N.C. Gen. Stat. § 1A-1

Requests for a new trial under Rule 59(a)(9) are reviewed for abuse of discretion.

GIAMBELLI v. Hansen · filed 2010-03-02Rule 59(a)(9)

Generally, requests for relief under N.C. Gen. Stat. § 1A-1, Rule 59(a)(9), are reviewed for an abuse of discretion.

Rule 59 gives the trial court discretion to grant a new trial on an enumerated ground; denial is reviewed for abuse of discretion.

Buchanan v. Buchanan · filed 2010-09-07Rule 59(a)(7), (9)

Plaintiffs also contend that the trial court abused its discretion in denying plaintiffs’ motion for a new trial pursuant to Rule 59(a)(7) and (9). ... Accordingly, we hold the trial court did not abuse its discretion in denying plaintiffs’ motion for a new trial.

A discretionary order granting a new trial under Rule 59 may be reversed only when the record shows that the decision was manifestly unsupported by reason.

Exum v. Exum · filed 2014-04-01Rule 59

As a result, we are not entitled to disturb the trial court’s discretionary ruling granting Plaintiff’s motion for new trial unless the record affirmatively demonstrates that the decision is “manifestly unsupported by reason.”

Rule 45 provides a mechanism to compel witness attendance but does not require every prospective witness to be subpoenaed.

Rush v. Living Centers-Southeast, Inc. · filed 1999-11-02Rule 45

While the statutory law provides a mechanism whereby litigants may compel attendance of witnesses who might not otherwise voluntarily appear, it does not require that every prospective witness be subpoenaed. See N.C. Gen. Stat. § 1A-1, Rule 45 (1990).

Rule 45 does not let a court compel a non-party foreign corporation to produce documents solely because the court has personal jurisdiction over it.

Aarp v. Am. Family Prepaid Legal Corp. · filed 2007-02-23Rule 45

Consistent with these decisions, the Court holds that the existence of personal jurisdiction over a non-party foreign corporation, standing alone, is insufficient to extend the Court’s subpoena power to that corporation for purposes of a deposition or the production of documents.

Rule 45 requires a copy of a witness subpoena to be served on each party, but failure to serve the opposing party does not bar an award of expert witness costs when the witness was served.

Greene v. Hoekstra · filed 2008-03-04Rule 45(b)(2)

We also agree that the North Carolina Rules of Civil Procedure require witness subpoenas to be served on the parties to the action. N.C. Gen.Stat. § 1A-1, Rule 45(b)(2) (rewritten effective 1 October 2003). ... Therefore the right to compensation depends on the subpoena being served on the witness, and is not dependent on service of a copy of the subpoena on the opposing party. It follows therefore, in determining whether the trial court is barred by the lack of a subpoena from awarding the costs of an expert witness, that it is the service of the subpoena on the witness, not the service of the subpoena on the opposing party, which is dispositive.

Rule 45(b)(1) does not permit a party to personally serve a subpoena.

Gregory v. W.A. Brown & Sons · filed 2008-08-19Rule 45(b)(1)

In that a subpoena may not personally be served by a party, it does appear that Plaintiff failed to comply with the rules related to method of service of a subpoena.

Rule 45(c) allows a person commanded to appear to object to a subpoena; a party lacks standing to challenge a subpoena directed to a nonparty witness on that witness’s behalf.

Jarrell v. Charlotte-Mecklenburg Hospital Authority · filed 2010-08-17Rule 45(c)

The challenge they attempt to assert, however, belongs not to Plaintiffs but to the nonparty witnesses whose attendance was sought, and Plaintiffs accordingly lack standing to dispute the subpoenas’ validity.

A person objecting to a subpoena on the ground that an outside contract protects the requested information must provide objective indicia of that protection; a bare assertion is insufficient.

Taylor v. Perni · filed 2019-05-21(c)(3)(b)

We believe the same showing of objective indicia is required when a movant objects to a subpoena under Rule 45(c)(3)(b) by asserting that the subpoena requires disclosure of matters alleged to be privileged or protected by an outside contract and that no exception or waiver applies to the privilege or protection.

Rule 45(a)(1) requires a personally served subpoena to include all of its listed provisions to be valid.

State v. Gonzalez · filed 2021-07-06Rule 45(a)(1)

As a result, all provisions of Rule 45(a)(1) need to be present for a personally served subpoena to be valid.

Rule 45(d1) permits other parties to request access to subpoenaed documents, subject to Rule 26’s limits on privileged and irrelevant material.

Wing v. Goldman Sachs Tr. Co. · filed 2021-12-07Rule 45(d1)

Upon de novo review, we hold our General Assembly intended Rule 26 to limit Defendant’s access to Plaintiff’s subpoenaed privileged documents.

Rule 45(d1) requests to inspect subpoenaed documents are subject to Rule 26’s limits on discovery.

Wing v. Goldman Sachs Tr. Co. · filed 2021-12-07Rule 45(d1)

Rule 45 is meant to be limited by adequate compliance with Rule 26.

Rule 4(j)(1)(a) permits service at the defendant’s dwelling with a suitable resident, but a plaintiff cannot accept service of her own complaint for the defendant.

Darby v. Darby · filed 1999-11-16(j)(1)(a)

Under our statute, the manner of service of process may be by “leaving copies thereof at the defendant’s dwelling or usual place of abode with some person of suitable age and discretion then residing therein.” See N.C. Gen. Stat. § 1A-1, Rule 4(j)(l)(a) (1990). ... Thus, we hold that the statute does not allow a plaintiff to accept — on the behalf of the defendant — service of her own complaint.

An officer’s return showing service at a defendant’s dwelling creates a presumption of valid service that the defendant must rebut with clear and unequivocal evidence.

Gibby v. Lindsey · filed 2002-03-19Rule 4(j)(1)a

In this case, the officer’s return of the summons indicates legal service under Rule 4(j)(l)a, thus giving rise to á presumption of valid service of process. ... The burden is on Defendant to rebut this presumption by clear and unequivocal evidence that consists of more than a single contradictory affidavit or the contradictory testimony of one witness.

Rule 4 does not permit substitute service at a property the person visits only once or twice a year for holidays or maintenance.

In Re Matter of on George · filed 2019-02-19Rule 4(j)(1)(a)

A place of residence to which the owners only return once or twice each year over the holidays or for maintenance issues does not qualify as a dwelling house or usual place of abode for purposes of Rule 4 service.

Rule 54(b) permits immediate review when the trial court enters a final judgment on fewer than all claims or parties and certifies that there is no just reason for delay.

Sharpe v. Worland · filed 1999-12-03(b)

First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay.

Rule 54(b) permits immediate appeal of a judgment resolving fewer than all claims or parties when the trial court certifies it as immediately appealable.

Russell v. State Farm Insurance · filed 2000-03-07(b)

Accordingly, the trial court’s order compelling arbitration and denying defendant’s motion for summary judgment “did not constitute a ‘final’ judgment and is . . . not appealable pursuant to Rule 54(b).”

Rule 54(b) permits a trial court to certify issues for immediate appellate review, but the certification does not bind the appellate court.

Jenkins v. Choong · filed 2001-12-18Rule 54(b)

Although a trial court may certify the issues for immediate review pursuant to G.S. § 1A-1, Rule 54(b) and G.S. § 1-277, this certification does not bind the appellate court because “ ‘ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.’ ”

Rule 54(b) permits immediate appellate review of an order final as to some but not all claims or parties when the trial court certifies no just reason for delay, subject to appellate review.

Giles v. First Virginia Credit Services, Inc. · filed 2002-03-05(b)

A Rule 54(b) certification is reviewable by our Court on appeal because a “trial court’s denomination of its decree [as] ‘a final . . . judgment does not make it so,’ if it is not such a judgment.”

Rule 54(b) does not treat a defense raised in an answer as a claim that can support certification of a partial judgment for immediate appeal.

Yordy v. FARM BUREAU MUT. INS. CO. · filed 2002-03-05Rule 54(b)

A defense raised by a defendant in answer to a plaintiff's complaint is not a "claim" for purposes of Rule 54(b).

