N.C. Gen. Stat. § 1A-1

Rule 12(b)(6) requires dismissal when, accepting the complaint's allegations as true and construing it liberally, the plaintiff could not prove any facts entitling them to relief.

Burgess v. Busby · filed 2001-03-20(b)(6)

The essential question in reviewing a motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory. The complaint must be construed liberally, and the court should not dismiss the complaint unless it appears that the plaintiffs could not prove any set of facts in support of their claim which would entitle them to relief.

Rule 9(j) allows one motion filed where a medical malpractice cause of action first arose to extend the statute of limitations for all defendants ultimately named in the action.

Stewart v. Southeastern Regional Medical Center · filed 2001-03-20(j)

We decline to adopt such a strict construction of Rule 9(j) and hold that where there are multiple defendants, a single motion filed in the county where the cause of action first arose will be effective to extend the statute of limitations against all defendants ultimately named in the action.

Rule 12(b)(6) permits dismissal when the facts alleged in a complaint do not give rise to a claim for relief.

Wood v. Guilford County · filed 2001-05-15(b)(6)

A motion to dismiss for failure to state a claim upon which relief may be granted under [N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)] is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[], give rise to a claim for relief on any theory.

Rule 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief may be granted.

Taylor v. Taylor · filed 2001-06-0512(b)(6)

Therefore, under these circumstances, plaintiffs have failed to state a claim upon which relief may be granted, and the trial court did not err in granting defendants’ Rule 12(b)(6) motion.

Rule 9(j) requires expert review certification for medical malpractice complaints, but not for hospital claims based on administrative or management negligence.

Estate of Waters v. Jarman · filed 2001-06-05Rule 9(j)

Because these claims assert administrative and management deficiencies and do not arise out of the furnishing of professional services in the performance of medical, dental or other health care, they are not claims for medical malpractice. Accordingly, Rule 9(j) certification is not required and the court erred in dismissing these claims.

Rule 12(b)(6) tests whether a complaint is legally sufficient, with its allegations taken as true to determine whether they state a claim for relief.

Fuller v. Easley · filed 2001-08-07(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. ... In ruling on the motion, the trial court must take the complaint’s allegations as true and determine whether they “are sufficient to state a claim upon which relief may be granted under some legal theory.”

Rule 12(b)(6) permits dismissal when, accepting the complaint's allegations as true, they are legally insufficient to state a claim.

Considine v. Compass Group USA, Inc. · filed 2001-08-07(b)(6)

The essential question in reviewing the grant of a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1 (1999) Rule 12(b)(6) is whether, "as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory."

Rule 12(b)(6) permits dismissal when a complaint is legally insufficient to state a claim for relief.

Grant Construction Co. v. McRae · filed 2001-10-02(b)(6)

The sole purpose of a motion to dismiss is to test the legal sufficiency of the complaint, and the trial court should not allow a motion to dismiss unless it is clear that a plaintiff cannot present any set of facts which would entitle him to relief.

Rule 12(b)(6) permits dismissal when a complaint fails to state a legally sufficient cause of action.

Singleton v. Sunset Beach & Twin Lakes, Inc. · filed 2001-12-18(b)(6)

The Town moved to dismiss pursuant to Rule 12(b)(6). In general, a Rule 12(b)(6) motion to dismiss “challenges whether a complaint states a legally sufficient cause of action.”

Rule 12(b)(6) tests whether a complaint is legally sufficient to state a claim.

Batdorff v. North Carolina State Board of Elections · filed 2002-05-07(b)(6)

A motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint.

Rule 12(b)(6) tests a complaint’s legal sufficiency; surviving a motion to dismiss does not establish justiciability.

Winston-Salem Wrecker Ass'n v. Barker · filed 2001-12-28Rule 12(b)(6)

The mere fact that plaintiffs’ complaint survived a Rule 12(b)(6) motion to dismiss is not determinative proof of justiciability. The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint.

Rule 12(b)(6) permits dismissal when a complaint fails as a matter of law to state a legally recognized claim.

Hobby v. City of Durham · filed 2002-08-06Rule 12(b)(6)

The standard of review of an order dismissing a complaint for failure to state a claim upon which relief can be granted ... is to determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.

Rule 12(b)(6) permits dismissal when the complaint shows that no law supports the claim, lacks facts sufficient to state a claim, or reveals a fact that defeats the claim.

Toomer v. Garrett · filed 2002-12-31Rule 12(b)(6)

A complaint may be dismissed pursuant to Rule 12(b)(6) where “(1) the complaint on its face reveals that no law supports a plaintiff’s claim, (2) the complaint on its face reveals the absence of facts sufficient to make a good claim, or (3) the complaint discloses some fact that necessarily defeats a plaintiff’s claim.”

Rule 12(b)(6) permits dismissal when a pleading fails to state a claim upon which relief can be granted, taking the allegations as true.

In Re Hardesty · filed 2002-05-21Rule 12(b)(6)

A motion to dismiss based on Rule 12(b)(6) of the North Carolina Rules of Civil Procedure is a challenge to a pleading, claiming it fails to state a claim upon which relief can be granted. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (1999). The question on a motion to dismiss is whether, as a matter of law, and taking the allegations in the complaint as true, the allegations are sufficient to state a claim upon which relief may be granted under any legal theory.

Rule 12(b)(6) tests whether a complaint is legally sufficient to state a claim for relief.

Neier v. State · filed 2002-07-02Rule 12(b)(6)

A motion to dismiss made pursuant to G.S. 1A-1, Rule 12(b)(6) tests the legal sufficiency of the complaint.

Rule 12(b)(6) permits dismissal when a complaint is legally insufficient to state a claim for relief.

Boyce & Isley, PLLC v. Cooper · filed 2002-09-17(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure tests the legal sufficiency of the complaint.

Rule 12(b)(6) tests whether a complaint is legally sufficient and permits dismissal when it is completely without merit.

Huntington Properties, LLC v. Currituck County · filed 2002-10-01(b)(6)

“A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) tests the legal sufficiency of the complaint, which will be dismissed if it is completely without merit.”

Rule 12(b)(6) permits dismissal when a complaint fails to state a legally recognized claim for relief, and the court reviews that issue by liberally construing the complaint and taking well-pled allegations as true.

Royal v. State · filed 2002-10-15(b)(6)

When reviewing the dismissal of a complaint pursuant to Rule 12(b)(6), we recognize that we are to liberally construe the complaint and determine whether,- as a matter of law, the allegations of the complaint, taken as true, are sufficient to state some legally recognized claim or claims upon which relief may be granted to plaintiffs.

Rule 12(b)(6) permits dismissal when a complaint is legally insufficient to state a claim for relief.

Structural Components Int. Inc. v. City of Charlotte · filed 2002-11-19(b)(6)

“A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) tests the legal sufficiency of the complaint, which will be dismissed if it is completely without merit.”

Rule 12(b)(6) permits dismissal when no law supports the claim, the complaint lacks sufficient facts, or an alleged fact defeats the claim.

Wilson v. Blue Ridge Electric Membership Corp. · filed 2003-04-15Rule 12(b)(6)

An action may be dismissed for failure to state a claim if no law supports the claim, if sufficient facts to make out a good claim are absent, or if a fact is asserted that defeats the claim.

Rule 12(b)(6) tests whether a complaint states a legally sufficient claim.

Sterner v. Penn · filed 2003-08-05Rule 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.

Under Rule 12(b)(6), the court must treat the complaint’s allegations as true when deciding a motion to dismiss.

Adams v. Aventis, S.A. · filed 2003-08-26Rule 12(b)(6)

In ruling on a motion to dismiss, the court must treat the allegations in the complaint as true.

Rule 12(b)(6) requires a court reviewing dismissal of a complaint to treat its allegations as true.

