Federal Civil Procedure & NC Civil Pro.

pierceb's version from 2015-07-27 19:17


Question Answer
What are the requirements of a well-pleaded complaint?(1) States the grounds for "subject matter jurisdiction"; (2) short and plain statement of the claim, showing entitlement to relief; and (3) demand for "relief" sought.
FR - How many days does a defendant have to answer?FR - 21 ... 21 days after service of process.
FR - If defendant waives service, how many days does he have to answer?FR - 60 days from when Plaintiff mailed the waiver form.
What motion should be filed when: a pleading is so vague Defendant can't frame a response?Motion for more definite statement
What motion should be filed when: a pleading consists of immaterial or scandalous things?motion to strike
Which 12(b) defenses are deemed "waived" if not included in Defendant's first response (motion or answer)?12(b): 2, 3, 4, 5
What is a "compulsory counterclaims"?Claim that arises from the same "transaction or occurrence". Must be filed in the pending case, or the claim is waived.
What is a "permissive counterclaim"?Claim that does not arise from the same T/O as Plaintiff's claim. Permissive means that you are not required to file it in this case.
What is a "cross claim"?A claim against a co-party. It must arise from the same T/O as the underlying action. Not compulsory.
When may a plaintiff his complaint?Plaintiff has "right to amend" once within "21 days" after service on Defendant.
When may a defendant amend his answer?Defendant has right to amend once within "21 days" of serving his answer.
Will an amendment made after the statute of limitations has run be valid?Maybe. Amended pleadings "relate back"if they concern the same conduct, transaction or occurrence as the original pleading.
What is FRCP 11?Signature Rule: When lawyer or pro se party signs a document, she certifies that to the best of her knowledge and belief, after reasonable injury: (1) the paper is not for an "IMPROPER PURPOSE;" (2) legal contentions are WARRANTED BY LAW (or nonfrivolous argument for law change); and (3) factual contentions and denials of factual CONTENTIONS have EVIDENTIARY SUPPORT.
Who may serve?Any person who is at least !18 years old" and "not a party to the action"
How is service made?(i) personal service; (ii) service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant.
FR - Which motions must be filed, WITH NO EXTENSIONS, within ("28") days after entry of judgment?(i) a renewed JMOL; (ii) motion to amend judgment; (iii) motion for a new trial; (iv) grant of a new trial on the court's initiative.
What is interpleader?Interpleader permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where seperate actions might result in double liability on a single obligation.
What is intervention?Of right - when applicant claims an interest in a transaction and the disposition of which without her may impair her ability to protect that interest.
Where is venue proper?(i) in a judicial DISTRICT in which (1) ANY DEFENDANT resides (if all in the same state); or (ii) a SUBSTANTIAL part of the events or OMISSIONS giving rise to the claim occurred.


Question Answer
What is PERMISSIVE joinder?Plaintiff or defendants MAY BE joined if their claim "arises out of the same transaction, occurrence, or series of transactions or occurrences."
What is COMPULSORY joinder?If an absent party is "united in interest" or "necessary" and would be prejudiced if not joined, the court should require the party be joined.
What is impleader?Joinder by the defendant in the original action of another person not originally a party to the action. The claim asserts that the 3rd party defendant is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant.
What are the rights of a 3rd-party defendant that has been impleaded?3rd-party defendant may: (i) assert a claim against the plaintiff if the claim arises from the same T/O. However, the plaintiff may assert a claim against him too. (Each claim must have SMJ)
What is a cross-claim?A party may assert a claim in a pending case against a co-party ONLY if the claim arises from the SAME TRANSACTION OR OCCURRENCE as the underlying dispute. (SMJ required)
What is interpleader?Interpleader permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where seperate actions might result in double liability on a single obligation.
What is intervention?Of right - when applicant claims an interest in a transaction and the disposition of which without her may impair her ability to protect that interest.


Question Answer
When must a notice of appeal be filed?With district court WITHIN 30 DAYS from the entry of the judgment appealed on.
What is a final order?One that disposes of the whole case on its merits, rendering a final judgment..



