A LEGAL SELF-HELP
HANDBOOK
for
District of Columbia Prisoners
at
Rivers Correctional Institution

Second Edition
DC PRISONERS PROJECT
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL
RIGHTS AND URBAN AFFAIRS
Revised 2007

INTRODUCTION
This booklet will help you defend your legal rights. It is written with you in mind–a
person serving a sentence imposed in the District of Columbia and currently confined at
the Rivers Correctional Institution (“RCI”) in Winton, North Carolina.
The DC Prisoners Project is the only organization devoted to advocating for the legal
rights of DC prisoners. Unfortunately, we do not have the money or legal staff to
represent every prisoner with regard to his or her individual problems–particularly those,
like you, confined far from the District of Columbia. We recognize that the vast majority
of you have no access to an attorney. We prepared this booklet to provide you with
general information about your legal rights and how to enforce those rights.
This booklet will NOT help you challenge your criminal conviction or your sentence
under District of Columbia or federal laws. You may contact the DC Public Defender
Service for assistance in preparing papers that challenge your sentence or conviction in a
criminal case. Courts have the authority to issue different kinds of writs. The most
common writs are for habeas corpus and mandamus. This booklet is NOT designed to
assist with writs of habeas corpus to challenge your sentence or conviction.
This is also not a legal research manual with elaborate discussion of case law and detailed
explanations of how to correctly cite cases. Publications like the Jailhouse Lawyers’
Manual, which can assist you with the extensive body of law on prisoners’ rights, may be
available in your prison library or can be obtained (often for free) from the publisher.1
This booklet is not intended to serve as legal advice and cannot include all of the
considerations that go into filing and litigating a lawsuit. In addition, laws and rules can
change. This booklet should be used as a guide for you to consider in pursuing your own
claims. Please let us know if you find this booklet helpful, if additional subjects should be
covered, or if you learn that the prison or court rules have changed in ways that effect the
information provided in this booklet.
This booklet is not intended to replace the advice of any attorney.
This document does not represent legal advice by the
D.C. Prisoners' Project, and it does not create an attorney client
relationship.
Please rely on your own research!

1

The Jailhouse Lawyers’ Manual (JLM), Sixth Edition, is $25 per volume, or $45 for both volumes
purchased together (which is highly recommended). A Spanish version (SJLM) is available for $15.
Shipping is included in these prices, but first-class shipping costs an additional $5 per book. To purchase
JLM or SJLM, send a check or money order payable to Columbia Human Rights Law Review to: Columbia
Human Rights Law Review, Attn: JLM Order, 435 W. 116th St., New York , NY 10027.

-i-

AN IMPORTANT WORD ABOUT THE KINDS OF COMPLAINTS YOU CAN
BRING
You may be used to hearing about Eighth Amendment or Constitutional claims.
You will notice that this booklet does not discuss those types of claims at all. That is
because they generally are not available to you at RCI.
As you know, you are in the custody of the Federal Bureau of Prisons (“BOP”).
The BOP contracts with Geo Group to house you at RCI. The District of Columbia has
nothing to do with it.
You may have heard of 42 USC § 1983. That law allows you to sue for violations
of federal law (including constitutional violations) when you are in state custody or DC
custody. 42 USC § 1983 only applies to prisoners in state custody or in prisons that have
contracted with a state (or DC). It doesn’t apply to people, like you, in federal custody.
You may also have heard of Bivens suits. People whose constitutional rights are
violated by agents or employees of the federal government are allowed to sue the
wrongdoers for money in federal court. The first such case was Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and that case is the
reason such suits are know as Bivens actions. The Supreme Court has said that Bivens
suits cannot be brought against companies that contract with the federal government. So
you can’t file a Bivens suit against Geo Group. The Fourth Circuit, where you are, has
ruled that you also cannot bring Bivens suits against individual employees of RCI. See
Holly v. Scott 434 F. 3d 287 (4th Cir. 2006).
The combined effect of all these laws and court cases is that there appears to be
no way to bring a constitutional lawsuit for money for things that happen at RCI. You can
still bring a suit for injunctive relief.2 D.C. Prisoners' Project is challenging that rule, but
we have not been able to change the law so far.
If you write to the court with a request, the clerk may send you forms for lawsuits
under 42 USC § 1983 or Bivens. But to file a successful lawsuit against an officer or
employee at RCI, you need to bring a case under North Carolina tort law. There are no
forms for tort claims – you will have to draft your own Complaint, but more on that, later
(see page 7, “Preparing Your Complaint”).

2

If you do try to bring a case for injunctive relief under the Constitution in federal court, please be aware of
all the requirements of the Prison Litigation Reform Act (PLRA). Also be aware that the prison system can
always moot out your case by transferring you to another prison.

- ii -

TABLE OF CONTENTS
What To Do Before You File A Lawsuit

i

Beginning Thoughts

3

Preparing your Complaint

7

Should I Sue in State or Federal Court?

13

Filing a Complaint in Federal Court

15

Filing a Complaint in North Carolina State Court

17

Serving the Defendants With Your Complaint

19

The Defendants’ Answer & Your Response

21

Filing and Responding to Motions

23

Discovery

27

Trial

29

Other Resources

31

APPENDIX A. GLOSSARY OF TERMS

33

APPENDIX B. SUMMARY OF STATE CLAIMS

37

APPENDIX C. RULES AND FORMS FOR FILING IN FEDERAL COURT

43

APPENDIX D. RULES AND FORMS FOR FILING IN
NORTH CAROLINA COURTS

65

APPENDIX E. NORTH CAROLINA PROCESS SERVERS

109

APPENDIX F. BOCA RATON, FL PROCESS SERVERS

113

APPENDIX G. SAMPLE FEDERAL COURT COMPLAINTS

117

APPENDIX H. SAMPLE STATE COURT COMPLAINTS

125

- iii -

- iv -

WHAT TO DO BEFORE YOU FILE A LAWSUIT
Anyone can file a lawsuit for any reason. But filing a lawsuit and getting what you want out of a
lawsuit are two very different things. In order for a lawsuit to be successful, you must have two
things:
(1) a valid claim under the law
(2) proof of your claim.
The lack of one of these two things is by far the biggest reason why many lawsuits filed by
prisoners fail. This section identifies some of the things you should think about before deciding
whether to file a lawsuit and the things you should do before filing any lawsuit.

Should I File a Lawsuit?
There are many things to think about before you decide to file a lawsuit. Do you have a claim
recognized under the law? Can you prove your claim? If you win, will you receive any money? If
you get money, will it make up for the cost and hassle of the lawsuit? Will filing a lawsuit make
things better for you or others? Could someone retaliate against me?
When you have a problem, try to decide what you want before you file a lawsuit. Is it something
that a court must order? Is there another way to get what you want? Although you can only sue to
enforce your own rights, if your case could improve the lives of others, a lawsuit can be a forceful
tool for change.
To begin with, you should understand the difference between a “grievable problem” and a “legal
claim.” A grievable problem is one you might encounter, such as prison rules that you find unfair, a
prison official who is openly disrespectful, or food that is unappetizing – anything that you believe
is wrong and that can and should be corrected. You can file a grievance (administrative remedy)
about a grievable problem.
A legal claim is a grievable problem that a court can do something about because it is against the
law. You can try to correct such problems by speaking with prison officials, pursuing RCI’s written
grievance procedures or writing letters to individuals or organizations responsible for overseeing
RCI. If you are unsuccessful, and you believe your grievable problem is also a legal claim, you can
file a lawsuit.

A Few Words of Caution
Litigation is expensive. To file a lawsuit in a North Carolina superior court, you must pay a filing
fee of $95.00. (Federal actions are more expensive - $350 to file a civil action, $455 to file an
appeal.) Serving the defendants with a summons and a copy of the Complaint (as required by the
rules of civil procedure) may also have a financial cost. (People found to be incapable of paying

1

these fees may be allowed to proceed as a “pauper” by filing a motion and a notarized affidavit with
the court at the same time the Complaint is filed.)
Litigation involves complicated procedural rules (such as the requirement that administrative
remedies must have been exhausted before a legal claim can be filed). Additionally, there are very
demanding legal standards that require proof of malicious infliction of nonjudicial punishment,
deliberate indifference to a substantial risk of serious harm, or a knowing deprivation of the basic
necessities of life.
These and other factors (such as the attitudes of jurors) mean that, in litigation, the deck is stacked
against prisoners. Generally, a person is better off trying to resolve problems and complaints
informally by talking to prison staff or through administrative procedures such as the administrative
remedy process. Litigation should be reserved for serious or life-threatening matters that cannot
otherwise be resolved.

2

BEGINNING THOUGHTS
What do I need to do before I file a lawsuit?
1.

Exhaust your administrative remedies

For federal claims, you are required to exhaust all available administrative remedies. See 42 U.S.C.
§ 1997e(a). Courts have interpreted this requirement very strictly.
As of the date of this booklet, RCI used its own grievance procedure and required you to follow the
BOP procedure for some additional steps. This may change at any time, so be sure that you have
used all of the prison grievance procedures available to you. Make sure you file appeals each time
you are denied or you don’t get what you want (or the time for an answer passes and you have not
gotten an answer or a request for an extension). Use every appeal until no more appeals are
available. Always keep copies.
Although this requirement does not apply to state law claims, it is almost always better to exhaust
your administrative remedies anyway. It increases your chance for a successful resolution of the
problem, helps to make a paper trail, and shows that you tried to do everything by the rules. It can
also provide insight into what the defendants will say in response to a lawsuit.
2.

Keep written records and gather evidence

The difference between winning and losing a lawsuit often depends on the evidence you have. Keep
copies of everything and make notes of important events. Talk to people who may have witnessed
the events to find out what they saw and heard. Ask whether they would be willing to be a witness
and provide notarized, written statements (affidavits). Gather these affidavits as soon as possible.
As a general rule, you need not attach evidence to your Complaint, but you must gather evidence as
it happens so that you will have it for later.
3.

Become informed about your rights

You do not need to be a lawyer to file a lawsuit or to enforce your rights. But the help of a
knowledgeable person greatly increases your chance to win.
42 U.S.C. §1983 and Bivens Actions are not Available to
Prisoners at RCI
RCI is operated by the Geo Group under contract with the
Federal Bureau of Prisons. 42 U.S.C. §1983 is only
applicable to state actors and does not apply to the federal
government and Bivens is not applicable to employees of a
private contractor like the Geo Group. Do not bring one of
these kinds of cases. YOU WILL LOSE.

3

Review the Appendix. Also, read all you can about the area of law in which you are filing claim.

4.

Beware of “Writ Sellers” and bad “Jailhouse Lawyers”

Most prisons have a number of people who are known for helping other inmates write Complaints
and responding to motions. These people, sometimes called “writ writers,” or “legal assistants,”
typically have no formal legal training. However, because they have had prior experience filing
lawsuits pro se, they can be helpful in formatting the Complaint, complying with filing
requirements and translating some of the legal terms. This booklet is designed to help you file a
lawsuit by yourself, but you might also be able to get some help from fellow inmates with prior
experience.
On the other hand, be careful of inmates or others who encourage you to file a lawsuit or ask you to
pay them money to file a lawsuit on your behalf. There are individuals who have collected
thousands of dollars from others for filing losing lawsuits.
Any outside agency or firm that asks you to pay money to get a “pro se” Complaint that you can
then file yourself is practicing law without a license and is most likely trying to sell something not
worth the money or time.

When Should I File My Lawsuit?
Don’t wait to file any longer than necessary. Generally speaking, the sooner you file your lawsuit,
the better. It may take a while to exhaust RCI’s prisoner grievance procedures, but you should try to
file your Complaint as soon afterwards as possible. If not, your claim could become “stale,” your
evidence could grow cold, be lost or destroyed, you could lose track of witnesses, or even worse,
your claim could be barred by the statute of limitations.
The statute of limitations is just that – a statute (law) that prevents a lawsuit from being considered
if it is filed too long after the claim “accrues,” which just means when the event happened. The
length of time you are permitted to wait before filing a lawsuit depends on the type of claim and the
state law.
Most tort claims against Geo Corp, its employees, and its contractors in North Carolina state court
must be filed within three years from when the event happened. N.C. Gen. Stat. § 1-52(16)
(personal injury or damage to property); § 1-52(19) (assault, battery, or false imprisonment).
For these kinds of claims in federal court, you generally have 3 years from when the event
happened to file as well. In North Carolina, statutes of limitations ARE NOT tolled (suspended)
during incarceration; they begin to run immediately and you cannot wait until you are released to
file suit. N.C. Gen. Stat. § 1-17

4

The bottom line is that you should file a lawsuit as soon as possible after exhausting the grievance
procedure.
Who Should I Sue?
In general, you should consider suing all people and entities that have the ability to provide you
with the relief you want. Keep in mind that courts routinely dismiss claims against the President of
the United States or high ranking officials sued in their personal capacity. Naming individuals who
are technically responsible but who were not personally involved in violating your rights does
nothing more than make your Complaint look weak. Rather, consider suing high ranking officials in
their official capacity and focus on individuals who took an active role in causing your injury or
entities that have the power to correct the problem. With these general principles in mind, a few
entities require special treatment.
The GEO Group and RCI
RCI should not be named as a defendant because it is a building, not a company. RCI is owned
and operated by the GEO Group, Inc. (formerly Wackenhut Corrections Corporation). RCI is not
owned or operated by the District of Columbia, the State of North Carolina or the Bureau of
Prisons.
Unlike federal, state and municipal prison owners, the GEO Group can be held liable for the
common law torts of any of its employees. This is known as the doctrine of respondeat superior:
that the company is liable for any injuries caused by its employees while they act within the scope
of their employment. This is important because employees may not be able to pay your damages
(money), but their employer can.
In a state court action for damages resulting from the actions of any employee at RCI, consider
naming the GEO Group as a defendant under the doctrine of respondeat superior. The GEO Group
is incorporated and has its principal place of business in Florida.
If you name the GEO Group as a defendant, you should serve a copy of the Complaint and
summons on the GEO Group’s agent for service of process. “Serving” is the process of officially
giving someone a copy of a Complaint. Serving corporations is discussed on page 18.
Suing Subcontractors
Geo Group may contract with some other companies to provide things like food service or medical
care. You may want to sue these companies. Before you serve a copy of the Complaint and
summons on those defendants, you will have to figure out what address to send the papers to.
Usually, corporations designate an agent for service of process. That information should be on file
with the state.

5

Suing Individuals
You may want to sue individual people who hurt you. That is fine. Don’t name everyone under the
sun. Try to pick only those people directly involved in what happened to you, those who could have
stopped or prevented it, or those people who have the power to fix it.
Suing the State of North Carolina
The State of North Carolina is not involved in your confinement. Do not sue it.

6

PREPARING YOUR COMPLAINT
A “Complaint” is a paper that begins a lawsuit. You may decide to use a form, like the one in the
Appendix of Forms, or you can write one from scratch. This section assumes that you are writing
one from scratch, but it applies equally to forms.
If at all possible, you should type or neatly write your Complaint on white paper that is of the
standard size: 8½ inches by 11 inches. Most courts require it be typewritten, but it would be
unconstitutional to enforce this rule if you do not have easy access to a typewriter. Courts give no
greater consideration to a Complaint that is typewritten than one that is neatly handwritten.
Also, it is good to number every paragraph in your Complaint. This is not necessary if you are using
a pre-printed form, but if you are drafting a Complaint from scratch, each paragraph below the
caption should be numbered.
As for the organization of your Complaint, there are a number of examples and Complaint forms in
the Appendix to this handbook that you should consider in drafting your Complaint. Whether you
are using a form or are preparing your Complaint from scratch, be sure to include the following six
things:
1) a caption,
2) a statement about jurisdiction and venue,
3) a statement of facts,
4) a list of claims,
5) a “prayer for relief,” and
6) your signature.
Each of these parts of a Complaint is described more fully below.
1. Caption
Every paper sent to a court for filing should include a caption on the very first page. A caption does
three things: it identifies the court, the parties and the paper being filed.
a. Identify the Court: Across the very top of the first page of every paper file you should identify
the name of the court
If you are filing a Complaint in the local North Carolina state court, type or write across the
top of the first page:
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
COUNTY OF HERTFORD
SUPERIOR COURT DIVISION

7

If you are filing a Complaint in federal court, type or write across the top of the first
page:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
b. Identify the Case: Below the name of the court, draw a line down the middle of the page.
Look in the Appendix for examples.
If you are suing in North Carolina State court write or type:
___- CVS-________
If you are suing in Federal District Court write or type:
No. __:____-CV-___(_)
If this is your Complaint, the Clerks Office will fill in the case number. If this is a paper in a case
already pending, you should include the case number.
Then put your name, identified as “Plaintiff” followed by a “v.” (for “versus”) followed by the
names of all of the defendants you are suing. You should list your address and the address of each
defendant immediately beneath the respective party. Later, you only have to list the first plaintiff
and the first defendant.
c. Identify the Paper: If this is the Complaint, for example, write or type the word
“COMPLAINT” in all capital letters below the names of the parties. In later papers, give the paper a
title that is short and explains what you are doing. You might call it a “Motion to Order Defendants
to Produce Discovery” or an “Opposition to Defendants’ Motion for Summary Judgment.”
2. Statement of Jurisdiction and Venue
This must be near the front of the Complaint because the judge will want to know why you are
filing your Complaint in his or her court.
Jurisdiction
Federal
In order for a Federal court to have jurisdiction over your claim, for causes of action based on state
law (federal law claims generally are not available while at RCI), you have to show that:
(1) All the defendants are citizens of states that are different (diverse) from yours. If you lived
in DC before you went to prison, you are a citizen of the District of Columbia, unless you
have done something special to change your place of residence (like marry a woman who
lives in a different place). So, you have to show that none of the defendants you are suing
are citizens of the same place you are. In other words, generally, that none of the defendants
are from DC.
8

AND
(2) You must be suing for more than $75,000 in damages (based on a good faith belief such
damages are appropriate). This can include punitive damages, attorneys fees (if any) and
injunctive relief.
Geo Group, which is a citizen of Florida, will be the most common defendant. Guards and other
employees are probably citizens of North Carolina (possibly Virginia). So a federal court will have
jurisdiction over a D.C. prisoner’s claim if you are suing for more than $75,000. If, however, any
defendant is a citizen of DC, there is no diversity, and no federal jurisdiction.
If both of the above conditions are met, cite 28 U.S.C. § 1332 as the basis for the court’s jurisdiction
in your Complaint.
State of North Carolina
State courts have jurisdiction over cases arising within the state and involving its constitution or
laws. Therefore you will always be able to establish jurisdiction over your claims in state court.
The Superior Court has jurisdiction if the amount in controversy exceeds $10,000. District Court
has jurisdiction if the amount in controversy is less than $10,000. A special division of District
Court, the Small Claims Division, will handle cases if you request a magistrate and the amount in
controversy is less than $5,000.
The Court has jurisdiction over people served a copy of the lawsuit if you follow:
N.C. Gen. Stat. § 1A-1, Rule 4 (j)(1)(service of the summons and Complaint on a person);
N.C. Gen. Stat. § 1A-1, Rule 4 (j)(6)(service of summons and Complaint over a corporation)3;
N.C. Gen. Stat. § 1-75.4(1)(b) if the Defendants were natural persons living in North Carolina when
service of process was made; or
N.C. Gen. Stat. § 1-75.4(5)(b) if the case arises out of services actually performed for the Plaintiff
by the Defendant within North Carolina.
Read these rules carefully. Figure out which ones apply. Then follow the directions. See the
Appendices for the rules.

3

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 4 (j)(1), jurisdiction over a corporation is obtained “by
delivering a copy of the summons and of the Complaint to an officer, director, or managing agent of
the corporation;” by delivering a copy of the summons and Complaint to “an agent authorized by
appointment or by law to be served or to accept service of process;” or by “mailing a copy of the
summons and of the Complaint, registered or certified mail, return receipt requested, addressed to
[such an] officer, director or agent.”
9

Venue
Venue is the location in which you can properly file your lawsuit. In general, federal venue is in any
federal district where one of the defendants lives or where the claims arose. Thus, venue is
generally proper in the U.S. District for the Eastern District of North Carolina if the defendant is
Geo Group or other defendants providing services at RCI .
If you are filing a Complaint in state court, jurisdiction and venue are much simpler to allege.
Simply identifying the basis of your claim, the amount that you seek in damages (if any), and the
county in which the defendants live or the claims happened should satisfy the court that jurisdiction
and venue are proper. For instance, venue would be proper in Hertford County, North Carolina, if
that is where the cause of action arose (where the bad thing happened) (N.C. Gen. Stat. § 1-77(2)),
or if that is where the Defendants live, (N.C. Gen. Stat. § 1-82).
If you are seeking to file a Complaint in Small Claims court, you should state that you are not
seeking damages in excess of the jurisdictional maximum amount ($5,000). If you are seeking
damages between $5,000 and $10,000, you should file in District Court. If you are asking for more
than $10,000, you will need to file in Circuit Court.
3. Statement of Facts
A short, clear statement of facts is the most important part of your Complaint. Anyone can draft a
Complaint, but only you have an understanding of the facts. Take your time in drafting the
statement of facts, with an eye toward making it complete and persuasive.
Do not fill this section with pages of legal analysis or case citations that get in the way of the
description of what happened. In your statement of facts, use plain English to explain what
happened to you, describing key events in detail. Be sure to include facts about how you were
harmed by defendants’ actions.
Keep these general rules in mind:
•

•

•

Don’t over-sell: State facts that you know to be true or have objective reasons to believe to
be true. Describing your “hunch” that defendants conspired to injure you will undermine
your Complaint if you don’t have facts to back it up.
Be brief: By sticking to the facts, you can make your statement of facts shorter without
losing any important information. While the specifics of an incident that you are
complaining about may be important to talk about in detail, leave background facts out of
the Complaint.
Avoid bad facts: There are two sides to every story. Facts regarding your misconduct or
defendants’ possibly reasonable excuses need not be presented in your Complaint. However,
if bad facts are necessary for a complete picture of your claims, it may be better to set them
out in the beginning than to wait for them to come out later.

10

4. Listing of Claim(s)
This is the legal part of your Complaint. Set out each claim in a separate section that is titled with
the claim. Each section can summarize the facts that support the claim or simply “incorporate by
reference” the paragraphs of the Complaint covering the statement of facts. List every claim that
you think may reasonably apply to your case. For a listing of claims commonly asserted by
prisoners, see the Appendices regarding Common Law claims.
5. Relief
Your Complaint should have a section titled “Relief.” In it, include all of the things you want the
Court to do. Possibilities include:
• Damages. You may seek money to compensate you for your loss (compensatory damages)
and, in certain circumstances, you can request money as a punishment for defendants’
actions (punitive damages). You do not have to say how much money you want unless the
court’s jurisdiction depends on a minimum or maximum amount. Even then, you can request
damages “in excess of $75,000” or “of less than $5,000.”
North Carolina State courts require that if the amount you are asking for is more than
$10,000, you simply say that you are demanding relief “in excess of ten thousand dollars.”:
In all negligence actions, and in all claims for punitive damages in any civil action,
wherein the matter in controversy exceeds the sum or value of ten thousand dollars
($10,000), the pleading shall not state the demand for monetary relief, but shall
state that the relief demanded is for damages incurred or to be incurred in
excess of ten thousand dollars ($10,000). N.C. Gen. Stat. § 1A-1, Rule 8(a)(2).
•

Issue Declarations. The Court can be asked to declare that a law or regulation has been
broken or that your rights have been violated. This is not always necessary, but is sometimes
included as a requirement to obtaining the relief you want.

•

Equitable Relief. The Court can order the parties to take certain actions or not to take
certain actions. Be careful to ask for equitable relief only from an individual or institution
that can actually provide it. (A guard can’t change an operational procedure, but the warden
or GEO Group can.)

•

A Catch-All. Consider asking for “such other and further relief the Court deems justified.”
If you do not ask for relief, many courts will not grant it. When you draft your Complaint, it
is sometimes difficult to imagine all the possible remedies to your problem. By including
this catch-all phrase, you provide the Court the ability to order a remedy that satisfies your
concerns.

6. Request for a Jury Trial
If you want a jury if you go to trial, ask for that right in the Complaint. If you do not, you may not
be able to get a jury later.
11

7. Signature
Unless you are represented by an attorney, you must sign your own Complaint. Be sure that at least
one of the Complaints that you mail to the court includes your original signature (not a photocopy
of your signature). Signing in blue ink helps the court recognize an original signature.

8. Attachments
Attach copies of all your completed grievances and the responses you receive. Keep the originals
for your records in case you need them later. If the last prison response does not state that all
administrative remedies have been exhausted, consider including a copy of RCI’s grievance
procedures or your affidavit (or, in federal court, a sworn declaration) that all administrative
remedies available to you have been exhausted. You don’t have to attach other evidence. Proof of
exhaustion is enough.
Note: To be of use in court, a written statement must (1) be made on personal knowledge, (2) set
forth such facts as would be admissible in evidence, and (3) show that the person making the
statement (the affiant) is competent to testify to the matters stated in the affidavit. Additionally, the
affidavit must be signed and dated, and must be notarized by a notary public.4 Finally, in order that
the witness may be located if his testimony should be needed in the future, it is important that a
permanent address be given (either that of the declarant's spouse or a family member through whom
he can be located). In this regard, a prison I.D. number, a social security number, and/or a date of
birth, can often be helpful.

4

Under 28 U.S.C. Section 1746, many of the purposes for which a notary public is required to formalize a written
document can be equally satisfied for use in a federal court by a declaration. However, the declaration must be signed
and dated, and must contain the following phrase: “I declare under penalty of perjury that the foregoing is true and
correct.”

