N.C. Gen. Stat. § 1A-1

Pleadings generally need not be verified, and an unverified pleading is not less credible for that reason.

HBD, Inc. v. Steri-Tex Corp. · filed 1983-09-06Rule 11(a)

In general, pleadings need not be verified and no lack of credibility will be implied by the absence of a verification of plaintiffs complaint.

Rule 11(b) supplies the verification requirements for termination of parental rights petitions when the governing statute requires verification but does not define it.

Matter of Triscari Children · filed 1993-03-02Rule 11(b)

Thus, because the procedure set forth in the termination of parental rights provisions requires a verified petition, and verification is not defined in chapter 7A, the requirements for verification established in chapter 1A, Rule 11(b) should determine whether the pleading has been properly verified.

Rule 11(b) requires a person verifying a pleading to attest that its contents are true to that person's knowledge.

In Re TRP · filed 2005-10-04Rule 11(b)

Verification requires a petitioner to attest "that the contents of the pleading verified are true to the knowledge of the person making the verification[.]" N.C. Gen.Stat. § 1A-1, Rule 11(b) (2003).

Rule 11(b) requires a petitioner verifying a pleading to attest that its contents are true to the petitioner’s knowledge.

In Re A.J.H-R. · filed 2007-06-19Rule 11(b)

Verification requires a petitioner to attest “that the contents of the pleading verified are true to the knowledge of the person making the verification[.]” N.C. Gen. Stat. § 1A-1, Rule 11(b) (2005).

Rule 11(b) requires a pleading’s verification to state that its contents are true to the affiant’s knowledge, except for matters stated on information and belief that the affiant believes true.

In Re Dj. L. · filed 2007-06-19Rule 11(b)

This verification complies with N.C. Gen. Stat. § 1A-1, Rule 11 and N.C. Gen. Stat. § 10B-40(d) in both form and substance.

Rule 11 does not require verification of a complaint seeking declaratory and injunctive relief to enforce a county ordinance when no statute requires verification.

Pitt County v. Deja Vue, Inc. · filed 2007-09-04Rule 11(a)

Defendants cite no statute, and we find no statute, requiring verification of plaintiff’s complaint requesting declaratory and injunctive relief under N.C. Gen. Stat. § 153A-123.

Rule 11(b) requires a pleading that must be verified to state the verifier’s knowledge or belief of its truth and to be verified by the party’s affidavit.

State Ex Rel. Albemarle Child Support Enforcement Agency v. Eason · filed 2009-07-07Rule 11(b)

However, if a rule or statute requires that a pleading be verified, Rule 11(b) requires that such a pleading “shall state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification, except as to those matters stated on information and belief, and as to those matters he believes them to be true,” and requires that such a verification “shall be by affidavit of the party.” ... Therefore, we conclude that the district court did not err when it denied defendant’s motion to dismiss based on the court’s determination that plaintiff’s petition was verified, and we overrule this assignment of error.

Rule 11(a) does not require an answer in a custody matter to be verified.

Bohannan v. McManaway · filed 2010-12-21Rule 11(a)

However, Plaintiffs cite no legal authority for this argument, and we find no legal requirement that an answer in a custody matter be verified.

Rule 11(b) requires a verifier to attest that a pleading’s contents are true to their knowledge; an earlier verification date alone does not establish that the pleading did not exist when verified.

In re M.M. · filed 2011-12-06Rule 11(b)

Respondent-mother, however, fails to point to any evidence in the record to support her assertion that the petition “was not yet in existence at the time [the YFS designee] verified it.” Respondent-mother also fails to cite any case law supporting her contention that the trial court lacks jurisdiction when the'verification predates the filing of the termination petition. ... Respondent-mother’s contention is without merit.

When a statute requires a verified complaint, Rule 11(b) requires verification before a notary or other person authorized to administer oaths.

Fansler v. Honeycutt · filed 2012-06-05Rule 11(b)

As a result, we are unable to determine if either of Plaintiffs’ complaints had been verified before “a notary public or other officer of the court authorized to administer oaths” as required by N.C. Gen. Stat. § 50C-2 and N.C. Gen. Stat. § 1A-1, Rule 11.

Rule 11(b)’s verification requirement is satisfied when a petition is sworn before an officer authorized to administer oaths and signed by the petitioner’s authorized representative.

In re D.F.S. · filed 2014-02-18Rule 11(b)

We hold that where a petition is (1) verified before an officer who is entitled to administer oaths and who checks one of the boxes indicating the source of his or her authority and (2) is signed by an individual as the authorized representative of the director, who checks the box for “Authorized Representative” that (3) the petition is properly verified.

Rule 11(b) does not require a termination of parental rights petition or motion to be verified when or after it is signed.

In re C.N.R. · filed 2021-12-17Rule 11(b)

As a result, we are unable to conclude that either N.C.G.S. § 1A-1, Rule 11(b), or N.C.G.S. § 1-148 requires that the verification of a termination of parental rights petition or motion occur contemporaneously with or subsequent to the signing of any such pleading.

Rule 11(a) does not authorize sanctions for failing to verify a complaint when no rule or statute requires verification.

Bossian v. Chica · filed 2024-12-17Rule 11(a)

Mother has not identified any statute or rule requiring that Father’s complaint be verified, and we cannot identify any such requirement. Father’s failure to verify the complaint is not a basis for sanctions under Rule 11(a).

Rule 8(d) makes facts admitted in the pleadings binding, so the jury need not decide them.

Crowder v. Jenkins · filed 1971-04-28Rule 8(d)

Admissions in the pleadings and stipulations by the parties have the same effect as a jury finding; the jury is not required to find the existence of such facts; and nothing else appearing, they are conclusive and binding upon the parties and the trial judge.

Rule 8(d) deems allegations admitted when a responsive pleading is required and the party fails to deny them.

North American Acceptance Corp. v. Samuels · filed 1971-06-23Rule 8(d)

Under G.S. 1A-1, Rule 8(d), allegations in pleadings are admitted when not denied in a responsive pleading if a responsive pleading is required. In this case a responsive pleading was required, and the defendant did not file an answer denying the allegations of the complaint. Therefore under the rule, the allegations were deemed admitted.

An allegation requiring a responsive pleading is admitted when the answer does not deny it.

Johnson v. Massengill · filed 1971-07-14Rule 8(d)

Defendant’s answer states: “Paragraph Two is not denied.” “Averments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” G.S. 1A-1, Rule 8(d). ... Except for the amount of damages, the only issue raised by the pleadings was whether the defendant breached the contract.

Rule 8(d) treats an allegation in a complaint as admitted when a required answer fails to deny it.

Whitaker v. Whitaker · filed 1972-10-25Rule 8(d)

The effect of failure to respond with a required pleading (as here, an answer) is to admit the averments in the complaint. G.S. 1A-1, Rule 8 (d). We hold, therefore, that defendant’s failure to deny the allegation of abandonment constituted an admission of this fact.

Rule 36(c) limits an admission to the pending action and bars using it against the party in another proceeding.

Tidwell v. Booker · filed 1976-01-06(c)

Pursuant to G.S. 1A-1, Rule 36(c), “any admission made pursuant to this rule is for the purpose of the pending action only and neither constitutes an admission by the party for any other purpose nor may the admission be used against him in any other proceeding.”

Under Rule 15(c), an amended answer can turn a judicial admission arising under Rule 8(d) into an evidential admission.

Watson v. White · filed 1983-11-03Rule 15(c)

We point out that our holding today, contrary to defendants’ belief, is not inconsistent with G.S. § 1A-1, Rule 15(c). The effect of that rule in the circumstances presented by the case sub judice is, as we have stated, to transform what was in the first instance a judicial admission under G.S. § 1A-1, Rule 8(d) into an evidential admission.

Failure to reply to a divorce counterclaim does not admit its allegations under Rule 8(d) because § 50-10(a) deems them denied.

Phillips v. Phillips · filed 2007-08-07Rule 8(d)

Defendant concludes that under the Rules of Civil Procedure plaintiff's failure to reply to his counterclaim amounts to an admission of his allegations. However, defendant overlooks N.C.G.S. § 50-10(a), which states "the material facts in every complaint asking for a divorce . . . shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not." N.C. Gen.Stat. § 50-10(a) (2005) (emphasis added). This Court in Skamarak v. Skamarak, 81 N.C.App. 125, 126-27, 343 S.E.2d 559, 561 (1986), applying § 50-10(a), deemed all allegations in defendant's counterclaim denied, where plaintiff filed no reply to the counterclaim.

