After Mr. McGraw withdrew, he failed to account for the February 3 admissions deadline, forcing the newly retained attorney to step in earlier than expected on January 31. I had previously filed a motion to continue during this timeframe due to being out of town for work, so the timing around substitution wasn’t coincidental.
Under standard practice, the new attorney was obligated to review the full record, including my notice of electronic service—whether Mr. McGraw informed him or not. Instead, the new attorney filed a motion for extension of time on the admissions without serving me electronically as required, and instead mailed it—knowing I would be out of town. To make matters worse, the certificate of service attached to the motion referred to the wrong motion entirely, making the filing defective under Rule 5(b1).
I only discovered it because I happened to check the eCourt portal between 4–5 PM, just before it went offline for scheduled weekend maintenance. Had I missed that narrow window, I would not have known he filed anything at all.
The admissions were due that Monday, but due to travel and time constraints, I waited until the next day—when they would be deemed admitted under Rule 36(a)—and filed a motion to strike his improper extension along with a motion to deem the admissions admitted. I wasn’t required to file a motion for that designation, but I did so out of respect for the process and to avoid unnecessary confusion, given Mr. Yopp’s defective filing.
Only after my filing did opposing counsel attempt to submit a revised certificate of service to cover the error, but it was too late. Rule 6(b) requires a showing of excusable neglect for any late filing, and simply being newly retained counsel is not considered valid cause. From the outset, the new attorney attempted to push a procedurally improper filing past me without proper notice—violating service rules, misleading the court record, and nearly denying me my right to respond fairly.
NC G.S. 1A-1, Rule 5 (b) Service.
(b) Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on the party’s attorney of record as provided by this subsection.
With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service shall be made upon the party’s attorney of record and, if ordered by the court, also upon the party. If the party has no attorney of record, service shall be made upon the party.
Service is made under this subsection if performed on an attorney through the court’s electronic filing or case management system at an email address of record with the court. Service is made under this subsection if performed on a party through the court’s electronic filing system or case management system at an email address of record with the court in the case if the party has consented to receive service through the court’s electronic filing or case management system and a copy of the consent is filed with the court by any party. Service through the court’s electronic filing or case management system must be sent by 5:00 P.M. Eastern Time on a regular business day. If the service is sent after 5:00 P.M., it will be deemed to have been sent on the next business day.
NC G.S. 1A-1, Rule 5 (b1). Certificate of Service
A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served. If one or more persons are served by facsimile transmission or electronic mail (e-mail), the certificate shall also show the telefacsimile number or e-mail address of each person so served in that manner. Each certificate of service shall be signed in accordance with and subject to Rule 11 of these rules. With respect to persons served through the court’s electronic filing systems, an automated certificate of service generated by that system and that is filed in the case satisfies the requirements of this rule.
NC G.S. 1A-1, Rule 36 (a). Request for admission.
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the
scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. If the request is served with service of the summons and complaint, the summons shall so state.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 60 days after service of the summons and complaint upon him.