Posted: November 28, 2014
Rules of Civil Procedure
URCP 007. Pleadings allowed; motions, memoranda, hearings, orders. Repeal and reenact. In conjunction with amendments to Rule 54 and Rule 58A, addresses the finality and appealability of orders and judgments. Integrates the memorandum supporting a motion with the motion itself. Regulates the process for citing supplemental authority. Prohibits proposed orders before a decision, except for specified motions. Requires an objection to evidence, rather than a motion to strike evidence. Requires a counter-motion rather than a motion in the opposing memorandum. Includes other provisions regulating motion practice.
URCP 054. Judgment; costs. Amend. In conjunction with amendments to Rule 58A, addresses the finality and appealability of judgments. Conforms more closely to FRCP 54.
URCP 058A. Entry of judgment; abstract of judgment. Amend. In conjunction with amendments to Rule 54, addresses the finality and appealability of judgments. Conforms more closely to FRCP 58. Requires that a judgment be set forth in a separate document. If a separate document is not prepared, establishes the date on which the decision, however designated, becomes final and appealable.
URCP 101. Motion practice before court commissioners. Amend. Modifies deadlines and procedures for motions presented to court commissioners.
Comments directed to Rule 101 (i) – “The total number of pages submitted to the court by each party shall not exceed 25 pages, including affidavits, attachments and summaries, but excluding financial declarations and income verification.”
Comments-
(1) Does the “total number of pages” requirement reset when a counter-motion is filed, or is the 25 page limit apply to the total number of pages filed by a party in connection with both the motion and counter-motion?
(2) Is 25 pages really adequate enough to get the job done? How did the committee arrive at these numbers? Family law cases are often complex and have a lot of issues that need to be addressed and a total of 25 pages does not seem like a lot, especially when you factor in what the rule is counting as a “page” that goes towards the total allowed number of pages. Pages that contain the Certificate of Service (which btw have to be attached to each document now) and notarized signature pages are some examples of necessary nonsubstantive fillers, which will negatively cut into the number of pages that will be left for addressing the issues.
(3) If there is going to be a “total number of pages” limit then it should only apply to the combined total number of pages in the initial memorandum, response memorandum, and affidavits, and exclude all other docs (ex. motion, countermotion, reply, attachments, etc…). Attached evidence is very important, and can often be quickly reviewed, but be voluminous, so do we really want attached evidence to be included in the page limit? Moreover, when initially preparing the motion with an accompanying memo and affidavits, it will be really hard to gauge how many pages you will need to “leave” for later to file a reply with attachments, especially when you don’t have the other side’s response yet and are thus unable to gauge what an adequate reply will need to be.
(4) Asking for leave to file an overlength memorandum is a simple feel good insert into the rule to appease concerns over the limit requirements, but in practice such requests are frowned on by the Court and problematic for the practitioner. How do you know when to make such a request – Up front, in the middle of preparation or at the end of your preparation? How fast will it take for the Court to get back to you, and will you have enough time to ask and get an answer before your deadline? The amount of preparation that is needed to make such a request will negatively impact your preparation for the case at hand and the cost of the case.
Rule 56 needs to include a statement as to length of a summary judgment motion and memorandum. Rule 7 indicates length cannot exceed 15 pages, excluding appendix. I don’t see where “appendix” is defined. Rule 56 supplements Rule 7 by requiring the statement undisputed material facts in the motion and a response to those facts in the opposition memorandum. In many cases that is not possible in 15 pages. If the summary judgment motion and memorandum and the opposition thereto, are to be limited to 15 pages, excluding the statement of material facts, then that should be clearly stated in the rule.
It is not clear what the appendix is. Is it the exhibits attached to the motion? Also, the rule allows parties to rebut facts or object to evidence in the motion or opposition. It is unclear to me whether these sections count against the page limit. I don’t think it should count against the page limit allowed for argument. If a party has a lengthy statement of facts the entire page limit will be reached just responding to the facts. Or if a party attaches many exhibits, the entire page limit will be reached simply objecting to the evidence. It seems to me there will be a lot of requests for over-length memoranda.
