Rule 5.Service and Filing of Pleadings and Other Documents

Advisory Committee Comments—2015 Amendments

Rule 5.04 clarifies the limited circumstances where documents tendered to the court administrator for filing can be rejected. These provisions largely reflect current practices in the courts. Concern about public access to sensitive information is greater in the context of electronic filing because of the risk that the information could be found and spread over the Internet shortly after filing. See, e.g., Minn. Gen. R. Prac. 11 for requirements for submitting restricted identifiers (e.g., social security numbers, etc.) and procedures to address any failure to comply with the requirements. It is not feasible to accept for filing documents that relate to an action pending in another district or to file them in an action under an invalid file number. The acceptance of these documents would only create confusion for the parties, both in the intended district and action and in the district and action where they are mistakenly sent. Similarly, payment of the required filing fee is required by statute, see Minn. Stat. § 357.021, and there is no provision for filing without payment of that required fee. The filing of discovery requests and responses, other than notices of taking depositions, is already prohibited by the second paragraph of this rule; the amended language makes it clear that the court administrators are authorized to reject these unauthorized filings. The rule does not prevent a party from filing an affidavit that incorporates or attaches copies of discovery requests or responses that are authenticated by the affiant. The rule intentionally omits any recommendation that the absence of a Civil Cover Sheet would result in the rejection of a document for filing. The court can impose an appropriate sanction for this failure after appropriate notice to the parties and, if the court determines it is appropriate, an opportunity to cure the defect. The improper submission of restricted identifiers is addressed in Rule 11.02(3) of these rules and in Rule 11.04 in the General Rules of Practice.

Advisory Committee Comment—2020 Amendments

Rule 5.04(b) is amended to expressly require that proof of service be provided either by: (1) both eFiling and eServing a document together using the court’s e-Filing System (with the system-generated proof of service eliminating the need to file separate proof of service); or (2) by filing a separate certificate of service. The amended rule specifies that a certificate of service must be signed under oath or penalty of perjury by the person effecting service. The certificate must also establish the specific time and manner of services, as this information is often required to determine the deadline for response. Rule 5.04(c) is amended to add the new subdivision (4), to authorize court administrators to reject for filing any document containing restricted identifiers or other information that may not properly be filed in a public document. The specific definitions of what information may not be filed are contained in Rules 11 and 14 of the Minnesota General Rules of Practice for the District Courts. Rule 5.04(d) is new and is intended to prevent a rejection for filing from having case-ending or other severe consequences for a timely attempt to file a document that contains non-public information. Relief is not automatic under the rule, and in most cases the document will not be deemed filed until a version that complies with the rules is filed. If the filing date is crucial, however, the rule authorizes a motion to have the filing of a compliant version deemed filed as of the time of the original attempted filing. The rule requires that the moving party demonstrate that relief is required “in the interests of justice.” This standard does not focus on whether there is a good excuse for the initial, non-compliant document being tendered for filing so much as whether the consequences

of rejection are severe or irreparable. This might occur for those relatively rare cases where an action is commenced by filing the complaint. See, e.g., Minn. Stat. § 514.11 (requiring timely filing of mechanic’s lien foreclosure action).

Advisory Committee Comments—2020 Amendments

Rule 5.05 is amended as part of the extensive amendments made to the timing provisions of the rules. These amendments implement the adoption of a standard “day” for counting deadlines under the rules—counting all days regardless of the length of the period and standardizing the time periods, where practicable, to a 7-, 14-, 21- or 28-day schedule.

Advisory Committee Comment—1993 Amendments

The amendment to Rule 5.04 makes it unnecessary to file notice of taking depositions in the vast majority of cases. Filing may be required as a condition precedent to issuance of a deposition subpoena pursuant to Minn. R. Civ. P. 45.04(a), though that rule only requires proof of service to be shown, not filed, and does not require filing of the notice itself in either event. The notice need not be filed because court administrators should issue subpoenas without the filing of the notice. In practice, courts have little use for deposition notices in court files, and in those rare circumstances where reference to them is necessary, they can be attached as exhibits to an affidavit, filed by leave of court, or offered in evidence just as any other discovery request or response.

