TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 9, 2015
RE: Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Documents
Judge Josh Rustad contacted staff about using Rule 5 service for motions to amend child support. In an e-mail, attached, he indicated that Rule 4 service was preferable but acknowledged that Rowley v. Cleaver said that Rule 5 service was acceptable for these cases. Judge Rustad also pointed out that the Supreme Court in Rowley had stated a desire for this committee to discuss the issue of service in cases where a substantial period of time had passed after judgment. Staff reviewed committee records and it appears this discussion has not yet taken place.
Rowley involved a motion to increase child support in which all the documents were served on the out-of-state obligor via regular mail under Rule 5. The Court held this was adequate because the evidence showed that the obligor had actually received everything, but the Court acknowledged the possibility of service issues when a motion is made to amend a judgment years after the judgment was entered. The Court said in a footnote that "[t]he Joint Procedure Committee should consider whether N.D.R.Civ.P. 5 should be changed to require mailing to both the party and the party's last known attorney when motions are made to change a child support obligation." On the other hand, Justice Kapsner, writing for herself in a concurrence said that "Rule 4 service should be required to bring motions to amend a judgment, at least where a substantial period of time has passed since entry of the judgment."
Proposed amendments to Rule 5 based on the Rowley majority's suggestion are attached. The amendments are drafted to be "portable" so that they could be attached to Rule 4 if the committee decides that Rule 4 service would be appropriate in these types of cases.