.

1. By right

o A party may amend a pleading once as a matter of course before a responsive pleading is served.

o If no responsive pleading is required and the action has not been placed on the trial calendar, a party can amend within _________ days after the pleading was served.

o Otherwise, a party must seek leave of court or written consent of the adverse party to amend.

Note 15: Because a motion to dismiss under Rule 12 is not a _________________________ pleading, a plaintiff retains the right to amend the complaint by right if such a motion is made.

2. By leave of court

o A court should ____________________ give leave to amend a pleading when justice so requires.

o Amendment will generally be permitted, unless the amendment would result in undue prejudice to the opposing party.

Note 16: Prejudice means harm to the defendant's ability to mount a defense, not exposure to liability.

3. Relation back

o For statute of limitations purposes, the time an amended claim is deemed to be filed relates back to the date original pleading was _____________ unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved.

Note 17: Unlike the federal rules, North Carolina does not allow relation back to be used to add or change a party. It only allows relation back be used to add a ___________________________ against an existing party.

Example 25: Sheila is rammed by a delivery truck driven by John. She sues John for negligence but after the three-year statute of limitations has run, she seeks to amend her complaint to add a count of assault against John. The


amendment would likely relate back because the original count gave notice of the occurrence involved. But, if Sheila were to add John's employer as a new party, that would not relate back because it involves a new party.

4. Amendments to conform to the evidence

o A pleading may be amended during or after trial to conform to the evidence and to reflect an issue actually tried by the express or implied ____________________ of the parties.

Example 26: Sheila is litigating a negligence claim against John. She then introduces evidence that John intentionally harmed her (rather than negligently). If there is no objection to the evidence, Sheila would be allowed to amend the pleading to include the intentional claim.

MULTIPLE CLAIMS AND PARTIES; DISCOVERY

A. Multiple Claims and Parties

Note 18: North Carolina joinder rules are substantially the same as the federal rules. There are three rules with some differences of note: Rule 13 (counterclaims), Rule 19 (compulsory joinder), and Rule 23 (class actions).

1. Counterclaims

o A party that fails to assert a compulsory counterclaim waives the right to sue on the claim. o North Carolina: Rule 13 allows a court to permit a party to amend a pleading to add a

counterclaim if it was omitted through oversight, inadvertence, or excusable neglect if justice so requires.

o Federal: Similar rule but under Rule 15

2. Compulsory Joinder of Parties

o North Carolina: Rule 19 is similar to the federal rule, but uses the term “united in interest” as the standard for when a party must be joined.

3. Class Actions

o North Carolina: The key difference between the federal rule concerns the prerequisites for maintaining the class.

a. North Carolina Prerequisites

1) The named representatives must establish that they will fairly and adequately represent the interests of all members of the class;

2) There must be no __________________________________________ between the named representatives and members of the class;

3) The named representatives must have a genuine personal interest in the outcome of the case;


4) Class representatives within North Carolina will adequately represent members outside the State;

5) Class members are so numerous that it is impractical to bring them all before court; and

6) Adequate notice must be given to all members of the class.

B. DISCOVERY

Note 19: North Carolina discovery rules substantially parallel the federal rules and much of it is highly technical and not generally tested in the bar. The section below highlights those parts of the rule that differ from the federal rule and that might be tested.

1. In General

o Unlike in the federal courts, there is no mandatory discovery or disclosure in North Carolina, except:

The parties must disclose the identity of those persons who might testify as expert witnesses.

Disclosure of the expert’s report is optional.

o There is also no mandatory discovery conference or creation of a discovery plan. o Discovery in North Carolina will occur only upon the initiative of a party to the case and is

generally conducted _____________________________ the oversight of the court.

The court gets involved only if there is a dispute about the _______________ of discovery, as when a party seeks a protective order to limit discovery.

o A party can also apply to the court to ___________________ discovery. o The parties may, by written stipulation, vary any of the discovery provisions of the North

Carolina Rules of Civil Procedure, unless otherwise ordered by a court. o The trial court has expansive discretion in managing discovery and can only be reversed for

abuse of discretion.

2. Oral Depositions

o Unlike the federal rules, there is ________________________ on the number of depositions that a party can take under the North Carolina Rules of Civil Procedure.

o Depositions can be taken of parties and non-parties. o Subpoenas can be used to require ______________________________ to provide

documents or other materials.

a. When an Oral Deposition May Be Taken

A party may take the deposition any time ________________ the action commences. Leave of court is not generally required to take the deposition.


