N.C. Gen. Stat. § 1A-1

Rule 9(b) requires fraud allegations to be stated with particularity; allegations identifying a written representation’s time, author, and contents can satisfy that requirement.

Value Health Sols. Inc. v. Pharm. Research Assocs. · filed 2020-05-22Rule 9(b)

In addition, the time, date, author, and contents of the LOI are alleged particularly. The Court concludes that Plaintiffs’ allegations about the affirmative representations made in the LOI, generously read, are particular enough to survive dismissal under Rule 9(b).

Rule 9(b) requires a fraudulent concealment claim to be pleaded with enough particularity to give the defendant notice of the alleged fraud.

Merrell v. Smith · filed 2020-12-22Rule 9(b)

In addition, Plaintiffs’ Complaints on balance contain sufficient factual allegations to put CBB on notice of the nature of Plaintiffs’ fraud claim against CBB, consistent with the Lawrence factors as well as the purpose behind the Rule 9(b) particularity requirement.

Rule 9(b) requires the circumstances constituting fraud to be pleaded with particularity, but does not require the alleged damages to be pleaded with particularity.

Loyd v. Griffin · filed 2021-09-01Rule 9(b)

However, Loyd has not cited to any controlling law—and the Court’s own research has not revealed any—providing that this particularity requirement extends to the alleged damages for fraud. ... As a result, the Court is unpersuaded by Plaintiff’s contention that the damages resulting from the alleged fraud must be pled with “specificity” (i.e., with particularity).

Rule 9(b) requires fraud to be pleaded with particularity and applies to Chapter 75 claims premised on deceptive conduct.

Botanisol Holdings II, LLC v. Propheter · filed 2021-10-18(b)

With respect to the Rule 9(b) standard, because the Chapter 75 claim is premised on deceptive conduct, the heightened pleading standard of Rule 9(b) applies.

Rule 9(b) requires a fraud complaint to identify the time, place, and content of the representation, who made it, and what was obtained.

State v. Kinston Charter Acad. · filed 2021-12-17Rule 9(b)

In order to satisfy the particularity requirement delineated in N.C.G.S. § 1A-1, Rule 9(b), the plaintiff must allege the specific “time, place and content of the fraudulent representation, the identity of the person making the representation and what was obtained as a result of the fraudulent acts or representations.” Terry v. Terry, 302 N.C. 77, 85 (1981).

Rule 9(b) requires fraud allegations to state the circumstances of the alleged misrepresentation with particularity, including when and where it occurred.

Roberson v. Trupoint Bank · filed 2021-12-21Rule 9(b)

Plaintiff fails to allege when, where and how such encouragement occurred. Such allegations are insufficient to allege fraud with particularity as is required by Rule 9(b).

Rule 9(b) requires fraud, duress, and mistake allegations to state the circumstances with particularity, while permitting intent and other mental conditions to be alleged generally.

Columbus Life Ins. Co. v. Wells Fargo Bank, N.A. · filed 2022-05-03(b)

Claims for fraud are subject to the heightened pleading standard set out in Rule 9(b), which requires that “[i]n all averments of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” N.C.G.S. § 1A-1, Rule 9(b); see Terry v. Terry, 302 N.C. 77, 84 (1981) (“[A]llegations of fraud must be pleaded with greater particularity[.]”).

Rule 9(b) requires a fraud claim to be pleaded with particularity.

Ehmann v. Medflow, Inc. · filed 2022-09-12Rule 9(b)

Rule 9(b) requires that a claim for fraud be pled with particularity. N.C.G.S. § 1A-1, Rule 9(b).

Rule 9(b) requires a fraud pleading to state specific facts about the representation, including its time, place, content, speaker, and what was obtained.

Belmont Korners, LLC v. Lynk Invs., LLC · filed 2026-06-16Rule 9(b)

To sufficiently plead fraud consistent with the heightened standards of Rule 9(b), a plaintiff must allege definite and specific facts supporting the claim, including time, place, and content of the fraudulent representation, identity of the person making the representation and what was obtained as a result of the fraudulent acts or representations.

Rule 9(b) requires a fraud plaintiff to plead specific facts about the alleged misrepresentation, including which statements were false.

Olds v. Olds · filed 2026-06-25Rule 9(b)

To sufficiently plead fraud consistent with the heightened standards of ... Rule 9(b), a plaintiff must allege definite and specific facts supporting the claim, including time, place and content of the fraudulent representation, identity of the person making the representation and what was obtained as a result of the fraudulent acts or representations. ... Plaintiff’s failure to specifically identify which statements are false makes his claims based upon fraud ripe for dismissal.

Rule 56(e) requires a party opposing a supported summary judgment motion to present specific facts showing a genuine issue for trial rather than rely on unverified pleading allegations.

Walden v. Morgan · filed 2006-10-17Rule 56(e)

When a motion for summary judgment is made and supported with affidavits, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. ... Plaintiffs' complaints are not verified. Plaintiffs rest solely on depositions in challenging the trial court's orders.

Rule 56(e) requires a party opposing a properly supported summary judgment motion to set forth specific facts showing a genuine issue for trial.

Hickory White Trucks, Inc. v. Bridges · filed 1976-08-04Rule 56(e)

The motion for summary judgment having been made and properly supported, Bridges could not “rest upon the mere allegation or denial of his pleading,” but was bound to “set forth specific facts” showing the existence of a genuine issue for trial.

Rule 56(c) sets the summary judgment movant's burden to show no genuine issue of material fact and entitlement to judgment as a matter of law, and Rule 56(e) requires the opponent to set out specific facts showing a genuine issue for trial.

Russo v. Mountain High, Inc. · filed 1978-10-03(c), (e)

First, we do not believe that Parker stands for the proposition that summary judgment is never appropriate in an action for fraud. Rather, the case simply held that defendant-movants in that case had failed to carry their burden under G.S. 1A-1, Rule 56(c), of showing the lack of a genuine issue as to a material fact and that they were entitled to judgment as a matter of law. ... In summary, we conclude that defendants John Hancock and Warren successfully carried the burden of negating an element of fraud by showing that any representations on their part as to acreage in the tract were neither made with knowledge of their falsity nor in culpable ignorance of their truth. Plaintiffs have failed to rebut this showing by setting forth specific facts establishing a genuine issue for trial as required by Rule 56(e).

Under Rule 56, a party opposing a supported summary judgment motion must present evidence of specific facts showing a genuine issue for trial and cannot rely on the pleadings alone.

Middleton v. Myers · filed 1980-01-08Rule 56(e)

Pursuant to G.S. 1A-1, Rule 56 (Summary Judgment), after defendant submitted this affidavit, plaintiff as the adverse party to the motion for summary judgment could not rest on the allegations of his pleadings. He was required to come forward with his own affidavits or evidence setting forth specific facts as to the maliciousness of defendant's prosecution. To withstand the defendant's summary judgment motion, these facts must show the existence of genuine issues for trial.

Rule 56(e) permits an opponent’s deposition testimony and affidavit to establish a genuine issue of material fact that precludes summary judgment.

First Citizens Bank & Trust Co. v. Holland · filed 1981-04-21(e)

Because defendant has introduced materials in his favor complying with the dictates of Rule 56(e) and Kidd v. Early, supra, and because his deposition testimony and affidavit raise a genuine issue of material fact as to the relationship of Hudson to plaintiff with respect to the $35,000 and $40,000 notes, summary judgment for plaintiff was not appropriate in this case.

Rule 56(e) requires a party opposing a supported summary judgment motion to offer evidence of a genuine factual dispute rather than rely on allegations in its pleadings.

Cox v. Haworth · filed 1981-10-20Rule 56(e)

The Hospital, having filed affidavits to support its motion for summary judgment, was entitled to summary judgment on the issue of liability based on respondeat superior because the Coxes did not offer competent evidence to show that Dr. Haworth was an agent of the Hospital. They chose instead to “rest upon the mere allegations” in their pleadings. This, they are not allowed to do.

Rule 56(e) requires a party opposing summary judgment to provide specific facts showing a genuine factual dispute rather than rely on allegations.

Orient Point Associates v. Plemmons · filed 1984-05-15Rule 56(e)

The defendants in response to a motion for summary judgment can no longer rely only on their allegations that the present road somehow, at some time, moved some distance south onto their property. See G.S. 1A-1, Rule 56(e).

