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To file a civil lawsuit, there are three requirements: - 1. subject matter jurisdiction
- Personal jurisdiction
- proper venue Subject matter jurisdiction refers to the court's power to... - hear a particular type of suit.
- Whether the court has power to hear the case. Personal jurisdiction refers to the court's power... - over the person.
- So even if the court has subject matter jurisdiction, the court will be unable to hear a case if it doesn't have personal jurisdiction. Subject matter jurisdiction cannot be conferred by... - consent, waiver, or estoppel of the parties. North Carolina has no power to enact laws that... - operate on things or people outside its territory or to enforce the laws of another state that are strictly penal in nature. The general court of justice is comprised of 3 divisions: - 1. appellate
- superior
- district The appellate division consists of the... - supreme court and court of appeals. The superior and district courts are collectively known as the... - trial divisions. Matters of probate are exclusive to the... - superior court. Matters of juvenile delinquency are exclusive to... - district court. Except for probate and juvenile delinquency, jurisdiction of justiciable matters of a civil nature is generally vested... - concurrently in the two trial divisions. The judicial requirements for district and superior court: - - District: $10,000 or less
- Superior: more than $10,
- these are no mandatory requirements
- The case can be filed in the wrong court and transferred to the other without dismissal because both courts have original jurisdiction.
- small claims actions where the amount in controversy does not exceed $5,000. The superior court has jurisdiction over (9): - 1. civil cases where the amount in controversy exceeds $10,
- Probate actions
- Civil actions where relief sought is injunctive or declaratory relief
- Proceedings involving the appointment of guardians
- imminent domain proceedings
- actions for corporate receivership
- review of decisions of administrative agencies
- all criminal actions not assigned to the district court except misdemeanors that are a lesser included charge or consolidated with a felony trial.
- actions to partition real property, quiet title and establish boundaries When does right to appeal to Supreme Court lie? (2) - 1. Cases where the defendant is convicted of first degree murder and sentenced to death AND
- Cases involving a substantial question arising under the US or NC constitution or in which there is a dissent in the court of appeals decision.
When does appeal lies of right directly to the Court of Appeals? (3) - 1. in superior court criminal actions not appealable directly to the supreme court
- from any final judgment of a superior court or district court in a civil action AND
- from an interlocutory order or judgment of a superior or district court that (a) affects a substantial right (b) determines the action and prevents a judgment from which an appeal might be taken (c) discontinues the action, and (d) grants or refuses a new trial. An interlocutory cannot be appealed unless... - it affects a substantial right of the non-prevailing party. The supreme court and courts of appeals have concurrent jurisdiction to issue (5):
- writs of mandamus
- writs of certiorari
- a writ of prohibition
- a writ of habeas corpus A writ of supersedeas is one... - commanding to halt a legal proceeding.
In personam jurisdiction gives the court power to... - award a judgment imposing personal liability on the defendant. There are 4 bases for in personam jurisdiction recognized by the US Supreme Court: - 1. in personam jurisdiction based on presence (accomplished by service)
- domicile of the defendant in the state
- consent of the defendant to be sued in the state
- minimum contacts with the state North Carolina observes the transient rule of personal jurisdiction where... - mere service of process on a non-resident within NC is sufficient to establish personal jurisdiction. Local presence provides a basis for in personam jurisdiction when service is based on (2): - 1. a natural person present within the state
- a natural person domiciled within the state A complaint and summons may be served by... - the sheriff of the county where service is to be made.
- Or by others authorized by law.
EXCEPTION: A person can void personal service through a timely motion showing either (2): - 1. she was present only in obedience to a summons to attend and testify OR
- her presence in the state was obtained through fraud. Service must be made within... - 60 days after the issuance of the summons. North Carolina have personal jurisdiction over a defendant domiciled in the state, whether or not... - the claim arose within or outside North Carolina or when he is not actually present in the state. Consent of the defendant to be sued in the state gives rise to personal jurisdiction, whether... - express or implied.
- Implied consent is deemed by statute to have been granted by a person or corporation engaging in certain activities within NC.
- Consent can be by suing in NC and appearing North Carolina has a Nonresident Motorist statute which provides that... - nonresidents who operate a motor vehicle on NC roads are deemed to have
- An in rem action results in no personal liability or obligation against the defendant.
- Settles some question as to the res (property) against all the world. In rem jurisdiction has 2 requirements: - 1. presence of the res (property) in the state AND
- adequate notice to persons with an interest in the res, so that they can participate in the determination. Quasi in rem jurisdiction is a type of in rem jurisdiction that has 2 types: - 1. jurisdiction against specific persons to determine rights in property before the court
- Only determines an interest or particular persons, NOT all the world.
- jurisdiction over a claim not concerning the property, obtained by the attachment of local assets.
- Deals with claim not related to the property such as damages, BUT there is no personal liability
- Only satisfied by the assets located in the state. An action to quiet title to real property is a... - quasi in rem action.
