RULE 23. CLASS ACTIONS
(a) Commencement of a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all in a class action if:
(1) the class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable; and
there is a question of law or fact
is common to the class.
(b) Certification of Class Action.
(1) Unless deferred by the court, as soon as practicable after the
commencement of a class
action the court
(A) hold a hearing and determine whether or not the action is to be maintained as a class action; and
by order certify or refuse to
certify it as a class action by order.
(2) The court may certify an action as a class action if it finds that:
(A) the requirements of
23(a) have been satisfied ,;
(B) a class action should be permitted for the fair and efficient
adjudication of the
(C) the representative parties will fairly and adequately
will protect the interests of the
(3) If appropriate, the court may:
(A) certify an action as a class action with respect to a particular claim
(B) certify an action as a class action to obtain one or more forms of
declaratory, or monetary relief ,; or
(C) divide a class into subclasses and treat each subclass as a class.
(c) Criteria Considered.
(1) In determining whether the class action should be permitted for the
fair and efficient
adjudication of the controversy, as appropriately limited under
the court shall must consider, and give appropriate weight to,
the following and other
(A) whether a joint or common interest exists among class
of the class;
the prosecution of
prosecuting separate actions by or against individual class
members of the class would create a risk of inconsistent or varying
adjudications with respect
to individual class members of the class that would establish
incompatible standards of
conduct for a party opposing the class;
(C) whether adjudications with respect to individual class
of the class as a
practical matter would be dispositive of the interests of other members not parties to the
adjudication or substantially impair or impede their ability to protect their interests;
(D) whether a party opposing the class has acted or refused to act on
applicable that apply generally to the class, thereby
making so that final injunctive relief or
corresponding declaratory relief is appropriate with respect to the class as a
(E) whether common questions of law or fact predominate over any questions affecting only individual members;
(F) whether other means of adjudicating the claims and defenses are impracticable or inefficient;
(G) whether a class action offers the most appropriate means of adjudicating the claims and defenses;
(H) whether members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;
(I) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;
(J) whether it is desirable to bring the class action in another forum;
(K) whether management of the class action poses unusual difficulties;
(L) whether any conflict of laws issues involved pose unusual difficulties; and
(M) whether the claims of individual class members are insufficient in
the amounts or
interests involved, in view of the complexities of the issues and the expenses of the litigation,
to afford significant relief to the class members
(2) In determining under
Rule(b)(2)(B) that the representative parties will fairly
and adequately will protect the interests of the class, the court must find
(A) the attorney for the representative parties will adequately represent the interests of the class;
(B) the representative parties do not have a conflict of interest in the maintenance of the class action; and
(C) the representative parties have or can acquire adequate financial
subdivision Rule 23(q), to assure that the interests of the class
will not be harmed.
(d) Order on Certification.
(1) The certification order
shall must describe the class and state:
(A) the relief sought
(B) whether the action is maintained with respect to particular claims
(C) whether subclasses have been created.
(2) The order certifying or refusing to certify a class action
shall must state the reasons for
the court's ruling and its findings on the factors listed in subdivision
(3) An order certifying or refusing to certify an action as a class action is appealable.
(4) Refusal of certification does not terminate the action, but does preclude it from being maintained as a class action.
(e) Amendment of Certification Order.
(1) The court may amend the certification order at any time before entry of judgment on the merits. The amendment may:
(A) establish subclasses
(B) eliminate from the class any class member who was included in the
class as certified
(C) provide for an adjudication limited to certain claims or
(D) change the relief sought
(E) make any other appropriate change in the order.
(2) If notice of certification has been given
subdivision under Rule 23(g), the
court may order notice of the amendment of the certification order to be given in terms and
to any class members of the class the court
(3) The reasons for the court's ruling
must be set forth in the amendment of the
(4) An order amending the certification order is appealable. An order
denying the motion
of a defendant class member
of a defendant class, not a
representative party, to amend the
certification order is appealable if the court certifies it for immediate appeal.
(f) Jurisdiction Over Multi-State Classes (Reserved).
(g) Notice of Action.
