MINUTES OF MEETING
Joint Procedure Committee
January 24, 2008
TABLE OF CONTENTS
Unbundled Legal Services 2
Form 9, N.D.R.Crim.P., Appendix A 7
Privacy Protection for Filings Made With the Court 9
Rule 32, N.D.R.Crim.P., Sentencing and Judgment 12
Rule 1, N.D.R.Civ.P., Scope and Purpose of Rules 14
Rule 2, N.D.R.Civ.P., One Form of Action 14
Rule 3, N.D.R.Civ.P., Commencement of Action 14
Rule 6, N.D.R.Civ.P., Computing and Extending Time 15
Rule 7, N.D.R.Civ.P., Pleadings Allowed - Form of Motions and Other Papers 15
Rule 8, N.D.R.Civ.P., General Rules of Pleading 16
Rule 9, N.D.R.Civ.P., Pleading Special Matters 16
Rule 10, N.D.R.Civ.P., Form of Pleadings 17
Rule 12, N.D.R.Civ.P., Defenses and Objections - When and How Presented - By Pleading
or Motion - Motion for Judgment on the Pleadings 17
Rule 13, N.D.R.Civ.P., Counterclaim and Crossclaim 18
Rule 14, N.D.R.Civ.P., Third-Party Practice 19
Rule 15, N.D.R.Civ.P., Amended and Supplemental Pleadings 20
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 24, 2008, by the Chair, Justice Mary Muehlen Maring.
ATTENDANCE
Present:
Justice Mary Muehlen Maring, Chair
Honorable Georgia Dawson
Honorable M. Richard Geiger
Honorable John Greenwood
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable David E. Reich
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Honorable Allan L. Schmalenberger
Honorable Michael G. Sturdevant
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Galen J. Mack
Assistant Dean Jeanne L. McLean
Mr. Ronald H. McLean
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Ms. Cathy Howe Schmitz
Absent:
Honorable Thomas J. Schneider
Mr. Richard H. McGee
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair introduced herself and announced that she and two other new members had been appointed to the Committee: Judge David E. Reich and Mr. Richard H. McGee.
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
Judge Sturdevant MOVED to approve the minutes. Ms. Schmitz seconded. Motion CARRIED unanimously.
UNBUNDLED LEGAL SERVICES (PAGES 33-57 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's work at the October meeting on proposed amendments to N.D.R.Civ.P. 5 and 11 and N.D.R.Ct. 11.2. The proposed amendments were drafted to ease the provision of unbundled legal services in North Dakota.
Mr. Plambeck MOVED to approve the proposed amendments to N.D.R.Civ.P. 5 and
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11 and N.D.R.Ct. 11.2. Judge Sturdevant seconded.
A member asked whether the proposed language "service upon the attorney is not required" in Rule 5 is confusing. The member said the Committee's intent was that service be made on the party when there was limited representation by an attorney. The member asked whether it would be better just to say "service must be made on the party."
A member said that the use of the words "not required" suggests that service on the attorney could still be made.
Judge Sturdevant MOVED to amend Rule 5 at page 34, line 20, substituting "shall be made upon the party" for "upon the attorney is not required." Mr. Mack seconded.
A member questioned the proposed language because if the item served related to the limited representation, the attorney would need to be served.
Ms. Schmitz MOVED a substitute motion to replace "shall be made upon the party" with "upon the attorney is required only when dealing with the subject of the representation." Mr. Mack seconded.
A member said the term "subject matter" was vague and would cause arguments about what is "related" to the "subject matter." A member said that this part of the rule refers only to cases of limited representation and that limiting service in such cases to the party made sense. The member said that language limiting service to parties would place an obligation on parties to keep lawyers who perform a limited representation informed about events related to the limited representation.
A member agreed that the proposed language could have negative effects. The member said that if an attorney performing a limited representation prepared an answer, the proposed language would require all subsequent documents to be served on the attorney because the documents would relate to the answer.
The motion to substitute FAILED.
A member said the phrasing of the proposed language of the motion made it sound like only the notice of limited representation needed to be served on the party.
Judge Nelson MOVED a substitute motion to amend the motion language to read "all future service shall be made upon the party." Motion FAILED for lack of a second.
