GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 393

Short Title:  Written Motions/Supporting Briefs.	(Public)

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Sponsors: Senator Miller.

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Referred to:  Judiciary II.

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March 17, 1999

A BILL TO BE ENTITLED
AN ACT TO AMEND THE RULES OF CIVIL PROCEDURE TO REQUIRE BRIEFS AND MEMORANDA IN SUPPORT OF DISPOSITIVE MOTIONS TO BE SERVED UPON ALL PARTIES AND TO REQUIRE WRITTEN MOTIONS TO STATE THE GROUNDS FOR THE MOTION WITH PARTICULARITY.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1A-1, Rule 5 reads as rewritten:
"Rule 5.  Service and filing of pleadings and other papers.
(a)	Service of orders, subsequent pleadings, discovery papers, written motions, written notices, and other similar papers – When required. – Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and  every written notice, appearance, demand, offer of judgment and similar paper shall be served upon each of the parties, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. 
(a1)	Service of briefs or memoranda in support of certain written motions –  When required.  – In actions in superior court, every brief or memorandum in support of a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or any other motion seeking a final determination of the rights of the parties as to one or more of the claims or parties in the action shall be served by the moving party upon each of the parties no later that five days prior to the hearing on the motion, and shall be served by an adverse party upon each of the parties no later than two days prior to the hearing on the motion.  The parties may by consent alter these periods of time.  A brief or memorandum that is not served as required by this rule shall not be considered, unless otherwise ordered by the court for good cause shown or by the consent of the parties.
	(b) Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on his attorney of record. With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party himself is ordered by the court, upon his attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by filing it with the clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party; or leaving it at the attorney's office with a partner or employee. Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
(c)	Service – Numerous defendants. – In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any crossclaim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(d)	Filing. – All pleadings subsequent to the complaint shall be filed with the court. All other papers required to be served upon a party, including requests for admissions, shall be filed with the court either before service or within five days thereafter, except that depositions, interrogatories, requests for documents, answers and responses to those requests, and briefs and memoranda that are required to be served under subsection (a1) of this rule shall not be filed unless ordered by the court or until used in the proceeding. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to the court if needed or so ordered. With respect to all pleadings and other papers as to which service and return has not been made in the manner provided in Rule 4, proof of service shall be made by filing with the court a certificate either by the attorney or the party that the paper was served in the manner prescribed by this rule, or a certificate of acceptance of service by the attorney or the party to be served. Such certificate shall show the date and method of service or the date of acceptance of service.
(e)	(1)	Filing with the court defined. – The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
(2)	Filing by telefacsimile transmission. – If, pursuant to G.S. 7A-34 and G.S. 7A-343, the Supreme Court and the Administrative Officer of the Courts establish uniform rules, regulations, procedures and specifications for the filing of pleadings or other court papers by telefacsimile transmission, filing may be made by the transmission when, in the manner, and to the extent provided therein."
Section 2.  G.S. 1A-1, Rule 7(b) reads as rewritten:
"(b)	Motions and other papers. –
(1)	An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session  at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2)	The rules applicable to captions, signing, and other matters  of form of pleadings apply to all motions and other papers provided for by these rules.
(3)	A motion to transfer under G.S. 7A-258 shall comply with the directives therein specified but the relief thereby obtainable may also be sought in a responsive pleading pursuant to Rule 12(b)."
Section 3.  The Revisor of Statutes shall cause to be printed along with this act the following statement to the Official Comment for G.S. 1A-1, Rule 5(a1):
"For example, to be considered by the presiding judge on a motion calendar for a Monday, a brief or memorandum must be served by the close of business on the preceding Monday.  The rule does not require the preparation of a brief or memorandum for certain dispositive motions; it only governs instances in which a brief or memorandum is prepared for presentation to the court.  The rule would not preclude a party from providing the judge with copies of cases or statutes at a hearing."
This addition to the Official Comment shall only be for annotation purposes and shall not be construed to be the law.
Section 4.  The Revisor of Statutes shall cause to be printed along with this act the following statement to the Official Comment for G.S. 1A-1, Rule 7(b):
"The 1999 amendment conforms the North Carolina rule to federal Rule 7(b).  The federal courts apply the particularity requirement not as a technicality, but to assure that the court and opposing parties can comprehend the basis for a motion and deal fairly with the motion."
Section 5.  This act becomes effective October 1, 1999, and applies to motions subject to this act and to briefs and memoranda subject to this act filed on or after that date.