(1) Following certification, the court by order, after hearing,
shall must direct the giving of
notice to the class.
(2) The notice, based on the certification order and any amendment of the order, must include:
(A) a general description of the action, including the relief sought, and the names and addresses of the representative parties;
(B) a statement of the right of a class member
the class under subdivision Rule 23(h) to
be excluded from the action by filing an election to be excluded, in the manner specified, by
a certain date;
(C) a description of possible financial consequences for the class;
(D) a general description of any counterclaim being asserted by or against the class, including the relief sought;
(E) a statement that the judgment, whether favorable or not, will bind
all class members
the class who are not excluded from the action;
(F) a statement that any class member
class may enter an appearance either
personally or through counsel an attorney;
(G) an address
to which where
inquiries may be directed; and
(H) other information the court
(3) The order must prescribe the manner of notification to be used and
specify the class
of the class to be notified. In determining the manner and form
of the notice to be
given, the court shall must consider:
(A) the interests of the
(B) the relief requested
(C) the cost of notifying members of the
(D) the possible prejudice to members who do not receive notice.
(4) Each class member
of the class,
not a representative party, whose potential monetary
recovery or liability is estimated to exceed $100 must be given personal notice, mailed
notice, or notice via third-party commercial carrier if the person's identity and whereabouts
can be ascertained by the exercise of reasonable diligence.
(5) For class members
class not given notice under paragraph (4), the court shall
provide, as a minimum, a means of notice reasonably calculated to apprise
inform the class
members of the class of the pendency of the action. Techniques calculated
to assure ensure
effective communication of information concerning commencement of the action must be
used. The techniques may include personal notice, mailed notice, or notice via third-party
commercial carrier, newspaper, television, radio, posting in public or other places, and
distribution through trade, union, public interest, or other appropriate groups.
(6) The plaintiff
shall must advance
the expense of notice under this subdivision if there is
no counterclaim is asserted. If a counterclaim is asserted the expense of notice must be
allocated as the court orders in the interest of justice.
(7) The court may order that steps be taken to minimize the expense of notice.
(1) A member of a plaintiff class may elect to be excluded from the action unless:
he the member is a
representative party ,;
(B) the certification order contains an affirmative finding under
subparagraph (A), (B), or
(C) of subdivision Rule 23(c)(1)(A), (B), or
(C) ,; or
(C) a counterclaim under
23(k) is pending against the member or his the
member's class or subclass.
(2) Any member of a plaintiff class entitled to be excluded under paragraph (1) who files an election to be excluded, in the manner and in the time specified in the notice, is excluded from and not bound by the judgment in the class action.
(3) The elections
shall must be made
a part of the record in the action.
(4) A member of a defendant class may not elect to be excluded.
Conduct of Conducting the Class
(1) The court on motion of a party or its own motion may make or amend any appropriate order dealing with the conduct of the action including, but not limited to, the following:
(A) determining the course of proceedings or prescribing measures to
repetition or complication in the
presentation of presenting
evidence or argument;
(B) requiring, for the protection of the class members
of the class or otherwise for the fair
conduct of the action, that notice be given as the court directs, of:
(i) any step in the action
(ii) the proposed extent of the
(iii) the members' opportunity
members to signify inform the court whether they
consider the representation fair and adequate, to enter an appearance and present claims or
defenses, or otherwise to participate in the action;
(C) imposing conditions on the representative parties or on intervenors;
(D) inviting the attorney general to participate with respect to the question of adequacy of class representation;
(E) making any other order to
ensure that the class action proceeds only with
adequate class representation; and
(F) making any order to
ensure that the class action proceeds only with competent
representation by the attorney for the class.
(2) A class member not a representative party may appear and be
represented by a separate
(j) Discovery by or Against Class Members.
