RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
1 (a) Purposes of a Pretrial Conference. In any action, the court may, and
2 when any of the triggering events specified in Rule 16(b) occur must, order the
3 attorneys and any self-represented parties to appear in person, telephonically, or by
4 other electronic means, for one or more pretrial conferences for such purposes as:
5 (1) expediting disposition of the action;
6 (2) establishing early and continuing control so that the case will not be
7 protracted because of lack of management;
8 (3) discouraging wasteful pretrial activities;
9 (4) improving the quality of the trial through more thorough preparation;
10 (5) facilitating settlement; and
11 (6) discussing the desirability of using alternative dispute resolution.
12 (b) Scheduling; Triggering Events.
13 (1) Triggering Events. The court must conduct a pretrial conference for the
14 purpose of entering a scheduling order if:
15 (A) more than six months have passed since filing of the summons and
16 complaint or answer without final disposition of the case or filing of a dispositive
18 (B) the summons and complaint or answer was served more than six months
19 before filing and ninety days have passed since filing without final disposition of
20 the case or filing or a dispositive motion;
21 (C) a Rule 40 (e) notice has been issued and any response to the notice
22 contained a request that the case be left open; or
23 (D) any party makes a written request for a pretrial conference to enter a
24 scheduling order.
25 (2) When Conference Held. The pretrial conference must be held within 60
26 days of the triggering event.
27 (c) Attendance and Matters for Consideration at a Pretrial Conference.
28 (1) Attendance. A represented party must authorize at least one of its
29 attorneys to make stipulations and admissions about all matters that can reasonably
30 be anticipated for discussion at a pretrial conference. If appropriate, the court may
31 require that a party or its representative be present or reasonably available by
32 telephone or other means to consider possible settlement.
33 (2) Matters for Consideration. At any pretrial conference, the court may
34 consider and take appropriate action on the following matters:
35 (A) formulating and simplifying the issues, and eliminating claims or
37 (B) joining other parties and amending the pleadings, if necessary or
39 (C) obtaining admissions and stipulations about facts and documents to
40 avoid unnecessary proof, and ruling in advance on the admissibility of evidence;
41 (D) avoiding unnecessary proof and cumulative evidence, and determining
42 limitations or restrictions on the use of testimony under N.D.R.Ev. 702;
43 (E) determining the appropriateness and timing of summary adjudication
44 under Rule 56 and other motions;
45 (F) controlling and scheduling discovery;
46 (G) resolving issues relating to disclosure,
discovery, or preservation of
47 electronically stored information, including the form or forms in which it should be
49 (H) scheduling the identification of witnesses and documents, scheduling
50 the filing and exchange of any pretrial briefs, and setting dates for further
51 conferences and for trial;
52 (I) referring issues to a master;
53 (J) settling the case and using special procedures to assist in resolving the
55 (K) determining the form and content of the pretrial order;
56 (L) disposing of pending motions;
57 (M) adopting special procedures for managing potentially difficult or
58 protracted actions that may involve complex issues, multiple parties, difficult legal
59 questions, or unusual proof problems;
60 (N) ordering a separate trial under Rule 42(b) of a claim, counterclaim,
61 crossclaim, third-party claim, or particular issue;
62 (O) ordering the presentation of evidence early in the trial on a manageable
63 issue that could, on the evidence, be the basis for a judgment as a matter of law
64 under Rule 50(a) or a judgment on partial findings under Rule 52(c);
65 (P) establishing a reasonable limit on the time allowed to present evidence;
66 (Q) allocating peremptory challenges; and
67 (R) facilitating in other ways the just, speedy, and inexpensive disposition
68 of the action.
69 (d) Pretrial Orders. After any conference under this rule, the court must
70 issue an order reciting the action taken. This order controls the course of the action
71 unless the court modifies it.
72 (e) Final Pretrial Conference. The court may hold a final pretrial conference
73 to formulate a trial plan, including a plan to facilitate the admission of evidence.
74 The conference must be held as close to the time of trial as is reasonable, and must
75 be attended by at least one attorney who will conduct the trial for each party and by
76 any self-represented party. The court may modify the order issued after a final
77 pretrial conference only to prevent manifest injustice.
78 (f) Sanctions.
79 (1) In General. On motion or on its own, the court may issue any just orders,
80 including those authorized by Rule 37, if a party or its attorney:
81 (A) fails to appear at a pretrial conference;
82 (B) is substantially unprepared to participate, or does not participate in good
83 faith, in the conference; or
84 (C) fails to obey a scheduling or other pretrial order.
85 (2) Imposing Fees and Costs. Instead of or in addition to any other sanction,
86 the judge must order the party, its attorney, or both to pay the reasonable expenses,
87 including attorney fees, incurred because of any noncompliance with this rule,
88 unless the noncompliance was substantially justified or that other circumstances
89 make an award of expenses unjust.
90 EXPLANATORY NOTE
91 Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1,
92 1990; March 1, 1996; March 1, 2000; August 1, 2004; March 1, 2008; March 1,
93 2011; December 1, 2011; March 1, 2017.
94 Rule 16 was amended, effective March 1, 2000, to add a new subdivision
95 (a)(6) relating to alternative dispute resolution. Under N.D.R.Ct. 8.8, all parties in
96 civil cases are required to discuss early alternative dispute resolution and must file
97 a statement with the district court regarding participation in ADR.
98 Rule 16 was amended, effective March 1, 2011, in response to the
99 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
100 and organization of the rule were changed to make the rule more easily understood
101 and to make style and terminology consistent throughout the rules.
102 Subdivision (a) was amended and new subdivisions (b), (c) and (e) were
103 added, effective August 1, 2004, to incorporate a mechanism to trigger a pretrial
104 conference when certain events occur in an action.
(d) (c) was amended, effective March 1,
2008, to add issues
106 related to electronically stored information to the list of possible subjects for
107 discussion at a pretrial conference.
108 Subdivision (c) was amended, effective March 1, 2017, to add
109 preservation of electronically stored information to the list of possible subjects for
110 discussion at a pretrial conference.
111 Subdivision (d) was amended, effective March 1, 1996, to follow the 1993
112 amendment to Fed.R.Civ.P. 16(c).
113 Subdivision (h) was amended, effective March 1, 1990. The amendment is
114 technical in nature and no substantive change is intended.
115 SOURCES: Joint Procedure Committee Minutes of January 28-29, 2016,
116 pages 12-13; September 30, 2011, page 17; September 25, 2008, page 7; April
117 24-25, 2008, pages 25-26; October 11-12, 2007, page 3; September 18-19, 2003,
118 pages 11-18; April 24-25, 2003, pages 26-30; May 6-7, 1999, pages 7-8; January
119 28-29, 1999, pages 7-12; January 26-27, 1995, page 10; September 29-30, 1994,
120 pages 22-23; April 20, 1989, page 2; December 3, 1987, page 11; April 26-27,
121 1984, pages 26-28; January 19-20, 1984, pages 18-23; September 18-19, 1980,
122 pages 12-13; September 20-21, 1979, page 11; Fed.R.Civ.P. 16.
123 CROSS REFERENCE: N.D.R.Civ.P. 15 (Amended and Supplemental
124 Pleadings), N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure),
125 N.D.R.Civ.P. 36 (Requests for Admission), N.D.R.Civ.P. 40 (Assignment of Cases
126 for Trial), N.D.R.Civ.P. 41 (Dismissal of Actions), N.D.R.Ct. 8.4 (Summons in
127 Action for Divorce or Separation), N.D.R.Ct. 8.8 (Alternative Dispute