TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 10, 2012
RE: Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service
Justice Maring has requested on behalf of the Supreme Court that the Committee discuss adding a sentence to Rule 4's explanatory note regarding indicating that "the time of service for an item served by mail or third-party commercial carrier under Rule 4(d) is the time the item is delivered to or refused by the recipient." Similar language already appears in the explanatory note of Rule 6 and the Court believes it would be convenient for this language also to appear in Rule 4.
The Committee will address proposed amendments to Rule 5 related to filing the summons and complaint later in the meeting. In reviewing the proposed amendments to Rules 4 and 5, staff questioned why the provision on forcing the complaint to be filed remains in Rule 4. Originally, Rule 4 did not require the complaint to be served with the summons. Instead, it included this language:
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(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.
The current provision allowing a party to demand the filing of the complaint was added as Rule 4(c)(3) in 1998, which made sense because it followed from Rule 4(c)(2)'s language on demanding a copy of the complaint. Rule 4(c)(2), however, was amended in 2007 to require the complaint to be served with the summons. Now the language on demanding filing of the complaint seems out of place in Rule 4, particularly because Rule 5 otherwise deals with the filing of pleadings.
The Committee may wish to discuss whether the demand to file language should be moved to Rule 5. Rule 4 is extremely lengthy and impenetrable at present and removal of misplaced language may be helpful to people navigating the rule.
Proposed amendments to Rule 4 including additional language for the explanatory note and the proposed deletion and transfer of the demand to file language to Rule 5 are attached. Proposed amendments to Rule 5 adding the demand to file language will be part of the next item on the agenda.