M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Delivery by Commercial Carrier
At the last meeting, the Committee reviewed the 1996 federal amendments to Rule 25 and 26, Fed.R.App.P. The amendments permit papers to be served and filed via third-party commercial carrier, if the carrier undertakes to deliver the document in no more than three calendar days. Under the amendments, service is complete upon delivery to the carrier
The amendments further provide, when reasonable, service on a party is to be done in a manner at least as expeditious as the manner used to file the paper with the court. The certificate of service is to state the date and manner by which the document was mailed or dispatched to the clerk.
Currently, North Dakota's rules of procedure do not authorize papers to be served or filed via commercial carrier. 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 is not "mail." Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D. 1996).
At the last meeting, the Committee decided to reject the federal amendments to the rules of appellate procedure. Instead, the Committee decided to go further and consider allowing service and filing via commercial carrier whenever service and filing is allowed by mail in any of the rules of procedure. The North Dakota's Rules of Procedure containing references to mail are in the following material. Does the Committee want to propose amendments allowing papers to be served and filed via commercial carrier as an alternative to mail?