Civil Pretrial Motion Practice

North Carolina Judicial College

John W. Smith
Special Superior Court Judge
May 10, 2007

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What this section is about

„ You show up for a Civil Motion Calendar

„ You look at the 15 page calendar with 10
cases on each page and see notes by the
Trial Court Administrator such as:
„ SJ-
SJ- 1 hr;
„ MTA-
MTA-5 min;
„ dism-
dism-30 min
„ The courtroom is full of lawyers and people
you don’t recognize
„ Everybody is looking at you.

Civil Pretrial Motions

Management

„ What to expect in a Motion Calendar

„ Substantive Law of Pretrial Issues
„ Practical suggestions for Management
„ Practical suggestions for Rulings

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Issues of Substantive Law

– Motion to Dismiss: 12(b)(6)

– Motion to Compel
– Motion for Protective Order
– Motion for Sanctions
– Motion for Summary Judgment
– Motions in Limine

Substantive Law Checklist

– North Carolina Trial Judges' Bench Book

for Superior Court Third Edition
Volume 2 Civil Trial Procedure
„ Chapter3: Motions in Civil Cases -- a
Checklist; Updated (5/98)
– SECTION II: MOTIONS IN CIVIL CASES: Chapter 3:
Motions in Civil Cases -- a Checklist

(There is a similar listing in the District Court Benchbook)

Benchbook)

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 Motion to Dismiss
12(b)(6)
„ If not filed with answer, remember the
effect of the motion on scheduling
– No answer required until you rule
– Denial is interlocutory, not appealable;
appealable; Allowing
it ends the case and is appealable
„ Pay attention to:
– Whether discovery might cure defect
– Affidavits: may convert motion into a hearing for
Summary Judgment

Motion to Amend
Rule 15(a)
„ May amend as matter of right before
responsive pleading filed
„ Freely allowed, unless
a. Undue delay
b. Bad faith
c. Undue prejudice
d. Futility
e. Repeated failure to cure defects
f. Another judge has previously denied motion
„ 30 days to respond unless otherwise
ordered

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 Discovery Issues

Compelling, Protecting, Sanctioning

The Tools of Discovery

– Pretrial/Discovery Conf. Rule 16, 26(f)

– General provisions Rule 26
– Depositions Rule 27-32
– Interrogatories Rule 33
– Production of Documents Rule 34
– Physical/Mental Exams Rule 35
– Request for Admissions Rule 36

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 Motion to Compel,
Rule 37(a)
„ If contested, usually connected with
an objection or motion for a protective
order
„ Can be simple or very complicated
„ Requires notice
„ Must ordinarily be heard before the
issue of sanctions becomes serious
„ Raises an issue of Attorney Fees

What is non-compliance?
„ For purposes of this subdivision [Rule
37(a)] an evasive or incomplete answer is to
be treated as a failure to answer.
„ Failure to comply with discovery procedures
need not be willful refusal to comply.
Willfulness is relevant only to the selection
of sanctions, if any, to be imposed. Société
Internationale v. Rogers, 357 U.S. 197
(1958). G.S. 1A-1, Rule 37, Official
Commentary.

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 Discoverable: 26(b)(1)

„ Any matter that is not privileged that

is relevant.
„ Information is relevant for discovery
purposes if it is "reasonably calculated
to lead to the discovery of admissible
evidence."

Non-discoverable
„ Fifth Amendment Privilege
– Courts cannot compel disclosure of information which would tend to
incriminate the person from whom it is sought and cannot impose
sanctions on one who refuses to disclose privileged information. Stone v.
Martin, 56 N.C. App. 473, cert. denied, 306 N.C. 392 (1982). It is not an
abuse of discretion, however, to refuse to allow that privilege to serve
also as a sword, Stone v. Martin, 53 N.C. App. 600, (1981)
„ Some Privileged material is subject to balancing test
„ Attorney & Work Product privilege.
– See also Rule 26(b)(3), (4). Willis v. Duke Power Co., 291 N.C. 19
(1976) (any materials prepared in anticipation of any litigation by the
party from whom discovery is sought are protected). See also Hall v.
Cumberland County Hospital System, 121 N.C. App. 425 (1996) (where
defendants refused to disclose documents on grounds of attorney client
privilege and work product privilege, trial court erred in releasing
documents to plaintiffs without ruling on defendant's Rule 26(b) claims
and without making findings of fact when requested to do so by
defendants).

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 Prerequisite to
Motion to Compel
„ Must give “reasonable notice”
„ The motion must include a certification
that the movant has in good faith
conferred or attempted to confer with
the person or party failing to make the
discovery in an effort to secure the
information or material without court
action.

