N.C. Gen. Stat. § 1A-1

Rule 12(h)(1) waives a personal jurisdiction defense when a respondent fails to raise it in a response or answer.

In Re JWJ · filed 2004-08-03Rule 12(h)(1)

In her response and answers, respondent failed to raise the defense that the trial court lacked personal jurisdiction over her. Accordingly, respondent has waived this defense pursuant to Rule 12(h)(1).

Rule 12(h)(1) requires a personal-jurisdiction objection to be raised before proceeding or at the earliest motion or pleading opportunity, or it is waived.

IN RE CDM · filed 2004-12-21Rule 12(h)(1)

Rule 12(h) of the North Carolina Rules of Civil Procedure requires that an objection to jurisdiction over the person must be made in open court before proceeding, or at the earliest possible motion or pleading opportunity, or be deemed waived.

Rule 12(h)(1) deems defenses of lack of personal jurisdiction, insufficient process, and insufficient service waived when the defendant files no answer or motion before default judgment.

AUTEC, INC. v. SOUTHLAKE HOLDINGS, LLC · filed 2005-03-15Rule 12(h)(1)

As Southlake never submitted an answer nor made any motion before entry of default and default judgment, the defenses of lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process pursuant to Rule 12(b) are deemed waived.

Rule 12 waives an insufficiency-of-service defense when a party fully participates in the proceedings without raising it.

In Matter of Hsf · filed 2006-02-21Rule 12(h)(1)(ii)

In the case sub judice, respondent fully participated in the proceedings without raising the issue of insufficiency of service of process. We hold respondent's participation amounts to a general appearance; therefore, she waived the issue.

Rule 12(g) and (h)(1) waive a personal-jurisdiction defense omitted from an earlier Rule 12 motion raising a subject-matter-jurisdiction defense.

Evangelistic Outreach Center v. General Steel Corp. · filed 2007-02-20Rule 12(g), (h)(1)

Rule 12(g) and (h) establish that, by failing to include a motion for dismissal under Rule 12(b)(2) with its motion under Rule 12(b)(1), defendant waived any challenge to personal jurisdiction.

Rule 12(h)(1) allows waiver of a personal jurisdiction defense when it is not timely raised; it does not make subject matter jurisdiction waivable.

In Re CT · filed 2007-04-03Rule 12(h)(1)

Appellees accurately state that the issue of personal jurisdiction is subject to waiver. See N.C. Gen.Stat. § 1A-1, Rule 12(h)(1) (2005) ("defense of lack of jurisdiction over the person . . . is waived . . . if it is neither made by motion . . . nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."). The issue in the instant case, however, concerns subject matter jurisdiction.

Rule 12(h)(1) treats objections based on insufficient process or service of process as waivable personal jurisdiction defenses.

In Re JT · filed 2009-02-06Rule 12(h)(1)

These errors are examples of insufficiency of process and insufficiency of service of process, respectively, both of which are defenses that implicate personal jurisdiction and thus can be waived by the parties. See id. § 1A-1, Rule 12(h)(1); Harmon, 245 N.C. at 86, 95 S.E.2d at 359.

Rule 12(h)(1) treats insufficiency of process and service as waivable personal-jurisdiction defenses.

In re J.T. (I) · filed 2009-02-06Rule 12(h)(1)

These errors are examples of insufficiency of process and insufficiency of service of process, respectively, both of which are defenses that implicate personal jurisdiction and thus can be waived by the parties.

Rule 12(h) permits a party to waive an objection to defective service and the resulting lack of personal jurisdiction by failing to object in time.

In Matter of Ms · filed 2009-03-17Rule 12(h)

However, lack of service of process, and therefore lack of personal jurisdiction, may be waived by failure to make a timely objection in the trial court, N.C. Gen. Stat. § 1A-1, Rule 12(h) (2007), and by making a general appearance. ... Further, we hold Respondent waived the lack of personal jurisdiction by appearing and participating in the hearing without objecting to the lack of jurisdiction.

Rule 12(h)(1) requires a party to raise summons defects affecting personal jurisdiction in a timely manner or waive them.

In Re KJL · filed 2009-06-18Rule 12(h)(1)

Deficiencies regarding the manner in which a court obtains jurisdiction over a party, including those relating to a summons, are waivable and must be raised in a timely manner. N.C.G.S. § 1A-1, Rule 12(h)(1) (2007).

Rule 12(h)(1) waives a defense of lack of personal jurisdiction when the defendant fails to raise it in a motion or responsive pleading.

Musarra v. Bock · filed 2009-11-03Rule 12(h)(1)

Defendant waived the defense of lack of personal jurisdiction when he failed to raise it in accordance with North Carolina Rule of Civil Procedure 12(h)(1).

Rule 12(h)(1) waives a personal jurisdiction defense when a defendant answers without raising it.

Tyll v. Willets · filed 2013-08-20Rule 12(h)(1)

As to ... personal jurisdiction, defendant answered plaintiff’s complaint without raising this issue, thus the trial court also had personal jurisdiction over defendant.

A party waives an objection to personal jurisdiction by answering and making a general appearance without raising it.

In re W.I.M. · filed 2020-07-17Rule 12(h)(1)

Upon careful review, we conclude that respondent waived any objection to the trial court’s exercise of personal jurisdiction over him. The record before this Court shows that respondent filed an answer to HHSA’s amended petition for termination and made a general appearance without raising the issue of personal jurisdiction either in his 30 October 2018 motion to dismiss or his 31 December 2018 motion to quash.

A defendant does not waive a personal jurisdiction defense by raising it in a responsive pleading.

Cohen v. Cont'l Motors · filed 2021-09-07Rule 12(h)(1)

Thus, pursuant to Rule 12 of our statutory Rules of Civil Procedure, because CMI raised this defense in a responsive pleading, CMI’s jurisdictional challenge was not waived.

A party waives a personal jurisdiction objection when the party’s attorney makes a general appearance without raising it.

In re: M.L.C. · filed 2023-06-20Rule 12(h)(1)

His general appearance was more than just cursory, and as such, the trial court properly obtained personal jurisdiction over Respondent-Mother.

Rule 12(h)(1) requires a defendant to raise objections to personal jurisdiction or service of process at the first available opportunity, even if the first appearance occurs after judgment.

Slattery v. Appy City, LLC · filed 2024-03-22Rule 12(h)(1)

Therefore, whether pre- or post-judgment, a defendant must assert defenses concerning personal jurisdiction or the sufficiency of service of process at the first available opportunity, or they are waived.

Rule 12 waives a personal jurisdiction defense when a defendant omits it from an available motion and the responsive pleading.

Honacher v. Uhlhorn · filed 2024-12-31Rule 12(g), (h)(1)

Therefore, Defendant waived his right to challenge the court’s exercise of personal jurisdiction over him.

Rule 20(a) permits alternative joinder of defendants when the claims arise from the same transaction or occurrence, or a series of them, and share a question of law or fact.

Aetna Insurance Co. v. Carroll's Transfer, Inc. · filed 1972-05-24Rule 20(a)

Alternative claims may be joined under G.S. 1A-1, Eule 20(a) if two tests are met. First, each claim must arise out of the same transaction, the same occurrence, or a series of either. ... The second test is that each claim must contain a question of law or fact, which will arise, common to all parties.

Rule 21 calls for the court to consider adding or dropping parties on just terms when parties and claims are misjoined.

Presnell v. Trollinger Investment Co. · filed 1974-02-20Rule 21

Judge Crissman should have proceeded under Rule 21 to determine if parties could have been dropped or added on terms which would have been just to the parties.

Rule 42(a) permits a trial court to consolidate actions involving a common question of law or fact when consolidation does not prejudice the parties.

Greenville City Board of Education v. Evans · filed 1974-05-15Rule 42(a)

Under G.S. 1A-1, Rule 42(a), the trial court has the discretion to consolidate “actions involving a common question of law or fact.” ... From the record it is apparent that consolidation was proper within the purview of the above rule, and respondents have not been prejudiced thereby.

Rule 21 requires notice to existing parties before an order adds a defendant, although the rule does not expressly require notice.

