MINUTES OF MEETING
Joint Procedure Committee
September 27-28, 2001
TABLE OF CONTENTS
Adoption of Amendments to N.D.R.App.P. and N.D.R.Ct. 3
Hearing on Proposed Amendments to N.D.R.Civ.P., N.D.R.App.P., and N.D.R.Ct. 3
Rule 26, N.D.R.App.P. - Computing and Extending Time 4
Rule 27, N.D.R.App.P. - Motions 6
Rule 28, N.D.R.App.P. - Briefs 7
Rule 3, N.D.R.Civ.P. - Commencement of Action 9
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction--Process--Service 11
Rule 5(f), N.D.R.Civ.P. - Proof of Service 11
Rule 35.1(a), N.D.R.App.P. - Affirmance by Summary Opinion 12
Rule 23, N.D.R.Civ.P. - Class Actions 13
Rule 55(a)(3), N.D.R.Civ.P. - Default 15
Rule 7.1(d), N.D.R.Ct. - Judgments, Orders and Decrees 17
Rule 23, N.D.R.Civ.P. - Class Actions 18
Rule 3, N.D.R.Civ.P. - Commencement of Action 19
Rule 29, N.D.R.App.P. - Brief of an Amicus Curiae 19
Rule 30, N.D.R.App.P. - Appendix to the Briefs 22
Rule 31, N.D.R.App.P. - Serving and Filing Briefs 23
Rule 32, N.D.R.App.P. - Form of Briefs, Appendices, and Other Papers 23
CALL TO ORDER
The meeting was called to order at approximately 1:00 p.m., on September 27, 2001, by Justice Dale V. Sandstrom, Chair.
ATTENDANCE
Present:
Justice Dale V. Sandstrom
Honorable Bruce E. Bohlman (September 27, 2001 only)
Honorable Donovan Foughty
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Honorable Gail Hagerty
Honorable Lawrence A. Leclerc (September 27, 2001 only)
Honorable David W. Nelson
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean (September 27, 2001 only)
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Absent:
Honorable M. Richard Geiger
Honorable Ronald L. Hilden
Ms. Sherry Mills Moore
Mr. James T. Odegard
Mr. Stephen W. Plambeck
Staff:
Tom Tudor
Colette Bruggman
Kim Hoge
PRELIMINARY MATTERS
The Committee was given an update on the status of Gary Raedeke. A card was circulated to be signed and delivered to Gary.
Tom Tudor, temporary staff counsel, was introduced to the Committee.
The Committee was advised by Justice Sandstrom that Kim Hoge, who has assisted with preparing materials and making arrangements for the meeting, has also been putting the Committee's minutes on the Court's Internet web site.
Justice Sandstrom reminded the Committee of the Inns of Court dinner at the Municipal Country Club on Thursday evening beginning at 6:00 p.m., with a social hour.
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The Committee was advised by Judge Hagerty that the Burleigh County Drug Court would be meeting on Friday morning at 8:30 at the Burleigh County Courthouse.
Justice Sandstrom advised the Committee that the schedule for future meetings will follow the existing pattern of holding the January and September meetings in Bismarck and the April meeting in Fargo. A schedule was distributed to the Committee with the agenda material.
APPROVAL OF MINUTES (PAGES 1-10 OF THE AGENDA MATERIAL)
Mr. Sturdevant MOVED to approve the minutes as distributed. Mr. Kuntz seconded. The motion CARRIED.
ADOPTION OF AMENDMENTS TO N.D.R.App.P. AND N.D.R.Ct. (PAGES 11 OF THE AGENDA MATERIAL)
Staff reported to the Committee that the Supreme Court approved the amendments to N.D.R.App.P. 4, 10, 31, and 32; and N.D.R.Ct. 8.5 as recommended by the Committee by its Petition for Amendments filed May 8, 2001. The Court's order approving the amendments was dated May 23, 2001, and the amendments were effective August 1, 2001, subject to comment. No comments were received and by its order dated July 11, 2001, the Court approved the amendments on a final basis, effective August 1, 2001.
HEARING ON PROPOSED AMENDMENTS TO N.D.R.Civ.P., N.D.R.App.P., AND N.D.R.Ct.
Staff reported to the Committee that the Supreme Court has scheduled a hearing at 10:45 a.m., on Tuesday, October 23, 2001, in the Ralph J. Erickstad Courtroom of the Supreme Court on the proposed amendments to N.D.R.Civ.P. 12, 37.1, 77, and 82; N.D.R.App.P. 42; and N.D.R.Ct. 2.2 and 3.2.
Justice Sandstrom mentioned that Colette Bruggman, the Court's Chief Deputy Clerk, was at the Meeting to provide assistance to the Committee with respect to its work on the Rules of Appellate Procedure.
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RULE 26, N.D.R.App.P. - COMPUTING AND EXTENDING TIME (PAGES 12-17 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to N.D.R.App.P. 26.
Judge Leclerc MOVED to recommend to the Supreme Court proposed N.D.R.App.P. 26 on pages 15-17 as part of the appellate rules package. Judge Bohlman seconded.
The Committee discussed the definition of the term "commercial carrier" in subdivision (c). It was suggested that the same definition be used as in the Rules of Civil Procedure. It was pointed out that a definition of that term appears in the explanatory notes for both N.D.R.Civ.P. 4 and 5. Judge Leclerc MOVED to insert in the explanatory note to Rule 26, on page 17, following line 48, the following statement from the explanatory note for Rule 5:
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.
