RULE 5. SERVICE AND FILING OF PLEADING AND OTHER PAPERS
(a) ServiceWhen 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) ServiceHow 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 it did not reach the person to be served; or
(G) delivering it by any other means that the person consented to in writing.
(c) ServiceNumerous defendants. In any action in which there are unusually large
numbers of defendants, the court, upon motion or of its own initiative, may order that the
service of the pleadings of the defendants and the replies thereto need not be made as
between the defendants, and that any cross-claim, counterclaim, or matter constituting an
avoidance or affirmative defense contained therein shall be deemed to be denied or avoided
by all other parties and that the filing of any such pleading and service thereof upon the
plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served
upon the parties in such manner and form as the court directs.
(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) The summons and complaint, or other initiating pleading, must be filed before a
subpoena may be issued. The plaintiff shall serve notice of filing the complaint or initiating
pleading upon the defendant or respondent. Within a reasonable time after service of the
notice of filing the complaint or initiating pleading, the defendant or respondent shall file
the answer and notify the plaintiff of the filing. Unless otherwise provided by statute, these
rules or by order of the court, all pleadings, affidavits, bonds and other papers in an action
must be filed with the clerk. A party may not file discovery materials with the clerk unless
the materials are to be submitted to the court for disposition of a pending motion, the court
orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the
papers or exhibits pending completion of the case. A party certifying that safekeeping is
necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed
depositions, interrogatories, requests for admission, requests for interrogatories, requests for
production of documents, and answers and responses thereto, to the filing party upon final
disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal. If
the filing party does not claim a filed document within sixty (60) days after being notified
to do so, the clerk may dispose of the document as the court by order may direct. The clerk
shall take a receipt for all documents returned.
(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, or other initiating pleading, must be filed before a subpoena may be issued.
(B) The plaintiff must serve notice of filing the complaint or initiating pleading on the defendant or respondent.
(C) 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 sixty (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.
(2) (5) Papers to be Used on Hearing. Unless otherwise directed by the court, All all
affidavits, notices, and other papers designed to be used upon on the hearing of a motion or
order to show cause shall must be filed at least 24 hours before the hearing unless otherwise
directed by the court.
(3) (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. forthwith and if
If the order is not obeyed, the court may order them to be regarded as stricken and their
service to be of no effect ineffective.
(4) (7) Rejection. The clerk must not accept reject for filing any document that adds
a party to an action or proceeding without an order of the a court order or unless under Rule
13 or Rule 14. The clerk shall must endorse on the document a notation that the document
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
the request of a filing party's request the
same, any an original pleading or paper in any civil action or proceeding, which by law is
required to be filed in the office of the clerk of court's office in which such where the action
or proceeding is pending, may be removed from the files for the purpose of serving the same
it either within inside or without outside the state but shall must be returned thereto without
(f) Proof of Service. Proof of service under this rule
may be is made as provided in
Rule 4 or by the an attorney's or court personnel's certificate of an attorney or court
personnel showing that service has been was made under subdivision (b).EXPLANATORY NOTE
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; _______________.
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 unrepresented 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.Ct.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.
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 _______________, 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 ___________________; 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.
Superseded: N.D.R.C. 1943 §§ 28-0511, 28-0630, 28-2810, 28-2811, 28-2812, 28-2813, 28-2814, 28-2819, 28-2820, 28-2821, 28-3005, 31-0510
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. 6.4 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and