New North Dakota court rules and amendments will become effective March 1, 1999. The changes are highlighted in the following synopses.
I. North Dakota Rules of Civil Procedure
Rule 4, Persons Subject to Jurisdiction--Process-- Service
An amendment to 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.
An amendment to subdivision (d) authorizes service of process via a third-party commercial carrier. The amendment also provides for an affidavit of delivery via a third-party commercial carrier which is analogous to an affidavit of mailing.
Finally, an amendment prevents service via mail on a corporation outside the state by simply addressing the mail to the corporation. Before the amendment, under subdivision (d)(3), it appeared a corporation could be served outside the state by mail without limitation as to whom the mail must be addressed. Under the amendment, 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
As amended, Rule 5 permits service via a third-party commercial carrier and provides service is complete upon deposit of the paper with the commercial carrier.
As amended, Rule 6 provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
An amendment to Rule 43 allows a witness who is unable to reasonably communicate orally to present testimony in open court by non-oral means such as through writing or sign language. An amendment 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.
As amended, Rule 51 authorizes preliminary substantive jury instructions. Under the amendment, a 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
An amendment to subdivision (d) incorporates the case law exception holding service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or an appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party.
In addition, as amended, Rules 23, 30, 30.1, 31, and 45 allow the use of a commercial carrier as an alternative to the United States Postal Service.
II. North Dakota Rules of Criminal Procedure
This amendment is analogous to the proposed amendment to Rule 51, N.D.R.Civ.P. The amendment 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
An amendment to subdivision (c) provides a defendant's counsel with notice and a reasonable opportunity to attend any presentence investigation interview of the defendant. The amendment also provides for certain categories of sensitive information to be submitted to the court as an addendum to the presentence investigation report.
The amendment further provides the presentence investigation report is confidential and may not be read or copied by the public, or copied by the parties unless permitted by the court in its discretion. Any addendum to the presentence investigation report is confidential and may not be read or copied by the public or the parties unless permitted by the court in its discretion.
Rule 32.1, Deferred Imposition of Sentence
New Rule 32.1 provides uniform procedures for processing deferred impositions of sentence. Under the rule, the order deferring imposition of sentence must provide for automatic dismissal if the defendant fulfills the conditions of probation.
As amended, Rule 45 provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
In addition, as amended, Rules 37, 46, and 49 allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.
III. North Dakota Rules of Appellate Procedure
For appeal, the amendment provides an extension of 30 days for excusable neglect from the particular rule or statute providing the time for appeal. Before the amendment, under Rule 4(a), the 30 day extension for excusable neglect was added to the 60 day period under Rule 4(a) even if the statute or Rule providing for the appeal provided a different time for appeal.
An amendment to subdivision (c) extends the requirement for filing a computer diskette of the transcript to an appeal from an administrative agency.
As amended, Rule 25 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
As amended, Rule 26 provides a three-day extension for service via a third-party commercial carrier as is provided for service via mail.
Rule 31, Filing and Service of Briefs
An amendment to subdivision (b) requires a copy of each brief to be filed on a computer diskette unless the filing party certifies the brief was not prepared on a computer or word processor.
A new subdivision (c) requires the parties to notify the court in writing when an issue appealed becomes moot.
In addition, as amended, Rules 3, 8, 36, and 45 allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.
IV. North Dakota Rules of Court
Rule 6.9, Assisting Jurors at Impasse
This new rule is intended to reduce mistrials. Under the rule, 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 new rule modernizes the language used in courtroom oaths and consolidates the oaths into one location. The rule continues to allow an affirmation in lieu of an oath.
Rule 8.2, Interim Orders in Domestic Relations Cases
An amendment extends the period of time within which a judge must hear a motion for interim relief, when a motion for a change of venue is filed before the motion for interim relief is heard.
In addition, as amended, Rules 3.1, 7.1, and 11.2 allow the use of a third-party commercial carrier as an alternative to the United States Postal Service.