TO: Joint Procedure Committee
FROM: Andy Forward
DATE: March 30, 2010
RE: Rule 12.1, N.D.R.App.P., Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal
Staff has drafted new Rule 12.1 based on the new federal rule, which was adopted on December 1, 2009. New Rule 12.1, which is coordinated with new Civil Rule 62.1, provides a clearly stated and consistent procedure for a party to request an “indicative ruling” on a motion that the district court lacks authority to grant because of a pending appeal. Many courts follow a variation of this practice but there is no clear or consistent statement in the rules. The new appellate rule facilitates the remand to the district court for a ruling on the motion when the district court has indicated that it would grant the motion if the court of appeals remanded for that purpose or that the motion raises a substantial issue. The procedure ensures proper coordination of proceedings dealing with indicative rulings in the district court and court of appeals. Unless the court of appeals expressly dismisses the appeal, it retains jurisdiction despite the remand and may consider the appeal even after the district court has granted relief on remand. The proposed new rule is integrated with new Civil Rule 62.1.
Proposed Rule 12.1 is attached along with a copy of Fed.R.App.P. 12.1.