The federal rule (DUCivR 7-1(a)(3)) is more clear on what is counted against the page limit. If the intent is to bring motion practice in conformity with the federal rule, language mirroring that rule regarding page limitations would make more sense to me than a vague reference to “the appendix.”
The language in Rule 7(e)(1)which limits reply memoranda “to rebuttal of new matters raised in the memorandum opposing the motion” is confusing. Presumably a memorandum in opposition will address the arguments presented in an opening memorandum, and a reply is allowed to respond to those arguments. What are “new matters” as contemplated by the Rule? Is the rule meant to limit reply memoranda unless a memorandum in opposition raises some “new” argument not raised in the opening memorandum? If this is the intent of the Rule, and it seems to be, it will eliminate an opportunity for the moving party to distill the issues for the reviewing court, which I think is a bad idea.
For Rule 7, line 123, I suggest saying “within 7 days after the PROPOSED order . . . .” That would avoid confusion as to whether the objection deadline extends to after the court signs the order.
For Rule 7, line 217, there is an extra “of the” that needs to be deleted.
Comments to proposed Rule 7:
1. Thank you for combining the motion and memorandum in one document. This change should eliminate waste and streamline the motion process.
2. Rule 7(b) – and by extension Rule 37(a) and Rules of Judicial Administration Rule 4-502. I recommend you include in the 7(b) list a discovery statement pursuant to Rules of Judicial Administration Rule 4-502. Of course, that raises the separate issue of what is a Rule 40592 discovery statement? Is it a motion at all? It is a “request for an order” as referenced in Rule 7(b). Perhaps this might be a good time to also address the difference between a 4-502 discovery statement and a Rule 37 motion.
3. Rule 7(c). I believe it’s good to get away from the current rule’s “10 pages of argument” formulation, which resulted in sometimes endless amounts of so-called non-argument. But I wonder if the 15 page total swings the pendulum too far the other way. It is a burden on parties and courts to request additional pages and often a court does not rule on the request before the deadline to file the document. Federal local rule DUCivR 7-1(3) allows a bit more flexibility with different types of motions and by excluding certain items from the page count. You may want to consider adopting language from DUCivR 7-1(3). On one hand, it would add complexity to the rule, but on the other, it would help reinforce that motions should follow a distinct pattern of sections. Also, allowing additional pages for Rule 12 and 56 motions should eliminate a foreseeable wave of ex parte motions for over-length briefs under proposed Rule 7(n).
4. Rule 7(e). The 5 page limitation on a reply brief seems excessively tight if a moving party is required to include in those pages a full response to facts contained in the opposition memorandum. I believe the “5 pages of argument” in the reply formulation was more difficult to abuse than the “10 pages of argument” formulation with original memoranda. Please do not require parties to respond to both facts and legal arguments in only 5 pages. Please increase this to 10 pages or exclude from the 5 page limitation a moving party’s response to fact sections.
5. Rule 7(f). While you place a 5 page limit on a reply brief, there is apparently no size limitation whatsoever on the non-moving party’s response to objections in the reply. Rule 7(f) should adopt the size limitations of Rule 7(e).
6. Rule 7(g). I recommend striking “and the moving party must” from the first sentence. It has always baffled me why the rule requires the moving party to file a request to submit for decision (RTS), even if the non-moving party files an RTS. What if following briefing the moving party elects to no longer pursue the motion? The final sentence of the subsection contemplates non-compliance by stating that “if no party files a request, the motion will not be submitted for decision.” If this is the consequence, why even mandate the moving party to file a RTS in the first place? Federal local rule DICivR7-3 has a more rational formulation of the rule that does not mandate either party to file a RTS.
7. Rule 7(i). The last sentence of this rule states that “the response must comply with this paragraph.” But what in the paragraph is the response to comply with? The instructions do not have a page limit. Is the response also required to cite to page numbers in the motion or memo? If so, that seems strange. It seems the response should succinctly address items in the notice of supplemental authority.
