North Carolina Motion for Summary Judgment
North Carolina requires only 10 calendar days' notice before the hearing, and Rule 56(c) sets no separate statutory deadline for a written opposition, just a 2-day floor for serving opposing affidavits, both counted under a Rule of Civil Procedure that has not been substantively amended since 2000.
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Introduction
In North Carolina, the party moving for summary judgment must serve the notice of the motion at least 10 calendar days before the date set for the hearing, and that count includes weekends and holidays because N.C. Gen. Stat. section 1A-1, Rule 6(a) excludes intermediate Saturdays, Sundays, and holidays only when the prescribed period is less than 7 days, and the 10-day notice period under Rule 56(c) is not (N.C. Gen. Stat. section 1A-1, Rule 56(c), Rule 6(a)). Rule 56 sets no separate statutory deadline for filing a written opposition brief. Instead, it fixes only a floor requiring the adverse party to serve any opposing affidavits at least 2 days before the hearing, and because that 2-day period is less than 7 days, Rule 6(a)'s exclusion applies and weekends and holidays functionally do not count toward it (N.C. Gen. Stat. section 1A-1, Rule 56(c)). If an opposing affidavit misses that floor, the court has discretion to continue the matter for a reasonable period, proceed without considering the untimely affidavit, or take such other action as the ends of justice require. Rule 56 sets no statutory filing or hearing cutoff before trial; that timing is set case by case in the court's own scheduling or pretrial order. A claimant, counterclaimant, or cross-claimant may not move for summary judgment until 30 days after commencement of the action, unless the adverse party has already served its own summary judgment motion, while a defending party may move at any time with no waiting period (N.C. Gen. Stat. section 1A-1, Rule 56(a)-(b)). Summary judgment is rendered only if the pleadings, depositions, answers to interrogatories, admissions, and any affidavits on file show there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law, the pre-2010 federal wording that Rule 56(c) still uses verbatim; the rule has not been substantively amended since 2000, when session law 2000-127 added the 2-day opposing-affidavit provision (N.C. Gen. Stat. section 1A-1, Rule 56(c)). The motion may be made with or without supporting affidavits, and any affidavit used must be based on personal knowledge and set forth facts that would be admissible in evidence (N.C. Gen. Stat. section 1A-1, Rule 56(a)-(b), (e)). North Carolina has no statewide requirement for a separate statement of undisputed material facts and no statewide page limit, though local or district practice, including the state's specialized Business Court, may impose its own requirements on top of Rule 56, and Rule 56 itself has no separately named no-evidence motion the way Texas does. Partial summary judgment is available: a party may move for judgment on all or any part of a claim, judgment may be rendered on liability alone while damages remain disputed, and Rule 56(d) lets the court specify which facts are established for trial when the motion does not resolve the whole case (N.C. Gen. Stat. section 1A-1, Rule 56(a), (c), (d)). Summary judgment is technical and is often lost on procedure rather than the merits, and a motion is not automatically granted just because it goes unopposed; the court must still find no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. Attorney review is available before filing or responding. A motion to dismiss and a motion to set aside a default are different procedures, covered on DocDraft's separate pages for those topics. This page covers North Carolina state trial court practice only; summary judgment in federal court follows Federal Rule of Civil Procedure 56 and is outside its scope.
Key Things to Know
- 1
North Carolina requires only 10 calendar days' notice before the hearing, counted under Rule 6(a) to include weekends and holidays because the period is not less than 7 days; Rule 56(c) sets no separate deadline for a written opposition, only a floor requiring opposing affidavits, if used, to be served at least 2 days before the hearing, excluding intermediate weekends and holidays under Rule 6(a) (N.C. Gen. Stat. section 1A-1, Rule 56(c), Rule 6(a)).
- 2
If you were served with a North Carolina summary judgment motion, there is no statewide deadline for filing a written opposition brief itself. The only fixed floor in Rule 56(c) requires opposing affidavits, if you use them, to be served at least 2 days before the hearing, excluding intermediate weekends and holidays under Rule 6(a). If you miss it, the court may continue the matter, proceed without considering the late affidavit, or take other action as the ends of justice require (N.C. Gen. Stat. section 1A-1, Rule 56(c), Rule 6(a)).
