Joint Procedure Committee Meeting
Scheduled on Thursday, May 29, 1980 @ 2:00 PM
MINUTES OF MEETING
Joint Procedure Committee
May 29-30, 1980
CALL TO ORDER
The meeting was called to order at 1:00 p.m., May 29, 1980, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. William S. Murray
Hon. James H. O'Keefe
Mr. Leonard H. Bucklin
Mr. William A. Hill
Mr. Larry Kraft
Mr. Richard A. McKennett
Mr. David L. Peterson
Absent
Hon. Larry Hatch
Hon. Robert C. Heinley
Hon. Kirk Smith
Hon. Robert Vogel
Mr. Ward M. Kirby
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
APPROVAL OF MINUTES
Judge Burdick MOVED that the minutes be approved as submitted. Mr. Bucklin seconded the motion. Motion CARRIED.
RULE 40, NDRCivP
Judge Burdick MOVED to amend Rule 40(a) as follows:
Strike all of line 1 and to the period on line 2, and insert: "Continuous Session of District Court. The district court is in continuous session in each county."
Judge Murray seconded the motion. Motion CARRIED.
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Mr. Bucklin MOVED to amend Rule 40 as follows:
Line 7: After "Note of Issue" insert "and Certificate of Readiness." Delete lines 52-90, subdivision (f).
Judge O'Keefe seconded the motion. Motion CARRIED.
Judge Glaser MOVED to draft a rule concerning note of issue and certificate of readiness, including the form of the document, following the Minnesota rule. Judge Burdick seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend line 43 of Rule 40, NDRCivP, by deleting "two" and inserting "one." Mr. Bucklin seconded the motion. Motion CARRIED.
Judge Burdick MOVED to delete lines 46 and 47, and to cover it as a comment that failure to file a note of issue and certificate of readiness will result in dismissal. Mr. McKennett seconded the motion. Motion CARRIED.
Judge Burdick MOVED to delete lines 31, 32 and 33, and insert: "A request to continue a trial must be made within 10 days after receipt of a notice of trial given by the court." Mr. McKennett seconded the motion. Motion CARRIED.
RULE 2.2, SUPPLEMENTAL COURT RULES
Judge Burdick MOVED to retain Rule 2.2. Judge Halvorson seconded the motion. Motion CARRIED.
WITHDRAWAL OF ATTORNEYS
(a) Notice of Withdrawal. An attorney may withdraw his appearance for a party only upon leave of the court after giving reasonable notice of the time and place of the presentation of the motion for leave to withdraw by personal service or by registered or certified mail directed to the party at his last known business or residence address.
(b) Motion to Withdraw. The motion for leave to withdraw must be in writing and, unless another attorney is substituted, must state the last known address of the party represented.
RULE 3.1, SUPPLEMENTAL COURT RULES
Mr. McKennett MOVED to strike subdivision (a)(1), lines 1 through 6. Judge Glaser seconded the motion. Motion CARRIED.
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Judge Burdick MOVED to delete the second sentence of subdivision (b)(1) of proposed Rule 3.1. Judge Halvorson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to delete the word "jury" in line 39 of proposed subdivision (b)(4). Mr. Hill seconded the motion. Motion CARRIED.
Mr. Hill MOVED to add a subdivision (b)(5) to read the same as the Minnesota rule.
"All lawyers and court officials shall refrain from wearing articles of clothing suited primarily for sports or leisure time activities during court appearances. Pantsuits or dresses shall be appropriate for women. Coats and ties shall be appropriate for men."
Judge Murray seconded the motion. Motion CARRIED.
Judge Burdick MOVED to delete the word "and" in line 43 and insert "so as to." Judge O'Keefe seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend line 37 by adding "Only one counsel appearing for a party shall be allowed to examine any witness without permission of the court." Mr. Hill seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend proposed Rule 3.1 as follows:
Line 56 place a period after "court" and delete the remainder of the sentence. Delete the words "Not more than" in line 53 and insert "only."
Judge Burdick MOVED to amend Rule 3.1 as follows:
Lines 54 and 37 to read: "Only one counsel on the same side in a civil action or proceeding or appearing for a defendant in a criminal action shall be allowed to examine a witness without permission of the court."
Mr. Peterson MOVED that in each of the paragraphs in which the word "side" appears that the word "side" be deleted and the word "party" be inserted [lines 37 and 54]. Mr. McKennett seconded the motion. On a roll call vote Judge Murray, Mr. Peterson, Judge Glaser and Mr. McKennett voted "yes"; opposed, Judge Burdick and Justice Sand.