Pask v. Corbitt · filed 1975-12-17Rule 21

Plaintiff is correct that Rule 21 does not specifically require notice. ... Here, Golden Eagle was entitled to notice of the motion to bring in a new party defendant.

Rule 14 identifies a third-party complaint as the proper method for joining an alleged tort-feasor.

Smith v. Garrett · filed 1977-01-05Rule 14

Under G.S. 1A-1, Rule 14, the proper method to join an alleged tort-feasor is by third-party complaint, as was done here.

Rule 14 allows a defendant to serve a summons and complaint on a nonparty who is or may be liable for all or part of the plaintiff’s claim, permitting an indemnitee to sue the ultimately liable party before paying the claim.

Heath Ex Rel. Heath v. Board of Commissioners · filed 1977-04-14

However, since the enactment of G.S. 1A-1, Rule 14 (1969), at any time after commencement of an action “a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him” (emphasis added). It is, therefore, no longer true that an indemnitee cannot sue the party ultimately liable to him until after the indemnitee has paid the claim.

Rule 21 provides that failure to join a necessary party is not grounds for dismissal; the party may be added by court order at any stage of the action.

Schell v. Rice · filed 1978-08-01Rule 21

However, the failure to join even a necessary party is not grounds for dismissal of the action, the remedy being to add the necessary party, which may be done “by order of the court on motion of any party or on its own initiative at any stage of the action.” G.S. 1A-1, Rule 21.

Rule 19 requires joinder of a trustee whose rights would be prejudiced by a foreclosure judgment, even without a party’s motion; a judgment entered without that necessary party is void.

Ludwig v. Hart · filed 1979-03-06Rule 19(a), (b)

G.S. 1A-1, Rule 19(a) requires that a person must be joined as a party to an action if that person is “united in interest” with another party to the action. ... Since the trial court could not determine the claim before it without prejudicing the rights of the trustee, it was required, even in the absence of a motion by one of the parties, to order the trustee summoned to appear in the action. G.S. 1A-1, Rule 19(b). A judgment which is determinative of a claim arising in an action to which one who is “united in interest” with one of the parties has not been joined is void.

Rule 12(h)(2) permits a failure-to-join defense to be raised through trial on the merits.

Godley Auction Co., Inc. v. Myers · filed 1979-04-03Rule 12(h)(2)

Moreover, we do not find that any substantial right of the defendant has been impaired by the trial court’s denial of the motion to dismiss for failure to join a necessary party pursuant to G.S. 1A-1, Rule 12(b)(7). G.S. 1A-1, Rule 12(h)(2) provides that this defense may be made at various stages up to and including “at the trial on the merits.”

Rule 14 permits a party to implead someone who may be liable to it before that person’s liability has been determined.

Rouse v. Maxwell · filed 1979-04-03Rule 14

G.S. 1A-1, Rule 14, allows a party to implead a party or parties that may be liable to him. It is not necessary that the third-party defendant’s liability be previously determined.

Rule 19 requires joinder of a person whose presence is needed to determine the claim completely.

Behr v. Behr · filed 1980-05-20Rule 19

A necessary party is one whose presence is required for complete determination of the claim. ... We hold that joinder of Lisa Kathryn was not required, whether or not she reached the age of majority or became emancipated, because the separation agreement provided that all support payments were to be made to plaintiff, as Lisa Kathryn’s mother.

Rule 19(b) does not require joining an absent person whose interests will not be affected by the outcome of the litigation.

Begley v. Employment Security Commission · filed 1981-02-03(b)

In the instant case, the U.S. Secretary of Labor was not a necessary party whose joinder was mandatory, as the Secretary's interests would not be affected by the outcome of this litigation.

Rule 12(b)(7) does not require a corporation to be joined when stockholders seek damages for negligent misrepresentations made to induce their investment before they became stockholders.

Howell v. Fisher · filed 1980-11-18Rule 12(b)(7)

We hold that a corporation is not a necessary party when stockholders seek damages in their own right for negligent misrepresentations made to them before they were stockholders for the purpose of inducing their investment. Thus, it was error to grant defendants’ motion to dismiss under G.S. 1A-1, Rule 12(b)(7).

Rule 14(c) permits the State to be joined as a third-party defendant in state court tort actions for contribution or indemnification.

Teachy v. Coble Dairies, Inc. · filed 1982-07-13Rule 14(c)

Rule 14(c) does not limit the nature or character of third-party actions permissible against the State. We therefore hold that the State may be joined as a third-party defendant, whether in an action for contribution or in an action for indemnification, in the State courts.

Rule 14(c) does not itself authorize a third-party contract action against the State.

Huyck Corp. v. C. C. Mangum, Inc. · filed 1982-08-03Rule 14(c)

Although there is nothing in Rule 14(c) to allow a third party contract action against the State, as the State and DOT contend, the case of Smith v. State, 289 N.C. 303, 222 S.E. 2d 412 (1976), clearly establishes that the State and its agencies may be sued in contract.

Rule 14 allows a defendant to bring in a third party for contribution toward the defendant’s liability to the plaintiff; the third party is not liable to the defendant if the defendant is not liable to the plaintiff.

Jones v. Collins · filed 1982-09-07(a)

Under this rule, an original defendant may bring in a third-party defendant for contribution to the original defendant for a part of his liability to the plaintiff. If the original defendant is not liable to the original plaintiff, the third-party defendant is not liable to the original defendant.

Rule 14 permits a defendant to bring in a third party whose potential indemnity liability depends on the main claim, even when the amount of that claim is not yet fixed.

Cody v. Department of Transportation · filed 1983-02-15Rule 14

This rule anticipates the disposition in one trial of cases involving multiple parties. It is particularly adapted to cases such as this one where the liability of a third-party defendant is contingent upon liability of another party, and upon claims the exact amount of which is not fixed at the beginning of trial.

Rule 14(a) permits a defendant to join an additional party only if that party may be liable to the defendant for all or part of the plaintiff’s claim.

Wolfe v. Wolfe · filed 1983-10-04Rule 14(a)

Under G.S. 1A-1, Rule 14 of the Rules of Civil Procedure, a defendant may bring in an additional party who “is or may be liable to (defendant) for all or part of the plaintiffs claims against him.” Rule 14(a). Clearly, Sugg could not possibly be liable to defendant for any of plaintiffs claims against defendant for child custody or child support. The trial court erred in making Sugg a party and was without power to enter orders concerning Sugg.

Rule 19(a) requires joinder of a person whose presence is necessary to fully adjudicate a claim.

Bjornsson v. Mize · filed 1985-06-18Rule 19(a)

This claim cannot be fully adjudicated without the addition of Montessori Partnership; thus, it is a necessary party.

Rule 21 does not permit summary judgment based on misjoinder of parties and claims.

Shuping v. Barber · filed 1988-03-15Rule 21

Summary judgment, like dismissal of the action, is inappropriate in cases of misjoinder of parties and claims.

Rule 20(a) places joinder of proper parties within the trial judge’s discretion; joinder was upheld where the opposing party showed no abuse of discretion or prejudice.

Deans v. Layton · filed 1988-04-05Rule 20(a)

Similarly, whether proper parties will be ordered joined rests within the sound discretion of the trial judge. ... See also G.S. 1A-1, Rule 20(a). ... Defendant has failed to show that the trial judge abused his discretion in ordering plaintiff Murveree F. Deans joined as an additional party plaintiff and allowing her to adopt the amended complaint of plaintiff Claude E. Deans. ... Defendant has shown no prejudice resulting from the amendment or the joinder.

Rule 19(a) requires joinder of the fee-title holder and subdivision lot owners with easement rights before a court decides whether the easement has been extinguished by abandonment or adverse possession.

Rice v. Randolph · filed 1989-10-17Rule 19(a)

We believe that a dispute as to the extinguishment of a subdivision easement by abandonment or adverse possession cannot be resolved without the joinder of the grantor, or his heirs, who retain fee title to the soil (see Johnson v. Skyline Tel. Membership Corp., 89 N.C. App. 132, 365 S.E.2d 164 (1988)), and the record owners of lots in the subdivision, who have user rights in the easement, see Cleveland Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964).

