MINUTES OF MEETING
Joint Procedure Committee
April 24-25, 2008
TABLE OF CONTENTS
Form 9, N.D.R.Crim.P., Appendix A 2
Privacy Protection for Filings Made With the Court 5
Rule 12, N.D.R.Civ.P., Defenses and Objections - When and How Presented - By Pleading
or Motion - Motion for Judgment on the Pleadings 6
Rule 2.2, N.D.R.App.P., Expedited Appeal - Termination of Parental Rights Appeal 9
Rule 1, N.D.R.Crim.P., Scope and Exceptions 11
Rule 2.2, N.D.R.Ct., Facsimile Transmission; Order 16, N.D. Sup. Ct. Admin. Order,
Electronic Filing Pilot Project for the District Courts 12
Rule 3.1, N.D.R.Ct., Pleadings 17
Form 9, N.D.R.Crim.P., Appendix A 17
Rule 5, N.D.R.Civ.P., Serving and Filing Pleadings and Other Papers 18
Rule 2.2, N.D.R.Ct., Facsimile Transmission; Order 16, N.D. Sup. Ct. Admin. Order,
Electronic Filing Pilot Project for the District Courts 21
Rule 40, N.D.R.Civ.P., Assignment of Cases for Trial 21
Rule 45, N.D.R.Civ.P., Subpoena 22
Rule 16, N.D.R.Civ.P., Pretrial Conferences, Scheduling, Management 25
Rule 17, N.D.R.Civ.P., Parties Plaintiff and Defendant - Capacity 27
Rule 18, N.D.R.Civ.P., Joinder of Claims and Remedies 27
Rule 19, N.D.R.Civ.P., Joinder of Persons Needed for Just Adjudication 28
Rule 20, N.D.R.Civ.P., Permissive Joinder of Parties 29
Rule 21, N.D.R.Civ.P., Misjoinder and Nonjoinder of Parties
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CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 24, 2008, by the Chair, Justice Mary Muehlen Maring.
ATTENDANCE
Present:
Justice Mary Muehlen Maring, Chair
Honorable Georgia Dawson
Honorable M. Richard Geiger
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Honorable John Greenwood
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger
Honorable Michael G. Sturdevant
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Galen J. Mack
Mr. Ronald H. McLean
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Ms. Cathy Howe Schmitz
Absent:
Honorable David E. Reich
Honorable Thomas J. Schneider
Mr. Richard H. McGee
Assistant Dean Jeanne L. McLean
Ms. Joanne Hager Ottmar
Staff:
Mike Hagburg
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings. The Committee agreed that the September 2008 meeting should be held as a full day meeting on Sept. 25 rather than as a two-day meeting.
Ms. Schmitz MOVED to approve the minutes. Judge Nelson seconded. By unanimous consent, a typographical error was corrected on page 8 of the minutes. Motion CARRIED unanimously.
FORM 9, N.D.R.Crim.P. - APPENDIX A (PAGES 21-60 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's work at the October and January meetings on proposed amendments to Form 9 and development of a new Form 9a. Staff explained that the Department of Corrections and Rehabilitation had introduced further amendments to the
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forms. Staff also reported on points made at a recent legal drafting seminar and suggested that simplified language could be integrated into the forms.
Ms. Schmitz MOVED to approve the additional amendments to Form 9 and Form 9a. Judge Geiger seconded.
A member asked why DOCR was proposing additional changes to the form. A member said that the changes implemented mandatory statutory requirements into the form. The member said it was good to have all the required probation terms in the form.
A member said the committee on Trial Court Operations was working to revise forms so that, if a person did not get probation, the statutory conditions would be integrated into the criminal judgment.
The Chair asked about treatment while in custody. The Chair said some defendants claim that they are not required to get treatment while at the penitentiary if their treatment obligations are listed as part of their probation conditions. The Chair asked if putting the requirements in the criminal judgment would solve this.
A member said that the main requirements the Trial Court Operations Committee was working to get in the criminal judgment were firearms restrictions and the obligation to submit to DNA testing.
Staff said that requiring a probationer to get permission to leave the state was an optional probation condition under N.D.C.C. § 12.1-32-07.
A member said the permission language in the form could stay where it was because it was not a mandatory condition. The member said that it is best if all the mandatory conditions are placed at the top of the form.
The Chair asked the Committee what it thought about the DOCR's proposed changes to paragraph 26 on electronic monitoring. A member asked whether anyone was using the GPS monitoring mentioned in the proposed language. A member responded that it was a private enterprise project that can be chosen as an option.
A member said it was appropriate to include the provision, but that the language was not clear. The member suggested that the language be amended to give clear and firm instructions to probationers.
Ms. Schmitz MOVED to redraft Form 9 and Form 9a to substitute "must" for "shall"
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and "must not" for "may not." Judge Kleven seconded.
A member agreed that the use of "may not" in particular was not forceful.
Motion CARRIED.
Judge Geiger MOVED to edit paragraph 26 to read: "You must submit to placement on and compliance with an electronic surveillance or monitoring system. You must not tamper with, damage, destroy or remove any of this equipment. You must be within range of this equipment for monitoring, reporting or surveillance purposes. You must reimburse the North Dakota Department of Corrections and Rehabilitation for the actual cost of replacement for any tampered with, damaged, destroyed, lost, or misplaced equipment." Judge Nelson seconded.
A member said many judges read probation conditions aloud in court. The member said that having to read less is preferable. A member said to list specific equipment in a probation condition can lead to future problems if different equipment is used or if systems are changed.
Motion CARRIED.
The Chair directed the Committee's attention to paragraph 31, which contained proposed new language on sex offender registration.
A member said the registration requirement language is especially important because some probationers claim they do not know or understand what they are supposed to do or when they are supposed to do it. The member said that the language setting out registration requirements needs to be as clear as possible.
