North Carolina has launched eCourts in all 100 counties and the North Carolina Business Court. Related changes to the North Carolina Rules of Civil Procedure and General Rules of Practice for the Superior and District Courts (“General Rules of Practice”) now require electronic filing and service of documents in civil litigation statewide. This post identifies what litigants need to know about service.
Continue ReadingArchive
Tag: Civil procedure
-
-
Answers, Appearances, and General Appearances: Important Distinctions for Avoiding Default
I have written before about entry of default and default judgments under G.S. 1A-1, Rule 55. My colleagues have also written about general appearances. But the word “appearance” in the default judgment context can be perplexing, so this post aims to untangle this and other often-confused terms.
For simplicity, this post will refer to the party seeking default judgment as the plaintiff and the party against whom default has been entered as the defendant, but defendants can also seek default judgments against plaintiffs on counterclaims. Rule 55(e).
Continue Reading -
When Should an Entry of Default Be Set Aside?
When a defendant fails to answer a complaint, the plaintiff can seek default judgment. Default judgment is a two-step process governed by G.S. 1A-1, Rule 55. Step one: the plaintiff moves the clerk of superior court to enter default against the defendant. Step two: the plaintiff moves the court to enter default judgment. Sometimes litigants confuse these two steps so it pays to read Rule 55 and the case law interpreting it carefully. For a complete discussion of procedure under Rule 55 in North Carolina, see the Superior Court Judges’ Benchbook.
Continue Reading -
When Service of Process Becomes Abuse
Service of process is fundamental to our system of civil justice. Every party to a civil action or special proceeding in North Carolina is entitled to notice of the action and an opportunity to be heard before an impartial judicial official.
Here’s a basic question: how does a person, a corporation, or a governmental body know whether they are being sued, and if so, how long they have to respond to the lawsuit? Receiving a demand letter written by a lawyer is not enough; lawyers send scary letters without filing lawsuits all the time. Neither is it enough to receive a signed complaint. A signed complaint does not necessarily bring a claim before the court. Even receiving a complaint bearing the file-stamp of the clerk of superior court does not inform a party how long they have to answer.
Continue Reading -
When can you file a Rule 12(b)(6) motion to dismiss?
When a party is sued, they often want to make the lawsuit go away. One of the most common ways of attempting to get rid of a lawsuit is a motion to dismiss for failure to state a claim upon which relief can be granted under North Carolina Rule of Civil Procedure 12(b)(6). A recent case from the North Carolina Court of Appeals illustrates how this procedural tool works and provides a lens to examine a tension within the rule. In Legal Impact for Chickens v. Case Farms, LLC, ___ N.C. App. ___, COA24-673, (May 21, 2025), a poultry producer filed a Rule 12(b)(6) motion to dismiss the complaint of an animal rights group. At the same time, it answered the allegations in the animal rights group’s lawsuit.
Continue Reading -
What Does It Mean to Invoke the Judgment of the Court? The Supreme Court Clarifies General Appearances
Our justice system depends on due process: the idea that legal proceedings follow established rules and individuals are protected from arbitrary acts of the government. One kind of due process, commonly called procedural due process, is guaranteed by the Fifth and Fourteenth Amendments and means that parties to judicial proceedings must have notice and an opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
Continue Reading -
Rule 52(a)(2) and the exception-to-the-exception: why certain orders shouldn’t include findings of fact, even when requested
Trial court judgments in bench trials must contain findings of fact and conclusions of law. Orders disposing of motions, on the other hand, normally only need findings and conclusions if a party requests that the trial court make them. There are some situations, however, where a trial court should not make findings of fact in an order, even if a party requests them. This is because of the trial court’s particular role in those specific proceedings and the possibility for meaningful appellate review of the trial court’s orders without the inclusion of findings and conclusions. This post explores this exception-to-an-exception regarding findings and conclusions for certain dispositive motions.
Continue Reading -
The New Clerks’ Manual Website is Here!
I’m excited to announce the launch of two major things today.
First, the new North Carolina Clerk of Superior Court Manual Series website is now available at www.sog.unc.edu/clerksmanual.
We took the old clerks’ manual and gave it a complete make-over in response to feedback we received from clerks of superior court. It is no longer a printable PDF volume but now is an online manual series, featuring the following eight manuals organized by subject matter:
Continue Reading -
Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals
Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution. Continue Reading
-
Only One Bite at the Apple – and Small Claims Court Counts!
The NC Court of Appeals recently answered a question I’ve long wondered about in Brown v. Patel, 2021-NCCOA-342 (20 July 2021). Although this lawsuit started out as a bedbug case – which is definitely on my list of interesting topics! – it ended up being about what happens when a magistrate doesn’t make a decision. Read on for the riveting details!
Continue Reading