12

SHOULD I SUE IN STATE OR FEDERAL COURT?
Assuming you meet the jurisdictional requirements and have a choice of whether to sue in State or
Federal court, which should you choose?
Several things may make State court more attractive to you:
(1) It’s cheaper to file than in Federal court.
(2) State courts are used to handling North Carolina state claims.
(3) If you aren’t suing for more than $75,000, and if you don’t have diversity jurisdiction, you
can’t sue in Federal Court. (Diversity jurisdiction may exist when the parties are from
different states, for example. See the discussion beginning on page 8 under “Jurisdiction.”)
On the other hand there are several other factors which might make it better to sue in federal court:
(1) Judges in North Carolina are elected. Federal Judges are appointed for life and don’t have to
worry about being voted out of office for unpopular rulings in favor of prisoners.
(2) Federal Judges deal with a wider variety of cases and interests.
(3) Federal Judges have more resources at their disposal. In particular, they are likely to have
more law clerks that are available to do research, and have the interest and the opportunity to
examine an issue more thoroughly, potentially resulting in a more favorable outcome for
prisoners.
(4) Federal Judges are generally better versed in the law governing prisoner rights.
Only you can make the decision about where to file.

42 U.S.C. §1983 and Bivens Actions are not Available to
Prisoners at RCI
RCI is operated by the Geo Group under contract with the
Federal Bureau of Prisons. 42 U.S.C. §1983 is only
applicable to state actors and does not apply to the federal
government and Bivens is not applicable to employees of a
private contractor like the Geo Group. Do not bring one of
these kinds of cases. YOU WILL LOSE.

13

14

FILING A COMPLAINT IN FEDERAL COURT
A civil action in federal court is begun by filing your Complaint. If you give your paper a different
title or no title at all (see the discussion of “caption” in “Preparing Your Complaint”), the court may
send it back to you or write the word “Complaint” on the front.5
42 U.S.C. §1983 and Bivens Actions are not Available to
Prisoners at RCI
RCI is operated by the Geo Group under contract
with the Federal Bureau of Prisons. 42 U.S.C. §1983 is only
applicable to state actors and does not apply to the federal
government. Bivens is not applicable to employees of a
private contractor like the Geo Group. Do not bring one of
these kinds of cases. YOU WILL LOSE.
Paying the Filing Fee
It costs $350 to file a Complaint in federal court. There is no charge for filing other papers. If you
cannot afford to pay the filing fee up front, you can file a request to proceed without prepayment of
the filing fee, also known as a motion to proceed in forma pauperis (IFP). You have to show you
cannot afford to pay the filing fee without hurting your ability to meet the basic necessities of life.
RCI is supposed to provide all of the necessities of life. Courts differ about the amount of money
an inmate can have and still be allowed to proceed IFP. Typically, if you do not have substantially
more than $350 in your inmate trust fund account, you qualify to proceed without prepayment of the
filing fee.
Keep in mind that even if you are granted IFP status in federal court, you ultimately will still have
to pay the filing fee. Monthly installments will be taken out of your inmate trust fund account and
sent to the federal court. You must allow prison officials to make this deduction or your Complaint
will be dismissed.
Aside from not having to pay the entire $350 filing fee up front, the two biggest advantages to
proceeding IFP are that:
(1) the district court will arrange for and pay to have all the defendants served with a summons
and Complaint; and
(2) you will be eligible to receive appointment of counsel without the need to establish that you
cannot afford to hire an attorney.6

5

There is one other type of civil proceeding that federal courts handle that may sound familiar – a petition for a writ. A
writ is an order that commands someone to do something. Federal courts have the authority to issue different kinds of
writs. The most common writs are for habeas corpus and mandamus. This booklet is not designed to assist with writs of
habeas corpus to challenge your sentence or conviction.

15

There are some disadvantages to proceeding IFP:
(1) You will be required to comply with all of the pre-filing requirements of the PLRA, 28
U.S.C. § 1915(b), such as allowing the court to look at your prison account and allowing the
prison to forward money from your account to the court; and
(2) The filing of your Complaint will be delayed from 1 to 3 weeks or more while the court
considers your application to proceed IFP and whether the Complaint complies with the
PLRA;
If you want to file your Complaint IFP you will need to submit to the court:
(1) A completed and signed form to request to proceed IFP. (A copy of this form is included in
Appendix D).
(2) A certified copy of your inmate trust fund account with your income and average balance
over the past six months. You can get a copy of this account from the Finance Office at RCI.
(3) A completed and signed authorization form that permits RCI to withdraw up to $350 from
your account.

6

There is no constitutional right to have counsel appointed in a civil case. The appointment of counsel in civil cases
before the federal court is discretionary, and is allowed only when exceptional circumstances are present. Whisenant v.
Yuam, 739 F.2d 160 (4th Cir. 1984); Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975). Exceptional circumstances exist
where: (1) the case is complex; and (2) the plaintiff is unable effectively to present his case without the assistance of
counsel. Whisenant, 739 F.2d 160, 163. There is also an understood requirement that the case have merit.

16

FILING A COMPLAINT IN NORTH CAROLINA STATE COURT
The general framework for preparing a Complaint, described above, applies to lawsuits filed in any
state court. Every state has its own procedures that should be followed. Here is some general
information about filing Complaints in North Carolina.
1. Organization of the court system
For civil actions, the North Carolina state court system is made up of four levels:
• District Courts, where some trials are held (Small Claims Court is a sub-part of the District
Court);
• Superior Courts, where other trials are held;
• One Court of Appeals, where appeals are heard by three judge panels; and
• One Supreme Court, where appeals from the Appellate Courts are heard.
The fee for filing a Complaint varies depending on the division in which you file your Complaint.
Listed below is a summary of the types of cases each court hears and the appropriate filing fee
(effective as of 7/1/07):
•
•
•

Superior Court (claims greater than $10,000):
District Court (claims of $10,000 or less):
Small Claims Court (claims of $5,000 or less):

$ 109*
$ 89*
$ 75*

*Plus $15 for each item of civil process (the summons and Complaint) served by the
sheriff. (Service fees are not collected from people who are permitted to proceed in
forma pauperis – that is, as a poor person.)
Filing Fees change often so check before filing.
2. Where to file your Complaint
Regardless of how much money you ask for in damages, mail your Complaint to:
Clerk of Superior Court
Hertford County Courthouse
King Street
P.O. Box 86
Winton, NC 27986
3. What to file with your Complaint
In order to begin your lawsuit, you must file your Complaint with three things:
•
•
•

A completed “civil action cover sheet;”
A completed summons for each defendant named in the Complaint; and
The filing fee or a completed “Petition to sue as an indigent.”
Forms for each of these are included in Appendix E.

17

18

SERVING THE DEFENDANTS WITH YOUR COMPLAINT
Filing your Complaint with the court is only the first step. The defendants you have named in your
lawsuit must also receive “service of process”–the term for officially notifying the defendants that
they have been sued by providing each of them a copy of the Complaint and a summons. If you
filed your Complaint in federal court and have been allowed to proceed in forma pauperis, the court
is responsible for seeing that all defendants receive service of process. See Fed. R. Civ. P. 4(c)(2).
Otherwise, you must serve all defendants.
The rules for service of process must be followed carefully. The Federal Rules of Civil Procedure
and the North Carolina rules governing service of process are roughly the same. This section
summarizes some of the more important features of these rules, but you should review the relevant
rules themselves before attempting to serve the defendants. Read Fed. R. Civ. P. 4 and N.C. R. Civ.
P. 4, both of which can be found in Appendix C.
The summons
Generally, service of process requires sending a copy of the Complaint and a summons to each
defendant. A “summons” is a formal document that is signed by the Clerk. You must use the proper
summons form for the court in which you file your Complaint. A copy of the federal summons form
is included in Appendix D, and the summons form for North Carolina state courts is included in
Appendix E. These forms are not effective until signed by the Clerk of the court.
You should copy the appropriate form once for each defendant and complete the portions of the
form that you can (i.e., caption of Complaint, name and address of the defendant to be served with
the summons) and send to the Clerk’s Office with your Complaint. If properly completed and your
Complaint is not summarily dismissed, the Clerk will sign the summons and return it to you.
Serving the Summons and Complaint
Being incarcerated limits your ability to serve the defendants, but it is not impossible. Generally,
service can be made personally or by certified mail. Personal service (handing a copy of the
summons and Complaint to each defendant) can be made by a friend or you can hire a process
server. A list of process servers is included in Appendix F.7 Certified mail is acceptable so long as
you receive a return receipt showing service on the proper person.
Regardless of how you serve each defendant, you are responsible for filing with the court a copy of
the summons with the back page (called the “return of service”) properly completed, showing that
the summons and Complaint were served on the defendant named in the summons.
You serve the summons and Complaint at the address listed in your Complaint for each defendant.
For individuals, you should list their home or work address. There are special rules, however, for
serving corporations and government agencies:
7

D.C. Prisoners’ Project has no information as to the quality of these process servers. We provide this list simply as a
service to you.

19

•

Corporations receive service of process on the corporation’s “registered agent for service of
process” or a corporate officer or managing or general agent. The identity of the registered
agent for service of process can be obtained from the Secretary of State in which the
corporation is incorporated. For the Geo Group, the current registered agent for service of
process to whom you can serve your summonses and complaint is:
John J. Bulfin
Senior VP and Secretary
The Geo Group, Inc.
621 NW 53rd Street, Suite 700
Boca Raton, FL 33487

If you are not filing IFP, it can be difficult to serve all of the defendants. If it seems like a lot of
trouble, don’t give up. Defendants may waive all of the technical requirements of service if they
actually receive a copy of the Complaint and have sufficient time to answer. If you file in Federal
Court, there is a form you can send to the defendants asking them to waive the technical
requirements of service. That form is in Appendix D. You can ask the court to appoint someone to
serve the defendants for you by filing a motion, but don’t delay in getting the defendants served.
In federal court you have 120 days from the date the Complaint is filed in which to serve all of the
defendants. Fed. R. Civ. P. 4(m). In North Carolina courts, you only have 60 days from the date the
summons is “issued” (i.e., signed by the clerk) in which to serve all of the defendants. N.C. R. Civ.
P. 4(c). You can move for an extension of these deadlines, but you have to explain the efforts you
have made to serve all of the defendants. N.C. R. Civ. P. 4(d).
Serving papers other than the Complaint
Every piece of paper that you file with the court must also be sent to all of the defendants. However,
only the Complaint requires service by the cumbersome methods detailed above. Once a defendant
has filed something with the court, you should mail copies of your filings to any attorney that has
filed an appearance on behalf of any defendant. Include this information in a “certificate of service”
attached to the end of every paper you file. See Filing and Responding to Motions at page 20.

20

THE DEFENDANTS’ ANSWER & YOUR RESPONSE
A defendant’s response to a Complaint is called an “Answer.” An Answer must respond to every
factual allegation of the Complaint or else the allegation is deemed to be admitted. In addition, an
answer must assert most affirmative defenses (such as failure to properly serve the Complaint, lack
of personal jurisdiction, or statute of limitations) or else the defense is waived.
In federal court, defendants have 20 days to file an answer from the date the summons is received.
In North Carolina state courts, all defendants have 30 days to answer. Extensions to the time to
answer are routinely sought and routinely granted by the courts. However, there are several reasons
why a defendant will not file an answer at all:
•

•

Defendant moves to transfer the case. Technically, this kind of motion does not substitute
for an answer, but many defendants file a motion to transfer without filing an answer. While
you must respond to defendant’s motion, you should demand that an answer be filed.
Defendant moves to dismiss the Complaint, for “summary judgment” or for “judgment on
the pleadings.” These are motions asking the judge to say they win without going to trial.
Although the defendant may file an answer with one of these motions, these motions
substitute for an answer and the defendant will not be required to answer until the motion is
denied.
When one of these motions is filed instead of an answer, consider whether you should file an
amended Complaint to correct any obvious errors identified in the motion.

No reply to an answer
When a defendant files an answer, you do not need to file any response unless the answer contains a
counterclaim (that is, a claim against you), or the court orders you to file a reply. See Fed. R. Civ. P.
7(a). When a defendant files a motion instead of an answer, you must respond to the motion or else
the court may grant the motion as conceded. The following section discusses how to file and
respond to motions.

21

22

FILING AND RESPONDING TO MOTIONS
A “motion” is a request for the court to do something. In general, if you want the court to do
something, you must file a motion. Title your motion “Plaintiff’s Motion for ______” filling in the
blank with what you want the court to do. Listed below are some motions that you may wish to file
at some point during your case, with a brief description of the standards you must meet to have it
the motion granted. This is not a complete list of all motions. As a pro se litigant, you should not
worry about formal names. Rather, try to use simple English to convey your request.
Motion to Proceed In Forma Pauperis: use one of the forms in the Appendices or draft your
own that contains:
(a) a complete listing of your assets (money and property);
(b) a listing of your debts; and
(c) a statement that you cannot afford to pay the filing fee or other fees associated with your
case.
Motion for Appointment of Counsel: Unlike criminal cases, you do not have the right to an
attorney in a civil case. Different courts have different standards for granting this
discretionary relief. Generally, your motion should explain:
(a) the merits of your case and how it may help you and others;
(b) why you can’t pay for an attorney;
(c) your efforts to find an attorney to represent you without payment; and
(d) the difficulty you will have in representing yourself because of the complexity of the
legal issues, the amount of factual discovery needed, your lack of education, your
difficulties with the English language or any disabilities which will make it hard for you
to prosecute your case.
Motion for Extension of Time: If you need more time to respond to a motion or to comply
with a court order, do not hesitate to ask for a reasonable extension of time. Try to file the
request before the deadline. Brief extensions are routinely granted, particularly when it is the
first request for an extension and has been filed before the original deadline passed.
You will increase your chances of obtaining an extension if you explain to the court why
you are having difficulty filing a response in the time allowed (e.g., a lockdown,
administrative detention, limitations on the use of the library) and explain why you will be
able to respond within the extension you request.
Responding to Defendants’ Motions
If you agree with the defendant’s motion, you can simply not respond and allow the court to grant it
or you can file a notice that you consent to defendant’s motion. Consenting may speed up the
court’s decision on the motion. It also shows that you are fair and reasonable. However, you will
probably disagree with most motions filed by a defendant.
You have a limited amount of time to respond to any motion, but the amount of time varies
depending on the court and the type of motion. Check the local rules of the court to determine how
23

much time you have to respond. If you cannot figure out how much time you have to respond, try to
respond as quickly as you are able and include a section in your response detailing any unusual
difficulty you had in filing your response if it takes you more than two weeks.8
When you receive a motion, read the motion carefully and try to read all statutes, rules or cases
cited in the motion. See if they say what the defendants say they do. See if the cases are really about
situations like yours. Before starting to write your response, take some time to list the things in the
motion with which you agree and disagree. If you disagree with the legal standards involved, you
will need to research the laws and cases cited in the motion to challenge them.
If you disagree with the facts, you may need to submit evidence to support your side. Try to make
your points plainly without overstating your case. You don’t have to use big words – in fact, it’s
better not to. And make your sentences short and simple.
The two motions that defendants most often file against prisoners are motions to dismiss and
motions for summary judgment. Although similar motions, the standards that must be met to have
these two motions granted are very different:
Motion to Dismiss: This kind of motion looks only at the allegations of your Complaint and argues
that it is somehow defective. The defendant typically argues that your Complaint does not state a
legal claim. In making such a motion, the defendant will ordinarily identify the claims made in your
Complaint and the standards for stating those claims.
In responding to this kind of motion, identify all claims that the defendant did not address (or may
have overlooked) and explain how you have met the standards for stating the claims in your
Complaint. For those claims that were addressed, consider whether the defendant has a point.
Abandoning weak or baseless claims can enhance your credibility with the Defendant(s) and the
court. Otherwise, explain to the court the reason that your claims should be considered. Do not
hesitate to amend your Complaint to include allegations that will clarify or state another claim or
identify other defendants. You amend a Complaint by asking the court’s permission in your own
motion and by submitting a new, better written Complaint.
Motion for Summary Judgment: This is the kind of motion in which the Defendant(s) argues that
you don’t have enough evidence to prove your point. In response, you can argue either that the
motion ignores questions of fact, that you have evidence to prove your claims, or that you need time
to get the evidence that will prove your claims. (Sometimes you can argue all of these). You should
file all evidence that you have to support your claims in response to a motion for summary
judgment. In particular, you should prepare a sworn statement that you sign, either as an affidavit
or, when allowed, a sworn declaration, that states the evidence to which you would testify if the
court held a hearing.

8

For purposes of meeting filing deadlines in federal court, an inmate’s legal papers are considered “filed” as of the date
they are delivered to a prison official for mailing. Houston v. Lack, 487 U.S. 266, 270-271 (1988)(“inmate mailbox
rule”).

24

Signing Documents to be Filed in Court
The Rules of Civil Procedure (both State & Federal) require that every document filed with the
court bear the name, address, and signature of the person who files it. See, for example, Fed. R. Civ.
P. 11, NC R. Civ. P. 11. Please be aware that your signature on such a pleading constitutes a
“certificate that to the best of [your] knowledge, information, and belief formed after a reasonable
inquiry, [the document] is well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law, and that it is not interposed for
any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation.”

The Certificate of Service
You must mail a copy of every paper you file with the court to all defendants and include a
statement that you have done so in the paper itself. Fed. R. Civ. P. 5, NC R. of C. P. 5. This is
commonly called the “certificate of service” and it is usually the last page of every document filed.
You can simply include a statement below your signature that “I mailed a copy of this paper to
counsel for all parties on [date].” However, the rules of civil procedure technically require a little
more9, and attorneys typically take a more formal approach to the requirements of this rule, such as
the following:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of
[title of your paper being filed] was served by first
class mail, postage prepaid, on the date indicated
below upon the following counsel of record:
[Name and address of counsel]
____________
Date

____________________
Your name

9

“Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly
addressed wrapper in a post office or official depository under the exclusive care and custody of the United
States Postal Service. . . A certificate of service shall accompany every pleading and every paper [filed in
court]. The certificate shall show the date and method of service or the date of acceptance of service and shall
show the name and service address of each person upon whom the paper has been served. . . .” N.C. Gen. Stat.
§ 1A-1, N.C. Rule of Civil Procedure 5(b)

25

26

DISCOVERY
Discovery is anything that you do to obtain evidence to support your case. Informal discovery
includes talking with witnesses, copying information from newspapers or other public sources, and
keeping careful notes of things that you have seen or heard that are relevant to your claims. You
should begin informal discovery long before you file your Complaint.
Formal discovery is a legal process which provides a few different ways to obtain evidence from
defendants. You can ask for discovery of anything that is relevant to your case. There are four key
types of discovery:
Interrogatories: these are a list of questions directed to the defendant. Fed. R. Civ. P. 33;
N.C. R. Civ. P. 33.
Document Requests: these are a list of documents you want from a defendant. Fed. R. Civ.
P. 34; N.C. R. Civ. P. 34.
Requests for Admissions: these are a list of facts to which you believe a defendant may
admit. Fed. R. Civ. P. 36; N.C. R. Civ. P. 36.
Depositions: this is an interview of a witness taken under oath and recorded by a
stenography or video camera. Fed. R. Civ. P. 30; N.C. R. Civ. P. 30. You can also do a
deposition with written questions. Fed. R. Civ. P. 31; N.C. R. Civ. P. 31.
For prisoners who are representing themselves, the most important discovery tools are
interrogatories and requests for documents. Defendants generally admit little or nothing, and courts
will not ordinarily permit prisoners to conduct depositions.
Typically, courts do not allow the parties to serve discovery on each other until after some initial
conference is held or a motion to dismiss is denied. See Fed. R. Civ. P. 26(a)(1)(E)(iii) (action filed
by prisoner pro se is exempt from initial disclosures, discovery planning conference). Formal
discovery is mailed to defendants, but it is not filed with the court unless it is being attached to a
motion or a response to a motion.
If you get to the point where you are in discovery, feel free to write the D.C. Prisoners’ Project for
more advice.

27

28

TRIAL
The vast majority of civil cases are settled by the parties or decided by the judge without a trial.
Only if there are disputed issues of fact and the parties cannot agree to a settlement will a civil case
go to trial.
How to conduct a trial is beyond the scope of this booklet. There are numerous rules governing
witnesses, whether you have a right to a jury, how the jury is chosen, and how evidence is admitted
(and objected to) during the trial.
If you are going to go to trial, ask again for the court to appoint an attorney for you.
Please write us. We cannot make any promises, but maybe we can find you help.

29

30

OTHER RESOURCES
North Carolina Prisoner Legal Services (NCPLS) is a non-profit law firm that serves North
Carolina prisoners. For a fee, NCPLS provides representation to federal prisoners in select cases
challenging illegal convictions and sentences, or in cases where serious injury resulted from
constitutional violations. You can contact NCPLS by writing to P.O. Box 25397, Raleigh, NC
27611.
The Public Defender Service for the District of Columbia has several divisions that may be able
to help you. The Community Defender Division houses the Institutional Services Program (ISP) and
the Community Re-entry Program (CRP). The ISP monitors conditions in the BOP and protects the
legal rights of prisoners and the CRP responds to the legal and social needs of those returning home
from prison. You can reach the Community Defender Program at 680 Rhode Island Avenue, NE,
Suite H-5, Washington, DC 20002. The telephone is (202) 824-2801.
The Special Litigation Division of the Public Defender Service addresses systematic criminal
justice issues, including trial practices and the like. The main Trial Division represents people in
criminal trials. The Parole Division represents people in revocation of parole hearings. You can
reach these divisions by writing 633 Indiana Ave., NW, Washington, DC 20004. The phone number
is (202) 628-1200.

31

32

APPENDIX A:
GLOSSARY OF TERMS
Affidavit – a statement made under oath and signed by the author in the presence of a
notary public. Federal and District of Columbia courts allow sworn declarations (see
below) in place of affidavits due to the difficulty in locating a notary public.
Allegations – statements of fact made by a party, but not proven.
Alternative Dispute Resolution (“ADR”) – a process by which the parties to a lawsuit
attempt to reach a settlement outside the formal court process. ADR typically involves
working with a mediator, a person who works with the parties to resolve their differences
mutually. This is a useful process that is not ordinarily available in prisoner litigation
because of the power dynamics between guards and prisoners. (Officers are often
concerned that compromise will undermine their authority over prisoners.)
Answer – the defendant’s response to (and usually a denial of) the plaintiff’s Complaint.
The answer admits or denies the claims in the plaintiff’s Complaint.
Appeal – a legal action that seeks review of a lower court decision.
Appellant – the side that lost and has filed an appeal.
Appellee – generally, the side that won and whose victory is appealed by the losing side.
Burden of Proof – the duty to prove disputed facts. In civil cases the burden is on the
plaintiff to prove the facts by a “preponderance” of the evidence (that is, the plaintiff’s
version of the facts is more likely than the defendant’s).
Civil – not criminal. In a civil action, one person or entity is suing another, usually for
money damages. Civil cases do not seek the deprivation of anyone’s life or liberty.
Clerk of Court – the person responsible for the paper flow and other administrative
functions of a court.
Common Law – law that comes from judicial decisions, not from some legislative act.
Sometimes called case law.
Complaint – the document filed in court that begins a lawsuit. A Complaint contains the
plaintiff's factual allegations and claims against the defendant.
Continuance – the postponement of an action pending in court to another date.

33

Damages – money awarded for an injury or loss due to the wrongful act or negligence of
another.
De Facto – Latin, meaning in fact or actually.
Defendant – In a civil action, the person or organization that the lawsuit is filed against.
If you file a lawsuit, the people you sue are the defendants.
Dismissal with Prejudice – prevents an identical lawsuit from being filed later.
Dismissal without Prejudice – allows a later filing of the same claims.
Dispositive motion – a motion that disposes of the case. Dispositive motions include
motions to dismiss, for summary judgment, and for judgment on the pleadings.
Evidence – documents, objects or testimony admitted in a trial to prove certain facts.
Habeas Corpus – Latin for “you have the body.” Most often, a writ of habeas corpus is a
judicial order forcing a prisoner’s warden to produce a prisoner for testimony (ad
testificandum) or to justify the prisoner’s continued confinement (ad subjiciendum).
In Camera – in a judge’s chambers, outside the presence of the jury, the public, and
usually, the lawyers.
In Forma Pauperis – Latin for “as a pauper.” You must pay the filing fee and other court
fees unless the court designates you as too poor to pay. Courts sometimes substitute the
English phrase “as an indigent” for in forma pauperis.
Injunction – a court order preventing someone from taking some action, or requiring
someone to act. A preliminary injunction is sometimes issued to prevent “irreparable
harm” while the judge determines whether a permanent injunction is justified.
Judgment – the decision of a judge or jury resolving a dispute and determining the rights
and obligations of the parties.
Jurisdiction – the power and authority of the court to hear certain cases.
Litigation – a controversy in a court.
Moot – not subject to a court ruling because the controversy has not actually arisen, or
has ended. When all of the relief sought by the plaintiff is unavailable or has been
obtained outside the litigation, the case is moot.
Motion – a document filed with the court seeking to obtain a ruling or an order from the
court that is favorable to the party filing the motion.

