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North Dakota Rules of Civil Procedure
Because the rules of civil procedure
may change from time to time, please
check the
North Dakota Courts website
for updated and complete rules of civil procedure
in North Dakota.
Rules of Civil Procedure in North
Dakota:
Rule
4. Persons Subject to
Jurisdiction--Process--Service
Definition of Person.
As used in this rule, "person",
whether or not a citizen or
domiciliary of this state and
whether or not organized under the
laws of this state, includes: an
individual, executor, administrator
or other personal representative;
any other fiduciary; any two or more
persons having a joint or common
interest; a partnership; an
association; a corporation; and any
other legal or commercial entity.
Jurisdiction Over Person.
- Personal Jurisdiction Based
Upon Presence or Enduring
Relationship. A court of this
state may exercise personal
jurisdiction over a person found
within, domiciled in, organized
under the laws of, or
maintaining his or its principal
place of business in, this state
as to any claim for relief.
- Personal Jurisdiction Based
Upon Contacts. A court of this
state may exercise personal
jurisdiction over a person who
acts directly or by an agent as
to any claim for relief arising
from the person's having such
contact with this state that the
exercise of personal
jurisdiction over the person
does not offend against
traditional notions of justice
or fair play or the due process
of law, under one or more of the
following circumstances:
- transacting any business
in this state;
- contracting to supply or
supplying service, goods, or
other things in this state;
- committing a tort within
or without this state
causing injury to another
person or property within
this state;
- committing a tort within
this state, causing injury
to another person or
property within or without
this state;
- owning, having any
interest in, using, or
possessing property in this
state;
- contracting to insure
another person, property, or
other risk within this
state;
- acting as a director,
manager, trustee, or officer
of a corporation organized
under the laws of, or having
its principal place of
business within, this state;
- enjoying any other legal
status or capacity within
this state; or
- engaging in any other
activity, including
cohabitation or sexual
intercourse, within this
state.
- Limitation on Jurisdiction
Based Upon Contacts. If
jurisdiction over a person is
based solely upon paragraph (2)
of this subdivision, only a
claim for relief arising from
bases enumerated therein may be
asserted against that person.
- Acquisition of Jurisdiction.
A court of this state may
acquire personal jurisdiction
over any person through service
of process as provided in this
rule or by statute, or by
voluntary general appearance in
an action by any person either
personally or through an
attorney or any other authorized
person.
- Inconvenient Forum. If the
court finds that in the interest
of substantial justice the
action should be heard in
another forum, the court may
stay or dismiss the action in
whole or in part on any
condition that may be just.
Process.
- Summons Contents. The
summons must specify the venue
of the court in which the action
is brought, contain the title of
the action specifying the names
of the parties, and be directed
to the defendant. It must state
the time within which these
rules require the defendant to
appear and defend, and must
notify the defendant that in
case of the defendant's failure
to do so, judgment by default
will be rendered against the
defendant for the relief
demanded in the complaint. It
must be dated and subscribed by
the plaintiff or the plaintiff's
attorney and include the post
office address of the plaintiff
or plaintiff's attorney. (See
Rule 4(e)(8) for additional
information required if the
action involves real estate and
service is by publication.)
- Summons Served With or
Without Complaint. A copy of the
complaint need not be served
with the summons in which case
the summons must state that the
complaint is or will be filed
with the clerk of the court in
which the action is commenced,
and if the defendant within 20
days after service of the
summons causes notice of
appearance to be given and in
person or by an attorney demands
in writing a copy of the
complaint, specifying a place
within the state where it may be
served, a copy thereof within 20
days thereafter must be served
accordingly. If, in that case,
the complaint is not filed with
the clerk within 20 days after
service of the summons, the
action is deemed discontinued.
- Summons Served and Complaint
Not Filed. The defendant may
serve a written demand on the
plaintiff to file the complaint.
