RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
(a) Pretrial Conferences; Objectives.
In any action after issue is joined theThe court in its discretion may, and upon written request of a party shall, direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences in advance of trial for such purposes as:
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation
(5) facilitating the settlement of the case
(6) discussing the desirability of using an alternative dispute resolution process.
(b) Scheduling and Planning. Except in categories of actions exempted by North Dakota Rules of Court, the court shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mails, or other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order may also include
(4) the timing and procedure for an alternative dispute resolution process;
(5) the date or dates for conferences before trial, a final pretrial conference, and trial; and
(6) any other matters appropriate in the circumstances of the case.
A schedule may not be modified except upon a showing of good cause and by leave of the court.
(b)(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to:
(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the North Dakota Rules of Evidence;
(5) the appropriateness and timing of summary adjudication under Rule 56;
(6) the control and scheduling of discovery;
(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
(8) the advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury referring matters under Rule 53;
(9) settlement and the use of special procedures to assist in resolving the dispute, including the use of extrajudicial proceedings such as mediation, minitrials, summary jury trials, case settlement or evaluation conferences, or other alternative dispute resolution processes;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) an order for a separate trial under Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;
(14) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and
(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.
At least one of the attorneys for each party participating in any conference before trial must have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.
(c)(d) Final Pretrial Conference. Any final pretrial conference must be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.
(d)(e) Pretrial Orders. After any conference held under this rule, an order must be entered reciting the action taken. This order controls the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference may be modified only to prevent manifest injustice.
(e)(f) Sanctions. If (i) a party or party's attorney fails to obey a pretrial order, (ii) no appearance is made on behalf of a party at a pretrial conference, (iii) a party or party's attorney is substantially unprepared to participate in the conference, or (iv) a party or party's attorney fails to participate in good faith, the court, upon motion of a party or its own motion, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expense incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; ________________________.
Rule 16 was amended, effective ______________, to add a new subdivision (b) mandating scheduling orders. The existing subdivisions were redesignated accordingly.
This rule as amended effective March 1, 1986, is derived from Rule 16, FRCivP, as amended in 1983, with several important deviations. First is the requirement that issue be joined before a conference is held. Issue is joined when the parties to an action reach the stage where one party asserts a fact in the pleadings and the other party denies the fact. Black's Law Dictionary 432 (5th ed. 1983). The second change from Federal Rule 16 is that the court must hold a pretrial conference upon written request of a party, contrasted to complete discretion in the federal court. A third deviation is that subdivision (b) of the federal rule was not adopted. A scheduling order is not required as in the federal rule.
(b)(c) was amended, effective March 1, 1996, to follow the 1993 amendment to Rule 16(c), FRCivP.
(e)(f) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Procedure Committee Minutes of ___________________; January 26-27, 1995, page 10; September 29-30, 1994, pages 22-23; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, pages 26-28; January 20, 1984, pages 18-23; September 18-19, 1980, pages 12-13; September 20-21, 1979, page 11; Rule 16, FRCivP.
SUPERSEDED: Sections 28-1101, 28-1102, 28-1103, 28-1104, NDRC 1943.
CROSS REFERENCE: Rules 15 (Amended and Supplemental Pleadings), 36 (Requests for Admission), and 41 (Dismissal of Actions), NDRCivP; Rule 8.4 (Summons in Action for Divorce or Separation).