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Get the Summons Issued – Seriously

PAYIN V. FOY, 2023-NCCOA-______ (2023)

A civil lawsuit commences with the filing of a complaint with the court. That is the law in North Carolina. I recall in my first year of law school that my civil procedure professor stressed – and I mean really stressed – the importance of Notice and the Opportunity to be Heard. The bedrock of the legal system is upon that notice and that opportunity to be heard. Below is a published case the neatly discusses what happens when just a complaint is filed, and no summons issued.

(a) Facts: Plaintiff was hired for in-home care services by the Decedent (Defendant is Decedent’s estate). When Decedent’s life insurance expired, the two entered into a verbal agreement to continue services paid for by Decedent out of pocket. When Decedent passed, notice was sent to his creditors to file claims by March 2018. Plaintiff submitted his claim late and was rejected. Plaintiff then moved under Rule 60 to reopen the Decedent’s Estate; this was also denied. Plaintiff then filed a complaint for restorative justice in October of 2021. Plaintiff did not submit with a summons, and none were issued. After Defendant filed a Rule 12 motion to dismiss, Plaintiff finally caused a summons to be issued 35 days from the initial filing. Plaintiff’s complaint was dismissed at the Rule 12 hearing. Plaintiff appealed.


(b) Issue: Did the trial court err by dismissing Plaintiff’s complaint?


(c) Holding: No.


(d) Rationale: The rules of civil procedure require that a summons be issued within five days upon the filing of a complaint. When that does not happen, the claim abates and is deemed never to have commenced. One can revive the complaint by issuance of a summons and proper service; however, the action will be deemed to have commenced on the day the summons was issued, unless the Defendant moves to dismiss the action before the issuance and service of the summons. On the facts alone, Plaintiff filed a complaint and failed to cause issuance of a summons within five days. Before Plaintiff eventually issued a summons, Defendant filed the motion to dismiss. No error.