(a) In General. A party applying to the court for an order must do so by motion.
(b) Form and Content. A motion—except when made during a trial or hearing—must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by declaration.
(c) Timing of a Motion. A party must serve a written motion—other than one that the court may hear ex parte—and any hearing notice at least 21 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.
(d) Declaration Supporting a Motion. The moving party must serve any supporting declaration with the motion. A responding party must serve any opposing declaration at least one day before the hearing, unless the court permits later service.
Rule 47 is an adaptation of Fed.R.Crim.P. 47. The rule is intended to state the general requirements for all motions. To achieve flexibility, the rule does not require grounds for a motion to be stated with particularity, and the use of declarations in support of a motion is permissive.
Rule 47 is not intended to permit speaking motions, i.e., a motion supported by affidavit attempting to establish facts which can only be established at a trial or hearing where evidence is introduced.
Rule 45 on calculating time, Rule 49 on service and filing of documents, and N.D.R.Ct. 3.2 relating to submission of motions should be considered when making a motion under this rule.
Subdivision (c) was amended, effective March 1, 2011, to change the time to serve a motion from 18 to 21 days before the hearing date.
Rule 47 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal 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. In addition, to achieve consistency with the federal rules, the language of subdivisions (c) and (d) was transferred to this rule from Rule 45.
Rule 47 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: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; April 29-30, 2010, page 20; April 28-29, 2005, page 9; April 24-26, 1973, page 15; February 20-23, 1973, page 8; September 17-19, 1970, page 10; March 12, 1970, page 10; Fed.R.Crim.P. 47.
CONSIDERED: N.D.C.C. ch. 31-15.
CROSS REFERENCE: N.D.R.Crim.P. 45 (Computing and Extending Time); N.D.R.Crim.P. 49 (Serving and Filing Documents); N.D.R.Ct. 3.2 (Motions).