Rule 54(b) does not treat a defense raised in an answer as a claim for purposes of entering a final judgment on fewer than all claims.

Yordy v. North Carolina Farm Bureau Mutual Insurance · filed 2002-03-05Rule 54(b)

A defense raised by a defendant in answer to a plaintiffs complaint is not a “claim” for purposes of Rule 54(b).

Rule 54 permits certification of a judgment resolving fewer than all claims or parties for immediate appeal when there is no just reason for delay, without requiring the words “final judgment”.

Guthrie v. Conroy · filed 2002-08-06Rule 54(a), (b)

Nor does N.C.G.S. § 1A-1, Rule 54 require the phrase “final judgment” to be included in a trial court’s certification that an order resolving one or more claims is appropriate for immediate appeal: (a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties. (b) . . . When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.] N.C.G.S. § 1A-1, Rule 54(a) and (b).

Rule 54(b) permits an immediate appeal from an order resolving fewer than all claims when the order contains the trial court’s certification that there is no just reason for delay.

Duffy v. Camp · filed 2022-12-20Rule 54(b)

Nevertheless, the trial court’s Rule 54(b) certification is effective to vest jurisdiction in this Court: at the time of the order, the case involved multiple parties with multiple claims and counterclaims; the order on appeal finally resolved all claims against Defendants; the trial court certified that “there is no just reason for delay”; and Duffy appealed from the order containing this certification.

Rule 54(b) requires the trial court to certify that there is no just reason for delay before a judgment resolving fewer than all claims or parties can be appealed immediately.

Price v. Yuengling · filed 2025-07-02Rule 54(b)

But the trial court did not certify that there was no just reason for delay in any of the orders from which Plaintiff appeals. See N.C. Gen. Stat. § 1A-1, Rule 54(b).

Rule 41(a)(1) makes a second voluntary dismissal of the same claim an adjudication on the merits.

Wrenn v. Maria Parham Hospital, Inc. · filed 1999-12-07(a)(1)

In the case before us, the dismissal against Dr. Byrd was a second dismissal of plaintiff’s claims against him and therefore operated as an adjudication on the merits under the express language of Rule 41 of the Rules of Civil Procedure and our holding in Barnes.

Rule 41(b) treats a dismissal with prejudice as an adjudication on the merits for res judicata purposes.

Doe 1K v. Roman Cath. Diocese · filed 2025-01-31Rule 41(b)

This type of dismissal with prejudice “operates as an adjudication upon the merits” under our Rules of Civil Procedure.

Rule 41(a)(1) allows a new action based on the same claim to be filed within one year after a voluntary dismissal without prejudice.

Brannock v. Brannock · filed 1999-12-07(a)(1)

Accordingly, plaintiff’s filing of Claim # 2 pursuant to G.S. § 50-16.1A et seq. did not implicate for purposes of Rule 41(a)(1) the one year period within which Claim # 1 asserted under G.S. § 50-16.1 et seq. might have been refiled.

A new action commenced under Rule 41 after a voluntary dismissal must be, in practical respects, the same action as the original suit.

Korzinski v. Jackson · filed 2004-07-02Rule 41(a)(1)

This is so because, by its nature, a “new action” commenced pursuant to Rule 41 must be, in all practical respects, precisely the same action that was brought prior to the voluntary dismissal.

Rule 41(a)’s period for refiling after a voluntary dismissal does not save an action when the first complaint was filed after the statute of limitations expired.

Webb v. Hardy · filed 2007-03-20Rule 41(a)

Plaintiff’s first action was filed 25 November 2003, a date outside the three year limitations period. Consequently, the fact the subject complaint was filed within twelve (12) months of plaintiffs’ dismissal of the first complaint cannot save this matter from summary judgment in favor of defendant.

Rule 41(a)(1) tolls the statute of limitations when a plaintiff refiles a claim from a voluntarily dismissed complaint within one year, but it does not toll a new cause of action arising from the same facts.

Losing v. Food Lion, L.L.C. · filed 2007-08-07Rule 41(a)(1)

This Court has long held that the Rule 41(a) tolling of the applicable statute of limitations applies only to the claims in the original complaint, and not to other causes of action that may arise out of the same set of operative facts.

Rule 41(a) requires a new action following a voluntary dismissal to be filed within one year of the dismissal.

Goodman v. Holmes & McLaurin Attorneys at Law · filed 2008-09-02Rule 41(a)

Rule 41(a) of the North Carolina Rules of Civil Procedure requires that any new action after a voluntary dismissal be refiled within one year after the dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(a) (2007). Thus, the last opportunity for McLaurin to act on plaintiffs claim occurred on 21 October 1998.

Rule 41(a)(1) permits a plaintiff who voluntarily dismisses an action after a small claims appeal to file a new action in superior court within one year.

ELEEN v. Heil · filed 2009-04-07Rule 41(a)(1)

Plaintiffs were then permitted to file their complaint in Superior Court in Onslow County within one year of David Eleen's voluntary dismissal, as provided for in N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).

Rule 41(a) allows a claim to be refiled after a voluntary dismissal when the original complaint’s allegations gave notice of that claim, even if the claim was not labeled.

Haynie v. Cobb · filed 2010-09-07Rule 41(a)

The only relevant question as to this issue is whether plaintiffs 2009 complaint is “based on the same claim[s]” as his 2007 complaint. N.C. Gen. Stat. § 1A-1, Rule 41(a).

A refiled complaint asserting the same cause of action may add a category of damages without losing Rule 41(a)(1)’s limitations protection.

Royster v. McNamara · filed 2012-02-07Rule 41(a)(1)

Plaintiff’s allegation that he sustained “emotional” injury is nothing more than a description of the damage that he claims to have suffered as the result of Defendant’s professional negligence and “did not [constitute the addition of] an enforceable claim or cause of action that the statute of limitations had run against.”

Rule 41 permits a new action on the same claim within one year after a voluntary dismissal, with the refiled action relating back to the original filing for limitations purposes.

Goodman v. Living Centers—Southeast, Inc. · filed 2014-06-17Rule 41

Under Rule 41, a new action based on the same claim may be commenced within one year after such dismissal, and “the refiled case will relate back to the original filing for purposes of tolling the statute of limitations.”

Rule 41(a)(1) allows a plaintiff who voluntarily dismisses an action without prejudice one year to refile the same claim; its tolling provision does not apply after that year expires.

Casola v. Caldwell Cnty. · filed 2014-09-16Rule 41(a)(1)

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 41, when an action is voluntarily dismissed without prejudice, “a new action based on the same claim may be commenced within one year after such dismissal . . . .” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2013). ... However, plaintiffs did not re-file a new complaint until 18 June 2012, approximately eighteen months after they filed their voluntary dismissal.

A voluntary dismissal under Rule 41(a) of a whistleblower claim filed in superior court does not allow the claimant to revive it before the Office of Administrative Hearings.

Vincoli v. N.C. Dep't of Pub. Safety · filed 2018-07-17(a)

Petitioner has not directed us to any law which indicates an individual may file in one forum, dismiss, and then revive the claim in another. Therefore, we affirm the dismissal of petitioner’s whistleblower claim under Rule 41(a).

Rule 41(a)(1)’s one-year savings clause permits refiling after a voluntary dismissal only if the original action was commenced within the limitations period.

Brooks v. Stanley · filed 2020-05-12Rule 41(a)(1)

As plaintiff fails to allege facts from which the court may plausibly infer her original action was “commenced within the time prescribed therefor,” N.C.R. Civ. P. 41(a)(1), plaintiff may not toll the statute of limitations for her § 1983 claim using the savings clause.

Rule 41(a)(1)'s general provision allowing a dismissed claim to be refiled within one year yields to the more specific statutes governing postseparation support after absolute divorce.

Brosnan v. Cramer · filed 2023-04-04Rule 41(a)(1)

This case presents a conflict between a generally applicable provision of the North Carolina Rules of Civil Procedure and the more specific sections of Chapter 50 of the North Carolina General Statutes. ... Accordingly, since N.C. Gen. Stat. § 50-11(c) and N.C. Gen. Stat. § 50-19 specifically address the voluntarily dismissed claim at issue in this case, the language in those statutes are controlling.

