VOLUNTARY DISMISSAL; MOOTNESS
(a) Voluntary Dismissal. If the parties to an appeal or other proceeding
shallsign and file with the clerk of the supreme court an agreement that the proceeding be dismissed, specifyingwhich specifies the terms as to payment of costs, and shallthe parties pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shallmay issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court.
(b) Involuntary Dismissal. When an appellant is in violation of any appellate rule and no motion to dismiss has been filed by the appellee, the clerk of the supreme court shall notify the appellant that unless the appellant gives reason within ten days why the case should not be dismissed, the case will be dismissed.
(c) Mootness. When a party believes an appealed issue has become moot due to a change in circumstance, the party shall advise the court in writing about the change in circumstance and explain why appeal of the issue should or should not be dismissed.
This rule is derived from Rule 42, FRAppP, although subdivision (a) of the Federal Rule, relating to dismissal in the trial court before the appeal is docketed, has been deleted. All stipulations and motions for dismissal must be filed in the Supreme Court.
Rule 42 was amended, effective March 1, 1990. The amendment provides for an involuntary dismissal when an appellant fails to comply with the appellate rules.
Subdivision (c) was added, effective March 1, 1999, because generally the Supreme Court will not consider a moot issue. See Ashley Education Association v. Ashley Public School, 556 N.W.2d 666 (N.D. 1996).
SOURCES: Supreme Court Conference Minutes of October 23, 1989. Procedure Committee Minutes of September 25-26, 1997, pages 6-7; January 30, 1997, pages 13-14; April 20, 1989, pages 17-18; May 25-26, 1978, page 21; March 16-17, 1978, page 14. Rule 42, FRAppP.