§ 7A-258. Motion to transfer. - North Carolina Statutes

§ 7A‑258.  Motionto transfer.

(a)        Any party, including the plaintiff, may move on notice toall parties to transfer the civil action or special proceeding to the properdivision when the division in which the case is pending is improper under therules stated in this Subchapter. A motion to transfer to another division mayalso be made if all parties to the action or proceeding consent thereto, and ifthe judge deems the transfer will facilitate the efficient administration ofjustice.

(b)        A motion to transfer is filed in the action or proceedingsought to be transferred, but it is heard and determined by a judge of thesuperior court division whether the case is pending in that division or not. Asuperior court judge who has jurisdiction under G.S. 7A‑47.1 or G.S. 7A‑48in the district or set of districts as defined in G.S. 7A‑41.1(a) inwhich the county is located, may hear and determine such motion. The motion isheard and determined in a county within that district or set of districts,except by consent of the parties.

(c)        A motion to transfer by any party other than the plaintiffmust be filed within 30 days after the moving party is served with a copy ofthe pleading which justifies transfer. A motion to transfer by the plaintiff,if based upon the pleading of any other party, must be filed within 20 daysafter the pleading has been filed. A motion to transfer by any party, basedupon an amendment to his own pleading must be made not later than 10 days aftersuch amendment is filed. In no event is a motion to transfer made or determinedafter the case has been called for trial. Failure to move for transfer withinthe required time is a waiver of any objection to the division in which thecase is pending, except in matters of probate of wills or administration ofdecedents' estates.

(d)        A motion to transfer is in writing and contains:

(1)        A short and direct statement of the grounds for transferwith specific reference to the provision of this Chapter which determines theproper division; and

(2)        A statement by an attorney for the moving party, or if theparty is not represented by counsel, a statement by the party that the motionis made in the good faith belief that it may be properly granted and that heintends no amendment which would affect propriety of transfer.

(e)        A motion to transfer is made on notice to all parties.

(f)         Objection to the jurisdiction of the court over person orproperty is waived when a motion to transfer is filed unless such objection israised at the time of filing or before. In no other case does the filing of amotion to transfer waive any rights under other motions or pleadings, nor doesit prevent the filing of other motions or pleadings, except as provided in Rule12 of the Rules of Civil Procedure. The filing of a motion to transfer does notstay further proceedings in the case except that:

(1)        Involuntary dismissal is not ordered while a motion totransfer is pending;

(2)        Assignment to a magistrate is not ordered while a motion totransfer is pending; and

(3)        A change of venue is not ordered while a motion to transferis pending, except by consent.

Whena change of venue is ordered by consent while a motion to transfer is pending,the motion to transfer is determined in the new venue. The filing of a motionto transfer does not enlarge the time for filing responsive pleadings, nor doesthe filing of any other motion or pleading waive any rights under the motion totransfer.

(g)        The motion for transfer provided herein is the sole methodfor seeking a transfer, and no transfer is effected by the use of mandamus,injunction, prohibition, certiorari, or other extraordinary writs; provided,however, that transfer may be sought in a responsive pleading when permitted byRules 7(b) and 12(b) of the Rules of Civil Procedure.

(h)        Transfer is effected when an order of transfer is filed.When transfer is ordered, the clerk makes appropriate entries on the dockets ofeach division and transfers the file of the case to the new division. Nofurther proceedings are taken in the division from which the case istransferred. Papers filed after a transfer are properly filed notwithstandingany erroneous reference to the division from which the case is transferred. Allorders made prior to transfer including restraining orders, remain effectiveafter transfer, as if no transfer had been made, until modified or set aside inthe division to which the case is transferred.

(i)         A claim of new or different relief asserted after transferhas been effected does not authorize a second transfer. (1965, c. 310, s. 1; 1967, c. 954, s. 3; 1969, c.1190, s. 22 1/2; 1971, c. 377, s. 14; 1987 (Reg. Sess., 1988), c. 1037, s. 20.)