RULE 25. FILING AND SERVICE

Effective Date: 3/1/2019

(a) Filing.

(1) Filing with the Clerk. A document required or permitted to be filed in the supreme court must be filed with the clerk of the supreme court.

(2) Filing: Method and Timeliness.

(A) In general. Filing may be accomplished by mail or delivery addressed to the clerk or by electronic means as provided in these rules, but filing is not timely unless the clerk receives the documents within the time fixed for filing. If a document submitted for filing is rejected, the time for filing is tolled from the time of submission to the time the rejection notice is sent. A corrected document will be considered timely filed if submitted and served within three days after the notice of rejection is sent.

(B) Brief, appendix, transcript or petition for rehearing. A brief, appendix, transcript, or petition for rehearing is considered filed on the day of electronic filing, or mailing or deposit with a third-party commercial carrier.

(C) Electronic filing. Documents must be filed by electronic means to the extent provided and under procedures established in these rules. Self-represented litigants and prisoners are exempt from the electronic filing requirement and may file paper documents in person, by mail, or by third party commercial carrier. A document filed by electronic means in compliance with these rules constitutes a written document for the purpose of applying these rules.

(i) Documents, except an appendix, may be filed electronically with the clerk of the supreme court by facsimile only if e-mail submission is not possible.

(ii) The typed attorney or party name or facsimile signature on a document filed electronically has the same effect as an original manually affixed signature.

(iii) A document in compliance with these rules and submitted electronically to the clerk of the supreme court by 11:59 p.m. Bismarck, North Dakota, time is considered filed on the date submitted. Upon receiving an electronic document, the clerk of the supreme court will issue an e-mail confirmation that the document has been received.

(iv) A party filing a document electronically must pay a surcharge for internal reproduction of the document by the supreme court if the party files a motion in excess of 20 pages in length -- including attachments, exhibits or appendices -- or an appendix in excess of 100 pages in length. The surcharge is $ 0.50 per page for each page in excess of the limit.

(3) Electronic Document Formats. All documents submitted to the court in electronic form must be in approved word processing format or portable document format (PDF). Documents filed in PDF format must be directly converted from a word processing file, rather than scanned if possible. Documents or parts of documents not available in electronic form may be converted to PDF from scanned images. To the extent practicable, PDF documents converted from scanned images should be text-searchable. Electronically filed documents may not be locked, password protected, or contain embedded files or scripts.

(A) Approved word processing formats for documents submitted in electronic form are WordPerfect, Word, and ASCII. Parties must obtain permission from the clerk of the supreme court in advance if they seek to submit documents in another word processing format.

(B) Hard page breaks must separate the cover, table of contents, table of cases, and body of approved word processing format briefs.

(C) An appendix may be filed electronically in portable document format (PDF). Except for limited excerpts showing a court's reasoning, district court transcripts that have been filed electronically with the supreme court may not be included in an appendix filed electronically.

(4) Filing Motion with Justice. If a motion requests relief that may be granted by a single justice, the justice may receive the motion for filing; the justice must note the filing date on the motion and give it to the clerk.

(5) Filing with the Clerk. Any document filed with the clerk of the supreme court by e-mail by the district court or counsel must be sent to the following e-mail address: supclerkofcourt@ndcourts.gov.

(b) Service of All Documents Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a document, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party's counsel.

(c) Manner of Service.

(1) Service may be any of the following:

(A) personal, including delivery to a clerk or a responsible person at the office of counsel;

(B) by mail;

(C) by third-party commercial carrier for delivery within three days; or

(D) by electronic means.

(2) When reasonable, considering such factors as the immediacy of the relief sought, distance and cost, service on a party must be by a manner at least as expeditious as the manner used to file the document with the court. If a party files a document by electronic means, the party must serve the document by electronic means unless the recipient of service cannot accept electronic service.

(3) Service by mail is complete upon mailing. Service via a third-party commercial carrier is complete upon deposit of the document to be served with the commercial carrier. Service by electronic means is complete on transmission, unless the party making service is notified that the document was not received by the party served.

(4) Electronic Service.