Mr. Kapsner seconded the motion. The motion CARRIED unanimously.
Ms. Bruggman requested consideration of an additional amendment on page 16, line 30. A new sentence would be added following the period on line 30, as follows: "A request for an extension must be made within the time originally prescribed or within an extension previously granted." This language is taken from N.D.R.App.P. 10(d) - Extension of Time.
A question was raised whether the proposed amendment was inconsistent with the language on line 28, which authorizes the court to permit an act to be done after the time prescribed by these rules or when its order expires. Other Committee members also stated the language appeared to create an inconsistency.
A suggestion was made to add the proposed language on line 29, following "expires": ",provided the request for extension must be made within the time originally prescribed or within an extension previously granted."
A comment was made that there is a fundamental question involved, which is whether the Committee wants to preclude the Court from ever granting or entertaining a motion or an action after the time has expired.
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One member felt the proposal would help the clerks eliminate late motions and filings.
A comment was made that the proposal would clarify the issue, but that the fundamental question raised earlier was still valid.
Ms. Schmitz moved to add the following proposed language on line 29, following "expires": ",provided the request for extension must be made within the time originally prescribed or within an extension previously granted." Judge Foughty seconded.
Discussion included a comment that the proposal was too harsh, that the rules should not be obstacles to getting to court. A suggestion was made to place a statement in the explanatory note. Following further discussion, the motion FAILED 3 to 11.
Mr. Kapsner MOVED to include the following statement in the explanatory note to Rule 26: "It is expected that a request for an extension of time under subdivision (b) be made within the time originally prescribed or within an extension previously granted." This statement would be inserted on page 17, line 44. Judge Leclerc seconded. Without objection, it was agreed that "It is expected that a" be deleted and replaced with "Any" and "should" be inserted before "be made." The statement would then read: " Any request for an extension of time under subdivision (b) should be made within the time originally prescribed or within an extension previously granted." The motion CARRIED 12 to 2.
It was pointed out that the proposed subdivision (b) is essentially the same as the current subdivision (b), with the deletion of the phrase "for good cause shown upon motion." This was followed by a question concerning the purpose of the proposed change. The response was that the changes follow the federal changes and would permit, but not require, a motion.
Judge Sandstrom commented that the Committee would have the opportunity to go back to any of the appellate rules approved as part of the appellate rules package before the entire package would be presented to the Court for approval.
Action on the main motion to recommend to the Supreme Court proposed N.D.R.App.P. 26, on pages 15-17, as amended, as part of the appellate rules package CARRIED.
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RULE 27, N.D.R.App.P. - MOTIONS (PAGES 18-31 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 27.
Mr. McLean MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendment to N.D.R.App.P. 27, on pages 25-31. Ms. Schmitz seconded.
Mr. McLean MOVED to amend the motion to include deletion of line 27, on page 26, and renumber the lines. Mr. Kuntz seconded. It was questioned whether this would be consistent with the civil rules requiring a notice of motion. The response was that a notice would not be required, but would be allowed if included. Following discussion, the motion CARRIED.
It was pointed out that similar language is included in the explanatory note. Without objection, the Committee agreed to delete the phrase ", together with a notice of motion" on page 30, lines 107-108.
An opinion was expressed that this matter, proposed Rule 27, is just another example of blindly following the federal lead to "fix" something that works. The Committee members further stated that this would be great for the clerks, and that they would be able to "dump" all the pro se applications "because this is too complicated for a pro se."
A question was asked why the existing language on line 31, page 26, providing that motions authorized by Rules 8, 9, and 41 "may be acted upon" has been changed to "may be granted." The comment was that this would take away the right to deny a motion before the time runs. It was pointed out that Rules 8, 9, and 41, referenced in this provision, are substantive rules and that procedural rules are addressed under subdivision (b) of Rule 27, beginning on line 43, page 27. Subdivision (a) covers substantive motions and subdivision (b) covers procedural motions. Under the proposed rule, procedural motions may be denied at any time after filing but substantive motions may not be denied until the time for a response has expired.
One member said (a)(3)(B) may be read to require the Court to give notice if it intends to grant a motion before the time runs but that the court may deny a motion at any time without notice.
It was questioned why the Committee should be recommending changes to Rule 27 simply to conform to the federal rule if there are no problems with existing Rule 27. Ms. Bruggman added that her office has received no questions or complaints concerning the
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existing rule and, other than stylistic changes, would prefer that no substantive changes be made to Rule 27. The proposed changes would require additional time and expense with respect to appellate practice.
Action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 27, on pages 25-31, as amended, FAILED.
RULE 28, N.D.R.App.P. - BRIEFS (PAGES 32-46 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed changes to Rule 28, and pointed out these changes to be made in the agenda material: on page 39, line 13, overstrike "supreme" and on page 41, line 43, delete "(8)" and insert "(10)."
Mr. McLean MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 28, on pages 39-46. Ms. Schmitz seconded.
In response to a question, Justice Sandstrom stated that it was his opinion that the organizational and stylistic changes proposed in the amendments would be helpful to the Court.
It was pointed out that the requirement on page 40, line 34, to include a statement of the applicable standard of review for each issue is a new provision which is a substantive change. In response to a question, Ms. Bruggman said that a brief which did not include the standards of review for each issue would probably not be rejected. Justice Sandstrom commented that identifying the standards of review is probably one of the most helpful ways an attorney can analyze the chances for success or failure of the brief.