Service of the demand must be
made under subdivision (d) on
the plaintiff's attorney or on
the plaintiff if the plaintiff
is not represented by an
attorney. 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 is void
under this rule.
- 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).
Personal Service.
- By Whom Process Served.
Service of all process may be
made: within the state by any
person of legal age not a party
to nor interested in the action;
and outside the state by any
person who may make service
under the law of this state or
under the law of the place in
which service is made or who is
designated by a court of this
state.
- How Service Made Within the
State. Personal service of
process within the state must be
made as follows:
- upon an individual 14 or
more years of age by (i)
delivering a copy of the
summons to the individual
personally; (ii) leaving a
copy of the summons at the
individual's dwelling house
or usual place of abode in
the presence of a person of
suitable age and discretion
then residing therein; (iii)
delivering, at the office of
the process server, a copy
of the summons to the
individual's spouse if the
spouses reside together;
(iv) delivering a copy of
the summons to the
individual's agent
authorized by appointment or
by law to receive service of
process; or (v) any form of
mail or third-party
commercial delivery
addressed to the individual
to be served and requiring a
signed receipt and resulting
in delivery to that
individual;
- upon an individual under
the age of 14 years, by
delivering a copy of the
summons to the individual's
guardian, if the individual
has one within the state,
and, if not, then to the
individual's father or
mother or any person or
agency having the
individual's care or
control, or with whom the
individual resides. If
service cannot be made upon
any of them, then as
directed by order of the
court;
- upon an individual who
has been judicially adjudged
incompetent or for whom a
guardian of the individual's
person or estate has been
appointed in this state, by
delivering a copy of the
summons to the individual's
guardian. If a general
guardian and a guardian ad
litem have been appointed,
both must be served;
- upon a domestic or
foreign corporation or upon
a partnership or other
unincorporated association,
by (i) delivering a copy of
the summons to an officer,
director, superintendent or
managing or general agent,
or partner, or associate, or
to an agent authorized by
appointment or by law to
receive service of process
in its behalf, or to one who
acted as an agent for the
defendant with respect to
the matter upon which the
claim of the plaintiff is
based and who was an agent
of the defendant at the time
of service; (ii) if the
sheriff's return indicates
no person upon whom service
may be made can be found in
the county, then service may
be made by leaving a copy of
the summons at any office of
the domestic or foreign
corporation, partnership or
unincorporated association
within this state with the
person in charge of the
office; or (iii) any form of
mail or third-party
commercial delivery
addressed to any of the
foregoing persons and
requiring a signed receipt
and resulting in delivery to
that person;
- upon a city, township,
school district, park
district, county, or any
other municipal or public
corporation, by delivering a
copy of the summons to any
member of its governing
board.
- upon the state, by
delivering a copy of the
summons to the governor or
attorney general or an
assistant attorney general
and, upon an agency of the
state, such as the Bank of
North Dakota or the State
Mill and Elevator
Association, by delivering a
copy of the summons to the
managing head of the agency
or to the attorney general
or an assistant attorney
general; or
- if service is made upon
an agent who is not
expressly authorized by
appointment or by law to
receive service of process
on behalf of the defendant,
a copy of the summons and
complaint must be mailed or
delivered via a third-party
commercial carrier to the
defendant with return
receipt requested not later
than ten days after service
by depositing the same, with
postage or shipping prepaid,
in a post office or with a
commercial carrier in this
state and directed to the
defendant to be served at
the defendant's last
reasonably ascertainable
address.
- How Service Made Outside the
State. Service upon any person
subject to the personal
jurisdiction of the courts of
this state may be made outside
the state:
- in the manner provided
for service within this
state, with the same force
and effect as though service
had been made within this
state;
- in the manner prescribed
by the law of the place in
which the service is made
for service in that place in
an action in any of its
courts of general
jurisdiction; or
- as directed by order of
the court.
- Service Under Statute.