Osher v. Ridinger · filed 2004-01-06Rule 12(b)(6)

In our review of the trial court’s dismissal of this action pursuant N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), we must consider the allegations of the plaintiff’s complaint as true.

Rule 12(b)(6) requires courts to treat a complaint’s allegations as true when deciding whether it states a claim for relief.

Phillips v. Ledford · filed 2004-01-06Rule 12(b)(6)

On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is “ ‘whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.’ ”

Rule 12(b)(6) tests whether the complaint’s allegations, treated as true, state a legally sufficient claim.

Guarascio v. New Hanover Health Network, Inc. · filed 2004-03-02Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint by determining “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.”

Rule 12(b)(6) allows a complaint to survive dismissal when its allegations sufficiently support the claim.

Cameron v. Merisel, Inc. · filed 2004-03-16Rule 12(b)(6)

While Mr. Cameron must present evidence of these allegations at trial, we find the allegations in the complaint are sufficient to overcome a motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) as to Mr. Cameron’s Pleasant claim.

Rule 12(b)(6) permits dismissal for failure to state a claim; the court evaluates whether the complaint’s facts, viewed favorably to the plaintiff, support relief on any theory.

Tarrant v. Freeway Foods of Greensboro, Inc. · filed 2004-04-06Rule 12(b)(6)

Under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. In considering the motion, the court evaluates “whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[], give[s] rise to a claim for relief on any theory.”

Rule 12(b)(6) requires courts to treat complaint allegations as true and determine whether they support relief under any legal theory, regardless of how the claim is labeled.

Multiple v. N.C. D.H.H.S. · filed 2004-03-19Rule 12(b)(6)

When a party files a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 , Rule 12(b)(6), the question for the Court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.

Rule 12(b)(6) permits dismissal when the complaint lacks a legal or factual basis for a valid claim or discloses a fact that necessarily defeats the claim.

Woolard v. Davenport · filed 2004-09-07Rule 12(b)(6)

It is well-settled that a plaintiff’s claim is properly dismissed under Rule 12(b)(6) when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the claim; (2) the complaint on its face reveals the absence of facts sufficient to make a valid claim; or (3) the complaint discloses some fact that necessarily defeats the claim.

Rule 12(b)(6) requires the court to test the complaint's legal sufficiency, treating its allegations as true, to determine whether it states a claim.

Newberne v. Crime Control and Public Safety · filed 2005-01-18(b)(6)

In considering a Rule 12(b)(6) motion, a trial court must determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. See N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2003).

Rule 12(b)(6) requires a court to treat the complaint’s allegations as true and decide whether they state a claim under a legal theory.

Dove v. Davis · filed 2005-02-15Rule 12(b)(6)

In ruling on a motion to dismiss under Rule 12(b)(6), a court must determine if "as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted" according to some legal theory.

Rule 12(b)(6) permits dismissal when the complaint shows that no law supports the claim, lacks facts sufficient to state a claim, or discloses a fact that defeats the claim.

Shepard v. Ocwen Federal Bank, FSB · filed 2005-08-16Rule 12(b)(6)

Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim.

Rule 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted.

Coley v. State · filed 2005-10-04Rule 12(b)(6)

Under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2003), a motion to dismiss is proper when a complaint fails to state a claim upon which relief can be granted.

Rule 12(b)(6) requires courts to treat the complaint’s allegations as true and decide whether they state a claim for relief.

McLamb v. T.P., Inc. · filed 2005-10-04(b)(6)

“On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted.”

On review of a Rule 12(b)(6) dismissal ruling, the court accepts the complaint’s allegations as true, construes them liberally, and reverses a denial only when no set of supporting facts would entitle the plaintiff to relief.

Farrell Ex Rel. Farrell v. Transylvania County Board of Education · filed 2006-02-07Rule 12(b)(6)

We consider the allegations in the complaint true, construe the complaint liberally, and only reverse the trial court’s denial of a motion to dismiss if plaintiff is entitled to no relief under any set of facts which could be proven in support of the claim.

A denial of a Rule 12(b)(6) motion raising sovereign immunity is immediately appealable.

Davis v. Dibartolo · filed 2006-02-21Rule 12(b)(6)

The denial of a 12(b)(6) motion to dismiss for failure to state a claim is immediately appealable where the motion raises the defense of sovereign immunity. ... Accordingly, we only review the trial court’s denial of defendant’s 12(b)(6) motion.

Rule 12(h)(2) does not allow a party to raise a failure-to-state-a-claim defense for the first time on appeal.

In the Matter of Cw · filed 2006-04-18Rule 12(h)(2)

Rule 12(h)(2) does not provide that a Rule 12(b)(6) motion may be made on appeal.

Rule 12(b)(6) requires courts to treat the complaint’s allegations as true when deciding whether the plaintiff can recover under any legal theory.

Kennedy v. SPEEDWAY MOTORSPORTS INC. · filed 2006-07-05Rule 12(b)(6)

In reviewing a trial court’s dismissal pursuant to Rule 12(b)(6), the question before our Court is “whether, if all the plaintiff’s allegations are taken as true, the plaintiff is entitled to recover under some legal theory.” ... Applying this standard of review, we treat the allegations in plaintiffs’ complaints as true.

Rule 12(b)(6) permits dismissal when the complaint itself shows no law supports the claim, lacks facts needed to state it, or discloses a fact that defeats it.

Harrell v. Bowen · filed 2006-10-17Rule 12(b)(6)

Dismissal under Rule 12(b)(6) is proper "(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; [or] (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim."

Rule 12(b)(6) permits dismissal when a complaint lacks facts sufficient to state a claim.

Mascaro v. Mountaineer Land Group, LLC · filed 2006-11-14Rule 12(b)(6)

Since the Third-Party Complaint, on its face, reveals the absence of facts sufficient to make out a good claim, dismissal under Rule 12(b)(6) is proper.

Rule 12(b)(6) permits dismissal when the complaint’s allegations, taken as true and liberally construed, reveal no legal basis for relief.

Burgin v. Owen · filed 2007-02-06Rule 12(b)(6)

The standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. ... Taking these allegations as true, the complaint on its face reveals that no law supports plaintiff's claim for specific performance or breach of contract. ... We hold plaintiff's complaint failed to state a legally sufficient claim and therefore affirm the trial court's order granting defendants' motion to dismiss and canceling the lis pendens attached to the subject property.

Rule 12(b)(6) permits dismissal when a fact disclosed by the complaint, including an attached agreement, necessarily defeats the claim.

Parker v. Glosson · filed 2007-03-20Rule 12(b)(6)

The complaint "disclos[es] . . . [a] fact which will necessarily defeat" plaintiffs' claim for breach of contract. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981). The dispositive fact is that Sandy Glosson has not executed the Agreement.

Rule 12(b)(6) permits dismissal when no law supports the claim, an essential fact is missing, or a fact in the complaint defeats the claim.

Sisk v. City of Greensboro · filed 2007-06-05Rule 12(b)(6)

A motion to dismiss is properly granted in three circumstances: (1) where the complaint reveals that no law supports the claim; (2) a fact essential to the claim is missing; or (3) when a fact in the. complaint defeats the plaintiff’s claim.

A pleading that satisfies Rule 8’s notice requirement may still be dismissed under Rule 12(b)(6) if the claim is legally insufficient.

Sykes v. Health Network Sols., Inc. · filed 2018-04-05Rule 8(a)(1)

A pleading that satisfies Rule 8’s notice requirement may still be subject to Rule 12(b)(6) dismissal.

A challenge to a complaint’s failure to state a claim cannot be reviewed on appeal after the case proceeds to judgment on the merits.

Gilmartin v. Gilmartin · filed 2018-12-18Rule 12(b)(6)

Thus, as it is the substance of defendant’s argument, we treat his objection as a Rule 12(b)(6) motion to dismiss for failure to state a claim. ... In accord with Shingledecker, Husband’s motion to dismiss “is not properly presented by this appeal.” Id. at 787, 407 S.E.2d 591.

