N.C. Gen. Stat. § 1A-1

Rule 12(b)(6) permits dismissal when the complaint shows that no law supports the claim, lacks sufficient facts, or discloses a fact that defeats the claim.

Cedarbrook Residential Ctr., Inc. v. N.C. Dep't of Health & Hum. Servs. · filed 2022-12-16Rule 12(b)(6)

The dismissal of a pleading based upon a failure to state a claim for which relief can be granted pursuant to N.C.G.S. §1A-1, Rule 12(b)(6) is appropriate when “(1) the complaint on its face reveals that no law supports the plaintiff’s 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 plaintiff's claim.” Wood v. Guilford Cnty., 355 N.C. 161, 166 (2002).

Rule 12(b)(6) permits dismissal when uncontroverted facts alleged in the complaint show that a claim is barred by the statute of limitations.

Taylor v. Bank of America, N.A. · filed 2024-03-22Rule 12(b)(6)

Specifically, dismissal is appropriate when a complaint alleges “uncontroverted facts” demonstrating that the cause of action is barred by the statute of limitations.

Rule 12(b)(6) permits dismissal when the complaint shows that every cause of action is time barred.

Epcon Homestead · filed 2024-07-16Rule 12(b)(6)

Thus, all of Plaintiff’s legal theories are timed barred. Accordingly, the trial court did not err by dismissing Plaintiff’s complaint under Rule 12(b)(6). See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).

A ruling on a Rule 12(b)(6) motion to dismiss is reviewed de novo.

Lannan v. Bd. of Governors of the Univ. of N.C. · filed 2025-03-21Rule 12(b)(6)

We also review de novo a lower court’s ruling on a motion to dismiss under Rule 12(b)(6).

On a Rule 12(b)(6) motion, a court may consider documents attached by a defendant when the complaint specifically refers to them and they are the subject of the action.

TOM, LLC v. S. River Land Co., LLC · filed 2025-10-01Rule 12(b)(6)

Here, Plaintiffs did not attach the Contract to the Complaint, but South River and Tatum did attach the Contract to their answer and motions to dismiss. Additionally, Plaintiff specifically refers to the Contract, both Contract amendments, the 8 July 2020 contract, and the Bond Replacement Agreement throughout the Complaint, thus the trial court could properly consider these documents when ruling on the Rule 12(b)(6) motion.

Rule 12(b)(6) can support affirmance when a complaint fails to state a claim, even if the trial court dismissed for lack of standing under Rule 12(b)(1).

Mauck v. Cherry Oil Co. · filed 2025-10-17Rule 12(b)(6)

Here, then, we affirm the dismissal—not for lack of standing, as the Business Court held, but under Rule 12(b)(6). The complaint, read alongside the Shareholder Agreement, fails to state a viable claim for judicial dissolution.

A negligence complaint survives a Rule 12(b)(6) motion when its factual allegations give the defendant sufficient notice of the claim to answer and prepare for trial.

J.S. v. Sunshine Scholars Acad., LLC · filed 2025-11-05Rule 12(b)(6)

We hold Plaintiff’s complaint includes adequate facts to provide sufficient notice of its negligence claim to enable Defendant to answer and prepare for trial under the notice pleading standard.

When both sides submit evidence on a Rule 12(b)(2) personal jurisdiction motion, the motion falls within the procedural category for competing jurisdictional evidence.

Ray v. TitleMax of Va., Inc. · filed 2026-02-04Rule 12(b)(2)

Here, as Defendants and Plaintiffs have submitted evidence addressing personal jurisdiction and the order denying the motion to dismiss states the trial court considered the pleadings and arguments of the parties, the case fits into the third category of procedural postures.

A motion labeled as one for judgment on the pleadings is treated as a Rule 12(b)(6) motion when its substance challenges whether the petition states sufficient facts.

Matter of Quevedo · filed 1992-07-07Rule 12(b)(6)

Although respondent styled his motion as one for judgment on the pleadings pursuant to Rule 12(c), we will treat it as a Rule 12(b)(6) motion for failure to state a claim because (1) the basis for the motion is that the petition fails to state sufficient facts as required by N.C.Gen. Stat. § 7A-289.25(6) and (2) a motion is treated according to its substance and not its label.

Rule 12(b)(6) permits an affirmative defense to be raised in a motion to dismiss absent a showing of prejudice.

Johnson v. North Carolina Department of Transportation · filed 1992-07-21Rule 12(b)(6)

Absent a showing of prejudice, an affirmative defense may be raised by a Rule 12(b)(6) motion to dismiss.

Rule 12(b)(6) permits dismissal only when the complaint’s allegations, construed liberally, fail to state a legally recognized claim.

Miller v. Nationwide Mutual Insurance · filed 1993-10-19Rule 12(b)(6)

The facts alleged by plaintiff are sufficient to state a claim for unfair trade practices so as to withstand a challenge under Rule 12(b)(6). For this reason, the trial judge erred in dismissing plaintiff’s claim for unfair trade practices.

A breach of contract complaint withstands a motion to dismiss for failure to state a claim if it alleges that the plaintiff was in privity of contract or was a direct beneficiary of the contract.

Lee Cycle Center, Inc. v. Wilson Cycle Center, Inc. · filed 2001-04-17Rule 12(b)(6)

To withstand a motion to dismiss for failure to state a claim in a breach of contract action, a plaintiff's allegations must either show it was in privity of contract, or it is a direct beneficiary of the contract.

Rule 12(b)(6) does not permit dismissal when a complaint, read liberally and with its allegations taken as true, sufficiently states a claim for relief.

Wood v. Hollingsworth · filed 2004-10-19Rule 12(b)(6)

The only issue on appeal is whether the trial court erred by granting defendants’ motion to dismiss pursuant to Rule 12(b)(6). Because we conclude that plaintiff’s complaint properly states a claim upon which relief may be granted, we reverse and remand.

Denial of a motion under Rule 12(b)(1) or Rule 12(b)(6) does not affect a substantial right and is not immediately appealable.

Capps v. NW Sign Industries of North Carolina, Inc. · filed 2005-07-05Rule 12(b)(1), Rule 12(b)(6)

Neither denial of a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction nor motion for failure to state a claim for which relief can be granted under Rule 12(b)(6) affects a substantial right and neither is immediately appealable.

Rule 12(b)(6) requires a complaint to allege facts sufficient to state a claim for relief.

Hashemi v. Town of Cary · filed 2005-09-20Rule 12(b)(6)

In considering a Rule 12(b)(6) motion to dismiss, the trial court must determine whether the factual allegations in the complaint state a claim for relief. ... Because plaintiff has alleged sufficient facts to show the Cary Ordinance is preempted and therefore must give way to EMC requirements, he has stated a claim pursuant to Rule 12(b)(6).

Rule 12(b)(6) permits dismissal when a complaint, construed favorably to the plaintiff, does not allege facts sufficient to state a claim.

Griner v. Griner · filed 2007-11-06Rule 12(b)(6)

Therefore, plaintiffs' complaint failed to state a claim upon which relief could be granted by the trial court as to father under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).

A denial of a Rule 12(b)(6) motion may be followed by a Rule 56(c) summary judgment motion, but a later judge cannot use that motion to overrule an earlier judge’s legal conclusion on the same issue.

Adkins v. STANLY COUNTY BD. OF EDUC. · filed 2010-05-04Rule 12(b)(6); Rule 56(c)

This direct comparison also reveals that Judge Beale's order is not merely the application of the different standard required by a motion for summary judgment; rather, Judge Beale's order operates to overrule Judge Spainhour's application and conclusion of law in Judge Spainhour's ruling on Defendants' N.C.G.S. § 1A-1, Rule 12(b)(6) motion.

An interlocutory order denying a motion to dismiss under Rule 12(b)(1) or Rule 12(b)(6) is not immediately appealable.

In re: Duncan · filed 2018-11-20Rule 12(b)(1), (b)(6)

Because Petitioner’s appeal of the 15 December 2017 order is an improper interlocutory appeal from the denial of a motion to dismiss pursuant to Rule 12(b)(1) or Rule 12(b)(6), we grant DSS’s motion to dismiss this portion of Petitioner’s appeal.

Rule 12(b)(6) tests the sufficiency of a complaint; summary judgment turns on whether there is a genuine factual dispute.

