RULE 11. FORWARDING AND FILING THE RECORD
(a) Time for Forwarding; Duty of Appellant.
(1) Except in expedited appeals,
The the clerk of district
court must forward the exhibits
necessary for determination of the appeal and the record on appeal, excluding the
transcript, to the supreme court not less than 25 nor more than 30 days after the filing of
the notice of appeal unless otherwise directed by the supreme court , or by a party or the
person preparing the transcript, as provided in subdivision (c).
(2) After filing the notice of appeal, the appellant must do what is necessary to enable the clerk of district court to assemble and forward the record.
(3) In expedited appeals, the clerk of district court must promptly forward the exhibits necessary for determination of the appeal and the record on appeal, excluding the transcript, to the supreme court unless otherwise directed by the supreme court.
(b) Method of Forwarding Record.
(1) Documents Numbered and Listed. The clerk of district court must
documents constituting the record and send them to the supreme court clerk, together
with create a numbered list of the documents constituting the
numbered and that reasonably identified identifies
the documents. The clerk of district
court must certify to the supreme court that the list constitutes the record on appeal.
(2) Unusual Bulk or Weight. Unless directed to do so by a party or by the
clerk of the supreme court, the clerk of district court must not forward to the court
documents of unusual bulk or weight, or physical exhibits other than documents. If the
exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for
their transportation and receipt.
Mail or Other Means; Endorsement Certification of the
Record. The clerk of district
court may forward the record is considered forwarded to the supreme
court clerk of the
supreme court by mail or other means upon filing of a certification of
the record. The
clerk of district court must indicate , by endorsement on the face of the record or
otherwise, the date the record is forwarded to the court.
(c) Temporary Retention of Record in District Court for Use in Preparing Briefs
(1) A party or the person preparing the transcript may retain the record in the
court by sending a written request to the clerk of district court within the earliest time
stated in subdivision (a) for forwarding the record. Copies of the request must be sent to
all counsel of record and to the supreme court clerk.
(2) If the record is retained by a party under this subdivision, the appellant, upon
of the appellee's brief, must request the clerk of district court to forward the record,
unless forwarding of the record at an earlier time is agreed upon by the parties or directed
by the supreme court.
(3) If the record is retained by the person preparing the transcript under this
upon filing the transcript, that person must request the clerk of district court to forward
the record, unless the supreme court directs the record to be forwarded at an earlier time.
(d) Retaining the Record by Court Order.
(1) The supreme court may order that a certified copy of the docket entries be
instead of the entire record. But a party may at any time during the appeal request that
designated parts of the record be forwarded.
(2) The district court may order the record or some part of it retained if the court
while the appeal is pending, subject to call by the supreme court.
(3) If part or all of the record is ordered retained, the clerk of district court must
the supreme court a copy of the order and the docket entries, together with the parts of
the original record allowed by the district court and copies of any parts of the record
designated by the parties.
(e) Retaining Parts of Record in District Court by Stipulation of Parties. The parties
agree, by written stipulation filed in the district court, that designated parts of the record
be retained in the district court, subject to call by the supreme court or request by a party.
The parts of the record so designated remain a part of the record on appeal.
(f) Record for Preliminary Motion in Supreme Court. If, before the record is
a party makes any of the following motions in the supreme court:
--for a stay pending appeal;
--for additional security on the bond on appeal or on a supersedes bond; or
--for any other immediate order --
the clerk of district court must send the supreme court any parts of the record
by any party.
(g) Filing of Record. Upon receipt of the record, or of the parts of the record
to be filed under the provisions of subdivision (d) , the supreme court clerk must file the
record. The clerk must give notice immediately to all parties of the date on which the
record is filed.
(h)(c) Dismissal for Failure to Timely
Appellant's Duty to Forward Record. If It is the
appellant fails the appellant's duty to ensure that the record is accurate and
to cause timely forwarding of the record, any appellee may file a motion in the supreme
court to dismiss the appeal. The motion must be supported by the following
-- a certificate of the clerk of district court showing the date and substance of the
judgment or order from which the appeal was taken;
-- the date on which the notice of appeal was filed;
-- the expiration date of any order or request extending the time for forwarding the
-- proof of service.
(1) a certification by the clerk of district court as required by this rule; and
(2) any transcripts necessary for the appeal.
The appellant may respond within 14 days after service of the motion.
Rule 11 was amended, effective March 1, 2003; October 1, 2014.
The duty to forward the record to the supreme court is imposed upon the clerk of district court. However, the appellant's counsel has the primary responsibility for assuring timely forwarding of the record.
Rule 11 separates the responsibilities of the clerk of district court and the person preparing
the transcript. The clerk of district court has the duty of forwarding the record, excluding the
transcript, to the
supreme court clerk of the supreme court. The person
transcript is responsible for filing the transcript under Rule 10(c) .
Under subdivision (a) the record is forwarded to the supreme court 25-30 days after the
notice of appeal is filed
, unless the court requests it at another time or a party or the
preparing the transcript wishes to retain the record as provided in subdivision (c). In
expedited appeal, the record is promptly forwarded to the supreme court.
Subdivisions (a) - (c) were amended October 1, 2014, to conform the rule to electronic filing.
Subdivision (c) contains a streamlined procedure whereby an attorney or party may
the record in the district court for the purpose of preparing briefs, or the person preparing the
transcript may retain the record in the district court for reference while completing the
transcript. A person wishing to retain the record must send a written request to the clerk of
district court within 25 days after the notice of appeal is filed, with copies to other counsel
and the supreme court clerk.
It should be noted that for purposes of these rules, the transcript continues to be a part of the record, but is handled differently than the remainder of the record.
Rule 11 was amended, effective March 1, 2003, in response to the December 1, 1998, amendment to Fed.R.App.P. 11. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Rule 11 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of September 26, 2013, pages 20-21; April 26-27, 2001, page 9; May 25-26, 1978, pages 8-9; March 16-17, 1978, pages 2, 13-15; October 27-28, 1977, pages 3-6, 8-9; September 15-16, 1977, pages 13, 14-16; June 2-3, 1977, page 4. Fed.R.App.P. 11.
SUPERSEDED: N.D.C.C. §§ 28-27-06, 28-27-08 and 29-28-18.
CROSS REFERENCE: N.D.R.App.P. 10 (The Record on Appeal).