Caution

„ Avoid Conditional Orders: “- Where a

court order conditioned the dismissal
of plaintiff's action upon plaintiff's
failure to produce discovery materials
previously ordered, the second order
was not self-executing, and was
therefore conditional and void. Cassidy
v. Cheek, 308 N.C. 670, 303 S.E.2d
792 (1983). “

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 Caution
„ A trial court must consider less severe sanctions before dismissing
dismissing a plaintiff's
complaint under subsection (d) of this rule. Goss v. Battle, 111 N.C. App. 173,
(1993).
„ Imposition of Section (d) Sanctions Dependent on Circumstances. - Whether
such extreme sanctions as are authorized by section (d) of this rule should
be imposed must be determined from the circumstances of each case. case. Cutter
v. Brooks, 36 N.C. App. (1978).
„ Where plaintiff served answers to interrogatories after defendant
defendant had filed
motion to dismiss and plaintiff's failure to comply with G.S. 1A-
1A-1, Rule 33
clearly prejudiced the defendant's ability to prepare for trial, the court had
authority to dismiss the action. Hayes v. Browne, 76 N.C. App. 98, 98, (1985),
„ Review of Sanctions Directed to Outcome of Case. - Impositions of sanctions
that are directed to the outcome of the case, such as dismissals,
dismissals, default
judgments, or preclusion orders, are reviewed on appeal from final final judgment,
and while the standard of review is often stated to be abuse of discretion, the
most drastic penalties,
penalties , dismissal or default, are examined in the light of
the general purpose of the rules to encourage trial on the merits. merits.
American Imports, Inc. v. G.E. Employees W. Region Fed. Credit Union, Union, 37
N.C. App. 121, 245 S.E.2d 798 (1978).

Protective Orders
Rule 26(c)
„ SEEKING A PROTECTIVE ORDER. A Party or
person from whom discovery is sought may file a
motion for a protective order in the court where
the action is pending.
1. Motion must be filed in court where action is pending
and served on all parties.
2. Filing motion does not automatically stay discovery
request; thus a separate stay order must be obtained if
the hearing on the motion for a protective order is not
held prior to date for compliance with the discovery
request.
3. Movant has burden of showing "good cause" exists for
issuance of a protective order.

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 GROUNDS FOR GRANTING
PROTECTIVE ORDER
„ Judge may for good cause shown
enter any order which justice requires
to protect a party or person from
whom discovery is sought from
– 1. unreasonable annoyance,
– 2. embarrassment, or
– 3. undue burden or expense.

Costs & Attorney Fees

„ 1. If the motion for a protective order is granted,
granted, judge shall,
shall,
after opportunity for hearing, require the party or deponent whose
conduct necessitated the motion, or the party advising such conduct
conduct
(or both of them), to pay to the moving party reasonable
expenses incurred in obtaining the order, including attorneys' fees.
fees.
– a. Exception: Expenses are not awarded if the judge finds either that
the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.
– b. Judge is not required to make any findings in order to award or to
deny reasonable expenses.
„ 2. If the motion is denied,
denied, the judge, after opportunity for hearing,
shall require the moving party to pay to the party or deponent who
opposed the motion reasonable expenses including attorney's fees.
fees.
– a. Exception: Expenses are not awarded if the judge finds either that
the motion was substantially justified or that other circumstances
circumstances make
an award of expenses unjust.
– b. Findings are not required for the award or denial of reasonable
reasonable
expenses.
„ 3. Apportioned expenses: If the motion is granted only in part,
judge may apportion reasonable expenses incurred relating to the
motion among parties and persons in a just manner.

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 Protective Order
“In Your Discretion”
„ “If the court denies a motion to
compel, in whole or in part, it may
make such protective order as it would
have been empowered to make on a
motion made pursuant to Rule 26(c)”

STANDARD OF REVIEW

ABUSE
OF
DISCRETION

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 Sanctions
Rule 37(b)
„ Must be previous order to compel UNLESS
motion is under Rule 37(d) (no response)
„ Sanction options include:
– Deeming matter admitted or established
– Barring evidence by the failing party
– Striking pleadings, staying action, dismissing
action or claim, defaulting
– Contempt
– Expenses and Attorney fees (mandatory if
movant prevails)

Attorney Fees & Expenses

„ PARTY SEEKING SANCTIONS WHO PREVAILS is always
entitled to recover reasonable expenses, including attorneys'
fees, in connection with subject matter of motion and hearing
on motion to impose sanctions unless judge finds as fact that
failure to comply with discovery was substantially justified or
that other circumstances make such an award unjust.
– 1. Award of expenses and attorneys' fees to prevailing movant
who seeks sanctions is not discretionary but mandatory (absent
findings by judge that failure to comply was substantially
justified or that other circumstances make such an award
unjust). N.C. R. Civ.
Civ. P. 37(a)(4), (b)(2), (d).
– 2. Judge errs in imposing sanctions and awarding expenses but
refusing to reward attorneys' fees. Kent v. Humphries, 50 N.C.
App. 580 (1981).

