North Dakota Civil Motion Practice Guide

North Dakota civil procedure is governed by the North Dakota Rules of Civil Procedure (N.D. R. Civ. P.), which apply in the District Courts. While North Dakota's rules mirror many aspects of the Federal Rules of Civil Procedure, important distinctions exist in motion practice, pleading standards, and procedural requirements that practitioners must understand to avoid costly mistakes.

Motion to Dismiss for Failure to State a Claim

Pleading Standard

North Dakota follows a notice pleading standard, codified in N.D. R. Civ. P. 8(a). This means a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." North Dakota does not require fact pleading with detailed factual allegations, nor does it impose the heightened plausibility standard established in federal practice under Twombly and Iqbal.

Courts apply a more lenient standard: the complaint must give the opposing party fair notice of the claim and the grounds upon which it rests. This generally makes motions to dismiss under N.D. R. Civ. P. 12(b)(6) less likely to succeed in North Dakota than in federal court.

Filing and Procedure

A motion to dismiss for failure to state a claim must:

The court will accept well-pleaded factual allegations as true and view all inferences in the light most favorable to the non-moving party. The motion tests whether the complaint states a valid legal claim, not the strength of the evidence.

Timing

If a defendant files a motion to dismiss under Rule 12(b)(6), it does not waive other Rule 12 defenses, but failure to include it in the first motion or answer constitutes a waiver of many Rule 12(b) defenses unless good cause is shown (N.D. R. Civ. P. 12(g), (h)).

Motion for Summary Judgment

Standard and Burden

N.D. R. Civ. P. 56 governs summary judgment. The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Once met, the burden shifts to the non-moving party to establish a specific factual dispute that precludes judgment as a matter of law.

North Dakota courts apply the familiar standard: summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Timing and Deadlines

Partial Summary Judgment

Courts may grant summary judgment on some claims or issues while leaving others for trial. This is appropriate when certain elements are undisputed and should not reach the jury (N.D. R. Civ. P. 56(a)).

Burden of Proof

The moving party's affidavits, declarations, and discovery responses must affirmatively establish the absence of a material fact dispute. North Dakota courts scrutinize affidavits carefully—conclusory statements without factual support do not satisfy this burden. The non-moving party's affidavits will be accepted as true if based on personal knowledge and not contradicted by competent evidence.

Motion for Judgment on the Pleadings

N.D. R. Civ. P. 12(c) permits judgment on the pleadings when the parties have completed pleading and the face of the pleadings shows no disputed material fact exists and one party is entitled to judgment as a matter of law.

This motion is rarely successful because it is confined to the pleadings alone—no extrinsic evidence is considered. It is most useful when a defendant admits facts in the answer that necessarily defeat plaintiff's claims, or when an affirmative defense is clearly stated and appears dispositive on its face.

Motion to Compel Discovery

Meet-and-Confer Requirement

Before filing a motion to compel, the moving party must make a good-faith effort to obtain compliance without court intervention. N.D. R. Civ. P. 26(f) and case law require parties to meet and confer in person, by phone, or in writing. The motion itself must certify that this effort was made (N.D. R. Civ. P. 26(f)).

Failure to comply with the meet-and-confer requirement may result in the court denying the motion.

Filing Procedure

The motion should:

Fee-Shifting

If the court grants a motion to compel, it must award the moving party reasonable attorney's fees and costs incurred in making the motion, unless:

This mandatory fee-shifting (absent the exceptions) gives North Dakota's discovery rules teeth and encourages prompt compliance.

Motion in Limine

Purpose and Timing

A motion in limine seeks to exclude or limit evidence before trial. N.D. R. Civ. P. 104 and the North Dakota Rules of Evidence govern admissibility. Motions in limine are typically filed before trial begins, though the court may permit them during trial.

Best practice is to file motions in limine 7-14 days before trial (check local rules). No specific rule governs timing, but courts favor advance notice to allow preparation.

Common Subjects

Prior Bad Acts and Character Evidence: Evidence of a party's prior conduct, convictions, or bad acts is generally inadmissible unless it falls within exceptions in the North Dakota Rules of Evidence. A motion in limine can exclude such evidence pre-trial.

Insurance: Evidence that a party is insured is normally inadmissible to prove liability (N.D. R. Evid. 411). A motion in limine typically seeks to prevent plaintiff's counsel from mentioning insurance coverage.

Settlement Discussions and Compromise Offers: Evidence of settlement negotiations, offers to compromise, or statements made in settlement discussions is inadmissible (N.D. R. Evid. 408). A motion in limine protects confidential settlement communications.

Format and Procedure

File a written motion with supporting memorandum and proposed order. The opposing party has 14 days to respond. The court will rule before trial, either in writing or at a pre-trial conference.

Motion for Default Judgment

Procedure When Defendant Fails to Answer

If a defendant fails to answer within 20 days of service of the summons and complaint (N.D. R. Civ. P. 12(a)), the plaintiff may seek a default judgment.

Before requesting entry of default:
1. Verify that service was proper and timely
2. Confirm that no answer has been filed
3. File a motion for entry of default with the court (N.D. R. Civ. P. 55(a))
4. The clerk may enter default without court order under Rule 55(a) if no response is filed

The defendant may have valid reasons for non-response (defective service, excusable neglect), so courts are cautious about defaults.

Proving Damages

After default is entered, the plaintiff must prove damages, even in a default case, unless the claim is for a sum certain or liquidated amount (N.D. R. Civ. P. 55(b)).

