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 (4) Reopening Proceedings. In any proceeding to modify an order for
22 alimony, property division, or child support under N.D.C.C. § 14-05-24 or an order
23 for child custody under N.D.C.C. § 14-05-22, or in any proceeding to amend a
24 judgment that is commenced more than one year after entry of judgment, service
25 must be made on each party and each of their last known attorneys under Rule
27 (b) Service--How made.
28 (1) Service in general. A document that is required to be filed must be
29 served electronically under the procedure specified in N.D.R.Ct. 3.5. Electronic
30 service on an attorney must be made to the designated e-mail service address
31 posted on the N.D. Supreme Court website. Electronic service is complete on
32 transmission. Except as provided in N.D.R.Ct. 3.5(e)(4), electronic service is not
33 effective if the serving party learns through any means that the document did not
34 reach the person to be served.
35 (2) Persons Served.
36 (A) Service on a Party Represented by an Attorney. If a party is represented
37 by an attorney, service under this rule must be made on the attorney unless the
38 court orders service on the party. If an attorney is providing limited representation
39 under Rule 11(e), service must be made on the party and on the attorney for
40 matters within the scope of the limited representation.
41 (B) Persons Exempt from Electronic Service. Persons who are exempt from
42 electronic service and filing under N.D.R.Ct. 3.5 must serve documents under Rule
44 (3) Other Service. A document that is not required to be filed, or that will be
45 served on a person exempt from electronic service, is served under this rule by:
46 (A) handing it to the person;
47 (B) leaving it:
48 (i) at the person's office with a clerk or other person in charge or, if no one
49 is in charge, leaving it in a conspicuous place in the office; or,
50 (ii) if the person has no office or the office is closed, at the person's
51 dwelling or usual place of abode with someone of suitable age and discretion who
52 resides there;
53 (C) mailing it to the person's last known address, in which event service is
54 complete upon mailing;
55 (D) sending it by a third-party commercial carrier to the person's last known
56 address, in which event service is complete upon deposit of the document to be
57 served with the commercial carrier;
58 (E) if no address is known, on order of the court by leaving it with the clerk
59 of court;
60 (F) sending it by electronic means if the person consented in writing, in
61 which event service is complete on transmission, but is not effective if the serving
62 party learns that it did not reach the person to be served; or
63 (G) delivering it by any other means that the person consented to in writing.
64 (c) Serving Numerous Defendants.
65 (1) In General. If an action involves an unusually large number of
66 defendants, the court may, on motion or on its own, order that:
67 (A) defendants' pleadings and replies to them need not be served on other
69 (B) any crossclaim, counterclaim, avoidance, or affirmative defense in those
70 pleadings and replies to them will be treated as denied or avoided by all other
71 parties; and
72 (C) filing any such pleading and serving it on the plaintiff constitutes notice
73 of the pleading to all parties.
74 (2) Notifying Parties. A copy of every such order must be served on the
75 parties as the court directs.
76 (d) Filing.
77 (1) In General. Unless a statute, court rule, or court order provides
78 otherwise, all documents in an action must be filed with the clerk electronically,
79 through the Odyssey® system.
80 (2) Initiating Pleading.
81 (A) The Summons and Complaint.
82 (i) The summons and complaint, or other initiating pleading, must be filed
83 before a subpoena may be issued. Unless otherwise authorized by rule or statute, a
84 party seeking to file an initiating pleading must provide proof that the pleading
85 was served under Rule 4. The proof of service must be filed with the initiating
87 (ii) A party who files a complaint or other initiating pleading must serve
88 notice of filing on the other parties.
89 (iii) The defendant may demand that the plaintiff file the complaint.
90 - Service of the demand must be made under Rule 5(b) on the plaintiff's
91 attorney or under Rule 4(d) on the plaintiff if the plaintiff is not represented by an
93 - In cases with multiple defendants, service of a demand by one defendant is
94 effective for all the defendants.
95 - If the plaintiff does not file the complaint within 20 days after service of
96 the demand, service of the summons is void.
97 - The demand must contain notice that if the complaint is not filed within 20
98 days, service of the summons will be void, unless, after motion made within 60
99 days after service of the demand for filing, the court finds excusable neglect.
100 (iv) The defendant may file the summons and complaint, and the costs
101 incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).