8. Rule 7(j)(1). From the Advisory Comm. Notes, I see you contemplated how to address this, but I’m still confused by what it means if a court rules on a motion from the bench but there is no signature. I’m sometimes left wondering what it means to have a signature at all. I’ve seen decisions recorded in the docket (i.e., visible on XChange) but does that constitute a judge’s signature? Is it possible to have a decision that is entered for years without a completed decision? In other words, can the second sentence of this subsection apply independent of the first sentence?
9. Rule 7(j)5)(A). How is the party supposed to indicate the means by which approval was received? Should this be a notation next to an e-signature? Or if another person provides a signature by fax, is the party supposed to interlineate on that document before filing that it was received by fax? I am assuming this refers to the practice of placing information next to an /s/ e-signature. If so, I recommend some guidance in the rules for how authority to sign e-signatures for others should be documented.
10. Rule 7(j)(5)(B). Is the party that circulates the proposed order supposed to file the certificate of service at the time of service, or only in the event that a party objects to the proposed order?
11. Rule 7(j)(6)(c). The current version of Rule 37(b) does not appear to be an expedited statement of discovery issues. Did you describe this citation to 37(b) correctly?
Comments to proposed Rule 56:
1. I recommend that you allow parties more time to respond to a summary judgment motion than to other Rule 7 motions. Federal local rule DUCivR 7-1(b)(3) allows parties 28 days to respond to summary judgment instead of only 14 for most other motions.
2. I recommend you allow parties more than 15 total pages for a summary judgment motion. While the existing formulation of 10 pages of argument is too broad in allowing endless items to be briefed in sections called something other than argument, a good solution is the federal rules’ practice of excluding certain sections from the page count. See DUCivR 7-1(a)(3)(A) (“must not exceed twenty-five (25) pages, exclusive of any of the following items: face sheet, table of contents, statement of precise relief sought and grounds for relief, concise introduction and/or background section, statements of issues and facts, statement of elements and undisputed material facts, and exhibits.”)
3. Rule 56(a)(1) and (a)(2). Replace the initial words “Instead of” with “In addition to.” I think you invite confusion by requiring parties to provide a statement of material facts “instead of” a statement of facts under rule 7. In MSJ motions, it is important to draw a distinction between material facts critical to deciding the motion and other facts that might be helpful for context but not required for deciding the motion. Although Rule 56(a)(3) allows a “concise statement of facts … for the limited purpose of providing background and context,” and seems to be more of a Rule 7 type statement of facts, the proposed rule 56 does not make it clear that the 56(a)(1) and 56(a)(3) fact sections should be different. Instead, the “instead of” language in (a)(1) suggests that they are the same. Instead of leaving parties guessing, I recommend this opportunity be used to draw a clear distinction between sections describing material facts and another for background/context facts. I think the proposed “instead of” language blurs the distinction.
4. Rule 56(a)(2) and (c)(2). Allow a responding party to dispute a moving party’s statement of facts by pointing out that the moving party failed to support the fact with admissible evidence IN THE MOTION ITSELF. I have seen moving parties include a material fact without citing to evidence; this rule would then seems to shift the burden on the responding party to refute it with evidence “by citing to materials in the record.” Rule 56(c)(2) does not solve this problem because it requires a responding party to object that the cited material “cannot be presented in a form that would be admissible” (i.e., providing something would be impossible in the future) instead of showing that admissible material was not cited in the motion itself. The point here is whether a moving party should be able to use tenuous evidence to support a material fact and then shift the burden on the responding party to prove the fact cannot be presented in a form that would be admissible. Isn’t it better to allow the responding party to merely show the fact WAS not already presented in a form that is admissible?
5. Rule 56(f)(2). What is the point of letting the court grant summary judgment based on a ground that was not even raised by a party? Doesn’t this give court’s too much discretion to grant a motion for any reason, even one not raised by the parties?
