SYNOPSES OF PROPOSED AMENDMENTS
SUBMITTED BY THE JOINT PROCEDURE COMMITTEE
A. North Dakota Rules of Civil Procedure
1. Rule 6 - Time
The provision providing when any affidavit supporting or opposing a written motion must be served is eliminated. Rule 3.2, NDROC, governs when supporting or opposing papers must be served.
2. Rule 11 - Signing Of Pleadings, Motions And Other Papers; Representations To Court; Sanctions
The time for serving and filing a brief and other supporting papers is clarified. Under the proposal, a movant cannot file a motion for sanctions, brief, or any other supporting papers until 21 days after service of the motion. A respondent has 10 days after a motion is filed to serve and file an answer brief and supporting papers.
3. Rule 31 - Depositions Of Witnesses Upon Written Questions
This proposal follows the 1993 amendment to Rule 31, Fed.R.Civ.P., by reducing the total time for developing written questions from 50 to 28 days when a deposition is taken upon written questions.
4. Rule 33 - Interrogatories To Parties
This proposal follows the 1993 amendment to Rule 33, Fed.R.Civ.P., by providing:
1) An interrogatory must be answered to the extent the interrogatory is not objectionable;
2) The time for answering an interrogatory may be shortened or lengthened by the court or by written agreement of the parties subject to Rule 29, N.D.R.Civ.P.; and
3) All grounds for an objection must be stated with specificity, and any ground not stated in a timely objection is waived.
5. Rule 34 - Production Of Documents And Things And Entry Upon Land For Inspection and Other Purposes
This proposal follows the 1993 amendment to Rule 34, Fed.R.Civ.P., by providing:
1) The time for responding to a request for inspection may be shortened or lengthened by the court or by written agreement of the parties subject to Rule 29, N.D.R.Civ.P.; and
2) If objection is made to part of a request, inspection must be permitted to the remaining parts of the request.
6. Rule 36 - Requests For Admission
This proposal follows the 1993 amendment to Rule 36, Fed.R.Civ.P., by allowing parties to agree in writing to a shorter or longer period of time for responding to a request for admission, subject to Rule 29, N.D.R.Civ.P.
7. Rule 37 - Failure To Make Or Cooperate In Discovery; Sanctions
This proposal follows the 1993 amendment to Rule 37, Fed.R.Civ.P., by authorizing reasonable expenses to be awarded if requested discovery is provided after a motion to compel discovery is filed. The purpose of the amendment is to encourage a prompt response.
8. Rule 45 - Subpoena
A procedure is provided for obtaining a North Dakota subpoena for discovery in North Dakota for an action pending in another state. A subpoena may be issued to an attorney for an action pending in another state upon proof of service of notice. A subpoena may be issued to a party in an action pending in another state upon filing a letter of request from a foreign court.
The subpoena must be issued in the name of the court for the county where the subpoena will be served. Any dispute regarding the subpoena, or discovery demanded, needing judicial involvement must be submitted to the court for the county where the subpoena issued.
9. Rule 50 - Judgment As A Matter Of Law In Actions Tried By Jury
This proposal follows the 1993 amendment to Rule 50, Fed.R.Civ.P., by clarifying that judgment as a matter of law may be entered against both plaintiffs and defendants, and with respect to issues that may not be wholly dispositive of a claim or defense in an action tried by a jury.
10. Rule 52 - Findings By The Court
This proposal follows the 1993 amendment to Rule 52, Fed.R.Civ.P., by clarifying that judgment as a matter of law may be entered against both plaintiffs and defendants, and with respect to issues that may not be wholly dispositive of a claim or defense, in an action tried by a court.
11. Rule 54 - Judgment -- Costs
A procedure for claiming post-judgment attorneys' fees recoverable under governing law is provided. A claim must be made by motion served and filed not later than 10 days after notice of entry of judgment. The 10 day time limit is intended to encourage motions to be filed before appeal is taken. Prompt filing will enable the court to make a ruling on attorneys' fees while the case and legal services rendered are still fresh in the court's mind, and will allow the issues of attorneys' fees and merits to be considered at the same time on appeal.
12. Rule 56 - Summary Judgment
The time for responding to a motion for summary judgment is extended. A motion for summary judgment must be served at least 34 days before the motion is heard to give the respondent 30 days to prepare an answer brief. Three days are allotted for service by mail under Rule 6(e), N.D.R.Civ.P., and 1 day for filing 24 hours in advance of the hearing under Rule 5(d)(2), N.D.R.Civ.P.