Once the moving party meets its summary judgment burden, the opposing party must present specific facts showing a genuine issue for trial.

Cox v. Cox · filed 1984-06-18Rule 56(e)

If the moving party meets its burden, the burden then shifts to the opposing party to set forth specific facts, through affidavits or otherwise, showing that there is a genuine issue for trial.

Rule 56(e) requires a party opposing summary judgment to set out specific facts showing a genuine issue for trial; an affidavit that merely repeats unsupported denials is insufficient.

Dixie Chemical Corp. v. Edwards · filed 1984-06-05Rule 56(e)

We hold that this affidavit alone is insufficient to withstand the plaintiffs motion for summary judgment. The affidavit only restates the unsupported allegations previously made by the defendant in his answer and in his answers to plaintiffs interrogatories. G.S. 1A-1, Rule 56(e) provides that “an adverse party may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”

Rule 56(e) requires a party opposing a supported summary judgment motion to present evidence supporting its pleaded defenses; allegations alone do not create a genuine issue of material fact.

E-B Grain Co. v. Denton · filed 1985-02-19Rule 56(e)

In the instant case, defendant raised the affirmative defenses of waiver, estoppel, and laches in its answer. In response to plaintiffs motion for summary judgment, however, defendant did not come forward with any evidentiary material in support of its allegations. Consequently, the record discloses no genuine issue of material fact in this regard.

Under Rule 56, a party opposing summary judgment may not rely solely on allegations in its pleadings.

Land-Of-Sky Regional Council v. County of Henderson · filed 1985-12-03Rule 56(c)

The moving party may have the burden of establishing a lack of triable issues of fact but, the nonmoving party may not rest upon mere allegations of his pleadings.

Rule 56(e) requires a party opposing a supported summary judgment motion to present specific facts showing a genuine issue for trial.

Amoco Oil Co. v. Griffin · filed 1986-01-21Rule 56(e)

Once plaintiff has made and supported its motion for summary judgment, under section (e) of Rule 56 the burden is on the defendant to introduce evidence in opposition to the motion setting forth “specific facts showing that there is a genuine issue for trial.”

Rule 56(e) requires a party opposing summary judgment to present competent evidence of specific facts showing a genuine issue for trial.

Catawba County Horsemen's Ass'n v. Deal · filed 1992-08-04Rule 56(e)

This evidence was not competent to overcome plaintiff’s motion for summary judgment, however, and did not set forth specific facts showing the existence of a genuine issue for trial pursuant to Rule 56.

Rule 56(e) requires a party opposing summary judgment to present specific facts showing a genuine issue for trial rather than rely on pleading allegations.

Babb v. Harnett County Board of Education · filed 1995-03-21Rule 56(e)

In response to defendants’ motion for summary judgment, plaintiff offered no forecast of evidence to support his allegations that defendant Wortman’s assignment of teaching duties was done to retaliate against plaintiff. In opposing a summary judgment motion, a plaintiff “ ‘may not rest upon the mere allegations or denials of his pleadingfs], but his response, by affidavits or as otherwise provided in [G.S. 1A-1, Rule 56] must set forth specific facts showing that there is a genuine issue for trial.’ ”

An opposing party cannot defeat summary judgment with allegations in a pleading alone; it must offer evidence showing a genuine issue for trial.

Nicholson v. County of Onslow · filed 1994-09-20Rule 56(e)

Plaintiffs mere allegation in her pleadings that the defendants were on notice of any defect is not enough to overcome the summary judgment motion.

Rule 56(e) requires a medical malpractice plaintiff to present specific facts showing a genuine issue for trial once the defendant doctor supports summary judgment with affidavits denying a breach of the standard of care.

Weatherford v. Glassman · filed 1998-06-02Rule 56(e)

However, as this Court has stated, once a defendant doctor submits affidavits in support of his/her motion for summary judgment which aver that he/she has not breached the applicable standard of care, the burden then shifts to the plaintiff to “come forward with specific facts showing a genuine issue for trial.”

Rule 56(e) requires a party opposing summary judgment to identify specific facts showing a genuine issue for trial; a general denial in a verified answer is insufficient.

Daniel v. Daniel · filed 1999-02-02Rule 56(e)

This general denial is insufficient to “set forth [the] specific facts” at issue for trial, as required by Rule 56(e), and Defendant thus failed to rebut Plaintiffs motion for summary judgment.

Rule 56(e) requires a party opposing summary judgment to set forth specific facts by affidavits or otherwise showing a genuine issue for trial.

Dobson v. Harris · filed 2000-06-16(e)

Thereafter, plaintiff had the burden of setting forth specific facts “by affidavits or otherwise” showing a genuine issue existed as to whether defendant had made the alleged statements with actual malice. N.C.G.S. § 1A-1, Rule 56(e) (1999).

Rule 56(e) requires a party opposing summary judgment to set forth specific facts showing a genuine issue for trial rather than rely on pleading allegations.

Glenn-Robinson v. Acker · filed 2000-12-05Rule 56(e)

In the instant case, plaintiff “may not rest upon the mere allegations ... of [her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” G.S. § 1A-1, Rule 56(e). As plaintiff has provided no evidence beyond “mere allegations,” id., indicating the circumstances surrounding the incidents, we are unable even to infer that a false arrest or use of excessive force occurred therein. We thus decline to consider these incidents in our review of the propriety of the trial court’s summary judgment order.

Rule 56(c) requires a plaintiff opposing a supported summary judgment motion to show a genuine issue for trial with evidence.

Culler v. Hamlett · filed 2002-02-05Rule 56(c)

To survive the motion, the burden shifts to plaintiff to show that there is a genuine issue for trial. Plaintiff has failed to offer any evidence or counter-affidavits contesting the grounds for summary judgment set forth by defendant.

When a summary judgment movant challenges damages with evidence, the opposing party must present specific facts supporting damages or an excuse for not doing so; an unverified complaint and counsel’s forecast are insufficient.

Wall v. Fry · filed 2004-01-06Rule 56(e)

At this point it became incumbent upon plaintiffs, in order to survive summary judgment, to present specific facts supporting their allegation of damages, or an excuse for not doing so. Instead, plaintiffs, as they concede in their brief to this Court, relied on the allegations in the unverified complaint and a forecast of damages by plaintiffs’ counsel.

After the moving party supports a motion for summary judgment, Rule 56(c) requires the opposing party to show a genuine issue for trial or provide an excuse under Rule 56(f).

Mosely v. WAM, INC. · filed 2004-12-21Rule 56(c), (f)

The burden then shifted to American Food Corporation under section 1A-1, Rule 56(c) of the North Carolina General Statutes to show that there is a genuine issue for trial or provide an excuse for not doing so under Rule 56(f).

Rule 56(e) requires a party opposing a supported summary judgment motion to present specific facts showing a genuine issue for trial; allegations in the complaint alone are insufficient.

Brown v. City of Winston-Salem · filed 2005-07-05Rule 56(e)

Plaintiffs have failed to meet their burden under N.C. Gen.Stat. § 1A-1, Rule 56(e) with respect to each allegation.

Rule 56(e) requires a party opposing summary judgment to set forth specific facts showing a genuine issue for trial.

Cater v. Barker · filed 2005-08-16Rule 56(e)

After de novo review of the matter, we hold: (1) plaintiffs proffered sufficient pleadings and evidence to show defendant breached the Agreement and no genuine issues of material fact exist; and (2) defendant did not "set forth specific facts showing that there is a genuine issue for trial." N.C. Gen.Stat. § 1A-1, Rule 56(e).

A party opposing summary judgment must present specific facts supporting its claim rather than rely on allegations in the complaint.

Haynes v. B & B REALTY GROUP, LLC · filed 2006-08-01Rule 56(c)

At the summary judgment stage, plaintiffs cannot rely on the allegations of the complaint; rather, plaintiffs need to present specific facts to support their claim.

Rule 56(e) requires a party opposing summary judgment to present specific facts showing a genuine issue for trial.

Rogers v. LIFE PARTNERS, INC. · filed 2007-12-18Rule 56(e)

Pursuant to Rule 56(e) of the North Carolina Rules of Civil Procedure, plaintiffs were required to set forth specific facts addressing Rogers-Milton's lack of mental capacity on or about 5 November 1998.

