TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3, N.D.R.Civ.P., Commencement of Action
At the end of the April meeting, the Committee instructed staff to prepare amendments to Rule 3 that would change the method of commencing a civil action. The proposed amendments, which are attached, would make filing the commencing event.
Service of a summons on the defendant has been the way to commence a civil action in North Dakota since statehood. Even though the federal government adopted commencement by filing when Fed.R.Civ.P. 3 was put in place, the joint committee that drafted North Dakota's civil procedure rules retained commencement by service. The committee said that commencement by service 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).
Aside from North Dakota, three states use commencement by service: Connecticut, Minnesota and South Dakota. Two other states, New Hampshire and Washington, allow the plaintiff to choose filing or service as the commencement method. Two additional states, Colorado and Utah, allow plaintiffs to choose filing or service, but require filing within 10 days if service is chosen. In the remaining states, civil actions are commenced by filing.
Paralleling current Rule 3, N.D.C.C. § 28-01-38 provides that:
"An action is commenced as to each defendant when the summons is served on that defendant, or on a codefendant who is a joint contractor or otherwise united in interest with that defendant. An attempt to commence an action is equivalent to the 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 or 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 within sixty days by the first publication of the summons or the service thereof."
This statute is in the part of the code dealing with limitation periods and is still relied on by the Supreme Court in analyzing whether the limitations period has run in a given case. See Long v. Jaszczak, 2004 ND 194, ¶ 11, 688 N.W.2d 173. If the Committee chooses to shift to a commencement by filing system, the Committee may wish to discuss whether this statute is procedural and can be superseded or whether it contains substantive law. The Court in Long suggested that section 28-01-38 contained "procedural requirements." Long, at ¶ 11.
Further amendments to other civil rules, especially N.D.R.Civ.P. 4, will be necessary if the Committee decides to amend Rule 3. Staff can draft these potential amendments for the Committee to consider during the two meetings that remain before the Committee submits its annual rules package in July 2007.
Proposed amendments to Rule 3 that echo the federal language are attached.