TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 11, 2013
RE: Rule 3, N.D.R.Civ.P., Commencing an Action
Judge Herauf has suggested that the committee discuss the relationship between Rule 3 and N.D.C.C. § 28-01-38 (When Action Deemed Commenced). The statute goes beyond the rule because it provides that "[a]n attempt to commence an action is equivalent to the commencement thereof" under certain listed circumstances. A copy of the statute and its annotations is attached.
The committee considered the statute during all three meetings in 2007 when it was studying a shift to commencement by filing. The committee eventually came to the conclusion that the statute was substantive, and not subject to being superseded, because it deals with when limitations periods are tolled. Had commencement by filing been implemented, the committee wanted language in the rule stating that: "[a]n action is not commenced for the purpose of tolling a statute of limitations except as provided in N.D.C.C. § 28-01-38."
The statute recently played a role in American Family Ins. v. Waupaca Elevator Co., copy attached. In this case, the plaintiff faxed and mailed a summons and complaint to an Wisconsin sheriff's department with instructions that the documents be served once the mailed copy was received. The court held that service was timely under N.D.C.C. § 28-01-38 because the faxed documents were in the sheriff's hands within the limitations period, even though the summons and complaint were not actually served until after the limitations period expired, when the mailed documents arrived.
The committee may wish to discuss whether additional language should be added to the Rule 3 explanatory note providing more information about the role N.D.C.C. § 28-01-38 plays in determining when an action is commenced. For discussion purposes, staff has prepared a draft amendment to the note based on the committee's previous proposal.