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RULE 4. APPEAL—WHEN TAKEN

Effective Date: 3/1/2018

(a) Appeal in Civil Case.

(1) Time For Filing Notice of Appeal. In a civil case, except as provided in paragraph (a)(4), the notice of appeal required by Rule 3 must be filed with the clerk of the supreme court within 60 days from service of notice of entry of the judgment or order being appealed.
(2) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this subdivision, whichever period ends later.
(3) Effect of Motion on Notice of Appeal.
(A) If a party files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, however titled, and does so within the time allowed by those rules, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b) ;
(ii) to amend or make additional factual findings under Rule 52(b) , whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is served and filed no later than 28 days after notice of entry of judgment;
(B)
(i) If a party files with the clerk of district court any motion listed in subparagraph (a)(3)(A) after a notice of appeal is filed, the party filing the motion must notify the clerk of the supreme court in writing, and the court may remand the case to the district court to decide the motion. The supreme court retains jurisdiction on remand unless it expressly dismisses the appeal. If the supreme court remands and retains jurisdiction, the parties must promptly notify the supreme court clerk when the district court has decided the motion on remand.
(ii) A party intending to challenge an order disposing of any motion listed in subparagraph (a)(3)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal, in compliance with Rule 3(c) , within the time prescribed by this rule measured from the service of notice of the entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
(4) Motion for Extension of Time.
(A) The supreme court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by subdivision (a) expires; and
(ii) that party shows excusable neglect or good cause.
(B) If a motion for extension of time is filed, notice must be given to the other parties.
(C) No extension under paragraph (a)(4) may exceed 30 days after the prescribed time.

(b) Appeal in Criminal Case.

(1) Time for Filing Notice of Appeal.
(A) In a criminal case, a defendant's notice of appeal must be filed with the clerk of the supreme court within 30 days after the entry of the judgment or order being appealed.
(B) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of the supreme court within 30 days after the entry of the judgment or order being appealed.
(2) Filing Before Entry of Judgment. A notice of appeal filed after the district court announces a decision, sentence, or order, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
(3) Effect of Motion on Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 30 days after the entry of the order disposing of the last such remaining motion, or within 30 days after the entry of the judgment of conviction, whichever period ends later:
(i) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 30 days after the entry of the judgment;
(ii) for arrest of judgment under Rule 34.
(B) If the defendant files with the clerk of district court any motion listed in subparagraph (b) (3) (A) after a notice of appeal is filed, the defendant must notify the clerk of the supreme court in writing, and the court may remand the case to the district court for disposition of the motion.
(C) A notice of appeal filed after the district court announces a decision, sentence, or order, but before it disposes of any of the motions referred to in subparagraph (b) (3) (A) , becomes effective upon the later of the following:
(i) the entry of the order disposing of the last such remaining motion;
(ii) the entry of the judgment of conviction.
(D) A valid notice of appeal is effective, without amendment, to appeal from an order disposing of any of the motions referred to in subparagraph (b) (3) (A).
(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the supreme court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(5) Jurisdiction. The filing of a notice of appeal under this subdivision does not divest a district court of jurisdiction to correct a sentence under N.D.R.Crim.P. 35(a) , nor does the filing of a motion under Rule 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under N.D.R.Crim.P. 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
(6) Entry Defined. A judgment or order is entered for purposes of this subdivision when it is entered on the criminal docket.

(c) Appeal in Contempt Case. A notice of appeal must be filed with the clerk of the supreme court within 60 days after entry of the judgment or order being appealed. Upon a finding of excusable neglect or for good cause, the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

(d) Appeal in Post-Conviction Proceeding. A notice of appeal must be filed with the clerk of the supreme court within 60 days of service of notice of entry of the judgment or order being appealed. Upon a finding of excusable neglect or good cause, the supreme court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

(e) Appeal in Proceeding Under Uniform Juvenile Court Act.Except for an appeal in a termination of parental rights proceeding, a notice of appeal in a proceeding under the Uniform Juvenile Court Act must be filed with the clerk of the supreme court within 30 days of service of notice of entry of the judgment, order or decree being appealed. Upon a finding of excusable neglect or good cause, the supreme court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

(f) Mistaken Filing in District Court. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the district court, the clerk of district court must note on the notice the date when it was received and send it to the clerk of the supreme court. The notice is then considered filed in the supreme court on the date so noted.

Rule 4 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998; March 1, 1999; August 1, 2001; March 1, 2003; March 1, 2007; March 1, 2008; March 1, 2011; May 4, 2011; March 1, 2012; Oct 1, 2014; March 1, 2018.

