N.C. Gen. Stat. § 1A-1

Rule 52(a)(1) requires findings of fact; merely incorporating documents by reference is insufficient.

In re: K.L. & R.E. · filed 2017-07-05Rule 52(a)(1)

The documents incorporated may support a finding of fact; however, merely incorporating the documents by reference is not a sufficient finding of fact.

Rule 52(a)(1) requires ultimate facts to support a custody or support judgment; a finding that merely recites a witness’s testimony is insufficient.

Sappington v. Sappington · filed 2018-01-16Rule 52(a)(1)

Similarly, in the present case, the trial court's finding of fact fourteen, that "Plaintiff testified that despite her feelings that the minor child should have two parents she did not believe that she could trust [ ] Defendant and was not convinced that [ ] Defendant would not relapse into drug use[,]" was a mere recitation of the evidence rather than an ultimate fact necessary to support the trial court's conclusions of law.

Rule 52(a) requires findings of stipulated ultimate facts that are essential to the court’s conclusions of law.

Slade v. Petty · filed 2018-09-04Rule 52(a)

However, we note that the trial court should have included the parties' stipulations in its Findings of Fact: ... it does require specific findings of the ultimate facts established by the evidence, admission and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.

Rule 52 does not require a trial court to recite every evidentiary fact when its findings resolve the ultimate issue.

Dep't of Transp. v. Mountain Vills. · filed 2022-11-01

As the trial court made sufficient findings of fact to resolve the ultimate issue of whether Mountain Villages met its burden of establishing that it acquired a prescriptive easement, it did not need to restate all of the evidence presented.

Rule 52 does not require a trial court to recite every evidentiary fact when its findings resolve the ultimate issue.

Dep't of Transp. v. Mountain Vills. · filed 2022-11-01

Further, while Mountain Villages has provided examples of evidence that it believes should have been included in the trial court’s order, and argues that the trial court erred in failing to consider such evidence, we note that the trial court is not required to recite all of the evidentiary facts before it.

Rule 37(b)(2)c permits dismissal with prejudice for repeated failures to comply with discovery orders.

DANIELS-LESLIE v. Laster · filed 2004-11-02Rule 37(b)(2)c

In the instant case, the sanction imposed by the trial court is expressly authorized by statute. Though a dismissal with prejudice is harsh, we cannot say that it is inappropriate in light of plaintiff's repeated failures to comply with the trial court's orders regarding discovery. As such, the record is bereft of any evidence that the trial court abused its discretion in dismissing plaintiff's claim. The assignments of error directed at the trial court's order dismissing plaintiff's claim pursuant to Rule 37(b)(2)c are overruled; the assignments of error directed at the trial court's order dismissing plaintiff's claim pursuant Rule 9(j) need not be addressed and are therefore dismissed.

Before dismissing a claim as a discovery sanction, a trial court must consider less severe sanctions.

Fayetteville Publishing Co. v. Advanced Internet Technologies, Inc. · filed 2008-09-02Rule 37(b)(2)

Even when violation of a discovery order is clear from the record, a trial court is required to consider less severe sanctions before dismissing the action.

Rule 37 permits dismissal as a sanction in Industrial Commission proceedings, but the dismissal order must identify the violated rules and the conduct constituting each violation.

Matthews v. Charlotte-Mecklenburg Hospital Authority · filed 1999-01-05Rule 37(b)(2)(a)c

Rule 37 of the North Carolina Rules of Civil Procedure (Rule 37) permits, among other sanctions, “dismissing the action or proceeding or any part thereof.” N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)(a)c (1990). Based on our reading of these rules, the Commission, its members, and its deputies (adjudicators) may order dismissal of an action or proceeding for violation of the Rules. We hold that such an order must specifically enumerate which of the Rules have been violated and what actions constitute the violations.

Rule 4(e) discontinues an action against a defendant when service is not made within the time specified by Rule 4(c).

Zellars v. McNair · filed 2004-11-02Rule 4(e)

No service of process was had upon defendant McNair within the times specified by G.S. § 1A-1, Rule 4(c); the action was therefore discontinued as to her.

Rule 4(e) discontinues an action against a defendant who was not served on time when no endorsement or alias or pluries summons is obtained within ninety days.

In Re ABD · filed 2005-09-06Rule 4(e)

Rule 4(e) specifically provides that where there is neither endorsement nor issuance of alias or pluries summons within 90 days after issuance of the last preceding summons, the action is discontinued as to any defendant not served within the time allowed and treated as if it had never been filed.

Rule 4 treats an action as discontinued when a summons is not timely served and service is not extended by endorsement or an alias and pluries summons.

In Re DB · filed 2007-08-07Rule 4(d), (e)

Where petitioner failed to obtain an alias and pluries summons or an extension by endorsement within the ninety days after the issuance of the original summons and failed to serve such summons within sixty days, the action for termination of parental rights should have been treated as if it had never been filed.

Rule 4(e) discontinues an action against an unserved defendant when no timely endorsement or alias or pluries summons issues; a later summons or endorsement establishes a new commencement date.

Bryson v. Cort · filed 2008-11-04Rule 4(e)

Rule 4(e) mandates that where there is neither endorsement nor issuance of an alias or pluries summons within ninety(90) days after issuance of the last preceding summons, the action is discontinued and treated as if it had never been filed.

Rule 4(e) discontinues an action by operation of law when service is not made and the plaintiff does not timely obtain an endorsement or alias and pluries summons; a defendant’s general appearance does not revive it.

Dean v. Bruno · filed 2009-05-05Rule 4(e)

Unfortunately for Plaintiffs, a general appearance by the Defendants merely serves to eliminate service and personal jurisdiction concerns. It does not in any way serve to revive a discontinued action. As we have already noted, a civil action in which (1) service has not been effectuated in a timely manner and in which (2) the plaintiff failed to obtain either an endorsement or the issuance of an alias and pluries summons in a timely manner is deemed discontinued by operation of law.

A termination action is discontinued when the summons is not served and no timely endorsement, extension, or alias and pluries summons keeps it effective.

In Re NEL · filed 2009-06-02Rule 4(d)

At that time, it was as though no action had been filed because there was no endorsement, extension, or alias and pluries summons. Accordingly, any subject matter jurisdiction the court had pursuant to the issuance of a summons was discontinued and expired before respondent's parental rights were terminated.

Rule 4(e) discontinues an action against an unserved defendant when the plaintiff fails to renew the summons within the time allowed by Rule 4(d).

Kennedy v. Abbott Laboratories, Inc. · filed 2023-02-01Rule 4(e)

Because Kennedy failed to maintain the summons against ADC, by operation of North Carolina law, the action was discontinued.

A motion to dismiss filed before late service does not prevent a counterclaim against newly joined parties from proceeding once they have been served.

Virkler Co. v. Chemical Techs., LLC · filed 2006-11-06Rule 4(a)

The question before me, however, is whether the filing of the Motion to Dismiss by the Virklers before the Counterclaim Plaintiffs corrected their error in failing to serve process prevents the Court from keeping the Virklers in this lawsuit. The Court concludes that it does not and, therefore, DENIES the Motion.

Rule 4(j2)(2) allows an additional sixty days to complete service only in default judgment cases.

Patton v. Vogel · filed 2019-09-03Rule 4(j2)(2)

Rule 4(j2)(2) does not apply to the facts in this case. “Rule 4(j2)(2) . . . is only applicable in default judgments.” Hamilton v. Johnson, 228 N.C. App. 372, 378, 747 S.E.2d 158, 163 (2013). This case does not involve a default judgment.

Rule 4(d) permits a plaintiff to extend the time for service by obtaining a timely endorsement of the summons or issuing a timely alias or pluries summons.

