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Practice Points with Mark Scruggs

by Mark Scruggs |

 Extending Time for Filing Under a Rule 3 Application and Order Extending Time to File Complaint.

I came across the case of Williams v. Jennette recently and found once again the law is not what I think it is. Maybe this case will help you out of a tight spot one day.

Plaintiffs commenced their suit on October 12, 1983, by filing a Summons and an Application and Order Extending Time to File Complaint. The time to file the complaint was extended to November 1, 1983. However, on that date, plaintiffs obtained an order from the trial court clerk extending the time to file to November 21, 1983. The complaint was filed on November 21.

Defendants filed a motion to dismiss the plaintiffs’ complaint under Rule 12(b)(6), contending that the plaintiffs’ action abated when the plaintiffs failed to file a complaint on November 1, 1983, because the clerk exceeded his authority by extending plaintiffs’ time. 

The case ended up in the Court of Appeals on a number of issues, including this one. The Court of Appeals held that the plaintiffs’ action did not abate on November 1, 1983. The Court held that under Rule 6(b), the court (and this includes the clerk of court) for good cause shown may enlarge the time for taking an act required or allowed to be done at or within a specified time if the request is made before the expiration of period originally prescribed. Thus, the clerk had the authority by statute to extend the plaintiffs’ time.

There was no discussion in the case as to when the statute of limitations expired on the plaintiffs’ claims. I’ll bet it was set to expire right about the time the plaintiffs filed the Rule 3 Application and Order Extending Time to File Complaint. This case seems to provide a lifeline when the date your complaint is due to be filed under the Rule 3 Order and despite your best efforts, you still do not have sufficient information to file the complaint. If, like me, you would have thought you were done for in this situation, disabuse yourself of that notion and keep Williams v. Jennette in mind if you need more time. 




About the Author

Mark Scruggs

Mark Scruggs is senior claims counsel with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or at mscruggs@lawyersmutualnc.com.

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