13. Rule 59 - New Trials - Amendment Of Judgments
This proposal eliminates subdivision (e), which provides a notice of intention to make a motion for a new trial is not required. The provision is archaic and unnecessary.
14. Rule 80 - Transcript As Evidence
This proposal allows testimony to be proved by a transcript prepared from electronically recorded testimony if the testimony is admissible in evidence.
B. North Dakota Rules of Criminal Procedure
1. Rule 16 - Discovery And Inspection
This proposal provides for discovery of any misdemeanor conviction of a prosecution witness in addition to any felony conviction. Under Rule 609, N.D.R.Evid., evidence of a misdemeanor conviction may be admissible.
The 1994 amendment to Rule 16, Fed.R.Crim.P., is followed by clarifying organizational defendants are entitled to the same disclosure of statements as are individual defendants.
2. Form 7 - Criminal Judgment And Commitment
Several statutory amendments are reflected in this proposal. A sentencing judge no longer has any authority to designate in which state correctional facility an offender is to be confined. In addition, a probationer is placed under the supervision and management of the Division of Parole and Probation, rather than the Board of Pardons.
C. North Dakota Rules of Evidence
1. Rule 705 - Disclosure Of Facts Or Data Underlying Expert Opinion
This proposal follows the 1993 amendment to Rule 705, Fed.R.Evid., by making a technical amendment.
The phrase "previous disclosure of" is eliminated and substituted with the phrase "first testifying to" to avoid confusion with the disclosure of experts required by discovery rules.
D. North Dakota Rules of Appellate Procedure
1. Rule 4 - Appeal -- When Taken
This proposal clarifies a timely motion for attorneys' fees under Rule 54, N.D.R.Civ.P., terminates the running of the time for filing a notice of appeal. Currently, the law is uncertain as to whether a motion for attorneys' fees is a Rule 59, N.D.R.Civ.P., motion to alter or amend the judgment which terminates the running of the time for filing a notice of appeal.
The proposal also provides a motion for relief from a judgment under Rule 60, N.D.R.Civ.P., terminates the running of the time for filing a notice of appeal if the motion is served not later than 10 days after notice of entry of judgment. The purpose of the amendment is to eliminate the difficulty of determining whether a posttrial motion is a Rule 59 motion to alter or amend the judgment or a Rule 60 motion for relief from the judgment. Historically, a Rule 60 motion has not terminated the running of the time for appeal.
2. Rule 31 - Filing And Service Of Briefs
This proposal clarifies any reply brief must be filed within 14 days after service of the appellee's brief. The reply brief must be filed at least 3 days before oral argument if there is less than 14 days until argument. The rule is currently misinterpreted, and reply briefs are filed just 3 days before oral argument even though the reply brief could have been served within 14 days after service of the appellee's brief.
3. Rule 34 - Oral Argument
Proposed subdivision (a) clarifies oral argument will be postponed on motion for good cause only.
Proposed subdivision (b) eliminates oral argument on motions except in extraordinary circumstances. The provision indicating who may grant additional time for oral argument is also eliminated. The subject is more appropriately covered in the North Dakota Supreme court Administrative Rules and Administrative Orders.
Proposed subdivision (d) eliminates the designation as to which party is the appellant. The designation of appellant and appellee is covered in Rule 1, N.D.R.App.P.
Proposed subdivision (f) clarifies any party may move to submit its argument by brief without oral argument.
E. North Dakota Rules of Court
1. Rule 1.1 - Scope
The provision excepting application of Rule 3.2, NDROC, when a specific rule of procedure conflicts with the North Dakota Rules of Court is eliminated. The current language is insufficient to address the conflict between Rule 8.2, NDROC, and Rule 3.2.
2. Rule 3.2 - Motions
Proposed subdivision (a) expressly allows a movant to serve and file a reply brief. The reply brief must be served and filed within 5 days after service of the answer brief. The time limit creates a specific determinable date as to when a motion is deemed submitted to the court for decision.
Proposed subdivision (b) gives the court discretion whether a failure to file a brief should be deemed an admission the motion is meritorious. To avoid the absurd result whereby the movant gets the relief requested even if there is no basis for the relief, the proposal requires the movant to demonstrate to the court that it is entitled to the relief requested even if an answer brief is not filed.
Proposed subdivision (e) defines the application of Rule 3.2 in Rule 3.2, rather than in Rule 1.1, NDROC.