Rule 19 requires the insured to be joined as a necessary party when an insurer has paid only part of the loss and the insured retains unpaid claims.

Commonwealth Land Title Insurance v. Stephenson · filed 1990-01-16

Based on this record, we determine that insured-grantee is a necessary party to this action. Dismissal of the complaint is proper if a necessary party is not joined.

Rules 18(a) and (e)(2) do not require a party to elect among remedies at the summary judgment stage.

Corum v. University of North Carolina · filed 1992-01-3118(a), (e)(2)

Plaintiff is not required to elect now, at summary judgment, among his remedies. N.C.G.S. § 1A-1, Rule 18(a), (e)(2) (1983).

Rule 19(b) treats a person as a necessary party when the person has a claim or material interest in the controversy that the outcome will directly affect.

Lombroia v. Peek · filed 1992-10-20Rule 19(b)

The term “necessary party” embraces all persons who have a claim or material interest in the subject matter of the controversy, which interest will be directly affected by the outcome of the litigation.

Rule 20 permits a plaintiff to join defendants whose liability is joint or several, but does not require joinder.

Swain v. Leahy · filed 1993-09-07Rule 20

Although Rule 20 of the North Carolina Rules of Civil Procedure permits a plaintiff to join defendants in one action when the right to relief arises out of the same action or liability is joint or several, it does not require joinder.

Rule 19 does not require joinder of trust beneficiaries whose absence does not prevent the court from adjudicating another beneficiary’s claim.

Pittman v. Barker · filed 1995-01-17Rule 19

Though they are proper parties by their common interest in the trust corpus, Jeannette Ford and Della Pittman are not necessary parties, and the trial court was not obligated to join them under G.S. § 1A-1, Rule 19.

Rule 19(a) does not require a parent to join a minor child’s personal injury action when the parent’s claim is independent and the child’s claim can be fully determined without the parent.

West ex rel. Farris v. Tilley · filed 1995-09-05Rule 19(a)

Contrary to defendant’s assertion, the interests of plaintiff and her mother were not so united as to require joinder of Ms. Williams under Rule 19(a).

Rule 21 permits a court to deny a request to add a party in its discretion.

Cates v. North Carolina Department of Justice · filed 1996-01-02Rule 21

In any event, even assuming that Cates’ claim against DEHNR is within the scope of the Administrative Procedure Act, N.C. Gen. Stat. Chapter 150B, because this new claim was asserted four years after the original petition, the trial court did not abuse its discretion in denying the request to join DEHNR. See N.C.G.S. § 1A-1, Rule 21 (1990); W. Brian Howell, Shuford North Carolina Civil Practice and Procedure § 21-3 (4th ed. 1992) (order denying motion to add a party “is made in the court’s discretion”).

Rule 19 requires necessary parties to be joined when a valid judgment cannot be rendered without their presence.

Karner v. Roy White Flowers, Inc. · filed 2000-04-07Rule 19

For this reason, we conclude the nonparty property owners of Elizabeth Heights are necessary parties to this action because the voiding of the residential-use restrictive covenant would extinguish their property rights.

Rule 20(a) permits a plaintiff to join defendants in one action when the right to relief arises from the same transaction or occurrence, but does not require joinder.

Triangle Park Chiropractic v. Battaglia · filed 2000-07-18(a)

Although Rule 20 of the North Carolina Rules of Civil Procedure permits a plaintiff to join defendants in one action if there is a right to relief arising out of the “same transaction, occurrence, or series of transactions or occurrences,” it does not require joinder.

Rule 20(a) permits parents and an injured child to join their separate claims arising from the same occurrence when they share a question of law or fact.

Moquin v. Hedrick · filed 2004-03-16Rule 20(a)

We note that the daughter and the parents were properly joined as parties under Rule 20 permitting: All persons [to] join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action.

Rule 19 does not require shareholders to be joined in an action against a corporation when the basis for seeking their personal liability arises only after that action concludes.

Blair v. Robinson · filed 2006-07-05Rule 19(a)

There was therefore no basis, at the time of the prior action, to attempt to pierce the corporate veil and name the Robinsons as defendants. Thus, the Robinsons were not necessary parties to the first action.

Rule 19(a) requires joinder of necessary parties whose interests will be directly affected by the judgment.

DeROSSETT v. DUKE ENERGY CAROLINAS, LLC · filed 2010-09-07Rule 19(a)

As a result, since N.C. Gen. Stat. § 1A-1, Rule 19(a), only requires the joinder of necessary parties and because the other persons owning interests in Ms. Freeman’s property are not directly affected by the trial court’s decision, we hold that the trial court did not commit reversible error by denying Plaintiffs’ motion for reconsideration, or by not requiring Defendant to join all proper parties to the action.

Rule 19 requires joinder of trust beneficiaries whose interests will be affected by the action.

HASSELMANN v. Barnes · filed 2010-10-05

Because four beneficiaries whose interests will be affected by this action were not included as parties, the trial court should have required joinder of all necessary parties.

A necessary party joined as a plaintiff need not file a separate pleading when existing claims reasonably represent that party’s claims.

Warrender v. Gull Harbor Yacht Club, Inc. · filed 2013-08-06Rule 19(a)

Rule 19 of the North Carolina Rules of Civil Procedure merely requires that “those who are united in interest must be joined as plaintiffs or defendants.” N.C. Gen. Stat. § 1A-1, Rule 19(a) (2011). It does not specifically require the joined parties to file a separate pleading. Nor have our Courts imposed such a requirement.

Rule 19 requires a court to join an entity united in interest as a necessary party, even when no party moves for joinder.

Geoghagan v. Geoghagan · filed 2017-07-05Rule 19

However, N.C. Gen. Stat. § 1A-1, Rule 19 requires that an entity united in interest1 “must be joined as [a] plaintiff[] or defendant[].”

Rule 57 governs the procedure for obtaining a declaratory judgment but leaves the statutory provisions governing availability of that remedy in place.

Reeves Brothers, Inc. v. Town of Rutherfordton · filed 1972-08-02

But as Professor James E. Sizemore notes in his article, General Scope and Philosophy of the New Rules, “The basic statutory provisions for obtaining declaratory judgments have been retained. Rule 57 simply provides that the procedure for this remedy shall be in accordance with the new Rules . . . .” (Emphasis original.) 5 Wake Forest Intra. Law Rev. 1 at 9, 10.

Rule 49(c) precludes a party who did not object to the form of a jury issue at trial from challenging it on appeal.

Brant v. Compton · filed 1972-09-20(c)

Thus it appears that under the authorities construing former G.S. 1-200 that plaintiff waived his right to challenge the form of the second issue and we so hold. It also appears that plaintiff is further precluded by Rule 49(c) quoted above.

A party waives the right to have an issue decided by the jury if it neither objects to the issue submitted nor requests the omitted issue.

Van Poole v. Messer · filed 1975-03-19Rule 49(c)

Furthermore, defendants neither objected to the issue which was submitted to the jury nor requested the court to submit an issue of substantial change in the character of the neighborhood, and, therefore, waived their right to have such issue passed upon by the jury.

Rule 49(c) requires a party to demand submission of an omitted factual issue before the jury retires to preserve the right to a jury trial on that issue.

Vandiver v. Vandiver · filed 1981-01-20Rule 49(c)

Although there was some evidence to the effect that plaintiff offered indignities to defendant, and although defendant’s pleadings did raise such issue, the record does not indicate that defendant ever demanded submission of the issue. Defendant could have demanded the issue’s submission at any time before the jury retired.

Rule 49(c) waives a party's appellate objection to the wording of a jury issue if the party did not object when the issue was submitted.

Barnett v. Security Insurance Co. of Hartford · filed 1987-02-17Rule 49(c)

By application of Rule 49(c), since the defendants here failed to object to the first issue submitted to the jury, they waived their right to appeal on the ground that it was erroneous.

Rule 49(c) treats an issue omitted from the jury’s consideration without a timely demand for its submission as found by the judge in accord with the judgment.

Patterson v. Strickland · filed 1999-06-15Rule 49(c)

Defendant did not formally object to the instructions as given before the jury retired. As such, the trial court is “deemed to have made a finding in accord with the judgment entered.”

