A case cannot be filed directly in the Business Court. It must be designated to the Court either by the Plaintiff, at the time of the filing of the Complaint, or by the Defendant, within 30 days of the receipt of the Complaint. Such a motion will be denied if it is untimely, as happened in this case. The procedure is similar to removal to federal court based on diversity jurisdiction, and is set out in Section 7A-45.4 of the North Carolina General Statutes.
That statutue, as recently amended, describes seven categories of cases that qualify to be designated as “mandatory complex business cases.” They are:
(1) The law governing corporations, except charitable and religious organizations qualified under G.S. 55A-1-40(4) on the grounds of religious purpose, partnerships, limited liability companies, and limited liability partnerships, including issues concerning governance, involuntary dissolution of a corporation, mergers and acquisitions, breach of duty of directors, election or removal of directors, enforcement or interpretation of shareholder agreements, and derivative actions.
(2) Securities law, including proxy disputes and tender offer disputes.
(3) Antitrust law, except claims based solely on unfair competition under G.S. 75-1.1.
(4) State trademark or unfair competition law, except claims based solely on unfair competition under G.S. 75-1.1.
(5) Intellectual property law, including software licensing disputes.
(6) The Internet, electronic commerce, and biotechnology.
(7) Tax law, when the dispute has been the subject of a contested tax case for which judicial review is requested under G.S. 105-241.16 or the dispute is a civil action under G.S. 105-241.17.
The Designation is filed by the party seeking to put the case in the Business Court. There is a form Designation contained in the Business Court Rules, which I’ve modified slightly and put into .doc format, which is here. The Designation is to be served upon (a) opposing counsel, (b) the Senior Business Court Judge, and (c) the Chief Justice of the North Carolina Supreme Court. The Chief Justice of the North Carolina Supreme Court is ultimately responsible for entering an Order designating the case to the Business Court. An example of a Designation Order is here.
The statute provides a mechanism for a party to challenge a party’s designation to the Court. The Court has a broad view of its jurisdiction, as demonstrated by this case, where the Court rejected the argument that a case involving financial products was inappropriate for designation because it might not involve the application of North Carolina law. It held that "[i]t is sufficient for purposes of removal to the Business Court that there are issues concerning which law applies which will have industry-wide application," and that the issues were sufficient for removal of they might result in "the establishment of case law which may prove useful to consumers of and businesses selling financial products."
The court also views its jurisdiction over cases involving the Internet and e-commerce in a broad way. In this case, it rejected a challenge to its jurisdiction of an Internet case, holding that the North Carolina legislature "specifically included cases relating to those subjects without any limitation on the nature of the legal issues involved." The reasons the North Carolina Legislature did so, the Court stated, was "in order to provide a court with expertise in these areas and to see that the law was developed consistently" in areas of technology that "impact business in innumerable ways."
If a case doesn’t fall within the six categories described in Section 7A-45.1, a party seeking to have a case moved to the Business Court can seek designation of the case as an “exceptional” or “complex business case” under Rule 2.1 of the General Rules of Practice for the Superior and District Courts. The process involves a recommendation by a Superior Court Judge in the county where the case was originally filed to the Chief Justice that the case be designated either as exceptional or complex business.
The Rule says that the Superior Court Court may consider the following factors in determining whether to grant the motion: “the number and diverse interests of the parties; the amount and nature of anticipated pretrial discovery and motions; whether the parties voluntarily agree to waive venue for hearing pretrial motions; the complexity of the evidentiary matters and legal issues involved; whether it will promote the efficient administration of justice; and such other matters as the Chief Justice shall deem appropriate."
Former Supreme Court Chief Justice Lake issued a memorandum describing the factors that should be considered by a Superior Court Judge in determining whether to make such a recommendation. The memorandum is several years old, and pre-dates recent amendments to the statute regarding mandatory jurisdiction, but may still be instructive.