Rule 8(d) deems allegations in a complaint admitted when the defendant fails to answer.

Lowery v. Campbell · filed 2007-09-04Rule 8(d)

Because defendant failed to answer plaintiff's complaint, the allegations stated therein are deemed admitted.

Rule 8(d) treats factual allegations admitted or left undenied in a responsive pleading as established.

N.C. Farm Bureau Mut. Ins. Co. v. Hebert · filed 2024-03-22Rule 8(d)

To the extent that defendant’s answer admitted or did not deny the complaint’s factual allegations, however, those facts are deemed established.

Rule 8(d) treats allegations requiring a response, other than damage amounts, as admitted when they are not denied; striking an answer establishes those allegations.

Fagan v. Hazzard · filed 1977-10-19Rule 8(d)

“Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” G.S. 1A-1, Rule 8(d).

Rule 23 requires a class action to be prosecuted or defended by one or more named members of the class.

In Re Zoning Violation of Coleman · filed 1971-04-28Rule 23

Even a class action must be prosecuted or defended by one or more named members of the class. G.S. 1A-1, Rule 23.

Rule 23(a) requires a person bringing a class action to be a member of the class represented.

Carnahan ex rel. Carnahan v. Reed · filed 1981-09-01Rule 23(a)

As is obvious from the wording of the statute, one who is not a member of the represented class may not bring a class action representing that class.

Rule 23(a) requires the sole class representative to retain individual standing for the class action to proceed.

Chambers v. The Moses H. Cone Mem'l Hosp. · filed 2018-04-17Rule 23(a)

Furthermore, Chambers has provided no authority which would allow the class action to proceed despite his lack of individual standing as class representative.

Rule 3 requires a complaint to be filed or a summons to be issued before a court has jurisdiction to grant an injunction or restraining order.

Carolina Freight Carriers Corp. v. Local Union 61 of the International Brotherhood of Teamsters · filed 1971-04-28Rule 3

We hold that the filing of a complaint or the issuance of summons pursuant to G.S. 1A-1, Rule 3, is a condition precedent to the issuance of an injunction or restraining order, and when a complaint is not filed or summons is not issued as provided in said rule, an action is not properly instituted and the court does not have jurisdiction.

Rule 3 governs how a civil action is commenced and does not authorize a motion in a North Carolina court in an action pending in another state.

Bradley v. Bradley · filed 1971-07-14Rule 3

Rule 3 as contained in G.S. 1A-1 provides how a civil action is commenced. There is no provision for any such procedure as was attempted in this case. For the lack of any jurisdiction, the purported order of Judge Arbuckle entered 4 February 1971 is reversed, and this cause is remanded to the District Court of Mecklenburg County for the entry of an order dismissing the motion filed 27 July 1970, by Ernest Phillip Bradley.

Rule 3’s requirements for commencing an action by summons are substantially satisfied when the application and extension order, considered together, provide the required notice.

Morris v. Dickson · filed 1972-03-29Rule 3

Considering the challenged application and order together, in light of the information required by G.S. 1A-1, Rule 3, we hold that there was substantial compliance with the rule and plaintiff’s assignment of error is overruled.

Rule 3 requires the application and order for delayed filing to state the action’s nature and purpose; Rule 6(b) allows an extension after the deadline upon a motion based on excusable neglect.

Atkinson v. Tarheel Homes & Realty Co. · filed 1972-05-24Rule 3; Rule 6(b)

In this case, plaintiff did not state the nature and purpose of his action in his motion for extension of time within which to file his complaint, nor did the order granting the extension state the nature and purpose of the action as required by Rule 3. The complaint was not filed within the 20 days granted. Even if the other requirements of Rule 3 had been met, plaintiff is not saved by Rule 6(b), because no request was made before the expiration of the period of extension. No motion based on excusable neglect was made after the period of extension expired.

Rules 2 through 4 establish the civil action and require filing a complaint and prompt issuance of summons.

Swenson v. All American Assurance Co. · filed 1977-06-15

In this State there is but one form of action for the enforcement or protection of private rights or for the redress of private wrongs. That form of action is, by statute, denominated a civil action. G.S. 1A-1, Rule 2. “A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.” G.S. 1A-1, Rule 3. This rule also provides for certain instances when an action may be commenced by the issuance of a summons with the filing of a complaint in 20 days. We agree with petitioner that petition filed herein meets the requirements of a complaint. Nevertheless, this avails him nothing. G.S. 1A-1, Rule 4, is clear and unambiguous in its requirement that “(u)pon the filing of the complaint, summons shall be issued forthwith, and in any event within five days . . . ” (Emphasis supplied.)

Rule 3 says a civil action begins when a complaint is filed with the court.

Benson v. Benson · filed 1978-12-19Rule 3

“A civil action is commenced by filing a complaint with the court.” G.S. 1A-1, Rule 3.

Rule 3 provides that a civil action is commenced by filing a complaint.

In Re Inquiry Concerning a Judge No. 53 Peoples · filed 1978-12-29Rule 3

Under Rule 3 of the Rules of Civil Procedure, N.C. Gen. Stat. § 1A-1, Rule 3 (1969), a civil action is commenced by the filing of a complaint. Upon the filing of the complaint, Rule 4 requires that summons shall be issued forthwith.

Rule 3 abates an action if the complaint is not filed within the time allowed by the clerk’s order, but not merely because the complaint has not been served.

Hasty v. Carpenter · filed 1979-03-06Rule 3

Rule 3 provides the action shall abate if the complaint is not filed within the period specified in the clerk’s order. It does not provide that the action shall abate if the complaint is not served on the defendant.

Rule 3’s requirements for commencing a civil action do not preclude superior court jurisdiction over an extraordinary special proceeding that the rules were not designed to cover.

In Re Albemarle Mental Health Center · filed 1979-07-17Rule 3

Clearly, this proceeding was not commenced pursuant to our statutory requirements for initiating a civil action. We do not agree, however, with the respondent’s view that our law is so inflexible as to preclude the superior court’s jurisdiction in a matter of such moment as presented by the facts before us.

Under Rules 3 and 4, an action is not commenced by a summons that was never signed and issued.

Collins v. Edwards · filed 1981-10-06Rules 3 and 4

Furthermore, “[a] summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so.” ... We think it is clear the summons was not issued on 21 September 1976, and thus the action was never commenced.

A proper summons must issue within five days after the complaint is filed; otherwise the action abates, but a later summons issued and served on the defendant revives it as a new action on the date of issuance.

Roshelli v. Sperry · filed 1982-05-18Rule 4(a)

The action abated upon failure to issue proper summons within five days of filing the complaint, but the action revived upon the issuance and service of summons on defendant. Therefore, the effect of the second summons, issued on 7 April 1981 for service on the named defendant and served on 13 April 1981, was to revive and commence a new action on the date of issue.

Rules 2 and 3 require a lien holder to commence an action to enforce a North Carolina lien by filing a civil action in the appropriate state court; a bankruptcy filing does not commence that action.

RDC, Inc. v. Brookleigh Builders, Inc. ex rel. Burns · filed 1983-01-18Rules 2 and 3

When the provisions of G.S. 44A-13(a) and G.S. 1A-1, Rules 2 and 3 are construed in pari materia, it is clear that lien holders may not commence an action to enforce their lien by any type of filing in a bankruptcy court, but only by filing a civil action in the appropriate state court.

A summons that omits the county where the action was commenced is defective; if a proper summons does not issue within five days after the complaint is filed, the action is deemed never to have commenced.

Everhart v. Sowers · filed 1983-09-06Rule 4(a), (b)

Inasmuch as the summonses issued in connection with the initial filing of the 30 January 1980 complaint failed to note the county where the action was pending, they were fatally defective and, for purposes of Rule 4, improper. Since proper summons did not issue within the five days allowed under the rule, the action which plaintiff alleges was initiated on 30 January 1980 is deemed never to have commenced.

A motion in an existing action does not commence a new action requiring service of a summons.

Stevens v. Stevens · filed 1984-05-01Rule 3, Rule 4(a)

A motion is not the commencement of an action requiring a service of summons. See G.S. 1A-1, Rule 3, 4(a).

