TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 4, N.D.R.Civ.P., Persons Subject to JurisdictionProcessService
At the January meeting, Mr. Kapsner suggested that the Committee take a look at N.D.R.Civ.P. 4(c), specifically the language dealing with demand for filing a complaint. Mr. Kapsner suggested the provision was unclear, particularly in its application to cases with multiple parties.
Staff reviewed the provision and prepared proposed amendments, which are attached.
First, staff recommends the Committee consider changing N.D.R.Civ.P. 4 (c)(2). This paragraph allows a summons to be served without a complaint. It then sets out a fairly complex procedure that a party can use to demand service of the complaint. Paragraph 4(c)(3) on demand for filing seems to have been based on this paragraph.
Paragraph 4(c)(2)'s language has been part of Rule 4 since it became effective in 1957. It was not derived from the federal rule but was taken from N.D.R.C. § 28-0504. The provision made sense in the revised code daysunder N.D.R.C. § 28-0702 the deadline for an answer was 30 days after the complaint was served. Under N.D.R.Civ.P. 12(a), however, the answer deadline is 20 days after the summons is served. Allowing a summons to be served without a complaint and having an answer deadline based on service of the summons does not seem fair to defendants. Committee members, however, may have insight into reasons why allowing the summons to be served without the complaint is desirable.
Three of the four other states in which actions commence with service of summonsConnecticut, Minnesota, and New Hampshirerequire service of the complaint with the summons. On the other hand, South Dakota allows service of a summons without a complaint under S.D.C.L. 15-6-4, a provision nearly identical to 4(c)(2).
Staff has prepared a proposed amendment to 4(c)(2) based on Minn.R.Civ.P. 3.02. The proposed language would require the complaint to be served with the summons except when service is by publication. Rule 4(e)(2) already requires filing of the complaint when there is service by publication.
Staff has also prepared proposed amendments to 4(c)(3).
Based on Mr. Kapsner's suggestion, proposed language indicating that a demand for filing the complaint made by one party applies to all parties is added to paragraph.
A further amendment is proposed to clarify that, when a party is represented by an attorney, service of the demand under N.D.R.Civ.P. 5(b) is appropriate.
The draft proposal with amendments is attached.