TO: Joint Procedure Committee
FROM: Andy Forward
DATE: September 10, 2009
RE: Rule 28, N.D.R.App.P., Briefs
Staff has prepared amendments to Rule 28 based on a request from the North Dakota Supreme Court. The proposed amendment will require a party to brief the appropriateness of a district court's grant of a certification under N.D.R.Civ.P. 54(b) when the appeal is brought as a result of the certification.
Under N.D.R.Civ.P. 54(b), the district court is authorized to enter a final judgment adjudicating fewer than all of the claims of all of the parties if the court expressly determines there is no just reason for delay and expressly directs the entry of judgment. Brummund v. Brummund, 2008 ND 224, ¶ 5, 758 N.W.2d 735. The North Dakota Supreme Court has "cautioned that certification under Rule 54(b) should not be routinely granted, but is reserved for those cases involving unusual circumstances where failure to allow an immediate appeal would create demonstrated prejudice or hardship." Id. at ¶ 6. Presumably, a party will have to argue there were unusual circumstances that made the grant of a Rule 54(b) certification proper.
The proposed amendment to Rule 28 is attached.