A Plaintiff Has Thirty Days From The Filing Of A Complaint To Seek Mandatory Designation

Ross v. Autumn House, Inc., February 26, 2008 (Tennille)(unpublished)

If you are a plaintiff filing a Complaint, and you want to designate your case to the Business Court, when is the deadline for filing your Notice of Designation?

The answer is in the statute, it says: "[t]he Notice of Designation shall be filed: (1) By the plaintiff or third-party plaintiff contemporaneously with the filing of the complaint . . . in the action."  N.C. Gen. Stat. § 7A-45.4(d)(1).

In this unpublished case, the plaintiff filed its Complaint on December 6, 2007, and its Notice of Designation on January 3, 2008, 28 days later.  Per the Autumn House case, that is a contemporaenous filing which meets the requirement of the statute.

Judge Tennille relied on guidelines about the designation process filed on the Business Court website.  Those guidelines say that a plaintiff must file its Notice of Designation within 30 days of the filing of the Complaint.  Plaintiff had met that requirement, and the Court determined that the Notice was timely.

If you are wondering about the definition of "contemporaneously," the American Heritage Dictionary defines the word as "happening during the same period of time."  The definition in Webster's Revised Unabridged Dictionary is more strict.  It defines the word to mean "at the same time with some other event."   

Thanks to Ben Norman, a lawyer at Brooks Pierce who clerked for Judge Tennille, for telling me about this case.

Note that Autumn House was essentially overruled in August 2012.

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