North Carolina Business Litigation Report

A Notice Of Designation To The Business Court Must Be Actually Filed Within Thirty Days Of Service Of The Complaint To Be Timely

Ikerd v. Greenwood, 2008 NCBC 9 (N.C. Super. Ct. April 30, 2008)(Tennille)

Yesterday, the Business Court provided more clarification on the requirements for making a timely designation of a case to the Business Court. 

It held that a Notice of Designation must be actually filed in the county in which the case originated within thirty days of receipt of service of the Complaint in order to be timely, not just served within that time frame.

One of the defendants in the Ikerd case had faxed his Notice of Designation to the Chief Justice of the North Carolina Supreme Court and to the Chief Judge of the Business Court less than thirty days after he had been served with the Complaint.  But he didn't file the Notice of Designation with the Clerk of Court of Catawba County until more than thirty days after he'd been served. 

Judge Tennille held that this was not a timely Notice of Designation under the terms of N.C. Gen. Stat.Sec. 7A-45.4(b), which allows a defendant to designate an action as a complex business case "by filing a Notice of Designation in the Superior Court in which the action has been filed and simultaneously serving the notice" on opposing counsel, the Chief Judge of the Business Court, and the Chief Justice within thirty days after receipt of service of the Complaint.

"Filing" means actual filing within thirty days in the Court in the County in which the case was filed.  And in counting the thirty days, the Court also held that a defendant doesn't get to count an additional three days if the Complaint was served by mail. 

The full procedure for designating a case to the North Carolina Business Court is described here

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Mack Sperling
Brooks Pierce, LLP
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