34

Notice – a written statement designed to notify the court and the other parties of
information about the case.
Party – the plaintiff or defendant in a case. The plaintiff is the party who files the lawsuit
and the defendant is the party who is being sued.
Plaintiff – the person who files a lawsuit. If you file a Complaint in court, you are the
plaintiff.
Preponderance of Evidence – evidence as a whole which shows the fact is more likely
than not.
Pro bono – Latin phrase meaning “for the good,” a short-hand reference to “pro bono
publico” (in the public interest). Legal assistance or representation that is provided free
of charge.
Pro se – Latin phrase meaning “for himself.” A party to a lawsuit that is not represented
by an attorney. If you file a lawsuit on your own, you are acting pro se.
Res judicata – Latin phrase meaning “a matter adjudged.” This is legal doctrine that
requires courts to accept certain final judgments by other courts as binding on them. It is
the civil equivalent of double jeopardy and prevents you from suing twice for the same
relief from the same defendants when you lost the first time “on the merits.”
Respondeat superior – Latin phrase meaning “let the master answer.” This is a legal
doctrine that requires an employer to answer to and pay any judgment for the torts (or
civil wrongdoing) of its employees.
Service of process – the way that defendants are officially notified that they have been
sued. Requires the delivery of a summons and Complaint to the defendant.
Statute of Limitations – a law that sets the time within which a lawsuit must be filed.
The deadline can vary, depending on the type of lawsuit.
Summary judgment – the granting of judgment for a party before trial.
Summons – a document issued by the Clerk of Court that is served on the defendant with
the initial Complaint and orders the defendant to answer.
Sworn declaration – a statement of fact or facts that is signed by the person making the
statement. A sworn declaration substitutes for an affidavit, but does not need to be
verified by a notary public. See 28 U.S.C. § 1746. A declaration may be used in federal
court in the same way that an affidavit can be used in state court, as evidence of the
matters stated in the document. (However, a declaration cannot be used in state court – an
affidavit verified by a notary public is required.)

35

Tort – a civil wrong. An injury against a person or property.
Venue – the particular county or district in which the court with jurisdiction may hear the
case.

36

APPENDIX B:
SUMMARY OF NORTH CAROLINA
STATE TORTS

37

38

The types of claims prisoners most commonly file are called “torts.” These claims
fall into two major categories–intentional torts and negligence. Each kind has certain
things that must be proven in order to win.
A.

Intentional Torts

Intentional torts require proof that the defendant intended to cause harm. Because
intent is a mental state, it can be difficult to prove. However, courts will consider
evidence of the defendant’s words and actions to prove intent.
1.

Assault or battery

An “assault” is a legal term for a threat to use force that causes you to have a
reasonable fear of offensive contact. A “battery” is the legal term used for a beating or
other offensive touching. To succeed in a claim of battery, you must prove that you
suffered: (1) a harmful or offensive contact from defendant; (2) defendant’s intent to
harm or offend; and (3) an injury caused by the contact. See Redding v. Shelton’s Harely
Davidson, Inc., 139 N.C. App. 816 (N.C. App. Ct. 2000) (citing 1 W. Haynes, North
Carolina Tort Law § 4-2 (1989)). Once you prove your part, the defendant will try to
prove that he has as a defense of mitigation or justification for the battery. For example,
the defendant could argue that he was provoked, his actions were privileged (because he
was acting as a correctional officer), or that he acted in self defense.
A police officer or prison guard is allowed to use force so long as the “means
employed are not in excess of those which [he] reasonably believes [are] necessary.”
Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C. 1993). The officer’s
judgment is to be reviewed “from the perspective of a reasonable officer on the scene,”
with allowance for the officer’s need to make quick decisions under potentially
dangerous circumstances. Id. This standard is similar to the excessive force standard
applied in the constitutional context. An officer has the privilege to commit what, at
common law, would be an assault (the threat of physical force), unless “the threatened
use of force is clearly excessive.” Jackson v. District of Columbia, 412 A.2d 948, 956
(D.C. 1980).
2.

Intentional Infliction of Emotional Distress

The elements of a claim of Intentional Infliction of Emotional Distress are
“(1) extreme and outrageous conduct by the defendant (2) which is intended to and does
in fact cause (3) severe emotional distress.” Guthrie v. Conroy, 152 N.C. App. 15 (2002)
(quoting Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992)); Jackson v.
District of Columbia, 412 A.2d 948, 956-57 (D.C. 1980). “A claim for intentional
infliction of emotional distress exists ‘when a defendant’s conduct exceeds all bounds
usually tolerated by decent society[.]’” Watson v. Dixon, 130 N.C. App. 47, 52-53, 502
S.E.2d 15, 19-20 (1998), on reh'g, 132 N.C. App. 329, 511 S.E.2d 37 (1999), aff'd, 352
N.C. 343, 532 S.E.2d 175 (2000) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254
S.E.2d 611, 622 (1979)). Conduct is extreme and outrageous when it is “so outrageous in

39

character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v.
Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332
S.E.2d 479 (1985). Remember, the bottom line is that you have to show that you are not
talking about just insults or even threats, but something so out of bounds that it is
unquestionably outrageous.

B. Negligent Torts
1.

Negligence

Negligence is when someone doesn’t do what they are legally supposed to do and
it hurts you somehow. In legal language, this is called the breach of a legal duty owed by
the defendant that proximately causes injury to the plaintiff. Tise v. Yates Construction
Co., 345 N.C. 456, 480 S.E.2d 677 (1997). You could allege negligence in hiring,
negligence in supervision, negligence in care, or another type of negligence.
To win, a plaintiff must show: (1) that defendant failed to take proper care in
something they were supposed to do for you; (2) the lack of care caused your injury; and
(3) a person of ordinary carefulness should have known that plaintiff’s injury was
probable under the circumstances. Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463
S.E.2d 567, 569 (1995). See also Gordon v. Garner, 127 N.C. App. 649, 661, 493 S.E.2d
58, 65 (1997). “A duty is defined as an obligation, recognized by the law, requiring the
person to conform to a certain standard of conduct, for the protection of others against
unreasonable risks.” Davis v. N.C. Dept. of Human Resources, 121 N.C. App. 105, 112,
465 S.E.2d 2, 6 (1995). To establish that negligence was a cause of the injury suffered, a
plaintiff must establish that the injury would not have occurred but for the defendant's
negligence. See Rorrer v. Cooke, 313 N.C. 338, 361, 329 S.E.2d 355, 369 (1985)
(concerning legal malpractice).
Establishing that defendant should have known that plaintiff would be injured
(that the injury was “foreseeable”) can be difficult. North Carolina uses the Foster rule
where there were other incidents similar to the one that injured plaintiff. In Foster, a
woman sued a shopping mall claiming that it was negligent and liable for her injuries
suffered when she was assaulted in the parking lot. The woman submitted evidence of
thirty-one crimes at the shopping mall in the year before her assault. The North Carolina
Supreme Court found that those other crimes proved the shopping mall knew a crime
could occur on its property. Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 642,
281 S.E.2d 36, 40 (1981). See also Murrow v. Daniels, 321 N.C. 494, 502, 364 S.E.2d
392, 398 (1988); Sawyer v. Carter, 71 N.C. App. 556, 322 S.E.2d 813 (1984); Brown v.
N.C. Wesleyan College, 65 N.C. App. 579, 583, 309 S.E.2d 701, 703 (1983); Urbano v.
Days Inn, 58 N.C. App. 795, 798-99, 295 S.E.2d 240, 242 (1982). You can make an
argument similar to this case, showing that whatever happened to you have foreseeable
because it had happened to other men before.

40

2.

Malpractice

Malpractice is the negligence of a trained professional. Any professional who
does not meet his or her legal duty to you and hurts you has committed malpractice.
When you are injured because of the negligence of your physician or another
health care provider, it is called medical malpractice. This includes any law suit based on
North Carolina law (whether in state court or in federal court under diversity jurisdiction)
that is “for damages for personal injury or death arising out of the furnishing or failure to
furnish professional services in the performance of medical, dental, or other health care
by a health care provider.” N.C. Gen. Stat. § 90-21.11.
Unfortunately, when you file a lawsuit for medical malpractice in North Carolina
(or in federal court based on North Carolina law), you need to certify that you have a
medical expert who will testify that the care you got was not up to standard. See NC Rule
of Civil Procedure 9(j); N.C. Gen. Stat. § 90-21.12; Wall v. Stout, 310 NC 184, 311
S.E.2d 571 (1984). Realistically, this probably means that it is impossible for a prisoner
to bring a pro se medical malpractice suit in North Carolina.
However, there are two possibilities of ways that you may be able to get around
this requirement. If, after looking at your facts and the law, you still want to try to bring a
medical malpractice claim against the health professionals at Rivers or against GEO
Group, you have two choices. You can either try to prove that your situation is one of Res
Ipsa Loquitur, or you can argue that the requirements in 9(j) are unconstitutional.
a. Res Ipsa Loquitor
The phrase, “res ipsa loquitur” is Latin and means “the thing speaks for itself.” It
means that the negligence is so obvious that you do not need an expert, because only
someone’s negligence could have caused the accident.
In other words, you must show, based on basic common sense, that absolutely no
specialized knowledge is necessary to show that a doctor’s conduct was negligent. This is
a very hard standard to meet. Here are some situations from North Carolina cases where
courts have used res ipsa loquitur to infer negligence:
•

A doctor leaving surgical instruments in the patient’s body. Tice v. Hall, 310 N.C.
589, 313 S.E.2d 565 (1984); Mitchel v. Saunders, 219 N.C. 178, 182, 13 S.E.2d
242, 244 (1941); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932);
Hyder v. Weilbaecher, 54 N.C. App. 287, 283 S.E.2d 426 (1981).

•

The death of a child following a tonsillectomy, Jackson v. Mountain Sanitarium,
234 NC 222, 67 S.E.2d 57 (1951).

•

A patient’s hand burned during ear surgery, Schaffner v. Cumberland County
Hosp. Sys., Inc. 77 N.C. App. 689, 692-93, 336 S.E.2d 116, 118-19 (1985).

41

•

A patient suffered nerve damage in hand following hysterectomy, Parks v. Perry,
68 N.C. App. 202, 207, 314 S.E.2d 287, 290 (1984).

As you can see, those cases are very extreme. If you are going to try to argue res
ispa loquitur, you should argue that your case is just as extreme. Generally, most medical
treatment involves some risk and no doctor can ever guarantee that everything will go
right. Medicine is also a very technical and scientific field. All medicines have side
effects. Every procedure has risk. It is only in the most obvious case that a jury could use
their own common sense to understand what happened, and those are the only cases that
you can use res ipsa loquitur.

b. Constitutional Argument against 9(j)
In most cases, you won’t be able to use res ipsa loquitur. If you want to file a
medical malpractice lawsuit about something that happened at Rivers, you will have to
argue that Rule 9(j) in unconstitutional, under both the North Carolina and United States
Constitutions. This is a very complicated argument and not one that is likely to be wellreceived by the North Carolina Courts. You will have to be responsible for your own
research on this topic.

3. Contributory Negligence
Under the law of North Carolina, the doctrine of “contributory negligence” is a
complete defense to a claim of negligence or medical malpractice. Under this legal
principle, if the injured person is responsible in any way for her injury then she is
completely barred from any recovery. See Cobo v. Raba, 347 N.C. 541, 495 S.E.2d 362,
365 (1998). Using this doctrine, the defendants could be expected to argue that your
conduct was somehow responsible for the injury you suffered. If the defendants prove
that you were even partly responsible, you will be completely barred from recovering any
money to compensate you for your injury.

42

APPENDIX C:
RULES AND FORMS FOR FILING IN
FEDERAL COURT
1. A selection of Local Civil Rules from the Eastern District of North Carolina
2.

A selection of relevant forms from the Eastern District of North Carolina

43

44

RULES OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
NORTH CAROLINA
CIVIL RULES

Rule 1.1. Scope and citation of local rules.
These local rules of practice shall govern the conduct of the United States District Court for the Eastern
District of North Carolina except when the conduct of this court is governed by federal statutes and rules. A
judge or magistrate judge, for good cause and in his or her discretion, may alter these rules in any particular
case. These rules shall be cited: These rules shall be cited: "Local Civil Rule ...., EDNC."

Rule 3.1. Subsequent litigation by parties proceeding in forma pauperis.
A plaintiff who has proceeded unsuccessfully in forma pauperis and had the costs of that litigation taxed
against him must demonstrate that he has paid or made a reasonable effort to pay those costs prior to being
authorized to proceed again in forma pauperis.
Rule 3.2. Denial of in forma pauperis applications.
In all civil actions in which the court denies a plaintiff's motion to proceed in forma pauperis, the plaintiff
shall be allowed 30 days to pay the requisite filing fee. If the plaintiff fails to pay the filing fee, the clerk
shall redesignate the action as a miscellaneous case and close the matter without further order from the
court.
Rule 5.1. Filing and service of papers by conventional means.
Unless otherwise specifically provided for, the original and one copy of all pleadings and other papers
required to be filed or served shall be filed in the office of the clerk in Raleigh, Greenville or Wilmington
regardless of the division to which the case is assigned. The original and three copies of all pleadings shall
be filed in actions assigned to three judge panels. In all cases, whenever a pleading (subsequent to the
complaint) or other paper is required to be filed with the clerk or with the court, a copy thereof shall be
served upon opposing parties as provided in FED. R. CIV. P. 5(b).
Rule 6.1. Motions for an extension of time to perform act.
All motions for an extension of time to perform an act required or allowed to be done within a specified
time must show good cause, prior consultation with opposing counsel and the views of opposing counsel.
The motion must be accompanied by a separate proposed order granting the motion.
Rule 7.1. Motion practice.
(a) Time for Filing.
Unless otherwise ordered by the court, all motions in civil cases, except those relating to the
admissibility of evidence at trial, must be filed on or before 30 days following the conclusion of the period
of discovery. If an extension of the original period of discovery is approved by the court, the time for filing
motions is automatically extended to 30 days after the new date unless otherwise ordered by the court.
(b) General Requirements.
All motions shall be concise and shall state precisely the relief requested. Motions shall conform to the
general motions requirements, standards and practices set forth in the applicable Federal Rules of Civil
Procedure and in Local Rule 10.1.
(c) Motions Relating to Discovery and Inspection.

45

No motions to compel discovery will be considered by the court unless the motion sets forth, by item,
the specific question, interrogatory, etc. with respect to which the motion is filed, and any objection made
along with the grounds supporting or in opposition to the objection. Counsel must also certify that there has
been a good faith effort to resolve discovery disputes prior to the filing of any discovery motions.
(d) Supporting Memoranda.
Except for motions which the clerk may grant as specified in Local Rule 77.2, all motions made other
than in a hearing or trial shall be filed with an accompanying supporting memorandum in the manner
prescribed by Local Rule 7.2(a). Where appropriate, motions shall be accompanied by affidavits or other
supporting documents.
(e) Responses to Motions.
Any party may file a written response to any motion. The response may be a memorandum in the
manner prescribed by Local Rule 7.2(a) and may be accompanied by affidavits and other supporting
documents. When the response is not a memorandum, the written response shall be accompanied by a
supporting memorandum in the manner prescribed by Local Rule 7.2(a) and, when appropriate, by
affidavits and other supporting documents.
(1) Non-Discovery Motions:.
Responses and accompanying documents shall be filed within 20 days after service of the motion in
question unless otherwise ordered by the court or prescribed by the applicable Federal Rules of Civil
Procedure.
(2) Discovery Motions:.
Responses and accompanying documents relating to discovery motions shall be filed within 10 days
after service of the motion in question unless otherwise ordered by the court.
(f) Replies.
(1) Non-Discovery Motions:.
Replies to responses are discouraged. However, Except as provided in Local Rule7.1(f)(2), a party
desiring to reply to matters initially raised in a response to a motion or in accompanying supporting
documents shall file the reply within 10 days after service of the response, unless otherwise ordered by the
court.
(2) Discovery motions:.
Replies are not permitted in discovery disputes. See Local Rule 26.1(d).
(g) Subsequently Decided Authority.
A suggestion of subsequently decided controlling authority, without argument, may be filed at any
time prior to the court's ruling and shall contain only the citation to the case relied upon if published or a
copy of the opinion if the case is unpublished.
(h) Affidavits.
Ordinarily, affidavits will be made by the parties and other witnesses and not by counsel for the
parties. However, affidavits may be made by counsel for a party if the sworn facts are known to counsel or
counsel can swear to them upon information and belief, and
(1) the facts relate solely to an uncontested matter; or
(2) the facts relate solely to a matter of formality and there is no reason to believe that substantial
evidence will be offered in opposition to the facts; or
(3) the facts relate solely to the nature and value of the legal services rendered for the party by such
counsel or counsel's law firm; or

46

(4) the refusal to accept the affidavit would work a substantial hardship on the party and the court finds
that its acceptance of the affidavit would not be such as to require that counsel or counsel's law firm be
disqualified from continuing to appear for the party.
(i) Hearings on Motions.
Hearings on motions may be ordered by the court in its discretion. Unless so ordered, motions shall be
determined without hearing.

Rule 7.2. Supporting memoranda.
(a) Form and Content.
A memorandum shall be in the form prescribed by Local Rule 10.1 and shall contain:
(1) a concise summary of the nature of the case;
(2) a concise statement of the facts that pertain to the matter before the court for ruling;
(3) the argument (brevity is expected) relating to the matter before the court for ruling with appropriate
citations in accordance with Local Rules 7.2(b), (c) and (d);
(4) copies of any decisions in cases cited as required by Local Rules 7.2(c) and (d); and
(5) where the supporting memorandum opposes a motion for summary judgment a short and concise
statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(b) Citation of Published Decisions.
Published decisions cited should include parallel citations (except for U.S. Supreme Court cases), the
year of the decision, and the court deciding the case. The following are illustrations:
(1) State Court Citation: Smith v. Jones, 238 N.C. 162, 77 S.E.2d 701 (1953).
(2) District Court Citation: Smith v. Jones, 141 F. Supp. 248 (E.D.N.C. 1956).
(3) Court of Appeals Citation: Smith v. Jones, 237 F.2d 597 (4th Cir. 1956).
(4) United States Supreme Court Citation: Smith v. Jones, 325 U.S. 196 (1956). United States Supreme
Court cases should be cited only to the United States Reports except that if a petition for certiorari or an
appeal was filed in the United States Supreme Court, the disposition of the case in that court should always
be shown. For example: Carson v. Warlick, 238 F.2d 724 (4th Cir. 1956), cert. denied, 353 U.S. 910(1957).
(c) Citation of Decisions Not Appearing in Certain Published Reports.
Decisions published outside the West Federal Reporter System, the official North Carolina reports and
the official United States Supreme Court reports (e.g. CCH Tax Reports, Labor Reports, U.S.P.Q., reported
decisions of other states or other specialized reporting services) may be cited if the decision is furnished to
the court and to opposing parties or their counsel when the memorandum is filed.
(d) Citation of Unpublished Decisions.
Unpublished decisions may be cited only if the unpublished decision is furnished to the court and to
opposing parties or their counsel when the memorandum is filed. The unpublished decision of a United
States District Court may be considered by this court. The unpublished decision of a United States Circuit
court of Appeals will be given due consideration and weight but will not bind this court. Such unpublished
decisions should be cited as follows: United States v. John Doe, 5:94-CV-50-F (E.D.N.C. January 7, 1994)
and United States v. Norman, No. 74-2398 (4th Cir. June 27, 1975).
(e) Length of Memoranda.
Except as otherwise provided by Local Rule 26.1(d), memoranda in support of or in opposition to a
motion (other than a motion regarding discovery) shall not exceed 30 pages in length excluding the
certificate of service page, without prior court approval. Memoranda in support of or in opposition to a

47

discovery motion shall not exceed 10 pages in length, excluding the certificate of service page, without
prior court approval. Reply memoranda (where allowed) shall not exceed 10 pages in length, excluding the
certificate of service page, without prior court approval. These limitations apply to memoranda submitted
in connection with an appeal in a bankruptcy proceeding.

Rule 10.1. Forms of pleadings, motions and documents.
All pleadings, motions, discovery procedures, memoranda and other papers filed with the clerk or the
court shall:
(a) be double-spaced on single-sided, standard letter size (81/2 x 11) paper, with all typed matter
appearing in at least 11 point font size with a one inch margin on all sides;
(b) state the court and division in which the action is pending;
(c) bear, except for initial filing, the case number assigned by the clerk;
(d) contain the caption of the case;
(e) if applicable, state the title of the pleading, motion, discovery procedure or document and the
federal statute or rule number under which the party is proceeding;
(f) contain the individual name, firm name, address, telephone number, fax number and State Bar
identification, where applicable, of all attorneys who appear for the filing party, including an attorney
making a special appearance pursuant to Local Rule 83.1(e);
(g) bear the date when signed by counsel;
(h) be signed by counsel as required by Local Rule 83.1(d). Local Rule 83.1(d) counsel may submit for
filing a facsimile copy of the signature of out of state counsel on pleadings provided that a signature page
with all original signatures is submitted to the court within two business days after the original filing;
(i) on all documents, the signature of parties and counsel shall be followed, on the line immediately
below, by the typed or printed name in the exact form as the signature. In preparation of documents for
signature by a judge or magistrate judge, a blank space shall be provided below the signature line in which
the name may be typed or printed; and
(j) have each page numbered sequentially. The following forms are examples to be followed:
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. ..:....-CV-....(..)
JAMES T. SMITH,
)
Plaintiff
)
) OFFER OF JUDGMENT
vs.
) FED.R. CIV. P. 68
)
AARON R. JONES et al.,
)
Defendants
)

(Closing)
This ... day of January, 2002.
.................
John B. Counselor
Attorney for Defendant
Abbot, Ball and Counselor
Attorneys at Law
200 Main Street

48

Post Office Box 50
Raleigh, North Carolina 27602
(919) 878-8787
FAX (919) 878-8000
State Bar No. ..........
Rule 10.2. Form of Exhibits to Motions.
Exhibits containing double-sided documents are not permitted and will not be considered by the court.
Condensed deposition transcripts are discouraged.

Rule 11.1. Frivolous or delaying motions.
Where the court finds that a motion is frivolous or filed for delay, costs may be assessed against the party
or counsel filing such motion.

Rule 11.2. Sanctions.
If an attorney or any party fails to comply in good faith with any local rule of this court, the court in its
discretion may impose sanctions.
Rule 26.1. Discovery.
(a) Discovery Materials Not to Be Filed Unless Ordered or Needed.
Discovery materials, including but not limited to disclosures and objections required under FED. R.
CIV. P. 26, depositions upon oral examination and interrogatories, requests for documents, notices to take a
deposition, expert witness designations, expert witness reports, requests for admissions, and answers and
responses thereto are not to be filed unless by order of the court or for use in the proceedings. All such
papers must be served on other counsel or parties entitled to service of papers filed with the clerk. The
party taking a deposition or obtaining any material through discovery is responsible for its preservation and
delivery to the court if needed or so ordered.
Conducting Discovery.
In all civil actions, the parties shall schedule and conduct discovery in accordance with the order
entered pursuant to FED. R. CIV. P.16. All discovery shall be propounded so as to allow the respondent
sufficient time to answer prior to the time when discovery is scheduled to be completed. To shorten
discovery time, it is expected that discovery procedures will proceed concurrently. After the time for
completing discovery has expired, further discovery may proceed only by order of the court and may, in no
event, interfere with the conduct of either the final pre-trial conference or the trial.
(c) Numbering Discovery Procedures.
Each time a particular discovery procedure is used, it shall be sequentially numbered (e.g., "First Set,"
"Second Set," "First Request," "Second Request," etc.) so that it will be distinguishable from a prior
procedure.
(d) Discovery Disputes - Expedited Briefing Schedule.
Any motion relating to a discovery conflict shall be handled on an expedited basis:
(1) Memoranda in support or in opposition to a discovery motion shall not exceed 10 pages in length,
excluding the certificate of service page, and shall comply with Local Rule 7.1(d).
(2) Responses and accompanying documents relating to discovery motions shall be filed within 10
days after service of the motion in question unless otherwise ordered by the court.
(3) Replies are not permitted in discovery disputes.

49

(4) In any instance in which oral argument is scheduled, counsel may be given the option of oral
presentations by telephone in lieu of a live appearance.
(e) Other Discovery Matters.
(1) Through appropriate written discovery, a party may obtain discovery of the existence and contents
of any insurance agreement under which any person carrying on an insurance business may be liable to
satisfy part or all of a judgment which may be entered in an action or to indemnify or reimburse for
payments made to satisfy the judgment. The discovery permitted shall include inspection and copying of
such agreement pursuant to FED. R. CIV. P. 34. Information concerning the insurance agreement is not by
reason of disclosure admissible in evidence at trial. For purposes of this subparagraph, an application for
insurance shall not be treated as part of an insurance agreement.
(2) In accordance with FED. R. CIV. P. 16(b), this court will routinely issue a request for a discovery
plan and will thereafter enter a scheduling order. The planning meeting of counsel required by FED. R.
CIV. P. 26(f) and the report of counsel contemplated by said rule are a mandatory part of the process of
formulating a scheduling order. A report in accordance with F.R.CIV. P. Form 35 shall be sufficient to
comply with FED. R. CIV. P. 26(f), although the parties may include greater detail or additional topics. If
the parties cannot agree on a joint report, each party shall file a separate Rule 26(f) report setting forth its
position on disputed matters. The parties may include in their report an agreement to mediate and a
proposed time table for conducting that mediation.
Rule 30.1. Deposition exhibits.
The parties are encouraged to mark all deposition exhibits consecutively during discovery without
reference to the deposition taken or the party using the exhibit.

Rule 32.1. Depositions for use at trial.
Depositions de bene esse may be taken outside of the period of discovery.

Rule 33.1. Form of interrogatories, responses and objections.
All interrogatories shall be served on opposing counsel. Counsel are encouraged to serve three copies of
all interrogatories on counsel for the respondent and provide sufficient space following each question in
which the respondent may state the response. If the space provided is not sufficient, additional pages shall
be attached. An objection to an interrogatory shall be made by stating the objection and the reason therefore
in the space provided for the response. Alternative methods of facilitating a response, such as requiring
interrogatories on a diskette, may be agreed to by counsel. The requirement for use of cover sheets in all
instances is eliminated.

Rule 39.2. Late developments in the case.
Counsel shall immediately inform the court, opposing counsel and counsel in the next succeeding two
cases on the calendar of any settlement or of any developments of an emergency which may necessitate a
motion for continuance.

