TO: Joint Procedure Committee
FROM: Andy Forward
DATE: March 30, 2010
RE: Rule 62.1, N.D.R.Civ.P., Indicative Ruling 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 62.1 is integrated with the parallel proposed new Appellate Rule 12.1. Rule 62.1 codifies and makes consistent practices followed in almost all circuits when a motion is made regarding a matter that the district court is in a better position to determine than the court of appeals, but the district court judge cannot rule on the motion because an appeal has been filed and jurisdiction invested in the court of appeals. The district court may defer ruling, deny the motion, or either indicate that it would be inclined to grant the motion if the case were remanded (the so-called indicative ruling) or state that the motion raises a substantial issue. Requests for indicative rulings typically arise when a party files a Rule 60(b) motion after an appeal has been filed. The procedure facilitates cooperation between the district court and the court of appeals, enabling them to determine whether it is better to decide the appeal before deciding the motion. A party must notify the court of appeals if the district court states that it would grant the postjudgment motion or that the motion raises a substantial issue.
Proposed Rule 62.1 is attached along with a copy of Fed.R.Civ.P. 62.1.