“You are remembered for the rules you break.”
Gen. Douglas MacArthur

First, this is certainly true. Second, when it comes to the exacting nature of the rules for getting a case properly before the North Carolina Business Court, those memories are likely to be about how your case turned out in Superior Court treated as a normal civil action.

By statute, a host of rules and requirements apply to what types of cases can get to the Business Court and how they can get there. See N.C.G.S. § 7A-45.4. Among them are the guideposts for preparing and serving a Notice of Designation by the party designating a case as a mandatory complex business case. In 2023, there’s a new procedural wrinkle to effectively serving a Notice of Designation.

The Court announced on January 3, 2023 that the old practice of emailing designation submissions directly to the Chief Justice and to the Chief Judge of the Business Court has been streamlined. Now, the Court directs that to accomplish service of the Notice on the chiefs as required by § 7A-45.4(c), a designating party will send a single email to a specially established intake email account and all counsel of record.

The Court has occasional need to deal with notices that contravene the timing component for filing under the § 7A-45.4(d)(1) requirement that a Notice shall be filed:

“By the plaintiff . . .  contemporaneously with  the filing of the complaint[.]”

The Court has consistently ruled that the timeliness requirement for service of a Notice of Designation in unyielding. In doing so, the court has reminded that there’s no “close like in horseshoes” exception, as past decisions have rejected notices of designation filed six days post- complaint (2021 NCBC Order 25) and eight days (2020 NCBC Order 30). However, in rejecting tardy notices the Court regularly reminds that such orders are without prejudice to the right of parties to seek designation under other applicable provisions of § 7A-45.4. Id. ¶ 5.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP.