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Civil Practice – Statute of Limitations – Filing of Complaint – Delivery to Clerk – Unpaid Fee – In Forma Pauperis Application
Federal Rule of Civil Procedure 3 says, “A civil action is commenced by filing a complaint with the court.” Rule 5(d)(2)(A) provides that “[a] paper not filed electronically is filed by delivering it . . . to the clerk.” When a plaintiff delivers a complaint to the clerk of court, a federal lawsuit is “brought” […]
Civil Practice – Motions Practice – Notice – Personal Jurisdiction
Defendant had filed motions to dismiss for failure to state a claim and for lack of personal jurisdiction, but defendant calendared a hearing only on its motion to dismiss for failure to state a claim. At the hearing, when the trial court inquired about personal jurisdiction, plaintiff’s counsel objected, informing the court that jurisdictional discovery […]
Civil Practice – Subject Matter Jurisdiction – Tort/Negligence – Alienation of Affections – Out-of-State Assignations
The kind of action presented here is one for alienation of affections, a tort over which the trial courts of this state indisputably possess subject-matter jurisdiction. We reverse the trial court’s order granting defendant’s motion to dismiss for lack of subject-matter jurisdiction. Defendant admits that he met plaintiff’s wife in California, Nevada and Utah, and […]
Civil Practice – Rule 60 Motion – Domestic Relations – DVPO – COVID-19
Neither defendant nor his counsel appeared at a hearing for a domestic violence protective order; defendant had COVID-19, and defense counsel had a medical emergency on the day of the hearing. The trial court did not abuse its discretion when it denied defendant’s motion to set aside the DVPO given (1) the trial court’s reasoning […]
Civil Practice – Involuntary Commitment – Ineffective Assistance of Counsel Claim – Inapplicable – Danger to Others
Respondent asserts an ineffective assistance of counsel (IAC) claim against his trial counsel for failing to object to the trial judge assuming the role of prosecutor at his petition hearing. Yet, respondent fails to cite, nor are we able to identify, any authority applying Strickland v. Washington, 466 U.S. 668 (1984), the seminal case outlining […]
Civil Practice – Incompetency Adjudication – Recitation of Testimony – No Credibility Determination
In its order adjudicating respondent incompetent, the trial court’s key findings of fact are mere recitations of testimony without any assessment of the credibility of the evidence presented. The remaining findings of fact are insufficient to support a conclusion that respondent is an incompetent adult within the meaning of G.S. § 35A-1101(7), and the conclusions […]
Civil Rights – Right to Bear Arms – Federal Conviction – No Reinstatement
Petitioner lost his right to possess firearms because of a 1984 conviction in federal court, and he seeks restoration of his firearm rights under G.S. § 14-415.4(c). Since petitioner was convicted “in a jurisdiction other than North Carolina,” § 14-415.4(c) requires that petitioner prove that his right to possess a firearm has been restored “pursuant […]
Civil Practice – Appeals – Timeliness – No Showing – Landlord/Tenant
Where (1) the trial court entered its order denying defendant Das’s motion for a new trial on 25 March 2021; (2) Das did not appeal within 30 days of entry of this order; (3) the record contains no indication of when Das (through his counsel at the time) was served with a copy of the […]
Civil Practice – Appeals – Transcript Omissions – Narrative Request – Failure to Submit
The pro se appellant appeals the trial court’s denial of his motion to “correct” the trial transcript by adding purported omitted portions (appellant’s request for an interpreter and a witness’s reading out of an incorrect telephone number). Construing appellant’s arguments liberally, we conclude that he seeks relief under N.C. R. App. P. 9(c) and 11(c), […]
Civil Practice – Judges – Subject Matter Jurisdiction – Contrary Rulings – Landlord/Tenant
Between Judge Bradley Letts’ denial of the plaintiff-lessor’s motion for summary judgment and Judge Daniel Kuehnert’s grant of judgment for the lessor as a matter of law, the only significant change was the lessor’s assertion of a claim for compensatory damages. Judge Kuehnert lacked the authority to overrule Judge Letts’ order. We vacate Judge Kuehnert’s […]
Civil Practice – Appeals – Interlocutory – Third-Party Claims
The trial court ruled that defendants’ third-party claims constituted third-party practice and dismissed those claims without prejudice to defendants filing them in a separate action. Plaintiff’s claims against defendants and defendants’ counterclaims against plaintiff remained pending; accordingly, the dismissal order was interlocutory. Defendants have argued they are entitled to an immedia[...]
Civil Practice – Missouri Litigation – N.C. Subpoena – Non-Party Objection – Attorney-Client Privilege
Ordinarily, when a North Carolina resident, who is a non-party to out-of-state litigation, receives a subpoena under the North Carolina Uniform Interstate Depositions and Discovery Act, the non-party’s objections to the subpoena will be heard by the North Carolina court in which discovery is sought. However, the non-party here is a law firm, and its […]
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Commentary
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