M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 27, N.D.R.App.P.; Motions
This memo outlines the proposed changes to N.D.R.App.P. 27 in response to the December 1, 1998 amendment to Fed.R.App.P. 27.
Subdivision (a)(1) follows the federal amendment.
Subdivision (a)(2) states the contents of a motion. Subparagraph (A) does not require a motion to state the legal argument as does the federal rule. Subparagraph (B) sets forth the documents which must accompany a motion. Unlike the federal rule, the proposal requires a brief containing the legal argument, a notice of a motion, and proof of service. The proposal adds a requirement for a copy of the trial court's opinion or agency's decision as a separate exhibit.
Subdivision (a)(3) addresses a response to a motion. Unlike the federal rule, for consistency with N.D.R.Ct. 3.2, the proposal requires an answer brief instead of a response. The federal rule also contains a subparagraph providing for a response to include a motion for affirmative relief. The subparagraph was left out of North Dakota's rule as being unnecessary.
Subdivision (a)(4) is new. It provides for a reply brief. The proposal uses language from N.D.R.Ct. 3.2 instead of the federal amendment.
Subdivision (b) tracks the federal amendment and governs motions for a procedural order. The amendment adds a new provision stating the need for a motion to reconsider even if timely opposition was filed.
Subdivision (c) is revised stylistically to follow the federal amendment.
Subdivision (d) of the federal rule contains various requirements for the form of motion papers. Requirements are transferred from Rule 32(b).
Proposed new subdivision (e) follows the federal rule. It provides a motion will be decided without oral argument unless the court orders otherwise. Currently, N.D.R.App.P. 34(b) provides: "Arguments on motions will be granted only in extraordinary circumstances."