Whenever a statute of this state
or an order of the court
provides for service of a
summons or of a notice or of an
order in lieu of summons upon a
party not an inhabitant of or
found within the state, service
must be made under the
circumstances and in the manner
prescribed by the statute or
order or in any manner permitted
by these rules and not precluded
by the statute or order.
Service by Publication.
- When Service by Publication
Permitted. A defendant, whether
known or unknown, who has not
been served personally under the
foregoing subdivisions of this
rule may be served by
publication in the manner
hereinafter provided in one or
more of the following situations
only if:
- The claim for relief is
based upon one or more
grounds for the exercise of
personal jurisdiction under
paragraph (2) of subdivision
(b) of this rule;
- The subject of the
action is real or personal
property in this state and
the defendant has or claims
a lien thereon or other
interest therein, whether
vested or contingent, or the
relief demanded against the
defendant consists wholly or
partly in excluding the
defendant from that lien or
interest or in defining,
regulating, or limiting that
lien or interest, or the
action otherwise affects the
title to the property.
- The action is to
foreclose a mortgage, cancel
a contract for sale, or to
enforce a lien upon or a
security interest in real or
personal property in this
state;
- The plaintiff has
acquired a lien upon
property or credits of the
defendant within this state
by attachment, garnishment,
or other judicial processes
and the property or credit
is the subject matter of the
litigation or the underlying
claim for relief relates to
the property or credits;
- The action is for
divorce, separation from bed
and board, or annulment of a
marriage of a resident of
this state or to determine
custody of an individual
subject to the court's
jurisdiction; or
- The action is to award,
partition, condemn, or
escheat real or personal
property in this state.
- Filing of Complaint and
Affidavit for Service by
Publication. Before service of
the summons by publication is
authorized in any case, there
must be filed with the clerk of
the court in which the action is
commenced a complaint setting
forth a claim in favor of the
plaintiff and against the
defendant based on one or more
of the situations specified in
paragraph (1) of this
subdivision and an affidavit
executed by the plaintiff or the
plaintiff's attorney stating, as
may be applicable, one or more
of the following:
- That after diligent
inquiry personal service of
the summons cannot be made
upon the defendant in this
state to the best knowledge,
information, and belief of
the affiant;
- That after diligent
inquiry personal service of
the summons cannot be made
upon the defendant in this
state to the best knowledge,
information, and belief of
the affiant;
- That the defendant is a
domestic or foreign
corporation and has no
officer, director,
superintendent, managing
agent, business agent, or
other agent authorized by
appointment or by law upon
whom service of process can
be made in its behalf in
this state; or
- That all persons having
or claiming an estate or
interest in, or lien or
encumbrance upon, the real
property described in the
complaint, whether as heirs,
devisees, legatees, or
personal representative of a
deceased person, or under
any other title or interest,
and not in possession, nor
appearing of record in the
office of the register of
deeds, the clerk of the
district court, or the
county auditor of the county
in which the real property
is situated, to have such
claim, title or interest
therein, are proceeded
against as unknown persons
defendant pursuant to
Chapter 32 17 or 32 19 of
the North Dakota Century
Code, and stating facts
necessary to satisfy the
requirements of those
chapters.
- Number of Publications.
Service of the summons by
publication may be made by
publishing the same 3 times,
once in each week for 3
successive weeks, in a newspaper
published in the county in which
the action is pending, and if no
newspaper is published in that
county then in a newspaper
having a general circulation
therein although published in
another county.
- Mailing or Delivering
Summons and Complaint. A copy of
the summons and complaint, at
any time after the filing of the
affidavit for publication and
not later than 10 days after the
first publication of the
summons, must be deposited in a
post office or with a
third-party commercial carrier
in this state, postage or
shipping prepaid, and directed
to the defendant to be served at
the defendant's last reasonably
ascertainable address.
- Personal Service Outside
State Equivalent to Publication.