Rule 3 commences a civil action when the complaint is filed, even if service occurs later.

Harris v. Scotland Neck Rescue Squad, Inc. · filed 1985-07-02Rule 3

G.S. 1A-1, Rule 3 provides, that “[a] civil action is commenced by filing a complaint with the court.” Here plaintiff filed his complaint on 4 June 1982. Thus the action was instituted on 4 June 1982 and the court properly allowed prejudgment interest to accrue from that time.

Rule 3(a) makes filing a complaint the start of a civil action.

Fox v. Barrett · filed 1988-05-03Rule 3(a)

This argument cannot succeed. N.C. Gen. Stat. § 1A-1, Rule 3(a) provides: “A civil action is commenced by filing a complaint with the court.” Where the abuse complained of occurred in a prior civil action, the plaintiff must allege some improper act or perversion taking place after the filing of the complaint that is wholly inconsistent with and collateral to the action instituted.

Under Rule 4(d)(2) and (e), failure to sue out a second summons within ninety days caused the action to commence when the defendants were later served.

Reagan v. Hampton · filed 1988-12-06Rule 4(d)(2), (e)

Because the second summons was not sued out within ninety days, Reagan’s cause of action commenced on 3 September 1987.

Rule 3 sets out how to commence a civil action and provides no motion in the cause to enforce a contract.

Morrow v. Morrow · filed 1991-08-20Rule 3

G.S. 1A-1, Rule 3 sets out the way to commence a civil action. Rule 3 makes no provision for a motion in the cause to enforce a contract. Accordingly, on this record we hold that the trial court correctly concluded that it was without jurisdiction to hear defendant’s motion in the cause.

Rule 3(a) defines when a civil action is commenced through delayed service, requiring an application, an order granting permission to file within twenty days, and issuance of a summons pursuant to that order.

Telesca v. SAS INSTITUTE INC. · filed 1999-06-15(a)

A civil action can be commenced either by: (1) “filing a complaint with the court”; or (2) the issuance of a summons when a person makes an “application to the court. . . requesting permission to file [a] complaint within 20 days” and “[the] court makes an order . . . granting the requested permission.” N.C.G.S. § 1A-1, Rule 3(a) (1990). “The summons and the court’s order shall be served in accordance with the provisions of Rule 4.”

An action begins when a complaint is filed or when a summons is issued with an order extending permission to file the complaint.

Beall v. Beall · filed 2003-03-18Rule 3

An action may be commenced by "filing a complaint with the court" or by "the issuance of a summons" and an order extending permission to file. N.C.G.S. § 1A-1, Rule 3 (2001) (emphasis added). Here, the summons was not issued until 27 February 1998, and the complaint was not filed until 16 March 1998; therefore, plaintiff Bradley Beall's claim is barred.

Rule 3 requires a summons to be issued within the limitations period when a plaintiff seeks more time to file a complaint; an application for an extension alone does not commence the action.

Spencer v. Town of Chapel Hill · filed 2003-10-28Rule 3(a)

Merely filing an application for an extension of time is insufficient; a plaintiff must have a summons issued within the relevant statutory period to sustain his claims.

Rule 3’s commencement procedures do not bar a superior court from exercising jurisdiction over an extraordinary proceeding that falls outside statutory procedures.

In Re the Investigation of the Death of Miller · filed 2003-08-22Rule 3

Although this proceeding was not initiated in strict accord with statutory procedures as set forth in N.C.G.S. § 1A-1, Rule 3, or by convening an “investigative grand jury,” N.C.G.S. § 15A-622(h) (2001), our common law, as reflected throughout its development, demonstrates a practical flexibility and ingenuity to accommodate exigent circumstances where required in the interest of justice. This flexibility, as a virtual rule of necessity, will permit the superior court to assume jurisdiction in proceedings of an extraordinary nature that do not fit neatly within statutory parameters.

Rule 3 permits a plaintiff to use its summons procedure in North Carolina state court to commence an ADA action within the federal filing period, provided the complaint is filed within the allowed extension.

Sheaffer v. County of Chatham · filed 2004-09-17Rule 3

This court thus concludes that the Rule 3 procedure can properly be used in North Carolina state courts to extend the time in which to file claims under the ADA.

Rule 15(c) does not make the filing date of an amended complaint the date an action commenced.

Moss Creek Homeowners Ass'n v. Bissette · filed 2009-10-20Rule 15(c)

Plaintiffs’ argument that the date of their amended complaint should be the date by which our Court measures the date the action commenced has no statutory basis. See N.C. Gen. Stat. § 1A-1, Rule 15(c) (2007).

Rule 3 provides that a civil action begins when a complaint is filed with the court.

Tseng v. Martin · filed 2016-05-03Rule 3

"A civil action is commenced by filing a complaint with the court." N.C. Gen.Stat. § 1A-1, Rule 3 (2015). ... As such, we adopt the trial court's finding that this action commenced 16 August 2013.

Rule 3 commences a civil action by the filing of a complaint; a petition for administrative review does not commence one.

Ragland v. Nash-Rocky Mount Bd. Of Educ. · filed 2016-06-07Rule 3

Petitioner did not file a complaint or commence a civil action under Rule 3 of the North Carolina Rules of Civil Procedure.

Rule 3 permits a North Carolina civil action to be commenced by filing a complaint or making certain applications to the court.

WILLARD v. INDUSTRIAL AIR, INC. · filed 2021-01-29R. 3

Under North Carolina law, a suit may be commenced either by filing a complaint with the court or by making certain applications to the court.

Rule 3(a) requires issuance of a summons to commence an action through the twenty-day extension procedure; an application and extension order alone do not commence it.

Lunsford v. Teasley · filed 2021-04-06Rule 3(a)

Applying the plain language of Rule 3(a), the Application and Order Extending Time to File Complaint, filed on 24 September 2019, did not commence a new action under the second method absent the issuance of a summons.

A civil action against a person who was not a party to the original suit must be commenced by filing a complaint before the court can impose personal liability on that person.

Composite Technology, Inc. v. Advanced Composite Structures (USA), Inc. · filed 2002-05-21Rules 2, 3

As plaintiff failed to file an action against Anning, who was not a party to the underlying dispute, no legitimate action existed over which the trial court could properly exercise jurisdiction.

Rule 53(a)(2) permits a trial court to order a reference on its own motion when an issue requires examination of a complicated account.

Porter Bros. v. Jones · filed 1971-05-26Rule 53(a)(2)

Where the trial of an issue requires the examination of a complicated account the trial court may, upon its own motion, order a reference. G.S. 1A-1, Rule 53(a)(2). In our opinion the reference was properly ordered in this case.

Rule 53(g)(2) permits only the judge, not the referee, to enter judgment on a reference.

Rouse v. Wheeler · filed 1973-02-21Rule 53(g)(2)

The last sentence in the above-quoted section of Rule 53 specifically prohibits a referee from entering a judgment in a matter presented to him.

Rule 53 requires a transcript of the evidence; a referee’s summary notes do not satisfy that requirement.

Synco, Inc. v. Headen · filed 1980-06-03(f)(3)

The referee submitted with his report as an exhibit his notes which purportedly consisted of a summary of the testimony of the various witnesses in the hearing before him; such notes, however, are not a proper substitute for the transcript of the evidence and do not meet the requirements of G.S. 1A-1, Rule 53.

Rule 53(f)(2) permits a referee handling an accounting to set the form of the accounts and receive a qualified accountant’s statement as evidence.

Davis v. Davis · filed 1982-07-06Rule 53(f)(2)

However, “[w]hen matters of accounting are in issue before the referee, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant or other qualified accountant who is called as a witness.” G.S. 1A-1, Rule 53(f)(2). Under these general rules, we find no error in the trial judge’s statements in sections “(c)” and “(d)” of the order regarding the referee’s responsibilities and authority to conduct an accounting in this case.

Rule 41(a)(2) permits a court, in its discretion, to dismiss an action without prejudice when an adverse judgment with prejudice would defeat justice.

King v. Lee · filed 1971-06-10Rule 41(a)(2)

The obvious purpose of Rule 41 (a) (2) is to permit a superior court judge in the exercise of his discretion to dismiss an action without prejudice if in his opinion an adverse judgment with prejudice would defeat justice.

