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The North Carolina Business Court Has Expanded
The North Carolina Business Court has expanded to the East and the West. On
August 24, 2005, the North Carolina General Assembly passed House Bill 650,
which modified the way in which cases are assigned to the Court. At the same
time the legislature appropriated money for a new business court location in the
newly-constructed Mecklenburg County Courthouse.
Responding to the legislation, Chief Justice Lake designated Judge John Jolly of
Raleigh and Judge Albert Diaz of Charlotte to serve as Special Superior Court
Judges for Complex Business Cases. Judge Ben Tennille, who has served as
Business Court Judge since the court’s inception, was designated as Chief
Special Superior Court Judge for Complex Business Cases.
A Superior Court Judge since November 2001, Judge Diaz practiced law with Hunton
& Williams from August 1995 to October 2001, handling general commercial
litigation. Before that, he served on active duty as a Marine Corps judge
advocate, handling criminal cases at trial and at all levels of appeal,
including the U.S. Supreme Court. Judge Diaz has remained in the Marine Corps
reserves, serving for five years as a military trial judge and most recently as
an appellate judge on the U.S. Navy-Marine Corps Court of Criminal Appeals. He
received his J.D. degree from New York University School of Law, his M.S. in
business administration from Boston University, and his B.S. in economics from
the University of Pennsylvania’s Wharton School.
Judge Jolly has been a Special Superior Court Judge since January 2001.
Previously, he served in the same capacity from August 1979 to February 1982. He
received his undergraduate degree from UNC-Chapel Hill in 1964 and his J.D.
degree from the UNC School of Law in 1967. Since being admitted to the bar in
1967, except for his time on the bench, Judge Jolly practiced with Poyner &
Spruill, with a focus on general civil and commercial litigation in both state
and federal courts.
In addition to enlarging the number of judges sitting on the Court, the
legislation retooled the manner in which cases are assigned to the Business
Court. Certain cases are now by definition designated mandatory complex business
cases — those involving a material issue related to the law of corporations,
securities law, antitrust law, state trademark and unfair competition law, and
intellectual property law, and certain cases involving technology. There are no
dollar limitations, and no waiver of jury trial is required.
One significant change brought about by the legislation is the process by which
cases are assigned to the Business Court. Any party to a new mandatory complex
business case may now have the case removed to the Business Court by filing a
Notice of Designation. The Notice of Designation must be filed in the Superior
Court in which the action was filed. The Notice shall also be served on the
opposing party or counsel and the Chief Special Superior Court Judge for Complex
Business Cases simultaneously. In addition, the Notice shall be sent to the
Chief Justice of the Supreme Court by email or facsimile for preliminary
approval.
The Notice of Designation must specify the basis of the designation and include
a certificate on behalf of the party seeking removal that the case satisfies the
criteria for a mandatory complex business case. If the removing party is the
plaintiff or a third-party plaintiff, the Notice must be filed contemporaneously
with the filing of complaint. Where an intervening party seeks removal, the
Notice shall be filed at the time the motion for permission to intervene is
filed. Any other party seeking to remove the case must file a Notice of
Designation within 30 days of receipt of service of the pleading seeking relief
against that party.
Any party may oppose the removal by filing an opposition with the North Carolina
Business Court within 30 days of being served with the Notice of Designation. It
is the responsibility of the Chief Business Court Judge to determine that the
case should not be designated a mandatory complex business case. That decision
may be appealed to the Chief Justice of the Supreme Court.
Once a case is removed, it is sent to Judge Tennille for assignment to one of
the three Business Court judges. From that point, all proceedings in that action
will be before the Business Court Judge to whom the case has been assigned.
Business Court judges will continue to try the cases in the county in which they
are filed.
In the case of complex business or commercial litigation that does not fall
within one of the mandatory categories, the old procedure for application to the
Senior Resident Superior Court Judge will still apply. In all cases assigned,
the present local rules for the Business Court will apply. Those rules are
posted on the Business Court website.
The new legislation also added an additional removal fee of two hundred dollars
($200) to be paid on filing the removal petition. The removal fee is
non-refundable. The law, which was signed by Governor Easley on September 22,
became effective on January 1, 2006, and applies to cases filed after that date.
The Business Court’s website is at
http://www.ncbusinesscourt.net.
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