TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Appendix F, N.D.R.Ct.; Alternative Dispute Resolution Statement Form
Rule 16, N.D.R.Civ.P.; Pretrial Conferences, Scheduling, Management
Rule 40, N.D.R.Civ.P.; Assignment of Cases for Trial
The Committee discussed amendment of N.D.R.Ct. Appendix F at its January 24-25, 2002, meeting. Judge Hagerty had suggested that new material be added to the N.D.R.Ct. 8.8 Alternative Dispute Resolution Statement form regarding scheduling. In general, the Committee agreed that parties should provide more scheduling information to the courts. The Committee, however, indicated that additional work needed to be done on Appendix F and on rules related to scheduling.
The following proposed additions have been made to Appendix F based on the Committee's suggestions:
At page 67, lines 32-35, language has been added allowing counsel to postpone taking a position on ADR options until an agreed date.
At page 67, lines 40-41, language has been added allowing counsel to request the court to schedule court sponsored ADR during an agreed time frame.
At page 68, lines 51-54, language has been added allowing counsel to postpone providing scheduling information until an agreed date, or to request a scheduling conference if no agreement can be reached on scheduling.
The amendments regarding ADR seem consistent with Rule 8.8 itself. Compliance with Rule 8.8's requirement that parties discuss ADR with each other and their clients would still be required, even though the parties may conclude they cannot take a position on ADR at the time the initial Appendix F form is filed.
Based on the Committee's suggestions, staff prepared a proposed new subdivision (b) to N.D.R.Civ.P. 16. Proposed N.D.R.Civ.P. 16 (b)(1) requires parties to provide pretrial scheduling information to the court. This paragraph is based on language in N.D.R.Ct. 8.8. Proposed N.D.R.Civ.P. 16 (b)(2) requires the court to issue a scheduling order once the parties have provided scheduling information. The language in this paragraph is based on F.R.Civ.P. 16 (b). Language has also been added to the N.D.R.Civ.P. 16 Explanatory Note noting the changes and explaining that proposed subdivision (b) does not apply to cases governed by N.D.R.Ct. 8.3.
Based on the Committee's suggestions, staff prepared a proposed amendment to N.D.R.Civ.P. 40 indicating that if the court has entered a scheduling order, the parties are not required to file a note of issue and certificate of readiness in order to get the matter on the trial calendar.
Judge Allan Schmalenberger of the Case Flow Management Committee informed staff that the Case Flow Management Committee supports the idea of having more formalized scheduling in civil cases. He indicated that the proposed rule amendments requiring scheduling orders and scheduling conferences seemed to complement the civil case management guidelines the Case Flow Management Committee is working on.
If the Committee does not want to go forward with requiring parties to provide scheduling information and requiring courts to issue scheduling orders, an alternative amended Appendix F form has been provided that does not include scheduling information, but that includes the proposed ADR information amendments.