Joint Procedure Committee Meeting

Scheduled on Thursday, September 20, 1979 @ 2:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

September 20-21, 1979

CALL TO ORDER

The meeting was called to order at 1:00 p.m., September 20, 1979, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Robert C. Heinley
Hon. Robert Vogel
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. Richard A. McKennett
Hon. Wm. S. Murray (2:30 p.m.)
Mr. David L. Peterson (3:10 p.m.)

Absent

Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Ward M. Kirby
Mr. James L. Lamb
Mr. Herbert L. Meschke
Mr. Russell G. Nerison

APPROVAL OF MINUTES

Judge Burdick MOVED that the Minutes of the January 25-26, 1979, be approved. Mr. McKennett seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Minutes of the April 26-27, 1979, meeting be amended as follows:


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Page 4: line 33, delete "appraised" and insert "apprised";

Page 5: line 17, delete "that"; insert "to" after "court";

Page 18: line 3, delete "or" and insert "of";

line 5, delete "unless" and insert "under."

and when so amended that the Minutes be approved. Judge Heinley seconded the motion. Motion CARRIED.

ITEM IV, A AND B, OF THE AGENDA

Judge Burdick MOVED that the Committee is of the basic opinion that §§ 44-04-19, 44-04-20, and 44-04-21, NDCC, do not apply to the Procedure Committee of the Supreme Court, but notwithstanding, the chairman or the staff attorney may give such public notice of the meetings as deemed appropriate. This is based upon State ex rel. Williston Herald v. O'Connell, 151 N.W.2d 758 (N.D. 1967); Grand Forks Herald v. Lyons, 101 N.W.2d 543 (N.D. 1960). Judge Vogel seconded the motion. Motion CARRIED.

RULE IV, RULES OF COURT FOR THE DISTRICT COURTS

Judge Burdick MOVED that Rule IV(d), Rules of Court for the District Courts, be amended to read as follows:

"Filing Requirements. All pleadings and other instruments in an action or proceeding must be filed flat and unfolded. Multisheeted documents must be fastened together. No back or cover sheet is required."

Judge Glaser seconded the motion. Motion CARRIED.

TITLE FOR NOTES

Judge Vogel MOVED that the commentaries to the Civil Rules bear the title "Explanatory Note." Mr. McKennett seconded the motion. Motion CARRIED.

RULE 1, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 1, NDRCivP, as follows:

Line 1: Delete "the same as" and insert "an adaptation of".

Judge Glaser seconded the motion. Motion CARRIED.

Judge Glaser MOVED to amend the explanatory note to Rule 1, NDRCivP, as follows:

Line 3: Delete "These rules are"

Line 4-5: Delete.


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Judge Burdick MOVED to amend the explanatory note to Rule 1, NDRCivP, as follows:

Line 6: Delete "that" and insert "These rules"; delete "also"; after "applicable" insert "by statute".

Line 7: Delete "of" and insert "with".

Mr. McKennett seconded the motion. Motion CARRIED.

Judge Burdick MOVED to amend the explanatory note to Rule 1, NDRCivP, as follows:

Line 12: Delete "adopted" and insert "adapted";

Line 13: Delete "Procedure Committee Notes" and insert "Explanatory Note"; delete the bracketed material;

Line 15: Delete everything after "federal rules."

Lines 16-17: Delete, and insert "Where there is no significant deviation, annotations to the federal rules may be useful, as the Supreme Court has said in several cases. See, for example,".

Judge Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 1, NDRCivP, as amended. Mr. Loder seconded the motion. Motion CARRIED.

Rule 1 is an adaptation of Rule 1, Federal Rules of Civil Procedure (F.R.Civ.P.) with changes made only to conform to the court system of North Dakota. These rules have been made applicable by statute to most civil actions in county courts with increased jurisdiction [§ 27-08-04, NDCC] and county justice court [§ 33-01-10, NDCC] and probate and guardianship matters [§ 30.1-02-04, NDCC].

