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Tag Archives: Pleadings

Civil Practice – Statute of Limitations – Pleadings – Amendment – Relation Back – New Defendant – Notice – Tort/Negligence – Broken Chair (access required)

McKnight v. Iceberg Enterprises LLC Although, at the time she filed her original complaint, plaintiff did not know who had manufactured the chair that broke when she sat in it, she amended her complaint to name the defendant-manufacturer within the time for serving process under Fed. R. Civ. P. 4(m). Defendant’s motion to dismiss, based on the statute of limitations, is denied.

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Tort/Negligence – Products Liability – Civil Practice – Pleadings – Parent Corporation (access required)

Derrick v. Johnson Controls, Inc. Just over a month after plaintiff filed this products liability action based on an automobile battery explosion, defendant indicated in an interrogatory response that it had not manufactured the battery at issue and that plaintiff may have intended to sue defendant’s wholly-owned subsidiary.

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Civil Practice – Pleadings – Anonymous Plaintiffs – Motion to Amend (access required)

Richard S. v. Sebelius The court does not condone the filing of an action anonymously without permission. Even though plaintiffs’ claims involve matters of a sensitive and personal privacy nature – their disabilities – courts have generally been reluctant to provide anonymity based on a plaintiff’s fear of embarrassment over the revelation of personal matters.

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Bankruptcy – Fraud Claim – Credit Card Charges – ‘Luxury Goods’ – Civil Practice — Pleadings – Insufficient Allegations – Justifiable Reliance (access required)

Discover Bank v. Warren The plaintiff-bank argues that a presumption of nondischargeability arises from defendant-debtor’s use of the bank’s credit card to purchase of “luxury goods” within 90 days of the filing of her bankruptcy petition. While some of the retailers from whom the debtor made purchases do sell luxury goods, they also sell necessities, and the bank has failed to show what the debtor bought from these retailers.

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Tort/Negligence – Defamation – Civil Practice – Pleadings – Amendment Motion – Outrage – Additional Defendants (access required)

Sluder v. United Insurance Co. of America After removal to this court, plaintiff amended his complaint once without seeking remand to state court. Contrary to defendant’s assertion, it is not hard to believe that plaintiff could claim to have been defamed without knowing exactly who defamed him.

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Tort/Negligence – Products Liability – Pleadings — Medical Device Amendment – Federal Preemption — Parallel State Claim (access required)

Viserta v. St. Jude Medical, Inc. The medical device at issue – a Riata lead — was discarded upon its removal from plaintiff, and her complaint does not allege the actual condition of the device, how defendant failed to comply with federal requirements in manufacturing the device, or any causal connection between defendant’s actions and the Riata lead perforating plaintiff’s heart.

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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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Court: Homeowners should have pled better defense in landscaper’s suit (access required)

Hilton Head Island homeowners Richard and Anne Ulbrich should have pled in their answer to a landscaper's lawsuit that an unlicensed contractor could not enforce a contract or a mechanic's lien. If they had, they might have won dismissal of the suit. Instead, the S.C. Supreme Court upheld a Beaufort County Circuit Court judge's denial of their motion for reconsideration. It let stand the circuit court's ruling in Earthscapes Unlimited, Inc. v. Ulbrich (Lawyers Weekly No. 010-156-10, 6 pp.) that the landscaper had a valid contract with the property owners and a valid lien on their property.

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