TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3, N.D.R.Civ.P., Commencement of Action
After discussing Rule 3 at its September meeting, the Committee decided to table the rule so that staff could prepare an alternative proposal and conduct more research.
Subsequently, the Supreme Court took up the Committee's proposed changes to N.D.R.Civ.P. 4. The Court approved the Committee's changes after making some changes of its own.
The Court has requested that the Committee review the Court's amendments to Rule 4(c)(3) and report back to it on whether it would be beneficial to amend Rule 3 and adopt a system of commencement by filing. Under such a system, Rule 4(c)(3)'s demand to file complaint procedure could be eliminated because it would no longer be needed.
A copy of Rule 4 as amended and approved by the Court is attached. The amendments take effect March 1, 2007.
In accordance with the Supreme Court's request and the Committee's September actions, a proposal to amend Rule 3 to institute a system of commencement by filing is attached. Regardless of whether or not the Committee decides to approve this proposal, the Court expects the Committee to consider it and report back on whether commencement by filing should be adopted in North Dakota.
The Court would like to review the Committee's report when it discusses the next round of proposed rule changes. The Court will probably do this in the fall, so the Committee has a substantial amount of time to assemble its report. Given the advent of enhanced records management and the increased importance of electronic filing, the Court believes that a move to a system of commencement by filing may be inevitable at some point. Consequently, the Court wants the Committee not just to give its opinion of commencement by filing, but also to discuss what would be needed to make commencement by filing work in North Dakota. The Court would like the Committee to think about what rule changes would be necessary across the board and also to consider whether any changes to the system in general would be needed to implement commencement by filing.
As requested by the Committee in September, staff has prepared an alternative Rule 3 proposal that incorporates a dual system of commencement by service or filing. The proposal, which is attached, is based on Washington's commencement of action rule. The Washington rule and similar rules from Colorado and Utah are also attached. A dual system possibly could be a stepping stone to a system of commencement by filing.
In September, the Committee discussed whether N.D.C.C. § 28-01-38--which makes delivery for service the trigger that starts the limitations period running--could be superseded if a switch was made to a system of commencement by filing. In Paracelsus Healthcare v. Philips Medical, 384 F.3d 492 (8th Cir. 2004), the federal appeals court stated that all limitations statutes are substantive law and it treated § 28-01-38 as a substantive statute. Substantive statutes cannot be superseded. On the other hand, while the North Dakota Supreme Court treats statutes setting out limitations periods as substantive, it has stated that § 28-01-38 sets out "procedural requirements." See Long v. Jaszczak, 2004 ND 194, ¶ 11, 688 N.W.2d 173.
It is possible that N.D.C.C. § 28-01-38 and a system of commencement by filing could coexist, depending on how other rules are amended in order to implement the system. Service of the summons and complaint will presumably still be necessary to obtain jurisdiction regardless of whether the complaint is filed. The attached Washington rule, for example, specifically states that a statute governs the running of the limitations period.