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 Attorney Fees & Expenses
No-Order vs. Order-Compelling
DIFFERENCES IN AWARD OF EXPENSES under Rule 37 (a)(4) versus similar
similar
awards under Rule 37(b)(2), (c), (d) or (g) and Rule 26(g):
1. Which party is movant. Rule 37 (a)(4): expenses may be awarded to
winning party even if winning party is not original movant. However,
However, under
Rule 37(b)(2), (c), (d) or (g) and Rule 26(g): only the moving party
party seeking
sanctions is entitled to recover expenses. If movant does not prevail,
prevail,
adversary may not recover expenses incurred in defending against motion to
impose sanctions.
2. Sanctions against non- non-party. Rule 37 (a)(4): judge may require failing
party or person who advised party not to comply (usually counsel),
counsel), or both,
both, to
pay movant's expenses and counsel fees. Rule 26(g): judge may impose upon
person who makes certification in violation of Rule or upon party
party on whose
behalf the certification was made, or both,
both, an "appropriate sanction,"
including payment of reasonable expenses, including attorneys' fees.
fees. In all
other instances where sanction may be imposed for discovery violations,
violations, only
the party (and not a third party or counsel) may be required to pay or to take
some action.
3. Hearing. Rule 37(a)(4) and (g): award of expenses and counsel fees is to to
be made "after opportunity for hearing." Rule 37(b)(2), (c), (d)
(d) or Rule 26(g):
no hearing requirement.
Source: BenchBook, Chap. 11(F)

Practical suggestion,
Remember this Language:
„ “…the motion was substantially
justified and the circumstances make
an award of expenses unjust ”
„ “…Opposition to the motion was
substantially justified and the
circumstances make an award of
expenses unjust”

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 Practical suggestion II

„ “If the motion to compel is granted

only in part, judge may apportion
reasonable expenses incurred relating
to the motion among parties and
persons in a just manner.”
„ You may require each party to pay
their own costs and expenses.

Practical suggestion III

Setting Attorney Fees
„ Hourly rate of this attorney
„ Hourly rate generally for similar work
„ Amount of time in this matter
„ Amount of time reasonable for similar
services
„ Overall, is it reasonable, necessary,
and fair?

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 BASIS OF MOTIONS TO
IMPOSE SANCTIONS
„ Failure to seasonably update or correct
response to a request for discovery if new
or additional information is obtained. N.C.
R. Civ. P. 26(e).
„ Failure to participate in good faith in the
framing of a discovery plan. N.C.R. Civ P.
37(g).
„ Certification (by signing of a discovery
request, response or objection) that is in
violation of Rule 26(g) as to what a signing,
or a certification constitutes. Rule 26(g).

An Oversimplified Chart of
Who can be made to Pay?
Event Person liable

Rule 37(g) Failure to Whoever fails to act in

cooperate good faith

Motion to Compel Either prevailing party

Motion to Protect Either prevailing party

Motion to Sanction Non-

Non-moving party only

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Motion for Summary Judgment
Rule 12(c)
„ Must give 10 days notice
„ Any party may make the motion
„ Once made, may grant SJ against movant
„ May be granted even if 12(b)(6) denied
„ May not be granted if previously denied
„ No findings of fact required (if you feel the
need to find facts, may need to deny)

Summary Judgment:
Affidavits
Wake County Rule is typical: “3.8 Attorneys and
unrepresented parties shall serve briefs or
memoranda at least two days prior to the hearing
on any motion seeking a final determination of the
rights of any party as to any claim or defense, and
shall serve affidavits in opposition to motions for
summary judgment at least two days before the
motion hearing in accordance with G.S. §1A-1, Rule
5, Rule 6 and Rule 56. However, this rule does not
preclude an attorney or party from providing to the
court copies of cases or statutes relied upon at a
hearing.”

