A BILL TO BE ENTITLED
AN ACT to allow for severance of summary ejectment and monetary claims in small claims actions when service of process only meets summary ejectment standards; to allow for the severed monetary claim to be continued with alias and pluries summons; to provide for an election by the plaintiff to utilize a private process server in counties with populations of Two hundred thousand or greater; and to CLARIFY that the district court judge must hold small claims court.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 7A‑223 reads as rewritten:
"§ 7A‑223.  Practice and procedure in small claim actions for summary ejectment.
(a)	In any small claim action demanding summary ejectment or past due rent, or both, the complaint may be signed by an agent acting for the plaintiff who has actual knowledge of the facts alleged in the complaint. If a small claim action demanding summary ejectment is assigned to a magistrate, the practice and procedure prescribed for commencement, form and service of process, assignment, pleadings, and trial in small claim actions generally are observed, except that if the defendant by written answer denies the title of the plaintiff, the action is placed on the civil issue docket of the district court division for trial before a district judge. In such event, the clerk withdraws assignment of the action from the magistrate and immediately gives written notice of withdrawal, by any convenient means, to the plaintiff and the magistrate to whom the action has been assigned. The plaintiff, within five days after receipt of the notice, and the defendant, in his answer, may request trial by jury. Failure to request jury trial within the time limited is a waiver of the right to trial by jury.
(b)	If either party in a small claim action for summary ejectment moves for a continuance, the magistrate shall render a decision on the motion in accordance with Rule 40(b) of the Rules of Civil Procedure. The magistrate shall not continue a matter for more than five days or until the next session of small claims court, whichever is longer, without the consent of both parties.
(b1)	In any small claim action demanding summary ejectment and monetary damages, and where service of process has been achieved solely by first‑class mail and affixing the summons and complaint to the premises pursuant to G.S. 42‑29, the plaintiff, or an agent pursuant to subsection (a) of this section, may request that the claim for summary ejectment be severed from the claim for monetary damages. Upon a finding that personal service was not achieved for one or more defendants, the magistrate shall sever the claim for monetary damages and proceed with the claim for summary ejectment. If the magistrate severs the claim for monetary damages, the plaintiff may extend the action in accordance with G.S. 1A‑1, Rule 4(d). The judgment of the magistrate in the severed claim for summary ejectment shall not prejudice the claims or defenses of any party in the severed claim for monetary damages.
(c)	The Administrative Office of the Courts is directed to develop a form for parties in small claim actions for summary ejectment to inform them of the time line and process in summary ejectment actions. The clerk of superior court shall make the form available to the parties."
SECTION 2.  G.S. 1A‑1, Rule 4(h1), reads as rewritten:
"Rule 4.  Process.
…
(h1)	Summons – When process returned unexecuted. – If a proper officer returns a summons or other process unexecuted, the plaintiff or his agent or attorney may cause service to be made by anyone who is not less than 21 years of age, who is not a party to the action, and who is not related by blood or marriage to a party to the action or to a person upon whom service is to be made. This subsection shall not apply to executions pursuant to Article 28 of Chapter 1 of the General Statutes."
SECTION 3.  G.S. 42‑28 reads as rewritten:
"§ 42‑28.  Summons issued by clerk.
(a)	When the lessor or his assignee files a complaint pursuant to G.S. 42‑26 or 42‑27, and asks to be put in possession of the leased premises, the clerk of superior court shall issue a summons requiring the defendant to appear at a certain time and place not to exceed seven days from the issuance of the summons, excluding weekends and legal holidays, to answer the complaint. The plaintiff may claim rent in arrears, and damages for the occupation of the premises since the cessation of the estate of the lessee, not to exceed the jurisdictional amount established by G.S. 7A‑210(1), but if he omits to make such claim, he shall not be prejudiced thereby in any other action for their recovery.
(b)	In counties with 200,000 or more residents as of the most recent decennial federal census, after the summons is issued, at the election of the plaintiff, the clerk shall either (i) return the summons to the plaintiff or (ii) forward the summons to the sheriff for service. If the magistrate severs the claim for monetary damages pursuant to G.S. 7A‑223(b1), the plaintiff may extend the action in accordance with G.S. 1A‑1, Rule 4(d)."
SECTION 4.  G.S. 42‑29 reads as rewritten:
"§ 42‑29.  Service of summons.