The Rules of Civil Procedure do not apply to proceedings before the State Board of Assessment.

In Re Property in Forsyth County · filed 1972-10-11Rule 1

The Rules of Civil Procedure do not apply to proceedings before the State Board of Assessment. G.S. § 1A-1, Rule 1.

The Rules of Civil Procedure do not apply to proceedings before the State Board of Assessment.

In re the Ad Valorem Valuation of Property Located at 411-417 West Fourth Street · filed 1972-10-11Rule 1

The Rules of Civil Procedure do not apply to proceedings before the State Board of Assessment. G.S. 1A-1, Rule 1.

Rule 1 makes the Rules of Civil Procedure govern proceedings of a civil nature.

Matter of Underwood · filed 1978-10-17

An involuntary commitment proceeding under Art. 5A of G.S., Chap. 122, is a proceeding of a civil nature which is governed by pertinent Rules of Civil Procedure. G.S. 1A-1, Rule 1.

The Rules of Civil Procedure do not apply to a board of education’s administrative hearing to dismiss a career teacher.

Baxter v. Poe · filed 1979-07-31

Nor are the Rules of Civil Procedure applicable. G.S. 1A-1.

The Rules of Civil Procedure do not apply to a board of education hearing on the dismissal of a career teacher.

Weber v. Board of Education · filed 1980-05-20

Nor are the Rules of Civil Procedure applicable. G.S. 1A-1.

The Rules of Civil Procedure do not apply to officer removal actions under G.S. §§ 128-16 through -20.

State ex rel. Leonard v. Huskey · filed 1983-12-20

The question brought forward by petitioner is whether the provisions of G.S. § 1A-1, Rules of Civil Procedure, apply to actions brought pursuant to the provisions of G.S. §§ 128-16 through -20. We hold that the Rules of Civil Procedure do not apply to such actions and remand for further proceedings consistent with this opinion.

The Rules of Civil Procedure do not govern proceedings under the APA, although the principles concerning ultimate and evidentiary facts apply to agency findings.

In re the Appeal from the Environmental Management Commission · filed 1986-04-01

Though the Rules of Civil Procedure, G.S. 1A-1, Rules 1-84, do not govern proceedings under the APA, the same principles regarding ultimate and evidentiary facts apply regarding the findings the agency is required to make.

Rule 60(b)'s one-year limitation does not govern the Industrial Commission's power to set aside its own awards for fraud.

Maness v. Kelway Rentals Sales · filed 1997-04-04Rule 60(b)

Plaintiff argues that defendant's motion is outside the one year limitation of N.C. Gen. Stat. § 1A-1 , Rule 60(b). However, as the Hogan Court noted that the, "Rules of Civil Procedure are not strictly applicable to proceedings before the Industrial Commission under the Workers' Compensation Act," and that while the Commission's power in such matters "is analogous to that conferred upon the courts by N.C. R. Civ. P. 60(b)(6), it arises from a different source."

The Rules of Civil Procedure do not apply to arbitration unless the parties incorporate them into their arbitration agreement.

Palmer v. Duke Power Co. · filed 1998-05-19

Significantly, the North Carolina Rules of Civil Procedure do not apply to arbitrations, unless incorporated into the arbitration agreement.

Rule 6 does not govern a specific local zoning ordinance notice period when the ordinance itself supplies the method for calculating notice.

Richardson v. Union County Board of Adjustment · filed 1999-12-21

The language of § 11 of the Ordinance is clear and unambiguous. It requires a minimum ten-day “notice of a public hearing” be given and further states how that ten days should be calculated. Furthermore, § 11 of the Ordinance is also very specific and particular in its application, stating that this notice is a required action of “the zoning administrator.” On the other hand, N.C. Gen. Stat. § 1A-1, Rule 6 comprehensively covers the computation of “any period of time prescribed,” but addresses no particular event or issue. Therefore, in construing § 11 of the Ordinance and Rule 6 in para materia, the Legislature’s intent to confer authority to handle such zoning matters to the county board of adjustment is clear. Further, petitioners néither offer nor do we find any authority holding that Rule 6 applies to ordinances of local governments. Thus, we hold that the Board did not err in applying § 11 of the Ordinance and, under the Ordinance, there was adequate notice.

Rule 1 yields to a statute that prescribes a different procedure, including a deadline for service.

State ex rel. Barker v. Ellis · filed 2001-06-05Rule 1

However, the Rules of Civil Procedure expressly refute that contention: “These rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.” N.C. Gen. Stat. § 1A-1, Rule 1 (emphasis supplied). Indeed, the deadline for service in a quo war-ranto action is prescribed by statute, N.C. Gen. Stat. § 1-522, not the Rules of Civil Procedure.

The Rules of Civil Procedure do not directly apply to workers’ compensation actions, but they may guide the evaluation of a motion to dismiss.

Harmon v. Ball-Incon Glass Pkg. · filed 2005-08-02

Even though the Rules of Civil Procedure are not directly applicable to Workers' Compensation actions, they offer guidance.

Rule 1 does not require trustee removal proceedings heard as estate matters to follow the Rules of Civil Procedure; clerks hear those matters summarily.

In re Estate of Newton · filed 2005-10-04Rule 1

Although Chapter 36A does not expressly or "otherwise" prescribe "differing [rules of] procedure," we are not persuaded that, in addition to the duties already placed upon them, clerks of court must also make decisions regarding discovery and other issues of law arising during estate matters. Instead, we conclude that the clerks of our superior courts hear the matters before them summarily, and are responsible for determining questions of fact rather than providing judgment in favor of one party or the other.

The Rules of Civil Procedure apply to claims under the Open Meetings Law.

Garlock v. WAKE COUNTY BD. OF EDUC. · filed 2011-04-19Rule 1

Based on prior cases, it is clear that the Rules of Civil Procedure do apply to claims under the Open Meetings Law.

Rule 1 makes the Rules of Civil Procedure yield when the adoption statutes prescribe a different procedure.

In re S.D.W. · filed 2013-07-02Rule 1

Thus, where the adoption statutes provide a procedure different than that set out in the Rules of Civil Procedure, the adoption statutes govern.

The Rules of Civil Procedure apply to Chapter 50 family law cases unless a statute establishes a different procedure.

Hill v. Durrett · filed 2019-03-19

While we recognize that family law cases under Chapter 50 often require the presiding judge to serve as the finder of fact, the North Carolina Rules of Civil Procedure remain applicable to such cases absent the existence of statutes establishing a different procedure.

Rule 59(a)(7) permits a trial judge to grant a new trial on all or part of the issues when the evidence is insufficient to justify the verdict.

City of Winston-Salem v. Rice · filed 1972-10-25Rule 59(a)(7)

G.S. 1A-1, Rule 59(a) (7) authorizes a trial judge to grant a new trial on all or part of the issues on the ground of insufficiency of the evidence to justify the verdict.

Rule 59(a)(7) permits a new trial for insufficient evidence to justify a verdict, subject to the trial judge’s discretion and appellate review for abuse of discretion.

Yeargin v. Spurr · filed 1985-12-03Rule 59(a)(7)

G.S. 1A-1, Rule 59(a)(7) provides that a new trial may be granted on the grounds of insufficiency of the evidence to justify the verdict. A motion under this rule is addressed to the sound discretion of the trial judge, whose ruling, absent abuse of discretion, shall not be disturbed on appeal.

Rule 59 permits a new trial for trial error or a verdict insufficiently supported by the evidence; a verdict that is not against the greater weight of the evidence does not warrant a new trial on that ground.

Eason v. Barber · filed 1988-03-15

Under N.C. Gen. Stat. § 1A-1, Rule 59, a party may obtain a new trial either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence. ... The verdict, therefore, cannot be said to be against the greater weight of the evidence.

Rule 59(a)(7) permits a new trial when the verdict is against the greater weight of the evidence.

Matter of Will of Buck · filed 1998-08-04Rule 59(a)(7)

Rule 59(a)(7) authorizes the trial court to grant a new trial for the “insufficiency of the evidence to justify the verdict. . . .” The term “insufficiency of the evidence” has been held by our Supreme Court to include the reason that the verdict “was against the greater weight of the evidence.”

