N.C. Judge Clarifies Timing of Filing Motions to Dismiss



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Sept. 18, 2017

North Carolina Business Court Judge Michael Robinson recently clarified conflicting precedents over when defendants can file motions to dismiss for failure to state a claim in North Carolina’s courts. In New Friendship Used Clothing Collection, LLC v. Katz, Defendant Katz filed his answer three days before filing his motion to dismiss. Federal judges have previously held different views of whether that practice is allowed under Federal Rule 12(b), but North Carolina appellate courts have never addressed the issue. Judge Robinson held that under North Carolina’s Rule 12(b), filing a motion to dismiss after filing an answer is untimely, and he dismissed Katz’s motion.

Julian H. Wright Jr. and Erik R. Zimmerman represented the plaintiffs in this case. Wright was quoted in a North Carolina Lawyers Weekly article discussing the decision.

“While the federal cases do seem to offer some exceptions in various cases, the better rule seems to be to follow the clear language in Rule 12 and go ahead and file any motion to dismiss before you file your answer,” Wright said. “If the rule was not clear enough already, then Judge Robinson’s opinion certainly provides definitive clarity on this issue for people in the future trying to time their motions to dismiss and answers they want to file.”

To read “Timing snafu spurs denial of motion to dismiss,” please visit North Carolina Lawyers Weekly.

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