Service of process can be made by leaving the Summons and Complaint at the Defendant’s residence, even though not in literal compliance with Rule 4, if the Defendant has evaded service.
The Defendant will waive an objection to service (and to jurisdiction) by filing a Notice of Designation to the North Carolina Business Court, because "the filing of a Notice of Designation in an action constitutes a general appearance for the purpose of personal jurisdiction." To keep such objections alive, the Notice of Designation must contain an objection to personal jurisdiction.
On a covenant not to compete issue, the Court followed the principle it set out in Better Bus. Forms & Prods., Inc. v. Craver, 2007 NCBC 34 (N.C. Super. Ct. Nov. 1, 2007) regarding the right of an asset purchaser to to enforce a non-compete entered into between the seller and an employee. The buyer has the option to enforce the noncompetition agreement or to enter into a new agreement. As the Court held: "a noncompetition agreement that has been sold as part of an asset sale, as opposed to the sale of a business, gives the buyer the right to enforce the noncompetition agreement as of the date of the sale but not to enforce the noncompetition agreement as if it had been entered into originally by the buyer."
Brief in Support of Motion to Dismiss
Brief in Opposition to Motion to Dismiss