RULE 49. SERVING AND FILING DOCUMENTS

Effective Date: 3/1/2006

(a) When required. A party must serve on every other party any written motion (other than one to be heard ex parte), written notice, designation of the record on appeal, or similar document.

(b) How made. Service must be made in the manner provided in N.D.R.Civ.P. 5(b). When these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.

(c) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk shall provide notice by mail, third-party commercial carrier, or other manner provided in N.D.R.Civ.P. 5(b), to any party affected. Except as Rule 37 or N.D.R.App.P. 4 provide otherwise, the clerk's failure to give notice does not affect the time to appeal, or relieve—or authorize the court to relieve—a party's failure to appeal within the allowed time.

(d) Filing. A party must file with the clerk of court a copy of any document the party is required to serve. A document must be filed in the manner provided for in a civil action.

(e) Proof of Service. Unless excused by the court, a party must file promptly with the clerk proof of service of all documents the party is required by law or these rules to serve. The proof must be the same as in a civil action.

Rule 49 was amended, effective March 1, 1990; March 1, 1999; March 1, 2006.

Rule 49 is an adaptation of Fed.R.Crim.P. 49.

Under Rule 45(c), when service is by mail or third-party commercial carrier, three days are added to any period of time within which a party is required to act.

Rule 49 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.

Subdivision (c) is substantially in the language of its federal counterpart with minor differences in the first sentence to add flexibility in serving notice and to make it clear only a party affected by the order needs to be served with the notice. The second sentence of subdivision (c) provides lack of notice of entry does not affect the time to appeal, except insofar as it may give rise to a claim of excusable neglect under Rule 37 or N.D.R.App.P. 4.

Subdivision (c) was amended, effective March 1, 1999, to allow the clerk to send notice by commercial carrier as an alternative to the Postal Service.

Subdivision (d) incorporates by reference the provisions of N.D.R.Civ.P. 5(d) and (e).

Subdivision (e) has no federal counterpart and was adapted from the Alaska Rules of Criminal Procedure and regulates the manner for proving service has been made.

SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, pages 9-10; January 29-30, 1998, page 21; April 20, 1989, page 4;December 3, 1987, page 15; February 20-23, 1973, page 10; December 10-12, 1970, pages 17-19; Fed.R.Crim.P. 49.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. § 29-28-10.

CROSS REFERENCE: N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 45 (Computing and Extending Time); N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers); N.D.R.App.P. 4 (Appeal—When Taken).

Effective Date Obsolete Date
03/01/2006 View
03/01/1999 03/01/2006 View
03/01/1990 03/01/1999 View