M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Change in Location of Civil Proceeding
This memo reviews the statutory provisions governing a change in location of a civil pretrial hearing, proceeding or trial.
Before the 1997 legislative session, in a civil action, a change of venue was governed solely by N.D.C.C. § 28-04-07, which provides:
The court may change the place of trial in the following cases:
1. When the county designated for that purpose in the complaint is not the proper county.
2.When there is reason to believe that an impartial trial cannot be had therein.
3.When the convenience of witnesses and the ends of justice would be promoted by the change.
4.When upon the call of the calendar at any regular or special term there appears to be an insufficient number of jury cases for trial to warrant the expense of a jury, the court, on application of any party to such an action, or on its own motion, taking into consideration the convenience of witnesses and the promotion of justice, may order the transfer of such jury cases as are on the calendar to any county within the judicial district where a jury session of court will be held in the immediate future, so that a prompt trial of such cases may be had.
Without repealing N.D.C.C. § 28-04-07, during its 1997 session, the Legislature enacted two new statutes governing venue in civil cases. The first statute, N.D.C.C. § 28-04-09, allows the court to change the location of a pretrial hearing or proceeding as follows:
Notwithstanding any other provision of law, in any pretrial hearing or proceeding, except a hearing for a motion to suppress evidence, the court may change the place of the hearing or proceeding from the location in which the matter was originally to be heard.
(Emphasis added.) The statute does not require the parties to consent, before the court may change the location of a pretrial hearing or proceeding.
The second new statute, N.D.C.C. § 28-04-10, allows the court to change the location of a trial as follows:
Notwithstanding any other provision of law, in any civil trial the court may change the place of the trial from the location in which the matter was originally to be heard. If any party files an objection to the change of trial no later than ten days after the date of notice of assignment or reassignment of a judge for trial of the case, the trial must be held where originally venued. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by section 27-09.1-05.1.
With the enactment of N.D.C.C. § 28-04-10, it is unclear whether the criteria for a change of venue found in N.D.C.C. § 28-04-07 must be met for a change in the location of a trial. Under N.D.C.C. § 28-04-10 it appears a court can change the location of a trial for its own convenience. It also appears any party can now prevent a change in location of a trial by simply filing an objection, even if the other party has valid reasons for the change.
At its last meeting, the Committee reviewed the statutes governing a change in location of a pretrial hearing, proceeding, or trial. A motion carried to refer the subject back to staff with an instruction to draft a rule governing a change in location and superseding the statutes.