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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26774
Experience:  Began practicing law in 1992
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A judge dismissed my case claiming that the court lacked subject

Resolved Question:

A judge dismissed my case claiming that the court lacked subject matter jurisdiction rule
12(b)(1) of North Carolina Rules of Civil Procedure and personal jurisdiction 12(b)(5) and
that I failed to plead damages correctly rule 8(a)(2). The judge dismissed it with prejudice.
What should I do now?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.
Your ONLY option if it was dismissed with prejudice is to appeal. You can file a motion to reconsider but it is likely a waste of time based on these rulings.

Were you representing yourself?
Expert:  Dwayne B. replied 1 year ago.
I'm sorry, I don't understand why you would give a bad rating while I am still trying to get information from you. Can you explain why you believe the service is bad?
Customer: replied 1 year ago.
I already knew about the appeal. I am trying to find out what could be the cause of the dismissal pursuent to the rules that I sent. Yes I represented myself. Why? Because no attorney wants to fight against the state.
Expert:  Dwayne B. replied 1 year ago.
Actually, your questions was "what should I do now?" which is what I answered and why I don't understand the negative rating of "Bad Service".

However, I would be more than happy to try and figure out why the judge dismissed the case but simply telling me the rules it was dismissed under doesn't really tell me much without more information. What was the case about and who were you suing?
Customer: replied 1 year ago.

I am suing the State of North Carolina for wrongful discharge and I am charging that they used a tactic of constructive discharge. They suspended me without pay for over six months while they went through all the necessary proceedings. I worked as a teacher in a county detention center. The headquarters for the department is in Raleigh, NC in Wake County. Could it be that I filed my complaint in the wrong court. If my complaint was dismissed in that court can I file my complaint with out appealing in the Wake County Court. Who has personal jurisdiction? Seems to me that the questions I have should be addressed in the dismissal order. I am just like you trying to figure out what the rules mean. Hope you will help me because nobody else will.


 


Mixon

Expert:  Dwayne B. replied 1 year ago.
What was the basis for arguing there was a wrongful discharge? NC is an employment at will state which means an employer can discharge for almost any reason, other than ones like race, age, gender, etc. What did you use for the reason the discharge was wrongful?
Customer: replied 1 year ago.
Even though NC is an at will state it does not apply to teachers and state employees. We are covered by the General Statutes which require certain processes to be followed. I was a teacher and first they made my working conditions unberable. Reduced the teaching staff from two to one. Increased the student population, doubled my work load. Made numerous false accusations which I proved with evidence. Had a satisfactory evaluation at the beginning of the year. Decided to eliminate one teacher then evaluated me again to be unsatisfactory. Tenured teachers are only required one evaluation per year if satisfactory. Suspended me without pay for matters which were not disciplinary related for over six months while the dismissal process was done. They did not adhere to the required timeline for completing the dismissal process. All actions against me were in the previous school year. School year ended in June. I was suspended without pay in August. Well into the new school year leaving me unable to get employment as school had already started throughout the state. If firing me was so important they should have done it at the end of the school year. Evidence was not considered. They were only concerned with following the procedures. Evaluations were without merit. Most were just checked blocks unsatisfactory with no explanation. All done because they wanted the other teacher in that position that was not tenured. Much more. I thought I had a sure case. But it keeps getting kicked out of court by judges. All the judges do is copy what the respondent says to have my case dismisssed. No way I should have been suspended without pay for over six months. My salary alone is well over the dollar amount for district court. So I don't know how they can claim lack of subject matter and personal jurisdiction. I think the judge collaborated with the attorney for the defendent and made the decision to support the state in its budget problem. I have evidence of all that I mentioned that they do not want to be allowed in court. Help me please.
Expert:  Dwayne B. replied 1 year ago.
Leaving out whether the teachers are at will employees or something else, because that issue has nothing to do with the reason the rules under which the judge dismissed the case, I think I can see possible reasons the case was dismissed.

8(a)(2) is the damages section and states that you are not supposed to put a monetary damage amount in your case unless the other side specifically asks for it. It also states that you have to specify the "relief sought.

1) Did you put a specific dollar amount in the case?
2) What did you ask the judge to do for you in the lawsuit? What was the language in the statute?

12(b)(1) is lack of jurisdiction and 12(b)(5) is the lack of service. What this indicates to me is that you sued the wrong entity and/or in the wrong place and did not serve the correct person for service of process. Your facts aren't specific as to the relationship between the various parties but most, if not all, of the states have specific rules regarding where governmental entities must be sued.

I have no idea as to why your judge would have dismissed the case "with prejudice". Most judges would have just dismissed it and allowed you to refile in the proper court and against the proper party.

However, the problem is that since he dismissed it with prejudice you cannot refile it in the proper court without first appealing his actions and having them reversed by the trial court. Once the case is reversed the Court of Appeals will likely send it back to the trial court with orders to change it from a dismiss with prejudice to a dismiss without prejudice which will allow you to refile in the proper court.


If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26774
Experience: Began practicing law in 1992
Dwayne B. and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for the information. Sorry about the bad rating. At that point I was not satified with the appeal answer. I was not familiar with the procedure to request more information. I have decided to appeal the case and have filled out an appeal form to the best of my ability. The instructions mentions briefs which I am not familiar with. Since there was no trial, just a hearing by the judge for about ten minutes to determine if the defendants request for dismissal was warranted. My reply to the defendants dismissal was not considered. I had a detailed reply to the defendants motion to dismiss. Could my reply be considered as a brief. If not can I get information from you about preparing a brief. The dismissal order was signed on the sixth of July but was not mailed to me until the twelth of July. Does my thirty days start when signed or when it was sent.
Expert:  Dwayne B. replied 1 year ago.
No problem about the rating, I don't think the website explains it very well and as long as you give a positive rating later it overrides the bad one.

Your 30 days start from mailing although the rules allow you to get an extension by asking for it.

Your reply will not be your brief, although you can make the same arguments in it. On appeal the burden shifts to you to show that the court acted improperly,

The first thing you need to do is find the rules for appeals. In NC they can be found at these two sites:

http://www.aoc.state.nc.us/www/public/html/rulesapp.htm
http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf

They are the same, just formatted a little differently.

Read through those rules so that you are sure you know what has to be filed and when. You may be able to look around the internet and find a timeline for filing appellate materials but even if you do, read the rules first so you are sure you understand them.

Next, you need to know how to do legal research because you are going to have to be able to find case law to support your ideas. There is a book that will be available in a few days at http://lessonsinlaw.com/the-guerrilla-guides-to-the-law/ called The Guerrilla Guide to Legal Research. I highly recommend you get that and read through it and learn the concepts behind legal research because you are going to have to understand it to succeed in your quest,

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.


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