102 (B) The Answer. Within a reasonable time after service of the notice of
103 filing the complaint or initiating pleading, the defendant or respondent must file
104 the answer and notify the plaintiff of the filing.
105 (3) Discovery Materials. A party must not file discovery materials with the
106 clerk unless:
107 (A) the materials are being submitted to the court for disposition of a
108 pending motion;
109 (B) the court orders them to be filed; or
110 (C) a party certifies that the filing is necessary for safekeeping of the
111 documents or exhibits pending case completion, in which event the party must
112 state the reasons safekeeping is necessary.
113 (4) Return of Discovery Materials.
114 (A) The clerk shall return the following documents to the filing party upon
115 final disposition of an appeal or, if no appeal is filed, upon expiration of the time
116 for appeal:
117 (i) depositions;
118 (ii) interrogatories;
119 (iii) requests for admission;
120 (iv) requests for interrogatories;
121 (v) requests for production of documents; and
122 (vi) answers and responses to the above documents.
123 (B) If the filing party does not claim a filed document within 60 days after
124 notification to do so, the clerk may dispose of the document as directed by court
126 (C) The clerk must take a receipt for all documents returned.
127 (5) Documents to be Used on Hearing. Unless otherwise directed by the
128 court, all affidavits, notices and other documents designed to be used on the
129 hearing of a motion or order to show cause must be filed at least 24 hours before
130 the hearing.
131 (6) Failure to Comply. If a party fails to comply with this subdivision, the
132 court, on motion of any party or its own motion, may order the documents to be
133 filed. If the order is not obeyed, the court may order them to be regarded as
134 stricken and their service to be ineffective.
135 (7) Rejection. Except as otherwise provided under Rules 13, 14, or 15, the
136 clerk must reject for filing any document that adds a party to an action or
137 proceeding without a court order. The clerk must endorse on the document a
138 notation that it is rejected for filing under this rule and return the document to the
139 person who tendered it for filing.
140 (e) Removal of Pleadings for Service. Upon a filing party's request, an
141 original pleading or document in any civil action, which by law is required to be
142 filed in the clerk of court's office where the action is pending, may be removed
143 from the files for the purpose of serving it either inside or outside the state but
144 must be returned without delay.
145 (f) Proof of Service. Proof of service under this rule is made as provided in
146 Rule 4 or by an attorney's or court personnel's certificate showing that service was
147 made under subdivision (b).
148 EXPLANATORY NOTE
149 Rule 5 was amended effective 1971, July 1, 1981; March 1, 1986; January
150 1, 1988; March 1, 1990; March 1, 1992, on an emergency basis; March 1, 1994;
151 January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2003; March 1, 2008;
152 March 1, 2009; March 1, 2011; March 1, 2013; April 1, 2013; March 1,
154 Rule 5 applies to service of documents other than "process." In contrast,
155 Rule 4 governs civil jurisdiction and service of process. When a statute or rule
156 requiring service does not pertain to service of process, nor require personal
157 service under Rule 4, nor specify how service is to be made, service may be made
158 as provided in Rule 5(b). An example of a rule that requires a particular type of
159 service is N.D.R.Ct. 11.2, which specifies that attorneys seeking to withdraw from
160 representation must give notice to their client "by personal service, by registered or
161 certified mail, or via a third-party commercial carrier providing a traceable
163 Subdivision (a) was amended, effective March 1, 2008, to improve
164 organization and to make the subdivision easier to understand.
165 Paragraph (b)(1) was amended, effective March 1, 2009, to make it clear
166 that, when an attorney has served a notice of limited representation under Rule
167 11(e), service of documents on the attorney is not required except for documents
168 within the scope of the limited representation. Rule 5, Rule 11 and N.D.R.Ct. 11.2,
169 were amended to permit attorneys to assist otherwise self-represented parties on a
170 limited basis without undertaking full representation of the party.
171 Paragraph (b)(1) was amended, effective March 1, 2014, to require any
172 electronic service on an attorney to be made to the attorney's designated e-mail
173 address as posted on the North Dakota Supreme Court website.