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Mr. Plambeck MOVED a substitute motion to amend the motion language to read: "When an attorney is providing limited representation under Rule 11(e), service shall be made upon the party instead of the attorney." Judge Kleven seconded. Motion FAILED.
A member wondered whether the client should be trusted to keep the attorney informed about matters related to the limited representation when there is only a limited attorney-client relationship in a limited representation case. The member said that even attorneys, when facing a lawsuit, can be less than helpful in keeping the lawyers representing them informed about hearings and other events. The member said the burden of responding to service should not be placed on the limited represented client.
Mr. McLean MOVED to amend the proposed language to read "shall be made upon the party and the attorney." Judge Dawson seconded.
A member asked if this language would require all documents in a case to be served on the party and the attorney. A member asked, if an attorney is serving in a limited capacity that both the attorney and the party understand, and this capacity is spelled out in the initial filing, why the attorney would have a duty to be involved in anything else in the case.
A member said that clients not keeping their lawyers informed is a problem. The member said, however, if everything was required to be served on the lawyer after the limited representation was over, the client would think the lawyer would examine everything and handle things that needed to be handled. This would defeat the purpose of limited representation.
The member said that the proposed language would also place a burden on the opposing attorney, who would be required to serve two people instead of one. The member said it would also create confusion on the opposing side about who their contact point was in the case, the lawyer or the party.
The member said the purpose of limited representation was to allow a party who was representing himself or herself to have an attorney do a specific job. The member said that requiring service on the attorney would broaden the scope of the representation because the attorney would have some obligation to at least look at papers received. The member said that if a party chooses self-representation, they have an obligation to receive service of all papers.
A member said that an attorney representing someone in a limited way would have an obligation, once the work was complete, to inform the client that the attorney was out and that dealing with future matters was the client's job. The member said, however, that to
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people not involved in the limited attorney/client relationship, there would always be some uncertainty about whether a certain issue related to the limited representation. The member said the safest approach would be to require service of both the party and the attorney when there had been a limited representation.
A member said that collaborative divorce is a coming trend. The member said that one likely place where limited representation would be seen was in a collaborative divorce. The member said it would be the safest practice in a collaborative divorce for the party and the attorney to be served.
A member said a client who chooses self-representation possibly would make this decision based on cost. If all the papers are being served on the attorney who provided limited representation, the attorney is going to have to bill the client for looking at the papers. This could create unexpected costs for the client. On the other hand, the attorney may decide not to look at the papers because any review time would be above and beyond the agreement with the client.
A member noted that the proposed amendment to Rule 11 required a notice of limited representation to be served. The member asked whether the attorney and client could put their desires regarding service of future papers in the notice. This would allow the parties to choose whether or not everything should be served on the attorney. This would also inform the other side what service was expected.
A member said that perhaps in addition to serving a notice of limited representation parties should also be required to send a notice that limited representation is terminated. The member said that after the termination notice was sent, responsibility for receiving service would then be on the party.
A member said that adding language to Rule 11 requiring parties to state in the original notice the person to whom future service should be made would solve the problems members had raised. The member said that the language in Rule 5 could then state that service would be made as described in the Rule 11 notice.
A member asked whether the proposal was patterned after a rule in another state. Staff explained that limited representation rules adopted in Maine were the model. A member said that the Maine rule uses the same language proposed for Rule 5.
A member said that the comments in the Maine rules address the issue of service. The member said that the Maine comments say that even in cases where service on the party alone is allowed, serving the limited representation also is allowed as a courtesy. The member said
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the comment language suggests that Maine also struggled with the service issue.
A member said it was possible an attorney could perform a limited representation relevant to a key matter like jurisdiction, and if only the party is receiving service of papers, the party might miss or disregard a motion to dismiss or some other serious motion that deals with the subject matter of the limited representation. The member said it is important that attorneys, at least, get served with copies of papers relevant to the subject matter of the limited representation.
The motion to amend FAILED.
Ms. Schmitz MOVED to amend the language of the proposal at page 34, line 20, to read "service upon the attorney is required for all matters within the scope of the limited representation." Ms. McLean seconded.
A member said if this language is adopted, attorneys will be on notice that, when in doubt about what falls within the scope of the limited representation, they should serve the attorney.