For disputed or uncertain damages, the plaintiff must present evidence���affidavits, invoices, testimony, or documentation—to establish the amount due. The court may hold a hearing on damages. Courts will not rubber-stamp inflated or unsupported damage claims.

Motion to Amend Complaint

Standard for Leave to Amend

N.D. R. Civ. P. 15(a) permits amendment as of right once before the defendant serves a responsive pleading. After that point, a party needs court approval or written consent from the opposing party.

The test for allowing amendments is lenient: courts should freely give leave to amend unless:

Courts generally favor amendments over dismissal, especially early in litigation.

Relation Back Doctrine

N.D. R. Civ. P. 15(c) allows an amendment adding a new defendant to relate back to the original complaint if:
1. The claim arises from the same conduct
2. Within 90 days of the original complaint, the new defendant received notice (actual or constructive) that the action would have been brought against them but for a mistake of identity, or
3. The new defendant knew or should have known the action would have been brought against them but for the mistake

This doctrine is particularly important for statutes of limitations purposes: an amended complaint adding a defendant may avoid a statute of limitations defense if relation back is satisfied.

Motion for Temporary Restraining Order / Preliminary Injunction

Requirements

N.D. R. Civ. P. 65 governs injunctive relief. To obtain a temporary restraining order (TRO) or preliminary injunction, the moving party must demonstrate:

1. Likelihood of Success on the Merits: The party must show a substantial likelihood of prevailing at trial, though not necessarily a certainty.

2. Irreparable Harm: Monetary damages must be inadequate to remedy the harm. Courts require a clear showing that the injury cannot be compensated by money.

3. Balance of Equities: The threatened injury to the movant outweighs any harm to the opposing party from the granting of the injunction.

4. Public Interest: Issuance would not disserve the public interest.

Timing and Procedure

Temporary Restraining Orders (TROs):

Preliminary Injunctions:

The moving party must post a bond (unless waived) to secure performance if the injunction later proves wrongful (N.D. R. Civ. P. 65(c)).

Motion to Change Venue / Transfer

N.D. R. Civ. P. 15 and N.D. Cent. Code § 28-01-17 govern venue. A defendant may move to transfer venue if:

N.D. Cent. Code § 28-01-17 provides that venue is proper in any county where:

The motion must be filed before or with the answer or it may be deemed waived (N.D. R. Civ. P. 12(h)(1)). The moving party bears the burden of showing improper venue; if properly pleaded, the court may order transfer.

Motion to Consolidate or Sever

Consolidation

N.D. R. Civ. P. 42(a) permits consolidation of separate actions when they involve common questions of law or fact, or when consolidation would promote the convenient administration of justice and avoid prejudice.

A party may move to consolidate related cases. The court has discretion and will consider judicial economy, the risk of jury confusion, and potential prejudice to any party.

Severance

N.D. R. Civ. P. 42(b) authorizes severance of claims or parties when they involve separate and distinct issues or when joinder might cause confusion or delay.

A defendant might move to sever claims or parties to avoid jury confusion or to try separate issues apart from each other. Courts grant severance less readily than consolidation because joinder is favored under North Dakota rules.

Motion for Continuance

Standard and Timing

Parties may seek continuances (postponement of trial or deadlines) for various reasons: additional discovery needed, witness unavailability, attorney conflict, or other good cause (N.D. R. Civ. P. 6(b)).

No specific rule governs continuances directly, but courts expect:

The court has broad discretion. Repeated or untimely requests are disfavored, especially as trial approaches.

Post-Trial Motions

Motion for New Trial

N.D. R. Civ. P. 59 permits a party to move for a new trial based on:

Deadline: Must be filed within 10 days after entry of judgment (N.D. R. Civ. P. 59(b)).

The motion must specify grounds with particularity. A motion for new trial is reviewed for abuse of discretion; the trial court has substantial latitude in granting or denying the motion.

Motion for Judgment Notwithstanding the Verdict (JNOV) / Motion for Judgment as a Matter of Law

N.D. R. Civ. P. 50 governs motions for judgment as a matter of law (the modern term for JNOV in federal practice, though North Dakota may use either terminology).

A party may move for judgment as a matter of law before the jury retires to consider the verdict, challenging the sufficiency of the evidence. If not granted before the verdict, the motion may be renewed within 10 days after entry of judgment.

Standard: The motion will be granted only if, viewing the evidence in the light most favorable to the opposing party, no reasonable jury could find for that party.

Deadline: Must be filed within 10 days after entry of judgment (N.D. R. Civ. P. 50(b)).

Motion to Alter or Amend Judgment

N.D. R. Civ. P. 59(e) permits a motion to alter or amend judgment based on newly discovered evidence, manifest error of law, or other grounds warranting relief.

Deadline: Must be filed within 10 days after entry of judgment.

Unlike a motion for new trial (which seeks a complete retrial), this motion asks the court to modify its judgment. It is most useful for correcting clear errors in calculation, applying the wrong legal standard, or omitting relief that should have been granted.

Motion for Relief from Judgment

N.D. R. Civ. P. 60(b) permits relief from judgment for:

Deadline: Generally must be filed within one year of entry of judgment; fraud claims may be brought later if the party acted with reasonable diligence (N.D. R. Civ. P. 60(c)).

This motion is available even after the 10-day window for other post-trial motions has closed, but the party must show excusable neglect or other compelling grounds.

General Motion Practice Rules

Format Requirements

North Dakota motions must include:

1. Notice of Motion: The caption, a clear statement that a motion will be heard, the date/time of hearing, and the relief requested

2. Memorandum of Law: A written brief explaining the legal grounds for the motion. **No specific