Posted: June 27, 2019
Rules of Civil Procedure – Comment Period Closed August 11, 2019
URCP007A. Motion to enforce order and for sanctions. New. Creates a new, uniform process for enforcing court orders through a regular motion practice. Replaces the current order to show cause process.
URCP007. Pleadings allowed; motions, memoranda, hearings, orders. Amend. Repeals paragraph (q) and moves the provisions addressing the court’s inherent power to initiate order to show cause proceedings to new Rule 7A(h).
URCP100. Coordination of cases pending in district court and juvenile court. Amend. To ensure better coordination of cases between courts, Rule 100 is amended to clarify that parties who have a child custody case in one court must notify that court of any other custody case in another court involving the same party or the same child. Custody cases include minor guardianship.
I generally like the proposed amendments of Rule 7A, but I am concerned about the requirement that an order to show cause be personally served and that service on counsel can only be completed with the court’s permission. In the domestic law context, many OSC orders are served for violations of temporary orders before there is a final order. In those cases, I think the rule should allow for service on counsel of record without prior permission from the Court. This provision would allow for the issues to proceed expeditiously, without unnecessary cost (i.e. process servers fees), and solves problems of a non-complying party’s efforts to evade service. Allowing service on counsel of record ensures appropriate notice on the non-complying party while alleviating the other concerns. If there is no counsel of record, or if more than 90 days have passed since entry of a final order (as in Rule 5(b)(1)(B)), then the requirement of personal service is entirely appropriate.
The rule contains provision for a reply, but not a response. In a domestic case, a response may be filed 14 days before, and then the reply 7 days before.
It would be helpful if the rule addressed counter-motions. One ongoing debate is whether a counter-motion for order to show cause also requires issuance of an order to show cause. This rule could clarify whether an order to appear would be required for a counter-motion.
I fully concur with the proposal that the rule directly address the procedure for a counter-motion for order to show cause.
I believe proposed Rule 7A DOES provide for a response memo and a reply memo (although the language could be clearer) at proposed Rule 7A(c)(5):
“(c)(5) state that no written response is required but is permitted if filed at least 14 days before the hearing, unless the court sets a different time, and that any written response must follow the requirements of Rule 7, and Rule 101 if the hearing will be before a commissioner.”
Still, it may be an improvement to word Rule 7A(c)(5) this way:
“(c)(5) state that no memorandum opposing the motion for order to show cause or other written response is required but is permitted if filed at least 14 days before the hearing, unless the court sets a different time for such, and that any opposing memorandum or other written response must follow the requirements of Rule 7, and with Rule 101 if the hearing will be before a commissioner. Within 7 days after the opposing memorandum or other written response is filed, the moving party may file a reply memorandum. The reply memorandum must conform to the provisions of Rule 7, and with Rule 101 if the hearing will be before a commissioner.”
Commissioner Conklin makes a very important point in observing that proposed Rule 7A does not currently provide for a counter motion procedure, and such a procedure is needed, if in no other settings than in domestic relations cases. Domestic relations parties counter move (and have genuine cause to do so) frequently. Rule 7A does needs to provide for a counter motion procedure.
Regarding Commissioner Conklin’s question as to whether a counter-motion for order to show cause also requires issuance of an order to show cause, I would conclude that, if we are going to require show-cause proceedings to be pursuant to and preceded by a court order, a counter motion for OSC does require issuance of an order to show cause.
Which raises an even more fundamental question: why require show-cause proceedings to necessitate an “order” to show cause? Could we not streamline the process by eliminating the court order element?
Why not simply have order enforcement and compliance issues handled something like this?:
1) Start the process with a “motion to show cause” and/or “motion for enforcement of court order” and/or “motion to sanction noncompliance with court order” or the like;
2) Schedule hearing under Rule 101 and either have the moving party send notice of the hearing or have the court clerk send notice of the hearing, if the motion is before a commissioner. If the motion is not before a commissioner, then proceed to step 3;
3) Exchange opposition and reply memoranda, affidavits, etc.
4) Schedule hearing under Rule 7, if either party or the court requests/requires a hearing, and then either have the moving party send notice of the hearing or have the court clerk send notice of the hearing;
5) If the movant prevails on the motion, issue an “order on MOTION to show cause”
What vital purpose does an “order” to show cause serve? It has always appeared to me that requiring a court order “to show cause” is a needlessly complex and fancy way of noticing up a hearing on a motion seeking to enforce a court order and/or sanction noncompliance.
As an attorney that does a good amount of collections, many supplemental proceedings occur. Often a judgment debtor fails to appear after being served (personally or via substitute service) with an order to appear for what is commonly called a debtor’s exam. However, when they fail to appear typically an order to show cause or a bench warrant is requested by the judgment creditor. The judgment creditor then has to apply for and get the appropriate order issued, but the request and grant was already made at the original hearing where the judgment debtor failed to appear. In this context, under the proposed Rule 7A, it seems that having to file a motion, wait, and then serve the order prior to at least 28 days of the next hearing is a bit too much given that the Court already knows the party failed to appear at the original hearing/debtor’s exam (such failure to appear happened in the presence of the court and constitutes non-compliance with the order). I think that the proposed Rule 7A include language that exempts from this procedure action (such as non-appearance at a hearing by a judgment debtor) that occurs before the court’s presence. Otherwise this rule change would contribute to increased costs and waste of time. Maybe language in subsection (g) of Rule 7A can state something like “This rule does not apply to an order to show cause that is issued by the court on its own initiative or that is issued for conduct or non-conduct happening in the presence of the court and that constitutes a violation of the court’s order.”
