Chapter 1 - Comparison of State and Federal Civil Practice and Procedure
§ 1.01 Legal Differences
[1] State Standing Is Broader
[2] North Carolina Retains Notice Pleading
[3] The Common Law’s Continued Importance in North Carolina
§ 1.02 Practical Differences
[1] Elected and Rotating Judges
[2] No Mandatory Rule 26 Disclosures or Conferences but Broader Discovery
[3] Limited Court Personnel
[4] More Hearings, Fewer Briefs, Shorter Motions
§ 1.03 Rule-by-Rule Comparison of North Carolina and Federal Rules of Civil
Procedure
Chapter 2 - Requirements for a Civil Action
§ 2.01 Checklist for Complaint Allegations
§ 2.02 Jurisdiction
§ 2.03 Venue
[1] Venue for Redistricting & Constitutional Cases
§ 2.04 Proper Division
[1] Appeals from the Clerk to the Superior Court
§ 2.05 Parties
[1] Standing
[a] Statutory Standing
[b] Taxpayer Standing
[c] Associational or Representational Standing
[d] Standing in Land-Use, Zoning, and Annexation Disputes
[e] Standing in Declaratory Judgment Actions
[2] Real Party in Interest
[3] Necessary Parties
[4] Proper Parties
§ 2.06 Complaint
[1] Notice Pleading
[2] Practical Considerations for Drafting a Complaint
[3] Specific Pleadings Required by Rule 9
[a] Capacity
[b] Fraud, Mistake, and Mental Conditions
[c] Conditions Precedent
[d] Official Acts
[e] Judgment
[f] Time and Place
[g] Special Damages
[h] Private Statutes
[i] Libel and Slander
[j] Medical Malpractice
[k] Punitive Damages
[4] Relief Requested
[a]Types of Relief that May be Requested
[i]Compensatory Damages
[ii]Punitive Damages:
[iii]Equitable Relief:
[iv] Declaratory Relief:
[v] Attorney’s Fees and Costs:
[vi] Interest:
[5] Pleading in the Alternative
[6] Cover Sheet
§ 2.07 Service of Process
[1] Time Requirements for Service; Extensions
[2] Service on Natural Persons
[a] Delivery to Dwelling House or Usual Place of Abode
[b] Delivery to an Agent
[c] Certified or Registered Mail
[d] Designated delivery service
[e] By signature confirmation
[f] Service on Natural Persons under disability
[3] Service on the State
[4] Service on State Agencies
[5] Counties, Cities, Towns, Villages and Other Local Public Bodies
[6] Domestic or Foreign Corporations
[7] Service on Partnerships
[8] Other Unincorporated Associations and Their Officers
[9] Service by Publication
[10] Proof of Service
Chapter 3 Responsive Pleadings
§ 3.01 Responsive Pleadings
§ 3.02 Answer
[1] Effect of Admissions
[2] Pleading Affirmative Defenses
§ 3.03 Motion for More Definite Statement
§ 3.04 Motion to Strike
§ 3.05 Motions to Dismiss
[1] Time and Manner of Filing
[2] Joining Defenses and Stating Grounds with Particularity
[3] Lack of Subject Matter Jurisdiction
[a] Mootness
[b] Ripeness
[c] Exhaustion of Administrative Remedies
[d] Sovereign and Governmental Immunity
[e] Practical Guidance
[4] Lack of Personal Jurisdiction
[a] General Personal Jurisdiction: When a Defendant is at Home in North Carolina
[i] Ongoing Business or Residence Typically Creates General Personal Jurisdiction
[ii] Infrequent Business or Residence Typically Does Not Create General Personal Jurisdiction.