A judicial Committee member added that, with respect to the many times he has sat with the court, he has never seen a brief rejected, however "bad" it might be. Ms. Bruggman stated that, at this time, the only reason a brief will be returned is that if it is too long. The clerk's staff also check for cite form, including parallel cites, and will require a brief to be corrected if the form is incorrect
Justice Sandstrom was asked whether including the standard of review for each issue will truly be helpful to the Court. Justice Sandstrom responded that it is helpful to have the standard of review identified because the argument is then related to that standard.
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It was observed that, through page 98 of the agenda material, all that is being done is to federalize the state rules. The Committee member making this observation stated that this is frustrating--changes should not be made unless specific things can be identified that ought to be changed.
Justice Sandstrom reminded the Committee that they did agree to go through the rules in this manner over a year ago, reviewing both substantive and stylistic changes.
Ms. Bruggman pointed out that with respect to lines 22-23, on page 40, the current rule requires a brief to state whether the facts are in dispute. This requirement is being deleted-line 21, page 39. She believes this is helpful to the Court and should remain in the rule.
Judge Leclerc MOVED that the deleted full sentence on page 39, line 21 - "If the facts are in dispute the brief must so state;" - be inserted as a new paragraph (7) following line 23, on page 40, and that the paragraphs be renumbered accordingly. Judge Simonson seconded. The motion CARRIED.
Ms. Bruggman pointed out that lines 24-26, on page 40, make mandatory what is now discretionary-inclusion of a summary of the argument. If a summary is included, it makes a brief longer and is also included in the word limitation requirement.
Judge Hagerty MOVED that lines 24-26, on page 40, be deleted and the paragraphs be renumbered accordingly. Mr. Kapsner seconded. The motion CARRIED.
Ms. Bruggman next pointed out that, with respect to line 53, page 41, the current rule requires an appellant to file a "single" reply brief. The proposed change removes this limitation and might allow two reply briefs if, for example, there are two appellees. Without objection, the Committee agreed to insert "single" on page 41, line 53, following "a" and before "brief."
Ms. Bruggman then pointed out that the sentence beginning with "An" at the end of line 53, page 41, through "cross-appeal." on line 55 seems to repeat what is already set out in subdivision (h) on page 95. These provisions may not be exactly the same, but they are similar.
The comment was made that the actions by the Committee with respect to this rule so far have been to change the proposed rule to what is in the current rule and no changes would have been necessary if the Committee had let the current rule alone.
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Ms. Schmitz MOVED to delete the sentence on page 41, line 53, beginning with "An" through "cross-appeal." on line 55. Mr. Sturdevant seconded. The motion CARRIED.
The main motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 28, on pages 39-46, as amended, CARRIED.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 98-101 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 3.
A Committee member who also serves as a member of the Public Trust and Confidence Implementation Committee, the group which requested the Committee to consider this change, briefly summarized its reasons. The principal reason for the request is the general concern that lawsuits take too long, with the resulting public perception that lawsuits may go on for years without anything appearing to happen. The general feeling was that cases should be filed and scheduled.
Justice Sandstrom commented that in discussing this proposal with Justice Neumann, the Chair of the Public Trust and Confidence Committee, one of the concerns is that the litigants don't distinguish between what the court may have control over and what the lawyers may have control over. The litigants see the clock running as soon as the action is begun, even though the court may not be aware of the action. Justice Neumann stated to Justice Sandstrom that the greatest sentiment of non-lawyers was that this is a problem with public trust and confidence because of the length of time litigation goes on and the perception that "courts aren't moving this along."
It was pointed out that it is the lawyers "that take the heat" when things don't move fast. The litigant who thinks the case is going too slow can effectively tell that to the attorney. It was also pointed out that there is a significant amount of litigation that moves through the system which gets resolved which would not get resolved if there was a filing requirement, and that the best handling of a case moving forward involves a combination of the lawyers and the court. Further, a lawyer who thinks the case is moving too slowly can file for a Rule 16 conference.
It was then pointed out by a judicial Committee member that part of the problem with respect to this concern has been eliminated by the adoption of N.D.R.Ct. 8.3 because about 24% of "our" cases are divorces. Also, N.D.R.Civ.P. 45 requires filing before a subpoena
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may be issued. The comment was also made that the district judges are not necessarily in opposition to this proposed amendment but that they do not support the change either: adopting the change would not necessarily mean early judicial intervention. A district court generally may not get involved in a case until a note of issue is filed.
It was mentioned that neither Minnesota nor South Dakota require the filing of a complaint to commence an action.
The point was made that this is the fourth time this issue has been before the Committee since 1998. There has always been a decent reason for not requiring filing--the primary reason being that there are a considerable number of matters which get resolved without litigation which would not otherwise be resolved if it was necessary to file a complaint. Also, a defendant has the option of compelling the filing of a complaint under Rule 4. This Committee member thought the bar as a whole would favor retaining the current Rule 3.
It was pointed out that the fact there is a public perception is not without some basis in fact, and that there are attorneys who are not diligent in regard to moving a case along, and attorneys who may tell their clients it is the court's fault that the action is not moving along. To say the rule shouldn't be changed doesn't deal with the perception. This could be addressed, if not by requiring immediate filing, by putting some time limit on when a complaint must be filed.