Rule 7(b)(1) requires a motion to state the grounds for the relief requested.

Meehan v. Cable · filed 1999-12-07Rule 7(b)(1)

Because Defendants’ motion does not meet the requirements of Rule 7(b)(1), this issue is not properly before this Court, N.C.R. App. P. 10(b)(1) (party assigning error to motion must have presented motion to trial court), and we therefore do not address it.

Rule 7(b)(1)'s particularity requirement is satisfied when a motion states that dismissal is sought for failure to state a claim, revealing the basis of the motion.

AUSTIN HATCHER REALTY, INC. v. Arnold · filed 2008-06-03Rule 7(b)(1)

We find Ms. Arnold's statement that she was seeking dismissal of the complaint "for failing to state a claim upon which relief can be granted" sufficient to "reveal[] the basis of the motion," as the essence of a Rule 12(b)(6) motion is that the plaintiff is entitled to no relief under any state of facts that could bepresented in support of the claims.

Rule 4(j)(1)(c) permits service by registered or certified mail, return receipt requested, and a recipient’s signed return receipt can constitute sufficient proof of service.

State Ex Rel. Anson/Richmond Child Support Enforcement Agency Ex Rel. Desselberg v. Peele · filed 1999-12-21(j)(1)(c)

We hold that this constitutes sufficient proof of service under N.C.R. Civ. Pro. 4(j)(l)(c).

Filing a signed return receipt with a compliant affidavit creates a rebuttable presumption of valid service by certified mail.

Carpenter v. Agee · filed 2005-06-21Rule 4(j2)(2)

By filing a copy of the signed return receipt, along with an affidavit that comports with N.C. Gen.Stat. § 1-75.10, plaintiff is entitled to a rebuttable presumption of valid service. We find that defendant's single affidavit does not rebut the presumption in this case.

Rule 4(j2)'s presumption of valid mail service can be rebutted by an address discrepancy and the addressee's failure to appear or respond.

In Re KN · filed 2007-02-20Rule 4(j2)

We find that the discrepancy between the address used by DSS and that given by Respondent-mother to the trial court, as well as Respondent-mother's failure to appear or respond in any way in the termination proceedings, serves to rebut the presumption of valid service, which is further weakened by the lack of information or evidence as to the identity of Hershel Jenkins.

Rule 4(j)(1)(c) permits service by certified mail when the service affidavit and attached delivery records show that the defendant signed for the summons and complaint.

Wilson v. Wilson · filed 2008-08-05Rule 4(j)(1)(c)

It is clear from plaintiffs affidavit of service by certified mail and attachments thereto with defendant’s signature appearing thereon that the summons and complaint were personally served upon defendant pursuant to Rule 4(j)(l)(c) of the North Carolina Rules of Civil Procedure.

Rule 4 permits service by registered or certified mail on individuals, counties, and cities when its mailing requirements are met.

Patterson Ex Rel. Estate of Hemphill v. Whitlock · filed 2010-08-23R. 4(j)(1)(c), R. 4(j)(5)

They do, however, permit a plaintiff to effect service in accordance with state law, see Fed. R. Civ. P. 4(e)(1), 4(j)(2)(B), and North Carolina authorizes service by mailing the summons and complaint through “registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee,” N.C. Gen. Stat. § 1A-1, R. 4(j)(1)(c); see also id. R. 4(j)(5) (service upon county or city by registered or certified mail). As a result, service on the Defendants by mail was permissible (and, as is now undisputed, was accomplished).

Rule 4(j)(1)(c) requires proof that a person who accepts mailed process for the addressee was authorized to do so.

Sloan v. Inolife Techs., Inc. · filed 2019-01-09Rule 4(j)(1)(c)

The Court finds that Berthold has not carried his burden of showing that the unidentified individual who signed for the Process was Lanham’s authorized agent. Accordingly, the Court concludes that service on the unidentified individual does not satisfy the requirements for service of process under Rule 4(j)(1)(c)’s requirement of “delivering to the addressee.”

An affidavit showing certified mailing and delivery creates a rebuttable presumption of valid service; speculation that someone other than the defendant or her agent received the papers does not rebut it.

Lapardi v. Goodman · filed 2021-03-01Rule 4(j2)(2)

Accordingly, Plaintiff’s Affidavit is entitled to a presumption of valid service. ... Defendant Lyft has done nothing to rebut the presumption of valid service other than speculate that the “individual” to whom the Summons and Complaint was delivered was not Ms. Goodman or her agent. This is insufficient to show that Ms. Goodman was not “properly joined and served” at the time of removal.

Proof of delivery creates a rebuttable presumption of valid service even when someone other than the defendant signs the receipt.

The Historic Preservation Foundation of North Carolina, Inc. v. Hardy · filed 2021-05-06Rule 4(j2)(2)

The fact that the receipt was signed by “F.MCAFE” rather than defendant does not change the result because presumption of valid service arises upon proof of delivery, regardless of the identity of the signer.

Rule 4(j5) treats acceptance of service as occurring on the date the Acceptance of Service is signed.

Latimer v. Latimer · filed 1999-12-21(j5)

These findings support the conclusion that service occurred on 15 November 1997. N.C.G.S. § 1A-1, Rule 4 (j5) (acceptance of service occurs on date “Acceptance of Service” signed).

Rule 26(b)(1) limits discovery to relevant, nonprivileged matter; a protective order may bar questions about privileged acts without prohibiting all questioning.

Northfield Development Co. v. City of Burlington · filed 2000-01-04(b)(1)

Thus, to the extent Plaintiff seeks to examine Mayor Barbour about his actions, intentions, or motives with regard to Plaintiff's MHOD petitions or his actions, intentions, or motives with respect to any other quasi-judicial or legislative matters before the Council, the protective order of the trial court is affirmed. N.C.G.S. § 1A-1, Rule 26(b)(1) (1990) (discovery limited to relevant matter which is not privileged). We, however, reverse the order of the trial court prohibiting any questioning of Mayor Barbour, as it would be premature to judge the need for such a protective order.

Rule 55(d) permits an entry of default to be set aside for good cause shown, considering the defendant's diligence, prejudice from delay, and potential injustice.

Brown v. Lifford · filed 2000-01-18Rule 55(d)

An entry of default may be set aside "[f]or good cause shown." N.C. Gen.Stat. § 1A-1, Rule 55(d). ... A trial court's determination of "good cause" to set aside an entry of default will not be disturbed on appeal absent an abuse of discretion. ... In reviewing a trial court's decision regarding motions to set aside entries of default, we consider the following factors: "(1) was defendant diligent in pursuit of this matter; (2) did plaintiff suffer any harm by virtue of the delay; and (3) would defendant suffer a grave injustice by being unable to defend the action." ... We therefore hold that the trial court erred in failing to set aside the entry of default.

Rule 55(d) allows an entry of default to be set aside for good cause; an unexplained failure to respond after service does not establish good cause.

Old Salem Foreign Car Service, Inc. v. Webb · filed 2003-07-15Rule 55(d)

In the present case, defendant advanced no grounds constituting good cause. ... As such, we discern no abuse of discretion by the trial court in denying defendant’s motion to set aside entry of default.

Rule 55(d) allows a party’s default to be set aside only for good cause shown.

Revelle v. Chamblee · filed 2005-01-18(d)

Once a party’s default has been established, it may be set aside only for good cause shown. N.C. Gen. Stat. § 1A-1, Rule 55(d) (2003).

Rule 60(b)(6) permits a court to set aside a default judgment only when extraordinary circumstances caused the failure to appear and justice demands relief.

Advanced Wall Systems, Inc. v. Highlande Builders, LLC · filed 2004-12-21(b)(6)

A default judgment may be set aside under Rule 60(b)(6) only upon a showing that: (1) extraordinary circumstances were responsible for the failure to appear, and (2) justice demands that relief.

Rule 55(d) allows a trial court to set aside an entry of default for good cause.

Emick v. Sunset Beach & Twin Lakes, Inc. · filed 2006-12-19Rule 55(d)

Pursuant to the provisions of N.C. Gen. Stat. § 1A-1, Rule 55(d), the trial court may set aside an entry of default for good cause shown. ... We hold the trial court did not abuse its discretion in setting aside Rosewood Investments’ entry of default judgment in order for the case to proceed on the merits.