• Leave is required if the plaintiff seeks to take a deposition within 30 days after service of the summons and complaint on any defendant.

Editor's Note 4: While generally leave of court is not required to take a deposition, the plaintiff must obtain leave of court if the defendant has not had 30 days after the service of the summons and complaint.

• However, a plaintiff does not need to obtain leave of court within that 30-day period if the person to be deposed is:

o About to leave the county where the action is pending; o About to leave the United States; or o Bound on a voyage to sea.

b. Notice of deposition

A party who seeks an oral deposition of a person must give written notice to every other _____________________.

______________________ of a deposition is all that is needed to compel attendance by any _______________

However, to compel attendance by a ______________________, a subpoena must be served.

c. Place of deposition

A North Carolina resident may be required to attend a deposition only in the county in which she resides, is employed, or transacts her business in person.

d. Subpoenas

Attendance of Witnesses—A subpoena commands each person to whom it is directed to attend and give testimony at a specified time and place.

Production of Documents—A subpoena may also require production of documents. Issuance—A subpoena issues from the court in which the action is pending. Service—A subpoena may be served by any person who is not a _________________

and is not less than _________ years of age. Objection; Motion to Quash

• A person may move to quash or modify the subpoena on any of the following grounds:

o The subpoena fails to allow reasonable time for compliance; o The subpoena requires disclosure of privileged or protected matter; o The subpoena subjects the person to an undue burden or

_____________________; o The subpoena is otherwise unreasonable or oppressive; or o The subpoena is procedurally defective.


• If an objection is made to the subpoena, the party serving it may not compel the appearance or production of materials unless the court so orders.

Failure by any person without adequate excuse to obey a subpoena served on her may be deemed a __________________________ of court.

Failure to attend a deposition If a _______________ fails to attend or proceed with a deposition after being properly

noticed, the party is subject to a court order requiring payment of reasonable expenses to the other parties, including attorney’s fees.

3. Interrogatories

o In North Carolina, a party may serve no more than _____________ written interrogatories, in one or more sets, without leave of court.

o Interrogatory parts and subparts are counted as separate interrogatories.

4. Use of Depositions at Trial

o Depositions may be used against a party for the following purposes:

1) To contradict or impeach the testimony of the deponent as a witness;

2) As substantive evidence by any party adverse to the party who called the deponent as a witness;

3) As substantive evidence of facts stated in the deposition that are in conflict with or inconsistent with the testimony of the deponent as a witness, by the party who called the witness;

4) For any purpose, if the deposition was of a party, a party’s officer, director, managing agent, or designated deponent of a party, and is used by an adverse party, regardless of whether the deponent testifies.

o In addition, a party may use the deposition of a witness, whether or not a party, for __________ purpose, if the court finds that:

1) The witness is _______________________________;

2) The witness is more than _____________ miles from the place of trial or is outside of the United States, unless it appears that the party offering the deposition procured the witness’s absence;

3) The witness cannot attend or testify because of _________, illness, infirmity, or imprisonment;

4) The party offering the deposition could not procure the witness’s attendance by subpoena; or


5) On application and notice, exceptional circumstances make it desirable in the interest of justice to permit the deposition to be used.

5. Objections to admissibility of depositions

o Can object to the admission of deposition testimony on the same grounds as if the deponent was testifying at the hearing or trial

6. Scope, Limits, and Enforcement of Discovery

Note 20: North Carolina is substantially the same as the federal rules regarding the scope, limits, and enforcement of discovery.

o Discovery can be limited if:

It is unreasonably _________________________________ or burdensome; The party seeking discovery has had ample opportunity to obtain the; or The discovery is unduly burdensome or expensive, taking into account the parties’

resources.

7. Insurance Agreements

o North Carolina allows discovery on whether the other party may have liability insurance o The existence and contents of an insurance policy is discoverable in a case against the

insured. o However, the policy will not necessarily be admissible at trial.

8. Protective Orders

o The court may, for good cause, enter orders to protect parties and other persons from unreasonable annoyance, embarrassment, oppression, or undue burden or expense resulting from discovery.

o The trial court has broad discretion in whether to issue a protective order and review will be for abuse of discretion

PRETRIAL AND TRIAL

A. Pretrial Disposition

1. Motion to Dismiss—as previously discussed

2. Motion for Judgment on the Pleadings

o A motion for judgment on the pleadings can be made when there are no ____________ _____________________________ by the parties, such as when a defendant’s answer admits all the facts in the plaintiff’s complaint.