A member said the term "residential address" had confused some probationers, who had to be told it meant the place where you live. A member added that some probationers, who do register in the place where they live, do not understand that they must also register in the place where they work, if different. The member said that it is too much to expect someone with less than a high school education to understand what "the law enforcement agency having jurisdiction" is intended to mean.
A member said one problem with paragraph 31 was that it was presented in narrative form, with conditions following conditions, in a huge paragraph. The member said the registration requirements are lost in the presentation. The member said the paragraph might be more understandable if it was presented in bullet form.
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A member asked if anyone knew the background behind the different registration deadlines in the statute and the form. The member said that because of inconsistent deadlines, the form or statute needs to be referenced whenever a probationer makes any change. A member said a guidebook on registration requirements would be useful to have.
A member said if the registration requirements are confusing to judges and lawyers, there is no doubt the requirements are also confusing to probationers. A member replied that if the style of the paragraph was changed to bullet form, this could limit confusion.
Judge Nelson MOVED to delete "you understand that" from paragraph 6 at line 22 on page 24. Judge Geiger seconded.
A member said the court cannot know whether a probationer understands a condition and the court certainly cannot order a probationer to understand.
Motion CARRIED.
A member asked whether language should be added to the paragraph 6 provision to clarify that a probationer has the right to challenge treatment recommendations made by an evaluator. A member responded that language allowing a challenge was contained in paragraph 16.
Based on the consensus of the Committee, the Chair instructed Staff to redraft the proposed changes to paragraph 31 in bullet form and to replace jargon in paragraph 31 with commonly used language. The Chair said the Committee would revisit Form 9 on Friday after the redrafting was complete.
A member observed that it would be advisable for the Committee to establish a dialogue with the DOCR on Form 9 so that actions could be coordinated.
PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT (PAGES 61-80 OF THE AGENDA MATERIAL)
Staff explained that N.D.Sup.Ct.Admin.R. 41 on access to court records was not consistent with a new rule, N.D.R.Ct. 3.4, approved by the Committee at its January meeting.
Judge Schmalenberger MOVED to approve proposed amendments to Rule 41. Ms. Schmitz seconded.
A member asked whether court staff would be obligated to review documents to make
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sure that they did not contain private information. Staff explained that N.D.R.Ct. 3.1 placed the burden to remove private information from documents on the party filing the document.
A member asked whether the court administration approved restricting access to birth dates. The member said that currently, if someone is using court records to do a background check, they might find hundreds of people with the same common name in the system. The member said that if the person doing the background check knows the birth date of the person they are checking, they can determine which records belong to that person.
Staff said that using a person's birth date is currently the only means available for a person doing a background check using the court's records to confirm that they are checking the correct records. Staff said that court administration and the Supreme Court understand this issue. Staff said that it was possible to restrict use of birth dates in documents submitted to the court and to allow the use of known birth dates to cross-check computerized court records.
The motion to approve the amendments to N.D.Sup.Ct.Admin.R. 41 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained the Committee had considered proposed form and style changes to Rule 12 at the January meeting. Staff said the Committee had questioned proposed new language in the rule and the proposed deletion of a subdivision.
Ms. Schmitz MOVED to approve the proposed amendments to Rule 12. Judge Dawson seconded.
The Committee discussed the proposed new language at lines 16-18 on page 83. A member said that comments in a federal rules manual indicated that federal courts on occasion order a reply to an answer. The member said that, for the sake of consistency, the Committee should incorporate the federal language into the rule rather than using the language in the proposal.
Mr. Plambeck MOVED to replace the language at lines 16-18 on page 83 with the language used in the federal rule: "A party shall serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time." Judge Sturdevant seconded. Motion CARRIED.
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A member said that subdivisions (I) and (j) on pages 88-89 dealing with an offer of fixed damages should not be deleted. The member argued that the subdivisions provided a unique remedy that was subtly different than the remedy offered by N.D.R.Civ.P. 68. The member said that the offer of fixed damages provision specifically allowed liability alone to be litigated when a fixed damages offer is accepted.
Mr. Boschee MOVED to undo the deletion of subdivisions (I) and (j) on offer of fixed damages. Mr. Plambeck seconded.
A member said that one reason for reviewing and revising the Civil Rules was to eliminate strange provisions. The member said that the same result allowed under the offer of fixed damages procedure can be accomplished using other procedures or by agreement of the parties.
A member said that Rule 68 has problems and that some lawyers believe it to be a draconian rule that holds no benefits for plaintiffs. The member said that continuing to have other options for settlement contributes to fairness in the system.
The motion FAILED 5-9.
Ms. Schmitz MOVED to replace all occurrences of "shall" in Rule 12 with "must." Judge Kleven seconded.
A member suggested that the Committee consistently use "must" as it revised the Civil Rules. A member observed that the federal rules had all embraced the use of "must."
The motion CARRIED.
A member suggested that the proposed revision of subdivision (b) on page 84 would change procedure in North Dakota. The member said that the revised language required that a Rule 12(b) motion be made before pleading if a responsive pleading is allowed. The member said this requirement could create complications in a situation where a party served an answer that included a counterclaim. The member said that, under the proposed language, the answering party would need to present its Rule 12(b) defense in a motion rather than making it in the answer because a responsive pleading to the answer and counterclaim would be allowed.
A member said that the proposed changes in the language would not cause a change from what was required in the past. A member pointed out that the language proposed was the same as the language used in the federal rule.
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A member said that, under the proposed language, a plaintiff could argue that a defendant who made a counterclaim in the answer would be required to assert any 12(b) defenses in a motion prior to making the answer or the defendant would be considered to have waived the defenses. A member replied that the same argument could be made using the current language of the rule. A member suggested that this argument was not being made under the current rule because it was a losing argument.
A member said the motions referred to in the proposed new language seemed to be pre-answer motions of the type that would be filed if the defendant, for example, did not believe there was jurisdiction. This type of pre-answer motion would be filed in lieu of a pleading. A member replied that discovery was often necessary before a jurisdiction motion could be made and the 20-day deadline to make an answer did not allow time for this discovery.