Est. of Graham v. Lambert · filed 2024-03-22Rule 12(b)(6)

Put differently, the court imported the Rule 12(b)(6) standard into the realm of summary judgment. See N.C.G.S. § 1A-1, Rule 12(b)(6) (2023).

North Carolina Rule 12(b)(6) does not govern motions to dismiss in federal court; the Federal Rules of Civil Procedure govern.

COOK v. FARMERS MUTUAL HAIL INSURANCE COMPANY OF IOWA · filed 2024-09-23Rule 12(b)(6)

The Federal Rules of Civil Procedure, not the North Carolina Rules of Civil Procedure, govern proceedings in this Court.

Rule 37(c) allows reasonable expenses, including attorney’s fees, when a party improperly denies requests for admission and the requesting party later proves those matters.

Cail v. Cerwin · filed 2007-08-07Rule 37(c)

Accordingly, the trial court did not abuse its discretion in taxing defendant Christina Cerwin with costs of $25,200.00 pursuant to Rule 37(c), and defendants assignment of error, therefore, is overruled.

Rule 24 requires an applicant seeking full party rights in a contested administrative case to satisfy its intervention requirements.

Holly Ridge Associates, LLC v. North Carolina Department of Environment & Natural Resources · filed 2007-08-24

To intervene with the full rights of a party, the applicant must satisfy the requirements of Rule 24.

Entry of default does not prevent a defendant from responding to requests for admissions under Rule 36.

Kniep v. Templeton · filed 2007-09-04Rule 36(a)

In this case, the entry of default did not preclude Defendant from responding to Plaintiffs’ requests for admissions because Defendant was free to contest the sufficiency of Plaintiffs’ complaint to state a claim for recovery.

Rule 59(a)(5) does not require a new trial when a jury answers issues it was instructed to skip if those answers are surplusage and the verdict remains consistent.

Strum v. Greenville Timberline, LLC · filed 2007-11-06Rule 59(a)(5)

We hold that the answers to issues five through eight were mere surplusage. After answering issue two “no,” the lawsuit was over. ... The trial court did not abuse its discretion in denying plaintiffs’ motion for a new trial due to the jury’s disregard of the court’s instructions.

Rule 6’s five-day period for a written motion is extended by its time-computation and mail-service provisions; a ruling entered on the resulting deadline is not premature.

Smith v. Bennett · filed 2007-11-06Rule 6(a), (d), (e)

Because defendants served their motion by mail on 17 February 2006, the prescribed five-day period was extended by Rules 6(a) and 6(e) to the following Monday, 27 February 2006. N.C. Gen. Stat. § 1A-1, Rules 6(a),(e) (2005). The trial court's order dismissing plaintiff's complaint was dated 27 February 2006, thus, the trial court allowed plaintiff the time required to respond to defendants' motion to dismiss under the North Carolina Rules of Civil Procedure.

A court reviewing the denial of a Rule 59 motion based on inadequate damages requires clear, convincing, and uncontradicted evidence of damages to find an abuse of discretion.

Hughes v. Rivera-Ortiz · filed 2007-11-20Rule 59

Such is not the standard in reviewing a trial court's denial of a Rule 59 motion. Instead, in order to find an abuse of discretion in this context, the evidence as to damages must be clear, convincing and uncontradicted.

Rule 59(a)(6) permits a new trial for excessive damages awarded under the influence of passion or prejudice; denial of such a motion is reviewed for abuse of discretion.

White v. Thompson · filed 2009-05-05Rule 59(a)(6)

Under Rule 59(a)(6), a trial court may grant a new trial on the ground that the jury awarded excessive damages under the influence of passion or prejudice. ... Accordingly, the record shows that the trial court was well within its discretion to deny Defendants' motion for a new trial.

Rule 59(a)(7) permits denial of a new trial over an allegedly inadequate damages award when the jury could credit some evidence and reject other evidence.

Dafford v. JP STEAKHOUSE LLC · filed 2011-04-05Rule 59(a)(7)

However, whether plaintiff’s calculation is correct or not is irrelevant since the jury, as the trier of fact, may award damages based on the evidence they find credible and may disregard the evidence they did not find credible. ... We thus conclude that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial pursuant to Rule 59(a)(7).

Rule 59 permits a new trial when excessive damages appear to result from passion or prejudice; denial of a new trial on that ground is reviewed for abuse of discretion.

Chappell v. Webb · filed 2024-08-06Rule 59(a)(6)

Rule 59 of our Rules of Civil Procedure allows the trial court to grant a new trial on the grounds that “excessive or inadequate damages appear[ ] to have been given under the influence of passion or prejudice” or “insufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6)–(7) (2023). ... The trial court did not err by denying Defendant Foreman’s motion for JNOV and it did not abuse its discretion by denying Defendants’ motion for a new trial.

Rule 59(a)(6) permits a new trial when excessive or inadequate damages appear to have resulted from passion or prejudice.

Finch v. Covil Corp. · filed 2019-05-01Rule 59(a)(6)

Under North Carolina law, a new trial may be granted for "[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice." N.C. Gen. Stat. § 1A-1, Rule 59 (a)(6) ; see also Rhyne v. K-Mart Corp. , 358 N.C. 160, 168, 594 S.E.2d 1, 8 (2004).

A voluntary dismissal of the claims remaining after partial summary judgment makes that judgment final for appeal, even when some claims may be refiled.

Curl v. American Multimedia, Inc. · filed 2007-12-18Rule 41(a)(1)

We conclude that, following the dismissal of Plaintiffs’ remaining claims, their appeal was no longer interlocutory.

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

White v. N.C. Department of Correction · filed 2008-02-29Rule 9(j)

Plaintiff has not provided an affidavit as required by Rule 9(j) of the North Carolina Rules of Civil Procedure within the time permitted by the Order entered on October 24, 2006 and the claim for medical negligence does not meet any of the exceptions for an affidavit. Therefore, plaintiff's appeal to the Full Commission must be dismissed.

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

Thompson v. N.C. Department of Correction · filed 2008-06-04Rule 9(j)

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

Rule 9(j) requires dismissal of a medical malpractice claim when the plaintiff fails to meet its requirements and no exception applies.

Moody v. N.C. Department of Correction · filed 2008-06-05Rule 9(j)

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

A court may consider matters outside the pleadings when assessing Rule 9(j) compliance without converting the motion into one for summary judgment.

Barringer v. FORSYTH COUNTY WAKE FOREST UNIVERSITY BAPTIST MEDICAL CTR · filed 2009-06-02Rule 9(j)

Accordingly, we hold that Judge Massey did not convert Defendants’ 9 March 2007 motion into a motion for summary judgment by considering matters outside the pleadings.

Rule 9(j) requires a medical malpractice complaint to assert qualifying expert review or allege facts establishing negligence under res ipsa loquitur.

Rowell v. Bowling · filed 2009-07-07Rule 9(j)

Plaintiff's complaint for a medical malpractice action failed to meet the heightened pleading requirements of N.C. Gen.Stat. § 1A-1, Rule 9(j), in that it did not include the assertion that the medical care provided by Dr. Bowling was reviewed by an expert who would testify that the medical care failed to comply with the applicable standard of care, and it did not satisfactorily invoke the doctrine of res ipsa loquitur.

Rule 9(j) requires dismissal of a medical malpractice complaint when discovery shows that its expert-review statement lacks factual support, even if the complaint facially complied with the rule.

Campbell v. Duke University Health System, Inc. · filed 2010-03-16Rule 9(j)

After review, we hold, notwithstanding that plaintiff’s complaint facially complied with Rule 9(j) by including a statement that a medical expert qualified under Rule 702 would testify that defendants’ actions did not comply with the standard of care where discovery subsequently established that the statement was not supported by the facts, dismissal is appropriate.

Rule 9(j)'s 120-day extension is limited to filing a medical malpractice complaint and cannot be used after filing to obtain expert certification or amend a defective pleading.

Brown v. Kindred Nursing Centers East, LLC · filed 2010-04-15(j)

Even though the limitations period can be extended for 120 days under Rule 9(j), this extension is for the limited purpose of filing a complaint. There is no language in Rule 9(j) that indicates this time period can also be used, as plaintiff did here, to locate a certifying expert, add new defendants, and amend a defective pleading.

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

GRANTHAM EX REL. TRUST CO., OF STERNE v. Crawford · filed 2010-05-18(j)(1)

This Court inquires as to whether plaintiff reasonably expected Dr. Gurewitsch and CNM Kelly to qualify as expert witnesses pursuant to Rule 702, not whether they ultimately will qualify.

