N.D. R. Civ. P. 5

As amended through March 18, 2024

Rule 5 - Service and Filing of Pleadings and Other Documents

(a) Service-When Required.

(1) In General. Other than service of a summons and complaint under Rule 4, each of the following documents must be served under this rule on every party, unless the rules provide otherwise:

(A) an order, unless the court orders otherwise;

(B) a pleading served after the original summons and complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;

(C) a discovery document required to be served on a party, unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar document; and

(F) every document filed with the clerk or submitted to the judge.

(2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.

(3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an answer, claim, or appearance must be made on the person who had custody or possession of the property when it was seized.

(4) Reopening Proceedings. In any proceeding to modify an order for spousal support or child support or an order on parental rights and responsibilities, service may be made on each party under Rule 5(b), unless the court orders service on a party under Rule 4.

(b) Service--How made.

(1) Service in general. A document that is required to be filed must be served electronically under the procedure specified in N.D.R.Ct. 3.5. Electronic service on an attorney must be made to the designated e-mail service address posted on the N.D. Supreme Court website. Electronic service is complete on transmission. Except as provided in N.D.R.Ct. 3.5(e)(4), electronic service is not effective if the serving party learns through any means that the document did not reach the person to be served.

(2) Persons Served.

(A) Service on a Party Represented by an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. If an attorney is providing limited representation under Rule 11(e), service must be made on the party and on the attorney for matters within the scope of the limited representation.

(B) Persons Exempt from Electronic Service. Persons who are exempt from electronic service and filing under N.D.R.Ct. 3.5 must serve documents under Rule 5(b)(3).

(3) Other Service. A document that is not required to be filed, or that will be served on a person exempt from electronic service, is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person's office with a clerk or other person in charge or, if no one is in charge, leaving it in a conspicuous place in the office; or,

(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(C) mailing it to the person's last known address, in which event service is complete upon mailing;

(D) sending it by a third-party commercial carrier to the person's last known address, in which event service is complete upon deposit of the document to be served with the commercial carrier;

(E) if no address is known, on order of the court by leaving it with the clerk of court;

(F) sending it by electronic means if the person consented in writing, in which event service is complete on transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(G) delivering it by any other means that the person consented to in writing.

(c) Serving Numerous Defendants.

(1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:

(A) defendants' pleadings and replies to them need not be served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.

(2) Notifying Parties. A copy of every such order must be served on the parties as the court directs.

(d) Filing.

(1) In General. Unless a statute, court rule, or court order provides otherwise, all documents in an action must be filed with the clerk electronically, through the Odyssey® system.

(2) Initiating Pleading.

(A) The Summons and Complaint.

(i) The summons and complaint, or other initiating pleading, must be filed before a subpoena may be issued. Unless otherwise authorized by rule or statute, a party seeking to file an initiating pleading must provide proof that the pleading was served under Rule 4. The proof of service must be filed with the initiating pleading.

(ii) A party who files a complaint or other initiating pleading must serve notice of filing on the other parties.

(iii) The defendant may demand that the plaintiff file the complaint.

- Service of the demand must be made under Rule 5(b) on the plaintiff's attorney or under Rule 4(d) on the plaintiff if the plaintiff is not represented by an attorney.

- In cases with multiple defendants, service of a demand by one defendant is effective for all the defendants.

- If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void.

- The demand must contain notice that if the complaint is not filed within 20 days, service of the summons will be void, unless, after motion made within 60 days after service of the demand for filing, the court finds excusable neglect.

(iv) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).

(B) The Answer. Within a reasonable time after service of the notice of filing the complaint or initiating pleading, the defendant or respondent must file the answer and notify the plaintiff of the filing.

(3) Discovery Materials. A party must not file discovery materials with the clerk unless:

(A) the materials are being submitted to the court for disposition of a pending motion;

(B) the court orders them to be filed; or

(C) a party certifies that the filing is necessary for safekeeping of the documents or exhibits pending case completion, in which event the party must state the reasons safekeeping is necessary.

(4) Return of Discovery Materials.

(A) The clerk shall return the following documents to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal:

(i) depositions;

(ii) interrogatories;

(iii) requests for admission;

(iv) requests for interrogatories;

(v) requests for production of documents; and

(vi) answers and responses to the above documents.

(B) If the filing party does not claim a filed document within 60 days after notification to do so, the clerk may dispose of the document as directed by court order.

(C) The clerk must take a receipt for all documents returned.

(5) Documents to be Used on Hearing. Unless otherwise directed by the court, all declarations, notices and other documents designed to be used on the hearing of a motion or order to show cause must be filed at least 24 hours before the hearing.

(6) Failure to Comply. If a party fails to comply with this subdivision, the court, on motion of any party or its own motion, may order the documents to be filed. If the order is not obeyed, the court may order them to be regarded as stricken and their service to be ineffective.

(7) Rejection. Except as otherwise provided under Rules 13, 14, or 15, the clerk must reject for filing any document that adds a party to an action or proceeding without a court order. The clerk must endorse on the document a notation that it is rejected for filing under this rule and return the document to the person who tendered it for filing.

(e) Removal of Pleadings for Service. Upon a filing party's request, an original pleading or document in any civil action, which by law is required to be filed in the clerk of court's office where the action is pending, may be removed from the files for the purpose of serving it either inside or outside the state but must be returned without delay.

(f) Proof of Service. Proof of service under this rule is made as provided in Rule 4 or by an attorney's or court personnel's certificate showing that service was made under subdivision (b).