A member asked whether the use of the word "may" in line 31, page 84, indicated that the use of a motion was not obligatory.
A member said the proposed new language was better than the previous language. The member said that it would be foolish to argue, based on the proposed language, that a defendant could somehow waive its 12(b) defenses by asserting them in the answer.
A member responded that, in Minnesota, if a defendant asserts a "no jurisdiction" defense, the jurisdiction issue must be resolved prior to discovery or it is considered waived. This member said this approach is designed to promote judicial economy and encourage the resolution of preliminary matters before parties invest a great deal of time and effort into a case. The member said the proposed language seemed to fall in line with the Minnesota approach.
A member said that, under the proposed language, the only time a defendant would need to assert a 12(b) defense by pre-answer motion would be when the defendant made a claim of its own in its answer. The member suggested that, by making a claim, the defendant waived jurisdictional challenges so it made sense to require a pre-answer motion in this type of case. A member replied that this result is contrary to the basic principle that allows parties to make inconsistent claims.
Mr. Plambeck MOVED to delete the sentence beginning at line 40, page 84. Mr. Boschee seconded. Motion CARRIED.
The motion to approve proposed amendments to N.D.R.Civ.P. 12 and to include the rule in the Civil Rules Package CARRIED.
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Staff explained the Chief Justice had requested the Committee consider a proposed new rule on expedited appeals in termination of parental rights cases.
Ms. Schmitz MOVED to approve new Rule 2.2. Mr. Quick seconded.
A member said that under the proposed rule, it appeared that a recording would be used as the record on appeal. The member said that not all judges make sound recordings of proceedings. The member asked whether all proceedings would need to be recorded if the rule was put in place.
A member explained that the Supreme Court relies on recordings during expedited mental health appeals and that the proposed rule was based on the mental health procedure. A member commented that mental health hearings may last 45 minutes while termination of parental rights hearings may last 4-5 days. A member said that the justices may find 4-5 days of recordings too much to listen to.
The Chair pointed out that the federal government is pushing for faster appeals in termination of parental rights cases. The Chair said that taking an expedited appeal under the proposed rule would be optional with the parties.
A member said that there would probably not be too many expedited appeals under the proposed rule because few parties would want to proceed without having a transcript of the hearing. A member said that having an expedited appeal procedure was necessary because the state cannot keep a child in foster care for more than 18 months.
A member asked whether specifications of error should be required on every appeal rather than just when there is a motion for stay, as proposed in the rule draft. The member said having specific grounds outlined for the appeal would help expedite the process. The member said the specifications could be included in the notice of appeal.
A member replied that generally specifications of error are not required on appeal. The member said that specifications are required if a party is seeking a stay to provide the court with threshold information on what the case is about. A member noted that specifications of error are required on administrative appeals.
A member said that it seemed unlikely that an attorney, after a 4-5 day hearing on an
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issue as important as termination of parental rights, would be able to adequately prepare an appeal under the abbreviated briefing schedule in the proposed rule, especially without a transcript.
A member said that indigent defense counsel would be representing the parties in many termination of parental rights cases. The member said that the losing party in a case would likely be upset by the result and could push for an expedited appeal. The member said that this would place additional pressure on the attorney above and beyond that created by the abbreviated briefing schedule and having to analyze many hours of recorded testimony.
A member said if the driving force behind the rule was the need to satisfy federal aid requirements, the proposal was acceptable. The member said parties could choose not to use it.
A member said an alternative to adopting the proposal would be to allow parties to use the current appellate process and to include a sound recording as part of the record instead of a transcript. The member said this would speed the process because preparation of a transcript was one of the biggest delays in moving an appeal along.
Judge Geiger MOVED to delete the word "tape" on line 15, page 100. Ms. Schmitz seconded. Motion CARRIED.
A member suggested that the title of the proposed rule be amended to reflect that it applied only to expedited termination of parental rights appeals, not to all such appeals.
Judge Greenwood MOVED to change the title of the proposal to Termination of Parental Rights Expedited Appeals. Judge Dawson seconded. Motion CARRIED.
A member suggested that, in the section of the rule referencing stays, language on child placement could be incorporated as in Fla. R. App. P. 9.146.
Ms. Schmitz MOVED to re-order the sentence beginning at line 18 on page 100 to place the "unless" clause at the end of the sentence. Judge Geiger seconded. Motion CARRIED.
A member said that having a separate rule on expedited termination of parental rights appeals might not be necessary. The member said that a clause could be added to an existing rule to require the Supreme Court to give priority to cases involving termination of parental rights.
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The Chair said the Supreme Court already had authority to expedite any type of appeals it wanted to expedite, including imposing a truncated briefing schedule. The Chair said that the Chief Justice favored having a specific rule covering termination of parental rights cases.
A member suggested that language be added to the explanatory note making it clear that taking an expedited appeal in a termination of parental rights case was an optional procedure.
Judge Sturdevant MOVED to add language to the explanatory note to clarify the optional nature of the expedited appeal procedure. Ms. Schmitz seconded. Motion CARRIED.
Judge Geiger MOVED to add the word "expedited" before the word "appeal" at line 4, page 100. Mr. Quick seconded.
A member said that adding the language would help emphasize the optional nature of the rule.
Motion CARRIED.
Mr. Mack MOVED to change the 5 day deadline in line 21, page 100, to 15 days. Judge Schmalenberger seconded.
A member said that 5 days was too short an amount of time to put together a response to an appeal, especially when a transcript would likely not be available.
Motion CARRIED.
The motion to approve proposed new N.D.R.App.P. 2.2 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 1, N.D.R.Crim.P. - SCOPE AND EXCEPTIONS (PAGES 111-134 OF THE AGENDA MATERIAL)
Staff explained that a reference to the Uniform Parentage Act in Rule 1 was outdated because the legislature had adopted a new act. Staff presented proposed amendments that would delete the reference to the act.
