RULE 16. PRETRIAL CONFERENCES, SCHEDULING, MANAGEMENT
(a) Purpose of a Pretrial
Conference. The In any action, the court
in its discretion may, and upon the occurrence of
when any of the triggering events specified
in subdivision Rule 16 (b) , occur must,
direct order the attorneys for the parties and any
unrepresented self-represented parties to appear before
it in person, telephonically, or by
other electronic means, for a conference one or more pretrial
conferences in advance of trial
for such purposes as:
the disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation;
the settlement of the case; and
(6) discussing the desirability of using
an alternative dispute resolution
and planning; Triggering Events.
(1) Triggering Events. The court must conduct a pretrial conference
and enter an for the
purpose of entering a scheduling order to schedule and manage the case under the
(1)(A) if more than six months have passed
since filing of the summons and complaint or
answer without final disposition of the case or filing of a dispositive motion;
(2)(B) if a Rule 40(e) notice has been issued
and any response to the notice contained a
request that the case be left open; or
(2)(C) if any party makes a written request for a
pretrial conference to enter a scheduling
order and planning conference.
(c) (2) When Conference Held. The scheduling and
planning pretrial conference must be
held within 60 days of the triggering event.
(d)(c) Subjects Attendance and Matters
for Consideration at a Pretrial Conferences
(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone or other means to consider possible settlement.
(2) Matters for Consideration. At any pretrial conference,
under this rule consideration may
be given, and the court may consider and take appropriate action , with
respect to on the
(1)(A) the formulation and simplification of
formulating and simplifying the issues,
including the elimination of frivolous and eliminating claims or
(2)(B) the necessity or desirability and the time for
joinder of joining other parties and of
amendments to amending the pleadings, if necessary and desirable;
(3)(C) the possibility of obtaining admissions
of fact and stipulations about facts and
documents which will to avoid unnecessary proof, stipulations
regarding the authenticity of
documents, and advance rulings from the court and ruling in advance on the
(4)(D) the avoidance of avoiding
unnecessary proof and of cumulative evidence, and
determining limitations or restrictions on the use of testimony under
Rule N.D.R.Ev. 702 of
the North Dakota Rules of Evidence;
(5)(E) determining the appropriateness and timing of
motions for summary adjudication
under Rule 56 and any other motions;
(6)(F) the control controlling and
scheduling of discovery;
(7)(G) any resolving issues relating to
disclosure or discovery of electronically stored
information, including the form or forms in which it should be produced;
(8)(H) the appropriateness and timing of disclosure
of scheduling the identification of
witnesses and documents, the need and schedule for scheduling the
filing and exchanging
exchange of any pretrial briefs, and the date or setting dates
for further conferences and for
(9)(I) the advisability of a preliminary reference
of referring issues to a master for findings
to be used as evidence when the trial is to be by jury;
(10)(J) settlement and the use of settling the
case and using special procedures to assist in
resolving the dispute;
(11)(K) determining the form and
substance content of the pretrial order;
(12)(L) the disposition disposing of
(13)(M) the need for adopting special
procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult legal questions,
or unusual proof problems;
(14)(N) an order for ordering a
separate trial under Rule 42(b) with respect to of a claim,
counterclaim, cross-claim crossclaim, or third-party
claim, or with respect to any particular
issue in the case;
(15)(O) an order directing a party or parties to
present ordering the presentation of evidence
early in the trial with respect to on a manageable issue that could, on
the evidence, be the
basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings
under Rule 52(c);
(16)(P) an order establishing a reasonable limit
on the time allowed for presenting to
(17)(Q) the allocation of allocating
peremptory challenges; and
(18)(R) such other matters as may facilitate
facilitating in other ways the just, speedy, and
inexpensive disposition of the action.
At least one of the attorneys for each party participating in any conference before
have authority to enter stipulations and to make admissions regarding all matters that the
participants may reasonably anticipate may be discussed. If appropriate, the court may
require that a party or its representative be present or reasonably available by telephone in
order to consider possible settlement of the dispute.
(e)(d) Modification Pretrial Orders.
A scheduling order issued under this rule may be
modified by leave of court or as permitted by Rule 29. After any conference under
the court must issue an order reciting the action taken. This order controls the course of the
action unless the court modifies it.
(f)(e) Final Pretrial Conference. Any The
court may hold a final pretrial conference to
formulate a trial plan, including a plan to facilitate the admission of evidence. The
conference must be held as close to the time of trial as is reasonable under
and must be attended by at least one attorney who will conduct the trial for each party and
by any self-represented party. The participants at any such conference shall
formulate a plan
for trial, including a program for facilitating the admission of evidence. The conference must
be attended by at least one of the attorneys who will conduct the trial for each of the parties
and by any unrepresented parties.
(g) Pretrial orders.
After any conference held under this rule, an order must be entered reciting the
taken. This order controls the subsequent course of the action unless modified by a
subsequent order. The court may modify the order following
issued after a final pretrial
conference may be modified only to prevent manifest injustice.
(1) In General. On motion or on its own, the court may issue any just orders, including
those authorized by Rule 37,
party's its attorney:
(A) fails to
obey a pretrial order, (ii) no appearance is made on behalf of a
party appear at
a pretrial conference , ;
a party or party's attorney is substantially unprepared to
participate, or does not
participate in good faith, in the conference ,; or
(iv) a party or party's attorney fails to participate in
good faith, the court, upon motion
of a party or its own motion, may make such orders with regard thereto as are just, and
among others any of the orders provided in Rules 37(b)(2)(B), (C), (D) obey a
or other pretrial order.
(2) Imposing Fees and Costs.
In lieu Instead of or in
addition to any other sanction, the
judge shall require must order the party, or
the its attorney, representing the party or both to
pay the reasonable expense expenses, including attorney fees, incurred
because of any
noncompliance with this rule, including attorney's fees, unless the
judge finds that the
noncompliance was substantially justified or that other circumstances make an award of
Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2000; August 1, 2004; March 1, 2008;____________.
Rule 16 was amended, effective March 1, 2000, to add a new subdivision (a)(6) relating to alternative dispute resolution. Under N.D.R.Ct. 8.8, all parties in civil cases are required to discuss early alternative dispute resolution and must file a statement with the district court regarding participation in ADR.
Rule 16 was amended, effective _______________, 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.
Subdivision (a) was amended and new subdivisions (b), (c) and (e) were added, effective
August 1, 2004, to incorporate a mechanism to trigger
scheduling and planning
a pretrial conference when certain events occur in an action.
Subdivision (d) was amended, effective March 1, 2008, to add issues related to electronically stored information to the list of possible subjects for discussion at a pretrial conference.
Subdivision (d) was amended, effective March 1, 1996, to follow the 1993 amendment to Rule 16(c), Fed.R.Civ.P.
Subdivision (h) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of ____________________; April 24-25,
2008, pages 25-26; October 11-12, 2007, page 3; September 18-19, 2003, pages 11-18;
24-25, 2003, pages 26-30; May 6-7, 1999, pages 7-8; January 28-29, 1999, pages 7-12;
January 26-27, 1995, page 10; September 29-30, 1994, pages 22-23; April 20, 1989, page
2; December 3, 1987, page 11; April 26, 1984, pages 26-28; January 20, 1984, pages 18-23;
September 18-19, 1980, pages 12-13; September 20-21, 1979, page 11;
16 , Fed.R.Civ.P.