After the affidavit for
publication and the complaint in
the action are filed, personal
service of the summons and
complaint upon the defendant out
of state is equivalent to and
has the same force and effect as
the publication and mailing or
delivery provided for in
paragraphs (3) and (4) of this
subdivision.
- Time When First Publication
or Service Outside State Must Be
Made. The first publication of
the summons, or personal service
of the summons and complaint
upon the defendant out of the
state, must be made within 60
days after the filing of the
affidavit for publication. If
not so made, the action is
deemed discontinued as to any
defendant not served within that
time.
- When Defendant Served by
Publication Permitted to Defend.
The defendant upon whom service
by publication is made, or the
defendant's representative, on
application and sufficient cause
shown at any time before
judgment, must be allowed to
defend the action. Except in an
action for divorce, the
defendant upon whom service by
publication is made, or the
defendant's representative, upon
making it appear to the
satisfaction of the court by
affidavit, stating the facts,
that the defendant has a good
and meritorious defense to the
action, and the defendant had no
actual notice or knowledge of
the pendency of the action so as
to enable the defendant to make
application to defend before the
entry of judgment, and upon
filing an affidavit of merits,
may be allowed to defend at any
time within 3 years after entry
of judgment on such terms as may
be just. If the defense is
successful and the judgment, or
any part of the judgment, has
been collected or otherwise
enforced, restitution may be
ordered by the court, but the
title to property sold under the
judgment to a purchaser in good
faith may not be affected. A
defendant who receives a copy of
the summons in the action mailed
or delivered to the defendant as
provided in paragraph (4), or
upon whom the summons is
personally served out of this
state, as provided in paragraph
(5), is deemed to have had
notice of the pendency of the
action and of the judgment.
- Additional Information to be
Published. In all cases where
publication of summons is made
in an action in which the title
to, or an interest in or lien
upon, real property is involved
or affected or brought into
question, the publication must
also contain a description of
the real property and a
statement of the object of the
action.
Service Upon a Person in a
Foreign Country.
Unless otherwise provided by law,
service upon an individual, other
than an infant or an incompetent
person, may be effected in a place
not within any judicial district of
the United States:
- by any internationally
agreed means reasonably
calculated to give notice, such
as those means authorized by the
Hague Convention on the Service
Abroad of Judicial and
Extrajudicial Documents; or
- if there is no
internationally agreed means of
service or the applicable
international agreement allows
other means of service, provided
the service is reasonably
calculated to give notice:
- in the manner prescribed
by law of the foreign
country for service in that
country in an action in any
of its courts of general
jurisdiction; or
- as directed by the
foreign authority in
response to a letter
rogatory or letter of
request; or
- unless prohibited by the
law of the foreign country,
by
- delivery to the
individual personally of
a copy of the summons
and the complaint; or
- any form of mail or
third-party commercial
delivery requiring a
signed receipt, to be
addressed and dispatched
by the clerk of the
court to the party to be
served; or
- by any other means not
prohibited by international
agreement as may be directed by
the court. Unless otherwise
provided by law, service must be
effected upon an infant or an
incompetent person in a place
not within any judicial district
of the United States in the
manner prescribed by paragraphs
(2)(A) or (B), and (3). Unless
otherwise provided by law,
service must be effected upon a
foreign corporation, partnership
or other unincorporated
association, that is subject to
suit under a common name, in a
place not within any judicial
district of the United States in
the manner prescribed for
individuals in this subdivision
except personal delivery as
provided in paragraph (2)(C)(i).
When Service by Publication
or Outside State Complete.
Service by publication is
complete upon the expiration of
fifteen days after the first
publication of the summons. Personal
service of the summons and complaint
upon the defendant out of state is
complete upon the expiration of
fifteen days after the date of
service.
Amendment.
At any time and upon such notice
and terms as it deems just, the
court, in its discretion, may allow
any process or proof of service
thereof to be amended unless it
clearly appears that material
prejudice would result to the
substantial rights of the party
against whom the process issued.
Proof of Service.
