RULE 47. MOTIONS
(a) In General.
An application A party applying to the court for an order shall be made must do so by motion.
(b) Form and Content.
which, unless A motion--except when made during a hearing or trial or hearing-- , shall must be made in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds therefor, on which it is based and set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The A motion may be supported by affidavit.
(c) Timing of a Motion. A party must serve a written motion--other than one that the court may hear ex parte--and any hearing notice at least 18 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.
(d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service.
Rule 47 was amended, effective____________________.
Rule 47 is an adaptation of Fed.R.Crim.P. 47
; however, the language, with two exceptions, is that of the corresponding N.D.R.Civ.P. 7(b). The Rule rule is intended to state the general requirements for all motions. The two exceptions add To achieve flexibility, to the criminal rule in two essential respects: (1) it does not require that the grounds for the a motion to be stated "with particularity ", and (2) the use of affidavits in support of a motion is permissive. [See United States v. Labovitz, 20 F.R.D. 3 (D. Mass. 1956) and 20 F.R.D. 307 (D. Mass. 1957).] The provision for permissive use of affidavits has been used to effectively expedite resolution of the issues [United States v. Okawa, 26 F.R.D. 384, 386 n.2 (D. Hawaii 1961).]
Rule 47 is not intended to permit
"speaking motions ", i.e., a motion supported by affidavit attempting to establish facts which can only be established at a trial or hearing where evidence is introduced. [Advisory Committee Note to Fed.R.Crim.P. 47. See Cohen v. United States, 378 F.2d 751 (9th Cir. 1967), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967), in which the Ninth Circuit has outlined the proper function of an affidavit in support of a motion to suppress.]
Rule 45 on calculating time, Rule 49 on service and filing of documents, and N.D.R.Ct. 3.2 relating to submission of motions should be considered when making a motion under this rule.
Rule 47 was amended, effective ____________________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. In addition, to achieve consistency with the federal rules, the language of subdivisions (c) and (d) was transferred to this rule from Rule 45.
SOURCES: Joint Procedure Committee Minutes of _______________ pages ___; April 24-26, 1973, page 15; February 20-23, 1973, page 8; September 17-19, 1970, page 10; March 12, 1970, page 10;
18 U.S.C.A., Fed.R.Crim.P. 47 , page 375; Wright, Federal Practice and Procedure: Criminal, §§ 801-802 (1969); 8A Moore's Federal Practice, Chapter 47 (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, §§ 2521-2522 (1950).
STATUTES AFFECTED: None
N.D.R.Civ.P. 7(b) (Pleadings Allowed--Forms of Motions) N.D.R.Crim.P. 45 (Computing and Extending Time); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.Ct. 3.2 (Motions).