North Carolina Business Litigation Report

Gateway Management Services, Inc. v. Advanced Lubrication Technology, Inc., 2008 NCBC 11 (N.C. Super. Ct. May 5, 2008)(Tennille)

When you have an additional three days to respond to a filing served by mail, and the response period ends on a weekend or holiday, this is how you calculate the response period:

"The correct formula for the computation of a time period during which a filing is required is as follows: number of days allowed under applicable statute + three days under Rule 6(e) + any weekend or holiday under Rule 6(a). The Court notes that the three days under Rule 6(e) is added to the end of the time period allowed by statute regardless of whether that time period ends on a Saturday, Sunday, or legal holiday. It is at the end of the additional three days that Rule 6(a) applies."

Also, when the response is due to a document which has been e-filed, but the party who has to respond has not yet registered to e-file and no Order requiring e-filing has yet been entered, the count for the response starts when the party from which the response is due is served pursuant to North Carolina Rule of Civil Procedure 5(b). If an Order has been entered requiring e-filing, however, service will be complete when the party filing the document to which the response is due receives notice of its own e-filing.  Business Court Rule 6.4 says that an electronic filing is complete when the person filing the paper gets a Notice of Electronic Filing.  Business Court Rule 6.5 says that e-filing is an "adequate and timely substitute for service" under the Rules of Civil Procedure.

It makes no difference in this situation if the party from whom the response is due is unaware of the e-filed document.  The Court held that "all parties have an affirmative duty to check the status of cases they have in front of the Business Court before they are registered to e-file as the Court’s filings are all made via the electronic system." 

Full Opinion 

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Mack Sperling
Brooks Pierce, LLP
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