There was one thing I could have told you for sure about Business Court procedure before August 10th. That was that a Plaintiff had 30 days from the filing of his Complaint to designate the case to the Business Court per N.C. Gen. Stat. §7A-45.4.
That certainty was based on a decision from Judge Tennille over four years ago, in Ross v. Autumn House, Inc. He reached that conclusion notwithstanding the language of the statute, which says that "[t]he Notice of Designation shall be filed: (1) By the plaintiff or third-party plaintiff contemporaneously with the filing of the complaint . . . in the action." N.C. Gen. Stat. § 7A-45.4(d)(1)(emphasis added).
The Autumn House decision was based on Guidelines still available today on the Business Court’s website which say that the Plaintiff could file a Notice of Designation within 30 days of filing the Complaint.
So what’s changed? Chief Judges of the Business Court for one thing. Judge Jolly, who took over the chiefship after Judge Tennille’s retirement in early 2011, issued an Order on August 10th in Foster v. Bell Mini-Storage, Inc. in which he said the statute requires that:
a plaintiff must file a notice of designation at the same time the complaint is filed.
Order Par. 5
So now, after Foster v. Bell Mini-Storage, Inc., if you are a Plaintiff wanting to designate your new case to the Business Court, you’d better file that Notice of Designation at the same time you file your Complaint.
Note that Judge Jolly found the designation in Foster to be valid even though it was made more than thirty days after the complaint was filed. He did that because the answer raised issues of corporate governance. Section 7A-45.4(d)(3) says that any party has "30 days of receipt of service of the pleading seeking relief from the defendant or party" to file a Notice of Designation. The Notice was filed six days after the Answer was filed, so it was timely in that regard.
But there’s no doubt now that the thirty day largesse granted by the Autumn House decision to Plaintiffsd has been laid to rest. Judge Jolly referenced that decision yesterday in an Order in Kight v. Ganymede Holdings II, Inc., 2012 NCBC 46, and held that:
In Ross v. Autumn House, Inc., Caldwell County No. 07 CVS 2172 (N.C. Super. Ct. Order Feb. 26, 2008), this court interpreted "contemporaneously" in this context to mean within thirty days of the filing of the complaint, relying on certain "guidelines" published on the website for the North Carolina Business Court.
The court now reconsiders the requirement that a notice of designation be filed contemporaneously with the complaint. To comply with this requirement, a plaintiff must file a notice of designation at the same time the complaint — or amended complaint — is
Op. at 2. This disagreement between Judge Tennille and Judge Jolly over the meaning of "contemporaneous" reminds me of Humpty Dumpty’s statement to Alice (in Through the Looking Glass) that "When I use a word, it means just what I choose it to mean — neither more nor less."
For now, the Business Court’s definition of "contemporaneous" means what Judge Jolly chooses it to mean: "at the same time."