As will become readily apparent from a reading of these rules, they are the Federal Rules of Civil Procedure adapted, insofar as practicable, to state practice. These explanatory notes attempt to point out the deviations from the federal rules. Where there is no significant deviation, annotations to the federal rules may be useful, as the North Dakota Supreme Court has said in several cases. See, for example, Unemployment Compensation Division v. Bjornsrud, 261 N.W.2d 396, 398 (N.D. 1977):

". . . when we adopted the Federal Rules of Civil Procedure we did so with knowledge of the interpretations placed upon them by the Federal courts, and although we are not compelled to follow those interpretations, they are highly persuasive and, in the interest of uniform interpretation, we should be guided by them."


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RULE 4, NDRCivP - EXPLANATORY NOTE

Judge Vogel MOVED to take no further action with regard to filing of actions. Mr. Loder seconded the motion. Motion CARRIED.

RULE 3, NDRCivP - EXPLANATORY NOTE

Judge Vogel MOVED to amend the explanatory note to Rule 3, NDRCivP, by deleting the word "start" in line 1 and inserting "commence." Judge Heinley seconded the motion. Motion CARRIED.

All that is required to commence a civil action is the service of a summons upon a defendant. This is unlike Rule 3, FRCivP, which requires the filing of a complaint with court in order to commence an action. Rule 3 was derived from § 28-0501, NDRC 1943. See also Rule 4(c) concerning contents of the summons and service of the complaint.

RULE 5, NDRCivP - EXPLANATORY NOTE

Judge Glaser MOVED to delete lines 8 through 19. Judge Vogel seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt the explanatory note to Rule 5, as amended. Mr. Kraft seconded the motion. Motion CARRIED.

Subdivisions (a), (b), (c) and (d) are substantially the same as those subdivisions of Rule 5, FRCivP, with the addition of a reference to specific methods of seizure of property in the second paragraph of subdivision (a), and the requirement of obtaining a court order to leave the paper or pleading with the clerk when no address is known for the party or attorney to be served.

Subdivision (e), identical to § 28-0630, NDRC 1943, provides for removal of any original pleading or paper from the clerk's files for service. This is not found in the federal rule.

In 1971, subdivision (a) was amended by adding the second paragraph concerning actions begun by seizure of property and making clear that all papers relating to discovery must be served on all parties. These changes previously had been made to the federal rule.

RECESS

The meeting was recessed to 9:00 a.m., September 21, 1979.


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CALL TO ORDER

The meeting was called to order at 9:00 a.m., September 21, 1979, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser

Hon. Robert C. Heinley

Hon. Wm. S. Murray

Mr. Larry Kraft

Mr. LeRoy A. Loder

Mr. Richard A. McKennett

Mr. Leonard Bucklin (9:30)

Hon. Robert Vogel (10:15)

RULE 5, NDRCivP

Judge Burdick MOVED to amend proposed Rule 5(f), NDRCivP, as follows:

Line 3: After the word "attorney" insert the word "showing"; delete the word "has";

Line 4: Delete "h" and insert "b";

and when so amended that Rule 5(f) be adopted. Mr. Loder seconded the motion. Motion CARRIED.

(f) Proof of Service. Proof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that he has made service pursuant to subdivision (b).

RULE 6, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 6, NDRCivP, by deleting lines 8 through 21, and to adopt the explanatory note as amended. Judge Glaser seconded the motion. Motion CARRIED.

Rule 6 is basically the same as Rule 6, FRCivP, with two main differences. This rule omits the listing of "legal holidays" found in subdivision (a) of the federal rule. See Chapter 1-03, NDCC, concerning holidays in North Dakota. Subdivision (c) was rescinded in the federal rule as there are no longer formal terms of court, but has been retained here.

This rule was also amended in 1971 to comport with changes to the federal rules by including the local rules of any district court in the enumeration


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of time periods to be computed in accordance with the rule and the provision that Saturdays are to be excluded from computation.

CROSS-REFERENCES

Judge Burdick MOVED that all cross-references be stated with the source notes, and that this be done with all rules. Mr. Loder seconded the motion. Motion CARRIED.

RULE 7, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 7, NDRCivP, as follows:

Line 1: Delete "taken without change from" and insert "identical to";

Lines 7 through 27: Delete.

Mr. Loder seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 7, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

This rule is identical to Rule 7, FRCivP, except for the addition to subdivision (b) of a provision giving preference to a motion to vacate or modify a provisional remedy, which had been previously contained in Section 28-2806, NDRC 1943.

