Viking Utilities Corp. v. Onslow Water & Sewer Authority (Lawyers Weekly No. 14-07-0198, 9 pp.) (Sanford Steelman Jr., J.) Appealed from Onslow County Superior Court (W. Allen Cobb Jr., J.) N.C. App. Holding: At the motion-to-dismiss stage, the trial court ...

Tagged with: Motion to Dismiss

Two federal suits in Boston — one of them filed late last month by noted Harvard Law professor Lawrence Lessig — are expected finally to answer the question of how much good faith a copyright owner must have before issuing a takedown notice under the Digital Millennium Copyright Act.

Tagged with: Copyright Motion to Dismiss

Homeshield Vinyl Siding & Windows, Inc. v. Parker & Orleans Homebuilders, Inc. Even though Judge Hobgood denied a motion to dismiss brought under N.C. R. Civ. P. 12(b)(6) and Judge Hight later granted a motion to dismiss under Rule 12(b)(7), the basis for both motions was defendants’ argument that plaintiff failed to timely join a necessary party.

Tagged with: Motion to Dismiss

Harmon v. Leeuwenburg Plaintiff alleged that she and defendant were members of the opposite sex who had been in a dating relationship and that defendant “has attempted to cause or has intentionally ... placed [her] or a member of [her] family or household in fear of imminent serious bodily injury or in fear of continued harassment that rises to such a level as to inflict substantial emotional distress” based on defendant’s emails and phone calls, the content of which plaintiff claimed had become “increasingly ... more threatening.” Plaintiff included four handwritten pages of excerpts from the alleged voicemails and emails. She also indicated her belief that there was a danger of serious and immediate injury to her or her children.

Tagged with: Domestic Relations DVPO Motion to Dismiss

State v. Sistler Even though defendant presented evidence that the victim fired the first shot, when ruling on defendant’s motion to dismiss, the trial court correctly considered the evidence in the light most favorable to the state, including evidence that defendant fired the first shot. We find no error in defendant’s conviction of first-degree murder.

Tagged with: Criminal Practice Motion to Dismiss murder self-defense

McDow v. Dudley A bankruptcy court order denying the U.S. Trustee’s motion to dismiss a debtor’s Chapter 7 bankruptcy case as abusive under 11 U.S.C. § 707(b) is a final order appealable under 28 U.S.C. § 158(a), and the 4th Circuit reverses the district court decision dismissing the appeal as interlocutory. Because of the particular effect an order denying a motion to dismiss a Chapter 7 bankruptcy case as abusive has on the bankruptcy proceedings, we conclude a bankruptcy court’s order denying such a motion is appealable to the district court.

Tagged with: appeals Bankruptcy Motion to Dismiss

Zairy v. VKO, Inc. Where a plaintiff failed to file a notice of appeal of a Sept. 16, 2009 order granting two defendants’ dismissal motion, we do not have jurisdiction to consider plaintiff’s appeal and must dismiss it. We also dismiss the plaintiff’s appeal of a March 1, 2010 order which denied a renewed motion to compel discovery and a motion for reconsideration of the Sept. 16, 2009 order, as (1) the trial court did not certify its March 1, 2010 order for appeal, (2) the plaintiff’s only other route of appeal would be that a substantial right has been adversely affected and (3) plaintiff fails to argue that a substantial right was affected.

Tagged with: Civil Practice Motion to Dismiss

State v. Patterson. (Lawyers Weekly No. 11-16-0251, 12 pp.) (Judge Linda S. Stephens) Appealed from Randolph County Superior Court (V. Bradford Long, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: The probative value of ...

Tagged with: Criminal Practice dwi Expert Testimony Motion to Dismiss Randolph County Second-Degree Murder

Griffith v. North Carolina Department of Correction. Where plaintiff inmate alleged that the NCDOC violated N.C. Gen. Stat. § 12-3.1 when it promulgated an inmate co-pay policy without first seeking legislative . . .

Tagged with: Anson County Civil Practice Motion to Dismiss

Two companies that manufacture communications devices for truck drivers have been dismissed from a lawsuit brought by plaintiffs injured in a 2008 accident on Interstate 40 in Buncombe County. U.S. Magistrate Judge Dennis L. Howell had recommended that Geologic Solutions, Inc.'s and Xata Corporation's 12(b)(6) motions to dismiss be allowed because the plaintiffs failed to state a recognized cause of action, and a U.S. district judge recently adopted that view. Asheville attorney Brady J. Fulton (pictured) said the ruling could be used as precedent by attorneys representing manufacturers in all manner of distracted driver injury cases.

Tagged with: Buncombe County Distracted Driver Motion to Dismiss Negligence Products Liability Truck Driver