TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 10, 2012
RE: Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers
Justice Maring has requested on behalf of the Supreme Court that the Committee discuss proposed changes to Rule 5 that would require a party seeking to file a summons and complaint or other initiating pleading to also provide proof of service under Rule 4 that would be filed at the same time.
Rule 3.1, which is the next agenda item, requires that proof of service be attached to documents that are filed. The Court has been informed that some clerks of court have been filing documents that do not have the proof of service attached to them. There appears to be at least one district where the clerks have been instructed to file all documents they receive without evaluating the documents' conformity to the filing rules.
The Court recently addressed a matter where the complaint was not served on either of the defendants but instead presented to the clerk of court for filing with a request that the clerk serve the complaint. All of the judges in the district had recused and the Court was asked to assign a judge outside of the district to handle the case. The Court concluded that there should be no assignment because the action had not commenced. However, it appeared that the clerk of court filed the complaint even though it had not been served and proof of service had not been provided.
An action does not commence until the summons is properly served under Rule 4, but under some circumstances, a party may make filings with the court prior to commencing an action. A complaint must be filed under Rule 4(e)(2) with an affidavit for service by publication before the summons may be published, but the action does not commence until after publication. A party may seek to perpetuate testimony under Rule 27 prior to initiating an action by filing a verified petition with the court, but this does not commence the action. Under the amendments to Rule 45 that take effect March 1, a party make ask a court to rule on a request for a temporary restraining order before the action is commenced by service.
The proposed amendments to Rule 5 and N.D.R.Ct. 3.1 do not require the clerk to make a legal judgment as to whether service of process was proper. They do require the clerk to require that the person seeking to file the complaint provide proof of service for filing with the complaint.
As discussed in the previous memorandum on Rule 4, additional amendments to Rule 5 have been proposed to incorporate the "demand to file complaint" procedure into Rule 5.
The proposed amendments to Rule 5 are attached.