Rule 55(d) permits an entry of default to be set aside for good cause when a short delay causes little harm to the plaintiff and default would seriously harm the defendant, even if the defendant was inattentive.

Atkins v. Mortenson · filed 2007-06-05Rule 55(d)

Accordingly, we hold that the trial court did not abuse its discretion in setting aside the entry of default even though defendant did not take any further action after delivering the claim to his office manager. The potentially grave damage to defendant coupled with the relatively short delay in processing the claim support the trial court’s finding of good cause.

Rule 55(d) permits a court to set aside an entry of default for good cause; that decision is reviewed for abuse of discretion.

CITY OF WILSON REDEVEL'MT COM'N v. Boykin · filed 2008-10-07Rule 55(d)

Additionally, N.C. Gen.Stat. § 1A-1, Rule 55(d) (2007) provides in pertinent part that "[f]or good cause shown the court may set aside an entry of default[.]" ... In the instant case, we conclude that the trial court did not abuse its discretion by granting Defendant's motion to set aside the entry of default against Boykin and deem her answer timely filed.

Rule 55(d) permits a court to set aside an entry of default for good cause; a defendant’s lack of diligence can justify denying relief.

Luke v. Omega Consulting Group, LC · filed 2009-01-06Rule 55(d)

Pursuant to Rule 55(d) of the North Carolina Rules of Civil Procedure, the trial court may set aside an entry of default for good cause. N.C. Gen. Stat. § 1A-1, Rule 55(d) (2007). ... We cannot find that defendant acted diligently. ... Defendant has failed to show the trial court abused its discretion when it denied its motion to set aside entry of default.

Rule 55(d) permits an entry of default to be set aside for good cause; a seven-month delay in seeking relief can support denial of the motion.

Ke v. Zhou · filed 2017-11-21Rule 55(d)

Further, we note that an entry of default may be set aside for “good cause shown.” N.C. Gen. Stat. § 1A-1, Rule 55(d). ... In light of the time elapsed before the motion was filed to set aside the entry of default, we are unable to conclude that the trial court abused its discretion in denying Defendant Seven Seas’ motion.

Rule 55(d) allows a court to set aside an entry of default for good cause shown.

Jones v. Jones · filed 2019-02-05Rule 55(d)

Rule 55(d) governs setting aside entry of default and provides that the trial court may set aside an entry of default “[f]or good cause shown[.]” N.C. Gen. Stat. § 1A-1, Rule 55(d) (2017).

Rule 55(d) allows a court to set aside an entry of default for good cause shown.

Slattery v. Appycity, LLC · filed 2022-02-16Rule 55(d)

Because the Court finds and concludes that Defendant Barber made a general appearance waiving her objection to personal jurisdiction by filing her Motion to Claim Exemptions, the Court must deny her request to set aside the entry of default against her under Rule 55(d).

The Rules of Civil Procedure allow a third-party plaintiff who timely filed under Rule 14 and then voluntarily dismissed to refile within one year without court leave.

Clark v. Visiting Health Professionals, Inc. · filed 2000-02-01Rule 14(a); Rule 41(a)(1), (c)

Therefore, we hold that a third-party plaintiff who originally files a third-party complaint within the time limits set out in Rule 14 and subsequently enters a voluntary dismissal may, within one year, refile the complaint or an amended complaint without leave of court.

Rule 9(j) does not require prefiling expert certification for a negligence claim based on an administrative act that does not involve direct patient care.

Acosta v. Byrum · filed 2006-12-19(j)

Providing an access code to access certain medical files qualifies as an administrative act, not one involving direct patient care. Therefore, Rule 9(j) is inapplicable; plaintiff did not need certification before filing suit.

Rule 9(j) does not require medical-malpractice pleading certification for an ordinary-negligence claim involving supervision while smoking.

Taylor v. Vencor, Inc. · filed 2000-02-01(j)

Likewise in this case, the observance and supervision of the plaintiff, when she smoked in the designated smoking area, did not constitute an occupation involving specialized knowledge or skill. Preventing a patient from dropping a match or a lighted cigarette upon themselves, while in a designated smoking room, does not involve matters of medical science. Such behaviors are properly applied to the standards of ordinary negligence. The trial court’s granting of defendants’ motion to dismiss was error in regard to plaintiff’s ordinary negligence claim.

Rule 9(j) requires a medical malpractice complaint to include certification that qualified expert reviewed the care and is willing to testify it breached the standard of care.

Anderson v. Assimos · filed 2001-10-02(j)

That restriction requires the party's pleading to certify, in her complaint, that the medical care has been "reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care." [3] N.C.G.S. § 1A-1, Rule 9(j)(1) (1999). The failure to include this certification in the complaint mandates the dismissal of the complaint. Id.

Rule 9(j) requires certification for medical malpractice claims but not for ordinary negligence claims against a health care provider.

Sharpe v. Worland · filed 2001-12-18(j)

Rule 9(j) certification is not necessary for ordinary negligence claims, even if defendant is a health care provider.

Rule 9(j) extension motions must be heard by a resident judge when available; otherwise, the duly appointed presiding superior court judge may hear and sign them.

Best v. Wayne Memorial Hospital, Inc. · filed 2001-12-18(j)

Thus, we conclude that Rule 9(j) extension motion is to be heard by a resident judge when one is available, but when the resident judge is unavailable or nonexistent, it is proper for the duly appointed presiding superior court judge to hear and sign the motion.

Rule 9(j) requires expert review before a medical malpractice complaint is filed; after exhausting its 120-day extension, a plaintiff cannot amend the complaint to add expert certification.

Thigpen v. Ngo · filed 2002-02-01Rule 9(j)

In sum, based on this record, we hold that once a party receives and exhausts the 120-day extension of time in order to comply with Rule 9(j)’s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification. Further, we hold that Rule 9(j) expert review must take place before the filing of the complaint.

Rule 9(j) certification applies to medical malpractice cases alleging a breach of the required standard of care, but not to res ipsa loquitur claims.

Anderson v. Assimos · filed 2002-11-22(j)

The certification requirements of Rule 9(j) apply only to medical malpractice cases where the plaintiff seeks to prove that the defendant’s conduct breached the requisite standard of care — not to res ipsa loquitur claims. N.C.G.S. § 1A-1, Rule 9(j) (2001).

Rule 9(j)(1) requires a medical malpractice complaint to state that the care was reviewed by a reasonably expected Rule 702 expert who is willing to testify that it failed the applicable standard of care.

Phillips v. a Triangle Women's Health Clinic, Inc. · filed 2002-12-31(j)(1)

Rule 9(j) states, in pertinent part, that a complaint alleging medical malpractice shall be dismissed unless the pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care [.] N.C. Gen.Stat. § 1A-1, Rule 9(j)(1) (2001) (emphasis added). Our appellate courts have not clearly set forth the standard by which to review a trial court's motion to dismiss pursuant to Rule 9(j). Nevertheless, when ruling on such a motion, a court must consider the facts relevant to Rule 9(j) and apply the law to them. Thus, a plaintiff's compliance with Rule 9(j) requirements clearly presents a question of law to be decided by a court, not a jury.

Rule 9(j) requires a certification for a medical malpractice claim based on inadequate emergency room care.

Frazier v. Angel Medical Center · filed 2004-03-16(j)

Where the claim is based on the failure of an emergency room physician to provide adequate care, the case is actually a medical malpractice case which requires a certification.

Rule 9(j) requires support from a medical expert for a medical negligence claim unless an exception applies; a claim that meets neither requirement is subject to dismissal.

Wilson v. N.C. D.O.C. · filed 2005-06-10Rule 9(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Interlocutory Decision and Order entered on November 25, 2003 and the claim for medical negligence does not meet any of the exceptions for an affidavit.

Rule 9(j) requires dismissal of a medical negligence claim when the plaintiff fails to provide the required expert affidavit within the permitted time and no exception applies.