Rule 101(i): There must be a mistake. The rule states that the supporting memorandum can have 10 pages of argument, but the opposing memorandum can only have 5. And then the reply memorandum can also have 5. This results in the moving party having 15 pages of argument, while the non-moving party has only 5. This does not follow the normal practice of giving both parties an equal amount of time / space to make their arguments, while giving the first an opportunity to address new matters. It should be 10 pages in support, 10 in opposition, and 5 in reply.
In sub part (a) of the rule, it does not make it clear that all supporting documents and “other documents” must be filed at the same time as the Motion. One of the problems I encounter is that lawyers are filing affidavits and other documents that are trickling in from discovery up until the date of hearing.
With regard to 101(b), requiring litigants to wait at least 28 days for a hearing on Motion for Temporary Orders is going to result in more Temporary Restraining Orders.
With regard to 101(e), the counter motion provisions of the rule are a big problem. It is good that the rule seeks to clarify that the counter motion need not be concerning the same issues, or the same facts. This has been a point of contention. The argument that it should be only concerning th same issues and the same facts, however, remains the same. Which is, that to give one party half as much time to prepare to defend against a counter motion as the original respondent had to respond to the first motion filed, violates the original moving parties’ rights to due process of law, and equal protection under the law.
It is one thing to give the original moving party half as long to reply to a counter motion with it is concerning the same facts and issues. But if the counter motion can be on a completely separate matter, ie different facts and different issues, to allow the original moving party only half as long to develop a defense makes a law trained person cry foul.
As a practical matter, these motions get made early in the case, even before Initial Disclosures are due. People are waiting to have the hearing date. In the meantime, Initial Disclosures become due, but somebody doesn’t provide them. Somebody sends out a subpoena, and the documents come trickling in at the last minute before the hearing. Supporting documents that were not available when the original motion was filed get filed late. The party making the counter motion has 2 more weeks to work up their counter motion, and gets to do it as subpoenaed documents are trickling in, and after Initial Disclosures have become due.
There is simply no way to give one party half as much time as the other party to defend against a motion and have it turn out fair, UNLESS THERE IS A STRICT POLICY THAT THE COURT WILL NOT CONSIDER SUPPLEMENTAL MATERIALS THAT ARE FILED LATE. Of course, this hamstrings the court with someone files the missing tax returns that give the Court some kind of certainty that it has the facts right 2 days before the hearing. There is precious little solace for the litigant that substantive due process has occurred when their procedural due process rights have been violated.
The rule proposed states that Replies shall not contain fact assertions not in the original motion, but they commonly do. Judges are supposed to ignore them, but is is hard to do when it seems relevant, and there is precious little to go on. It seems to me that a rejoinder should be allowed, when the reply that is filed contains new material. How else can a litigant keep the Court from being unfairly persuaded by materials that violate the rules?
With regard to rule 101(h)(3), parties are required to file, in every domestic case, 2 years worth of tax returns, pay stubs for a year, and 3 months worth of bank statements in support of the Financial Declaration. Each one of these “collections” is going to be more than 10 pages in length. The rule needs to contain an exception for these so that the Court is not getting a summary sheet, and lawyers don’t have to prepare a summary sheet, for documents that are required with every Financial Declaration. The language in (h)(3) is not a model of clarity.
Rule 7(j)(5)(A)
It doesn’t seem wise to allow approval as to form in person or on the phone as there is nothing in writing to confirm it.
Rule 101(b)
Changing the time frame of a hearing from 14 days to 28 days is a bad idea in many divorce-type actions. When a parent is withholding children from the other parent or no financial support is being given, waiting an additional 14 days could be a big deal, causing a party to potentially go an entire month without seeing the children or without the ability to pay bills. Some may suggest the party could get a TRO if necessary, but “immediate and irreparable” is a high standard and not necessarily consistent from judge to judge.
The current timing requirements should remain in place.