RICHARDS v. PHH MORTGAGE CORPORATION · filed 2020-03-13Rule 4(d)

Rule 4(d) of the North Carolina Rules of Civil Procedure explains how a plaintiff who fails to serve a defendant within the allotted 60 days may extend the time allowed to serve that defendant. Under N.C. Gen. Stat. § 1A-1, 4(d)(1), a plaintiff may return to the clerk’s office to “secure an endorsement upon the original summons,” as long as the endorsement is secured within 90 days of the issuance of the summons or the date of the last prior endorsement. Alternatively, under Rule 4(d)(2), a plaintiff “may sue out an alias or pluries summons” in the same manner as the original process, which may be done “at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.” Here, Plaintiff, upon finding out that Defendant BONY was not served until July 2, 2019, took neither route to receive an extension or to serve an alias or pluries summons.

Rule 6(b) permits a trial court to retroactively extend Rule 4(c)'s deadline for serving a dormant summons upon a finding of excusable neglect.

Valentine v. Solosko · filed 2020-04-07Rule 6(b)

Because the trial court had the authority to exercise discretion under Rule 6(b) to extend the time for Plaintiff to serve dormant summonses under Rule 4(c) upon a finding of excusable neglect, we discern no legal error by the trial court.

Rule 6(b) allows a state court to retroactively extend the time to serve an expired summons upon a finding of excusable neglect.

Miles v. City of Henderson · filed 2022-06-30Rule 6(b)

Accordingly, in this case, up to the point of removal, plaintiff had the option of seeking an extension of time to serve the June 18, 2021, expired summons, and to “breathe new life and effectiveness into such a summons retroactively after it [had] become functus officio.” Id. at 274 (emphasis added).

Rule 6(b) allows a trial court to extend the time to serve a dormant summons retroactively if the failure to serve it on time resulted from excusable neglect.

Wetchin v. Ocean Side Corp. · filed 2005-01-04Rule 6(b)

The summons was merely dormant at the time of service; it had not expired and the trial court had the discretion to retroactively extend the time for service of the alias and pluries summons. ... It should be noted that the motion to extend the time for service of the alias and pluries summons was made after the expiration of the time for service, and under the provisions of Rule 6(b), the trial court must find that the “failure to act was the result of excusable neglect.”

Section 1A-1 permits parties to seek a new trial or relief from an order under Rules 59(a) and 60(b) of the North Carolina Rules of Civil Procedure.

STATE EX REL. MOORE CTY. v. Pelletier · filed 2005-01-18

For these reasons, we hold the Board properly proceeded by moving for a new trial or relief from order granting relief from forfeiture under Rules 59(a) and 60(b), and the trial court erred as matter of law in concluding that the Board's motion must be denied without consideration of its merits on the grounds that the Board improperly attempted to proceed under the North Carolina Rules of Civil Procedure.

Rules 59(a) and 60(b) allow a party to seek a new trial or relief from an order in a civil bond forfeiture proceeding.

State ex rel. Moore County Board of Education v. Pelletier · filed 2005-01-18Rules 59(a), 59(b), and 60(b)

For these reasons, we hold the Board properly proceeded by moving for a new trial or relief from order granting relief from forfeiture under Rules 59(a) and 60(b), and the trial court erred as matter of law in concluding that the Board’s motion must be denied without consideration of its merits on the grounds that the Board improperly attempted to proceed under the North Carolina Rules of Civil Procedure.

Rule 52 generally requires separate conclusions of law, but those formalities do not apply to small claims proceedings, including a de novo district court appeal.

Jones v. Ratley · filed 2005-01-18Rule 52

While Rule 52 of the North Carolina Rules of Civil Procedure requires that the trial courts in general state conclusions of law separately, we believe the General Assembly has indicated that these types of formalities do not apply in small claims proceedings, including the de novo appeal.

Rule 44 requires written notice when a party raises an issue of foreign law; attaching a foreign order alone does not give notice of a conflict between foreign and North Carolina law.

Ugochukwu v. Ugochukwu · filed 2006-03-21Rule 44

In this case, plaintiff failed to raise either by the pleadings or any other reasonable written notice that an issue regarding foreign law existed. Although plaintiff claims that the foreign order, which was submitted with defendant’s motion to modify, sufficiently raised this issue, we disagree. The mere fact that a foreign order was attached to one of defendant’s motions does not provide the trial court with written notice that there is a conflict between the laws of this state and a foreign jurisdiction.

Rule 8(a)(1) requires an alimony pleading to give fair notice of the grounds for relief.

Coleman v. Coleman · filed 2007-03-06Rule 8(a)(1)

We thus agree with Plaintiff that a party seeking to claim alimony must comply with Rule 8 of the North Carolina Rules of Civil Procedure, and that an alimony pleading must contain "[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, ... showing that the pleader is entitled to relief[.]" N.C. Gen.Stat. § 1A-1, Rule 8(a)(1) (2003).

Rule 9(j) requires expert review before the original medical malpractice complaint is filed; if that requirement was unmet, a Rule 41(a) voluntary dismissal does not provide an additional year to refile.

Winebarger v. Peterson · filed 2007-04-03Rule 9(j)(1); Rule 41(a)(1)

As in Robinson, we must hold that “[b]ecause plaintiff admitted the allegation in the [complaint] was ineffective to meet the requirements set out in Rule 9(j) ... a voluntary dismissal without prejudice which ordinarily would allow for another year for refiling was unavailable to plaintiff in this case.”

Rule 9(j)(1) asks whether the plaintiff reasonably expected the reviewing witness to qualify under Rule 702, rather than whether the witness actually qualified.

Smith v. Serro · filed 2007-08-21Rule 9(j)(1)

Moreover, we note that the question properly before this Court is whether Dr. Marsigli was “reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence,” not whether he did, in fact, qualify.

Rule 9(j) requires a medical malpractice complaint to rely on an expert reasonably expected to qualify under Rule 702.

Knox v. University Health Systems of Eastern Carolina, Inc. · filed 2007-11-20(j)

Therefore, Dr. Reynolds could not reasonably be expected to qualify as an expert witness as required by Rule 9(j), and does not qualify as an expert witness under Rule 702 subsections (b) or (c).

Rule 9(j)’s expert requirement can be satisfied by a general dentist who also specializes in oral surgery and is qualified to testify about the applicable standard of care.

Roush v. Kennon · filed 2008-02-05Rule 9(j)(1)

Therefore, we hold Dr. Tuzman is a specialist and is qualified to testify as to the appropriate standard of medical care as required under Rule 702 of the North Carolina Rules of Evidence and Rule 9(j) of the North Carolina Rules of Civil Procedure.

Rule 9(j)(1) requires the certifying expert to be willing to testify; reviewing the medical care alone is insufficient.

McGuire v. Riedle · filed 2008-06-03Rule 9(j)(1)

In order to satisfy the Rule 9(j)(l) requirements, plaintiff’s expert must have been willing to testify. Because he was not so willing, it is irrelevant whether he in fact reviewed the care that plaintiff received.

Rule 9(j)(2) requires the plaintiff to file the expert-qualification motion, but does not require a ruling on it before a voluntary dismissal under Rule 41(a)(1).

Ford v. McCain · filed 2008-09-16Rule 9(j)(2)

Rule 9(j)(2), by its terms, requires only that the plaintiff file the motion, which, in this case, plaintiff did. We cannot reconcile the trial court’s requirement that plaintiff also obtain a ruling on her Rule 702(e) motion with the “absolute right” to voluntarily dismiss an action at any time before a plaintiff rests his or her case.

Rule 9(j)(1) assesses whether a plaintiff reasonably expected the proposed expert to qualify when the complaint was filed, rather than whether the expert ultimately qualifies after discovery.

Moore v. Proper · filed 2011-09-06(j)(1)

Whether the proposed expert is reasonably expected to qualify is resolved at the time the complaint is filed. Whether the proposed expert does in fact qualify as such is resolved after discovery is completed.

Rule 9(j)(1) requires a medical malpractice plaintiff's expectation that the reviewing expert will qualify to be reasonable in light of facts known or reasonably knowable when the complaint is filed.

Moore v. Proper · filed 2012-06-14(j)(1)

Therefore, to evaluate whether a party reasonably expected its proffered expert witness to qualify under Rule 702, the trial court must look to all the facts and circumstances that were known or should have been known by the party at the time of filing.