(a)	The officer receiving the summons shall mail a copy of the summons and complaint to the defendant no later than the end of the next business day or as soon as practicable at the defendant's last known address in a stamped addressed envelope provided by the plaintiff to the action. The officer may, within five days of the issuance of the summons, attempt to telephone the defendant requesting that the defendant either personally visit the officer to accept service, or schedule an appointment for the defendant to receive delivery of service from the officer. If the officer does not attempt to telephone the defendant or the attempt is unsuccessful or does not result in service to the defendant, the officer shall make at least one visit to the place of abode of the defendant within five days of the issuance of the summons, but at least two days prior to the day the defendant is required to appear to answer the complaint, excluding legal holidays, at a time reasonably calculated to find the defendant at the place of abode to attempt personal delivery of service. He then shall deliver a copy of the summons together with a copy of the complaint to the defendant, or leave copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. If such service cannot be made the officer shall affix copies to some conspicuous part of the premises claimed and make due return showing compliance with this section.
(b)	As used in this Article, and only with respect to service for summary ejectment proceedings in counties with 200,000 or more residents as of the most recent decennial federal census, the term "process server" shall mean any person over the age of 21 years who is not a party to the action, who is not related by blood or marriage to a party to the action or to a person upon whom service is to be made, and who is hired by the plaintiff or the plaintiff's agent or attorney for the purpose of serving the summons and complaint for summary ejectment; and the term "officer" shall mean the sheriff of the county where the subject premises is situated.
(c)	As used in this Article, and only with respect to service for summary ejectment proceedings in counties with 200,000 or more residents as of the most recent decennial federal census, a process server may effectuate proper service upon a defendant solely for purposes of summary ejectment by mailing a copy of the issued summons and signed complaint to the defendant no later than the end of the next business day after receipt of said summons and complaint or as soon as practicable at the defendant's last known address in a stamped addressed envelope provided by the plaintiff to the action. The process server shall then deliver a copy of the summons together with a copy of the complaint to the defendant by affixing copies of same to some conspicuous part of the premises claimed and make due return showing compliance with this section in the form of an affidavit of service. Said affidavit of service shall set forth the time, place, and manner by which the requirements set forth herein were completed."
SECTION 5.  G.S. 7A‑146 is amended by adding a new subdivision to read:
"§ 7A‑146.  Administrative authority and duties of chief district judge.
The chief district judge, subject to the general supervision of the Chief Justice of the Supreme Court, has administrative supervision and authority over the operation of the district courts and magistrates in his district. These powers and duties include, but are not limited to, the following:
(1)	Arranging schedules and assigning district judges for sessions of district courts.
(2)	Arranging or supervising the calendaring of noncriminal matters for trial or hearing.
(3)	Supervising the clerk of superior court in the discharge of the clerical functions of the district court.
(4)	Assigning matters to magistrates, and consistent with the salaries set by the Administrative Officer of the Courts, prescribing times and places at which magistrates shall be available for the performance of their duties; however, the chief district judge may in writing delegate his authority to prescribe times and places at which magistrates in a particular county shall be available for the performance of their duties to another district court judge or the clerk of the superior court, or the judge may appoint a chief magistrate to fulfill some or all of the duties under subdivision (12) of this section, and the person to whom such authority is delegated shall make monthly reports to the chief district judge of the times and places actually served by each magistrate.
(5)	Making arrangements with proper authorities for the drawing of civil court jury panels and determining which sessions of district court shall be jury sessions.
(6)	Arranging for the reporting of civil cases by court reporters or other authorized means.
(7)	Arranging sessions, to the extent practicable for the trial of specialized cases, including traffic, domestic relations, and other types of cases, and assigning district judges to preside over these sessions so as to permit maximum practicable specialization by individual judges.
(8)	Repealed by Session Laws 1991 (Regular Session, 1992), c. 900, s. 118(b), effective July 15, 1992.
(9)	Assigning magistrates during an emergency to temporary duty outside the county of their residence but within that district pursuant to the policies and procedures prescribed under G.S. 7A‑343(11); and, upon the request of a chief district judge of an adjoining district and upon the approval of the Administrative Officer of the Courts, to temporary duty in the district of the requesting chief district judge pursuant to the policies and procedures prescribed under G.S. 7A‑343(11).
(10)	Designating another district judge of his district as acting chief district judge, to act during the absence or disability of the chief district judge.
(11)	Designating certain magistrates to appoint counsel and accept waivers of counsel pursuant to Article 36 of this Chapter. This designation does not give any magistrate the authority to appoint counsel or accept waivers of counsel for potentially capital offenses, as defined by rules adopted by the Office of Indigent Defense Services.
(12)	Designating a full‑time magistrate in a county to serve as chief magistrate for that county for an indefinite term and at the judge's pleasure. The chief magistrate shall have the derivative administrative authority assigned by the chief district court judge under subdivision (4) of this section. This subdivision applies only to counties in which the chief district court judge determines that designating a chief magistrate would be in the interest of justice.
(13)	Ensuring small claims court is held at least twice per week."
SECTION 6.  Section 5 of this act is effective when it becomes law. The remainder of this act becomes effective October 1, 2017, and applies to actions for summary ejectment filed on or after that date.