A member said the primary person that should be served is the party. The member said the proposed motion did not take this into account. The member said it would be better to answer the question of whom to serve in a notice.
Mr. Plambeck MOVED the substitute motion "service must be made upon the party and upon the attorney for matters within the scope of the limited representation." Ms. McLean seconded.
Motion to substitute CARRIED.
Motion CARRIED.
A member said that the proposed amendments to Rule 11.2 allowed attorneys to engage in limited representation without presenting formal withdrawal papers. The member asked whether requiring attorneys to give notice of the end of a limited representation would be contrary to the Rule 11.2 proposal.
A member responded that it would benefit the attorney because once an end notice would be given, the attorneys on both sides would know that the limited representation was over. A member said that having an end notice would serve both the attorney and client because it would also tell the client that if the client needed any additional work done by the
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lawyer, they would need to re-engage.
Mr. McLean MOVED to add an additional sentence at page 43, line 69, reading "Upon completion of a limited representation the attorney must serve a notice of termination of limited representation." Judge Geiger seconded.
By unanimous consent, the language of the motion was changed to "The attorney must serve a notice of termination of limited representation."
A member said that in some situations, as when an attorney prepares a single document for a party, the attorney might want to serve the document, the notice of limited representation, and the notice of termination at the same time.
A member asked whether the attorney should be required to serve the notice of termination on the attorney's own client so that the client knows the representation is over. A member said that the language of the rule seemed to require service on the party.
Judge Dawson MOVED to add language to the motion "on each party involved in the matter." Ms. Schmitz seconded. Motion to add language CARRIED.
The motion CARRIED.
Ms. Schmitz MOVED to delete the proposed new language at page 40, line 4. Judge Nelson seconded.
A member said the proposed new language was unnecessary.
Motion CARRIED.
Ms. Schmitz MOVED to have staff make amendments to the explanatory notes to reflect the amendments to the proposals. Judge Nelson seconded. Motion CARRIED
The motion to approve the amendments to N.D.R.Civ.P. 5 and 11 and N.D.R.Ct. 11.2 and to send the rules to the Supreme Court as part of the Annual Rules Package CARRIED.
FORM 9, N.D.R.Crim.P. - APPENDIX A (PAGES 58-79 OF THE AGENDA MATERIAL)
Staff explained Form 9 had been tabled at the October 2008 meeting so that staff could integrate updated and consistent language proposed by the Committee.
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Ms. Schmitz MOVED to approve the additional amendments to Form 9. Mr. Quick seconded.
A member asked whether the syntax on page 60, line 19 was correct. By unanimous consent, the word "to" on line 19 was deleted.
A member suggested that because the Committee is considering two forms that are identical throughout their first part, any changes made in one form should also be made in the identical portion of the other. The Committee agreed.
A member pointed out that paragraph 14 of the form on self-help groups did not list a non-faith-based option. The member said that several jurisdictions had faced federal lawsuits because they sought to require offenders to attend faith-based self help groups.
Judge Nelson MOVED to add language at page 62, line 54 "or equivalent non-faith-based alternative as approved by the court." Ms. Schmitz seconded. Motion CARRIED.
A member asked whether the words "as approved by the court" were necessary. A member responded that some areas do not have local non-faith-based groups and must rely on Internet-based programs. The member said the court needed to review Internet program options and make sure the chosen program was legitimate.
A member reported that the Committee on Trial Court Operations had been asked to change the Uniform Court Information System judgment forms to incorporate conditions from Form 9. The member said that the operations committee may also propose changes to Form 9 during this process.
A member said that the language of paragraph 27 on community service at page 64, line 98, could be expanded to provide additional details on the nature of the community service required.
Mr. Mack MOVED to add language at page 64, line 98, "as follows:____." Ms. Schmitz seconded.
A member said that some forms currently being used give the number of hours of community service required.
By unanimous consent, the motion was amended to read: "You shall perform___hours of community service to be completed as follows: ____."
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Motion CARRIED.
The Chair called the Committee's attention to page 63, line 69, on restitution. The Chair wondered whether the language was adequate. A member responded that by the time the court fills in the blank on line 69, the court has made calculations as to the proper amount. The member said that most defendants facing probation agree in advance to the restitution amount. The member said the language of line 69 was appropriate.
