TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 7, 2008
RE: Rule 12, N.D.R.Civ.P., Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on the Pleadings
The Committee considered proposed form and style changes to Rule 12 at the January meeting. The Committee held over the rule because of reservations about two provisions.
First, the Committee was confused about the meaning of new proposed language based on a federal form and style change:
(C) A party shall serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.
This paragraph is apparently an attempt to update this language that is now in the rule:
The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by court, within 20 days after service of the order, unless the order otherwise directs.
The Committee did not object to the proposed update of the language in the first part of the sentence, which seems clear:
(B) A party shall serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.
The main problem with the proposed language in paragraph (C) seems to be the words "reply to an answer" because the reply would not necessarily be to "an answer" but to "a counterclaim in the answer."
Staff has revised the language in the proposal as follows:
(C) A party shall serve a reply within 20 days after being served with an order to reply, unless the order specifies a different time.
The Committee may wish to discuss the circumstances under which a court might be required to order the sort of reply mentioned in this proposed language. If such orders are not generally issued, it is possible that the paragraph is unnecessary.
The Committee also questioned whether subdivisions (i) and (j) relating to an offer of fixed damages in a contract case should be retained. Staff researched the issue and was unable to find any case law on offers of fixed damages or any cases referencing N.D.R.C. 28-0711 and 28-0712, the statutes on which the subdivisions were based. Staff has attached a copy of the statutes for the Committee's review.
In comparing the language of the statutes and subdivisions (i) and (j) with Rule 68(a) on offers of settlement, it seems that a party could essentially make an "offer of fixed damages" in a Rule 68(a) offer of settlement. A copy of Rule 68 is attached for the Committee's reference. Staff has revised the proposal to delete subdivisions (i) and (j) because Rule 68 seems to offer similar relief.
The amended Rule 12 proposal is attached.