Company: North Carolina General Assembly

North Carolina Attorney General Opinion

§ 7A‑258.  Motion to transfer.
(a)	Any party, including the plaintiff, may move on notice to all parties to transfer the civil action or special proceeding to the proper division when the division in which the case is pending is improper under the rules stated in this Subchapter. A motion to transfer to another division may also be made if all parties to the action or proceeding consent thereto, and if the judge deems the transfer will facilitate the efficient administration of justice.
(b)	A motion to transfer is filed in the action or proceeding sought to be transferred, but it is heard and determined by a judge of the superior court division whether the case is pending in that division or not. A superior court judge who has jurisdiction under G.S. 7A‑47.1 or G.S. 7A‑48 in the district or set of districts as defined in G.S. 7A‑41.1(a) in which the county is located, may hear and determine such motion. The motion is heard 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 plaintiff must be filed within 30 days after the moving party is served with a copy of the 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 days after the pleading has been filed. A motion to transfer by any party, based upon an amendment to his own pleading must be made not later than 10 days after such amendment is filed. In no event is a motion to transfer made or determined after the case has been called for trial. Failure to move for transfer within the required time is a waiver of any objection to the division in which the case is pending, except in matters of probate of wills or administration of decedents' estates.
(d)	A motion to transfer is in writing and contains:
(1)	A short and direct statement of the grounds for transfer with specific reference to the provision of this Chapter which determines the proper division; and
(2)	A statement by an attorney for the moving party, or if the party is not represented by counsel, a statement by the party that the motion is made in the good faith belief that it may be properly granted and that he intends 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 or property is waived when a motion to transfer is filed unless such objection is raised at the time of filing or before. In no other case does the filing of a motion to transfer waive any rights under other motions or pleadings, nor does it prevent the filing of other motions or pleadings, except as provided in Rule 12 of the Rules of Civil Procedure. The filing of a motion to transfer does not stay further proceedings in the case except that:
(1)	Involuntary dismissal is not ordered while a motion to transfer is pending;
(2)	Assignment to a magistrate is not ordered while a motion to transfer is pending; and
(3)	A change of venue is not ordered while a motion to transfer is pending, except by consent.
When a 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 motion to transfer does not enlarge the time for filing responsive pleadings, nor does the filing of any other motion or pleading waive any rights under the motion to transfer.
(g)	The motion for transfer provided herein is the sole method for 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 by Rules 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 of each division and transfers the file of the case to the new division. No further proceedings are taken in the division from which the case is transferred. Papers filed after a transfer are properly filed notwithstanding any erroneous reference to the division from which the case is transferred. All orders made prior to transfer including restraining orders, remain effective after transfer, as if no transfer had been made, until modified or set aside in the division to which the case is transferred.
(i)	A claim of new or different relief asserted after transfer has 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.)

G.S. 7a-258		Page