Question Answer
What is the Rule 6 (TIME) state?(i) First day of period is NEVER counted, but the last day is; (ii) If the last day falls on a Saturday, Sunday, or Legal Holiday, then pleading expires on the next day court is open for business; and (iii) when time proscribed is LESS THAN 7 DAYS, then intermediate Saturdays, Sundays, and legal holidays are not counted.
When is a civil action deemed to have commenced?Upon filing a complaint with the court.
What are the three (3) elements each complaint must have?(1) short and plain statement of grounds for JURISDICTION; (2) short and plain statement of the CLAIM; and (3) a DEMAND FOR RELIEF/JUGDMENT
What type of pleading state is NC?North Carolina is a NOTICE-PLEADING state. and requires a "short and plain statement."
When does the "in excess of" rule apply?In NC, when a plaintiff seeks recovery in excess of $10,000 in the NEGLIGENCE ACTION or recover for PUNITIVE DAMAGES, the complaint may not state the amount of damages sought; he must state, "in excess of 10,000." Failure to comply will lead to a dismissal, only in extreme cases.
What is the "special pleading" exception?In NC, an exception to the "short and plain statement" is in circumstances involving (1) capacity, fraud or mistake, special damages, punitive damages (supporting aggravating factors), or medical malpractice (which requires pleading (i) specifically assert that medical care has been reviewed by a qualified expert or (ii) a person who the claimant will move to qualify as an expert and who is willing to testify that the care did not meet the applicable standard of care, or (iii) pleading alleges facts constitution Res Ipsa Loquitor.
When must a summons be issued in NC: In NC5 DAYS of filing the complaint to avoid undue delay
What if a summons is not issued with 5 DAYS?The action will ABATE.
How many days does the plaintiff have to serve the defendant?60 DAYS
In NC, what is the purpose of "service"?To obtain not only personal jurisdiction, but also to provide notice to the defendant.
Who may serve in NC?(i) A sheriff of the county where defendant resides or some other person duly authorized by law.
If the defendant is outside of NC, who may serve him?Anyone who is 21 and not a party in the case.
In NC, what are the methods of service on an INDIVIDUAL?(i) in-person delivery; (ii) leaving at dwelling house or place of abode with someone of age and discretion; (iii) agent authorized by appointment; (iv) certified mail return receipt requested; or (v) depositing with designated delivery with delivery receipt.
In NC, what are the methods of service on a CORPORATION?Service upon a(n): (i) officer, director, or managing agent; (ii) leaving with person "apparently in charge;" (iii) authorized agent; (iv) certified mail to officer, director, or agent, ir (v) depositing with designated delivery service to director, officer, or agent.
What are the special rules to service?(1) Child - individual rules + parent/guardian "custody," (2) incompetent - individual rules + guardian ad litem; (3) partneership - general partners, authorized agent, attorney in fact; (4) publication - cannot be served by "due diligence" (cannot find in phonebook or DMV records)
How can time for service be extended?If defendant not served within 60 DAYS: (1) Endorsement- plaintiff may secure an endorsement within 90 days after issuance of summons or the date of the last prior endorsement; or (2) Alias or Pluries Summons- if defendant is within the US, plaintiff may secure a A/P summons at ay time within 90 days after the date of the last A/P Summons or the prior endorsement. If the defendant is being served outside the US, any time within 2 years after the date of issue of the last preceding A(P summons or endorsement.
When may a pleading be amended?(1) Before opposing party responds (30 days if no response needed), ONCE as a matter of course; (2) AFTER responsive pleading, only be written consent of the adverse party OR leave of court, which should is "freely given as justice so requires."
Do amendments relate back?An amendment will relate back to the date of the original pleading IF pleading gives notice of the conduct, transaction, or occurrence set forth in the amendment.
In NC, relation back applies to what kind of claims?Only to add a new claim against an existing party, and not to add or change a party.
What is a supplemental pleading?Relates to matters occurring AFTER the original pleading.
In NC, how many days does the defendant have to serve his answer? What about after determination of a motion?30 DAYS from the date of service to answer and 20 DAYS after notice of court's action in ruling on a motion.
When may a plaintiff move for default judgment?When the defendant either fails to appear or fails to answer or otherwise defend.
What is a default judgment?A termination without trial. Applies to all claims, whether plaintiff's claim, a counterclaim, a cross-claim, or a third-party claim.
What is the process to receive a default judgment entered by a clerk or court?First, the clerk makes an "entry of default" on the docket if the plaintiff shows that (1) proper SERVICE and (2) court has PERSONAL JURISDICTION over the DEFENDANT. This "entry of default" precludes the defendant form defending on liability. Second, the clerk may "enter a judgment" for the plaintiff if: (1) the default is for FAILURE TO APPEAR; (2) claim is SUM CERTAIN; (3) plaintiff furnishes an AFFIDAVIT OR VERIFIED COMPLAINT as to the AMOUNT DUE; and (4) defendant is NOT an infant or INCOMPETENT.
How may a defendant "set aside a default judgment"?Set aside the entry of default for "good cause shown." GCS is not necessarily mistake, inadvertence, or excusable neglect, rather, it depends on the individual circumstances. (e.g., no harm from a short delay)