Truesdale v. N.C. D.O.C. · filed 2005-06-21Rule 9(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Interlocutory Decision and Order entered on November 26, 2003, and the claim for medical negligence does not meet any of the exceptions for an affidavit. Therefore, plaintiff's appeal to the Full Commission should be dismissed.

Rule 9(j) requires a medical negligence claim to satisfy its expert review requirement or an exception; failure to provide the required affidavit within the allowed time warrants dismissal.

Hargett v. N.C. D.O.C. · filed 2005-06-22(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Order entered on June 18, 2004, and the claim for medical negligence does not meet any of the exceptions for an affidavit. Therefore, plaintiff's appeal to the Full Commission should be dismissed.

Rule 9(j) requires dismissal of a medical malpractice claim that lacks the required expert review and does not qualify for an exception.

Boykin v. N.C. D.O.C. · filed 2005-07-08Rule 9(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Interlocutory Decision and Order entered on December 22, 2003 and the claim for medical negligence does not meet any of the exceptions for an affidavit. N.C. Gen. Stat. § 1A-1 , Rule 9(j). Defendant's Motion To Dismiss this civil action for medical negligence should be granted.

Rule 9(j) requires dismissal of a medical negligence claim when the plaintiff fails to provide the required expert affidavit within the time allowed and no exception applies.

Dammons v. N.C. D.O.C. · filed 2005-06-24Rule 9(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Interlocutory Decision and Order entered on December 22, 2003, and the claim for medical negligence does not meet any of the exceptions for an affidavit, Therefore, plaintiff's appeal to the Full Commission should be dismissed. N.C. Gen. Stat. § 1A-1 , Rule 9(j).

Rule 9(j) requires dismissal of a medical malpractice complaint against a health care provider unless the pleading meets its requirements.

Blyther v. N.C. Department of Correction · filed 2005-11-16Rule 9(j)

A complaint alleging medical malpractice by a health care provider shall be dismissed unless the pleading complies with the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure.

Rule 9(j) requires dismissal of a medical malpractice complaint unless the pleading meets its expert review requirements.

Simuel v. N.C. Department of Correction · filed 2005-11-16Rule 9(j)

A complaint alleging medical malpractice by a health care provider shall be dismissed unless the pleading complies with the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure.

A defendant should challenge a medical malpractice complaint’s compliance with Rule 9(j) by moving to dismiss in the trial court.

Estate of Spell v. Ghanem · filed 2005-12-20Rule 9(j)

We also disagree with defendant’s assertion that the only way to challenge plaintiffs’ purported failure to comply with Rule 9(j) is by immediate appellate review of the court’s order allowing plaintiffs to file an amended complaint. Rule 9 provides that a claim alleging medical malpractice “shall be dismissed unless” certain requirements are met. A defendant’s motion to dismiss based on failure to comply with Rule 9Q) should be brought at the trial level.

Rule 9(j) requires a medical malpractice complaint to comply with its expert certification requirement within the limitations period or an allowed extension.

Estate of Barksdale v. Duke Univ. Med. · filed 2005-12-20Rule 9(j)

Therefore, based on the precedents in Brisson and Bass, we hold that since plaintiff failed to file a complaint in compliance with the requirements of Rule 9(j) within the prescribed statute of limitations, or within the time which would have been allowed had a 120-day extension been sought, plaintiff's complaint filed 18 November 2003 was not timely filed.

Rule 9(j) requires a medical negligence claimant to provide a qualified expert's affidavit stating that the challenged care fell below the applicable standard of care.

Jones v. N.C. Department of Correction · filed 2006-06-22Rule 9(j)

Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against defendant. N.C. Gen. Stat. § 1A-1 , Rule 9(j).

Rule 9(j) requires a medical negligence claimant to provide an affidavit from a qualified medical expert stating that the care fell below the applicable standard of care; failure to provide it can result in dismissal.

Dowd v. N.C. Department of Correction · filed 2006-06-27Rule 9(j)

Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against defendant. N.C. Gen. Stat. § 1A-1 , Rule 9(j).

Rule 9(j) requires a claimant alleging medical negligence to obtain review from a medical expert willing to testify when relying on expert review to support the claim.

Craig v. N.C. Department of Correction · filed 2006-07-27Rule 9(j)

The plaintiff shall have 90 days from the stamped filing date of this order, if not already done, to secure an affidavit that complies with Rule 9(j) of the North Carolina Rules of Civil Procedure from a medical expert who has reviewed the plaintiff's claim and is willing to testify.

Rule 9(j)'s medical malpractice certification requirement does not apply to a legal malpractice complaint against an attorney.

Formyduval v. Britt · filed 2006-06-06Rule 9(j)

Rule 9(j) is a special pleading requirement that solely applies to plaintiffs who file complaints alleging medical malpractice by a health care provider. Under the clear language of the statute and our Supreme Court's precedents, Rule 9(j) does not apply to a plaintiff alleging legal malpractice against an attorney.

Rule 9(j) requires dismissal of a medical malpractice complaint against a health care provider unless the pleading meets its requirements.

Dixon v. N.C. Department of Correction · filed 2006-08-02Rule 9(j)

A complaint alleging medical malpractice by a health care provider shall be dismissed unless the pleading complies with the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure.

Rule 9(j) requires dismissal of a medical malpractice complaint against a health care provider unless the pleading meets its requirements.

Hardison v. N.C. Department of Correction · filed 2006-08-02Rule 9(j)

A complaint alleging medical malpractice by a health care provider shall be dismissed unless the pleading complies with the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure.

Rule 9(j) requires a medical-negligence claimant to provide an affidavit from a qualified medical expert stating that the challenged care failed to meet the applicable standard of care.

Rahamann v. N.C. Department of Correction · filed 2006-11-03Rule 9(j)

Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, Plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against Defendant.

Rule 9(j)'s certification requirements do not apply to a medical malpractice complaint asserting only a res ipsa loquitur claim.

Hayes v. Peters · filed 2007-06-19Rule 9(j)

In the instant case, plaintiff asserted only a res ipsa loquitur claim in his complaint. As to this claim, the certification requirements of N.C. Gen.Stat. § 1A-1, Rule 9(j) were not implicated.

Rule 9(j) requires expert certification for a medical malpractice complaint based on a decision about patient restraints that requires clinical judgment.

Sturgill v. Ashe Memorial Hospital, Inc. · filed 2007-11-06Rule 9(j)

For the reasons stated above, we hold that plaintiff’s original complaint was for medical malpractice and required Rule 9(j) certification. Because Rule 9(j) certification was not included in plaintiff’s complaint, the trial court’s entry of summary judgment for defendant is affirmed.

Rule 9(j) requires dismissal of a medical malpractice claim when the plaintiff fails to provide an expert affidavit within the time allowed by an order and no exception applies.

Howell v. Department of Correction · filed 2008-04-21Rule 9(j)

Plaintiff has not provided an affidavit in compliance with Rule 9(j) within the time permitted by the Interlocutory Opinion and Award referenced above and none of the exceptions to Rule 9(j) apply in this case, therefore, the civil action must be dismissed.

Rule 9(j) permits a plaintiff to seek an extension after filing an original complaint, so long as the motion is made before the limitations period expires and the extension is sought to file a compliant complaint.

Brown v. Kindred Nursing Centers East, L.L.C. · filed 2009-05-05Rule 9(j)

Nothing in the statute requires that a motion for the extension be granted prior to the expiration of the statute of limitations, only that the motion be brought prior to the expiration of the statute of limitations. Plaintiff complied with this requirement. Moreover, nothing in the statute requires that a plaintiff seek this extension prior to the filing of an "original" complaint, only that it be sought in order to file "a" complaint that complies with the pleading requirements.

Rule 9(j) requires dismissal of a medical malpractice claim when the claimant fails to satisfy its requirements within the time allowed and no exception applies.

Bojorquez v. N.C. Department of Correction · filed 2009-05-20Rule 9(j)

Plaintiff has not provided an affidavit in compliance with Rule 9(j) within the time permitted by the Interlocutory Opinion and Award referenced above and none of the exceptions to Rule 9(j) apply in this case. Therefore, Plaintiff's claim based on medical malpractice must be dismissed.

