North Carolina Business Litigation Report

Phillips and Jordan, Inc. v. Bostic, March 25, 2009 (Tennille)(unpublished)

The Court denied an Opposition to Designation of Action as a Mandatory Complex Business case, which was based partly on the argument that the case had been pending for a year before the Notice of Designation was filed.

The Complaint had been amended, however, to state a new claim for constructive fraud.  The Court observed that the new claim was "substantively different from the original claims."

The Court's denial was based on Business Court Rule 3.1,  which states that “[i]n the event that a party amends a pleading under N.C. R. Civ. P. 15 . . . if the amendment raises a new material issue listed in subsections (a)(1) through (a)(6) of N.C. Gen. Stat. § 7A-45.4, then a Notice of Designation (with respect to the entire action) may be filed with respect to such new material issue. . . .” BCR 3.1(b) (2006).

The new cause of action fell under the Business Court's mandatory jurisdiction, because it alleged "(1) liability for actions taken by the Individual Defendants as corporate officers and directors, (2) 'preferential payment to various creditors,' and (3) liability for actions taken during a 'winding up' or 'dissolution' of" a corporate entity.  The Court found that "these allegations support mandatory jurisdiction under N.C. Gen. Stat. 7A-45.4."

Full Opinion

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Mack Sperling
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