Instead of filing an answer like required, Frank McGraw, in a desperate move, filed a Motion to Strike under Rule 12(f) and tried to claim that doing so automatically extended their time to answer by 20 days — which is factually incorrect. Under the law, filing a Rule 12 motion only extends the deadline if the court grants the motion or otherwise rules on it; it does not automatically delay the answer.
Frank only filed this motion because he assumed his earlier Motion for Extension of Time would be rubber-stamped by the Clerk, even though it was improperly filed without a required WAKE-CVD-05 cover sheet or proper notice. He intentionally filed it with a proposed order to try to bypass the standard process and get it granted without objection. When I objected, he implied I “forced” him to file the Motion to Strike, blaming me for the delay tactic he created.
The Motion to Strike was meritless. Frank’s argument was based on the false claim that my Amended Complaint was improperly filed under small claims procedures (N.C. Gen. Stat. §§ 7A-210 to 7A-229), even though the case had been reset to District Court where the North Carolina Rules of Civil Procedure — specifically Rule 15(a) — now apply. His entire argument hinged on procedural rules that no longer governed the case. In addition, the motion was improperly captioned for Superior Court, violating Rule 7(b)(2), which governs the form and captioning of all pleadings and motions. Frank tried to brush this off as no big deal, but I strongly disagree — because if I had filed something improperly captioned, he would have attacked it without hesitation.
Even more hypocritical, in the same motion, he filed an alternative Motion to Dismiss under Rule 12(b)(6) — the exact same dismissal motion he had already filed in small claims court, which was never ruled on. If he wanted to argue small claims procedures still applied, then technically that original motion should have been ruled on there, not recycled into a new one here.
Frank also violated local procedure by failing to file a Notice of Hearing when he filed the Motion to Strike/Motion to Dismiss. He waited until January 19th — days after filing the motion — to finally file a hearing request. By then, the first available hearing date was set for February 13th — just one day before the end of the extension he had originally asked for.
In a trial de novo and in an aged case, pending motions are supposed to be heard promptly. Frank’s delay in setting the hearing was clearly designed to stall the case and prejudice my ability to move forward.
G.S. 1A-1, 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;
(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.S. 1A-1, Rule 7. Pleadings allowed; motions.
(b)(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.