TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 9, 2013
RE: Rule 3.1, N.D.R.Ct., Pleadings
The committee discussed Rule 3.1 during its larger discussion of Rule 3.5 at the April meeting. A motion to amend the rule to eliminate a specific reference to the demand for change of judge was approved and is part of the attached rule draft.
Members of the committee pointed out that there are statutory provisions other than the change of judge statute that require a party to file more than one copy of a document with the court: one in particular is N.D.C.C. § 14-12.2-36 on registering child support orders. Members said the text of the rule should be written broadly enough to make it clear that only one copy of any document needs to be filed with the court in any situation. Staff was instructed to conduct research on whether any other statutes required filing of multiple documents with the court. Staff located another statute similar to N.D.C.C. § 14-12.2-36, N.D.C.C. § 14-14.1-25 of the UCCJA, which requires "two copies" of a child custody determination from another state to be filed when the determination is registered in North Dakota. Reference to N.D.C.C. §§ 14-12.2-36 and 14-14.1-25 has been added to the text the superseded statute section of the explanatory note.
Another issue that arose during the discussion of Rule 3.1 was the rule's requirement that proof of service accompany documents submitted for filing. While the rule allows filing before service when permitted by statute or rule, committee members and visiting clerk staff pointed out that this exception is hard to apply in practice. Based on custom or convenience, attorneys have often been allowed to file documents before service, such is in eviction cases when quick scheduling of a hearing is necessary.
Rod Olson has complied a list of case types in which a document can be filed before service. The list, attached, only governs filing in Unit 2. Some clerk staff have suggested that the list be implemented as part of the rule so that it would govern statewide. An examination of the list, however, shows that it is not comprehensive and does not include some common case types in which filing is allowed before service, such as small claims, evictions, and claim and delivery cases.
It would likely require a conference of court administrators, clerk staff and attorneys to compile a complete and comprehensive list of all case types in which filing could reasonably be allowed prior to service (or without service, as with a stipulation). An alternative would be to allow officers of the court to file documents without proof of service, as long as service was made when required and proof of service was subsequently filed. This would free clerks from having to determine whether an attorney-filed document need be accompanied by proof of service. Instead, the attorney would have the burden to ensure that the document was served if necessary and to file proof once service was accomplished. Proposed amendments to Rule 3.1 that would implement this approach are attached.