Obsolete Date: 10/1/2014
(a) Time for Forwarding;Duty of Appellant.
(1) The clerk of district court must forward the exhibits necessary for determination of the appeal and the record on appeal, excluding the transcript, to the supreme court not less than 25 nor more than 30 days after the filing of the notice of appeal unless otherwise directed by the supreme court, or by a party or the person preparing the transcript, as provided in subdivision (c).
(2) After filing the notice of appeal, the appellant must do what is necessary to enable the clerk of district court to assemble and forward the record.
(b) Method of Forwarding Record.
(1) Documents Numbered and Listed. The clerk of district court must number the documents constituting therecord and send them to the supreme court clerk, together with a list of the documents correspondingly numbered and reasonably identified.
(2) Unusual Bulk or Weight. Unless directed to do so by a party or by the supreme court clerk, the clerk of district court must not forward to the court documents of unusual bulk or weight, or physical exhibits other than documents. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(3) Mail or Other Means; Endorsement. The clerk of district court may forward the record to the supreme court clerk by mail or other means. The clerk of district court must indicate, by endorsement on the face of the record or otherwise, the date the record is forwarded to the court.
(c) Temporary Retention of Record in District Court for Use in Preparing Briefs and Transcript.
(1) A party or the person preparing the transcript may retain the record in the district court by sending a written request to the clerk of district court within the earliest time stated in subdivision (a) for forwarding the record. Copies of the request must be sent to all counsel of record and to the supreme court clerk.
(2) If the record is retained by a party under this subdivision, the appellant, upon receipt of the appellee's brief, must request the clerk of district court to forward the record, unless forwarding of the record at an earlier time is agreed upon by the parties or directed by the supreme court.
(3) If the record is retained by the person preparing the transcript under this subdivision, upon filing the transcript, that person must request the clerk of district court to forward the record, unless the supreme court directs the record to be forwarded at an earlier time.
(d) Retaining the Record by Court Order.
(1) The supreme court may order that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.
(2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject to call by the supreme court.
(3) If part or all of the record is ordered retained, the clerk of district court must send to the supreme court a copy of the order and the docket entries, together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties.
(e) Retaining Parts of Record in District Court by Stipulation of Parties. The parties may agree, by written stipulation filed in the district court, that designated parts of the record be retained in the district court, subject to call by the supreme court or request by a party. The parts of the record so designated remain a part of the record on appeal.
(f) Record for Preliminary Motion in Supreme Court. If, before the record is forwarded, a party makes any of the following motions in the supreme court:
- for dismissal;
- for release;
- for a stay pending appeal;
- for additional security on the bond on appeal or on a supersedes bond; or
- for any other immediate order --
the clerk of district court must send the supreme court any parts of the record designated by any party.
(g) Filing of Record. Upon receipt of the record, or of the parts of the record authorized to be filed under the provisions of subdivision (d) , the supreme court clerk must file the record. The clerk must give notice immediately to all parties of the date on which the record is filed.
(h) Dismissal for Failure to Timely Forward Record. If the appellant fails to cause timely forwarding of the record, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by the following:
- a certificate of the clerk of district court showing the date and substance of the judgment or order from which the appeal was taken;
- the date on which the notice of appeal was filed;
- the expiration date of any order or request extending the time for forwarding the record; and
- proof of service.
The appellant may respond within 14 days after service of the motion.
The duty to forward the record to the supreme court is imposed upon the clerk of district court. However, the appellant's counsel has the primary responsibility for assuring timely forwarding of the record.
Rule 11 separates the responsibilities of the clerk of district court and the person preparing the transcript. The clerk of district court has the duty of forwarding the record, excluding the transcript, to the clerk of the supreme court. The person preparing the transcript is responsible for filing the transcript under Rule 10(c) .
Under subdivision (a) the record is forwarded to the supreme court 25-30 days after the notice of appeal is filed. In an expedited appeal, the record is promptly forwarded to the supreme court.
Subdivisions (a) - (c) were amended October 1, 2014, to conform the rule to electronic filing.
It should be noted that for purposes of these rules, the transcript continues to be a part of the record, but is handled differently than the remainder of the record.
Rule 11 was amended, effective March 1, 2003, in response to the December 1, 1998, amendment to Fed.R.App.P. 11. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Rule 11 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of September 26, 2013, pages 20-21; April 26-27, 2001, page 9; May 25-26, 1978, pages 8-9; March 16-17, 1978, pages 2, 13-15; October 27-28, 1977, pages 3-6, 8-9; September 15-16, 1977, pages 13, 14-16; June 2-3, 1977, page 4. Fed.R.App.P. 11.
SUPERSEDED: N.D.C.C. § § 28-27-06, 28-27-08 and 29-28-18.
CROSS REFERENCE: N.D.R.App.P. 10 (The Record on Appeal).