Civil Practice – Interlocutory Order – Rule 60(b) of the North Carolina Rules of Civil Procedure – Rule 12(b) Motion – Final Judgment — Reconsideration

Our order denying defendants’ motion to dismiss was an interlocutory order and so we do not have authority to grant relief from it under Rule 60(b). Further, a new motion under Rule 12(b)(6) pursuant to Rules 12(g) and (h)(2) would be improper because those rules “do not authorize or permit a party to make a pre-trial motion under Rule 12(b)(6) after the party has answered.

We denied the motion, in part.

Defendant Shayne Guiliano brought a motion pursuant to Rule 60 of the North Carolina Rules of Civil Procedure requesting reconsideration of the order and opinion on defendants’ joint partial motion to dismiss plaintiff’s second amended complaint and reconsideration of Rule 12(b) motions already filed, or in the alternative, consider a new motion for Rule 12(g) dismissal by adopting already filed Rule 12(h)(2) defenses.

Rule 60(b) applies only to relief “from a final judgment.” N.C.G.S. § 1A-1, Rule 60(b). Rule 60(b) “has no application to interlocutory judgments, orders, or proceedings of the trial court. It only applies, by its express terms, to final judgments.” Sink v. Easter, 288 N.C. 183, 196 (1975).

Our order denying defendants’ motion to dismiss was an interlocutory order. Therefore, we do not have the authority to grant relief from it under Rule 60(b). We therefore deny the motion, in part, to the extent it seeks reconsideration under Rule 60(b).

Next, we addressed Guiliano’s request that we enter an order “which either treats Guiliano’s most recent Rule 12(b)(6) as a Rule 12(g)+Rule 12(h)(2) defense, or otherwise grants him an opportunity to enter a clean and simpler Rule 12(g)+Rule 12(h)(2) motion.

Plaintiff argued that a new motion under Rule 12(b)(6) pursuant to Rules 12(g) and (h)(2) would be improper because those rules “do not authorize or permit a party to make a pre-trial motion under Rule 12(b)(6) after the party has answered.” We agreed and otherwise declined to reconsider our previous order and opinion.

Denied in part.

BIOMILQ Inc. v. Guiliano (Lawyers’ Weekly No. 020-016-24, 3 pp.) (Michael L. Robinson, J.) 2024 NCBC 16. 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.; Shayne Guiliano, pro se. North Carolina Business Court