RULE 40. ASSIGNMENT OF CASES FOR TRIAL
(a) Continuous Session of District Court. The district court is in continuous session in each county. Criminal and civil cases will be scheduled for trial in accordance with a calendaring procedure maintained and operated under the direction and supervision of the presiding judge of the district.
(b) Note of Issue and Certificate of Readiness.
(1) A party desiring to have an action placed on the calendar for trial shall prepare a certificate of readiness and note of issue and shall serve the same on counsel for all parties and file it, with proof of service, with the clerk of court within 5 days after such service. The certificate of readiness and note of issue shall certify, to the best knowledge and belief of the filing attorney, the following:(A) That issues are joined and the case in all respects is ready for trial;(B) That all discovery has been completed;(C) That all pretrial motions have been disposed of;(D) Sufficient time has elapsed to afford all parties reasonable opportunity to be ready for trial;(E) There are no present prospects for settlement;(F) Whether or not the case is for trial by jury and the size of the jury;(G) That all pleadings of the filing attorney have been filed with the clerk of court;(H) The estimated length of trial;(I) The names and addresses of respective counsel.Except as qualified in paragraph (2), the filing of a certificate of readiness and note of issue constitutes certification by all parties to the action that the case is ready for trial.
(2) If a party, other than the party filing the certificate of readiness, is not ready for trial, that party shall prepare a certificate of nonreadiness and shall serve the same on counsel for all parties and shall file it with the clerk of court within 10 days after the date of service of the certificate of readiness. The certification of nonreadiness must set forth in what respects the case is not ready and must specify a time limit within which the case will be ready for trial.
(3) The case shall be placed on the trial calendar 14 days after the filing of the certificate of readiness and note of issue, or on the date specified in the certificate of nonreadiness, whichever is later.
(4) Any dispute with respect to the certificate of readiness or the certificate of nonreadiness must be brought before the court by motion of a party or the court. The court may impose appropriate sanctions, including payment of the reasonable expense incurred in bringing the motion.
(5) If the trial judge issues a scheduling order in a case, the parties are not required to file a certificate of readiness and note of issue in order to have the case placed on calendar for trial.
(c) Trial Dates. All contested cases will be assigned trial dates by the trial judge under the direction and supervision of the presiding judge of the district.
(d) Trial Date Continuances. No continuance on trial dates will be given unless formally approved by the trial judge scheduled to hear the case. A request to continue a trial must be made within 10 days after receipt of notice of trial given by the court. If unavoidable circumstances should arise, the trial judge may consider waiving the 10-day requirement.
(e) Untried Cases. Actions or proceedings that have been pending and filed in which there has been a want of prosecution for more than one year may be dismissed without prejudice by the court on its own motion upon notice or on motion of either party.
Rule 40 was amended effective July 1, 1981; January 1, 1988; March 1, 2004.
Rule 40 has the same purpose as Fed.R.Civ.P. 40, but differs completely as to content. Prior to being amended, effective July 1, 1981, this rule was identical to the federal rule.
Subdivision (a) provides for continuous session of district court, rather than distinct “terms” of court. The presiding judge is to oversee the calendaring process.
A combined Note of Issue and Certificate of Readiness is required by subdivision (a), which also prescribes its contents. Fourteen days after this document is filed, the case is to be placed on the trial calendar, unless a Certificate of Nonreadiness has been filed by another party. This is a change from previous North Dakota practice, which only required the filing of a note of issue, not normally triggering placement on a trial calendar. A call of the calendar is no longer necessary to determine whether a case is ready for trial. The document should not be filed unless the filing party is ready to have the case placed on the trial calendar.
Subdivision (b) was amended, effective ____________________, to add new language clarifying that filing a note of issue and certificate of readiness is not necessary when a scheduling order is issued.
Subdivision (e) provides for dismissal of untried cases after one year of inactivity, rather than after two years, as was the previous rule. Failure to file a Note of Issue and Certificate of Readiness within one year after the filing of the summons and complaint may also result in dismissal.
The rule was amended, effective January 1, 1988, to make the rule gender neutral.
The note of issue and certificate of readiness form relating to N.D.R.Civ.P. 40, was reworded effective March 1, 1992, to make the form consistent with the rule.
SOURCES: Joint Procedure Committee Minutes of September 18-19, 2003, pages 11-18; April 24-25, 2003, pages 26-30; November 7-8, 1991, page 5; October 25-26, 1990, page 16; January 23, 1986, pages 9-12; September 18-19, 1980, pages 13-14; May 29-30, 1980, pages 1-2, 6-11; March 27-28, 1980, pages 3-4; January 17-18, 1980, page 3; November 29-30, 1979, pages 9-10; Fed.R.Civ.P. 40.
SUPERSEDED: N.D.R.C. §§ 28-1207, 28-1208, 28-1212 (1943).
CROSS REFERENCE: N.D.R.Civ.P. 16 (Pretrial Conferences; Scheduling; Management); N.D.R.Crim.P. 50 (Calendars).