RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER DOCUMENTS
1 (a) Service -- When required.
2 (1) In general. Other than service of a summons and complaint under Rule
3 4, each of the following documents must be served under this rule on every party,
4 unless the rules provide otherwise:
5 (A) an order, unless the court orders otherwise;
6 (B) a pleading served after the original summons and complaint, unless the
7 court orders otherwise under Rule 5(c) because there are numerous defendants;
8 (C) a discovery document required to be served on a party, unless the court
9 orders otherwise;
10 (D) a written motion, except one that may be heard ex parte; and
11 (E) a written notice, appearance, demand, or offer of judgment, or any
12 similar document; and
13 (F) every document filed with the clerk or submitted to the judge.
14 (2) If a party fails to appear. No service is required on a party who is in
15 default for failing to appear. But a pleading that asserts a new claim for relief
16 against such a party must be served on that party under Rule 4.
17 (3) Seizing property. If an action is begun by seizing property and no person
18 is or need be named as a defendant, any service required before the filing of an
19 answer, claim, or appearance must be made on the person who had custody or
20 possession of the property when it was seized.
21 (b) Service -- How made.
22 (1) Service in general. A document that is required to be filed must be
23 served electronically under the procedure specified in N.D.R.Ct. 3.5. Electronic
24 service on an attorney must be made to the designated e-mail service address
25 posted on the N.D. Supreme Court website. Electronic service is complete on
26 transmission. Except as provided in N.D.R.Ct. 3.5(e)(4), electronic service is not
27 effective if the serving party learns through any means that the document did not
28 reach the person to be served.
29 (2) Persons served.
30 (A) Service on a party represented by an attorney. If a party is represented
31 by an attorney, service under this rule must be made on the attorney unless the
32 court orders service on the party. If an attorney is providing limited representation
33 under Rule 11(e), service must be made on the party and on the attorney for
34 matters within the scope of the limited representation.
35 (B) Persons exempt from electronic service. Persons who are exempt from
36 electronic service and filing under N.D.R.Ct. 3.5 must serve documents under Rule
38 (3) Other service. A document that is not required to be filed, or that will be
39 served on a person exempt from electronic service, is served under this rule by:
40 (A) handing it to the person;
41 (B) leaving it:
42 (i) at the person's office with a clerk or other person in charge, or, if no one
43 is in charge, leaving it in a conspicuous place in the office; or
44 (ii) if the person has no office or the office is closed at the person's dwelling
45 or usual place of abode with someone of suitable age and discretion who resides
47 (C) mailing it to the person's last known address, in which event service is
48 complete upon mailing;
49 (D) sending it by a third-party commercial carrier to the person's last known
50 address, in which event service is complete upon deposit of the document to be
51 served with the commercial carrier;
52 (E) if no address is known, on order of the court by leaving it with the clerk
53 of the court;
54 (F) sending it by electronic means if the person consented in writing, in
55 which event service is complete on transmission, but is not effective if the serving
56 party learns that is did not reach the person to be served; or
57 (G) delivering it by any other means that the person consented to in writing.
58 (c) Serving numerous defendants.
59 (1) In general. If an action involves an unusually large number of
60 defendants, the court may, on motion or on its own, order that:
61 (A) defendants' pleadings and replies to them need not be served on other
63 (B) any crossclaim, counterclaim, avoidance, or affirmative defense in those
64 pleadings and replies to them will be treated as denied or avoided by all other
65 parties; and
66 (C) filing any such pleading and serving it on the plaintiff constitutes notice
67 of the pleading to all parties.
68 (2) Notifying parties. A copy of every such order must be served on the
69 parties as the court directs.
70 (d) Filing.
71 (1) In general. Unless a statute, court rule, or court order provides
72 otherwise, all documents in an action must be filed with the clerk electronically,
73 through the Odyssey(R) system.
74 (2) Initiating pleading.
75 (A) The summons and complaint.
76 (i) The summons and complaint, or other initiating pleading, must be filed
77 before a subpoena may be issued. Unless otherwise authorized by rule or statute, a
78 party seeking to file an initiating pleading must provide proof that the pleading
79 was served under Rule 4. The proof of service must be filed with the initiating
81 (ii) A party who files a complaint or other initiating pleading must serve
82 notice of filing on the other parties.
83 (iii) The defendant may demand that the plaintiff file the complaint.
84 - Service of the demand must be made under Rule 5(b) on the plaintiff's
85 attorney or under Rule 4(d) on the plaintiff if the plaintiff is not represented by an
87 - In cases with multiple defendants, service of a demand by one defendant is
88 effective for all the defendants.
89 - If the plaintiff does not file the complaint within 20 days after service of
90 the demand, service of the summons is void.