Judge Dawson MOVED to approve proposed amendments to Rule 1. Ms. Schmitz
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seconded.
A member asked why the language referring to paternity actions should be deleted when a simple update to the statutory chapter number could be done instead. A member replied because this was the scope and exceptions rules for the Rules of Criminal Procedure and paternity actions were not criminal actions.
A member observed that the reference to paternity actions was in the part of the rule labeled "exceptions" and this meant that paternity actions were not criminal actions. A member responded that the many other types of actions that were not criminal actions were not listed so there was no reason to list paternity actions.
A member said the explanatory note made clear the reason for deleting the reference to paternity actions.
The motion to approve the proposed amendments to N.D.R.Crim.P. 1 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained that the State Court Administrator and the Chief Deputy Clerk of the Supreme Court had suggested changes to the facsimile and electronic filing rules.
Judge Nelson MOVED to approve the proposed amendments to Rule 2.2 and Order 16. Judge Kleven seconded.
A member said that the rules should make it explicit that courts may also fax file documents. The member said courts send many documents to counties where judges are not chambered and that being able to fax file those documents would serve judicial economy. The member said that it would also be appropriate, in order to have consistency throughout the rules, to allow a fax-filed document to be considered the original document and not to require substitution with a non-faxed document as mandated by Rule 2.2.
A member said that judges often receive electronically transmitted .pdf documents from clerks in outlying counties to be printed out and signed. The member said the most efficient way of dealing with these documents would be simply to scan or fax the signed document back to the clerk. The member said the language of the rules did not seem to allow scanning and electronic filing by courts and that if the document was faxed, Rule 2.2 required
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the courts to follow-up by mailing the signed document for filing. The member said this system was not efficient.
Judge Schmalenberger MOVED to delete all of Rule 2.2. Judge Nelson seconded. Motion CARRIED.
A member asked about the time of filing proposal on line 20, page 139, which would allow a document to be considered filed if receive by 11:59 p.m. on a given date. The member said that just because a document received after 5 p.m. is not filed on the day received does not mean that the court is not open for filing purposes after 5 p.m. The issue is what date the document will be considered filed.
The member said that by setting 5 p.m. as the time a document must be received to be considered filed on a given date, the court can ensure that the document may be examined or otherwise dealt with on that day, not the next day. The member said retaining 5 p.m. as the cut off time for filing would make sense because it allows judges time to consider the document.
A member said if receiving a document before 5 p.m. is important, the court can set this as a deadline. The member said that Order 16 did not prevent the court from setting a time and date deadline. The member said that Order 16 likewise did not permit a party to file a paper at 11:59 if a judge had required filing at an earlier time of day.
A member said that judges should not have the burden of setting times for documents to be filed. The member said it is reasonable for the rule to require documents to be filed before close of business and to require parties and attorneys to submit their documents before that time if they want to have the documents considered to be filed on a given date.
A member said that in federal district court, where electronic filing is the norm, a party can start trying to file a document in mid-afternoon and the document and necessary attachments may not be accepted until the evening. The member said the barrier to filing in the federal courts is entering their electronic system, which is difficult when there is heavy traffic. The member said that it was unlikely that the North Dakota system would work any better once electronic filing became the norm. The member said the rules should reflect the fact that under certain circumstances it can take hours to file something electronically.
A member said that delay in being able to file a document electronically with the federal district court highlighted a problem with the Order 16 time of filing proposal. The member said that a document can be sent by email on one day and not be received until days later. The member suggested that Order 16 should specify that a document be received by
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(not sent by) 11:59 to be considered filed on a given date.
A member said that the problem of overloaded servers was real. The member said that use by staff of computers to view video or listen to music online placed a burden on servers. The member said that clerks sometimes struggle now to keep server traffic flowing, and that with additional electronic filing, more struggles and delays are possible in the future.
A member said to change the rule to require an electronic submission to be received before they can be considered filed was contrary to practice with other submissions. The member said that the rules consider documents postmarked on a given day to be filed on that day. A member said that an analogous rule would not work with email because documents could be manipulated to indicate that they were sent on a different date than the actual sending.
A member said that the receiving party does not know when an email was sent. The member said an email could be sent at 11:59 p.m. but the receiving party would only know the time it was received. A member responded that once a party hits send, there is not much else the party can do to ensure receipt except to follow up and check whether the item was received.
A member said that another issue with Order 16's language could be seen at line 5, page 139. The language allows a "party" to electronically file documents. The member said that this language appeared to bar electronic filing by courts since the term "party" does not include the court.
A member suggested removing "party" from line 5 and referring only to documents. Another member suggested replacing "party" with "anyone." A member asked whether this would be too broad. A member replied that it would only apply to those who would otherwise be eligible to file documents in the court. A member said use of "anyone" sounded like a wide-open invitation.
Judge Dawson MOVED to amend line 5, page 139, to read "Documents may be filed electronically in the district courts." Judge Geiger seconded. Motion CARRIED.
A member said that attorney, parties and notaries were named on line 7, page 139, but the court was not mentioned. The member asked whether the court should be added.
Judge Kleven MOVED to delete "attorney, party, notary public or other" from line 7, page 139. Judge Schmalenberger seconded. Motion CARRIED.
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Judge Sturdevant MOVED to delete the words "Pilot Project" from the title of Order 16. Mr. Mack seconded. Motion CARRIED.
A member asked why the word "may" was used in line 9, page 139. The member said that the use of "may" implied that there could be other options for filing electronically in addition to facsimile transmission and e-mail. The member asked whether "must" would be a better word.
A member said that if someone appeared at the district court with a jump drive, CD or other digital storage and wanted to file a document electronically, filing should be allowed. A member said that use of other methods of electronic filing should not be foreclosed by the rule.
