...consist in an absence of law to support a claim of the sort made, or a fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim, but a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Despite the liberal nature of the concept of notice pleading, however, a complaint must nonetheless state enough to give the substantive elements of at least some legally recognized claim or it is subject to dismissal under N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 12(b)(6). A claim for relief must still satisfy the requirements of the substantive laws which gave rise to the pleadings, and no amount of liberalization should seduce the pleader into failing to state enough to give the substantive elements of his claim. While an incorrect choice of theory should not result in dismissal of the claim, the allegations must suffice to state a claim under some legal theory. Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13 (N.C. Ct. App. 1982). Our Supreme Court has stated: "'A [complaint] may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or a fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim,' [b]ut a complaint should not be dismissed...
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...Relevant Facts Richard, a resident of Raleigh, NC, files a lawsuit against Brad, who lives in Durham, NC. Richard files his action in North Carolina state trial court. "The Plaintiff alleges: 1. On or about April 5, 2013, Brad walked into Richard's office and there illegally and feloniously assaulted and battered Richard, thereby causing to Richard great pain and suffering. 2. On or about April 5, 2013, Brad caused Richard to be unlawfully confined in a bound area, causing great physical and emotional suffering on the part of Richard. 3. As a proximate result of Brad's wrongful and unlawful conduct, Richard suffered physical and emotional injuries worth the sum of $200,000. Wherefore, Plaintiff demands that Brad be forced to pay to Richard the sum of $200,000 in compensatory damages, $1,000,000 in punitive damages and any other relief that the court deems just and proper." The complaint is properly captioned, signed and served on Brad. Brad moves to dismiss the action on the ground that the complaint was not specific enough and therefore must be dismissed because it fails to state a claim upon which relief can be granted. Issue According to North Carolina law, was the complaint specific enough to sustain a claim on which relief can be granted? Rule Under North Carolina law, “[a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim shall contain a short and plain statement of the claim sufficiently...
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...Facts The facts as they are presented to us state that Richard, a resident of Raleigh, North Carolina, files a lawsuit against Brad, who lives in Durham, North Carolina in North Carolina state trial court for illegal and felonious assault and battery, as well as being unlawfully confined and bound in an area. These acts caused Richard great physical and emotional suffering, at the hand of Brad. Richard is seeking compensatory and punitive damages against Brad. Brad moves to dismiss the action on the grounds that the complaint was not specific enough. Issue Our issue here is whether or not the complaint fails to state a claim upon which relief can be granted under North Carolina case law. Rules “In reviewing a N.C. R. Civ. P. 12(b)(6) motion, a court must determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. The trial court may grant this motion if there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim”. Rule 8 of the General Rules of Pleading, also states that there must be a short and clear statement made in the claim that the party is if fact, entitled to relief. Pursuant to affirmative defense, if Brad introduces evidence found to be credible, regardless if he committed the crime or not, he...
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...thus far in the same manner as a practicing attorney. Working within a group also afforded each of us the opportunity to draw on each other’s strengths throughout the process. Although we discussed the elements of each claim at length, we did not disagree on whether to include or omit any of the suggested claims listed in the assignment. Subject Matter Jurisdiction - Federal Question We examined the issues of jurisdiction first. Count 1 of the complaint arises under the Indian Arts and Crafts Act of 1990. 25 U.S.C. §305(e). Count II of the complaint pertains to Federal Trademark dilution pursuant to 15 U.S.C. §1125(c). Both of the allegations arise under federal substantive law. Therefore, we determined that the court may exercise jurisdiction under 28 U.S.C. §1331. Additionally, we carefully crafted the wording of the complaint to comport with the well-pleaded complaint rule. Mottley. Subject Matter Jurisdiction - Diversity We also determined that the court would be able to exercise subject matter jurisdiction based on diversity under 28 U.S.C. §1332. Plaintiff Big Crow is a resident and citizen of South Dakota. The corporate defendant, Brewing Company, is incorporated in the state of New York and also has its principal place of business in the state of New York. Based on these findings, there is complete diversity of citizenship between the two parties. Additionally, the amount in controversy exceeds $75,000. Thus, the court may exercise subject matter jurisdiction...
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...897 F.2d 646 UNITED STATES of America, Appellee, v. Kuang Hsung J. CHUANG, a/k/a "Joseph Chuang", Appellant. No. 692, Docket Nos. 89-1309, 89-1406. United States Court of Appeals, Second Circuit. Argued Feb. 7, 1990. Decided Feb. 28, 1990. Herve Gouraige, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Martin Klotz, and Kerri M. Bartlett, Asst. U.S. Attys., on the brief) for appellee U.S. Robert S. Litt, Washington, D.C. (Bruce S. Oliver, Elena Kagan, and Williams & Connolly, Washington, D.C., on the brief) for appellant Kuang Hsung J. Chuang. Before TIMBERS, NEWMAN and ALTIMARI, Circuit Judges. TIMBERS, Circuit Judge: 1 Appellant Kuang Hsung J. Chuang appeals from a judgment of conviction entered August 1, 1989, in the Southern District of New York, Miriam Goldman Cedarbaum, District Judge, 696 F.Supp. 910, upon a jury verdict on twenty-two counts, including misapplication of bank funds, making false statements to bank regulatory officials, other substantive counts, and conspiracy. The district court denied Chuang's pretrial motions to suppress evidence obtained from warrantless searches of his bank and law offices. 2 On appeal, we find that the chief claim of error raised by Chuang is that the district court erred in denying his suppression motions. Other claims of error have been raised and considered. 3 For the reasons which follow, we affirm the judgment of conviction. I. 4 We shall summarize only those facts and prior proceedings believed...