Rule 41(a)(2) permits a judge to set the terms of a voluntary dismissal; a dismissal with prejudice disposes of the claim on the merits.

Barnes Ex Rel. Underwood v. McGee · filed 1974-04-17Rule 41(a)(2)

Except as provided by subsection (1) of Rule 41(a), no action or claim therein shall be dismissed at the plaintiff’s instance except upon such terms as the judge may determine that justice requires. G.S. 1A-1, Rule 41(a)(2). ... A dismissal “with prejudice” is the converse of a dismissal “without prejudice” and indicates a disposition on the merits.

Rule 41(a)(2) allows a plaintiff to seek voluntary dismissal with the judge’s permission on terms and conditions justice requires, without a stated time limit.

Bowen Ex Rel. Bowen v. Hodge Motor Co. · filed 1976-05-19(a)(2)

The rule prescribes no time limit on the right of the plaintiff to move for a voluntary dismissal with the court’s permission.

Rule 41(a)(2) allows voluntary dismissal by order of a judge on terms and conditions justice requires, and places no time limit on the plaintiff's motion.

West v. G. D. Reddick, Inc. · filed 1978-10-17Rule 41(a)(2)

Whether an order granting voluntary dismissal under Rule 41(a)(2) should be entered is a matter of trial court discretion. ... Rule 41 places no time limit on the right of a plaintiff to move for a voluntary dismissal under 41(a)(2).

Rule 41(a)(2) allows a plaintiff to dismiss an action by court order on terms and conditions justice requires, generally without prejudice.

Thompson v. Town & Country Construction Co. · filed 1978-12-19(a)(2)

It follows that the standards governing the granting of Rule 41(a)(2) dismissals should also be applied in ascertaining whether a judge was warranted in declaring a mistrial “to further the ends of justice.”

Rule 41(a) applies the second-dismissal rule only to a plaintiff’s filed notice of dismissal and permits a new action within one year after a court-ordered dismissal without prejudice unless the order sets a shorter period.

Parrish v. Uzzell · filed 1979-06-05Rule 41(a)(1), (a)(2)

Thus, while each dismissal was obtained at plaintiff’s instance, neither was effected by the plaintiff filing a notice of dismissal as authorized by G.S. 1A-1, Rule 41(a)(l)(i), to which alone the “second dismissal” rule applies. ... Neither the order by which her first action was dismissed nor the order by which her second action was dismissed specified a shorter time than one year after the dismissal within which plaintiff might bring a new action. We hold that the plaintiff’s action is not barred by the statute of limitations.

Rule 41(a)(1) allows a plaintiff to refile within one year after a voluntary dismissal without prejudice even if the dismissal notice does not cite the rule.

Bradley Freight Lines, Inc. v. Pope, Flynn & Co. · filed 1979-07-17Rule 41(a)(1)

The fact that plaintiff’s notice of dismissal in this case did not refer to the specific rule of its origin would appear to have no legal significance. ... The voluntary dismissal without prejudice entitled the plaintiff to reinstate his claim within one year from the date of the notice, that being 7 December 1976.

Rule 41(a)(1)’s one-year refiling period does not apply when the prior action was discontinued before the attempted voluntary dismissal.

Wheeler v. Roberts · filed 1980-02-19Rule 41(a)(1)

Plaintiffs prior action was discontinued well before plaintiff attempted to dismiss it voluntarily pursuant to Rule 41(a)(1). Her attempt was ineffectual to bring the provisions of Rule 41(a)(1) into play.

When a case has proceeded to trial with both parties present, the one-year period to reinstitute a suit after a voluntary dismissal begins when oral notice is given in open court.

Danielson v. Cummings · filed 1980-05-06Rule 41(a)(i)

Accordingly, we hold that when a case has proceeded to trial and both parties are present in court, the one-year period in which a plaintiff is allowed to reinstitute a suit from a Rule 41(a)(i) voluntary dismissal begins to run from the time of oral notice of voluntary dismissal given in open court.

Rule 41(a)(2) allows a plaintiff one year after a voluntary dismissal without prejudice to refile an action.

West v. G.D. Reddick, Inc. · filed 1980-08-05(a)(2)

We discover, however, from defendant's answer that on 15 September 1977 plaintiff took a voluntary dismissal without prejudice, but again the complaint reveals that this action was not brought within the one-year period prescribed in N.C.G.S. 1A-1, Rule 41(a)(2). Clearly, based upon the pleadings, the court correctly dismissed plaintiff's action.

Rule 60(b)(6) permits a voluntary dismissal to be set aside when an administrator’s unauthorized wrongful death settlement deprives a beneficiary of statutory protections.

Bowling v. Combs · filed 1983-01-04Rule 60(b)(6)

In that capacity he failed to exercise his statutory powers in conformity with express provisions of the applicable statute by failing to accord Benton, as a beneficiary of the wrongful death recovery, the statutory protections provided for her benefit. These circumstances constituted a “reason justifying relief from the operation of the” voluntary dismissal, G.S. 1A-1, Rule 60(b)(6); and it was therefore properly set aside.

A voluntary dismissal without prejudice under Rule 41(a)(1) bars the plaintiff from appealing an earlier adverse ruling on a claim against the dismissed defendant.

Lloyd v. Carnation Co. · filed 1983-04-05(a)(1)

We hold that when plaintiff took a voluntary dismissal without prejudice as to his claims against Carnation Company, he destroyed his right to appeal the adverse ruling of 1 January 1981 allowing summary judgment on Count Five of the Complaint.

Rule 41(b) does not permit dismissal without prejudice of a counsel-fee motion for insufficient evidence; the court must rule on the merits.

Whedon v. Whedon · filed 1984-05-01Rule 41(b)

We recognize that the language of Rule 41(b) is somewhat vague and at first glance may appear to permit an involuntary dismissal without prejudice of a motion for counsel fees under N.C. Gen. Stat. § 50-16.4 when the movant has failed to present sufficient evidence to support such motion. We do not believe, however, that this is a proper application of the rule. ... The additional language in the order indicating that the motion for appellate attorneys’ fees was dismissed without prejudice was without legal effect and must be regarded as mere surplusage.

Rule 41(d) allows a court to enter orders apportioning and taxing costs after a plaintiff files a notice of voluntary dismissal.

Ward v. Taylor · filed 1984-05-01Rule 41(d)

The object of this statutory rule is clearly to provide superior and district courts with authority for the efficient collection of costs in cases in which voluntary dismissals are taken. We therefore hold that the filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court’s authority to enter orders apportioning and taxing costs.

Rule 41(b) gives trial courts broad discretion to order an involuntary dismissal without prejudice, subject to review for abuse of discretion.

Whedon v. Whedon · filed 1985-04-02Rule 41(b)

The trial court’s authority to order an involuntary dismissal without prejudice is therefore exercised in the broad discretion of the trial court and the ruling will not be disturbed on appeal in the absence of a showing of abuse of discretion.

Rule 41(a)(2) permits dismissal without prejudice without the consent of a counterclaiming defendant.

Smith v. Williams · filed 1986-09-02Rule 41(a)(2)

Contrary to the practice under North Carolina Rule 41(a)(1), see McCarley v. McCarley, 289 N.C. 109, 111-15, 221 S.E. 2d 490, 493-94 (1976), and contrary to the language and practice under Federal Rule 41(a)(2), see Moore’s Federal Practice Par. 41.09 (2d ed. 1985), the consent of a counterclaiming defendant is not required for dismissals entered pursuant to North Carolina Rule 41(a)(2) to be without prejudice.

A voluntary dismissal without prejudice ends the action as though it had never been filed.

Thomas v. Miller · filed 1992-03-03(a)

The dispositive factor here is defendants’ voluntary dismissal pursuant to N.C.G.S. § 1A-1, N.C.R. Civ. P. 41 (1990). Once a party files for and is granted a voluntary dismissal without prejudice, “it [is] as if the suit had never been filed.”

A voluntary dismissal without prejudice under Rule 41(a)(1) terminates the action and makes an appeal from the denial of summary judgment moot.

Teague v. Randolph Surgical Associates, P.A. · filed 1998-06-16Rule 41(a)(1)

The record reflects that on 12 February 1997, plaintiffs submitted to a voluntary dismissal without prejudice of their fraud claim pursuant to G.S. § 1A-1, Rule 41(a)(1). In doing so, plaintiffs terminated the action, leaving nothing in dispute, and rendered the trial court’s denial of defendants’ motion for summary judgment moot.