Rule 56(e) requires a party opposing supported summary judgment to present specific facts rather than rely solely on allegations in the complaint.

Lockett v. SISTER-2-SISTER SOLUTIONS, INC. · filed 2011-01-04Rule 56(e)

Plaintiff relies solely upon the allegations of alter ego within his complaint, which contravenes the standards set forth in North Carolina General Statutes, section 1A-1, Rule 56(e).

Rule 56(c) does not permit a court to resolve conflicting expert testimony on summary judgment.

Perry v. Presbyterian Hospital · filed 2011-01-04Rule 56(c)

Ameen’s testimony was inconsistent on this point, but resolving that inconsistency is not appropriate when deciding a motion for summary judgment.

Once the moving party supports summary judgment, the opposing party must present substantial evidence of a genuine issue of material fact.

Williamson v. Long Leaf Pine, LLC · filed 2012-01-17Rule 56(e)

Petitioners, therefore, provided adequate evidence to shift the burden onto respondents, who had to prove the existence of a genuine issue of fact through substantial evidence.

Rule 56(e) requires a party opposing summary judgment to present specific facts showing a genuine issue for trial rather than rely on allegations in a pleading.

Norman v. N.C. Dep't of Admin. · filed 2018-02-06Rule 56(e)

The non-moving party survives the motion not by “rest[ing] upon the mere allegations” of her pleading, N.C. Gen. Stat. § 1A-1, Rule 56(e) (2015); rather, she “must come forward with specific facts showing a genuine issue for trial.” Beaver v. Hancock, 72 N.C. App. 306, 310, 324 S.E.2d 294, 298 (1985) (citation omitted).

After a summary judgment movant submits admissible evidence, the nonmovant must produce admissible evidence showing a genuine issue of material fact.

Denver Prop. Partners, LLC v. Sisson · filed 2019-04-01Rule 56(e)

Upon the filing of the Motion and Defendants’ submission to the Court of admissible evidence that, rather than accept the offer contained in the PBA, Plaintiffs rejected the offer by requesting changes thereto, Plaintiffs were obligated to come forward with admissible evidence from which the Court could find that a material issue of disputed fact existed as to Defendants’ forecast of evidence.

Rule 56(e) requires a party opposing summary judgment to present specific facts showing a genuine issue for trial; an unsupported allegation is insufficient.

Paxton v. Owen · filed 2022-12-20Rule 56(e)

Without presenting specific facts demonstrating the Will was executed as a result of Propounder’s fraudulent and overpowering influence over Testator, Caveator’s allegation of undue influence is just that: a mere allegation unsupported by any forecast of evidence.

Rule 56(e) requires a party opposing summary judgment to set forth specific facts showing a genuine issue for trial.

Lucas v. Childress · filed 2025-10-15Rule 56(e)

Defendant has failed to show that the trial court applied the wrong standard to its inquiry into actual malice or that Plaintiff failed to “set forth specific facts showing that there is a genuine issue for trial,” N.C. Gen. Stat. § 1A 1, Rule 56(e), regarding actual malice.

Rule 56(e) requires a party opposing a supported summary judgment motion to present specific facts showing a genuine issue for trial; otherwise, summary judgment is entered if appropriate.

Hines v. Yates · filed 2005-07-05Rule 56(e)

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. ... Plaintiff has not presented any evidence to establish a genuine issue of material fact to support a claim for wrongful discharge against Yates.

Rule 60(b)(1) requires motions based on excusable neglect within one year, while Rule 60(b)(6) permits relief for other justifying reasons within a reasonable time when competent evidence shows justice requires it.

Norton v. Sawyer · filed 1976-08-18(b)(1) and (b)(6)

While Rule 60(b) (6) vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice, nevertheless, we hold that a judge cannot do so without a showing based on competent evidence that justice requires it.

Rule 60(b) permits relief from a final judgment for excusable neglect or another reason justifying relief, subject to the court’s discretion.

Commercial Union Assurance Companies v. Atwater Motor Co. · filed 1978-02-21(b)(1), (b)(6)

The defendant also contends that it is entitled to relief under subsection (6) which allows the setting aside of a judgment for “[a]ny other reason justifying relief from the operation of a judgment.” The defendant argues that if it has not shown excusable neglect, subsection (6) allows this requirement to be waived in the ends of justice. Whether a court under subsection (6) may set aside a judgment in the ends of justice without a showing of any specific facts we need not now decide. We are bound by Judge Hobgood’s decision not to set the judgment aside under subsection (6) as well as subsection (1) if he did not abuse his discretion. We cannot hold that he abused his discretion in either instance.

Rule 60(b)(1) does not treat a defendant’s belief that the plaintiff cannot prevail as excusable neglect for failing to answer.

Boyd v. Marsh · filed 1980-07-01Rule 60(b)(1)

The fact that in the present situation he did not believe plaintiffs could prevail does not excuse his failure to file an answer and pursue his defense.

Rule 60(b)(1) permits relief from a judgment for excusable neglect, measured by what could reasonably be expected of a party attending to the case.

Overnite Transportation Co. v. Styer · filed 1982-05-04Rule 60(b)(1)

The evidence shows that although defendant’s name was misspelled in the caption of his case on the calendar, he assumed that the case calendared was his case. Defendant made no appearance in person or through counsel at the hearing on the motion and did not ask for a continuance, such actions being what may reasonably be expected of a party in paying proper attention to his case. His failure to take these actions was neglect, and it is not excusable. Therefore, the trial judge properly concluded that defendant failed to prove “excusable neglect” to relieve him from the judgment under G.S. 1A-1, Rule 60(b).

Rule 60(b) permits relief from a child support order but does not apply to an interlocutory order for alimony pendente lite.

Coleman v. Coleman · filed 1985-05-07Rule 60(b)

Given the interlocutory nature of an order for alimony pendente lite, which allows correction of any error at the district court’s final hearing on the matter, we hold that such an order is not a “final judgment, order, or proceeding” that can be the proper subject of a G.S. 1A-1, Rule 60(b) motion. ... Thus, the child support order was properly the subject of G.S. 1A-1, Rule 60(b) motion by defendant.

Rule 60(b)(1) requires both excusable neglect and a meritorious defense to set aside a judgment; merely denying a debt and asserting a defense is insufficient.

Chaparral Supply v. Bell · filed 1985-07-16(b)(1)

For a judgment to be set aside, the moving party must show both excusable neglect and a meritorious defense. ... To merely deny an indebtedness and assert the presence of a meritorious defense is not sufficient. ... Here, in addition to pleading "excusable neglect" by virtue of his having not attended the summary judgment hearing, defendant asserts in his G.S. 1A-1, Rule 60(b) motion that he is not indebted to plaintiff and that this denial of indebtedness is a meritorious defense. We disagree.

Rule 60(b)(1) does not provide relief from judgment when a party's failure to respond results from a lack of ordinary prudence rather than excusable neglect.

East Carolina Oil Transport, Inc. v. Petroleum Fuel & Terminal Co. · filed 1986-09-16Rule 60(b)(1)

Plaintiff did not produce the information until well after the time for filing a response to the counterclaim and after the hearing on summary judgment. This was not prudent behavior. We hold that plaintiff has shown no excusable neglect and is not entitled to relief under G.S. 1A-1, Rule 60(b)(1).

Rule 60(b)(1) permits relief from a judgment for excusable neglect when the moving party also has a meritorious defense; reliance on a spouse’s assurance that the matter was resolved can qualify under the circumstances.

Thomas M. McInnis & Associates, Inc. v. Hall · filed 1986-11-04(b)(1)

Instead, we narrowly interpret the trial court's ruling, upheld by the Court of Appeals, to mean that under the circumstances surrounding this case it was not unreasonable for Mrs. Hall to rely on her husband's assurance that the matter had been taken care of and thus that her actions constitute excusable neglect.

Rule 60(b)(1) requires a party seeking relief from a judgment for excusable neglect to exercise proper care in monitoring the case.

City Finance Co. of Goldsboro, Inc. v. Boykin · filed 1987-07-21Rule 60(b)(1)

Therefore, plaintiff has failed to demonstrate that it exercised the proper care necessary to establish excusable neglect and to justify setting aside the judgment entered against it.

