TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2015
RE: Rule 6, N.D.R.Civ.P., Computing and Extending Time; Time for Motion Papers; Rule 3.2, N.D.R.Ct., Motions
Recently, the Odyssey User Group was working to establish time standards on when a court can dispose of a motion. During the discussion, the group identified an inconsistency between the standards in Rule 6 and in Rule 3.2.
Rule 6 currently says that "[a] written motion and notice of motion must be served at least 21 days before the motion may be heard." Depending on how a court defines the word "heard," this language could be read to impose a 21-day "waiting period" before a motion can be decided. Such a requirement would conflict with Rule 3.2's language that "[u]pon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion." The user group's discussion suggested there is a lack of consensus about the meaning of the word "heard" and whether this word only applies to hearing a motion at oral argument as opposed to "hearing" a motion by reading the submitted briefs.
In order to clarify this perceived conflict and make it easier to calculate when the 21-day period applies, staff has prepared proposed amendments to Rule 6 that would specify that the "waiting period" applies only when oral argument is requested. Proposed amendments to the explanatory notes of Rule 6 and Rule 3.2 would highlight this change and also clarify that, if no oral argument is scheduled, the court can decide a motion without waiting 21 days. The proposed amendments are attached.