Rule 12(b)(6) permits dismissal of a defamation claim when the plaintiff’s own pleadings establish the truth of the challenged statement.

Taube v. Hooper · filed 2020-03-17Rule 12(b)(6)

Where plaintiff’s own pleadings establish the truth of an allegedly defamatory statement, dismissal per Rule 12(b)(6) is proper.

Rule 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted.

Hundley v. AutoMoney · filed 2022-07-19(b)(6)

We believe AutoMoney’s arguments go beyond the scope of a Rule 12(b)(6) motion. ... However, review of a Rule 12(b)(6) motion should only be concerned with whether the plaintiff properly stated a claim.

Section 1A-1, Rule 12(b)(6) allows dismissal when the complaint itself establishes that the plaintiff's claim is barred by the statute of limitations.

Woody v. AccuQuest Hearing Ctr. · filed 2022-07-19

“The statute of limitations may provide the basis for dismissal on a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) if the face of the complaint establishes that [the] plaintiff’s claim is barred.”

Rule 12(b)(6) permits dismissal based on a statute of repose only when the complaint itself conclusively shows that the claim is untimely; a plaintiff need not plead facts establishing timely filing.

Gaston Cty. Bd. of Educ. v. Shelco · filed 2022-08-16Rule 12(b)(6)

A Rule 12(b)(6) dismissal based on the statute of repose would only be appropriate if the complaint otherwise alleges facts conclusively showing that it was not filed within the applicable statute of repose.

A timely, proper motion to change venue under Rule 12(b)(3) must be decided before the court proceeds to rule on the merits.

Little v. Little · filed 1971-09-15Rule 12(b)(3)

When defendant appellant in apt time made a proper motion for change of venue under G.S. 1A-1, Rule 12(b)(3), it became a matter of right and the District Court of Cabarrus County was without authority to proceed further in the cause until the motion to remove had been determined.

Rule 12(h)(1) waives an improper-venue defense if it is not raised by motion or in the responsive pleading.

Shaw v. Stiles · filed 1971-12-15Rule 12(h)(1)

Rule 12(h) (1) provides that a defense of improper venue is waived if not made by motion or in responsive pleading as provided in Rule 12.

Rule 12(b)(3) allows an improper venue defense to be raised in the answer when no pre-answer motion has been made, and waives it if omitted.

Swift and Company v. Dan-Cleve Corp. · filed 1975-07-02(b)(3)

Under G.S. 1A-1, Rule 12(b) (3), the defense of improper venue may be raised in the answer if no pre-answer motions have been made. If not raised in the answer, the defense is waived.

Rule 12(b)(3) is the most applicable basis for a motion to dismiss based on a forum selection clause.

Hickox v. R&G Group International, Inc. · filed 2003-12-02Rule 12(b)(3)

Fundamentally, “a forum selection clause designates the venue,” and therefore a motion to dismiss for improper venue pursuant to Rule 12(b)(3) would be most applicable.

Rule 12(b) requires a party seeking a change of venue to move before answering or object in the answer; otherwise, the right is waived.

In Re JLK · filed 2004-07-06Rule 12(b)

If respondent felt Johnston County was an improper setting for the termination proceedings, it was incumbent upon him to either move for a change of venue prior to answering the TPR petition or object to venue in his answer, or his right to seek a change of venue would be waived. N.C. Gen.Stat. § 1A-1, Rule 12(b) (2003). The record indicates that respondent did neither.

Rule 12(b) permits an improper venue defense to be raised by motion, including a written motion filed with the answer.

Hawley v. Hobgood · filed 2005-11-15Rule 12(b)

“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:... (3) Improper venue or division[.]” N.C. Gen. Stat. § 1A-1, Rule 12(b) (2004). Here, Mr. Hobgood made a written motion in conjunction with his answer to change venue. Therefore, he timely made a written motion to change venue.

A Rule 12(b)(3) motion seeking dismissal for improper venue is treated as a motion to transfer venue.

Aldridge v. Kiger · filed 2016-11-03Rule 12(b)(3)

The Court notes at the outset that North Carolina case law is clear that a motion to dismiss based on improper venue made pursuant to Rule 12(b)(3) shall be treated as a motion to transfer, rather than a motion to dismiss.

Rule 7(b)(1) allows a party to seek a discretionary change of venue before filing an answer if the written motion gives the court sufficient information to rule.

Stokes v. Stokes · filed 2018-12-07Rule 7(b)(1)

Under our current notice pleading system, however, neither the Rules of Civil Procedure nor the plain text of N.C.G.S. § 1-83 prohibits a party from filing a motion for a discretionary venue change before filing an answer. The Rules of Civil Procedure merely require that a party provide the court sufficient information in a written motion so the trial court may appropriately exercise discretion to rule on the motion’s merits.

Rule 41(b) does not permit dismissal with prejudice for failure to join a necessary party or a proper party the court has ordered joined.

Crosrol Carding Developments, Inc. v. Gunter & Cooke, Inc. · filed 1971-10-20(b)

However, dismissal for failure to join a necessary party is not a dismissal on the merits and may not be with prejudice. G.S. 1A-1, Rule 41(b). The same is true, of course, where the party ordered joined is not a necessary party but is a proper party which the court, in its discretion, decides should be joined.

Section 1A-1 does not permit summary judgment as a remedy for failure to join a necessary party.

Dildy v. SOUTHEASTERN FIRE INSURANCE COMPANY · filed 1971-12-15

However, summary judgment is not a proper remedy for failure to join a necessary party.

Rule 12(h)(2) bars a party from raising a failure-to-join-a-necessary-party defense for the first time after verdict.

Four Seasons Homeowners Ass'n v. W. K. Sellers · filed 1983-05-17Rule 12(h)(2)

Defendants, however, have waived this defense because they did not move for dismissal due to failure to join a necessary party pursuant to G.S. 1A-1, Rule 12(b)(7). G.S. 1A-1, Rule 12(h)(2).

A defense of failure to join a necessary party must be raised in the trial court and cannot be asserted for the first time on appeal.

Stancil v. Bruce Stancil Refrigeration, Inc. · filed 1986-07-01Rule 12(h)(2)

The rule requires that a defense of failure to join a necessary party be raised in the trial court; it may not be asserted for the first time on appeal.

Rule 12(b)(7) does not warrant dismissal for failure to join a child who is not a necessary party to the paternity action.

Smith v. Bumgarner · filed 1994-06-07(b)(7)

Accordingly, we conclude that the minor Miranda Blaine Smith was not a “necessary party” to this action, and that dismissal of plaintiffs complaint pursuant to G.S. § 1A-1, Rule 12(b)(7) was error.

Rule 12(b)(7) permits dismissal for failure to join a necessary party when the defect cannot be cured because the statute of limitations bars adding that party.

Bailey v. Handee Hugo's, Inc. · filed 2005-10-18Rule 12(b)(7)

There was no way for the court to cure the defect of failing to join the responsible party where the statute of limitations had expired and any attempt to add them as a party would have been futile.

Rule 12(b)(7) permits dismissal for failure to join a necessary party when the omission cannot be cured.

Azar v. Town of Indian Trail Bd. of Adjustment · filed 2017-12-19Rule 12(b)(7)

As this defect in Appellant’s initial petition was not and could not be cured by his amended petition under the relation back doctrine, the superior court properly granted the Board’s motion to dismiss under Rule 12(b)(7).

Rule 19(b) requires the court to summon a necessary party who can be joined; dismissal is appropriate only when joinder is unavailable.

State of NC v. Wasco · filed 2020-01-07Rule 19(b)

In other words, dismissal would have been an appropriate remedy only had the trial court determined Dyna-Diggr to be a necessary party and that Dyna-Diggr could not be joined as a party.

