Even though the trial court allowed the state to amend its second-degree kidnapping indictment during trial to change the underlying felony from a misdemeanor to a felony, the state was bound by the crime as alleged in the original indictment. ...

Tagged with: Motion to Dismiss

Unlike the chicken or the egg conundrum, the question of whether a defendant’s answer to a complaint or motion to dismiss for failure to state a claim comes first is among life’s solvable questions. But North Carolina’s appellate courts have ...

Tagged with: Motion to Dismiss timing

If a motion to dismiss is filed, but it is never ruled on and neither party takes any further action, was the case ever dismissed? Until earlier this month, North Carolina didn’t have an official answer to that question. For ...

Tagged with: Motion to Dismiss

Le Bleu Corp. v. B. Kelley Enterprises (Lawyers Weekly No. 14-15-1160, 10 pp.) (James Gale, Ch. J.) 2014 NCBC 65 Holding: When plaintiffs sought to amend their complaint to add a trade secrets claim, defendants argued the amendment would be ...

Tagged with: Civil Practice Motion to Dismiss

Greene v. United States Department of Justice (Lawyers Weekly No. 14-02-0922, 12 pp.) (James Fox, Sr. J.) 5:14-cv-00246; E.D.N.C. Holding: Plaintiff maintains that she reasonably relied on the U.S. government to prosecute her case with due care and that the ...

Tagged with: Motion to Dismiss

Packers Printing & Publishing Co. v. Anajet, LLC (Lawyers Weekly No. 14-16-0827, 10 pp.) (Wanda Bryant, J.) Appealed from Columbus County Superior Court (Phyllis Gorham, J.) N.C. App. Unpub. Holding: The forum selection clause in the parties’ contract – “In ...

Tagged with: Contract forum Motion to Dismiss

Dillon v. BMO Harris Bank, N.A. (Lawyers Weekly No. 14-03-0729, 8 pp.) (Catherine C. Eagles, J.) 1:13-cv-00897; M.D.N.C.   Holding: The court views the defendant’s motion to renew like a motion to reconsider and denies it because the defendant did ...

Tagged with: Motion to Dismiss

Securities & Exchange Commission v. Banc of America Mortgage Securities, Inc. (Lawyers Weekly No. 14-04-0606, 11 pp.) (Max Cogburn Jr., J.) 3:13-cv-00447; W.D.N.C. Holding: Contrary to defendants’ argument, 17 C.F.R. § 230.426(c) did not relieve them of the responsibility to ...

Tagged with: Motion to Dismiss

Bell v. City of New Bern (Lawyers Weekly No. 14-16-0430, 16 pp.) (Martha Geer, J.) Appealed from Craven County Superior Court (Benjamin Alford, J.) N.C. App. Unpub. Holding: Because municipalities are not performing governmental acts when maintaining storm drains, governmental ...

Tagged with: Motion to Dismiss

Wells Fargo Bank, N.A. v. Hundley (Lawyers Weekly No. 14-16-0327, 9 pp.) (Linda Stephens, J.) Appealed from Rockingham County Superior Court (Edwin Wilson Jr., J.) N.C. App. Unpub. Holding: The plaintiff-bank’s complaint alleges that (1) the parties all intended that ...

Tagged with: Motion to Dismiss