Obsolete Date: 11/1/2020
(a) Content of Motions. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief must be made by filing a motion for the order or relief with proof of service on all other parties. The motion must:
(1) contain or be accompanied by any matter required by a specific provision of these rules governing that motion;
(2) state with particularity the grounds on which it is based; and
(3) set forth the order or relief sought.
If a motion is supported by briefs, affidavits, or other documents, they must be served and filed with the motion.
(b) Response to Motion. Any party may file a response in opposition to a motion other than one for a procedural order (see subdivision (c) ) within 14 days after service of the motion, but motions authorized by Rules 8, 9, and 41 may be acted upon after reasonable notice. The court may shorten or extend the time for responding to any motion.
(c) Determination of Motions for Procedural Orders.Notwithstanding the provisions of subdivision (b) , the court may act upon motions for procedural orders, including any motion under Rule 26(b) , without awaiting a response. Any party adversely affected by action on the motion may request reconsideration, vacation, or modification of the action.
(d) Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice of the court may entertain and grant or deny any request for relief which may properly be sought by motion under these rules, with the following exceptions:
(1) a single justice may not dismiss or otherwise determine an appeal or other proceeding; and
(2) the court may provide by order or rule that any motion or class of motions must be acted upon by the court.
The action of a single justice may be reviewed by the court.
(e) Form of Documents; Number of Copies. The form of all documents relating to motions must comply with the requirements of Rule 25, if applicable, and Rule 32. If filed by mail or third-party commercial carrier, seven copies of all documents relating to motions must be filed with the original, but the court may require that additional copies be furnished. One electronic copy of all documents relating to a motion must be filed if the motion is filed electronically.
(f) Motion to Dismiss Based on Ground Appeal Not Authorized by Law. Unless otherwise ordered by the court, the filing of a motion to dismiss based on the ground that the appeal is not authorized by law tolls the time for filing briefs on the merits. If the motion is denied, the running of the time for filing briefs on the merits resumes upon notice of entry of the order.
This rule is taken from Fed.R.App.P. 27. It contemplates that most procedural matters will be determined by a single justice of the court.
Subdivision (b) was amended, effective March 1, 2011, to increase the time for a party to respond to a motion from 10 to 14 days.
Subdivision (e) was amended, effective October 1, 2014, to conform the rule to electronic filing.
Subdivision (e) was amended, effective November 1, 2020, to require one copy of the motion and motion documents to be filed when filing by mail or third-party commercial carrier.
Subdivision (f) was adopted, effective March 1, 1986.
Rule 27 was revised, effective March 1, 2003. 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 27 was amended, effective October 1, 2014, to replace "paper" with "document."
Rule 27 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Supreme Court Conference Minutes of September 10, 1985. Joint Procedure Committee Minutes of September 24, 2020, pages 2-3; April 24, 2020, pages 4-5; September 26, 2013, page 24-25; April 29-30, 2010, page 20; November 29, 1984, page 2; May 25-26, 1978, pages 12-13. Fed.R.App.P. 27.
SUPERSEDED: N.D.C.C. §29-28-20.
CONSIDERED; N.D.C.C. ch. 31-15.
CROSS REFERENCE: N.D.R.App.P. 8 (Stay or Injunction Pending Appeal); N.D.R.App.P. 9 (Release in Criminal Cases); N.D.R.App.P. 25 (Filing and Service); N.D.R.App.P. 26 (Computing and Extending Time); N.D.R.App.P. 32 (Form of Briefs and Other Documents); N.D.R.App.P. 41 (Mandate; Contents; Issuance; Effective Date; Stay).