Proof of service of the summons
and of the complaint or notice, if
any, accompanying the same or of
other process, must be made as
follows:
- if served by the sheriff or
other officer, by the officer's
certificate of service;
- if served by any other
person, by the server's
affidavit of service;
- if served by publication, by
an affidavit made as provided in
Section 31 04 06 of the North
Dakota Century Code and an
affidavit of mailing or an
affidavit of delivery via a
third-party commercial carrier
of a copy of the summons and
complaint in accordance with
subdivision (4) of subsection
(e) of this rule, if the same
has been deposited;
- in any other case of service
by mail or delivery via a
third-party commercial carrier
resulting in delivery in
accordance with paragraph (2) or
(3) of subdivision (d) of this
rule, by an affidavit of mailing
or an affidavit of delivery of a
copy of the summons and
complaint or other process, with
return receipt attached; or
- by the written admission of
the defendant.
Content of Proof of Service.
The certificate, affidavit or
admission of service mentioned in
subdivision (h) of this rule must
state the date, time, place and
manner of service. If the process,
pleading, order of court, or other
paper is served personally by a
person other than the sheriff or
person designated by law, the
affidavit of service must also state
that the server is of legal age and
not a party to the action nor
interested in the action, and that
the server knew the person served to
be the person named in the papers
served and the person intended to be
served.
Content of Affidavit of
Mailing or Delivery via a
Third-party Commercial Carrier.
An affidavit of mailing or
delivery required by this rule must
state a copy of the process,
pleading, order of court, or other
paper to be served was deposited by
the affiant, with postage or
shipping prepaid, in the mail or
with a third-party commercial
carrier and directed to the party
shown in the affidavit to be served
at the party's last reasonably
ascertainable address. The affidavit
must contain the date and place of
deposit and indicate the affiant is
of legal age. The return receipt, if
any, must be attached to the
affidavit.
Effect of Mail or Delivery
Refusal.
If a summons and complaint or
other process is mailed or sent with
delivery restricted and requiring a
receipt signed by the addressee, the
addressee's refusal to accept the
mail or delivery constitutes
delivery. Return of the mail or
delivery bearing an official
indication on the cover delivery was
refused by the addressee is prima
facie evidence of the refusal.
EXPLANATORY NOTES
Rule 4 was amended, effective
1971; January 1, 1976; January 1,
1977; January 1, 1979; September 1,
1983; March 1, 1986; March 1, 1990;
March 1, 1996; March 1, 1998; March
1, 1999.
Rule 4 governs civil
jurisdiction and service of process.
In contrast, Rule 5 applies to
service of papers other than
process.
Rule 4 was amended, effective
March 1, 1999, to allow delivery via
a third-party commercial carrier as
an alternative to the Postal
Service. The requirement for a
"third-party" is consistent with the
rule's requirement for personal
service by a person not a party to
nor interested in the action. The
requirement for a "commercial
carrier" means it must be the
regular business of the carrier to
make deliveries for profit. A law
firm may not act as its own
commercial carrier service for
service of process. Finally, the
phrase "commercial carrier" is not
intended to include or authorize
electronic delivery. Service via
e-mail or facsimile transmission is
not permitted by Rule 4.
Originally, Rule 4 concerned
process, with no mention of
jurisdiction. In 1971, what are now
subdivisions (a) [Definition of
Person] and (b) [Jurisdiction Over
Person] were added. They were taken
from the Uniform Interstate and
International Procedure Act. Many
changes were also made to
subdivision (d) [previously (c)]
concerning personal service, several
of which were taken from that Act.
Subdivision (c) was amended,
effective March 1, 1998, to provide
a defendant with the means to compel
the plaintiff to file the action.
Subdivision (d) was amended,
effective March 1, 1998, to allow
personal service by delivering a
copy of the summons to an
individual's spouse.
