North Carolina Motion for Continuance

Introduction

Key Things to Know

1. 1

   Until the court grants your motion, the hearing or trial date stands, so attend. Filing a motion does not move the date, and outside small claims this page states no consent rule, so do not assume the other side's agreement moves it.

2. 2

   North Carolina calls this a continuance. Rule 40(b) says no continuance shall be granted except upon application to the court.

3. 3

   The standard: a continuance may be granted only for good cause shown and upon such terms and conditions as justice may require. No ground guarantees a grant.

4. 4

   Good cause includes a party, witness or counsel having an obligation of service to the State. A continuance requested to carry out duties as a member of the General Assembly, or service on the Rules Review Commission or another board, commission or authority as an appointee of the Governor, the Lieutenant Governor or the General Assembly, must be granted.

5. 5

   Rule 40(b) requires an application to the court but does not say it must be written or sworn. A written motion, other than one which may be heard ex parte, and notice of hearing must be served not later than five days before the hearing unless the rules or a court order fix another period (Rule 6(d)). If you rely on an affidavit, serve it with the motion.

6. 6

   Small claims: trial time may be changed by consent of all parties, and a magistrate may grant continuances for good cause (G.S. 7A-214). A magistrate must continue a non-eviction case set for trial less than 5 days after service of the summons.

7. 7

   Eviction (summary ejectment): a magistrate decides continuance motions under Rule 40(b) and may not continue the case more than five days or until the next session of small claims court, whichever is longer, without both parties' consent (G.S. 7A-223(b)). Family court rules and official forms are not covered here; ask the clerk.

North Carolina Requirements for Motion for Continuance

• Good Cause Shown

  A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require (N.C. R. Civ. P. 40(b)).

• Application to the Court

  No continuance shall be granted except upon application to the court (Rule 40(b)). The rule does not say the application must be written or sworn.

• Obligation of Service to the State

  Good cause includes a party, witness or counsel having an obligation of service to the State of North Carolina (Rule 40(b)).

• Mandatory Legislative Duty Continuance

  A continuance requested to carry out duties as a member of the General Assembly, or service on the Rules Review Commission or another board, commission or authority as an appointee of the Governor, the Lieutenant Governor or the General Assembly, must be granted (Rule 40(b)).

• Five Day Service of Written Motion

  A written motion, other than one which may be heard ex parte, and notice of hearing must be served not later than five days before the hearing unless the rules or a court order fix a different period; if the motion is supported by affidavit, serve the affidavit with it (Rule 6(d)).

• Small Claims Continuances

  Trial time may be changed by consent of all parties, and a magistrate may grant good cause continuances; a non-eviction case set for trial less than 5 days after service of the summons must be continued (G.S. 7A-214).

• Eviction Continuance Cap

  A magistrate may not continue a summary ejectment case more than five days or until the next session of small claims court, whichever is longer, without both parties' consent (G.S. 7A-223(b)).

• Tenant Undertaking on Continuance

  On a continuance in an eviction case, the tenant may retain possession by giving an undertaking (G.S. 42-18).