M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 4, N.D.R.Civ.P.; Demand for Filing Complaint
At the request of the Committee, the Supreme Court amended Rule 4, N.D.R.Civ.P., to allow a defendant to serve a written demand upon the plaintiff to file the complaint. The Rule provides: "Service of the demand must be made under subdivision (d)." Subdivision (d) contains the provisions for personal service of process.
When considering the proposed amendment, the Court questioned whether the personal service required under subdivision (d) is to be made on the plaintiff or the plaintiff's attorney. Normally, under Rule 5, N.D.R.Civ.P.:
"Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court."
Should Rule 4 be amended to clarify whether service of the demand is to be made upon the plaintiff or the plaintiff's attorney when the Plaintiff is represented?