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...bankruptcies of the 1800s, the Great Depression of the 1930s, two world wars, a capital shortage when it was spun off by American Express in 1994, and the Long Term Capital Management collapse and Russian debt default of 1998. However, despite its ability to survive past disasters, the collapse of the U.S. housing market ultimately brought Lehman Brothers to its knees, as its headlong rush into the subprime mortgage market proved to be a disastrous step. As the credit crisis erupted in August 2007 with the failure of two Bear Stearns hedge funds, Lehman's stock fell sharply. During that month, the company eliminated 2,500 mortgage-related jobs and shut down its BNC unit. In addition, it also closed offices of Alt-A lender Aurora in three states. Even as the correction in the U.S. housing market gained momentum, Lehman continued to be a major player in the mortgage market. In 2007, Lehman underwrote more mortgage-backed securities than any other firm, accumulating an $85-billion portfolio, or four times its shareholders' equity. In the fourth quarter of 2007, Lehman's stock rebounded, as global equity markets reached new highs and prices for fixed-income assets staged a temporary rebound. However, the firm did not take the opportunity to trim its massive mortgage portfolio, which in retrospect, would turn out to be its last chance....
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...Case Example a In this case Elaine is the plaintiff and she has filed a lawsuit against Jerry for firing her. She claims she was fired without any reason. She was also told that opportunities in the company were there for her and she was provided with a salary position that paid $30,000 annually. The employer is an “at will employer”. The opportunity promised by her employer was given to another worker named Kramer who had less experience and a lower level of education than Elaine. The lawsuit is based upon wrongful termination and she looks to get her job back. The legal issues in this case involve the promise of job opportunities. With the company being an “at will” employer does that relieve them of offering an explanation as to their reasons for firing Elaine? Did the employer violate any ethics or discrimination laws in terminating her position? Is there sufficient evidence on behalf of the plaintiff that can prove such violations took place? Elaine and her attorney will focus on a statutory exception or a contract exception. Elaine received an offer letter promising great career opportunities which included an annual salary of $30,000. Elaine’s attorney may use this to argue that long-term employment was implied and that she was fired without just cause. Discrimination could be a part of Elaine’s case in that someone else; a man with less experience and education was given the position that she had been promised. She was fired without being given any reason for doing...
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...Filed 5/30/12 Viadro v. Titus CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE |JULIANNE VIADRO AS LIQUIDATING TRUSTEE FOR HUMBOLDT CREAMERY, LLC, | | |Plaintiff and Respondent, | | |v. |A132331 | |RALPH A. TITUS et al., | | |Defendants and Respondents, |(Humboldt County | | |Super. Ct. No. DR091101) | |LINDA NICHOLSON et al., | | |Movants...
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...MEMORANDUM To: Reader From: Date: Re: Can A State Court Exercise Personal Jurisdiction Over A Non-resident Summary of Facts Plaintiff, Froogle's action is based upon the claim that Mary, violated a signed agreement with Froogle. Froogle is a California company that provides internet search services. Mary is a resident of Vermont and a proprietor of a small business in Vermont specializing in the manufacture and sale of ski equipment to Vermont ski resorts. Two months after the signing of the contract, Froogle filed a lawsuit against Mary claiming that she violated the signed agreement. The lawsuit was filed in the Superior Court for the County of Monterey in Salinas, California. Mary claims that the California court does not have personal jurisdiction over her, because all her business dealings with Froogle were done online or via the telephone. Froogle claims that the California court has personal jurisdiction over Mary, because she knowingly did business with a California company. Issue: Can the California state court exercise personal jurisdiction over a non-resident who advertised on the internet? Rules: Pursuant to California Code of Civil Procedure section 410.10 (2014), "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." The court in Bancroft & Masters v. Augusta Nat'l, 223 F.3d 1082 (9th Cir. Cal. 2000), found that because ANI's contacts did not qualify...
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...property like the roof, walls, floors and general conditions. The interview with the managers obtains information about the characteristics of the warehouses that are not readily observable. The information obtained is very important in the preparation of the fiscal year reports and the determination of the disposal price. Accounting The auditor makes sure that all the assets accounted on the balance sheet are real, the management in addition, has the authority over any asset they claim the organization owns, and that there are no claims against the assets in the balance sheet that aren’t recorded. The on-site visits and the manager interviews therefore provided sufficient proficient evidential matter that afforded the reasonable basis for the opinion regarding the fiscal year statement being audited (The Codification of Statements on Auditing Standards, AICPA, and AU Section 326) Categories of findings According to the interviews and onsite visits findings 23 warehouses reside in states with special asbestos handling and removal laws during building demolitions or significant renovation. LOI plans to sell 10 of these warehouses within the next five years and plans not to demolish or renovate the warehouse prior to disposal. LOI will never effectively settle the obligation to remove the asbestos from the warehouse, there is no ARO that needs to be recognized due to availability of a...