A problem may arise with
service by mail or delivery by
third-party commercial carrier,
under subdivisions (d)(2) or
(d)(3)(C) when the person to be
served refuses delivery. This
refusal of delivery is tantamount to
receipt of the mail or delivery for
purposes of service. On the other
hand, if the mail or delivery is
unclaimed, no service is made.
Subdivision (l) was added in 1983,
effective September 1, 1983, to make
it clear that refusal of delivery by
the addressee constitutes delivery.
Statutes governing special
procedures often conflict with these
rules. As an example, N.D.C.C.
32-19-32 concerning the time period
for mailing the summons and
complaint after publication in a
mortgage foreclosure conflicts with
Rule 4(e)(4). In this situation,
Rules 4(d)(4) and 81(a) recognize
that provisions of the statute
prevail.
A new subdivision (f) was
added, effective March 1, 1996, to
provide procedures for service upon
a person in a foreign country. The
new procedures follow Rule 26(f),
Fed.R.Civ.P. The letter designation
of each subdivision was changed
accordingly.
SOURCES:
Joint Procedure Committee Minutes of
April 30-May 1, 1998, pages 3, 8,
and 11; January 29-30, 1998, pages
17-18; September 25-26, 1997, page
2; January 30, 1997, pages 6-7,
10-12; September 26-27, 1996, pages
14-16; January 26-27, 1995, pages
7-8; April 20, 1989, page 2;
December 3, 1987, pages 1-4 and 11;
May 21-22, 1987, page 5; November
29, 1984, pages 3-5; September
30-October 1, 1982, pages 15-18;
April 15-16, 1982, pages 2-5;
December 11-12, 1980, page 2;
October 30-31, 1980, page 31;
January 17-18, 1980, pages 1-3;
November 29-30, 1979, page 2;
October 27-28, 1977, page 10; April
8-9, 1976, pages 5-9; Rule 4,
FRCivP.
STATUTES AFFECTED:
SUPERSEDED: Sections 28-0502,
28-0503, 28-0504, 28-0505, 28-0601,
28-0602, 28-0603, 28-0604, 28-0605,
28-0606, 28-0607, 28-0608, 28-0609,
28-0610, 28-0616, 28-0619, 28-0620,
28-0621, 28-0622, 28-0623, 28-0624,
28-0625, 28-0626, 28-0627, 28-0628,
28-0629, 28-0632, 28-3001, NDRC
1943, and Chapters 28-06, 28-06.1,
N.D.C.C.
CROSS REFERENCE: Rules 5 (Service
and Filing of Pleadings and Other
Papers), 45 (Subpoena), and 81
(Applicability In General),
N.D.R.Civ.P.; Rule 8.4 (Summons in
Action for Divorce or Separation),
N.D.R.Ct..
[Effective March 1, 1999]
Rule
45. Subpoena
Form; Issuance
- Every subpoena must
- state the title of the
action, the name of the
court in which it is filed,
and its civil action number;
and
- command each person to
whom it is directed to
attend and give testimony or
to produce and permit
inspection and copying of
designated books, documents
or tangible things in the
possession, custody or
control of that person, or
upon order of the court for
good cause shown, to permit
inspection of premises, at a
time and place therein
specified. A copy of any
court order must be attached
to the subpoena. A command
to produce evidence or to
permit inspection may be
joined with a command to
appear at a trial or hearing
or at a deposition, or may
be issued separately.
- A subpoena must be issued by
the clerk under the seal of the
court or by an attorney for a
party to the action or special
proceeding. The subpoena must be
issued in the name of the court
for the county in which the
action is filed. If issued by
the clerk, it must be issued
signed and sealed but otherwise
blank, and the party requesting
the subpoena shall complete it
before service. If issued by an
attorney for a party, the
subpoena must be subscribed in
the name of the attorney
together with the attorney's
office address and must identify
the party for whom the attorney
appears.
