SYNOPSIS OF PROPOSED AMENDMENTS
A. North Dakota Rules of Civil Procedure
Rule 4, Persons Subject to Jurisdiction--Process-- Service
Proposed subdivision (c) clarifies, even though any demand to file the complaint must be made by personal service under subdivision (d), service must be on the plaintiffs's attorney rather than on the plaintiff unless the plaintiff is not represented by an attorney.
Proposed subdivision (d) authorizes service of process via a third-party commercial carrier. The proposal also provides for an affidavit of delivery via a third-party commercial carrier which is analogous to an affidavit of mailing.
Finally, the proposal prevents service via mail on a corporation outside the state by simply addressing the mail to the corporation. Currently, under subdivision (d)(3), it appears a corporation may be served outside the state by mail without limitation as to whom the mail must be addressed. Under the proposal, service via mail outside the state must be made in the same manner as service within the state.
Rule 5, Service and Filing of Pleadings and Other Papers
This proposal permits service via a third-party commercial carrier and provides service is complete upon deposit of the paper with the commercial carrier.
This proposal provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
Under this proposal, a witness who is unable to communicate orally may present testimony in open court by non-oral means such as through writing or sign language. The proposal also authorizes the court to permit testimony by contemporaneous transmission from a different location upon agreement of the parties or for good cause shown in compelling circumstances.
This proposal authorizes preliminary substantive jury instructions. Under the proposal, the court may instruct the jury
concerning its duties, its conduct, the order of proceedings, the elementary legal principles governing the proceedings, and the procedure for submitting written questions of witnesses if allowed by the court. In addition, the court is authorized to give final instructions to the jury immediately before rather than after closing argument.
Rule 77, District Courts and Clerks
Proposed subdivision (d) eliminates the case law exception providing the time for filing a post-judgment motion or an appeal starts to run when the moving party has actual knowledge judgment has been entered. Under the proposal, the time for filing a post-judgment motion or an appeal does not start to run until notice of entry is served, regardless whether there is actual knowledge judgment has been entered.
Amendments to Rules 23, 30, 30.1, 31, 45 allow the use of a commercial carrier as an alternative to the United States Postal Service.
B. North Dakota Rules of Criminal Procedure
This proposal is analogous to the proposed amendment to Rule 51, N.D.R.Civ.P. The proposal authorizes the court to give preliminary substantive jury instructions and additional final instructions immediately before rather than after closing argument.
Rule 32, Sentence and Judgment
This proposal provides defendant's counsel with notice and a reasonable opportunity to attend any presentence investigation interview of the defendant.
The proposal also provides for confidentiality of the presentence investigation report and any addendum by providing for inspection only in the discretion of the court. Potentially harmful information may not be inspected. In addition, sensitive types of information must be included in an addendum rather than in the presentence investigation report itself.
Rule 32.1, Deferred Imposition of Sentence
This new rule provides uniform procedures for processing deferred impositions of sentence. Under the proposal, the order deferring imposition of sentence must provide for automatic dismissal if the defendant fulfills the conditions of probation.
This proposal provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
Amendments to Rules 37, 46, 49, allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.
C. North Dakota Rules of Appellate Procedure
This proposal provides an extension of 30 days for excusable neglect from the particular rule or statute providing the time for appeal. Currently, under Rule 4(a), the 30 day extension for excusable neglect is added to the 60 day period under Rule 4(a) even if the statute or Rule providing for the appeal provides a different time for appeal.
This proposal permits service via a third-party commercial carrier and provides service is complete upon deposit of the paper to be served with the commercial carrier.
Rule 26, Computation and Extension of Time
This proposal provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
This proposal requires the parties to notify the court in writing when an issue appealed becomes moot.
Amendments to Rules 3, 8, 36, 45, allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.
D. North Dakota Rules of Court
Rule 6.9, Assisting Jurors at Impasse
The purpose of this new rule is to reduce the number of mistrials. Under the proposal, if a jury is at impasse, the court may invite the jurors to list in writing the divisive issues, which if addressed further in the courtroom might bring about a verdict. Some of the ways a judge may give assistance include giving additional instructions, directing the attorneys to make additional closing argument, or reopening the evidence for limited purposes.
This proposal modernizes the language used in courtroom oaths and consolidates the oaths into one location. The proposal continues to allow an affirmation in lieu of an oath.
Rule 8.2, Interim Orders in Domestic Relations Cases
When a motion for a change of venue is filed, this proposal extends the period of time within which a judge must hold a hearing on a motion for interim relief.
Amendments to Rules 3.1, 7.1, 11.2 allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.
E. North Dakota Century Code
Section 27-10-01.3, Nonsummary Procedure for Remedial and Punitive Sanctions
In a contempt proceeding to impose a remedial sanction for failure to pay support, this proposal provides a support order is prima facie evidence the obligor has the ability to pay the support ordered. The proposal also clarifies the alleged contemnor has the burden of proving inability to comply with the support ordered.