The motion to approve the amendments to N.D.R.Crim.P. Form 9 and to send the form to the Supreme Court as part of the Annual Rules Package CARRIED.
By unanimous consent, proposed new Form 9A was amended consistent with the amendments to Form 9. The motion to approve the new N.D.R.Crim.P. Form 9A and to send the form to the Supreme Court as part of the Annual Rules Package CARRIED.
PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT (PAGES 80-114 OF THE AGENDA MATERIAL)
Staff explained that, after reviewing federal rule amendments implementing new privacy protection measures in the federal rules at the October 2007 meeting, the Committee had instructed staff to draft a single rule that would contain enhanced privacy protection measures for North Dakota's courts. Staff presented proposed new Rule 3.4 and proposed amendments to Rule 3.1 to the Committee.
Mr. Quick MOVED to approve the proposed new N.D.R.Ct. 3.4. Judge Kleven seconded.
A member asked whether the new rule would cover exhibits filed with the court. The member said courts regularly receive exhibits containing personal information, such as medical records. The member said this information needs to be protected. Staff said that the current rule requires redaction of personal information in attachments and exhibits.
A member said that the courts have been operating under the belief that eventually every document that is filed will be scanned and be made available over the Internet. The member said that attorneys need to take this into account when they submit documents to the court and need to take steps to protect personal information in documents like tax returns.
A member said the majority of the problems related to personal information in court records could be solved by making all family law files restricted and private. The member said most of the personal information filed with the court is in divorce files.
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By unanimous consent, the word "and" was removed from the end of page 82, line 20, and moved to the end of page 83, line 24.
A member asked how a party was protected if the opposing party filed the party's personal information, such as a social security number or a tax return. The member said there should be language in the rule allowing a party to force an opposing party to redact personal information from a filing. The member said a party seeking to protect its own private information should not be required to request a protection order.
Ms. Schmitz MOVED to delete "may" on page 82, line 7, and replace it with "must." Judge Kleven seconded.
A member said the proposed amendment would require attorneys to review all documents and exhibits prior to filing to ensure they did not contain anyone's personal information.
A member said that mistakes would be made and personal information would be included in filed documents. The member asked if the remedy was merely to call the court and get the inadvertently included material redacted. A member responded that no court clerk would touch a filed document and redact it. The member said that the intent of the existing rule was to place all redaction responsibility on the parties and their lawyers.
A member asked for an explanation of the reference list option in subdivision (f). Staff explained that an alternative to redaction is to have the parties submit all personal information on a separate confidential document and then reference this information by using code words listed on the confidential reference list.
Motion CARRIED.
Staff reported that the courts had entered into a bulk distribution agreement with a background search company. Staff said that no restricted information was included in the material provided to the company. Staff said if the proposed rule's restrictions on the use of birthdates in public court documents were approved, the bulk data might be less useful because search companies would not be able to match up names and birthdates to establish a positive ID on a person.
A member noted that State Court Administrator Sally Holewa had raised concerns about paragraph (d)(2). The provision allows the court to limit non-party access to electronic documents. Staff explained that, under North Dakota's current system, party information is entered into a case database and it is this information, not specific documents, that the public
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may access. Consequently, it would not be possible to restrict access to party information without restricting access to the entire electronic file on the case.
A member said the planned replacement for North Dakota's existing case management system will allow access to individual documents. The member said that paragraph (d)(2) might be useful once the new system is in place. The member said, however, that a replacement system had not been chosen and the courts had not yet obtained an appropriation for it.
A member said that the rule did not seem to provide a mechanism to be used if an attorney accidentally filed something and forgot to remove or redact an item of personal information.
Mr. Mack MOVED to add new language at page 83, line 33: "(3) Order the redaction of any information filed but not previously redacted." Judge Klevin seconded.
A member said that the language at page 86, lines 25-27, in the current Rule 3.1 seemed to address the problem of inadvertently filed personal information. The Rule 3.1 provision allows the court to order reformation of a document and to order the document stricken if reformation is not accomplished.