A voluntary dismissal with prejudice is a final judgment on the merits that can bar later litigation of the same claims.

Stafford v. County of Bladen · filed 2004-03-02Rule 41(a)(1)

As the parties and claims are identical and the dismissal with prejudice based on the Staffords’ payment is a final judgment on the merits, the Staffords’ claim is barred by res judicata.

Rule 41(a)(1)’s two-dismissal rule does not create a conditional immunity from suit.

Allen v. Stone · filed 2003-12-02Rule 41(a)(1)

We decline to adopt defendant’s interpretation of Rule 41(a)(1) as creating a “conditional immunity from suit.”

A voluntary dismissal without prejudice under Rule 41 leaves the plaintiff in the same position as before the action was filed.

Barefoot v. Rule · filed 2019-05-21(a)(1)

Under either Tennessee or North Carolina law, a Rule 41.01 or 41 voluntary dismissal without prejudice leaves the plaintiff “exactly where he or she was before the action was commenced.”

Rule 41(b) leaves it to the trial court’s discretion whether a dismissal without prejudice permits the claim to be refiled within one year.

Pritchett v. Dudek · filed 2025-08-20Rule 41(b)

The language of the statute leaves the choice of whether to add language allowing the claim to be refiled within one year to the sound discretion of the trial court.

Rule 65 permits interim injunctive relief enforcing a separation agreement when successive suits for support payments would not provide an adequate remedy.

Gibson v. Gibson · filed 1980-10-07Rule 65

Requiring successive lawsuits to recover in a piecemeal fashion the sums due can hardly be called an adequate remedy. ... We have examined the record and conclude the defendant has met the statutory requirements for a grant of injunctive relief. G.S. 1A-1; Rule 65.

Rule 65(c) is procedural and does not abrogate a municipality's governmental immunity when it obtains a restraining order or injunction.

Orange County v. Heath · filed 1972-06-13Rule 65(c)

But defendants contend that by the enactment of G.S. 1A-1, Rule 65(c) the General Assembly abrogated the common law rule aforesaid where a municipality obtains a restraining order or injunction. ... The question presented by this contention is: Was substantive law changed by a procedural statute? We hold that it was not. There can be no doubt that G.S. 1A-1, Rule 65(c) is a procedural statute.

Rule 65(c) does not waive governmental immunity from damages caused by an improperly issued restraining order.

Orange County v. Heath · filed 1972-11-1565(c)

The concept of sovereign immunity is so firmly established that it should not and cannot be waived by indirection or by procedural rule.

Rules 52 and 65 govern findings, conclusions, injunction terms, and security requirements for injunctions and other provisional remedies.

Staton v. Russell · filed 2002-06-18Rule 65(d), Rule 52(a)(2), Rule 65(c)

Rule 65(d) requires that an injunction “shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined or restrained . . . .” N.C. R. Civ. P. 65(d). Rule 52(a)(2) states that “findings of fact and conclusions of law are necessary on the granting or denying of a preliminary injunction or any other provisional remedy only when required by statute expressly relating to such remedy or requested by a party.” N.C. R. Civ. P. 52(a)(2). ... After review of the form and substance of the injunctive order, we conclude that the order adequately set forth findings that succinctly stated the reasons for the issuance of the injunction as required by Rules 65 and 52 of the North Carolina Rules of Civil Procedure. ... Accordingly, we hold that this assignment of error fails.

Rule 65(c) requires security for a restraining order or preliminary injunction, and a new bond is unnecessary when an existing bond is not shown to be insufficient.

Precision Walls, Inc. v. Servie · filed 2002-09-03(c)

It was not necessary, if upon the hearing to show cause the trial court continued the temporary restraining order as a preliminary injunction pending final determination at trial, for the trial court to require a new security bond or consider the adequacy of the one posted, “unless for some reason and upon proper suggestion, it should be made to appear that the bond already given was insufficient.”

Rule 65(d) bars a court from binding defendants to an earlier injunction by incorporating it by reference.

Ferrell v. Doub · filed 2003-09-16Rule 65(d)

The trial court could not make the 1996 injunction binding upon the defendants by incorporating it by reference.

Rule 65 does not require a verified complaint for issuance of an injunction.

Animal Legal Defense Fund v. Woodley · filed 2007-02-06Rule 65

Rule 65 is also devoid of any mention of a verified complaint requirement; indeed, this Court has held that verification of complaint is not a condition for issuance of an injunction under Rule 65.

Rule 65(d) requires an injunction to describe prohibited conduct clearly enough to support enforcement through contempt.

Broadbent v. Allison · filed 2008-10-21Rule 65(d)

Absent a copy of plaintiff's motion for temporary injunction or any other documents in the record which could shed light on the meaning of "fully licensed" as used in the temporary injunction, and absent language in the FAA regulations clearly corresponding to the phrase "fully licensed" pilot, we conclude that the descriptive phrase "not fully licensed" lacks sufficient clarity to hold defendants in criminal contempt.

Rule 65(d) requires an order granting an injunction to state the reasons for its issuance.

Danny's Towing 2, Inc. v. North Carolina Department of Crime Control · filed 2011-07-19Rule 65(d)

We first note that the injunctive portion of the order does not set forth the reasons for its issuance as required by statute. Under N.C. Rule of Civil Procedure 65(d), “[e]very order granting an injunction ... shall set forth the reasons for its issuance.”

Rule 27(b) requires a petition for a deposition before filing suit to describe the expected action in enough detail for the court to determine whether the requested information is necessary to prepare a complaint.

In re Lewis · filed 1971-06-23Rule 27(b)

It is essential under Rule 27 (b) that the nature and purpose of any expected action be described in the petition in such detail as will enable the court to determine whether the information sought to be obtained from an expected adverse party is material and necessary to enable the petitioners to prepare their complaint.

Rule 26(d)(1) permits admission of offered portions of an adverse examination despite the witness having testified at a hearing and living within 75 miles of it.

Gay v. Guaranteed Supply Co. · filed 1971-08-04Rule 26(d)(1)

We think Rule 26(d) (1) applies and that the portions of the Sachs’ examination offered by plaintiffs should have been received in evidence.

Rule 26(e) allows a plaintiff to introduce a defendant’s adverse examination without making the defendant the plaintiff’s witness or vouching for the defendant’s credibility; the plaintiff may impeach or contradict the defendant.

Bowen v. CONSTRUCTORS EQUIPMENT RENTAL COMPANY · filed 1973-06-01Rule 26(e)

Under Rule 26(e) the introduction in evidence by a plaintiff of the adverse examination of the defendant no longer makes the defendant a witness for the plaintiff. Plaintiff does not thereby represent the defendant as being worthy of belief as to each and every aspect of his testimony. He may impeach him as well as contradict him.

Rule 26(d) does not permit a party to use a deposition solely to corroborate its witness’s trial testimony.

Miller Ex Rel. Miller v. Kennedy · filed 1974-06-19Rule 26(d)

Subsection (d) (3) of the Rule then provides for the only other instances in which the deposition may be used, and “for purpose of corroboration” is not one of them.

Rule 30(a) gives any party an unqualified right to take a deposition after an action begins, subject to protective orders under Rule 26(c).

Tennessee-Carolina Transportation, Inc. v. Strick Corp. · filed 1977-01-31Rule 30(a); Rule 32(a); Rule 26(c), (d), and (b)(1)

This language is clear and unequivocal. The use of the deposition at trial is governed by Rule 32(a), quoted above in part. Whether a deposition may be used at trial pursuant to Rule 32(a) (4) will depend upon the circumstances at the time of the trial, but the right to take the deposition granted by Rule 30(a) is unqualified except for the provision of Rule 26(c) authorizing the trial court to issue “protective orders.”

Rule 26(d) permits a deposition to be used against a party who was present or represented when it was taken or had due notice, subject to the rules of evidence.

Craig v. Kessing · filed 1978-06-06Rule 26(d)

G.S. 1A-1, Rule 26(d), which was applicable at the time of the trial of this case, states: ... “Any part or all of a deposition, so far as admissible under the rules of evidence, may be used at the trial or upon the hearing of a motion or an interlocutory proceeding or upon a hearing before a referee, against any party who was present or represented at the taking of the deposition or who had due notice thereof, as follows: . . . .” ... While the deposition of Kessing, taken in the absence of Carlisle or counsel for Carlisle, would not be admissible against Carlisle, it is clearly admissible against Kessing.