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 Motions in Limine
(BenchBook)
1. General rule. "A motion in limine is insufficient to
preserve for appeal the question of the admissibility of
evidence if the [movant] fails to further object to that
evidence at the time it is offered at trial." Martin v. Benson,
__ N.C. __ 500 S.E.2d 664 (9 July 1998) (by failing to object
at trial, plaintiff waived their right to appellate review of the
admission of expert's testimony). But see State v. Hayes,
__ N.C. App. __ (21 July 1998) [motion in limine sufficient
to preserve objection provided that (1) there has been a full
evidentiary hearing on the objection, (2) the order denying
the objection is explicit and definite, (3) the evidence
offered at trial is substantially the same as the evidence
explored at the hearing on the motion, and (4) there was no
suggestion at the hearing on the motion in limine that the
trial court would reconsider the matter at trial].

Issues worth thinking about

„ Sanctions for failure to provide

discovery which become known or
relevant during the trial
„ Issues arising during the taking of
depositions in or out of the county

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 Stilley v. Auto Enterprises
55 NC App. 33 (1981)
In their answers to interrogatories plaintiffs stated they
intended to call no expert witnesses. They listed no witnesses who who
would testify about defects, but stated they expected to develop
further evidence concerning defects or unsafe conditions prior to to trial.
They did not supplement their answers. During trial the court
ordered, in response to a motion in limine by defendant, that
plaintiffs could not offer any expert testimony and could only offer,
offer,
concerning alleged defects or unsafe conditions, their own testimony
testimony
and that of four witnesses whose affidavits they had filed.
Through this motion in limine defendant sought imposition of a Rule Rule
37(b)(2)(B) sanction. Such sanction may only be imposed for failure
failure
of a party to comply with a court order compelling discovery. G.S.G.S. 1A-
1A-
1, Rule 37(b)(2)(B) ; W. Shuford,
Shuford, N.C. Civil Practice and Procedure §
37-
37-3 (2d ed. 1981). Defendant did not obtain an order compelling
plaintiffs to supplement their answers to the interrogatories referred
referred
to above. Because plaintiffs had not failed to comply with a discovery
discovery
order, the court improperly granted defendant's motion in limine.
limine.

Stilley v. Auto Enterprises

55 NC App. 33 (1981)
„ Compare the later case of Hill v. Williams 144 NC App. 45:
– A party is under a duty seasonably to supplement his response with with respect to any question directly
addressed to . . . the identity of each person expected to be called
called as an expert witness at trial, the
subject matter on which he is expected to testify, and the substance
substance of his testimony.
– It is well established that the purpose and intent of Rule 26(e)(1)
26(e)(1) is to prevent a party who has
discoverable information from making evasive, incomplete, or untimely
untimely responses to requests for
discovery. Imposition of sanctions pursuant to N.C.G.S. § 1A- 1A-1, Rule 37(d) (1999) for failure to comply
with Rule 26 (e) is within the sound discretion of the trial court.
court. The trial court [Bonner] did not abuse
its discretion by denying defendants' pre-
pre-trial motions for sanctions in a negligence action arising from a
Rottweiler attack where plaintiffs did not supplement their responses to interrogatories
interrogatories regarding a
veterinarian's testimony, defendants filed motions in limine to prohibit the testimony and for sanctions
on the morning of trial, and the court denied those motions but ordered that the witness be made
available to defendants by telephone that day. Defendants sought to prohibit testimony rather than
compel discovery, defendants' motions did not reference a Rule of of Civil Procedure, defendants were
aware of the witness four months before trial and aware of plaintiffs'
plaintiffs' intention that he render opinions
on the Rottweiler breed two months before trial, defendants declined to depose the the witness and waited
until the week of trial to file their motions, and the court afforded
afforded defendants the opportunity to
"depose" the witness.
„ In the case of experts which are required to be disclosed pursuant
pursuant
to an order under Rule 26(f), exclusion may be permitted under
Rule 32(b)(2)

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 Miller v. Forsyth,
173 N.C. App. 385 (2005)
„ In a medical malpractice case,
objection to evidence excluded by
motion in limine was not preserved for
appellate review where there was no
attempt to introduce the evidence
during the trial. Miller v. Forsyth Mem'l
Hosp., Inc., 173 N.C. App. 385, 618
S.E.2d 838 (2005).