(1) Discovery under applicable discovery rules may be used only on
a court order
court against a class member of the class who is not
a representative party or who has not
(2) In deciding whether discovery should be allowed the
shall must consider, among
other relevant factors ,:
(A) the timing of the
(B) the subject matter to be
(C) whether representatives of the class are seeking
discovery on the subject to be covered
(D) whether the discovery will result in annoyance,
oppression, or undue burden or expense
for the class members
of the class. (2)(3) Discovery by or against
representative parties or those appearing is governed by the
rules dealing with discovery by or against a party to in a civil
(1) A defendant in an action brought by a class may plead as a
counterclaim any claim the
court certifies as a class action against the plaintiff class. On leave of court, the defendant
may plead, as a counterclaim, a claim against a class member
of the class or a claim the court
certifies as a class action against a subclass.
(2) Any counterclaim in an action brought by a plaintiff class must be
asserted before notice
is given under
subdivision Rule 23(g).
(3) If a money judgment
is recovered against a party on behalf of a class, the
court rendering judgment may stay distribution of any award or execution
of any portion of
a judgment allocated to a class member of the class against
whom the losing party has
pending an action in or out of state for a money judgment for
money, and continue the stay
so long as if the losing party in the class action pursues the
pending action with reasonable
(4) A defendant class may plead as a counterclaim any claim on behalf
of the class that the
court certifies as a class action against the plaintiff. The court may certify as a class action
a counterclaim against the plaintiff on behalf of a subclass or permit a counterclaim by a
of the class. The court
shall must order that notice of the counterclaim by the
class, subclass, or class member of the class be given to the
members of the class as the court
directs, in the interest of justice.
(5) A member of a class or subclass asserting a counterclaim
shall must be treated as a
member of a plaintiff class for the purpose of exclusion
purposes under subdivision Rule
(6) The court's refusal to allow, or the defendant's failure to plead, a claim as a counterclaim in a class action does not bar the defendant from asserting the claim in a subsequent action.
(l) Dismissal or Compromise of the Class Action.
(1) Unless certification has been refused under
subdivision Rule 23(b), a class action,
without the approval of the court after hearing, may not
(A) dismissed voluntarily
(B) dismissed involuntarily without an adjudication on the
(2) If the court has certified the action under
subdivision Rule 23(b), notice of hearing on
the proposed dismissal or compromise shall must be given to all
class members of the class
in a manner the court directs. If the court has not ruled on certification, notice of hearing on
the proposed dismissal or compromise may be ordered by the court which
shall and must
specify the persons to be notified and the manner in which notice is to be given.
(3) Notice given under
23(l)(2) shall must include a full disclosure of the
reasons for the dismissal or compromise including , but not limited
(A) any payments made or to be made in connection with the dismissal
(B) the anticipated effect of the dismissal or compromise on the class
(C) any agreement made in connection with the dismissal or
(D) a description and evaluation of alternatives considered by the representative parties; and
(E) an explanation of any other circumstances giving rise to the proposal.
(F) The notice must also
shall include a description of the procedure available for
modification of the dismissal or compromise.
(4) On the hearing on the dismissal or compromise, the court may:
(A) as to the representative parties or a class certified under
subdivision Rule 23(b), permit
dismissal with or without prejudice or approve the
(B) as to a class not certified, permit dismissal without
(C) deny the dismissal
(D) disapprove the compromise
(E) take other appropriate action for the protection of the class and in the interest of justice.
(5) The cost of notice given under paragraph (2)
shall must be paid by the party seeking
dismissal, or as agreed in case of a compromise, unless the court after hearing orders
(m) Effect of Judgment on Class. In a class action certified under
Rule 23(b) in which
notice has been given under Rule 23(g) or (l), a judgment as to the claim or particular
or issue certified is binding, according to its terms, on any class member
the class who has
not filed an election of exclusion under Rule 23(h). The judgment
shall must name or
describe the class members of the class who are bound by its
(1) Only the representative parties and those class members
of the class who have appeared
individually are liable for costs assessed against a plaintiff class.
(2) The court
shall must apportion
the liability for costs assessed against a defendant class.
(3) Expenses of notice advanced under Rule 23(g) are taxable as costs in favor of the prevailing party.
(o) Relief Afforded.
(1) The court may award
any form of relief
that is consistent with the certification order to
which the prevailing party in whose favor it is rendered is
entitled, including equitable,
declaratory, monetary, or other relief to individual class members or the class in a lump
(2) Damages fixed by a minimum measure of recovery provided by
any statute may not be
recovered in a class action.
