RULE 38. DAMAGES AND COSTS—FRIVOLOUS APPEAL OR DILATORY PROSECUTION OF APPEAL

Effective Date: 3/1/2003

If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.

Rule 38 was amended, effective March 1, 2003

This rule is derived from Fed.R.App.P. 38. It is clear under the North Dakota rule that damages may be assessed against any party to an appeal.

Rule 38 relates to an initial determination by the supreme court. In contrast, N.D.C.C. § 28-26-01, regarding "frivolous" pleadings, and N.D.C.C. § 28-26-31, regarding "untrue" pleadings made "without reasonable cause and not in good faith," involve determinations that are to be made initially by the district court. It is not intended that Rule 38 limit Rule 13.

Rule 38 was amended, effective March 1, 2003. The title of the rule was changed to track the title to Fed.R.App.P. 38 and to more completely describe the content of the rule.

SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, page 22; May 25-26, 1978, page 18; January 12-13, 1978, pages 4-5; September 15-16, 1977, page 21-22. Fed.R.App.P. 38.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. § 28-26-02(4).

Effective Date Obsolete Date
03/01/2003 View
05/25/1978 03/01/2003 View