RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
(a) Pretrial Conferences; Objectives. The court in its discretion may, and upon written request of a party shall, direct the attorneys for the parties and any unpresented parties to appear before it for a conference or conferences in advance of trial for such purposes as:
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation;
(5) facilitating the settlement of the case; and
(6) discussing the desirability of using an alternative dispute resolution process.
(b) Scheduling and Planning.
(1) After the filing of an answer, each party must within 60 days serve and file a statement with the court providing pretrial scheduling information. The statement must be in the form shown in Appendix F, N.D.R.Ct.
(2) After receiving scheduling information from the parties, or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, the court must enter a scheduling order that limits the time:
(A) to join other parties and to amend the pleadings;
(B) to file motions; and
(C) to complete discovery.
The scheduling order may also include:
(D) the date or dates for conferences before trial, a final pretrial conference, and trial; and
(E) any other matters appropriate in the circumstances of the case.
The scheduling order may not be modified except upon a showing of good cause and by leave of the court.
(b) (c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to:
(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the North Dakota Rules of Evidence;
(5) the appropriateness and timing of summary adjudication under Rule 56;
(6) the control and scheduling of discovery;
(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
(8) the advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
(9) settlement and the use of special procedures to assist in resolving the dispute;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) an order for a separate trial under Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;
(14) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and
(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.
At least one of the attorneys for each party participating in any conference before trial must have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.
(c) (d) Final Pretrial Conference. Any final pretrial conference must be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. (d) (e) Pretrial Orders. After any conference held under this rule, an order must be entered reciting the action taken. This order controls the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference may be modified only to prevent manifest injustice. (e) (f) Sanctions. If (i) a party or party's attorney fails to obey a pretrial order, (ii) no appearance is made on behalf of a party at a pretrial conference, (iii) a party or party's attorney is substantially unprepared to participate in the conference, or (iv) a party or party's attorney fails to participate in good faith, the court, upon motion of a party or its own motion, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expense incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2000; ___________________________.
Rule 16 was amended, effective , to add a new subdivision (b) relating to scheduling and planning. Paragraph (b)(1) requires the parties to provide scheduling information to the court concurrent with the filing of the ADR statement required by Rule 8.8, N.D.R.Ct. Paragraph (b)(2) is based on F.R.Civ.P. 16(b) and requires the court to issue a scheduling order once the parties have provided scheduling information. Subdivision (b) does not apply to cases governed by N.D.R.Ct. 8.3 (Case Management -- Divorce Cases).
Rule 16 was amended, effective March 1, 2000, to add a new subdivision (a)(6) relating to ADR.
(b) (c) was amended, effective March 1, 1996, to follow the 1993 amendment to Fed.R.Civ.P. 16 (c).
(e) (f) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Joint Procedure Committee Minutes of ; May 6-7, 1999, pages 7-8; January 28-29, 1999, pages 7-12; January 26-27, 1995, page 10; September 29-30, 1994, pages 22-23; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, pages 26-28; January 20, 1984, pages 18-23; September 18-19, 1980, pages 12-13; September 20-21, 1979, page 11; Fed.R.Civ.P. 16.
SUPERSEDED: N.D.R.C. 1943 §§§§ 28-1101, 28-1102, 28-1103, 28-1104.
CROSS REFERENCE: N.D.R.Civ.P. 15 (Amended and Supplemental Pleadings), N.D.R.Civ.P. 36 (Requests for Admission), and N.D.R.Civ.P. 41 (Dismissal of Actions); N.D.R.Ct. 8.3 (Case Management -- Divorce Cases), N.D.R.Ct. 8.4 (Summons in Action for Divorce or Separation), N.D.R.Ct. 8.8 (Alternative Dispute Resolution), and N.D.R.Ct. Appendix F (Alternative Dispute Resolution and Scheduling Statement).