(3) If a class is awarded a money judgment
money, the distribution shall must be
determined as follows:
(A) the parties
shall must list as
expeditiously as possible all class members of the class
whose identity can be determined without expending a disproportionate share of the
(B) the reasonable expense of identification and distribution
shall must be paid, with the
court's approval, from the funds to be distributed;
(C) the court may order steps taken to minimize the expense of identification;
(D) the court
shall must supervise,
and may grant or stay the whole or any portion of, the
judgment's execution of the judgment and the collection and
distribution of funds to the class
members of the class as their interests warrant;
(E) the court
shall must determine
what amount of the funds available for the payment of
the judgment cannot be distributed to class members of the class
individually because they
could not be identified or located or because they did not claim or prove the right to money
apportioned to them. The court after hearing shall must
distribute that amount, in whole or
in part, to one or more states as unclaimed property or to the defendant.
in In determining the amount, if
any, to be distributed to a state or to the defendant, the
court shall must consider the following criteria:
(i) any unjust enrichment of the
(ii) the defendant's willfulness or lack of willfulness
on the part of the defendant;
(iii) the impact on the defendant of the relief granted;
(iv) the pendency of other claims against the defendant;
(v) any criminal sanction imposed on the defendant; and
(vi) the loss suffered by the plaintiff class.
in In order to remedy or alleviate
any harm done, the court may impose conditions on
the defendant respecting the use of the money distributed to him the
any Any amount to be
distributed to a state shall must be distributed as unclaimed
property to any state in which are located where the last known
addresses of the class
members of the class to whom distribution could not be made.
(i) If the last known addresses cannot be ascertained with
reasonable diligence, the court
may determine by other means what portion of the unidentified or unlocated class
of the class were residents of a state.
(ii) A state
receive that portion of the distribution that its residents would have
received had they been identified and located.
(iii) Before entering an order distributing any part of the
amount to a state, the court
must give written notice of its intention to make distribution to the state
attorney general of
the state of the residence of any person given notice under
subdivision Rule 23(g) or (l) and
shall must afford the attorney general an opportunity to move
for an order requiring payment
to the state.
(p) Attorney's Fees.
(1) Attorney's fees for representing a class are subject to the
of the court.
(2) If under an applicable provision of law a defendant or defendant
class is entitled to
attorney's fees from a plaintiff class, only representative parties and
class members of
the class who have appeared individually are liable for those fees. If a plaintiff is
attorney's fees from a defendant class, the court may apportion the fees among the class
members of the class.
(3) If a prevailing class recovers a money judgment
for money or other award that can be
divided for the purpose, the court may order reasonable attorney's fees and litigation
expenses of the class to be paid from the recovery.
(4) If the prevailing class is entitled to declaratory or equitable relief,
the court may order
adverse opposing party to pay to the class its reasonable
attorney's fees and litigation
(A) the court finds attorney's fees are permitted by law in similar cases not involving a class; or
(B) the court finds that the judgment has vindicated an important public interest.
However, But if
any a monetary award is also recovered, the court may allow
attorney's fees and litigation expenses only to the extent that a reasonable proportion of
the monetary award is insufficient to defray the fees and expenses.
(5) In determining the amount of attorney's fees for a prevailing
class, the court
consider the following factors:
(A) the time and effort expended by the attorney in the litigation, including the nature, extent, and quality of the services rendered;
(B) the results achieved and benefits conferred
upon on the class;
(C) the magnitude, complexity, and uniqueness of the litigation;
(D) the contingent nature of success;
in cases awarding if attorney's
fees and litigation expenses are awarded under paragraph
subparagraph (4)(B) because of the vindication on an important
public interest, the economic
impact on the party against whom the award is made; and
(F) the appropriate criteria
in the North Dakota Code Rules of Professional
(q) Arrangements for Attorney's Fees and Expenses.