Rule 26(d) allows a deposition to be used against a party who was present or represented when it was taken if the court finds that the deponent is dead.

Bullock v. Insurance Co. of North America · filed 1979-01-16Rule 26(d)

The admissibility of a deposition is, however, governed by other rules. A deposition may be used against any party who was present or represented at the taking of the deposition if the court finds that the deponent is dead. G.S. 1A-1, Rule 26(d).

Rule 32 takes precedence over conflicting restrictions on the use of depositions in G.S. 8-83.

Nytco Leasing, Inc. v. Southeastern Motels, Inc. · filed 1979-03-06Rule 32

We therefore hold that, to the extent they are in conflict, G.S. 1A-1, Rule 32 takes precedence over G.S. 8-83.

Rule 32(a)(5) allows an adverse party to require the introduction of additional deposition testimony relevant to the portion already offered.

Property Shop, Inc. v. Mountain City Investment Co. · filed 1982-04-06Rule 32(a)(5)

We think the court properly required defendant to introduce these portions of the deposition pursuant to G.S. 1A-1, Rule 32(a)(5), which reads as follows: “If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which is relevant to the part introduced, and any party may introduce any other parts.” We find that the additional testimony was relevant to portions of the deposition defendant had previously introduced and therefore overrule this exception.

Rule 32(a)(4) permits a deposition to be used at trial when the witness is beyond the reach of a subpoena; a formal subpoena is unnecessary in those circumstances.

Wright v. American General Life Insurance · filed 1982-12-07Rule 32(a)(4)

G.S. 1A-1, Rule 32(a)(4) (Cum. Supp. 1981) provides, inter alia, that a deposition may be used in court proceedings when “the party offering the deposition has been unable to procure the attendance of the witness by subpoena.” ... Given the facts established and found, defendant’s failure formally to subpoena the witness is immaterial.

Rule 32(a)(5) permits an adverse party to require introduction of deposition portions sufficiently relevant to the portions offered in evidence.

Holbrooks v. Duke University, Inc. · filed 1983-08-02Rule 32(a)(5)

We believe the segments of the deposition which the court compelled the plaintiffs to read into evidence were sufficiently relevant to the parts of the deposition which the plaintiffs offered into evidence so that it was not error for the court to compel the plaintiffs to read them to the jury.

Rule 32 requires the court to determine whether a party who was neither present nor represented at a deposition was properly served with notice before admitting it, even when the witness cannot attend trial.

St. Clair v. Rakestraw · filed 1984-04-03Rule 32(a)(4)

Though the court did properly determine that Mr. St. Clair was unable to attend court, since the record shows defendant was neither present nor represented at the taking of the deposition, the court should also have determined whether defendant had been properly served with notice.

Rule 32(a) did not permit a portion of a subpoenaed witness’s deposition to be read to the jury when the witness was available to testify under these circumstances.

Warren v. City of Asheville · filed 1985-05-07Rule 32(a)

Foster had been subpoenaed and was available to testify. ... We have carefully examined the provisions of G.S. 1A-1, Rule 32(a) and find none under which the reading of the deposition should have been allowed. Therefore, the trial court erred in allowing the reading of a portion of the deposition.

Rule 32(a)(3) permits a deposition to be used as substantive evidence against a corporation only if the deponent was its officer, director, or managing agent when the deposition was taken.

Fortune v. First Union National Bank · filed 1987-09-01Rule 32(a)(3)

G.S. 1A-1, Rule 32(a)(3), however, provides, in part, that a deposition may be used as substantive evidence where the deponent “at the time of taking the deposition was an officer, director, or managing agent” [emphasis added] of a private corporation which is an adverse party to the party using the deposition. Since Mr. Jordan was not an officer of defendant at the time his deposition was taken, its admission as substantive evidence was error.

Rule 32(a)(5) allows admission of additional deposition portions relevant to a portion offered in evidence, but does not require admission of the entire deposition.

Lenins v. K-Mart Corp. · filed 1990-06-05Rule 32(a)(5)

This reliance is misplaced since plaintiffs here allege a right to have the entire depositions admitted once a portion has been offered into evidence. The statute allows the admission of “any other part which is relevant to the part introduced.” (Emphasis added.)

Rule 32 treats discovery depositions and trial depositions the same for purposes of using them at trial.

Robertson v. Nelson · filed 1994-09-06(a)

Following the Fourth Circuit Court of Appeals, we hold there is no distinction between a discovery deposition and a trial deposition, under Rule 32.

Rule 32(a)(4) permits use of an unavailable witness’s deposition based on illness, but counsel’s telephone report from the witness’s wife, without further proof, does not sufficiently establish illness.

Vandervoort v. McKenzie · filed 1994-12-06Rule 32(a)(4)

Here, appellant’s attorney orally stated that he had received the information that White was ill from White’s wife over the telephone. Appellant’s attorney offered no other form of proof concerning White’s alleged illness although the record indicates that appellant’s attorney had known that White was ill since the previous Monday morning. We hold that appellant’s attorney failed to offer sufficient proof of White’s alleged illness and that the trial court did not abuse its discretion in refusing to admit White’s testimony under this provision of Rule 32(a)(4).

Rule 30(a) requires leave of court for a deposition scheduled within 30 days after service of the summons and complaint on any defendant, and permits sanctions for violating that requirement.

Patterson v. Sweatt · filed 2001-10-02(a)

Under Rule 30(a), the thirty day limitation must be met with respect to every defendant, not just the ones being deposed. ... Based on the foregoing facts, we find that plaintiffs failed to seek “leave of court” for a deposition that was scheduled “prior to the expiration of 30 days after service of the summons and complaint,” in violation of Rule 30(a) and it was within the trial court’s power to grant a protective order and impose a sanction of attorneys’ fees.

Rule 32(a) permits an available witness’s deposition to be admitted when the opposing party had notice or representation at the deposition and an enumerated purpose is met.

Suarez v. Wotring · filed 2002-12-31(a)

Having reviewed the text of Rule 32(a) of the North Carolina Rules of Civil Procedure, the comment to the 1975 amendment to Rule 32(a), and applicable case law interpreting the companion federal rule, we hold that the deposition of an available witness is admissible under Rule 32(a), so long as one of the enumerated purposes set forth in Rule 32(a) have been met. When a witness is available, Rule 32(a) creates an independent exception to the hearsay rule and the proponent of that witness’s deposition testimony need only show that (1) the party against whom the deposition is offered was present or represented at the deposition or had reasonable notice thereof, and (2) one of the enumerated purposes of Rule 32 is met. N.C.R. Civ. P. 32(a).

Rule 32(a) permits an adverse party to use a party’s deposition at trial when that party was present or represented when the deposition was taken.

Floyd v. McGill · filed 2003-02-04(a)

Rule 32(a) states that a deposition can be used against “any party who was present or represented at the taking of the deposition.” McGill was present at her deposition in addition to being represented by counsel for the City and for Transit. Accordingly, the admission of McGill’s deposition was proper under Rule 32(a).

Rule 32(a)(5) allows an adverse party to require relevant portions of a deposition when the opposing party offers only part of it.

Godwin v. Barnes · filed 2004-12-21(a)(5)

However, "[i]f only part of a deposition is offered in evidence by a party, an adverse party may require him tointroduce any other part which is relevant to the part introduced . . . ." N.C. Gen. Stat. § 1A-1, Rule 32(a)(5) (2003). ... Where a plaintiff reads into evidence a portion of a deposition, it is not error for the trial court to require the plaintiff to read into evidence other relevant parts of the deposition.

Under Rule 32(c), a deponent does not become a party’s witness until the deposition is introduced at trial.

Williams v. CSX Transportation, Inc. · filed 2006-03-07Rule 32(c)

The direct and cross-examination testimony in the deposition did not make Dr. Roggli either party’s witness until the deposition was introduced at trial.

Rule 32(d)(3)(a) preserves an objection to the competency of deposition testimony when raising it during the deposition could not have cured the defect.

Estate of Redden Ex Rel. Morley v. Redden · filed 2006-08-01Rule 32(d)(3)(a)

Since an objection based on Rule 601 would not “have been obviated or removed if presented” during the deposition, plaintiff has not waived the objection by failing to make it at the deposition.