Rule 9(j) requires a medical malpractice plaintiff to have reasonably expected, when filing the complaint, that the certifying expert would qualify under Rule 702.

Braden v. Lowe · filed 2012-11-06Rule 9(j)

We stress that our ruling does not address the actual qualification of Dr. Alleyne as an expert under Rule 702 as such a determination has not yet been made by the trial court; rather, our ruling strictly addresses whether Plaintiff could have reasonably expected Dr. Alleyne to qualify for purposes of N.C.G.S. § 1A-1, Rule 9(j).

Rule 9(j) requires expert certification when a medical malpractice claim challenges clinical care provided under a falls precaution plan.

Littlepaige v. United States · filed 2013-06-12(j)

We conclude on these facts that the claim sounds in medical malpractice, the strictures of Rule 9(j) apply, and Mrs. Littlepaige failed to comply with that rule.

Rule 9(j) requires a medical malpractice complaint to allege that the medical care and records were reviewed by a person reasonably expected to qualify as an expert witness who is willing to testify that the applicable standard of care was not met.

Alston v. Hueske · filed 2016-01-05(j)(1)

Rule 9(j) requires “the medical care and all medical records” be reviewed by a person reasonably expected to qualify as an expert witness and who is willing to testify the applicable standard of care was not met.

A plaintiff who timely files a medical malpractice complaint without a Rule 9(j) certification may voluntarily dismiss and refile after the limitations period if the new action is timely under Rule 41 and states that the expert review occurred before the original filing.

Boyd v. Rekuc · filed 2016-03-15Rule 9(j); Rule 41(a)(1)

Specifically, where a plaintiff voluntarily dismisses a medical malpractice complaint which was timely filed in good faith but which lacked a required Rule 9(j) certification, said plaintiff may re-file the action after the expiration of the applicable statute of limitations provided that (1) he files his second action within the time allowed under Rule 41 and (2) the new complaint asserts that the Rule 9(j) expert review of the medical history and medical care occurred prior to the filing of the original timely-filed complaint.

Rule 9(j) requires expert certification for a medical malpractice claim; an uncertified claim must be dismissed unless res ipsa loquitur applies.

Wood v. United States · filed 2016-07-21Rule 9(j)

The United States is entitled to summary judgment on count one alleging ordinary negligence, because the FTCA claim can only proceed, if at all, as a medical malpractice claim to which res ipsa loquitur does not apply, but for which there is presently no expert certification under N.C. Gen. Stat. § 1A-1, Rule 9(j).

Rule 9(j) does not require a medical expert’s certification for an emotional distress claim based on post-death conduct that does not involve medical care.

Norton v. Scot. Mem'l Hosp., Inc. · filed 2016-11-15Rule 9(j)

A medical expert’s certification under Rule 9(j) was not required to validate Plaintiffs’ IIED claim against Duke Hospital, after Mr. Norton was deceased and the allegations against Duke Hospital pertain to the autopsy and removal of organs.

Rule 9(j) requires dismissal of a medical malpractice claim when the identified reviewing expert will not testify that the challenged care fell below the standard of care and the plaintiff did not identify another expert for that care in discovery.

Ingram v. Henderson Cnty. Hosp. Corp. · filed 2018-05-01(j)(1)

The trial court’s findings of fact quoted Dr. Sixsmith’s deposition where she stated that she had not believed nor would she testify that the nursing care provided by defendant Pardee Hospital fell below the standard of care. ... But plaintiff failed to identify Dr. Milzman, Dr. Abbott, and Dr. Snider as experts who would offer opinions regarding nursing care in response to discovery. ... Therefore, the trial court’s unchallenged findings of fact support its conclusion of law that plaintiff’s “claim for negligence based upon the theory that the nursing staff of” defendant Pardee Hospital did not comply with Rule 9(j) and should therefore be dismissed.

Rule 9(j)(1) requires factual support, when a medical malpractice complaint is filed, for its certification that a reviewing expert is willing to testify; later discovery showing that support was absent warrants dismissal.

Preston v. Movahed · filed 2019-03-05(j)(1)

Thus, if subsequent discovery establishes a facially valid certificate has no factual support for one of Rule 9(j)’s strict pleading requirements, a medical malpractice complaint is properly dismissed for substantive Rule 9(j) noncompliance.

When assessing Rule 9(j) compliance at the preliminary stage, a trial court should not weigh evidence or decide witness credibility.

Preston v. Movahed · filed 2020-04-03(j)(1)

We do not view the legislature’s enactment of Rule 9(j) as intending for the trial court to engage in credibility determinations and weigh competent evidence at this preliminary stage of the proceedings.

Rule 9(j) does not permit dismissal of a facially compliant medical malpractice complaint based on doubts about the certifying expert’s qualifications unless the evidence establishes that the plaintiff could not reasonably have expected the expert to qualify when the complaint was filed.

Robinson v. Halifax Reg'l Med. Ctr. · filed 2020-04-21Rule 9(j)

However, at this point, Defendants have simply not met their burden of showing that they are entitled to a dismissal under Rule 9(j). The trial court must reasonably infer that it was reasonable for Plaintiffs to expect Dr. Mallory would qualify as an expert under Rule 702, as they allege in their complaint, unless and until the discovery shows, even in the light most favorable to them, that they could not have so reasonably expected.

For a facially compliant medical malpractice complaint, Rule 9(j)(1) measures the reviewing expert’s willingness to testify by what the plaintiff knew or reasonably should have known when the complaint was filed.

Miller v. Carolina Coast Emergency Physicians, LLC · filed 2022-08-19Rule 9(j)(1)

In evaluating the second requirement, just as with the first Rule 9(j) requirement, what matters is what was known or what reasonably should have been known at the time of the filing.

Rule 9(j) requires expert certification in a medical malpractice complaint, but the certification need not repeat the rule’s exact wording if it conveys the required substance.

Land v. Whitley · filed 2024-02-06Rule 9(j)

While the use of statutory language may be advisable, Plaintiffs’ certification conveys the same principles and language from Rule 9(j), even if the statute’s language is ordered differently within the certification.

Rule 9(j) allows a court evaluating compliance after the pleading stage to consider whether the plaintiff’s designated medical expert actually qualifies under Rule 702.

Robinson v. Halifax Reg'l Med. Ctr. · filed 2024-03-05Rule 9(j)

The trial court’s analysis of whether Dr. Mallory actually qualified as an expert witness under Rule 702(b) is not a misstatement of the law, but rather, it is inherent to its evaluation of actual compliance with Rule 9(j) beyond the preliminary stages of the proceedings.

Rule 9(j) requires expert review and certification to assert a medical malpractice claim.

Dobson v. Sears · filed 2024-11-19Rule 9(j)(1)

If a plaintiff fails to obtain an expert certification pursuant to Rule 9(j) of Civil Procedure, which incorporates the requirements of Rule 702(b) for standard of care expert witness qualification, the plaintiff has failed to meet the requirements to assert a medical malpractice claim under N.C. Gen. Stat. § 90-21.11(2)(a) or (b).

Rule 8(e)(2) permits a party to plead separate claims regardless of consistency, subject to Rule 11.

Club Car, Inc. v. Dow Chemical Co. · filed 2007-05-03Rule 8(e)(2)

Moreover, that Club Car has also pleaded contractual relief for breach of express warranties is of no legal moment, at least not at this stage. Subject to the requirements of Rule 11, our rules of civil procedure allow a pleader to “state as many separate claims or defenses as he has regardless of consistency[.]” N.C.G.S. § 1A-1, Rule 8(e)(2); see Hendrix v. Hendrix, 67 N.C. App. 354, 357, 313 S.E.2d 25, 27 (1984) (Phillips, J., concurring) (“The main reason for permitting inconsistent claims to be alleged is so that litigants can investigate and assess them before having to decide—or before the court decides for them—which inconsistent claim is supportable and which is not.”).

Rule 8 permits a litigant to assert inconsistent, even contradictory, legal positions within a lawsuit.