Rule 60(b)(1) permits denial of relief for excusable neglect when defendants know their insurer will not defend but fail to answer despite having time and notice.

Hayes v. EVERGO TELEPHONE CO., LTD. · filed 1990-10-30(b)(1)

Finally, defendants urge this Court to reverse the trial court’s denial of their Rule 60 motion based upon their alleged showing of “excusable neglect” and the existence of a meritorious defense. G.S. 1A-1, Rule 60(b)(1). We find that the trial judge did not abuse his discretion in refusing to set aside the judgment on these grounds. ... We hold that under the circumstances, this was not an abuse of discretion.

Rule 60(b)(1) permits relief from an order dismissing an appeal when a court reporter’s misleading transcript dates constitute excusable neglect.

Anuforo v. Dennie · filed 1995-07-05Rule 60(b)(1)

Nonetheless, we hold that the court reporter's notation here that plaintiff "ordered" the transcript on 6 November 1993, coupled with her certification the transcript was "mailed" on 3 January 1994, indicating, however erroneously, that the transcript was prepared and delivered within 60 days, constitute excusable neglect justifying relief from the trial court's order dismissing plaintiff's appeal for the failure of counsel to seek an extension of time for production of the transcript under Rule 7(b)(1).

Under Rule 60(b), a meritorious defense is immaterial unless the movant shows excusable neglect.

Mitchell County Department of Social Services v. Carpenter · filed 1997-09-02Rule 60(b)(1)

Absent a showing of excusable neglect, any meritorious defense pled by the movant becomes immaterial.

Rule 60(b)(1) does not treat an attorney’s negligent conduct as excusable neglect; the court must assess the attorney’s behavior.

Briley v. Farabow · filed 1998-07-09Rule 60(b)(1)

Thus, we hold that an attorney’s negligent conduct is not “excusable neglect” under Rule 60(b)(1) and that in determining such, the court must look at the behavior of the attorney.

Rule 60(b) permits the Industrial Commission to grant relief from a late appeal based on excusable neglect.

Murray v. Ahlstrom Industrial Holdings, Inc. · filed 1998-11-03(b)(1)

Thus, it appears that counsel is arguing “excusable neglect,” as per Rule 60(b), even though it is not delineated in his motion. Pursuant to Rule 60(b), the Commission had the authority to grant the relief sought by plaintiff.

Rule 60(b)(1) allows a court to relieve a party from a final judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable neglect upon a proper showing.

Couch v. Private Diagnostic Clinic · filed 1999-05-04(b)(1)

Rule 60(b)(1) of the North Carolina Rules of Civil Procedure provides that upon a proper showing, "a court may relieve a party or his legal representative from a final judgment, order, or proceeding ... [because of a] [m]istake, inadvertence, surprise, or excusable neglect." N.C. Gen.Stat. § 1A-1, Rule 60(b)(1)(1990). ... Therefore, the voluntary dismissal of the Private Diagnostic Clinic, was not subject to being set aside under Rule 60(b)(1) and the trial court erred, as a matter of law, in reinstating the Private Diagnostic Clinic into the lawsuit.

Rule 60(b)(1) permits relief from a final judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable neglect.

Tepper v. Hoch · filed 2000-10-17(b)(1)

A finding that a judgment, or in this case a confirmation of a foreign support order, was entered due to the inadvertence of a party is sufficient to support a conclusion the confirmation is to be set aside. N.C.G.S. § 1A-1, Rule 60(b)(1). Accordingly, the trial court did not err in setting aside the confirmation of the Order.

Rule 60(b)(1) does not treat a party’s failure to obtain an attorney or mistaken belief that it will receive notice of a hearing date as excusable neglect warranting relief from a default judgment.

JMM Plumbing & Utilities, Inc. v. Basnight Construction Co. · filed 2005-03-15Rule 60(b)(1)

Basnight Construction’s failure to obtain an attorney and its mistaken belief that it would be informed of a hearing date does not constitute excusable neglect.

Rule 60(b)(1) does not provide relief for an attorney’s inexcusable neglect.

Horne v. Nash-Rocky Mount Board of Education · filed 2006-06-15(b)(1)

Plaintiff's attorney's actions amount to inexcusable neglect and Rule 60(b) relief is not warranted.

Rule 60(b)(1) does not provide relief for excusable neglect when a party is responsible for failing to respond to requests for admissions.

McKinley Building Corp. v. Alvis · filed 2007-06-05Rule 60(b)(1)

Defendants are responsible for the failure to respond to the requests for admissions, and we cannot find that such conduct constitutes "excusable neglect."

Rule 60(b)(1) does not treat an attorney's negligent representation as excusable neglect warranting relief from judgment.

SUBKHANGULOVA v. Dowdy · filed 2007-09-04Rule 60(b)(1)

Because negligent representation on the part of a party's attorney does not constitute excusable neglect under Rule 60(b)(1), the trial court did not err in denying Defendant's motion.

Rule 60(b)(1) permits relief from a judgment for excusable neglect when the party has a meritorious defense; documented domestic abuse and the opposing party’s failure to serve required papers can support that relief.

Elliott v. Elliott · filed 2009-10-06Rule 60(b)(1)

Liberally construing Rule 60(b), and in light of David’s documented history of domestic abuse against Lisa and plaintiffs’ violation of Rule 5, the trial court properly concluded that Lisa’s actions constituted excusable neglect under Rule 60(b)(1) and that she has a meritorious defense. We hold the trial court did not abuse its discretion by vacating the judgment entered against her.

Rule 60(b)(1) requires a party seeking to set aside a judgment to show both excusable neglect and a meritorious defense.

Rose v. Forester · filed 2009-11-17Rule 60(b)(1)

As Bowman has failed to show either excusable neglect or the existence of a meritorious defense, the trial court did not err in denying Bowman's Rule 60(b)(1) motion.

Rule 60(b)(1) does not treat an attorney's failure to respond to a claim as excusable neglect warranting relief from a default judgment.

Mkt. Am., Inc. v. Lin · filed 2015-06-16Rule 60(b)(1)

We are bound by our Supreme Court's precedent in Briley,and hold that Ms. Zhang's attorney's conduct in failing to respond to Mr. Lin's cross-claims is not "excusable neglect" under Rule 60.

Rule 4(b) requires a summons to be directed to each defendant and notify each to appear and answer; Rule 4(i) does not allow amendment to create personal jurisdiction where none was acquired.

Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp. · filed 1976-08-18Rule 4(b), Rule 4(i)

The contents required in a summons are set out in G.S. 1A-1, Rule 4(b), and one of the essential requirements is that the summons “shall be directed to the defendant or defendants and shall notify each defendant to appear and answer.” The summons issued in the present case fails to comply with this requirement. It is not directed to the defendant, Thorp Sales Corporation, and does not notify defendant to appear and answer. The court acquired no jurisdiction over defendant and the default judgment entered against defendant is void. ... The broad discretionary power given the court by G.S. 1A-1 Rule 4(i) to “allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued,” does not extend so far as to permit the court by amendment of its process to acquire jurisdiction over the person of a defendant where no jurisdiction has yet been acquired.

Rule 4(b) requires a summons to be directed to the defendant.

Wiles v. Welparnel Const. Co., Inc. · filed 1977-09-21Rule 4(b)

One of the essential requirements of a summons as set out in G.S. 1A-1, Rule 4(b) is that it shall be directed to the defendant.

Rule 4(i) allows a court to amend a summons in its discretion unless the amendment would materially prejudice the substantial rights of the party served.

Chemical Realty Corp. v. Home Federal Savings & Loan Ass'n of Hollywood · filed 1979-04-17Rule 4(i)

Amendment of the summons may be allowed by the court in its discretion “unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued.” G.S. 1A-1, Rule 4(i). Home Federal has not shown any prejudice that resulted from this misnomer.

Rule 4(i) permits amendment of a summons to correct the defendant’s middle name to match the amended complaint.

Terry v. Lowrance Hospital, Inc. · filed 1981-11-17Rule 4(i)

The cause is remanded with instructions to amend the summons, pursuant to G.S; 1A-1, Rule 4(i), to reflect defendant Griffin’s name correctly as it appears in the amended complaint.

Rule 4(d) extends the time to serve a summons only when the summons was properly issued against the named defendant.

