The Defendant in SQL Sentry, LLC v. ApexSQL, LLC, 2017 NCBC 105 was alleged to have copied the Plaintiff’s software program which was designed to make "resource intensive T-SQL queries. . . in the Microsoft enterprise database platform, SQL Server." Op. Par. 5. (Ask your IT person).
Adding insult to injury, the Defendant marketed the
The North Carolina Rules of Civil Procedure are fairly identical to the Federal Rules of Civil Procedure. In fact, I am hard pressed to think of any substantial differences.
But the lack of one word contained in FRCP 14 — "original" — but omitted from the parallel NC Rule made all the difference in the
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If you have ever drafted a Complaint, you have undoubtedly used the words that your previous numbered allegations were "incorporated by reference." It’s a way of not having to repeat yourself. That shortcut is specifically allowed by Rule 10(c) of the North Carolina Rules of Civil Procedure, which says that: "Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion in the action."
If you have a case where you have filed multiple briefs, you might "incorporate by reference" arguments you made in an earlier brief. You probably haven’t thought twice about that.
Well, Judge McGuire of the NC Business Court has thought about it, and he doesn’t like it. In American Air Filter Co. v. Price, 2017 NCBC 54, he ruled that the use of incorporation by reference of earlier briefs could be a violation of the Rules of the NC Business Court and that it could result in the Court refusing to consider the referenced argument.
How could that be, you are wondering, as there is no mention (or any prohibition) of this practice in the Court’s rules. The reason is that the inclusion of the pages of a previously filed brief might push you over the page limitations contained in the Business Court Rules for briefs. The Rules require the lawyer for a party filing a brief to limit her words to 7,500, and to "include a certificate by the attorney or party that the brief complies with this rule." BCR 7.8.
Judge McGuire said in the American Filter case that:
The General Rules of Practice and Procedure for the North Carolina Business Court (“BCR”) do not expressly permit parties to incorporate previously-filed briefs and documents outside of the brief at issue, at least not to supplement the substantive text of the brief at issue. In fact, BCR 7.8 provides strict word limits on briefs submitted to this Court. Even if incorporation of previous briefs were allowable, it appears a party incorporating a previously-filed brief would have to certify under BCR 7.8 that the brief and the incorporated brief did not exceed the word limits. Defendants have not done so in this case. As a result, the Court declines to consider Defendants’ arguments and authorities regarding choice of law issues contained in other filings with the Court.
Op. at n.2.
Continue Reading Incorporating By Reference In Your NC Business Court Brief? Don’t Do It!
The parties to Security Camera Warehouse, Inc. v. Bowman, 2017 NCBC 38, had been adverse to each other in a previous lawsuit (not in the Business Court), which they settled. Security Camera released Bowman, one of its former owners, from all claims in that settlement. But during the settlement negotiations which resulted in
The lawyers in Baker v. Bowden, 2017 NCBC 30, decided this week by Judge Robinson, were negotiating a settlement agreement by email. The Plaintiff thought that it had a deal. When the Defendant balked, the Plaintiff moved the Business Court to enforce the settlement.
The Plaintiff, whose lawyer had sent an email to
If I asked you if you were familiar with Rule 13(f) of the NC Rules of Civil Procedure, I’m betting that you would respond with a glassy stare and a slack jaw. That Rule deals with a counterclaim that you should have made in your Answer, but which you left out. It says that
I had never heard before of a "privacy tort" claim for "intrusion into seclusion." But it exists in North Carolina per Judge Gale’s Opinion in Dishner v. Goneau, 2017 NCBC 7, decided in the NC Business Court this week. This is not a brand new tort. It has been recognized by the NC
In the NC Business Court’s first Opinion of the new year, Judge Bledsoe denied Defendants’ Motion for Rule 11 Sanctions in Kure Corp. v. Peterson, 2017 NCBC 1. The decision holds a few lessons about the operation of Rule 11 of the NC Rules of Civil Procedure.
You Can’t Avoid A Rule
The NC Supreme Court’s jurisdiction over appeals from the Business Court expanded significantly with the passage of a bill by the NC General Assembly "modernizing" the Business Court in 2014. A party can appeal even interlocutory orders of the Business Court to the state’s highest Court. N.C. Gen. Stat. §7A-27(a).
What about an Order from the
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North Carolina cases that are filed in an "improper county" can be transferred to the "proper county" if the "defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county." N.C. Gen Stat. §§1-83.
Multiple Claims With Different Venue Requirements
Well, what if there’s