The Court refused to dismiss counterclaims against third party defendants as a result of the defendant’s failure to serve them with process, even though the third party defendants had filed a motion to dismiss before the service error was corrected.
Bank of America Corporation v. SR International Business Insurance Company, Ltd., 2006 NCBC 15 (N.C. Super. Ct. Nov. 1, 2006)(Tennille)
This case presents the logical corollary to Analog: how should the issue of retrieval of electronically stored information, and the inevitable cost, be allocated when a non-party holds the information?
The target of the subpoena had produced approximately 50,000 documents in response to a subpoena, but balked at retrieving and producing deleted emails contained on
Analog Devices, Inc. v. Michalski, 2006 NCBC 14 (N.C. Super. Ct. Nov. 1, 2006)(Tennille)
The issue here concerned the now familiar problem of the duty of a party to retrieve electronic data from back-up media, and how the cost of that effort should be allocated. The Court engaged in a thorough review of the various approaches to the issue, ranging from the now-famous Zubulake opinion to the Sedona Principles
Chemcraft Holdings Corp. v. Shayban, 2006 NCBC 13 (N.C. Super. Ct. Oct. 5, 2006)(Tennille)
Plaintiff’s counsel had verbal discussions with the defendant, before litigation began, about the possibility of representation against his former employer. In the course of those discussions, the defendant sent counsel an email containing confidential information about the potential litigation. Plaintiff’s counsel had never looked at the contents, and thereafter represented the employer.
Defendant moved to
Kornegay v. Aspen Asset Group, LLC, 2006 NCBC 12 (N.C. Super. Ct. Sept. 26, 2006)(Diaz)
Following a thorough discussion of the elements of a valid contract, the Court found a question of material fact whether the parties had agreed on all the material terms of the contract which plaintiff claimed entitled him to a significant bonus. Plaintiff was not required to show that the bonus had actually been paid in
Maloney v. Alliance Development Group, LLC, 2006 NCBC 11 (N.C. Super. Ct. Sept. 18, 2006)(Diaz)
The Court denied a motion for a preliminary injuction and for appointment of a receiver, where the plaintiff claimed that transfers would be in violation of the Uniform Fraudulent Transfers Act. The Court determined that plaintiff was not a creditor and therefore could not obtain an injunction under the UFTA. Plaintiff’s alleged equity interest did
Blitz v. Xpress Image, Inc., 2006 NCBC 10 (N.C. Super. Ct. Aug. 23, 2006, amended Aug. 25, 2006)(Diaz)
Plaintiff sought damages, as the representative of a class, for violation of the Federal Telephone Consumer Protection Act. The Court found that individualized issues would predominate, and that class certification therefore was not appropriate. The individual issues were whether any class member had given the defendant "express permission" to send the advertisement, and whether any
Adams v. A.J. Ballard Jr. Tire and Oil Co., 2006 NCBC 9 (N.C. Super. Ct. June 20, 2006)(Tennille)
As the Court framed the issues, this case concerned: (a) whether refiners may be held liable for underground storage tank leaks or spills at sites they do not own (it held they could not), (b) what causes of action and statutes of limitation and repose apply to leaks or spills that contaminate drinking water under
Wachovia Bank v. Deutsche Bank Trust Company Americas, 2006 NCBC 8 (N.C. Super. Ct. June 2, 2006)(Diaz)
The Court granted the defendant’s motion to stay the action so that a related action pending in New York could proceed, pursuant to N.C.G.S. §1-75.12. The Court considered the following factors: "(1) the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative
Media Network, Inc. v. Mullen Advertising, Inc., 2006 NCBC 7 (N.C. Super. Ct. May 24, 2006)(Diaz)
The Court refused to allow the defendant to amend its answer to add counterclaims. It found that the defendant had known of the facts relating to the counterclaim for nearly a year before seeking leave to amend, and that defendant had unduly delayed in seeking an amendment. It found that the plaintiff would be prejudiced