Whitacre Partnership v. Biosignia, Inc. · filed 2004-02-06Rule 8

Moreover, such a limitation is necessary to avoid interference with our liberal pleading rules, which permit a litigant to assert inconsistent, even contradictory, legal positions within a lawsuit.

Rule 1 covers estate proceedings as proceedings of a civil nature, even when no complaint has been filed.

In Re Estate of Rand · filed 2007-06-05Rule 1

Because we find that an estate proceeding is a “proceeding of a civil nature,” we uphold the trial court’s determination that the Rules of Civil Procedure apply to this matter.

Rule 23 permits a court to deny certification of a proposed class whose future members are unknown and cannot be identified when the action is brought.

Peverall v. County of Alamance · filed 2007-06-19Rule 23(a)

Thus, it was not an abuse of discretion in the instant case for the trial court to refuse to certify employees who were unknown and could not be known at the time the action was brought.

Rule 12(h) allows a party to waive an objection to lack of service of process by participating in the proceeding without raising it.

In Re SJM · filed 2007-06-19Rule 12(h)

However, service of process may be waived by appearance and participation in the legal proceeding without raising an objection to the lack of service. ... By thus participating in substantive matters in this case, the parents waived any objection to lack of service of process.

Improper service under Rule 4 affects personal jurisdiction, and a party waives the objection by appearing without raising it.

In Re Nel · filed 2010-02-16Rule 4

Notwithstanding this clear violation of Rule 4, respondent filed an answer to the petition to terminate her parental rights and failed to object to the court's jurisdiction over her, thereby waiving any challenge she may have had to personal jurisdiction.

A party waives a defect in service of process when counsel makes a general appearance and argues the merits on the party's behalf.

In re J.C. · filed 2015-05-19Rule 12(h)(1)

Accordingly, because respondent's attorney made a general appearance and argued the merits of the case on her behalf, we find that she waived any defect in service of process.

Rule 12(h)(1) makes an insufficiency of service of process defense waivable when it is not raised by motion or responsive pleading.

In re A.L.I. · filed 2022-03-18(h)(1)

A parent’s status as a nonresident does not alter the fact that arguments of insufficient service of a summons pertain to personal jurisdiction rather than subject matter jurisdiction. See In re K.J.L., 363 N.C. at 346, 677 S.E.2d at 837; N.C.G.S. § 1A-1, Rule 12(h)(1).

Rule 12(h)(1) waives an insufficiency of service of process defense if it is not made by motion or included in a responsive pleading or amendment.

In re A.L.I. · filed 2022-03-18(h)(1)

Arguments of insufficient service of process, however, “are defenses that implicate personal jurisdiction and thus can be waived by the parties.” In re J.T., 363 N.C. 1, 4, 672 S.E.2d 17, 19 (2009); see N.C.G.S. § 1A-1, Rule 12(h)(1) (2021) (“A defense of . . . insufficiency of service of process is waived . . . if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof . . . .”).

Rule 17(b)(2) requires an incompetent defendant without a general or testamentary guardian to defend through a guardian ad litem; a guardian of the person does not suffice.

Clawser v. Campbell · filed 2007-07-03Rule 17(b)(2)

Therefore, we must conclude that defendant Mason was neither properly sued nor served in the absence of a guardian ad litem or general guardian, and set aside the verdict against her on that basis.

Rule 17 requires an incompetent defendant to be defended by a general or testamentary guardian, or by an appointed guardian ad litem if neither guardian exists in North Carolina.

Dowd v. Dubose International · filed 2010-03-29Rule 17

The North Carolina Rules of Civil procedure provide that an incompetent who is a defendant in a civil action must be defended by a general or testamentary guardian, and if neither exists within this state, then by appointment of a guardian ad litem.

Rule 12(h)(2) permits a Rule 12(b)(6) motion in a pleading or at trial on the merits, but not after the trial has concluded.

Massey v. Hoffman · filed 2007-07-17Rule 12(h)(2)

Rule 12(h)(2) clearly provides that a motion to dismiss under Rule 12(b)(6) may be made in a pleading or at the trial on the merits. ... Even though the trial court had not entered a written judgment, a judgment had been rendered in favor of petitioner and the trial on the merits had concluded. Allowing the motion to amend was an abuse of discretion and caused undue prejudice to petitioner, therefore we must reverse the order of the trial court.

A Rule 12(b)(6) dismissal is an adjudication on the merits unless the court specifies that it is without prejudice.

Hill v. West · filed 2008-03-04Rule 12(b)(6)

“[I]t is well settled in this State that ‘[a] dismissal under Rule 12(b)(6) operates as an adjudication on the merits unless the court specifies that the dismissal is without prejudice.’”

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

Crouse v. Mineo · filed 2008-03-18Rule 12(b)(6)

The standard of review of an order granting a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987).

Denial of a Rule 12(b)(6) motion to dismiss does not prevent the court from later granting summary judgment.

Pace v. WAKE FOREST BAPTIST CHURCH · filed 2008-04-01Rule 12(b)(6)

However, "denial of a previous motion to dismiss made under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)[2007] does not prevent the trial court from granting a subsequent motion for summary judgment." Rhue v. Pace, 165 N.C. App. 423, 426, 598 S.E.2d 662, 664-65 (2004). Although one superior court judge may not overrule another, motions to dismiss and motions for summary judgment "do not present the same question." Barbour v. Little, 37 N.C. App. 686, 692, 247 S.E.2d 252, 255 (1978). This assignment of error is overruled.

Under Rule 12(b)(6), a court may review documents referenced in the complaint and relied on by its claims without converting the motion to dismiss into a summary judgment motion.

Turner v. Hammocks Beach Corp. · filed 2008-08-19Rule 12(b)(6)

In that Plaintiffs referred to these documents in their complaint and because Plaintiffs' claims relied upon these documents, we hold that the trial court's review of these documents did not convert the motion to dismiss into a summary judgment motion.

Rule 59 permits a new-trial motion to be filed before judgment is entered, but the trial court cannot hear or decide it until after entry of judgment.

Xiong v. Marks · filed 2008-11-18Rule 59(b)

We reconcile Watson with the federal authorities by concluding that though a motion for new trial may be filed before entry of judgment, the trial court does not have jurisdiction to hear and determine the motion until after entry of judgment.

Rule 12(b)(6) limits review of a motion to dismiss to the pleadings unless the motion is treated as one for summary judgment.

Strickland v. Hedrick · filed 2008-12-02Rule 12(b)(6)

In ruling on a motion for dismissal under Rule 12(b)(6), the trial court considers only the pleadings.

Obtaining an extension of time to answer does not waive a Rule 12(b) defense.

Moser v. Smith · filed 2008-12-16Rule 12(b)

Chapter 76 of the 1975 session laws superseded Simms by amending both N.C. Gen. Stat. § 1-75.7 and Rule 12(b) to provide that obtaining an extension of time in which to file answer does not constitute a general appearance or waive any Rule 12(b) defense.

Rule 12(b)(6) permits dismissal on statute of limitations grounds when the complaint shows on its face that the claim was filed too late.

Ventriglia v. Deese · filed 2008-12-16Rule 12(b)(6)

Plaintiff argues next that the court erred by dismissing his complaint under Rule 12(b)(6) for failure to state a claim for relief. We disagree. ... Therefore, Count I of Plaintiff’s claim was barred by the statute of limitations.

Rule 12(b)(6) requires courts to construe a complaint liberally and dismiss it only when the plaintiff could obtain no relief under any facts proved in support of the claim.

Teague v. Bayer AG Bayer Polymers, LLC · filed 2009-01-20Rule 12(b)(6)

The complaint is to be liberally construed in ruling upon a Rule 12(b)(6) motion, and it should not be dismissed unless it appears to a certainty that the plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim.

A Rule 12(b)(6) motion is converted to a motion for summary judgment when the court considers matters outside the pleadings.

