N.C. Gen. Stat. § 1A-1

Rule 26(b)(3) protects counsel’s selected verbatim excerpts from an opposing party’s documents as attorney work product.

Boyce & Isley, PLLC v. Cooper · filed 2009-03-17Rule 26(b)(3)

As discussed infra, we conclude that the verbatim text is the work product of defendants’ counsel and consequently that the trial court erred by ordering defendants’ to disclose a copy of the verbatim text to plaintiffs.

Rule 26(b)(3) protects communications prepared in anticipation of litigation by someone acting as a company’s consultant or agent.

Global Textile Alliance, Inc. v. TDI Worldwide, LLC · filed 2020-08-14Rule 26(b)(3)

The work-product doctrine only protects communications when they are “prepared in anticipation of litigation” by a person acting as a company’s “consultant . . . or agent.” N.C.G.S. § 1A-1, Rule 26(b)(3) (2019); see also Willis v. Duke Power Co., 291 N.C. 19, 35–36, 229 S.E.2d 191, 201 (1976).

Rule 26(b)(3) does not protect documents drafted for an independent business purpose merely because litigation may be anticipated.

Ford v. Jurgens · filed 2021-10-05(b)(3)

As a governing document for the LLC, the operating agreement has a distinct business purpose separate and apart from any concern about possible litigation. Stated differently, although the threat of litigation may have been in the air, the independent business reason for drafting the operating agreement to govern the LLC strips the resulting drafts from work product protection.

Rule 26(b)(3) prohibits disclosure of an attorney’s mental impressions, conclusions, opinions, legal theories, or work product concerning the litigation.

State v. Pallas · filed 2001-06-19(b)(3)

The trial court may not “permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action.”

The Rules of Civil Procedure govern procedure in North Carolina superior and district courts and do not apply to proceedings in this Court.

Bacon v. Lee · filed 2001-08-02Rule 1

The Rules of Civil Procedure do not apply to proceedings in this Court.

Rule 13(c) allows a counterclaim to diminish or defeat the opposing party’s recovery and to seek greater or different relief; claims and counterclaims may be set off so only a net recovery accrues.

Lake Mary Ltd. Partnership v. Johnston · filed 2001-08-21(c)

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 13(c) (1999), “[a] counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.” (Emphasis added.) “[T]he rule permits a court to set off judgments by way of claim and counterclaim against each other so that only a net recovery accrues to the prevailing party.”

Rule 58 requires the designated party to serve the judgment on all other parties within three days, with service and proof of service following Rule 5.

Davis v. Kelly · filed 2001-11-06

G.S. § 1A-1, Rule 58 requires “[t]he party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5.”

Rule 58 treats a magistrate’s small claims judgment announced and signed in open court at the end of trial as served on all parties.

Carroll v. Perry · filed 2008-01-15Rule 58

Defendant, however, fails to note that under Rule 58, judgments entered by a magistrate in a small claims court that are "announced and signed in open court at the conclusion of a trial are considered to be served . . . on all parties[.]" Id. Here, the judgment was entered by a magistrate in a small claims action and was announced and signed in open court. Thus, defendant was considered served in accordance with Rule 58 at that time.

Rule 58’s service requirements are not met when a certificate of service omits the recipients’ names and service addresses.

Frank v. Savage · filed 2010-07-06Rule 58

Defendants’ certificate of service does not show the name or service address of any person upon whom the order was served. ... We believe that Defendants’ failure to comply with the service requirements of Rule 58 of the Rules of Civil Procedure in the present case requires us to apply Rule 3(c)(2) and not Rule 3(c)(1).

Rule 5(b) requires a certificate of service; when none is filed for a judgment, the time to file a notice of appeal is tolled.

Rice v. COHOLAN · filed 2010-07-06Rule 5(b)

In the present case, the record on appeal shows that Plaintiffs did not file a certificate of service of the order of 14 August 2008. Because ... there was no certificate of service filed, the time for filing the notice of appeal was tolled.

Rule 58 tolls the time to serve a Rule 59 new-trial motion while the party responsible for serving the judgment fails to do so.

D.G. II, LLC v. Nix · filed 2011-07-05Rule 58

According to Rule 58, all time periods within which a party may further act pursuant to Rule 59 shall be tolled during any period of noncompliance with the service requirement. Therefore, 17 May 2010 is the earliest possible date for determining the timeliness of plaintiff’s Motion for New Trial. However, since defendants, as the party designated by the trial court to prepare the judgment, never served plaintiff with a copy of the judgment, the ten-day period in which plaintiff was entitled to file its Motion for New Trial had not been triggered when it filed its motion on 1 June 2010.

Rule 58 permits a trial court to serve its own orders despite its reference to service by a designated party.

E. Brooks Wilkins Family Med., P.A. v. Wakemed · filed 2016-01-05Rule 58

We reject Plaintiff’s argument that service of an order by the court does not comply with Rule 58 because the trial court is not a “party,” i.e., not one of the named parties to the action.

Rule 12(f) allows a court to strike insufficient, redundant, irrelevant, immaterial, impertinent, or scandalous matter from a pleading and tests the legal sufficiency of an affirmative defense.

Department of Transportation v. Blue · filed 2001-12-18Rule 12(f)

Under Rule 12(f), the trial court “may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” G.S. § 1A-1, Rule 12(f). A motion under Rule 12(f) is a device to test the legal sufficiency of an affirmative defense.

Rule 12(f) permits a court to strike an affirmative defense that is legally insufficient.

Faulconer v. Wysong and Miles Co. · filed 2002-12-31Rule 12(f)

A motion under Rule 12(f) is a device to test the legal sufficiency of an affirmative defense. ... We hold that the doctrine of frustration of purpose is inapplicable to the present case and that the trial court was correct in granting plaintiff’s motion to strike.

Rule 12(f) does not warrant striking complaint allegations that are relevant and material to the plaintiff’s claims.

Womack Newspapers, Inc. v. Town of Kitty Hawk Ex Rel. Kitty Hawk Town Council · filed 2007-01-02Rule 12(f)

As the substance of plaintiff’s allegations were relevant and material to plaintiff’s claims, we hold the trial court did not err in denying defendants’ motion to strike portions of plaintiff’s amended complaint.

Rule 12(f) does not permit a court to strike a pleading solely because it was filed late.

Carpenter v. Carpenter · filed 2008-04-15Rule 12(f)

It is error for a court to grant a motion to strike a pleading that was untimely filed in the absence of a showing that the pleading violates Rule 12(f). According to the plain language of North Carolina Rules of Civil Procedure, Rule 12(f), untimely filing is not grounds for striking a pleading.

Rule 12(f) permits an answer to include documents concerning a transaction alleged in the complaint when those documents bear on the litigation.

Reese v. Mecklenburg County · filed 2010-06-15Rule 12(f)

Having included those allegations in his complaint, we believe that the County and the Facilities Corporation were entitled to attach the documentation evincing the County’s approval of that transaction to their answer and counterclaims. ... As a result, we conclude that the trial court did not abuse its discretion by denying Plaintiff’s motion to strike Exhibit No. 7.

Rule 12(f) does not permit striking prior pleadings and orders needed to determine the scope of earlier litigation relevant to preclusion defenses.

Reese v. BROOKLYN VILLAGE, LLC · filed 2011-03-01Rule 12(f)

Moreover, as the pleadings from Reese I, Reese II, and Reese III, and the dispositive orders in those cases, are necessary to a proper determination of the scope of prior litigation between the parties within the context of the res judicata and collateral estoppel defenses, those materials are not redundant, irrelevant, immaterial, impertinent, or scandalous matter which should have been stricken by the trial court.

Rule 12(f) permits a court to deny a motion to strike when an allegation’s irrelevance is unclear.

Bochkis v. Med. Justice Servs., Inc. · filed 2016-11-23Rule 12(f)

Again, it is not clear to the Court at this stage that such an allegation is irrelevant. Therefore, the Court, in the exercise of its discretion, also denies Defendant’s Motion to Strike on this basis.