RULE 8, NDRCivP - EXPLANATORY NOTE

Mr. Bucklin MOVED to amend the explanatory note to Rule 8, NDRCivP, as follows:

Line 1: Delete "the same as" and insert "identical to";

Line 4: Delete "It sets out general rules";

Lines 5 through 36: Delete.

The staff attorney is instructed to insert cross-references in the source notes. Mr. Kraft seconded the motion. Motion CARRIED.

NEXT MEETING

The date for the next meeting of the Joint Procedure Committee has been set for November 29 and 30, 1979, to commence at 1:00 p.m. on November 29.


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RULE 9, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 9, NDRCivP, as follows:

Lines 12: Delete, and insert "Rule 9 is adapted from Rule 9, FRCivP."; Lines 1246: Delete

Mr. Peterson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 9, as amended. Mr. McKennett seconded the motion. Motion CARRIED.

Rule 9 is adapted from Rule 9, FRCivP. Deviations from the federal rule are the deletion of a reference to showing jurisdiction of the court in subdivision (a); addition to subdivision (d) of procedure for pleading ordinances, regulations, and the like, of political subdivisions of this State or another jurisdiction; and substitution of procedure to be followed when the name of a party is unknown for the federal provision dealing with admiralty and maritime claims in subdivision (h).

RULE 10, NDRCivP - EXPLANATORY NOTE

The staff attorney is instructed to redraft this note.

RULE 11, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 11, NDRCivP, as follows:

Line 1: Delete "the same as the Federal rule" and insert "identical to Rule 11, FRCivP"

Line 3: Delete "This rule provides";

Lines 4-5: Delete

Line 6: Delete "verified. A moral obligation is placed upon the"; Insert "An" before "attorney"; after "attorney" insert "is obligated"

Line 8: Delete "which";

Lines 9-13: Delete.

Judge Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 11, as amended. Judge Vogel seconded the motion. Motion CARRIED.

Rule 11 is identical to Rule 11, FRCivP, except for the omission of a reference to abolishing an equity rule which does not apply to this State. An attorney is obligated to satisfy himself that there are good grounds for the pleadings he signs.


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RULE 12, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 12, NDRCivP, as follows:

Line 1: Delete "Substantially" and "Federal";

Line 2: After "12" insert "FRCivP";

Line 5: Delete "our" and insert "these";

Line 7: Delete "as not applicable";

Line 8: Delete "list of" and insert "enumerated"; delete "which may be made by motion." and insert "because matters of venue are controlled by Chapter 28-04, NDCC."

Lines 9-53: Delete

Line 54: Delete "authorizing and providing";

Line 55: Delete "procedure for an offer of fixed damages were" and insert "are";

Line 57: Delete "substantially";

Line 58: Delete "previous Federal"; after word "changes" insert "in the federal rule";

Lines 59-60: Delete.

Mr. Peterson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 12, NDRCivP, as amended. Mr. Kraft seconded the motion. Motion CARRIED.

This rule is derived from Rule 12, FRCivP, with the addition of subdivisions (i) and (j) providing for an offer of fixed damages. Subdivision (a) has been changed slightly to conform to numbering differences between these rules and the federal rules and to delete references to statutes, agencies, and officers of the United States. In subdivision (b), improper venue is deleted from the enumerated offenses because matters of venue are controlled by Chapter 28-04, NDCC.

Subdivisions (i) and (j) are taken verbatim from Section 28-0711 and 28-0712, NDRC 1943. Subdivision (h) was amended in 1971 to conform to changes in the federal rule.

RULE 13, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED to amend the explanatory note to Rule 13, NDRCivP, as follows:

Line 1: Delete "the same as" and insert "identical to";

Line 4: Delete "provides" and insert "describes the"

Lines 6-37: Delete

Judge Burdick seconded the motion. Motion CARRIED.


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Judge Glaser MOVED to further amend the explanatory note to Rule 13, NDRCivP, as follows:

Line 38: Delete "taken directly" and insert "is derived";

Line 39: Insert a period after "1943"; delete "covers the";

Lines 40-43: Delete

Judge Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to further amend the explanatory note to Rule 13, NDRCivP, as follows:

Line 44: Before "Subdivision" insert "In 1971"; delete "in 1971" after the word "added";

Line 45: After "(h)" insert "was"; delete "at the same time"; after "include" insert "a";

Line 46: Delete everything after the period.