A Rule 9(j) extension requires a medical malpractice complaint to be filed within the extended period; Rule 3 cannot further extend that time.

Carlton v. Melvin · filed 2010-07-20Rule 9(j)

Accordingly, we hold that Rule 9(j) prevails over Rule 3 in this instance.

Rule 9(j) requires a medical malpractice claim before the Industrial Commission to meet its pleading requirements; a claim that does not comply is subject to dismissal.

Stevenson v. N.C. Department of Correction · filed 2011-03-15Rule 9(j)

Since plaintiff’s claim was a medical malpractice action, he was required to comply with Rule 9(j). ... Accordingly, the Commission correctly dismissed plaintiff’s claim without prejudice.

Rule 9(j) requires a medical malpractice claimant to satisfy its expert review pleading requirement; failure to comply within the time allowed, when no exception applies, subjects the claim to dismissal with prejudice.

Leutwyler v. N.C. Department of Correction · filed 2011-09-06Rule 9(j)

Plaintiff has not provided an affidavit in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period permitted by the August 26, 2010 Interlocutory Order. Furthermore, no exception to Rule 9(j) of the North Carolina Rules of Civil Procedure is applicable to the above captioned tort matter. As such, Plaintiff is not entitled to recovery under the Tort Claims Act, and the above captioned tort matter is subject to dismissal with prejudice.

Rule 9(j) requires dismissal of a medical malpractice claim that does not meet its expert-review pleading requirement when no exception applies.

Burton v. N.C. Department of Correction · filed 2011-09-09Rule 9(j)

Plaintiff has not provided an affidavit in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period permitted by the August 26, 2010 Interlocutory Order. Furthermore, no exception to Rule 9(j) of the North Carolina Rules of Civil Procedure is applicable to the above captioned tort matter. As such, Plaintiff's claim based on medical malpractice must be dismissed.

Rule 9(j) requires a medical malpractice pleading to satisfy its expert review requirement or an applicable exception; failure to comply within the time allowed subjects the claim to dismissal with prejudice.

Rogers v. N.C. Department of Correction · filed 2011-09-12Rule 9(j)

Plaintiff has not provided an affidavit in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period permitted by the June 25, 2010 Interlocutory Order. Furthermore, no exception to Rule 9(j) of the North Carolina Rules of Civil Procedure is applicable to the above captioned tort matter. As such, Plaintiff is not entitled to recovery under the Tort Claims Act, and the above captioned tort matter is subject to dismissal with prejudice.

Rule 9(j) requires a medical malpractice claim to satisfy its expert review requirement or an applicable exception; failure to comply within the time allowed subjects the claim to dismissal with prejudice.

Foskey v. N.C. Department of Correction · filed 2011-09-12Rule 9(j)

The Tort Claims Act Affidavit for the above captioned matter does not assert that Plaintiff's medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness and Plaintiff has not provided an affidavit in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period permitted by the August 26, 2010 Interlocutory Order. Furthermore, no exception to Rule 9(j) of the North Carolina Rules of Civil Procedure is applicable to the above captioned tort matter. As such, Plaintiff is not entitled to recovery under the Tort Claims Act, and the above captioned tort matter is subject to dismissal with prejudice.

Rule 9(j)’s presuit expert-review requirement applies to North Carolina medical-negligence claims brought under the FTCA, but its pleading requirements do not govern federal complaints.

Lewis v. Womack Army Medical Center · filed 2012-08-20Rule 9(j)

This case presents the issue whether North Carolina Rule of Civil Procedure 9(j), which sets out presuit conditions and pleading requirements for North Carolina medical-negligence claims, applies in a Federal Tort Claims Act case, and if so, the procedure for enforcing the rule’s requirements. This order holds applicable the rule’s presuit conditions, but not its pleading requirements.

Rule 9(j) requires a medical malpractice complaint to include a certification of expert review or allege facts establishing negligence under res ipsa loquitur; a complaint satisfying neither requirement must be dismissed.

Smith v. Axelbank · filed 2012-08-21Rule 9(j)

Here, plaintiff failed to obtain the required certification that her medical care had been reviewed by a medical expert before filing her complaint. Therefore, plaintiff’s claim must be dismissed unless she alleged facts establishing negligence under the doctrine of res ipsa loquitur, which she failed to do, as discussed below.

Rule 9(j) certification is not required for corporate negligence claims based on a hospital’s credentialing, oversight, or other administrative decisions.

Estate of Ray ex rel. Ray v. Forgy · filed 2013-05-07Rule 9(j)

This Court held in Estate of Waters, 144 N.C. App. at 102-03, 547 S.E.2d at 145, that where corporate negligence claims “arise[] out of policy, management or administrative decisions, such as granting or continuing hospital privileges, failing to monitor or oversee performance of the physicians, credentialing, and failing to follow hospital policies,” the claim is rooted in ordinary negligence principles and the “reasonably prudent person” standard should be applied. Accordingly, Rule 9(j) certification is not required for these types of corporate negligence claims.

Rule 9(j)(1) requires a medical malpractice complaint to assert that an expert reviewed the care and would testify that it failed to meet the applicable standard of care.

Robinson v. Duke University Health Systems, Inc. · filed 2013-08-20(j)(1)

In the present case, plaintiffs’ complaint is void of any specific assertion that Robinson’s medical care was reviewed by an expert who would testify that the medical care failed to comply with the applicable standard of care; thus, the pleading does not meet the heightened pleading requirements of Rule 9(j)(l), as defendants contend.

Rule 54(c) does not permit a party to raise a claim for the first time on appeal when the pleadings lack facts sufficient to support it.

HORRY v. Woodbury · filed 2008-04-15Rule 54(c)

Defendant attempts to bring this claim for the first time on appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(c) (2007). Defendant's reliance on Rule 54(c) is misplaced. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C.App. 286, 291, 517 S.E.2d 401, 404 (1999) (refusing to consider a claim for the first time on appeal where the party's pleadings did not allege facts sufficient to support the claim).

The one-year limit for a Rule 60(b)(1)-(3) motion challenging an affidavit of parentage begins only after the affidavit is filed with a court, not when it is signed.

Guilford County Ex Rel. Hill v. Holbrook · filed 2008-05-06Rule 60(b)(1)-(3)

No “judgment, order, or proceeding” could be “entered or taken” until the affidavit of parentage was filed with a court. Accordingly, the one-year limit did not begin to run until 10 June 2005.

Rule 60(b) requires motions based on newly discovered evidence or fraud to be filed within one year after judgment; a party cannot avoid that limit by invoking subsection (6).

Batts v. Batts · filed 2009-02-17(b)(2), (b)(3), (b)(6)

Although plaintiffs styled their motion as pursuant to subsection (6) of Rule 60(b), "Rule 60(b)(6) cannot be the basis for a motion to set aside judgment if the facts supporting it are facts which more appropriately would support one of the five preceding clauses." ... Nevertheless, either instance would require plaintiffs to have presented their motion within one year of the entry of the judgment. Because plaintiffs' motion was made roughly three years after the judgment was entered, their motion should have been denied.

Rule 33 requires each interrogatory to be answered fully under oath unless an objection and its reason are stated; general objections without merit do not excuse incomplete answers.

Hilb Rogal & Hobbs Co. v. Sellars · filed 2008-06-06Rule 33

Rule 33 of the North Carolina Rules of Civil Procedure requires that each interrogatory “be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer.” N.C. Gen. Stat. § 1A-1, Rule 33 (2007). Moreover, “[a]n objection to an interrogatory shall be made by stating the objection and the reason therefore either in the space following the interrogatory or following the restated interrogatory.” N.C. Gen. Stat. § 1A-1, Rule 33 (2007) (emphasis added). ... In any event, Defendant’s general objections are without merit, as the interrogatories appear reasonably calculated to discover information as to Defendant’s efforts (if any) to solicit customers who were actual clients of Defendant during his employment with Plaintiffs.

Rule 59(a)(8) does not support a new trial when excluding a videotaped deposition was neither an error of law nor prejudicial.

Harrell v. Sagebrush of North Carolina, LLC · filed 2008-07-15Rule 59(a)(8)

Thus, the trial court’s conclusion that its decision to exclude the videotape of Lloyd’s deposition amounted to an error of law was erroneous. As such, the grant of a new trial pursuant to Rule 59(a)(8) was improper.

