Articles in the Civil Procedure-General category - Page 2 of 7

Service of process—service of the documents initiating a civil lawsuit—is a frequent issue of concern for judicial officials and practitioners. Typically, we are concerned about service of process because it […]

If wife filed a complaint requesting child support, alimony, and property distribution in Watauga County and a few weeks later, while wife’s claims remained pending in Watauga County, husband filed […]

Although the vocabulary of preclusion can be convoluted, the core concept is not: preclusion prevents relitigation of matters that have already been decided. The doctrine is intended to protect both […]

Appropriate service of process is one of the necessary elements for personal jurisdiction—meaning the documents used to initiate a civil lawsuit, a summons and complaint, must be served on the […]

Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution.

Financial exploitation of an older adult is a type of elder abuse.  It occurs in many forms.  A door-to-door home repairman defrauds an older adult out of her life savings.  […]

It’s almost embarrassing how many posts we’ve done about the Servicemembers Civil Relief Act (SCRA). (See here, here, here, and here, and also a bunch of others where it is […]

The Court of Appeals has issued two very recent opinions that remind us that parties may not be sanctioned without proper notice.  The party must have notice not only of the fact that sanctions are on the table but also of the specific basis for those sanctions.

In both cases, the defendant was given a severe sanction that effectively decided the issue of liability in the plaintiffs’ favor.  In neither case did the Court of Appeals suggest that the sanctions themselves were out of proportion to the conduct. The sanctions were reversed because due process demands a degree of notice not provided in either situation.

A hypothetical:  Mr. Stone filed a tort action against a nearby grocery store after he was injured in the dairy aisle. A week later—just after the statute of limitations expired—Mr. Stone’s attorney discovered that the complaint and summons misstated Defendant’s name. The attorney moved to amend the complaint and summons to change the store’s name from “Brightline Foods, Inc.” to “Brightline Foods NC, Inc.,” and the court allowed it.  Now Brightline Foods, NC, Inc. moves to dismiss the suit, arguing that Mr. Stone did not sue it before the statute of limitations expired. Should the trial court grant the dismissal?  The answer lies in whether Mr. Stone actually corrected a “misnomer” of the original Defendant or named a new Defendant altogether.

According to Hollywood, court process is served by guys wearing backward baseball caps pretending to deliver pizzas. They roll up, toss a summons-stuffed cardboard box at an unsuspecting defendant-to-be, then ride away proclaiming, “You’ve been served, dude!” (Remember Seth Rogan practicing for the gig in Pineapple Express? Oh, wait. I mean, no, I haven’t watched that movie either.)

Of course this isn’t how private process servers really do things. Even in states where private process servers are authorized to do this work, they typically have to follow a tighter set of rules. But in North Carolina, things are even stricter—the use of private process servers is very limited in the first place.  In most cases, the sheriff is the proper service agent for personal service of summonses, and the sheriff must refuse or neglect to serve, or must actually try and fail to effectuate service, before private process servers come into play.  Locklear v. Cummings, 822 S.E.2d 587, 593 (N.C. Ct. App. 2018); N. Carolina State Bar v. Hunter, 217 N.C. App. 216, 224 (2011).