A member suggested that the Rule 3.1 language be inserted in proposed Rule 3.4. A member said that the Rule 3.1 provision could be used to force reformation of a document not properly redacted under Rule 3.4. A member commented that Rule 3.1 might not be the first place someone would look when a document is not properly redacted.
Judge Nelson MOVED a substitute motion to add a new subdivision (h) after page 83, line 42: "Non-Conforming DocumentsSanctions. If a party fails to comply with this rule, the court on motion of a party or its own motion, may order the document to be reformed. If the order is not obeyed, the court may order the document stricken." Ms. Schmitz seconded.
Mr. Mack obtained unanimous consent to withdraw his original motion.
A member said there was some inconsistency between the proposed new subdivision (h) and subdivision (g) on waiver. The member said that proposed subdivision (h) could allow a party who had waived protection for personal information under subdivision (g) to seek reformation. The member said that if a party made a mistake and filed personal information in the party's own document, the party should waive the protection of the rule.
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A member said proposed subdivision (h) was permissive and did not require the court to grant reformation of a filing containing unredacted personal information. The member said, however, that it would be useful to have the waiver and sanctions language in the same subdivision.
Mr. Plambeck MOVED a substitute motion to integrate proposed subdivision (h) into subdivision (g). Ms. Schmitz seconded.
A member asked whether a person who is not a party but whose personal information is included in a filing could request relief. A member responded that the person could point it out to the court and the court could order redaction on its own motion.
The motion to substitute CARRIED.
The motion CARRIED.
The motion to approve proposed new N.D.R.Ct. 3.4 as amended and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Mr. Quick MOVED to approve the proposed amendments to N.D.R.Ct. 3.1. Ms. Schmitz seconded.
Staff explained that, under the proposal, specific privacy protection requirements would be removed from Rule 3.1. As amended, Rule 3.1 would reference new Rule 3.4 and place responsibility for compliance with Rule 3.4 on attorneys and parties.
The motion to approve proposed amendments to N.D.R.Ct. 3.1 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
RULE 32, N.D.R.Crim.P., SENTENCING AND JUDGMENT (PAGES 115-135 OF THE AGENDA MATERIAL)
Staff explained the Department of Corrections and Rehabilitation had petitioned the Supreme Court to make changes to Rule 32 allowing the DOCR to have access to the presentence investigation. Staff said the Court referred the petition to the Committee for review and recommendation.
Judge Schmalenberger MOVED to approve the proposed amendments to Rule 32. Ms. Schmitz seconded.
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By unanimous consent, the word "be" was added after the word "may" on page 120, line 78.
A member said the proposed rule change would legitimize what the DOCR actually does. The member said DOCR personnel currently obtain presentence investigation reports from the courts. A member said that a probation officer had made a statement that the DOCR and prison staff especially currently do have access to the presentence investigation and all addenda.
A member observed that changing the rule would make the DOCR happy and that it would not hurt anyone given that DOCR workers already seem to have access to presentence investigation reports.
A member said the proposed language indicating that the court "may" disclose the report should be changed. The member said the report should automatically be made available to the DOCR without court involvement.
Judge Schmalenberger MOVED to amend the proposed language on page 120, line 73, to read: "The presentence report and any addendum shall be disclosed." Mr. Mack seconded.
A member asked whether there should be some limits on disclosure of the presentence report to DOCR, such as in cases when the defendant is not sent to prison. A member replied that Parole and Probation is part of DOCR and that they might want to use the presentence report in managing the defendant.
A member asked whether criminal defendants would have any objection to presentence reports being released to DOCR.
Mr. Plambeck MOVED a substitute motion to change "disclosed" to "made available" in the motion on the floor. Ms. Schmitz seconded.
The member said the unamended motion would have made it mandatory to turn the information over in every case. The member said the substitute language would allow DOCR access on request.
Without objection, the motion on the floor was amended in accordance with the substitute motion.
The motion CARRIED.
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Judge Nelson MOVED to send Rule 32 as amended to the Supreme Court immediately as an emergency measure. Ms. Schmitz seconded. Motion CARRIED.