- A subpoena may be issued by
the clerk, under seal of the
court, to an attorney
representing a party in a civil
action pending in another state
upon filing proof of service of
notice under subdivision (b)(2),
or to a party in a civil action
pending in another state upon
filing a letter of request from
a foreign court. The subpoena
must be issued in the name of
the court for the county where
the subpoena will be served. The
subpoena may be used and
discovery obtained within this
state in the same manner and
subject to the same conditions
and limitations as if the action
were pending within this state.
Any dispute regarding the
subpoena, or discovery demanded,
needing judicial involvement
must be submitted to the court
for the county where the
subpoena issued.
Service; Notice.
- Service of a subpoena upon a
person named therein must be
made by personal service under
Rule 4(d) and, if the person's
attendance is commanded, by
tendering to that person the
fees for one day's attendance
and the mileage and travel
expense allowed by law. The
witness need not obey the
subpoena if the witness fee and
payment for mileage and travel
expense are not tendered with
the subpoena. The witness fee,
mileage and travel expense are
not required to be tendered, if
the witness fee, mileage and
travel expense are to be paid by
this state or any political
subdivision thereof. A subpoena
may be served at any place
within the state.
- Service of a notice to take
a deposition as provided in
Rules 30(b) and 31(a) is a
prerequisite for the issuance of
a subpoena that commands a
person to attend and give
testimony at a pretrial
deposition. Service of a notice
for production, inspection or
copying, as provided in this
rule, is a prerequisite for the
issuance of a subpoena that
commands production, inspection
or copying before trial. A
description of the material to
be produced, inspected or
copied, or a description of the
premises to be inspected, must
be included in the notice or
attached to the notice. Notice
must be served on each party in
the manner set by Rule 5(b). A
copy of the notice and of the
proof of service are sufficient
authorization for the clerk to
issue a subpoena for a pretrial
deposition, pretrial production,
pretrial inspection or pretrial
copying. The attorney's
signature on a subpoena issued
by an attorney for a party
constitutes certification that
notice was served.
Protection of person subject
to subpoenas:
- A party or an attorney
responsible for the issuance and
service of a subpoena shall take
reasonable steps to avoid
imposing undue burden or expense
on a person subject to that
subpoena. The court on behalf of
which the subpoena was issued
shall enforce this duty and
impose upon the party or
attorney in breach of this duty
an appropriate sanction, which
may include, but is not limited
to, lost earnings and a
reasonable attorney's fee.
- (A) A person commanded to
produce and permit inspection
and copying of designated books,
papers, documents or tangible
things or inspection of premises
need not appear in person at the
place of production, inspection
or copying unless commanded to
appear for a deposition, hearing
or trial.
(B) Subject to paragraph (d)(2)
of this rule, a person commanded
to produce, permit inspection or
copying before a trial or
hearing may object in writing.
The objection must be received
by the party or attorney
designated in the subpoena
within 10 days after receipt of
the subpoena. If the time
specified in the subpoena for
compliance is less than 10 days,
any objection must be received
at least 24 hours before the
time specified for compliance.
If objection is made, the party
serving the subpoena is not
entitled to production,
inspection or copying except
upon order of the court by which
the subpoena was issued. If
objection is made, the party
serving the subpoena may, upon
notice to the person commanded
to produce, permit inspection or
copying, move at any time for an
order to compel production,
inspection or copying. An order
to compel production, inspection
or copying must protect any
person who is not a party or an
officer of a party from
significant expense resulting
from production, inspection or
copying.
- A resident of this state may
be required by subpoena to
attend a deposition only in the
county where that person
resides, is employed or
transacts business in person, or
at such other convenient place
as prescribed by order of court.
A nonresident of this state may
be required by subpoena to
attend a deposition in any
county of this state. A resident
or nonresident may be required
to attend a hearing or trial any
place within this state.
- On timely motion, the court
by which a subpoena was issued
shall quash or modify a subpoena
that
- fails to allow
reasonable time for
compliance;
- requires attendance
beyond the requirements of
paragraph (c)(3) of this
rule;
- subjects a person to
undue burden; or
- requires disclosure of
an unretained expert's
opinion or information not
describing specific events
or occurrences in dispute
and resulting from the
expert's study made not at
the request of any party.