Rule 12(f) permits a judge to strike an insufficient defense from a pleading on the judge's own initiative at any time, even if the defense was omitted from a party's motion to strike.

Pender County v. Sullivan · filed 2019-04-16Rule 12(f)

However, "upon the judge's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter." N.C. Gen. Stat. § 1A-1, Rule 12(f). Accordingly, we find no abuse of discretion by the trial court in granting Plaintiffs' motion to strike.

Rule 12(f) permits a court to deny a motion to strike when it is unclear whether the challenged allegations will bear on the litigation.

Haddock v. Volunteers of Am., Inc. · filed 2021-01-22Rule 12(f)

First, it is unclear at this stage of the proceeding whether paragraphs 30 and 31 would be inadmissible pursuant Rule of Evidence 408, and second, it is unclear whether or not paragraphs 30 and 31 will have any bearing upon this litigation. Accordingly, the Court in its discretion DENIES the Motion to Strike.

Rule 12(f) gives the court discretion to deny a motion to strike when it is unclear whether an allegation is irrelevant to the litigation.

Loyd v. Griffin · filed 2021-12-10Rule 12(f)

Pursuant to Rule 12(f), a trial court “may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” ... It is unclear to the Court at this stage of the proceeding whether an allegation by Loyd that Griffin and Sipe shared an “improper personal relationship” is irrelevant to the other matters involved in this suit. ... Therefore, the Court, in the exercise of its discretion, denies Defendant’s Motion to Strike on this basis.

A motion to dismiss based on a prior pending action may be raised in a responsive pleading.

Nationwide Mutual Insurance v. Douglas · filed 2001-12-28Rule 12(b)(2)-(5)

Douglas’s motion to dismiss presents essentially the same questions as the outmoded plea of abatement, and was properly raised in her responsive pleading.

Rule 4 establishes certified-mail service and a rebuttable presumption of valid service from record compliance, while Rule 35(a) permits a mental examination only on a good-cause showing when mental condition is in controversy.

In Re Williams · filed 2002-05-07Rule 4 and Rule 35(a)

Rule 4 provides the procedure by which a party can overcome a Rule 12(b)(5) motion to dismiss for insufficiency of process. See N.C. Gen. Stat. § 1A-1, Rule 4 (1999). ... This return receipt and respondent’s filed petition show sufficient compliance with Rule 4 to raise a rebuttable presumption of valid service. Respondent did not rebut this presumption by showing he never received the summons and complaint. See id. Thus, we find that defendant was sufficiently served with process. ... Rule 35 states that a judge may order a party to submit to a mental examination upon a showing of good cause when the mental condition of a party is in controversy. See N.C. Gen. Stat. § 1A-1, Rule 35(a) (1999). ... Accordingly, respondent failed to make a good cause showing that a mental examination of Thomas was necessary.

Rule 12(b)(2) permits dismissal for lack of personal jurisdiction, and the plaintiff bears the burden of making a prima facie showing that a statutory basis for jurisdiction exists.

Wyatt v. Walt Disney World, Co. · filed 2002-07-02(b)(2)

Upon a defendant’s personal jurisdiction challenge, the plaintiff has “the burden of proving prima facie that a statutory basis for jurisdiction exists.”

Rule 12(b)(2) permits dismissal for lack of personal jurisdiction, and motions are treated according to their substance rather than their label.

North Carolina Farm Bureau Mutual Insurance v. Holt · filed 2002-11-19(b)(2)

However, in its order, the trial court treated the motion as a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2). We will also treat defendant’s motion as a Rule 12(b)(2) motion since defendant’s motion was based on lack of personal jurisdiction and “[a] motion is properly treated according to its substance rather than its label.”

Rule 43(e) permits a trial court to decide a personal-jurisdiction challenge on affidavits or after an evidentiary hearing with witness testimony or depositions.

Adams, Kleemeier, Hagan, Hannah & Fouts, PLLC v. Jacobs · filed 2003-06-17Rule 43(e)

A trial court ruling on the defendant's challenge to the exercise of personal jurisdiction may either (1) decide the matter based on affidavits, or (2) conduct an evidentiary hearing with witness testimony or depositions. N.C.G.S. § 1A-1, Rule 43(e) (2001).

Rule 43(e) permits a trial court deciding a personal jurisdiction challenge to use affidavits or hold an evidentiary hearing with testimony or depositions.

Eluhu v. Rosenhaus · filed 2003-08-05Rule 43(e)

A trial court ruling on the defendant's challenge to the exercise of personal jurisdiction may either (1) decide the matter based on affidavits, or (2) conduct an evidentiary hearing with witness testimony or depositions. N.C.G.S. § 1A-1, Rule 43(e) (2001).

On a Rule 12(b)(2) motion, a plaintiff cannot rely on complaint allegations that the defendant has countered with evidence.

Lulla v. Effective Minds, LLC · filed 2007-06-19Rule 12(b)(2)

In a situation where a defendant submits evidence to counter the allegations in a plaintiffs complaint, those allegations can no longer be taken as true and the plaintiff can no longer rest on the allegations.

Under Rule 12(b)(2), the plaintiff bears the burden of proving grounds for personal jurisdiction by a preponderance of the evidence at an evidentiary hearing or trial.

Miller v. SZILAGYI · filed 2012-06-05Rule 12(b)(2)

“The trial court may conduct an evidentiary hearing including testimony or depositions, but the plaintiff maintains the ultimate burden of proving personal jurisdiction by a preponderance of the evidence at the evidentiary hearing or at trial.”

Rule 4 prescribes service methods required to obtain personal jurisdiction, and Rule 60(b)(4) permits relief from a final order when the judgment is void.

Van Engen v. Que Scientific, Inc. · filed 2002-08-06Rule 4; Rule 60(b)(4)

To obtain jurisdiction over them as individual defendants and bring them into the action, plaintiff was required to serve process on the Deans pursuant to N.C. Gen. Stat. § 1A-1, Rule 4 (1999) which “provides the methods of service of summons and complaint necessary to obtain personal jurisdiction over a defendant, and the rule is to be strictly enforced to insure that a defendant will receive actual notice of a claim against him.”

Rule 60(b)(4) permits a void judgment to be attacked at any time, and Rule 4(j5) makes acceptance of service effective like formal service while allowing rebuttal with clear, unequivocal, and convincing evidence.

Freeman v. Freeman · filed 2002-12-31(b)(4), (j5)

The trial court based its order setting aside the divorce judgment on the determination that the judgment was a “nullity.” Rule 60(b)(4) provides relief from judgments that are void, and the statute indicates that a motion under this provision must be made “within a reasonable time.” Case law indicates that because a void judgment is a legal nullity, it may be attacked at any time. See Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 567 S.E.2d 179 (2002). We hold that the motion under Rule 60(b)(4) was timely.

Rule 4(j)(1)(a) permits personal service.

In re D.R.S. · filed 2007-01-02Rule 4(j)(1)(a)

Under G.S. § 1A-1, Rule 4(j)(1)(a), personal service is an acceptable means of service.

Rule 4(j)(1) permits service on a natural person by leaving the summons and complaint at the person’s dwelling or usual place of abode with a suitable resident.

Sowell v. Clark · filed 2002-08-06Rule 4(j)(1)

The North Carolina Rules of Civil Procedure provide that service upon a natural person may be made: ... a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. ... N.C. Gen. Stat. § 1A-1, Rule 4(j)(1) (2001).

Rule 4(j)(1)(c) permits service on an individual at a workplace only if the summons and complaint can be delivered to that individual there.

Richardson v. Roberts · filed 2019-01-07Rule 4(j)(1)(c)

A plaintiff may deliver the documents to defendant's place of employment. ... Because defendant Bierline is no longer employed by the Department of State Treasurer, it could not be delivered to her there.

