By Rick Conner
Have you ever included a Rule 12(b)(6) motion to dismiss in your answer, with the intention of filing a more formal motion or submitting a detailed brief later? If so, you should be aware of a recent decision by Judge Michael L. Robinson of the North Carolina Business Court which casts further doubt on the legal legitimacy of this practice.
In New Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71 (N.C. Super. Ct. Aug. 18, 2017), one of the defendants, Katz, filed an answer on the response deadline which indicated that his first defense was a “Motion to Dismiss under Rule 12(b)(6).” Three days later, he filed a more lengthy 12(b)(6) motion with a supporting brief. Plaintiffs contended that Katz’s motion should be denied because the motion, filed after Katz’s answer, was untimely under Rule 12(b).
By Michael J. Parrish
North Carolina businesses commonly enter into contracts to buy or sell goods and services west of Murphy, north of Mount Airy, south of Charlotte, and even east of Ocracoke. When contracts such as these extend beyond state lines, businesses should intentionally assess and negotiate terms commonly called “choice of law” and “choice of forum” (or “forum selection”) provisions. These terms are up-front agreements to determine which state’s laws will govern any potential dispute relating to the contract, and in which state any potential lawsuit will be filed.
When potential disputes turn into actual litigation, choice of law and choice of forum provisions can be critical. For example, one state’s law may be more favorable to one of the parties, one of the parties could gain an advantage by litigating on its “home turf,” or one of the parties could save travel and business interruption cost by having the lawsuit filed nearby, rather than out of state. It isn’t uncommon for North Carolina businesses doing business with an entity from another state to see the advantage of applying North Carolina law and requiring litigation to occur in North Carolina.
Spend your Monday lunch hour chatting with a rock star while earning CLE/CPE credit. Register for the webcast “A Name Worth Fighting For: How Naming My Band The Slants Got Me To the Supreme Court,” featuring rocker Simon Tam, presented by the NCBA CLE Department. Members of the NCBA Intellectual Property Law, Litigation, and Sports & Entertainment Law sections enjoy a discounted rate.
Tam, founder and bassist of The Slants, will talk about how his fight with the U.S. Patent and Trademark Office over his band’s name led to a U.S. Supreme Court case. The webcast discussion runs from noon to 1 p.m. on Monday, Sept. 18. Tam will answer audience questions and speak frankly about racism, legal troubles and his incredible stories of playing in the world’s “first and only Asian-American dance rock band.”
Here’s a preview of Monday’s conversation, based on a Q&A with Joyce Brafford, NCBA’s Distance Learning Manager for CLE.
By Neil Bloomfield
It is not every day the U.S. Supreme Court pays attention to matters that affect the practice of discovery, but that day came with Goodyear Tire and Rubber Co. v. Haeger, 137 S.Ct 1178 (April 18, 2017). Writing for a unanimous Court, Justice Kagan explained that when a court exercises its inherent power to sanction bad-faith conduct by ordering a party to pay the other side’s legal fees, the award is limited to the fees that would not have been incurred but for the sanctioned party’s conduct.
The Court’s decision provides useful guidance, but leaves open interesting questions that litigants and district courts will be wrestling with for years to come.
By Paul T. Flick
Mediation is an alternative dispute resolution process used in lieu of formal procedures, where a neutral mediator attempts to help the parties come to a mutually acceptable agreement. The mediator can facilitate negotiations, review positions, exchange offers, point out the best and worst possible outcomes, etc. It is mostly an informal process, but typically follows a general pattern of holding an opening session where all parties and their lawyers are present and then holding separate caucuses.
Lawyers should prepare for mediation ahead of time, but not overdo it. While all mediations are different and rely some on the style and skill of the mediator for a successful mediation, proper preparation by the lawyers for the parties sets the table for a successful, or unsuccessful, mediation.
So, in short, how should a lawyer prepare for mediation?
By C. Amanda Martin
Networking and education. If you’ve ever wondered why most people belong to the NCBA Litigation Section, it’s networking and education. Quite a few of you answered our recent survey – 164 of you, to be exact – and overwhelmingly that’s what you said. Over half said that you’d be most likely to attend a Section meeting if it had some kind of substantive program. About half of you said you would be most likely to attend a Section CLE if it were closely related to your field. (That answer sounds obvious, but it beat out CLEs that were inexpensive or in fun or close locations.) And asked what you most valued or would like to see in our Section, again and again you answered “CLE or other high quality education” and “networking opportunities.”
You’ve spoken, and we’ve listened. Your Section Council got together at the first of this month in a planning and brainstorming session to discuss how we can best serve you and give you what you want. Here is what we came up with.