TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3, N.D.R.Civ.P., Commencement of Action
The Supreme Court has requested a report from the Committee on adopting a system of commencement by filing in North Dakota.
At the January 2007 meeting, the Committee conducted discussions on whether a "pure" system of commencement by filing or a hybrid system allowing both commencement by filing and commencement by service would be preferable. The Committee selected "pure" commencement by filing, and voted in favor of a Rule 3 alternative based on the federal model.
Attorneys Thomas Davies, Clifton Rodenburg and William Worthington have submitted comments explaining their opposition to switching to a system of commencement by filing. In their comments, which are attached, they point out that debt collection matters are easier to handle under the existing system of commencement by service. The attorneys state that a switch to commencement by filing would burden both debtors and creditors by increasing their costs, making their cases public, and subjecting the resolution process to court control.
The attorneys also state that a switch to commencement by filing would burden the court system by increasing district court caseloads. Rodenburg and Worthington indicate that, in states where commencement by filing is in place, lower court systems exist where debt collection matters can be resolved at less cost to creditors and debtors than they can be in district court in North Dakota.
The comments of Davies, Rodenburg and Worthington are attached. The Committee may wish to discuss whether their comments are valid, particularly the comments involving the burdens that may be experienced by the court system itself if commencement by filing is adopted.
The Committee did not approve changes to Rule 3 at the January meeting. When the Committee considers the rule at this meeting, however, the question will not be whether to approve the amendments and send the proposal to the Court. Instead, the question is whether this is the version of the rule the Committee wants the Court to examine as part of the Committee's report on commencement by filing.
This question will also apply to the 13 rules that follow in the agenda materials. The Committee instructed staff to research what other rule changes would be needed if commencement by filing were to be adopted. The rules that follow are rules that may need to be amended if commencement by filing is adopted.
A version of Rule 3 based on the federal model is attached.