Rule 30(b)(1) makes a deposition notice defective when it requires North Carolina residents to attend in a county other than one permitted by the rule.

Mace v. Utley · filed 2020-12-15Rule 30(b)(1)

While Plaintiffs contend it was improper for Utley and Bell to refuse to appear for depositions, we note the notice of deposition was defective under Rule 30 as it required Utley and Bell to attend a deposition in Guilford County, even though they were residents of Orange County.

Rule 17(a) allows a real party in interest to ratify an action within a reasonable time after an objection; participation through counsel can constitute ratification.

Long v. Coble · filed 1971-07-14Rule 17(a)

When counsel for the employer and his insurance carrier thus participated in the action as counsel for the plaintiff, we hold that this was a ratification of the commencement of the action within a reasonable time after the “plea in bar” had been interposed by the defendants.

Rule 17 requires a claim to be prosecuted by the real party in interest; a next friend cannot pursue the claim after the plaintiff’s death when an estate representative should be substituted.

Ginn ex rel. Langston v. Smith · filed 1974-01-16

Every claim shall be prosecuted in the name of the real party in interest. G.S. 1A-1, Rule 17. However, in this action, although the trial judge expressly authorized and directed the substitution of an administrator of the estate of Jennie Ginn as plaintiff, the Next Friend has undertaken to prosecute this appeal.

Rule 17(a) requires the real party in interest to prosecute a claim.

Wood v. Wood · filed 1974-10-16Rule 17(a)

At the threshold of our consideration of this case, we are confronted with the question of law whether the administratrix is the real party in interest to bring this action. It is fundamental that the real party in interest must prosecute a claim. G.S. 1A-1, Rule 17(a) ; G.S. 1-57.

Rule 17(a) allows a party with whom or in whose name a contract was made for another’s benefit to sue in the party’s own name without joining the beneficiary and requires a reasonable time for ratification, joinder, or substitution before dismissal.

Reeves v. Jurney · filed 1976-06-16(a)

G.S. 1A-1, Rule 17(a) includes provision that “a party with whom or in whose name a contract has been made for the benefit of another .... may sue in his own name without joining with him the party for whose benefit the action is brought.”

Rule 17(a) requires every claim to be prosecuted in the name of the real party in interest and applies to defendants as well as plaintiffs.

Reliance Insurance v. Walker · filed 1977-04-20(a)

G.S. 1A-1, Rule 17 (a) of the North Carolina Rules of Civil Procedure provides that “[e]very claim shall be prosecuted in the name of the real party in interest ...” Although Rule 17 by its terms applies only to parties plaintiff, the rule is applicable to parties defendant as well.

Rule 17 authorization or ratification cannot cure a party’s substantive lack of capacity to sue in its own name.

Malloy v. Daniel · filed 1982-07-06Rule 17

This rule is one of substantive law, and goes beyond “real party in interest” concerns; hence, any arguments based on G.S. § 1A-1, Rule 17, about authorization or ratification by the county are unavailing.

Rule 17(a) provides an opportunity to substitute the real party in interest; that party’s absence does not itself warrant a directed verdict.

Carolina First National Bank v. Douglas Gallery of Homes, Ltd. · filed 1984-05-01Rule 17(a)

Applying Rule 17(a) and the reasoning in Booker to the case sub judice, we hold that the absence of the real party in interest did not warrant a directed verdict.

Rule 17 makes joinder or ratification by the real party in interest relate back to the date the action commenced.

Southern Railway Co. v. O'Boyle Tank Lines, Inc. · filed 1984-08-21Rule 17(a)

Rule 17 provides that the date of such a joinder or ratification by the real party in interest relates back to the date the action was commenced, thus overcoming defendant's argument that the statute of limitations had run with respect to plaintiffs.

Rule 17 applies to defendants; a defendant with an exclusive right to rental income from the property is a real party in interest.

Dobbins v. Paul · filed 1984-11-06Rule 17

He therefore was a real party in interest. N.C. Gen. Stat. § 1A-1, Rule 17 of the Rules of Civil Procedure (1983); Insurance Co. v. Walker, 33 N.C. App. 15, 234 S.E. 2d 206, disc. rev. denied, 293 N.C. 159, 236 S.E. 2d 704 (1977) (Rule 17 applies to defendants).

Rule 17(a) requires a claim to be prosecuted in the name of the real party in interest.

Goodrich v. Rice · filed 1985-07-02Rule 17(a)

Every claim must be prosecuted in the name of the real party in interest. G.S. 1A-1, Rule 17(a).

Rule 17(a) permits the real party in interest to ratify a petition and be substituted as petitioner when the original petitioner was erroneously designated.

Union County Department of Social Services ex rel. Herrell v. Mullis · filed 1986-08-05Rule 17(a)

Because, for reasons hereinafter stated, we must vacate the order entered by the trial court and remand this case for further proceedings, we specifically hold that respondents are not entitled to a dismissal of the petition by reason of the erroneous designation of Mr. Herrell as petitioner. They can in no way be prejudiced by permitting DSS to ratify the petition and be substituted as petitioner.

Rule 17(a) allows a corporation to become a party plaintiff by ratifying the action through a trial stipulation binding it to the judgment.

Lawrence v. Wetherington · filed 1993-01-05Rule 17(a)

We hold that by the foregoing trial events Carolina Vinyl Siding became a party plaintiff to this action by ratification. See N.C.G.S. § 1A-1, Rule 17(a) of the Rules of Civil Procedure. Carolina Vinyl Siding’s rights under the contract between it and defendant are therefore finally determined by the judgment below.

Rule 17(a) requires a claim to be prosecuted by the party with the substantive right to enforce it; a judgment creditor expecting foreclosure surplus is not the real party in interest in an action against a defaulting bidder.

Union Grove Milling & Manufacturing Co. v. Faw · filed 1993-03-02Rule 17(a)

Rule 17(a) of the North Carolina Rules of Civil Procedure provides that every claim shall be prosecuted in the name of the real party in interest. N.C.G.S. § 1A-1, Rule 17 (1990). This Court has previously stated that “[t]he real party in interest is the party who by substantive law has the legal right to enforce the claim in question.” ... As such, the real party in interest is the trustee in foreclosure and not Union Grove.

Rule 17 requires a minor’s claim to be asserted by a guardian and gives the real party in interest a reasonable opportunity to be substituted before dismissal.

Freeman v. Blue Cross & Blue Shield of North Carolina · filed 1996-07-16Rule 17(a), (b)

The defendant finally argues that the dismissal should be affirmed on the grounds that the plaintiff has no standing to file the complaint, as the claim for benefits belongs to the plaintiffs minor son. We agree that the child is the real party in interest and that the claim must be asserted by a general or testamentary guardian or by guardian ad litem, N.C.G.S. § 1A-1, Rule 17(b) (1990), and that the record does not reveal that a guardian of any type has been appointed for the child. It does not follow, however, that the action must be dismissed. On remand the real party in interest must be given a reasonable opportunity to be substituted as a party plaintiff. N.C.G.S. § 1A-1, Rule 17(a) (1990).

Rule 17(a) gives a plaintiff a reasonable time after an objection to substitute or join the real party in interest; if the plaintiff fails to do so, the court may dismiss the action.

RICHLAND RUN HOMEOWNERS ASSOCIATION, INC. v. CHC Durham Corp. · filed 1996-08-06Rule 17(a)

Therefore, under the facts of this case, plaintiff had a reasonable time to substitute the real party in interest as required by Rule 17. When plaintiff failed to attempt to correct the problem after a reasonable time, the court did not abuse its discretion by granting defendants' motion.

Rule 17(a) requires every claim to be prosecuted or defended in the name of the real party in interest.

Whittaker v. Furniture Factory Outlet Shops & Auto-Owners Insurance · filed 2001-07-17(a)

G.S. § 1A-1, Rule 17(a) of the North Carolina Rules of Civil Procedure provides that every claim shall be prosecuted or defended in the name of the real party in interest.

Rule 17 requires every claim to be prosecuted in the name of the real party in interest.