State Ex Rel. Cooper v. Seneca-Cayuga Tobacco Co. · filed 2009-05-19Rule 12(b)(6)

Preliminarily, we observe that, since the trial court considered matters outside the pleadings in granting Defendants’ Rule 12(b)(6) motion, Defendants’ motion was converted to one for summary judgment.

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

Sanders v. State Personnel Commission · filed 2009-06-02Rule 12(b)(6)

The question for the Court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.

A Rule 12(b)(6) motion is treated as a motion for summary judgment when the court considers material outside the pleadings.

MANITIUS v. Guthrie · filed 2009-06-16Rule 12(b)(6)

Therefore, we must consider defendants' motion to dismiss as a motion for summary judgment.

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

Whiteheart v. Waller · filed 2009-08-18Rule 12(b)(6)

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

Rule 12(b)(6) converts a motion to dismiss into a motion for summary judgment when the court considers matters outside the pleadings.

Mileski v. McConville · filed 2009-08-18Rule 12(b)(6)

It is evident from the order that the trial court considered matters outside the pleadings. Thus, defendants’ Rule 12(b)(6) motion was converted to a motion for summary judgment.

Rule 12(b)(6) permits a motion to dismiss for lack of standing when that defect appears on the face of the complaint.

Noble v. HOOTERS OF GREENVILLE (NC), LLC · filed 2009-08-18Rule 12(b)(6)

One insurmountable bar to recovery which may be disclosed on the face of a complaint is a lack of standing. Such a bar to recovery is properly challenged by a Rule 12(b)(6) motion.

On a Rule 12(b)(6) motion, the court treats the plaintiff’s factual allegations as true.

Turner v. Hammocks Beach Corp. · filed 2009-08-28Rule 12(b)(6)

We emphasize at the outset that we are reviewing the trial court’s ruling on a motion to dismiss under Rule 12(b)(6). When ruling on such a motion to dismiss, the trial court is to treat the plaintiff’s factual allegations as true.

A denial of a Rule 12(b)(6) motion is not reviewable on appeal after a final judgment on the merits.

Beach v. Hughes · filed 2009-09-01Rule 12(b)(6)

It is "well established that the denial of a Rule 12(b)(6) motion to dismiss is not reviewable upon an appeal from a final judgment on the merits."

Rule 12(b)(6) does not permit dismissal when a complaint adequately pleads facts supporting its claims.

Fischer Investment Capital, Inc. v. Catawba Development Corp. · filed 2009-11-03Rule 12(b)(6)

A careful review of the allegations of Plaintiffs complaint establishes that Plaintiff adequately pled each of the three claims that it attempted to assert against Defendants. For that reason, the trial court erred by dismissing Plaintiffs complaint for failure to state a claim for which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).

A Rule 12(b)(6) dismissal of declaratory judgment claims does not also dispose of a separately adjudicated petition for judicial review.

Hardy v. Beaufort County Board of Education · filed 2009-11-17Rule 12(b)(6)

The superior court: (1) dismissed petitioners’ declaratory judgment claims pursuant to Rule 12(b)(6) and (2) affirmed the decision of the Board upholding petitioners’ suspensions. These separate dispositions indicate that the trial court considered the two parts of petitioners’ pleadings separately, and we review the superior court’s determinations accordingly.

Rule 12(b)(1) provides the procedure for seeking dismissal when a plaintiff lacks standing.

Munger v. State · filed 2010-02-16Rule 12(b)(1)

For that reason, the absence of standing is appropriately addressed by a dismissal motion lodged pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1).

Rule 12(b)(6) does not support dismissal on grounds that do not appear on the face of the petition.

City of Asheville v. Huskey · filed 2010-05-18Rule 12(b)(6)

We first note that none of Respondent's bases for applying the estoppel doctrine appear on the face of the Petition, and the trial court was thus correct in declining to address dismissal under 12(b)(6).

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

State Employees Ass'n of North Carolina, Inc. v. North Carolina Department of State Treasurer · filed 2010-06-17Rule 12(b)(6)

The only task at hand for purposes of Rule 12(b)(6) is to test the legal sufficiency of the complaint.

Rule 12(b)(6) requires a court reviewing dismissal to treat the complaint’s allegations, including incorporated affidavits and attachments, as true and construe them liberally.

Mosteller v. Duke Energy Corp. · filed 2010-09-07Rule 12(b)(6)

We must therefore consider all of the allegations of the plaintiff’s complaint, including the affidavits and various attachments, as true, and we must liberally construe all of these facts as alleged by plaintiff.

Rule 12(b)(6) motions test the legal sufficiency of a complaint.

Signature Development, LLC v. Sandler Commercial at Union, L.L.C. · filed 2010-11-02Rule 12(b)(6)

A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of the complaint.

Rule 12(b)(6) does not permit dismissal when the complaint’s allegations, treated as true, adequately state a negligence claim.

White v. Collins Building, Inc. · filed 2011-01-04Rule 12(b)(6)

As the allegations of Plaintiffs’ complaint, treated as true, adequately state a claim against Defendant for negligence, the trial court erred in granting Defendant’s motion to dismiss.

Rule 12(b)(6) permits dismissal of a declaratory judgment claim when the complaint shows no actual, genuine existing controversy.

Poole v. BAHAMAS SALES ASSOCIATE, LLC · filed 2011-01-04Rule 12(b)(6)

Although a motion to dismiss under Rule 12(b)(6) “is seldom an appropriate pleading in actions for declaratory judgments, . . . [i]t is allowed . . . when the record clearly shows that there is no basis for declaratory relief as when the complaint does not allege an actual, genuine existing controversy.”

Rule 12(f) permits striking matter from a pleading but does not authorize a final determination on the merits or the discharge of a lien.

Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc. · filed 2011-03-15Rule 12(f)

Thus, a ruling on a Rule 12(f) motion should not have been used as the basis for discharging plaintiff's filings upon the filing of the order, because striking material from the pleadings is not akin to reaching a final determination of the matter.

On a Rule 12(b)(6) motion, the court decides whether the complaint sufficiently alleges incompetence to support tolling, without deciding whether the plaintiff was actually incompetent.

Fox v. Sara Lee Corp. · filed 2011-04-05Rule 12(b)(6)

We stress that we are reviewing the trial court’s ruling on Sara Lee’s N.C.G.S. § 1A-1, Rule 12(b)(6) motion and, therefore, it is not the role of this Court to determine whether Plaintiff was actually incompetent. Rather, as in Soderlund I, our review is to determine whether Plaintiff’s complaint was sufficient to put Defendants on notice that Plaintiff was rendered mentally incompetent as a result of Defendants’ actions and, therefore, was incompetent when her causes of action accrued.

Under Rule 12(b)(6), a court need not accept conclusory allegations as true when deciding a motion to dismiss.

Best Cartage, Inc. v. Stonewall Packaging LLC · filed 2011-06-08Rule 12(b)(6)

The Court need not accept these conclusions even in the context of reviewing a Rule 12(b)(6) motion.

Rule 12(b)(6) permits consideration of a document repeatedly referenced in the complaint; if its consideration converts the motion to summary judgment, a plaintiff who neither objects nor seeks a continuance waives the right to present additional material.

Stunzi v. Medlin Motors, Inc. · filed 2011-08-02Rule 12(b)(6)

Thus, whether because the disclosure form was properly considered on the motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), as a document repeatedly referred to by the complaint, or whether the hearing was converted to a summary judgment hearing and plaintiff waived his right to present additional material by his failure to object, the trial court properly considered the disclosure form.

Rule 12(f) permits a court to strike matter from a pleading, but a ruling on that motion does not itself finally determine the merits or discharge a lien.

Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc. · filed 2011-09-06Rule 12(f)

A final determination on the merits is not the relief contemplated by a defendant filing a motion to strike pursuant to Rule 12(f). ... Thus, a ruling on a Rule 12(f) motion should not have been used as the basis for discharging plaintiff's filings upon the filing of the order, because striking material from the pleadings is not akin to reaching a final determination of the matter.

Rule 12(b)(6) does not permit dismissal based on an intervening-cause defense when the complaint does not establish when the alleged intervening actor learned of the infection.