Rule 59(a)(7) allows a new trial when a verdict is against the greater weight of the evidence; appellate courts review the trial court’s ruling for abuse of discretion, whether it grants or denies the motion.

In Re the Will of Buck · filed 1999-07-23Rule 59(a)(7)

Accordingly, we decline to apply a different abuse of discretion standard to a trial court’s grant versus a trial court’s denial of a motion for a new trial for insufficiency of the evidence.

Rule 59(a)(7) permits a new trial when the evidence is insufficient to justify the verdict or the verdict is contrary to law.

Handex of the Carolinas, Inc. v. County of Haywood · filed 2005-01-18(a)(7)

The County also motioned for a new trial and amended judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) (2003). The County argued that, because some, if not all, of Handex’s claims were not supported by the evidence and therefore that the single-figure verdict awarded by the trial court was not authorized, a new trial must be granted. We agree.

Rule 59(a)(7) permits a new trial when the evidence is insufficient to support the jury’s verdict.

DAN JOINT VENTURE, III, LP v. Fenner · filed 2007-02-20Rule 59(a)(7)

Rule 59(a)(7) authorizes the trial court to grant a new trial based on the "insufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)(7). ... The evidence at trial was insufficient to support the jury's verdict of "none," and the trial court erred in denying plaintiff's motion for a new trial.

Rule 59(a)(7) permits a new trial when the verdict is against the greater weight of the evidence; the decision is reviewed for abuse of discretion.

HUGUELY v. Mraz · filed 2007-11-06Rule 59(a)(7)

N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) (2005) authorizes the trial court to grant a new trial based on the "[i]nsufficiency of the evidence to justify the verdict[.]" ... The court did not abuse its discretion in ruling that the jury's verdict was contrary to the greater weight of all the evidence in the case.

Rule 59(a)(7) permits a new trial for insufficient evidence, but a court abuses its discretion when it grants one by improperly shifting the plaintiff’s burden of proof to the defendant.

Hines v. Wal-Mart Stores East, L.P. · filed 2008-07-15(a)(7)

Here, while the trial court had discretionary authority to weigh the evidence that it deemed credible, the order reveals that the trial court misapprehended the law and improperly shifted plaintiff’s burden of proof to defendant. A discretionary ruling made under a misapprehension of the law, may constitute an abuse of discretion.

Under Rule 59(a)(7), denying a new trial is not an abuse of discretion when competent evidence supports the jury's verdict.

Vestal v. CAPITAL MARBLE CREATIONS, INC. · filed 2009-02-03Rule 59(a)(7)

North Carolina cases have held that when the jury's verdict is supported by competent evidence, it is not an abuse of discretion for the trial court to deny a motion for new trial under Rule 59(a)(7).

Rule 59(a)(7) permits a new trial when the evidence does not support the verdict, including a damages award.

Scheerer v. Fisher · filed 2015-06-02Rule 59(a)(7)

A new trial may be ordered on the grounds of "[i]nsufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]" N.C. Gen.Stat. § 1A-1, Rule 59(a)(7) (2013). ... Since we conclude that the evidence does not support the jury's award, we vacate the award of damages and remand for a new trial on the issue of damages.

Rule 59(a)(7) permits a new trial when the evidence is insufficient to justify the verdict; a grant on that ground is reviewed for abuse of discretion.

Jones v. Corn · filed 2024-05-07Rule 59(a)(7)

Following these principles, Rule 59 of the North Carolina Rules of Civil Procedure allows a trial court to grant a new trial when the evidence is insufficient “to justify the verdict.”

Rule 44 governs proof of official records; an exhibit that does not comply with it may be excluded from evidence.

Neff v. Queen City Coach Co. · filed 1972-11-22

G.S. 1A-1, Rule 44 of the North Carolina Rules of Civil Procedure provides for the method of proof of official records. Defendant’s proffered Exhibit 1 conformed neither with 49 U.S.C. § 16(13) nor with G.S. 1A-1, Rule 44, and was properly excluded from evidence.

A register of deeds’ certification appearing on the documents defeats an objection that they lack authentication under Rule 44(a).

Hi-Fort, Inc. v. Burnette · filed 1979-07-31Rule 44(a)

She contends that there was no authentication of either document shown in the record, because there was no certificate and official seal of the Register of Deeds appearing on the document as required by G.S. 1A-1, Rule 44(a) and G.S. 8-18. To the contrary, however, the certification of the Register of Deeds of Swain County clearly appears upon the face of the documents.

Rule 44 allows official legislative minutes to be authenticated by a custodian who testifies that the copy accurately reflects the original.

Morgan v. Polk County Board of Education · filed 1985-04-16Rule 44

The minutes were introduced through Mr. George Hall, who testified that he was an administrative officer for the General Assembly and custodian of materials contained in the legislative library and that the minutes were a true and accurate copy of the original of the minutes. We hold this was sufficient authentication of the official minutes.

Rule 44(a) permits authentication of a foreign judgment through an attested copy accompanied by a judge’s certificate that the attesting officer has custody of the record.

Lust v. Fountain of Life, Inc. · filed 1993-05-18Rule 44(a)

Because the copy of the judgment, as an official record, was “attested by the officer having the legal custody of the record . . . and accompanied with a certificate [from a judge of a court of record of the political subdivision in which the record is kept] that such officer has the custody,” it was thus properly authenticated consistent with Rule 44. N.C.G.S. § 1A-1, Rule 44(a) (1990).

Rule 13(g) permits a defendant to bring a cross-claim against a codefendant.

Mann v. Virginia Dare Transportation Co. · filed 1973-01-17Rule 13(g)

The cross-claim of defendant Virginia Dare against defendant Carolina is permitted by G.S. 1A-1, Rule 13 (g) of the Rules of Civil Procedure effective 1 January 1970.

Rule 13(g) permits, but does not require, a party to bring a cross-claim.

Cyclone Roofing Co. v. David M. LaFave Co. · filed 1984-03-20Rule 13(g)

Here, after originally filing a claim of line, appellee invoked the jurisdiction of the court by filing a cross-claim against appellants, and demanding a jury trial. Appellee was under no compulsion to do so; under the Rules of Civil Procedure, such a claim was permissive rather than compulsory.

A properly filed crossclaim survives the plaintiff’s dismissal of all claims unless the crossclaim depends on the original claim or is purely defensive.

Jennette Fruit & Produce Co. v. Seafare Corp. · filed 1985-07-02Rule 13(g)

We thus hold that, unless a crossclaim is dependent upon plaintiffs original claim (as would be, e.g., a crossclaim for indemnity or contribution) or is purely defensive, a plaintiffs dismissal of its claims against all defendants does not require dismissal of crossclaims properly filed in the same action.

Rule 13(g) requires a person or entity asserting a cross-claim in a pleading to be a party to the action.

Outlaw v. Johnson · filed 2008-05-06Rule 13(g)

Under Rule 13(g), in order for a person or entity to assert a cross-claim in a pleading, that person or entity must be a party to the action.

Rule 54(a) defines a final judgment as one that determines the rights of the parties.

Hinson v. Hinson · filed 1973-03-14(a)

Did the trial court err in concluding that the judgment entered by Judge Copeland on 18 March 1968 was a final judgment? We answer in the negative. ... G.S. 1A-1, Rule 54(a) provides: “A judgment is either interlocutory or the final determination of the rights of the parties.”

Rule 54 does not make an appeal premature when orders allowing dismissal motions would bind the parties at a trial de novo.

Wilson v. Bob Robinson's Auto Service, Inc. · filed 1973-11-28

Bob Robinson’s contends that this appeal is premature and should be dismissed since under G.S. 1A-1, Rule 54, no final judgment has been entered. ... Bob Robinson’s contention that the trial court’s orders allowing the motions in the case at bar are binding in the trial de novo but that the plaintiff and Southwest have no present right of appeal as to those orders is not consistent with Gillikin, supra.

Rule 54(b) requires a determination that there is no just reason for delay before a judgment resolving fewer than all claims can be immediately reviewed.

