TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 23, N.D.R.Civ.P., Class Actions
Committee member Steve Plambeck has proposed that Rule 23 be amended to make it less complicated for parties to voluntarily dismiss a class action when the action has not been certified. Mr. Plambeck explained the rationale for his proposal in an e-mail, which is attached.
Also attached is a copy of Glasow v. E.I. DuPont Nemours and Co., 2005 ND 94, 696 N.W.2d 531. Glasow confirms that Rule 23 requires a hearing and court approval before a class action can be dismissed.
Rule 23 is based on the uniform class actions rule. Iowa has also adopted the uniform rule and the Iowa dismissal rule, attached, retains the requirement for court approval before a class action can be dismissed. The federal rule, however, states only that "[t]he court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class." Fed.R.Civ.P. 23(e)(1)(A).
Proposed amendments to Rule 23(l) are attached. The rule text amendments are at lines 195-219 and the corresponding explanatory note amendment is at lines 348-350. Under the proposal, a non-certified class action could be dismissed on agreement of the parties, without court approval. A hearing and court approval would still be required prior to dismissal if the class action had been certified.
As part of the proposal, out-of-date case references are deleted from the explanatory note, consistent with the Committee's standard practice.