Rule 73.1. Consent of parties to civil trial jurisdiction of magistrate judges.
(a) Unless the judge to whom a civil action is assigned directs otherwise, the clerk shall routinely assign to
a magistrate judge cases in which all parties consent to the exercise of civil trial jurisdiction pursuant to 28
U.S.C. § 636(c).

50

(b) Appeals from a judgment of a magistrate judge pursuant to 28 U.S.C. § 636(c)(4) shall lie to the judge
to whom the case was originally assigned.
Rule 77.2. Orders and judgments.
The clerk or deputy clerk is authorized to enter the orders and judgments listed below without further
direction of the court. However, such action may be suspended, altered or rescinded by the court for cause
shown.
(a) Consent orders for substitution of attorneys.
(b) Orders enlarging time periods in civil actions authorized to be entered by the court by FED. R. CIV.
P. 6(b).
(c) Orders extending for a reasonable amount of time the period within which an act must be
performed under the local rules of this court.
(d) Consent order dismissing an action, except in bankruptcy proceedings and in cases to which FED.
R. CIV. P. 23(c) and FED. R. CIV. P. 66 apply.
(e) Orders canceling liability on bonds.
(f) Orders changing the time of opening and adjourning court in the absence of the judge.
(g) Judgments by default as provided for in FED. R. CIV. P. 55(a) and 55(b)(1).
(h) Orders authorizing service of process by a person other than a United States Marshal pursuant to
FED. R. CIV. P. 4(c).
(i) Certification of law students and supervising attorneys pursuant to Local Rule 83.2.
(j) Any other motion, rule or order which may be granted of course or without notice.
(k) Pursuant to the provisions of 28 U.S.C. § 956, the clerk or a deputy clerk, when there is need to
serve a complaint and attachment upon a vessel, or any other process incident to admiralty and maritime
claims, either in rem or in personam, are empowered to grant and enter an order authorizing any sheriff or
any deputy sheriff, or other suitable person, to serve all such process.

Rule 83.3. Change of address.
All attorneys and pro se parties must notify the court in writing within 10 days of any change of address.
Failure to notify the court in a timely manner of an address change may result in dismissal of the action or
the imposition of such other relief that the court deems just and proper.

Rule 83.5. Correspondence.
Correspondence addressed to the court shall indicate that copies have been transmitted to all other parties
and failure to transmit the same to all other parties may result in sanctions by the court. Such
correspondence shall not become a part of the record in the case.
Rule 100.3. Civil contempt.
(a) Rights of Contemnor.
In all cases of civil contempt, the contemnor shall have due notice of the contempt charges,
opportunity to reply to the charges and notice of the date and place of hearing in open court from which the
public shall not be excluded.
(b) Summary Contempt Proceedings.

51

In contempt proceedings where the court may act summarily, the contemnor shall have the right to
defend against the charges and to offer evidence in the form of affidavits. The movant shall have the right
to offer similar evidence.
(c) Plenary Contempt Proceedings.
In contempt proceedings where the court may not act summarily, the presentation of evidence is
governed by Rule 1101 of the Federal Rules of Evidence. In no case of civil contempt, however, shall the
parties be entitled to trial by jury, but rather the district judge before whom the matter is tried shall find the
facts and enter a judgment or order in accordance with the provisions of the Federal Rules of Civil
Procedure applicable to non-jury cases.

52

OAO 240 (Rev. 10/03)

UNITED STATES DISTRICT COURT
District of

APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES AND AFFIDAVIT

Plaintiff
V.

CASE NUMBER:

Defendant
I,

declare that I am the (check appropriate box)

G petitioner/plaintiff/movant

G other

in the above-entitled proceeding; that in support of my request to proceed without prepayment of fees or costs
under 28 USC §1915 I declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief
sought in the complaint/petition/motion.
In support of this application, I answer the following questions under penalty of perjury:
1.

Are you currently incarcerated?

G Yes

G No

(If “No,” go to Part 2)

If “Yes,” state the place of your incarceration
Are you employed at the institution?

Do you receive any payment from the institution?

Attach a ledger sheet from the institution(s) of your incarceration showing at least the past six months’
transactions.
2.

3.

Are you currently employed?

G Yes

G No

a.

If the answer is “Yes,” state the amount of your take-home salary or wages and pay period and give the name
and address of your employer.

b.

If the answer is “No,” state the date of your last employment, the amount of your take-home salary or wages
and pay period and the name and address of your last employer.

In the past 12 twelve months have you received any money from any of the following sources?
a.
b.
c.
d.
e.
f.

Business, profession or other self-employment
Rent payments, interest or dividends
Pensions, annuities or life insurance payments
Disability or workers compensation payments
Gifts or inheritances
Any other sources

G Yes
G Yes
G Yes
G Yes
G Yes
G Yes

G No
G No
G No
G No
G No
G No

If the answer to any of the above is “Yes,” describe, on the following page, each source of money and state the
amount received and what you expect you will continue to receive.

AO 240 Reverse (Rev. 10/03)

4.

Do you have any cash or checking or savings accounts?

G Yes

G No

If “Yes,” state the total amount.
5.

Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or any other
thing of value?
G Yes
G No
If “Yes,” describe the property and state its value.

6.

List the persons who are dependent on you for support, state your relationship to each person and indicate
how much you contribute to their support.

I declare under penalty of perjury that the above information is true and correct.

Date

Signature of Applicant

NOTICE TO PRISONER: A Prisoner seeking to proceed without prepayment of fees shall submit an affidavit
stating all assets. In addition, a prisoner must attach a statement certified by the appropriate institutional officer
showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have
multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each
account.

Print

Save As...

Export as FDF

Retrieve FDF File

Reset

CIVIL COVER SHEET

OJS 44 (Rev. 11/04)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a)

PLAINTIFFS

DEFENDANTS

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number)

II. BASIS OF JURISDICTION
’1

’2

’ 3 Federal Question

U.S. Government
Defendant

’ 4 Diversity

(U.S. Government Not a Party)

’
’
’
’
’
’
’
’
’
’
’

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excl. Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

(Place an “X” in One Box Only)
TORTS

’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’

V. ORIGIN
’1

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
CIVIL RIGHTS
441 Voting
442 Employment
443 Housing/
Accommodations
444 Welfare
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
440 Other Civil Rights

DEF
’ 1

Citizen of Another State

’ 2

’ 2

Incorporated and Principal Place
of Business In Another State

’ 5

’ 5

Citizen or Subject of a
Foreign Country

’ 3

’ 3

Foreign Nation

’ 6

’ 6

FORFEITURE/PENALTY

PERSONAL INJURY
’ 362 Personal Injury Med. Malpractice
’ 365 Personal Injury Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS

’ 510 Motions to Vacate
’
’
’
’
’

Sentence
Habeas Corpus:
530 General
535 Death Penalty
540 Mandamus & Other
550 Civil Rights
555 Prison Condition

(Place an “X” in One Box Only)

Original
Proceeding

(For Diversity Cases Only)
PTF
Citizen of This State
’ 1

and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
’ 4 ’4
of Business In This State

(Indicate Citizenship of Parties in Item III)

CONTRACT

’
’

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff

(Place an “X” in One Box Only)

U.S. Government
Plaintiff

IV. NATURE OF SUIT
’
’
’
’
’

Attorneys (If Known)

’ 2

’ 610 Agriculture
’ 620 Other Food & Drug
’ 625 Drug Related Seizure
’
’
’
’
’
’
’
’
’
’
’

of Property 21 USC 881
630 Liquor Laws
640 R.R. & Truck
650 Airline Regs.
660 Occupational
Safety/Health
690 Other
LABOR
710 Fair Labor Standards
Act
720 Labor/Mgmt. Relations
730 Labor/Mgmt.Reporting
& Disclosure Act
740 Railway Labor Act
790 Other Labor Litigation
791 Empl. Ret. Inc.
Security Act

BANKRUPTCY

’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS

’ 820 Copyrights
’ 830 Patent
’ 840 Trademark
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609

’
’
’
’
’

OTHER STATUTES

’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’

Transferred from
’ 6 Multidistrict
another district
Removed from
Remanded from
Reinstated or
(specify)
State Court
Appellate Court
Reopened
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

’ 3

VI. CAUSE OF ACTION

’4

’ 5

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
810 Selective Service
850 Securities/Commodities/
Exchange
875 Customer Challenge
12 USC 3410
890 Other Statutory Actions
891 Agricultural Acts
892 Economic Stabilization Act
893 Environmental Matters
894 Energy Allocation Act
895 Freedom of Information
Act
900Appeal of Fee Determination
Under Equal Access
to Justice
950 Constitutionality of
State Statutes

’ 7

Appeal to District
Judge from
Magistrate
Judgment

Brief description of cause:

’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER F.R.C.P. 23
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
JUDGE
IF ANY
DATE

CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

Print

APPLYING IFP

Save As...

Export as FDF

JUDGE

Retrieve FDF File

MAG. JUDGE

Reset

JS 44 Reverse (Rev. 11/04)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required
by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use
of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint
filed. The attorney filing a case should complete the form as follows:
I.
(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only
the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving
both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time
of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases,
the county of residence of the “defendant” is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section “(see attachment)”.
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one
of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box
1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the
different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section
for each principal party.
IV.
Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient
to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select
the most definitive.
V.

Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box
is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes
unless diversity.
Example:
U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII.

Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

OAO 398 (Rev. 12/93)

NOTICE OF LAWSUIT AND REQUEST FOR
WAIVER OF SERVICE OF SUMMONS

TO: (A)
as

(B)

of (C)

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the
complaint is attached to this notice. It has been filed in the United States District Court for the
(D)
District of
and has been assigned docket number (E)
.
This is not a formal summons or notification from the court, but rather my request that you sign and return the
enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the
complaint. The cost of service will be avoided if I receive a signed copy of the waiver
within (F)
days after the date designated below as the date on which this Notice and Request
is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy
of the waiver is also attached for your records.

If you comply with this request and return the signed waiver, it will be filed with the court and no summons
will be served on you. The action will then proceed as if you had been served on the date the waiver is filed, except
that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on
which this notice is sent (or before 90 days from that date if your address is not in any judicial district of the United
States).
If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal
service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those
Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such
service. In that connection, please read the statement concerning the duty of parties to waive the service of the
summons, which is set forth at the foot of the waiver form.
I affirm that this request is being sent to you on behalf of the plaintiff, this
,
.

Signature of Plaintiff’s Attorney
or Unrepresented Plaintiff

A—Name of individual defendant (or name of officer or agent of corporate defendant)
B—Title, or other relationship of individual to corporate defendant
C—Name of corporate defendant, if any
D—District
E—Docket number of action
F—Addressee must be given at least 30 days (60 days if located in foreign country) in which to return waiver

day of

OAO 399

(Rev. 10/95)

WAIVER OF SERVICE OF SUMMONS
TO:
(NAME OF PLAINTIFF’S ATTORNEY OR UNREPRESENTED PLAINTIFF)

I,

, acknowledge receipt of your request
(DEFENDANT NAME)

that I waive service of summons in the action of

,
(CAPTION OF ACTION)

which is case number

in the United States District Court
(DOCKET NUMBER)

for the

District of

.

I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can
return the signed waiver to you without cost to me.
I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring
that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction
or venue of the court except for objections based on a defect in the summons or in the service of the summons.
I understand that a judgment may be entered against me (or the party on whose behalf I am acting) if an
answer or motion under Rule 12 is not served upon you within 60 days after

,
(DATE REQUEST WAS SENT)

or within 90 days after that date if the request was sent outside the United States.

(DATE)

(SIGNATURE)

Printed/Typed Name:
As

of
(TITLE)

(CORPORATE DEFENDANT)

Duty to Avoid Unnecessary Costs of Service of Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. A
defendant located in the United States who, after being notified of an action and asked by a plaintiff located in the United States to waive service of summons, fails to
do so will be required to bear the cost of such service unless good cause be shown for its failure to sign and return the waiver.
It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an improper place
or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the summons retains all defenses
and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action
has been brought.
A defendant who waives service must within the time specified on the waiver form serve on the plaintiff’s attorney (or unrepresented plaintiff) a response to the
complaint and must also file a signed copy of the response with the court. If the answer or motion is not served within this time, a default judgment may be taken against
that defendant. By waiving service, a defendant is allowed more time to answer than if the summons had been actually served when the request for waiver of service
was received.

OAO 440 (Rev. 8/01) Summons in a Civil Action

UNITED STATES DISTRICT COURT
District of

SUMMONS IN A CIVIL ACTION
V.

CASE NUMBER:

TO: (Name and address of Defendant)

YOU ARE HEREBY SUMMONED and required to serve on PLAINTIFF’S ATTORNEY (name and address)

an answer to the complaint which is served on you with this summons, within
days after service
of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you
for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the
Clerk of this Court within a reasonable period of time after service.

CLERK

(By) DEPUTY CLERK

DATE

OAO 440 (Rev. 8/01) Summons in a Civil Action

RETURN OF SERVICE
Service of the Summons and complaint was made by me(1)
NAME OF SERVER (PRINT)

DATE
TITLE

Check one box below to indicate appropriate method of service

G Served personally upon the defendant. Place where served:

G Left copies thereof at the defendant’s dwelling house or usual place of abode with a person of suitable age and
discretion then residing therein.
Name of person with whom the summons and complaint were left:

G Returned unexecuted:

G Other (specify):

STATEMENT OF SERVICE FEES
TRAVEL

SERVICES

TOTAL

$0.00

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information
contained in the Return of Service and Statement of Service Fees is true and correct.
Executed on
Date

Signature of Server

Address of Server

(1) As to who may serve a summons see Rule 4 of the Federal Rules of Civil Procedure.

Print

Save As...

Export as FDF

Retrieve FDF File

Reset

✎AO88 (Rev. 1/94) Subpoena in a Civil Case

Issued by the

UNITED STATES DISTRICT COURT
DISTRICT OF

SUBPOENA IN A CIVIL CASE
V.
Case Number:1
TO:

G YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to
testify in the above case.
PLACE OF TESTIMONY

COURTROOM

DATE AND TIME

G YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition
in the above case.
PLACE OF DEPOSITION

DATE AND TIME

G YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the
place, date, and time specified below (list documents or objects):

PLACE

DATE AND TIME

G YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES

DATE AND TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,
directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated,
the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER’S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT)

ISSUING OFFICER’S NAME, ADDRESS AND PHONE NUMBER

(See Rule 45, Federal Rules of Civil Procedure, Parts C & D on next page)
1

If action is pending in district other than district of issuance, state district under case number.

DATE

AO88 (Rev. 1/94) Subpoena in a Civil Case

PROOF OF SERVICE
DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained
in the Proof of Service is true and correct.

Executed on
DATE

SIGNATURE OF SERVER

ADDRESS OF SERVER

Rule 45, Federal Rules of Civil Procedure, Parts C & D:
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or expense
on a person subject to that subpoena. The court on behalf of which the subpoena
was issued shall enforce this duty and impose upon the party or attorney in breach
of this duty an appropriate sanction which may include, but is not limited to, lost
earnings and reasonable attorney’s fee.
(2) (A) A person commanded to produce and permit inspection and copying
of designated books, papers, documents or tangible things, or inspection of
premises need not appear in person at the place of production or inspection unless
commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d) (2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after service of
subpoena or before the time specified for compliance if such time is less than 14
days after service, serve upon the party or attorney designated in the subpoena
written objection to inspection or copying of any or all of the designated materials
or of the premises. If objection is made, the party serving the subpoena shall not
be entitled to inspect and copy materials or inspect the premises except pursuant
to an order of the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the person commanded
to produce, move at any time for an order to compel the production. Such an
order to comply production shall protect any person who is not a party or an
officer of a party from significant expense resulting from the inspection and
copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall
quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance,
(ii) requires a person who is not a party or an officer of a party to
travel to a place more than 100 miles from the place where that person resides, is
employed or regularly transacts business in person, except that, subject to the
provisions of clause (c) (3) (B) (iii) of this rule, such a person may in order to
attend

Print

Save As...

trial be commanded to travel from any such place within the state in which the
trial is held, or
(iii) requires disclosure of privileged or other protected matter and
no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information, or
(ii) requires disclosure of an unretained expert’s opinion or
information not describing specific events or occurrences in dispute and resulting
from the expert’s study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to
incur substantial expense to travel more than 100 miles to attend trial, the court
may, to protect a person subject to or affected by the subpoena, quash or modify
the subpoena, or, if the party in who behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be otherwise met
without undue hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated, the court may order appearance or
production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA.
(1) A person responding to a subpoena to produce documents shall produce
them as they are kept in the usual course of business or shall organize and label
them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is
privileged or subject to protection as trial preparation materials, the claim shall be
made expressly and shall be supported by a description of the nature of the
documents, communications, or things not produced that is sufficient to enable the
mmmdemanding party to contest the claim.

Export as FDF

Retrieve FDF File

Reset

APPENDIX D:
RULES AND FORMS FOR FILING IN
NORTH CAROLINA COURTS
1. A selection of Rules of Civil Procedure for the State of North Carolina
2. Civil Cover Sheet
3. Application to proceed in forma pauperis and related papers for prisoners
4. Summons
5. Motion Cover Sheet

65

66

STATE OF NORTH CAROLINA
A Selection of the Rules of Civil Procedure.

Article 2.
Commencement of Action; Service of Process, Pleadings, Motions, and Orders.
Rule 3. Commencement of action.
(a)
A civil action is commenced by filing a complaint with the court. The clerk shall enter the
date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.
A civil action may also be commenced by the issuance of a summons when
(1)
A person makes application to the court stating the nature and purpose of his action
and requesting permission to file his complaint within 20 days and
(2)
The court makes an order stating the nature and purpose of the action and granting
the requested permission.
The summons and the court's order shall be served in accordance with the provisions of Rule 4. When the
complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the
plaintiff so elects. If the complaint is not filed within the period specified in the clerk's order, the action
shall abate. (b) The clerk shall maintain as prescribed by the Administrative Office of the Courts a separate
index of all medical malpractice actions, as defined in G.S. 90-21.11. Upon the commencement of a
medical malpractice action, the clerk shall provide a current copy of the index to the senior regular resident
judge of the district in which the action is pending. (1967, c. 954, s. 1; 1987, c. 859, s. 2.)
Rule 4. Process.
(a)
Summons – Issuance; who may serve. – Upon the filing of the complaint, summons shall be
issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some
proper person for service. In this State, such proper person shall be the sheriff of the county where service
is to be made or some other person duly authorized by law to serve summons. Outside this State, such
proper person shall be anyone who is not a party and is not less than 21 years of age or anyone duly
authorized to serve summons by the law of the place where service is to be made. Upon request of the
plaintiff separate or additional summons shall be issued against any defendants. A summons is issued
when, after being filled out and dated, it is signed by the officer having authority to do so. The date the
summons bears shall be prima facie evidence of the date of issue.
(b)
Summons – Contents. – The summons shall run in the name of the State and be dated and
signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is
commenced. It shall contain the title of the cause and the name of the court and county wherein the action
has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to
appear and answer within 30 days after its service upon him and further that if he fails so to appear, the
plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and
address of plaintiff 's attorney, or if there be none, the name and address of plaintiff. If a request for
admission is served with the summons, the summons shall so state.
(c)
Summons – Return. – Personal service or substituted personal service of summons as
prescribed by Rule 4(j)(1) a and b must be made within 60 days after the date of the issuance of summons.
When a summons has been served upon every party named in the summons, it shall be returned
immediately to the clerk who issued it, with notation thereon of its service.
Failure to make service within the time allowed or failure to return a summons to the clerk after it has
been served on every party named in the summons shall not invalidate the summons. If the summons is not
served within the time allowed upon every party named in the summons, it shall be returned immediately
upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon
of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this
requirement shall not invalidate the summons.
(d)
Summons – Extension; endorsement, alias and pluries. – When any defendant in a civil action
is not served within the time allowed for service, the action may be continued in existence as to such
defendant by either of the following methods of extension:

67

(1)

The plaintiff may secure an endorsement upon the original summons for an
extension of time within which to complete service of process. Return of the
summons so endorsed shall be in the same manner as the original process. Such
endorsement may be secured within 90 days after the issuance of summons or the
date of the last prior endorsement, or
(2)
The plaintiff may sue out an alias or pluries summons returnable in the same manner
as the original process. Such alias or pluries summons may be sued out at any time
within 90 days after the date of issue of the last preceding summons in the chain of
summonses or within 90 days of the last prior endorsement.
(f)
Summons – Date of multiple summonses. – If the plaintiff shall cause separate or additional
summonses to be issued as provided in Rule 4(a), the date of issuance of such separate or additional
summonses shall be considered the same as that of the original summons for purposes of endorsement or
alias summons under Rule 4(d).
(g)
Summons – Docketing by clerk. – The clerk shall keep a record in which he shall note the day
and hour of issuance of every summons, whether original, alias, pluries, or endorsement thereon. When the
summons is returned, the clerk shall note on the record the date of the return and the fact as to service or
non-service.
(h)
Summons – When proper officer not available. – If at any time there is not in a county a
proper officer, capable of executing process, to whom summons or other process can be delivered for
service, or if a proper officer refuses or neglects to execute such process, or if such officer is a party to or
otherwise interested in the action or proceeding, the clerk of the issuing court, upon the facts being verified
before him by written affidavit of the plaintiff or his agent or attorney, shall appoint some suitable person
who, after he accepts such process for service, shall execute such process in the same manner, with like
effect, and subject to the same liabilities, as if such person were a proper officer regularly serving process
in that county.
(h1)
Summons – When process returned unexecuted. – If a proper officer returns a summons or
other process unexecuted, the plaintiff or his agent or attorney may cause service to be made by anyone
who is not less than 21 years of age, who is not a party to the action, and who is not related by blood or
marriage to a party to the action or to a person upon whom service is to be made. This subsection shall not
apply to executions pursuant to Article 28 of Chapter 1 or summary ejectment pursuant to Article 3 of
Chapter 42 of the General Statutes.
(i)
Summons – Amendment. – At any time, before or after judgment, in its discretion and upon
such terms as it deems just, the court may allow any process or proof of service thereof to be amended,
unless it clearly appears that material prejudice would result to substantial rights of the party against whom
the process issued.
(j)
Process – Manner of service to exercise personal jurisdiction. – In any action commenced in a
court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as
provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:
(1)
Natural Person. – Except as provided in subsection (2) below, upon a natural person
by one of the following:
a.
By delivering a copy of the summons and of the complaint to him or by
leaving copies thereof at the defendant's dwelling house or usual place of
abode with some person of suitable age and discretion then residing therein.
b.
By delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to be served or to accept service of
process or by serving process upon such agent or the party in a manner
specified by any statute.
c.
By mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to the party to be served,
and delivering to the addressee.
d.
By depositing with a designated delivery service authorized pursuant to 26
U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the
party to be served, delivering to the addressee, and obtaining a delivery
receipt.
(2)
Natural Person under Disability. – Upon a natural person under disability by serving
process in any manner prescribed in this section (j) for service upon a natural person

68

(6)

(7)

(8)

and, in addition, where required by paragraph a or b below, upon a person therein
designated.
a.
Where the person under disability is a minor, process shall be served
separately in any manner prescribed for service upon a natural person upon
a parent or guardian having custody of the child, or if there be none, upon
any other person having the care and control of the child. If there is no
parent, guardian, or other person having care and control of the child when
service is made upon the child, then service of process must also be made
upon a guardian ad litem who has been appointed pursuant to Rule 17.
b.
If the plaintiff actually knows that a person under disability is under
guardianship of any kind, process shall be served separately upon his
guardian in any manner applicable and appropriate under this section (j). If
the plaintiff does not actually know that a guardian has been appointed
when service is made upon a person known to him to be incompetent to
have charge of his affairs, then service of process must be made upon a
guardian ad litem who has been appointed pursuant to Rule 17
Domestic or Foreign Corporation. – Upon a domestic or foreign corporation by one
of the following:
a.
By delivering a copy of the summons and of the complaint to an officer,
director, or managing agent of the corporation or by leaving copies thereof
in the office of such officer, director, or managing agent with the person
who is apparently in charge of the office.
b.
By delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to be served or to accept service of
process or by serving process upon such agent or the party in a manner
specified by any statute.
c.
By mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to the officer, director or
agent to be served as specified in paragraphs a and b.
d.
By depositing with a designated delivery service authorized pursuant to 26
U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the
officer, director, or agent to be served as specified in paragraphs a. and b.,
delivering to the addressee, and obtaining a delivery receipt.
Partnerships. – Upon a general or limited partnership:
a.
By delivering a copy of the summons and of the complaint to any general
partner, or to any attorney-in-fact or agent authorized by appointment or by
law to be served or to accept service of process in its behalf; by mailing a
copy of the summons and of the complaint, registered or certified mail,
return receipt requested, addressed to any general partner, or to any
attorney-in-fact or agent authorized by appointment or by law to be served
or to accept service of process in its behalf; or by depositing with a
designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a
copy of the summons and complaint, addressed to any general partner or to
any attorney-in-fact or agent authorized by appointment or by law to be
served or to accept service of process in its behalf, delivering to the
addressee, and obtaining a delivery receipt; or by leaving copies thereof in
the office of such general partner, attorney-in-fact or agent with the person
who is apparently in charge of the office.
b.
If relief is sought against a partner specifically, a copy of the summons and
of the complaint must be served on such partner as provided in this section
(j).
Other Unincorporated Associations and Their Officers. – Upon any unincorporated
association, organization, or society other than a partnership by one of the following:
a.
By delivering a copy of the summons and of the complaint to an officer,
director, managing agent or member of the governing body of the
unincorporated association, organization or society, or by leaving copies

69

(9)

thereof in the office of such officer, director, managing agent or member of
the governing body with the person who is apparently in charge of the
office.
b.
By delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to be served or to accept service of
process or by serving process upon such agent or the party in a manner
specified by any statute.
c.
By mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to the officer, director,
agent or member of the governing body to be served as specified in
paragraphs a and b.
d.
By depositing with a designated delivery service authorized pursuant to 26
U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the
officer, director, agent, or member of the governing body to be served as
specified in paragraphs a. and b., delivering to the addressee, and obtaining
a delivery receipt.
Service upon a foreign state or a political subdivision, agency, or instrumentality
thereof shall be effected pursuant to 28 U.S.C. § 1608.