A member suggested that the rule be amended to allow the court to give permission for use of other methods of electronic filing rather than leaving it open to all possible methods.
Mr. Mack MOVED to amend the sentence beginning at line 9, page 139, to read:
"Documents filed electronically may must be submitted by
facsimile transmission or e-mail
to the district court clerk unless otherwise ordered by the court." Judge Sturdevant
seconded.
Motion CARRIED.
Judge Geiger MOVED to amend the sentence beginning at line 27, page 140 to read: "A
party electronically filing a document must pay $.10 per page an amount
per page
established periodically by the state court administrator for each page in excess of 20
pages."
Judge Nelson seconded.
A member said that it should be the state court administrator's task to determine the proper charge for documents filed electronically. The member said the proposed amendment would give the administrator flexibility to change the cost for electronic filing as needed.
A member commented that in 10 years the courts may have to charge for filing paper documents because the goal is to store all documents electronically and paper documents will have to be scanned in for storage.
A member said it would not make economic sense for the state court administrator to keep track of the cost of electronic filing and to collect all the excess page fee payments submitted. The member said the filing fee should be raised to absorb any costs related to electronic filing.
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A member said a reason for the excess page fee may be to discourage pro se parties from electronically filing excessive quantities of documents. The member said the excess page fee does not contribute any significant amount of funds to the courts. The member said, however, that if an excess page fee is going to be charged, it should remain in the rule where everyone can find it.
A member asked how the excess page fee is collected. Members responded that clerks count the pages and send out a bill. Staff explained that in some clerk offices, if a party incurs an excess page charge, the clerk informs the party and sets the document aside (without formerly filing it) until the charge is paid. A member said this was a dangerous practice.
The motion FAILED 4-10.
Mr. Plambeck MOVED to delete the excess page fee provision. Mr. Dunn seconded.
A member said that some counties need the excess page payments to cover the cost of electronic filing. A member said that filing fees may need to be increased to cover lost revenue from excess page payments. Members replied that an increase in filing fees would be better than continuing the excess page fee.
A member said there would certainly be a loss of revenue in smaller counties if the excess page fee is eliminated. The member said that steps should be taken to increase the filing fee if this is done. A member said that the filing fee is statutory and the Supreme Court could not increase it on its own.
The motion CARRIED 9-5.
Mr. McLean MOVED to consolidate paragraphs 3 and 5 of Order 16. Mr. Quick seconded. Motion CARRIED.
A member asked which district courts were receiving documents filed electronically. A member responded that all district courts in all counties could receive documents filed electronically. The member said that use of the electronic filing was increasing, especially among attorneys with collection practices.
The motion to approve the proposed amendments to N.D.R.Ct. 2.2 and N.D. Sup. Ct. Admin. Order 16 and to send the rules to the Supreme Court as part of the Annual Rules Package CARRIED.
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RULE 3.1, N.D.R.Ct. - PLEADINGS (PAGES 145-151 OF THE AGENDA MATERIAL)
Staff explained that a California attorney had suggested North Dakota adopt a rule allowing attorneys to send each other documents printed on both sides of the paper. Staff presented proposed amendments to Rule 3.1 that incorporated the suggestion.
Judge Sturdevant MOVED to approve the proposed amendments to Rule 3.1. Judge Kleven seconded.
A member observed that the proposed amendment allowing the use of double-sided printing was discretionary. No one would be required to create double-sided documents.
A member said double-sided documents would be difficult for receiving parties to read and to copy. A member said documents might have to be turned upside down and all around to read. A member said it would be a burden on attorney staff to sort, copy and review double-sided documents.
The motion to approve the proposed amendments to N.D.R.Ct. 3.1 and to send the rule to the Supreme Court as part of the Annual Rules Package FAILED.
The meeting recessed at approximately 4:30 p.m., on April 24, 2008.
April 25, 2008 - Friday
The meeting was called to order at approximately 8:30 a.m., by Justice Mary Maring, Chair.
FORM 9, N.D.R.Crim.P. - APPENDIX A (PAGES 21-60 OF THE AGENDA MATERIAL)
Staff presented the Committee with proposed form and style amendments to the sex offender registration paragraph of Form 9. The amendments were drafted in accordance with the Committee's comments at the April 24 session.
Judge Nelson MOVED to approve the proposed amendments to the sex offender registration paragraph. Ms. Schmitz seconded.
The Chair, Committee members and staff collectively reviewed the proposed amendments and made several additional form and style changes. After a period of discussion, the proposed amendments to the paragraph were finalized as follows:
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(___) 29. 31.You shall register your residential
address, employment or school as
required by N.D.C.C. § 12.1-32-15 with law enforcement in the county or city of
your intended residence as a sex offender or a felony offender against children within
10 days of the date of your criminal judgment or your release from physical custody.
You shall also notify law enforcement of any change of address, employment or
school within 10 days of the change.
Registration:
-- You must register as a sex offender or a felony offender against children within three days after the date of your criminal judgment or your release from custody.
-- You must register with the chief of police in the city or sheriff of the county where you live and inform them in writing where you live, where you work and where you go to school.
-- If you work or go to school in a different city or county or state from where you live, you must also register with the chief of police in the city or sheriff of that county.
-- If you plan to change your name, you must inform in writing the police or sheriff at least 10 days before the change. When your name change takes effect, you must inform in writing the police or sheriff within three days.
-- While on probation, if you change your vehicle information, e-mail address, or online name, you must tell the police or sheriff within three days after the change.
-- If you plan to change your school, or job, or to move, you must inform in writing the police or sheriff in the city or county where you are currently registered at least 10 days before the change.
-- After you change your school or job, or after you move, you must register with the police or sheriff in the new city or county where you go to school, work, or live. You must do this within three days after the change.
The motion to approve the proposed amendments to the sex offender registration paragraph CARRIED.