Miller v. Forsyth,
173 N.C. App. 385 (2005)
A trial court's pretrial ruling on a motion in limine is merely "preliminary and subject to change during
the course of trial, depending upon the actual evidence offered at trial." Gregory v. Kilbride, 150 N.C. App. 601,
611, 565 S.E.2d 685, 693 (2002) . The trial court's grant or denial denial of a motion in limine is not appealable.
appealable. Id. In
order to preserve the evidentiary issues for appeal where such a motion had been granted, the party objecting to
the grant of the motion "must attempt to introduce the evidence at trial." Id. In this case, even though the trial
court brought the conditional nature of its ruling to plaintiffs'
plaintiffs' attention, they did not attempt to introduce any
evidence regarding defendants' peer review process or that an internal internal investigation had occurred following the
injection.
Effective 1 October 2003, the rule requiring that a party attemptattempt to offer evidence in order to preserve
the evidentiary issue for appeal was changed, so that "once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party
pa rty need not renew an objection or offer of proof to
preserve a claim of error for appeal." N.C. Gen. Stat. § 8C- 8C-1, Rule 103 (a)(2) (2004)1 . However, the amendment
applies only to rulings on evidence made on or after 1 October 2003. 2003. State v. Pullen, 163 N.C. App. 696, 701, 594
S.E.2d 248, 251-
251-252 (2004) (citing 2003 N.C. Sess.
Sess. Laws ch.
ch. 101).
The trial court granted defendants' motion in limine on 22 September
September 2003. Plaintiffs rested their
case-
case-in-
in-chief on 29 September 2003. Defendants presented their evidence on 29 and 30 September 2003. Plaintiffs
offered no rebuttal evidence. The trial court conducted the charge charge conference and counsel made their final
arguments to the jury on 30 September 2003. On 1 October 2003 the the trial court instructed the jury, the jury
deliberated, and returned its verdict. At no time during the trial trial did plaintiffs attempt to present the evidence,
which was the subject of the motion in limine, to the jury. Plaintiffs
Plaintiffs did not move to reopen the evidence. The only
ruling upon this evidence was made on 22 September 2003. As such, such, the ruling is governed by the previous
version of Rule 103(a)(2) of the Rules of Evidence and not the version version applicable to rulings made on or after 1
October 2003. By failing to offer this evidence at trial, plaintiffs
plaintiffs failed to preserve this issue on appeal. This
argument is without merit.

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 Evidence Code, Ch. 8C
Rule 103. Rulings on evidence.

„ Once the court makes a definitive

ruling on the record admitting or
excluding evidence, either at or before
trial, a party need not renew an
objection or offer of proof to preserve
a claim of error for appeal.

State v. Barber
120 NC App 505 (1995)
„ He (the judge) deferred his decision on the matter until such time
time as the facts
and context would allow him to make a well- well-reasoned decision
„ In this case, the trial court used a fair and balanced approach to the issue. At
the beginning of the trial the court stated:
– It's difficult for me to rule on what the evidence is going to bebe until I've heard what
the evidence is. I don't know what the evidence in this case is . . . so at this point I
don't think I'm in any position to rule whether or not it's admissible
admissible . . . . So we'll
defer it until a later session. We can bring it up, either side may bring it up at a
later time out of the presence of the jury. And we'll discuss it further when we get
further along in the case.
– Well, sir, the rules permit 404(b) type information be received if it meet [sic] certain
criteria. But until it is asked, I don't see how I can rule one way or the other. If it's
admissible then I would admit it. And if it is not admissible, then
then I will not allow it
to be admitted.
– The State at this point has not tried to introduce it in its case
case in chief. So the issue
as anticipated at the beginning of the trial, or the motions in limine, have not
arisen. But at this point I don't feel that I can give you a definitive
definitive ruling as to
whether or not questions about those cases would be permitted. But But we would
certainly hear it out of the presence of the jury first if it should
should be elicited.
„ "The Rules of Evidence are not to be applied in a vacuum; they are are to be
applied in a factual context. A trial court makes its decisions as that factual
context unfolds and as the circumstances warrant."

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 Motions in Limine

„ Pretrial rulings often expedite case

„ Examine to see if the motion presents a real
issue for trial, or if it is just an attempt to
clutter the record with hard rulings which
would otherwise be mooted
„ Some require a full development of context
before the balancing of relevancy against
prejudice can be made

Motions in Limine

„ If you are not the trial judge, consider

requiring the motion to be heard by
the trial judge
„ Look to see whether the motions are
the type that should be allowed as a
matter of law, and give counsel an
opportunity to agree
„ Keep a record or list for yourself

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Discussion Scenarios

1. Handling the motion calendar

2. Motion to Amend Problem
3. Discovery Problems
1. Motion to Compel
2. Motion for Protective Order
3. Motion for Sanctions
4. Summary Judgment Problem