Rule 12(b)(7) permits dismissal for failure to join a necessary party only when the defect cannot be cured.

Adum v. Albemarle Plantation Prop. Owners Ass'n · filed 2021-01-19Rule 12(b)(7)

Dismissal under Rule 12(b)(7) is proper only when the defect cannot be cured.

Rule 4(j)(9)(c) requires a plaintiff using service by publication to file an affidavit showing the circumstances warranting it.

Edwards v. Edwards · filed 1971-12-15(j)(9)(c)

However, in order to utilize service of process by publication under this statute it is necessary that plaintiff file with the court an affidavit showing the “circumstances warranting the use of service by publication.”

Rule 4(j)(9)c prescribes the procedure for service by publication when that form of service is permissible.

Koob v. Koob · filed 1973-04-11Rule 4(j)(9)c

Prerequisite to a determination of the respective rights of plaintiff and defendant in the fund of $25,853.23, a notice must be served on defendant setting forth with particularity plaintiff’s claim with reference thereto and requiring defendant to appear at a designated time and place to show cause, if any he has, why the relief sought by plaintiff should not be granted. When service by publication is permissible, the procedure therefor is prescribed in Rule 4(j) (9)c.

Rule 4(j)(9)c requires mailing notice of service by publication when the party’s post-office address can be ascertained with reasonable diligence.

Sink v. Easter · filed 1974-01-25Rule 4(j)(9)c

Such mailing may be omitted only if the post-office address cannot be ascertained in the exercise of reasonable diligence.

Rule 4(j)(9)c requires mailing notice of service by publication to a defendant whose address is known; failure to mail it invalidates the resulting judgment.

Thomas v. Thomas · filed 1979-11-20(j)(9)c

Additionally, as in Sink, since the record before us indicates plaintiff failed to mail defendant a copy of the notice of service by publication to the defendant at her Virginia residence, plaintiff violated the technical requirements of Rule 4(j)(9)c and this defect is itself sufficient to render the resulting divorce decree invalid.

Rule 4(j)(9)c permits service by publication only when the party’s address cannot be found through due diligence using reasonably available resources.

Fountain v. Patrick · filed 1980-01-15Rule 4(j)(9)c

Due diligence dictates that plaintiff use all resources reasonably available to her in attempting to locate defendants. Where the information required for proper service of process is within plaintiff’s knowledge or, with due diligence, can be ascertained, service of process by publication is not proper.

Rule 4(j)(9)c calls for a case-by-case assessment of due diligence before service by publication, rather than a mandatory investigative checklist.

Emanuel v. Fellows · filed 1980-06-17(j)(9)c

However, we do not wish to make a restrictive mandatory checklist for what constitutes due diligence for purposes of permitting Rule 4(j)(9)c publication. Rather, a case by case analysis is more appropriate.

Rule 4(j1) requires publication in a newspaper circulated where the defendant is believed to be and an affidavit stating facts that warrant publication, including why diligent efforts could not achieve personal service.

County of Wayne Ex Rel. Williams v. Whitley · filed 1984-12-28Rule 4(j1)

In the first place, the plaintiffs affidavit clearly states that the defendant’s last address was in Kansas. Even though that was where the defendant was thought to be, the notice of service of process was published only in a Goldsboro paper. Thus, the place where the notice was published and circulated was insufficient under the requirements of Rule 4(j1). ... Secondly, the affidavit does not state the circumstances warranting the use of service by publication as required by Rule 4. The affidavit does not allege any facts showing that the defendant with due diligence could not be personally served.

Rule 4(j1) requires due diligence to locate a parent before service by publication in a parental rights termination case.

In Re Clark · filed 1985-07-16Rule 4(j1)

We conclude, therefore, that where, as here, the “name or identity” of a respondent parent is known, but his or her whereabouts are unknown, that the petitioner in a parental rights termination case must proceed under G.S. 7A-289.27 and must comply with Rule 4(jl) as regards service by publication, and specifically, with the due diligence requirement contained therein.

Rule 4(j1) permits service by publication when personal or registered or certified mail service cannot be made with due diligence, and requires publication in a qualified newspaper circulated where the person is believed to be located.

Matter of Adoption of PEP · filed 1991-09-05(j1)

Hargrave knew that Rowe resided in Michigan, not in North Carolina; therefore, the publication of notice in an Orange County, North Carolina, newspaper was inadequate notice under the statute.

Rule 4(j1) permits service by publication in the county where the action is pending when reasonable efforts yield no reliable information about the defendant’s location.

Winter v. Williams · filed 1993-02-02Rule 4(j1)

Whereas defendant’s last known address was in Wake County and despite reasonable efforts, plaintiff had no “reliable information” as to the defendant’s whereabouts, publication was proper in the county in which the action was pending.

Rule 4(j1) governs service by publication in parental rights termination cases and must be followed along with § 7A-289.27(b).

In Re the Joseph Children · filed 1996-05-21Rule 4(j1)

Service of process by publication is governed by N.C. Gen. Stat. § 1A-1, Rule 4(j1). ... In other words, compliance with both Rule 4(j1) and section 7A-289.27(b) is required.

Rule 4 permits service by publication when a party cannot otherwise be served, even if the party’s location is unknown.

Tierney v. Garrard · filed 1996-11-05Rule 4(j1)

Accordingly, plaintiffs could have served defendant by publication, even if they did not know where he was located. Clearly, defendant was, at all relevant times after the conduct complained of, amenable to process pursuant to G.S. §§ 1-75.4 and 1A-1, Rule 4.

Rule 4(j1) permits service by publication when personal service cannot be completed with due diligence and requires an affidavit stating the circumstances warranting publication.

In Re Shaw · filed 2002-08-06(j1)

We hold that petitioner satisfied Rule 4(j1) because, unlike the affidavit in Whitley, the affidavit here sets forth "the circumstances warranting the use of service by publication," which is all that is required by Rule 4(j1).

Rule 4(j1) requires an affidavit showing the circumstances warranting service by publication; without it, publication service is invalid and does not establish personal jurisdiction.

Cotton v. Jones · filed 2003-10-21Rule 4(j1)

Rule 4(jl) permits service by publication on a party that cannot, through due diligence, otherwise be served. ... There is, however, no affidavit showing the circumstances warranting a use of service by publication, or showing plaintiff’s due diligence in attempting to locate defendant. ... As service by publication on defendant was invalid, the trial court did not have personal jurisdiction over defendant.

Rule 4(j1) requires due diligence to locate and serve a defendant before service by publication is proper; failure to meet that standard warrants dismissal for insufficient service.

Henry v. Morgan · filed 2019-03-19Rule 4(j1)

When a plaintiff’s attempts to find and serve a defendant do not meet the due diligence standard described by Rule 4(j1) of the North Carolina Rules of Civil Procedure, service of process by publication is improper and dismissal is appropriate.

Service by publication fails Rule 4’s due diligence requirement when the plaintiff has the defendant’s email address, knows it is the best way to reach her, and does not attempt to use it.

Cty. of Mecklenburg v. Ryan · filed 2022-02-15Rule 4(j)(9)(c)

Accordingly, we hold that Mecklenburg County’s service under Rule 4 was insufficient, and the trial court erred by ruling otherwise.

Rule 4(j1) permits service by publication where the serving party reasonably believes the defendant is located, based on reliable information available at the time; the defendant need not actually be there.

Builders Mut. Ins. Co. v. Neibel · filed 2024-03-19Rule 4(j1)

The test is not whether Defendant was, in fact, located in Watauga County—but whether in 2010 Plaintiff reasonably believed Defendant was located in Watauga County based on what reliable information it had at the time.

Formal pleas are abolished, but a defense formerly raised by a plea in abatement may be raised in an answer.