Rule 59(a)(8) permits a new trial for an objected-to error of law at trial; when the asserted rulings were not erroneous, they do not support a new trial.

Stathum-Ward v. Wal-Mart Stores, Inc. · filed 2019-02-19Rule 59(a)(8)

Plaintiff moved for a new trial pursuant to Rule 59(a)(8), which provides that a new trial may be granted for an "[e]rror in law occurring at the trial and objected to by the party making the motion[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (2017). ... Because we have determined the trial court did not error by omitting a spoliation instruction and by granting defendants' motion in limine , it follows that the trial court did not error in denying plaintiff's motion for a new trial.

Rule 23(c)’s requirement of judicial approval for dismissal applies only after a class has been certified.

Moody v. Sears Roebuck and Co. · filed 2008-07-15Rule 23(c)

We find the Fourth Circuit’s reasoning in Shelton persuasive, and hold that the requirements of our own Rule 23(c) do not apply to precertification class-action complaints.

A summons is issued when it has been filled out, dated, and signed by an authorized officer.

In the Matter of Kjl · filed 2008-08-19Rule 4(a)

In the instant case, the summonses included in the record were neither signed nor dated by the clerk of court. See N.C. Gen.Stat. § 1A-1, Rule 4(a) (2007) ("[a] summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so"); ... Thus, it appears that no valid summonses were issued.

A summons is issued when an authorized officer signs it after it has been filled out and dated.

In the Matter of Clb · filed 2008-10-07Rule 4(a)

All of the summonses are signed and dated by a deputy clerk of court. Accordingly, all summonses were properly issued. See N.C. Gen. Stat. § 1A-1, Rule 4(a) (2005) ("A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so.").

Rule 4(a) requires a summons to issue within five days after a complaint is filed; when no summons issues, the trial court lacks subject matter jurisdiction to enter an equitable distribution order.

Broyhill v. Broyhill · filed 2009-02-17(a)

N.C. Gen. Stat. § 1A-1, Rule 4 provides in pertinent part that "[u]pon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service." N.C. Gen. Stat. § 1A-1, Rule 4(a) (2007). ... In the present case, Plaintiff did not file a brief on appeal, and the record before us does not show that any summons was ever issued. We hold that the trial court lacked subject matter jurisdiction over this matter and had no authority to enter an equitable distribution order.

Rule 4(a) requires a summons to issue upon the filing of a complaint or within five days afterward; a summons issued before the complaint does not satisfy that requirement.

Stinchcomb v. Presbyterian Medical Care Corp. · filed 2011-05-03Rule 4(a)

Thus, the summonses were insufficient to comply with the Rule 4(a) requirement that summons shall be issued “forthwith, and in any event within five days,” “[u]pon the filing of the complaint[.]” N.C. Gen. Stat. § 1A-1, Rule 4(a).

Rule 4(a) requires a summons to be issued within five days after a complaint is filed; failure to do so abates the action.

Washington v. Cedar Fair Entertainment Company, L.P. · filed 2023-02-01Rule 4(a)

North Carolina Rule of Civil Procedure 4(a) stipulates that a summons must be issued within five days of the filing of a complaint in North Carolina state court. ... Therefore, Plaintiff clearly did not meet North Carolina Rule of Civil Procedure 4(a)’s requirements for service of summons and the action is abated.

Rule 4(a) requires a summons to issue within five days after the complaint is filed; if no proper summons issues in that period, the action abates.

Kernea v. City of Charlotte · filed 2023-09-29Rule 4(a)

Under the North Carolina Rules of Civil Procedure, a summons must be issued within five days of filing a complaint.

Rule 4 requires an authorized clerk's signature for a summons to be legally issued; without an issued summons, the trial court lacks subject matter jurisdiction over the neglect proceeding.

In Re KJL · filed 2008-12-16Rule 4(b)

The purported summonses to the parents in the neglect and dependency proceedings sub judice were not signed and dated by the clerk of court, or a deputy or assistant clerk of court. When a summons is not signed by one of those individuals it has not been legally issued. N.C. Gen.Stat. § 7B-406(a); see also N.C. Gen.Stat. § 1A-1, Rule 4(b). Without a legally issued summons, the trial court did not have jurisdiction over the subject matter of the neglect and dependency proceeding.

When the trial judge is unavailable, Rule 63 generally permits a substitute judge to perform the judge’s remaining duties, but a superior court judge who did not try the case may not rule on a motion for a new trial; the appellate court reviews the asserted errors.

GEMINI DRILLING AND FOUNDATION, LLC v. National Fire Ins. Co. · filed 2008-09-02Rule 63

Hoots and Graves provide an exception to this “general” application of Rule 63: it is not appropriate for a superior court judge who did not try a case to rule upon a motion for a new trial, and in that situation, an appellate court should conduct the review of errors to determine if the party is entitled to a new trial.

Rule 43(a) requires some oral testimony at a termination of parental rights hearing, though the court may also consider documentary evidence.

In Re AM · filed 2008-09-02Rule 43(a)

Consideration of written reports, prior court orders, and the attorney's oral arguments was proper; however, in addition the trial court needed some oral testimony. See N.C. Gen.Stat. § 1A-1, Rule 43(a).

Rule 59(a) does not warrant a new trial for surprise or irregularity when the party knew before trial that the disputed evidence was available for inspection.

Yorke v. Novant Health, Inc. · filed 2008-09-02Rule 59(a)

On these facts, we find no irregularity in Mr. Yorke’s trial that would have served as a basis for a new trial under Rule 59(a). We therefore hold that the trial court did not abuse its discretion in denying Mr. Yorke’s motion for a new trial.

A party seeking a new trial under Rule 59(a)(1) for an alleged irregularity must demonstrate prejudice.

Sisk v. Sisk · filed 2012-07-17Rule 59(a)(1)

We further hold that plaintiff has failed to demonstrate prejudice under Rule 59(a)(1). Plaintiff states in her brief to the Court that she was “left to question” whether prejudice occurred. This allegation is not sufficient to demonstrate prejudice.

Rule 59(a)(1) and (a)(3) do not provide a new hearing when a party’s inability to produce ordered documents results from its own unreasonable delay.

Akshar Distribution Co. v. Smoky's Mart · filed 2020-01-07Rule 59(a)(1), (a)(3)

The result of Defendants’ unreasonable delay in seeking to procure and produce the documents requested by Plaintiff and ordered to be produced by the trial court is not an “irregularity by which [Defendants were] prevented from having a fair [hearing]” within the meaning of Rule 59(a)(1), and Defendants cannot claim that their inability to produce the documents is the product of “surprise which ordinary prudence could not have guarded against” within the meaning of Rule 59(a)(3).

After an entry of default, a defendant may contest the amount of recovery but may not contest the merits of the complaint.

United Leasing Corp. v. Guthrie · filed 2008-09-16

Because these assertions attempt to contest the merits of the case and not the amount of recovery, they are not properly before us and we do not address them.

An order setting aside an entry of default under Rule 55(a) is interlocutory.

Sullivan v. Pender Cty. · filed 2022-07-05Rule 55(a)

An order setting aside an entry of default previously entered pursuant to Rule 55(a) of the Rules of Civil Procedure is interlocutory.

Rule 55(a) allows a clerk to enter default without proof of personal jurisdiction.

Hansley v. Hansley · filed 2025-02-19Rule 55(a)

Here, on James’ motion, the Clerk entered default. This complied with Rule 55(a) and did not require jurisdictional proof.

Rule 62(a)'s automatic stay does not add thirty days to the limitations period for commencing an action to enforce a judgment.

Fisher v. Anderson · filed 2008-10-21Rule 62(a)

Nothing in the plain language of Rule 62(a) indicates the legislature intended the automatic stay from execution to add thirty days to the ten-year statute of limitations on commencing an action to enforce a judgment.

Rule 5(b) permits service on a party’s attorney of record.

In the Matter of Jgl · filed 2008-10-21Rule 5(b)

Service under section 1A-1, Rule 5(b) is sufficient if it is made upon the party's attorney of record.

Rule 52(a)(1) does not require special findings for an attorney fee petition in an existing action.

Early v. County of Durham, Department of Social Services · filed 2008-10-21Rule 52(a)(1)

Rule 52(a)(1) is inapplicable to a hearing on petition for attorney Tees where an “action” was already in existence, requiring a petition for judicial review to be characterized as a motion for a court order pursuant to Rule 7(b)(1).