Note 21: If any matter outside the pleadings is raised or considered, then the motion should be treated as a motion for summary judgment. For a motion for judgment on the pleadings, the court looks only to the pleadings.


3. Dismissal

Exam Tip 12: This is frequently tested on the bar—particularly voluntary dismissals.

a. Voluntary

1) By the plaintiff or by stipulation of the parties

• A ___________________________ may dismiss an action ____________________ leave of court by filing a notice of dismissal at any time before the plaintiff rests her case or by filing a stipulation of dismissal signed by all parties who have appeared in the action.

• Unless otherwise stated in the notice or stipulation, the voluntary dismissal is _____________________ prejudice (i.e., can be brought again).

o If, however, a plaintiff dismissed a prior action based on the same claim, the dismissal is ______________ prejudice. (Two bites of the apple, not three)

• A plaintiff may not voluntarily dismiss without prejudice if the defendant has counterclaimed on a matter that arose out of the same _________________________________ as the original claim.

• A plaintiff who voluntarily dismisses an action or claim is taxed with the costs of the action unless it was brought in forma pauperis.

2) By court order

• Except as provided above, an action may be dismissed at the plaintiff’s request only by the court, on terms that the court considers proper.

• Any voluntary dismissal by court order is _______________________ prejudice, unless the order states otherwise.

3) New action

• If the original action was _________________ filed, the plaintiff will have __________________________ to commence a new action based on the same claim, unless a shorter time is set forth by stipulation of the court.

• But the refiled action does not extend the statute of limitations to other causes of action added to the refiled claim

Note 22: The plaintiff gets the longer of the original statute of limitations or the one-year extension.

Example 27: Nick files an action one month before the statute of limitations expires. He then voluntarily dismisses his case. Can he refile later after the statute of limitations expires? Yes, he gets another year to file.

Example 28: Nick files an action two years before the statute of limitations expires. He voluntarily dismisses that action six months later. He then files his


action fourteen months after that. Can he refile more than one year later? Yes, he is still within the original statute of limitations.

b. Involuntary

A defendant may move to dismiss any claim or action against it and a court may on its own motion dismiss any plaintiff’s claim or action.

The court may dismiss the plaintiff’s action for failure of the plaintiff to prosecute or to comply with the rules or any order of court.

• Mere passage of time alone, however, does not justify dismissal for failure to prosecute

Unless the court’s dismissal order specifies otherwise, an involuntary dismissal is ______________ prejudice and operates as an adjudication on the merits.

• However, a dismissal based on a lack of jurisdiction, improper _________________, or failure to join an indispensable party under Rule 19, does not operate as an adjudication on the merits.

4. Default

Exam Tip 13: This issue often appears on the exam.

o When a defendant has failed to plead or otherwise defend an action, the defendant may be subject to a default.

o The default process occurs in two stages: (i) entry of default and (ii) judgment by default. o The two stages may be pursued at one time and a court may hear them together.

a. Default—Stage I

When a party has failed to plead or otherwise defend an action and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default.

The plaintiff must also file an affidavit or present other evidence establishing personal jurisdiction over the defendant if the defendant has failed to appear in the action.

b. Judgment by default—Stage II

Judgment by default determines the __________________ to which the plaintiff is entitled based on the liability established by the default.

If the damages are liquidated (i.e., a sum certain) and the default is based on failure to appear, the _________________________________________ may enter the judgment for the appropriate amount.

If the damages are not liquidated, or if the plaintiff is seeking relief other than damages, such as equitable relief or declaratory relief, the court must hold a ________________________ on assessment of damages.


• If the defendant has ____________________________ in the action, the defendant must receive at least three days’ notice of the hearing.

• Both the plaintiff and defendant can introduce evidence at this hearing.

A judgment by default ____________________ be different in kind than that asked for in the demand for judgment.

Note 23: A defendant can appear without formally filing an answer.

c. Relief from default

A court may set aside an ___________________ of default on a showing of good cause.

• What constitutes "good cause" rests within the discretion of the trial judge and will not be disturbed absent an abuse of discretion.

If there has been a __________________________ by default, however, the defaulted party must show mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, misrepresentation, or misconduct by an opposing party.

5. Summary Judgment

a. Standard

North Carolina follows the federal standard that a motion for summary judgment should be granted if there is _____________________________________ as to any material fact and that any party is entitled to judgment as a matter of law.