The motion to approve the proposed amendments to N.D.R.Crim.P. Forms 9 and 9A and to send the forms to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained a local attorney had recommended changes to Rule 5 that would allow electronic service of documents.
Judge Geiger MOVED to approve the proposed amendments to Rule 5. Judge Dawson seconded.
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A member asked why the proposed changes did not follow Fed.R.Civ.P. 5, which has language requiring parties to get permission from other parties before serving documents by electronic means. Staff said that the attorney who had requested that the Committee consider the rule change had suggested that the federal permission requirement was too restrictive.
Staff also explained the Supreme Court recently approved amendments to N.D.R.App.P. 25 authorizing electronic service. Staff said the Court, in making the Rule 25 amendments, decided to refer parties seeking to serve documents electronically to N.D. Sup. Ct. Admin. Order 14 for instructions on service requirements. Staff said the Rule 5 proposal took the same approach the court took in the appellate rule, referring parties to N.D. Sup. Ct. Admin. Order 16 for electronic service instructions.
A member observed that Order 16 required a party to obtain consent before electronically serving a document on another party, which was not consistent with the suggestion that no consent be required for electronic service. Staff explained that Order 16 was a pilot project rule, subject to change as conditions warrant. Staff said the Court could amend Order 16 if it decided that consent for electronic service should not be required.
A member observed that it would be awkward for lawyers to have to look for electronic service requirements in a separate rule. A member said that one way to make the requirements consistent between Rule 5 and Order 16 would be to copy the order's language into the rule.
A member said that if an electronic service consent requirement is made part of Rule 5, language from the federal rule should be used rather than language from Order 16. The member said the federal requirements were essentially the same as the Order 16 requirements. The member said the two key components of both the federal rule and Order 16 were the consent requirement and a provision that, if the serving party learns an electronically served document did not reach the other party, service is ineffective.
Mr. Mack MOVED to include the language from Fed.R.Civ.P. 5(b)(2)(E) in the proposal at line 50, page 156. Judge Dawson seconded. Motion CARRIED.
A member drew the Committee's attention to language at line 49, page 156, which would allow service of a document by leaving it with the court clerk if the intended recipient's address is "unknown." The member said the federal language allowed such service "if the person has no known address." The member said the federal language is clearer: an address could be "unknown" simply because a person did not make a diligent search for it.
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Judge Kleven MOVED to change line 49, page 156, to read "if the person has no known address." Mr. Dunn seconded.
A member said that finding addresses is getting more difficult because more people are using cell phones rather than land line phones. The member said it's not unusual for students and young people to move multiple times in a year. The member suggested that language requiring court permission before an item could be left with the clerk would place the burden on the party to do a diligent search.
A member said that Rule 5 applies to matters in which the initial pleadings have already been served and in most situations parties addresses would be known. A member said that in cases when service by publication is used to commence an action and a party's address may not be known even though the action is ongoing.
A member observed the existing rule requires court approval before an item can be left with the clerk when an address is not known. A member asked if language could be added to authorize a one-time blanket order allowing items to be left with the clerk when a party address is not known. A member said that the court should be involved in some way if a party's address is not known and the opposing party wants to serve documents by leaving them with the clerkotherwise the left documents could just accumulate.
Mr. Boschee MOVED to amend the motion by deleting the language at line 49, page 156, and replacing with "if no address is known, upon order of the court by leaving it with the clerk of court." Mr. Plambeck seconded.
A member said that in most cases, party addresses are known and all documents are mailed to those addresses. The member said it is quite rare for documents to be left with the clerk.
The motion to amend CARRIED. The motion as amended CARRIED.
A member asked the meaning of language at line 52-53, page 156, referring to "the agency designated to make delivery." The member asked who the term "agency" referred to. A member asked whether the agency language was needed, given that reference was made at lines 44-48, page 156, to postal delivery and third-party commercial carrier delivery.
Mr. McLean MOVED to end the sentence beginning at line 51, page 156, with a period after "in writing." Judge Dawson seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 5 and to send the
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rule to the Supreme Court as part of the Annual Rules Package CARRIED.
A member asked that the Committee reopen discussion of Rule 2.2 and Order 16. By unanimous consent, the Committee reopened discussion. The member said that, in order to bring consistency to the rules, N.D.R.Civ.P. 6 should be amended to reflect the Committee's proposed amendments to Rule 2.2 and Order 16.
Mr. Plambeck MOVED to amend N.D.R.Civ.P. 6(e)(3) to include the following language from N.D. Sup. Ct. Admin. Order 16: "For purposes of computation of time, any document electronically served must be treated as if it were mailed on the date of transmission." Under the motion, if the proposed amendment was approved, Rule 6 would be sent to the Supreme Court as part of the Annual Rules Package. Mr. Boschee seconded.
A member said it was appropriate for this language to be made part of Rule 6(e)(3) because the rule deals with computation of time. The member said that adding the amendment would remove any inconsistency in the treatment of documents served electronically by e-mail and documents served electronically by fax.
A member said the practical effect of the proposal would be to make it clear that 3 days would be added to the time period whenever a document is served electronically. A member questioned whether the language of the proposal made clear that electronic service included fax transmission. The member said that a note could be added to the explanatory note stating that electronic service includes service by facsimile.
A member pointed out that the title of the Rule 6(e) referenced service by mail or commercial carrier. The member suggested that electronic service be referenced in the title. By unanimous consent, the motion was enlarged to include revision of Rule 6 to include references to electronic service throughout the rule where appropriate.
The motion CARRIED.
Ms. Schmitz MOVED to add language to the explanatory note stating that "Service by electronic means includes service by facsimile transmission." Mr. Quick seconded. Motion CARRIED.
RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 168-171 OF
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THE AGENDA MATERIAL)
Staff explained that amendments removing the note of issue and certificate of readiness requirements had taken effect but that a reference to these documents still remained in the Rule 40 explanatory note and that a proposed amendment would remove the reference.