(j2)

Proof of service. – Proof of service of process shall be as follows:
(1)
Personal Service. – Before judgment by default may be had on personal service,
proof of service must be provided in accordance with the requirements of G.S.
1-75.10(1).
(2)
Registered or Certified Mail or Designated Delivery Service. – Before judgment by
default may be had on service by registered or certified mail or by a designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt,
the serving party shall file an affidavit with the court showing proof of such service
in accordance with the requirements of G.S. 1-75.10(4) or G.S. 1-75.10(5), as
appropriate. This affidavit together with the return or delivery receipt signed by the
person who received the mail or delivery if not the addressee raises a presumption
that the person who received the mail or delivery and signed the receipt was an agent
of the addressee authorized by appointment or by law to be served or to accept
service of process or was a person of suitable age and discretion residing in the
addressee's dwelling house or usual place of abode. In the event the presumption
described in the preceding sentence is rebutted by proof that the person who received
the receipt at the addressee's dwelling house or usual place of abode was not a person
of suitable age and discretion residing therein, the statute of limitation may not be
pleaded as a defense if the action was initially commenced within the period of
limitation and service of process is completed within 60 days from the date the
service is declared invalid. Service shall be complete on the day the summons and
complaint are delivered to the address.
(3)
Publication. – Before judgment by default may be had on service by publication, the serving
party shall file an affidavit with the court showing the circumstances warranting the use of service by
publication, information, if any, regarding the location of the party served which was used in determining
the area in which service by publication was printed and proof of service in accordance with G.S.
1-75.10(2).
(j4)
Process or judgment by default not to be attacked on certain grounds. – No party may attack
service of process or a judgment of default on the basis that service should or could have been effected by
personal service rather than service by registered or certified mail. No party that receives timely actual
notice may attack a judgment by default on the basis that the statutory requirement of due diligence as a
condition precedent to service by publication was not met.
(j5)
Personal jurisdiction by acceptance of service. – Any party personally, or through the persons
provided in Rule 4(j), may accept service of process by notation of acceptance of service together with the
signature of the party accepting service and the date thereof on an original or copy of a summons, and such
acceptance shall have the same force and effect as would exist had the process been served by delivery of
copy and summons and complaint to the person signing said acceptance.

70

(k)
Process – Manner of service to exercise jurisdiction in rem or quasi in rem. – In any action
commenced in a court of this State having jurisdiction of the subject matter and grounds for the exercise of
jurisdiction in rem or quasi in rem as provided in G.S. 1-75.8, the manner of service of process shall be as
follows:
(1)
Defendant Known. – If the defendant is known, he may be served in the appropriate
manner prescribed for service of process in section (j), or, if otherwise appropriate
section (j1); except that the requirement for service by publication in (j1) shall be
satisfied if made in the county where the action is pending and proof of service is
made in accordance with section (j2).
(2)
Defendant Unknown. – If the defendant is unknown, he may be designated by
description and process may be served by publication in the manner provided in
section (j1), except that the requirement for service by publication in (j1) shall be
satisfied if made in the county where the action is pending and proof of service is
made in accordance with section (j2). (1967, c. 954, s. 1; 1969, c. 895, ss. 1-4; 1971,
c. 962; c. 1156, s. 2; 1975, cc. 408, 609; 1977, c. 910, ss. 1-3; 1981, c. 384, s. 3; c.
540, ss. 1-8; 1983, c. 679, ss. 1, 2; 1989, c. 330; c. 575, ss. 1, 2; 1995, c. 275, s. 1; c.
389, ss. 2, 3; c. 509, s. 135.1(e), (f); 1997-469, s. 1; 1999-456, s. 59; 2001-379, ss. 1,
2, 2.1, 2.2.)
Rule 5. Service and filing of pleadings and other papers.
(a)
Service of orders, subsequent pleadings, discovery papers, written motions, written notices,
and other similar papers – When required. – Every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders because of numerous defendants,
every paper relating to discovery 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 every written notice, appearance,
demand, offer of judgment and similar paper shall be served upon each of the parties, but no service need
be made on parties in default for failure to appear except that pleadings asserting new or additional claims
for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
(a1)
Service of briefs or memoranda in support or opposition of certain dispositive motions. – In
actions in superior court, every brief or memorandum in support of or in opposition to a motion to dismiss,
a motion for judgment on the pleadings, a motion for summary judgment, or any other motion seeking a
final determination of the rights of the parties as to one or more of the claims or parties in the action shall
be served upon each of the parties at least two days before the hearing on the motion. If the brief or
memorandum is not served on the other parties at least two days before the hearing on the motion, the court
may continue the matter for a reasonable period to allow the responding party to prepare a response,
proceed with the matter without considering the untimely served brief or memorandum, or take such other
action as the ends of justice require. The parties may, by consent, alter the period of time for service. For
the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission,
or other means such that the party actually receives the brief within the required time.
(b)
Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed
with the court and a copy thereof shall be served on the party against whom it is asserted or on the party's
attorney of record. With respect to all pleadings subsequent to the original complaint and other papers
required or permitted to be served, service with due return may be made in the manner provided for service
and return of process in Rule 4 and may be made upon either the party or, unless service upon the party
personally is ordered by the court, upon the party'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 copy to the party or
by mailing it to the party at the party's last known address or, if no address is known, by filing it with the
clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party, leaving it
at the attorney's office with a partner or employee, or by sending it to the attorney's office by a confirmed
telefacsimile transmittal for receipt by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a
telefacsimile receipt confirmation. If receipt of delivery by telefacsimile is after 5:00 P.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 paper enclosed in a post-paid, properly addressed wrapper in a post office or official
depository under the exclusive care and custody of the United States Postal Service.
(c)
Service – Numerous defendants. – In any action in which there are unusually large numbers
of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the

71

defendants and replies thereto need not be made as between the defendants and that any crossclaim,
counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed
to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon
the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the
parties in such manner and form as the court directs.
(d)
Filing. – All pleadings subsequent to the complaint shall be filed with the court. All other
papers required to be served upon a party, including requests for admissions, shall be filed with the court
either before service or within five days thereafter, except that subpoenas, objections to subpoenas under
Rule 45(c)(3), depositions, interrogatories, requests for documents, and answers and responses to those
requests may not be filed unless ordered by the court or until used in the proceeding. Briefs and memoranda
provided to the court may not be filed with the clerk of the court unless ordered by the court. The party
taking a deposition or obtaining material through discovery is responsible for its preservation and delivery
to the court if needed or so ordered. With respect to all pleadings and other papers as to which service and
return has not been made in the manner provided in Rule 4, proof of service shall be made by filing with
the court a certificate either by the attorney or the party that the paper was served in the manner prescribed
by this rule, or a certificate of acceptance of service by the attorney or the party to be served. Such
certificate shall show the date and method of service or the date of acceptance of service.
(e)
(1)
Filing with the court defined. – The filing of pleadings and other papers with the
court as required by these rules shall be made by filing them with the clerk of the
court, except that the judge may permit the papers to be filed with him, in which
event he shall note thereon the filing date and forthwith transmit them to the office of
the clerk.
(2)
Filing by telefacsimile transmission. – If, pursuant to G.S. 7A-34 and G.S. 7A-343,
the Supreme Court and the Administrative Officer of the Courts establish uniform
rules, regulations, procedures and specifications for the filing of pleadings or other
court papers by telefacsimile transmission, filing may be made by the transmission
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).)
Rule 6. Time.
(a)
Computation. – In computing any period of time prescribed or allowed by these rules, by
order of court, or by any applicable statute, including rules, orders or statutes respecting publication of
notices, the day of the act, event, default or publication after which the designated period of time begins to
run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday,
Sunday or a legal holiday when the courthouse is closed for transactions, in which event the period runs
until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is
closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate
Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered
as other days and not as a holiday.
(b)
Enlargement. – When by these rules or by a notice given thereunder or by order of court an
act is required or allowed to be done at or within a specified time, the court for cause shown may at any
time in its discretion with or without motion or notice order the period enlarged if request therefor is made
before the expiration of the period originally prescribed or as extended by a previous order. Upon motion
made after the expiration of the specified period, the judge may permit the act to be done where the failure
to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may
enter into binding stipulations without approval of the court enlarging the time, not to exceed in the
aggregate 30 days, within which an act is required or allowed to be done under these rules, provided,
however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b),
52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.
(c)
Unaffected by expiration of session. – The period of time provided for the doing of any act or
the taking of any proceeding is not affected or limited by the continued existence or expiration of a session
of court. The continued existence or expiration of a session of court in no way affects the power of a court
to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session.

72

(d)
For motions, affidavits. – A written motion, other than one which may be heard ex parte, and
notice of the hearing thereof shall be served not later than five days before the time specified for the
hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for
cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall
be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits shall be
served at least two days before the hearing. If the opposing affidavit is not served on the other parties at
least two days before the hearing on the motion, the court may continue the matter for a reasonable period
to allow the responding party to prepare a response, proceed with the matter without considering the
untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this
two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means
such that the party actually receives the affidavit within the required time.
(e)
Additional time after service by mail. – Whenever a party has the right to do some act or take
some proceedings within a prescribed period after the service of a notice or other paper upon him and the
notice or paper is served upon him by mail, three days shall be added to the prescribed period.
(f)
Additional time for Address Confidentiality Program participants. – Whenever a person
participating in the Address Confidentiality Program established by Chapter 15C of the General Statutes
has a legal right to act within a prescribed period of 10 days or less after the service of a notice or other
paper upon the program participant, and the notice or paper is served upon the program participant by mail,
five days shall be added to the prescribed period. (1967, c. 954, s. 1; 2000-127, s. 5; 2002-171, s. 2;
2003-337, s. 2.)
Article 3.
Pleadings and Motions.
Rule 7. Pleadings allowed; form of motions.
(a)
Pleadings. – There shall be a complaint and an answer; a reply to a counterclaim denominated
as such; an answer to a crossclaim, if the answer contains a crossclaim; a third-party complaint if a person
who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a
third-party complaint is served. If the answer alleges contributory negligence, a party may serve a reply
alleging last clear chance. No other pleading shall be allowed except that the court may order a reply to an
answer or a third-party answer.
(b)
Motions and other papers. –
(1)
An application to the court for an order shall be by motion which, unless made
during a hearing or trial or at a session at which a cause is on the calendar for that
session, shall be made in writing, shall state with particularity the grounds therefor,
and shall set forth the relief or order sought. The requirement of writing is fulfilled if
the motion is stated in a written notice of the hearing of the motion.
(2)
The rules applicable to captions, signing, and other matters of form of pleadings
apply to all motions and other papers provided for by these rules.
(3)
A motion to transfer under G.S. 7A-258 shall comply with the directives therein
specified but the relief thereby obtainable may also be sought in a responsive
pleading pursuant to Rule 12(b).
(c)
Demurrers, pleas, etc., abolished. – Demurrers, pleas, and exceptions for insufficiency shall
not be used.
(d)
Pleadings not read to jury. – Unless otherwise ordered by the judge, pleadings shall not be
read to the jury. (1967, c. 954, s. 1; 1971, c. 1156, s. 1; 2000-127, s. 2.)
Rule 8. General rules of pleadings.
(a)
Claims for relief. – A pleading which sets forth a claim for relief, whether an original claim,
counterclaim, crossclaim, or third-party claim shall contain
(1)
A short and plain statement of the claim sufficiently particular to give the court and
the parties notice of the transactions, occurrences, or series of transactions or
occurrences, intended to be proved showing that the pleader is entitled to relief, and
(2)
A demand for judgment for the relief to which he deems himself entitled. Relief in
the alternative or of several different types may be demanded. In all negligence
actions, and in all claims for punitive damages in any civil action, wherein the matter

73

in controversy exceeds the sum or value of ten thousand dollars ($10,000), the
pleading shall not state the demand for monetary relief, but shall state that the relief
demanded is for damages incurred or to be incurred in excess of ten thousand dollars
($10,000). However, at any time after service of the claim for relief, any party may
request of the claimant a written statement of the monetary relief sought, and the
claimant shall, within 30 days after such service, provide such statement, which shall
not be filed with the clerk until the action has been called for trial or entry of default
entered. Such statement may be amended in the manner and at times as provided by
Rule 15.
(b)
Defenses; form of denials. – A party shall state in short and plain terms his defenses to each
claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without
knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this
has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader
intends in good faith to deny only a part of or a qualification of an averment, he shall specify so much of it
as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, he may make his denials as specific denials of
designated averments or paragraphs, or he may generally deny all the averments except such designated
averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments,
he may do so by general denial subject to the obligations set forth in Rule 11.
(c)
Affirmative defenses. – In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in
actions for defamation, usury, waiver, and any other matter constituting an avoidance or affirmative
defense. Such pleading shall contain a short and plain statement of any matter constituting an avoidance or
affirmative defense sufficiently particular to give the court and the parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved. When a party has mistakenly
designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms, if justice so
requires, shall treat the pleading as if there had been a proper designation.
(d)
Effect of failure to deny. – Averments in a pleading to which a responsive pleading is
required, other than those as to the amount of damage, are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken
as denied or avoided.
(e)
Pleading to be concise and direct; consistency. –
(1)
Each averment of a pleading shall be simple, concise, and direct. No technical forms
of pleading or motions are required.
(2)
A party may set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one count or defense or in separate counts or defenses.
When two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. A party may also state as
many separate claims or defenses as he has regardless of consistency and whether
based on legal or on equitable grounds or on both. All statements shall be made
subject to the obligations set forth in Rule 11.
(f)
Construction of pleadings. – All pleadings shall be so construed as to do substantial justice.
(1967, c. 954, s. 1; 1975, 2nd Sess., c. 977, s. 5; 1979, ch. 654, s. 4; 1985 (Reg. Sess., 1986), c. 1027, s. 56;
1989 (Reg. Sess., 1990), c. 995, s. 1.)
Rule 9. Pleading special matters.
(a)
Capacity. – Any party not a natural person shall make an affirmative averment showing its
legal existence and capacity to sue. Any party suing in any representative capacity shall make an
affirmative averment showing his capacity and authority to sue. When a party desires to raise an issue as to
the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to
sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall
include such supporting particulars as are peculiarly within the pleader's knowledge.

74

(b)
Fraud, duress, mistake, condition of the mind. – In all averments of fraud, duress or mistake,
the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge,
and other condition of mind of a person may be averred generally.
(c)
Conditions precedent. – In pleading the performance or occurrence of conditions precedent, it
is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial
of performance or occurrence shall be made specifically and with particularity.
(d)
Official document or act. – In pleading an official document or official act it is sufficient to
aver that the document was issued or the act done in compliance with law.
(e)
Judgment. – In pleading a judgment, decision or ruling of a domestic or foreign court, judicial
or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment, decision or ruling
without setting forth matter showing jurisdiction to render it.
(f)
Time and place. – For the purpose of testing the sufficiency of a pleading, averments of time
and place are material and shall be considered like all other averments of material matter.
(g)
Special damage. – When items of special damage are claimed each shall be averred.
(h)
Private statutes. In pleading a private statute or right derived therefrom it is sufficient to refer
to the statute by its title or the day of its ratification if ratified before January 1, 1996, or the date it
becomes law if it becomes law on or after January 1, 1996, and the court shall thereupon take judicial
notice of it.
(i)
Libel and slander. –
(1)
In an action for libel or slander it is not necessary to state in the complaint any
extrinsic facts for the purpose of showing the application to the plaintiff of the
defamatory matter out of which the claim for relief arose, but it is sufficient to state
generally that the same was published or spoken concerning the plaintiff, and if such
allegation is controverted, the plaintiff is bound to establish on trial that it was so
published or spoken.
(2)
The defendant may in his answer allege both the truth of the matter charged as
defamatory, and any mitigating circumstances to reduce the amount of damages; and
whether he proves the justification or not, he may give in evidence the mitigating
circumstances.
(j)
Medical malpractice. – Any complaint alleging medical malpractice by a health care provider
as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12
shall be dismissed unless:
(1)
The pleading specifically asserts that the medical care has been reviewed by a person
who is reasonably expected to qualify as an expert witness under Rule 702 of the
Rules of Evidence and who is willing to testify that the medical care did not comply
with the applicable standard of care;
(2)
The pleading specifically asserts that the medical care has been reviewed by a person
that the complainant will seek to have qualified as an expert witness by motion under
Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical
care did not comply with the applicable standard of care, and the motion is filed with
the complaint; or
(3)
The pleading alleges facts establishing negligence under the existing common-law
doctrine of res ipsa loquitur.
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a
resident judge of the superior court for a judicial district in which venue for the cause of action is
appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that
judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of
the superior court for that judicial district may allow a motion to extend the statute of limitations for a
period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with
this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of
justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof
of compliance with this subsection through up to ten written interrogatories, the answers to which shall be
verified by the expert required under this subsection. These interrogatories do not count against the
interrogatory limit under Rule 33.
(k)
Punitive damages. – A demand for punitive damages shall be specifically stated, except for
the amount, and the aggravating factor that supports the award of punitive damages shall be averred with

75

particularity. The amount of damages shall be pled in accordance with Rule 8. (1967, c. 954, s. 1; 1995, c.
20, s. 10; c. 309, s. 2; c. 514, s. 3; 1998-217, s. 61; 2001-121, s. 1.)
Rule 10. Form of pleadings.
(a)
Caption; names of parties. – Every pleading shall contain a caption setting forth the division
of the court in which the action is filed, the title of the action, and a designation as in Rule 7(a). In the
complaint the title of the action shall include the names of all the parties, but in other pleadings it is
sufficient to state the name of the first party on each side with an appropriate indication of other parties.
Rule 12. Defenses and objections; When and how presented; by pleading or motion; motion for
judgment on pleading.
(a)
(1) When Presented. – A defendant shall serve his answer within 30 days after service of the
summons and complaint upon him. A party served with a pleading stating a crossclaim against him shall
serve an answer thereto within 30 days after service upon him. The plaintiff shall serve his reply to a
counterclaim in the answer within 30 days after service of the answer or, if a reply is ordered by the court,
within 30 days after service of the order, unless the order otherwise directs. Service of a motion permitted
under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:
a.
The responsive pleading shall be served within 20 days after notice of the
court's action in ruling on the motion or postponing its disposition until the
trial on the merits;
b.
If the court grants a motion for a more definite statement, the responsive
pleading shall be served within 20 days after service of the more definite
statement.
(2)
Cases Removed to United States District Court. – Upon the filing in a district court
of the United States of a petition for the removal of a civil action or proceeding from
a court in this State and the filing of a copy of the petition in the State court, the State
court shall proceed no further therein unless and until the case is remanded. If it shall
be finally determined in the United States courts that the action or proceeding was
not removable or was improperly removed, or for other reason should be remanded,
and a final order is entered remanding the action or proceeding to the State court, the
defendant or defendants, or any other party who would have been permitted or
required to file a pleading had the proceedings to remove not been instituted, shall
have 30 days after the filing in such State court of a certified copy of the order of
remand to file motions and to answer or otherwise plead.
(b)
How Presented. – Every defense, in law or fact, to a claim for relief in any pleading, whether
a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto
if one is required, except that the following defenses may at the option of the pleader be made by motion:
(1)
Lack of jurisdiction over the subject matter,
(2)
Lack of jurisdiction over the person,
(3)
Improper venue or division,
(4)
Insufficiency of process,
(5)
Insufficiency of service of process,
(6)
Failure to state a claim upon which relief can be granted,
(7)
Failure to join a necessary party.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted.
The consequences of failure to make such a motion shall be as provided in sections (g) and (h). No defense
or objection is waived by being joined with one or more other defenses or objections in a responsive
pleading or motion. Obtaining an extension of time within which to answer or otherwise plead shall not
constitute a waiver of any defense herein set forth. If a pleading sets forth a claim for relief to which the
adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or
fact to that claim for relief. If, on a motion asserting the defense numbered (6), to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.

76

(c)
Motion for judgment on the pleadings. – After the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment
on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall
be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(d)
Preliminary hearings. – The defenses specifically enumerated (1) through (7) in section (b) of
this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings
mentioned in section (c) of this rule shall be heard and determined before trial on application of any party,
unless the judge orders that the hearing and determination thereof be deferred until the trial.
(e)
Motion for more definite statement. – If a pleading to which a responsive pleading is
permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive
pleading, he may move for a more definite statement before interposing his responsive pleading. The
motion shall point out the defects complained of and the details desired. If the motion is granted and the
order of the judge is not obeyed within 20 days after notice of the order or within such other time as the
judge may fix, the judge may strike the pleading to which the motion was directed or make such orders as
he deems just.
(f)
Motion to strike. – Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these rules, upon motion made by a party within 30 days after the
service of the pleading upon him or upon the judge's own initiative at any time, the judge may order
stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or
scandalous matter.
(g)
Consolidation of defenses in motion. – A party who makes a motion under this rule may join
with it any other motions herein provided for and then available to him. If a party makes a motion under
this rule but omits therefrom any defense or objection then available to him which this rule permits to be
raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted,
except a motion as provided in section (h)(2) hereof on any of the grounds there stated.
(h)
Waiver or preservation of certain defenses. –
(1)
A defense of lack of jurisdiction over the person, improper venue, insufficiency of
process, or insufficiency of service of process is waived (i) if omitted from a motion
in the circumstances described in section (g), or (ii) if it is neither made by motion
under this rule nor included in a responsive pleading or an amendment thereof
permitted by Rule 15(a) to be made as a matter of course.
(2)
A defense of failure to state a claim upon which relief can be granted, a defense of
failure to join a necessary party, and an objection of failure to state a legal defense to
a claim may be made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the merits.
(3)
Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action. (1967, c. 954, s.
1; 1971, c. 1236; 1975, c. 76, s. 2.)

Rule 15. Amended and supplemental pleadings.
(a)
Amendments. – A party may amend his pleading once as a matter of course at any time before
a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after
it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an
amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders.
(d)
Supplemental pleadings. – Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or
occurrences or events which may have happened since the date of the pleading sought to be supplemented,
whether or not the original pleading is defective in its statement of a claim for relief or defense. If the court
deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor. (1967,
c. 954, s. 1.)

77

Article 5.
Depositions and Discovery.
Rule 26. General provisions governing discovery.
(a)
Discovery methods. – Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written interrogatories; production of documents or
things or permission to enter upon land or other property, for inspection and other purposes; physical and
mental examinations; and requests for admission.
(b)
Discovery scope and limits. – Unless otherwise limited by order of the court in accordance
with these rules, the scope of discovery is as follows:
(1)
In General. – Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim or
defense of any other party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter. It is
not ground for objection that the information sought will be inadmissible at the trial
if the information sought appears reasonably calculated to lead to the discovery of
admissible evidence nor is it grounds for objection that the examining party has
knowledge of the information as to which discovery is sought.
The frequency or extent of use of the discovery methods set forth in section (a)
shall be limited by the court if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from some other source that
is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery in the action to obtain the
information sought; or (iii) the discovery is unduly burdensome or expensive, taking
into account the needs of the case, the amount in controversy, limitations on the
parties' resources, and the importance of the issues at stake in the litigation. The
court may act upon its own initiative after reasonable notice or pursuant to a motion
under section (c).
(2)
Insurance Agreements. – A party may obtain discovery of the existence and contents
of any insurance agreement under which any person carrying on an insurance
business may be liable to satisfy part or all of a judgment which may be entered in
the action or to indemnify or reimburse for payments made to satisfy the judgment.
Information concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purposes of this subsection, an application for
insurance shall not be treated as part of an insurance agreement.
(3)
Trial Preparation; Materials. – Subject to the provisions of subsection (b)(4) of this
rule, a party may obtain discovery of documents and tangible things otherwise
discoverable under subsection (b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for that other party's consultant,
surety, indemnitor, insurer, or agent only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of his case and that
he is unable without undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of such materials when the required
showing has been made, the court may not permit disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation in which the material is sought or
work product of the attorney or attorneys of record in the particular action.
A party may obtain without the required showing a statement concerning the
action or its subject matter previously made by that party. Upon request, a person not
a party may obtain without the required showing a statement concerning the action or
its subject matter previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Rule 37(a)(4) apply to the award of
expenses incurred in relation to the motion. For purposes of this paragraph, a
statement previously made is (i) a written statement signed or otherwise adopted or

78

approved by the person making it, or (ii) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof, which is a substantially verbatim recital of
an oral statement by the person making it and contemporaneously recorded.
(4)
Trial Preparation; Experts. – Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of subsection (b)(1) of this rule and
acquired or developed in anticipation of litigation or for trial, may be obtained only
as follows:
a.
1.
A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an
expert witness at trial, to state the subject matter on which the
expert is expected to testify, and to state the substance of the facts
and opinions to which the expert is expected to testify and a
summary of the grounds for each opinion.
2.
Upon motion, the court may order further discovery by other
means, subject to such restrictions as to scope and such provisions,
pursuant to subdivision (b)(4)c [(b)(4)b] of this rule, concerning
fees and expenses as the court may deem appropriate.
b.
Unless manifest injustice would result, (i) the court shall require that the
party seeking discovery pay the expert a reasonable fee for time spent in
responding to discovery under subdivision (b)(4)a2 of this rule; and (ii) with
respect to discovery obtained under subdivision (b)(4)a2 of this rule the
court may require the party seeking discovery to pay the other party a fair
portion of the fees and expenses reasonably incurred by the latter party in
obtaining facts and opinions from the expert.
(c)
Protective orders. – Upon motion by a party or by the person from whom discovery is sought,
and for good cause shown, the judge of the court in which the action is pending may make any order which
justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following: (i) that the discovery not be had; (ii) that
the discovery may be had only on specified terms and conditions, including a designation of the time or
place; (iii) that the discovery may be had only by a method of discovery other than that selected by the
party seeking discovery; (iv) that certain matters not be inquired into, or that the scope of the discovery be
limited to certain matters; (v) that discovery be conducted with no one present except persons designated
by the court; (vi) that a deposition after being sealed be opened only by order of the court; (vii) that a trade
secret or other confidential research, development, or commercial information not be disclosed or be
disclosed only in a designated way; (viii) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and
conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the motion.
(d)
Sequence and timing of discovery. – Unless the court upon motion, for the convenience of
parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in
any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall
not operate to delay any other party's discovery. Any order or rule of court setting the time within which
discovery must be completed shall be construed to fix the date after which the pendency of discovery will
not be allowed to delay trial or any other proceeding before the court, but shall not be construed to prevent
any party from utilizing any procedures afforded under Rules 26 through 36, so long as trial or any hearing
before the court is not thereby delayed.
(e)
Supplementation of responses. – A party who has responded to a request for discovery with a
response that was complete when made is under no duty to supplement his response to include information
thereafter acquired, except as follows:
(1)
A party is under a duty seasonably to supplement his response with respect to any
question directly addressed to (i) the identity and location of persons having
knowledge of discoverable matters, and (ii) the identity of each person expected to
be called as an expert witness at trial, the subject matter on which he is expected to
testify, and the substance of his testimony.