Roshelli v. Sperry · filed 1983-08-02Rule 4(d)

G.S. 1A-1, Rule 4(d), on which plaintiff relies, pertains to the extension of time for “service” of a summons which has been properly issued against a named defendant. In this case the original summons was issued in the name of a person other than the, defendant and not a party to the action, a circumstance to which Rule 4(d) does not apply.

Rule 4(d) permits an action against any defendant, including the state, to continue when an alias summons issues within 90 days of the preceding summons.

Barrus Construction Co. v. North Carolina Department of Transportation · filed 1984-12-18Rule 4(d)

N.C. Gen. Stat. § 1A-1, Rule 4(d) of the Rules of Civil Procedure (1983) provides that a civil action may be continued in existence against “any defendant” (emphasis added) by suing out alias summons within 90 days of the last preceding summons. No special attention to this rule appears for suits against the state, nor does this civil action appear to be any different from other civil actions.

Rule 4(e) discontinues an action against an unserved defendant when the summons is not renewed within 90 days, and a later endorsement does not relate back to the original filing date.

In Re Adoption of Searle · filed 1985-04-02Rule 4(e)

Therefore, under G.S. 1A-1, Rule 4(e), the action was discontinued as to respondent and the endorsed summons that was served on him does not relate back to 2 August 1983. As to respondent, then, the adoption proceeding was not instituted until 15 November 1983.

Rule 4 permits a timely alias or pluries summons to continue an action even when the original summons was not delivered to the sheriff within thirty days of issuance.

Smith v. Starnes · filed 1986-08-12Rule 4(a), (d)(2), (e)

We conclude that plaintiff's failure to deliver the summons to the sheriff within thirty days after it was issued did not preclude the original summons from serving as a basis for the issuance of the alias or pluries summons.

An alias and pluries summons directed to a defendant relates back to an original summons directed to the Commissioner of Motor Vehicles as the defendant’s process agent.

Smith v. Schraffenberger · filed 1988-06-21Rule 4(a)

Defendant contends that this summons was not timely issued because it was not issued within five days of the filing of the complaint as required by N.C. Gen. Stat. § 1A-1, Rule 4(a); and it could not relate back to the original summons because it was issued on a different person. Defendant contends that, because the original summons was directed to the Commissioner of Motor Vehicles and the alias and pluries summons was directed to him, it was issued against a different person. Having already determined that the original summons was properly issued to defendant, we hold that the alias and pluries summons related back to the date the original summons was issued and therefore was timely filed.

Rule 4(b) requires a summons to tell the defendant to appear; a document that only instructs the defendant to answer does not provide proper notification.

Latham v. Cherry · filed 1993-09-07Rule 4(b)

The “Delayed Service of Complaint” in this case does not contain the required statutory language and does not serve as proper notification to defendant that she must appear.

A summons naming the wrong county is voidable, and the error may be corrected by amendment if Rule 4(i)’s requirements are met.

Hazelwood v. Bailey · filed 1995-02-10Rule 4(b), Rule 4(i)

Accordingly, we hold that the designation of the incorrect county in the summons rendered the summons voidable rather than void. The incorrect county designation amounted to an irregularity or error in form which can be corrected by amendment if the requirements of Rule 4(i) are met.

Under Rule 4(a), an action abates if no summons issues within five days after the complaint is filed.

Conner Brothers MacHine Company, Inc. v. Rogers · filed 2006-05-16Rule 4(a)

The action abated when no summons was issued within five days of the filing of the complaint.

Rule 46(a)(1) treats an objection to a specified line of questioning as continuing for later evidence involving the same line of questioning.

State v. Hunter · filed 1976-09-01(a)(1)

Defendant's contention that there was no requirement for him to object to the testimony of Mears on this subject because he made a "line objection" within the meaning of G.S. 1A-1, Rule 46(a)(1) (1969) is without merit.

Rule 46(b) preserves an exception to a trial court ruling or order when the party makes its objection or requested action and grounds known at the time.

Barbour v. Little · filed 1978-08-29(b)

Under G.S. 1A-1, Rule 46(b), with respect to rulings and orders of the trial court not directed to admissibility of evidence, no formal objections or exceptions are necessary, it being sufficient to preserve an exception that the party, at the time the ruling or order is made or sought, makes known to the court his objection to the action of the court or makes known the action which he desires the court to take and his ground therefor.

Rule 46(b) allows a party to preserve an objection by making it known to the court when the ruling is made or sought, without setting out a formal exception to the order.

Nicholson v. Hugh Chatham Memorial Hospital, Inc. · filed 1979-11-06Rule 46(b)

Upon examination of the record, it is apparent that no exception to the order is set out. That is not necessary, however. G.S. 1A-1, Rule 46(b), indicates that, “. . . it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court his objection to the action of the court . . . .” Rule 10(a) and (b) of the Rules of Appellate Procedure then makes it clear that the exception, because it was properly preserved for review by action of counsel at trial and properly raised in the brief, may be set out in the record on appeal and made the basis of an assignment of error.

Rule 46(a)(1) preserves an objection to a specified line of questioning when that line is apparent to the court and the parties, even if counsel does not precisely define it.

Duke Power Co. v. Winebarger · filed 1980-05-06Rule 46(a)(1)

Though not literally complied with in this case, the requirement in Rule 46(a)(1) that counsel object to a “specified” line of questioning is obviously satisfied where, as here, the “line” of questioning objected to is apparent to the court and the parties.

Rule 46(b) requires a party to raise an objection when the challenged court procedure occurs to preserve the issue for review.

Tin Originals, Inc. v. Colonial Tin Works, Inc. · filed 1990-06-05Rule 46(b)

Here, plaintiff failed to object at the appropriate time. ... At no time during this discussion did plaintiff’s counsel object or otherwise voice a concern regarding the court’s procedure. Plaintiff cannot now assert error in the trial court’s actions.

Rule 41(b) permits a judge in a nonjury trial to weigh all competent evidence, make findings and conclusions, and bind appellate review when supported by the evidence.

Inland Bridge Co. v. North Carolina State Highway Commission · filed 1976-09-01Rule 41(b) and Rule 52(a)

Under Rule 41(b) in a trial without a jury, the trial judge does not consider the evidence in the light most favorable to the plaintiff. Instead, he must consider and weigh all the competent evidence before him, passing upon the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn therefrom. The trial court must make findings and conclusions in support of his order; and where the findings are clearly supported by the evidence, they are binding on appeal.

Rule 52(a)(1) requires a judge in a nonjury trial to make separate findings of fact and conclusions of law; the judge may weigh the evidence when making those findings.

Terry's Floor Fashions, Inc. v. Crown General Contractors, Inc. · filed 2007-06-19(a)(1)

N.C.R. Civ. P., Rule 52(a)(1), provides that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon." ... The trial court, as the trier of fact during the bench trial, was entitled to believe plaintiff's evidence and assign it greater weight than the evidence presented by defendant Alvis.

Rule 52(c) permits a challenge to the sufficiency of evidence supporting bench trial findings; findings supported by some evidence bind the appellate court.

Glover v. Dailey · filed 2017-06-20Rule 52(c)

While an appellant may challenge “the sufficiency of the evidence” supporting the findings of fact, N.C. Gen. Stat. § 1A-1, Rule 52(c) (2015), we are bound by the trial court’s findings so long as “there is ... some evidence to support” them—even if “the evidence might sustain findings to the contrary,’ ” Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 460, 490 S.E.2d 593, 596 (1997) (quoting In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984)).

Rule 8(c) requires a court to treat a defense designated as a counterclaim, or a counterclaim designated as a defense, as properly designated when justice so requires, subject to terms.

Huss v. Huss · filed 1976-11-17(c)

Respondent’s plea for reformation due to mutual mistake, though ¿¿nominated a defense, was a counterclaim and should be judged as such under G.S. 1A-1, Rule 8(c), which provides that ... . . When a party has mistakenly designated a defense as a counterclaim or a counterclaim a defense, the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”

Rule 12(f) does not permit striking a relevant defense that, if proved, would avoid liability.

Grundey v. Clark Transfer Co., Inc. · filed 1979-07-17Rule 12(f)

As the trial court has determined that Chapter 25 does apply, Defendant’s Sixth Defense is neither irrelevant nor immaterial. Nor is the defense redundant, impertinent nor scandalous. Far from being an insufficient defense, this defense, if proved, will avoid liability on defendant’s part. We hold that plaintiff’s motion to strike defendant’s Sixth Defense should have been denied.

