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.
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Tag: motion to dismiss
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Local Government Lawyers: Take Care Asserting Governmental Immunity
When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the trial court to dismiss the lawsuit based on the defense of governmental immunity. (See blog posts available here and here for an explanation of governmental immunity fundamentals.) Many local government attorneys believe that, if the trial court denies such a motion, the unit always has the right to an immediate appeal. As a recent decision by the North Carolina Court of Appeals reminds us, however, whether the unit may immediately appeal can depend on how the immunity defense is framed in the motion. This blog post aims to
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Untimely Filed Juvenile Petitions – What’s the Remedy?
Under G.S. 7B-1703(b), a juvenile court counselor (JCC) has “15 days after the complaint is received” to file the complaint as a juvenile petition, or a maximum of 30 days, if the chief court counselor has granted a 15-day extension. I’m often asked whether an untimely filed petition must be dismissed; and if so, whether the State is precluded from filing another petition for the same offense. There are two published appellate cases addressing these issues; In re D.S., 364 N.C. 184 (2010), and In re J.A.G., 206 N.C. App. 318 (2010). Here’s what they say.