M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Commencement of a Civil Action
The Committee has a request from Judge Christofferson for N.D.R.Civ.P. 3 to be amended to provide for commencement of a civil action by filing the complaint. Currently, Rule 3 provides: "A civil action is commenced by the service of a summons." His intention is to prevent "ghost" litigation outside the awareness and management of the court.
At its April and September 1994 meeting, the Committee spent a considerable amount of time considering whether commencement should be by filing or service, or whether an action should be required to be filed within a certain time after commencement by service. The proposals were rejected.
Normally, the Committee or the Supreme Court receives very few comments regarding proposed rule amendments. When commencement by filing was considered the Committee received over 20 letters in opposition to change. The North Dakota Trial Lawyers Association and the North Dakota Defense Lawyers Association opposed commencement by filing.
The last time the issue was considered, the following reasons were given for preserving commencement by service:
1) Court involvement for the purpose of processing a suit is not desirable if the parties are not ready to have judicial involvement.
2) Numerous cases are settled without the need for burdening the judicial system with additional filings.
3) The parties should be allowed to keep cases confidential for privacy and settlement reasons.
4) North Dakota does not have the necessary staff to implement a system of intensive case management.
5) If a party wants judicial intervention for scheduling and case management, either party may file the case.
6) Filing may create unwanted publicity and an unwanted public record.
7) Filing creates additional effort, work, and costs which is substantial in terms of small collections cases.
8) There are thousands of collections cases and most of those cases are resolved without filing.
9) Filing thousands of collections actions would overwhelm the court system and create extra administrative expense. A horrendous work load would be created for the clerks of court.
10) Commencement by filing will prevent collection attorneys from using a stipulation for payment whereby the case is filed and judgment entered only if there is a default.
11) Commencement by filing will cause creditors to insist on obtaining a judgment. Debtors will end up with a judgment on their credit report and having to reimburse the creditor for the filing fee.
12) A requirement for filing will cause the parties in many instances to unnecessarily incur an expense of $80 for filing the complaint and $50 for filing the answer.
13) The public would perceive the change to commencement by filing as an attempt to generate additional revenue.
14) Once filing costs are incurred, the parties are less likely to settle.
15) Commencement by service allows the parties to commence an action for statute of limitation purposes without immediately prosecuting the action. For example, the parties may want to wait to determine the extent of an injury or for a companion case to proceed first.
16) A greater problem with case management would be created by overwhelming the court with all the actions that are now commenced but not filed.
17) There is not a significant enough of a problem to justify the change.
Instead of providing for commencement by filing, the Committee has made a number of amendments which allow for judicial control of actions which really are going to be litigated and need management.
First, amended N.D.R.Civ.P. 4(c) allows the defendant to serve a written demand on the plaintiff to file the complaint. The amendment also provides: "[t]he defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e)." With these amendments, either party can file the action for the purpose of seeking judicial case management under N.D.R.Civ.P. 16.
Second, amended N.D.R.Civ.P. 5(d) and 45(a) require an action to be filed before a subpoena may be issued. The amendment provides the court with control over cases that really are going to be litigated.
Third, amended N.D.R.Civ.P. 16 makes it clear, courts have the power to manage cases by giving the court the authority to take appropriate action regarding the timing, scheduling, and processing of the case before trial. In addition, in those cases needing judicial supervision, the parties can request a mandatory scheduling order.
Finally, new N.D.R.Ct. 8.3 already requires the complaint to be filed within 35 days after service in divorce cases. If a plaintiff fails to comply with N.D.R.Ct. 8.3, the court may impose sanctions under N.D.R.Ct. 11.5.