RULE 1, N.D.R.Civ.P. - SCOPE AND PURPOSE OF RULES (PAGES 136-140 OF THE AGENDA MATERIAL)
Staff explained that the form and style revisions to the Federal Rules of Civil Procedure had become effective December 1, 2007. Staff said it was the Committee's practice to review federal amendments and consider whether to integrate those amendments into North Dakota's rules. Staff said that, over the course of future meetings, all the Rules of Civil Procedure would be presented for the Committee's review.
Judge Dawson MOVED to approve the proposed amendments to Rule 1. Judge Sturdevant seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 1 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 2, N.D.R.Civ.P. - ONE FORM OF ACTION (PAGES 140-143 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 2 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 2.
Judge Nelson MOVED to approve the proposed amendments to Rule 2. Judge Kleven seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 2 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 144-146 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 3 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 3. Staff said the existing system of commencement by service would be preserved under the proposed amendments.
Mr. Mack MOVED to approve the proposed amendments to Rule 3. Ms. McLean seconded.
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A member said if the Committee made any changes to Rule 3, it would create trepidation among members of the Bar that changes to North Dakota's system of commencement by service were being considered. A member responded that if the Committee made stylistic changes to the rule but left the commencement of actions system unchanged, it would reinforce the fact that North Dakota is retaining commencement by service.
The motion to approve the proposed amendments to N.D.R.Civ.P. 3 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 6, N.D.R.Civ.P. - COMPUTING AND EXTENDING TIME (PAGES 147-154 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 6 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 6.
Mr. Quick MOVED to approve the proposed amendments to Rule 6. Judge Geiger seconded.
A member asked about the provision extending time if the clerk's office is inaccessible. The member asked whether this also should be considered when electronic service was made.
The motion to approve the proposed amendments to N.D.R.Civ.P. 6 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
Staff explained Fed.R.Civ.P. 7 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 7.
Judge Kleven MOVED to approve the proposed amendments to Rule 7. Mr. Dunn seconded.
Judge Schmalenberger MOVED to delete the text at page 157, lines 26-27. Ms. Ottmar seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 7 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
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RULE 8, N.D.R.Civ.P. - GENERAL RULES OF PLEADING (PAGES 161-171 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 8 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 8.
Judge Dawson MOVED to approve the proposed amendments to Rule 8. Ms. McLean seconded.
By unanimous consent, the word "the" on page 165, line 79, was changed to "them."
Mr. Plambeck MOVED to delete text at page 164, line 46. Mr. Quick seconded.
A member said that a party should not be required to plead discharge in bankruptcy as an affirmative defense. The member said that, under the Bankruptcy Act, discharge in bankruptcy cannot be waived as a defense by failure to plead it.
A member suggested staff should update the explanatory note to explain the current status of the law on using discharge in bankruptcy as a defense.
The motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 8 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 9, N.D.R.Civ.P. - PLEADING SPECIAL MATTERS (PAGES 172-178 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 9 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 9.
Mr. Quick MOVED to approve the proposed amendments to Rule 9. Judge Kleven seconded.
A member pointed out that under the proposed amendments, special damages must be pleaded. The member said that, in a personal injury case, a party may have $400 in medical damages when a matter is commenced. The member wondered if the exact dollar amount had to be pleaded under the rule, especially given that the dollar amount of medical damages is likely to increase over time as the injured person receives more treatment.
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A member said the special damages provision in the proposal did not change North Dakota's rule on pleading special damages. The requirement already exists in the rule.
A member said it might be useful for the Committee to see a "clean" version of the amended rules at some point. The member said that being able to see a clean version could help members spot problems in a rule. The consensus of the Committee was that staff should prepare a "clean" version of the rules for the Committee to review before the Civil Rules Package is sent to the Supreme Court.
The motion to approve the proposed amendments to N.D.R.Civ.P. 9 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 10, N.D.R.Civ.P. - FORM OF PLEADINGS (PAGES 179-183 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 10 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 10.
Mr. Mack MOVED to approve the proposed amendments to Rule 10. Ms. Ottmar seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 10 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
Staff explained Fed.R.Civ.P. 12 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 12.
Judge Dawson MOVED to approve the proposed amendments to Rule 12. Ms. McLean seconded.
A member said the language at page 185, lines 18-19, was not easy to understand. The member suggested that the language of the current rule may be superior. The member said the meaning of the terms "answer" and "order" in lines 18-19 were not clear.