CARSANARO v. Colvin · filed 2011-09-06Rule 12(b)(6)

Plaintiff’s complaint is silent as to when Mrs. Carsanaro discovered that defendant had infected her with herpes; therefore, dismissal on this basis pursuant to Rule 12(b)(6) is not appropriate.

Rule 12(b)(6) permits a statute of limitations defense on a motion to dismiss when the bar appears on the face of the complaint.

Bissette v. Harrod · filed 2013-03-19Rule 12(b)(6)

A statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim.

A Rule 12(b)(6) motion is treated as a motion for summary judgment when the court considers material outside the pleadings and the parties have a reasonable opportunity to present evidence.

Hillsboro Partners, LLC v. City of Fayetteville · filed 2013-03-19Rule 12(b)(6)

In the present case, neither party claims that it did not have a reasonable opportunity to present evidence or was surprised by the introduction of this material. ... Therefore, we conclude that defendant’s motion to dismiss was converted into a motion for summary judgment.

Under Rule 12(b)(6), alleging each element of a claim does not suffice when the complaint lacks facts supporting it.

Howard v. County of Durham · filed 2013-05-07Rule 12(b)(6)

“In ruling on a Rule 12(b)(6) motion to dismiss, the trial court regards all factual allegations of the complaint as true. Legal conclusions, however, are not entitled to a presumption of truth.” ... Thus, although plaintiff has alleged each element of negligent misrepresentation, including pecuniary loss, we hold that “the complaint on its face reveals the absence of facts sufficient to make a good claim.”

Rule 12(b)(6) limits a motion to dismiss to whether the complaint states a claim; a dispute over the breadth of the requested relief does not defeat a sufficiently pleaded claim.

Brady v. Van Vlaanderen · filed 2013-07-24Rule 12(b)(6)

Defendants instead contest the breadth of the requests to the extent that the claims are not now moot. However, the Rule 12(b)(6) motion inquires only whether a claim has been stated. The Motion to dismiss claims one and two is DENIED.

Rule 12(b)(1) permits a motion to dismiss for lack of subject matter jurisdiction when a claim is moot.

Yeager v. Yeager · filed 2013-08-06Rule 12(b)(1)

Because a moot claim is not justiciable, and a trial court does not have subject matter jurisdiction over a non-justiciable claim, mootness is properly raised through a motion under N.C. Gen. Stat. § 1A-1, Rule 12(b)(1).

A complaint is not subject to dismissal as time-barred under Rule 12(b)(6) unless the facts needed to establish the bar appear on its face.

Podrebarac v. Horace, Talley, Pharr, & Lowndes, P.A. · filed 2013-12-03Rule 12(b)(6)

We hold that plaintiffs complaint, liberally construed, does not disclose facts necessary to conclude that it is barred by the applicable statute of limitations. Therefore, we reverse the trial court’s order dismissing the action and remand for further proceedings.

A motion to dismiss for failure to state a claim may be made as late as trial on the merits.

Westlake v. Westlake · filed 2014-01-07Rule 12(h)(2)

Defendant acknowledges the North Carolina Rules of Civil Procedure permit a party to raise the “defense of failure to state a claim upon which relief can be granted . . . at the trial on the merits.” N.C. Gen. Stat. § 1A-1, Rule 12(h)(2) (2011). “Unquestionably, a motion to dismiss for failure to state a claim upon which relief may be granted, under Rule 12(b)(6), can be made as late as trial upon the merits.” Bodie Island Beach Club Ass’n, Inc. v. Wray, ___ N.C. App. ___, ___, 716 S.E.2d 67, 75 (2011). Therefore, both statute and case law indicate Plaintiff’s motion was timely.

On a Rule 12(b)(2) motion, the trial court weighs the evidence of personal jurisdiction, and its findings stand when supported by competent evidence.

GECMC 2006-C1 Carrington Oaks, LLC v. Weiss · filed 2014-05-06Rule 12(b)(2)

Since it is the responsibility of the trial court to determine the weight and sufficiency of this evidence, based on our review of the record, we conclude that there was competent evidence to support the court’s finding that defendant Weiss signed and executed the Guaranty that contained the consent to jurisdiction provision that expressly submitted defendant Weiss to the jurisdiction of the State of North Carolina.

Rule 12(b) provides for dismissal of claims, not motions.

Burakowski v. Burakowski · filed 2014-05-06Rule 12(b)

... and defendant sought a form of relief that is not even available when he requested a dismissal of a motion, rather than a denial of said motion. See generally N.C. Gen. Stat. § 1A-1, Rule 12(b) (2011) (regarding the dismissal of claims, not other motions).

On a Rule 12(b)(6) motion, a court may consider a contract incorporated by reference into the complaint and attached to the defendant’s motion.

Turner v. Ayers · filed 2014-07-15Rule 12(b)(6)

Initially, we note that the trial court properly examined the Contract as part of its consideration of defendants’ motion to dismiss because the contract was incorporated by reference into plaintiffs’ complaint and attached to defendants’ motion to dismiss.

Rule 6(b) permits extensions for excusable neglect only for time periods established by the North Carolina Rules of Civil Procedure, not statutes of limitations.

Glynne v. Wilson Medical Center · filed 2014-09-02Rule 6(b)

As an initial matter, the only time periods that may be extended based upon the authority available pursuant to N.C. Gen. Stat. § 1A-1, Rule 6(b), are those established by the North Carolina Rules of Civil Procedure.

On a Rule 12(b)(6) motion, the court may consider documents specifically referred to in the complaint and attached to the motion.

Funderburk v. JPMorgan Chase Bank, N.A. · filed 2015-06-16Rule 12(b)(6)

Thus, in addition to plaintiffs' amended complaint and the final foreclosure orders, the promissory notes and deeds of trust specifically referred to in plaintiffs' amended complaint and attached to Chase's motion to dismiss are properly before this Court for review of whether the trial court erred in dismissing plaintiffs' amended complaint for failure to state a claim upon which relief may be granted.

A Rule 12(b)(6) motion presents a question of law and does not require the court to resolve disputed facts.

Davis v. McCoy · filed 2015-06-16Rule 12(b)(6)

As discussed above, a trial court's ruling on a motion under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) is a question of law, and does not involve the court's resolution of disputed issues of fact.

When the parties submit evidence on a Rule 12(b)(2) motion challenging personal jurisdiction, the trial court must find facts and weigh the evidence.

Parker v. Town of Erwin · filed 2015-09-15Rule 12(b)(2)

Therefore, upon considering the question of personal jurisdiction in light of the procedural posture of this case, we conclude that the trial judge had the responsibility of “act[ing] as a fact-finder,” see Deer Corp., 177 N.C. App. at 322, 629 S.E.2d at 166, and was responsible for “determin[ing] the weight and sufficiency of the evidence.”

North Carolina Rule 12(b)(6) uses a less demanding notice pleading standard than the federal rule, so dismissal under the federal rule does not itself bar a related state claim by collateral estoppel.

Fox v. Johnson · filed 2015-10-06Rule 12(b)(6)

Given the difference between the federal and State pleading standards, we must conclude that a federal court’s dismissal of claims pursuant to Federal Rule 12(b)(6) is not an adjudication on the merits for purposes of collaterally estopping a plaintiff from raising the same or related claims under State law in our State’s courts.

Rule 6(b) does not authorize a court to extend a payment deadline in a consent order because that deadline is not set by the Rules of Civil Procedure.

Gandhi v. Gandhi · filed 2015-12-01Rule 6(b)

Based on our appellate courts’ decisions regarding the scope of Rule 6(b), the trial court erred as a matter of law in extending the deadline in the consent order pursuant to Rule 6(b) because the deadline was not a time period specified in our Rules of Civil Procedure.

Rule 12(b)(6) permits a court to dismiss a complaint sua sponte when it fails to state a claim upon which relief can be granted.

Tuwamo v. Tuwamo · filed 2016-07-19Rule 12(b)(6)

In conclusion, the trial court had authority to dismiss plaintiff’s complaint sua sponte since the complaint failed to state a claim upon which relief could be granted.