79

(2)

A party is under a duty seasonably to amend a prior response if he obtains
information upon the basis of which (i) he knows that the response was incorrect
when made, or (ii) he knows that the response though correct when made is no
longer true and the circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(3)
A duty to supplement responses may be imposed by order of the court, agreement of
the parties, or at any time prior to trial through new requests for supplementation of
prior responses.
(f)
Discovery conference. – At any time after commencement of an action the court may direct
the attorneys for the parties to appear before it for a conference on the subject of discovery. The court may
do so upon motion by the attorney for any party if the motion includes:
(1)
A statement of the issues as they then appear;
(2)
A proposed plan and schedule of discovery;
(3)
Any limitations proposed to be placed on discovery;
(4)
Any other proposed orders with respect to discovery; and
(5)
A statement showing that the attorney making the motion has made a reasonable
effort to reach agreement with opposing attorneys on the matters set forth in the
motion. Each party and his attorney are under a duty to participate in good faith in
the framing of a discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or additions to matters
set forth in the motion shall be served not later than 10 days after service of the
motion.
Following the discovery conference, the court shall enter an order tentatively identifying the issues for
discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any;
and determining such other matters, including the allocation of expenses, as are necessary for the proper
management of discovery in the action. An order may be altered or amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery conference to prompt convening of
the conference, the court may combine the discovery conference with a pretrial conference authorized by
Rule 16.
(f1)
Medical malpractice discovery conference. – In a medical malpractice action as defined in
G.S. 90-21.11, upon the case coming at issue or the filing of a responsive pleading or motion requiring a
determination by the court, the judge shall, within 30 days, direct the attorneys for the parties to appear for
a discovery conference. At the conference the court may consider the matters set out in Rule 16, and shall:
(1)
Rule on all motions;
(2)
Establish an appropriate schedule for designating expert witnesses, consistent with a
discovery schedule pursuant to subdivision (3), to be complied with by all parties to
the action such that there is a deadline for designating all expert witnesses within an
appropriate time for all parties to implement discovery mechanisms with regard to
the designated expert witnesses;
(3)
Establish by order an appropriate discovery schedule designated so that, unless good
cause is shown at the conference for a longer time, and subject to further orders of
the court, discovery shall be completed within 150 days after the order is issued;
nothing herein shall be construed to prevent any party from utilizing any procedures
afforded under Rules 26 through 36, so long as trial or any hearing before the court is
not thereby delayed; and
(4)
Approve any consent order which may be presented by counsel for the parties
relating to parts (2) and (3) of this subsection, unless the court finds that the terms of
the consent order are unreasonable.
If a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving
party, impose an appropriate sanction, which may include dismissal of the action, entry of default against
the defendant, or exclusion of the testimony of the expert witness at trial.
(g)
Signing of discovery requests, responses, and objections. – Every request for discovery or
response or objection thereto made by a party represented by an attorney shall be signed by at least one
attorney of record in his individual name, whose address shall be stated. A party who is not represented by
an attorney shall sign the request, response, or objection and state his address. The signature of the attorney
or party constitutes a certification that he has read the request, response, or objection and that to the best of

80

his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with the rules
and warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law; (2) not interposed for any improper purpose, such as to harass or cause unnecessary delay or
needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive,
given the needs of the case, the discovery already had in the case, the amount in controversy, and the
importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall
be stricken unless it is signed promptly after the omission is called to the attention of the party making the
request, response, or objection and a party shall not be obligated to take any action with respect to it until it
is signed.
If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall
impose upon the person who made the certification, the party on whose behalf the request, response, or
objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a reasonable attorney's fee. (1967, c. 954,
s. 1; 1971, c. 750; 1975, c. 762, s. 2; 1985, c. 603, ss. 1-4; 1987, c. 859, s. 3.)
Rule 29. Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may by written stipulation (i) provide that depositions
may be taken before any person, at any time or place, upon any notice, and in any manner and when so
taken may be used like other depositions, and (ii) modify the procedures provided by these rules for other
methods of discovery. (1967, c. 954, s. 1; 1975, c. 762, s. 1.)
Rule 30. Depositions upon oral examination.
(a)
When depositions may be taken. – After commencement of the action, any party may take the
testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted
with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the
expiration of 30 days after service of the summons and complaint upon any defendant or service made
under Rule 4(e), except that leave is not required (i) if a defendant has served a notice of taking deposition
or otherwise sought discovery, or (ii) if special notice is given as provided in subsection (b)(2) of this rule.
The attendance of witnesses may be compelled by subpoena as provided in Rule 45, provided that no
subpoena need be served on a deponent who is a party or an officer, director or managing agent of a party,
provided the party has been served with notice pursuant to subsection (b)(1) of this rule. The deposition of
a person confined in prison or of a patient receiving in-patient care in or confined to an institution or
hospital for the mentally ill or mentally handicapped may be taken only by leave of court on such terms as
the court prescribes.
(b)
Notice of examination; general requirements; place of examination; special notice;
nonstenographic recording; production of documents and things; deposition of organization. –
(1)
A party desiring to take the deposition of any person upon oral examination shall
give notice in writing to every other party to the action. The notice shall state the
time and place for taking the deposition and the name and address of each person to
be examined, if known, and, if the name is not known, a general description
sufficient to identify him or the particular class or group to which he belongs. If a
subpoena duces tecum is to be served on the person to be examined, the designation
of the materials to be produced as set forth in the subpoena shall be attached to or
included in the notice. The notice shall be served on all parties at least 15 days prior
to the taking of the deposition when any party required to be served resides without
the State and shall be served on all parties at least 10 days prior to the taking of the
deposition when all of the parties required to be served reside within the State.
Depositions of parties, officers, directors or managing agents of parties or of other
persons designated pursuant to subsection (b)(6) hereof to testify on behalf of a party
may be taken only at the following places:
A resident of the State may be required to attend for examination by deposition
only in the county wherein he resides or is employed or transacts his business in
person. A nonresident of the State may be required to attend for such examination
only in the county wherein he resides or within 50 miles of the place of service
except that a judge, as defined by subdivision (h) of this rule, may, upon motion
showing good cause, require that a party who selected the county where the action is

81

(2)

(3)
(4)

(5)

(6)

pending as the forum for the action or an officer, director or managing agent of such
a party, or a person designated pursuant to subsection (b)(6) hereof to testify on
behalf of such a party present himself for the taking of his deposition in the county
where the action is pending. The judge upon granting the motion may make any
other orders allowed by Rule 26(c) with respect thereto, including orders with
respect to the expenses of the deponent.
Leave of court is not required for the taking of a deposition by plaintiff if the notice
(i) states that the person to be examined is about to go out of the county where the
action is pending and more than 100 miles from the place of trial, or is about to go
out of the United States, or is bound on a voyage to sea, and will be unavailable for
examination unless his deposition is taken before expiration of the 30-day period,
and (ii) sets forth facts to support the statement. The plaintiff's attorney shall sign the
notice, and his signature constitutes a certification by him that to the best of his
knowledge, information, and belief the statement and supporting facts are true. The
sanctions provided by Rule 11 are applicable to the certification.
If a party shows that when he was served with notice under this subsection
(b)(2) he was unable through the exercise of diligence to obtain counsel to represent
him at the taking of the deposition, the deposition may not be used against him.
The court may for cause shown enlarge or shorten the time for taking the deposition.
Unless the court orders otherwise, testimony at a deposition may be recorded by
sound recording, sound-and-visual, or stenographic means. If the testimony is to be
taken by other means in addition to or in lieu of stenographic means, the notice shall
state the methods by which it shall be taken and shall state whether a stenographer
will be present at the deposition. In the case of a deposition taken by stenographic
means, the party that provides for the stenographer shall provide for the transcribing
of the testimony taken. If the deposition is by sound recording only, the party
noticing the deposition shall provide for the transcribing of the testimony taken. If
the deposition is by sound-and-visual means, the appearance or demeanor of
deponents or attorneys shall not be distorted through camera techniques. Regardless
of the method stated in the notice, any party or the deponent may have the testimony
recorded by stenographic means.
A party deponent, deponents who are officers, directors or managing agents of
parties and other persons designated pursuant to subsection (b)(6) hereof to testify on
behalf of a party may not be served with a subpoena duces tecum, but the notice to a
party for the deposition of such a deponent may be accompanied by a request made
in compliance with Rule 34 for the production of documents and tangible things at
the taking of the deposition. The procedure of Rule 34, except as to time for
response, shall apply to the request. When a notice to take such a deposition is
accompanied by a request made in compliance with Rule 34 the notice and the
request must be served at least 15 days earlier than would otherwise be required by
Rule 30(b)(1), and any objections to such a request must be served at least seven
days prior to the taking of the deposition.
A party may in his notice and in a subpoena name as the deponent a public or private
corporation or a partnership or association or governmental agency and describe with
reasonable particularity the matters on which examination is requested. In that event,
the organization so named shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on its behalf, and may set
forth, for each person designated, the matters on which he will testify. A subpoena
shall advise a nonparty organization of its duty to make such a designation. It shall
not be necessary to serve a subpoena on an organization which is a party, but the
notice, served on a party without an accompanying subpoena shall clearly advise
such of its duty to make the required designation. The persons so designated shall
testify as to matters known or reasonably available to the organization. This
subsection (b)(6) does not preclude taking a deposition by any other procedure
authorized in these rules.

82

(7)

The parties may stipulate in writing or the court may upon motion order that a
deposition be taken by telephone. For the purposes of this rule and Rules 28(a),
37(a)(1) and 45(d), a deposition taken by telephone is taken in the district and the
place where the deponent is to answer questions propounded to him.
(c)
Examination and cross-examination; record of examination; oath; objections. – Examination
and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule
43(b). The person before whom the deposition is to be taken shall put the deponent on oath and shall
personally, or by someone acting under his direction and in his presence, record the testimony of the
deponent. The testimony shall be taken stenographically or recorded by any other means ordered in
accordance with subsection (b)(4) of this rule. If requested by one of the parties, the testimony shall be
transcribed.
All objections made at the time of the examination to the qualifications of the person before whom the
deposition is taken, or to the manner of taking it, or to the evidence presented, or to the conduct of any
party, and any other objection to the proceedings, shall be noted upon the deposition by the person before
whom the deposition is taken. Subject to any limitations imposed by orders entered pursuant to Rule 26(c)
or 30(d), evidence objected to shall be taken subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on the party who served the notice of
taking the deposition, and he shall transmit them to the person before whom the deposition is to be taken
who shall open them at the deposition, propound them to the witness and record the answers verbatim.
(d)
Motion to terminate or limit examination. – At any time during the taking of the deposition,
on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad
faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, a judge of
the court in which the action is pending or any judge in the county where the deposition is being taken may
order before whom the examination is being taken to cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made
terminates the examination, it shall be resumed thereafter only upon the order of a judge of the court in
which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition
shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.
(e)
Submission to deponent; changes; signing. – The sound-and-visual recording, or the transcript
of it, if any, the transcript of the sound recording, or the transcript of a deposition taken by stenographic
means, shall be submitted to the deponent for examination and shall be reviewed by the deponent, unless
such examination and review are waived by the deponent and by the parties. If there are changes in form or
substance, the deponent shall sign a statement reciting such changes and the reasons given by the deponent
for making them. The person administering the oath shall indicate in the certificate prescribed by
subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the
deponent. The certificate shall then be signed by the deponent, unless the parties by stipulation waive the
signing or the deponent is ill or cannot be found or refuses to sign. If the certificate is not signed by the
deponent within 30 days of its submission to him, the person before whom the deposition was taken shall
sign the certificate and state on the certificate the fact of the waiver or of the illness or absence of the
deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the
deposition may then be used as fully as though the certificate were signed unless on a motion to suppress
under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
(f)
Certification and filing by person administering the oath; exhibits; copies; notice of filing. –
(1)
The person administering the oath shall certify that the deponent was duly sworn by
him and that the deposition is a true record of the testimony given by the deponent.
This certificate shall be in writing and accompany the sound-and-visual or sound
recording or transcript of the deposition. He shall then place the deposition in an
envelope or package endorsed with the title of the action and marked "Deposition of
(here insert name of witness)" and shall personally deliver it or mail it by first class
mail to the party taking the deposition or his attorney who shall preserve it as the
court's copy.
Documents and things produced for inspection during the examination of the
deponent shall, upon the request of a party, be marked for identification and annexed
to and returned with the deposition, and may be inspected and copied by any party,

83

(g)

(h)

except that (i) the person producing the materials may substitute copies to be marked
for identification, if he affords to all parties fair opportunity to verify the copies by
comparison with the originals, and (ii) if the person producing the materials requests
their return, the person before whom the deposition is taken shall mark them, give
each party an opportunity to inspect and copy them, and return them to the person
producing them, and the materials may then be used in the manner as if annexed to
and returned with the deposition. Any party may move for an order that the original
be annexed to and returned with the deposition to the court, pending final disposition
of the case.
(2)
Upon payment of reasonable charges therefor, the person administering the oath
shall furnish a copy of the deposition to any party or to the deponent.
(3)
The clerk shall give prompt notice of the filing of a deposition to all parties.
Failure to attend or to serve subpoena; expenses. –
(1)
If the party giving the notice of the taking of a deposition fails to attend and proceed
therewith and another party attends in person or by attorney pursuant to the notice,
the judge may order the party giving the notice to pay to such other party the
reasonable expenses incurred by him and his attorney in attending, including
reasonable attorney's fees.
(2)
If the party giving the notice of the taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of such failure does not attend, and if
another party attends in person or by attorney because he expects the deposition of
that witness to be taken, the judge may order the party giving the notice to pay to
such other party the reasonable expenses incurred by him and his attorney in
attending, including reasonable attorney's fees.
Judge; definition. –
(1)
In respect to actions in the superior court, a judge of the court in which the action is
pending shall, for the purposes of this rule, and Rule 26, Rule 31, Rule 33, Rule 34,
Rule 35, Rule 36 and Rule 37, be a superior court judge who has jurisdiction
pursuant to G.S. 7A-47.1 or G.S. 7A-48 in that county.
(2)
In respect to actions in the district court, a judge of the court in which the action is
pending shall, for the purposes of this rule, Rule 26, Rule 31, Rule 33, Rule 34, Rule
35, Rule 36 and Rule 37, be the chief district judge or any judge designated by him
pursuant to G.S. 7A-192.
(3)
In respect to actions in either the superior court or the district court, a judge of the
court in the county where the deposition is being taken shall, for the purposes of this
rule, be a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S.
7A-48 in that county, or the chief judge of the district court or any judge designated
by him pursuant to G.S. 7A-192. (1967, c. 954, s. 1; 1973, c. 828, s. 1; c. 1126, ss. 1,
2; 1975, c. 762, s. 2; 1977, c. 769; 1983, c. 201, s. 2; c. 801, ss. 1, 2; 1987 (Reg.
Sess., 1988), c. 1037, s. 42; 1995, c. 353, ss. 1-3; 1995 (Reg. Sess., 1996), c. 742, s.
4.)

Rule 31. Depositions upon written questions.
(a)
Serving questions; notice. – After commencement of the action, any party may take the
testimony of any person, including a party, by deposition upon written questions. The attendance of
witnesses may be compelled by the use of subpoena as provided in Rule 45 provided that no subpoena need
be served on a deponent who is a party or an officer, director or managing agent of a party, provided the
party has been served with notice pursuant to this rule. Such a deposition shall be taken in the county where
the witness resides or is employed or transacts his business in person unless the witness agrees that it may
be taken elsewhere. The deposition of a person confined in prison or of a patient receiving in-patient care in
or confined to an institution or hospital for the mentally ill or mentally handicapped may be taken only by
leave of court on such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall serve them upon every other party
with a notice stating (i) the name and address of the person who is to answer them, if known, and if the
name is not known, a general description sufficient to identify him or the particular class or group to which
he belongs, and (ii) the name or descriptive title and address of the officer before whom the deposition is to

84

be taken. A deposition upon written questions may be taken of a public or private corporation or a
partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).
Within 30 days after the notice and written questions are served, a party may serve cross questions
upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served with redirect questions, a party may
serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
(b)
Person to take responses and prepare record. – A copy of the notice and copies of all
questions served shall be delivered by the party taking the deposition to the person designated in the notice
to take the deposition, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to
take the testimony of the deponent in response to the questions and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the questions received by him.
(c)
Notice of filing. – When the deposition is filed the clerk shall promptly give notice thereof to
all parties. (1967, c. 954, s. 1; 1975, c. 762, s. 2.)
Rule 33. Interrogatories through parties.
(a)
Availability; procedures for use. – Any party may serve upon any other party written
interrogatories to be answered by the party served or, if the party served is a public or private corporation
or a partnership or association or governmental agency, by any officer or agent, who shall furnish such
information as is available to the party. Interrogatories may, without leave of court, be served upon the
plaintiff after commencement of the action and upon any other party with or after service of the summons
and complaint upon that party.
A party may direct no more than 50 interrogatories, in one or more sets, to any other party, except
upon leave granted by the Court for good cause shown or by agreement of the other party. Interrogatory
parts and subparts shall be counted as separate interrogatories for purposes of this rule.
There shall be sufficient space following each interrogatory in which the respondent may state the
response. The respondent shall: (1) state the response in the space provided, using additional pages if
necessary; or (2) restate the interrogatory to be followed by the response.
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to,
in which event the reasons for objection shall be stated in lieu of an answer. An objection to an
interrogatory shall be made by stating the objection and the reason therefor either in the space following the
interrogatory or following the restated interrogatory. The answers are to be signed by the person making
them, and the objections signed by the attorney making them. The party upon whom the interrogatories
have been served shall serve a copy of the answers, and objections if any, within 30 days after the service
of the interrogatories, except that a defendant may serve answers or objections within 45 days after service
of the summons and complaint upon the defendant. The court may allow a shorter or longer time. The party
submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or
other failure to answer an interrogatory.
(b)
Scope; use at trial. – Interrogatories may relate to any matters which can be inquired into
under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the
interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the
court may order that such an interrogatory need not be answered until after designated discovery has been
completed or until a pretrial conference or other later time.
(c)
Option to produce business records. – Where the answer to an interrogatory may be derived or
ascertained from the business records of the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, or from a compilation, abstract or summary
based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party
serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the
records from which the answer may be derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies,
compilations, abstracts or summaries. (1967, c. 954, s. 1; 1971, c. 1156, s. 4.5; 1975, c. 99; c. 762, s. 2;
1987, c. 73, c. 613, s. 1.)

85

Rule 34. Production of documents and things and entry upon land for inspection and other purposes.
(a)
Scope. – Any party may serve on any other party a request (i) to produce and permit the party
making the request, or someone acting on his behalf, to inspect and copy, any designated documents
(including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations
from which information can be obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which
constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served; or (ii) to permit entry upon designated land or other
property in the possession or control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling the property or any designated
object or operation thereon, within the scope of Rule 26(b).
(b)
Procedure. – The request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service of the summons and complaint
upon that party. The request shall set forth the items to be inspected either by individual item or by
category, and describe each item and category with reasonable particularity. The request shall specify a
reasonable time, place, and manner of making the inspection and performing the related acts.
The party upon whom the request is served shall serve a written response within 30 days after the
service of the request, except that a defendant may serve a response within 45 days after service of the
summons and complaint upon that defendant. The court may allow a shorter or longer time. The response
shall state, with respect to each item or category, that inspection and related activities will be permitted as
requested, unless the request is objected to, in which event the reasons for objection shall be stated. If
objection is made to part of an item or category, the part shall be specified. The party submitting the request
may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the
request or any part thereof, or any failure to permit inspection as requested.
There shall be sufficient space following each request in which the respondent may state the response.
The respondent shall: (1) state the response in the space provided, using additional pages if necessary; or
(2) restate the request to be followed by the response. An objection to a request shall be made by stating the
objection and the reason therefor either in the space following the request or following the restated request.
(c)
Persons not parties. – This rule does not preclude an independent action against a person not a
party for production of documents and things and permission to enter upon land. (1967, c. 954, s. 1; 1969,
c. 895, s. 8; 1973, c. 923, s. 1; 1975, c. 762, s. 2; 1987, c. 613, s. 2.)
Rule 35. Physical and mental examination of persons.
(a)
Order for examination. – When the mental or physical condition (including the blood group)
of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, a
judge of the court in which the action is pending as defined by Rule 30(h) may order the party to submit to
a physical or mental examination by a physician or to produce for examination his agent or the person in
his custody or legal control. The order may be made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and
scope of the examination and the person or persons by whom it is to be made.
(b)
Report of examining physician. –
(1)
If requested by the party against whom an order is made under Rule 35(a) or the
person examined, the party causing the examination to be made shall deliver to him a
copy of a detailed written report of the examining physician setting out his findings,
including results of all tests made, diagnoses and conclusions, together with like
reports of all earlier examinations of the same condition. After such request and
delivery the party causing the examination shall be entitled upon request to receive
from the party against whom the order is made a like report of any examination,
previously or thereafter made, of the same condition, unless, in the case of a report of
examination of a person not a party, the party shows that he is unable to obtain it.
The court on motion may make an order against a party requiring delivery of a report
on such terms as are just, and if a physician fails or refuses to make a report the court
may exclude his testimony if offered at the trial.
(2)
By requesting and obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege he may have in

86

(3)

that action or any other involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter examine him in respect of
the same mental or physical condition.
This subsection applies to examinations made by agreement of the parties, unless the
agreement expressly provides otherwise. This subsection does not preclude
discovery of a report of an examining physician or the taking of a deposition of the
physician in accordance with the provisions of any other rule. (1967, c. 954, s. 1;
1975, c. 762, s. 2.)

Rule 36. Requests for admission; effect of admission.
(a)
Request for admission. – A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule
26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon the plaintiff after commencement of the
action and upon any other party with or after service of the summons and complaint upon that party. If the
request is served with service of the summons and complaint, the summons shall so state.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted
unless, within 30 days after service of the request, or within such shorter or longer time as the court may
allow, the party to whom the request is directed serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court
shortens the time, a defendant shall not be required to serve answers or objections before the expiration of
60 days after service of the summons and complaint upon him. If objection is made, the reasons therefor
shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the
remainder. An answering party may not give lack of information or knowledge as a reason for failure to
admit or deny unless he states that he has made reasonable inquiry and that the information known or
readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a
matter of which an admission has been requested presents a genuine issue for trial may not, on that ground
alone, object to the request; he may, subject to the provisions of Rule 37(c), deny the matter or set forth
reasons why he cannot admit or deny it.
There shall be sufficient space following each request in which the respondent may state the response.
The respondent shall:
(1)
State the response in the space provided, using additional pages if necessary; or
(2)
Restate the request to be followed by the response. An objection to a request shall be
made by stating the objection and the reason therefor either in the space following
the request or following the restated request.
The party who has requested the admissions may move to determine the sufficiency of the answers or
objections. Unless the court determines that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the requirements of this rule, it may order
either that the matter is admitted or that an amended answer be served. The court may, in lieu of these
orders, determine that final disposition of the request be made at a pretrial conference or at a designated
time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(b)
Effect of admission. – Any matter admitted under this rule is conclusively established unless
the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule
16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved thereby and the party who obtained the admission
fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or
defense on the merits. Any admission made by a party under this rule is for the purpose of pending action
only and is not an admission by him for any other purpose nor may it be used against him in any other
proceeding. (1967, c. 954, s. 1; 1975, c. 762, s. 2; 1981, c. 384, ss. 1, 2; 1987, c. 613, s. 3.)