91 - The demand must contain notice that if the complaint is not filed within 20
92 days, service of the summons will be void, unless, after motion made within 60
93 days after service of the demand for filing, the court finds excusable neglect.
94 (iv) The defendant may file the summons and complaint, and the costs
95 incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).
96 (v) If the summons and complaint are not filed with the court within one
97 year of commencement against any party, the action is considered dismissed with
98 prejudice against all parties unless the parties within that year sign a stipulation to
99 extend the filing period.
100 (B) The answer. Within a reasonable time after service of the notice of
101 filing the complaint or initiating pleading, the defendant or respondent must file
102 the answer and notify the plaintiff of the filing.
103 (3) Discovery materials. A party must not file discovery materials with the
104 clerk unless:
105 (A) the materials are being submitted to the court for disposition of a
106 pending motion;
107 (B) the court orders them to be filed; or
108 (C) a party certifies that the filing is necessary for safekeeping of the
109 documents or exhibits pending case completion, in which event the party must
110 state the reasons safekeeping is necessary.
111 (4) Return of discovery materials.
112 (A) The clerk shall return the following documents to the filing party upon
113 final disposition of an appeal or, if no appeal is filed, upon expiration of the time
114 for appeal:
115 (i) depositions;
116 (ii) interrogatories;
117 (iii) requests for admission;
118 (iv) requests for interrogatories;
119 (v) requests for production of documents; and
120 (vi) answers and responses to the above documents.
121 (B) If the filing party does not claim a filed document within 60 days after
122 notification to do so, the clerk may dispose of the document as directed by court
124 (C) The clerk must take a receipt for all documents returned.
125 (5) Documents to be used on hearing. Unless otherwise directed by the
126 court, all affidavits, notices, and other document designed to be used on the
127 hearing of a motion or order to show cause must be filed at least 24 hours before
128 the hearing.
129 (6) Failure to comply. If a party fails to comply with this subdivision, the
130 court, on motion of any party or its own motion, may order the document to be
131 filed. If the order is not obeyed, the court may order them to be regarded as
132 stricken and their service to be ineffective.
133 (7) Rejection. Except as otherwise provided under Rules 13, 14, or 15, the
134 clerk must reject for filing any document that adds a party to an action or
135 proceeding without a court order. The clerk must endorse on the document a
136 notation that it is rejected for filing under this rule and return the document to the
137 person who tendered it for filing.
138 (e) Removal of pleadings for service. Upon a filing party's request, an
139 original pleading or document in any civil action, which by law is required to be
140 filed in the clerk of court's office where the action is pending, may be removed
141 from the files for the purpose of serving it either inside or outside the state but
142 must be returned without delay.
143 (f) Proof of service. Proof of service under this rule is made as provided in
144 Rule 4 or by an attorney's or court personnel's certificate showing that service was
145 made under subdivision (b).
146 EXPLANATORY NOTE
147 Rule 5 was amended effective 1971, July 1, 1981; March 1, 1986; January
148 1, 1988; March 1, 1990; March 1, 1992, on an emergency basis; March 1, 1994;
149 January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2003; March 1, 2008;
150 March 1, 2009; March 1, 2011; March 1, 2013; April 1, 2013; March 1,
152 Rule 5 applies to service of documents other than "process." In contrast,
153 Rule 4 governs civil jurisdiction and service of process. When a statute or rule
154 requiring service does not pertain to service of process, nor require personal
155 service under Rule 4, nor specify how service is to be made, service may be made
156 as provided in Rule 5(b). An example of a rule that requires a particular type of
157 service is N.D.R.Ct. 11.2, which specifies that attorneys seeking to withdraw from
158 representation must give notice to their client "by personal service, by registered or
159 certified mail, or via a third-party commercial carrier providing a traceable
161 Subdivision (a) was amended, effective March 1, 2008, to improve
162 organization and to make the subdivision easier to understand.
163 Paragraph (b)(1) was amended, effective March 1, 2009, to make it clear
164 that, when an attorney has served notice of limited representation under Rule
165 11(e), service of documents on the attorney is not required except for documents
166 within the scope of the limited representation. Rule 5, Rule 11 and N.D.R.Ct. 11.2,
167 were amended to permit attorneys to assist otherwise self-represented parties on a
168 limited basis without undertaking full representation of the party.
169 Paragraph (b)(1) was amended, effective March 1, 2014, to require any
170 electronic service on an attorney to be made to the attorney's designated e-mail
171 address as posted on the North Dakota Supreme Court website.