[b] Specific Personal Jurisdiction: When a Defendant Reaches Out to North Carolina
[i] Specific Personal Jurisdiction Generally
[ii] Ford Motor Company, Systematic Service, and the Stream of Commerce
[iii] Specific Personal Jurisdiction in the Digital Age
[iv] Specific Personal Jurisdiction by Consent and Service
[c] Fairness Factors Limit Personal Jurisdiction
[d] North Carolina’s Long-Arm Statute
[i] Status Exception Cases
[ii] In Rem and Quasi in Rem Jurisdiction
[e] Attributing Corporate Acts
[f] Forum Selection, Consent to Jurisdiction, and Choice of Law Clauses
[g] Personal Jurisdiction Tactics and Strategy
[i] A Personal Jurisdiction Defense is Easy to Waive
[ii] The Burden of Proving Personal Jurisdiction
[iii] Discovery Targeting Personal Jurisdiction
[iv] Requesting Findings of Fact on Personal Jurisdiction & Considerations for Appeal
[5] Improper Venue or Division
[a] Venue
[b] Division
[6] Insufficiency of Process
[7] Insufficiency of Service of Process
[8] Failure to State a Claim
[9] Failure to Join a Necessary Party
[10] Supplementing Motions to Dismiss with Evidence
§ 3.06 Motion to Compel Arbitration
§ 3.07 Motion for Judgment on the Pleadings
§ 3.08 Counterclaims
[1] Compulsory Counterclaims
[2] Permissive Counterclaims
§ 3.09 Crossclaims
§ 3.10 Replies
Chapter 4 - Pretrial/Motions Practice
§ 4.01 Motions Generally
[1] Researching Motions
[2] Memoranda of Law
[3] Oral Argument
§ 4.02 Researching and Arguing Motions
§ 4.03 Motions Not Directly Addressed in the Rules
§ 4.04 Motions for Sanctions
[1] Factual Sufficiency
[2] Legal Sufficiency
[3] Improper Purpose
[4] Types and Scope of Sanctions
[5] Comparison with Other Rules and Statutes Allowing Expenses or Fees
[6] Strategic Considerations
§ 4.05 Amending Claims
[1] Amendments as of Right
[2] Amendments with Leave of Court
[3] Amendments to Conform to the Evidence
[4] Relation Back of Amendments
§ 4.06 Amending Parties & Third-Party Practice
[1] Third-Party Practice
[2] Necessary Joinder of Parties
[3] Permissive Joinder of Parties
[4] Misjoinder and Nonjoinder
[5] Interpleader
[6] Intervention of Right
[7] Permissive Intervention
[8] Substitution of Parties
§ 4.07 Class Actions
[1] Predominance of Common Issues of Law or Fact
[2] Additional Certification Requirements: Representativeness, Conflicts, Interest, Numerosity, and Notice
[3] Trial Court’s Discretion to Grant or Deny Certification and Award Attorney Fees
[4] Settlement of Class Actions
[5] Practical Guidance
§ 4.08 Consolidation and Separation of Actions
[1] Consolidation
[2] Separate Trials
§ 4.09 Injunctions and Temporary Restraining Orders
[1] Temporary Restraining Orders
[2] Preliminary Injunctions
[3] Required Contents of Temporary Restraining Order and Injunctions
[4] Security for Temporary Restraining Orders and Preliminary Injunctions
[5] Dissolution and Damages
§ 4.10 Recusal or Disqualification of Judges
§ 4.11 Case Management Orders
§ 4.12 Mediation
§ 4.13 Default Judgment
[1] Entry of Default
[2] Setting Aside Entry of Default
[3] Default Judgments Entered by the Clerk
[4] Default Judgments Entered by a Judge
[5] Relief from Default Judgments
[6] Default Judgment Checklist for Plaintiffs
[7] Default Judgment Checklist for Defendants
§ 4.14 Summary Judgment
[1] Movant’s Burden on Summary Judgment
[2] Nonmovant’s Burden on Summary Judgment
[3] Materials Considered on Summary Judgment
[4] Notice Requirements
[5] Continuances under Rule 56(f)
[6] Partial Summary Judgment
§ 4.15 Offer of Judgment
[1] Making an Offer of Judgment
[2] Determining the Amount of the “Judgment Finally Obtained”
[3] Consequences of Rejecting an Offer of Judgment
[4] Strategic Considerations
§ 4.16 Confession of Judgment
§ 4.17 Voluntary Dismissal
[1] Dismissal
[2] Refiling After Dismissal
[3] Costs on Refiling
§ 4.18 Motions Addressed Elsewhere
Chapter 5 - Discovery
§ 5.01 Discovery Generally: Rule 26
[1] Persuasiveness of Federal Precedent