Rule 101(i): I retract me previous comment. I see now that the term “initial memoranda” refers to both the supporting and opposing memorandum, and that the term “response” in rule 101(i) is likely referring to the response that can be filed after a reply memorandum to address objections as allowed under the new rule 7.
Rule 7 has been changed so that the trigger for the time to reply to a motion is the filing of that motion, rather than the service of the motion. As it stands the court’s e-filing system is not programmed to notify the parties of a paper filing at the courthouse from a pro se party. If the pro se party neglects to timely serve a copy of the paper, the other party (whether represented or pro se) may be at a time disadvantage if/when that party gets notice of the filing. It may be wise to delay this particular change until the courts can resolve this technical issue.
Rule 7 of the Utah R. Civ. P.
The 15 page limitation should not include the fact section. the current rule only counts the argument section and this should be continued. Often times the fact section takes up a significant number of pages which then hinders the ability to present the argument.
I strongly disagree with the timing changes for the filing of motions, counter-motions and supporting documents. Oftentimes getting before the commissioner quickly is critical, so guaranteeing one can’t get before a commissioner for at least 4 weeks is not only unnecessary but imposes delays and further burdens on people who need any kind of expedited hearing. The whole thing seems a fix for a problem that doesn’t exist.
Many statutes state a case needs to be filed with a petition. The Rule 7 change seems to mandate only a complaint. Will labeling an initial pleading a Petition be allowed?
Rule 7(j)(2):
The first sentence says that “a party shall within 14 days prepare a proposed order confirming the court’s decision….” As written, it is unclear what the triggering event is for the 14-day deadline. To avoid confusion, we request that the Court amend the Rule to explicitly state the triggering event. For example, if the triggering event is the entry of the court’s decision, the Rule would be amended to say that “a party shall within 14 days of the entry of the court’s decision prepare a proposed order confirming the decision….”
Rule 7
The page limitations in rule 7 (R. 7(c)(1), (d)(1), & (e)(1)) refer to “the appendix,” but nowhere is “the appendix” defined. What is to be included in “the appendix”? any exhibits to the motion or memorandum?
The page limitations in the current rule (10 pages for initial memoranda and 5 pages for reply memos) apply only to the argument and not to any introduction, statement of issues, statement of facts, or the conclusion. We would like to see the current page limitations stay the same. The statement of facts can be the longest part of the brief, particularly for summary judgment motions. If the statement of facts exceeds 5 pages (which will often be the case), the party will have less than 10 pages to make its argument and set out the relevant legal authority. This is especially true under the proposed rule because the motion and memorandum, which previously were two separate documents, are now combined, so the motion takes away from the page limit for the memorandum. We think changing the page limitations as proposed will result in many more motions for over-length motions and memos.
The provision for reply memoranda says that the reply memo should include “one or more sections that include a concise statement of the relevant facts claimed by the moving party and argument citing authority rebutting the new matter.” R. 7(e)(1)(B). The moving party’s statement of facts is supposed to be included in the moving papers. R. 7(c)(1)(B). We don’t see any reason to include it again in the reply memo. Doing so would only reduce further the 5 available pages. We think what was probably intended here was any relevant facts not previously set out, that is, facts that respond to the opposing party’s statement of facts. But that is not clear from the way the proposed rule is currently drafted.
The proposed rule follows the federal local rule by doing away with motions to strike evidence. It allows the opposing party to object to evidence in the moving party’s moving papers (R. 7(d)(1)(C)), and allows the moving party to object to evidence in the opposing party’s opposition (R. 7(e)(1)(C)). It also allows the nonmoving party to file a response to an objection made in a reply memo. R. 7(f). But there is no provision for the nonmoving party to object to new evidence that the moving party may present for the first time in the reply memo, and proposed rule 7(e)(2) contemplates such evidence. Without such a provision, the moving party can rely on new, inadmissible evidence in its reply memorandum, and there is no way for the nonmovant to challenge the evidence, since proposed rule 7(m) does away with motions to strike evidence in a motion or memorandum.
