TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction--Process--Service
The Committee approved amendments to Rule 4 at the April meeting. Rule 4 with the proposed amendments was included in the annual rules package and is now before the Supreme Court. Because of decisions made by the Supreme Court in two recent cases, the Committee may wish to consider modifications to the proposed amendments.
The Committee has proposed that language in Rule 4(c)(3) be changed to allow service of a demand to file complaint to be made under N.D.R.Civ.P. 5(b). In Rekkedahl v. Feist, 2006 ND 147, the defendant served a demand to file complaint under Rule 5(b). The Rekkedahl court held this service to be invalid because the unambiguous language of Rule 4(c)(3) requires service under Rule 4(d). Rekkedahl, at ¶ 9.
The Rekkedahl opinion makes clear that Rule 5 procedure cannot be used to serve a demand to file complaint under the existing language of Rule 4(c)(3). The Committee's proposed amendment would change this language and allow Rule 5 service of the demand. The Committee may wish to discuss whether such a change should still be recommended given the Court's opinion in Rekkedahl.
The Committee also proposed adding the following sentence to Rule 4(c)(3): "In cases with multiple defendants, service of a demand by one defendant is effective for all the defendants." In Ballensky v. Flattum-Riemers, 2006 ND 127, 716 N.W.2d 110, the Court decided that service of a demand to file a complaint by one defendant was not effective for all defendants.
The Ballensky court said: "Under our procedural rules, a demand to file a complaint is personal to the demanding defendant, and the fact a summons may be void as to one defendant does not void service of the summons as to other defendants." Ballensky, at ¶ 11. The Committee may wish to discuss whether its proposed amendment to Rule 4(c)(3) is consistent with the court's reasoning in Ballensky.
A copy of Rule 4, with amendments as proposed by the Committee, is attached.