[2] Scope of Discovery Under Rule 26(b)(1)
[3] Work Product Under Rule 26(b)(3)
[4] Expert Discovery under Rule 26(b)(4)
[5] Rule 26(f1) and Medical Malpractice Scheduling
[6] Privilege and In Camera Review
[a] Attorney Client Privilege
[b] Physician-Patient Privilege
[c] Peer Review Privilege
[d] Implied Waiver and the Burden Framework
[7] Protective Orders under Rule 26(c)
[8] Supplementation Under Rule 26(e)
[9] Electronically Stored Information
§ 5.02 Prelitigation and Appellate Depositions under Rule 27
[1] Depositions Before Action: Rule 27(a)
[2] Depositions Pending Appeal: Rule 27(b)
§ 5.03 Depositions
[1] Noticing and Taking Depositions
[2] Video Depositions
[3] Remote Depositions
[4] Depositions of Organizations Under Rule 30(b)(6)
[5] Non-party Depositions
[6] Privilege and Limits on Compulsion
[a] Physician-Patient Privilege
[b] Self-incrimination
[c] Work Product
[d] Spousal Privilege
[7] Terminating of Limiting Depositions under Rule 30(d)
§ 5.04 Depositions upon Written Questions
[1] Service and Notice
[2] Response and Cross Examination
[3] Written Depositions of Organizations
[4] Depositions on Written Questions vs. Oral Depositions
§ 5.05 Use of Depositions in Court Proceedings
[1] Depositions as Impeachment
[2] Depositions of Witnesses Called at Trial
[3] Depositions of Parties
[4] Depositions of Unavailable Witnesses
[5] Deposition Completeness under Rule 32(a)(5)
[6] Effect of Taking and Using Depositions: Rule 32(c)
[7] Depositions at Summary Judgment
[8] Depositions in Other Proceedings
[9] Depositions for Discovery vs. Depositions for Trial
§ 5.06 Interrogatories
[1] Scope and Limitations
[2] Service and Response
[3] Objections to Interrogatories
[4] Providing Business Records in Response to Discovery
[5] Verification and Signature
[6] Supplementing Interrogatories
[7] Use of Interrogatories at Trial
[8] Drafting Checklists and the Importance of Timeliness
[a]Drafting Checklist:
[b]Responding Checklist
[c] Enforcement Checklist
[d]Timeliness: The Cardinal Rule
§ 5.07 Requests for Production of Documents
[1] Scope and Timing of Requests for Production of Documents
[2] Drafting Requests for Production of Documents
[3] Responding to Requests for Production of Documents
[4] Electronically Stored Information
§ 5.08 Physical or Mental Examination
[1] Privilege under Rule 35
[2] Comparison with Federal Rule
[3] In Controversy Requirement
[4] Good Cause Requirement
[5] Who May be Examined
[6] The Physician Limitation
[7] Scope of Rule 35 Orders
[8] Mental Examination in Family Law Cases
[9] Strategic Considerations
§ 5.09 Requests for Admission
[1] Timing and Service
[2] Scope of Requests for Admission
[3] Effect of Failure to Respond
[4] Effect of Admissions
[5] Admissions at Summary Judgment
[6] Withdrawal and Amendment Under Rule 36(b)
[7] Responding to Requests for Admission
[8] Challenging Insufficient Answers
[9] Use of Admissions at Trial
[10] Use of Admissions in Other or Future Actions
[11] Strategic Considerations for the Requesting Party
[12] Strategic Considerations for the Responding Party
§ 5.10 Discovery Sanctions
[1] Motions to Compel Under Rule 37(a)
[2] Disobeying Discovery Orders Under Rule 37(b)
[3] Dismissal as a Sanction
[4] Electronic Discovery and Rule 37(b1)
[5] Expenses on Failure to Admit under Rule 37(c)
[6] Failure to Respond under Rule 37(d)
[7] Strategic Considerations
Chapter 6 - Interlocutory Orders
§ 6.01 Interlocutory vs Final Orders
§ 6.02 Drafting Orders
§ 6.03 Findings of Fact and Conclusions of Law
[1] When Findings are Required
[a] Injunctions
[b] Domestic Violence Protective Orders
[c] Class Certification
[d] Rule 37 Discovery Sanctions
[e] Attorney Fees
[f] Rule 60(b) Rulings on Final or Interlocutory Status
[g] Substitute Judges Under Rule 63
[h] Power of Sale Foreclosure on De Novo Appeal
[i] Damages and Monetary Relief
[2]When Findings are Irrelevant
[3] When to Request Findings
[4] When Not to Request Findings