A defense mislabeled as a counterclaim requires no reply when it seeks only relief that would follow from a successful defense.

Eubanks v. First Protection Life Insurance · filed 1979-12-18Rule 8(c)

However, we conclude that, in effect, defendant did nothing more than raise an affirmative defense to plaintiff’s cause of action to which a reply was neither required nor permitted by G.S. 1A-1, Rule 7(a). G.S. 1A-1, Rule 8(c) provides: “When a party has mistakenly designated a defense as a counterclaim . . . , the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” Although defendant prayed in its “counterclaim” for cancellation of the policy, it was seeking no affirmative relief other than that which would naturally flow from successful defense to plaintiff’s action on the insurance contract.

Rule 8(c) allows a pleading that seeks relief to be treated as a counterclaim despite its failure to designate the claim as one when justice requires it.

Steele v. Bowden · filed 2014-12-31Rule 8(c)

Although Defendant did not specifically designate this set of statements as a counterclaim, we believe that considerations of simple “justice require[] that the trial court treat the defendant’s pleadings as a[n attempt to assert a] counterclaim,” Hunt, 117 N.C. App. at 283, 450 S.E.2d at 561, and that the trial court erred by apparently reaching a contrary conclusion.

Rule 7(c) abolishes demurrers, pleas, and exceptions for insufficiency; pleadings asserting defenses must be handled under the Rules of Civil Procedure.

Biddix v. Kellar Construction Corp. · filed 1977-01-05Rule 7(c)

That being true, we must determine procedurally the effect of this “plea in bar” under the new Rules of Civil Procedure. G.S. 1A-1, Rule 7(c) provides that: “Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for insufficiency shall not be used.”

Rule 25(a) allows substitution by motion within one year after a party's death and requires a supplemental complaint afterward.

Deutsch v. Fisher · filed 1977-04-06(a)

Rule 25(a) therefore limits the time within which a motion for substitution may be made to one year following the death of a party. The rule, however, is not a hard and fast limitation on substitution since the court may also order substitution after a supplemental complaint has been filed.

Rule 25(a) provides for substituting a personal representative or successor in interest when a party dies.

Matter of Estate of Etheridge · filed 1977-07-06Rule 25(a)

If, as in the case at bar, there is a death of a party to an action, then G.S. 1A-1, Rule 25(a) provides for a substitution of parties. It requires the substitution of either a personal representative or a successor in interest.

Rule 25(a) permits substitution after a party’s death on a motion filed within one year or, afterward, on a supplemental complaint.

Silverthorne v. Coastal Land Co. · filed 1979-07-03Rule 25(a)

However, this substitution must be (1) on motion within one year of the party’s death or (2) afterwards on a supplemental complaint.

Rule 25(a) requires substitution of a deceased defendant’s personal representative; substitution is not automatic and requires a trial court ruling.

Purvis v. Moses H. Cone Memorial Hospital Service Corp. · filed 2006-01-17Rule 25(a)

The personal representative must then be substituted under N.C.R. Civ. R 25(a). ... Substitution in the event of death is not automatic and, accordingly, whether or not to allow substitution must be decided in the first instance by the trial court.

Rule 40 authorizes senior resident superior court judges to adopt local rules for calendaring actions for trial, which should be applied with wide discretion consistent with efficient administration of justice.

Forman & Zuckerman, P. A. v. Schupak · filed 1978-09-05Rule 40

Local rules adopted pursuant to G.S. 1A-1, Rule 40, are rules of court which are adopted to promote the effective administration of justice by insuring efficient calendaring procedures are employed. Wide discretion should be afforded in their application so long as a proper regard is given to their purpose.

Rule 40 permits senior Superior Court judges to make calendaring rules, and a court may use its inherent authority to sanction willful failure to follow those rules.

Lomax v. Shaw · filed 1991-02-05Rule 40

Rule 40 of our Rules of Civil Procedure states that the senior Superior Court judge “may provide by rule for the calendaring of actions for trial in the superior court division. . . .” N.C.G.S. § 1A-1, Rule 40 (1988). ... In order to maintain an efficient and orderly system for calendaring and hearing cases in an increasingly congested justice system, the court must have inherent authority to impose sanctions for willful failure to comply with the applicable rules, no less local than statewide.

Rule 12(a)(1) gives a defendant 30 days after service of the complaint to answer, while a Rule 12 motion gives 20 days after notice of the court’s action.

Miller v. Miller · filed 1978-09-19Rule 12(a)(1)

As a general rule defendant has 30 days after service of the complaint upon him to file his answer. N.C.G.S. § 1A-1, Rule 12(a)(1). However, service of a Rule 12 motion alters the time period, giving defendant 20 days after notice of the court’s action on the motion to file his answer.

Rule 12(a)(1) gives a defendant who files a Rule 12 motion additional time to answer after the court rules on the motion, generally twenty days.

Strauss v. Hunt · filed 2000-10-1712(a)(1)

Under Rule 12(a)(1), defendant should have been given twenty days to answer from the time of notice of the court’s denial of her motion to dismiss. ... The court must give the party filing a Rule 12(b) motion additional time to file answer after notice is given of the court’s disposition of the motion.

Rule 12(a)(1) gives a defendant 30 days after service of the summons and complaint to answer.

Chillari v. Chillari · filed 2003-08-05Rule 12(a)(1)

The time in which a defendant has to answer a complaint is “30 days after service of the summons and complaint upon him.” N.C. Gen. Stat. § 1A-1, Rule 12(a)(1) (2001). Defendant was served on 11 December 2001 and answered on 14 February 2002. Defendant’s answer contained his motion to change venue; therefore the motion came almost two months after service of the complaint and summons, well outside the 30-day “time of answering” period.

Rule 12(a)(1) sets a 30-day deadline to answer after service, and Rule 59(e) sets a ten-day deadline to move to amend a judgment after entry.

Dayton v. Dayton · filed 2012-05-15Rule 12(a)(1); Rule 59(e)

We also note that defendant failed to file an answer within 30 days after service of plaintiffs amended complaint, see N.C. Gen. Stat. § 1A-1, Rule 12(a)(1) (2009), nor did defendant file a timely motion to amend the 22 December 2010 order within ten days after entry of the judgment. See N.C. Gen. Stat. § 1A-1, Rule 59(e).

Rule 12(h)(3) permits a subject matter jurisdiction objection to be raised for the first time on appeal.

Bache Halsey Stuart, Inc. v. Hunsucker · filed 1978-11-07(h)(3)

The question of subject matter jurisdiction may properly be raised for the first time on appeal. G.S. 1A-1, Rule 12(h)(3).

Rule 12(h)(3) requires dismissal when the court lacks subject matter jurisdiction, and Rule 12(b)(1) permits that issue to be raised by motion or responsive pleading.

Tart v. Walker · filed 1978-11-07Rule 12(h)(3); Rule 12(b)(1)

G.S. 1A-1, Rule 12(h)(3) provides that “whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Under Rule 12(b)(1) the question of subject matter jurisdiction may be raised by motion or by responsive pleading. Defendant properly raised the question by motion in the case before us.

Rule 12 waives a personal jurisdiction defense omitted from an answer, while a party or the court may raise lack of subject matter jurisdiction even after an answer is filed.

Jackson County Ex Rel. Child Support Enforcement Agency, Ex Rel. Annette Jackson v. Swayney · filed 1985-07-02(h)

Defendant waived his right to contest lack of personal jurisdiction when he filed his answer without raising this defense. G.S. 1A-1, Rule 12(h)(2). Lack of subject matter jurisdiction may always be raised by a party, or the court may raise such defect on its own initiative, even after an answer has been filed.

Rule 12(b)(1) permits a party to challenge the trial court’s jurisdiction by motion to dismiss.

Williams v. New Hanover County Board of Education · filed 1991-11-05(b)(1)

As the parties conceded at oral argument, the proper motions to challenge the trial court’s jurisdiction to hear the plaintiff’s appeal would have been N.C.G.S. § 1A-1, Rule 12(b)(1) motions, not N.C.G.S. § 1A-1, Rule 12(b)(6) motions.

