Group III: Pleadings and Motions · Last amended March 1, 2017 · Last verified July 15, 2026
(a) Purposes of a pretrial conference. In any action, the court may, and when any of the triggering events specified in Rule 16(b) occur must, order the attorneys and any self-represented parties to appear in person, telephonically, or by other electronic means, for one or more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation;
(5) facilitating settlement; and
(6) discussing the desirability of using alternative dispute resolution.
(b) Scheduling; Triggering events.
(1) Triggering events. The court must conduct a pretrial conference for the purpose of entering a scheduling order if:
(A) more than six months have passed since filing of the summons and complaint or answer without final disposition of the case or filing of a dispositive motion;
(B) the summons and complaint or answer was served more than six months before filing and ninety days have passed since filing without final disposition of the case or filing or a dispositive motion;
(C) a Rule 40(e) notice has been issued and any response to the notice contained a request that the case be left open; or
(D) any party makes a written request for a pretrial conference to enter a scheduling order.
(2) When conference held. The pretrial conference must be held within 60 days of the triggering event.
(c) Attendance and matters for consideration at a pretrial conference.
(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone or other means to consider possible settlement.
(2) Matters for consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters:
(A) formulating and simplifying the issues, and eliminating claims or defenses;
(B) joining other parties and amending the pleadings, if necessary or desirable;
(C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;
(D) avoiding unnecessary proof and cumulative evidence, and determining limitations or restrictions on the use of testimony under N.D.R.Ev. 702;
(E) determining the appropriateness and timing of summary adjudication under Rule 56 and other motions;
(F) controlling and scheduling discovery;
(G) resolving issues relating to disclosure, discovery, preservation of electronically stored information, including the form or forms in which it should be produced;
(H) scheduling the identification of witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial;
(I) referring issues to a master;
(J) settling the case and using special procedures to assist in resolving the dispute;
(K) determining the form and content of the pretrial order;
(L) disposing of pending motions;
(M) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(N) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue;
(O) ordering the presentation of evidence early in the trial on a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(P) establishing a reasonable limit on the time allowed to present evidence;
(Q) allocating peremptory challenges; and
(R) facilitating in other ways the just, speedy, and inexpensive disposition of the action.
(d) Pretrial orders. After any conference under this rule, the court must issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.
(e) Final pretrial conference. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the time of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any self-represented party.
The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.
(1) In general. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37, if a party or its attorney:
(A) fails to appear at a pretrial conference;
(B) is substantially unprepared to participate, or does not participate in good faith, in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing fees and costs. Instead of or in addition to any other sanction, the judge must order the party, its attorney, or both to pay the reasonable expenses, including attorney fees, incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2000; August 1, 2004; March 1, 2008; March 1, 2011; December 1, 2011; March 1, 2017.
Rule 16 was amended, effective March 1, 2000, to add a new subdivision (a)(6) relating to alternative dispute resolution. Under N.D.R.Ct. 8.8, all parties in civil cases are required to discuss early alternative dispute resolution and must file a statement with the district court regarding participation in ADR.
Rule 16 was amended, effective March 1, 2011, in response to the December 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.
Subdivision (a) was amended and new subdivisions (b), (c) and (e) were added, effective August 1, 2004, to incorporate a mechanism to trigger a pretrial conference when certain events occur in an action.
Subdivision (c) was amended, effective March 1, 2008, to add issues related to electronically stored information to the list of possible subjects for discussion at a pretrial conference.
Subdivision (c) was amended, effective March 1, 2017, to add preservation of electronically stored information to the list of possible subjects for discussion at a pretrial conference.
Subdivision (d) was amended, effective March 1, 1996, to follow the 1993 amendment to Fed.R.Civ.P 16(c). Subdivision (h) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Rule 16(a) lets a court order attorneys and self-represented parties to appear — in person, by phone, or by other electronic means — for one or more pretrial conferences, whenever it chooses and, once one of the triggering events in Rule 16(b) occurs, as a matter of obligation. The purposes range from expediting the case and keeping early control over it, to discouraging wasted pretrial activity, sharpening trial preparation, facilitating settlement, and discussing alternative dispute resolution.
Rule 16(b) spells out those triggering events: more than six months have passed since the summons and complaint or the answer was filed without a final disposition or a dispositive motion pending; the summons and complaint or answer was served more than six months before filing and 90 days have since passed without resolution or a dispositive motion; a notice under Rule 40(e) drew a response asking that the case stay open; or any party files a written request. Once triggered, the conference must happen within 60 days.
Rule 16(c) sets the ground rules for the conference itself and lists what it can cover. A represented party must give at least one attorney the authority to make stipulations and admissions on anything likely to come up, and the court can require a party's own presence, or availability by phone, to discuss settlement. The topics the court may take up run long: narrowing the issues, adding parties or amending pleadings, securing evidentiary stipulations and advance rulings on admissibility, limiting cumulative evidence and expert testimony under N.D.R.Ev. 702, timing summary judgment and other motions, controlling discovery — including the form of production for electronically stored information and its preservation — scheduling witness and exhibit disclosures and further hearing dates, referring issues to a master, exploring settlement, shaping the pretrial order, resolving pending motions, adopting special procedures for complex cases, ordering separate trials under Rule 42(b), allowing early presentation of evidence that could support judgment as a matter of law or on partial findings, setting reasonable time limits for presenting evidence, and allocating peremptory challenges.
Whatever the court decides, Rule 16(d) requires an order reciting the action taken, and that order controls the case unless later modified. A final pretrial conference under Rule 16(e), held close to trial, sets the trial plan, and the resulting order can be changed afterward only to prevent manifest injustice. Rule 16(f) backs all of this with teeth: if a party or attorney fails to appear, comes unprepared or without good faith, or disobeys a scheduling or pretrial order, the court may issue any just order — including sanctions under Rule 37 — and it must order payment of the reasonable expenses, including attorney's fees, that noncompliance caused, unless the noncompliance was substantially justified or an award would be unjust.