Calendar Control
„ You arrive in court and are presented with a five page
calendar
„ Mixed in are the following
– 4 motions to dismiss 15 minutes each
– 1 motion to dismiss 30 min.
– 1 motion to dismiss 1 hr
– 6 motions to withdraw, 5 min. each
– 2 motions for summary judgment, 30 min
– 3 motions to amend, 5 min. each
– 1 motion to amend, 1 hr.
– 1 motion for summary judgment, 2 hrs
– 4 motions to compel, 30 min
– 1 motion to compel, sanctions, protective order, 1hr
– 1 motion in limine, 1 hr

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 Calendar Control
Here is one way to do it efficiently:
As you call the calendar,
1. mentally divide the cases into groups by time: 5, 15, 30, 1hr, more;
more;
2. note “H” (hearing) for cases requiring hearings, “C” for matters continued,
“S” for matters settled, “O” for matters left open,
3. note time required everyone says the matter will require, and
4. note a sequential number you can organize and keep up with easily.
easily. For
example begin with:
1- = 5 minutes, summary matters
200-
200- = 15 minutes to thirty minutes
300-
300- = 30 minutes to an hour
400-
400- = 1 hr or more
5. I usually announce the order of hearings in the 5 minute group as as I go
through the calendar telling the lawyers “this will be the first, second or
third matter heard,”
heard,” and so on; and then go back through the second
group, then through the third, then the fourth. That way you can give them
a real sequential setting. Since they have heard the discussions which
inevitably occur as you call the calendar, everybody should be on on the same
page with an idea of when the case will come up.
6. This process will reorganize the calendar as follows:

Calendar Control
– 6 motions to withdraw, 5 min. each, if unopposed hear it while you
you call the
calendar
– 3 motions to amend, 5 min. each: during call of calendar if any are unopposed
– 4 motions to dismiss 15 minutes each
– 4 motions to compel, 30 min

Somewhere along here, it will become apparent what can not be heard
heard during he
morning and you can start releasing people further down the list.
list.

– 1 motion to dismiss 30 min.

– 2 motions for summary judgment, 30 min
– 1 motion to compel, sanctions, protective order, 1hr
– 1 motion to amend, 1 hr.
– 1 motion to dismiss 1 hr
– 1 motion for summary judgment, 2 hrs
– 1 motion in limine, 1 hr, but have discussion and if it is an issue
issue which should be
heard by trial judge, move up near top.

23
 Your County
Your Civil Court
Civil Motion Calendar
1 Party v Party 2 hrs
Summary Judgment

2 Party v Party 5 min

Motion to Withdraw

3 Party v Party 15 min

M. to Dismiss

4 Party v Party 15 min

Motion for Protective Order

5 Party v Party 30 min

Motion to Compel

6 Party v Party 5 min

Motion to Compel

7 Party v Party 20 min

Motion for Protective Order

8 Party v Party 2 hours

Motion for Sanctions

9 Party v Party 45 min

Motion to Compel/Prot. Ord

10 Party v Party 30 min

Motion to Dismiss

11 Party v Party 30 min

Motion in Limine

12 Party v Party 30 min

Motion for Summary Judgment

13 Party v Party 1 hr
Motion for Summary Judgment

14 Party v Party 15 min

Motion to Compel

15 Party v Party 30 min

Motion to Withdraw

Your County
Your Civil Court
Civil Motion Calendar

H 400 13 1 Party v Party

Summary Judgment
2 hrs

H1 1 2 Party v Party
Motion to Withdraw
5 min

C 3 Party v Party
M. to Dismiss
15 min

O 4 Party v Party
Motion for Protective Order
15 min

H 300 7 5 Party v Party

Motion to Compel
30 min

H2 2 6 Party v Party
Motion to Compel
5 min

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H 200 5 7 Party v Party
Motion for Protective Order
20 min

H 400 11 8 Party v Party

Motion for Sanctions
2 hours 1 hr

H 300 8 9 Party v Party

Motion to Compel/Prot. Ord
45 min

H 300 9 10 Party v Party

Motion to Dismiss
30 min

H3 3 11 Party v Party
Motion in Limine
30 min 5 min

H 300 10 12 Party v Party

Motion for Summary Judgment
30 min

H 400 12 13 Party v Party

Motion for Summary Judgment
1 hr

H 200 6 14 Party v Party

Motion to Compel
15 min

H4 4 15 Party v Party
Motion to Withdraw
30 min 5 min

H 400 13 13 1 Party v Party

Summary Judgment
2 hrs

H1 1 2 Party v Party
Motion to Withdraw
5 min

C 3 Party v Party
M. to Dismiss
15 min

O 4 Party v Party
Motion for Protective Order
15 min

H 300 7 7 5 Party v Party

Motion to Compel
30 min

H2 2 6 Party v Party
Motion to Compel
5 min

H 200 5 5 7 Party v Party

Motion for Protective Order
20 min

H 400 11 11 8 Party v Party

Motion for Sanctions
2 hours
1 hr
H 300 8 8 9 Party v Party
Motion to Compel/Prot. Ord
45 min