Rule 4(j)(1) does not permit service on an individual through a coworker who was not authorized to accept process.

Shreve v. Officer Wolfe (2612) · filed 2021-08-26Rule 4(j)(1)

However, defendant never authorized or designated Officer Morrow to accept service of process on his behalf, either personally or in his official capacity. Defendant does not even work at the RPD headquarters building. Therefore, defendant has not been validly served in his individual capacity.

Rule 4(j)(1) permits service on an individual through an agent authorized by appointment or law to accept it; service at the individual’s workplace is insufficient when the recipient lacks that authority.

Scott v. Harven A. Crouse Detention Center · filed 2023-05-30Rule 4(j)(1)

North Carolina Rule of Civil Procedure 4(j) provides that service on an individual shall be made by, among other ways, “delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process….” N.C. Gen. Stat. § 1A-1, Rule 4(j)(1).

Rule 42(b) allows the trial court to bifurcate a trial without following the procedures required for a motion under N.C. Gen. Stat. § 1D-30.

Land v. Land · filed 2010-01-05Rule 42(b)

However, where the motion to bifurcate is made under the more general provision of Rule 42(b) of the Rules of Civil Procedure, the trial court is not so bound.

Rule 42(b)(3) bars evidence solely about damages during the liability phase of a bifurcated trial, but evidence relevant to impeach testimony that opens the door may be admitted for that limited purpose.

Hill v. Boone · filed 2021-09-21Rule 42(b)(3)

We note it would be error under N.C.G.S. § 1A-1, Rule 42(b)(3) to allow the videotape surveillance for substantive purposes in the liability portion of the bifurcated trial. ... The videotape surveillance evidence was relevant for impeachment purposes under Rule 401. The trial court did not err in allowing Defendants to play the videotape surveillance for the jury while impeaching Plaintiff’s testimony.

Rule 37(b)(2)(c) permits sanctions including striking pleadings or dismissing an action, while Rules 60(b)(2) and 60(b)(6) provide grounds for relief from a judgment.

Parks v. Green · filed 2002-10-15Rule 37(b)(2)(c); Rule 60(b)(2); Rule 60(b)(6)

Rule 3(1) of the Rules for Court-Ordered Arbitration provides that “[a]ny party failing or refusing to participate in an arbitration proceeding in a good faith and meaningful manner shall be subject to sanctions” set forth in North Carolina Rules of Civil Procedure Rule 37(b)(2)(c). Pursuant to Rule 37(b)(2)(c), the trial court is allowed to enter “[a]n order striking out pleadings or parts thereof, ... or dismissing the action or proceeding or any part thereof.” G.S. § 1A-1, Rule 37(b)(2)(c). Defendant concedes in his brief and we hold that the trial court has the authority to strike his request for a trial de novo as a sanction pursuant to the Rules for Court-Ordered Arbitration. ... Rule 60(b)(2) of the North Carolina Rules of Civil Procedure “provides in pertinent part that a trial judge may relieve a party from a judgment when there is ‘newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).’ ” ... Rule 60(b)(6) states that relief is available for “[a]ny other reason justifying relief from the operation of the judgment.” G.S. § 1A-1, Rule 60(b)(6). To set aside a judgment or order under Rule 60(b)(6), the movant must show that extraordinary circumstances exist and that justice demands the relief.

A referral error under Rule 53(a)(2)(c) is cured when the judge independently evaluates the evidence and decides the matter.

Dockery v. Hocutt · filed 2002-11-05(a)(2)(c)

We hold that any error in referring this matter to a referee under Rule 53(a)(2)(c), was cured by Judge Stephens’ Order of Confirmation which indicates that he independently evaluated the evidence presented by both sides and determined that as a matter of law, plaintiff had failed to establish a claim of title by adverse possession.

Rule 9(j) permits a proper order to extend the statute of limitations through 11 December 2000.

Howard v. Vaughn · filed 2002-12-31(j)

Under Rule 9(j), a proper order extended the statute of limitations through 11 December 2000.

A Rule 9(j) order extending the limitations period for a medical malpractice claim is ineffective unless it is filed.

Watson v. Price · filed 2011-04-19(j)

Accordingly, in this case, pursuant to our holding in Webb, we must conclude that Judge Hudson's Rule 9(j) order did not extend the statute of limitations because the order was never filed.

Rule 9(k) requires aggravating factors supporting punitive damages to be averred with particularity.

Wilkins v. Safran · filed 2007-09-04Rule 9(k)

The aggravating factors must be “averred with particularity” and proved by clear and convincing evidence.

Rule 9(k) requires a demand for punitive damages to be specifically stated.

Anderson v. Brokers, Inc. (In Re Brokers, Inc.) · filed 2008-10-17Rule 9(k)

North Carolina Rules of Civil Procedure require that a demand for punitive damages be specifically stated.

Rule 9(k) requires a punitive damages demand to state its supporting aggravating factor with particularity.

Bradshaw v. Maiden · filed 2015-08-10Rule 9(k)

“A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity.” N.C. Gen. Stat. § 1A-1, Rule 9(k). ... Thus, the Court concludes that Plaintiffs’ request for punitive damages should survive Defendant’s Motion to Dismiss at this early stage of this litigation, without prejudice to revisit the claim by later motion practice.

Rule 9(k) requires a punitive damages plaintiff to plead the aggravating factor with particularity, but not details about the allegedly tortious corporate agent.

Jones v. J. Kim Hatcher Ins. Agencies, Inc. · filed 2025-05-23Rule 9(k)

As a matter of statutory interpretation, only the aggravating factor, and not the details of the allegedly tortious corporate agent, must be “averred with particularity.”

Rule 9(k) requires a specific claim for punitive damages in North Carolina courts.

Eli Research, Inc. v. United Communications Group, LLC · filed 2004-04-06Rule 9(k)

Indeed, in the North Carolina courts, a specific claim for punitive damages is required.

Rule 43(e) permits a court to consider affidavits at a show cause hearing on a preliminary injunction.

State Ex Rel. Morgan v. Dare to Be Great, Inc. · filed 1972-07-12Rule 43(e)

G.S. 1A-1, Rule 7 (b) (1) provides that an application to the court for an order shall be by motion, and G.S. 1A-1, Rule 43 (e) provides: “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Accordingly, both before and after the adoption of the new rules of civil procedure, it was and is proper for the court to consider evidence by affidavits in show cause hearings for. injunctions.

Rule 6(d) gives a trial court discretion to proceed with a hearing after an opposing affidavit is served late.

Raper v. Oliver House, LLC · filed 2006-12-05Rule 6(d)

Rule 6(d) provides the trial court with discretion to proceed with the hearing after plaintiff untimely submitted her affidavit.

Under Rule 43(e), affidavits offered to establish personal jurisdiction for a default judgment must be based on personal knowledge.

Lemon v. Combs · filed 2004-06-01Rule 43(e)

Rule 43(e) has been applied to motions related to default judgments. See Webb v. James, 46 N.C.App. 551, 265 S.E.2d 642 (1980). Moreover, as a default judgment also results in the termination of a lawsuit, affidavits purporting to establish personal jurisdiction should be based upon personal knowledge.

Rule 56(e)’s personal-knowledge requirement also applies to affidavits considered under Rule 43(e).

In Re Foreclosure of Deed of Trust From Yopp · filed 2011-12-20Rule 56(e)

Although Rule 56(e) applies to summary judgment motions, “this Court has held the N.C. R. Civ. Pro. 56(e) requirement that affidavits must be based upon personal knowledge applies to Rule 43(e).”

Rule 6(d) gives trial courts discretion to accept affidavits served less than two days before a motion hearing.

Register v. Wrightsville Health Holdings · filed 2020-05-05Rule 6(d)

As Plaintiff notes, the trial court offered Defendants more time to respond to the untimely affidavits pursuant to the discretion Rule 6(d) affords. Once Defendants declined that offer, the trial court in its discretion refused to grant Defendants’ motion to strike the affidavits.

