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Beck v. City of Durham12/3/2002
App. 729, 733, 504 S.E.2d 574, 577 (1998).
Here, defendants' motion to dismiss stated that defendants "move, pursuant to Rule 12(b)(6), or in the alternative pursuant to Rule 56, . . . for an order dismissing [plaintiff's] action in its entirety." The subsequent court order and judgment granting defendants' motion to dismiss stated:
Defendants moved to dismiss all of Plaintiff's claims pursuant to Rule 12(b)(6) . . . on the grounds that Plaintiff has failed to state a claim upon which relief can be granted. In the alternative, Defendants moved to dismiss all of Plaintiff's claims pursuant to Rule 12(b) and submitted a certified copy of the judgment and order dismissing Plaintiff's federal claims . . . and the Affidavit of Laura Henderson.
Plaintiff argues the trial court erred in considering the previous federal court judgment and Henderson's affidavit because the current order and judgment only made reference to Rule 12(b)(6) and Rule 12(b), not to Rule 56. However, since Rule 12(b) expressly provides for the disposal of claims under Rule 56 when outside matters are considered, it was not necessary for the trial court to specifically reference Rule 56 in its order and judgment. Furthermore, it is clear from the text of the order and judgment that the trial court used Rule 12(b) and Rule 56 interchangeably to refer to the alternative grounds for dismissal as stated in defendants' motion. Therefore, we conclude the order and judgment was a grant of dismissal under Rule 56 where the court considered matters outside the pleadings.
II.
The second issue, which arises from defendants' brief, is in regards to the timeliness of (A) plaintiff's amended complaint and (B) several of plaintiff's claims. A. Amended Complaint
Defendant argues that plaintiff failed to exercise his right to amend his complaint in a timely manner. Based on the circumstances in this case, we disagree.
Rule 15 of the North Carolina Rules of Civil Procedure provides, in pertinent part, that " party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . ." N.C. Gen. Stat. ยง 1A-1, Rule 15(a) (2001) (emphasis added). For purposes of this rule, our Court has held that " motion to dismiss . . . is not a `responsive pleading' under Rule 15(a) and so does not itself terminate plaintiff's unconditional right to amend a complaint under Rule 15(a)." Johnson v. Bollinger, 86 N.C. App. 1, 7, 356 S.E.2d 378, 382 (1987). The record in the instant case clearly indicates that plaintiff filed his amended complaint approximately four minutes after the hearing on defendants' motion to dismiss began. Prior to the hearing, defendants had only filed a motion to dismiss, which is not a responsive pleading. It is unlikely that the drafters of Rule 15(a) intended "any time" to encompass plaintiff serving his amended complaint during a hearing. Nevertheless, defendants' failure to present a record of objections to this last minute act by plaintiff or provide a verbatim transcript indicating whether the court took issue with the amended complaint compels this Court to conclude that in this case the complaint was timely filed. B. Statute of Limitations
Additionally, defendants argue that several of the claims raised in plaintiff's amended complaint fail to allege any wrongful conduct by defendants within the applicable statute of limitations period. For the following reasons, we agree.
"The statute of limitations is `inflexible and unyielding,' and the defendants are vested with the right to rely on it as a defense." Staley v. Lingerfelt, 134 N.C. App. 294, 299, 517 S.E.2d 392, 396 (1999) (citation omitted).
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