Under Rule 12(b)(6), a court may disregard allegations contradicted by documents attached to or referenced in the complaint.

Moch v. A.M. Pappas & Associates, LLC · filed 2016-12-20Rule 12(b)(6)

Moreover, we have disregarded allegations that are directly contradicted by the documents attached to or referenced in plaintiff’s complaint.

On a Rule 12(b)(6) motion, a court may disregard allegations contradicted by documents attached to or referenced in the complaint.

Moch v. A.M. Pappas & Assocs. · filed 2016-12-20Rule 12(b)(6)

Moreover, we have disregarded allegations that are directly contradicted by the documents attached to or referenced in plaintiff’s complaint.

Rule 12(b)(6) permits dismissal on statute-of-limitations grounds when the complaint itself shows that the claims are time-barred.

Asheville Lakeview Props., LLC v. Lake View Park Comm'n, Inc. · filed 2017-07-18Rule 12(b)(6)

However, where the order dismissing all claims was based on the fact that all claims were barred by statutes of limitations, the complaint on its face discloses facts that defeat all claims.

A Rule 12(b) motion for failure to state a claim must be filed before the answer; a later motion may, when appropriate, be considered under Rule 12(c).

New Friendship Used Clothing Collection, LLC v. Katz · filed 2017-08-18Rule 12(b)

The Court concludes that, under the express language of Rule 12(b), and in the absence of case law from our appellate courts interpreting such language to mean otherwise, a Rule 12(b) motion to dismiss for failure to state a claim must be filed prior to an answer. The Court further concludes that, under Rules 12(b) and 12(h)(2), a post-answer Rule 12(b) motion to dismiss for failure to state a claim may, if appropriate, be considered as a Rule 12(c) motion for judgment on the pleadings.

A Rule 12(b)(6) motion filed after an answer is untimely, and the court may decline to treat it as a Rule 12(c) motion.

Wirth v. Sunpath, LLC · filed 2017-09-14Rule 12(b)(6)

Because Defendants did not file their Rule 12(b)(6) Motion before they filed an answer, the Motion is untimely and should be dismissed. The Court, in its discretion, declines to construe Defendants’ Motion as a Rule 12(c) motion for judgment on the pleadings, and therefore denies Defendants’ Rule 12(b)(6) Motion.

A Rule 12(b)(6) motion made in a reply is untimely, but the court may consider it as a Rule 12(c) motion for judgment on the pleadings.

Pure Body Studios Charlotte, LLC v. Crnalic · filed 2017-10-18Rule 12(b), Rule 12(c)

As a preliminary matter, Pure Body’s Motion to Dismiss under Rule 12(b)(6) is untimely as it was made in, rather than before, Pure Body’s reply to Crnalic’s counterclaims. ... As a result, the Court will analyze Pure Body’s Motion, to the extent it is based on a failure to state a claim upon which relief may be granted, as a motion for judgment on the pleadings pursuant to Rule 12(c).

On a Rule 12(b)(6) motion to dismiss, the court does not make findings of fact.

Chisum v. Campagna · filed 2017-11-07Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

Rule 12(b)(6) permits a statute of limitations defense on a motion to dismiss when the bar appears on the face of the complaint.

Honeycutt v. Weaver · filed 2018-02-06Rule 12(b)(6)

“[An affirmative] statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion if it appears on the face of the complaint that such a statute bars the claim.”

A complaint can survive Rule 12(b)(6) without a separately labeled rescission claim when its allegations give the defendant sufficient notice of that claim.

Holton v. Holton · filed 2018-03-20Rule 12(b)(6)

Despite not enumerating a separate rescission claim, when accepting the factual allegations surrounding the execution of the separation agreement as true, and liberally construing plaintiff’s complaint, we conclude that her complaint provided defendant sufficient notice of the transaction—the allegedly invalid execution of the separation agreement—to produce a claim for rescission of that agreement.

On a Rule 12(b)(6) motion, the court does not make findings of fact and recites only relevant facts from the complaint.

Wells Fargo Ins. Servs. USA, Inc. v. Link · filed 2018-05-08Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (hereinafter, “Rule(s)”), but only recites those facts included in the complaint that are relevant to the Court’s determination of the Motion.

Rule 12(b)(6) applies to will caveat proceedings.

In re: Hendrix · filed 2018-05-15Rule 12(b)(6)

We therefore conclude that Rule 12(b)(6) applies to caveat proceedings just as it does to other civil proceedings.

Rule 12(b)(6) applies to will caveat proceedings.

Hendrix v. Tantemsapya · filed 2018-05-15Rule 12(b)(6)

We therefore conclude that Rule 12(b)(6) applies to caveat proceedings just as it does to other civil proceedings.

On a Rule 12(b)(6) motion, the court does not make findings of fact and recites only relevant facts from the complaint.

W & W Partners v. Ferrell Land Company · filed 2018-05-22Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (hereinafter the Rules of Civil Procedure are referred to only as “Rule(s)”), but only recites those facts included in the Complaint that are relevant to the Court’s determination of the Motion to Dismiss.

Rule 12(b)(6) does not call for findings of fact on a motion to dismiss.

Glob. Textile All., Inc. v. Tdi Worldwide, LLC · filed 2018-06-05Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

Rule 12(b)(6) tests whether the complaint’s allegations, viewed in the plaintiff’s favor, support a claim for relief under any legal theory.

Fagundes v. Ammons Dev. Grp., Inc. · filed 2018-09-04Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss “is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[], give rise to a claim for relief on any theory.”

Under Rule 12(b)(6), the court does not make findings of fact and recites only relevant facts alleged in the complaint.

Preiss v. Wine and Design Franchise · filed 2018-09-24Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (hereinafter, the North Carolina General Statutes will be referred to as “G.S.” and the Rules of Civil Procedure will be referred to as “Rule(s)”), but only recites those facts included in the complaint that are relevant to the Court’s determination of the Motion.

Under Rule 12(b)(6), a court does not make findings of fact on a motion to dismiss.

Global Textile All., Inc. v. Tdi Worldwide, LLC · filed 2018-10-09Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

On a Rule 12(b)(6) motion, the court does not make findings of fact; it recites the complaint’s allegations relevant to the motion.

Accardi v. Hartford Underwriters Ins. Co. · filed 2018-10-22Rule 12(b)(6)

The Court does not make findings of fact on motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (hereinafter the General Statutes will be referred to as “G.S.” and the Rules of Civil Procedure will be referred to as “Rule(s)”), but only recites those facts included in the complaint that are relevant to the Court’s determination of the Motion.

A Rule 12(b)(6) motion for failure to state a claim must be filed before the answer.

Johnston v. Johnston Props., Inc. · filed 2018-11-15Rule 12(b)(6)

Therefore, under the express language of Rule 12(b), a motion to dismiss for failure to state a claim must be made before filing a responsive pleading.

Rule 12(b)(6) permits dismissal of a derivative claim that fails to satisfy mandatory pleading requirements, even if those requirements are not jurisdictional.

Azure Dolphin, LLC v. Barton · filed 2018-12-07Rule 12(b)(6)

As a result of the fact that the pleading requirements set out in Or. Rev. Stat. Ann. § 63.801(2) (West 2018) and Cal. Corp. Code § 15910.02 (West 2018) are clearly mandatory in nature, plaintiffs’ removal claims are clearly subject to dismissal pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) even if the pleading requirement in question is not jurisdictional in nature.

Rule 12(b)(6) permits dismissal when a complaint fails to state the elements of a legally recognized claim.

Lamb v. Styles · filed 2019-02-05Rule 12(b)(6)

For these reasons, the trial court did not err in granting Defendants’ motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6).

Rule 12(b)(6) requires the court to take the motion’s factual allegations as true and bars it from weighing their credibility when deciding whether the motion states a claim.

Stern v. Stern · filed 2019-03-19Rule 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), the trial court does not have the authority to judge the credibility and merits of the allegations, nor does this Court have the authority to conduct de novo review based upon any information outside the record.