Rule 56 summary judgment cannot be used to determine grounds for terminating parental rights because the juvenile code requires the court to hear evidence and make findings of fact.

In Re JNS · filed 2004-07-20Rule 56(c)

Summary judgment on the existence of grounds for termination of parental rights listed in N.C. Gen.Stat. § 7B-1111 is therefore contrary to the procedural mandate set forth in our juvenile code. As the trial court lacked authority to grant summary judgment in this case, respondent's motion was properly denied.

Rule 13 does not authorize a counterclaim to terminate parental rights because Article 11 provides the exclusive procedures for commencing a termination action.

In re S.D.W. · filed 2007-12-04Rule 13

Defendant therefore cannot rely on N.C.G.S. § 1A-1, Rule 13 as the basis for her counterclaim, as the General Assembly has "otherwise provided" for procedures governing commencement of termination actions.

The Rules of Civil Procedure yield to conflicting Chapter 7B procedures in termination of parental rights proceedings.

Huml v. Huml · filed 2019-03-19

Further, the procedures set forth by Chapter 7B control over any conflicting procedures set out by the Rules of Civil Procedure.

Rule 4(j)(9)(c) permits service by publication when a diligent attempt to serve the person by certified mail at his admitted address fails.

Barnes v. Wells · filed 2004-08-03Rule 4(j)(9)(c)

We conclude that the trial court correctly determined that due diligence was shown such that the service by publication requirements of Rule 4(j)(9)(a) to (c) were satisfied.

Rule 4(j1) requires a notice of service by publication to identify the court where the action was commenced; listing the wrong county renders a default judgment void.

CONNETTE EX REL. AMR v. Jones · filed 2009-04-07Rule 4(j1)

We find Guerin controlling and therefore agree with Defendant that the default judgment was void since the service by publication in this case failed to correctly list Brunswick County as the county where the action was commenced.

Rule 4(j1) requires mailing notice of service by publication only to the party being served, and only if that party’s post-office address can be found with reasonable diligence.

Jones v. Wallis · filed 2011-04-19Rule 4(j1)

We hold that the language of North Carolina Rules of Civil Procedure 4 and 5 is clear and unambiguous, and does not require service of notice of service of process by publication upon every party to the lawsuit. Notice of service of process by publication only needs to be mailed to the party being served by publication. This is only required if that party’s post office address can be discovered with reasonable diligence.

Rule 4(j1) permits service by publication only when due diligence cannot achieve service by personal delivery, registered or certified mail, or a designated delivery service.

Hometrust Bank v. Green · filed 2013-12-03Rule 4(j1)

North Carolina Rule of Civil Procedure 4(jl) allows for service of process by publication only when a party “cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service.” N.C. Gen. Stat. §1A-1, Rule 4(jl) (2011). Therefore, to find that Mrs. Green had notice of the foreclosure hearings, she must have actual knowledge of the foreclosure hearings because there was no attempt to personally serve her.

Rule 4(j1) requires due diligence to locate a defendant before service by publication.

Chen v. Zou · filed 2015-11-17Rule 4(j1)

Based on the trial court’s findings, we agree that the trial court properly concluded that Plaintiff failed to comply with the requirement of Rule 4(j1) to exercise due diligence in attempting to locate Defendant.

Rule 4(j1)’s due diligence requirement for service by publication can be satisfied by extensive prior efforts showing that personal delivery or mail service would be unsuccessful.

Watauga Cty. v. Beal · filed 2017-10-03Rule 4(j1)

Based on the circumstances of this case, we conclude that where plaintiff already knew from extensive prior experience with defendant that it could not with due diligence effect service of process on defendant by personal delivery or by registered or certified mail, see N.C.G.S. § 1A-1, Rule 4(j1), plaintiff’s actions satisfied the “due diligence” necessary to justify the use of service of process by publication.

Rule 4(j1) requires an affidavit supporting service by publication to state facts showing diligent attempts to locate the person served.

In re A.J.C. · filed 2018-06-05Rule 4(j1)

The affidavit did not satisfy Rule 4(j1) because it included no statement of facts regarding diligent attempts to locate respondent-father.

Rule 4(j1) requires an affidavit supporting service by publication; an attorney’s signed motion does not satisfy that requirement unless confirmed by oath or affirmation.

In re S.E.T. · filed 2020-11-20Rule 4(j1)

In light of the fact that the signature of petitioner-mother’s trial counsel on the motion seeking leave to serve respondent-father by publication was not “confirmed” by an “oath or affirmation,” that motion simply cannot be treated as an affidavit sufficient to satisfy the requirements of N.C.G.S. § 1A-1, Rule 4(j1).

Rule 4(j1) permits omission of mailing a notice of service by publication when the party’s post-office address cannot be ascertained with reasonable diligence.

Rich v. Premier Electrical Staffing LLC · filed 2024-09-26Rule 4(j1)

Second, the affidavit in support of entry of default demonstrates that Orndorff’s post-office address could not be ascertained with reasonable diligence, and thus that the mailing of notice of service by publication could be omitted.

Rule 4(j1) requires a service-by-publication notice to identify the court and parties correctly, give a response deadline, warn that the plaintiff will seek relief if the defendant does not respond, and provide the plaintiff’s mailing address.

Stephens v. Phiyaw · filed 2025-07-08Rule 4(j1)

The notice published by plaintiffs in the Fayetteville Observer did not (1) state that the action was pending in this court; (2) state the date by which defendants were to respond to the amended complaint; (3) notify the defendants that if they failed to respond to the complaint, plaintiffs would apply to the court for the relief they sought; or (4) state the mailing address for plaintiffs. Additionally, the notice states that George Autry and Patrick Philyaw are the plaintiffs in this action. Accordingly, the notice failed to comply with the requirements of N.C. Gen. Stat. § 1A-1, Rule 41).

Rule 8(a)(2) permits alternative forms of relief, so an alternative quantum meruit claim cannot be dismissed solely because another claim alleges an express contract.

Eastway Wrecker Service, Inc. v. City of Charlotte · filed 2004-08-03Rule 8(a)(2)

Under Rule 8(a)(2) of the North Carolina Rules of Civil Procedure, plaintiff is entitled to seek alternative forms of relief. ... Accordingly, it was error for the trial court to dismiss plaintiff's alternative claim for recovery in quantum meruit on the ground that it was precluded by an express contract between the parties.

Rule 8(a)(2) permits a plaintiff to seek alternative relief, including quantum meruit alongside breach of an express contract.

Scheerer v. Fisher · filed 2010-01-19Rule 8(a)(2)

“Under Rule 8(a)(2) of the North Carolina Rules of Civil Procedure, plaintiff[s] [are] entitled to seek alternative forms of relief.” ... If plaintiffs’ allegations in their claim for quantum meruit are accepted as true, no contract exists and quantum meruit is not excluded as a remedy per se.

Rule 56(c) permits summary judgment when no genuine issue of material fact exists and a party is entitled to judgment as a matter of law; immaterial factual disputes do not prevent judgment.

McManus v. Kluttz · filed 2004-08-03Rule 56(c)

We conclude that any questions of fact are immaterial and that summary judgment was appropriate.

Rule 41(a)(1) permits a plaintiff to dismiss an action without a court order by filing a notice before resting the case or a stipulation signed by all parties.

McCarroll v. N.C. D.O.C. · filed 2004-08-04Rule 41(a)(1)

A motion for voluntary dismissal is governed by Rule 41 of the N.C. Rules of Civil Procedure. According to Rule 41(a), any action may be dismissed by a plaintiff without order of the trial court by filing: (i) a notice of dismissal at any time before the plaintiff rests his or her case; or (ii) a stipulation of dismissal signed by all parties to the action. N.C. Gen. Stat. § 1A-1 , Rule 41(a)(1). Plaintiff filed his notice of dismissal on 19 March 2004, well after he had rested his case.