H 300 9 9 10 Party v Party

Motion to Dismiss
30 min

H3 3 11 Party v Party
Motion in Limine
30 min
5 min
H 300 10 10 12 Party v Party
Motion for Summary Judgment
30 min

H 4001 12 12 13 Party v Party

Motion for Summary Judgment
1 hr

H 200 6 6 14 Party v Party

Motion to Compel
15 min

H4 4 15 Party v Party
Motion to Withdraw
30 min
5 min

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 Calendar Control
„ Be aware of local custom and practice
„ Be aware that some districts may have local rules that
affect calendar calls:
Wake: 3.4 The calendar request for motions and judicial approval of
minor settlements shall be filed with the Trial Court Administrator
and mailed to all opposing counsel at least six weeks before the
beginning of the requested session. In the calendar request, an
attorney may ask that a motion be set only on a specified day.
Mailing by the Clerk of the calendar as provided in Local Rule 2.5,
designating a motion to be heard on a specified day and time,
constitutes notice of hearing on the motion and further notice is
not required unless the date and time of the hearing is changed.
In exigent circumstances, the Trial Court Administrator may set a
motion for hearing at any time, so long as notice requirements of
G.S. §1A-1, Rule 6(d) are satisfied or all parties consent.

Rules from Nash County:

6. The Clerk of Court in each county shall place matters on the court calendar in the
following order:
First: Uncontested matters calendared in the order in which the calendar requests were
filed with the clerk.
Second: Cases in which the parties have not agreed upon the court date in the order.
This hearing is for the setting of a trial date only.
Third: Motions certified on the calendar request not to require more than ten minutes for
hearing.
Fourth: Cases in which a hearing is required within a specified time pursuant to statute
or court order including but not limited to Chapter 50B and restraining orders. A
motion must be made on the calendar request that this section is applicable.
Fifth: Motions and pre-trial conferences.
Sixth: Small claims appeals and other matters.
Seventh: Peremptory settings.
Eighth: Cases in which the parties have agreed upon the court date, or there was no
answer or other appearance made by the opposing party, in the order the calendar
requests were filed with the clerk, including cases continued from prior court dates.
The earlier court date shall stand as the "filing date" for purpose of place on the
calendar unless otherwise ordered.
7. The presumption shall be that matters will be heard in the order calendared.
However, the presiding judge shall determine the order of trial at the calendar
call.

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Calendar Control

„ Local Rules are now easily accessible

at www.nccourts.org:

http://www.nccourts.org/Courts/CRS/Policies/LocalRules/Default.asp
http://www.nccourts.org/Courts/CRS/Policies/LocalRules/Default.asp

Motion to Amend
„ Complaint alleges accident producing injury which occurred in
2001, six years before the filing of the lawsuit
„ Answer pled Statute of Limitations and contains 12(b)(6)
„ Parties are now before you on plaintiff’
plaintiff’s motion to amend
– to allege that plaintiff was still under treatment for her
permanent injuries and had major surgery six months before the
lawsuit was filed for complications from the accident; and
– to add a claim for punitive damages because defendant had
driven impaired at the time.
„ Assume no other motions have yet been filed by either party.
How do you rule?
„ Assume the motion to amend was filed after defendant
calendared for hearing the motion to dismiss under 12(b)(6).
Any difference?

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The Motion to Compel

„ Request for Production of Documents

asked for all medical records in
personal injury case
„ No response, no objection, time
passed
„ On eve of hearing, respondent claimed
privilege & asked orally for a
protective order

The Motion to Compel II

„ Same facts except you notice that the
attorneys seem to be extremely oppositional
and refuse to talk to each other, and as
you read the motion to compel it lacks any
certificate of “good faith” as required in
Rule37
„ Rule 37(a)(2) “The motion must include a
certification that the movant has in good faith
conferred or attempted to confer with the person or
party failing to make the discovery in an effort to
secure the information or material without court
action.”
action.”

