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Tag Archives: pleadings

Civil Practice – Pleadings – Amendment – Additional Parties – Sovereign Immunity – Insurance (access required)

Robinson v. Smith Defendants had not filed a responsive pleading when plaintiffs filed their amended complaint; therefore, N.C. R. Civ. P. 20 (permissive joinder) and 21 (misjoinder and nonjoinder) do not apply, despite the fact that the amended complaint named additional defendants.

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Civil Practice – Pleadings – Amendment – Relation Back – Complaint Verification – Rule 11 – First Impression (access required)

Estate of Livesay v. Livesay Forty-two days after the complaint and summonses had been issued - but before any responsive pleadings had been filed - plaintiff’s counsel discovered that the complaint had not been signed or verified. Counsel quickly filed an amended, signed complaint. Pursuant to N.C. R. Civ. P. 11 and 15, the trial court had subject matter jurisdiction over the complaint.

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Labor & Employment – Breach of Contract – Damages – Salary – Civil Practice – Pleadings – Supplementation – Relation Back (access required)

Panos v. Timco Engine Center, Inc. The parties’ employment contract provided that, if defendant fired plaintiff without cause, defendant would be required to pay plaintiff’s salary for a year following his termination. When plaintiff filed his complaint, only three months had passed. Even though more than three years had elapsed when plaintiff moved to amend his complaint to seek the other nine months’ worth of salary, the amendment related back under N.C. R. Civ. P. 15.

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Tort/Negligence – Trip & Fall – Civil Practice – Pleadings (access required)

Shumaker v. Wake Forest University Baptist Medical Center Plaintiff’s allegation that she was a patron on the defendant-hospital’s premises is sufficient to allege that she was a lawful visitor. The hospital’s negligence was sufficiently alleged by the complaint’s claim that the hospital knew or should have known about a 11/2- to 2-inch raised seam in its sidewalk and failed to inspect, repair or warn of the condition. The complaint also sufficiently alleged that plaintiff’s injuries - which resulted from her trip and fall on the sidewalk — were proximately caused by the hospital’s negligence. Thus, plaintiff sufficiently alleged the elements of a premises liability claim.

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Civil Practice – Pleadings – Motion to Amend – Wrong Corporate Party – Notice Irrelevant (access required)

Taylor-Butler v. Food Lion, Inc. It is irrelevant that the proper defendant had notice of plaintiff’s action and would not be prejudiced by allowing her to amend her complaint to name the correct corporation as a defendant. N.C. R. Civ. P. 15(c) does not allow relation-back when a complaint is amended to add a party, and the statute of limitations had already run when plaintiff moved to amend her complaint. We affirm the trial court’s order granting defendant’s motion to dismiss.

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Civil Practice – Pleadings – Motion to Strike – 89-Page Reply (access required)

Fountain v. Fountain Powerboats, Inc. Plaintiff’s 89-page reply to defendant’s counterclaim includes only one defense: unclean hands. The court grants defendant’s motion to strike from the reply material related to non-parties, self-promotional statements, references to past and pending litigation involving non-parties to this suit, self-serving and irrelevant metaphors and analogies, statements apparently intended to frustrate defendant’s current operations and to promote plaintiff’s new business, unnecessary name calling, and statements that are otherwise immaterial, impertinent, and redundant.

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Civil Practice – Pleadings – Amendment – Party Substitution – Sheriff for Sheriff’s Department (access required)

Treadway v. Diez The Court of Appeals upheld the trial court’s grant of plaintiff’s motion to amend her complaint to name the sheriff as a defendant in place of the originally-named defendant, the sheriff’s department. We reverse for the reasons stated in Judge Jackson’s dissent: The amendment at issue constitutes more than a simple correction of a misnomer. Plaintiff sought to substitute a new party-defendant over whom she could obtain jurisdiction - the sheriff — in place of an entity that is not subject to suit - the sheriff’s department.

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Civil Practice – Pleadings – Amendment – Party Substitution – Sheriff for Sheriff’s Department (access required)

Treadway v. Diez The Court of Appeals upheld the trial court’s grant of plaintiff’s motion to amend his complaint to name the sheriff as a defendant in place of the originally-named defendant, the sheriff’s department. We reverse for the reasons stated in Judge Jackson’s dissent: The amendment at issue constitutes more than a simple correction of a misnomer. Plaintiff sought to substitute a new party-defendant over whom he could obtain jurisdiction - the sheriff — in place of an entity that is not subject to suit - the sheriff’s department.

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