Question Answer
What is North Carolina Rule 41?A plaintiff may voluntarily dismisses his own case by simply filing a notice of dismissal at ANY TIME BEFORE he rests his case.
Is voluntary dismissal "without prejudice"?It depends. Voluntary dismissal rendered without a court order is without prejudice unless the same claim had previously been voluntarily dismissed in any federal or state court.
Who pays court costs for voluntary dismissal?Payment of costs of the first action is a condition precedent to institution of a new action. In an INVOLUNTARY DISMISSAL, plaintiff is not liable for costs.
After voluntary dismissal, may a new action be filed?Yes. If the original action was timely filed, the plaintiff will have AT LEAST 1 YEAR to commence a new action based on the claim. If payment has not occurred at the time of refiling, plaintiff will have to pay those costs within 30 days of the new suit or have proceedings stayed until payment. The plaintiff gets the benefit of the original statute of limitations or the one-year extension, whichever is the longer period.
What is involuntary dismissal - NC RULE 41?A court dismisses the plaintiff's suit involuntarily for failure to prosecute, or for failure to comply with the rules or any order of the court.
Is involuntary dismissal "without prejudice"?No. Involuntary dismissal is WITH PREJUDICE unless the court specifies otherwise, except if the dismissal is for: (i) lack of jurisdiction; (ii) improper venue; or (iii) failure to join a party needed for just adjudication and determined to be indepensible.
What is the effect of "dismissal with prejudice"?The suit CANNOT be brought again in any court, federal or state.



Question Answer
What is a real party in interest?Every action must be prosecuted in the name of the real party in interest.
Will a court dismiss a case if the "real party in interest" is not joined?Generally, no. Not until a reasonable time has been allowed, after objection, for ratification of commencement of the action by joinder or substitution of the real party in interest. Such actions relate back to the commencement action.
What is a cross-claim?A claim by one party against a co-party (e.g., defendant 1 v. defendant 2 (think of group Kirss-Kross)). It must arise out of the same transaction or occurrence as does the original claim. Cross claims are PERMISSIVE..
What is a party "united in interest" or "necessary"?Where a court cannot adjudicate a claim without prejudicing an absent party, that party is said to be "united in interest" or "necessary"
What is a party "NOT united in interest"?A party who has an interest in the litigation but who is not united in interest. This party is deemed "proper." Meaning, the court can add him or proceed without him.
What is INTERVENTION?A nonparty enters the case on his own motion. (1) As of right: (i) a statute confers such a right or (ii) the applicant claims an interest relating to the property or transaction in the case. (2) Permissive: Court will consider whether intervention presents unduly delay or prejudice.
What is INTERPLEADER?Where a party facing conflicting claims to an obligation she owes, or to property she holds, to bring all the claimants into court under a single action.
What is IMPLEADER?Where a defendant brings in a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant.
When does impleader generally apply?When defendant seeks contribution from an alleged JOINT tortfeasor.
When does impleader general NOT apply?When (1) the defendant asserts that she is not liable to the plaintiff but the third party is the liable party or (2) the defendant asserts an entirely unrelated claim against the third party.