Presumably, objections to evidence in a memorandum are included in the page limit for the memo. If so, that also counsels in favor of more generous page limitations. The whole 5 pages of a reply memo could easily be taken up with objections to the non-moving party’s evidence and responses to the non-moving party’s objections to the movant’s evidence.
Rule 54
Proposed rule 54 does away with current rule 54(e), which required that interest and costs be included in the judgment, but interest and costs may still be awarded (and generally will be as a matter of right). It appears that a driving force for the proposed change is greater certainty about when a judgment is final for purposes of appeal, but if a judgment is entered under proposed rule 54 and interest and costs are subsequently awarded, are they added to the judgment? If so, how? It is not entirely clear how interest and costs are to be awarded, and when awarded how they are to be included in the judgment. The total judgment with interest and costs needs to be known for several reasons, including knowing when the judgment is satisfied, the amount of the judgment as a lien, accrual of ongoing interest, etc. It is cumbersome at best to have to seek this information from multiple sources within the docket.
Despite the apparent purpose of greater finality, it is still not clear what effect an award of interest and costs has on the judgment’s finality, if any. Is a new or amended judgment entered when interest and/or costs are awarded? If so, does that affect the time to appeal? If they are not part of the judgment, can they be enforced along with the judgment? Do they nevertheless form a part of the judgment? What if the losing party wants to appeal not only on the merits but also from the court’s award of interest or costs? Must he file a second notice of appeal from the order granting interest or costs? These questions may be answered elsewhere, but, if so, it would be helpful if the Advisory Committee Note provided some guidance on where to find the answers.
Utah Association for Justice
By Edward B. Havas and Paul M. Simmons
The prohibition in Rule 7(m) against a separate motion to strike evidence does not take into account the fact that frequently supporting affidavits and other evidentiary material are voluminous or otherwise raise numerous issues which require a separate motion to strike to properly address. In such cases, there is simply not enough space in 15 pages to present the facts and procedural history, both argue the facts and law, and then also argue whether the alleged facts are admissible or otherwise implicate other evidentiary issues.
And I second the comment which stated that the facts section of a memorandum should not be included in the page count –whether that page count be 10 or 15 pages.
We hear the repeated refrain from Utah appellate decisions that a party has waived any objection to an affidavit because no motion to strike was made. So long as the appellate courts are going to deem issues not raised at the trial level waived, prohibiting a separate motion to strike hobbles the ability of a party to effectively address the issues raised by an opponent’s evidentiary submissions and effectively invites a party to engage in sandbagging in presenting evidence.
Restated, a party will know that they can through the clever use of evidence supporting a motion put the opposing party in the position of having to argue the facts and the law or argue that the facts are not admissible, and forego any substantial legal argument on the merits. This is not an improvement.
And when considered in light of the 2011 amendments, which severely constrain written discovery in Tier I cases and limit a party to a 3 hour deposition, the concerns recited above about limiting the ability of a party to contest the other party’s evidence become even more critical.
Case in Tier II or III will have the luxury of interrogatories, lengthier document requests and much more generous deposition time to inquire into the merits of the other party’s evidentiary assertions. But cases in Tier I, which are dominated by working people defending against debt collectors who all too frequently are making unfounded claims, or working people who have been ripped off by a dishonest car dealer, will find it even more difficult to defend or prosecute these cases.
To a person making $12 or $20 or $30 an hour a $10,000 claim can be every bit as life changing as a $500,000 claim can be to a person with an income well into the six figures. We should not move toward the English system where litigation in the courts is (like polo), for the most part, the province of the upper class.
Article I, Section 11 of the Utah Constitution states that the courthouse door is open to be open to everyone. The presumption that in civil cases the dollar value of a claim should be the dominant factor in deciding how much process is due a person runs afoul of the fundamental principles of the Utah Constitution.
In that light, prohibiting separate motions to strike is another step in unduly constraining access to the courthouse by those who are too often the subject of deceptive practices by interests with much greater financial means.