The comment was made that the only members of the public who would be aware of the change, if adopted, would be the members of the Public Trust and Confidence Implementation Committee, that other members of the public wouldn't know of the change. This wouldn't change the public perception of attorneys.
A further comment was made that this public perception comes from the nature of the question-- "Is the court system too slow?"-- and that the proposed rule isn't going to change that perception. This member would agree that maybe a complaint should be filed within 12 months, or whatever time period is appropriate, after the summons is served.
The statement was made that the courts have the apparent authority to dismiss a case for lack of prosecution if there is no activity. This Committee member gave as an example a case which was dismissed that was ten years old when it reached the district court. It was stated that there isn't that big a problem with cases that have been pending for years but on which nothing is being done. The primary concern for this member is with domestic cases, and the rules address those cases. The case examples given to the Committee are a small percentage of the total cases out there.
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In response, the statement was made that those types of cases, the examples, are major cases which aren't going to be resolved regardless of whether they are filed.
Judge Hagerty MOVED to recommend to the Supreme Court that the proposed amendments to N.D.R.Civ.P. 3, on pages 100-101, be adopted. Judge Bohlman seconded. The motion FAILED 3 to 11.
Judge Foughty MOVED that staff be requested to prepare draft amendments to Rule 3 requiring the filing of a complaint within 12 months after service of a summons. Judge Leclerc seconded. Following further discussion of the consequence of a failure to file and the appropriate time period, the motion CARRIED 8 to 7.
No action was taken on Rule 4 because the proposed amendments to Rule 4 were contingent upon the adoption of the proposed amendments to Rule 3.
RULE 5(f), N.D.R.Civ.P. - PROOF OF SERVICE (PAGES 113-116 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 5(f). The request for this change was submitted to the Committee by Judge Leclerc and Judge Racek. See page 114 of the agenda material.
Judge Leclerc MOVED that the Committee recommend to the Supreme Court the adoption of the amendments to Rule 5(f). Judge Hagerty seconded.
It was explained that this means that when a court reporter sends a document, the reporter can sign a certificate of service.
The question was asked, who are "appropriate court personnel?"
One member asked for clarification concerning the "two thousand pages of paper" referenced in Judge Leclerc's letter to the Committee. Judge Leclerc responded that this would allow court personnel to certify service on the same document rather than on a separate certificate of service, as done when a certificate is prepared by an attorney.
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It was suggested that the term "appropriate" be deleted on lines 6 and 18, page 115. Following discussion and without objection, the Committee agreed to delete the term "appropriate" from these lines.
Staff pointed out that on page 115, lines 17 and 18 should be underlined.
The question was asked where an affidavit of service is authorized to be made by a person other than an attorney, which is standard procedure in practice of this member. Rule 5 seems to require that proof of service be only made by an attorney-Rule 4 concerns only service of process. Following discussion and review of Rule 4, it was agreed that service is addressed in N.D.R.Civ.P. 4(i), (j), and (k), and that Rule 5 authorizes proof of service of pleadings and other papers in the same manner as provided in Rule 4 for proof of service of process.
Action on the motion to recommend to the Supreme Court the adoption of the proposed amendments to N.D.R.Civ.P. 5, on pages 115-116, as amended, CARRIED.
RULE 35.1(a), N.D.R.App.P. - AFFIRMANCE BY SUMMARY OPINION (PAGES 117-119 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 35.1(a).
Judge Leclerc MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 35.1(a), on pages 118-119. Mr. Kapsner seconded.
As a matter of curiosity, it was asked whether there is any appeal which can't come under this rule.
It was also questioned whether the new language on page 118, line 9 should reference the findings of fact rather than the judgment. It was pointed out that a judgment based on findings of fact is addressed in paragraph 2, on line 7, and that in a criminal case there might simply be a judgment with no findings of fact.
Staff pointed out that there are two additional changes that should appear on page 118: in lines 7 and 10, overstrike "trial" and insert "district."
Action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 35.1(a), on pages 118-119, as
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amended, CARRIED.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS (PAGES 120-138 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 23.
Mr. McLean MOVED to recommend to the Supreme Court the adoption of the proposed amendments to N.D.R.Civ.P. 23, on pages 128-138, of the agenda material. Judge Leclerc seconded.
Without objection, the Committee agreed to delete "of North Dakota" on page 133, line 106.
It was explained that the North Dakota's class actions rule is patterned after the Model Class Actions Rule and that only two states, North Dakota and Iowa, have adopted this rule. The rule has worked well for both states. The member added that the model rule was taken from the old federal rule. With that as a brief background, the Committee member went on to say that the biggest deal is getting certified or not certified, and that the first appeal is of little consequence. The problem arises because there are 13 factors to be weighed in certifying a class action. If the Supreme Court, on the first appeal, reverses on two of those factors, there is likely to be an appeal if the district judge certifies again on the remaining 11 factors. This process may be repeated and the litigation may be extended for a number of years. It was stated that the first appeal is the most important and the Supreme Court should exercise its discretion liberally, permitting certification on the first appeal, but that plaintiffs should not have to wait for extended periods of time because of continued subsequent appeals. The speaker concluded by supporting the proposed rule.