Rule 41’s savings provision applies only when the new action is substantially the same as the action voluntarily dismissed.

Ross v. Washington Mutual Bank · filed 2008-07-02(a)

Moreover, Rule 41’s savings provision does not apply because the claims alleged in plaintiffs May 2004 action and the August 2006 action are not substantially the same, do not necessarily involve the same parties, and are not the same cause of action.

Rule 41’s saving provision does not extend the FELA limitations period after a court-ordered voluntary dismissal.

Carlisle v. CSX Transportation, Inc. · filed 2008-11-04(a)(2)

In sum, when a trial court enters an order allowing voluntary dismissal of a FELA claim, the court cannot incorporate the saving provision of Rule 41.

A voluntary dismissal under Rule 41(a) moots the defendant’s dismissal motion.

Housing Authority v. SPARKS ENGINEERING, PLLC. · filed 2011-05-17Rule 41(a)

By voluntarily dismissing its complaint against Defendant pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a), Plaintiff effectively mooted Defendant’s dismissal motion.

Rule 41 permits a department of social services to voluntarily dismiss a juvenile petition before an adjudicatory hearing.

In re E.H. · filed 2013-06-04Rule 41(a)(1)(i)

We conclude that permitting DSS to voluntarily dismiss juvenile petitions under N.C. Gen. Stat. § 1A-1, Rule 41, is not contrary to any provision of the Juvenile Code, but actually advances the purposes of the Code and is consistent with the unique authority and duties granted to DSS by the Juvenile Code. Because BCDSS had the legal authority prior to an adjudicatory hearing to voluntarily dismiss the petition it had filed, we hold that the trial court did not abuse its discretion in denying the GAL’s Rule 60(b) motion.

A voluntary dismissal announced in open court takes effect immediately and terminates the pending action.

Currie v. Poteat · filed 2014-04-01Rule 41(a)

A voluntary dismissal announced in open court becomes effective immediately and terminates all adversary proceedings in the case.

Rule 41(a)(1) applies to contested cases before the Office of Administrative Hearings unless a specific statute or rule provides otherwise.

Cole v. N.C. Dep't of Pub. Safety · filed 2017-05-02(a)(1)

In the present case, having found no specific statute or rule that provides to the contrary, we hold N.C.G.S. § 1A-1, Rule 41(a)(1) applies to contested cases before OAH, and the ALJ therefore properly denied Respondent’s motion to dismiss.

Rule 41(a)(1) does not permit a voluntary dismissal taken in bad faith or after the plaintiff has rested its case.

Market America, Inc. v. Lee · filed 2017-12-19Rule 41(a)(1)

Thus, two limitations exist on the general rule permitting voluntary dismissals. First, voluntary dismissals may not be taken in bad faith. Second, a voluntary dismissal cannot be taken after the plaintiff has rested its case.

Rule 41(a)(1) does not permit a plaintiff to take a voluntary dismissal in bad faith.

Mkt. Am. · filed 2017-12-19Rule 41(a)(1)

Thus, two limitations exist on the general rule permitting voluntary dismissals. First, voluntary dismissals may not be taken in bad faith. Second, a voluntary dismissal cannot be taken after the plaintiff has rested its case.

Rule 41(a) permits a landowner in a condemnation action to voluntarily dismiss its claim for additional just compensation before resting its case, ending that claim and the trial court’s authority to rule on a pending motion to amend.

City of Charlotte v. Univ. Fin. Props., LLC · filed 2018-07-03Rule 41(a)

We therefore hold that the trial court had no authority to rule on plaintiff’s motion to amend the complaint after defendant filed its voluntary dismissal under Rule 41(a).

A filed notice of voluntary dismissal closes the suit and deprives the trial court of jurisdiction to enter further orders.

Sullivan v. Pugh · filed 2021-04-06Rule 41(a)(1)

Accordingly, the trial court correctly concluded that TOG’s notice of Voluntary Dismissal deprived the trial court of jurisdiction to enter further orders, including an order on TOG’s motion to strike.

A voluntary dismissal without prejudice of the last remaining equitable distribution claim terminates the action under Rule 41(a)(1).

Bradford v. Bradford · filed 2021-09-07Rule 41(a)(1)

For an equitable distribution claim, the general rule controls: Wife’s voluntary dismissal of her equitable distribution claim without prejudice under Rule 41(a)(1) terminated the action.

Rule 60(b) permits a trial court to treat an amended notice withdrawing a mistaken voluntary dismissal as a functional motion for equitable relief.

M.E. v. T.J. · filed 2022-03-11(b)

Specifically, plaintiff’s amended notice of voluntary dismissal—in which she struck through and handwrote “I do not want to dismiss this action” on the form she had inadvertently or mistakenly filed thirty-nine minutes previously—served as functional Rule 60(b) motion through which the trial court could, and did, grant equitable relief.

Rule 41(a) allows voluntary dismissal of an action or claim; dismissing a procedural motion does not extinguish the underlying claim.

Holland v. Holland · filed 2025-06-18Rule 41(a)

The civil action remained pending despite dismissal of Plaintiff’s procedural motion. The court retained subject matter jurisdiction to resolve the equitable distribution claim.

Rule 41 permits a plaintiff to seek voluntary dismissal with prejudice.

McManus v. Henderson County Public Schools · filed 2008-01-11

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 41, plaintiff's claim IS hereby DISMISSED WITH PREJUDICE.

Rule 41(a)(2) gives the court discretion to grant voluntary dismissal and decide whether it is with or without prejudice.

Meyer v. Hatteras Inv. Partners, L.P. · filed 2025-10-10Rule 41(a)(2)

Whether an action should be dismissed under Rule 41(a)(2), and whether that dismissal is with or without prejudice, are matters within the Court’s discretion.

Rule 41 permits dismissal when a claimant fails to prosecute a claim.

Tucker v. N.C. D.O.C. · filed 2004-08-04Rule 41

Plaintiff failed and refused to prosecute this matter. Therefore this matter should be dismissed for Plaintiff's failure to prosecute. N.C. Gen. Stat. § 1A-1 , Rule 41; Swygert v. Swygert , 46 N.C. App. 173 , 264 S.E.2d 902 (1980).

Rule 41(b) permits dismissal for failure to prosecute or comply with a court order when the dismissal order finds deliberate delay and that less drastic sanctions are unavailable.

Lincoln v. North Carolina Dept. of Hhs · filed 2005-08-16Rule 41(b)

This Court has reversed orders of dismissal under Rule 41(b) if the order did not include findings that plaintiff's delay was deliberate and less drastic sanctions were unavailable. ... Here though, the ALJ's order included all the necessary findings to support a legal conclusion of dismissal.

Rule 41 permits dismissal for failure to prosecute when a claimant willfully refuses to appear at a hearing.

Meadows v. N.C. Dept. of Corr. · filed 2005-10-26

Meadows willfully refused and failed to appear at hearing to go forward with his tort claim and his claim should be dismissed for failure to prosecute. See N.C. Gen. Stat. § 1A-1 , Rule 41.

Rule 41(b) does not justify dismissal for failure to prosecute when the record shows no attempt to thwart the action’s progress or use of delaying tactics.

In re Will of Kersey · filed 2006-03-21Rule 41(b)

Nothing in the record indicates caveator attempted to thwart progress or implemented a delaying tactic that would otherwise justify the trial court's dismissal under Rule 41(b). We hold the trial court erred in dismissing the caveat proceeding on the basis of failure to prosecute under Rule 41(b).

Rule 41(b) allows dismissal for failure to prosecute only when the plaintiff intends to obstruct the action’s progress or uses delay to keep it from reaching a conclusion.

James River Equipment, Inc. v. Tharpe's Excavating, Inc. · filed 2006-09-05Rule 41(b)

Furthermore, dismissal for failure to prosecute is proper only where the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion.

A Rule 41(a) voluntary dismissal does not erase sanctionable conduct from the first action when the court considers sanctions under Rule 41(b) in a refiled action.

