TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 13, 2013
RE: Rule 4, N.D.R.App.P., Appeal When Taken
Justice Maring has requested that the committee discuss whether the "motion for reconsideration" should be formally recognized in the rules as a motion that can delay the running of the time period to file an appeal. This suggestion originated with the Chief Justice and the Clerk of the Supreme Court.
Because the motion for reconsideration is not formally recognized in the rules, the Court is required to perform some gymnastics when it is confronted with such a motion in an appeal. Typically, the Court must analyze whether the motion for reconsideration can be characterized as a motion to alter or amend the judgment under N.D.R.Civ.P. 59 or a motion for relief from judgment under N.D.R.Civ.P. 60. See Waslaski v. State, 2013 ND 70 (attached). Under N.D.R.App.P. 4, filing of either of these motions would delay the running of time to file an appeal.
Like North Dakota, Minnesota does not formally recognize the motion for reconsideration, so its appellate courts must analyze whether a motion can be characterized as a recognized motion before determining whether it can delay the running of the time to file an appeal. See Welch v. Commissioner of Public Safety, 545 N.W.2d 692 (Minn. App.1996). Florida takes a slightly different approach: there, an order must be "rendered" before it is appealable and the appeal period starts running. If any motion, including a motion for reconsideration, is pending the order cannot be rendered. See Fla.R.App.P. 9.020.
Massachusetts does not formally recognize the motion for reconsideration in its rules but has amended its Mass.R.App.P. 4(a) to take into account a motion for reconsideration. Its amended rule language allows a delay in the time for appeal for a motion: " (3) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment." The explanatory note language indicates that the "however titled" language is intended to account for motions for reconsideration.
California formally recognizes the motion for reconsideration in Cal. Code Civ. Proc. § 1008, attached. In Cal. Rules of Court 8.108, attached, it allows the time to appeal to be extended when a motion is made to reconsider an appealable order.
The committee may wish to discuss which approach would be best for North Dakota to follow. For purposes of discussion, staff has attached proposed amendments to N.D.R.App.P. 4 that are in the spirit of the Massachusetts amendments and would add support in the rules to the Court's current approach to motions for reconsideration. The proposed rule is labeled "alternative draft" because the committee previously looked at a different version containing the clerk's proposed amendments.
If the committee thinks that a more comprehensive approach, like California's, would be more appropriate, it could discuss which rules would be best to amend to integrate the formal motion for reconsideration language.