§ 6.04 Common Mistakes in Orders
[1] Reciting Testimony Rather than Adjudicating Facts
[2] Incorporating Pleadings or Documents
[3] Omitting Required Findings or Conclusions
[4] Conflating Findings and Conclusions of Law
[5] Delay in Entering an Order
[6] Not Addressing Preliminary or Jurisdictional Issues
[7] Disorganization
[8] Findings that There is No Evidence
[9] Making Findings When They Aren’t Required
[10] Relying on Memory or Unrecorded Proceedings
[11] Improperly Completing Forms
[12] Correcting Errors in Findings
§ 6.05 Nunc Pro Tunc and Out of Term Orders
[1] Nunc Pro Tunc Orders
[2] Out-of-Term, Out-of-Session, and Out-of-County Orders
[3] Correcting Misnomers
[4] Practical Advice
§ 6.06 Modifying Interlocutory Orders
§ 6.07 Appealing Interlocutory Orders
Chapter 7 - Trials and Judgments
§ 7.01 Pretrial
[1] Binding Effect of Stipulations in Pretrial Orders
[2] Modifying Pretrial Orders
[3] Admission of Evidence Not Listed in a Pretrial Order
[4] Drafting an Effective Pretrial Order
§ 7.02 Motions in Limine
[1] Expert Testimony and Motions in Limine
[2] Motion in Limine Practice
[3] Preserving Issues Raise in Motions in Limine
§ 7.03 Jury Instructions
[1] A Court’s Duty to Instruct
[2] Judges Expressing Opinions
[3] Requesting Special Instructions Under Rule 51(b)
§ 7.04 Directed Verdict, Judgment Not Withstanding the Verdict, and Involuntary Dismissal at Trial
[1] The Directed Verdict Standard under Rule 50(a)
[2] Judgment Notwithstanding the Verdict Under Rule 50(b)
[3] Motions for Involuntary Dismissal at Trial Under R
[4] Mislabeled Motions
[5] Trial Checklist
§ 7.05 Judgments
[1] Compensatory and Nominal Damages
[2] Punitive Damages
[3] Costs and Attorney Fees
[4] Declaratory Judgments
[5] Receivership
[6] Attachment
[7] Specific Performance
[8] Rescission
[9] Reformation
[10] Accounting
[11] Constructive Trust
[12] Permanent Injunctions
Chapter 8 - Post-Judgment Motions
§ 8.01 Motions for a New Trial Under Rule 59
[1] Irregularity Under Rule 59(a)(1)
[2] Misconduct Under Rule 59(a)(2)
[3] Accident or Surprise Under Rule 59(a)(3)
[4] Newly Discovered Evidence Under Rule 59(a)(4)
[5] Manifest disregard of the instructions under Rule 59(a)(5)
[6] Excessive or inadequate damages under Rule 59(a)(6)
[7] Insufficiency of the Evidence under Rule 59(a)(7)
[8] Error in law objected to at trial under Rule 59(a)(8)
[9] Relief Under Rule 59(a)(9)
[10] Partial New Trial
[11] Time for Filing New Trial Motion
[12] Hearing Procedures for New Trial Motions
§ 8.02 Relief from Judgments Under Rule 60
[1] Clerical Mistakes Under Rule 60(a)
[2] Mistake, Inadvertence, Surprise, or Excusable Neglect Under Rule 60(b)(1)
[3] Newly Discovered Evidence Under Rule 60(b)(2)
[4] Fraud, Misrepresentation, or Other Misconduct Under Rule 60(b)(3)
[5] Void Judgments Under Rule 60(b)(4)
[6] Changed Circumstances Under Rule 60(b)(5)
[7] Extraordinary Circumstances Under Rule 60(b)(6)
Chapter 9 - Appeals and Trial Practice
§ 9.01 Differences Between Trial and Appellate Courts
§ 9.02 Issue Preservation
[1] The Purposes of Issue Preservation
[2] How to Preserve Issues on Appeal
[3] Offers of Proof
§ 9.03 Notice of Appeal, Appellate Jurisdiction, and Jurisdictional Errors
[1] Timely Notice of Appeal
[2] Jurisdictional Errors
§ 9.04 Interlocutory Appeals and Alternatives
[1] Alternatives to Interlocutory Appeals
§ 9.05 Certiorari: Reviewing an Appeal Without Jurisdiction
§ 9.06 Concurrent Jurisdiction of Trial and Appellate Courts
[1] Perfection of the Appeal
[2] Functus Officio
[3] Scope of the Automatic Stay
[4] Exceptions to the Functus Officio Doctrine
[a]Actions that Aid the Appeal
[b]In Fieri Corrections
[c] Abandonment of the Appeal
[5] Family Law Orders & the Automatic Stay
§ 9.07 Non-Automatic Stays Pending Appeal
[1] Trial Court Stays
[2] Appellate Stays: Writs of Supersedeas
§ 9.08 Standards of Review
§ 9.09 Working with Appellate Counsel
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