North Carolina Business Court: Don’t Be Late! Business Court Closes Its Doors at 5:00 P.M. – or is it 4:00 P.M.?
Wednesday’s ruling in Carter v. Clements Walker PLLC is a cautionary tale for lawyers using the Business Court’s unique electronic filing system. Judge Gale dismissed an appeal for missing the 5:00 p.m. filing deadline by two-and-a-half hours—even though the would-be appellants’ counsel filed an affidavit saying that the delay was due to technical problems.
Unlike most other North Carolina trial courts, the Business Court uses an electronic filing system that enables litigants to file papers at any time. But, just like other courts, the Business Court’s local rules require a filing to be made during the court’s business hours to be effective that day. Local Rule 6.7. Filings received after 5:00 p.m. are considered filed the following day, unless the filing party can show that the court’s electronic filing server was experiencing technical difficulties.
In Carter, the defendants attempted to appeal an adverse summary judgment order by electronically filing a notice of appeal at 7:27 p.m. on the last day of the 30-day appeal period. Because the notice of appeal was filed after business hours, the plaintiff argued that the appeal was untimely because it was not effective until the following day. The plaintiff argued that the appeal must be dismissed because the Court of Appeals does not have jurisdiction over appeals noticed after the 30-day period expires. See N.C. R. App. P. 3(c), In re Harts, 191 N.C. App. 807, 809-10, 664 S.E.2d 411, 413 (2008).
The defendants immediately invoked the “technical failure” rule, Local Rule 6.13, claiming that their first attempt at electronic filing was made at approximately 4:30 p.m. Local Rule 6.13 gives a one-day extension to a filing deadline if the filer “attempt[ed] to file electronically at least two times after 12:00 noon separated by at least one hour.”
Judge Gale held Rule 6.13 to mean that both unsuccessful attempts must be made before 5:00 p.m. Thus the Local Rules “require that a late filing may be accepted because of technical failures with the electronic filing system only if a party first began attempting to file on or before 4:00 p.m., one hour before the end of the court’s normal business day.” The court expressly held that Rule 6.13 was not designed to benefit last-minute filers.
To be safe, litigators should take note: for all practical purposes, the virtual doors of the Business Court actually close at 4:00 p.m. Any later filing attempt may not be timely if you have technical problems.