Mr. Kraft seconded the motion. Motion CARRIED.

Mr. Peterson MOVED that the explanatory note to Rule 13, NDRCivP, be adopted as amended. Judge Burdick seconded the motion. Motion CARRIED.

Rule 13 is identical to Rule 13, FRCivP, with the addition of subdivision (c)(2) and referring to counterclaims against the State, rather than the United States, in subdivision (d). This rule prescribes the procedure to be followed in the use of counterclaims and cross-claims.

Subdivision (c)(2) is derived from Section 28-0907, NDRC 1943.

In 1971, subdivision (a)(2) was added and subdivision (h) was amended to include a reference to Rules 19 and 20.

RECESS

The meeting recessed to 1:00 p.m., September 21, 1971.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., September 21, 1979, by Justice Paul M. Sand, chairman.


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ATTENDANCE

Present

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser

Hon. Robert C. Heinley

Hon. Wm. S. Murray

Hon. Robert Vogel

Mr. Larry Kraft

Mr. LeRoy A. Loder

Mr. Richard A. McKennett

RULE 14, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 14, NDRCivP, as follows:

Line 1: Delete "governs third-party practice and was derived" and insert "is identical to Rule 14, FRCivP";

Line 2: Delete "from the federal rule";

Line 4: Delete the period and the remainder of the line;

Lines 5-7: Delete, and insert "and the insertion of subdivision (c), a provision for service of the third-party summons and complaint.";

Lines 8-35: Delete.

Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Loder MOVED that the explanatory note to Rule 14, NDRCivP, as amended, be adopted. Judge Burdick seconded the motion. Motion CARRIED.

This rule is identical to Rule 14, FRCivP, except for the deletion in subdivisions (a) and (b) of procedures for admiralty and maritime third-party cases and the insertion of subdivision (c), a provision for service of the third-party summons and complaint.

RULE 15, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 15, NDRCivP, as follows:

Line 1: Delete everything after "15";

Line 2: Delete "pleadings and";

Lines 4-42: Delete.

Judge Murray seconded the motion. Motion CARRIED.


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Judge Burdick MOVED to adopt the explanatory note to Rule 15, NDRCivP, as amended. Mr. Loder seconded the motion. Motion CARRIED.

Rule 15 is substantially the same as Rule 15, FRCivP.

This rule was amended in 1971 to conform to prior federal amendments. Subdivision (d) was revised to make it clear that a supplemental pleading could be allowed even though the original pleading was defective in its statement of a claim or defense. Subdivision (c) was amended to state more clearly that an amendment changing the party against whom a claim is asserted relates back to the date of the original pleading.

Justice Sand was called away from the meeting, and Judge Burdick was asked to act as chairman.

RULE 16, NDRCivP - EXPLANATORY NOTE

Mr. McKennett MOVED to amend the explanatory note to Rule 16, NDRCivP, as follows:

Lines 1-2: Delete;

Lines 9-19: Delete;

the information in lines 18 and 19 is to be used as a cross-reference. Judge Glaser seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt the explanatory note to Rule 16, NDRCivP, as amended. Mr. McKennett seconded the motion. Motion CARRIED.

This rule is derived from Rule 16, FRCivP, with several important additions. First is the requirement that issue be joined before a conference is held. The most notable change from Federal Rule 16 is that the court must hold a pretrial conference upon written request of a party, contrasted to complete discretion in the federal court.

RULE 17, NDRCivP - EXPLANATORY NOTE

Mr. Kraft MOVED to amend the explanatory note to Rule 17, NDRCivP, as follows:

Line 1: Insert "Rule 17, FRCivP" after "from"; delete remainder of the line;

Lines 2-4: Delete;


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Line 5: Delete "capacity either to sue or be sued."; delete "Deviations" and insert "The rule deviates";

Line 6: Delete "are the" and insert "by"; delete "of";

Line 7: Delete "of the";

Line 8: Delete "addition" and insert "adding a";

Line 9: Delete "of the";

Line 10: Delete "a" and "simplified" and insert "simplifying."

Lines 12-24: Delete.

Mr. McKennett seconded the motion. Motion CARRIED.