The next Committee member commenting on the proposed rule said that he was generally against the proposal. This member was of the opinion that the model rule and the federal rule are on parallel courses, that they don't look much like each other, but that they do tend to have the same outcomes. Continuing, the member commented that it would be inappropriate to take an amendment to the federal rule and incorporate it in the North Dakota rule. The federal amendments do not make sense with the North Dakota model rule. This member agreed with the previous member, stating that the certification order is the dispositive ruling in the action, and that once certification is established, settlement is likely. The member contended that continued appeals should be allowed, and that a better remedy might be not to limit the appeals in any manner but at the same time, to not stay district court proceedings during appeals. Looking at the proposed language, the remedy might be to keep
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the sentence beginning at the end of line 109, on page 133, and ending on line 111, and delete the remainder of the proposed subdivision. The certification issue always has to be resolved by the Supreme Court. If the class is certified the defendant will always appeal, and if the class is denied the plaintiff has to appeal. It's an automatic appeal. The issue of certification has to be resolved before the end of the litigation.
The next member to speak agreed that the proposed amendments should not be adopted for all the reasons mentioned. This Committee member said that to make appeals discretionary with the Court would simply add another layer to the proceedings. The certification question is paramount. The amendment would provide for an application for appeal, not an appeal itself. This member also said there is nothing in the current rule to prevent depositions from being taken during appeals right now. It is being done.
Another member also spoke in opposition to the proposed rule because certification ends the case, so it should not be discretionary with the Supreme Court to hear an appeal. The comment was made that an appeal of a class certification order should be allowed as a matter of right, that there is always an appeal of a certification order.
In response to a question concerning the continuation of proceedings during an appeal, the statement was that there is nothing in the rule to preclude discovery from proceeding during an appeal. The Microsoft litigation was given as an example of a case where discovery is proceeding during an appeal.
Mr. Kapsner MOVED to add a new subdivision (u) consisting of the sentence beginning at the end of line 109, on page 133, and continuing through line 110 and ending with the period on line 111: "An appeal does not stay proceedings in the district court unless the district court or the supreme court so orders ." Mr. McLean seconded.
The Committee agreed, without objection, that Mr. Kapsner's motion should be treated as a substitute motion for the main motion, and would also include deleting the word "RULE" on page 128, line 3.
The Committee also agreed that the proposed new subdivision should be subdivision (t) and that existing subdivision (t) would become subdivision (u).
The point was raised that the new language should clarify that it is only an appeal from an order certifying or refusing to certify an action as a class action or modifying or refusing to modify an order of certification which does not stay proceedings. Without objection, the Committee agreed to include that language in the proposed new subdivision.
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The Committee discussed appropriate language for the title of the new subdivision. "Stay" as a heading was generally agreed upon.
Action on the question of whether to substitute Mr. Kapsner's motion, with the agreed-upon changes, for the main motion CARRIED.
Justice Sandstrom requested that staff prepare appropriate revised language for the explanatory note, consistent with the motion before the Committee, to be considered by the Committee on Friday morning. A further comment was made that staff might also look at the title for the proposed subdivision (u).
It was questioned whether the provision in the proposed amendment requiring an appeal within 10 days after entry of the order should be retained.
Justice Sandstrom declared that final action on N.D.R.Civ.P. 23 would be tabled until Friday morning.
RULE 55(a)(3), N.D.R.Civ.P. - DEFAULT (PAGES 139-149 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 55(a)(3).
Ms. Schmitz MOVED to recommend to the Supreme Court the proposed amendments to N.D.R.Civ.P. 55, on pages 146-149. Mr. Kapsner seconded.
The comment was made that the Committee, over the past 10 years or so, had decided that if it had something important to say, it would not be set out in the explanatory note but would be include in the rule. In that regard, the sentence in the explanatory note, on page 148, lines 62 and 63, indicating that if a moving party intends to submit a motion to the district court on briefs without a hearing, the notice must comply with N.D.R.Ct. 3.2(a), should be in the rule itself rather than in the note. In the alternative, the following language could be added on line 25, page 147, after "motion": ",if any, or comply with N.D.R.Ct 3.2(a)."
The statement was made that it would be better to add the whole sentence. Also, the reference to the time scheduled for a hearing is not necessary.
Following a brief discussion of appropriate wording, Judge Bohlman MOVED to amend the proposed new sentence on page 147, lines 24-25, as follows: " The notice must
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be served with the motion and must comply with the requirements of Rule 3.2 of the N.D.R.Ct." Mr. Kapsner seconded.
Judge Bohlman agreed to delete "the requirements of" from his motion. Without objection, this change was agreed to by the Committee.
It was questioned whether the sentence proposed in the motion would still require a hearing, as referenced in the current rule. In response to a query from Justice Sandstrom whether there was objection to including in the motion the deletion of the phrase beginning on line 23, "at least 8 days before the hearing on the application motion," one of the members indicated that there was an objection.
Judge Hagerty MOVED a substitute motion as follows: beginning on line 23, page 147, delete the language on that line following "served with," all of line 24 and all of line 25, and insert following "served with" "a motion for judgment. The motion must comply with N.D.R.Ct. 3.2." Mr. Kapsner seconded.
A brief description was given concerning some of the Committee's and the Supreme Court's past history concerning Rule 3.2, the result of which has been, in this member's opinion, that the district courts have been allowed to abdicate Rule 3.2. In one court, this has been done because the lawyers want it. In other districts a hearing must be set. The member commented that Rule 3.2 is treated differently from district to district.
