M E M O

TO: Joint Procedure Committee

FROM: Gerhard Raedeke

RE: Rule 4, N.D.R.App.P.; Appeal -- When Taken

Previously, the rules of civil procedure were inconsistent as to whether various post-judgment motions must be "served," "filed," or "made" within a certain number of days. To achieve consistency, the federal drafters chose "filing" as the operative time. This Committee chose "service and filing."

Rule 4, Fed.R.App.P., was amended, effective December 1, 1995, to achieve the same consistency. Should the terminology in Rule 4(a)(6), N.D.R.App.P., be changed from "served" to "served and filed" to attain consistency?

Also, the time within which a motion for relief under Rule 60, N.D.R.Civ.P., must be made to suspend the time for appeal may need to be changed from 10 to 15 days to achieve consistency with a Rule 59, N.D.R.Civ.P., motion to alter or amend the judgment. Otherwise, problems will occur in determining whether the motion is really a Rule 60 motion for relief from the judgment or Rule 59 motion to alter or amend the judgment.