North Dakota Small Claims Removal to District Court: The Defendant's $160 Option

When you file a small claims case in North Dakota, the defendant has a card to play that changes the entire game: removal to district court. It's a legitimate procedural right, but it comes with a built-in deterrent that most defendants don't know about until it's too late.

How Removal Works

Within 20 calendar days of being served, the defendant can use Form 3 to transfer the case from small claims court to the formal district court civil docket. To complete the removal, the defendant must:

1. File the removal section of Form 3 with the Clerk of District Court
2. Pay a $160 filing fee (compared to $0 for staying in small claims)
3. Serve a copy of Form 3 on the plaintiff
4. File a formal answer (Form 4) to the claim

Once removed, the case is no longer a quick 30-minute informal hearing. It becomes a full civil proceeding with formal discovery, strict rules of evidence, and the possibility of a jury trial.

The Attorney Fee-Shifting Rule

Here's what makes removal risky for defendants. Under N.D.C.C. § 27-08.1-04, if the defendant removes the case to district court and the plaintiff wins, the court must award the plaintiff reasonable attorney's fees on top of the judgment amount.

This isn't discretionary — the statute says "must." If a defendant removes a $3,000 security deposit case to district court and loses, they're paying the $3,000 judgment plus whatever you spent on legal fees to litigate in district court. Those fees can easily exceed the original claim.

The rule works the other way too: if the defendant appeals a removed case to the North Dakota Supreme Court and loses, the Supreme Court must award attorney's fees to the other side.

Why Defendants Remove Cases

Despite the cost and risk, defendants remove cases for several reasons:

• They want discovery rights. Small claims doesn't have formal discovery — no depositions, no interrogatories, no document requests. District court does. A defendant with a complex defense may need these tools.
• They want a jury trial. Small claims hearings are decided by a judge or judicial referee with no jury. Some defendants believe a jury would be more sympathetic.
• They want to slow things down. District court cases take longer, which can be a tactical advantage if the defendant is cash-strapped.
• They have a counterclaim over $15,000. Small claims caps counterclaims at $15,000. A defendant whose counterclaim exceeds that amount needs district court to pursue the full amount.

What It Means for You as the Plaintiff

If the defendant removes your case, you have two practical decisions:

Hire an attorney or represent yourself. In district court, formal rules of evidence and civil procedure apply. You can still represent yourself (pro se), but the proceedings are more complex than a small claims hearing. The upside: if you win, the mandatory attorney fee award means you get your legal costs back.

Consider the economics. If your claim is for $2,000 and the defendant removed the case, you might spend more in time and legal fees than the claim is worth — even with the fee-shifting rule. But for claims closer to the $15,000 cap, the math usually favors pressing forward.

What You Can't Do

As the plaintiff, you cannot remove the case yourself. Removal is exclusively the defendant's right. You also cannot appeal a small claims judgment — by choosing to file in small claims court, you accepted a final, non-appealable decision. Only if the defendant removes the case does the appellate path open up.

The North Dakota small claims filing guide covers what to expect if your case gets removed, including the fee-shifting calculation and a comparison of small claims versus district court procedures.

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