Carteret and Craven County Litigation Attorney, Wes Collins

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After completing discovery, depositions, and pre-trial settlement procedures, it is almost time for trial.  However, there are usually a few issues that need to be resolved prior to trial.  For instance, what happens if one party has reason to believe the opponent is withholding information?  What happens if someone who is not involved in the case needs to be joined as a party? What does the Plaintiff do if she obtains information during the litigation which changes the Plaintiff’s version of events as set forth in the Complaint?  These sorts of problems will have to be solved by one party filing a Motion.

A Motion is a document that is filed with the Court.  In this document, the party asks the Court to take some action and sets forth reasons as to why the Court should do so.  The opposing party may file a document in response to the Motion, but it is not a requirement.  The Motion will be scheduled for a hearing and the parties will appear and make arguments as to why the relief should be granted or denied.  The Court will make its decision and enter an Order accordingly.

 Motion to Compel Discovery.          

When a litigant is asked to produce documents or to answer interrogatories, and he fails to do so, then the attorney may choose to file a Motion to Compel Discovery.  Whenever a party fails to produce the required information, the party seeking discovery of the information files a motion with the court asking for an Order requiring the opposing party to answer.  In order to obtain the discovery materials, it must be shown that the information or materials sought are in fact discoverable.  This means that the interrogatories and requests must be intended to lead to the discovery of evidence and information that is both relevant to some issue in the case and can also be admitted into evidence in court.  This is a very broad standard, which favors the production of evidence.

Typically, the party defending against a motion to compel is refusing to produce the information or documents based on some objection.  A responding party can use the following objections: (1) the discovery questions are not sufficiently narrow; (2) the questions are an undue burden on the party; (3) the questions are not aimed at producing relevant information; (4) the information sought is the attorney’s work product; or (5) the information is protected by the attorney-client privilege.  The attorneys for the parties then appear in court to argue the motion.  If the motion is granted, then the party who has failed to produce the discovery may be subject to sanctions such as paying the opposing party’s attorney fees associated with the motion.  If the party continues to fail to produce discovery, then the sanctions may be continuing in nature, meaning that the refusing party can be ordered to pay the opposing party’s attorney fees for each failure.  In extreme cases, the court can hand down sanctions so severe as to prohibit a party from continuing to assert a legal claim or defense, or to strike portions of the Complaint or Answer entirely.

Motion to Dismiss; Motion to Strike; Judgment on the Pleadings.

Sometimes matters can be resolved by motions and without result to a trial or evidentiary hearing.  These motions may resolve some, or all, of the claims or issues in the case.

One such motion, a Motion to Dismiss tests the legal sufficiency of the Plaintiff’s pleadings.  In other words, the Defendant asks the judge to make a determination as to whether the information set forth in the Complaint is enough to state a case for recovery.  This does not take into account any of the evidence or discovery in the case, but rather focuses on whether the Plaintiff’s legal claim passes muster.  A Motion to Dismiss can be filed at any time, but is often made part of the Answer.

A Motion to Strike is used when pleadings are presented that contain unnecessary, superfluous, or legally invalid statements.  For instance, if a Plaintiff attempts to present a legal claim that is not recognized in North Carolina, the Defendant can move to strike that portion of the Complaint.  Likewise, if a Defendant presents affirmative defenses which are not applicable to the case, then the Plaintiff can move to have those matters stricken.  If the Motion to Strike is granted, the offending statements are deleted as if they were never there.

 Another tool for resolving the case is what is referred to as a Motion for Judgment on the Pleadings.  This is not an often-used motion because Judgment can be had on the pleadings only where they fail in some respect.  This comes up in the context of a deficient Answer, meaning that the Plaintiff’s Complaint has stated a legal case for recovery and the Defendant’s Answer either fails to deny liability or fails to present any valid defense.  When the Defendant fails to adequately defend in this manner, the Plaintiff is entitled to a Judgment in his favor, marking the end of the case.

Motion for Summary Judgment.      

Other than a Motion to Dismiss, a Motion for Summary Judgment is perhaps the most commonly occurring motion in civil litigation.  Unlike the previous motions already discussed, a Summary Judgment motion takes into account discovery materials and other evidence that has been gathered in the case.  This includes any and all answers to interrogatories, documents produced, all admissions which are on file with the court, all pleadings which are verified as true by the party, and any affidavits that have been filed.  (An affidavit is a factual statement which is signed and sworn to by the individual making the statement.)

Either party may move for a Summary Judgment at any time prior to trial.  The object of the motion is to demonstrate that there is no issue of fact which deserves to be determined at a trial, leaving the application of the law up to the judge.  In a Motion for Summary Judgment, the parties present all evidence which supports their cases.  If, after presenting all of the evidence to the judge, the judge determines that there are no facts which are in dispute, he or she will then apply the law to the facts of the case to achieve a result.  Summary Judgment can be granted to either the Plaintiff or the Defendant, and the party responding to the motion is entitled to move for Summary Judgment orally at the time of the hearing.

Since every party is entitled to a day in court, Summary Judgment is not lightly granted.  The evidence must clearly and overwhelmingly support one side’s legal view of the case in order for Judgment to be granted.  The nature of the legal claim has much to do with whether the motion will be granted.  For instance, contract interpretation is a matter that can usually be determined by a judge.  Therefore, courts are much more likely to grant a Summary Judgment where a contract or a lease is involved.  On the other hand, negligence tends to deal with whether the actions of one of the parties were reasonable.  In such cases, whether a party’s actions were reasonable is almost always a factual issue that will be submitted to a jury.


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