Note 24: Summary judgment, when appropriate, may be rendered against the moving party (and in favor of the non-moving party) in North Carolina.

Example 29: If A comes into court and asks for a summary judgment, the court may grant summary judgment for B.

• An issue is genuine if it is supported by ___________________________ evidence, which is that amount of relevant evidence necessary to persuade a reasonable mind to accept a conclusion.

b. Time for making motion

A ______________________ may move for summary judgment on all or part of the claim at any time after 30 days have passed from commencement of the action, or after the opposing party serves a motion for summary judgment.

A _____________________________ may move at any time for summary judgment on all or part of a claim.

The non-moving party must be served with the motion at least _______ days before a hearing, and must serve a response at least two days before the hearing.


c. Evidence

In deciding a motion for summary judgment, the court may consider affidavits, pleadings, deposition transcripts, interrogatory answers, admissions, and stipulations filed by the party, so long as the facts contained in the submissions are ________________________ at trial.

Supporting and opposing affidavits must be made on ______________________ knowledge and must establish the affiant’s competency to testify on the matters stated.

The moving party has the burden of showing that:

• (i) there is no genuine ________________ as to any material fact and • (ii) the moving party is entitled to judgment as a matter of law.

Note 25: An affidavit that states it is based “on information and belief,” _______________ be considered in a summary judgment motion because it is not based on personal knowledge.

Court may grant partial summary judgment (on one claim or issue) as well as full summary judgment.

Opposing party may not rely merely on allegations or denials in its own pleading, but must set out specific _________________ showing a genuine issue for trial.

B. Jury Trial

1. Jury Demand and Waiver

o Any party may make a demand for trial by jury. o The demand must be in writing and may be made in a pleading. o It must be served within ________________________ after service of the last pleading

directed to the issue that is sought to be tried by a jury. o A party __________________ a jury trial unless its demand is properly served and filed.

Even if a party waives a jury trial, the _____________ in its discretion may order a trial by jury of any or all issues.

2. Specification of Issues

o A party may specify the issues she wishes tried by the jury. Otherwise, the court deems the demand to be for all issues to be tried by the jury.

o If a party has demanded trial by jury for only some of the issues, then any other party may serve a demand for trial by jury of any other or all of the issues in the action.

Note 26: The trial court has wide discretion to bifurcate a trial if it will further convenience or avoid prejudice.

3. Withdrawal of Demand

o Once a demand for a jury trial is made, it may not be withdrawn, except on consent of all parties.


4. Jury Size

o In general, a jury is composed of ____________ persons. o Except when specified by statute, the number of jurors can be reduced by stipulation of the

parties.

5. Unanimity

o A verdict must be unanimous, unless the parties stipulate otherwise.

6. Qualification

o NC allows ___________ preemptory challenges, but no person can be excluded based on race

7. Jury Instructions

o At the close of __________________________ or an earlier time as directed by the court, parties may file proposed instructions for the court to give the jury.

o The court has discretion to consider requests, regardless of the time they are made.

8. Judge May Not Comment on Verdict

o The judge may not comment on any verdict in open court in the presence or hearing of any jury member.

C. Trial By The Court

• A case will be tried by the court without a jury if ___________ right to a jury trial exists or if the parties have _______________________ their rights to a jury trial.

• The _________________ is the finder of fact; it must find the facts specially and state its conclusions of law separately.

• On appeal, a court’s finding of facts will only be set aside if clearly erroneous.

D. Motion for a Directed Verdict

Note 27: In federal court, there is a motion for judgment as a matter of law. North Carolina uses directed verdict (before the case is sent to the jury) and a motion for judgment notwithstanding the verdict (after the jury gives a verdict).

• A party may make a motion for directed verdict after the close of the _________________________________ case or at the close of all the evidence.

• The motion asks the court to rule as a matter of law that there is insufficient evidence from which a jury could reasonably find for the opposing party, and that therefore the moving party is entitled to a verdict, as a matter of law.

• A directed verdict takes the case out of the jury’s hands and places it in the judge’s hands for decision.


1. Standard

o The court must view the evidence in the light most favorable to the ___________________ party and draw all reasonable inferences from the evidence in favor of the __________________________ party.

o It _________________________________ consider the credibility of witnesses or evaluate the weight of the evidence and must disregard all evidence favorable to the moving party that the jury is not required to believe.

o If reasonable persons can draw different inferences, then the issue is for the jury to decide and the motion cannot be granted.

