Update on Closures, Extensions, and Staying at Home – COVID-19

By Jacob Morse and PJ Puryear

Last week, NCBA Litigation Section members provided an overview of court closures and deadline extensions due to COVID-19. This post is to provide an update, as well as to highlight resources that have become available to practitioners and the public.

Trial Courts

On Friday March 13, 2020, Chief Justice Cheri Beasley of the Supreme Court of North Carolina entered an order continuing most District and Superior Court hearings and trials which were scheduled to take place between March 16, 2020 and April 16, 2020. On March 19, 2020, the Chief Justice issued a second order affecting most filings and acts which were due to be filed or done from March 16, 2010 through April 17, 2020. These orders removed the affected hearings or trials from court calendars and extended all deadlines for filings and other actions (which we believe includes, but is not limited to items such as discovery) through April 17, 2020. On March 23, 2020, Chief Judge Louis Bledsoe of the North Carolina Business Court entered an administrative order formally stating that the Chief Justice’s March 19, 2020 order also applies to all matters pending in front of Business Court Judges.

These orders include the following provisions:

• All District and Superior Court (including Business Court) matters scheduled March 16 through April 16 are to be rescheduled, unless:
  • The matter can will be conducted remotely;
  • There are due process concerns (mostly concerning criminal matters);
  • It is a hearing for emergency relief (including, but not limited to domestic violence protective orders and juvenile custody orders); or,
  • The senior resident superior or district court judge determines it can be conducted to protect health and safety of all participants.

• Filing deadlines for pleadings, motions, notices, and other documents due to be filed between March 16 through April 17 are timely filed if filed by close of business on April 17, 2020.
  • This also includes an extension of any periods of limitation which were set to expire between March 16, through April 17.
• Deadlines for all other acts due to be done between March 16 through April 17 are timely done if done by close of business on April 17, 2020.
  • We read this broadly to include discovery and other acts which do not require appearances or filings.
  • We suggest that to the extent this may apply to any deadline you may have, extend courtesy to opposing counsel by previewing your position in hopes of attaining an agreement.

Appellate Courts

While the above orders did not apply to any appellate arguments or deadlines, on March 27, 2020, the Supreme Court separately ordered that all deadlines imposed by the Rules of Appellate procedure which fall on or between March 27 and April 30 are extended for 60 days.

Governor Cooper, Counties, and Municipalities Close ‘Non-Essential’ Business

On March 27, 2020, Governor Cooper issued Executive Order 121, which is a “stay at home” order requiring all persons within North Carolina to remain in their residence beginning at 5 p.m. Monday March 30, 2020 for thirty days through and including April 29, 2020 unless participating in an “essential” activity or function. “Professional services, such as legal services” are deemed “essential” under the Executive Order. The Chief Justice has not yet announced whether the Governor’s order will impact court functions or related legal deadlines.

The Executive Order does not affect the enforceability of similar orders already entered by counties and cities, even if those orders contain greater restrictions than the Executive Order, and allows governmental entities to continue to enter such orders with different or additional restrictions. For instance, the Wake County Board of Commissioner’s order excludes professional services “such as legal services; accounting services; process servers; insurance services; and notary services, when necessary to assist in compliance with legally mandated activities” (emphasis added) from its restrictions. In this particular instance, given the additional language found in the Wake County order, there is some argument that the order is more restrictive than Executive Order 121. Interestingly, however, Wake County’s guidance about the order does not qualify “legal services” in any particular way, suggesting no difference between it and Executive Order 121.

Additional Resources

To make sure that deadlines are met and hearings are appropriately scheduled, attorneys should consult the full text of the orders and/or contact their county’s trial court administrators and coordinators if necessary. Additional resources include the North Carolina Judicial Branch’s COVID-19 resource page, which appears to have captured and aggregated all city, county, state, and administrative orders. NCDHHS also has created a COVID-19 resource page with a broad range of resources for the public. For analysis of Families First Coronavirus Response Act or the CARES Act, please visit the Wyrick Robbins COVID-19 webpage.