Staff said the language was taken directly from the federal amendments. The member said that 20 days would be an appropriate response time to an order that required a reply, but
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that the proposal's reference to a "reply to an answer" was confusing. The consensus of the Committee was that staff should do additional research to determine the intent of the language at page 185, lines 18-19.
A member asked whether anyone had ever used the procedure for an offer of fixed damages, as set out on pages 190-191 at lines 118-128. The member said that N.D.R.Civ.P. 68's offer of settlement is regularly used and asked whether there was reason to retain the offer of fixed damages procedure.
Judge Schmalenberger MOVED to delete the language on pages 190-191, lines 118-128, referring to the offer of fixed damages procedure. Mr. McLean seconded.
A member said a party could still try the issue of liability if an offer of fixed damages was made. A member replied that parties could still try liability if a Rule 68 offer is made.
A member said an offer of fixed damages might be made if the parties have a contract that provides for fixed damages and the party claiming breach seeks damages over and above the fixed amount. The member said an offer of fixed damages could be made essentially as a defense.
A member said it would be helpful if the Committee had more background on the background of the fixed damages provision.
Mr. Plambeck MOVED to holdover Rule 12 to the April 2008 meeting. Judge Nelson seconded. Motion CARRIED.
RULE 13, N.D.R.Civ.P. - COUNTERCLAIM AND CROSSCLAIM (PAGES 198-204 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 13 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 13.
Ms. Schmitz MOVED to approve the proposed amendments to Rule 13. Ms. McLean seconded.
A member questioned the use of dashes in the proposed revisions to the civil rules. The member asked what a dash was suppose to represent, whether it was suppose to serve the same function as a comma. A member replied that dashes seemed to be used to enclose parenthetical or explanatory phrases.
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Ms. Schmitz MOVED to delete dashes at page 199, lines 4-5, and page 200, lines 32-33. Ms. Ottmar seconded.
A member said that Minnesota did not adopt use of dashes in its version of the counterclaim rule. The member suggested that the Minnesota language was superior to the federal language.
Mr. McLean MOVED a substitute motion to further amend language at page 199, lines 4-5, to read "which at the time of serving." Judge Dawson second.
Motion to substitute CARRIED.
Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 13 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 14, N.D.R.Civ.P. - THIRD-PARTY PRACTICE (PAGES 205-210 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 14 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 14.
Judge Sturdevant MOVED to approve the proposed amendments to Rule 14. Ms. Schmitz seconded.
Judge Dawson MOVED that all dashes be removed from this rule and future rules in the Civil Rules Package and replaced with appropriate punctuation. Ms. Schmitz seconded. Motion CARRIED.
Mr. Boschee MOVED to delete language at pages 207-208, lines 42-43. Ms. Schmitz seconded.
A member said the service requirement contained in lines 42-43 was superfluous. A member replied the language should be retained. The member said that self-represented litigants in particular may not know about service rules and tend to just focus on whatever rule they are interested in.
Motion CARRIED 10-8.
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Mr. Plambeck MOVED to delete language at page 207, line 41. Mr. Quick seconded.
A member said the language on line 41 was unnecessary and the sentence should end at the end of line 40.
Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 14 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
RULE 15, N.D.R.Civ.P. - AMENDED AND SUPPLEMENTAL PLEADINGS (PAGES 211-218 OF THE AGENDA MATERIAL)
Staff explained Fed.R.Civ.P. 15 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 15.
Judge Dawson MOVED to approve the proposed amendments to Rule 15. Mr. Quick seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 15 and to send the rule to the Supreme Court as part of the Civil Procedure Rules Package CARRIED.
FOR THE GOOD OF THE ORDER
Staff asked the members of the Committee if, when amendments to N.D.R.Civ.P. 16 and the discovery rules beginning with N.D.R.Civ.P. 26 are considered, the Committee wishes staff to present versions of the rules that contain the federal approaches to pretrial conferences and discovery. The consensus of the Committee was that staff should prepare form and style changes to the North Dakota rules and present rule drafts that retain the current approach to pretrial conferences and discovery.
The meeting adjourned at approximately 4:30 p.m., on January 24, 2008.
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Michael J. Hagburg