North Carolina cases that are filed in an "improper county" can be transferred to the "proper county" if the "defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county." N.C. Gen Stat. §§1-83.
Multiple Claims With Different Venue Requirements
Well, what if there’s a multiple count complaint, and only one of the claims was filed in an "improper county?" That was the situation dealt with by Judge Robinson last week in Aldridge v. Kiger, 2016 NCBC 83.
Plaintiff a resident of Union County, sued the Defendants, including a corporation and an LLC which were based in Mecklenburg County, in Union County. If there wasn’t a specific venue provision applicable to the claims, the case was appropriately filed in Union County. That would be so per G.S. §1-82, which says that an "action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement."
Dissolution Claims Have Their Own Venue Requirement
But Plaintiff’s county of residency didn’t control, because his complaint included a claim for dissolution of the corporate Defendant. That claim has a specific venue provision which applies to it. That provision isn’t in Subchapter 4 of Chapter 1 of the General Statutes (G.S. §§ 1-76 to -87), where most of the provisions relating to venue are contained.
Instead, there is a provision regarding proper venue for corporate dissolution claims buried in the North Carolina Business Corporation Act. Section 55-14-31(a) says that:
Venue for a proceeding to dissolve a corporation lies in the county where a corporation’s principal office (or, if none in this State, its registered office) is or was last located.
Maybe you were aware of that provision. I wasn’t, and the attorneys for the Plaintiff obviously weren’t either.
So Judge Robinson had no choice but to transfer the venue of the dissolution claim from Union County to Mecklenburg County. But what about the other claims, which were properly venued in Union County? Should they stay there?
The Court Did Not Sever The Claims So As To Let the Properly Venued Claims To Remain In The County Of Filing
Rule 42(b)(1) of the NC Rules of Civil Procedure allows the trial court to sever claims and it specifically speaks to venue considerations. It says:
The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any . . . number of claims.
While that Rule would seem to allow a severing of the claims, with one to be transferred to Mecklenburg County and the others to remain in Union County, Judge Robinson found the outcome to be dictated by one of the other venue statutes. Section 1-87(a) of the General Statutes says that:
When a cause is directed to be removed. . . all other proceedings shall be had in the county to which the place of trial is changed,
He ruled that "[b]ecause all claims were brought in a single action in Union County , and Union County is an improper venue for the judicial dissolution claim, the entire action must be transferred to Mecklenburg County." (emphasis added).
For those of you familiar with North Carolina geography, you know that there is not much inconvenience to the Plaintiff in having to litigate all his claims in Mecklenburg County as opposed to Union County. Those two counties are right next to each other. The courthouses are about 25 miles apart! The inconvenience is even less, since the case is in the Business Court, and will be overseen by the same Judge until conclusion.
It’s hard to see how the Defendants will see this "win" as accomplishing anything much. They might have thought that they would succeed in getting a dismissal of the case due to improper venue, but "North Carolina case law is clear that a motion to dismiss based on improper venue made pursuant to Rule 12(b)(3) shall be treated as a motion to transfer, rather than a motion to dismiss." Op. ¶14 (citing Coats v. Sampson Cty. Mem’l Hosp., Inc., 264 N.C. 332, 334, 141 S.E.2d 490, 492 (1965)).