Action on Rule 3.1 was deferred by consensus of the committee.
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RULE 4.1, SUPPLEMENTAL COURT RULES
Judge O'Keefe MOVED to delete proposed Rule 4.1. Mr. Peterson seconded the motion. Motion CARRIED.
RULE 4.2, SUPPLEMENTAL COURT RULES
Judge Burdick MOVED to amend proposed Rule 4.2(a) by deleting the sentence commencing on line 5, and inserting "The court may grant further continuances only upon good cause shown." Mr. McKennett seconded the motion.
RECESS
Judge O'Keefe MOVED to recess to 9:00 a.m., May 30, 1980. Judge Burdick seconded the motion. Motion CARRIED.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., May 30, 1980, by Justice Paul M. Sand, Chairman.
ROLL CALL
Present
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. William S. Murray
Hon. James H. O'Keefe
Mr. James L. Lamb
Mr. Richard A. McKennett
Mr. David L. Peterson
RULE 4.2, SUPPLEMENTAL COURT RULES
Judge Burdick MOVED to delete proposed Rule 4.2(c). Mr. Peterson seconded the motion. Motion CARRIED.
RULE 4.3, SUPPLEMENTAL COURT RULES
Judge Burdick MOVED to delete proposed Rule 4.3(a), lines 1 through 3. Mr. McKennett seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to delete proposed Rule 4.3(b). Judge Burdick seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to delete proposed Rule 4.3(c). Mr. McKennett seconded the motion. Motion CARRIED.
Mr. McKennett MOVED to delete proposed Rule 4.3(d). Mr. Peterson seconded the motion. Motion CARRIED.
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Mr. Peterson MOVED to delete proposed Rule 4.3(e). Judge Burdick seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to delete proposed Rule 4.3(f), lines 30 through 57 and insert "Motions for continuance shall be promptly filed as soon as the grounds therefor are known and will be granted only for good cause shown, either by affidavit or otherwise. Stipulations for continuance will not be recognized except for good cause shown." Mr. McKennett seconded the motion. Motion CARRIED.
Judge O'Keefe MOVED to delete proposed Rule 4.3(f)(3). Judge Burdick seconded the motion. Motion CARRIED.
Mr. Peterson MOVED that the language of proposed Rule 4.3(f) be moved to Rule 4.2(c). Judge Burdick seconded the motion. Motion CARRIED.
Further action on Rule 4.3 was deferred by consensus of the committee.
RULE 4.2, SUPPLEMENTAL COURT RULES
Judge Burdick MOVED to delete the language in Rule 4.2(b), lines 8 and 9. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt proposed Rule 4.2, as amended. Mr. Lamb seconded the motion. Motion CARRIED.
CONTINUANCES
(a) Attorney Engaged. A party is entitled to a continuance on the ground that his attorney is actually engaged in another trial or hearing, but only for the duration of the particular trial or hearing in which the attorney is then engaged.
(b) Further Continuances. Motions for continuance shall be promptly filed as soon as the grounds therefor are known and will be granted only for good cause shown, either by affidavit or otherwise. Stipulations for continuance will not be recognized except for good cause shown. Every continuance or postponement granted upon motion shall be upon such terms as the court may impose.
Justice Sand was called away and Judge Burdick assumed the chair.
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RULE 40, NDRCivP
Mr. Lamb MOVED to amend proposed Rule 40(b) as follows:
After the word "certify" in line 4 add "to the best knowledge and belief of the filing attorney";
Line 26 insert new language: "there are no present prospects for settlement."
Mr. McKennett seconded the motion. Motion CARRIED.
Mr. Lamb MOVED to delete subparagraph (G) of proposed Rule 40(b). Mr. McKennett seconded the motion. Motion CARRIED.
RECESS
The committee recessed to 1:00 p.m., May 30, 1980.
CALL TO ORDER
The meeting was called to order at 1:00 p.m., May 30, 1980, by Justice Paul M. Sand, Chairman.
ROLL CALL
Present
Hon. Eugene A. Burdick
Hon. William S. Murray
Hon. Halvor L. Halvorson
Mr. James L. Lamb
Mr. Richard A. McKennett
Mr. David L. Peterson
RULE 40, NDRCivP
Judge Burdick MOVED to approve the proposed form of Rule 40, as amended. Mr. Peterson seconded the motion. Motion CARRIED.
