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 last meeting, the Committee considered an amendment to Rule 4(c), N.D.R.Civ.P., which would provide the defendant with a means of compelling the plaintiff to file the complaint. The amendment provides:

"(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand upon the plaintiff to file the complaint. Service of the demand must be made under subdivision (d). If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.

(4) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e)."

Committee members thought the sanction is too harsh, because it is not commensurate with the degree of harm caused the defendant by the failure of the plaintiff to file the complaint. If the plaintiff neglects to file and the statute of limitations runs, the plaintiff will lose its cause of action as the plaintiff will not be able to start the action over. In comparison, the only harm to the defendant is that the defendant will temporarily incur the cost of paying the plaintiff's filing fee.

Others stated the plaintiff is the one bringing the action, and it is only fair the plaintiff should be responsible for timely filing. It is unfair to make an economically disadvantaged defendant pay the plaintiff's filing fee in hopes of eventually getting reimbursed. The sanction is equally severe under Rule 4(c)(2) when the plaintiff does not serve the complaint after being served with a demand for service of the complaint.

A motion to adopt the amendment carried by a vote of nine to five. However, the Committee decided the amendment should receive further consideration.