M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Service Via Commercial Carrier
Currently, North Dakota's rules of procedure do not authorize papers to be served or filed via commercial carrier. Under the rules, delivery via commercial carrier does not constitute mail. "Mail" means delivery conveyed under public authority. Prince v. Poulos, 876 F.2d 30, 32 n.1 (5th Cir. 1989). For example, Federal Express courier service does not constitute "mail." Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D. 1996).
At the last meeting, the Committee considered amendments permitting service and filing via third-party commercial carrier as an alternative to mail. The intent of the Committee was to allow service via third-party commercial carrier whenever the rules allow service via mail to avoid confusion as to whether service is allowed via third-party commercial carrier under any given rule.
Generally, the Committee thought service via third-party commercial carrier is as reliable as the Postal Service. The Committee approved all of the proposed amendments by a two-thirds vote with the exception of Rule 17, N.D.R.Crim.P., and Rule 4, N.D.R.Civ. The amendment to Rule 17 failed, and the amendment to Rule 4 carried by a vote of 7 to 6. Because the amendment to Rule 4 failed to carry by a two-thirds vote, the proposal is back on the agenda for further consideration.
Also, at the last meeting, the Committee indicated the phrase, "third-party commercial carrier" should be defined as excluding electronic mail. For the Committee's consideration at this meeting, comment has been added defining "third-party commercial carrier" in the explanatory notes to Rules 4 and 5, N.D.R.Civ.P. and Rule 25, N.D.R.App.P. These are the rules governing service by commercial carrier. The definition is only included in the rules governing service as it is probably unnecessary to include a definition of third-party commercial carrier in every rule requiring service. In addition, amendments are not needed to the rules of criminal procedure, because under Rule 49, N.D.R.Crim.P., service is to be made in the manner provided by Rule 5(b), N.D.R.Civ.P.
Finally, is it the Committee's intent to allow service via third-party commercial carrier whenever a statute does not specify the procedure for accomplishing service? If so, should comment be added to the rules indicating the Committee's intent? Generally, when a statute does not specify how service is to be made, the rules of procedure govern the procedure for accomplishing service. See, Sande v. State, 440 N.W.2d 264, 266-67 (N.D. 1989).
In the material following, the Committee will need to decide whether it wants to recommend adoption of the proposed amendments to Rule 4, N.D.R.Civ.P., the proposed explanatory notes to Rules 4 and 5, N.D.R.Civ.P., and the proposed explanatory note to Rule 25, N.D.R.App.P.
The appendix to the material contains the amendments considered by the Committee at the last meeting, which allow use of a third party commercial carrier. Even though they have already been considered by the Committee, the amendments are included in the appendix, because, the Committee wanted the opportunity for further review before the proposals are submitted to the Supreme Court for adoption.