GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION

CHAPTER 389
SENATE BILL 929

AN ACT TO MAKE VARIOUS AMENDMENTS TO THE NORTH CAROLINA RULES OF CIVIL PROCEDURE REGARDING SERVICE OF PROCESS AND DEPOSITIONS IN A FOREIGN COUNTRY AND THE DETERMINATION OF FOREIGN LAW TO BE APPLIED IN CERTAIN CIVIL ACTIONS.

The General Assembly of North Carolina enacts:

Section 1.  G.S. 1-75.4 reads as rewritten:
"§ 1-75.4.  Personal jurisdiction, grounds for generally.
A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j), Rule 4(j1), or Rule 4(j3) of the Rules of Civil Procedure under any of the following circumstances:
(1)	Local Presence or Status. – In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party:
a.	Is a natural person present within this State; or
b.	Is a natural person domiciled within this State; or
c.	Is a domestic corporation; or
d.	Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.
(2)	Special Jurisdiction Statutes. – In any action which may be brought under statutes of this State that specifically confer grounds for personal jurisdiction.
(3)	Local Act or Omission. – In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.
(4)	Local Injury; Foreign Act. – In any action for wrongful death occurring within this State or in any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury either:
a.	Solicitation or services activities were carried on within this State by or on behalf of the defendant; or
b.	Products, materials or thing processed, serviced or manufactured by the defendant were used or consumed, within this State in the ordinary course of trade.
(5)	Local Services, Goods or Contracts. – In any action which:
a.	Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or
b.	Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant; or
c.	Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; or
d.	Relates to goods, documents of title, or other things of value shipped from this State by the plaintiff to the defendant on his order or direction; or
e.	Relates to goods, documents of title, or other things of value actually received by the plaintiff in this State from the defendant through a carrier without regard to where delivery to the carrier occurred.
(6)	Local Property. – In any action which arises out of:
a.	A promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to create in either party an interest in, or protect, acquire, dispose of, use, rent, own, control or possess by either party real property situated in this State; or
b.	A claim to recover for any benefit derived by the defendant through the use, ownership, control or possession by the defendant of tangible property situated within this State either at the time of the first use, ownership, control or possession or at the time the action is commenced; or
c.	A claim that the defendant return, restore, or account to the plaintiff for any asset or thing of value which was within this State at the time the defendant acquired possession or control over it.
(7)	Deficiency Judgment on Local Foreclosure or Resale. – In any action to recover a deficiency judgment upon an obligation secured by a mortgage, deed of trust, conditional sale, or other security instrument executed by the defendant or his predecessor to whose obligation the defendant has succeeded and the deficiency is claimed either:
a.	In an action in this State to foreclose such security instrument upon real property, tangible personal property, or an intangible represented by an indispensable instrument, situated in this State; or
b.	Following sale of real or tangible personal property or an intangible represented by an indispensable instrument in this State under a power of sale contained in any security instrument.
(8)	Director or Officer of a Domestic Corporation. – In any action against a defendant who is or was an officer or director of a domestic corporation where the action arises out of the defendant's conduct as such officer or director or out of the activities of such corporation while the defendant held office as a director or officer.
(9)	Taxes or Assessments. – In any action for the collection of taxes or assessments levied, assessed or otherwise imposed by a taxing authority of this State after the date of ratification of this act.
(10)	Insurance or Insurers. – In any action which arises out of a contract of insurance as defined in G.S. 58-1-10 made anywhere between the plaintiff or some third party and the defendant and in addition either:
a.	The plaintiff was a resident of this State when the event occurred out of which the claim arose; or
b.	The event out of which the claim arose occurred within this State, regardless of where the plaintiff resided.
(11)	Personal Representative. – In any action against a personal representative to enforce a claim against the deceased person represented, whether or not the action was commenced during the lifetime of the deceased, where one or more of the grounds stated in subdivisions (2) to (10) of this section would have furnished a basis for jurisdiction over the deceased had he been living.
(12)	Marital Relationship. – In any action under Chapter 50 that arises out of the marital relationship within this State, notwithstanding subsequent departure from the State, if the other party to the marital relationship continues to reside in this State."
Sec. 2.  G.S. 1A-1, Rule 4(j), is amended by adding a new subdivision to read:
"(10)	Service upon a foreign state or a political subdivision, agency, or instrumentality thereof shall be effected pursuant to 28 U.S.C. § 1608."
Sec. 3.  G.S. 1A-1, Rule 4 (j3), reads as rewritten:
"(j3)	Service in a foreign country. –Unless otherwise provided by federal law, service upon a defendant, other than an infant or an incompetent person, may be effected in a place not within the United States:
(1)	By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2)	If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
a.	In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;
b.	As directed by the foreign authority in response to a letter rogatory or letter of request; or
c.	Unless prohibited by the law of the foreign country, by
1.	Delivery to the individual personally of a copy of the summons and the complaint and, upon a corporation, partnership, association or other such entity, by delivery to an officer or a managing or general agent;
2.	Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(3)	By other means not prohibited by international agreement as may be directed by the court.
Service under subdivision (2)c.1. or (3) of this subsection may be made by any person authorized by subsection (a) of this Rule or who is designated by order of the court or by the foreign court.
On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.  Proof of service may be made as prescribed in G.S. 1-75.10, by the order of the court, or by the law of the foreign country.
Proof of service by mail shall include an affidavit or certificate of addressing and mailing by the clerk of court."
Sec. 4.  G.S. 1A-1, Rule 28(b), reads as rewritten:
"(b)	In foreign countries. –Depositions may be taken in a foreign country:
(1)	Pursuant to any applicable treaty or convention;
(2)	Pursuant to a letter of request, whether or not captioned a letter rogatory;
(3)	On notice before a person authorized to administer oaths  in the place where the examination is held, either by the law thereof or by the law of the United States; or 
(4)	Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony.  A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate.  It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases.  A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title.  A letter of request may be addressed 'To the Appropriate Authority in (here name the country).'  When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention.  Evidence obtained in response to a letter of request need not be excluded merely because the testimony was not taken under oath, or any similar departure from the requirements for depositions taken within the United States under these rules."
Sec. 5.  Chapter 1A of the General Statutes is amended by adding a new Rule to read:
"Rule 44.1.  Determination of foreign law.
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or by other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Chapter 8 of the General Statutes and State law.  The court's determination shall be treated as a ruling on a question of law."
Sec. 6.  This act becomes effective October 1, 1995, and applies to civil actions filed on or after that date.
In the General Assembly read three times and ratified this the 10th day of July, 1995.

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Dennis A. Wicker
President of the Senate

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Harold J. Brubaker
Speaker of the House of Representatives