Rule 4(i) permits amendment of a summons at any time unless the amendment clearly materially prejudices a party's substantial rights.

In Re Sr · filed 2008-11-18Rule 4(i)

Although the initial summonses were not properly directed to the juveniles, summonses may be amended at any time "unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued." N.C. Gen. Stat. § 1A-1, Rule 4(i). In this case, the summonses were amended prior to the beginning of the hearing, which began on 10 January 2008. We see no prejudice to either the juveniles or any other party to this action by the amendment of the summonses. Therefore, the summonses were properly amended to name the juveniles as respondents pursuant to section 7B-1106(a), and we find the summonses were properly issued as required.

Rule 4(i) permits amendment of a summons to correct a defendant’s misnomer, preserving the action’s original commencement date.

Taylor v. Hospice of Henderson County, Inc. · filed 2008-12-02Rule 4(i)

Having held that the N.C. Gen. Stat. § 1A-1, Rule 4(i) amendment constituted a correction of the original 12 June 2007 summons, plaintiffs action commenced on 12 June 2007.

Rule 62(c) generally permits a trial court to modify an injunction during an appeal, but the court cannot modify stay and bond terms that are themselves on appeal.

Ross v. ROSS (NOW OSBORNE) · filed 2008-12-16Rule 62(c)

Likewise, while a trial court may ordinarily “suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise ... it considers proper for the security of the rights of the adverse party” while an appeal is pending, N.C. Gen. Stat. § 1A-1, Rule ... 62(c) (2007), here, the amount of the security and terms of the Stay Order and Bond Order are the subject matter of plaintiff-husband’s appeal. Thus, once plaintiff-husband perfected his appeal of the Stay Order and the Bond Order, the trial court was divested of jurisdiction to enter an order modifying the terms of those orders.

Rule 8(c) requires the party invoking assumption of risk to plead it as an affirmative defense.

Allred v. Capital Area Soccer League, Inc. · filed 2008-12-16Rule 8(c)

Assumption of risk is an affirmative defense which must be pled by the party seeking to invoke it.

Rule 24 permits denial of a motion to intervene when a lengthy delay in filing lacks sufficient justification.

Malloy v. Cooper · filed 2009-03-17Rule 24

We hold that the length of the delay, combined with the lack of justification for that delay, are sufficient grounds to affirm the trial court’s denial of Movants’ motion to intervene.

Rule 24 requires a timely motion to intervene; after final judgment, the applicant must show extraordinary and unusual circumstances or a strong entitlement and justification.

State of N.C. v. The Chemours Co. FC · filed 2022-06-21Rule 24

In the present case, the trial court did not err by treating the Consent Order as a final judgment when assessing the timeliness of CFPUA’s Third Motion to Intervene. The trial court therefore did not fail to appropriately assess the status of the case and properly required CFPUA to demonstrate “extraordinary and unusual circumstances” or a “strong showing of entitlement and justification” for intervention.

Rule 56(c) permits summary judgment in a declaratory judgment action when no material facts are in dispute.

Hejl v. Hood, Hargett & Associates, Inc. · filed 2009-04-07Rule 56(c)

With no disputed issues of fact, and with summary judgment being an appropriate procedure in a declaratory judgment action, we review the trial court’s judgment as a motion for summary judgment determining whether the trial court’s judgment can be sustained on any grounds.

Rule 56(c) permits summary judgment on a declaratory judgment claim to determine a statute’s applicability.

Costanzo v. Currituck Cnty. · filed 2024-03-19Rule 56(c)

While plaintiffs’ claim sought declaratory relief, this case is proper for summary judgment determining the applicability of the Amendment.

Rule 9(a) requires an unincorporated nonprofit association to affirmatively aver its status and capacity to sue.

North Iredell Neighbors for Rural Life v. Iredell County · filed 2009-04-07Rule 9(a)

While N.C. Gen. Stat. § 1-69.1(b) eliminates the pleading requirements set forth in N.C. Gen. Stat. § l-69.1(a)(3), N.C. Gen. Stat. § 1A-1, Rule 9(a) required NINRL to affirmatively aver that it was an unincorporated nonprofit association.

Rule 3(a) authorizes a clerk to grant permission to file a complaint within twenty days, but not to extend that period.

Norton v. GOODS · filed 2009-04-07Rule 3(a)

Clearly, Rule 3 only gives the clerk jurisdiction to grant a party's request for permission to file his complaint within twenty days.

Rule 26(b)(4) does not require a treating physician to be designated as an expert witness for testimony derived from treating the patient.

Lail Ex Rel. Lail v. Bowman Gray School · filed 2009-04-21Rule 26(b)(4)

We conclude that all of Dr. Block’s testimony, including his testimony about why discharge summaries sometimes contain errors and omissions, was derived from his participation, as treating physician, in the events that gave rise to this lawsuit. As such; Dr. Block was-excluded from mandatory designation as an expert witness.

Rule 9(j) allows a treating physician to provide the required prefiling review if the physician meets the rule’s qualifications; the physician need not be retained solely for that purpose.

Morris v. Southeastern Orthopedics Sports Medicine · filed 2009-09-01Rule 9(j)

Rule 9(j) does not require that the person who gives an opinion as to the standard of care prior to filing the complaint be an expert witness whom the plaintiff has specifically retained for this purpose only. A treating physician may provide the review required by Rule 9(j) as long as he or she meets the qualifications of the rule.

Legal issues in appeals from grants or denials of class certification, including statutory interpretation, are reviewed de novo.

Blitz v. Agean, Inc. · filed 2009-06-02Rule 23

We hold that in appeals from the grant or denial of class certification this Court reviews issues of law, such as statutory interpretation, de novo.

A Rule 59 motion involving a question of law or legal inference is reviewed de novo.

Brown v. Ellis · filed 2010-08-03

“[W]here the Rule 59 motion involves a question of law or legal inference, our standard of review is de novo." ... We will therefore review the trial court’s denial of the motion for new trial de novo.

Rule 59 and Rule 60 rulings on motions that do not allege legal error are reviewed for abuse of discretion.

Harrington v. Wall · filed 2011-05-17

Because Defendant's Rule 59 and Rule 60 motions were not based upon an alleged error of law, we review the trial court's rulings on these motions for an abuse of discretion.

A class certification order is reviewed for abuse of discretion; supported findings of fact are binding, and conclusions of law are reviewed de novo.

Beroth Oil Co. v. N.C. Dep't of Transp. · filed 2014-04-11Rule 23(a)

In sum, findings of fact are binding if supported by competent evidence, and conclusions of law are reviewed de novo.

Rule 32(a)(5) gives the trial court discretion to require a party offering part of a deposition to introduce other relevant portions for context.

Gray v. Allen · filed 2009-06-02Rule 32(a)(5)

North Carolina law provides that a trial court may require a party to read a complete statement or other relevant portions of evidence in order to provide context for the jury; however, this decision is within the trial court’s discretion at trial.

Rule 32(a)(5) permits a trial court, in its discretion, to require relevant additional portions of a deposition to be read at trial to give the jury context.

Barrow v. Sargent · filed 2021-07-06Rule 32(a)(5)

“North Carolina law provides that a trial court may require a party to read a complete statement or other relevant portions of evidence in order to provide context for the jury; however, this decision is within the trial court’s discretion at trial.” ... Accordingly, the trial court did not abuse its discretion by requiring the reading of the portions of Defendants’ deposition requested by Defendant.

A person seeking a North Carolina deposition for use in another jurisdiction could present the authorizing document to a superior or district court judge, who was required to issue the necessary subpoenas.

Attorney Grievance Commission v. Mixter · filed 2015-02-02

In 2010, Rule 25 of the North Carolina Rules of Civil Procedure required that, “A person desiring to take depositions in this State to be used in proceedings pending in the courts of any other state or country may present to a judge of the superior or district court a commission, order, notice, consent, or other authority under which the deposition is to be taken, whereupon it shall be the duty of the judge to issue the necessary subpoenas”. N.C. Gen. Stat. § 1A-1, Rule 28 (2010).

Rule 56(f) permits denial or continuance of a summary judgment motion when the opposing party gives a sufficient excuse for lacking facts or evidence needed to respond.