Stocum v. Oakley · filed 2007-08-07Rule 41(b)

Consequently, we reject plaintiffs’ arguments that a Rule 41(a) voluntary dismissal wipes the slate clean of any passed sanctionable conduct.

Rule 41(b) permits dismissal with prejudice for failure to prosecute when the plaintiff’s conduct is willful and lesser sanctions would not suffice.

James v. N.C. Dept. of Correction · filed 2008-08-27Rule 41(b)

5. Sanctions short of dismissal are not warranted, as the plaintiff's actions were willful, and unreasonably thwarted adjudication of his claim. 6. Dismissal with prejudice under Rule 41(b) for failure to prosecute is appropriate.

Rule 60(b)(6) is not the proper procedure for seeking to terminate a court-ordered alimony award; N.C. Gen. Stat. § 50-16.9 governs.

Oakley v. Oakley · filed 2004-08-17Rule 60(b)(6)

We first note that defendant erred in moving to terminate alimony under Rule 60(b)(6). ... N.C. Gen. Stat. § 50-16.9 clearly outlines the procedure for modifying or vacating alimony awards.

Rule 60(b) permits relief from final orders, not interlocutory orders.

Rupe v. Hucks-Follis · filed 2005-05-03Rule 60(b)

In the instant case, Judge Floyd’s order denying defendants’ motion to dismiss was an interlocutory order. Therefore, Judge Lewis lacked the authority to grant relief from it under Rule 60(b).

Rule 60(b)(6) provides relief from an order but does not authorize a motion to amend its terms.

Black v. Black · filed 2005-11-01Rule 60(b)(6)

Here, rather than seeking to be relieved of the effect of the 28 November 2001 custody order, plaintiff sought to amend the effect of that order to reduce defendant's weeknight visitation privilege. ... The trial court erred in considering the motion as one for relief made under Rule 60(b)(6) and in granting it.

A ruling on a Rule 60(b) motion is reviewed for abuse of discretion.

Deer Corporation v. Carter · filed 2006-05-02(b)

Appellate review of a trial court’s ruling on a motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) is limited to determining whether the trial court abused its discretion.

A Superior Court judge may hear a Rule 60(b) motion seeking relief from another judge’s decision and must exercise discretion in deciding it.

Trent v. River Place, LLC · filed 2006-08-01Rule 60(b)

However, a Superior Court judge may grant relief from the decision of another judge on a Rule 60(b) motion.

Rule 60(b)(6) does not provide relief from errors of law or erroneous judgments.

Baxley v. Jackson · filed 2006-10-03Rule 60(b)(6)

Moreover, it is well settled that Rule 60(b)(6) does not include relief from errors of law or erroneous judgments.

Rule 60(b) provides relief from final orders; filing a motion under it can constitute a judicial admission that the order is final.

Sea Ranch II Owners Association, Inc. v. Sea Ranch II, Inc. · filed 2006-11-07Rule 60(b)

Thus, relief under Rule 60(b) is from final orders. By filing its Rule 60(b) motion, the owner's association has judicially admitted that the 15 March 2004 order was final.

Attorney negligence is inexcusable neglect and does not justify relief from judgment under Rule 60(b)(1).

Purcell International Textile Group, Inc. v. Algemene AFW N.V. · filed 2007-08-07Rule 60(b)(1)

“Clearly, an attorney’s negligence in handling a case constitutes inexcusable neglect and should not be grounds for relief under the ‘excusable neglect’ provision of Rule 60(b)(1) .... Holding the client responsible for the lawyer’s deeds ensures that both clients and lawyers take care to comply.” ... This Court subsequently has recognized Briley as the controlling authority on the issue of excusable neglect under Rule 60(b)(1).

Rule 60(b) allows an intervening party to seek relief from a judgment.

Williams v. Walker · filed 2007-08-21Rule 60(b)

An intervening party thus has standing to seek relief from a judgment pursuant to Rule 60(b).

A Rule 60(b) motion must be made within a reasonable time; motions based on grounds (1), (2), or (3) must also be made within one year.

ADAMS CREEK ASSOCIATES v. Davis · filed 2007-11-06Rule 60(b)

Further, a Rule 60 motion “shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” N.C. Gen. Stat. § 1A-1, Rule 60(b) (2006). Defendants’ motion was filed twenty months after entry of Judge Alford’s order and almost fourteen months after Judge Crow’s dismissal of their appeal, which is neither “within a reasonable time” nor within a year of Judge Crow’s order. Accordingly, even if we were to construe defendants’ motion as a Rule 60 motion, it was not timely.

Rule 60(b) cannot be used instead of an appeal to correct an alleged misapplication of law.

Spangler v. Olchowski · filed 2007-12-18(b)

We have consistently held that judgments involving misapplication of the law “may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal.” ... Therefore, plaintiff’s reliance on an oral motion for the trial judge to reconsider the 22 September 2005 order pursuant to Rule 60(b) is misplaced.

Rule 60 cannot be used to obtain review of an alleged legal error.

CATAWBA VALLEY BANK v. Porter · filed 2008-01-15Rule 60(b)(6)

As discussed above, Rule 60 is an improper mechanism for obtaining review of alleged legal error.

Rule 60(b)(4) provides relief from a void judgment; a judgment is not void when the trial court had jurisdiction to enter it.

Stark v. RATASHARA-STARK · filed 2008-01-15Rule 60(b)(4)

Because plaintiff's 27 November 2002 complaint in the action for absolute divorce clearly preserves the equitable distribution claim prior to the 13 February 2003 entry of judgment of absolute divorce, the trial court had jurisdiction to hear plaintiff's claim for equitable distribution. We find the trial court has not abused its discretion in denying plaintiff's Rule 60(b) motion. Accordingly, plaintiff is not entitled to relief from judgment under Rule 60(b)(4).

Rule 60(b) cannot be used in place of an appeal to correct a judgment’s misapplication of law.

Wallis v. Cambron · filed 2008-12-02Rule 60(b)

However, “judgments involving misapplication of the law may be corrected only by appeal and Rule 60(b) motions cannot be used as a ... substitute for appeal.”

Rule 60(b) gives the Industrial Commission authority to grant relief from an untimely motion for reconsideration.

Miller v. Newton Transportation Company · filed 2009-02-23Rule 60(b)

It appears that plaintiff's counsel is arguing excusable neglect, pursuant to N.C. Gen. Stat. § 1A-1 , Rule 60(b), even though such an argument is not delineated in plaintiff's brief. Pursuant to Rule 60(b), the Commission has the authority to grant the relief sought by plaintiff. ... Accordingly, defendants' Motion to Dismiss for plaintiff's failure to timely file the Motion for Reconsideration is DENIED.

Rule 60(b)(3) allows a court to set aside a dismissal for fraud by the opposing party’s attorney.

Harbin Yinhai Technology, Development Co. v. Greentree Financial Group, Inc. · filed 2009-05-05Rule 60(b)(3)

The trial court erred in concluding that it lacked jurisdiction under Rule 60(b) to set aside an order of dismissal for attorney fraud.

Rule 60(b)(6) permits a court to revisit a judgment after a change in law, but relief may be denied when the additional evidence would not make the claim viable.

Hamby v. PROFILE PRODUCTS, LLC · filed 2009-05-19Rule 60(b)(6)

Rule 60(b)(6) is properly employed to revisit a judgment affected by a subsequent change in the law. ... Here, we find no abuse of discretion in the trial court’s denial of Plaintiffs’ motion to reconsider because their forecast of evidence is insufficient to establish a Woodson claim even when the Risk Assessment Report is attributed to Terra-Mulch.

Rule 60(b)(6) permits a trial court to revisit an unclear order to clarify its intentions.

Alston v. Federal Express Corp. · filed 2009-10-20Rule 60(b)(6)

Pursuant to Rule 60(b)(6)’s “grand ... reservoir of equitable power,” the trial court had jurisdiction to revisit its order so that its intentions could be made clear.

