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Tag Archives: pleadings

Civil Practice – Pleadings – Answer – LLC – Member’s Letter – Default (access required)

Bodie Island Beach Club Association, Inc. v. Wray A letter from defendant Stephen Smith to plaintiffs’ counsel did not constitute an answer on behalf of defendant SRS Properties North Carolina, LLC, of which Smith was the only member. The letter failed to indicate that Smith was responding on behalf of any person or entity other than himself, it was written on his personal letterhead, and it was signed solely by Smith in his individual capacity.

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Contract – Civil Practice – Pleadings – Affirmative Defenses – Merger Clause (access required)

Merrill Lynch Commercial Finance Corp. v. Rush Industries The defendant-borrowers failed to plead or argue to the trial court the affirmative defenses that they put forward in this court; therefore, defendants waived those affirmative defenses. Since those affirmative defenses were defendants’ only way around the merger clause in their contract with the plaintiff-bank, the merger clause applies, and the trial court correctly refused to consider any oral agreements between the parties.

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Civil Practice – Pleadings – Motion to Amend – Untimely – Diligence – Standard of Review – Magistrate’s Ruling (access required)

Stonecrest Partners, LLC v. Bank of Hampton Roads. (Lawyers Weekly No. 11-02-0328, 10 pp.) (Louise W. Flanagan, Ch.J.) E.D.N.C. Holding: Although plaintiff’s original counsel unexpectedly passed away, he had already filed plaintiffs’ first motion to amend the complaint, and he ...

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Attorneys could copyright their documents, but should they? (access required)

Of course, lawyers don't need anyone's blessing to copyright their own work. The question is, when they do, are their claimed rights enforceable? The short answer is yes, maybe. Intellectual property attorney John C. Nipp of Charlotte-based Summa, Additon & Ashe told Lawyers Weekly that the requirements for obtaining a copyright are not strict.

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Civil Practice – Pleadings – Multiple Plaintiffs & Defendants – Real Property – Bankrupt Developers (access required)

Allen v. Land Resource Group of North Carolina, LLC. In a case involving 22 plaintiffs, 29 defendants and at least 15 causes of action, it is imperative that plaintiffs' complaint specify which plaintiff(s) is alleging which cause(s) of action against which defendant(s). Plaintiffs have 30 days to file a statement of claims. N.C. R. Civ. P. 10(b) specifies that each paragraph in a pleading be limited to a single set of circumstances and that each claim is founded upon a separate transaction or occurrence. Rules 20 and 21 provide the courts and counsel with management tools to join or sever parties and claims in a manner that promotes judicial economy and justice. Clear and concise pleadings that spell out which claims are asserted against which defendants are essential to the decision-making process under Rules 20 and 21. Failure to properly plead separate causes of action and to identify specifically the party against whom a claim is asserted may be an indication of a Rule 11 violation. The amended complaint fails to tell the court or defendants which claims are asserted against which defendants by which plaintiffs.

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Tort/Negligence – Auto Accident – Civil Practice – Pleadings – Deceased Defendant – Closed Estate – Amendment (access required)

Speights v. Forbes. (Lawyers Weekly No. 10-16-0903, 7 pp.) (Rick Elmore, J.) Appealed from Durham County Superior Court. (Orlando F. Hudson Jr., J.) N.C. App. Unpub. Holding: Where the defendant died and his estate was closed between the date of ...

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Civil Practice – Pleadings – Complaint – Under Seal – Public Records Act – Corporate – Derivative Action – Delaware Action (access required)

Smith v. Raymond. (Lawyers Weekly No. 10-15-0655, 4 pp.) (Albert Diaz, J.) N.C. Bus. Ct. Holding: A stipulation in a Delaware Chancery case is insufficient, by itself, to justify sealing plaintiff’s entire complaint. If the parties believe the complaint should ...

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