Posted: April 20, 2017
Rules of Civil Procedure – Comment Period Closed June 4, 2017
URCP005. Service and filing of pleadings and other papers. Amend. Provides that certificates of service are not required for papers that are prepared and served by the court. Also provides that the court submitting a paper to the electronic filing service provider is a valid method of service if the person being served has an electronic filing account.
As long as the court submitting the paper to an electronic filing provider generates the automatic notice of the filing to all counsel of record, this is a fantastic idea and I wish it would have been implemented years ago.
I have had a couple of cases in the last year where something was filed by handing a physical copy to a court clerk, who then scanned and e-filed the document. I’ve seen judges and pro se litigants do it. Currently, that will not generate electronic notice to counsel of record. And since that’s where we all look to keep tabs on what is happening on our files, it’s very easy to miss such an event.
So I whole-heartedly support allowing the courts to use an e-filing provider. That should, if I understand correctly, remedy part of that problem.
On a similar note, this same solution should be applied to allow clerks to use an e-filing provider for pro se pleadings. Pro se litigants frequently neglect to serve opposing counsel with filed documents. In that scenario, the opposing counsel won’t know about the filing unless s/he fortuitously checks the docket and stumbles onto it. Allowing the clerks to use an e-filing service provider would similarly remedy that problem.
The problem with this rule is that some court orders and decisions do not automatically generate an e-filing notice, depending on how the document is uploaded by the clerk. If court electronically approves an order that is submitted by counsel, the e-filing system sends notice to everyone. However, I find that when the judge writes a memorandum decision or its own order and the clerk then scans and uploads the document to the docket, the e-filing system generally does not send notice to anyone. Sometimes I check in on the dockets for my cases when I am anticipating a decision, and I often find rulings on the docket that have been sitting there for several days unknown to anyone. This amendment to Rule 5 is only a good idea if the e-filing system can be changed (or clerks can be trained) to ensure that every court decision automatically generates an e-filing notice to all parties.
If certificates of service are not required for papers that are prepared and served by the court, why should they be required for papers that are prepared and served by counsel of record? What is the basis for requiring attorneys to do it while allowing the courts to leave it undone?
I think Courts should be required to follow the same electronic filing rules as the parties. I have had many cases where there has been confusion caused because the Court does not file an order or notice electronically.
Also, I don’t understand the reasoning for not requiring the court sign a certificate of service. Once I appeared for a hearing and the opposing party was not there. It turned out that the notice of the hearing was not sent to the opposing attorney and the only way to show that was referencing the certificate of service. If there had been no certificate of service there would not have been a way to show the court’s error. A certificate of service may also be critical in determining whether appeal deadlines have been met, etc. Certificates of service are just as necessary for Courts as for the parties. Certificates of service provide a valuable record and courts should be required to certify that documents have been sent to the appropriate parties.
Removing the Court from the certificate of service provision of URCP is a particularly bad idea. Of everyone except unsophisticated Pro Se litigants,the Courts are the most likely to overlook serving one or more of the parties.
Further, the Courts should be required to serve counsel through the efiling system. Whether the Courts are understaffed or the Courts staff are under trained, the times when parties are not served with court filings are nearly always because the Courts fail to serve or the party required to serve is a Pro Se litigant.
Further, the Courts’ coris system is often filtered out by spam filters. Because the Courts do not use the efiling system, I check my spam (junk) file a couple of times a day when I am in the office. Also, by the Courts not using efiling, Court notices usually go to one attorney per firm who has made an appearance in a case, excluding the other attorneys who have made an appearance and excluding staff. This is contrary to the malpractice insurers requirement for a two layer calendaring system. It results in some calendaring being missed.
Currently int he Fourth District there is a practice by some judges of instructing clerks not to include third-parties on service lists. One represents a subpoena recipient, e.g., but the judge directs that no documents be served by filing on you. This practice should be barred. And with this Rule change, the third-party will be deemed to have been served (with orders, motions, etc,) when in fact they have not been served. So the third-pray may be under order to act when it has not been served with the order and may have no notice of the order.
I doubt that is consistent with due process.
Earlier I posted that this was a bad idea. This week this was confirmed. In a Sixth District Court case filed in Manti, opposing counsel instgructed me to release a Lis Pendens in the case because the case had been dismissed. I carefully reviewed all my emails, even my spam folder, and found no notice from the Court.
I went to the Utah Court Xchange and there was a line item entry of a Notice of Intent to Dismiss, but the Notice itself could not be printed. I found the Notice of Dismissal and was able to print that. There was a certificate of service. I was not listed, nor was the pro se defendant – although the other Defendants’ four counsel were listed.
After multiple telephone calls to the Court Clerk’s Office, I was able to speak with an assistant Cour Clerk. After research, the Assistant Court Clerk confirmed that I had not been sent notice of the intent to dismiss nor of the notice of dismiss. The only solution, according to the Assistant Court Clerk, was to file a Motion to set Aside the Dismissal, with full briefing and my affidavit that I had not received notice , which I did.
All in all, it took up around six hours. If there is a hearing, that will be another three to five hours.