Rule 12(h)(3) allows lack of subject matter jurisdiction to be raised at any time, including on appeal.

Smallwood v. Eason · filed 1996-09-03Rule 12(h)(3)

We note at the onset that the question of subject matter jurisdiction may be raised at any time, even on appeal.

Rule 12(b)(1) permits dismissal for lack of subject matter jurisdiction when a plaintiff fails to exhaust administrative remedies.

Bryant v. Hogarth · filed 1997-08-05Rule 12(b)(1)

An action is properly dismissed under the Rule for lack of subject matter jurisdiction when the plaintiff has failed to exhaust its administrative remedies.

Rule 12(h)(3) requires a court to address a lack of subject matter jurisdiction whenever it appears, and an objection may be raised at any time during the action.

VANCE CONST. CO., INC. v. Duane White Land Corp. · filed 1997-10-07Rule 12(h)(3)

“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (1990). An objection to subject matter jurisdiction may be made at any time during the course of the action.

Rule 12(h)(3) allows a challenge to subject matter jurisdiction at any level of the proceeding.

Smith v. Privette · filed 1998-02-03Rule 12(h)(3)

Lack of subject matter jurisdiction challenges the court’s statutory or constitutional power to adjudicate a claim and can be raised at any level of the proceeding. N.C.G.S. § 1A-1, Rule 12(h)(3) (1990); see Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964).

Rules 12(b)(1) and 12(b)(6) permit dismissal for lack of subject matter jurisdiction and failure to state a legally sufficient claim.

Shell Island Homeowners Ass'n v. Tomlinson · filed 1999-07-2012(b)(1), 12(b)(6)

In determining whether a complaint is sufficient to survive a motion to dismiss under G.S. § 1A-1, Rule 12(b)(6), the question presented 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.”

Section 1A-1 permits dismissal of claims under the specified Rule 12 defenses when the applicable procedural grounds are established.

Frazier v. Murray · filed 1999-09-21Rule 12(b)(1), (2), (4), (5), and (6)

Therefore, the Industrial Commission properly dismissed all claims against the individual defendants according to Rule 12(b)(1) and (2). Summonses were not processed against these defendants so the dismissal pursuant to Rules 12(b)(4) and (5) was proper against the individual defendants as well.

Rule 12(h)(3) requires dismissal when the court lacks subject matter jurisdiction.

Baars v. Campbell University, Inc. · filed 2002-02-05Rule 12(h)(3)

Such action is the correct method of disposition under N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (1999), which states: ... Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.

Rule 12(b)(1) permits a party to challenge the trial court’s subject matter jurisdiction by motion to dismiss.

Whitmire v. Cooper · filed 2002-11-05(b)(1)

“Standing concerns the trial court’s subject matter jurisdiction and is therefore properly challenged by a Rule 12(b)(1) motion to dismiss.”

Rule 12(h)(3) allows a court to raise lack of jurisdiction on its own at any time without notice.

State Employees Ass'n of North Carolina, Inc. v. State · filed 2002-12-03Rule 12(h)(3)

A lack of jurisdiction can be raised at any time including by the trial court ex mero motu, notice not being required. N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (2001).

Subject matter jurisdiction may be raised at any time, including for the first time on appeal.

Northfield Development Co. v. City of Burlington · filed 2004-08-17Rule 12(h)(3)

The issue of whether a court has subject matter jurisdiction may be raised at any time during a proceeding, and the issue may be raised for the first time on appeal.

A challenge to subject matter jurisdiction may be raised at any time, including for the first time on appeal to the Supreme Court.

James v. Bartlett · filed 2005-02-04Rule 12(h)(3)

We note that “the question of subject matter jurisdiction may be raised at any time, even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986); see also N.C.G.S. § 1A-1, Rule 12(h)(3) (2003). Therefore, defendant-intervenor and respondent properly raised this defense on appeal.

A dismissal under Rule 12(b)(1) is reviewed de novo on appeal.

Peninsula Property Owners Association, Inc. v. Crescent Resources · filed 2005-06-21Rule 12(b)(1)

Our review of a motion to dismiss under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure is de novo.

Rule 12(b)(1) permits dismissal when the trial court lacks subject matter jurisdiction.

Welch Contracting, Inc. v. North Carolina Department of Transportation · filed 2005-12-20Rule 12(b)(1)

Rule 12(b)(1) of the Rules of Civil Procedure allows for dismissal based upon a trial court’s lack of jurisdiction over the subject matter of the claim.

A dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is reviewed de novo.

Tarasi v. JUGIS · filed 2010-03-16Rule 12(b)(1)

Our review of a motion to dismiss under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure is de novo.

Rule 12(b)(1) is the proper procedure for moving to dismiss an action for lack of subject matter jurisdiction.

Johns v. Welker · filed 2013-07-02Rule 12(b)(1)

...was based on the absence of subject matter jurisdiction, which is properly addressed by motion under N.C. Gen. Stat. § 1A-1, Rule 12(b)(1).

Rule 12(b)(1) permits the court to consider and weigh material outside the pleadings when deciding subject matter jurisdiction.

Universal Cab Co., Inc. v. City of Charlotte · filed 2015-03-05(b)(1)

On a motion under Rule 12(b)(1), the Court may consider and weigh matters outside the pleadings in determining its subject matter jurisdiction.

Rule 12(b)(1) permits a court deciding subject matter jurisdiction to consider and weigh matters outside the pleadings.

Khan Bros., Inc. v. City of Charlotte · filed 2015-03-05Rule 12(b)(1)

On a motion under Rule 12(b)(1), the Court may consider and weigh matters outside the pleadings in determining its subject matter jurisdiction.

A Rule 12(b)(1) dismissal for lack of standing is reviewed de novo when the trial court did not weigh evidence or make findings of fact.

Universal Cab Co. v. City of Charlotte · filed 2016-05-10Rule 12(b)(1)

Where the trial court, as here, did not weigh evidence and make findings of fact, appellate review of an order dismissing an action under Rule 12(b)(1) for lack of standing is de novo.

Rule 12(b)(1) dismissals for lack of subject matter jurisdiction receive de novo review, during which the court may consider matters outside the pleadings.

Abrons Fam. Prac. & Urgent Care · filed 2016-10-18Rule 12(b)(1)

Our Court “review[s] Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings.”

Rule 12(b)(1) dismissals for lack of subject matter jurisdiction are reviewed de novo, and the reviewing court may consider matters outside the pleadings.

Practice v. N.C. Dep't of Health & Human Servs., & Computer Scis. Corp. · filed 2016-10-18Rule 12(b)(1)

Our Court "review[s] Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings."

A party may challenge subject-matter jurisdiction under Rule 12 at any time, including months after a default judgment.

Burgess v. Smith · filed 2018-08-07Rule 12(b)(1), (h)(3)

Because subject-matter jurisdiction may be challenged at any time, Marshall was permitted to challenge the superior court’s jurisdiction over the subject matter of Burgess’s claims against him even for the first time months after the default judgment was entered.

On a Rule 12(b)(1) challenge to subject matter jurisdiction, the court may consider matters outside the pleadings.

Local Social, Inc. v. Stallings · filed 2019-01-30Rule 12(b)(1)

A court may consider matters outside the pleadings in determining whether subject matter jurisdiction exists.

On a Rule 12(b)(1) motion, the court may consider matters outside the pleadings.

Kane v. Moore · filed 2018-11-26Rule 12(b)(1)

In deciding a motion under North Carolina Rule of Civil Procedure 12(b)(1), N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (hereinafter “Rule(s)”), the Court can consider matters outside of the pleadings.

Rule 12(h)(3) requires dismissal when the court lacks subject matter jurisdiction.

Aldridge v. Metro. Life Ins. Co. · filed 2019-08-15Rule 12(h)(3)

A court shall dismiss the action when it appears that the court lacks subject matter jurisdiction.

Rule 12(b)(1) permits a court to consider matters outside the pleadings when deciding a challenge to subject matter jurisdiction.

N.C. Dep't of Revenue v. Integon Nat'l Ins. Co. · filed 2022-11-22Rule 12(b)(1)

When deciding a Rule 12(b)(1) challenge to its jurisdiction, the Court may consider matters outside the pleadings.

Rule 12(b)(1) addresses subject-matter jurisdiction; whether the applicable substantive law supports a claim is assessed under Rule 12(b)(6).

