RULE 3.2. MOTIONS
(a) Submission of motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within 5 days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion. If any party who has timely served and filed a brief requests oral argument, the request must be granted. A timely request for oral argument must be granted even if the movant has previously served notice indicating that the motion is to be decided on brief. The party requesting oral argument shall secure a time for the argument and serve notice upon all other parties. The court may hear oral argument on any motion by telephonic conference. The court may require oral argument and may allow or require testimony on the motion. Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing the answer brief.
(b) Failure to file briefs. Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
(c) Extension of time. Extensions of time for filing briefs and other supporting papers, or for continuance of the hearing on a motion, may be granted only by written order of court. All requests for extension of time or continuance, whether written or oral, must be accompanied by an appropriate order form.
(d) Time limit for filing motion. Except for good cause shown, a motion must be filed in such time that it may be heard not later than the date set for pretrial of the case.
(e) Application of rule. This rule does not apply to the extent it conflicts with another rule adopted by the Supreme Court.
Rule 3.2 was amended, effective September 1, 1983; March 1, 1986; January 1, 1988; March 1, 1990; January 1, 1995; March 1, 1997; March 1, 2002; March 1, 2005.
The language of subdivision (a) does not prevent a court from adopting a local rule requiring that every motion be noticed for oral argument, if due allowance is made for a telephonic hearing.
Subdivision (a) was amended, effective March 1, 1990, to provide that the request for oral
argument on the motion must be granted when the party requesting oral argument has timely
served and filed a brief.
This amendment clarifies the rule in accordance with Anton v.
Anton, 442 N.W.2d 445 (N.D. 1989).
Subdivision (a) was amended, effective January 1, 1995,
in response to First
of Minot v. Wickman, 464 N.W.2d 195 (N.D. 1990); Breyfogle v. Braun, 460 N.W.2d 689
(N.D. 1990). Those cases to provide that a written motion must be noticed, and
notice must indicate that oral argument has been requested or that the motion will be decided
on briefs unless oral argument is requested. In addition, the amendment
the time between the date a motion is filed and the date a motion may be heard by
eliminating the five-day period within which the movant's brief could be filed.
Although the rule contemplates filing a brief with every motion, what constitutes a brief should be liberally construed.
Subdivision (e) was added, effective March 1, 1997, to clarify that, in the case of a conflict between this rule and any other Supreme Court rule, the other rule will govern. For example, N.D.R.Civ.P. 56 allows parties 30 days to respond to a summary judgment motion, which conflicts with the 10 day response period specified in subdivision (a) of this rule. Under subdivision (e), the N.D.R.Civ.P. 56 response period would prevail.
SOURCES: Joint Procedure Committee Minutes of April 29-20, 2004, pages 25-26; September 28-29, 2000, page 13; April 25, 1996, pages 8-11; January 25-26, 1996, pages 10-16; April 28-29, 1994, pages 15-17; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 13-16; April 29-30, 1993, pages 20-22; April 20, 1989, pages 10-15; March 24-25, 1988, pages 7-10 and 13-15; Dec. 3, 1987, pages 4-5; February 19-20, 1987, pages 21-22; June 22, 1984, page 30; April 26, 1984, pages 17-19.
CROSS REFERENCE: N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers); N.D.R.Civ.P. 6 (Time); N.D.R.Civ.P. 7 (Pleading Allowed-Form of Motions); N.D.R.Civ.P. 56 (Summary Judgment); N.D.R.Crim.P. 45 (Time); N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.App.P. 27 (Motions); N.D.R.App.P. 34 (Oral Argument).