Rule 9(j) certification is required for a claim based on nurses’ fall risk assessment and prevention decisions when those decisions require clinical judgment and intellectual skill.

Deal v. FRYE REGIONAL MEDICAL CENTER, INC. · filed 2010-02-16Rule 9(j)

Therefore, they involve the rendering of professional services, and Rule 9(j) certification was required for plaintiff's action to proceed.

Rule 9(j) certification is not required when a complaint alleges ordinary negligence rather than medical malpractice.

Allen v. COUNTY OF GRANVILLE · filed 2010-04-06Rule 9(j)

Applying the facts as set forth above, we conclude that plaintiff’s factual allegations in her complaint do not allege a claim for medical malpractice so as to require a Rule 9(j) certification.

An amendment adding Rule 9(j) certification after the limitations period expires does not relate back to the original filing.

Webb v. N.C. Department of Correction · filed 2010-08-31Rule 9(j)

Furthermore, although Plaintiff was allowed to amend his Tort Claim Affidavit by Order of the Industrial Commission, in the instant case, the amendment was made outside the prescribed statute of limitations and does not relate back to the date of the filing of the original Affidavit.

Rule 9(j) requires certification for a medical malpractice claim when res ipsa loquitur does not apply, and a complaint lacking that certification must be dismissed.

Alston v. Granville Health System · filed 2012-06-19Rule 9(j)

As Plaintiff’s complaint does not contain the Rule 9(j) certification, it “shall be dismissed.” N.C. Gen. Stat. § 1A-1, Rule 9(j).

Rule 9(j) requires certification when a complaint’s factual allegations amount to medical malpractice, even if the plaintiff describes the claim as ordinary negligence.

Estate of Baldwin v. Rha Health Servs., Inc. · filed 2016-03-01Rule 9(j)

Plaintiff’s complaint essentially alleged a medical malpractice action, and Rule 9(j) certification was required.

Rule 9(j) certification does not apply to claims for mishandling a body after death or failing to provide bereavement services because those claims do not involve medical care.

Bennett v. Hospice & Palliative Care Center of Alamance Caswell · filed 2016-03-15Rule 9(j)

Specifically, neither the claim based on the mishandling of Ms. Maynard’s body after her death, nor the breach of contract claim for failure to provide bereavement services, involves the provision of medical care under N.C. Gen. Stat. § 90-21.11. Accordingly, we hold that the trial court erred in dismissing these claims for failure to include a Rule 9(j) certification.

Rule 8(a) requires a pleading for relief to include a short and plain statement sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved.

Parkersmith Properties v. Johnson · filed 2000-02-15Rule 8(a)

The North Carolina Rules of Civil Procedure require a pleading setting forth a claim for relief to include “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.” N.C.G.S. § 1A-1, Rule 8(a) (1999).

Rule 8 permits an alimony claim that gives fair notice through allegations of the claimant’s financial shortfall and the other spouse’s ability to pay, even without stating the other spouse’s exact income or expenses.

Quesinberry v. Quesinberry · filed 2011-04-05Rule 8(a)

While husband’s allegation that wife’s income is “significant” does not include any specific reference to the amount of wife’s income, and husband failed to include any allegations regarding wife’s expenses so as to show that she retains a surplus of income after meeting her expenses, we believe husband’s pleading, when read in its entirety, provided a sufficient basis to give wife fair notice of the grounds for husband’s claim for alimony.

Section 1A-1’s notice pleading standard does not impose a heightened pleading requirement on fiduciary duty claims against minority shareholders absent a statute or precedent requiring one.

Corwin v. British American Tobacco PLC · filed 2016-12-20Rule 8(a)(1)

Absent a specific designation by statute or precedent, we see no reason to adopt a stricter pleading standard for suits against minority shareholders for a breach of a fiduciary duty. North Carolina’s pleading standard requires a plaintiff to plead facts sufficient to overcome the presumption that a minority shareholder is not in control of a corporation’s conduct.

Rule 8(a)(1) permits allegations within the outer bounds of acceptable notice pleading, even when challenged as too conclusory.

Sykes v. Health Network Sols., Inc. · filed 2017-08-18(a)(1)

Defendants first contend that these allegations are too conclusory to satisfy Rule 8 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 8(a)(1). On this issue, the Court concludes that the allegations are within the outer bounds of acceptable notice pleading.

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

Sykes v. Blue Cross & Blue Shield of N.C. · filed 2018-04-05Rule 8(a)(1)

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

Rule 8 requires a complaint to give the defendant notice of an administrative negligence claim; allegations of medical negligence alone do not suffice.

Estate of Savino v. Charlotte-Mecklenburg Hosp. Auth. · filed 2018-12-04Rule 8(a)(1)

The same holds true at the trial court level under Rule 8. ... Those negligence allegations were not sufficient to put defendant on notice of a claim of administrative negligence.

Rule 8 requires allegations that give the defendant notice of an administrative negligence claim; allegations of medical negligence alone do not suffice.

Savino v. The Charlotte-Mecklenburg Hosp. Auth. · filed 2018-12-04Rule 8(a)

Those negligence allegations were not sufficient to put defendant on notice of a claim of administrative negligence.

Rule 8(a)’s notice pleading standard permits a breach of contract claim to proceed when the complaint adequately alleges a contract and its breach.

Edwards v. Vanguard Fiduciary Tr. Co. · filed 2018-12-21Rule 8(a)

Therefore, under the liberal standard of Rule 8(a), the Court concludes that Plaintiff has adequately alleged a breach of contract claim.

Rule 8(a) does not require a plaintiff alleging breach of contract to attach the written contract or identify its specific terms in the complaint.

Beam v. Sunset Fin. Servs., Inc. · filed 2019-09-03Rule 8(a)

First, Rule 8(a)’s notice-pleading standard does not require a plaintiff to attach a written contract to, or specifically identify its terms in, a complaint.

Rule 8 requires a pleading to give sufficiently particular notice of the transactions or occurrences supporting the claim and to demand the relief sought.

New Hanover Cnty. Bd. of Educ. v. Stein · filed 2022-02-11Rule 8(a)

An analysis of the extent to which the Board of Education’s amended complaint states a claim for relief pursuant to N.C.G.S. § 147-76.1 must begin with an examination of N.C.G.S. § 1A-1, Rule 8, which provides that a pleading must contain (1) “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief” and (2) “[a] demand for judgment for the relief to which [the plaintiff] deems himself entitled.”

Rule 8(a) requires a complaint to give sufficient notice of a claim that a manual is a defective product separate from the aircraft.

Weiss v. Cont'l Aerospace Techs. · filed 2025-03-19Rule 8(a)

The Complaint did not give Continental notice that it was required to defend a product liability claim asserting the Maintenance and Overhaul Manual as an independent defective product, separate from the Aircraft and its engine.

Rule 50(c)(1) requires a court granting judgment notwithstanding the verdict to rule conditionally on any motion for a new trial and specify the grounds for that ruling.

Southern Furniture Hardware, Inc. v. Branch Banking & Trust Co. · filed 2000-03-07(c)(1)

If the motion for judgment notwithstanding the verdict, provided for in section (b) of this rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. N.C. Gen. Stat. § 1A-1, Rule 50(c)(1). The order in the case at bar, which grants both a JNOV and a new trial, fails to conform to this Rule.

Rule 50(b)(1) permits judgment notwithstanding the verdict when a directed verdict could properly have been granted, and Rule 59(a)(5) and Rule 59(a)(7) provide for a new trial when a verdict is against the greater weight of the evidence or contrary to the trial court’s instructions.

Poor v. Hill · filed 2000-05-16Rule 50(b)(1), Rule 59(a)(5), Rule 59(a)(7)

A JNOV motion constitutes renewal of an earlier motion for directed verdict, Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985), and similarly tests the legal sufficiency of the evidence to take the case to the jury. Taylor v. Walker, 84 N.C. App. 507, 509, 353 S.E.2d 239, 240, rev’d on other grounds, 320 N.C. 729, 360 S.E.2d 796 (1987). Such motion “shall be granted if it appears that the motion for directed verdict could properly have been granted.” N.C.G.S. § 1A-1, Rule 50(b)(1) (1999). ... However, the proper remedy in the instance of a verdict against the greater weight of the evidence or contrary to the trial court’s instructions is a new trial on the issue of damages. See N.C.G.S. § 1A-1, Rule 59(a)(5),(7) (1999); Insurance Co. v. Chantos, 298 N.C. 246, 251, 258 S.E.2d 334, 338 (1979) (term “insufficiency of the evidence” in Rule 59(a)(7) includes the reason that the verdict “was against the greater weight of the evidence”).

