Can I serve a subpoena that hasn’t been filed because of a mistake on the court form? – North Carolina

Short Answer

No. In North Carolina, you should not serve a defective subpoena. A subpoena must be correctly issued and completed before service. If a court caption or division box was left blank, void that draft, prepare a corrected subpoena with the proper Superior Court information, have it issued (by the Clerk or a North Carolina attorney), and then serve it in compliance with the subpoena rules.

Understanding the Problem

You are in a North Carolina Superior Court quiet title case and want to use a subpoena. You discovered that the court designation box on the subpoena form was left unchecked. The subpoena has not been filed or served. The question is whether you can still serve it as-is, or whether you must fix it first so it properly issues from the Superior Court and complies with North Carolina subpoena rules.

Apply the Law

Under North Carolina law, a subpoena is valid only if it is properly issued in the name of the court, includes the correct case caption and court division, and is served according to the subpoena rules. A North Carolina attorney may issue and sign a subpoena as an officer of the court; otherwise, the Clerk of Superior Court issues it. For a nonparty subpoena that seeks records only, you must give prior written notice to all other parties before you serve the subpoena. Filing the subpoena with the court is not a prerequisite to service in ordinary civil cases, but motions about the subpoena (quash, modify, compel) are filed in the case, and local eCourts procedures may require uploading the subpoena and proof of service.

Key Requirements

• Proper issuance and caption: The subpoena must identify the Superior Court case correctly (caption, file number, division) and be issued by the Clerk or a North Carolina attorney.
• Advance party notice for records-only subpoenas: If you seek documents from a nonparty, give written notice to all parties before serving the subpoena.
• Service and fees: Personally deliver the subpoena to the named person and tender required witness fees and mileage if attendance is commanded.
• Reasonable time to comply: Set a clear return date and allow a reasonable period for compliance; short fuse return dates risk being quashed.
• Fixing defects: Do not serve a defective subpoena. Withdraw the flawed version, prepare a corrected subpoena, have it properly issued, and re-serve.

What the Statutes Say

• North Carolina Rule of Civil Procedure 45 (Subpoenas) – Governs issuance, service, production, protection, motions to quash/modify, and contempt.
• North Carolina Rule of Civil Procedure 5 (Service of papers) – Addresses service of notices and papers on parties in a pending case.
• G.S. 7A-314 (Witness fees and mileage) – Sets attendance fee and travel reimbursement owed to witnesses when commanded to appear.

Analysis

Apply the Rule to the Facts: Because the court designation box was left unchecked, the subpoena is not correctly completed. North Carolina practice expects proper issuance and a complete caption before service. Since you have not filed or served it, the safest course is to discard that draft, prepare a corrected subpoena with the Superior Court division checked, have it properly issued, and then comply with Rule 45’s service and notice requirements (including prior party notice if it is a records-only subpoena).

Process & Timing

1. Who files: The party seeking discovery (or counsel). Where: In the pending Superior Court quiet title case; issuance via the Clerk of Superior Court or by a North Carolina attorney. What: Use the official forms (e.g., AOC-G-100 Subpoena; AOC-G-115 Subpoena to Produce Documents). When: Before service, send written notice to all parties if the subpoena seeks records from a nonparty only; allow a reasonable time for compliance in your return date.
2. Serve the corrected subpoena by delivering it to the named person. If attendance is required, tender the statutory witness fee and mileage at the time of service. Keep proof of service and, if your county uses eCourts, upload the subpoena and certificate of service per local procedures.
3. If the recipient objects or does not comply, file an appropriate motion (to compel, or to quash/modify) in the Superior Court case. The court will decide the motion and may set protective conditions or deadlines.

Exceptions & Pitfalls

• Serving a defective or incomplete subpoena invites a motion to quash; correct the form and reissue before service.
• Failing to give advance party notice for a records-only subpoena can invalidate service and delay your discovery.
• Not tendering the statutory witness fee and mileage when requiring attendance can render service ineffective.
• Unreasonably short compliance deadlines increase the risk of a successful motion to quash or modify.
• Altering a subpoena after service is improper; issue a new, corrected subpoena and re-serve instead.

Talk to a Real Estate Attorney

If you’re dealing with a subpoena issue in a North Carolina quiet title case, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.