Mr. McKennett MOVED to adopt the explanatory note to Rule 17, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

This rule is derived from Rule 17, FRCivP. The rule deviates from the federal rule by substituting State of North Dakota for United States in subdivision (a); reversing titles and content of subdivisions (b) and (c); adding a final clause concerning appointment of a guardian ad litem to subdivision (b); and greatly simplifying subdivision (c).

RULE 18, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED to amend the explanatory note to Rule 18, NDRCivP, as follows:

Line 1: Delete "taken from" and insert "identical to";

Line 3: After "addition" insert "of the last sentence";

Lines 6-18: Delete.

Mr. Kraft seconded the motion. Motion CARRIED.

Judge Heinley MOVED to amend the explanatory note to Rule 18, NDRCivP, as follows:

Lines 4-5: Delete.

Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt the explanatory note to Rule 18, NDRCivP, as amended. Mr. Kraft seconded the motion. Motion CARRIED.

Rule 18 is identical to Rule 18, FRCivP, with deletion of a reference to maritime claims in subdivision (a) and the addition of the last sentence to subdivision (b).

RULE 19, NDRCivP - EXPLANATORY NOTE

Mr. Kraft MOVED to amend the explanatory note to Rule 19, NDRCivP, as follows:


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Line 1: Delete "taken from" and insert "identical to":

delete "without";

Lines 2-25: Delete.

Mr. McKennett seconded the motion. Motion CARRIED.

Mr. McKennett MOVED to adopt the explanatory note to Rule 19, NDRCivP, as amended. Mr. Kraft seconded the motion. Motion CARRIED.

Rule 19 is identical to Rule 19, FRCivP.

RULE 20, NDRCivP - EXPLANATORY NOTE

Mr. Loder MOVED to amend the explanatory note to Rule 20, NDRCivP, as follows:

Line 1: Delete everything after "rule";

Line 2: Delete "Federal"; delete everything after "20" and insert "FRCivP, except for";

Line 4: Delete "to" and insert "of"; delete "of";

Line 5: Delete "the last clause";

Lines 7-16: Delete.

Judge Heinley seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt the explanatory note to Rule 20, NDRCivP, as amended. Judge Murray seconded the motion. Motion CARRIED.

This rule is derived from Rule 20, FRCivP, except for the deletion of a reference to admiralty process in subdivision (a) and the addition of subdivision (b) authorizing the court to direct a final judgment under Rule 54(b).

RULE 21, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED to amend the explanatory note to Rule 21, NDRCivP, as follows:

Line 1: Delete "and provides";

Lines 2-13: Delete.

Cross-reference Rules 18 and 42 in the source notes. Mr. McKennett seconded the motion. Motion CARRIED.

Mr. McKennett MOVED to adopt the explanatory note to Rule 21, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

Rule 21 is identical to Rule 21, FRCivP.


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RULE 22, NDRCivP - EXPLANATORY NOTE

Mr. Loder MOVED to amend the explanatory note to Rule 22, NDRCivP, as follows:

Line 1: Delete "the same as" and insert "identical to"; after "22" insert "FRCivP, except for"; delete "with";

Line 2: Delete "the deletion of any" and "It";

Lines 3-52: Delete

Line 53: Delete "was" and insert "is"; delete "intact" and insert "verbatim";

Line 54: Delete "It provides that a";

Lines 55-59: Delete.

Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Kraft MOVED to adopt the explanatory note to Rule 22, NDRCivP, as amended. Mr. McKennett seconded the motion. Motion CARRIED.

Subdivision (a) is identical to Rule 22, FRCivP, except for reference to statutory remedies.

Subdivision (b) is taken verbatim from Section 28-0224, NDRC 1943.

RULE 23, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED to amend the explanatory note to Rule 23, NDRCivP, as follows:

Line 1: Delete everything after "23" and insert "FRCivP."

Line 2: Delete "the same as" and insert "identical to";

Line 5: Delete "this version of";

Line 6: Delete "the Federal rule" and insert "23 FRCivP."

Line 7: After "following" insert "comments are based upon" and delete the remainder of the line;

Line 8: Delete bracketed material;

Lines 9-10: Delete.

Mr. Loder seconded the motion. Motion CARRIED.

Judge Glaser MOVED tentative approval of the explanatory note to Rule 23, NDRCivP, with the understanding that the subject matter will be researched for later cases. Judge Murray seconded the motion. Motion CARRIED.