When a court grants judgment notwithstanding the verdict, Rule 50(c)(1) requires it to rule on any motion for a new trial; a party seeking to preserve trial errors must obtain that ruling.

Cox v. Steffes · filed 2003-11-18Rule 50(c)(1)

Under Rule 50(c)(1) of the Rules of Civil Procedure, if a motion for JNOV is granted, “the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.” ... Because defendants failed to seek a ruling on their motion for a new trial and did not make any cross-assignments of error as to the trial, we reverse and remand for entry of judgment on the verdict.

Rule 46(b) preserves an objection to a court ruling when the party states the desired action and grounds, without requiring a formal objection or exception.

Inman v. Inman · filed 2000-03-07Rule 46(b)

Therefore, we hold that the plaintiff was not required to formally object or except to the order of the trial court which partially denied his motion to dismiss.

Rule 46(b) preserves an objection to a court ruling or order when the party makes known the objection or desired action and the grounds, without a formal objection or exception, unless the ruling concerns admissibility of evidence.

Gaunt v. Pittaway · filed 2000-08-29Rule 46(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) permits a party to preserve an objection to a pretrial ruling by making its position and grounds known to the court without a formal objection.

Fairfield Harbour Property Owners Ass'n v. Midsouth Golf, LLC · filed 2011-08-16Rule 46(b)

The North Carolina Rules of Civil Procedure provide that formal objections are not necessary with respect to pre-trial motions “and other orders of the court not directed to the admissibility of evidence[.]” N.C. Gen. Stat. § 1A-1, Rule 46(b) (2009). To preserve an exception to a pre-trial ruling for appellate review, it is “sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party’s objection to the action of the court or makes known the action that the party desires the court to take and the party’s grounds for its position.” Id. Here, Defendant submitted affidavits, arguments, and a memorandum of law in opposition to Plaintiff’s motion for summary judgment. Accordingly, Defendant timely objected to the trial court’s ruling and satisfied the first element of N.C. Gen. Stat. § 1-278.

Rule 54(b) permits an interlocutory order in a multi-party, multi-claim action to be appealed when the trial court enters final judgment on a party or claim and certifies that there is no just reason for delay.

Lee v. MUTUAL COMMUNITY SAVINGS BANK, SSB · filed 2000-03-07Rule 54(b)

Second, pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an interlocutory order is appealable in an action with multiple parties and multiple claims “if the trial court enters a final judgment as to a party or a claim and certifies there is no just reason for delay.”

Rule 54(b) generally bars immediate appeal of an interlocutory order unless an applicable exception permits review.

Murphy v. Coastal Physician Group, Inc. · filed 2000-08-01Rule 54(b)

Generally, there is no right of immediate appeal from an interlocutory order. N.C. Gen.Stat. § 1A-1, Rule 54(b) (1990); see also Veazey, 231 N.C. at 362, 57 S.E.2d at 381. ... The trial court's order for partial summary judgment in favor of Murphy as to Coastal's four counterclaims is not excepted from the general rule that an interlocutory order is not immediately appealable, and therefore we grant Murphy's motion to dismiss Coastal's appeal.

Rule 54(b) limits appeals from interlocutory orders and permits appeal of a finally determined claim when the trial court certifies that there is no just reason to delay the appeal.

ALEXANDER HAMILTON LIFE INS. v. Marsh · filed 2001-04-03(b)

We do not review interlocutory orders as a matter of course. N.C. Gen.Stat. § 1A-1, Rule 54(b) (1999); Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).

Rule 54 generally permits an immediate appeal from an interlocutory order only when delaying review would affect a substantial right.

Guy v. Guy · filed 1975-11-05Rule 54

The joinder and restraining orders are in the nature of interlocutory orders. As such, they are generally held nonappealable unless some substantial right will be affected if the appeal is not immediately perfected. G.S. 1-277; G.S. 1A-1, Rule 54; Pruitt v. Williams, 288 N.C. 368, 218 S.E. 2d 348 (1975).

Rule 4(d) allows an action to continue against an unserved defendant through an alias or pluries summons issued within the prescribed period.

Thomas v. Washington · filed 2000-03-07(d)

Here, the provisions relating to issuance of alias or pluries summonses did not apply, as both individual defendants were served personally with the original summons.

Rule 6(b) does not permit retroactive extension of the time to issue an alias and pluries summons after an action has been discontinued.

Russ v. Hedgecock · filed 2003-11-18Rule 6(b)

The plaintiffs’ attempt to retroactively extend the time period for issuing the alias and pluries summons is not allowed by Rule 6(b).

Rule 4(d) allows an alias or pluries summons to relate back only when the original summons was directed to the same defendant.

Stack v. Union Regional Memorial Medical Center, Inc. · filed 2005-07-05Rule 4(d)

The present case is similar to Roshelli in that the original summons was not directed to or served on Union Regional, but rather an entirely different entity. Since there was not a properly directed summons that was merely not served, Rule 4(d) does not apply and the subsequent summons is not a valid alias or pluries summons that relates back to the original summons.

Rule 4(e) permits endorsement of a summons after the action has been discontinued, but treats the action as commenced on the date of that endorsement.

In the Matter of Vt · filed 2007-02-06Rule 4(e)

However, where an endorsement is not obtained within ninety days after issuance or prior endorsement of a summons and the action has been discontinued, a further extension of the summons may be endorsed by the clerk, but "the action shall be deemed to have commenced on the date of such issuance or endorsement." N.C. Gen. Stat. § 1A-1, Rule 4(e) (2005). ... However, petitioner obtained an endorsement on the summonses on 27 April 2005 and the action to terminate respondent's parental rights is deemed to have been instituted against respondent as of this date.

To continue an action from the original summons, successive alias or pluries summonses must form an unbroken chain referring back to it.

Robertson v. Price · filed 2007-11-06Rule 4(d)(2)

Although the 12 June 2006 summonses referred to the 3 April 2006 summonses, because the 3 April 2006 summonses were not alias or pluries and did not refer back to the 14 March 2006 summonses, Ms. Robertson failed to create “an unbroken chain from the first summons to the time of actual service.”

A new summons that does not meet Rule 4(d)'s requirements for continuing an action discontinues the original action, even if the original summons is not yet dormant.

In re D.B. · filed 2007-11-06Rule 4(d)

While the original summons was not yet dormant, because the second summons did not conform with the requirements of Rule 4(d), the original action was discontinued, and the trial court's subject matter jurisdiction was reinvoked as of 18 October 2004.

An alias and pluries summons must issue within ninety days of the preceding summons to continue the action; otherwise, the action is deemed commenced when the later summons issues.

Kimball v. Vernik · filed 2010-12-07Rule 4(d)(1), (e)

In this case, Plaintiff failed to sue out his alias and pluries summons within the ninety-day period and, thus, his action was deemed to have commenced on the eventual date of issuance of the alias and pluries summons: 31 July 2009.

Rule 4(e) discontinues an action when a summons expires without renewal; a new summons revives the action but resets its commencement date.

North Carolina State Bar v. Hunter · filed 2011-12-06Rule 4(e)

Under Rule 4(e) of the Rules of Civil Procedure, a lawsuit is discontinued if the summons expires and no alias or pluries summons is obtained. N.C. Gen. Stat. § 1A, Rule 4(e) (2009). It may be revived when a new summons is issued, but the lawsuit is then deemed by law to have been filed on the date the new summons is issued.

Rule 4(e) treats an alias or pluries summons issued after the Rule 4(d) period as commencing a new action on its issuance date.

