State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_5

Rule 5. Service and filing ofpleadings and other papers.

(a)        Service of orders,subsequent pleadings, discovery papers, written motions, written notices, andother similar papers – When required. – Every order required by its terms to beserved, every pleading subsequent to the original complaint unless the courtotherwise orders because of numerous defendants, every paper relating todiscovery required to be served upon a party unless the court otherwise orders,every written motion other than one which may be heard ex parte, and everywritten notice, appearance, demand, offer of judgment and similar paper shallbe served upon each of the parties, but no service need be made on parties indefault for failure to appear except that pleadings asserting new or additionalclaims for relief against them shall be served upon them in the manner providedfor service of summons in Rule 4.

(a1)      Service of briefs ormemoranda in support or opposition of certain dispositive motions. – In actionsin superior court, every brief or memorandum in support of or in opposition toa motion to dismiss, a motion for judgment on the pleadings, a motion forsummary judgment, or any other motion seeking a final determination of therights of the parties as to one or more of the claims or parties in the actionshall be served upon each of the parties at least two days before the hearingon the motion. If the brief or memorandum is not served on the other parties atleast two days before the hearing on the motion, the court may continue thematter for a reasonable period to allow the responding party to prepare aresponse, proceed with the matter without considering the untimely served briefor memorandum, or take such other action as the ends of justice require. Theparties may, by consent, alter the period of time for service. For the purposeof this two‑day requirement only, service shall mean personal delivery,facsimile transmission, or other means such that the party actually receivesthe brief within the required time.

(b)        Service – How made.– A pleading setting forth a counterclaim or cross claim shall be filed withthe court and a copy thereof shall be served on the party against whom it isasserted or on the party's attorney of record. With respect to all pleadingssubsequent to the original complaint and other papers required or permitted tobe served, service with due return may be made in the manner provided forservice and return of process in Rule 4 and may be made upon either the partyor, unless service upon the party personally is ordered by the court, upon theparty's attorney of record. With respect to such other pleadings and papers,service upon the attorney or upon a party may also be made by delivering a copyto the party or by mailing it to the party at the party's last known addressor, if no address is known, by filing it with the clerk of court. Delivery of acopy within this rule means handing it to the attorney or to the party, leavingit at the attorney's office with a partner or employee, or by sending it to theattorney's office by a confirmed telefacsimile transmittal for receipt by 5:00P.M. Eastern Time on a regular business day, as evidenced by a telefacsimilereceipt confirmation. If receipt of delivery by telefacsimile is after 5:00P.M., service will be deemed to have been completed on the next business day.Service by mail shall be complete upon deposit of the pleading or paperenclosed in a post‑paid, properly addressed wrapper in a post office orofficial depository under the exclusive care and custody of the United StatesPostal Service.

A certificate of service shallaccompany every pleading and every paper required to be served on any party ornonparty to the litigation, except with respect to pleadings and papers whoseservice is governed by Rule 4. The certificate shall show the date and methodof service or the date of acceptance of service and shall show the name andservice address of each person upon whom the paper has been served. If one ormore persons are served by facsimile transmission, the certificate shall alsoshow the telefacsimile number of each person so served. Each certificate ofservice shall be signed in accordance with and subject to Rule 11 of theserules.

(c)        Service – Numerousdefendants. – In any action in which there are unusually large numbers ofdefendants, the court, upon motion or of its own initiative, may order thatservice of the pleadings of the defendants and replies thereto need not be madeas between the defendants and that any crossclaim, counterclaim, or matter constitutingan avoidance or affirmative defense contained therein shall be deemed to bedenied or avoided by all other parties and that the filing of any such pleadingand service thereof upon the plaintiff constitutes due notice of it to theparties. A copy of every such order shall be served upon the parties in suchmanner and form as the court directs.

(d)        Filing. – Thefollowing papers shall be filed with the court, either before service or withinfive days after service:

(1)        All pleadings, asdefined by Rule 7(a) of these rules, subsequent to the complaint, whether suchpleadings are original or amended.

(2)        Written motions andall notices of hearing.

(3)        Any otherapplication to the court for an order that may affect the rights of or in anyway commands any individual, business entity, governmental agency, association,or partnership to act or to forego action of any kind.

(4)        Notices ofappearance.

(5)        Any other paperrequired by rule or statute to be filed.

(6)        Any other paper soordered by the court.

(7)        All orders issued bythe court.

All other papers, regardlessof whether these rules require them to be served upon a party, should not befiled with the court unless (i) the filing is agreed to by all parties, or (ii)the papers are submitted to the court in relation to a motion or other requestfor relief, or (iii) the filing is permitted by another rule or statute. Briefsor memoranda provided to the court may not be filed with the clerk of courtunless ordered by the court. The party taking a deposition or obtainingmaterial through discovery is responsible for its preservation and delivery tothe court if needed or so ordered.

(e)       (1)        Filingwith the court defined. – The filing of pleadings and other papers with thecourt as required by these rules shall be made by filing them with the clerk ofthe court, except that the judge may permit the papers to be filed with him, inwhich event he shall note thereon the filing date and forthwith transmit themto the office of the clerk.

(2)        Filing by electronicmeans. – If, pursuant to G.S. 7A‑34 and G.S. 7A‑343, the SupremeCourt and the Administrative Officer of the Courts establish uniform rules,regulations, costs, procedures and specifications for the filing of pleadingsor other court papers by electronic means, filing may be made by the electronicmeans when, in the manner, and to the extent provided therein. (1967, c. 954, s. 1; 1971, c.538; c. 1156, s. 2.5; 1975, c. 762, s. 1; 1983, c. 201, s. 1; 1985, c. 546;1991, c. 168, s. 1; 2000‑127, s. 1; 2001‑379, s. 3; 2001‑388,s. 1; 2001‑487, s. 107.5(a); 2004‑199, s. 5(a); 2005‑138, ss.1, 2; 2006‑187, s. 2(a).)