Requiring personal service of an order to show cause upon a represented party strikes me as totally unnecessary.
First, given that the rules of civil procedure (rule 5) already provide that “[I]f a party is represented by an attorney, a paper [i.e., “pleadings and other papers”] served under this rule MUST be served upon the attorney unless the court orders service upon the party,” why create a rule that turns rule 5 on its head?
Second, no compelling interest or purpose is served by requiring that an order to show cause be personally served on a represented party, instead of on the represented party’s attorney. If the rules committee somehow sees a need for the moving party to send (as opposed to formally “serve”) a notice of the order to show cause to the nonmoving party, then wouldn’t it be sufficient to provide in Rule 7A something like this?:
“(d) Service of the order. If the court grants the motion and issues an order to attend hearing, the moving party must have the order, the motion, and all supporting affidavits:
(d)(1) personally served on the nonmoving party in a manner provided in Rule 4 at least 28 days before the hearing, if a party is not represented by an attorney; or
(d)(2) if a party is represented by an attorney, served on the nonmoving party’s counsel of record in a manner provided in Rule 5 at least 28 days before the hearing. In addition to serving the nonmoving party’s counsel, the moving party must also send, at least 28 days before the hearing, a copy of the order, the motion, and all supporting affidavits to the nonmoving party, either by mail to the nonmoving party’s last known physical mailing address or by email to the nonmoving party’s last known email address.”
The moving party or moving party’s attorney could then certify in a “certificate of mailing/emailing” appended to the the order, the motion, and all supporting affidavits that the order, the motion, and all supporting affidavits were mailed/emailed to the nonmoving party.
The proposed amendment seems designed for the context of family law proceedings. It makes little sense in the context of collections, as explained above. It also makes little sense in the context of other civil proceedings. The proposal seems to conflict with the Rules of Professional Conduct as it directs communication with a represented party. It requires unnecessary costs and delays. I can see no reason for serving a represented party personally when all other motions and papers are served on counsel. This is unnecessary. Supposing a hearing at least 28 days out, to be preoceded by a telephonic conference really means the hearing on the OSC will be more like 60 days or more. As we are talking about violation of a court order, what is the value of such delay? In the normal civil context, it just erodes the importance of court orders. The process here is more onerous than summary judgment. A separate rule for domestic matters makes more sense to me. The Committee should be looking at ways to make enforcement of Rules and orders easier and quicker, not harder and slower.
The rule also has some drafting ambiguities. Who sets the time and date of the hearing? As drafted, it could be ether the court or the counsel.
In the Fifth District, personal service has been required for years. It is very beneficial if the attorney did not withdraw at the time of the judgment and has not had contact with the client in years. If the contact information has changed, this rule puts the onus on the enforcing party not the former attorney to find the old client. As for the comments that it violates the rules of Professional Responsibility, Rule 4.2 states that an attorney “may communicate with another’s client if authorized to do so by any law, rule, or court order”.
Rule 7A(f) should be modified to function like the Fifth District Local Rule. https://www.utcourts.gov/resources/rules/ucja/view.html?title=Rule%2010-1-501%20Orders%20to%20show%20cause.&rule=ch10/10-1-501.htm There is an inital hearing, where all that is decided is if the allegations are going to be contested. If the allegation is admitted, the court can resolve the issue immediately. If it is contested, the parties usually get a evidentiary hearing date at the hearing that works for all parties and the actually contested issues are determined. (i.e. the party admits that he hadn’t paid, he is contesting his ability to pay.)
Under Rule 7A(f), the movant need to prepare for an evidentiary hearing on that first hearing. That means subpoenaing witness and preparing to place your evidence on the record. Once there, you may find out that the court does not have time that day for the evidentiary hearing and you have to come back. This causes additional expense for the movant because of the duplicate preparation for the rescheduled hearing. By not having an evidentiary hearing on the first hearing, everyone is on the same page and it promotes judicial economy.
1. To begin with, there is no need for a state-wide uniform rule concerning orders to show cause. The Fifth and Sixth Judicial Districts have adopted their own rules, which are particularly good. The entire judicial system in Utah would be better off if those involved in the proposed changes would simply leave things alone and quit meddling.
2. If new Civil Rule 7A is adopted, it should be revised to include a first appearance requirement which is not an evidentiary hearing, to determine whether the party against whom the order to show cause is brought contest the allegations, whether an evidentiary hearing is required, and the length of the evidentiary hearing. See Local Supplemental Rules 10-1-501, and 10-1-602, the first applying in the Fifth District and the second applying in the Sixth District. This a particularly important provision.
3. Setting up a process which requires an evidentiary hearing at the first appearance is not only inefficient, but it “front loads” costs of preparation. Under the proposed Civil Rule 7A, there is no way reasonably to determine how long the hearing will take, how many witnesses will be required, and creates a great deal of uncertainty. Local Supplemental Rules 10-1-501 and 10-1-602, applicable in the Fifth and Sixth Districts, respectively, avoid this problem. Many orders to show cause are quickly resolved at the first appearance, with no requirement of an evidentiary hearing.
4. From the standpoint of practitioners, any rule relating to enforcement of orders or orders to show cause, should be allowed to be adjusted, modified, created and/or amended by the judges in the local district, with input from local practitioners, thus meeting the particular conditions in any particular district. Proposed Civil Rule 7A does not permit such adjustment