A judgment in rem or quasi in rem may affect the defendant's interest in a status, property or thing if... - process has been served pursuant to NC rule 4(k). To sustain a quasi in rem jurisdiction under minimum contacts, there must be... - a connection among the defendant, the forum, and the claim.
- if the connection is the property in the state, but the claim is unrelated to the property, no jurisdiction exists. Venue is about... - where the suit should be located.
- generally where the most convenient location for the suit will be. NC has two general rules for venue: - 1. if either party resides in the state, venue is generally in the county in which one of the parties resides at the time of suit.
- If neither party resides in the state, venue if generally property in any county which the plaintiff designates in his summons or complaint. In actions concerning real estate, venue is in the county... - where the land is located.
An order granting or denying a motion for change of venue as of right is... - immediately appealable.
- as of right means based on IMPROPER VENUE
- an order based on convenience is an interlocutory order and not immediately appealable. The primary purpose of pleadings is... - to give fair NOTICE to the parties of the claims and defense in the action. There are three categories of pleadings: - 1. complaint
- answer
- reply Other pleadings include... - - counterclaim
- cross claim
- third party claim
- and an answer to each
- and a reply to each A plaintiff may base his claim on... - alternate or inconsistent theories.
- They can be tried together. Each complaint must contain: - 1. a short, plain statement of the claim showing the pleader is entitled to relief AND
- a demand for judgment for relief to which the plaintiff deems himself entitled.
- NC does NOT require a specific statement of SMJ in the complaint In the demand for relief in superior court, the plaintiff does not ask... - for a specific amount.
- Plead in excess of $10, A plaintiff is not barred from recovering damages simply because she doesn't... - specifically seek those damages in her pleadings. In negligence actions in NC, the plaintiff must allege... - the specific acts that constitute the defendant's negligence. The burden of pleading the issue falls on... - the party who has the burden of proving it at trial.
An attorney or party has to sign... - the complaint.
- You can plead an unsigned complaint.
- The signature certifies that there is a good faith basis for the complaint grounded in existing law. If a pleading, motion or other paper is signed in violation of the rules, rule 11... - allows sanctions against that party. A verified pleading is... - one that is sworn under oath to be true. Rule 9 requires certain matters to be plead with specificity: - 1. fraud, duress, mistake or condition of the mind.
- conditions precedent (in a breach of K action)
- special damages
- punitive damages (after 1/1/1996, plaintiff is required to demand punitive damages with specificity and aggravating factors)
- medical malpractice (expert in the field has to certify that there was a potential breach of care and must accompany the complaint - BUT no certification is required under Res Ipsa)
- capacity
If filing medical malpractice action, the plaintiff can file a motion for... - a 120 day extension to use that time to get the 9J certification
- Also extends the SOL In NC, the lawsuit commences at the... - filing of the complaint.
- But only have 5 days after filing the complaint to have a summons issued. Under NC law, the proper person to serve the summons and complaint is the... - sheriff. Service outside of NC can be made by... - a process service.
- Anyone over 21 years of age licensed for process server in that state. Service is proper by: - 1. personal service
- delivering / leaving a copy to their usual place of abode with a person of suitable age and discretion
- service to an agent
- register or certified mail, return receipt requested.
- when service on a corporation is made on an officer or director or managing agent of the corporation
Computation of time: - - Do NOT include the first day of the event (the day the complaint is served is not included)
- The last day of the event is included, unless it is a Saturday, Sunday, or legal holiday (then the final day would be the next business day) If the period is less than 7 days, you don't count... - any of the intermediate Saturdays or Sundays.
- Dealing only with business days. NC has a 3 day mail service rule: Whenever a party is served by mail, 3 days are... - added to the time period.
- For ex., if served a complaint by mail, the defendant has 33 days to answer. The defendant's answer responds to the plaintiff's complaint by... - denying the allegations or by raising affirmative defenses to the allegations. The answer must be served within... - 30 days after receipt of the summons and complaint. If the defendant files Rule 12 motion, the time for answering is... - extended.
- Rule 12 motion tolls the period for filing answer until the motion is heard.
- If denied, there is 20 days from the denial of the motion for the defendant to answer.
- If the court grants a rule 12(e) motion for a more definite statement, the answer must be served within 20 days after service of the more definite statement. General denial v. specific denial: - - General: denies all allegations (rare)
- Specific: denies allegations paragraph by paragraph A general denial is improper unless the defendant... - intends in good faith to contest every allegation, including jurisdictional allegations. If the defendant is without knowledge or information sufficient to form a belief as to the truth or the allegation, she may... - state so in her answer and this operates as a denial.
- If later found out that the defendant did have knowledge, it will be taken as an admission as a sanction. An allegation that is not denied, or that is improperly denied is deemed to... - have been admitted and is binding on the parties.