Duties in Responding to
Subpoena.
- A person responding to a
subpoena to produce documents
shall produce them as they are
kept in the usual course of
business or shall organize and
label them to correspond with
the categories in the demand.
- When information subject to
a subpoena is withheld on a
claim that it is privileged or
subject to protection as trial
preparation materials, the claim
must be made expressly and must
be supported by a description of
the nature of the documents,
communications, or things not
produced that is sufficient to
enable the demanding party to
contest the claim.
Contempt.
Failure by any person without
adequate excuse to obey a subpoena
served upon that person may be a
contempt of the court from which the
subpoena issued. An adequate cause
for failure to obey exists when a
subpoena purports to require a
non-party to attend or produce at a
place not within the limits provided
by paragraph (c)(3).
Notice.
All subpoenas commanding pretrial
or prehearing production, inspection
or copying must contain the
following notice:
"You may object to this subpoena
by sending or delivering a written
objection, stating your valid
reason, to {Insert the name and
address of the party, or attorney
representing the party seeking
production, inspection or copying}.
Any objection must be received
within 10 days after you receive the
subpoena. If the time specified in
the subpoena for compliance is less
than 10 days, any objection must be
received at least 24 hours before
the time specified for compliance.
If you make a timely objection,
you do not need to comply with this
subpoena unless the court orders
otherwise. You will be notified if
the party serving the subpoena seeks
a court order compelling compliance
with this subpoena. You will then
have the opportunity to contest
enforcement.
Failure to obey this subpoena,
without making a timely objection,
and stating a valid reason, may be
contempt of court."
EXPLANATORY NOTES
Rule 45 was amended, effective
July 1, 1981; January 1, 1988;
January 1, 1995; March 1, 1997;
March 1, 1999.
Rule 45 was revised, effective
January 1, 1995, in response to the
1991 federal revision. Significant
changes to North Dakota's rule
include the following: (1) An action
must be filed before a subpoena may
issue; (2) A subpoena may compel a
non-party to produce evidence
independent of any deposition; (3) A
subpoena may compel the inspection
of premises in the possession of a
non-party upon order of the court
for good cause shown; and (4) Notice
must be printed on a subpoena
advising of the right to object when
pretrial or prehearing production or
inspection is commanded. The scope
of discovery under Rule 26 is not
intended to be altered by the
revision.
Subdivision (f) was amended,
effective March 1, 1999, to allow an
objection to a subpoena to be sent
via a commercial carrier as an
alternative to mail.
SOURCES:
Joint Procedure Committee Minutes of
January 29-30, 1998, page 20;
January 25-26, 1996, page 20;
January 27-28, 1994, pages 11-16;
April 29-30, 1993, pages 4-8, 18-20;
January 28-29, 1993, pages 2-7; May
21-22, 1987, page 3; February 19-20,
1987, pages 3-4; October 30-31,
1980, pages 26-29; November 29-30,
1979, page 12; Rule 45, FRCivP.
STATUTES AFFECTED:
SUPERSEDED: Sections 31-0113,
31-0120, 31-0121, 31-0302, 31-0303,
31-0305, 31-0306, 31-0310, 31-0311,
31-0312, 31-0314, NDRC 1943; Section
31-05-22, N.D.C.C. CROSS REFERENCE:
Rules 26 (General Provisions
Governing Discovery), 30
(Depositions Upon Oral Examination),
and 31 (Depositions of Witnesses
Upon Written Questions),
N.D.R.Civ.P.; Rule 17 (Subpoena)
N.D.R.Crim.P.
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warrant the accuracy of these rules of civil procedure or laws. The rules of civil procedure or laws listed on
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starting point for reference, and
are not meant to be legal advice or
a replacement for legal console.
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