M E M O
TO:Joint Procedure Committee
FROM:Tom Tudor/Mike Hagburg
RE:Rule 3, N.D.R.Civ.P.; Commencement of Action
Following the Committee's action defeating the motion to approve the proposed amendments to Rule 3 requested by the Public Trust and Confidence Committee, the Committee adopted a motion requesting staff to prepare an amendment to Rule 3 requiring that the complaint be filed within 12 months following service of a summons. After gathering comments on the proposed amendment and researching North Dakota and out-of-state law, a revised version of Rule 3 was prepared that included the 12-month filing requirement as well as an indication that Rule 3 supersedes N.D.C.C. § 28-01-38. The research supporting the revisions to Rule 3 is discussed below. The specific revisions offered have not yet been fully discussed by the Committee.
B. Existing mechanisms to compel timely filing
As a preliminary matter, it should be noted that Rule 4(c) already provided a defendant with two processes to compel filing of a complaint:
(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.
(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand on the plaintiff to file the complaint. Service of the demand must be made under subdivision (d) on the plaintiff's attorney or on the plaintiff if the plaintiff is not represented by an attorney. If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.
The Committee may wish to consider whether the remedies provided under Rule 4(c) are adequate to ensure complaints are filed in a timely manner. Rule 4 (c)(3) was the subject of considerable discussion at the September 26-27, 1996, and January 30, 1997 meetings. This provision was added to address the problem of plaintiffs commencing actions but not filing complaints.
C. Comments on proposed amendment of Rule 3
After the Committee requested the inclusion in Rule 3 of the requirement that a complaint be filed within 12 months of service of the summons, comments were obtained from district court personnel regarding this proposed change. Dorothy Howard of Cass County indicated that she did not think the proposed change would affect the work done by Clerk of Court staff. Deb Simonson of Burleigh County was concerned only by the Committee's use of the "discontinued" in the proposed amendment. She suggested it be changed to "dismissed." Paulette Ruele of Stark County, however, suggested that the proposed change might create a number of administrative problems for Clerk of Court staff. She recommended adopting an immediate filing requirement like that in Fed.R.Civ.P. 3.
Comments were also obtained from state court staff. Ted Gladden indicated that he understood the Committee's reluctance to adopt mandatory filing. On the other hand, he noted that until an action is filed, no court can take control of it and manage the pace of litigation. With his comments, Mr. Gladden provided material discussing the advantages of mandatory filing and early court intervention. Jim Ganje stated that he did not believe the proposed changes to Rule 3 were responsive to the concerns expressed by the Public Trust and Confidence Implementation Committee. He indicated that, by allowing a 12-month window between service and filing, the proposed rule would deny the courts an opportunity to achieve early judicial control of cases.
D. Systems in place in other jurisdictions
for commencement of actions
For the Committee's information, only five states retain a system for commencement of actions by service of a summons alone -- Connecticut, Minnesota, New Hampshire, North Dakota and South Dakota. See Conn. Gen. Stat. § 52-89; Minn.R.Civ.P. 3.01; N.H. Rev. Stat. ch. 509 § 4; N.D.R.Civ.P. 3; S.D.C.L. § 15-2-30. New York allows commencement of actions by service in some courts but requires filing in other courts. The original joint committee that drafted North Dakota's civil procedure rules determined that the commencement by service system was "far superior" because "it relieves the clerks of court of certain work burden, is simpler and easier for the attorneys, and promotes and facilitates settlements." Report of the Rules of Civil Procedure Committee to State Bar Association of North Dakota, 30 N.D.Law Rev. 345 (1954).
Under North Dakota law, filing a complaint is essentially a clerical act that does not cause the commencement of an action. See Schaff v. Kennelly, 61 N.W.2d 538, 543 (N.D. 1953). This will change if the proposed language is added to Rule 3 because filing may become one factor to consider in determining whether an action was timely commenced. Six states have hybrid systems under which actions may be commenced by service or filing. These states' rules may be of interest to the Committee because they also set deadlines for filing the complaint when an action was commenced by service.
In Colorado a plaintiff may commence an action by filing the complaint or by serving a summons and complaint. "If the action is commenced by the service of a summons and complaint, the complaint must be filed within ten days after service." If the complaint is not filed within the required period, service is deemed "ineffective and void." However, the defendant may expressly waive the ten day filing requirement. Further, the ten day filing requirement is "deemed waived" if the defendant does not raise the issue in its answer to the complaint. Colo.R.Civ.P. 3.
In Maine and Rhode Island, a plaintiff may commence an action by filing a complaint or by service of a summons and complaint. If the plaintiff chooses to commence the action by service, the plaintiff must thereafter file the complaint. The deadline for filing in Maine is 20 days and in Rhode Island the deadline is 10 days. If the complaint is not timely filed, "the action may be dismissed on motion and notice." If the action is dismissed for failure to file, the court may tax reasonable attorney fees against the party that failed to file its complaint. Me.R.Civ.P. 3; R.I.R.Civ.P. 3.