Following further discussion of the need to clarify and unify this area of practice, action on the question whether to substitute Judge Hagerty's motion for Judge Bohlman's motion CARRIED. Action on the substitute motion CARRIED 13 to 1.
The question was asked whether the explanatory note should also be changed. In response, it was stated that the language might be okay as long as it also appears in the rule.
Ms. Schmitz MOVED to delete the parenthetical language on 147, line 22 "(or if appearing by representative, the party's representative)." Mr. Kuntz seconded. The motion CARRIED.
Mr. Kapsner MOVED, on page 148, lines 60-63, to delete "notice of" on line 60, to delete the remainder of line 61 following "must," to delete all of line 62, and to delete all of line 63 through and including "must." The remaining language would read:
Rule 55 was amended, effective ______________________. Paragraph (a)(3) was changed to substitute the term "motion" for the term
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"application" and to require that a motion for judgment by default must comply with N.D.R.Ct. 3.2(a).
Mr. Sturdevent seconded. The motion CARRIED.
The comment was made that in Grand Forks some collection attorneys are routinely using a 3.2 motion with no hearing, even though it is pointed out to them that under Rule 3.2 notice must be served with a motion and a party has all the rights of Rule 3.2 when there has been an appearance. It was noted that the language just adopted should make this clear to those attorneys.
Staff pointed out that the underlined sentence on page 148, lines 46 and 47, should be removed. Also, on page 149, line 71, "Papers" should be followed by ")."
Action on the motion to recommend to the Supreme Court the proposed amendments to N.D.R.Civ.P. 55, on pages 146-149 of the agenda material, as amended, CARRIED.
The Chair declared the meeting adjourned until 9:30 a.m., Friday morning, to allow interested Committee members to attend the Burleigh County Drug Court, which convenes at 8:30 at the Burleigh County Court House.
September 28, 2001 - Friday
The meeting was called to order at approximately 9:30 a.m., on September 28, 2001, by Justice Dale V. Sandstrom, Chair.
RULE 7.1(d), N.D.R.Ct. - JUDGMENTS, ORDERS AND DECREES (PAGES 150-154 OF THE AGENDA MATERIAL)
Staff provided an overview to the Committee of the apparent conflict between N.D.C.C. § 28-20-28 and N.D.R.Ct. 7.1(d). Justice Sandstrom pointed out that the proposed resolution of this conflict as set out on page 153, lines 40-41, provides that the rule supersedes the statute.
Professor Kraft MOVED that the Committee recommend to the Supreme Court the proposed amendment to N.D.R.Ct. 7.1, on pages 152-154, of the agenda material. Ms. Schmitz seconded.
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The question was asked whether the Committee is convinced the rule procedure is better than the statutory procedure. It was suggested that it might be possible to reconcile the statute and the rule through an amendment to the rule, and that this be referred to staff for revision.
It was also suggested that one possible reason for proceeding by motion to the court might be to protect an attorney from later being accused of having acted improperly. A further suggestion was that another reason to involve the court might be if the judgment involves a calculation of interest and costs, which might more properly be determined by the court than by the clerk. A concern was raised with respect to the time element involved, particularly with respect to real estate closings, if there is an unsatisfied judgment on the closing date. Filing a motion with the court might cause a delay of one or two weeks or more. The statutory process would allow this to be resolved more expediently.
The Committee discussed whether in fact the statute is superseded by the rule, regardless of the lack of a statement to that effect in the explanatory note. It was suggested that because the two are inconsistent does not necessarily mean that the statute is superseded by the rule. A further suggestion was that it is probably good that there are two ways to proceed.
The comment was made that it is a goal of the Committee to remove procedures such as this from the statute and include them in appropriate rules.
Judge Simonson MOVED to refer this matter to staff for the purpose of incorporating N.D.C.C. § 28-20-28 into Rule 7.1, and to supersede N.D.C.C. § 28-20-28. Mr. Kapsner seconded.
It was suggested that staff should confer with some of the district court clerks in this process, and that Ted Gladden and Jim Ganje might also be appropriate resource persons to discuss this matter with.
Action on the motion to refer this matter to staff CARRIED.
RULE 23, N.D.R.Civ.P. - CLASS ACTIONS (PAGES 120-138 OF THE AGENDA MATERIAL)
Justice Sandstrom announced that the Committee would continue its discussion of Rule 23. Staff handed out material which included the amendments to Rule 23 as approved by the Committee and also a revision of the language in the explanatory note.
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Action on the main motion to recommend to the Supreme Court the proposed amendments to N.D.R.Civ.P. 23, on pages 128-138, as amended, CARRIED.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 98-101 OF THE AGENDA MATERIAL)
Justice Sandstrom announced the Committee would return to its discussion of Rule 3. Staff distributed a memo to the Committee discussing the interplay of Rule 3 and Rule 4 with respect to the filing of a complaint following the service of a summons. The memo asks the question of the Committee whether the remedies provided to a defendant for the filing of a complaint in Rule 4(c)(2) and (3) are adequate or whether the Committee, as approved by motion on Thursday, also wants to add to Rule 3 the requirement that a complaint be filed within 12 months following service of a summons.
It was stated that Rule 3 does need the additional language requiring filing of a complaint within 12 months following service of a summons. A question was raised concerning service as required under Rule 4(c)(3) and (d). Continuing, it was suggested the proposal should be in Rule 4 rather than in Rule 3, and that perhaps a new subpart to Rule 4 should be added similar to the new Rule 3 provision.
