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Tag Archives: motion to dismiss

Civil Practice – Appeals – Interlocutory – Motion to Dismiss – Forum Non Conveniens – First Impression (access required)

Burkey v. Noce On a matter of first impression, we rule that the denial of a motion to dismiss based on forum non conveniens is not immediately appealable. Appeal dismissed. While no S.C. case law concerns the immediate appealability of a denial of dismissal based specifically on forum non conveniens, the denial of a motion to dismiss under Rule 12(b)(6) is not generally appealable. An order denying a motion to dismiss for lack of subject matter jurisdiction is also not directly appealable. Additionally, an order denying a motion to change venue is not immediately appealable.

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Criminal Practice – PCR – Appeal Advice — Murder – Motion to Dismiss – Conflicting Evidence (access required)

Clark v. State Although there is evidence that trial counsel explained the appeal process to petitioner before the trial started, there is no probative evidence that trial counsel informed petitioner of his right to appeal following petitioner’s trial. Explaining an appeal process before a defendant has even gone to trial does not equate to making a convicted client fully aware of his right to appeal that conviction.

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Bankruptcy – Appeals – Motion to Dismiss – ‘Abusive’ – Denial – Final Order (access required)

McDow v. Dudley A bankruptcy court order denying the U.S. Trustee’s motion to dismiss a debtor’s Chapter 7 bankruptcy case as abusive under 11 U.S.C. § 707(b) is a final order appealable under 28 U.S.C. § 158(a), and the 4th Circuit reverses the district court decision dismissing the appeal as interlocutory.

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Civil Practice – Pleadings – Answer – Rule 11 – Signing – Out-of-State Attorney – Motion to Dismiss (access required)

Houston Enterprises, Inc. v. Vision Investment & Development, LLC Defendants' answer was signed only by an attorney who was not licensed to practice in South Carolina; consequently, the answer violated Rule 11(a), SCRCP. Plaintiff brought this omission to defendants' attention by email and then by filing a motion to strike; however, two months after the motion was filed, defendants had failed to remedy the defect.

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