October 16, 2017
Honorable Gerald W. VandeWalle, Chief Justice
North Dakota Supreme Court
600 East Boulevard Avenue
Bismarck, ND 58505-0530
Re: Proposed Amendments to North Dakota Court Rules
Supreme Court No. 20170288
Dear Chief Justice:
The Joint Procedure Committee submitted a petition for amendment of court rules to the Supreme Court on July 23. The Court put the proposed amendments out for comment on August 3 and received a lengthy comment on the proposed changes to N.D.R.Ct. 3.5 and its appendix from attorney Ariston Johnson. The committee discussed Mr. Johnson's comments at its September 28 meeting and suggests that several additional rule amendments be made to address the issues he raises.
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts
The committee suggests that the following proposed language, which appears in the petition on page 76, lines 41-43, be moved into subdivision (b) of the rule to clarify that it establishes a filing requirement: "A document submitted for electronic filing must comply with published guidelines (N.D.R.Ct. Appendix K Rule 3.5 Electronic Filing Requirements)"
The committee suggests adding language to paragraph (c)(2) of the rule making it clear that clerks must cite the reason for rejecting a document: "A notice of rejection must state the specific provision of Appendix K or other statute, rule or case relied upon." This language would be added after line 40 on page 75 of the petition.
The committee suggests deletion of the following language, which appears in the petition on page 76, lines 46-49: "A party seeking to take advantage of this tolling provision must file and serve a separate document providing notice that the rejected document is being resubmitted under N.D.R.Ct. 3.5(c)(3)." The committee agrees with Mr. Johnson that this requirement is "rarely obeyed and never enforced."
Finally, the committee suggests the addition of the words "by the court" to the proposed new language on page 77, line 80, of the petition. This amendment is suggested because the main purpose of the proposed requirement for attorneys to use the subscription management system is to make certain they get notice when an item is filed in Odyssey by the court or court staff. Attorneys who use the Odyssey file and serve system are already getting notice of items filed by other attorneys and would not be required to use the subscription management system for notice of these filings.
The committee suggests that Rule 3.5's explanatory note be amended consistently with the suggested changes. A new draft of Rule 3.5 containing the committee's suggested changes is attached to this letter.
Appendix K., N.D.R.Ct., Electronic Filing Requirements; Rule 7, N.D.R.Civ.P.,Pleadings Allowed Form of Motions and Other Papers; Rule 10, N.D.R.Civ.P., Form of Pleadings
At several points in his comments, Mr. Johnson opines that the rules should require that separate documents be filed separately in Odyssey.
Appendix K (a)(3), on page 87, line 7 of the petition, requires exhibits to pleadings to be filed as separate documents. N.D.R.Civ.P. 10, however, allows attachments to pleadings. The committee suggests that Rule 10 be amended to delete the reference to attachments and instead allow documents filed in conjunction with pleadings to be considered a part of the pleading.
Appendix K (c)(1), on pages 88-89, lines 37-43 of the petition, requires individual documents to be filed separately but notes that N.D.R.Civ.P. 7 allows a motion to be made as part of a notice of motion. The committee suggests that Rule 7 be amended to delete the following language: "The writing requirement is fulfilled if the motion is stated in a written notice of the hearing of the motion." The committee also suggests that the part of Appendix K (c)(1) referencing this language, on pages 88-89, lines 39-43 of the petition, be deleted.
The committee suggests that the explanatory notes to N.D.R.Civ.P. 7 and 10 be amended consistently with the suggested changes. A new draft of Appendix K containing the committee's suggested changes is attached to this letter along with suggested amendments to N.D.R.Civ.P. 7 and 10.
Thank you for considering the committee's suggestions.
Lisa K. Fair McEvers
Chair, Joint Procedure Committee