Lehrer v. EDGECOMBE MANUFACTURING COMPANY · filed 1972-01-12Rule 7(c); Rule 12(b)

Under G.S. 1A-1, Rule 7(c), “pleas” are specifically abolished; but under Rule 12(b), every defense, including a defense in the nature of the old plea in abatement, may be raised by responsive pleading — in this case by answer.

Failing to demand a jury trial on time waives the right to a jury, allowing the judge to decide factual issues.

Williams v. Williams · filed 1972-02-02Rule 38(b)

In other civil actions, issues of fact may be determined by the judge if a jury trial is waived by failing to make timely demand pursuant to G.S. 1A-1, Rule 38(b).

Rule 38’s demand deadline does not extinguish the right to request a jury trial before trial in a pending divorce action when the last pleading preceded the amendment that made the Rules applicable to that request.

Branch v. Branch · filed 1972-10-11Rule 38(b)

The answer, the last pleading, was filed 24 August 1970, nearly six months prior to the 1971 amendment of G.S. 50-10. The 1971 amendment contains no reference to pending actions. On and after 19 February 1971, the effective date of the 1971 amendment, it was impossible for defendant to demand a jury trial “as provided in the Rules of Civil Procedure.” Mindful of the constitutional limitation stated in Art. IV, § 13(2), and the legislative intent expressed in Rule 38(a), we hold that the 1971 amendment did not nullify the right to request a jury trial “prior to the call of the action for trial” conferred by G.S. 50-10 at the time defendant filed his answer.

Rule 38 requires a party to serve a jury-trial demand on the other party no later than 10 days after service of the last pleading.

Laws v. Laws · filed 1974-07-03Rule 38

G.S. 1A-1, Rule 38 requires a party to serve a demand for a jury trial upon the other party “at any time after the commencement of the action and not later than 10 days after the service of the last pleading....”

Rule 39(b) permits a court, on motion or its own initiative, to order a jury trial on any issue despite a party’s failure to demand one.

Shankle v. Shankle · filed 1974-11-20Rule 39(b)

Moreover, notwithstanding the failure-of a party to demand a jury trial, the court in its discretion upon motion or of its own initiative may order a jury trial on any issue. G.S. 1A-1, Rule 39 (b).

Rules 38 and 52 allow civil parties to waive a jury and require the judge in a bench trial to make special factual findings, state legal conclusions separately, and direct an appropriate judgment.

Whitaker v. Earnhardt · filed 1975-08-06Rule 38; Rule 52

Under our Rules of Civil Procedure, G.S. 1A-1, Rule 38, the parties to a civil action may waive trial by jury. In all actions tried upon the facts without a jury, the trial judge shall find the facts specially and state separately his conclusions of law thereon, and direct the entry of an appropriate judgment. G.S. 1A-1, Rule 52.

Rule 49(c) waives a party’s right to have an omitted factual issue tried by a jury unless the party demands its submission before the jury retires.

Superior Foods, Inc. v. Harris-Teeter Super Markets, Inc. · filed 1975-08-27(c)

Thus, the right to have an issue of fact determined by the jury is waived unless a party demands its submission before the jury retires. ... Since the trial judge himself made no finding on the issue, he is “deemed to have made a finding in accord with the judgment entered.” G.S. 1A-1, Rule 49(c) (1969). In that factual setting, plaintiff has waived its right to have the issue determined by the jury. It necessarily follows that the trial judge was not required to instruct the jury on the relevant law.

Rule 39(b) allows a court to grant a jury trial after the Rule 38(b) deadline has expired, even when the right to a jury trial was waived.

Bullard v. North Carolina National Bank · filed 1976-11-03(b)

The trial court has discretion to grant a jury trial under G.S. 1A-1, Rule 39(b) even though jury trial has been waived pursuant to G.S. 1A-1, Rule 38 (b).

Rule 38(b) requires a timely jury trial demand, while Rule 39(b) allows the trial judge to grant a later motion for a jury trial in the judge’s discretion.

Wycoff v. Pritchard Paint & Glass Co. · filed 1976-10-20Rule 38(b); Rule 39(b)

Even though a party has failed to demand a jury trial as prescribed by G.S. 1A-1, Rule 38(b), it is within the discretion of the trial judge to grant a subsequent motion for a jury trial.

A timely jury trial demand remains effective for all parties; failure to appear at trial does not consent to its withdrawal.

Heidler v. Heidler · filed 1979-07-31Rules 38(d) and 39(a)

These rules do not provide that failure to appear at the trial constitutes consent to a withdrawal of a valid jury trial demand, and in this case the timely demand made in defendant’s answer operated as a demand by the plaintiff also.

Rules 38(d) and 39(a) do not provide the exclusive grounds for waiving a jury trial; a party may also waive that right by failing to appear at trial.

Frissell v. Frissell · filed 1980-06-03Rules 38(d), 39(a)

We hold that in addition to the waiver of right to jury trial as established by N.C.G.S. 1A-1, Rules 38(d) and 39(a), as set forth in Heidler, a party may waive his right to jury trial by failing to appear at trial.

Under Rule 38(d), parties may waive trial by jury; factual findings made by the court after waiver are conclusive on appeal if supported by evidence.

Cato Equipment Co. Inc. v. Matthews · filed 1988-10-18Rule 38(d)

Pursuant to Rule 38(d) of the North Carolina Rules of Civil Procedure the parties waived the right of trial by jury. G.S. 1A-1, Rule 38(d). When trial by jury is waived and issues of fact are tried by the court, those findings of fact have, “the force and effect of a verdict by the jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary.”

Rule 38(d) provides that failing to timely demand a jury trial waives the right to a jury trial.

Whitfield v. Todd · filed 1994-09-06(d)

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 38(d), defendant’s failure to timely demand a jury trial constituted a waiver by him of jury trial of right.

Rule 49(c)'s implied waiver of jury trial does not apply to disputed factual issues in a will caveat proceeding.

In Re the Purported Will of Dunn · filed 1998-04-30Rule 49(c)

We interpret this holding to mean that in a caveat proceeding the parties may not waive, either by consent or by implication, jury resolution of an issue upon which the evidence is in conflict and material facts are in controversy. Therefore, we do not believe the implied waiver provisions of Rule 49(c) can apply to a will caveat proceeding or that the trial judge can resolve disputed factual issues.

A party who requests a jury trial waives that right by failing to appear for trial after notice.

Seraph Garrison, LLC v. Garrison · filed 2014-06-26Rules 38(d), 39(a)

Although Defendant requested a jury trial in his Answer to the Complaint, he waived that right when he did not appear for trial after notice.

A party may waive the right to a jury trial by failing to appear at trial, in addition to the forms of waiver established by Rules 38(d) and 39(a).

Morrio v. Asby · filed 1980-09-16Rules 38(d) and 39(a)

There the judges who sat in Heidler joined the judges who sat in Frissell in holding that “in addition to the waiver of right to jury trial as established by N.C.G.S. 1A-1, Rules 38(d) and 39(a), as set forth in Heidler, a party may waive his right to jury trial by failing to appear at trial,” upon the authority of Sykes v. Belk, 278 N.C. 106, 179 S.E. 2d 439 (1971), and Ervin Co. v. Hunt, 26 N.C. App. 755, 217 S.E. 2d 93, cert. denied, 288 N.C. 511, 219 S.E. 2d 346 (1975). This, of course, requires that we reverse the trial court’s holding that the judgment of 14 February 1978 is void.

Rule 41(b) permits a judge dismissing a timely commenced action without prejudice to allow a new action within a specified period, even when the first action was discontinued under Rule 4(e) for failure to maintain service of process.

Gower v. Aetna Insurance Company · filed 1972-03-07Rule 41(b)

Even the trial judge could not give that original action new life, but the Legislature has specifically given to the judge, under the quoted part of Rule 41(b), the discretionary and limited authority, not to resurrect that which was discontinued under Rule 4(e), but to give the plaintiff a new day and opportunity, in the interest of justice, to litigate his case on the merits.

