Part 1 of this series discussed the pleadings, or documents that are used in the beginning stages of any civil case that is filed in either state or federal court. Part 2 examined some of the motions that are available to both plaintiffs and defendants in court cases. Part 3, the final installment in this series, concludes with additional motions that are available to the parties in a civil lawsuit.
Motion To Compel
When one party refuses to cooperate in the discovery process, the other party can file a motion to compel, or force, them to cooperate in accordance with North Carolina Civil Rule of Procedure 37. For example, if the defendant refuses to answer interrogatories in the prescribed time frame, the plaintiff can file a motion to compel which is a request to the judge to order the defendant to comply with discovery and provide answers to the interrogatories.
A motion to compel can also be filed if the party answering the interrogatories gives an evasive or incomplete answer. If the motion is granted, a judge can order the non-compliant party to pay the other party’s expenses incurred in filing the motion, such as attorneys fees.
If a defendant refuses to comply with the court's order enforcing discovery, then the court can order additional sanctions including a default judgement against the party and prohibiting the party from introducing any evidence related to the matter to which they failed to answer in court.
Motion for Summary Judgment
Summary judgment motions are another extremely powerful tool that parties can use to try to prevent a case from going to trial. Like a motion to dismiss, a summary judgment motion asks the court to make a determination on one or more issues prior to going to trial. In order to succeed in a summary judgment motion, the party filing the motion needs to show that “no genuine issue of material fact exists,” or that the facts are not in dispute.
Either party can file a motion for summary judgment. A defendant filing a summary judgement motion might be asking a judge to consider all of the pleadings filed in a case thus far, along with the motion, and make a finding that “no genuine issue of material fact exists,” which equates to a finding that even if a plaintiff were given a chance to present his/her case to a judge or jury, there is no way that the judge or jury could find in the plaintiff’s favor.
When considering a motion for summary judgment, a judge is required to to consider the evidence in the light most favorable to the party opposing the motion. Therefore, if there is any issue that could be in dispute, summary judgment will not be granted.
In North Carolina, which follows the contributory negligence doctrine, summary judgement is even more complicated. If a defendant can successfully argue that the plaintiff was even partially responsible for his/her injuries, then he/she will be precluded from recovering damages under contributory negligence. In order to show that a plaintiff was partially at fault, the defendant will have to show a (1) lack of ordinary care and (2) connection between the plaintiff’s negligence and the injury. This is a difficult burden to meet in a summary judgment motion, and North Carolina courts have routinely held that contributory negligence is not appropriate for summary judgment.
Motion for a Directed Verdict and Motion for Judgement Notwithstanding the Verdict
North Carolina Rule of Civil Procedure 50 allows a party to make a motion for a directed verdict and a judgement notwithstanding the verdict.
A motion for a directed verdict can be made either at the end of the plaintiff’s presentation of evidence, or at the end of the presentation of all evidence. For example, a defendant can make a motion for directed verdict after the plaintiff prior to putting on his/her case, asking for a verdict that the evidence presented is “insufficient as a matter of law” to go to a jury. In a personal injury case, a defendant may try to show that the plaintiff was in fact the one who caused the injury and therefore the evidence is insufficient as a matter of law to make a finding in the plaintiff’s case.
A motion for judgment notwithstanding the verdict is made after one party has made a motion for a directed verdict. The party filing the motion is asking the court to set aside the verdict. Typically this is accompanied by a motion for a new trial.
Timing
Court cases are extremely complicated, it is more than just filing a complaint and then presenting the case to a judge or jury. There are numerous roadblocks, in the form of motions and other procedural requirements, that prevent civil claims from ever reaching a judge or jury.
Time is an important component in any personal injury case. Before even filing any pleadings, a plaintiff must make sure that they are filing timely, meaning that they are filing within the time prescribed by the applicable statute of limitations; failure to file timely could result in a motion to dismiss.
The Civil Rules of Procedure in connection with local rules, contain time limits in which pleadings must be filed. For example, defendant’s are required to file an answer to a complaint within 30 days of receiving a plaintiff’s complaint. Typically a defendant may request an additional 30 days in which to answer the complaint. Defendant’s who fail to answer within the 30 days or request an extension, might be subject to a motion to dismiss.
Hiring a Charlotte attorney who understands the complexities of the law, as well as what pleadings need to be filed, what information they should contain and when they need to be filed can make or break a case.
If You Considering Filing a Lawsuit Our Charlotte Attorneys Can Help
If you are considering filing a lawsuit you should speak with an attorney to understand the legal process and to determine the likelihood of successfully recovering damages. The Charlotte NC based lawyers at Rosensteel Fleishman, PLLC are experienced personal injury attorneys who can help. Please contact our office at 704-714-1450. There is no fee for an initial consultation