Judge Kleven MOVED to approve the proposed amendments to Rule 40. Judge Schmalenberger seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 40 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 172-197 OF THE AGENDA MATERIAL)
Staff explained that a Committee member had forwarded concerns that the Rule 45 subpoena power was being abused. As a way to clarify the rule's provisions, Staff presented proposed amendments consistent with the amendments to Fed.R.Civ.P. 45.
Mr. Plambeck MOVED to approve the proposed amendments to Rule 45. Judge Kleven seconded.
A member pointed out a typographical error in line 11, page 174. By unanimous consent, the proposal was amended to fix the error.
A member asked if the proposed change at lines 141-143, page 180, allowing discretionary disclosure of an unretained expert's opinion was part of the federal rule. Staff confirmed that the proposed language was taken from the federal rule.
A member asked where in the proposal the concerns about giving notice to other parties about subpoenas were addressed. Staff said these concerns were addressed in paragraph (b)(2) on pages 176-177.
A member suggested that implementing the notice provisions would be difficult. The member said that the requirement that notice be served before the subpoena was served was vague because it did not specify a time deadline to serve the notice. Staff said that the notice requirement was modeled on Fed.R.Civ.P. 45, which likewise did not provide a deadline to serve the notice, except for requiring service prior to service of the subpoena.
A member said that the federal rule does not have a provision for giving advance notice when someone is subpoenaed for a deposition or trial. The member said presumably
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notice would be provided through the deposition notice. The member said that Fed.R.Civ.P. 45 did have a provision requiring notice to other parties prior to service of a subpoena for the production of documents.
A member said that typically, a notice of a subpoena would be mailed at the same time the subpoena was sent for service. A member said that the mailed notice would typically be received before the subpoena was actually served, especially if sheriff service was used.
A member said that there are a lot of cases in which non-parties are served with subpoenas for the production of documents and no notice is sent to the other parties. The member said there is no way for a party to find out about such a subpoena if no notice is given.
A member said that most subpoenas are issued by attorneys, but that the rule also allows parties to have the court issue subpoenas. The member pointed out that the language of the rule referred several times to the "issuing court." The member suggested that this language be changed because most subpoenas are issued by attorneys and the court is rarely involved in issuance. The member said the language instead could be "the court identified in the subpoena."
A member said that the federal rule used the "issuing court" language and that the meaning of this term was simply the court referenced in the subpoena and the court that would have authority to enforce the subpoena. The member said that this use of the term "issuing court" could be explained in the explanatory note.
A member said that there are self-represented parties who use the clerk of court to issue subpoenas.
Mr. Dunn MOVED to replace "issuing court" throughout the rule with "the court identified in the subpoena." Judge Kleven seconded.
A member said that making the proposed change would mean the replacement of one word with five words. A member said that the proposed change might cause confusion in a case involving a subpoena issued outside the state in which there would be two courts identified in the subpoena but only one court actually issuing the subpoena.
A member said that the court is typically not involved in "issuing" the subpoena; attorneys actually issue subpoenas. The member said this fact could confuse a person reading the rule and trying to understand the meaning of the term "issuing court."
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A member replied that attorneys are officers of the court and they issue subpoenas under the court's authority.
The motion FAILED 6-9.
Ms. Schmitz MOVED to replace "shall" with "must" throughout the rule. Judge Kleven seconded. Motion CARRIED.
Judge Dawson MOVED to add language to the explanatory note explaining the definition of "issuing court." Mr. Boschee seconded.
A member said the definition would need to include language indicating that the issuing court is typically the court identified in the subpoena.
Motion CARRIED.
A member said that the language of the proposal at lines 122-124, page 179, was potentially confusing. The member said the language suggested that a nonresident could be required to attend a deposition in any county of the state without considering jurisdiction first. The member said jurisdiction over the nonresident would have to be established before the nonresident would be subject to a North Dakota subpoena. The member suggested that the language should be clarified.
A member said that parties could stipulate for a witness to testify at a given place and time and get an agreement from the witness.
Mr. Plambeck MOVED to amend lines 122-124, page 179, to read: "A subpoena may require a nonresident of this state who is served with a subpoena within this state to attend a deposition in any county of this state." Mr. McLean seconded.
A member said that if a witness is served in the state, the witness should be subject to a deposition in any county of the state. A member responded that such a rule would be unfair under certain circumstances, as when a Montana resident is served while on a shopping trip in Williams County and ordered to appear in a deposition in Cass County.
A member said that the rule allowing depositions to be conducted in any county once service has been made in the state has existed for many years without abuse. A member said the witness could seek a protective order if subjected to unreasonable travel requirements by a subpoena.
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Mr. Plambeck MOVED to amend and expand his motion to change the language on lines 119-124, page 179, to read:
(3) Location.
(A) Resident Witness. A subpoena may require a resident of this state
may be required by
subpoena to attend a deposition only in the county where that
the person resides, is employed
or transacts business in person, or at such other a convenient place
as prescribed ordered by
order of the issuing court. A resident may be required to attend a
hearing or trial any place
within this state.
(B) Nonresident Witness. A subpoena may require a nonresident of this
state may be
required by subpoena who is served with a subpoena within this state to attend
a deposition
, hearing or trial in any county of this state. A resident or nonresident may be
required to
attend a hearing or trial any place within this state.
Judge Kleven seconded. Motion to amend CARRIED.
Motion as amended CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 45 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained Fed.R.Civ.P. 16 had been amended and that changes in the spirit of the federal amendments were now proposed for N.D.R.Civ.P. 16, which is not wholly based on its federal counterpart.
Judge Geiger MOVED to approve the proposed amendments to Rule 16. Judge Schmalenberger seconded.
A member said that some of the terminology in the proposed amendments may create confusion. The member said the use of the term "scheduling conference" to apply to all conferences before the final pretrial conference raised questions. In particular, the member said use of this term created confusion about how a mandatory pretrial conference would be triggered.