Bassiri v. Pilling · filed 2023-02-07Rule 12(b)(1)

Instead, the choice-of-law analysis is more properly assessed pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim, rather than a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction.

Rule 12(h)(3) permits a challenge to subject-matter jurisdiction at any stage, including for the first time on appeal.

In re: M.A.C. & S.X.C. · filed 2023-10-17Rule 12(h)(3)

For example, unlike every other ground upon which a motion to dismiss may be based, “the trial court’s subject-matter jurisdiction may be challenged at any stage of the proceedings, even for the first time on appeal.” J.H., 244 N.C. App. at 259, 780 S.E.2d at 233 (citation omitted); accord N.C. Gen. Stat. § 1A-1, Rule 12(h)(3).

Rule 41(b) can allow a party to refile within one year after dismissal without prejudice, but a federal court lacking subject matter jurisdiction cannot grant that relief.

FS Medical Supplies, LLC v. Tanner Pharma UK Limited · filed 2026-06-25Rule 41(b)

But North Carolina’s savings statute doesn’t involve the court’s own interests or governing procedures. Rather, the statute affects a party’s right to bring suit. Because that’s not a collateral issue, we (and the district court) have no jurisdiction. So we can’t grant FS Medical relief.

Rule 54(c) allows a court to grant relief supported by the pleadings even when the prayer for relief is missing or incorrectly stated.

Harris v. Ashley · filed 1978-11-07(c)

“It is well-settled law in North Carolina that a party is entitled to the relief which the allegations in the pleadings will justify. [Cite omitted.] It is not necessary that there be a prayer for relief or that the prayer for relief contain a correct statement of the relief to which the party is entitled.”

Rule 54(c) permits a judgment to grant relief supported by the facts even if the party did not demand that relief in the pleadings.

Allison v. Allison · filed 1981-05-05Rule 54(c)

Further, “G.S. 1A-1, Rule 54(c) contemplates judgments granting the relief to which the party in whose favor they are rendered is entitled without regard to whether such relief has been demanded in that party’s pleadings.” ... We thus find no impropriety in the trial court’s grant of the declaratory relief in question, if the facts entitle plaintiff to such relief.

Rule 54(c) permits a court to award relief a prevailing party did not request in the pleadings.

Whitley v. Horton · filed 2005-02-15Rule 54(c)

Under the general principles of Rule 54(c), the trial court was permitted to grant this relief, even though it was not the exact relief that plaintiffs requested.

Rule 54(c) permits a court to award relief that was not demanded in the pleadings when the pleadings and trial evidence support it.

Lasecki v. Lasecki · filed 2016-04-05Rule 54(c)

By awarding these unpaid amounts as money judgments, the trial court did not grant relief which “was not suggested or illuminated by the pleadings nor justified by the evidence adduced at trial.” See id. at 122, 322 S.E.2d at 183; N.C. Gen. Stat. § 1A-1, Rule 54(c) (2013) (“Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”). Accordingly, we hold that the trial court did not err in awarding these unpaid amounts as money judgments.

Rule 54(c) does not permit unrequested relief unsupported by the pleadings and evidence when it substantially prejudices the opposing party.

Cole v. Bonaparte'S Retreat Prop. Owners' Ass'n, Inc. · filed 2018-04-17Rule 54(c)

In short, the relief ordered by the trial court “was not suggested or illuminated by the pleadings nor justified by the evidence adduced at trial[,]” and worked to Plaintiffs’ substantial prejudice, constituting reversible error.

Rule 54(c) permits a court to grant relief supported by the complaint’s allegations even when the pleading did not demand that relief.

De Luca v. Stein · filed 2020-12-15Rule 54(c)

This Court may issue an opinion and judgment and grant relief to which the party is entitled, even if the party has not demanded such relief in his pleadings.” N.C. Gen. Stat. § 1A-1, Rule 54(c).

Rule 36(a) requires a party to respond to requests for admissions within the prescribed period, or the matters are deemed admitted.

Rutherford v. Bass Air Conditioning Co. · filed 1978-11-21(a)

We understand G.S. 1A-1, Rule 36 to mean precisely what it says. A party, to avoid having the requests deemed admitted, must respond within the period of the rule if there is any objection whatsoever to the request.

Under Rule 36(a), a request for admissions that remains unanswered is deemed admitted.

Bowes v. Bowes · filed 1979-11-06Rule 36(a)

Plaintiff served on defendant a request for admissions on 5 September 1978, in which the necessary elements of a change in circumstances were set forth. At the time of the hearing of 30 October 1978, the request remained unanswered by defendant and thus was admitted. G.S. 1A-1, Rule 36(a).

Under Rule 36, a party seeking to have insufficient responses to requests for admissions deemed admitted must ask the trial court to determine their sufficiency and obtain a ruling.

Southern National Bank v. B & E Construction Co. · filed 1980-05-20

The record is void of any request by plaintiff to have the trial court determine the sufficiency of defendant’s answers to plaintiff’s requests for admissions. Nor does the record contain any ruling by the trial court to this effect. Plaintiff’s requests could not properly have been deemed admitted because the question of the sufficiency of Jacoby’s answers was not properly raised below.

Rule 36 does not allow admissions between codefendants to bind an adverse plaintiff.

MacE v. BRYANT CONST. CORP. · filed 1980-08-19Rule 36(b)

Although G.S. 1A-1, Rule 36(b) provides that admissions pursuant to a request for admissions under Rule 36(a) conclusively establish the facts admitted, that rule is inapplicable in the present case. The request for admissions was made to the original defendant property owners by their codefendants. Rule 36 was clearly not intended to permit codefendants who admit facts as between themselves to bind the plaintiff, the adverse party, to those facts as admitted.

A matter admitted under Rule 36(b) is conclusively established unless the court permits withdrawal or amendment of the admission.

Rhoads v. Bryant · filed 1982-04-06Rule 36(b)

The effect of an admission made pursuant to a Rule 36(b) request is that: “Any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

Rule 36 requires a response to a request for admission to be signed by the party or counsel, but does not require a sworn answer.

Southland Associates Realtors, Inc. v. Miner · filed 1983-11-15Rule 36

We find it worth noting that under the present G.S. 1A-1, Rule 36 (1977 Cum. Supp.), a sworn answer to a request for admission is no longer necessary. The rule only requires that the response be signed by the party or his counsel. Genuine issues of fact regarding defendant Miner’s liability were therefore raised.

An admission by one defendant under Rule 36 does not bind a co-defendant.

Barclays American Financial, Inc. v. Haywood · filed 1983-12-06Rule 36(b)

Although Conrad Haywood’s failure to answer or object in time to plaintiffs Requests for Admissions of Fact constituted admissions of fact by him, they did not bind his wife and co-defendant, Geneva Haywood. Facts admitted by one defendant are not binding on a co-defendant.

An unanswered Rule 36 request for admission can establish material facts for summary judgment.

McDowell v. Estate of Anderson · filed 1984-08-07Rule 36

The material issues of fact in the case sub judice were effectively established when the plaintiff failed to respond to defendant’s 20 July 1982 request for admission made pursuant to G.S. 1A-1, Rule 36. Therefore, the question becomes whether the defendant was entitled to judgment as a matter of law.

Rule 36(b) makes an admission conclusive in the action unless it is withdrawn or amended.

Virginia Electric & Power Co. v. Tillett · filed 1986-05-06Rule 36(b)

This admission was conclusive against VEPCO, since it was never withdrawn or amended.

In a nonjury trial, the judge may give limited weight to matters deemed admitted by a failure to respond to requests for admission when competent evidence supports contrary findings.

G. R. Little Agency, Inc. v. Jennings · filed 1987-12-15Rule 36(b)

N.C. Gen. Stat. § 1A-1, Rule 36(b) (1983). Although plaintiff argues that these matters conclusively established a partnership, the trial court stated at trial that the matters contained within the requests did not necessarily make out a prima facie case of partnership and elected to assign greater weight to the testimony at trial. The trial court, when sitting as trier of fact, is empowered to assign weight to the evidence presented at trial as it deems appropriate. ... In light of the substantiality of competent evidence adduced at trial suggesting the nonexistence of a partnership, we are not persuaded by this argument. These assignments of error are overruled.