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Rule 23 is substantially the same as the Uniform Class Actions Rule as drafted by the National Conference of Commissioners on Uniform State Laws. Prior to February 15, 1977, the effective date of this rule, Rule 23 was the same as Rule 23, FRCivP.

The following comments are based upon the Official Comments to the Uniform Rule.

Subdivision (a): This subdivision sets forth the requirements that must be satisfied to authorize the bringing of a class action. Subdivision (b) authorizes the maintenance of a class action.

Subdivision (b); In connection with the finding under paragraphs 2(B) and (C), see subdivisions (c)(1) and (2).

Subdivision (c): After an action has been brought as a class action, if the court determines that there is pending in another court an action which encompasses the action pending both as to general class and claim, the court hearing the action may refuse to certify the action against or on behalf of the class if it concludes that this form is not the most appropriate one. The court in making this decision consider the sequence of the suits, the residence of the members of the class, where the transaction or occurrence involved took place, where the relevant evidence is available, and other pertinent facts.

Subdivision (d): Paragraph (4) presupposes the existence of rules of civil procedure which will allow the action to proceed on behalf of the representative parties as properly joined parties.

Denial of certification and the allowance of a personal action under paragraph (4) does not affect any possible intervention or joinder of class members who are not representative parties under the applicable state laws.

Subdivision (f): The court in deciding whether to certify the action as a class action is to consider the conflict of laws problems that may be involved. See subdivision (c)(L). Those problems may exist because of the possibility of bringing the action in a jurisdiction other than that in which the operative facts occurred and because of the reach of the court beyond the state in which the court is sitting under this subdivision.


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Subdivision (g): The hearing required by paragraph (1), if the court wishes, can be combined with the hearing required by subdivision (b)(1).

Personal mailed notice to all members of the class is not required by this Rule. See Grant v. City of Lincoln, 225 N.W.2d 549 (Neb. 1975); Cartt v. Superior Court in and for County of Los Angeles, 50 Cal.App.3d 960, 124 Cal.Rptr. 376 (Ct.App. 1975).

The type of notice to be given may vary as to the persons to be notified and the form of notice and, to some extent, the content. Paragraph (3) indicates that the court must consider a number of factors in deciding what type of notice to give.

Paragraph (8) would allow the court to order a defendant who has a mailing list of class members to cooperate with the representative parties in notifying the class members. Use of a computer or enclosing notice in a regular mailing would be possibilities.

Subdivision (h): Under some circumstances members of a plaintiff class cannot elect to be excluded and subdivision (h) is drafted to cover that situation. Those situations might arise in actions comparable to those under Federal Rule 23(b)(1); see 3B, Moore's Federal Practice, ¶ 23.35. In most situations members of a plaintiff class will be permitted to elect to be excluded.

Subdivision (i): The rules governing civil procedure in the courts of the State will normally govern procedures in class actions. Subdivision (i) covers certain matters that are found only in class actions and which deserve special consideration. Paragraph (D) does not limit the power of the attorney general to participate in litigation under other provisions of applicable law.

Subdivision (j): Discovery against representative parties includes the representative parties' fee arrangement with counsel. Disclosure of this arrangement is required under subdivision (q).

Subdivision (k): The expense of notification of actions involving counterclaims is determined as provided in subdivision (g)(7).

Subdivision (n): The nature of other costs and assessments against parties in a class action is left to the law generally applicable in the state. Subdivision (n) merely specifies the liability of class members if costs are assessed against the class and provides for assessment of the expense of notification under subdivision (g).


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Subdivision (o): This section incorporates the idea of "fluid recovery," to benefit the class as a whole where distribution of damage awards to individual members is impracticable or a residue remains after distribution. See, State of West Virginia v. Charles Pfizer § Co.,314 F.Supp. 710 (S.D.N.Y. 1970); Bebchick v. Public Utilities Commission, 318 F.2d 187 (D.C.Cir. 1963), cert. denied 83 S.Ct. 1304 (1963); Daar v. Yellow Cab Co., 433 P.2d 732, 63 Cal.Rptr. 724 (1967).

Subdivision (p): Courts under this rule have discretion to award attorney's fees in class actions where the class failed to win damages or equitable relief but the court feels the class action "prevailed" because the suit performed a valuable public service. See, Perham v. Southwestern Bell Telephone Co. 433 F.2d 421 (8th Cir. 1970).