174 Paragraph (b)(2) was amended, effective April 1, 2013, to specify that
175 electronic service through the Odyssey® system under the procedure specified in
176 N.D.R.Ct. 3.5 is required for most documents that will be filed with the court.
177 Paragraph (b)(3) was amended, effective March 1, 2009, to provide for
178 service by electronic means and to improve organization. Parties seeking to serve
179 documents by electronic means must consult N.D.R.Ct. 3.5 for electronic service
181 Paragraph (b)(3) was amended, effective April 1, 2013, to specify that the
182 other means of service listed in the paragraph apply only when the document
183 served is not required to be filed or when it will be served on a person exempt
184 from electronic service.
185 Subdivision (b) was amended, effective March 1, 1999, to permit service
186 via a third-party commercial carrier as an alternative to the Postal Service. The
187 requirement for a "third-party commercial carrier" means the carrier may not be a
188 party to nor interested in the action, and it must be the regular business of the
189 carrier to make deliveries for profit. A law firm may not act as or provide its own
190 commercial carrier service with service complete upon deposit. In addition, the
191 phrase "commercial carrier" does not include electronic delivery services.
192 Paragraph (d)(1) was amended, March 1, 2008, to delete a reference to the
193 note of issue and certificate of readiness.
194 Paragraph (d)(1) was amended, effective April 1, 2013, to specify that filing
195 must be accomplished electronically through the Odyssey® system unless a statute,
196 rule or order provides otherwise.
197 Subparagraph (d)(2)(A) was amended, effective March 1, 2013, to require
198 that proof of service be provided and filed by a party seeking to file an initiating
199 pleading. Under Rule 3, an action is commenced on service of the initiating
200 pleading, not on filing. Unless a rule specifically provides otherwise, service under
201 Rule 4 must be accomplished before any pleadings in an action may be filed.
202 Subparagraph (d)(2)(A) was amended, effective March 1, 2013, to include
203 language allowing the defendant to demand filing of the complaint or to file the
204 complaint itself. This language was transferred from Rule 4.
205 Subparagraph (d)(2)(A) was amended, effective April 1, 2013, to clarify
206 that any party who files a complaint or other initiating pleading must serve notice
207 on the other parties in the matter. Service of the summons must be made under
208 Rule 4.
209 Subdivision (f) was amended, effective March 1, 2003, to permit proof of
210 service to be made by court personnel as well as by an attorney. Proof of service
211 may also be made in the same manner as provided by Rule 4(i).
212 Rule 5 was amended, effective March 1, 2011, in response to the December
213 1, 2007, revision of the Federal Rules of Civil Procedure. The language and
214 organization of the rule were changed to make the rule more easily understood and
215 to make style and terminology consistent throughout the rules.
216 Rule 5 was amended, effective April 1, 2013, to replace the term "paper"
217 with "document" throughout the rule.
218 SOURCES: Joint Procedure Committee Minutes of
219 ____________________; September 26, 2013, pages 28-29; April 25-26, 2013,
220 pages 15-16; January 31-February 1, 2013, pages 2-5, 15-18; January 26-27, 2012,
221 pages 13-16; September 24-25, 2009, pages 12-13; April 24-25, 2008, pages 18-
222 21; January 24, 2008, pages 2-7; October 11-12, 2007, pages 20-27; April 26-27,
223 2007, pages 19-22; September 27-28, 2001, pages 11-12; April 30-May 1, 1998,
224 page 3; January 29-30, 1998, page 18; September 26-27, 1996, pages 16-17, 20;
225 September 23-24, 1993, pages 19-20; April 29-30, 1993, pages 20-21; November
226 7-8, 1991, page 3; October 25-26, 1990, pages 10-12; April 20, 1989, page 2;
227 December 3, 1987, page 11; May 21-22, 1987, pages 17-18; February 19-20, 1987,
228 page 4; September 18-19, 1986, page 8; November 30, 1984, pages 26-27; October
229 18, 1984, pages 8-11; November 29-30, 1979, page 2; September 20-21, 1979,
230 pages 4-5; Fed.R.Civ.P. 5.
231 CROSS REFERENCE: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction-
232 Process-Service), N.D.R.Civ.P. 45 (Subpoena), N.D.R.Civ.P. 77 (District Courts
233 and Clerks),N.D.R.Crim.P. 49 (Service and Filing of Papers), N.D.R.Ct. 3.1
234 (Pleadings), N.D.R.Ct. 3.5 (Electronic Filing in the District Courts); N.D.R.Ct. 6.4
235 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and Decrees); N.D.R.Ct. 11.2
236 (Withdrawal of Attorneys).