Rule 41(d) requires dismissal on the defendant’s motion when a plaintiff files a new action before paying the costs of a previously dismissed action.

Galligan v. Smith · filed 1972-04-26Rule 41(d)

Nothing else appearing, the result is the same under either the old statute, G.S. 1-25, or new Rule 41(d): Upon motion of the defendant, dismissal was proper on the grounds that this new action was instituted before the costs in the original action were paid.

Rule 41(a)(2) allows the court to permit a voluntary dismissal instead of entering a judgment on the merits after a directed verdict.

Taylor v. Tri-County Electric Membership Corp. · filed 1972-12-20(a)(2)

As Sharp, Justice, points out in Cutts v. Casey, 278 N.C. 390, 420, 180 S.E. 2d 297, 313 (1971), “When a motion for a directed verdict under Rule 50(a) is granted, the defendant is entitled to a judgment on the merits unless the court permits a voluntary dismissal of the action under Rule 41(a)(2).” (Emphasis added.) ... Therefore, plaintiffs’ contention in the case at bar that they were deprived of their full day in court is untenable.

Rule 41(d) requires dismissal on the defendant’s motion when a plaintiff refiles the same claim before paying the costs of the previously dismissed action.

Cheshire v. BENSEN AIRCRAFT CORPORATION · filed 1972-12-20Rule 41(d)

In our view the language of the rule constitutes a mandatory directive to the court.

A voluntary dismissal under Rule 41(a)(1) terminates the action, so the court cannot enter a valid order in that action afterward.

Collins v. Collins · filed 1973-04-25Rule 41(a)(1)

Under the former practice a judgment of voluntary non-suit terminated the action and no suit was pending thereafter on which the court could make a valid order. 7 Strong, N. C. Index 2d, Trial, § 30, p. 317. We think the same rule applies to an action in which a plaintiff takes a voluntary dismissal under G.S. 1A-1, Rule 41(a) (1).

A voluntary dismissal terminates the action, leaving no pending action in which the court can enter a valid order.

Sutton v. Sutton · filed 1973-06-13Rule 41(a)(1)

Regardless of what name we apply to the order dated 21 May 1971, the effect thereof was to terminate the action and when plaintiff’s motion in the cause was made, no action was pending wherein the court could enter a valid order.

A defendant does not waive a Rule 41(d) motion to dismiss a refiled claim for unpaid costs by failing to raise it in a responsive pleading.

Sims v. OAKWOOD TRAILER SALES CORPORATION · filed 1973-07-25Rule 41(d)

Rule 41(d) succinctly provides that, “the court, upon motion of the defendant, shall dismiss the action” (emphasis added), and we hold that defendant did not waive its rights under 41(d) by failing to assert them in a responsive pleading.

Rule 41(a)(1) gives a plaintiff one year after voluntary dismissal to refile when the general statute of limitations would otherwise expire, but does not shorten an unexpired limitations period.

Whitehurst v. VIRGINIA DARE TRANSPORTATION CO., INC. · filed 1973-09-12(a)(1)

In other words, a party always has the time limit prescribed by the general statute of limitation and in addition thereto they get the one year provided in Rule 41(a) (1). But Rule 41(a) (1) shall not be used to limit the time to one year if the general statute of limitation has not expired.

Rule 41(a)(2) permits a court to impose conditions on voluntary dismissal that must be met before the proceeding can be reinstituted.

Lee v. King · filed 1974-11-20Rule 41(a)(2)

To allow the motion was addressed to the sole discretion of the superior court judge, and if he allowed it, he had the authority to impose” . . . such terms and conditions as justice requires.” In allowing the motion, Judge Exum imposed two conditions, the meeting of which were a prerequisite to a reinstitution of the proceeding as to Tract #3. Those conditions were not complied with, therefore, respondents are entitled to a dismissal of this proceeding.

Rules 3 and 4 govern when an action is commenced and discontinued, and Rule 41(a)(2) does not permit refiling a time barred action to avoid the statute of limitations.

Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp. · filed 1978-06-20Rules 3, 4(d)-(e), and 41(a)(2)

The trial court erred in denying defendant’s motion to dismiss pursuant to G.S. 1A-1, Rule 12b. ... Under G.S. 1A-1, Rule 3, an action is commenced when a complaint is filed or when a summons is issued. ... Based on the record it must be concluded that plaintiffs action was discontinued when it failed to serve defendant with a proper summons within the three-year limitation period. ... In the case before us, therefore, plaintiff commenced the action with the issuance of a summons and alias and pluries summons on 6 October 1976, well beyond the three year period prescribed by law. ... Rule 41 does not authorize a party to take a dismissal without prejudice of a previous action barred by the statute of limitations and then to refile the action in order to avoid the statute of limitations.

Rule 41(a)’s one-year refiling provision applies as a state tolling rule in federal diversity actions after a voluntary dismissal without prejudice.

Haislip v. Riggs · filed 1981-10-29(a)

Therefore, this Court holds that North Carolina Rule 41(a) applies in this case and finds and concludes that the action was filed within one year of the voluntary dismissal without prejudice and is not barred by the North Carolina statute of limitations.

Rule 41 allows one year to refile a timely claim after voluntary dismissal; after involuntary dismissal, the court must specify that the dismissal is without prejudice and allow the new action.

Evans v. Chipps · filed 1982-03-02Rule 41(a), (b)

G.S. § 1A-1, Rule 41(a) provides a plaintiff an additional year to file a new action after a timely action on that same claim is voluntarily dismissed. G.S. § 1A-1, Rule 41(b) likewise provides that a new action may be filed within a year of an involuntary dismissal on a timely first action, if the court so specifies and if the court specifies that the dismissal of the first action was without prejudice.

Rule 41(d) gives a plaintiff 30 days to pay the costs of a previously dismissed action; dismissal is mandatory if the costs remain unpaid.

Sanford v. Starlite Disco, Inc. · filed 1984-02-07Rule 41(d)

The 1979 amendment served only to add a 30-day grace period within which the plaintiff could pay the costs assessed and avoid summary dismissal. The language of the rule directing that the court “shall dismiss the action” (emphasis added) if the costs assessed have not been paid remains the same, thus the rule as amended still constitutes a mandatory directive.

Rule 41(a)(1) allows a plaintiff who timely files and voluntarily dismisses an action to refile the same claim within one year without first attempting service.

Estrada v. Burnham · filed 1985-05-07(a)(1)

Rule 41(a) does not require that plaintiff attempt service upon defendant before plaintiff can voluntarily dismiss his action. ... By filing his complaint, having the summons issued, and taking the voluntary dismissal without prejudice, plaintiff tolled the statute of limitations and effectively obtained the one year extension within which to commence a new action based on the same claim pursuant to Rule 41(a)(1).

Rule 41(a)(1) allows a plaintiff who timely filed a civil action under G.S. 136-29 to voluntarily dismiss it before resting and refile within one year.

C. W. Matthews Contracting Co. v. State · filed 1985-06-18(a)(1)

The conditions of G.S. 136-29 satisfied, the trial court had jurisdiction of plaintiffs claim and the action was to proceed as any other civil action. In a civil action, plaintiff, before resting his case, may as a matter of right take a voluntary dismissal and refile its action within one year.

A complaint filed in violation of Rule 11(a) cannot provide the basis for the one-year refiling period under Rule 41(a)(1).

Estrada v. Burnham · filed 1986-04-02Rules 11(a), 41(a)(1)

A pleading filed in violation of Rule 11(a) should be stricken as “sham and false” and may not be voluntarily dismissed without prejudice in order to give the pleader the benefit of the “saving” provision of Rule 41(a)(1).

