RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service-When required.
Except as otherwise provided in these rules, every
required by its terms to be served, and, unless otherwise ordered by the court, every pleading
subsequent to the original complaint, every paper relating to discovery required to be served
upon a party, every written motion other than one which may be heard ex parte, every
proposed order, order for judgment, decree, finding of fact and conclusion of law, every
paper filed with the clerk or submitted to the judge, and every written notice, appearance,
demand, offer of judgment, designation of record on appeal, and similar paper must be
served on each of the parties.
(1) In General. Other than service of a summons and complaint under Rule 4, each of the following papers must be served on every party under this rule, unless the rules provide otherwise:
(A) an order, unless the court orders otherwise;
(B) a pleading served after the original summons and complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;
(C) a discovery paper required to be served on a party, unless the court orders otherwise;
(D) a written motion, except one that may be heard ex parte; and
(E) a written notice, appearance, demand, or offer of judgment, or any similar paper; and
(F) every paper filed with the clerk or submitted to the judge.
No service need be made on parties in default for failure to appear except pleadings
new or additional claims for relief against them must be served upon them in the manner
provided for service of summons in Rule 4.
(2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.
In an action begun by seizure of property, whether through arrest, attachment,
or similar process, in which no person need be or is named as defendant, any service required
to be made prior to the filing of an answer, claim, or appearance must be made upon the
person having custody or possession of the property at the time of its seizure.
(3) If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an answer, claim, or appearance must be made on the person who had custody or possession of the property when it was seized.
(b) Service-How made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party must be made by delivering a copy to the attorney or party, or by facsimile transmission if available to the attorney or party, or by mailing or delivering via third-party commercial carrier a copy to the attorney or party at the attorney's or party's last known address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or, leaving it at the attorney's or party's office with a clerk or other individual in charge; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the party to be served has no office, leaving it at the party's dwelling or usual place of abode with some individual of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service via a third-party commercial carrier is complete upon deposit of the paper to be served with the commercial carrier.
(c) Service-Numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that the service of the pleadings of the defendants and the replies thereto need not be made as between the defendants, and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(1) The summons and complaint, or other initiating pleading, must be filed before a subpoena may be issued. The plaintiff shall serve notice of filing the complaint or initiating pleading upon the defendant or respondent. Within a reasonable time after service of the notice of filing the complaint or initiating pleading, the defendant or respondent shall file the answer and notify the plaintiff of the filing. Unless otherwise provided by statute, these rules or by order of the court, all pleadings, affidavits, bonds and other papers in an action must be filed with the clerk at or prior to the time of the filing of the note of issue. A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case. A party certifying that safekeeping is necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed depositions, interrogatories, requests for admission, requests for interrogatories, requests for production of documents, and answers and responses thereto, to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal. If the filing party does not claim a filed document within sixty (60) days after being notified to do so, the clerk may dispose of the document as the court by order may direct. The clerk shall take a receipt for all documents returned.
(2) All affidavits, notices and other papers designed to be used upon the hearing of a motion or order to show cause shall be filed at least 24 hours before the hearing unless otherwise directed by the court.
(3) If a party fails to comply with this subdivision, the court, on motion of any party or its own motion, may order the papers to be filed forthwith and if the order is not obeyed, the court may order them to be regarded as stricken and their service to be of no effect.
(4) The clerk must not accept for filing any document that adds a party to an action or
proceeding without an order of the court or unless
pursuant to under
Rule 13 or Rule 14. The
clerk shall endorse on the document a notation that the document is rejected for filing
pursuant to under this rule and return the document to the person who
tendered it for filing.
(e) Removal of pleadings for service. Upon the request of a party filing the same, any original pleading or paper in any civil action or proceeding, which by law is required to be filed in the office of the clerk of court in which such action or proceeding is pending, may be removed from the files for the purpose of serving the same either within or without the state but shall be returned thereto without delay.
(f) Proof of service. Proof of service under this rule may be made as provided in Rule 4 or
by the certificate of an attorney or court personnel showing that service has been made
pursuant to under subdivision (b).
Rule 5 was amended effective 1971, July 1, 1981; March 1, 1986; January 1, 1988; March 1, 1990; March 1, 1992, on an emergency basis; March 1, 1994; January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2003; _________________.
Rule 5 applies to service of papers other than "process." In contrast, Rule 4 governs civil jurisdiction and service of process. When a statute or rule requiring service does not pertain to service of process, nor require personal service under Rule 4, nor specify how service is to be made, service may be made as provided in Rule 5(b).
Subdivision (f) was amended, effective March 1, 2003, to permit proof of service
made by court personnel as well as by an attorney. Proof of service may also be made in the
same manner as provided by Rule 4(i).
Subdivision (a) was amended, effective ___________, to improve organization and to make the subdivision easier to understand.
Subdivision (b) was amended, effective March 1, 1999, to permit service via a third-party
commercial carrier as an alternative to the Postal Service. The requirement for a "third-party
commercial carrier" means the carrier may not be a party to nor interested in the action, and
it must be the regular business of the carrier to make deliveries for profit. A law firm may
not act as or provide its own commercial carrier service with service complete upon deposit.
In addition, the phrase "commercial carrier" does not include electronic delivery services.
Service via e-mail is not permitted, and service via facsimile transmission is already
by the Rule.
Subdivision (f) was amended, effective March 1, 2003, to permit proof of service to be made by court personnel as well as by an attorney. Proof of service may also be made in the same manner as provided by Rule 4(i).
Sources: Joint Procedure Committee Minutes of April 26-27, 2007, pages 19-22; September 27-28, 2001, pages 11-12; April 30-May 1, 1998, page 3; January 29-30, 1998, page 18; September 26-27, 1996, pages 16-17, 20; September 23-24, 1993, pages 19-20; April 29-30, 1993, pages 20-21; November 7-8, 1991, page 3; October 25-26, 1990, pages 10-12; April 20, 1989, page 2; December 3, 1987, page 11; May 21-22, 1987, pages 17-18; February 19-20, 1987, page 4; September 18-19, 1986, page 8; November 30, 1984, pages 26-27; October 18, 1984, pages 8-11; November 29-30, 1979, page 2; September 20-21, 1979, pages 4-5; Fed.R.Civ.P. 5.
Superseded: N.D.R.C. 1943 §§ 28-0511, 28-0630, 28-2810, 28-2811, 28-2812, 28-2813, 28-2814, 28-2819, 28-2820, 28-2821, 28-3005, 31-0510.
Cross Reference: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction - Process - Service), N.D.R.Civ.P. 45 (Subpoena), and N.D.R.Civ.P. 77 (District Courts and Clerks); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.Ct. 6.4 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and Decrees).