In Utah, a plaintiff may commence an action by filing the complaint or by service of a summons and complaint. If the plaintiff chooses to commence the action by service, the complaint must be filed within ten days. If the complaint is not filed by the deadline, the action is "deemed dismissed." Utah R.Civ.P. 3.
In Vermont, a plaintiff must commence an action by filing a complaint except in certain attachment and/or replevin proceedings in which commencement by service is allowed. In cases where commencement by service is allowed, the complaint must be filed with 20 days, or the action will be subject to dismissal on motion as in Maine and Rhode Island. Vt.R.Civ.P. 3.
In Washington, a civil action may be commenced by filing or service. If the plaintiff chooses to commence the action by service, the complaint must be filed within 90 days. If the complaint is not filed by the deadline, "the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations." Wash. Rev. Code § 4.16.170.
The federal government and 38 states have opted for a system whereby civil actions are commenced by the filing of some sort of document (generally a complaint as under Fed.R.Civ.P. 3) with the court. Fed.R.Civ.P. 3 was designed to establish a "uniform and certain" way to commence a civil action in federal court. 1 Moore's Federal Practice 3d, § 3.02 (2000). When working on the original draft of Fed.R.Civ.P. 3 in 1936, the drafting committee considered adopting the "hip pocket" system of commencing an action that remains in force in North Dakota. 1 Moore's Federal Practice 3d, § 3App.100 (2000). As discussed above, under the "hip pocket" system, an action is commenced upon service of a summons prepared by plaintiff, and filing can be delayed until one of the parties seeks court action. Id. The federal drafting committee rejected the "hip pocket" system after receiving "a great deal of criticism from members of the bar who were not accustomed to it." Id.
E. Interaction between proposed amendments to Rule 3 and N.D.C.C. § 28-01-38
In researching the impact of the proposed change and the approaches taken by other jurisdictions, it was ascertained that N.D.C.C. § 28-01-38 contains some of the same language of Rule 3 and also cross-references to Rule 3. N.D.C.C. § 28-01-38 provides:
An action is commenced as to each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him. An attempt to commence an action is equivalent to commencement thereof within the meaning of this chapter when the summons, with the intent that it shall be actually served, is delivered:
1.To the sheriff or other officer of the county in which the defendants or one of them usually last resided; or
2.To the sheriff or other officer, if a corporation is defendant, of the county in which was situated the principal place of business of such corporation, or in which its general business was transacted, or in which it kept an office for the transaction of business.
Such an attempt must be followed by the first publication of the summons or the service thereof.
N.D.C.C. § 28-01-38 is part of N.D.C.C. Ch. 28-01, which relates to "time for commencing actions." The apparent intent of N.D.C.C. § 28-01-38 is to establish a point in time that a civil action commences for statute of limitations purposes. N.D.C.C. § 28-01-38 derives from Dakota Territory C.Civ.P. 1877 § 62 – indeed, it is essentially identical to the old Dakota statute.
N.D.C.C. § 28-01-38 seems at odds with the proposed new version of Rule 3. The proposed language in Rule 3 makes service of a summons "void" if a complaint is not filed within the 12-month deadline. Yet, under N.D.C.C. § 28-01-38, "[a]n attempt to commence an action is equivalent to commencement . . . ." Consider this hypothetical: a plaintiff serves a summons and complaint just before the limitations period expires, and then fails to file to file the complaint within a year of service. The defendant can argue, relying on the proposed new language in Rule 3, that plaintiff's service was void, that no action was commenced, and that plaintiff is barred under the statute of limitations from bringing its claim in any sort of revived action. The plaintiff, on the other hand, can argue that it is free to refile under N.D.C.C. § 28-01-38 because its attempt to commence the action was enough to toll the running of the limitations period. If this is true, then the proposed 12-month filing "requirement" becomes toothless because a party who fails to file within the required period may simply start over again without worrying about the limitations period.
Therefore, the Committee may wish to discuss whether N.D.C.C. § 28-01-38 should be deemed superseded by the revised Rule 3. Given the fact that N.D.C.C. § 28-01-38's "attempt to commence" section also discusses somewhat outmoded means of service, the Committee may also wish to discuss whether N.D.R.Civ.P. 4(d), together with the revised Rule 3, supersedes N.D.C.C. § 28-01-38.
In the alternative, the Committee may wish to discuss whether any language from N.D.C.C. § 28-01-38 should be incorporated into Rule 3 or Rule 4. South Dakota has retained their version of Dakota Territory C.Civ.P. 1877 § 62 as a separate "rule" appearing after South Dakota's version of Rule 3 in South Dakota's codified civil procedure "rules." See S.D.C.L. § 15-2-31.