87

Rule 37. Failure to make discovery; sanctions.
(a)
Motion for order compelling discovery. – A party, upon reasonable notice to other parties and
all persons affected thereby, may apply for an order compelling discovery as follows:
(1)
Appropriate Court. – An application for an order to a party or a deponent who is not
a party may be made to a judge of the court in which the action is pending, or, on
matters relating to a deposition where the deposition is being taken in this State, to a
judge of the court in the county where the deposition is being taken, as defined by
Rule 30(h).
(2)
Motion. – If a deponent fails to answer a question propounded or submitted under
Rules 30 or 31, or a corporation or other entity fails to make a designation under
Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under
Rule 33, or if a party, in response to a request for inspection submitted under Rule
34, fails to respond that inspection will be permitted as requested or fails to permit
inspection as requested, the discovering party may move for an order compelling an
answer, or a designation, or an order compelling inspection in accordance with the
request. The motion must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make the
discovery in an effort to secure the information or material without court action.
When taking a deposition on oral examination, the proponent of the question shall
complete the examination on all other matters before he adjourns the examination in
order to apply for an order.
If the court denies the motion in whole or in part, it may make such protective
order as it would have been empowered to make on a motion made pursuant to Rule
26(c).
(3)
Evasive or Incomplete Answer. – For purposes of this subdivision an evasive or
incomplete answer is to be treated as a failure to answer.
(4)
Award of Expenses of Motion. – If the motion is granted, the court shall, after
opportunity for hearing, require the party or deponent whose conduct necessitated
the motion or the party advising such conduct or both of them to pay to the moving
party the reasonable expenses incurred in obtaining the order, including attorney's
fees, unless the court finds that the opposition to the motion was substantially
justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the
moving party to pay to the party or deponent who opposed the motion the reasonable
expenses incurred in opposing the motion, including attorney's fees, unless the court
finds that the making of the motion was substantially justified or that other
circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the
reasonable expenses incurred in relation to the motion among the parties and persons
in a just manner.
(b)
Failure to comply with order. –
(1)
Sanctions by Court in County Where Deposition Is Taken. – If a deponent fails to be
sworn or to answer a question after being directed to do so by a judge of the court in
the county in which the deposition is being taken, the failure may be considered a
contempt of that court.
(2)
Sanctions by Court in Which Action Is Pending. – If a party or an officer, director, or
managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to
testify on behalf of a party fails to obey an order to provide or permit discovery,
including an order made under section (a) of this rule or Rule 35, or if a party fails to
obey an order entered under Rule 26(f) a judge of the court in which the action is
pending may make such orders in regard to the failure as are just, and among others
the following:
a.
An order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;

88

b.

An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting him from introducing
designated matters in evidence;
c.
An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against
the disobedient party;
d.
In lieu of any of the foregoing orders or in addition thereto, an order treating
as a contempt of court the failure to obey any orders except an order to
submit to a physical or mental examination;
e.
Where a party has failed to comply with an order under Rule 35(a) requiring
him to produce another for examination, such orders as are listed in
subdivisions a, b, and c of this subsection, unless the party failing to comply
shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall
require the party failing to obey the order to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an award of expenses unjust.
(c)
Expenses on failure to admit. – If a party fails to admit the genuineness of any document or
the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter, he may apply to the court for an order
requiring the other party to pay him the reasonable expenses incurred in making that proof, including
reasonable attorney's fees. The court shall make the order unless it finds that (i) the request was held
objectionable pursuant to Rule 36(a), or (ii) the admission sought was of no substantial importance, or (iii)
the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (iv) there
was other good reason for the failure to admit.
(d)
Failure of party to attend at own deposition or serve answers to interrogatories or respond to
request for inspection. – If a party or an officer, director, or managing agent of a party or a person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (i) to appear before the person
who is to take his deposition, after being served with a proper notice, or (ii) to serve answers or objections
to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (iii) to serve a
written response to a request for inspection submitted under Rule 34, after proper service of the request, the
court in which the action is pending on motion may make such orders in regard to the failure as are just,
and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of
this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the
reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure
was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this section may not be excused on the ground that the discovery sought
is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).
(e),
(f) Reserved for future codification purposes.
(g)
Failure to participate in the framing of a discovery plan. – If a party or his attorney fails to
participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the
court may, after opportunity for hearing, require such party or his attorney to pay to any other party the
reasonable expenses, including attorney's fees, caused by the failure. (1967, c. 954, s. 1; 1973, c. 827, s. 1;
1975, c. 762, s. 2; 1985, c. 603, ss. 5-7; 2001-379, s. 5.)
Rule 45. Subpoena.
(a)
Form; Issuance. –
(1)
Every subpoena shall state all of the following:
a.
The title of the action, the name of the court in which the action is pending,
the number of the civil action, and the name of the party at whose instance
b.
A command to each person to whom it is directed to attend and give
testimony or to produce and permit inspection and copying of designated
records, books, papers, documents, or tangible things in the possession,
custody, or control of that person therein specified.

89

c.

The protections of persons subject to subpoenas under subsection (c) of this
rule.
d.
The requirements for responses to subpoenas under subsection (d) of this
rule.
(2)
A command to produce evidence may be joined with a command to appear at trial or
hearing or at a deposition, or any subpoena may be issued separately.
(3)
A subpoena shall issue from the court in which the action is pending.
(4)
The clerk of court in which the action is pending shall issue a subpoena, signed but
otherwise blank, to a party requesting it, who shall complete it before service. Any
judge of the superior court, judge of the district court, magistrate, or attorney, as
officer of the court, may also issue and sign a subpoena.
(b)
Service. –
(1)
Manner. – Any subpoena may be served by the sheriff, by the sheriff's deputy, by a
coroner, or by any person who is not a party and is not less than 18 years of age.
Service of a subpoena upon a person named therein shall be made by delivering a
copy thereof to that person or by registered or certified mail, return receipt requested.
Service of a subpoena for the attendance of a witness only may also be made by
telephone communication with the person named therein only by a sheriff, the
sheriff's designee who is not less than 18 years of age and is not a party, or a coroner.
(2)
Service of copy. – A copy of the subpoena served under subdivision (1) of this
subsection shall also be served upon each party in the manner prescribed by Rule
5(b). This subdivision does not apply to subpoenas issued under G.S. 15A-801 or
G.S. 15A-802.
(c)
Protection of Persons Subject to Subpoena. –
(1)
Avoid undue burden or expense. – A party or an attorney responsible for the issuance
and service of a subpoena shall take reasonable steps to avoid imposing an undue
burden or expense on a person subject to the subpoena. The court shall enforce this
subdivision and impose upon the party or attorney in violation of this requirement an
appropriate sanction that may include compensating the person unduly burdened for
lost earnings and for reasonable attorney's fees.
(2)
For production of public records or hospital medical records. –
Where the subpoena commands any custodian of public records or any custodian of hospital medical
records, as defined in G.S. 8-44.1, to appear for the sole purpose of producing certain records in the
custodian's custody, the custodian subpoenaed may, in lieu of personal appearance, tender to the court in
which the action is pending by registered or certified mail or by personal delivery, on or before the time
specified in the subpoena, certified copies of the records requested together with a copy of the subpoena
and an affidavit by the custodian testifying that the copies are true and correct copies and that the records
were made and kept in the regular course of business, or if no such records are in the custodian's custody,
an affidavit to that effect. When the copies of records are personally delivered under this subdivision, a
receipt shall be obtained from the person receiving the records. Any original or certified copy of records or
an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall
be admissible in any action or proceeding without further certification or authentication. Copies of hospital
medical records tendered under this subdivision shall not be open to inspection or copied by any person,
except to the parties to the case or proceedings and their attorneys in depositions, until ordered published
by the judge at the time of the hearing or trial. Nothing contained herein shall be construed to waive the
physician-patient privilege or to require any privileged communication under law to be disclosed.
(3)
Written objection to subpoenas. – Subject to subsection (d) of this rule, a person
commanded to appear at a deposition or to produce and permit the inspection and
copying of records may, within 10 days after service of the subpoena or before the
time specified for compliance if the time is less than 10 days after service, serve
upon the party or the attorney designated in the subpoena written objection to the
subpoena, setting forth the specific grounds for the objection. The written objection
shall comply with the requirements of Rule 11. Each of the following grounds may
be sufficient for objecting to a subpoena:
a.
The subpoena fails to allow reasonable time for compliance.

90

b.

(d)

(e)

The subpoena requires disclosure of privileged or other protected matter
and no exception or waiver applies to the privilege or protection.
c.
The subpoena subjects a person to an undue burden.
d.
The subpoena is otherwise unreasonable or oppressive.
e.
The subpoena is procedurally defective.
(4)
Order of court required to override objection. – If objection is made under
subdivision (3) of this subsection, the party serving the subpoena shall not be entitled
to compel the subpoenaed person's appearance at a deposition or to inspect and copy
materials to which an objection has been made except pursuant to an order of the
court. If objection is made, the party serving the subpoena may, upon notice to the
subpoenaed person, move at any time for an order to compel the subpoenaed person's
appearance at the deposition or the production of the materials designated in the
subpoena. The motion shall be filed in the court in the county in which the
deposition or production of materials is to occur.
(5)
Motion to quash or modify subpoena. – A person commanded to appear at a trial,
hearing, deposition, or to produce and permit the inspection and copying of records,
books, papers, documents, or other tangible things, within 10 days after service of
the subpoena or before the time specified for compliance if the time is less than 10
days after service, may file a motion to quash or modify the subpoena. The court
shall quash or modify the subpoena if the subpoenaed person demonstrates the
existence of any of the reasons set forth in subdivision (3) of this subsection. The
motion shall be filed in the court in the county in which the trial, hearing, deposition,
or production of materials is to occur.
(6)
Order to compel; expenses to comply with subpoena. – When a court enters an order
compelling a deposition or the production of records, books, papers, documents, or
other tangible things, the order shall protect any person who is not a party or an agent
of a party from significant expense resulting from complying with the subpoena. The
court may order that the person to whom the subpoena is addressed will be
reasonably compensated for the cost of producing the records, books, papers,
documents, or tangible things specified in the subpoena.
(7)
Trade secrets; confidential information. – When a subpoena requires disclosure of a
trade secret or other confidential research, development, or commercial information,
a court may, to protect a person subject to or affected by the subpoena, quash or
modify the subpoena, or when the party on whose behalf the subpoena is issued
shows a substantial need for the testimony or material that cannot otherwise be met
without undue hardship, the court may order a person to make an appearance or
produce the materials only on specified conditions stated in the order.
(8)
Order to quash; expenses. – When a court enters an order quashing or modifying the
subpoena, the court may order the party on whose behalf the subpoena is issued to
pay all or part of the subpoenaed person's reasonable expenses including attorney's
fees.
Duties in Responding to Subpoenas. –
(1)
Form of response. – A person responding to a subpoena to produce documents shall
produce them as they are kept in the usual course of business or shall organize and
label the documents to correspond with the categories in the request.
(2)
Specificity of objection. – When information subject to a subpoena is withheld on
the objection that it is subject to protection as trial preparation materials, or that it is
otherwise privileged, the objection shall be made with specificity and shall be
supported by a description of the nature of the communications, records, books,
papers, documents, or other tangible things not produced, sufficient for the
requesting party to contest the objection.
Contempt; Expenses to Force Compliance With Subpoena. –
(1)
Failure by any person without adequate excuse to obey a subpoena served upon the
person may be deemed a contempt of court. Failure by any party without adequate
cause to obey a subpoena served upon the party shall also subject the party to the
sanctions provided in Rule 37(d).

91

(2)

The court may award costs and attorney's fees to the party who issued a subpoena if
the court determines that a person objected to the subpoena or filed a motion to
quash or modify the subpoena, and the objection or motion was unreasonable or was
made for improper purposes such as unnecessary delay. (1967, c. 954, s. 1; 1969, c.
886, s. 1; 1971, c. 159; 1975, c. 762, s. 3; 1983, c. 665, s. 1; c. 722; 1989, c. 262, s. 1;
2003-276, s. 1.)

Article 7.
Judgment.
Rule 56. Summary judgment.
(a)
For claimant. – A party seeking to recover upon a claim, counterclaim, or crossclaim or to
obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of
the action or after service of a motion for summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(b)
For defending party. – A party against whom a claim, counterclaim, or crossclaim is asserted
or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a
summary judgment in his favor as to all or any part thereof.
(c)
Motion and proceedings thereon. – The motion shall be served at least 10 days before the time
fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing.
If the opposing affidavit is not served on the other parties at least two days before the hearing on the
motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a
response, proceed with the matter without considering the untimely served affidavit, or take such other
action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean
personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit
within the required time.
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary
judgment, interlocutory in character, may be rendered on the issue of liability alone although there is
genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered
against the moving party.
(d)
Case not fully adjudicated on motion. – If on motion under this rule judgment is not rendered
upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable
ascertain what material facts exist without substantial controversy and what material facts are actually and
in good faith controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the
facts so specified shall be deemed established.
(e)
Form of affidavits; further testimony; defense required. – Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be
entered against him.
(f)
When affidavits are unavailable. – Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the
court may refuse the application for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such other order as is just.

92

(g)
Affidavits made in bad faith. – Should it appear to the satisfaction of the court at any time that
any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of
delay, the court shall forthwith order the party employing them to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's
fees. (1967, c. 954, s. 1; 2000-127, s. 6.)

Rule 68. Offer of judgment and disclaimer.
(a)
Offer of judgment. – At any time more than 10 days before the trial begins, a party defending
against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the
money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the
service of the offer the adverse party serves written notice that the offer is accepted, either party may then
file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall
enter judgment. An offer not accepted within 10 days after its service shall be deemed withdrawn and
evidence of the offer is not admissible except in a proceeding to determine costs. If the judgment finally
obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after
the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent
offer.
(b)
Conditional offer of judgment for damages. – A party defending against a claim arising in contract
or quasi contract may, with his responsive pleading, serve upon the claimant an offer in writing that if he
fails in his defense, the damages shall be assessed at a specified sum; and if the claimant signifies his
acceptance thereof in writing within 20 days of the service of such offer, and on the trial prevails, his
damages shall be assessed accordingly. If the claimant does not accept the offer, he must prove his damages
as if the offer had not been made. If the damages assessed in the claimant's favor do not exceed the sum
stated in the offer, the party defending shall recover the costs in respect to the question of damages. (1967,
c. 954, s. 1.)

93

94

File No.

STATE OF NORTH CAROLINA

In The General Court Of Justice
Superior Court Division
District

County
Name Of Plaintiff

PETITION TO SUE/APPEAL
AS AN INDIGENT

VERSUS
Name Of Defendant

G.S. 1-110; 7A-228

AFFIDAVIT
(check one of the two boxes below)

Petition To Sue - As the individual plaintiff in the above entitled action, I affirm that I am financially unable to advance
the required costs for the prosecution of this action. Therefore, I now petition the Court for an order allowing me to
bring suit in this action as an indigent.
I am an inmate in the custody of the Department of Correction.
(Note To Clerk: If this block is checked, this Petition must be submitted to a Superior Court Judge for disposition provided on the reverse.)

Petition To Appeal - As the individual appellant in the above entitled small claims action, I affirm that I am financially
unable to pay the cost for the appeal of this action from small claims to district court. Therefore, I now petition the Court
for an order allowing me to appeal this action to district court as an indigent.
(check one or more of the boxes below as applicable)

I am presently a recipient of
food stamps.
Aid to Families With Dependent Children (AFDC).

Supplemental Security Income (SSI).

I am represented by a legal services organization that has as its primary purpose the furnishing of legal services to
indigent persons, or I am represented by private counsel working on behalf of such a legal services organization.
(Attach a letter from your legal services attorney or have your attorney sign the certificate below.)
Although I am not a recipient of food stamps, AFDC, or SSI, nor am I represented by legal services, I am financially
unable to advance the costs of filing this action or appeal.
Date

SWORN AND SUBSCRIBED TO BEFORE ME
Date

Signature

Signature Of Petitioner

Title Of Person Authorized To Administer Oaths

Name And Address Of Petitioner (Type Or Print)

Date Commission Expires

SEAL
CERTIFICATE OF LEGAL SERVICES/PRO BONO REPRESENTATION
I certify that the above named petitioner is represented by a legal services organization that has as its primary purpose the
furnishing of legal services to indigent persons or is represented by private counsel working on behalf of or under the
auspices of such legal services organization.
Date

Signature

Name And Address (Type Or Print)

ORDER
Based on the Affidavit appearing above, it is ORDERED that:
the petitioner is authorized to bring suit or to appeal in this action as an indigent.
the petition is denied.
Date

Signature

Assistant CSC
Judge

NOTE TO CLERK:

Clerk Of Superior Court
Magistrate (for appeal only)

If the petitioner is NOT a recipient of food stamps, AFDC, SSI or is NOT represented by legal services or a private attorney on
behalf of legal services, you may ask for additional financial information to determine whether the petitioner is unable to pay the costs.
AOC-G-106, Rev. 9/95
1997 Administrative Office of the Courts

(Over)

ORDER - DOC INMATES
The undersigned superior court judge of this district finds that the petitioner is an inmate in the custody of the Department of Correction
and that the complaint

is not frivolous.
is frivolous.
It is ORDERED that

the petitioner is authorized to sue in this action as an indigent.
the petitioner is not authorized to sue as an indigent.
the action is dismissed.
Date

Name Of Superior Court Judge (Type Or Print)

Signature Of Superior Court Judge

CERTIFICATION
I certify that this Petition has been served on the party named by depositing a copy in a post-paid properly addressed
envelope in a post office or official depository under the exclusive care and custody of the United States Postal Service.
Date

Signature
Deputy CSC

Assistant CSC

Clerk Of Superior Court

NOTE: G.S. 1-110(b) provides: "The Clerk of Superior Court shall serve a copy of the order of dismissal upon the prison inmate."

AOC-G-106, Side Two, Rev. 9/95
1997 Administrative Office of the Courts

File No.

STATE OF NORTH CAROLINA

In The General Court Of Justice
District
Superior Court Division

County
Name Of Plaintiff 1

GENERAL

Tax ID/SSN

CIVIL ACTION COVER SHEET

Name Of Plaintiff 2

INITIAL FILING

Tax ID/SSN

SUBSEQUENT FILING

Rule 5(b), Rules of Practice For Superior and District Courts
Name Of Plaintiff 3

Name And Address Of Attorney Or Party, If Not Represented (complete for initial
appearance or change of address)

Tax ID/SSN

Name Of Defendant 1

VERSUS

Tax ID/SSN

Attorney Bar No.
Summons Submitted

Yes

No

Name Of Defendant 2

Initial Appearance in Case
Name Of Firm

Tax ID/SSN

Summons Submitted

Yes

Tax ID No.

Telephone No.

FAX No.

No
Counsel for

Name Of Defendant 3

All Plaintiffs
Tax ID/SSN

All Defendants

Only (List party(ies) represented)

Summons Submitted

Yes

No

Jury Demanded In Pleading
Complex Litigation
TYPE OF PLEADING
(check all that apply)

Amended Answer/Reply (AMND-Response)
Amended Complaint (AMND)
Answer/Reply (ANSW-Response)
Complaint (COMP)
Confession of Judgment (CNFJ)
Counterclaim vs. (CTCL)
All Plaintiffs

Change of Address

Only (List on back)

Crossclaim vs. (List on back) (CRSS)
Extend Statute of Limitations, Rule 9 (ESOL)
Extend Time For Answer (MEOT-Response)
Extend Time For Complaint (EXCO)
Rule 12 Motion In Lieu Of Answer (MDLA)
Third Party Complaint (List Third Party Defendants on Back)
(TPCL)
Other: (specify)

Amount in controversy does not exceed $15,000
Stipulate to arbitration
CLAIMS FOR RELIEF FOR:
Administrative Appeal (ADMA)
Appointment of Receiver (APRC)
Attachment/Garnishment (ATTC)
Claim and Delivery (CLMD)
Collection on Account (ACCT)
Condemnation (CNDM)
Contract (CNTR)
Discovery Scheduling Order (DSCH)
Injunction (INJU)
Medical Malpractice (MDML)
Minor Settlement (MSTL)
Money Owed (MNYO)
Negligence - Motor Vehicle (MVNG)
Negligence - Other (NEGO)
Motor Vehicle Lien G.S. 44A (MVLN)
Limited Driving Privilege - Out-of-State Convictions (PLDP)
Possession of Personal Property (POPP)
Product Liability (PROD)
Real Property (RLPR)
Specific Performance (SPPR)
Other: (specify)

NOTE: Small claims are exempt from cover sheets.
Date

Signature Of Attorney/Party

NOTE: The initial filing in civil actions shall include as the first page of the filing a cover sheet summarizing the critical elements of the filing in a format prescribed by the

Administrative Office of the Courts, and the Clerk of Superior Court shall require a party to refile a filing which does not include the required cover sheet. For
subsequent filings in civil actions, the filing party must either include a cover sheet or the filing must comply with G.S. 7A-34.1.
AOC-CV-751, Rev. 10/01
(Over)
2001 Administrative Office of the Courts

No.

Additional Plaintiff(s)

No.

Additional Defendant(s)

Plaintiff(s) Against Whom Counterclaim Asserted

Defendant(s) Against Whom Crossclaim Asserted

AOC-CV-751, Side Two, Rev. 10/01
2001 Administrative Office of the Courts

Tax ID/SSN

Third Party Defendant(s)

Tax ID/SSN

Summons
Submitted
Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

File No.

STATE OF NORTH CAROLINA
County

In The General Court Of Justice
District
Superior Court Division

Name Of Plaintiff
Address

CIVIL SUMMONS

City, State, Zip

ALIAS AND PLURIES SUMMONS
VERSUS

Name Of Defendant(s)

G.S. 1A-1, Rules 3, 4
Date Original Summons Issued
Date(s) Subsequent Summons(es) Issued

To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

A Civil Action Has Been Commenced Against You!
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days
after you have been served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the
plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (If None, Address Of Plaintiff)

Date Issued

Time

AM

PM

Signature

Deputy CSC

ENDORSEMENT
This Summons was originally issued on the date
indicated above and returned not served. At the
request of the plaintiff, the time within which
this Summons must be served is extended sixty (60)
days.

Date Of Endorsement

Assistant CSC
Time

Clerk Of Superior Court

AM

PM

Signature

Deputy CSC

Assistant CSC

Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount in controversy is
$15,000 or less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for
mandatory arbitration, and, if so, what procedure is to be followed.
AOC-CV-100, Rev. 10/01
2001 Administrative Office of the Courts

(Over)

RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Date Served

Time Served

Name Of Defendant

AM

PM

By delivering to the defendant named above a copy of the summons and complaint.
By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named
above with a person of suitable age and discretion then residing therein.
As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the
person named below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)

Defendant WAS NOT served for the following reason:

Date Served

DEFENDANT 2

Time Served

Name Of Defendant

AM

PM

By delivering to the defendant named above a copy of the summons and complaint.
By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named
above with a person of suitable age and discretion then residing therein.
As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the
person named below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)

Defendant WAS NOT served for the following reason.

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheriff (Type Or Print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 10/01
2001 Administrative Office of the Courts

File No.

STATE OF NORTH CAROLINA

In The General Court Of Justice
District
Superior Court Division

County
Name Of Plaintiff

MOTION COVER SHEET

VERSUS
Name Of Defendant

Rule 5(b), Rules of Practice For Superior and District Courts
Name And Address Of Attorney Or Party, If Not Represented (complete for initial
appearance or change of address)

Name Of Firm

Tax ID No.
Attorney Bar No.

Telephone No.

Initial Appearance in Case

FAX No.

Change of Address

MOTION
Type of Motion

(For each motion, enter code for
Type of Motion from list on

Against (Identify Party)

By (Identify Party)
All
All

All

All

All

All
All

All

All

All
All

All

All

All
All

All

All
All
All

All

All
All

All

All

All

All
All

All

All

All

All

All

All

All

All

All

All

All

All

All
All
All

All

All

All
All

All

All

All

All

Date

Signature Of Attorney/Party

NOTE: The initial filing in civil actions shall include as the first page of the filing a cover sheet summarizing the critical elements of the filing in a format prescribed by the
Administrative Office of the Courts, and the Clerk of Superior Court shall require a party to refile a filing which does not include the required cover sheet. For
subsequent filings in civil actions, the filing party must either include a cover sheet or the filing must comply with G.S. 7A-34.1.

AOC-CV-752, Rev. 10/01,

2001 Administrative Office of the Courts

(Over)

TYPES OF MOTIONS
Add Additional Party (ADDP)
Amend (AMND)
Change Of Venue (CHVN)
Compel (CMPL)
Consolidation (CNSL)
Contempt (CNTP)
Continue (CNTN)
Default Judgment (DEFJ)
Deposition (DEPO)
Designate A Mediator (DSMD)
Disburse Funds (DFND)
Dismiss (Involuntary) (DISM)
Entry Of Default (EODF)
Ex Parte Restraining (EXPR)
Exempt From Arbitration (EXAR)
Exempt/Waive Mediation (EXMD)
Extension Of Time (EXTM)
Increase Bond (INBN)
In The Cause (INTC)
In Limine (ILIM)
Intervene (INTR)
Join (JOIN)
Judgment On Pleading (JOPL)
Jury View (JRVW)
Limit Deposition (LDEP)
Modification Of Alimony (MALI)
Modification Of Custody (MCUS)

AOC-CV-752, Side Two, Rev. 10/01
2001 Administrative Office of the Courts

Modification Of Support (MSUP)
Modification Of Visitation (MVIS)
More Definite Statement (Rule 12) (MDST)
New Trial (NTRL)
Objection Of Exemptions Claimed (OEXC)
Other (OTHR) (Describe on front)
Preliminary Injunction (PREL)
Quash (QUSH)
Release From Stay Of Execution (RSEX)
Sanctions (SANC)
Sever Issues Or Claims (SICL)
Show Cause (SHOW)
Special Practice In NC (ADMP)
Stay Of Execution (STEX)
Strike (STRK)
Summary Judgment (SUMJ)
Transfer (TRFR)
Temporary Restraining Order (TROR)
Vacate/Modify Judgment Or Order (VCMD)
Withdraw As Counsel (WDCN)

File No.

