North Carolina Business Court’s Amended Service Rules Updates Treatment of Electronic Service to Distinguish it from Mailed Service

The North Carolina Supreme Court amended the North Carolina Business Court Rules last week concerning electronic service.

As described in the recent Order of Chief Business Court Judge Louis A. Bledsoe, III, which can be found here:

“On 13 October 2020, the Supreme Court of North Carolina issued an Order amending Business Court Rule (“BCR”) 3, effective 13 October 2020. The amendment effects a substantive change to BCR 3.9 and is intended to conform BCR 3.9 with recent changes to Rules 3 and 5 of the North Carolina Rules of Civil Procedure. Of particular note, the amendment to BCR 3.9 eliminates the provision providing that electronic service through the Business Court’s electronic filing system or by email is treated the same as service by mail for purposes of Rule 6(e) of the North Carolina Rules of Civil Procedure.”

This makes electronic mailing immediate, within certain limits, and does not add three days to respond as with regular mail. Thus, Chief Judge Bledsoe warns:

“Accordingly, all counsel and any unrepresented party who has established a user account in cases currently pending in the North Carolina Business Court shall take notice that, effective 13 October 2020, the ‘three additional days for mailing’ provision of Rule 6(e) of the North Carolina Rules of Civil Procedure is no longer in effect for any case now pending in the Business Court or that shall be designated thereafter.” [Emphasis in original]

Per the Supreme Court’s recent Order, found here, Amended Rule 3.9 provides:

3.9. Service.

(a)       Service through the Court’s electronic-filing system defined. After an action has been designated as a mandatory complex business case or otherwise assigned to the Court, the issuance of a Notice of Filing is service under Rule 5(b) of the Rules of Civil Procedure. Service by other means is not required unless required if the party served is a pro se party who has not established a user account.

(b)        Certificate of Service. A Notice of Filing is an “automated certificate of service” under Rule 5(b1) of the Rules of Civil Procedure.

(c)        E-mail addresses. Each counsel of record and pro se party who has established a user account must provide the Court with a current e-mail address and maintain a functioning e-mail system. The Court will issue a Notice of Filing to the e-mail address that a person with a user account has provided to the Court.

(d)       Service of non-filed documents. When a document must be served but not filed, the document must be served by e-mail unless (i) the parties have agreed to a different method of service or (ii) the Case Management Order calls for another manner of service.

(e)        Service on a pro se party. All documents filed with the Court must be served upon a pro se party by any method allowed by the Rules of Civil Procedure, unless the Court or these rules direct otherwise.

The amendments to general Rule of Civil Procedure 5, found here, which the Business Court Rules follow, adds the following possibilities:

“Service is made under this subsection if performed through the court’s electronic filing system. When service through the court’s electronic filing system is not available, or the party is not registered to receive service through the court’s electronic filing system, service may be made as follows:

(1) Upon a party’s attorney of record: a. … Service may also be made on the attorney by electronic mail (e-mail) to an e-mail address of record with the court in the case. Such e-mail must be sent by 5:00 P.M. Eastern Time on a regular business day. If the e-mail is sent after 5:00 P.M., it will be deemed to have been sent on the next business day. …

(2) Upon a party: … (c) Service may also be made on the party by electronic mail (e-mail) if the party has consented to receive e-mail service in the case at a particular e-mail address, and a copy of the consent is filed with the court by any party. Such e-mail must be sent by 5:00 P.M. Eastern Time on a regular business day. If the e-mail is sent after 5:00 P.M. Eastern Time, it will be deemed to have been sent on the next business day.”