The North Carolina motion to compel: a total non-response needs no order first

North Carolina gives you two routes, and choosing the right one changes how long the fight takes.

If the other side answered badly, you move to compel under Rule 37(a) and, if the order is disobeyed, seek sanctions under 37(b). If the other side answered not at all, you can skip straight to Rule 37(d) — sanctions including dismissal and default judgment, with no prior order required.

Fees are mandatory either way the motion goes, so the second question is whether your motion is strong enough to file.

The certification

N.C. R. Civ. P. 37(a) requires the motion to be accompanied by:

certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.

"Conferred or attempted to confer" — a party who will not engage cannot block the motion by silence, but the attempt has to be real and it has to be certified.

Fees, both ways, both mandatory

Rule 37(a)(4):

Award of Expenses of Motion. – If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

One asymmetry worth noticing: when the motion is granted, the award can reach the party advising the conduct. When it is denied, the rule names only "the moving party" — not the attorney advising the motion, as several states do.

Evasive answers count as none

Rule 37(a)(3) carries the standard provision: an evasive or incomplete answer is to be treated as a failure to answer. That is what most real disputes turn on, and it is worth quoting rather than arguing around.

The route that skips the order

Rule 37(d):

Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. – If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (i) to appear before the person who is to take the deposition, after being served with a proper notice, or (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (iii) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Three triggers — failure to appear at a properly noticed deposition, failure to serve answers or objections to interrogatories, failure to serve a written response to a request for inspection.

Where one applies, the court may impose the (b)(2)a, b and c sanctions immediately: deemed-established facts, preclusion, and striking pleadings, staying proceedings, dismissal or default judgment. No motion to compel, no order, no waiting.

And the fee award here is again mandatory — "the court shall require the party failing to act to pay."

Note the precision of trigger (ii): failure to serve answers or objections. A party that served objections, however weak, is outside 37(d) and belongs in 37(a).

Once an order is disobeyed

Rule 37(b)(2) supplies the sanctions where a party fails to obey an order to provide or permit discovery — deemed-established facts, preclusion, striking pleadings, staying proceedings, dismissal, default judgment, and contempt.

Rule 37(b)(1) handles the deposition situation: a deponent who fails to be sworn or answer after being directed to do so by a judge in the county where the deposition is being taken "may be considered a contempt of that court."

Before you file

1. Confirm proper service and that the response period has run. North Carolina gives 30 days, or 45 for a defendant served with the complaint — see North Carolina discovery deadlines.
2. Check whether anything at all was served. If not, Rule 37(d) is available and much faster.
3. Confer, and certify it.
4. Weigh the risk. A denied motion carries a mandatory award against you.

How North Carolina compares

A short checklist

1. Ask first whether anything was served. Nothing at all means Rule 37(d) and no prior order.
2. Read trigger (ii) carefully — objections alone take the case out of 37(d).
3. Confer and certify. The certification is required on a 37(a) motion.
4. Quote the evasive-answer provision where the response was thin rather than absent.
5. Expect a mandatory award either way, so file only what you can defend as substantially justified.
6. Ask for the advising party to pay where the facts support it on a granted motion.
7. If an order is already in place and ignored, go to 37(b)(2) and ask for the substantive sanction.

Where these rules live

• N.C. R. Civ. P. 26 — General provisions governing discovery
• N.C. R. Civ. P. 33 — Interrogatories to parties
• N.C. R. Civ. P. 34 — Production of documents
• N.C. R. Civ. P. 36 — Requests for admission
• N.C. R. Civ. P. 37 — Failure to make discovery; sanctions

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.