Builders Mut. Ins. Co. v. Doug Besaw Enters., Inc. · filed 2015-07-21Rule 4(e)

As such, pursuant to Rule 4(e), the alias and pluries summons commenced a new action when it was issued on 17 January 2014.

Rule 4 requires summonses to be directed to the defendant; alias and pluries summonses directed to someone else cannot relate back to the original filing date.

Oates v. Parker · filed 2017-05-02Rule 4(b), (d)

Because the six alias and pluries summonses were not directed to defendant Parker, they cannot relate back to the date of the original filing.

An alias or pluries summons must refer to the original summons in its body to continue the chain of summonses.

Integon General Insurance v. Martin · filed 1997-09-16Rule 4(d)

The issuance of an alias or pluries summons without this reference has the double effect of initiating a new action and discontinuing the original one.

Rule 59(a) authorizes remedying an erroneous dismissal based on lack of jurisdiction and venue.

Wilson v. Jefferson-Green, Inc. · filed 2000-03-07Rule 59(a)

Plaintiff contends the trial court erred in dismissing her claims based on lack of jurisdiction and venue and in not remedying this error pursuant to N.C.G.S. § 1A-1, Rule 59(a) (1990). We agree and remand this action to the district court.

Rule 54(b) limits when a trial court may certify a decision for immediate appeal and does not permit certification of an interlocutory order merely because it affects a substantial right.

Lambe Realty Investment, Inc. v. Allstate Insurance · filed 2000-03-21Rule 54(b)

By its express language, Rule 54(b) limits the situations in which the trial court may certify a decision for immediate appeal. ... In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. ... Thus, although a party may appeal an interlocutory order and argue on appeal that the issue appealed affects a substantial right of the appellant, that argument must be directed to the appellate court and not to the trial court.

Rule 54(b) permits an immediate appeal from an order that finally resolves some, but not all, claims or parties when the trial court certifies the case for appeal.

McConnell v. McConnell · filed 2002-08-06Rule 54(b)

An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.G.S. § 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review.

Rule 54(b) permits a court to enter a final judgment as to fewer than all claims or parties for immediate appeal when there is no just reason for delay and the judgment says so.

Asher v. Honeycutt · filed 2022-08-02(b)

In other words, a proper Rule 54(b) certification of an interlocutory order requires: (1) that the case involve multiple parties or multiple claims; (2) that the challenged order finally resolve at least one claim against at least one party; (3) that the trial court certify that there is no just reason for delaying an appeal of the order; and (4) that the challenged order itself contain this certification.

Rule 12(b) requires a motion to dismiss to be treated as a Rule 56 summary judgment motion when matters outside the pleadings are presented and not excluded.

Cash v. State Farm Mutual Automobile Insurance · filed 2000-04-04Rule 12(b)

If, on a [12(b)(6)] motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 12(b) requires a Rule 12(b)(6) motion to be treated as summary judgment when the court considers matters outside the pleadings, but imposes no similar restriction for a Rule 12(b)(2) motion.

Data General Corp. v. County of Durham · filed 2001-04-17(b)

Rule 12(b) provides that a motion to dismiss for failure to state a claim under Rule 12(b)(6) “shall be treated as one for summary judgment and disposed of as provided in Rule 56” where the trial court considers matters outside the pleadings in ruling on the motion. N.C. Gen. Stat. § 1A-1, Rule 12(b). Rule 12(b) imposes no similar requirement or restriction upon the trial court in considering matters outside the pleadings in ruling on a motion to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction, and we decline to do so.

A Rule 12(b)(6) motion must be treated as a summary judgment motion when the court considers matters outside the pleadings.

Pinney v. State Farm Mutual Insurance · filed 2001-09-18Rule 12(b)

On a motion to dismiss under Rule 12(b)(6), if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” N.C. Gen. Stat. § 1A-1, Rule 12(b) (1999); see also, Schnitzlein v. Hardee’s Food Sys., Inc., 134 N.C. App. 153, 157, 516 S.E.2d 891, 893, disc. review denied, 351 N.C. 109, 540 S.E.2d 365 (1999) (motion to dismiss must be converted into motion for summary judgment where matters outside pleadings presented to and considered by court).

Rule 12(b)(6) permits conversion of a motion to dismiss into a summary judgment motion when both parties have a reasonable opportunity to present pertinent material.

Morgan v. AT & T CORP. · filed 2005-02-15Rule 12(b)(6)

As both parties were afforded a reasonable opportunity to present all material pertinent to the motion, we therefore find no abuse of discretion on the part of the trial court in converting defendant's 12(b)(6) motion to a motion for summary judgment.

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

Morris v. Moore · filed 2007-10-16Rule 12(b)

When material outside of the pleadings is presented to the trial court during a hearing considering a motion to dismiss pursuant to Rule 12(b)(6), and the material is not excluded by the trial court, the motion is treated as one for summary judgment and disposed of pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.

When a court considers material outside the pleadings on a Rule 12(b)(6) motion, the motion becomes one for summary judgment and the parties must have a reasonable opportunity to respond under Rule 56.

Leech v. State of N.C. · filed 2025-10-01Rule 12(c)

Because the trial court allowed material clearly outside of the original pleadings, the 12(b)(6) motion was converted to a motion for summary judgment.

Rule 26(b)(3) protects materials prepared for litigation from discovery unless the requesting party shows substantial need and inability to obtain their equivalent without undue hardship.

North Carolina State Bar v. Harris · filed 2000-04-04Rule 26(b)(3)

Since we are persuaded by the reasoning in In re PCB, we hold that the notes and reports in this case were not discoverable until there was a showing by the defendant that he had a “substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent.” N.C.G.S. § 1A-1, Rule 26(b)(3).

Rule 26(b)(3) protects materials prepared in anticipation of litigation or for trial and permits discovery upon substantial need and inability to obtain the equivalent without undue hardship.

North Carolina State Bar v. Harris · filed 2000-08-29(b)(3)

Indeed, North Carolina recognizes the attorney-work product rule under N.C. Gen. Stat. § 1A-1, Rule 26(b)(3) (1990). Under that statute, attorney-work product is defined in relevant part to include, among other things, materials “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s . . . agent....” Id. Such evidence may be obtained by a party “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Id.

Rule 26(b)(3) permits discovery of work product when a party has a substantial need for it and cannot obtain a substantial equivalent without undue hardship.

Isom v. Bank of America, N.A. · filed 2006-05-02Rule 26(b)(3)

Isom may discover a document protected by the work product doctrine if she can demonstrate that a “substantial need” for the document exists and she would undergo “undue hardship” if forced to obtain a substantial equivalent by other means.

Rule 26(b)(3) protects claim reserve documents as work product from the date litigation is reasonably anticipated.

Wachovia Bank, National Ass'n v. Clean River Corp. · filed 2006-07-18Rule 26(b)(3)

Since the trial court previously determined 20 December 2001 was the appropriate date for the inception of the work-product doctrine, we also hold the work-product doctrine covers documents respecting claim reserve data from 20 December 2001 forward.

Rule 26(b)(3) protects documents prepared in anticipation of litigation, but does not protect an ordinary business record merely because it describes actions taken in anticipation of litigation.

Brown v. American Partners · filed 2007-06-05Rule 26(b)(3)

It does not shield from disclosure actions taken in anticipation of litigation or information contained in a document that does not constitute work product. Because the Credit Union has failed to show that Document 1 itself, as opposed to any action or conduct discussed therein, was prepared in anticipation of litigation, we affirm the trial court's order as to this document.

Rule 26(b)(3) protects work product from discovery unless the requesting party shows substantial need and undue hardship in obtaining equivalent material.

Lawrence v. Umlic-Five Corp. · filed 2007-09-14(b)(3)

Work product is shielded from discovery unless the party seeking the material demonstrates a “substantial need” for it and “undue hardship” should he be required to obtain its substantial equivalent by other means.

Rule 26(b)(3) does not protect an accident report prepared in the ordinary course of business under a company safety policy.

Fulmore v. Howell · filed 2008-03-04Rule 26(b)(3)

Moreover, the accident report was created in the ordinary course of the business of Pilgrim’s Pride, pursuant to their safety manual, which negates the possibility of the protection of the report under the doctrine of work product.