RULE 64. SEIZING PROPERTY

Effective Date: 3/1/2011

Obsolete Date: 3/1/2017

At the commencement of and throughout an action, every remedy is available that, under the law of this state, provides for seizing property to secure satisfaction of the potential judgment.

Rule 64 was amended, effective March 1, 2011. The explanatory note was amended, effective March 1, 2017.

Rule 64 is derived from Fed.R.Civ.P. 64.

The principal departure from the federal rule is the authorization for the use of the remedies only for the seizure of property, not persons as in Fed.R.Civ.P. 64. Qualifications to the federal rule do not apply to the North Dakota court system and were not included. Also, the listing of remedies available has been omitted. These are found in the North Dakota Century Code.

The remedies available in this state include attachment (N.D.C.C. Chapter 32-08.1), replevin (N.D.C.C. Chapter 32-07), garnishment (N.D.C.C. Chapter 32-09), and others. Some state laws authorizing prejudgment remedies but not providing for prior notice and hearing have been struck down. See, Sniadach v. Family Finance Corporation of Bay View, 89 S.Ct. 1820, 395 U.S. 337, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 92 S.Ct. 1983, 407 U.S. 67, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); and Guzeman v. Western State Bank, 516 F.2d 125 (8th Cir. 1974). The latter case ruled that the North Dakota attachment statute (N.D.C.C. Chapter 32-08) violated due process. That statute was subsequently repealed and replaced by N.D.C.C. Chapter 32-08.1.

It is also possible some federal laws may take precedence in this area. For example, Sections 3933 and 3934 of the Servicemember's Civil Relief Act, 50 U.S.C. §§ 3901, et seq., provide under certain circumstances for the vacation or stay of any attachment or garnishment directed against the serviceman's property, money, or debts in the hands of another.

Rule 64 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. 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.

SOURCES: Joint Procedure Committee Minutes of January 28-29, 2016, page 22;January 28-29, 2010, pages 13-14; November 29-30, 1979, pages 20-21;Fed.R.Civ.P. 64.

CROSS REFERENCE: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction Process Service).

Effective Date Obsolete Date
03/01/2017 View
03/01/2011 03/01/2017 View
11/29/1979 03/01/2011 View