[TITLE OF CASE] NOTE OF ISSUE
AND
CERTIFICATE OF READINESS
TO THE ABOVE NAMED PARTIES:
YOU WILL PLEASE TAKE NOTICE, That the above entitled action will be placed upon the calendar of the above named court within 14 days after service of this
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Note of Issue upon you, for the trial of the issues.
I hereby certify to the best of my knowledge and belief that:
A. Issues are joined.
B. All discovery has been completed.
C. All pretrial motions have been disposed of.
D. Sufficient time has elapsed to afford all parties reasonable opportunity to be ready for trial.
E. There are no present prospects of settlement.
F. This case is ready for trial [by a jury of (6) or (12)] [as a bench trial].
G. All pleadings of the filing attorney have been filed with the clerk of court.
H. The names and addresses of respective counsel are:
Dated this _____ day of ____, 19__.
____________________________
Attorney for
Address
Telephone
A party not ready for trial shall prepare a Certificate of Non-readiness and shall serve the same on counsel for all parties and file it with the clerk of court within 10 days after the date of service of this Note of Issue and Certificate of Readiness.
The case will be placed on the trial calendar 14 days after the filing of this Note of Issue and Certificate of Readiness, or on the date specified in the Certificate of Non-readiness, whichever is later unless otherwise ordered by the court upon motion.
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Judge Burdick MOVED to approve proposed Rule 40(b) as amended. Mr. McKennett seconded the motion. Motion CARRIED.
Judge Burdick MOVED to approve the form of the Certificate of nonreadiness, as amended. Judge Halvorson seconded the motion. Motion CARRIED.
_____________________ Plaintiff
v. CERTIFICATE OF
NON-READINESS
_____________________ Defendant
I HEREBY CERTIFY That the above-entitled action is not ready for trial in the following respects:
The above-entitled action will be ready for trial not later than __________________ (date).
Dated this ______ day of ____________, 19___.
____________________________
Attorney for
Address
Telephone
Any dispute with respect to the Certificate of Readiness or the Certificate of Non-Readiness must be brought before the court by motion of a party or the court. The court may impose appropriate sanctions, including payment of the reasonable expenses incurred in bringing the motion.
Judge Burdick MOVED to approve proposed Rule 40(d), as amended. Mr. McKennett seconded the motion. Motion CARRIED.
Judge Burdick MOVED that proposed Rule 40(e) be amended by deleting the first sentence. Mr. McKennett seconded the motion. Motion CARRIED.
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Judge Burdick MOVED to amend proposed Rule 40(e) by deleting lines 37 and 38, and lines 48 through 51. Mr. McKennett seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend proposed Rule 40(e) as follows:
Line 39: Delete "(1) For want of prosecution"; Line 43: Delete "two" and insert "one".
Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend proposed Rule 40(e) by deleting lines 46 and 47 and placing that language in the comment to the rule. Mr. McKennett seconded the motion. Motion CARRIED.
Judge Burdick MOVED to approve Rule 40, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.
ASSIGNMENT OF CASES FOR TRIAL
(a) Continuous Session of District Court. The district court is in continuous session in each county. Criminal and civil cases will be scheduled for trial in accordance with a calendaring procedure maintained and operated under the direction and supervision of the presiding judge of the district.
(b) Note of Issue and Certificate of Readiness.
(1) A party desiring to have an action placed on the calendar for trial shall prepare a certificate of readiness and note of issue and shall serve the same on counsel for all parties and file it, with proof of service, with the clerk of court within 5 days after such service. The certificate of readiness and note of issue shall certify, to the best knowledge and belief of the filing attorney, the following:
(A) That issues are joined and the case in all respects is ready for trial;
(B) That all discovery has been completed;
(C)That all pretrial motions have been disposed of;
(D) Sufficient time has elapsed to afford all parties reasonable opportunity to be ready for trial;
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(E) There are no present prospects for settlement;
(F) Whether or not the case is for trial by jury and the size of the jury;
(G) That all pleadings of the filing attorney have been filed with the clerk of court;
(H) The names and addresses of respective counsel.
Except as qualified in paragraph (2), the filing of a certificate of readiness and note of issue constitutes certification by all parties to the action that the case is ready for trial.