Dawson v. Atlanta Design Associates, Inc. · filed 2001-07-17Rule 17

Rule 17 of the North Carolina Rules of Civil Procedure provides that "[e]very claim shall be prosecuted in the name of the real party in interest." N.C.G.S. § 1A-1, Rule 17 (1999). ... Plaintiff, therefore, is a real party in interest under Rule 17 and is not precluded from bringing his claims against Defendants.

Rule 17(a) requires a court to allow a reasonable time for the real party in interest to ratify, join, or substitute before dismissing an action.

Land v. TALL HOUSE BUILDING CO. · filed 2002-05-07(a)

Rule 17(a) states: ... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. ... The trial court could not dismiss this action until a reasonable time had been allowed to pass for ACA to ratify, join, or substitute itself for Tall House.

Rule 17(a) requires a claim to be brought by a real party in interest; beneficiaries cannot pursue individual claims for injury to trust property when the trustee brings those claims and no exception applies.

Slaughter v. Swicegood · filed 2003-02-03Rule 17(a)

The North Carolina Rules of Civil Procedure require that “[e]very claim shall be prosecuted in the name of the real party in interest.” N.C.G.S. § 1A-1, Rule 17(a) (2003). ... Accordingly, we hold that the trial court erred in concluding that the Slaughters had standing to pursue their individual claims against defendants.

Rule 17(a) allows dismissal when a plaintiff has had a reasonable time to substitute the real party in interest but has made no attempt to do so.

Street v. Smart Corp. · filed 2003-04-15(a)

Plaintiff also argues that the trial court should have allowed a continuance for the plaintiff to substitute the real party in interest instead of dismissing the action. We do not agree. Rule 17(a) of the North Carolina Rules of Civil Procedure states “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” ... Here, the record does not reflect any attempt on behalf of plaintiff or request by plaintiff to substitute the real party in interest. ... Plaintiff was aware of the real party in interest defense for approximately seven months before the hearing based on defendant’s answer and for approximately three weeks based on the motion to dismiss.

Rule 17(a) requires a reasonable opportunity to join or substitute the real party in interest after an objection, and the absence of that party does not warrant reversal without prejudice.

Daniel v. Wray · filed 2003-06-03Rule 17(a)

Thus, the trial court did not err in denying defendants’ motion to dismiss; but, before ruling on plaintiffs’ summary judgment motion, the court should have either granted a continuance to permit PECUSA’s joinder or corrected the defect ex mero motu.

Rule 17(a) requires claims to be brought by the real party in interest; trust beneficiaries cannot sue individually for injury to trust property when the trustee sues and no exception applies.

Slaughter v. Swicegood · filed 2004-02-03Rule 17(a)

The North Carolina Rules of Civil Procedure require that "[e]very claim shall be prosecuted in the name of the real party in interest." N.C.G.S. § 1A-1, Rule 17(a) (2003). ... Taking all of the allegations in the complaint as true, Freeman and Genevieve Slaughter failed to allege any facts that would allow them to sue individually under an exception to the common law rule barring individual claims by beneficiaries. Accordingly, we hold that the trial court erred in concluding that the Slaughters had standing to pursue their individual claims against defendants.

An assignee entitled to enforce a note and its accompanying guaranties is a real party in interest under Rule 17(a).

Self-Help Ventures Fund v. Custom Finish, LLC · filed 2009-09-15Rule 17(a)

Therefore, upon the Note's assignment to plaintiff by the SBA, defendants unconditionally guaranteed payment to plaintiff, whereupon plaintiff became a party in interest, as set forth in Rule 17(a) of the North Carolina Rules of Civil Procedure.

Rule 17(a) makes the affected county the real party in interest for a claim enforcing rights under § 153A-15; an individual property owner cannot enforce those rights.

TOWN OF MIDLAND v. Morris · filed 2011-01-18Rule 17(a)

Rule 17(a) of the North Carolina Rules of Civil Procedure provides that every claim shall be prosecuted in the name of the real party in interest. ... Accordingly, the real party in interest who by substantive law has the legal right to enforce a claim arising under section 153A-15 is the county affected by a potential section 153A-15 violation and not an individual property owner.

Rule 17(a) requires a claim for damages owed to an intended beneficiary to be brought by that beneficiary as the real party in interest.

Williams v. Habul · filed 2012-03-06Rule 17(a)

We conclude that Mr. Groninger, not Plaintiff, is the real party in interest with respect to Defendants’ promise under Paragraph 8.

Rule 17(a) permits a real party in interest to ratify an action implicitly through conduct showing adoption of the suit.

King Fa, LLC v. Chen · filed 2016-07-05Rule 17(a)

... we hold that the tenants’ actions in the trial court, to wit, seeking substitution, failing to repudiate the action, and participating actively in the prosecution of the matter, constituted an implicit ratification of the action such that they agreed to be bound by the proceeding.

Rule 17(a) leaves substitution of the real party in interest to the trial court’s discretion.

Key Risk Ins. Co. v. Peck · filed 2017-03-07Rule 17(a)

Where a case is not brought by the real party in interest, it is within the discretion of the trial court to allow a motion to substitute under Rule 17(a). ... Based on the facts of this case, Key Risk has failed to show the trial court abused its discretion by denying its motion to substitute a party.

Rule 17(a) does not permit later substitution or ratification of the real party in interest to cure an action filed without subject matter jurisdiction.

WLAE, LLC v. Edwards · filed 2017-12-19Rule 17(a)

We therefore hold that the trial court correctly declined to invoke Rule 17(a) sua sponte, which could only have resulted in a failed attempt to breathe life into an action that was a nullity at its commencement.

Rule 17(a) permits a court to deny substitution of the real party in interest when the plaintiff fails to seek substitution for more than three years after an objection.

K2 Asia Ventures v. Krispy Kreme Doughnut Corp. · filed 2020-09-01Rule 17(a)

We hold that the trial court did not abuse its discretion by declining to ex mero motu substitute the real party in interest for K2 Asia or by denying K2 Asia’s reservation of the right to substitute K2 Asia Ventures G.P. as the real party in interest, where K2 Asia failed to do so pursuant to Rule 17 over a three year period.

Rule 17(a) gives standing to challenge production of requested records to the real party in interest, which the court identified as the parties whose records were requested.

Fore v. The Western N.C. Conf. of the United Methodist Church · filed 2022-06-21Rule 17(a)

Only those parties whose records were requested are “the real party in interest” with standing to challenge the motion to produce those records. Defendants do not have standing to challenge the motion in this case because they are not the real party in interest.

Rule 17(a) requires a claim to be prosecuted by the real party in interest; a voluntary loan does not make the lender a real party in interest when the judgment will not directly affect it.

Jones v. Crum & Forster Specialty Insurance Company · filed 2023-09-25Rule 17(a)

As the court explains above, plaintiff IOC will not be affected directly by this court’s judgment. In addition, plaintiff IOC has not cited, and the court has not found, any cases in which a voluntary loan sufficed to make a creditor a real party in interest.

Rule 17(a)’s real party in interest rule applies to defendants; a church need not be joined in its members’ personal tort claims against church officers.

Bridges v. Oates · filed 2004-12-21Rule 17(a)

Washington Missionary Baptist Church is not a necessary party to the slander and conspiracy to intentionally or negligently inflict emotional distress claims.

Rule 63 permits a substitute judge to carry out a decision already made, but not to participate in deciding a case tried before another judge.

Girard Trust Bank v. Easton · filed 1971-08-04Rule 63

Rule 63 does not contemplate that a substitute judge, who-did not hear the witnesses and participate in the trial, may nevertheless participate in the decision making process. It contemplates only that he may perform such acts as are necessary under our rules of procedure to effectuate a decision already made.

Rule 63 does not require the trial judge to be incapacitated before another judge may rule on post-trial motions.

Borg-Warner Acceptance Corp. v. Johnston · filed 1992-08-04

Rule 63 neither requires nor implies that before a different judge can rule on post-trial motions, the judge who heard the case must have become incapacitated.

Rule 63 gives a substitute judge discretion to enter the prior judge’s order or grant a new hearing when the prior judge retires after the hearing.

Lange v. Lange · filed 2003-12-05Rule 63

In general, the application of Rule 63 presents the “substituted judge” with two options in how to proceed. The judge could choose to honor Judge Jones’ decision in the matter, and enter Judge Jones’ order as written. In the alternative, the judge could choose to grant a new trial or hearing for the parties. Thus, application of Rule 63 gives the “substituted judge” discretion in determining how to proceed.