Oestreicher v. American National Stores, Inc. · filed 1976-01-06(b)

The judgment is not final and not presently “subject to review either by appeal or otherwise.” G.S. 1A-1, Rule 54(b) ; Raynor v. Mutual of Omaha, 24 N.C. App. 573, 211 S.E. 2d 458 (1975) ; Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E. 2d 41 (1975), cert. denied, 288 N.C. 241 (1975) ; Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

Under Rule 54(a), an order setting aside a default judgment is interlocutory when further action by the trial court is required.

Bailey v. Gooding · filed 1980-10-07Rule 54(a)

Judicial judgments, orders and decrees are either “interlocutory or the final determination of the rights of the parties.” G.S. 1A-1, Rule 54(a) (1969). ... Unquestionably, the order of Judge Stevens setting aside the default judgment is interlocutory; it does not finally dispose of the case and requires further action by the trial court.

Rule 54(a) treats an order leaving claims unresolved as interlocutory.

Evans v. Evans · filed 2003-06-17Rule 54(a)

An order “is either interlocutory or the final determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (2001). ... In the present case, the trial court’s order did not resolve the parties’ respective claims for equitable distribution and for attorney’s fees, and did not rule on defendant’s claim for alimony. We conclude that the order from which defendant appeals was interlocutory.

Rule 54 does not permit appellate review of an unresolved notice decision that is not final.

Alexander v. DaimlerChrysler Corp. · filed 2003-07-01Rule 54(b)

According to Rule 54, appellate review is not proper because the trial court has not issued a final decision on notice.

Rule 54(a) treats an order requiring further trial court action to resolve the matter as interlocutory.

State v. Smith · filed 2004-07-06Rule 54(a)

Under N.C. Gen. Stat. § 1A-1, Rule 54(a) (2003), a judgment is either final or interlocutory. ... This order is not a final judgment because it does not dispose of the matter as to all the parties, leaving nothing to be judicially determined between them in the trial court. Instead, the order is interlocutory because the lower court must take further action to settle the dispute.

Rule 60(b) relief requires a final judgment or order; a motion filed before one exists is improper.

Etter v. Pigg · filed 2006-01-03(b)

As there was no final judgment or order, respondents' Motion for Relief from Judgment or Order could not, as a matter of law, have been proper under Rule 60(b), and the trial court should not have considered the motion.

Rule 54 does not treat a dismissal without prejudice as a final judgment when the plaintiff may refile the remaining claims.

HILL EX REL. HILL v. West · filed 2006-04-04Rule 54

In our view, the consent order of 19 April 2005 is not a "final" judgment as contemplated by Rule 54, as it is not a "final determination of the rights of the parties" because plaintiffs' rights as to Teresa Henson West have not been determined. Rather, plaintiffs' rights as to Teresa Henson West are "in limbo" as plaintiffs still have the opportunity to refile their action against her.

Service on a natural person under Rule 4(j)(1)a requires strict compliance with the prescribed procedure; otherwise service is invalid.

Williams v. Hartis · filed 1973-04-25Rule 4(j)(1)a

Statutory provisions prescribing the manner of service of process must be strictly construed, and the prescribed procedure must be strictly followed; and, unless the specified requirements are complied with, there is no valid service.

Rule 4(j)(6) permits service on a corporation through an agent authorized by statute, by an agency implied in law, or by estoppel.

Simms v. Mason's Stores, Inc. (NC-1) · filed 1973-05-23(j)(6)

The phrase “an agent authorized ... by law to be served” includes within its scope state statutes vesting authority in certain persons to receive process, agencies implied in law, and agencies by estoppel.

Rule 5(b)’s service requirement does not turn a counterclaim or cross claim arising from the same transaction into separate litigation.

In Re Foreclosure of Deed of Trust From Gardner · filed 1974-02-06Rule 5(b)

This requirement, however, does not make a new or separate litigation out of a counterclaim or cross claim which arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.

Rule 4(j)(6)(a) does not govern service of process on a corporate garnishee; G.S. 1-440.26(a) governs instead.

CAROLINA PAPER COMPANY, INC. v. Bouchelle · filed 1974-03-13Rule 4(j)(6)(a)

However, G.S. 1-440.26(a) has not been changed and continues to govern service of process in garnishment proceedings. Hence, Rule 4(j) (6) (a) has no application to this case.

Rule 4(j)(9)(b) permits service on a nonresident defendant by registered mail, return receipt requested, when the court has grounds for personal jurisdiction.

Chadbourn, Inc. v. Katz · filed 1974-07-01Rule 4(j)(9)(b)

Service of process was made upon defendant at defendant’s address by registered mail, return receipt requested, in accordance with G.S. 1A-1, Rule 4(j) (9) (b). We are of the opinion that the trial court has jurisdiction over the defendant by reason of the contract to convey land situated in North Carolina; that substituted service of process by registered mail, return receipt requested, was a proper means of acquiring personal jurisdiction over defendant; and that the requirements of due process and notice were afforded the foreign defendant by the substituted service of process in accordance with the North Carolina General Statutes.

Rule 4(j)(9)b permits service on a nonresident defendant by registered mail, return receipt requested.

Chadbourn, Inc. v. Katz · filed 1974-10-10Rule 4(j)(9)b

Service of process was made upon defendant at his New York address by registered mail, return receipt requested, in accordance with G.S. 1A-1, Rule 4(j) (9)b, North Carolina Rules of Civil Procedure. The registered receipt discloses that summons and complaint were actually delivered to Daniel Katz personally.

Rule 4(j)(1)a permits substituted service at a defendant’s dwelling house or usual place of abode, and the court held that the defendant’s North Carolina residence qualified.

Van Buren v. Glasco · filed 1975-08-20(j)(1)a

Under these facts it is our opinion that the Sanford residence qualified as appellant’s “dwelling house or usual place of abode” within the meaning of Rule 4(j) (l)a.

Rule 4(j)(1)(a) requires delivery at the defendant’s dwelling house or usual place of abode; a return showing delivery to someone who lives there does not establish that delivery occurred there.

Guthrie v. Ray · filed 1976-10-06(j)(1)(a)

The return clearly fails to disclose that service was had on the defendant by leaving a copy of the summons and complaint at defendant’s dwelling house or usual place of abode as required by G.S. 1A-1, Rule 4(j) (1) (a).

Rule 4(j)(9)(b) permits service by registered or certified mail delivered to the party’s address and received by a person of reasonable age and discretion, while Rule 55(b)(1) permits the clerk to enter default judgment when the claim is for a sum certain.

Associates v. Tobler · filed 1977-03-02(j)(9)(b); (b)(1)

Thus, the provision in Rule 4(j) (9) (b) providing that service of process will be complete when copies of the summons and complaint are “delivered to the addressee,” contemplates merely that the registered or certified mail be delivered to the address of the party to be served and that a person of reasonable age and .discretion receive the mail and sign the return receipt on behalf of the addressee. ... Obviously plaintiff’s claim for relief, which was for less than the face amount of the promissory notes, established a “sum certain” within the meaning of Rule 55(b) (1), and the clerk had authority under the circumstances of this case to enter the final judgment.

Rule 4(j)(9)(b) requires an affidavit with specified information to prove service by registered mail when service is challenged.

Dawkins v. Dawkins · filed 1977-03-02(j)(9)(b)

Defendant made a special appearance to challenge the service of process upon him. In this circumstance the rule requires an affidavit containing certain information showing the circumstances which warrant the use of service by registered mail, and this affidavit constitutes proof of service of process. The language of the statute is explicit and mandatory. The return receipt of registered mail, without the accompanying affidavit which is required, is insufficient to prove service of process by mail.

Rule 4(j)(1)(a) permits service on a natural person by leaving the summons and complaint at the defendant’s dwelling or usual place of abode with a suitable person who lives there, and service elsewhere is invalid.

Guthrie v. Ray · filed 1977-06-13(j)(1)(a)

Therefore, where service of process is had by leaving the summons and complaint with a person other than the named defendant the substitute person must be a “person of suitable age and discretion,” who lives with defendant in his “dwelling house or usual place of abode,” and the summons must be left with the substitute person at their usual place of abode.

