Amendments to the North Dakota Rules as Adopted

Amendments to the North Dakota Rules as Adopted - 980217

RULE 45. TIME

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(e) Additional Time After Service by Mail or Commercial Carrier. Whenever a party has the right or is required to do an act within a prescribed period after ~~the~~ service of a notice or other paper ~~upon that~~ ~~party~~ and the notice or other paper is served by mail or third-party commercial carrier, 3 days must be added to the prescribed period. Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.

EXPLANATORY NOTE

Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999.

Rule 45 is an adaptation of FRCrimP 45 with certain modifications. The rule is similar, as well, to NDRCivP 6 which deals with time.

Subdivision (a) differs from its federal counterpart in that the last sentence of subdivision (a) of the federal rule, which lists federally recognized holidays, is excluded from the North Dakota rule.

The exception to subdivision (b) is in its application to Rules 29 (Motion for Judgment of Acquittal); 33 (New Trial); 34 (Arrest of Judgment); 35 (Reduction of Sentence); and 37 (Appeals as of Right to District Court: How Taken), some of which contain specific provisions permitting enlargement.

Subdivision (c) is an ~~adopted in the language~~ adaptation of NDRCivP 6(c), with the only modification in the last line, changing the word "civil" to "criminal." Subdivision (c) of the federal rule was abrogated in 1966 with the adoption of 28 U.S.C. § 452, which provides that the existence or expiration of a session of court in no way affects the power of the court to do any act. An important provision of subdivision (c) is that the expiration of a term of court has no effect on the power of that court.

Subdivisions (d) and (e) are ~~adapted from~~ adaptations of NDRCivP 6(d) and (e). Subdivision (d) must be construed with Rule 47 relating to motions generally, Rule 49 relating to the service and filing of papers, and NDROC 3.2 relating to submission of motions ~~on brief~~.

Subdivision (d) was amended, effective January 1, 1995, to require service of a written motion, and notice, at least 14 days before the hearing instead of five.

Subdivision (e), which provides additional time for the exercise of a right or the doing of an act when service of notice is by mail, is ~~identical~~ similar to NDRCivP 6(e). ~~Subdivision (e) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.~~

Subdivision (e) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier. See Rule 49(e), N.D.R.Crim.P., and Rules 4(k) and 5(f), N.D.R.Civ.P.

Subdivisions (a) and (e) were amended, effective January 1, 1995, to clarify time computations when making service by facsimile transmission.

SOURCES: Minutes of Rules Committee Meetings of January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Rule 45, FRCrimP.

STATUTES AFFECTED:

SUPERSEDED INSOFAR AS CRIMINAL PROCESS: 1-02-15, NDCC.

CONSIDERED: 1-01-33, 1-03-01(2 14), NDCC.

CROSS REFERENCES: Rule 6.-NDRCivP, Time; Rule 26.-NDRAppP, Computation and Extension of Time.