RULE 29, N.D.R.App.P. - BRIEF OF AN AMICUS CURIAE (PAGES 47-55 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 29.
Judge Simonson MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 29, on pages 52-55 of the agenda material. Professor Kraft seconded.
The adoption of this proposed rule was urged, with certain changes on lines 43 and 44. The point was made that the term "extraordinary" provides a standard that is difficult to comply with. Also, it was felt that oral argument is vital to an appeal and that the right to oral argument should not be restricted unduly. An opinion was expressed that amicus sometimes will have a better overview of the policy questions facing the court. If properly confined to policy issues, it was felt that the Court would want to hear amicus at oral argument.
Mr. Kapsner MOVED to delete all of line 43, on page 54, following "permission."
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and all of line 44. Ms. Schmitz seconded.
In response to a question, Ms. Bruggman responded that the Court's appellate practice consists primarily of the Attorney General's office. This is because the Attorney General is granted the right of amicus by statute whenever the constitutionality of a statute is called into question.
Justice Sandstrom described to the Committee an instance involving amicus and indicated that, in retrospect, whether the amicus briefs should have been allowed was questionable. Justice Sandstrom indicated there is an administrative concern involving the apportionment of the time to the parties when there is an amicus. How time is fairly handled is the issue.
It was stated that usually a case involving an amicus will be a case that is not an "ordinary" case. Continuing, the speaker stated that the proposed amendment does not address time, but whether an amicus will be allowed to participate in oral argument. The time allotted to an amicus would still be discretionary with the Court.
The Committee discussed briefly whether the rule should include language requiring an amicus to file a motion to participate in oral argument. It was generally felt that this would not be necessary.
Action on the motion to delete the sentence beginning on line 43 and ending on line 44, page 54, CARRIED 11 to 0.
A concern was raised with respect to subdivision (e) on lines 35-39, on page 53. It was stated that the current rule requires the brief to be filed within the time allowed the party whose position is being supported but the proposed language gives an amicus an additional seven days to file a brief. This means less time to respond to the matters raised in the amicus brief and may even require beginning again with respect to a brief, depending on the argument presented in the amicus brief. It was stated that there is no good reason for this change.
Mr. Kuntz MOVED to delete, on page 53, line 35, the phrase "7 days after" and to insert at the end of line 35 the phrase "time the" and to make the same change on line 37, that is, to delete the phrase "7 days after" and insert before "appellant's" the phrase "time the". The motion was seconded.
The point was raised that an amicus would not know what matters are not being covered in the brief of the party the amicus is supporting if it is not sharing work product
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with that party. In response, it was stated that if that is the case, the amicus must have some other position it feels the supported party will not cover, but felt by the amicus to be important for the Court to consider. The previous position was restated, that counsel on the other side of the amicus does not want the time shortened by the additional seven days given an amicus under the proposed amendments. The amicus still has the right to request additional time from the Court.
The statement was made that if an amicus brief is worthwhile it will be raising different issues for consideration by the Court.
It was pointed out in that in lines 36 and 37, the time the amicus brief is due is tied to the time the principal brief of the party being supported or the appellant's principal brief is "filed." There is a deadline for filing, but the actual date of filing may be earlier. Following further discussion, Ms. Schmitz MOVED a substitute motion to amend lines 35-37 as follows:
An amicus curiae must file its brief within the time allowed for the principal brief of the party being supported. An amicus curiae that does not support either party must file its brief within the time allowed for the appellant's principal brief.
Without objection, the Committee agreed to add the term "filing" in both sentences after the phrase "within the time allowed for." Action on the substitute motion CARRIED 11 to 0.
Ms. Bruggman pointed out on page 53, lines 31-34, subdivision (d) reduces the maximum length allowed for an amicus brief. She stated she did not see a reason to reduce the length of an amicus brief because it is primarily the Attorney General who will be filing amicus briefs and a shorter brief may not be sufficient to address the concerns being raised.
Ms. Schmitz MOVED to delete lines 31-34, on page 53. Judge Foughty seconded. Following further discussion, the motion FAILED.
Ms. Bruggman raised a question concerning the requirement on pages 52-53, lines 20-21, that the cover of an amicus brief identify the party or parties supported, as contrasted to the language on page 53, lines 36-37, that references the fact that an amicus may not support either party. Justice Sandstrom indicated the cover must indicate whether the amicus brief supports affirmance or reversal, regardless of whether a party is being supported.
Without objection, the Committee agreed to insert the phrase ", if any," on page 52, at the end of line 20.
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The Committee also agreed, without objection, that on page 52, line 4, the hyphen between "amicus" and "curiae" should be deleted.
The Committee, without objection, agreed that on page 55, lines 62-63 should be deleted.
Action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 29, on pages 52-55, as amended, CARRIED.
RULE 30, N.D.R.App.P. - APPENDIX TO THE BRIEFS (PAGES 56-66 TO THE AGENDA)
Staff provided an overview of the proposed amendments to Rule 30. Staff also distributed a memo to the Committee containing a reorganized subdivision (d). In the reorganized subdivision, the sentence beginning on page 64, line 69, following "begins" is moved and inserted on line 74 following "entries." There is no change to any of the language. The purpose is to clarify that the immaterial formal matters which may be omitted are immaterial formal matters included in the transcript. Staff also pointed out that on page 65, line 97, "amended" should be replaced with "added."