A limitations or repose defense may be raised by a motion to dismiss when the complaint shows on its face that the claim is barred.

BDM Invs. v. Lenhil, Inc. · filed 2019-03-19Rule 12(b)(6)

A defense under a statute of limitations or a statute of repose may be raised under a motion to dismiss if it appears on the face of the complaint that such a statute bars the claim.

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

State on Relation of City of Albemarle v. Nance · filed 2019-07-16Rule 12(b)(6)

We affirm the trial court's order to dismiss the complaint against Smith under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Rule 12(b)(6) motions must be filed before the answer; a motion filed afterward is untimely.

Encompass Servs., Pllc v. Maser Consulting P.A. · filed 2019-11-05Rule 12(b)

Therefore, pursuant to Rule 12(b), Maser’s Motion is untimely and cannot be considered as a 12(b)(6) motion to dismiss for failure to state a claim.

Rule 12(b)(6) permits a negligence claim to proceed when the complaint adequately pleads all four elements, even though the plaintiff has yet to prove them.

DeMarco v. Charlotte-Mecklenburg Hosp. Auth. · filed 2019-11-19Rule 12(b)(6)

Plaintiff’s complaint adequately pleads all four elements of negligence, stating a claim upon which relief could theoretically be granted to her if proven. While we express no opinion as to whether plaintiff can survive a motion for summary judgment or prevail on the merits at trial, she has alleged sufficient facts to survive a pre-answer motion to dismiss under Rule 12(b)(6).

Under Rule 12(b)(6), allegations of proximate cause supported by the complaint’s factual allegations are sufficient to withstand dismissal.

Long v. Fowler · filed 2020-03-03Rule 12(b)(6)

We conclude Plaintiff’s allegations as to proximate cause were sufficient to withstand a motion to dismiss under Rule 12(b)(6).

A Rule 12(b)(6) motion filed after the answer is untimely.

Med1 N.C. Servs., L.L.C. v. Med1 Plus, L.L.C. · filed 2020-02-26Rule 12(b)

Therefore, pursuant to Rule 12(b), the MBG Motion is untimely and cannot be considered as a Rule 12(b)(6) motion to dismiss for failure to state a claim.

Rule 12(b)(6) limits the court’s review to the complaint and appropriate materials referred to in it.

Emrich Enters., LLC v. Hornwood, Inc. · filed 2020-04-08Rule 12(b)(6)

While the Court may consider matters outside of the FAVC in determining whether it has subject matter jurisdiction over the parties or the claims, the Court limits its review for the purposes of Rule 12(b)(6), only considering appropriate matters of record.

When deciding whether a complaint states a claim under Rule 12(b)(6), the court considers pages attached to the complaint when it was filed.

Quackenbush v. Groat · filed 2020-05-05Rule 12(b)(6)

But all of the pages of the complaint, including the attached pages, were part of the complaint when it was filed; the trial court considered all of the pages when issuing the ex parte order; and defendant was served with the entire complaint. We will consider all of the pages for purposes of this appeal.

Rule 12(b)(6) requires a motion to dismiss for failure to state a claim to be filed before the answer.

Mason v. Mason · filed 2020-05-26(b)(6)

Rule 12(b) clearly provides that a motion for failure to state a claim upon which relief can be granted “shall be made before pleading if a further pleading is permitted.” N.C.G.S. § 1A-1, Rule 12(b) (emphasis added). ... As such, Defendant’s Motion, to the extent it seeks dismissal of Plaintiff’s claims pursuant to Rule 12(b)(6), is untimely.

Rule 12(b)(6) permits dismissal when the complaint asserts a claim that North Carolina law does not recognize.

Williams v. N.C. Dep't of Justice · filed 2020-08-18Rule 12(b)(6)

Williams failed to state a claim for which relief can be granted because negligent interference with a contract is not a tort recognized in North Carolina. The Full Commission did not err in dismissing this claim under Rule 12(b)(6).

Rule 12(b)(6) motions must be filed before the answer, and Rule 12(c) motions cannot be considered until the pleadings are closed.

Morris Int'l, Inc. v. Packer · filed 2020-10-08Rule 12(b)(6); Rule 12(c)

Similarly, Kennington Defendants moved to dismiss under Rule 12(b)(6) after filing their answer, so the Court cannot consider Kennington Defendants’ Motion under Rule 12(b)(6). Kennington Defendants additionally moved, in the alternative, for dismissal under Rule 12(c). However, the pleadings are not closed because Barry Poole and Laura Poole have not yet filed answers (or otherwise received a determination on the Poole Motions). Therefore, the Court cannot consider the Kennington Defendants’ Motion under Rule 12(c).

On a Rule 12(b)(2) motion supported by evidence, the court considers uncontroverted allegations in the complaint and uncontroverted facts in the defendant’s evidence when the plaintiff offers no evidence in response.

Green v. Howell · filed 2020-11-03Rule 12(b)(2)

In this case, Defendant’s motion to dismiss, supplemented with supporting evidence and an affidavit, did not controvert Plaintiff’s allegations. Plaintiff rested on the unverified allegations in his complaint. As a result, this Court considers the allegations in Plaintiff’s complaint and all facts in Defendant’s evidence (together, “the Pleadings”).

A dismissal with prejudice under Rule 12(b)(6) operates as an adjudication on the merits and renders harmless an error in dismissing with prejudice under Rule 12(b)(1).

United Daughters Of The Confederacy, NC Div. · filed 2020-12-15Rule 12(b)(6)

Thus, even assuming arguendo that it was improper to dismiss the complaint with prejudice on the basis of Rule 12(b)(1), it was not improper to do so on the basis of Rule 12(b)(6), which operates as an adjudication on the merits.

Rule 12(b)(6) converts a motion to dismiss into a Rule 56 summary judgment motion when the court considers facts outside the pleadings; the parties must then have a reasonable opportunity to present relevant evidence.

Blue v. Bhiro · filed 2020-12-15Rule 12(b)(6)

When a trial court hears matters beyond the facts in a complaint during a motion to dismiss under Rule 12(b)(6), the motion is converted into a motion for summary judgment under Rule 56. If such a conversion occurs, the parties must be given a reasonable opportunity to present relevant evidence on the motion for summary judgment.

A complaint alleging performance under a valid contract and nonpayment sufficiently states a breach of contract claim under Rule 12(b)(6).

Martin Commc'ns, LLC v. Flowers · filed 2021-03-31Rule 12(b)(6)

Plaintiff’s allegations of performance under the CSA, which Defendants do not contend is invalid, without payment pursuant to its terms is sufficient, for purposes of Rule 12(b)(6), to state a claim for breach of contract.

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

Fox v. Fox · filed 2022-05-17Rule 12(b)(6)

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

Rule 12(b)(6) permits dismissal when the complaint’s allegations, taken as true and viewed in the plaintiff’s favor, fail to state a claim for relief.

Singleton v. N.C. Dep't of Health & Hum. Servs. · filed 2022-06-21Rule 12(b)(6)

The trial court correctly held Plaintiffs’ substantive due process allegations, even taken as true and in the light most favorable to them, failed to state a claim upon which relief can be granted. See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2021).

Rule 12(b)(6) limits review on a motion to dismiss to the relevant pleading and documents it refers to that may properly be considered.

Loyd v. Griffin · filed 2022-06-23Rule 12(b)(6)

The Motion is brought pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Accordingly, the Court is limited to its review of the relevant pleading––the Second Amended Complaint––and any documents referred to in the pleading that may be properly considered.

Rule 12(b)(6) requires the court to accept the complaint’s factual allegations as true when deciding whether they state a claim for relief.

Lannan v. Bd. of Governors of the Univ. of N.C. · filed 2022-10-04Rule 12(b)(6)

In more general terms, Plaintiffs allege they paid for a service and then the other party to the alleged contract did not allow them to access that service. Taking the alleged facts as true, as we must at this stage, State ex rel. Stein, ¶ 25, Plaintiffs have properly alleged breach.