North Carolina Business Litigation Report

Phillips and Jordan, Inc. v. Bostic, February 8, 2010 (Diaz)(unpublished)

The Court had warned Plaintiff and his counsel in an Order granting a Motion to Dismiss to "consider carefully their obligations under Rule 11 of the North Carolina Rules of Civil Procedure before continuing to pursue a common law fraud claim" against the "Bostic Defendants".

The Court's Order had dismissed the fraud claim against one Defendant, but it didn't dismiss the claim against the Bostic Defendants because those defendants had already made a Motion to Dismiss and had it denied before the case was transferred to Business Court.

After that, the Bostic Defendants filed a Motion for Rule 11 Sanctions. The Court then in an in chambers conference "suggested to Plaintiff's counsel that they consider the merits of the claim alleging fraud." Shortly after that, the Plaintiff voluntarily dismissed its fraud claim.

The Court nevertheless granted the Motion for Sanctions. It held that "a legal position violates Rule 11 if it 'has absolutely no chance of success under the existing precedent.'"  It found that to be the case because the fraud claim was founded on the theory that the Defendants had misrepresented the true owner of property in order to deprive the Plaintiff of its Chapter 44A lien rights. But Plaintiff had determined the true owner of the property and had in fact filed a claim of lien, and it had not therefore been deceived.

The Court held "in other words, Plaintiff either knew or should have known that its claim alleging common law fraud had absolutely no chance of success because Plaintiff was not deceived by this particular misrepresentation."

Full Opinion

Brief in Support of Motion for Sanctions

Brief in Opposition to Motion for Sanctions

Reply Brief in Support of Motion for Sanctions

 

 

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Mack Sperling
Brooks Pierce, LLP
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