A-1 Pavement Marking, LLC v. Apmi Corp. · filed 2009-06-26Rule 56(f)

Accordingly, while Rule 56(f) of the North Carolina Rules of Civil Procedure allows the Court to either deny a motion for summary judgment or grant a continuance where a party provides a sufficient excuse for its failure to gather facts or evidence in opposition, there is no basis for granting such relief here.

Rule 56(f) requires a party opposing summary judgment to explain by affidavit why it cannot present the material needed to oppose the motion.

Folmar v. Kesiah · filed 2014-07-15Rule 56(f)

Rule 56(f) requires an affidavit by the opposing party stating the reasons why they were unable to present the necessary opposing material and the record is clear that plaintiffs failed to do so.

Rule 56(f) does not provide a continuance to a party who made no effort to complete discovery.

Loftin v. Qa Invs., LLC · filed 2018-02-01Rule 56(f)

Rule 56(f) is not designed to assist parties who made no efforts to complete discovery.

Rule 19 provides no relation-back doctrine; joining a new defendant under it does not revive a time-barred claim.

SEAGLE v. Cross · filed 2009-07-07Rule 19

Furthermore, while both parties focus their arguments on the relation back doctrine that is applicable under N.C. Gen. Stat. § 1A-1, Rule 15(c), we have found no evidence of the existence of any sort of relation back doctrine under N.C. Gen. Stat. § 1A-1, Rule 19. As a result, even if the trial court had granted Plaintiff's motion to join Mission Hospitals as a party-defendant under N.C. Gen. Stat. § 1A-1, Rule 19, Plaintiff's claims would still be time-barred.

Rule 4 does not govern service of a petition for judicial review of an agency decision; section 150B-46 controls.

Follum v. NORTH CAROLINA STATE UNIVERSITY · filed 2009-07-21Rule 4

This Court’s opinion in Davis is clear that section 150B-46 controls the issue before us. ... This Court disagreed and determined that section 150B-46, not Rule 4, was the controlling law.

Rule 6(a) requires an advance filing period to be counted backward from the required act; when the thirtieth day falls on a Saturday, filing must occur by the preceding Friday.

Murdock v. Chatham County · filed 2009-07-21Rule 6(a)

This Rule is to be applied by counting backward from the day when an act must be performed. ... Thirty days from 18 September 2006 is 19 August 2006. Because that date fell on a Saturday, the filing had to be on 18 August 2006 to meet the requirement of thirty days.

Rule 6(a) extends a limitations period ending on a Sunday to the next business day.

Winston v. LIVINGSTONE COLLEGE, INC. · filed 2011-03-15Rule 6(a)

Rule 6(a) provides that the final day of a limitations period extends to the following business day when the end of the period occurs on a Sunday.

Rule 6(a) automatically extends a statutory filing period when its last day falls on a weekend or legal holiday, but not when the courthouse closes on a regular weekday.

State v. Williams · filed 2012-02-07Rule 6(a)

Rule 6 shows that only weekends and legal holidays are recognized as days which the statutory time limit can be automatically extended. The legislature was aware of times that the court would be closed on regular weekdays, but made no provision for how to treat weekdays after business hours. Contrary to Surety’s assertion, we must assume that deadlines for filing documents with the court are subject to the hours when the court is open for business.

Rule 6(a) excludes weekends and court holidays when calculating the three-day period after entry of judgment.

Magazian v. Creagh · filed 2014-07-01Rule 6(a)

The three day period excludes weekends and court holidays. ... Plaintiff received actual notice within three days of entry of the order, excluding the intervening Saturday and Sunday.

Rule 6(a) excludes intervening weekends when computing the three-day period for service of a judgment.

In re: S.Z.H. · filed 2016-05-03Rule 6(a)

Thus, respondent was served a copy of the termination order within the three-day period, since we exclude the intervening Saturday and Sunday from the three-day period.

Rule 6(a) extends a deadline that falls on a Sunday to the following Monday.

State v. Slade · filed 2019-02-19Rule 6(a)

The notices of forfeiture provided that they would become final judgments on 17 December 2017, 150 days from the notice date. But 17 December 2017 was a Sunday. So the final judgment date was Monday, 18 December 2017.

Rule 6(a) extends an appeal deadline that falls on a Sunday through the end of the following Monday.

Bouabid v. Charlotte Mecklenburg Schools Board of Education · filed 2020-03-06Rule 6(a)

As the last day of the thirty-day appeal period fell on Sunday, July 8, 2018, the period continued to run until the end of the next day, Monday, July 9, 2018. Therefore, Plaintiff’s appeal filed on July 9, 2018 was timely.

Rule 6(a) excludes intermediate weekends and court holidays when computing Rule 58’s three-day period for serving a judgment.

Thiagarajan v. Jaganathan · filed 2023-05-16Rule 6(a)

Appellate Rule 3(c)(1) applies where a copy of the judgment is served “within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure[,]” N.C.R. App. P. 3(c)(1); hence, the time computation under Appellate Rule 3(c) is governed by Rule 6(a) of the Rules of Civil Procedure. Accordingly, our computation of this three-day period excludes weekends and court holidays.

Rule 6 computes a ten-year period beginning on 15 February 1995 to end on 15 February 2005.

Herbert v. Herbert · filed 2009-12-22Rule 6

We first note that Defendant's argument at the hearings was legally incorrect. It is clear that, pursuant to the relevant statutes and case law, the ten-year statute of limitations relevant to the appeal before us ended on 15 February 2005, not 14 February 2005. See N.C. Gen. Stat. § 1-593 (2007); N.C. Gen. Stat. § 1A-1, Rule 6; Harris v. Latta, 298 N.C. 555, 558-59, 259 S.E.2d 239, 2414-2 (1979).

Rules 6(b) and 41(d) do not allow parties to stipulate to an extension of the 30-day period for paying costs after a voluntary dismissal.

Welch v. Lumpkin · filed 2009-09-01Rules 6(b) and 41(d)

On review, we uphold the trial court’s determination that Rule 6(b) may not be read in conjunction with Rule 41(d) to allow parties to stipulate to an extension of the 30-day time period to pay costs.

A motion to enforce a settlement agreement is reviewed under the summary judgment standard.

Hardin v. KCS International, Inc. · filed 2009-09-15

We find the reasoning of these cases persuasive and consistent with North Carolina practice and, therefore, apply the summary judgment standard of review.

A motion to enforce a settlement agreement in the original action is treated as a motion for summary judgment under Rule 56(c).

Gao v. Sinova Specialties, Inc. · filed 2018-05-29Rule 56(c)

When a party seeks to enforce the settlement agreement by motion in the original action, the motion is treated as a motion for summary judgment. Hardin, 199 N.C. App. at 694−95, 682 S.E.2d at 732−33. ... Therefore, because the Court concludes, based on the record before it and applying the summary judgment standard, that the parties did not reach a settlement agreement, the Motion to Enforce is denied.

Rule 15 does not govern the addition of a newly identified biological father to a termination-of-parental-rights proceeding; N.C. Gen.Stat. § 7B-1105 governs that procedure.

In Re MM · filed 2009-10-06Rule 15

However, because respondent-appellant is Michael's biological father and because his identity was unknown at the time of the filing of the original petition, the addition of respondent-appellant as a party to the termination proceedings is controlled not by Rule 15 of the North Carolina Rules of Civil Procedure, but rather by N.C. Gen.Stat. § 7B-1105.

Rule 15 does not govern adding a biological father whose identity was unknown when the termination petition was filed; N.C. Gen. Stat. § 7B-1105 governs.

In re M.M. · filed 2009-10-06Rule 15

Defendant’s proposed use of N.C. Gen. Stat. § 1A-1, Rule 15 to deprive the court of personal jurisdiction over the newly identified father, despite compliance with N.C. Gen. Stat. § 7B-1105, through the creation of a “new action” when the biological father is eventually identified and made a party to the action would defeat the entire purpose of N.C. Gen. Stat. §§ 7B-1104 and 7B-1105.

Rule 55 governs default judgments, but a default judgment is inappropriate in a proceeding to terminate parental rights.

In re: P.U.M.C., N.M.P., T.M.P., Jr. · filed 2025-10-15Rule 55

The trial court referenced North Carolina Rule of Civil Procedure 55, which governs the entry of default judgments. N.C.G.S. § 1A-1, Rule 55. Mother correctly observes that “a default judgment or judgment on the pleadings is inappropriate in a proceeding involving termination of parental rights[.]” In re Shaw, 152 N.C. App. 126, 129 (2002) (citation omitted).

