(a) Submission of Motion.
(1) Notice. Notice must be served and filed with a motion. The notice must indicate the time of the hearing, whether the hearing is for presenting evidence, oral argument, or both, or that the motion will be decided on briefs unless a hearing is timely requested.
(2) Briefs. Upon serving and filing a motion, the moving party must serve and file a brief and other supporting papers and the opposing party must have 14 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within seven days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is considered submitted to the court unless counsel for any party requests a hearing on the motion.
(3) Requesting a hearing. If any party who has timely served and filed a brief requests a hearing, the request must be granted. A timely request for a hearing must be granted even if the moving party has previously served notice indicating that the motion is to be decided on briefs.The party requesting a hearing must secure a time for the hearing and serve notice upon all other parties. Requests for a hearing or the taking of evidence must be made not later than seven days after expiration of the time for filing the answer brief. If the party requesting a hearing fails within 14 days of the request to secure a time for the hearing, the request is waived and the matter is considered submitted for decision on the briefs. If an evidentiary hearing is requested in a civil action, notice must be served at least 21 days before the time specified for the hearing.
(4) Self-Represented Prisoner. A self-represented prisoner who requests a hearing is not required to secure a time for the hearing. Instead, the prisoner's notice must include the request for oral argument, an evidentiary hearing, or both, and a statement that the party is a self-represented prisoner. On receipt of a prisoner's notice, the court will set a time for the hearing and serve notice to the parties.
(b) Court hearing. The court may set a hearing on any motion. If permitted by the court, a hearing may be held using contemporaneous audio or audiovisual transmission by reliable electronic means. After reviewing the parties' submissions, the court may require oral argument and may allow or require evidence on a motion.
(c) Failure to File Briefs. Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the opposing party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.
(d) Extension of Time.Extensions of time for filing briefs and other supporting papers, or for continuance of the hearing on a motion, may be granted only by written order of court.All requests for extension of time or continuance, whether written or oral, must be accompanied by an appropriate order form.
(e) Time Limit for Filing Motion. Except for good cause shown, a motion must be filed in such time that it may be heard not later than the date set for pretrial of the case.
(f) Application of Rule.
(1) Conflicting rules. This rule does not apply to the extent it conflicts with another rule adopted by the Supreme Court.
(2) Probate code. This rule applies to formal proceedings under Uniform Probate Code.
Rule 3.2 was amended, effective September 1, 1983; March 1, 1986; January 1, 1988; March 1, 1990; January 1, 1995; March 1, 1997; March 1, 2002; March 1, 2005; March 1, 2007; March 1, 2011; March 1, 2016; August 1, 2021.
Subdivision (a) was amended, effective March 1, 1990, to provide that the request for oral argument on the motion must be granted when the party requesting oral argument has timely served and filed a brief.
Subdivision (a) was amended, effective January 1, 1995, to provide that a written motion must be noticed, and that the notice must indicate that oral argument has been requested or that the motion will be decided on briefs unless oral argument is requested. In addition, the amendment shortened the time between the date a motion is filed and the date a motion may be heard by eliminating the five-day period within which the moving party's brief could be filed. Although the rule contemplates filing a brief with every motion, what constitutes a brief should be liberally construed.
Subdivision (a) was amended, effective August 1, 2021, to require the notice to specify whether the hearing will be for presenting evidence, oral argument, or both.
Paragraph (a)(2) was amended, effective March 1, 2011, to increase the time for an opposing party to serve and file an answer brief from 10 to 14 days after service of the moving party's brief. The time for a moving party to serve and file a reply brief was increased from five to seven days after expiration of the time for filing the answer brief. Paragraph (a)(3) was amended to increase the time to request oral argument from five to seven days after expiration of the time for filing the answer brief.
Paragraph (a)(3) was amended, effective March 1, 2016, to require a party requesting oral argument to secure a time for the argument within 14 days of the request. Otherwise, the request will be waived and the matter considered on the briefs. In addition, language was added to the rule requiring 21 days notice to be given if an evidentiary hearing is requested in a civil action.
Paragraph (a)(4) was added, effective August 1, 2021, to provide a procedure for self-represented prisoners to use when requesting a hearing.
Subdivision (b) was amended, effective March 1, 2007, to expand hearing options to include hearing by interactive television and to add a requirement that the court review the parties' submissions before it orders oral argument or testimony.
Subdivision (b) was amended, March 1, 2016, to allow hearings to be conducted using contemporaneous audio or audiovisual transmission by reliable electronic means. N.D. Sup. Ct. Admin. R. 52 governs electronic means hearings.
Paragraph (f)(1) was added, effective March 1, 1997, to clarify that, in the case of a conflict between this rule and any other supreme court rule, the other rule will govern. For example, N.D.R.Civ.P. 56 allows parties 30 days to respond to a summary judgment motion, which conflicts with the 14 day response period specified in subdivision (a) of this rule. Under subdivision (f), the N.D.R.Civ.P. 56 response period would prevail.
Paragraph (f)(2) was added, effective March 1, 2007, to specify that this rule applies to formal proceedings under the Uniform Probate Code. N.D.C.C. § 30.1-01-06(19) defines "formal proceedings" as "proceedings conducted before a judge with notice to interested persons."
SOURCES: Joint Procedure Committee Minutes of January 28, 2021, pages 13-17; April 24, 2020, pages 3-4; January 30, 2020, pages 13-24; September 26, 2019, pages 16-19; April 26, 2019, pages 27-28; April 23-24, 2015, page 6; January 29-30, 2015, pages 19-21; April 29-30, 2010, page 21; April 27-28, 2006, pages 7-9, 17-19; January 26, 2006, pages 12-13; April 29-20, 2004, pages 25-26; September 28-29, 2000, page 13; April 25, 1996, pages 8-11; January 25-26, 1996, pages 10-16; April 28-29, 1994, pages 15-17; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 13-16; April 29-30, 1993, pages 20-22; April 20, 1989, pages 10-15; March 24-25, 1988, pages 7-10 and 13-15; December 3, 1987, pages 4-5; February 19-20, 1987, pages 21-22; June 22, 1984, page 30; April 26, 1984, pages 17-19.
CONSIDERED: N.D.C.C. ch. 30.1.
CROSS REFERENCE: N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers); N.D.R.Civ.P. 6 (Time); N.D.R.Civ.P. 7(Pleadings Allowed—Form of Motions); N.D.R.Civ.P. 56 (Summary Judgment); N.D.R.Crim.P. 45 (Time); N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Service and Filing of Papers); N.D.R.App.P. 27(Motions); N.D.R.App.P. 34 (Oral Argument); N.D. Sup. Ct. Admin. R. 52 (Contemporaneous Transmission by Reliable Electronic Means).