Most of the factors listed in paragraph (5) derive from Lindy Bros. v. American Radiator § Standard Sanitary Corp. 487 F.2d 161 (3rd Cir. 1973).

Subdivision (q): Subdivision (q) requires this information to be disclosed in order to assist the court in making determinations as to adequacy of representation by the representative parties and by the attorney for the class, as to any possible collusion between the representative parties and the attorney for the class, and as to any possible conflict of interests among the representative parties and the class members.

Subdivision (r): American Pipe and Construction Co. v. Utah, 415 U.S. 952, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), held that the commencement of a class action under Federal Rule 23 suspends the applicable statute of limitations to all members of the class pending a determination of class action status. Subdivision (r) codifies the American Pipe case.

RULE 23.1, NDRCivP

Mr. Loder MOVED that this be designated as reserved for future use, and that the explanatory note should state that North Dakota has not adopted Federal Rule 23.1 because the matter is controlled by § 10-19-48, NDCC. Mr. McKennett seconded the motion. Motion CARRIED.

RULE 23.2, NDRCivP

Mr. McKennett MOVED that this be designated as reserved for future use, and that the explanatory note should state that the matter of the status of an unincorporated association to sue and be sued is governed by Rule 4(a) and Rule 23. Judge Heinley seconded the motion. Motion CARRIED.


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RULE 24, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED that the explanatory note to Rule 24, NDRCivP, be amended as follows:

Line 1: Delete "the same as" and insert "identical to"; delete "with" and insert "except for";

Lines 5-20: Delete.

Mr. McKennett seconded the motion. Motion CARRIED.

Mr. McKennett MOVED to adopt the explanatory note to Rule 24, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

Rule 24 is identical to Rule 24, FRCivP, except for the deletion of references to statutes and the attorney general of the United States and giving the attorney general of this state the right to intervene under subdivision (c).

Justice Sand returned and resumed the chair.

RULE 25, NDRCivP - EXPLANATORY NOTE

Mr. Peterson MOVED to amend the explanatory note to Rule 25, NDRCivP, as follows:

Line 1: Delete "derived from" and insert "identical to"; delete "with" and insert "except for".

Judge Heinley seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt the explanatory note to Rule 25, NDRCivP, as amended. Judge Heinley seconded the motion. Motion CARRIED.

Rule 25 is identical to Rule 25, FRCivP, except for the addition to subdivision (a) of the third paragraph concerning a death after verdict or order for judgment; specifying in subdivision (b) that the action may be continued by a guardian or guardian ad litem rather than a representative, as in the federal rule; and substitution of a different heading for subdivision (d).

The rule provides for the substitution of parties if a party has died, become incompetent, or transferred his interest, or if a public officer has been succeeded by someone else. It applies only to substitution in the district court. See Rule 43, North Dakota Rules of Appellate Procedure, for substitution in cases on appeal to the North Dakota Supreme Court.


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RULE 25, NDRCivP

Mr. Peterson MOVED that Rule 25(d)(2), NDRCivP, become a part of Rule 10(a), and that appropriate cross-references appear in the source notes. Judge Heinley seconded the motion. Motion CARRIED.

RULE 26, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 26, NDRCivP, as follows:

Line 1: Delete "the Federal rule and contains" and insert "Rule 26, FRCivP."

Lines 2-64: Delete

Mr. Kraft seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 26, NDRCivP, as amended. Judge Heinley seconded the motion. Motion CARRIED.

Rule 26 is identical to Rule 26, FRCivP.

RULE 27, NDRCivP - EXPLANATORY NOTE

Judge Burdick MOVED to amend the explanatory note to Rule 27, NDRCivP, as follows:

Line 1: Delete "taken from" and insert "an adaptation of";

Lines 4-15: Delete.

Mr. McKennett seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the explanatory note to Rule 27, NDRCivP, as amended. Mr. McKennett seconded the motion. Motion CARRIED.

This rule is an adaptation of Rule 27, FRCivP, with only minor changes to conform to the court system of North Dakota.

ADJOURNMENT

Judge Glaser MOVED to adjourn to November 29, 1979, at 1:00 p.m. Judge Heinley seconded the motion. Motion CARRIED.