Rule 60(b)(4) does not provide relief from an order when the issuing court had authority to enter it.

Helms v. Landry · filed 2009-12-22Rule 60(b)(4)

Because the trial court possessed the necessary authority to enter the contempt order, defendant's Rule 60(b)(4) motion was properly dismissed by the trial court.

Under Rule 60(b)(3), partial performance of an agreement does not ratify a judgment when a party discovers the other party’s alleged wrongdoing during performance.

Autry v. Autry · filed 2010-10-19Rule 60(b)(3)

But where the “fault” in the judgment is one party’s alleged wrongdoing in forming the agreement — wrongdoing discovered by the other party during execution of the agreement — logically, that partial execution cannot be construed as ratification of the agreement, and indeed our Courts have never so held. Thus, defendant’s argument that plaintiff ratified the order is irrelevant in the context of Rule 60(b)(3), and it is overruled.

Rule 60(b) cannot be used to introduce newly discovered evidence after a hearing but before a final judgment or order is entered.

Kingston v. Lyon Construction, Inc. · filed 2010-11-02Rule 60(b)(2)

Because a hearing alone, without a written order, is not a final judgment or order, Respondents’ motion to introduce newly discovered evidence could not, as a matter of law, have been proper under Rule 60(b).

Rule 60(b) cannot be used to collaterally attack a final order that a party chose not to appeal.

Hodgin v. United Community Bank · filed 2012-11-20Rule 60(b)

We agree that the trial court erred in granting plaintiffs’ motion for appropriate relief, but we reach this decision because a Rule 60(b) motion cannot in any circumstances be used to collaterally attack a final order from which a party chose not to appeal.

Under Rule 60(b)(1), ignorance of the judicial process or confusion about the action is not excusable neglect; without excusable neglect, a court need not consider whether the party has a meritorious defense.

Grier ex rel. Brown v. Guy · filed 2012-12-18Rule 60(b)(1)

Though Guy informed Defendant that she believed the papers were intended for Jenkins, under In re Hall, ignorance of the judicial process or confusion about the nature of the action is not excusable neglect under Rule 60(b). Since we find no evidence of excusable neglect, we need not consider whether Defendant had a meritorious defense.

Rule 60 cannot be used to correct an underlying order’s legal error in place of an appeal.

Morehead v. Wall · filed 2012-12-31Rule 60

A motion pursuant to Rule 60 cannot be used as a substitute for an appeal of the underlying order to correct errors of law.

Rule 60(b)(6) permits a party to seek relief from an irregular judgment.

Brown v. Cavit Sciences, Inc. · filed 2013-11-19Rule 60(b)(6)

A party seeking to set aside an irregular judgment may properly do so by filing a motion for relief from judgment pursuant to Rule 60(b)(6).

Rule 60(b) relief cannot be used to correct an alleged error of law that should have been raised on appeal.

In re Echols · filed 2014-05-06(b)(6)

Since Echols’s purely legal argument is not proper under Rule 60(b), the trial court did not err by denying his Rule 60(b) motion.

After notice of appeal, a trial court lacks jurisdiction to consider a Rule 60(b) motion without appellate permission or remand.

Knowles v. Bennett · filed 2014-06-03Rule 60(b)

Accordingly, the trial court correctly determined that it lacked jurisdiction to consider father’s Rule 60(b) motion after notice of appeal had been filed, and we overrule this issue on appeal.

Rule 60(b) does not apply to challenges to a foreign judgment filed for enforcement in North Carolina.

DocRx, Inc. v. Emi Services of North Carolina, LLC · filed 2014-06-12Rule 60(b)

The defenses to a foreign judgment under the UEFJA are limited by the Full Faith and Credit Clause to those defenses that are directed to the enforcement of the foreign judgment, and Rule 60(b) of the North Carolina Rules of Civil Procedure has no applicability.

Rule 60(b)(6) permits relief from a final judgment when extraordinary circumstances exist, justice demands relief, and the movant shows a meritorious defense.

Armstrong v. Hutchens · filed 2014-07-01Rule 60(b)(6)

Relief from a judgment is available pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) in the event that the moving party shows that “(1) extraordinary circumstances exist, (2) there is a showing that justice demands it, and (3) the movant shows a meritorious defense.”

Rule 60(b) provides a way to seek relief from a final judgment; a motion to dismiss a contempt motion is not the proper way to seek that relief.

Hogue v. Hogue · filed 2016-12-30Rule 60(b)

The trial court adjudged the equitable distribution order void and unenforceable upon defendant’s motion to dismiss plaintiff’s motion for contempt rather than a Rule 60(b) motion. A motion to dismiss a contempt motion is not the proper mechanism to seek relief from a final order or judgment.

Rule 60(b) permits relief from final judgments or orders, but does not apply to interlocutory orders.

W4 Farms, Inc. v. Tyson Farms, Inc. · filed 2017-10-19Rule 60(b)

To the extent that the Motion seeks reconsideration of the Opinion under any subsection of Rule 60(b), the Motion must be denied. The Opinion granting in part and denying in part Defendants’ Rule 12(b)(6) Motion to Dismiss is an interlocutory order. ... It is well established under North Carolina law that, “[b]y its express terms, Rule 60(b) only applies to final judgments, orders, or proceedings; it has no application to interlocutory orders.”

Rule 60(b)(3) requires a party alleging intrinsic fraud in a judgment to seek relief by motion; intrinsic fraud cannot support an independent action.

Wilson v. SunTrust Bank · filed 2017-12-19Rule 60(b)(3)

In the present case, the factual allegations of plaintiff’s complaint allege intrinsic fraud, which is not a claim or cause of action that may be the basis of an independent action, such as that filed by plaintiff. In addition, it is undisputed that plaintiff did not file a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 seeking relief on the grounds of intrinsic fraud.

Rule 60(b)(4) permits a judge to vacate another judge’s order when the order is void because the court’s jurisdiction was never properly invoked.

State v. Santifort · filed 2017-12-19Rule 60(b)(4)

Because the orders of Judges Stephens and Lock were therefore void, Judge Pittman not only possessed the authority to vacate those orders pursuant to Santifort’s motions under Rule 60(b) but also committed reversible error in failing to do so.

Rule 60(b)(6) relief from an irregular judgment requires a showing of a meritorious defense.

Engility Corp. v. Nell · filed 2018-03-20Rule 60(b)(6)

Without a showing of a “meritorious defense,” the February order remains undisturbed.

Rule 60(b)(6) permits a court to set aside a consent judgment when extraordinary circumstances and justice demand relief, including when a landowner was inadequately informed of a taking and the judgment did not provide just compensation.

N.C. Dep't of Transp. v. Laxmi Hotels of Spring Lake, Inc. · filed 2018-05-15Rule 60(b)(6)

Accordingly, we conclude that the evidence supports the trial court’s determination that Laxmi was not adequately informed of the extent of DOT’s taking of the Hotel property, and that the Consent Judgment did not provide just compensation for DOT’s taking. In light of the constitutional protections involved, the trial court did not abuse its discretion when it concluded that these facts warranted the setting aside of the Consent Judgment pursuant to Rule 60(b)(6).

Rule 60(b)(6) permits relief from an order requiring performance when extraordinary circumstances make performance impossible and justice demands relief.

Bullock v. Tucker · filed 2018-12-04Rule 60(b)(6)

Accordingly, we conclude that the findings established “extraordinary circumstances . . . exist[ed]” based on defendants’ refusing to annually lower the water level and rejecting plaintiffs’ proposals to remove the anchors, and that plaintiffs showed “justice demands that relief be granted” from enforcing the modified lease requirement that they remove the anchors “[u]pon termination of the lease” based upon the doctrines of impossibility and/or prevention. Accordingly, we hold the trial court did not abuse its discretion in determining plaintiffs are entitled to relief under Rule 60(b)(6) of striking this requirement from the 30 April 2014 order.

