SEIZING PROPERTY At the commencement of and during the course of an
action, all remedies providing for
seizure of property for the purpose of securing satisfaction of the judgment ultimately to be
entered in the action are available under the circumstances and in the manner provided by
the law of this state existing at the time the remedy is sought.
At the commencement of and throughout an action, every remedy is available that, under the law of this state, provides for seizing property to secure satisfaction of the potential judgment.
Rule 64 was amended, effective March 1, 2011.
Rule 64 is derived from
Rule 64, FRCivP
The principal departure from the federal rule is the authorization for
the use of the remedies
only for the seizure of property, not persons as in
Rule 64, FRCivP
Qualifications to the federal rule do not apply to the North Dakota court system and were not
included. Also, the listing of remedies available has been omitted. These are found in the
North Dakota Century Code.
The remedies available in this state include attachment
(N.D.C.C. Chapter 32-08.1
N.D.C.C.), replevin (N.D.C.C. Chapter 32-07 ,
N.D.C.C.), garnishment (N.D.C.C. Chapter
32-09 , N.D.C.C.), and others. In recent years,
many Some state laws authorizing
prejudgment remedies but not providing for prior notice and hearing have been struck down.
See, Sniadach v. Family Finance Corporation of Bay View, 89 S.Ct. 1820,
395 U.S. 337, 23
L.Ed.2d 349 (1969); Fuentes v. Shevin, 92 S.Ct. 1983, 407 U.S. 67, 32 L.Ed.2d 556
Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974);
v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); and Guzeman v.
State Bank, 516 F.2d 125 (8th Cir. 1974). The latter case ruled that the North Dakota
attachment statute (N.D.C.C. Chapter 32-08 , N.D.C.C.)
violated due process. That statute
was subsequently repealed and replaced by N.D.C.C. Chapter 32-08.1 ,
It is also possible some federal laws may take precedence in this area. For example, Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, 523 and 524, provide under certain circumstances for the vacation or stay of any attachment or garnishment directed against the serviceman's property, money, or debts in the hands of another.
Rule 64 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. 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.
Sources: Joint Procedure Committee
Minutes of January 28-29, 2010, pages 13-14;
November 29-30, 1979, pages 20-21;
64 , FRCivP.
Rule N.D.R.Civ.P. 4 (Persons
Subject to Jurisdiction-Process-Service),