- 3
A North Carolina summary judgment motion, opposed or unopposed, is not automatically granted. Rule 56(c) requires the court to find there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law before ruling.
- 4
Rule 56 has not been substantively amended since 2000, when session law 2000-127 added the 2-day opposing-affidavit provision. It still uses the pre-2010 federal wording, no genuine issue as to any material fact, rather than the current federal genuine dispute phrasing (N.C. Gen. Stat. section 1A-1, Rule 56(c)).
- 5
A claimant, counterclaimant, or cross-claimant may move for summary judgment only after 30 days from commencement of the action, or immediately after the adverse party serves its own summary judgment motion; a defending party may move at any time with no waiting period (N.C. Gen. Stat. section 1A-1, Rule 56(a)-(b)).
- 6
The motion may be made with or without supporting affidavits. North Carolina has no statewide requirement for a separate statement of undisputed facts or a memorandum of law, though local or district practice may expect one, and any affidavit used must be based on personal knowledge and set forth admissible facts (N.C. Gen. Stat. section 1A-1, Rule 56(a)-(b), (e)).
- 7
Rule 56 sets no statutory filing or hearing cutoff before trial; timing is set case by case in the court's scheduling order. Partial summary judgment on liability alone, with damages left for trial, is expressly allowed, and there is no separately named no-evidence motion as in Texas (N.C. Gen. Stat. section 1A-1, Rule 56(a), (c), (d)).
Key decisions before you file
Before you file a Motion for Summary Judgment in North Carolina, a few decisions shape the document: which option to choose and what each one means. The Motion for Summary Judgment guide walks through them.
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North Carolina Requirements for Motion for Summary Judgment
10-Day Notice Before the Hearing
The moving party must serve the notice of the motion at least 10 calendar days before the hearing date. Because Rule 6(a) excludes weekends and holidays only when a period is less than 7 days, and 10 days is not, every day counts toward this period (N.C. Gen. Stat. section 1A-1, Rule 56(c), Rule 6(a)).
2-Day Opposing Affidavit Floor
The adverse party may serve opposing affidavits at least 2 days before the hearing, excluding intermediate weekends and holidays under Rule 6(a). If that floor is missed, the court may continue the matter for a reasonable period, proceed without considering the untimely affidavit, or take other action as the ends of justice require (N.C. Gen. Stat. section 1A-1, Rule 56(c), Rule 6(a)).
No Statutory Deadline for a Written Opposition Brief
Rule 56 sets no statewide deadline for filing a written opposition brief separate from the 2-day opposing-affidavit floor. A respondent looking for a fixed number of days to respond, as some other states set, will not find one in the text of the rule (N.C. Gen. Stat. section 1A-1, Rule 56(c)).
30-Day Wait for a Claimant, Counterclaimant, or Cross-Claimant
A party seeking to recover on a claim, counterclaim, or crossclaim may move for summary judgment only after 30 days from commencement of the action, or after the adverse party serves its own summary judgment motion (N.C. Gen. Stat. section 1A-1, Rule 56(a)).
No Waiting Period for a Defending Party
A party against whom a claim, counterclaim, or crossclaim is asserted may move for summary judgment at any time, with no 30-day wait (N.C. Gen. Stat. section 1A-1, Rule 56(b)).
No Statewide Filing or Hearing Cutoff Before Trial
Rule 56 sets no statutory filing or hearing cutoff before trial. Timing before trial is set case by case in the individual court's scheduling or pretrial order, not by the rule itself (N.C. Gen. Stat. section 1A-1, Rule 56(a)-(b)).
No Statewide Separate Statement or Memorandum Required
North Carolina has no statewide requirement for a separate statement of undisputed material facts or a memorandum of law, though local or district practice may expect a memorandum (N.C. Gen. Stat. section 1A-1, Rule 56).
Affidavits Must Be Based on Personal Knowledge
Supporting affidavits are not mandatory, but if used, must be made on personal knowledge and set forth facts that would be admissible in evidence (N.C. Gen. Stat. section 1A-1, Rule 56(e)).
Partial Summary Judgment on Liability Alone
A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages, and Rule 56(d) lets the court specify facts established for trial when the motion does not resolve the whole case (N.C. Gen. Stat. section 1A-1, Rule 56(c)-(d)).