RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS(a) Service--When required.
(1) In general. Other than service of a summons and complaint under Rule 4, each of the following papers must be served under this rule on every party, unless the rules provide otherwise:
(A) an order, unless the court orders otherwise;
(B) a pleading served after the original summons and complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;
(C) a discovery paper required to be served on a party, unless the court orders otherwise;
(D) a written motion, except one that may be heard ex parte; and
(E) a written notice, appearance, demand, or offer of judgment, or any similar paper; and
(F) every paper filed with the clerk or submitted to the judge.
(2) If a party fails to appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.
(3) Seizing property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an answer, claim, or appearance must be made on the person who had custody or possession of the property when it was seized.
(b) Service -- How made.
(1) Serving an attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. If an attorney is providing limited representation under Rule 11(e), service must be made on the party and on the attorney for matters within the scope of the limited representation.
(2) Service in general. A paper is served under this rule by:
(A) handing it to the person;
(B) leaving it:
(i) at the person's office with a clerk or other person in charge, or, if no one is in charge, leaving it in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(C) mailing it to the person's last known address, in which event service is complete upon mailing;
(D) sending it by a third-party commercial carrier to the person's last known address, in which event service is complete upon deposit of the paper to be served with the commercial carrier;
(E) if no address is known, on order of the court by leaving it with the clerk of the court;
(F) sending it by electronic means if the person consented in writing, in which event service is complete on transmission, but is not effective if the serving party learns that is did not reach the person to be served; or
(G) delivering it by any other means that the person consented to in writing.
(c) Serving numerous defendants.
(1) In general. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:
(A) defendants' pleadings and replies to them need not be served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.
(2) Notifying parties. A copy of every such order must be served on the parties as the court directs.
(1) In general. Unless a statute, these rules, or court order provides otherwise, all papers in an action must be filed with the clerk.
(2) Initiating pleading.
(A) The Summons and Complaint.
(i) The summons and complaint, or other initiating pleading, must be filed before a subpoena may be issued. A party seeking to file an initiating pleading must provide proof that the pleading was served under Rule 4. The proof of service must be filed with the initiating pleading.
(B) (ii) The plaintiff must serve notice of filing the complaint or initiating pleading on the
defendant or respondent.
(iii) The defendant may demand that the plaintiff file the complaint.
- Service of the demand must be made under Rule 5(b) on the plaintiff's attorney or under Rule 4(d) on the plaintiff if the plaintiff is not represented by an attorney.
- In cases with multiple defendants, service of a demand by one defendant is effective for all the defendants.
- If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void.
- The demand must contain notice that if the complaint is not filed within 20 days, service of the summons will be void, unless, after motion made within 60 days after service of the demand for filing, the court finds excusable neglect.
(iv) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).
(C) (B) The Answer. Within a reasonable time after service of the notice of filing the
complaint or initiating pleading, the defendant or respondent must file the answer and notify
the plaintiff of the filing.
(3) Discovery materials. A party must not file discovery materials with the clerk unless:
(A) the materials are being submitted to the court for disposition of a pending motion;
(B) the court orders them to be filed; or
(C) a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending case completion, in which event the party must state the reasons safekeeping is necessary.
(4) Return of discovery materials.
(A) The clerk shall return the following documents to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal:
(iii) requests for admission;
(iv) requests for interrogatories;
(v) requests for production of documents; and
(vi) answers and responses to the above documents.
(B) If the filing party does not claim a filed document within 60 days after notification to do so, the clerk may dispose of the document as directed by court order.
(C) The clerk must take a receipt for all documents returned.
(5) Papers to be used on hearing. Unless otherwise directed by the court, all affidavits, notices, and other papers designed to be used on the hearing of a motion or order to show cause must be filed at least 24 hours before the hearing.
(6) Failure to comply. If a party fails to comply with this subdivision, the court, on motion of any party or its own motion, may order the papers to be filed. If the order is not obeyed, the court may order them to be regarded as stricken and their service to be ineffective.
