Effective October 1, 2020, House Bill 679 amended Rules 3 and Rule 5 of the North Carolina Rules of Civil Procedure. See here. Of significance, Rule 5 was amended to make electronic mail, and e-filing where available, permissible forms of service in most circumstances. Notably, HB 679 did not alter the “three day mailing rule” found in North Carolina Rule of Civil Procedure 6(e). That rule, which allows for three additional days to be added to the time to perform an act after service by mail, therefore would not apply to the newly permitted service by email or e-filing. In reaction to these changes, some practitioners pointed out that this created a contradiction, at least in practice, between the amended Rules of Civil Procedure and the North Carolina Business Court Rules. Under NCBC Rule 3.9(d), service by email or e-filing (which the Business Court has allowed for years) was still treated as “service by mail” for the purposes of Rule 6(e) of the rules of Civil Procedure. Thus, after the amendment to Rule 5 that, unaccompanied by an amendment to Rule 6(e), did not apply the “three-day rule” to service by email or e-filing in non-NCBC state court cases, the situation existed where in Business Court cases email and e-filing was still expressly treated as service by mail and Rule 6(e) applied, but in non-Business Court cases, the three day rule from Rule 6(e) did not apply to those same methods of service.
Not surprisingly, the North Carolina Business Court and Chief Judge Bledsoe were on top of the issue, and presented the Supreme Court of North Carolina (which pursuant to N.C.G.S. Section 7A-34 has the authority to and responsibility for any change the NCBC rules) with proposed amendments to the Business Court Rules. Those proposed amendments would bring email and e-filing service in the Business Court in line with email and e-filing service in other state court cases, and eliminate the application of the three day rule in Rule 6(e) to Business Court electronic service.
Yesterday, the Supreme Court issued an Order doing just that. Effective immediately, Rule 3.9 of the North Carolina Business Court Rules now no longer considers electronic service to be “service by mail,” and thus Business Court practitioners no longer need to (or “get to” perhaps?) add three days to their time to do an act after service by email or e-filing. A copy of the Supreme Court’s October 13, 2020 Order can be found here.
One potential practical question that this amendment raised is what happens to deadlines in Business Court cases that were set under the old rule after recent electronic service, when (now-former) Rule 3.9(d) gave the responding party three extra days, but the deadline to respond has not yet run. Does that responding party still get those three extra days now that the rule that provided for those three extra days has been eliminated? Well, the Business Court and Judge Bledsoe was on top of that too, today issuing an administrative order about the amendment to the NCBC Rules that made clear that the amendment applies to “response deadlines that commence on or after” the October 13 amendment, but not those that commenced before. Further, the Court ordered that “the amendment shall have no effect on any deadline set in a scheduling or case management order in a pending Business Court case.” This administrative order was sent to all those with user accounts in pending Business Court cases and will likely be available on the Court’s website shortly.is available on the Court’s website here.