TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: August 31, 2011
RE: Rule 16, N.D.R.Civ.,Pretrial Conferences; Scheduling; Management
While reviewing the form and style amendments to the Rules of Civil Procedure, staff came across a significant error in the amended version of Rule 16. Somehow an entire paragraph disappeared from the rule. Staff brought this issue to the attention of the Supreme Court, which has referred the rule to the Committee.
In the 2010 rule, paragraph (b)(2) provided that a pretrial conference would be triggered: "if the summons and complaint or answer was served more than six months before filing and ninety days have passed since filing without final disposition of the case or filing or a dispositive motion."
In the amended 2011 rule, this language was dropped and the other paragraphs that surrounded it were renumbered, leaving no indication of its absence. While this suggests that the paragraph was intentionally removed, either through action of the Court or the Committee, staff was not able to find any record discussing its removal in the Committee minutes and the Supreme Court Clerk was not able to find anything about it in the Court's minutes.
The rule was reorganized under the form and style amendments and the triggering events are now listed as subparagraphs under paragraph (b)(1). This paragraph should have been included as subparagraph (b)(1)(B). It appears that the paragraph was inadvertently dropped during the revision process. A version of Rule 16 that would restore the dropped language is attached.