A Notice of Designation must be actually filed in the county in which the case originated within thirty days of receipt of service of the Complaint in order to be timely, not just served within that time frame.
N.C. Gen. Stat.Sec. 7A-45.4(b) allows a defendant to designate an action as a complex business case "by filing a Notice of
Motion to Dismiss granted where there were "patent inconsistencies" in the Complaint in Plaintiff’s claims of fraudulent inducement regarding an employment agreement.
The Court held "it is patently inconsistent for [one of the Plaintiffs] Hittle to allege, on the one hand, that Defendant never intended to pay the wages promised, and on the other, that Defendant
A party cannot use its own response to an opposing party’s Requests for Admission in order to defeat a Motion for Summary Judgment.
The Court held that "while admissions of a party-opponent are not hearsay, ‘a party may not utilize his own admissions at trial.’" Since evidence that would not be admissible at trial may
A settlement agreement between the plaintiff and a co-defendant was discoverable. Motion to Compel granted.
A counterclaim by a member of a North Carolina LLC against the LLC’s lender for aiding and abetting a breach of fiduciary duty was derivative, not direct.
The Court relied on “[t]he well-established general rule . . . that shareholders cannot pursue individual causes of action against third parties for wrongs or injuries to the corporation that
Covenant Equipment Corp. v. Forklift Pro, Inc., 2008 NCBC 10 (N.C. Super. Ct. May 1, 2008)(Tennille)
A service of process issue and a covenant not to compete issue in one decision from the Business Court. It doesn’t get any more exciting than this. But, seriously, this is a significant procedural decision from the Court, please read on. (As always, there is a link to the full opinion above).
On the service issue, the delivery of the Complaint to one of the Defendants, Carnie, had not been made in precise compliance with Rule 4 of the North Carolina Rules of Civil Procedure. The Sheriff had left the Summons and Complaint at Carnie’s house in South Carolina, but had not delivered it personally to Carnie and had not left it with another person at the residence. According to Carnie’s Affidavit, the papers had been "left stuck in a crack between my doors" by a Deputy Sheriff with the last name of "Fudge."
The Court overruled the Motion to Dismiss for insufficiency of service of process because it found that Carnie had evaded service. Looking at federal decisions, Judge Tennille ruled that leaving the Summons and Complaint at Carnie’s residence was adequate service given Carnie’s efforts to evade proper service.
But the groundbreaking part of the the decision on the service issue was the Court’s ruling that Carnie had waived his objection to service because he had filed a Notice of Designation of the case to the North Carolina Business Court. Judge Tennille held that "the filing of a Notice of Designation in an action constitutes a general appearance for the purpose of personal jurisdiction." Thus, the objection to the sufficiency of service was waived.
The Court’s decision goes beyond service of process. Most significantly, if you are representing a Defendant planning to move to dismiss for lack of personal jurisdiction, you will waive that argument by filing a Notice of Designation to the Business Court. To keep it alive, the Notice of Designation must contain an objection to personal jurisdiction. Carnie’s Notice did not.Continue Reading A Notice Of Designation To The Business Court Is A General Appearance For Jurisdictional Purposes
Ikerd v. Greenwood, 2008 NCBC 9 (N.C. Super. Ct. April 30, 2008)(Tennille)
Yesterday, the Business Court provided more clarification on the requirements for making a timely designation of a case to the Business Court.
It held that a Notice of Designation must be actually filed in the county in which the case originated within thirty days
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The answer to the question above is probably you, if you are reading this blog.
So, you might be interested in a powerpoint presentation that Judge Jolly and Judge Diaz made at the 2006 Conference of Superior Court Judges, on the Unfair and Deceptive Practices Act.
It seems like a claim under that statute is
Warren v. Eli Research, Inc., April 28, 2008 (Diaz)(unpublished)
Inconsistent allegations in the Complaint doomed the claim for fraudulent inducement by one of the Plaintiffs in this case.
That Plaintiff, Hittle, alleged that the Defendant had promised her an annual salary of $150,000, guaranteed for 12 months, but that it had no intention of fulfilling this promise when made. The Defendant booted Hittle only a few months after she began employment.
What led to the granting of Defendant’s Motion to Dismiss were Hittle’s allegations in the Complaint that she had begun her employment, worked for three months, been paid for that work, and that she was terminated for "financial reasons."
The Court held "it is patently inconsistent for Hittle to allege, on the one hand, that Defendant never intended to pay the wages promised, and on the other, that Defendant in fact performed in part and that it failed to complete performance for reasons unrelated to its intent." The Court held that partial performance of a contract demonstrates a party’s intention to fulfill the promise at the time it was made, undermining Hittle’s claim on its face.Continue Reading Fraud In The Inducement Claim Dismissed Due To “Patent Inconsistency” In Complaint
Each year, the United States Chamber Institute for Legal Reform rates the "Lawsuit Climate" for business in each of the fifty states. The Institute just released its 2008 Report. North Carolina ranked 21st overall, down from a ranking of 16th in 2007 and 10th in 2006.
The rankings are based on a survey of