TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 4, 2012
RE: Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment; Rule 77, N.D.R.Civ.P., District Courts and Clerks; Rule 4, N.D.R.App.P., Appeal- When Taken.
At the September 2011 meeting, the Committee discussed Rule 58's requirements related to notice of entry of judgment. At the January 2012 meeting, the Committee discussed proposed amendments to Rule 58, Rule 77 and appellate Rule 4 that would put the duty to provide notice of entry of judgments and orders on the clerk. The Committee tabled the proposed amendments pending answers to how the proposals, if adopted, would be handled by clerk staff and the Odyssey case management system.
The Committee asked whether clerks could provide notice of entry of judgments and orders through the Odyssey system as is done by the federal case management system. Staff obtained an answer from court technology chief Larry Zubke. This cannot be done yet, but the courts are planning to adopt the necessary technology once it becomes available. At the last Odyssey user group meeting, they were discussing going live with a new file and serve system Nov. 1 and going with mandatory e-filing and service on April 1, 2013. This has to be approved by the Court Technology Committee and the Court.
At present, Odyssey is essentially an electronic version of the paper filing system the courts previously used. Parties send in paper or electronic documents and the clerk puts these documents in electronic files. Parties are not required to file electronically or to accept electronic service so there is no uniform way to contact parties. If the clerks are required to send notice of orders entered, they will need to look up all the parties and send them notice by email or postal mail, whatever is appropriate for the given party.
Now, if the clerks were required to send out notice of entry of judgments and orders in all cases, as proposed in the draft amendments to Rules 58 and 77, this would increase their workload. At the September and January meetings, however, the discussion showed that this workload does not necessarily need to fall wholly on the clerks because some judges have already taken on the role of sending notice of their own memorandum opinions and orders themselves. Therefore, staff has made a small change to the proposed amendments to Rule 77 that would place the duty to send out notice on the institution of the court rather than specifically on the clerk.
The intent of this proposed change is to allow each court to make its own decision on how to allocate the duty to provide notice and what methods to use. For example, the presiding judge or court administrator could direct that chambers would give notice of orders they enter and clerks give notice of other orders.
Current Problems With Notice:
Petra Hulm, the chief deputy clerk of the Supreme Court, has identified an issue relevant to the Committee's discussion of Rule 58, Rule 77 and appellate Rule 4. Recently, there have been several instances of the Court receiving civil appeals in which no Rule 58 Notice of Entry of Judgment was served. In these cases (all from Eastern N.D.) the parties received a "Notice of Entry," sometimes accompanied by an affidavit of service, from the district court. The prevailing parties then apparently decided not to serve a Notice of Entry of Judgment as required by Rule 58, possibly thinking that all notice necessary had been taken care of through the district court sending out notice of entry. One pro se litigant who did not receive the Rule 58 notice has appealed multiple cases, and the Court has allowed the appeals to proceed even though the appeal time would have expired long ago had a Rule 58 notice been sent. An email from Ms. Hulm discussing this issue is attached.
Adopting the amendments to Rule 58, Rule 77 and appellate Rule 4 would address the issue raised by Ms. Hulm because the proposed amendments would start the appeal clock running on entry and place the duty of sending notice of entry on the court, relieving attorneys of the need to send Rule 58 notices. If the Committee does not favor approving the proposed amendments, it may wish to discuss what alternative approaches could be used to address the problem under the existing system.
Staff has prepared an alternative version of Rule 77, attached as "Alt. A," which attempts to address this issue. It would require the court to notify parties when orders or judgments are entered, but would still require the prevailing party to serve a formal notice of entry of judgment and is a companion to Rule 58 "Alt. A," which will be discussed below.
Filing the Notice of Entry of Judgment:
The problem that brought Rule 58 before the Committee in September was inconsistent policy for filing copy judgments in the Odyssey system. Some attorneys who attempted to file a copy judgment with their notice of entry of judgment were having the copy judgment returned and being instructed by clerk staff that filing was not allowed. Discussion by the Committee revealed that there was a disconnect between what Rule 58 allowed and what Odyssey operations policy allowed. The Committee made several proposals on how this problem could be remedied and asked in a letter to the Court Technology Committee whether these proposals could be implemented.
The Odyssey User Group discussed this issue on March 22, with staff providing background on the Committee's proposals. Ultimately, the group decided that clerk staff should file the copy judgment as a subdocument to the notice of entry judgment, which is essentially what the Committee proposed. Attorneys who e-file their pleadings will have to make sure that they submit the notice of entry and the copy judgment as one document because the system does not allow the clerks to turn two separately submitted documents into one document. The clerks will be trained on the appropriate way to handle notice of entrys submitted with copy judgments, and they will instruct attorneys on the proper way to submit these documents when e-filing.
Suggestions were made at the user group meeting that a compromise that would serve both the courts and attorneys would be to amend Rule 58 to allow attorneys to continue to serve copy judgments but to file only information on the judgment docket number and date instead of the copy judgment. It was pointed out that judgments that are e-filed are given a docket number almost instantaneously that could then be used to specifically and positively identify the judgment to which the notice of entry refers. Proposed amendments to Rule 58 incorporating this suggestion are attached, labeled "Alt. A."
Proposed amendments to Rule 58, Rule 77 and appellate Rule 4, and alternative amendments to Rule 58 and Rule 77, are attached.