A timely refiled action following a voluntary dismissal without prejudice begins anew, and rulings in the dismissed action do not bind the court in the new action.

Tompkins v. Log Systems, Inc. · filed 1989-11-21Rule 41(a)(1)

Such refiling began this case anew for all purposes. Once refiled the case must be considered on its merits without reference to the disposition of the prior action. Therefore, Judge Kirby’s ruling in the prior action did not foreclose Judge Lewis from considering defendant’s summary judgment motion in this new action.

Rule 41(a)(1)'s one-year savings provision applies to a voluntary dismissal in federal court when the dismissal is granted pursuant to North Carolina Rule 41.

Bockweg v. Anderson · filed 1990-01-04(a)(1)

Where the Fourth Circuit has previously established that it invokes N.C.Rule 41 in granting voluntary dismissal, we hold that dismissal has been granted "under this subsection" of N.C.Rule 41 and the one-year savings provision of 41(a) has been triggered for the purposes of refiling in state court.

Rule 41(a)(1)’s one-year period after voluntary dismissal applies only when the new action involves substantially the same parties, cause of action, and right; separate corporations remain different parties even if they share an address, directors, and officers.

Cherokee Insurance Ex Rel. Weed v. R/I, Inc. · filed 1990-02-06(a)(1)

To benefit from the one-year extension of the statute of limitation, the second action must be “substantially the same, involving the same parties, the same cause of action, and the same right. . . .” McIntosh, North Carolina Practice and Procedure § 312, at 187 (1956) (construing N.C.G.S. § 1-25, a predecessor of Rule 41(a)(1)). ... Here the allegations and the plaintiff in both complaints are substantially the same. However, the defendants are distinct and separate corporate entities, and the fact that they share an address and directors and officers is immaterial. Therefore, we affirm the summary judgment for R/I, Inc. on the statute of limitation grounds.

Rule 41(a)(1) allows a plaintiff to refile a timely dismissed action within one year, including after a qualifying federal diversity dismissal followed by refiling in North Carolina state court.

Bockweg v. Anderson · filed 1991-04-03(a)(1)

We hold that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a timely filed action in a federal court sitting in diversity jurisdiction and applying North Carolina substantive law, and refiles the action in a North Carolina state court, may invoke the one-year savings provision in N.C.G.S. § 1A-1, Rule 41.

Rule 41(a)(1) does not bar refiling an action to perfect a lien after a voluntary dismissal without prejudice; the lien statutes determine whether the lien survives.

Newberry Metal Masters Fabricators, Inc. v. Mitek Industries, Inc. · filed 1993-01-08Rule 41(a)(1)

If the plaintiff is barred from pursuing its action to perfect the liens, it would not be under Rule 41(a)(1) but under Article 2 of Chapter 44A of the General Statutes dealing with statutory liens on real property.

Rule 41(a) permits only the party who took a voluntary dismissal to refile the same action within one year.

Marlowe v. Clark · filed 1993-10-05(a)

Although not specifically stated, defendant argues that it is implicit in Rule 41(a) that the party who took the voluntary dismissal is the only one who may refile within the prescribed time. We agree and find support for this position in Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986).

Rule 41(a) permits a plaintiff who timely filed an action and voluntarily dismissed it without prejudice to bring the same claim within one year of dismissal.

Jones v. Summers · filed 1994-12-20Rule 41(a)

Although the statute of limitations would have expired on 1 September 1991, plaintiff’s voluntary dismissal under Rule 41(a) permitted plaintiff to file a new action based upon the same claim within one year of the date of the Rule 41(a) dismissal, 14 January 1991.

Rule 41(a)(1) permits a plaintiff to voluntarily dismiss remaining claims after opposing counterclaims have been adjudicated and to refile those claims within one year.

Berkeley Federal Savings Bank v. Terra Del Sol, Inc. · filed 1995-06-06Rule 41(a)(1)

Rule 41(a)(1) of the North Carolina Rules of Civil Procedure provides that any action or any claim therein may be dismissed by the plaintiff without a court order at any time before plaintiff rests his case. G.S. 1A-1, Rule 41(a)(1). Unless otherwise stated, the dismissal is without prejudice and may be refiled within one year of the dismissal. ... We conclude that on these facts, plaintiff was entitled to take a voluntary dismissal of their claims and refile them within one year of the voluntary dismissal.

When an order dismissing an action without prejudice does not specify a refiling period under Rule 41(b), the applicable statute of limitations controls when the action may be refiled.

84 Lumber Co. v. Barkley · filed 1995-09-19Rule 41(b)

The 29 June 1992 order contains no specification whatsoever with regard to the time in which plaintiff may commence a new action based on the same claim. Accordingly, the applicable statute of limitations is controlling with regard to the time in which plaintiff was allowed to refile.

Rule 41(a)’s refiling period after a voluntary dismissal also permits a spouse to bring a derivative loss-of-consortium claim that must be joined with the timely refiled personal injury claim.

Sloan v. Miller Building Corp. · filed 1997-12-02Rule 41(a)

Because his spouse’s cause of action for loss of consortium was required to be joined with his personal injury claim, we hold that the effect of Landon Sloan’s voluntary dismissal was also to extend the time within which Phyllis Fay Sloan could assert her derivative cause of action coextensive with the time within which he could re-file his personal injury claim. Thus, when Landon Sloan re-filed his personal injury claim within the time permitted by G.S. § 1A-1, Rule 41(a), Phyllis Fay Sloan had the right to join with it her derivative cause of action for loss of consortium.

Rule 41(a)(1) permits a party to voluntarily dismiss a pending equitable distribution claim and refile it within one year.

Atkinson v. Atkinson · filed 1999-01-19Rule 41(a)(1)

Having determined that plaintiff has a valid equitable distribution claim pending pursuant to Judge Cobb's order, the plaintiff could take a voluntary dismissal under Rule 41(a)(1) and subsequently refile her action within one year, which she did in 95 CVD 985.

Rule 41(a)(1) permits refiling within one year after a voluntary dismissal only if the original complaint met the applicable pleading requirements before the limitations period expired.

Robinson v. Entwistle · filed 1999-03-02Rule 41(a)(1)

Thus, Rule 41(a)(1) is only available in an action where the complaint complied with the rules which govern its form and content prior to the expiration of the statute of limitations.

Rule 41(b) does not extend the time to refile after an involuntary dismissal unless the dismissal order specifies that a new action may be commenced within the allowed period.

Huang v. Ziko · filed 1999-02-16Rule 41(b)

Assuming arguendo that Rule 41(b) could apply in this case, the United States District Court did not specify in its order that a new action based on the same claims could be commenced within one year after the dismissal. ... Therefore, the time for plaintiff to file his complaint in state court was not extended for an additional year.

Rule 41’s one-year savings provision protects a newly added claim to pierce the corporate veil when that claim is derivative of the original negligence claim.

Strawbridge v. Sugar Mountain Resort, Inc. · filed 2003-01-31(a)(1)

The undersigned finds that the claim for piercing the corporate veil is derivative of the negligence claim and, therefore, is protected by Rule 41. Its filing date relates back to the original filing date, making the current claim timely.

Rule 41(a)(1) allows a refiled claim to relate back after voluntary dismissal only if that claim was included in the first complaint.

Williams v. Lynch · filed 2013-02-05(a)(1)

Under the holdings of Losing and Staley, the relation-back provision in Rule 41(a)(1) only applies to those claims in the second complaint that were included in the voluntarily-dismissed first complaint.

Rule 41(a)(1)'s savings provision applies only to claims against defendants named in the original action.

Russe v. UHS-Pruitt Holdings, Inc. · filed 2023-02-13(a)(1)

Moreover, plaintiff's prior voluntary dismissal in North Carolina state court, on which she relied to extend the limitations period in filing this suit, applies only to her claims against defendant PruittHealth, Inc., the only named defendant in the state court action.

