Additional Amendments for
JtPC Consideration
N.D.R.App.P.
RULE 4. APPEAL--WHEN TAKEN
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal. In a civil case, except as provided in Rule 4(a)(4), the notice of appeal required by Rule 3 must be filed with the clerk of district court within 60 days of service of notice of entry of the judgment or order being appealed.
(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order -- but before the entry of the judgment or order -- is treated as filed on the date of and after the entry.
(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this subdivision, whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is served and filed no later than 15 days after notice of entry of judgment.
(B) If a party files a notice of appeal after the court announces or enters a judgment - but before it disposes of any pending motion listed in Rule 4(a)(4)(A) - the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
(C)(i) If a party files with the clerk of district court any motion listed in Rule 4(a)(4)(A) after a notice of appeal is filed, the party filing the motion shall notify the clerk of the supreme court in writing, and the supreme court may remand the case to the district court for disposition of the motion.
(ii) (D) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal - in compliance with Rule 3(c) - within the time prescribed by this Rule measured from the service of notice of the entry of the order disposing of the last such remaining motion. No additional fee is required to file an amended notice.
(iii) No additional fee is required to file an amended notice.
(5) Motion for Extension of Time.
(A) The trial court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion if filed after the expiration of the prescribed time, notice must be given to the other parties.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant's notice of appeal must be filed with the clerk of district court within 10 days after the entry of the judgment or order being appealed.
(B) If an appeal by the state is authorized by statute, its notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.
(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order -- but before the entry of the judgment or order---is treated as filed on the date of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 10 days after the entry of the order disposing of the last such remaining motion, or within 10 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
(i) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 10 days after the entry of the judgment; or
(ii) for arrest of judgment under Rule 34.
(B) If the defendant files with the clerk of district court any motion listed in Rule 4(b)(3)(A) and a notice of appeal is filed before disposition of the motion after a notice of appeal is filed, the party filing the motion the defendant shall notify the clerk of the supreme court in writing, and the supreme court may remand the case to the district court for disposition of the motion.
(C) A notice of appeal filed after the court announces a decision, sentence, or order - but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)-becomes effective upon the later of the following:
(i) the entry of the order disposing of the last such remaining motion; or
(ii) the entry of the judgment of conviction.
(D) A valid notice of appeal is effective - without amendment - to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the trial court may- before or after the time has expired, with or without motion and notice - extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(5) Jurisdiction. The filing of a notice of appeal under this subdivision does not divest a trial court of jurisdiction to correct a sentence under N.D.R.Crim.P. 35(a), nor does the filing of a motion under Rule 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.
(6) Entry Defined. A judgment or order is entered for purposes of this subdivision when it is entered on the criminal docket.
(c) Appeal in a Contempt Case. A notice of appeal must be filed with the clerk of district court within 60 days after entry of judgment or order being appealed. Upon a finding of excusable neglect or for good cause, the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(d) Mistaken Filing in the Supreme Court. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the supreme court, the clerk of the supreme court must note on the notice the date when it was received and send it to the clerk of district court. The notice is then considered filed in the district court on the date so noted.
EXPLANATORY NOTE
Rule 4 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998; March 1, 1999; ____________________.
The time for civil appeals runs from "service of notice of entry" of the order or judgment. However, service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party. See N.D.R.Civ.P. 58(b); Gierke v. Gierke, 1998 ND 100, ¶¶ 6-12, 578 N.W.2d 522, 525-26. Thorson v. Thorson, 541 N.W.2d 692, 694-95 (N.D. 1996).
The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. This differs from the federal rule, which provides the time for appeal is to run from "the date of entry."
The time limit for taking an appeal does not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.
Subdivision (a) was amended, effective March 1, 1999, to provide the 30 day extension for excusable neglect is to be added to the time for appeal provided by the statute or rule setting the time for appeal.
Rule 4 was revised extensively, effective _____________________. Many of the changes are from the 1998 revision of Fed.R.App.P. 4. The amendments address the effect of a notice of appeal filed before disposition of a pending post-judgment motion and the procedure for remand when a post-judgment motion is filed after a notice of appeal. Subdivision (d) was also added.
SOURCES: Joint Procedure Committee Minutes of ______________________; April 30-May 1, 1998, page 13; January 30, 1997, page 8; January 25-26, 1996, pages 7-10; April 29-30, 1993, pages 2-3, 16-18; November 29, 1984, pages 19-20; April 26, 1984, pages 23-24; January 20, 1984, pages 10-15; September 18-19, 1980, page 20; January 12-13, 1978, page 25; Fed.R.App.P. 4.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 28-27-04.