GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	4 

SENATE BILL 393
Judiciary II Committee Substitute Adopted 3/24/99
House Committee Substitute Favorable 7/14/99
Fourth Edition Engrossed 7/20/99

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

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Sponsors:

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Referred to:  

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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 OR OPPOSITION OF DISPOSITIVE MOTIONS AND OPPOSING AFFIDAVITS 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 or opposition of certain dispositive motions – In actions in superior court, every brief or memorandum in support of or in opposition to 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 upon each of the parties at least two days before the hearing on the motion.  If the brief or memorandum is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served brief or memorandum, or take such other action as the ends of justice require.  The parties may, by consent, alter the period of time for service.  For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the brief within the required time.
	(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, and answers and responses to those requests may 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):
"The rule does not require any party to submit a brief or memorandum; it only applies in certain instances in which a party intends to submit a brief or memorandum 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 do not apply the particularity requirement as a procedural technicality to deny otherwise meritorious motions.  Rather, the federal courts apply the rule to protect parties from prejudice, to assure that opposing parties can comprehend the basis for the motion and have a fair opportunity to respond."
This addition to the Official Comment shall only be for annotation purposes and shall not be construed to be the law.
Section 5.  G.S. 1A-1, Rule 6(d) reads as rewritten:
"(d)	For motions, affidavits. – A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits shall be served at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require.  For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time."
Section 6.  G.S. 1A-1, Rule 56(c) reads as rewritten:
"(c)	Motion and proceedings thereon. – The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require.  For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time.  
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages. Summary judgment,  when appropriate, may be rendered against the moving party."
Section 7.  This act becomes effective October 1, 1999, and applies to motions subject to this act and to briefs, memoranda, and affidavits subject to this act filed on or after that date.