If you need to file a lawsuit, in which court should you file? As an initial matter, you need to determine the amount in controversy. If the amount in controversy does not exceed $5,000.00, then you may file a small claim action in District Court. If the amount in controversy is $10,000 or less, then the District Court has jurisdiction. If the amount in controversy exceeds $10,000, then you must file in Superior Court.
If you attempt to file your lawsuit in the wrong court, the clerk of the court or the judge will dismiss your case and you will lose your filing fee. In most circumstances, you can refile your claim in the proper court.
StatonBlog
23 July 2010
08 July 2010
Another Victory for Gripers
Eric Goldman posted yet another case where a trademark owner sued a gripe site and lost, but this time the court awarded the defendant its attorneys' fees in the amount of $23k.
It seems like the courts have announced the way to combat gripe sites: more speech. Just as the griper is free to tell their story on their own web site, so, too, is the trademark owner entitled to tell their side of the story on their web site. Trademark owners would be wise to remember this before marching into federal court to stamp out the speech of the gripers.
It seems like the courts have announced the way to combat gripe sites: more speech. Just as the griper is free to tell their story on their own web site, so, too, is the trademark owner entitled to tell their side of the story on their web site. Trademark owners would be wise to remember this before marching into federal court to stamp out the speech of the gripers.
07 July 2010
Time Flies
Wow! I can't believe that I last posted in February. Time flies when you are getting things done. I'm still busy, but you should expect more posts soon.
Service by Publication and Judgment: the bond conundrum
You've served your defendant by publication under the Rules of Civil Procedure and the defendant failed to answer or otherwise defend the complaint. You file for entry of default judgment, the clerk grants it, and you move for judgment. In North Carolina, the court will not enter a judgment on your behalf without a bond. North Carolina Rule of Civil Procedure 55(c) states:
When service of the summons has been made by published notice, no judgment shall be entered on default until the plaintiff shall have filed a bond, approved by the court, conditioned to abide such order as the court may make touching the restitution of any property collected or obtained by virtue of the judgment in case a defense is thereafter permitted and sustained; provided, that in actions involving the title to real estate or to foreclose mortgages thereon or in actions in which the State of North Carolina or a county or municipality thereof is the plaintiff such bond shall not be required.
The statute raises two questions: in what amount must the bond be issued and for how long must the bond be in effect? The statute does not answer either question and there exists no case law determining the proper amount or time. The best that we can discern from the statute is that the bond must be approved by the court. Indeed, in my experience, you should request a hearing before the presiding judge and ask him to set the bond amount and time for the bond to be released. I typically ask for a bond amount of 10% of the total amount of the judgment and 90 days for the bond to be in effect. This protects the judgment debtor and allows your client to retrieve their funds at the end of the 90 day period. Note that some jurisdictions require a bond amount that matches the amount of the judgment. As always, check your local rules first.
When service of the summons has been made by published notice, no judgment shall be entered on default until the plaintiff shall have filed a bond, approved by the court, conditioned to abide such order as the court may make touching the restitution of any property collected or obtained by virtue of the judgment in case a defense is thereafter permitted and sustained; provided, that in actions involving the title to real estate or to foreclose mortgages thereon or in actions in which the State of North Carolina or a county or municipality thereof is the plaintiff such bond shall not be required.
The statute raises two questions: in what amount must the bond be issued and for how long must the bond be in effect? The statute does not answer either question and there exists no case law determining the proper amount or time. The best that we can discern from the statute is that the bond must be approved by the court. Indeed, in my experience, you should request a hearing before the presiding judge and ask him to set the bond amount and time for the bond to be released. I typically ask for a bond amount of 10% of the total amount of the judgment and 90 days for the bond to be in effect. This protects the judgment debtor and allows your client to retrieve their funds at the end of the 90 day period. Note that some jurisdictions require a bond amount that matches the amount of the judgment. As always, check your local rules first.
25 February 2010
Ethics Tuesday: Civic Leadership
A lawyer should render public interest legal service and provide civic leadership.
Ethics Tuesday is a weekly feature of StatonBlog that highlights one of the North Carolina Rules of Professional Conduct. The Rules govern the conduct of lawyers throughout the State of North Carolina and these posts serve as a reminder to lawyers licensed to practice in the state.
16 February 2010
Ethics Tuesday: Adequate Legal Assistance
A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.
Ethics Tuesday is a weekly feature of StatonBlog that highlights one of the North Carolina Rules of Professional Conduct. The Rules govern the conduct of lawyers throughout the State of North Carolina and these posts serve as a reminder to lawyers licensed to practice in the state.
15 February 2010
Civil Contempt Hearing
I had a civil contempt hearing today. The Court previously ordered the defendant to complete some tasks. He failed to complete those tasks and had no good excuses. So the judge held him in contempt and gave him 60 days to purge his contempt. I wanted 30 days, but I can live with 60. I'm not confident that the defendant will purge his contempt in 60 days, which means one thing for the defendant: jail.
When the Court orders you to do something, do it or have a damn good reason for not doing it or else.
When the Court orders you to do something, do it or have a damn good reason for not doing it or else.
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