What steps do I need to follow to re-file a subpoena in North Carolina Superior Court after a form error?

Short Answer

Under North Carolina Rule 45, if a subpoena has not been filed with the court or served, you generally do not amend it—you issue a corrected subpoena. Complete the Superior Court designation and caption, have the subpoena issued (by the clerk or signed by an attorney), provide any required advance notice to other parties for records-only subpoenas, and then serve it properly with any required witness fee.

Understanding the Problem

You’re in North Carolina Superior Court on a real estate quiet title case and realized the subpoena you prepared left the court designation box unchecked. You have not filed or served it. The narrow question is: can you fix the form error and re-file, and what exact steps must you take to do it correctly so the subpoena is valid when served?

Apply the Law

North Carolina’s Rule 45 governs subpoenas in civil cases, including quiet title actions in Superior Court. A subpoena must identify the court and case, be issued by the clerk or signed by an attorney as an officer of the court, and be served properly. For a subpoena that seeks documents from a nonparty without testimony, advance notice to other parties is required. Recipients have a short window to object, and the subpoena must allow reasonable time for compliance.

Key Requirements

Complete, correct form: The caption must show the Superior Court Division and case number; fix any missing court designation before issuing or serving.
Proper issuance: Have the subpoena issued by the Clerk of Superior Court or signed by a licensed attorney of record.
Advance party notice for records-only subpoenas: Before serving a nonparty records subpoena, give the other parties advance notice and a copy.
Proper service and fees: Serve the witness as Rule 45 allows; if attendance is required, tender the statutory witness fee and mileage at service.
Reasonable time and place: Set a compliance date that allows reasonable time (often at least 10 days) and a permissible location for appearance/production.
Objection window: Allow for the recipient’s right to object within the time Rule 45 provides.

What the Statutes Say

North Carolina R. Civ. P. 45 (Subpoenas) – Sets content, issuance, service, notice, timing, objections, and enforcement.
G.S. 7A-103 (Powers of the Clerk) – Authorizes the Clerk of Superior Court to issue subpoenas.

Analysis

Apply the Rule to the Facts: Because your subpoena was never filed or served, you can simply correct the caption to show the Superior Court Division and reissue it under Rule 45. Ensure proper issuance (clerk or attorney signature), give advance notice to the other parties if it is a records-only subpoena, and set a reasonable compliance date. Then serve the corrected subpoena using an approved method and include the witness fee if you require attendance.

Process & Timing

Who files: The party seeking the subpoena (or their attorney). Where: Issue in the pending Superior Court case; if the clerk issues, go to the Office of the Clerk of Superior Court in the county of the case. What: Use the current AOC subpoena form available on the N.C. Judicial Branch website. When: For a records-only subpoena to a nonparty, serve all other parties with notice and a copy at least 10 days before serving the subpoena; set a reasonable compliance date (often at least 10 days after service).
After issuance, serve the corrected subpoena on the witness using a Rule 45-approved method. If you require in-person attendance, tender the statutory witness fee and mileage at the time of service. County practices can vary on clerk issuance logistics.
On the compliance date, receive documents or testimony. If the recipient objects or does not comply, confer promptly; if needed, seek an order in Superior Court to quash, modify, or compel under Rule 45.

Exceptions & Pitfalls

Do not try to “amend” and use a defective subpoena that was already served; withdraw it and reissue a corrected subpoena.
Failure to give advance party notice for a records-only subpoena can invalidate the subpoena.
Serving without tendering the witness fee when attendance is required risks noncompliance.
Setting an unreasonably short compliance time or an improper location can lead to objections or a motion to quash.
Sensitive or confidential records may require consent, a protective order, or tailored requests to avoid overbreadth.

Conclusion

In North Carolina Superior Court, if a subpoena has a form error and has not been filed or served, replace it with a corrected subpoena that identifies the Superior Court Division and proper case caption, ensure it is properly issued, give any required advance party notice for records-only subpoenas, and then serve it in compliance with Rule 45. Next step: prepare and issue the corrected subpoena and provide the required party notice at least 10 days before serving a nonparty records subpoena.

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.