(A) All documents filed electronically must be served electronically except paper documents must be served when a self-represented litigant or prisoner cannot accept electronic service.

(B) Attorneys appearing before or filing with the supreme court must provide an e-mail address to the court and must accept electronic service. Attorneys may designate a law firm e-mail address as their e-mail address for the purpose of accepting electronic service. If the recipient's e-mail address is published on the supreme court's website or known to a party, the document must be served by electronic means to that e-mail address.

(C) Documents served electronically may be served by facsimile only if e-mail service is not possible and only if prior permission to serve by facsimile is granted by the recipient.

(D) If a recipient cannot accept electronic service of a document, service under another means specified by N.D.R.App.P. 25(c) is required.

(d) Proof of Service. A document presented for filing must contain an acknowledgment of service by the person served or proof of service by the person who made service. Proof of service may appear on or be affixed to the document filed. The clerk may permit a document to be filed without acknowledgment or proof of service but must require acknowledgment or proof of service to be filed promptly.

Rule 25 was amended, effective January 1, 1988; on an emergency basis, September 5, 1990; on an emergency basis, November 16, 1994; March 1, 1996; March 1, 1999; March 1, 2003; March 1, 2008; March 1, 2011; October 1, 2014; March 1, 2019.

This rule is derived from Fed.R.App.P. 25. Rule 25 was amended, effective March 1, 1999, to allow the use of a third-party commercial carrier as an alternative to the Postal Service. The phrase "commercial carrier" is not intended to encompass electronic delivery services.

Subdivision (a) provides documents are not considered filed until they are received by the clerk of the supreme court. Briefs, appendices, transcripts, and petitions for rehearing are exceptions to this general rule.

Subparagraph (a)(2)(C), effective March 1, 2003, allows the court to accept documents filed by electronic means.

Subparagraph (a)(2)(C) was amended, effective March 1, 2019, to require electronic filing by all parties other than self-represented litigants and prisoners and to eliminate most fees that applied specifically to electronic filing.

Paragraph (a)(3) was amended, effective March 1, 2019, to add requirements for documents filed electronically.

Subdivisions (a) and (c) were amended, effective October 1, 2014, to incorporate N.D. Sup. Ct. Admin. Order 14 and to conform the rule to electronic filing. N.D. Sup. Ct. Admin. Order 14 was repealed, effective October 1, 2014.

Subdivision (c) was amended, effective March 1, 2008, to provide for service by electronic means.

Subparagraph (c)(1)(C) was amended, effective March 1, 2011, to change the reference from "calendar days" to "days."

Subparagraph (c)(4)(A) was amended, effective March 1, 2019, to require electronic service of documents filed electronically except when a self-represented litigant or prisoner cannot accept electronic service.

Subdivision (d) allows proof of service by admission of service, affidavit of service, or certificate of an attorney.

Rule 25 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed. R. App. P. 25. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Rule 25 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court" and "paper" with "document."

SOURCES: Joint Procedure Committee Minutes of April 27, 2018, pages 2-4; January 25, 2018, pages 11-12; September 26, 2013, page 22-24; April 29-30, 2010, page 20; January 25, 2007, page 17;April 25-26, 2002, pages 3-5; April 26-27, 2001, page 10; April 30-May 1, 1998, page 3; January 29-30, 1998, page 21; January 26-27, 1995, pages 6-7; September 29-30, 1994, page 12; February 19-20, 1987, pages 6-7; September 18-19, 1986, pages 14-15; May 25-26, 1978, page 10; March 16-17, 1978, pages 3-4. Fed.R.App.P. 25.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C.  § 28-27-05.

CROSS REFERENCE: N.D.R.App.P. 10 (The Record on Appeal); N.D.R.App.P. 26(c) (Computing and Extending Time).

Effective Date Obsolete Date
03/01/2019 View
10/01/2014 03/01/2019 View
03/01/2011 10/01/2014 View
03/01/2008 03/01/2011 View
03/01/2003 03/01/2008 View
03/01/1999 03/01/2003 View
03/16/1978 03/01/1999 View