2. Grant or Denial by the Court

o If the defendant makes the motion at the close of the plaintiff’s evidence, then the court can rule at that point in time or delay decision on the motion until the close of all the evidence.

o If the court denies the motion at the close of the plaintiff’s evidence, then the defendant proceeds with his case and can _________________ the motion at the close of ______ of the evidence.

E. Motion for Judgment Notwithstanding the Verdict (JNOV)

• No later than ____________ days after the entry of judgment, the movant may file a motion for judgment notwithstanding the verdict (JNOV).

• The standard is the same for both the motion for directed verdict and the motion for JNOV.

F. Motion for a New Trial

1. Grounds

o Jury misconduct; o Irregularities that prevented a party from having a fair trial; o Newly discovered evidence; o The jury’s disregard of the court’s instructions; o The verdict is contrary to ____________ or o Any other reasons previously recognized as grounds for a new trial.

• In general, whether a new trial is warranted rests within the sound __________________________ of the trial court.

o But the court must disregard all errors and defects that do not affect any party’s substantial rights. This is the “harmless error” rule.

• A court will not grant a new trial on the ground that a verdict is against the clear weight of the evidence unless the record shows that a jury’s verdict resulted in a miscarriage of justice.


2. Remittitur

o If the court determines that a verdict was excessive, then the court may offer a ______________________________ of the verdict, known as a remittitur.

Note 28: In North Carolina, a trial court cannot grant a remittitur without the approval of the prevailing party.

3. Timing

o A motion for new trial, or a motion to alter or amend the judgment, must be served within _______ days after the entry of judgment.

4. Order by the Court on its Own Initiative

o The court may, on its own initiative, order a new trial for any of the above reasons. o The parties must be given notice and a hearing must be held.

JUDGMENT AND APPEALS; PRECLUSION

A. In General

• Judgment under North Carolina practice is either interlocutory or the final determination of the rights of the parties.

o Generally, a ________________ judgment disposes of the cause as to all the parties and leaves nothing to be judicially determined between the parties in the trial court.

o An interlocutory order is made __________________ the action and does not dispose of the case. Further action is needed by the trial court in order to determine the entire controversy.

Example 30: A denial of a motion for summary judgment is not a final decision because further proceedings in the trial court are necessary to decide the case. A grant of a full summary judgment is final because it terminates the proceedings before the trial court.

o A judgment is “entered” when it is reduced to writing, ___________________ by the judge, and filed with the clerk of court.

o A copy of the judgment is to be served upon all other parties within _________________ days after the judgment is entered.

Note 29: Entry of judgment, as distinguished from rendition of judgment, is a critical moment under the rules because periods for the filing of certain motions are keyed to the moment of entry. A court has no authority to hear an appeal if there has been no entry of judgment. Announcement of judgment in open court is “rendering” the judgment, not the entry of judgment that is a prerequisite for appeal.


Example 31: A judge rules at the end of a case that the plaintiff wins. The judgment is not entered until six days later. The time to appeal starts only when the entry is reduced to writing and filed with the clerk of court, NOT when the judge makes the statement in open court.

B. Appeals

• Under the North Carolina Rules of Appellate Procedure, the notice of appeal required in a civil case must be filed with the superior court clerk within 30 days after _________________ of judgment, if the party is served with a copy of the judgment within three days of the judgment.

• If the party is not served with a copy of the judgment until after the three-day period, the party’s 30-day period starts upon ________________________.

Editor's Note 5: The party has 30 days from service to file the notice of appeal.

1. Final Judgment Rule

o North Carolina courts of appeals have jurisdiction over appeals from the ______________ judgments of the superior and district courts.

Note 30: A final judgment is a decision by the court on the merits that determines the action.

2. Appeal of Interlocutory Orders

a. Generally

Absent a final judgment, an order that does not dispose of all parties and claims is interlocutory (i.e., denial of a summary judgment motion).

b. With multiple claims or parties

If more than one claim is presented in a case, or if there are multiple parties, then the district court may direct entry of a final judgment as to one or more issues or parties, but only if there is “no just reason for delay.”