Rule 41(a)(1)'s one-year refiling period applies only when the new action asserts the same claims as the voluntarily dismissed action.

Garland v. Orange Cnty. · filed 2024-04-02(a)(1)

The third complaint does not contain the same claims as the second complaint, thereby negating the ability to relate back to the timely complaint and meet the tolling requirements of Rule 41. Therefore, the complaint filed 10 August 2021 was untimely, and the trial court erred in denying the motion to dismiss.

A Rule 12 motion for judgment on the pleadings is assessed in light of trial evidence and an amendment to the complaint allowed after the motion was made.

Mills v. Koscot Interplanetary, Inc. · filed 1972-03-29Rule 12

This motion was made under Rule 12 of the North Carolina Rules of Civil Procedure, G.S. 1A-1, Rule 12. The defendant’s motion was made prior to the amendment to the complaint. It is to be passed upon, however, in the light of the evidence presented at the trial and the amendment to the complaint which was thereafter allowed by the trial court.

Rule 12(c) permits judgment on the pleadings only when no material issue of fact exists and the movant is clearly entitled to judgment.

Ragsdale v. Kennedy · filed 1974-11-26Rule 12(c)

Therefore, each motion under Rule 12(c) must be carefully scrutinized lest the nonmoving party be precluded from a full and fair hearing on the merits. The movant is held to a strict standard and must show that no material issue of facts exists and that he is clearly entitled to judgment.

Rule 12(c) permits judgment on the pleadings only when no material factual issue remains and the movant is entitled to judgment as a matter of law; the pleadings and their inferences are viewed in the light most favorable to the nonmoving party.

AMERICAN BANK AND TRUST COMPANY v. Elzey · filed 1975-05-21Rule 12(c)

A motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c), should not be granted unless “the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.”

Rule 12(c) permits judgment on the pleadings only when no material issue of fact remains and the movant is entitled to judgment as a matter of law.

J. F. Wilkerson Contracting Co. v. Rowland · filed 1976-06-16Rule 12(c)

“A motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c) should not be granted unless ‘the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.’ ”

Rule 12(c) permits judgment on the pleadings when the complaint shows that the claim is barred by a properly pleaded statute of limitations.

North Carolina State Ports Authority v. Lloyd A. Fry Roofing Co. · filed 1978-01-24(c)

Such judgment on the pleadings is proper if, but only if, it appears upon the face of the complaint that the plaintiff’s right to recover is barred by the lapse of time properly pleaded. ... G.S. 1A-1, Rule 12.

Rule 12(c) does not authorize judgment on the pleadings when the pleadings raise material issues of fact.

Pipkin v. Lassiter · filed 1978-06-20Rule 12(c)

The pleadings of the parties, in their current state, raise material issues of fact. Rule 12(c) does not authorize a trial court’s entry of judgment on such pleadings.

Rule 12(c) permits judgment on the pleadings when no material issue of fact exists and the movant is entitled to judgment.

Town of Bladenboro v. McKeithan · filed 1980-01-08Rule 12(c)

The Town met the standard of Rule 12(c) that no material issue of fact existed and that it was entitled to judgment.

When the record contains only pleadings, a summary judgment motion is treated as a Rule 12(c) motion for judgment on the pleadings.

Burton v. Kenyon · filed 1980-04-15Rule 12(c)

Where the record on appeal contains no affidavits, answers to interrogatories, or anything else other than the pleadings upon which to base decision, the motion for summary judgment will be considered as though made under G.S. 1A-1, Rule 12(c), of the Rules of Civil Procedure for judgment on the pleadings.

When the court considers matters outside the pleadings, a Rule 12(c) motion must be treated as a Rule 56 summary judgment motion.

Minor v. Minor · filed 1984-08-21Rule 12(c)

The record in this case, however, contains affidavits and indicates that the trial judge, in addition to considering the pleadings and attached exhibits, also heard counsel for both parties and considered briefs submitted by both parties. Therefore, the motion must be considered as though it was made under Rule 56.

Under Rule 12(c), unnecessary findings of fact and conclusions of law in a judgment on the pleadings may be struck as surplusage with no legal effect.

United Virginia Bank v. Air-Lift Associates, Inc. · filed 1986-02-04Rule 12(c)

The trial court’s ruling came pursuant to plaintiffs motion for judgment on the pleadings under Rule 12(c) of the Rules of Civil Procedure. G.S. 1A-1, Rule 12. ... Therefore, we modify the trial court’s order by striking its findings of fact and conclusions of law as surplusage and of no legal effect.

Rule 12(c) requires a motion for judgment on the pleadings to be treated as a summary judgment motion when the court considers material outside the pleadings.

Indiana Lumbermen's Mutual Insurance v. Champion · filed 1986-05-06Rule 12(c)

Since material outside the pleadings was presented to and considered by the court, specifically Champion’s affidavit, Nationwide’s motions for judgment on the pleadings were to be treated as ones for summary judgment. N.C. Gen. Stat. § 1A-1, Rule 12(c) of the Rules of Civil Procedure.

Rule 12(c) permits judgment on the pleadings only when no material factual issue remains and the movant is entitled to judgment as a matter of law; the court views the pleadings and their inferences in the light most favorable to the nonmoving party.

Tradewinds Campground, Inc. v. Town of Atlantic Beach · filed 1988-06-21Rule 12(c)

A motion for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) should only be granted when “ ‘the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.’ ” Trust Co. v. Elzey, 26 N.C. App. 29, 32, 214 S.E. 2d 800, 802 (citation omitted), cert. denied, 288 N.C. 252, 217 S.E. 2d 662 (1975).

Rule 12(c) permits judgment on the pleadings when the material factual allegations are admitted and only questions of law remain.

George Shinn Sports, Inc. v. Bahakel Sports, Inc. · filed 1990-07-17Rule 12(c)

A motion for judgment on the pleadings is a summary procedure, authorized by Rule 12(c) of the North Carolina Rules of Civil Procedure, which allows a trial court to enter judgment when all the material allegations of fact are admitted in the pleadings and only questions of law remain.

Rule 12(c) permits judgment on the pleadings only when no material issue of fact remains and the movant is entitled to judgment as a matter of law.

Brickhouse v. Brickhouse · filed 1991-09-03Rule 12(c)

A motion for judgment on the pleadings should not be granted unless “the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” ... We hold that it was error for the trial court to grant the plaintiff judgment on the pleadings, as there remained the factual issue of whether Lucy B. Carr qualified as an attesting witness.

Rule 41(a) permits voluntary dismissal before the plaintiff rests the case, while Rule 12(c) requires a movant to show that no material fact issue exists and that judgment is clearly warranted.

Rabon v. Rabon · filed 1991-04-02Rule 41(a); Rule 12(c)

N.C.G.S. § 1A-1, Rule 41(a) allows a plaintiff to take a voluntary dismissal without a court order “by filing a notice of dismissal at any time before the plaintiff rests his case. . . .” ... Under N.C.G.S. § 1A-1, Rule 12(c), a party moving for judgment on the pleadings must show that no material issue of fact exists and that he or she is clearly entitled to judgment.

Rule 12(c) requires a party seeking judgment on the pleadings to show that no material issue of fact exists and that the party is entitled to judgment as a matter of law.

Daniels v. Hertz Corp. · filed 1991-12-17(c)

Under N.C. Gen. Stat. § 1A-1, Rule 12(c) (1990), a party moving for judgment on the pleadings must establish that no material issue of fact exists and that he is entitled to judgment as a matter of law.

Rule 12(c) permits judgment on the pleadings before trial and cannot be used to test the validity of post-trial motions.

Scott v. Scott · filed 1992-06-02Rule 12(c)

As this rule of civil procedure makes clear, Rule 12(c) motions are pretrial motions requiring a review of the pleadings. They cannot be employed to test the validity of post-trial motions.