A member said that the proposed amendments also referred to a "scheduling and planning conference" without defining the purpose of this type of conference. By unanimous consent, the words "and planning" were eliminated in the references in which they occurred.
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A member said it made sense to use standardized terms in the rule. The member said, however, that the list of topics to be considered at a "scheduling conference" was a mixed bag, and included topics that would not typically be discussed at a "scheduling conference." The member suggested the list be broken down to separate scheduling issues from other pretrial issues. The member said that exact categorizing was not required, but that the items typically discussed at a scheduling conference should be in a separate list.
A member said any type of conference could cover any one of the topics listed. A member suggested that the title of the list be changed so that it could refer to all types of conferences rather than only to scheduling conferences.
Mr. Quick MOVED to amend the title at line 26, page 200, to read "Attendance and Matters for Consideration at any Pretrial Conference" and to use pretrial conference as a generic term throughout the rule. Judge Schmalenberger seconded.
A member agreed that the term "scheduling conference" should not be used. The member said that conferences are not limited to scheduling and cover a variety of topics including case status and evidentiary issues. The member said that "pretrial conference" be used throughout the rule rather than "scheduling conference." The member said the reference to a "scheduling order" should be retained because this can be a product of a pretrial conference.
A member said it would be preferable to refer generically to all the different types of conferences as pretrial conferences and then to specify the purpose of the conference, if necessary; i.e., a pretrial conference for purposes of entering a scheduling order. The member said this approach would allow the specific purposes of various conferences to be identified when appropriate.
A member said that once the rule identifies the type of conference it deals with pretrial conferenceit may not be necessary to repeat the name of the conference. Instead, the term conference could simply be used.
Motion CARRIED.
Mr. Quick MOVED to have staff incorporate the approved amendments into the rule and to have the Committee consider the amended rule further at the next meeting. Judge Schmalenberger seconded.
Motion CARRIED.
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Staff explained Fed.R.Civ.P. 17 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 17.
Judge Dawson MOVED to approve the proposed amendments to Rule 17. Judge Kleven seconded.
A member said the terms "executor" and "administrator" had been outmoded since 1975. A member said these terms could help distinguish between cases where there was a will and cases where there was no will. A member said personal representative covered both types of cases.
Judge Sturdevant MOVED to substitute the term "personal representative" for "executor" and "administrator" and to renumber the proposal accordingly. Ms. Schmitz seconded. Motion CARRIED.
A member asked whether "guardian" was sufficient under current law or whether "guardian or conservator" would be more appropriate.
Mr. Mack MOVED to add "conservator" as an item on the list under Rule 17 (a)(1). Judge Geiger seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 17 and to include the rule in the Civil Rules Package CARRIED.
RULE 18, N.D.R.Civ.P. - JOINDER OF CLAIMS AND REMEDIES (PAGES 218-221 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 18 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 18.
Mr. Quick MOVED to approve the proposed amendments to Rule 18. Mr. Dunn seconded.
A member said the language on line 9, page 219, seemed to limit parties to joining only two claims. A member said that the federal rule also used the "two claims" language. A member said that "two or more claims" could be better language.
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Judge Schmalenberger MOVED to amend the language on line 9, page 219, to add "or more" between "two" and "claims." Mr. McLean seconded.
By unanimous consent, the motion was amended to additionally change "the other"on line 10, page 219, to "another."
Motion CARRIED.
A member pointed out that under the proposal, crossclaim was spelled without a hyphen, which is a change. The member said it will be important to consistently apply this change across the rules.
A member asked whether the term "in particular" served a useful purpose on line 12,
page 219. A member said that it was there to give emphasis to the material in the sentence. A member said keeping the term was important to maintain the flow between sentences in the rule.
Ms. Schmitz MOVED to delete the term "in particular" from line 12, page 219. Motion FAILED for lack of a second.
The motion to approve the proposed amendments to N.D.R.Civ.P. 18 and to include the rule in the Civil Rules Package CARRIED.
Staff explained Fed.R.Civ.P. 19 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 19.
Judge Dawson MOVED to approve the proposed amendments to Rule 19. Judge Kleven seconded.
Ms. Schmitz MOVED to delete "as a practical matter" from line 12, page 223. Judge Nelson seconded.
A member said the language should be retained because it conveys an intent that the practical consequences of a person's absence from a case be considered. A member suggested that the phrase may also be a term of art discussed in federal court decisions.
Motion FAILED.
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The motion to approve the proposed amendments to N.D.R.Civ.P. 19 and to include the rule in the Civil Rules Package CARRIED.
RULE 20, N.D.R.Civ.P. - PERMISSIVE JOINDER OF PARTIES (PAGES 228-235 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 20 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 20. Staff said that a reference to N.D.R.Civ.P. 54(b) had also been removed from the proposal.
Judge Dawson MOVED to approve the proposed amendments to Rule 20. Mr. Boschee seconded.
A member asked if language should be added to the explanatory note to highlight the deletion of the Rule 54(b) reference. A member said that using Rule 54(b) would still be an option for parties and that a cross-reference to the rule remained part of Rule 20.
The motion to approve the proposed amendments to N.D.R.Civ.P. 20 and to include the rule in the Civil Rules Package CARRIED.
RULE 21, N.D.R.Civ.P. - MISJOINDER AND NONJOINDER OF PARTIES (PAGES 236-239 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 21 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 21.
Judge Geiger MOVED to approve the proposed amendments to Rule 21. Mr. Quick seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 21 and to include the rule in the Civil Rules Package CARRIED.
FOR THE GOOD OF THE ORDER
A member requested that Staff send a copy of the proposed amendments to Form 9 to all members once the Committee's changes were incorporated.
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The meeting adjourned at approximately 11:30 p.m., on April 25, 2008.
_________________________________
Michael J. Hagburg