Rule 4(j)(9)(b) permits service by registered or certified mail without requiring the sheriff to initiate the mailing.

Poole v. Hanover Brook, Inc. · filed 1977-12-07(j)(9)(b)

We find nothing in Rule 4(j)(9)(b) or elsewhere that requires that service by registered or certified mail be initiated by the sheriff of the county in which process is issued.

Rule 4(j)(9)b authorizes service of process by registered or certified mail on a party who cannot, after due diligence, be served within North Carolina and is not an inhabitant of the state.

North Brook Farm Lines, Inc. v. McBrayer · filed 1978-01-17Rule 4(j)(9)b

G.S. 1A-1, Rule 4(j)(9)b clearly authorizes service of process by registered or certified mail on any party to an action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, where the party to be served cannot after due diligence be served within, and is not an inhabitant of, this state.

Rule 4(b) permits service on a corporation through a specified officer, director, or agent when the summons and complaint clearly identify the corporation as the defendant.

Wiles v. Welparnel Const. Co., Inc. · filed 1978-05-08(b)

In view of this conclusion, we feel that the better rule in cases such as this is that when the name of the defendant is sufficiently stated in the caption of the summons and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent specified in N.C.R. Civ. P. 4(j)(6), is adequate to bring the corporate defendant within the trial court’s jurisdiction.

Rule 4(j)(9)(b) permits service by registered or certified mail when a person receives and signs the receipt on behalf of the addressee; the addressee's personal signature is not required.

Matter of Estate of Cox · filed 1978-06-06(j)(9)(b)

We hold, therefore, that the court erred in concluding that service of process was insufficient because the return receipt was not personally signed by respondent.

Rule 4(b) requires the summons to be directed to the defendant, Rule 4(j)(6) permits service on specified corporate officers, directors, or agents, and Rule 15(a) requires leave to amend to be freely given when justice so requires.

Gro-Mar Public Relations, Inc. v. Billy Jack Enterprises, Inc. · filed 1978-06-20Rule 4(b), Rule 4(j)(6), Rule 15(a)

Here it is abundantly clear from the summons caption and the complaint that the entity being sued is Billy Jack Enterprises, Inc. and that proper service was had in compliance with G.S. 1A-1, Rule 4(j)(6). ... We conclude that the trial court should have allowed plaintiff to amend its complaint. ... Rule 15(a) states in pertinent part: “. . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . .”

Rule 4(j)(9)b permits service by certified mail when the mail is delivered to the party's address and received by a person of reasonable age and discretion on the addressee's behalf.

Smith v. American Radiator & Standard Sanitary Corp. · filed 1978-11-07Rule 4(j)(9)b

Rule 4(j)(9)b does not require service by certified mail to be accomplished only by delivery of process personally to. the addressee. The rule requires only that the certified mail “be delivered to the address of the party to be served and that a person of reasonable age and discretion receive the mail and sign the return receipt on behalf of the addressee.”

Rule 4(j)(6) permits service on a corporation when the summons sufficiently identifies the corporation as the party being sued and is served on its agent.

Parris v. Garner Commercial Disposal, Inc. · filed 1979-03-20Rule 4(j)(6)

The record shows that defendant’s statutory agent for service of process in Connecticut was served with a copy of the summons. We hold that service of process was sufficient in this case to apprise defendant that it was the party being sued. Thus, if the court had jurisdiction over the defendant, the service of process was sufficient under G.S. 1A-1, Rule 4(j)(6).

Rule 4(e) discontinues an action against an unserved defendant when no endorsement or alias summons is obtained within the time allowed by Rule 4(d); a later alias summons starts the action as of its issuance date.

Lackey v. Cook · filed 1979-04-03(e)

When in the present case there was neither endorsement by the clerk nor issuance of alias summons within the time specified in G.S. 1A-1, Rule 4(d), the original action was discontinued as to the defendant. Thereafter, an alias summons could be issued, but by express language of G.S. 1A-1, Rule 4(e), “the action shall be deemed to have commenced on the date of such issuance.”

Rule 4(e) discontinues an action against defendants who were not properly served when the plaintiff fails to obtain a timely summons endorsement or alias or pluries summons; a later voluntary dismissal does not preserve that action.

Hall v. Lassiter · filed 1979-11-20Rule 4(e)

Defendants were not served properly and the action of 23 June 1977 was discontinued pursuant to Rule 4(e) well before plaintiff voluntarily attempted to dismiss the action pursuant to Rule 41(a)(1).

Under Rule 4(b), a complaint and summons naming a corporation’s division do not serve the corporation itself, even if they reach someone authorized to receive its process.

Crawford v. Aetna Casualty & Surety Co. · filed 1979-12-18Rule 4(b)

Complaint and summons directed to a defendant named as “MICHIGAN TOOL COMPANY, A Division of Ex-Cell-0 Corporation” is not service on the entity Ex-Cell-0 Corporation even if the complaint and summons reach the hands of someone obligated to receive service in behalf of Ex-Cell-O.

Rule 4(j)(9)(b) requires a proper affidavit to support service by certified mail; without one, service is fatally defective.

Lynch v. Lynch · filed 1980-03-04Rule 4(j)(9)(b)

The required accompanying affidavit showing the circumstances warranting the use of service by certified mail required by G.S. 1A-1, Rule 4(j)(9)(b) was not filed until 19 January 1979. We note that the affidavit does not state that copies of the summons, complaint, and order were deposited in the post office for mail by registered or certified mail, return receipt, as required by Rule 4(j)(9)(b). Without a proper and sufficient affidavit as required, the service is fatally defective.

Rule 4(e) discontinues an action when process is not served and no extension or alias or pluries summons is issued; a later motion does not revive it.

Robertson v. Smith · filed 1980-03-04Rule 4(e)

No service of process being had and no endorsement for an extension of time or alias or pluries summons being issued, the action was discontinued on 3 January 1979 under G.S. 1A-1, Rule 4(e). The plaintiff on 6 April 1979 filed a motion in the Durham County action praying for a change of venue or that the action, be dismissed. We hold that the filing of this motion did not revive an action that had been discontinued by operation of law.

A finding that an employee holds a management position does not, by itself, establish that the employee is a managing agent for service of process on a corporation.

Williams v. Burroughs Wellcome Co. · filed 1980-05-06Rule 4(j)(6)(a)

We hold that this finding is insufficient in itself to support the conclusion that James Rostar was a “managing agent” of defendant Burroughs Wellcome Company within the meaning of G.S. 1A-1, Rule 4(j)(6).

Rule 4(j)(9)(b) provides for substituted service by registered or certified mail when personal service is unavailable.

Canterbury v. Monroe Lange Hardwood Imports Division of MacRose Industries Corp. · filed 1980-08-05(j)(9)(b)

Barring the ability to personally serve the defendant, plaintiff’s proper recourse was substituted service by way of registered or certified mail pursuant to G.S. § 1A-1, Rule 4(j)(9)(b).

A Rule 4(e) discontinuance occurs by operation of law and may be revived by an endorsed summons or an alias or pluries summons; it is not a Rule 41(b) dismissal.

Central Systems, Inc. v. General Heating & Air Conditioning Co. of Greenville, Inc. · filed 1980-08-05Rule 4(e); Rule 41(b)

We believe a comparison of the two sections shows that a discontinuance under Rule 4(e) is not analagous to a dismissal under Rule 41(b). Under Rule 41(b), actions are dismissed by the court on motion of defendants. Under Rule 4(e), actions are discontinued by operation of law but may be revived by an endorsement on the summons or the issuance of an alias or pluries summons. Without more substantial guidance from the words of the rule, we do not feel we should hold a discontinuance under Rule 4(e) is the same as a dismissal under Rule 41(b).

Rule 4(j)(1)(a) requires substituted service to be left at the dwelling or usual abode shared by the person served and the person receiving the papers.

Hassell v. Wilson · filed 1980-11-04Rule 4(j)(1)(a)

These provisions require that the papers to be served be left: (1) at the dwelling house or usual place of abode of the person to be served (2) with a person of suitable age and discretion (3) who resides with the person to be served. The papers, in other words, must be left at a place which constitutes the dwelling of both the person to be served and the person with whom the papers are left.