Without objection, the Committee agreed to use the alternative sentence structure for subdivision (d). Judge Foughty MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 30, on pages 61-66, of the agenda material. Ms. Schmitz seconded.
Without objection, the Committee agreed to the recommendation of Mr. Kapsner that on page 64, line 77 be deleted and that subdivision (f), beginning on line 78, be re-lettered as subdivision (e).
In response to a question, Ms. Bruggman stated that in 1994 the Committee deleted from this rule what has now been re-lettered as subdivision (e). Justice Sandstrom commented that when an electronic record becomes available, it will no longer be necessary to file an appendix. The complete record will be available electronically. Justice Sandstrom recommended that new subdivision (e) be retained.
Action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 30, on pages 61-66, as amended, CARRIED.
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RULE 31, N.D.R.App.P - SERVING AND FILING BRIEFS (PAGES 67-72 OF THE AGENDA MATERIAL)
Staff provided an overview of the proposed amendments to Rule 31.
Mr. Kapsner MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 31, on pages 70-72. Mr. Sturdevant seconded.
Ms. Bruggman commented that the current rule provides that if an appellee fails to file a brief sanctions may be imposed under Rule 13, which may include refusal to be heard at oral argument. The sanction usually imposed is refusal to be heard at oral argument, but there are other sanctions which may be imposed by the Court.
Justice Sandstrom indicated that the cases where appellees fail to file briefs are usually domestic relations cases and may also be pro se cases.
After further discussion, action on the motion to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 31, on pages 70-72, CARRIED.
Staff provided an overview of the proposed changes to Rule 32.
A memo distributed to the Committee by staff contains alternative language for paragraph (b)(3), on page 87, lines 93-95, concerning odd-sized documents. Staff also pointed out that on page 87, line 103, "(2)" should be deleted and on page 88, line 107, "comply" should be deleted and "apply" should be inserted in its place, and on line 119, "page and" should be inserted following the second "and."
It was suggested that on page 85, line 53, the bar identification number of counsel should be included as required cover information. Without objection, the Committee agreed to this change.
Judge Simonson MOVED to recommend to the Supreme Court as part of the appellate rules package the proposed amendments to N.D.R.App.P. 32, on pages 83-89 as
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amended. Professor Kraft seconded.
The comment was made that, as stated yesterday, it takes several hours longer to prepare a brief under federal rules than under the state rules and, for this reason, there is no need for amendments to conform this rule to the federal rule.
Following discussion, and without objection, the Committee agreed to delete "light" on page 84, line 25, and insert "white."
Staff pointed out on page 84, line 27, "a" should be inserted following "of."
Without objection, the Committee agreed, on page 84, lines 27-28, to delete the first "a," to insert a period following "clarity," and to delete the remainder of that sentence.
Without objection, the Committee agreed to insert a period following "original" on page 84, line 30, and to delete the remainder of line 30.
Without objection, the Committee agreed to delete "centered at the top" on page 85, line 46.
Without objection, the Committee agreed the language to be used on page 85, line 53, following "name" should be "bar identification number."
Without objection, the Committee agreed to delete "any manner that is secure," on page 85, line 55, and to insert "a secure manner that" following "in." The Committee also agreed that the explanatory note should indicate that staples and slide lock or slide grip binders are not acceptable.
Ms. Bruggman commented that because the clerk's staff counts pages in the briefs, the language on page 85, line 59, allowing page numbers to be placed in the margins would make this task more difficult. Without objection, the Committee agreed that the language on page 85, line 59, allowing page numbers to be placed in the margins should be deleted and replaced with language requiring page numbers to be centered or at the right side at the bottom of the pages.
In response to a question, it was explained that a serif is a fine line that finishes off the main part of a letter, for example, coming down from the cross stroke of a "T" or at the bottom of an "M." Without objection, the Committee agreed to delete the sentence beginning with "(A)" on page 85, line 62, and ending with "captions" on line 63.
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Ms. Bruggman pointed out that on page 86, line 69, "inc" should be replaced with "page."
The Committee agreed that the explanatory note should include an explanation of the term "plain, roman style" as used on page 86, line 70.
The Committee discussed the font requirements for proportionally spaced and monospaced type found in subparagraphs (5)(A) and (B) on lines 61-69, on pages 85-86.
Ms. Bruggman pointed out that the proposed amendments do not include a requirement that an appendix have page numbers. Ms. Bruggman also pointed out that, with respect to the certificate of compliance and the word count, there is a problem because there are two or three different ways to come up with a word count under Microsoft Word. Another concern is the treatment of a petition for rehearing, which is now included under subdivision (c)(2), on page 87, line 102.
The Committee briefly discussed the alternative wording for (b)(3), on page 87, line 93-95, which reads as follows:
(3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, the documents may be a size other than 8 ½ by 11 inches, and need not lie reasonably flat when opened, but must be folded or otherwise placed within a file or folder within the appendix that is 8 ½ by 11 inches.
Staff pointed out on page 88, line 107, "comply" should be replaced with "apply."
Justice Sandstrom directed staff to prepare a further revision of Rule 32 to be reviewed by the Committee at the next meeting.
The meeting was adjourned at approximately 11:30 a.m.
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Tom Tudor