Advisory Committee Comments—1996 Amendments

Most of Rule 5.02 is new and for the first time provides for service by facsimile. Service by this method has become widespread, generally handled either by express agreement of counsel or acquiescence in a service method not explicitly authorized by rule. The committee considered a suggestion that the provision for leaving a document with the court administrator be changed, deleted, or clarified. Although it is not clear from the rule what the administrator should do in the rare event that a document is filed with the administrator rather than delivered or mailed to the attorney, the committee believes the rule should be retained as it provides notice to the court that although service may comply with the rule, effective notice has not been received by the party entitled to notice. This will facilitate the court’s consideration of the sufficiency of service under all of the circumstances. The amendment to Rule 5.02 provides an express mechanism for service by facsimile. Service by facsimile has become widely accepted and is used in Minnesota either by agreement or presumption that it is acceptable under the rules or at least has not been objected to by the parties. The committee believes an express authorization for service by facsimile is appropriate and preferable to the existing silence on the subject. The committee’s recommendation is modeled on similar provisions in the Wisconsin and Florida rules. See Wis. Stat. sections 801.14(2) & .15(5)(b); Fla. R. Civ. P. 1.080(b)(5). Service by facsimile is allowed in other jurisdictions as well. See, e.g., Ill. S. Ct. R. 11(b)(4); S. Dak. R. 15-6-5(b); Cal. R. Civ. P. 2008. In addition providing for service by facsimile, Rule 6.05 is amended to create a specific deadline for timely service. This rule adds an additional day for response to any paper served by any means other than mail (where 3 extra days are allowed under existing Rule 6.05, which is retained) and where service is not effected until after 5:00 p.m., local time. This rule is intended to discourage, or at least make unrewarding, the inappropriate practice of serving papers after the close of a normal business day. Service after 5:00 p.m. is still timely as of the day of service if the deadline for service is that day, but if a response

is permitted, the party served has an additional day to respond. This structure parallels directly the mechanism for dealing with service by mail under the existing rule. Rule 5.05 is amended to add a provision relating to filing that was adopted as part of Fed. R. Civ. P. 5(e) in 1991. It is important that Rule 5 specifically provide that the court administrator must accept for filing documents tendered for that purpose regardless of any technical deficiencies they may contain. The court may, of course, direct that those deficiencies be remedied or give substantive importance to the deficiencies of the documents. The sanction of closing the courthouse to the filing should not be imposed or if imposed, should be imposed by a judge only after reviewing the document and the circumstances surrounding its filing. The rejection of documents for filing may have dire consequences for litigants and is not authorized by statute or rule.

Advisory Committee Comment—2000 Amendments

The last sentence of Rule 5.04 is changed to broaden the direction to court administrators not to reject documents for filing for noncompliance with the form requirements of the rules. The rule as amended makes it clear that those form requirements, regardless of which set of rules contains them, should not be the basis for a refusal to file the document. Any deficiency as to form should be dealt with by appropriate court order, including in most cases an opportunity to cure the defect.

Advisory Committee Comment—2006 Amendments

Rule 5.05 is amended to delete the requirement that an “original” document follow the filing by facsimile. The requirement of a double filing causes confusion and unnecessary burdens for court administrators, and with the dramatic improvement in quality of received faxes since this rule was adopted in 1988, it no longer serves a useful purpose. Under the amended rule, the document filed by facsimile is the original for all purposes unless an issue arises as to its authenticity, in which case the version transmitted electronically and retained by the sender can be reviewed. The filing fee for fax filings in Rule 5.05 is changed from $5.00 to $25.00 because fax filings, even under the streamlined procedures of the amended rule, still impose significant administrative burdens on court staff, and it is therefore appropriate that this fee, unchanged since the rule’s adoption in 1988, be increased. A number of committee members expressed the view that facsimile filing was, and still is, intended to be a process used on a limited basis in exigent or at least unusual circumstances. It is not intended to be a routine filing method. The rule does not provide a specific mechanism for collecting the transmission fee required under the rule. Because prejudice may occur to a party if a filing is deemed ineffective, the court should determine the appropriate consequences of failure to pay the necessary fee.