Rule 4(j)(1)(a) requires substituted service papers to be left at the dwelling of the person served with a suitable resident; a return that omits the place of service does not show compliance.

Hassell v. Wilson · filed 1980-11-04Rule 4(j)(1)(a)

Here the place of service is not mentioned in the return; place is a prerequisite to valid substituted service under Rule 4(j)(1)(a); and place must be stated in the return under G.S. 1-75.10. Therefore the return was insufficient on its face to show valid service.

Rule 4(j)(9)b requires affidavits to prove service by certified mail; a return receipt alone is insufficient.

Lynch v. Lynch · filed 1981-02-02Rule 4(j)(9)b

Since plaintiff failed to file the affidavits required by Rule 4(j)(9)b, the return receipt of certified mail was insufficient to prove service of process, and plaintiff was never properly served in this action.

Rule 4(j)(5)(c) requires personal service on specified board of education officials or agents; leaving process with someone else does not confer personal jurisdiction, even if the board receives actual notice.

Long v. Cabarrus County Board of Education · filed 1981-06-16Rule 4(j)(5)(c)

The service of process in this action was not performed in accordance with the clearly stated, explicit provisions in Rule 4(j)(5)(c) which require personal service on certain named officials or agents, and does not allow for leaving the process with other persons, as is allowed when the action is against a natural person.

Rule 4(j)(9)b permits service by registered or certified mail without filing affidavits, but requires them before a default judgment or when the served party appears and challenges service.

Lynch v. Lynch · filed 1981-07-08Rule 4(j)(9)b

The statute specifies two circumstances under which the affidavits described therein must be filed; first, before judgment by default may be had on such service, and second, when the party served appears in the action and challenges such service upon him. Thus, a party may be properly served by registered or certified mail without filing any affidavits, and such process shall be complete on the day the summons and complaint are delivered to the address thereon.

Rule 4(j)(1) requires service on a sole proprietorship through its owner; attempting service under the rule for associations is defective.

Park v. Sleepy Creek Turkeys, Inc. · filed 1983-02-01Rule 4(j)(1)

We hold that service of process was defective in that plaintiff Park failed to comply with the mandatory requirements of G.S. 1A-1, Rule 4(j)(l) for service of process on a sole proprietorship, and attempted service instead on Amchick as an association under G.S. 1A-1, Rule 4(j)(8).

Rule 4 permits service on a city by certified mail addressed to its city manager, with a return receipt, even when the annexation review statute specifies registered mail.

In Re Annex. Ord. No. 1219 Adopt. by Asheville · filed 1983-06-21(j)(5)a

We are persuaded that the use of certified mail in this case accomplished exactly the same basis for proof of service as would have been accomplished by use of registered mail and that the trial court properly denied Asheville's motion to dismiss.

Rule 4(j)(6)c’s notice requirements do not apply to OSHA citations because G.S. 95-137(b)(l) provides the notice procedure.

House of Raeford Farms, Inc. v. Brooks · filed 1983-07-05Rule 4(j)(6)c

The notice requirements of G.S. 1A-1, Rule 4(j)(6)c are thus statutorily inapplicable.

Rule 4(j3)(iv)’s service requirements are met when the clerk sends process to the Secretary of State as the corporation’s agent and the Secretary mails it to the corporation’s foreign business address by registered mail, return receipt requested.

Bush v. BASF Wyandotte Corp. · filed 1983-09-20Rule 4(j3)(iv)

The Secretary of State sent the summons and complaint to CTC’s and Corona ver ken’s business addresses in Sweden by registered mail, return receipt requested. This procedure met the service of process requirements of G.S. 1A-1, Rule 4(j3)(iv).

Rule 4(j)(5)a permits service on a city by certified mail, return receipt requested, addressed to its mayor, city manager or clerk.

Lugo v. City of Charlotte · filed 1984-01-20Rule 4(j)(5)a.

N.C.G.S. § 1A-1, Rule 4(j)(5)a., states that service upon a city may be properly completed “by mailing a copy of the summons and of the complaint, ... certified mail, return receipt requested, addressed to [the city’s] mayor, city manager or clerk.”

Rule 4(j)(1)(c) permits service by certified mail at a person’s office when the complaint is addressed to the person and delivered only to that addressee.

Waller v. Butkovich · filed 1984-04-17Rule 4(j)(1)(c)

The language of the rule makes no reference to home or office that is relevant here; it requires simply that a complaint sent by certified mail be “addressed to the party to be served, and delivering to the addressee only.”

Rules 4(a) and 4(d) require delivery of the complaint and summons for service; without an attempt at service, an expired summons cannot be extended by endorsement or alias summons.

Adams v. Brooks · filed 1985-03-19Rule 4(a), (d)

We hold that the plaintiffs failure, after the timely filing of her complaint and summons, to comply with G.S. 1A-1, Rule 4(a) and (d) caused the original summonses to expire on 4 August 1979, since it was never delivered to any sheriff for service prior to the first endorsement extending time. Consequently, the summonses issued herein on 5 July 1979 could not be used as a basis for an extension of time for service. Every later endorsement simply constituted the filing of this action as of the date of each respective endorsement.

Rule 4(j)(5)(b) requires service on a county through its manager or the chairman, clerk, or a member of its board of commissioners; service on the county attorney is ineffective.

In Re Appeal of Brunswick County · filed 1986-06-17Rule 4(j)(5)(b)

The county attorney is not the person authorized to accept service for the county. Service upon the county manager or on the chairman, clerk or any member of the board of commissioners is necessary for service upon the county to be effective. G.S. 1A-1, Rule 4(j)(5)(b).

Rule 4(j)(6)(c) requires mail served on a corporation to be addressed to an officer, director, or agent and served on that person.

United States ex rel. Combustion Systems Sales, Inc. v. Eastern Metal Products & Fabricators, Inc. · filed 1986-10-21Rule 4(j)(6)(c)

Plaintiff attempted to use N.C. Gen.Stat. § 1A-1, Rule 4(j)(6)(c) (1983), which requires the mail to be specifically addressed to an officer, director, or agent of the corporation, and be served on that person. Plaintiff, however, merely addressed the article to the corporation.

Rule 4 permits service at a defendant’s dwelling house by leaving the papers with a resident of suitable age and discretion.

Olschesky v. Houston · filed 1987-02-17Rule 4(j)(1)a

Therefore, after reviewing the record, this Court concludes that Deputy Greer’s testimony and the two returns of service are competent evidence which would support the trial court’s finding that defendant resided at 310 Pine Hills Drive, with his brother Robert Houston, on 14 and 20 July 1981, and that Robert Houston was a person of suitable age and discretion to accept service. Such a finding would support the conclusion that proper service on defendant had been accomplished pursuant to the requirements of N.C.G.S. § 1A-1, Rule 4(j)(l)a.

Rule 4(j)(6) permits service of process outside North Carolina.

Southern Pride, Inc. v. Turbo Tek Enterprises, Inc. · filed 1987-11-18Rule 4(j)(6)

Since North Carolina’s long-arm statute (N.C.Gen.Stat. § 1A-1, Rule 4(j)(6)) permits out-of-state service of process, a plaintiff in a federal court case held in North Carolina is entitled to reach beyond the North Carolina borders to serve a defendant.

Rule 4(j)(5)(a) requires service on a city through a named official; delivering the summons to the mayor’s assistant does not give the court personal jurisdiction, even if the city receives notice.

Johnson v. City of Raleigh · filed 1990-04-03(j)(5)(a)

The circumstances of this case show that, while delivery of the summons to the mayor’s assistant was sufficient to give the City notice of the suit, the delivery of the summons to a person other than the named official was insufficient to give the court personal jurisdiction over the City.

A Rule 4 notice defect in an adoption proceeding does not automatically require setting aside the proceeding when the person had actual notice.

In Re the Adoption of P. E. P. · filed 1990-09-04Rule 4

Even if he was entitled to notice pursuant to Rule 4, Rowe's actual notice of the proceeding renders the defect procedural in nature and does not automatically require that the proceeding be set aside.