Civil Practice – Rule 12(b)(6) – North Carolina Rules of Civil Procedure – Motion to Dismiss – Untimely Motion

We deny defendants’ motion for dismissal of certain of plaintiff’s claims because it was not timely filed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

Denied as untimely.

Defendants filed a joint partial motion pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, requesting that we dismiss plaintiff’s first claim for relief against defendant Shayne Guiliano for trade secret misappropriation under the North Carolina Trade Secrets Protection Act, N.C.G.S. §66-152 et seq., and third claim for relief against Defendants for violations of the North Carolina Unfair and Deceptive Trade Practices Act, N.C.G.S. § 75-1.1 et seq., to the extent that claim is based on the wrongdoing alleged in the first claim for relief.

Rule 12(b) clearly provides that a motion to dismiss for failure to state a claim upon which relief may be granted “shall be made before pleading if a further pleading is permitted.” N.C.G.S. §1A-1, Rule 12(b). Our interpretation of Rule 12 is clear and is consistently applied.

This court has held that in the absence of case law from appellate courts interpreting such language to mean otherwise, a Rule 12(b) motion to dismiss for failure to state a claim must be filed prior to the filing of an answer, not contemporaneously with or minutes after.

As evidenced by the time stamps on the filings, defendants filed their partial answer first. Then, several minutes later, defendants filed the motion. Accordingly, under well-settled case law from this court and our State’s appellate courts, the motion is untimely. Although it is the unusual circumstance that a defendant files an answer that does not fully respond to all allegations in the operative complaint, the partial answer constitutes an answer — a permitted further pleading — under Rule 12(b). Additionally, we are unable to treat the motion as one for judgment on the pleadings under Rule 12(c).

Defendants requested dismissal of plaintiff’s claims only pursuant to Rule 12(b)(6), and defendants did not raise a 12(b)(6) defense in the partial answer. Accordingly, given the procedural posture of this case and absent a request from defendants, we decline to consider the motion as one for judgment on the pleadings pursuant to Rule 12(c

Further, the pleadings in this matter are not closed, as “a reply to a counterclaim” is a permitted pleading under Rule 7(a). As a result, even if we were inclined to consider the motion under Rule 12(c), it would be improper to do so at this time.

Denied.

BIOMILQ Inc. v. Guiliano (Lawyers Weekly No. 020-077-23, 6 pp.) (Michael L. Robinson, J.) 2023 NCBC 77. Robinson, Bradshaw & Hinson, P.A., by J. Dickson Phillips and Stephen D. Feldman, and Goodwin Procter, LLP, by Rachel M. Walsh for plaintiff BIOMILQ, Inc.; Bowens & Averhart, PLLC, by Stephon J. Bowens, and Carnes Warwick, PLLC, by Tara D. Warwick and Jonathan A. Carnes for defendant 108Labs, LLC; Carnes Warwick, PLLC, by Tara D. Warwick and Jonathan A. Carnes for defendant Shayne Guiliano. North Carolina Business Court