(7) Rejection. Except as otherwise provided under Rules 13, 14, or 15, the clerk must reject for filing any document that adds a party to an action or proceeding without a court order. The clerk must endorse on the document a notation that it is rejected for filing under this rule and return the document to the person who tendered it for filing.
(e) Removal of pleadings for service. Upon a filing party's request, an original pleading or paper in any civil action, which by law is required to be filed in the clerk of court's office where the action is pending, may be removed from the files for the purpose of serving it either inside or outside the state but must be returned without delay.
(f) Proof of service. Proof of service under this rule is made as provided in Rule 4 or by an attorney's or court personnel's certificate showing that service was made under subdivision (b).
Rule 5 was amended effective 1971, July 1, 1981; March 1, 1986; January 1, 1988; March 1, 1990; March 1, 1992, on an emergency basis; March 1, 1994; January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2003; March 1, 2008; March 1, 2009; March 1, 2011.
Rule 5 applies to service of papers other than "process." In contrast, Rule 4 governs civil jurisdiction and service of process. When a statute or rule requiring service does not pertain to service of process, nor require personal service under Rule 4, nor specify how service is to be made, service may be made as provided in Rule 5(b).
Subdivision (a) was amended, effective March 1, 2008, to improve organization and to make the subdivision easier to understand.
Paragraph (b)(1) was amended, effective March 1, 2009, to make it clear that, when an attorney has served notice of limited representation under Rule 11(e), service of papers on the attorney is not required except for papers within the scope of the limited representation. Rule 5, Rule 11 and N.D.R.Ct. 11.2, were amended to permit attorneys to assist otherwise self-represented parties on a limited basis without undertaking full representation of the party.
Paragraph (b)(2) was amended, effective March 1, 2009, to provide for service by electronic means and to improve organization. Parties seeking to serve papers by electronic means must consult N.D.Sup.Crt.Admin. Order 16 for electronic service instructions.
Subdivision (b) was amended, effective March 1, 1999, to permit service via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a "third-party commercial carrier" means the carrier may not be a party to nor interested in the action, and it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as or provide its own commercial carrier service with service complete upon deposit. In addition, the phrase "commercial carrier" does not include electronic delivery services.
Paragraph (d)(1) was amended, March 1, 2008, to delete a reference to the note of issue and certificate of readiness.
Subparagraph (d)(2)(A) was amended, effective______________, to require that proof of service be provided and filed by a party seeking to file an initiating pleading. Under Rule 3, an action is commenced on service of the initiating pleading, not on filing. Unless a rule specifically provides otherwise, service under Rule 4 must be accomplished before any pleadings in an action may be filed.
Subparagraph (d)(2)(A) was amended, effective______________, to include new language allowing the defendant to demand filing or the complaint or to file the complaint itself. This language was transferred from Rule 4.
Subdivision (f) was amended, effective March 1, 2003, to permit proof of service to be made by court personnel as well as by an attorney. Proof of service may also be made in the same manner as provided by Rule 4(i).
Rule 5 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of ___________________; September 24-25, 2009, pages 12-13; April 24-25, 2008, pages 18-21; January 24, 2008, pages 2-7; October 11-12, 2007, pages 20-27; April 26-27, 2007, pages 19-22; September 27-28, 2001, pages 11-12; April 30-May 1, 1998, page 3; January 29-30, 1998, page 18; September 26-27, 1996, pages 16-17, 20; September 23-24, 1993, pages 19-20; April 29-30, 1993, pages 20-21; November 7-8, 1991, page 3; October 25-26, 1990, pages 10-12; April 20, 1989, page 2; December 3, 1987, page 11; May 21-22, 1987, pages 17-18; February 19-20, 1987, page 4; September 18-19, 1986, page 8; November 30, 1984, pages 26-27; October 18, 1984, pages 8-11; November 29-30, 1979, page 2; September 20-21, 1979, pages 4-5; Fed.R.Civ.P. 5.
Cross Reference: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction -- Process -- Service), N.D.R.Civ.P. 45 (Subpoena), and N.D.R.Civ.P. 77 (District Courts and Clerks); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.Ct. 3.1 (Pleadings); N.D.R.Ct. 6.4 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and Decrees).