Rule 60(b)(4) permits relief only when the underlying judgment is void.

Gyger v. Clement · filed 2018-12-18Rule 60(b)(4)

A trial court may only grant a Rule 60(b)(4) motion where the underlying judgment is void.

Rule 60(b)(1) permits relief for surprise when a court unexpectedly decides the ultimate factual issue at a hearing noticed only for a motion in limine.

Ayscue v. Griffin · filed 2018-12-18Rule 60(b)(1)

This ruling by the trial court constitutes a surprise which “ordinary prudence could not have guarded against.” Endsley, 44 N.C. App. at 310, 261 S.E.2d at 38 (citation omitted). Plaintiffs’ motion for reconsideration should have been allowed.

Rule 60(b)(5) and (6) cannot be used to correct an erroneous order; the remedy is an appeal.

Jackson v. Jackson · filed 2020-09-01Rule 60(b)(5)-(6)

The trial court impermissibly used Rule 60(b) to rectify what it described as an erroneous order that only could have been addressed by appeal and not by Rule 60(b).

Rule 60(b)(1) allows relief from a judgment for excusable neglect, but difficulty retaining counsel alone does not establish excusable neglect.

Am. Transp. Grp. Ins. Risk Retention Grp. v. Mvt Ins. Servs., Inc. · filed 2021-04-19Rule 60(b)(1)

A. Singh’s contention that he had difficulty retaining an attorney is woefully insufficient to show excusable neglect.

Rule 60(b)(6) allows a person subject to a civil satellite-based monitoring order to seek relief from that order.

State v. Hilton · filed 2021-09-24Rule 60(b)(6)

Since the SBM program is civil in nature, the North Carolina Rules of Civil Procedure govern. As such, a defendant may also seek removal of SBM through Rule 60(b).

Rule 60(b) review is unavailable when the party has not shown good cause for relief.

Lost Forest Dev. · filed 2021-11-02Rule 60(b)

Good cause has not been shown to entitle Lost Forest to a Rule 60(b) review.

Rule 60(b) provides limited grounds for relief from a judgment, including when the judgment is void, and cannot be used as a substitute for an appeal.

Jabari v. Jabari · filed 2022-06-07Rule 60(b)(4)

Rule 60 provides more limited grounds to challenge orders than an appeal.

Rule 68.1 sets requirements for filing and entering a confession of judgment, and Rule 60(b)(3) permits relief from judgment for fraud, misrepresentation, or misconduct.

RH CPAs, PLLC v. Patel · filed 2022-07-19Rule 68.1(b), (d); Rule 60(b)(3)

The trial court’s findings of fact support its conclusion that the Confession of Judgment meets the requirements set forth in Rule 68.1 and that the clerk properly entered the Confession of Judgment in accordance with Rule 68.1 and other applicable law. ... We hold the trial court did not abuse its discretion in denying Defendants’ Rule 60 motion.

Rule 60(b) permits a trial court to treat an amended dismissal form as a motion for equitable relief from a mistaken or inadvertent dismissal.

M.E. v. T.J. · filed 2022-03-11Rule 60(b)

As explained above, we hold that the trial court acted within its broad discretion in exercising its jurisdiction over plaintiff’s Chapter 50B DVPO complaint where plaintiff’s amended form served as a functional Rule 60(b) motion for equitable relief from her mistaken or inadvertent dismissal filed thirty-nine minutes previously, and the Court of Appeals did not err in determining the same.

Rule 60(b)(6) permits a trial court to modify a final civil satellite-based monitoring order on the defendant’s motion.

State v. Cheers · filed 2022-09-06Rule 60(b)(6)

Following our Supreme Court’s recent precedent in Hilton and Strudwick, we hold the trial court had continued jurisdiction over the original 2008 SBM order and could modify it pursuant to Defendant’s motion.

Rule 60(b) relief is unavailable for alleged violations of Chapter 45 foreclosure provisions that do not expressly incorporate the Rules of Civil Procedure.

In re: Simmons · filed 2023-10-17Rule 60(b)

Because the Rules are not engrafted into N.C. Gen. Stat. §§ 45-10 or 45-21.16(b)-(c), the Rules of Civil Procedure do not apply to those statutes, and therefore, Rule 60 relief can neither be sought nor granted in wake of a violation thereof.

Rule 60(b)(1) relief from a voluntary dismissal turns on whether the party deliberately took the action, rather than whether the party understood its legal consequences.

T.H. v. SHL Health Two · filed 2024-04-16Rule 60(b)(1)

To get Rule 60(b)(1) relief, the material question is whether Plaintiff deliberately took the action for which Plaintiff requests relief.

Rule 60(b)(2) does not provide relief for evidence reasonably obtainable through due diligence before the original proceeding.

Carlson v. J.E. Dunn Constr. Co. · filed 2025-06-04Rule 60(b)(2)

Thus, the deposition of Defendant Johnson Bros.’s designee, taken four days after the summary judgment hearing, was not “newly discovered” evidence as required by Rule 60(b)(2), as it was reasonably obtainable through due diligence.

Rule 60(b)(1) permits relief from a voluntary dismissal with prejudice for excusable neglect when the party dismissed its claim as required by a settlement agreement and the other party then refused to perform.

Yang Real Est. Invs., LLC v. Affordable Mini Storage of Newton, LLC · filed 2025-07-16Rule 60(b)(1)

Accordingly, the trial court did not err by indicating that it would grant Plaintiff relief from its voluntary dismissal with prejudice under Rule 60(b)(1).

Rule 60(b)(4) permits relief from a void judgment, but a defendant who fails to raise a personal-jurisdiction objection at the first available opportunity waives it.

Okinus, Inc. v. Teasley · filed 2025-08-20Rule 60(b)(4)

Our Rules of Civil Procedure allow a court to “relieve a party . . . from a final judgment, order, or proceeding” where “[t]he judgment is void.” Id. § 1A-1, Rule 60(b)(4). ... Defendant neglected to “attack the [judgment]’s validity at the first available opportunity”; therefore, Defendant’s “objection is waived.”

Rule 60(b)(6) permits a court to consider relief from a voluntary dismissal after the one-year period for refiling has expired.

Crumel v. Morton · filed 2026-01-07Rule 60(b)(6)

Therefore, Plaintiff’s voluntary dismissal constituted a final adjudication from which Unnamed Defendant could seek relief under Rule 60(b)(6).

Rule 60(b)(5) relief may be denied after a stock’s value falls when the court considered market volatility in its original distribution of assets.

McKee-Whipple v. Whipple · filed 2026-02-18Rule 60(b)(5)

We cannot say the trial court’s reasoning, even presented as categorical, constituted an abuse of discretion when the trial court considered market volatility in determining the distribution of marital assets.

Rule 60(b)(6) does not allow a party to seek relief based on a legal argument that was available at trial but not raised.

Craig v. Sadler · filed 2026-05-20Rule 60(b)(6)

Further, Rule 60(b)(6) is not a means to make legal arguments that were available to a party at trial but not raised.

Rule 60(b)(4) does not permit relitigation of factual disputes resolved at trial.

SCGVIII-Lakepointe, LLC v. Vibha Men's Clothing, LLC · filed 2026-06-03Rule 60(b)(4)

Rule 60(b)(4) does not permit relitigating factual disputes resolved at trial.

Rule 60(b)(1) permits a party to seek relief from a final order based on mistake if the motion is filed within a reasonable time and no more than one year after the order.

Rozier v. Haworth, Inc. · filed 2002-10-28Rule 60(b)(1)

Because the Order of dismissal was issued upon a mistake of fact, Rule 60(b) allows plaintiff up to a year after the entry of the Order in which to move for relief. In this case, plaintiff's Form 33 seeking to set aside the Order of dismissal was filed approximately seven months after the Order of dismissal was filed, and within four weeks of obtaining new counsel. Therefore, plaintiff's motion was timely filed under the Rules of Civil Procedure.