Chapter 4: The Answer and SOL Flashcards
What is an answer?
Response to P’s complaint or counterclaim
Must admit, deny, or plead lack of sufficient knowledge
What is the time for answering a complaint?
NC 30 days
FRFP: 21 days after service, 60 days if waiver
FRCP: If motion to dismiss denied; 14 days of courts denial
NC: if a motion to dismiss denied; w/in 20 days of notice of denial
Affirmative defenses
Waived if not plead in answer
Must contain a short and plain statement of any affirmative defense sufficiently particular to give the court and parties notice of the tx and occurrence intended to be proved.
Reply
Response to Ps answer. Must be served 21 days after being served w/ order to reply.
SOL
Begins to run when the claim for relief accrues
Specific time period w/in which legal claims must be brought d
Generally 3 years UCC: 4 Wrongful death: 2 Libel: 1 Adverse possession: 20
North Carolina Discovery Rule
Claim for neg accrues when p knows or reasonably should know of harm
No c/a may accrue more than 10 years form the D’s last act that gave rise to claim
Discovery rule professional malpractice
Generally 3 year sol
accrues at time of D’s last act that gave rise to c/a
If damage is not readily apparant and damage is discovered or reasonably should be discovered two or more years after D’s last act, Claimant has 1 year from the date of injury to file suit.
D can’t be sued more than 4 years from last act. Unless foreign object negligently left in body, the P must still file suit w/in 1 year of discovery, but has up to 10 years after D’s last act.
When is SOL tolled?
Incapacity: under 18, insane, incompetent when c/a accrues.
P may bring c/a w/in appropriate limitations period after disability removed.
If a person is outside NJ jx when action accrues against her when may the c/a be commenced?
W/in time prescribed after her return
If after accrual she departs and resides out of state or is for 1 year, the time of her absence is not counted against SOL
If P dies before SOL period expired
If the claim survives death, P’s personal representative has 1 year from P’s death to commence action
If D dies
If D dies before expiration of SOL, and c/a survives, an action may be commenced against the decedent’s estate.
No actions allowed after estate has been settled.
Statute of repose
Begins to run when a specific event occurs whether or not c/a accrued or injury resulted.
If P doesn’t sue before period has run, the D has a vested right not to be sued.
Damages to property
Actions arising our of defective or unsafe condition or an improvement to real property, against persons who performed or furnished design, planning, supervision, or construction of the improvements, must be brought w/in 6 years of the later of:
D’s specific last act of omission or
substantial completion of project.
Doesn’t apply to person in possession or control as an owner.
Product defect
Actions for recovery of damages for personal injury, death, or damage to property based on an alleged product defect must be brought w/in 12 years after the initial purchase of the product for use or consumption.
Amendment by right
A party may amend a pleading once as a matter of course before a responsive pleading is served.
If no responsive pleading is required and the action has not been placed on the trial calendar a party can amend w/in 30 days after the pleading was served. A 12(b) motion is NOT a responsive pleading in NC so P has a right to amend after 12(b) motion.
Otherwise a party must seek leave of the court or written consent from adverse party.
FRCP: by right w/in 21 days if no responsive pleading or being served w/ 12(b) motion; otherwise during after trial if if conforms to evidence and opposing party has had opportunity to prepare.
Court should freely give leave to amend when justice so requires and won’t unduly prejudice opposing party.