(1) Before a hearing under
Rule 23(b)(1) or at any other time the court directs,
the representative parties and the attorney for the representative parties
shall must file with
the court, jointly or separately:
(A) a statement showing any amount paid or promised them by any
person for the services
rendered or to be rendered in connection with the action
for the costs and expenses
of the litigation and the source of all of the amounts;
(B) a copy of any written agreement, or a summary of any oral agreement, between the representative parties and their attorneys concerning financial arrangements or fees; and
(C) a copy of any written agreement, or a summary of any oral
agreement, by the
representative parties or the attorneys to share these amounts with
any a person other than
a member, regular associate, or an attorney regularly of counsel with his
that law firm. This
statement shall must be supplemented promptly if additional
arrangements are made.
Upon On a determination that the
costs and litigation expenses of the action cannot be
reasonably and fairly be defrayed by the representative parties or by other
the court may, by order: may
(A) authorize and control the solicitation and expenditure of
purpose to defray costs from class members of the
class, advances by the attorneys or others,
or both, subject to reimbursement from any recovery obtained for the
class .; and
The court may order
apply any available funds so that were contributed or
to be applied to the payment of any costs taxed in favor of a party
opposing the class.
(r) Statute of Limitations. The statute of limitations is tolled for all
the commencement of an action asserting a class action. The statute of limitations resumes
running against a class member of a class:
upon on filing an election of
upon on entry of a certification
order or amendment of an order, or of an amendment
thereof, eliminating him the member from the
(C) except as to representative parties,
on entry of an order under subdivision Rule
23(b) refusing to certify the action as a class action; and
upon on dismissal of the action
without an adjudication on the merits.
(s) Uniformity of Application and Construction. This Rule
shall must be construed and
applied to effectuate fulfill its general purpose to make uniform
the law with respect to
regarding the subject of this Rule among states enacting it.
(t) Stay on Appeal Only
Court Order. An appeal from an order of a district court
order certifying an action as a class action or modifying an order
of a certification order, or
refusing to certify an action as a class action or modify an order of
a certification order, does
not stay proceedings in the district court unless the district court or the supreme court so
orders. (u) Short Title. This rule may be cited as the "Model Class
Rule 23 was amended, effective February 15, 1977; January 1, 1995; March 1, 1999; March 1, 2003; March 1, 2011.
Rule 23 is substantially the same as the Model Class Actions Rule as drafted by the National Conference of Commissioners on Uniform State Laws. Prior to February 15, 1977, the effective date of this rule, Rule 23 was the same as Fed.R.Civ.P. 23.
Rule 23 was revised, effective March 1, 2003. A new subdivision (t) was added to clarify that an appeal under paragraphs (d)(3) or (e)(4) does not stay district court proceedings unless a stay is ordered by the district court or the supreme court. It is expected that a stay will be sought first from the district court.
Rule 23 was amended, effective March 1, 2011. 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.
The following comments are based
on the official Comments to the Model Rule.
This subdivision sets forth the requirements that must be satisfied to authorize the bringing of a class action. Subdivision (b) authorizes the maintenance of a class action.
In connection with the finding under subparagraphs (2)(B) and (C), see paragraphs (c)(1) and (2).
After an action has been brought as a class action, if the court determines that there is an action pending in another court which encompasses the pending class action both as to general class and claim, the court hearing the class action may refuse to certify the action against or on behalf of the class if it concludes that this form is not the most appropriate one. In making this decision, the court must consider the sequence of the suits, the residence of the members of the class, where the transaction or occurrence involved took place, where the relevant evidence is available, and other pertinent facts.
Paragraph (4) presupposes the existence of rules of civil procedure which will allow the action to proceed on behalf of the representative parties as properly joined parties.
Denial of certification and the allowance of a personal action under paragraph (4) does not affect any possible intervention or joinder of class members who are not representative parties under the applicable state laws.
The jurisdictional provisions for multi-state classes were repealed, effective January 1, 1995, to conform with the Uniform Law Commissioners' Model Class Actions Rule, to allow application of the analysis found in Phillips Petroleum Company v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), and to eliminate application of the more stringent "minimum contacts" test to class action plaintiffs.