N.D. R. Civ. P. 5

Joint Procedure Committee Minutes of January 30, 2020, page 25; April 24-25, 2008, pages 18-21; January 24, 2008, pages 2-7; October 11-12, 2007, pages 20-27; April 26-27, 2007, pages 19-22; September 27-28, 2001, pages 11-12; April 30-May 1, 1998, page 3; January 29-30, 1998, page 18; September 26-27, 1996, pages 16-17, 20; September 23-24, 1993, pages 19-20; April 29-30, 1993, pages 20-21; November 7-8, 1991, page 3; October 25-26, 1990, pages 10-12; April 20, 1989, page 2; December 3, 1987, page 11; May 21-22, 1987, pages 17-18; February 19-20, 1987, page 4; September 18-19, 1986, page 8; November 30, 1984, pages 26-27; October 18, 1984, pages 8-11; November 29-30, 1979, page 2; September 20-21, 1979, pages 4-5; Fed.R.Civ.P. 5.

EXPLANATORY NOTE

Rule 5 was amended effective 1971,7/1/1981;3/1/1986;1/1/1988;3/1/1990;3/1/1992, on an emergency basis;3/1/1994;1/1/1995;3/1/1998;3/1/1999;3/1/2003;3/1/2008;3/1/2009;3/1/2011;3/1/2013;4/1/2013;3/1/2014;3/1/2016; 3/1/2021.

Rule 5 applies to service of papers other than "process." In contrast, Rule 4 governs civil jurisdiction and service of process. When a statute or rule requiring service does not pertain to service of process, nor require personal service under Rule 4, nor specify how service is to be made, service may be made as provided in Rule 5(b).

Subdivision (a) was amended, effective3/1/2008, to improve organization and to make the subdivision easier to understand.

Paragraph (a)(4) was added, effective 3/1/2016, to specify service methods in proceedings to modify spousal support, child support or parental rights and responsibilities orders.

Paragraph (b)(1) was amended, effective3/1/2009, to make it clear that, when an attorney has served a notice of limited representation under Rule 11(e), service of papers on the attorney is not required except for papers within the scope of the limited representation. Rule 5, Rule 11 and N.D.R.Ct. 11.2, were amended to permit attorneys to assist otherwise unrepresented parties on a limited basis without undertaking full representation of the party. Paragraph (b)(1) was amended, effective3/1/2014, to require any electronic service on an attorney to be made to the attorney's designated e-mail address as posted on the North Dakota Supreme Court website. Paragraph (b)(2) was amended, effective4/1/2013, to specify that electronic service through the Odyssey® system under the procedure specified in N.D.R.Ct. 3.5 is required for most documents that will be filed with the court. Paragraph (b)(2) was amended, effective3/1/2009, to provide for service by electronic means and to improve organization. Parties seeking to serve papers by electronic means must consult N.D.Sup.Ct.Admin. Order 16 for electronic service instructions. Paragraph (b)(3) was amended, effective4/1/2013, to specify that the other means of service listed in the paragraph apply only when the document served is not required to be filed or when it will be served on a person exempt from electronic service. Subdivision (b) was amended, effective3/1/1999, to permit service via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a "third-party commercial carrier" means the carrier may not be a party to nor interested in the action, and it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as or provide its own commercial carrier service with service complete upon deposit. In addition, the phrase "commercial carrier" does not include electronic delivery services. Paragraph (d)(1) was amended, effective4/1/2013, to specify that filing must be accomplished electronically through the Odyssey® system unless a statute, rule or order provides otherwise. Subparagraph (d)(2)(A) was amended, effective3/1/2013, to require that proof of service be provided and filed by a party seeking to file an initiating pleading. Under Rule 3, an action is commenced on service of the initiating pleading, not on filing. Unless a rule specifically provides otherwise, service under Rule 4 must be accomplished before any pleadings in an action may be filed. Subparagraph (d)(2)(A) was amended, effective3/1/2013, to include language allowing the defendant to demand filing of the complaint or to file the complaint itself. This language was transferred from Rule 4. Subparagraph (d)(2)(A) was amended, effective4/1/2013, to clarify that any party who files a complaint or other initiating pleading must serve notice on the other parties in the matter. Service of the summons must be made under Rule 4. Subdivision (f) was amended, effective3/1/2003, to permit proof of service to be made by court personnel as well as by an attorney. Proof of service may also be made in the same manner as provided by Rule 4(i). Rule 5 was amended, effective3/1/2011, in response to the12/1/2007, revision of the Federal Rules of Civil 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. Rule 5 was amended, effective4/1/2013, to replace the term "paper" with "document" throughout the rule. Rule 5 was amended effective 3/1/2021 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. STATUTES AFFECTED: SUPERSEDED: N.D.R.C. §§ 28-0511, 28-0630, 28-2810, 28-2811, 28-2812, 28-2813, 28-2814, 28-2819, 28-2820, 28-2821, 28-3005, 31-0510. CONSIDERED: N.D.C.C. ch. 31-15.

N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction-Process-Service), N.D.R.Civ.P. 11. (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions), N.D.R.Civ.P. 45 (Subpoena), N.D.R.Civ.P. 77 (District Courts and Clerks),N.D.R.Crim.P. 49 (Service and Filing of Papers), N.D.R.Ct. 6.4 (Exhibits), N.D.R.Ct. 7.1 (Judgments, Orders and Decrees).