TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 9, 2013
RE: Rule 6, N.D.R.Civ.P., Computing and Extending Time; Time for Motion Papers
The committee approved proposed amendments to Rule 6 at the April meeting. After the discussion, committee member Larry Boschee gave staff some additional issues to look into regarding Rule 6. These issues had been brought to Mr. Boschee's attention by a colleague, who pointed out some inconsistencies between Rule 6 and Rule 59.
Rule 6(b)(2) is modeled on Fed.R.Civ.P. 6(b)(2) and provides that the court "cannot extend the time to act" under Rule 59(c), (i), or (j). These subdivisions of Rule 59 cover "time to file a motion for a new trial," "new trial on the court's initiative or for reasons not in the motion," and "motion to alter or amend a judgment." Rule 59(i) and (j) are identical to their federal counterparts (Fed.R.Civ.P. 59(d) and (e)) and impose a strict "no later than 28 days" deadline.
Fed.R.Civ.P. 59(b) on "time to file a motion for a new trial" is one-sentence subdivision that imposes a 28-day deadline. Its North Dakota counterpart, Rule 59(c), is not as simple. The North Dakota new trial provision allows a motion for new trial on grounds of newly discovered evidence within 6 months and on other grounds, within 60 days "unless the court, for good cause shown, extends the time." This is inconsistent with Rule 6(b)(2)'s prohibition on extending the time for a Rule 59(c) new trial motion. Proposed amendments to Rule 6 that would delete the reference to Rule 59(c) (in addition to the other amendments the committee has already approved) are attached. The Rule 6 amendments are before the Supreme Court as part of the annual rules package so the committee may wish to suggest to the Court that any additional approved amendments be considered with the ones now before the Court.
Staff has cross-checked the other references in Rule 6(b)(2) to ensure that they all refer to hard deadlines. The rule Rule 4(e)(7) deadline is not referred to in the federal rule: it is the three year deadline for a defendant served by publication to petition to re-open the action. Rule 52(b) imposes a 28-day deadline to make a motion to amend findings. Rule 60(b) sets out "grounds for relief to from a final judgment or order" and Rule 60(c) sets a one-year limit on claiming certain grounds for relief.
Fed.R.Civ.P. 6(b)(2) also bars time extensions under Fed.R.Civ.P. 50(b). While our Rule 50(b) is not identical to the federal rule, it does contain similar 28-day deadlines. The committee may wish to consider whether Rule 6(b)(2) should be amended to refer to Rule 50(b).
Copies of the rules referenced above are attached.