172 Paragraph (b)(2) was amended, effective April 1, 2013, to specify that
173 electronic service through the Odyssey(R) system under the procedure specified in
174 N.D.R.Ct. 3.5 is required for most documents that will be filed with the court.
175 Paragraph (b)(3) was amended, effective March 1, 2009, to provide for
176 service by electronic means and to improve organization. Parties seeking to serve
177 documents by electronic means must consult N.D.R.Ct. 3.5 for electronic service
179 Paragraph (b)(3) was amended, effective April 1, 2013, to specify that the
180 other means of service listed in the paragraph apply only when the document
181 served is not required to be filed or when it will be served on a person exempt
182 from electronic service.
183 Subdivision (b) was amended, effective March 1, 1999, to permit service
184 via a third-party commercial carrier as an alternative to the Postal Service. The
185 requirement for a "third-party commercial carrier" means the carrier may not be a
186 party to nor interested in the action, and it must be the regular business of the
187 carrier to make deliveries for profit. A law firm may not act as or provide its own
188 commercial carrier service with service complete upon deposit. In addition, the
189 phrase "commercial carrier" does not include electronic delivery services.
190 Paragraph (d)(1) was amended, March 1, 2008, to delete a reference to the
191 note of issue and certificate of readiness.
192 Paragraph (d)(1) was amended, effective April 1, 2013, to specify that filing
193 must be accomplished electronically through the Odyssey(R) system unless a
194 statute, rule or order provides otherwise.
195 Subparagraph (d)(2)(A) was amended, effective March 1, 2013, to require
196 that proof of service be provided and filed by a party seeking to file an initiating
197 pleading. Under Rule 3, an action is commenced on service of the initiating
198 pleading, not on filing. Unless a rule specifically provides otherwise, service under
199 Rule 4 must be accomplished before any pleadings in an action may be filed.
200 Subparagraph (d)(2)(A) was amended, effective March 1, 2013, to include
201 language allowing the defendant to demand filing of the complaint or to file the
202 complaint itself. This language was transferred from Rule 4.
203 Subparagraph (d)(2)(A) was amended, effective April 1, 2013, to clarify
204 that any party who files a complaint or other initiating pleading must serve notice
205 on the other parties in the matter. Service of the summons must be made under
206 Rule 4.
207 Subparagraph (d)(2)(A)(vi) was added, _________________, to require that
208 the summons and complaint be filed within one year of commencement of the
209 action against any party. To avoid dismissal with prejudice for failure to file within
210 the one-year period allowed, all parties must execute a stipulation prior to the
211 expiration of the one-year period agreeing to delayed filing.
212 Subdivision (f) was amended, effective March 1, 2003, to permit proof of
213 service to be made by court personnel as well as by an attorney. Proof of service
214 may also be made in the same manner as provided by Rule 4(i).
215 Rule 5 was amended, effective March 1, 2011, in response to the December
216 1, 2007, revision of the Federal Rules of Civil Procedure. The language and
217 organization of the rule were changed to make the rule more easily understood and
218 to make style and terminology consistent throughout the rules.
219 Rule 5 was amended, effective April 1, 2013, to replace the term "paper"
220 with "document" throughout the rule.
221 Sources: Joint Procedure Committee Minutes of _____________________;
222 September 26, 2013, pages 28-29; April 25-26, 2013, pages 15-16; January 31-
223 ebruary 1, 2013, pages 2-5, 15-18; January 26-27, 2012, pages 13-16; September
224 24-25, 2009, pages 12-13; April 24-25, 2008, pages 18-21; January 24, 2008,
225 pages 2-7; October 11-12, 2007, pages 20-27; April 26-27, 2007, pages 19-22;
226 September 27-28, 2001, pages 11-12; April 30-May 1, 1998, page 3; January 29-
227 0, 1998, page 18; September 26-27, 1996, pages 16-17, 20; September 23-24,
228 1993, pages 19-20; April 29-30, 1993, pages 20-21; November 7-8, 1991, page 3;
229 October 25-26, 1990, pages 10-12; April 20, 1989, page 2; December 3, 1987,
230 page 11; May 21-22, 1987, pages 17-18; February 19-20, 1987, page 4; September
231 18-19, 1986, page 8; November 30, 1984, pages 26-27; October 18, 1984, pages 8-
232 1; November 29-30, 1979, page 2; September 20-21, 1979, pages 4-5;
233 Fed.R.Civ.P. 5.
234 Cross Reference: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction -- Process
235 -- Service), N.D.R.Civ.P. 45 (Subpoena), and N.D.R.Civ.P. 77 (District Courts and
236 Clerks); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.Ct. 3.1
237 (Pleadings); N.D.R.Ct. 3.5 (Electronic Filing in the District Courts); N.D.R.Ct. 6.4
238 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and Decrees); N.D.R.Ct. 11.2
239 (Withdrawal of Attorneys)