The time for civil appeals runs from "service of notice of entry" of the order or judgment. However, service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party. See N.D.R.Civ.P. 58(b).

The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. This differs from the federal rule, which provides the time for appeal is to run from "the date of entry."

The time limit for taking an appeal does not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.

Rule 4 was amended, effective Oct 1, 2014, to conform the rule for filing of the notice of appeal in the supreme court.

Subdivision (a) was amended, effective March 1, 1999, to provide the 30 day extension for excusable neglect is to be added to the time for appeal provided by the statute or rule setting the time for appeal. A party seeking an extension of time to appeal should file a notice of appeal with the motion for extension.

Subparagraph (a)(3)(A) was amended, effective Oct 1, 2014, to add the words "however titled" to the language authorizing extension of the appeal period for the filing of certain motions. This amendment is intended to make clear that the substance and not the title of the motion should control. Therefore, a post-judgment motion under any of the listed rules, whether titled as a motion to alter, amend, or vacate, for relief from judgment, or for reconsideration, will toll the time period to file a notice of appeal.

Subparagraph (a)(3)(A) was amended, effective March 1, 2018, to clarify that only a motion filed within the time allowed by the North Dakota Rules of Civil Procedure will toll the appeal time.

Subparagraph (a)(3)(A)(vi) was amended, effective March 1, 2011, to increase the time to file a Rule 60 motion from 15 to 28 days after notice of entry of judgment.

Subparagraph (a)(3)(B) was amended, effective March 1, 2012, to provide that the supreme court retains jurisdiction when remanding a case to the district court to decide a motion unless the supreme court expressly dismisses the appeal.

Subparagraph (a)(3)(B)(ii) was amended, effective March 1, 2011, to track the 2009 amendments to Fed.R.App.P. 4. The amendment changed the phrase "judgment altered or amended" to "judgment's alteration or amendment."

Subdivision (b) was amended, effective March 1, 2003, to increase the time for a criminal defendant to appeal from 10 days to 30 days.

Subdivision (b) was amended, effective March 1, 2008, to clarify that the time for appeal continues to run even if a motion to correct a sentence under N.D.R.Crim.P. 35 is filed.

Subdivision (d) was adopted, effective August 1, 2001, to provide a time for appeal in a post-conviction proceeding.

Subdivision (e) was adopted, effective March 1, 2007, to clarify the time for appeal in a proceeding under the Uniform Juvenile Court Act. Requests for extension of time in juvenile cases must be directed to the supreme court.

Subdivision (e) was amended, effective May 4, 2011, to specify that appeals in termination of parental rights proceedings are not governed by the appeal deadlines in this rule. Appeals in termination of parental rights proceedings are expedited under Rule 2.2.

Subdivision (f) was amended, effective Oct 1, 2014, to provide a procedure to be used when a notice of appeal is mistakenly filed in district court.

Rule 4 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 4. 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 4 was amended, effective Oct 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."

SOURCES: Joint Procedure Committee Minutes of April 27, 2017, page 22; September 26, 2013, pages 14-15, pages 29-30; April 28-29, 2011, page 18; April 29-30, 2010, page 23; January 25, 2007, page 16; September 22-23, 2005, pages 25-26; April 26-27, 2001, pages 4-5; September 28-29, 2000, pages 10-13; January 27-28, 2000, pages 4-9; September 23-24, 1999, pages 11-12; April 30-May 1, 1998, page 13; January 30, 1997, page 8; January 25-26, 1996, pages 7-10; April 29-30, 1993, pages 2-3, 16-18; November 29, 1984, pages 19-20; April 26, 1984, pages 23-24; January 20, 1984, pages 10-15; September 18-19, 1980, page 20; January 12-13, 1978, page 25; Fed.R.App.P. 4

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C.  § 28-27-04.

CONSIDERED: N.D.C.C. § 27-20-56.

CROSS REFERENCE: N.D.R.App.P. 2.2 (Termination of Parental Rights - Expedited Appeals)

Effective Date Obsolete Date
03/01/2018 View
10/01/2014 03/01/2018 View
03/01/2012 10/01/2014 View
03/04/2011 03/01/2012 View
03/01/2011 03/04/2011 View
03/01/2008 03/01/2011 View
03/01/2007 03/01/2008 View
03/01/2003 03/01/2007 View
08/01/2001 03/01/2003 View
03/01/2000 08/01/2001 View
03/01/1999 03/01/2000 View
03/01/1998 03/01/1999 View
03/01/1997 03/01/1998 View
03/01/1994 03/01/1997 View