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The Motion to Compel III

Same facts except one of the

interrogatories/request for documents
included “any statement prepared by
you and provided to anyone, including
your attorney, summarizing the events
occurring on the date of the incident.”

Motion for Sanctions

„ Order to compel was allowed, and Plaintiff
was given 30 days to produce records, with
no production of the records
„ Motion for sanctions served 7 days before
hearing
„ Parties appear, respondent says he can
have them in a week, asks for “more time”
„ Movant says he wants a hearing “right now
because he thinks the complaint should be
dismissed with prejudice

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Motion for Sanctions II

„ Assume the matter was continued, and

plaintiff still has not produced the record
„ Issue is now back before the court for
sanctions, plaintiff says he did not think it
was fair to require production in the first
place
„ Defendant asks for sanctions in the
discretion of the court and attorney fees

Summary Judgment

„ Complaint alleges Accident and injuries

occurred 5 years ago
„ Complaint filed this year for PI
„ Answer denied negligence and pled
statue of limitations
„ Ruling?
„ Now Plaintiff “Excepts” and demands
that the court make findings of fact.

30
Summary Judgment II

„ Same circumstances except plaintiff

shows up on the morning of the
hearing with an affidavit from victim
with an admission of negligence and a
copy of a waiver of the statute of
limitations signed 2 years after the
date of the accident.
„ Defendant objects to affidavit

Motion to Dismiss
12(b)(6)
„ Simple case alleging trespass
„ Answer denied trespass, claims ownership under a
specific deed
„ At the hearing, plaintiff presents an affidavit
without objection supporting his title by deed from
defendant postdating the deed cited in the answer
„ At the hearing defendant wants to testify. Do/Can
you allow him to do so?
„ Assume you allow him to testify and under cross he
admits the deed and admits it is valid.
„ Do you allow or deny the motion, and what
difference does it make on these facts?

31
Motion for protective
order
„ Plaintiff has asked for defendant’s medical
records for the past two years
„ Defendant objects, claiming medical
privilege and denies relevancy; and asks for
protective order
„ Defendant does not calendar his motion
„ Plaintiff files motion to compel and motion
for sanctions
„ It is now all before you.

Protective Orders

„ Same facts, except at the hearing

defendant claims records are
protected under HIPAA and specifically
requests that the court issue a
protective order
„ What do you do?

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 HIPAA Protective Order
„ It appearing to the satisfaction of the court that medical records
records which have
been sought in the attached subpoena are discoverable in a pending
pending case
within this district, and that the production of those records should
should be
required as permitted in the Health Insurance Portability and Accountability
Accountability
Act (H.I.P.A.A.) and the implementing regulations (45 C.F.R. Sec.
Sec. 164-
164-
512(e)(1)(i) et seq.
„ IT IS THEREFORE ORDERED that the person or organization to whom the
attached subpoena is directed, which subpoena is incorporated herein
herein as
though fully set out, shall disclose to the requesting party the information
sought therein subject to the following restrictions as required in 45 C.F.R.
Sec 164-
164-512(e)(1)(v)(A) and (B):
1. The requesting party and counsel upon receipt of the protected records
records is
prohibited from using or disclosing the protected health information
information for
any purpose other than the litigation or proceeding for which thethe
information is being requested, and
2. Shall return to the provider or destroy the protected health information
information
and all copies made at the end of this litigation or proceeding for which
they are sought

Motion in Limine
„ Before the start of the trial, defendant
presents a group of twenty four “motions in
limine.”
„ First is to prevent plaintiff from asking any
questions of the jury “intended or calculated
to stake the jurors out.”
„ Second is to prevent plaintiff’s witness from
testifying about the speed of the
defendant’s vehicle immediately before the
collision.

33
Remember:
STANDARD OF REVIEW

ABUSE
OF
DISCRETION

RESOURCES
„ Howell's Shuford N.C. Civ.
Civ. Prac.
Prac. & Proc., (4th ed.
1992)
„ BENCHBOOK, Civil, Pretrial Sections (contains
sanctions chart)
„ GS 1A Annotated, Rules 26 ff.
„ E-Discovery Decision: Decision by Judge Tennille at
http://www.ncbusinesscourt.net/opinions/2006%20
NCBC%2014.htm
„ E-Discovery, background: Electronic Discovery and
the Challenge of Rulemaking in the State Courts,
Pound Civil Justice Institute, 2005 Forum for State
Appellate Court Judges. (Justice Mk.Martin,
Mk.Martin,
Hudson, Hunter, Jackson, Steelman,
Steelman, Tyson; Judge
Hugh Campbell)

34