Example 32: The plaintiff sues two defendants on a negligence claim. The court grants summary judgment in favor of one of the defendants. Although the case is not over because the case against the second defendant has yet to be resolved, the district court may enter a final judgment with respect to the first defendant only, but only if there is no reason for delay. Conversely, the court may decide not to enter a final judgment with respect to the first defendant and may revisit its summary judgment ruling before the case against the second defendant proceeds to final judgment.

c. North Carolina’s rule for appealing interlocutory orders

North Carolina allows an appeal of an interlocutory order that does any of the following:

a) Affects a _______________________________ right;


Note 31: The interlocutory order must (1) affect a substantial right and (2) work injury if not corrected before final judgment.

Note 32: A denial of a motion to dismiss for lack of personal jurisdiction is immediately appealable because it affects a substantial right.

b) In effect, determines the action and prevents a judgment from which an appeal can be taken;

c) Discontinues the action;

d) Grants or refuses a _______________ trial; or

e) Determines a claim prosecuted under the statute which allows appeals of divorce, child custody, child support, or equitable distribution, regardless of other claims in the action.

Note 33: A denial of a certification of a class action is also immediately appealable because it affects a substantial right.

3. Mandamus Review

o Under mandamus review, a court of appeals can immediately review an order that is an _____________________ of judicial authority.

Example 33: An order beyond the trial court’s jurisdiction or an order that violates a mandatory duty of the trial court.

o Mandamus lies when the following elements are present:

1) The party seeking relief must demonstrate a clear legal _________________ to the act requested;

2) The defendant must have a legal ______________ to perform the act requested;

3) The duty must be clear and not reasonably debatable;

4) Performance of the act must be ministerial and not involve the exercise of discretion;

5) The defendant must have neglected or refused to perform the requested act, and the time for performance of the act must have expired; and

6) There is no other alternative, legally adequate remedy available.

C. Standards for Reversal

• Appellate review of legal rulings is de novo. • Factual findings by a district or superior court will only be set aside if ____________________

____________________________. • Factual findings by the jury that are reasonable and supported by _______________________

evidence must be affirmed even if it is against the ____________________ of the evidence.


• A district or superior court, however, has ____________________________ to grant a motion for a new trial if it believes that the verdict is against the weight of the evidence.

D. FULL FAITH AND CREDIT, CLAIM AND ISSUE PRECLUSION

• Claim Preclusion (Res Judicata) and Issue Preclusion (Collateral Estoppel)

Exam Tip 14: It is easy to recognize when you have a res judicata or collateral estoppel issue on an exam question because there are always two suits and the question is what effect the first suit has on the second.

Example 34: In the first suit, Tina sues Amy for negligent driving and won as the jury found that Amy was negligent and caused the accident. She (Tina) now wants to sue for something resulting from the same accident, but her theory of recovery is an intentional tort.

Claim preclusion would ask whether she would be prevented from bringing the second claim on the basis of having brought the first. If claim preclusion applies, she is barred from bringing that second claim even if she never brought it before and whether or not she wins or loses the first case.

Issue preclusion would ask whether an issue that was resolved in the first case (such as whether Amy caused the accident) could be precluded in the second suit - just the issue - whether Amy was the proximate cause of the accident.

E. Claim Preclusion (Res Judicata)

1. Elements

a. Sufficiently identical causes of action

1) The original and later-filed causes of action must be sufficiently __________________ to be barred under claim preclusion.

2) The North Carolina Supreme Court has _______________________ the scope of the transactional approach adopted by the federal courts, and has held that a plaintiff’s claim was not barred if the plaintiff sought a remedy for a separate and distinct ____________________________ act that led to a separate and distinct injury, regardless of the fact that the negligent act was part of the same transaction.

b. Sufficiently identical parties

1) For claim preclusion to apply, the claimant and the defendant must be the ____________ (and in the same roles) in both the original action and the subsequently filed action.

Note 34: Claim preclusion is limited to the parties (or those in privity). Thus, a similar action by a different party would not be precluded.


2) In North Carolina, privity generally denotes “a mutual or successive relationship to the same rights of property.”

• When a party had no control over the previous litigation and nothing in the record indicates that the party's interests were legally represented in the previous trial, there can be __________________________.

Example 35: Joey and Chandler are two very close friends. Both are passengers in a car that collides with an old taxi cab driven by Phoebe. Joey sues Phoebe for negligence but loses when the jury finds by special verdict that Phoebe was not driving negligently Chandler brings his own action against Phoebe alleging negligence from the same accident. Phoebe cannot use her win against Joey as collateral estoppel against Chandler because Joey and Chandler though presenting similar claims were not in privity.

GOOD LUCK ON THE EXAM

[END OF HANDOUT]

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