Rule 59(a)(9) allows a trial court to consider whether its trial schedule warrants a new trial even when the moving party did not object to that schedule.

Boykin v. WILSON MEDICAL CENTER · filed 2009-12-22Rule 59(a)(9)

The failure of Plaintiff to object to the trial court’s schedule did not prohibit the trial court from considering the schedule in determining whether a new trial should be awarded under Rule 59(a)(9).

Rule 38(b) requires a party to request a jury trial.

Griffith v. Keller · filed 2010-03-02Rule 38(b)

Moreover, plaintiff did not request a jury trial in accord with N.C. Gen. Stat. § 1A-1, Rule 38(b) (2007).

Rule 38’s general provision allowing any party to demand a jury trial yields when a more specific statute permits only the petitioner to request one.

The City of Asheville v. Frost · filed 2017-05-02Rule 38(b)

Thus, pursuant to the construction favoring the rule tailored to a specific circumstance as controlling over a more generally applicable rule, the language of Session Law 2009-401 naming only the petitioner as the party who may request a jury trial is controlling over the more generally applicable right of any party to demand a jury trial, as provided in Civil Procedure Rule 38.

Rules 38 and 39 require an action to be designated as a jury action for triable issues when the parties demand a jury trial and do not withdraw their demands.

Woody v. Vickrey · filed 2021-04-06Rule 38(b), (d); Rule 39(a)

In this case, each party to the suit demanded a jury trial pursuant to Rule 38(b), and their right was not withdrawn at any point in the action under Rule 38(d). Therefore, the action should have been designated upon the docket as a jury action on these triable issues pursuant to Rule 39(a).

Rule 68.1(e) prevents a judgment by confession from establishing facts as res judicata in a later civil action, except in an action on the confessed judgment.

Short v. Turner · filed 2010-03-02Rule 68.1(e)

The North Carolina Rules of Civil Procedure provide that "Judgments entered in conformity with this rule shall have the same effect as other judgments except that no judgment by confession shall be held to be res judicata as to any fact in any civil action except in an action on the judgment confessed." N.C. Gen. Stat. § 1A-1, Rule 68.1(e) (2009). Because the confession by judgment could not be held as res judicata as to any fact in Plaintiffs' later civil action, the issue of damages is not barred in the current civil action.

Rules 59 and 60 motions cannot substitute for an appeal, and their denial does not make an underlying interlocutory order immediately appealable.

Musick v. Musick · filed 2010-04-06

The denial of defendant’s Rule 59 and 60 motions does not alter the interlocutory nature of the underlying permanent alimony order.

A signed certified-mail receipt raises a rebuttable presumption of proper service; affidavits showing the signer was not authorized to accept service can rebut it.

Osman v. Reese · filed 2010-04-06Rule 4(j2)(2)

Plaintiff, therefore, produced evidence of proof of service raising a rebuttable presumption that the person who received the mail or delivery and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the addressee's dwelling house or usual place of abode. ... Merchant's Tire and Reese presented two affidavits stating that Stack was not an agent of Reese authorized to accept service on Reese's behalf.

A certified mail return receipt signed by someone other than the addressee raises a rebuttable presumption of proper service.

DUNCAN v. SCHATZMAN · filed 2021-04-16Rule 4(j2)(2)

While the signed return receipts raise a presumption of proper service, Defendants have rebutted this presumption by submitting an affidavit by CCS claims manager Rachel Eckhardt.

Rule 4(j)(1) permits effective service by certified mail delivered to a mailbox whose operator the addressee authorized to receive service of process.

Tuminski v. Norlin · filed 2024-09-03Rule 4(j)(1)(c)

Beyond this presumption and affidavit of service, Plaintiff admits to “receiving all of his mail at the UPS [personal mailbox,]” as he was living on a boat at the time, and “he signed a contract authorizing the UPS store to act as his agent for receiving service of process addressed to his UPS [personal mailbox.]” The requirements of Rule 4(j)(1) for service of process were met and service of process was effective.

Rule 4(j)(1)(c) requires evidence that certified mail was delivered to the addressee; a mail carrier’s COVID-19 notation without a proper recipient signature does not establish valid service.

In re: Rogers · filed 2025-10-01Rule 4(j)(1)(c)

As we are unable to find that the return receipt was even in compliance with Covid-19 protocols, we certainly cannot find that it met the specific requirements of N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(c). We cannot presume valid service when there is no evidence to support the finding of valid service without a proper signature.

Rule 14(c) permits the State to be brought into a tort action as a third party when the action properly originates in superior court against a defendant who lacks official sovereign immunity.

Green Ex Rel. Crudup v. Kearney · filed 2010-04-06Rule 14(c)

As seen in Teachy, to bring in the State as a third-party, the action must properly originate in superior court against a defendant not protected by official sovereign immunity.

Rule 65(e) permits damages for the costs of defending against a temporary restraining order when it is dissolved.

Schwarz Properties, LLC v. Town of Franklinville · filed 2010-06-01Rule 65(e)

Plaintiff cites no case, and we have found none, where our State’s courts have held that damages under Rule 65(e) cannot include the costs of defending against a TRO. This argument is overruled.

Rule 34(a) treats documents as within a party’s possession, custody, or control when the party has a legal right to obtain them on demand.

LOWD v. Reynolds · filed 2010-07-06Rule 34(a)

Because plaintiff has a legal right to his medical records, they are considered to be within his “possession, custody or control” pursuant to our prior interpretation of Rule 34 of the North Carolina Rules of Civil Procedure, and the trial court did not abuse its discretion by compelling the production of such records.

Rule 41(a)(1) does not permit a plaintiff to voluntarily dismiss claims arising from the same transactions as a defendant’s pending counterclaims without the defendant’s consent.

Bradley v. Bradley · filed 2010-08-03Rule 41(a)(1)

Because defendant filed her answer and counterclaims before plaintiff filed the notice of voluntary dismissal of his first two claims, her right to have her claims adjudicated “supervened,” and plaintiff no longer had the right to withdraw his first two claims without defendant’s consent.

Rule 41(a)(1) does not permit a plaintiff to voluntarily dismiss a remaining claim without the defendant’s consent when a counterclaim for affirmative relief remains pending.

Seagraves v. Seagraves · filed 2010-08-17Rule 41(a)(1)

Thus, because Defendants’ counterclaim remained pending after the entry of partial summary judgment, Plaintiff was not permitted to take a voluntary dismissal of his remaining claim without Defendants’ consent. Defendants did not consent to Plaintiff’s dismissal in this matter, and thus voluntary dismissal of Plaintiff’s remaining claim was improper.

Rule 59(a) permits a new trial when competent evidence shows a trial irregularity, jury misconduct, or the jury’s manifest disregard of instructions.

Cummings v. Ortega · filed 2010-08-17Rule 59(a)

For purposes of Rule 59(a) these acts would qualify as competent evidence to show a trial irregularity, misconduct of the jury, or manifest disregard by the jury of the instructions of the court.

Rule 5(b)'s mailing requirement does not require a business or individual to use a post office or official depository to invoke the mailbox rule.

Nationwide Property & Casualty Insurance v. Martinson · filed 2010-11-16Rule 5(b)

We note that this argument is unpersuasive. Rule 5(b) strictly governs service of a complaint upon a defendant and should not be used to require a business or an individual to take mail directly to the post office or place it in an official depository in order to take advantage of the mailbox rule.

Rule 5(b)b. requires service by mail to be sent to the party’s address, not to former counsel’s address.

D.V. Shah Corp. v. Vroombrands · filed 2022-11-01Rule 5(b)b.

Serving Mr. Copeland rather than Defendants violated Rule 5(b)b. of the North Carolina Rules of Civil Procedure, which allows service by mail but requires the mail be sent to the party’s address, not the address of their former counsel.

Setting a summary judgment hearing date does not set the deadline for completing discovery under Rule 26(d).

Sapp v. Yadkin County · filed 2011-02-01Rule 26(d)

Although, a hearing on a motion for summary judgment may result in the limitation of additional discovery — by determining which facts are genuinely disputed and limiting further discovery to only those facts — such a hearing does not close the discovery period, and, therefore, cannot be considered “the time within which discovery must be completed.” A summary judgment hearing is not required to take place upon completion of all factual discovery, and any argument that an order setting a date for a summary judgment hearing violates Rule 26(d) is clearly erroneous.