The hearing required by paragraph (1), if the court wishes, can be combined with the hearing required by paragraph (b)(1).
Subdivision (g) was amended, effective March 1, 1999, to allow notice via third-party commercial carrier as an alternative to mail.
Personal mailed notice to all class members
the class is not required by this Rule. See
Grant v. City of Lincoln, 225 N.W.2d 549 (Neb. 1975); Cartt v. Superior Court in
County of Los Angeles, 50 Cal. App.3d 960, 124 Cal. Rptr. 376 (Ct. App.
The type of notice to be given may vary as to the persons to be notified, the form of notice, and, to some extent, the content. Paragraph (3) indicates that the court must consider a number of factors in deciding what type of notice to give.
(8)(7) would allow the
court to order a defendant who has a mailing list of class
members to cooperate with the representative parties in notifying the class members. Use of
a computer or enclosing notice in a regular mailing would be
Under some circumstances, members of a plaintiff class
cannot elect to be excluded and
subdivision (h) is drafted to cover that situation. Such situations might arise in actions
comparable to those under Federal Rule 23(b)(1); see
James Moore, Moore's Federal
Practice , ¶ 23.35 § 23.41 (3rd Ed.
2010). In most situations, members of a plaintiff
class will be permitted to elect to be excluded.
The rules governing civil procedure in the courts of the State will
procedures in class actions. Subdivision (i) covers certain matters that are found only in class
which deserve special consideration. Subparagraph
(1)(D) does not limit the
power of the attorney general to participate in litigation under other provisions of applicable
Discovery against representative parties includes the representative parties' fee arrangement with counsel. Disclosure of this arrangement is required under subdivision (q).
The expense of notification of actions involving counterclaims is determined as provided in paragraph (g)(7).
The nature of other costs and assessments against parties in a class action is left to the law generally applicable in the state. Subdivision (n) merely specifies the liability of class members if costs are assessed against the class and provides for assessment of the expense of notification under subdivision (g).
This section incorporates the idea of "fluid recovery," to benefit the
class as a whole
when distribution of damage awards to individual members is impracticable or a residue
remains after distribution. See , State of West Virginia v.
Charles Pfizer & Co., 314 F.Supp.
710 (S.D. N.Y. 1970); Bebchick v. Public Utilities Commission, 318 F.2d 187 (D.C.
Cir.1963), cert. denied 83 S.Ct. 1304 (1963); Daar v. Yellow Cab
Co., 433 P.2d 732, 63 Cal.
Rptr. 724 (1967).
Courts under this rule have discretion to award attorney's fees in class
the class failed to win damages or equitable relief, but the court
feels finds the class action
"prevailed" because the suit performed a valuable public service.
See , Perham v.
Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970).
Most of the factors listed in paragraph (5) derive from Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973).
Subdivision (q) requires
regarding the arrangements for attorney's fees and
expenses to be disclosed in order to assist the court in making determinations as to adequacy
of representation by the representative parties and by the attorney for the class, as to any
possible collusion between the representative parties and the attorney for the class, and as
to any possible conflict of interests among the representative parties and the class
American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), held that the commencement of a class action under Federal Rule 23 suspends the applicable statute of limitations to all members of the class pending a determination of class action status. Subdivision (r) codifies the American Pipe case.
Subdivision (t): Effective March 1, 2003, former subdivision (t), "Short
Title," was relettered as subdivision
(u), and a new subdivision (t) was added.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, pages 6, 9; April 25-26, 2002, pages 10-12; January 24-25, 2002, pages 4-5; September 27-28, 2001, pages 13-15, 18-19; January 29-30, 1998, pages 18-19; April 28-29, 1994, page 23; September 20-21, 1979, pages 14-17; September 23-24, 1976, pages 62-76; Uniform Class Actions Rule (1976).
Affected: Superseded: N.D.R.C.
§ 28-0208 (1943).
Cross Reference: N.D.R.Civ.P. 19 (Joinder of Persons Needed for Just Adjudication), N.D.R.Civ.P. 20 (Permissive Joinder of Parties), and N.D.R.Civ.P. 24 (Intervention).