Editor’s Note: The Business Court adopted a new set of Rules, effective January 1, 2017 to all cases. The case below was decided under the old Business Court Rules. For more on how the new rules treat timely filing, click here.
Yesterday, Mack Sperling posted on his first-rate North Carolina Business Litigation Report Blog about an appeal that was dismissed by the Business Court as untimely. The blog post and Judge Gale’s opinion are both worth an independent read. However, the basic premise is that although the notice of appeal was filed 30 days after the entry of the judgment, the notice of appeal was not docketed in the Business Court until after 5:00 p.m. and, therefore, was deemed filed the next business day. See Business Court Rule 6.7 (“If the submission of the filing began after normal business hours of the Business Court, the filing is deemed to have occurred on the next day the Business Court is open for business.”). This rule is different from the federal e-filing rules, which provide a midnight deadline.
The Business Court’s normal business hours are 8:00 a.m.to 5:00 p.m., Monday through Friday. So why would I say that your filing deadline is actually 4:00 p.m.? In this case, counsel for the prospective appellant first tried to file the notice of appeal “around 4:30” p.m. the day it was due, but he apparently encountered technical difficulties. Judge Gale was not unsympathetic to counsel’s plight, noting that it would not be unusual for a party to have technical difficulties that could prevent timely electronic filing.
However, Business Court Rule 6.13 permits acceptance of a filing after the close of the business day only if the delayed filing is “accompanied by a declaration or affidavit attesting to the filing person’s failed attempts to file electronically at least two times after 12:00 noon separated by at least one hour on each day of delay due to such technical failure.”
Judge Gale explained that although counsel tried to file the notice of appeal at 4:30 p.m., “a late filing may be accepted because of technical failures with the electronic filing system only if a party first began attempting to file on or before 4:00 p.m., one hour before the end of the court’s normal business day.”
NCAPB Tip of the Day: Unless you believe that both your own and the Business Court’s computer systems are infallible, your filing deadline should be 4:00 p.m., at the latest.