Rule 23(b)’s verification requirement for derivative complaints is procedural; failure to verify is not a jurisdictional defect, and an objection can be waived.

Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC v. Brewer · filed 2011-02-01Rule 23(b)

Therefore, lack of verification pursuant to N.C. Gen. Stat. § 1A-1, Rule 23(b) is not jurisdictional and defendants’ arguments as to the lack of verification of the complaint are waived as they were not raised before the business court.

Rule 4(c)’s 60-day deadline does not control service in Japan under the Hague Service Convention when the deadline conflicts with the Convention’s service process.

Hammond v. Hammond · filed 2011-03-01Rule 4(c)

Therefore, Rule 4(c)’s requirement of service of the summons within 60 days after its issuance does not control Plaintiff’s service. Rather, the requirements of Rule 4 must be harmonized with the Hague Service Convention while preserving Defendant’s due process rights.

Rule 35(a) does not govern a mental health evaluation required under a court’s broad discretion in a child custody proceeding.

Maxwell v. Maxwell · filed 2011-06-21(a)

Plaintiff erroneously argues that the trial court violated N.C. Gen. Stat. § 1A-1, Rule 35(a) by ordering him to submit to a mental health evaluation. However, that statute is inapplicable where it authorizes the trial court to order a mental health examination for a “person in the custody or under the legal control of a party”. Rule 35(a). The trial court’s authority to require Plaintiff to submit to a mental health evaluation arose from the broad discretion granted to courts in child custody proceedings.

Rule 59(a)(8) and (9) provide post-trial grounds for relief and do not permit a court to set aside a default and summary judgment when the case ended at summary judgment.

BODIE ISLAND BEACH CLUB ASS'N, INC. v. Wray · filed 2011-09-06Rule 59(a)(8), (9)

Because both Rule 59(a)(8) and (9) are post-trial motions and because the instant case concluded at the summary judgment stage, the court did not err by concluding that "it [was] not proper to set aside default against Defendant SRS and vacate the summary judgment pursuant to Rule 59(a)(8) and (9)."

A Rule 59 motion to amend a judgment is addressed to the trial court’s discretion, and its ruling is reviewed for abuse of discretion.

Trantham v. Michael L. Martin, Inc. · filed 2013-06-18Rule 59

“Motions to amend judgments pursuant to N.C.G.S. § 1A-1, Rule 59 are addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of that discretion.”

Rule 58 gives a party served with a judgment by mail three extra days to serve a Rule 59 motion, for thirteen days total.

Jensen v. Jessamy · filed 2015-07-21Rule 58

However, Rule 58 provides that if the judgment is served by mail, a party moving pursuant to Rule 59 has three extra days-or thirteen days-to serve the motion. N.C. Gen.Stat. § 1A-1, Rule 58.

Rule 59 does not permit a party to reargue matters already argued or raise arguments it could have made earlier.

Plasman v. Decca Furniture (Usa), Inc. · filed 2015-10-26Rule 59

As a result, the Court considers the Plasmans’ argument an improper attempt under Rule 59 to reargue matters already argued or advance arguments which were not made but could have been made.

A second trial judge may not grant summary judgment on the same legal issue after another judge has denied it.

Gardner v. Rink · filed 2017-09-05Rule 56

The first trial court’s ruling denying summary judgment on the legal issue of setting aside the Lease precluded the second trial court from later overruling its decision by granting summary judgment.

Rule 65(a)–(b) concerns temporary restraining orders and preliminary injunctions, which do not occur after judgment.

Universal Life Ins. Co. v. Lindberg · filed 2023-12-05Rule 65(a)–(b)

We agree that Rule 65 concerns temporary restraining orders and preliminary injunctions—neither of which occur post-judgment.

Rule 9(j) permits partial dismissal of a medical malpractice complaint.

Estate of Wooden ex rel. Jones v. Hillcrest Convalescent Center, Inc. · filed 2012-08-21Rule 9(j)

Thus, each of the procedural mechanisms through which Rule 9(j) is raised permits judgment on less than the entire complaint, and we accordingly conclude that Rule 9(j) allows for partial dismissal of a complaint alleging medical malpractice.

Rule 26(c)(ii) permits a trial court to require a party to consult with and notify the opposing party before serving additional discovery subpoenas.

Capital Resources, LLC v. Chelda, Inc. · filed 2012-11-06Rule 26(c)(ii)

As noted supra, the 28 February 2011 order also allowed IFH’s motions for a protective order, and, as expressly permitted by Rule 26(c)(ii), ordered “that the discovery may be had only on specified terms and conditions],]” to wit, that Chelda consult with and properly notify IFH prior to serving any additional subpoenas. Chelda has not brought forward any argument based on this portion of the order, and in any event, we observe no abuse of discretion in this portion of the order.

Rule 26(c) permits a protective order limiting discovery, but the possibility of privileged questions alone does not justify barring a deposition that may yield relevant, nonprivileged facts.

Edison v. Acuity Healthcare Holdings, Inc. · filed 2016-11-02Rule 26(c)

The Court has discretion to enter a protective order limiting discovery when “justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense.” Id. § 1A-1, Rule 26(c). ... But the mere possibility that Plaintiff’s inquiries to Ms. Babson might infringe on privileged matters does not justify a prohibition on Plaintiff’s inquiries into the relevant, nonprivileged, factual information that Ms. Long has suggested Ms. Babson possesses.

Rule 26(c) permits a protective order against discovery that imposes an undue burden or expense; the cost of obtaining wage records directly relevant to a benefits claim was not an undue burden where the asserted cost lacked supporting evidence.

Valenzuela v. Delhaize Am., LLC · filed 2026-03-18Rule 26(c)

Rule 26(c) of the North Carolina Rules of Civil Procedure permit a party to seek a protective order as a safeguard “from unreasonable annoyance, embarrassment, oppression, or undue burden or expense[.]” N.C.G.S. § 1A-1, Rule 26(c). ... This Court concludes the Commission did not abuse its discretion in concluding the wage record expense of $600.00 did not constitute an undue burden or expense because the Commission’s request of the wage records directly related to Plaintiff’s claim for TPD benefits and Plaintiff did not present evidence beyond what a Ms. Oswald stated regarding the cost to produce the wage records.

Rule 49 concerns jury issues and verdicts and does not apply to a summary judgment hearing.

Hernandez v. Coldwell Banker Sea Coast Realty · filed 2012-11-06Rule 49

First, we agree with defendant Avent that N.C. Gen. Stat. § 1A-1, Rule 49 (2009) is inapplicable here, as it is only relevant to jury issues and verdicts, and plaintiff appeals from a summary judgment order.

Rule 17(e) gives a guardian ad litem a substitutive role when the parent is incompetent.

In re P.D.R. · filed 2012-12-18Rule 17(e)

Rule 17(e), which addresses the duties of a GAL for an incompetent person, should apply if the parent is incompetent — the role of the GAL should be one of substitution.

Rule 17 does not require appointing a guardian ad litem for an incompetent person who already has a general guardian, but the court may appoint one in its discretion.

In re A.P. · filed 2014-02-04(b)(2), (b)(3)

Pursuant to Rule 17, no appointment of a GAL was required. Though the trial court had the discretion to appoint a GAL notwithstanding Respondent-Father’s general guardian, we find no abuse of discretion in the trial court’s decision not to do so.

Rule 4(j)(1)d does not require a designated delivery service to hand process personally to the defendant or an authorized agent when the defendant in fact receives it.

Washington v. Cline · filed 2014-04-01(j)(1)d

Ultimately, defendants’ arguments as to why Rule 4(j)(1)d should be read to require personal service on a defendant or his service agent, exclusive of all other individuals and regardless of whether the defendant actually receives the summons and complaint, are unavailing.

Rule 4(j)(d) requires a designated delivery service to deliver the summons and complaint to the addressee and obtain a delivery receipt; a receipt signed by someone else did not establish service on the defendant.

Albright v. Clayton and Myrick, PLLC · filed 2020-05-18(j)(d)

To properly serve a defendant through FedEx, Albright must have sent “a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt.” N.C. Gen. Stat. § 1A-1, Rule 4(j)(d). The delivery receipt supplied by Albright shows a “C. Chacon” signed for the delivery and the signature box shows “JMC.” Doc. 49-2. It appears Nauseef did not sign for the FedEx delivery and thus, FedEx did not “deliver[] to the addressee.” Albright has not established he served Nauseef through FedEx.