Advisory Committee Comment—2010 Amendments

Rule 5.02 is amended to provide for service by electronic means, other than by facsimile as allowed by the existing rule, if authorized by an order of the Minnesota Supreme Court. This amendment is intended to facilitate a pilot project on electronic service and filing in one or two districts, but is designed to be a model for the implementation of electronic filing and service if the pilot project is made permanent and statewide. The rule makes service by electronic means effective when transmission is

complete, just as the existing rules provide for filing and service by mail and facsimile transmission. Service by electronic means is allowed for documents served after the original summons. Service under Rule 4 is required for summonses, and electronic service is not one of the means of service under that rule. This amendment is modeled on rules 5(b)(2)(D) & (3) of the Federal Rules of Civil Procedure, as amended to implement electronic filing and service in the federal courts. Rule 5.06 is a new rule to provide for filing by electronic means, if authorized by an order of the Minnesota Supreme Court. This amendment is intended to facilitate a pilot project on electronic service and filing in one or two districts, but is designed to be a model for the implementation of electronic filing if the pilot project is made permanent and statewide. The rule makes filing by electronic means effective in accordance with the rule for the pilot project.

Advisory Committee Comment—2012 Amendment

Rule 5.02 is amended to authorize service by use of an authorized e-filing and e- service system where allowed or required by court rule or supreme court order. This amendment takes effect in conjunction with the adoption of Rule 14 of the General Rules of Practice; that rule defines the cases in which electronic filing and service are either required or permitted, as well as what constitutes proof of service. Rule 5.02(c) addresses the fact of service. Just as service by postal mail is complete upon dropping the properly addressed and postage paid document into the mailbox, service using the court’s E-Filing System is complete upon transmitting the electronic document to the E-Filing system using the appropriate service command. Rule 5.02(d) provides specific guidance for courts dealing with the rare, but probably inevitable, circumstance of the e-filing system either not being available or not functioning as intended. If applicable, the rule authorizes the court to deem pleadings served or filed (or both) when attempted and to adjust the time to respond as appropriate. Rule 5.04 is amended to specify the limited situations where courts are not required to accept documents tendered for filing. These situations apply equally to documents tendered for filing electronically, by mail, or by hand-delivery to the court. Rejection for filing is not required in each of these situations, and it may be possible that certain format defects might be “fixed” at the time of filing. For example, if an incorrect file number is used on a document and it is detected at the time of attempted filing, it might be corrected; the administrator is still authorized to reject it for filing. An attempt to file a case using a new case number when the case has previously been filed may also be treated as not having the correct file number. Rule 5.05 is amended to dovetail the facsimile filing and service provisions to mandatory use of e-filing and e-service in certain cases. Where the court rules require e- filing and e-service, filing and service by facsimile are not authorized. When e-filing and e-service are in use throughout the state and in all categories of cases, facsimile filing and service is likely to become unavailable. Rule 5.06 is amended to clarify when electronic filing through the court’s e-filing system is effective. E-filings are subject to acceptance by the court administrator and acceptance may or may not occur on the same day as the transmittal of the filing. If accepted by the court administrator, however, the e-filing party will get the benefit of the date and time of their transmittal as the effective date of their filing.

Advisory Committee Comments—2015 Amendments

This rule incorporates the provisions of Minn. Gen. R. Prac. 14 on the operation of electronic filing and the determination of the date of filing where it is accomplished by use of the court’s E-Filing System. The use of the alternative “may or shall” language in the first paragraph reflects the expectation that the implementation of electronic filing and service is likely to involve some period of time where e-filing and e-service may be required for some actions (based on district, county, or type of actions), permitted for others, or not permitted at all. The rules are designed to implement e-filing and e-service in particular actions as established by separate implementation orders.