RULE 25. FILING AND SERVICE

(a) Filing.

(1) Filing with the Clerk. Papers A paper required or permitted to be filed in the supreme court must be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) In general. Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the papers are received by the clerk within the time fixed for filing.

(B) A brief, appendix, transcript, or petition for rehearing. However, briefs, appendices, transcripts, and petitions for rehearing are deemed filed on the day of mailing. A brief, appendix, transcript, or petition for rehearing is timely filed, however, if on or before the last day for filing, it is:

(i) mailed to the clerk by First - Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or

(ii) dispatched to the clerk for delivery within 3 calendar days by a third-party commercial carrier.

(C) Facsimile Transmission. Papers may not be filed with the clerk of the supreme court by means of facsimile transmission.

(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by a single justice, the justice may receive the motion for filing. If this occurs, the justice shall note thereon the date of filing and thereafter transmit it to the clerk. The judge shall note the filing date on the motion and give the motion to the clerk.

(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk, at or before the time of filing, must be served by a party or person acting for that party on all other parties to the appeal or review. Service on a party represented by counsel must be made on counsel.

(c) Manner of Service. Service may be personal, orby mail, or by third-party commercial carrier for delivery within 3 calendar days. When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail or by commercial carrier is complete on mailing or delivery to the carrier.

(d) Proof of Service; Filing. A paper Paperspresented for filing must contain an acknowledgment of service by the person served or proof of service by the person who made service. Proof of service may appear on or be affixed to the papers filed. When a brief, appendix, transcript, or petition for rehearing is filed by mailing or dispatch in accordance with Rule 25(a)(2)(B), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require acknowledgment or proof of service to be filed promptly thereafter.

EXPLANATORY NOTE

Rule 25 was amended, effective January 1, 1988; March 1, 1996; . This rule is derived from Rule 25, FRAppP. Subdivision (a) provides that generally papers are not deemed filed until they are received by the Clerk of the Supreme Court. Briefs, appendices, transcripts, and petitions for rehearing are exceptions to this general rule.

Subdivision (d) allows proof of service by admission of service, affidavit of service, or certificate of an attorney.

The amendment patterns the 1996 federal amendment. The amendment allows filing and service via commercial carrier.

SOURCES: Procedure Committee Minutes of ; January 26-27, 1995, pages 6-7; September 29-30, 1994, page 12; February 19-20, 1987, pages 6-7; September 18-19, 1986, pages 14-15; May 25-26, 1978, page 10; March 16-17, 1978, pages 3-4. Rule 25, FRAppP.

STATUTES AFFECTED:

SUPERSEDED: 28-27-05, NDCC.

CROSS REFERENCE: Rule 10(c), NDRAppP. (The Record on Appeal).