M E M O
TO: Joint Procedure Committee
FROM: Tom Tudor
RE: Rule 27, N.D.R.App.P.; Motions
The proposed changes to N.D.R.App.P. 27 are both stylistic and substantive, and generally conform to the December 1, 1998, federal amendments.
Paragraph (1) provides that a motion must be in writing unless the court permits otherwise. The writing requirement is implicit in the current rule, but is not required.
Paragraph (2) sets out the contents of a motion. Paragraph (2)(B)(iii) requires that a motion seeking substantive relief must include a copy of the district court's opinion or the agency's decision as a separate exhibit.
Paragraph (2)(B)(iv) requires that a brief be served and filed with a motion. It differs from the federal rule, which prohibits the filing of a separate brief supporting or responding to a motion and requires that all legal arguments should be presented in the body of the motion . (Sup.Ct.R. 21.1 does not permit a brief to be filed with a motion.)
Paragraph (2)(B)(v) and (vi) require that a notice of motion must be served and filed with the motion and that proof of service must also be filed with the motion. The federal rule does not require, but does not bar, a notice of motion.
Paragraph (4), which is new, allows the moving party to serve and file a reply brief within 5 days after service of the answer brief. This is also new in the federal rule.
Subdivision (b) has been added to clarify that a party may file a motion to reconsider, vacate, or modify the action by either the court or the clerk. A new sentence has been added to provide that if a motion is granted in whole or in part before the filing of timely opposition to the motion, the filing of the opposition is not treated as a request to reconsider, vacate, or modify, but that the party must file a new motion that addresses the order granting the motion.
Subdivision (d). This subdivision is new. The format requirements track the federal requirements, which include substantial revisions to the former federal format requirements. New language is proposed in Rule 32 which provides that the form of a motion is governed by this rule.
Subdivision (e). This subdivision is also new. Subdivision (e) explicitly provides that there is no right to oral argument unless the court orders it.