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...In this case Elaine is the plaintiff and she has filed a lawsuit against Jerry for firing her. She claims she was fired without any reason. She was also told that opportunities in the company were there for her and she was provided with a salary position that paid $30,000 annually. The employer is an “at will employer”. The opportunity promised by her employer was given to another worker named Kramer who had less experience and a lower level of education than Elaine. The lawsuit is based upon wrongful termination and she looks to get her job back. The legal issues in this case involve the promise of job opportunities. With the company being an “at will” employer does that relieve them of offering an explanation as to their reasons for firing Elaine? Did the employer violate any ethics or discrimination laws in terminating her position? Is there sufficient evidence on behalf of the plaintiff that can prove such violations took place? Elaine and her attorney will focus on a statutory exception or a contract exception. Elaine received an offer letter promising great career opportunities which included an annual salary of $30,000. Elaine’s attorney may use this to argue that long-term employment was implied and that she was fired without just cause. Discrimination could be a part of Elaine’s case in that someone else; a man with less experience and education was given the position that she had been promised. She was fired without being given any reason for doing so, which also gives...
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...------------------------------------------------- “How accurate were Southern claims in the antebellum period that slavery was benign and profitable?” ------------------------------------------------- By 1850 the issues surrounding slavery had dominated American politics because it was such a divisive issue in the antebellum period. Slavery was extremely important to Southern economics where ‘plantation’ farming had been established and laws passed which meant that all Negro slaves would be slaves for life. In the North, however, they found it easy to rid themselves of slavery and many states began to oppose slavery. Another important and again divisive question is was slavery benign or malignant and also was it profitable? In the antebellum period there were Southern claims that slavery was both benign and profitable. This claim can be argued to be partly accurate, but there are, however, other claims that slavery was malignant and unprofitable. This essay will weigh up and evaluate the evidence under the terms of punishments, revolts, living conditions and profitability before coming to the conclusion as to whether slavery was benign and profitable or malignant and unprofitable. An important aspect to consider when determining whether or not the Southern claims that slavery was benign in the antebellum period were accurate or not is the punishments faced by slaves. It has been argued that slaves were controlled through rewards rather than physical punishments....
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...Scholar and Lexis Nexis to find the article relating to the legal concept this case addresses. NATURE OF THE CONTROVERSY: Darwin Kruse, an employee of Coos Head Timber Company, was suing his employer because he claimed he lacked sufficient mental capacity to understand the compensation agreement he signed after suffering injuries from an accident at work. PROCEDURAL HISTORY: This case was brought before the court because Darwin Kruse, an employee of Coos Head Timber Company, is seeking to recover damages for injuries he suffered as a result of an accident he had at work. Darwin Kruse, the appellant, was removing rock from the inside of a base of an elevator mechanism. While doing so, the tower vibrated and a piece of wood from the top of the tower fell and struck him on the back of the head. After the accident, Mr. Kruse signed a compensation agreement with his employer, Coos Head Timber Company. In the agreement he received compensation for the accident and released his employer from any further claims for damages. Mr. Kruse claimed the agreement should not be enforced because he entered into it under circumstances of fraud and misrepresentation. Mr. Kruse also argued that the compensation agreement should not be enforced because he lacked sufficient mental capacity because he was mentally retarded and suffered from posttraumatic psychoneurosis as a result of the accident. Additionally, Mr. Kruse accused his employer of common law negligence and violating the Employers’...
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...MEANING OF PLEADINGS INTRODUCTION The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court. Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’ With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower. In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them Provisions relating to pleadings in civil...
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...Introduction: II. State Citizenship of Individuals: The Domicile Test 1. Common Law concept of Domicile: a. Residence with the intent to remain “indefinitely.” b. Has been used for several purposes. For example: to determine the power to exercise personal jurisdiction over a person, to grant a divorce, to impose a tax or to determine the persons entitled to inherit property. 2. Losing and gaining a domicile: a person does not lose her old domicile until she acquires a new one, that is, until she hoes to another state wit the intent to reside indefinitely in the new state. (Examples on pg 45-46). 3. Meaning of “indefinite intent: often, courts state that it is enough that the party “intends to make the new state his home and that he has no present intention of going elsewhere [to live].” 4. Alternative formulation of the domicile test: to establish a domicile of choice a person generally must be physically present at the location and intend to make that place his home “for the time at least.” 5. The date for determining diversity: parties must be diverse on the day the complaint is filed, even if the parties were not diverse at the time of the events giving rise to the claim. c. This promotes efficiency: 6. Evidence of domicile contrasted with the test for domicile: examples are a drivers license, health insurance, her apartment her religious affiliations and other facts (Gordon v. Steele);...
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