STATE OF NORTH CAROLINA

In The General Court Of Justice
Superior Court Division

County
Name Of Plaintiff(s)

MOTION AND ORDER FOR CONTINUANCE
(CIVIL SUPERIOR CASES)

VERSUS

Name Of Defendant(s)

INSTRUCTIONS: MOVING PARTY must complete all information requested below. Copy of completed form must be faxed, mailed or

hand delivered to opposing counsel or unrepresented party(ies) prior to deliver to Senior Resident Superior Court Judge or his/her designee.
Upon receipt, OPPOSING PARTY must immediately communicate any objections to Senior Resident Superior Court Judge or his/her
Previous No. Of Continuances

Date Case Filed

Calendared Trial Date

Opposing Counsel

Date

Copy(ies) Distributed To Opposing Counsel(s)/Party(ies) By
U.S. Mail

Facsimile

Hand Delivery

Atty Box

Reason(s) For Continuance Request (attach additional sheet if necessary)

Requested Reschedule Date Or Carryover Date

Name And Address Of Movant

Has Client(s) Been Notified Of Continuance Request?
(not applicable if pro se)
Yes

Telephone No.

No

Date

Signature Of Movant

TO BE COMPLETED BY JUDICIAL SUPPORT STAFF
Objection(s) received?
(attach written objections)

Date Motion Received

Yes

No

Total No. Of Cases On Trial Calendar

Date

Denied

Less Than 12 Months

12 to 18 Months

More Than 18 Months

Current Ranking Of This Case On Trial Calendar

Date Case Set On This Trial Calendar

Ruling:

Case Age:

Attorney input into trial setting?
Granted

Date Rescheduled

Counsel Notified Of Ruling By

Name Of Senior Resident Superior Court Judge/Designee (Type Or Print)

AOC-CV-221, New 4/98
1998 Administrative Office of the Courts

Original - Case File

Yes

No

Date

Signature Of Senior Resident Superior Court Judge/Designee

File No.

STATE OF NORTH CAROLINA
In The General Court Of Justice
District Court Division-Small Claims

County

COMPLAINT
FOR MONEY OWED

1. The defendant is a resident of the county named above.

G.S. 7A-216, 7A-232

2. The defendant owes me the amount listed for the following reason:

Name And Address Of Plaintiff

Principal Amount Owed

$

Interest Owed (if any)

$

Total Amount Owed

$

Social Security No./Taxpayer ID No.

(check one below)
County

Telephone No.

Date From Which Interest Due

Interest Rate

Beginning Date

Interest Rate

On An Account (attach a copy of the account)
VERSUS
Individual

Name And Address Of Defendant 1

Ending Date

For Goods Sold And Delivered Between

Corporation

Date From Which Interest Due

Interest Rate

Date Of Note

Interest Rate

For Money Lent
Date From Which Interest Due

On a Promissory Note (attach copy)
For a Worthless Check (attach a copy of the check)
County

Telephone No.

Name And Address Of Defendant 2

Individual

For conversion (describe property)
Corporation

Other: (specify)
County

Telephone No.

Name And Address Of Plaintiff's Attorney

I demand to recover the total amount listed above, plus interest and reimbursement for court costs.
Date

AOC-CVM-200, Rev. 10/04
2004 Administrative Office of the Courts

Signature Of Plaintiff Or Attorney

(Over)

INSTRUCTIONS TO PLAINTIFF OR DEFENDANT
1. The PLAINTIFF must file a small claim action in the county where at least
one of the defendants resides.
2. The PLAINTIFF cannot sue in small claims court for more than $5,000.00
excluding interest and costs.
3. The PLAINTIFF must show the complete name and address of the
defendant to ensure service on the defendant. If there are two defendants
and they reside at different addresses, the plaintiff must include both
addresses. The plaintiff must determine if the defendant is a corporation
and sue in the complete corporate name. If the business is not a
corporation, the plaintiff must determine the owner's name and sue the
owner.
4. The PLAINTIFF may serve the defendant(s) by mailing a copy of the
summons and complaint by registered or certified mail, return receipt
requested, addressed to the party to be served or by paying the costs to
have the sheriff serve the summons and complaint. If certified or
registered mail is used, the plaintiff must prepare and file a sworn
statement with the Clerk of Superior Court proving service by certified
mail and must attach to that statement the postal receipt showing that the
letter was accepted.
5. The PLAINTIFF must pay advance court costs at the time of filing this
Complaint. In the event that judgment is entered in favor of the plaintiff,
court costs may be charged against the defendant.

AOC-CVM-200, Rev. 10/04
2004 Administrative Office of the Courts

6. The DEFENDANT may file a written answer, making defense to the
claim, in the office of the Clerk of Superior Court. This answer
should be accompanied by a copy for the plaintiff and be filed no
later than the time set for trial. The filing of the answer DOES NOT
relieve the defendant of the need to appear before the magistrate to
assert the defendant's defense.
7. Whether or not an answer is filed, the PLAINTIFF must appear
before the magistrate.
8. The PLAINTIFF or the DEFENDANT may appeal the magistrate's
decision in this case. To appeal, notice must be given in open court
when the judgment is rendered, or notice may be given in writing to
the Clerk of Superior Court within ten (10) days after the judgment is
rendered. If notice is given in writing, the appealing party must also
serve written notice of appeal on all other parties. The appealing
party must PAY to the Clerk of Superior Court the costs of court for
appeal within twenty (20) days after the judgment is rendered.
This form is supplied in order to expedite the handling of small
9. claims. It is designed to cover the most common claims.

10.

The Clerk or magistrate cannot advise you about your
case or assist you in completing this form. If you
have any questions, you should consult an attorney.

File No.

STATE OF NORTH CAROLINA
COMPLAINT
TO RECOVER POSSESSION
OF PERSONAL PROPERTY
PLAINTIFF A SECURED PARTY
PLAINTIFF NOT A SECURED PARTY
G.S. 7A-232; 25-9-609

Name And Address Of Plaintiff

In The General Court Of Justice
District Court Division-Small Claims

County

WHEN PLAINTIFF IS A SECURED PARTY
The defendant is a resident of the county named above. I have a security interest in the personal property
described in the attached security agreement. The total current value of this property is as shown below.
The defendant has defaulted in the payment of the debt which the property secures or has otherwise
breached the terms of the security agreement giving me the right to claim immediate possession of the
property described below. I demand recovery of this property and reimbursement for court costs.
Description Of Personal Property In Which You Have a Secured Interest (Attach Copy Of Security Agreement)

Total Value Of Property
To Be Recovered

Social Security No./Taxpayer ID No.

$
County

Date

Telephone No.

Signature Of Plaintiff Or Attorney

VERSUS
Individual

Name And Address Of Defendant 1

County

WHEN PLAINTIFF IS NOT A SECURED PARTY
Corporation

The defendant is a resident of the county named above. The defendant has in his/her possession the
personal property described below which belongs to me. I am entitled to immediate possession of the
property, but the defendant has refused on demand to deliver it to me. The defendant has unlawfully kept
possession of this property since the date listed below and has therefore deprived me of its use. The
damage due me for the loss of use and physical damage to the property is set out below. I demand recovery
of this property and damages in the total amount set out below, plus interest and reimbursement for court
costs.

Telephone No.

Individual

Name And Address Of Defendant 2

Corporation
Description Of Personal Property You Own Which Is In Possession Of Defendant

Total Value Of Property
To Be Recovered

$
County

Telephone No.

Date Defendant Wrongfully Took Or Kept Property

Damage Due For Loss Of Use

$

Physical Damage To Property

$

Total Amount Of Damages

$

Name And Address Of Plaintiff's Attorney

Date

AOC-CVM-202, Rev. 10/04
2004 Administrative Office of the Courts

Signature Of Plaintiff Or Attorney

Original-File

Copy-Each Defendant
(Over)

Copy-Attorney/Plaintiff

INSTRUCTIONS TO PLAINTIFF OR DEFENDANT
1. The PLAINTIFF must file a small claim action in the county where at
least one of the defendants resides.
2. The PLAINTIFF cannot sue to recover property worth more than
$5,000.00.
3. The PLAINTIFF must show the complete name and address of the
defendant to ensure service on the defendant. If there are two
defendants and they reside at different addresses, the plaintiff must
include both addresses. The plaintiff must determine if the defendant is
a corporation and sue in the complete corporate name. If the business
is not a corporation, the plaintiff must determine the owner's name and
sue the owner.
4. The PLAINTIFF may serve the defendant(s) by mailing a copy of the
summons and complaint by registered or certified mail, return receipt
requested, addressed to the party to be served or by paying the costs
to have the sheriff serve the summons and complaint. If certified or
registered mail is used, the plaintiff must prepare and file a sworn
statement with the Clerk of Superior Court proving service by certified
mail and must attach to that statement the postal receipt showing that
the letter was accepted.
5. The PLAINTIFF must pay advance court costs at the time of filing this
Complaint. In the event that judgment is rendered in favor of the
plaintiff, court costs may be charged against the defendant.

AOC-CVM-202, Rev. 10/04
2004 Administrative Office of the Courts

6. The DEFENDANT may file a written answer, making defense to the claim,
in the office of the Clerk of Superior Court. This answer should be
accompanied by a copy for the plaintiff and be filed no later than the time
set for trial. The filing of the answer DOES NOT relieve the defendant of
the need to appear before the magistrate to assert the defendant's
defense.
7. Whether or not an answer is filed, the PLAINTIFF must appear before the
magistrate.
8. The PLAINTIFF or the DEFENDANT may appeal the magistrate's
decision in this case. To appeal, notice must be given in open court when
the judgment is entered, or notice may be given in writing to the Clerk of
Superior Court within ten (10) days after the judgment is entered. If notice
is given in writing, the appealing party must also serve written notice of
appeal on all other parties. The appealing party must PAY to the Clerk of
Superior Court the costs of court for appeal within twenty (20) days after
the judgment is entered. A defendant who appeals also must post a bond
to stay execution of the judgment within ten (10) days after the judgement
is entered.
9. This form is supplied in order to expedite the handling of small claims. It
is designed to cover the most common claims.
10. The Clerk or magistrate cannot advise you about your case or assist you
in completing this form. If you have any questions, you should consult an
attorney.

APPENDIX E:
NORTH CAROLINA PROCESS
SERVERS

109

110

Name:
Address:

Phone(s):
Counties
Served:

Reynolds, Ruth A.
Reynolds Professional Service, Inc.
P.O. Box 18585
Charlotte, NC 28218-0585
4801 East Independence Blvd., #700
Charlotte, NC 28205
(800) 814-8662, (704) 338-1775
States of SC, NC: York

Phone(s):
Counties
Served:
Name:
Address:

Phone(s):
Counties
Served:

Name:
Address:

Phone(s):
Counties
Served:
Name:
Address:

Phone(s):
Name:
Address:

State of NC

Poindexter, Carlyle Taylor
Poindexter & Associates, LLC
P.O. Box 37284
Raleigh, NC 27627
5 West Hargett Street, Suite 401
Raleigh, NC 27601
(800) 373-2804, (919) 859-5294
Phone(s):
Counties Served: All counties where private service allowed;
Investigative extension office in Cali,
Colombia, South America
Name:
Address:

Phone(s):
Counties
Served:
Hollen, Keith
Name:
Member Since: 2005
Eagle Eye Detective Agency & Associates
Address:
1409 East Blvd., Ste. 110
Charlotte, NC 28203
(866) 376-2728, (704) 376-2728
Phone(s):
Fax Number: (704) 376-2725
Counties
States of NC, SC
Served:
Name:
Address:

(704) 864-2437

Galvin, Patrick
Galvin Process and Detective Agency
P.O. Box 97372
Raleigh, NC 27624
816 North Clift Drive
Raleigh, NC 27609
(919) 846-0021
Phone(s):
Counties Served: State of NC
Name:
Address:

Finnegan, Victor
American Expediting Company
901 Suite G, North Tryon Street
Charlotte, NC 28206
(800) 965-2153, (704) 344-8929

Penny, Alice W.
Paralegal Services of North Carolina
120 Penmarc Drive, Suite 118
Raleigh, NC 27603
(919) 821-7762
Phone(s):
Counties Served: State of NC
Name:
Address:

State of NC
Clark, Robert M. 'Monty'
Clark & Associates, Private Investigative
Services
P.O. Box 668971
Charlotte, NC 28266-8971
7519 Pawtuckett Road
Charlotte, NC 28214
(800) 297-4023, (704) 398-0025, (704) 576-4698
States of NC, SC; Mecklenburg, Stanley,
Cabarrus, Union, Gaston, Catawba, Cleveland,
Iredell, York, Lancaster
Cochrane, Jeff
Cochrane Investigations Inc.
9415 Errington Lane
Charlotte, NC 28227
(704) 545-6500

Tart, Lee W.
Eastern North Carolina Investigative & Process
Svc
P.O. Box Drawer 25038
Raleigh, NC 27611
1451 Old Goldsboro Road
Newton Grove, NC 28366
(910) 594-1833
Phone(s):
Counties Served: Central & Eastern NC
Name:
Address:

Name:
Address:

Phone(s):
Counties Served:

States of NC, SC
Hughes, Nicholas
Atlas Investigations
6420 Rea Road Suite 111
Charlotte, NC 28277
(704) 277-3661

Branagan, John
JB Investigative Services, LLC
P.O. Box 98175
Raleigh, NC 27624-8175
(919) 870-0902, (919) 880-5972
State of NC

Deal, D. Charles
American Process Service & Investigations,
Inc.
P.O. Box 1900
Little River, SC 29566
(877) 233-9700, (843) 280-1300
Phone(s):
(843) 280-2800
Fax Number:
Counties Served: States of SC, NC
Name:
Address:

Casey, Mary A.
Allways Express
P.O. Box 309
Gastonia, NC 28053

111

112

APPENDIX F:
BOCA RATON, FL PROCESS
SERVERS

113

114

Name:
Address:

Gutierrez, Maria J.
Judicial Process & Support, Inc.
8930 State Rd. 84, No. 104
Davie, FL 33324
Phone(s):
(800) 852-5002, (305) 347-3353, (305) 710-9174
Fax Number:
(305) 347-3354
Counties Served: Dade, Broward, Palm Beach, Monroe
Name:
Address:

Dennis-Leigh, David
Advantage Services Company
P.O. Box 11229
Pompano Beach, FL 33061-7229
896 N. Federal Hwy., #812
Pompano Beach, FL 33062
Phone(s):
(800) 924-6427, (954) 946-6483
Fax Number:
(954) 942-1148
Counties Served: Broward, Palm Beach
Name:
Address:

Levy, Jonathan
Agency for Civil Enforcement Corporation
102 NE 2nd St., Suite 147
Boca Raton, FL 33432
Phone(s):
(561) 447-7638
Fax Number:
(561) 447-7639
Counties Served: Palm Beach, Miami-Dade, Broward
Name:
Address:

Hammack, James W. 'Jim'
Florida State Process Service, Inc.
2500 Hollywood Blvd., Ste. 207
Hollywood, FL 33020
Phone(s):
(888) 945-8900, (954) 923-8800
Fax Number:
(954) 923-8885
Counties Served: Dade, Broward, Palm Beach, Martin, Saint Lucie

115

116

APPENDIX G:
SAMPLE FEDERAL COURT
COMPLAINTS

The parts in “handwriting” print are for you to change to fit your situation.
The regular print may also have to be changed, but generally should go in a Complaint.

117

118

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION

NAME OF PLAINTIFF, Pro Se
RIVERS CORRECTIONAL INSTITUTION
P.O. BOX 630
WINTON, NC 27986
Plaintiff,
v.
The Geo Group, Inc.
621 NW 53rd Street, Suite 700
Boca Raton, FL 33487

Joe Guard(s), Employee(s) of Geo Group]
ADDRESS(es)
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. __:____-CV-___(_)

COMPLAINT FOR BATTERY
COMES NOW PLAINTIFF, John Prisoner, and complains against Defendant[s] as
follows:
PRELIMINARY STATEMENT
This is an action seeking monetary damages resulting from the battery of
Plaintiff by Defendant[s].
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(a)
since the amount in controversy exceeds $75,000 exclusive of interests and costs and
there is diversity of citizenship.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(a) because
the events giving rise to this claim took place in this judicial district.

119

PARTIES
Plaintiff, Joe PRisoner, is an inmate at Rivers Correctional Institution
(hereinafter “RCI”), located at 145 Parker’s Fishery Road, Winton, North Carolina
27986. He entered the facility on date.
Defendant The Geo Group, Inc. is a business incorporated in Florida doing
business in North Carolina and owns and operates the RCI in Winton, North Carolina.
Defendant[s], Joe Guard(s) is/are [an] employee[s] of The Geo Group, Inc.
FACTUAL ALLEGATIONS
DESCRIBE THE FACTS OF THE SITUATION. Tell the story of how you were
attacked or assaulted in your own words, simply and clearly.
CLAIM FOR RELIEF
Defendant[s]_________________ on __________, 20__, at __________,
without the consent of the Plaintiff, intentionally acted to cause a [harmful or offensive
contact or the imminent apprehension of a harmful or offensive contact] with the body
of the Plaintiff.
Defendant[s], _________________, [an] employee[s] of The Geo Group, Inc.
was/were at the time of injury to the plaintiff acting within the scope of his/her/their
employment, and was acting under its supervision and control.
As a result of Defendant’s[s’] action, a harmful contact to the body of the
Plaintiff directly/indirectly resulted.
As a result thereof, Plaintiff was injured, suffered great pain and anguish of
body and mind, and was put to great expense for medical attendance and nursing.
PRAYER FOR RELIEF
WHEREFORE the plaintiff demands judgment against the defendant for
damages and costs and all other relief as this Court deems necessary and proper.

JURY DEMAND
Plaintiff demands trial by jury of all issues triable by jury as of right.
Dated:

Respectfully submitted,

120

By________________________
[PLAINTIFF’S NAME], Pro Se

121

122

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION

)
)
)
)
)
)
)
)
)
)
)
)
)

NAME OF PLAINTIFF,
CI RIVERS
CORRECTIONAL INSTITUTION
P.O. BOX 630
WINTON, NC 27986
Plaintiff,
v.
The Geo Group, Inc.
621 NW 53rd Street, Suite 700
Boca Raton, FL 33487

No. __:____-CV-___(_)

)
)
)

Defendants.

COMPLAINT FOR NEGLIGENCE
COMES NOW PLAINTIFF, John Prisoner, and complains against Defendant[s] as
follows:
PRELIMINARY STATEMENT
This is an action seeking monetary damages stemming from injury
Plaintiff received as a result of Defendant’s[s’] negligence.
JURISDICTION AND VENUE
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(a) since
the amount in controversy exceeds $75,000 exclusive of interests and costs and there is
diversity of citizenship.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(a) because the
events giving rise to this claim took place in this judicial district.

123

PARTIES
Plaintiff, John Prisoner, is an inmate at Rivers Correctional Institution
(hereinafter “RCI”), located at 145 Parker’s Fishery Road, Winton, North Carolina
27986. He entered the facility on date.
Defendant The Geo Group, Inc. is a business incorporated in Florida doing
business in North Carolina and owns and operates the CI Rivers Correctional Institution
in Winton, North Carolina.
Defendant[s], Joe Guard(s), is/are [an] employee[s] of The Geo Group,
Inc..
FACTUAL ALLEGATIONS
DESCRIBE THE FACTS OF THE SITUATION. Describe that the defendants
you named had to do something and by not showing normal care, you were hurt.
CLAIM FOR RELIEF
Defendant[s], Joe Guard, [an] employee[s] of The Geo Group, Inc, was/were at
the time of injury to the plaintiff acting within the scope of his/their employment when
he/they negligently [describe negligent act or omission].
As a result of Defendant’s[s’] negligence, the plaintiff suffered bodily injuries and
physical and mental pain. [If plaintiff incurred medical expenses or his earning power
was permanently impaired, state that here as well.]
PRAYER FOR RELIEF
WHEREFORE Plaintiff demands judgment against Defendant[s] for damages,
costs and and all other relief as this Court deems necessary and proper.
JURY DEMAND
Plaintiff demands trial by jury of all issues triable by jury as of right.

Dated:

Respectfully submitted,
By________________________
[PLAINTIFF’S NAME], Pro Se

124

APPENDIX H:
SAMPLE STATE COURT
COMPLAINTS

125

126

STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF HERTFORD
_ _- CVS-________
John Prisoner, Pro Se
RIVERS CORRECTIONAL INSTITUTION
P.O. BOX 630
WINTON, NC 27986
Plaintiff,
v.
The Geo Group, Inc.
621 NW 53rd Street, Suite 700
Boca Raton, FL 33487
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

COMPLAINT
FOR THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
COMES NOW PLAINTIFF, John Prisoner, and complains against Defendant[s] as
follows:
PRELIMINARY STATEMENT
This is an action seeking monetary damages resulting from Defendant’s[s’]
intentional infliction of emotional distress to Plaintiff.
JURISDICTION AND VENUE
This court has jurisdiction over Plaintiff’s claims pursuant to N.C. Gen N.C.
Gen Stat. § 1-75.4 and Stat. § 7A-243, because this is a civil action for damages that
exceed $10,000.
Venue is proper in the Superior Court in and for Hertford County, North
Carolina pursuant to N.C. Gen Stat. §§ 1-79, 1-80, and § 1-82.
There is an actual, justiciable controversy between Plaintiff and Defendant[s].

127

PARTIES
Plaintiff, John Prisoner, is an inmate at Rivers Correctional Institution
(hereinafter “RCI”), located at 145 Parker’s Fishery Road, Winton, North Carolina
27986. He entered the facility on date.
Defendant The Geo Group, Inc. is a business incorporated in Florida doing
business in North Carolina and owns and operates the CI Rivers Correctional Institution
in Winton, North Carolina.
Defendant[s], ___________________ is/are [an] employee[s] of The Geo
Group, Inc..
FACTUAL ALLEGATIONS
DESCRIBE THE FACTS OF THE SITUATION. Tell what happened in your own
words to show that the defendants who you named intentionally caused you
emotional distress.
CLAIM FOR RELIEF
Defendant[s], Joe Guard, an employee of The Geo Group, Inc, was/were at the
time of injury to the plaintiff acting within the scope of his/their employment.
Defendant’s[s’] conduct toward Plaintiff was conducted in an intentional or
reckless manner.
Defendant’s[s’] conduct was outrageous and intolerable because it offended
generally accepted standards of decency and morality.
Defendant’s[s’] conduct caused the Plaintiff to suffer severe emotional
distress.
PRAYER FOR RELIEF
WHEREFORE Plaintiff demands judgment against Defendant[s] for damages,
costs and disbursements and all other relief as this Court deems necessary and proper.
JURY DEMAND
Plaintiff demands trial by jury of all issues triable by jury as of right.
.
Dated:

Respectfully submitted,
By________________________
[PLAINTIFF’S NAME], Pro Se

128

STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF HERTFORD
_ _- CVS-________

John Prisoner,
RIVERS CORRECTIONAL INSTITUTION
P.O. BOX 630
WINTON, NC 27986
Plaintiff,
v.
The Geo Group, Inc.
621 NW 53rd Street, Suite 700
Boca Raton, FL 33487
Joe Guard(s)
[ADDRESS(s)]

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

COMPLAINT FOR NEGLIGENCE
COMES NOW PLAINTIFF, John Prisoner, and complains against Defendant[s] as
follows:
PRELIMINARY STATEMENT
This is an action seeking monetary damages stemming from injury
Plaintiff received as a result of Defendant’s[s’] negligence.
JURISDICTION AND VENUE
This court has jurisdiction over Plaintiff’s claims pursuant to N.C. Gen N.C.
Gen Stat. § 1-75.4 and Stat. § 7A-243, because this is a civil action for damages that
exceed $10,000.
Venue is proper in the Superior Court in and for Hertford County, North
Carolina pursuant to N.C. Gen Stat. §§ 1-79, 1-80, and § 1-82.

129

There is an actual, justiciable controversy between Plaintiff and Defendant[s].
PARTIES
Plaintiff, John Prisoner], is an inmate at Rivers Correctional Institution
(hereinafter “RCI”), located at 145 Parker’s Fishery Road, Winton, North Carolina
27986. He entered the facility on date.
Defendant The Geo Group, Inc. is a business incorporated in Florida doing
business in North Carolina and owns and operates the RCI in Winton, North Carolina.
Defendant[s], Joe Guards(s), is/are [an] employee[s] of The Geo Group, Inc.
FACTUAL ALLEGATIONS
DESCRIBE THE FACTS OF THE SITUATION
CLAIM FOR RELIEF
Defendant[s], Joe Guards(s), [an] employee[s] of The Geo Group, Inc,
was/were at the time of injury to the plaintiff acting within the scope of his/their
employment when he/they negligently [describe negligent act or omission].
As a result of Defendant’s[s’] negligence, the plaintiff suffered bodily injuries
and physical and mental pain.
PRAYER FOR RELIEF
WHEREFORE Plaintiff demands judgment against Defendant[s] for damages,
costs and disbursements and all other relief as this Court deems necessary and proper.
JURY DEMAND
Plaintiff demands trial by jury of all issues triable by jury as of right.

Dated:

Respectfully submitted,

By________________________
[PLAINTIFF’S NAME], Pro Se

130

D.C. PRISONERS’ PROJECT
WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS
AND URBAN AFFAIRS
11 Dupont Circle, NW
Suite 400
Washington, DC 20036

PRISONER HELP LINE
(We accept collect calls)
(202) 775-0323

Please write us with suggestions for the next edition of this booklet or other booklets you
would like to see.

131