(2) If a party, other than the party filing the certificate of readiness, is not ready for trial, he shall prepare a certificate of non-readiness and shall serve the same on counsel for all parties and shall file it with the clerk of court within 10 days after the date of service of the certification of readiness upon him. The certification of non-readiness must set forth in what respects the case is not ready and must specify a time limit within which the case will be ready for trial.
(3) The case shall be placed on the trial calendar 14 days after the filing of the certificate of readiness and note of issue, or on the date specified in the certificate of non-readiness, whichever is later.
(4) Any dispute with respect to the certificate of readiness or the certificate of non-readiness must be brought before the court by motion of a party or the court. The court may impose appropriate sanctions, including payment of the reasonable expense incurred in bringing the motion.
(C) Trial Dates. All contested cases will be assigned trial dates under the direction and supervision of the presiding judge of the district.
(d) Trial Date Continuances. No continuance on trial dates will be given unless formally approved by the judge scheduled to hear the case. A request to continue a trial must be made within 10 days after
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receipt of a notice of trial given by the court. If unavoidable circumstances should arise, the trial judge may consider waiving the 10-day requirement.
(e) Untried Cases. Actions or proceedings that have been pending and filed and in which there has been a want of prosecution for more than one year may be dismissed without prejudice by the court on its own motion upon notice or on motion of either party.
In the temporary absence of Justice Paul M. Sand, Judge Burdick acted as chairman.
NEXT MEETING
Mr. McKennett MOVED that the next meeting of the Joint Procedure Committee be held on September 18 and 19, 1980, commencing at 1:00 p.m. on the 18th, unless circumstances, in the judgment of the chairman, require a change. The motion was seconded by Mr. Peterson. Motion CARRIED.
RULE 5.1, SUPPLEMENTAL COURT RULES
Mr. Lamb MOVED to amend proposed Rule 5.1 as follows:
Line 20: delete "the court permits" and insert "counsel for any party requests."
Mr. Peterson seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to amend proposed Rule 5.1 as follows:
Line 23, delete "or upon application of either"; Line 24, delete; Line 25, delete "has expired."
Mr. McKennett seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to amend proposed Rule 5.1 as follows:
Line 25, delete everything after "motion";
Line 26, delete "testimony or oral argument is permitted."
Mr. Lamb seconded the motion. Motion CARRIED.
Justice Sand resumed the chair.
Mr. Lamb MOVED to amend proposed Rule 5.1(d) as follows:
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Line 28, after the word "briefs" add "or request the taking of testimony or oral argument."
Judge Murray seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 5.1, as amended. Mr. Peterson seconded the motion. Motion CARRIED.
SUBMISSION ON BRIEFS AND FILING
(a) Filing with Clerk. Unless otherwise permitted by the court, all notices of motion and supporting instruments, with proofs of service, must be filed with the clerk at least 3 days before the date of any hearing permitted, and all returns thereto shall be served and filed with the clerk at least one day before the date of hearing. Unless so served and filed, the motions and returns thereto may be vacated by the court.
(b) Filing Prior to Hearing in Default Matters. All pleadings and other instruments relating to default matters must be filed with the clerk prior to the hearing, unless otherwise directed by the court.
(C)Submission on Briefs. Upon serving and filing a motion, or within 5 days thereafter, the moving party shall serve and file a brief. The adverse party shall have 10 days after service of the brief within which to serve and file an answer brief. Upon the filing of briefs, or upon the expiration of the time for filing, the motion is deemed submitted and taken under advisement by the court, unless counsel for any party requests the taking of testimony or oral argument on the motion. The court, in its discretion, may permit the taking of testimony or oral argument on its own motion. Each motion shall be heard at a time designated by the court.
(d) Failure to File Briefs. Failure to file briefs or request the taking of testimony or oral argument within the prescribed time subjects a motion to summary ruling. Failure to file a brief by the moving party is an admission that, in the opinion of counsel, the motion is without merit. Failure to file a brief by the adverse party is an admission that, in the opinion of counsel, the motion is meritorious.
(e) Extensions of Time. Extensions of time for filing briefs, or for continuance of the hearing on a motion, shall be granted only by written order of the court. All requests for extension of time or continuance, whether written or oral, must be accompanied by an appropriate order form.
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(f) 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.
ADJOURNMENT
Judge Burdick MOVED to adjourn to September 18, 1980, at 1:00 p.m. Mr. Lamb seconded the motion. Motion CARRIED.
_________________________
Secretary