Posted: August 17, 2020
Rules of Civil Procedure – Comment period closes October 1, 2020
Consolidation and Venue Transfer Amendments
URCP042. Consolidation; separate trials; venue transfer. AMEND.
The amendments to Rule 42 involve two issues: consolidation and venue transfer. The amendments clarify the powers of the district court to 1) consolidate two or more cases from any district in the state, 2) transfer a case from any court to any other court in the state, or 3) take either action as to just a portion of two or more cases. The amendments further mandate that cases filed in an improper venue be transferred to a proper venue when such is available. The venue amendments address the Supreme Court’s invitation in Footnote 4 of Davis County v. Purdue Pharma, L.P, 2020 UT 17.
Domestic Injunction Amendments
URCP005. Service and filing of pleadings and other papers. AMEND.
URCP109. Injunction in certain domestic relations cases. AMEND.
The proposed amendments to Rules 5 and 109 address conflicting provisions between the two rules. The amendments to Rule 5 add an exception to allow specific rules to state who serves the petition. The amendments to Rule 109 require the petitioner, rather than the court, to provide a copy of the injunction to the respondent.
As a whole, the proposed amendments to Rules 4, 7, 8, 36, and 101 would require more notice to parties of their rights and obligations. An example of a document containing the Judicial Council-approved bilingual notice of rights may be found here.
URCP004. Process. AMEND.
The proposed notice amendments to Rule 4(c)(1) would require that the Judicial Council-approved bilingual notice of rights be included with the summons.
URCP007. Pleadings allowed; motions, memoranda, hearings, orders. AMEND.
The proposed notice amendments to Rule 7(c) would require caution language on the first page of all dispositive motions. It also requires the inclusion of the Judicial Council-approved bilingual notice of rights and provides consequences for failing to include them.
URCP008. General rules of pleadings. AMEND.
The proposed notice amendments to Rule 8(a) would require caution language on the first page of all pleadings requesting relief and provides consequences for failing to do so.
URCP036. Request for admission. AMEND.
The proposed notice amendments to Rule 36(b) would require caution language on the first page of all requests for admission and provides consequences for failing to do so.
URCP101.Motion practice before court commissioners. AMEND.
The proposed notice amendments to Rule 101(a) would require caution language on the first page of all motions to court commissioners. It would also require the inclusion of the Judicial Council-approved bilingual notice of rights and provides consequences for failing to include them.
Service of Process Amendments
URCP004. Process. AMEND.
The proposed service of process amendments to Rule 4 address service on minors in paragraph (d)(1)(B) and outline the requirements for electronic acceptance of service in paragraph (d)(3)(B).
Supplemental Proceedings Amendments
URCP64.Writs in general. AMEND.
The proposed amendments to Rule 64 would require that 1) enforcement proceedings be initiated by motion under new Rule 7A, and 2) that the party against whom enforcement proceedings are initiated be served with the notice of hearing under Rule 4. Under the proposed amendments, If the party did not appear at the enforcement proceedings hearing, only then could a bench warrant issue. The term “referee” in paragraph (c) has also been replaced with “clerk of court.”
URCP007A. Motion to enforce order and for sanctions. NEW.
URCP007B. Motion to enforce order and for sanctions in domestic law matters. NEW.
URCP007. Pleadings allowed; motions, memoranda, hearings, orders. AMEND.
New Rule 7A, which circulated once already for comment, has been split into two rules, 7A and 7B, in response to comments made during the comment period last year. Rules 7A and 7B would create a new, uniform process for enforcing court orders through regular motion practice. They would replace the current order to show cause process found in Rule 7(q) and in local court rules. During the comment period, several practitioners noted that the order to show cause process in the domestic arena differed from the process in other civil cases and should be separated out. Rule 7B would now address the domestic law order to show cause process. As previously noted, this would result in the repeal of Rule 7(q) because the provisions addressing the court’s inherent power to initiate order to show cause proceedings would now be found in Rules 7A(h) and 7B(h).
Vexatious Litigant Amendments
URCP083. Vexatious litigants. AMEND.
The proposed amendments would bring represented parties into the rule’s purview. They would also permit any court to rely on another court’s vexatious litigant findings and order their own restrictions.
Proposed URCP 7, 8, and 36: I suggest limiting the cautionary language and bilingual notice to situations where the party intended to receive the notice is unrepresented.
I’m in favor of improving notice to promote fairness, but this change shouldn’t be necessary in situations where the parties are represented by counsel. The benefit this change contemplates can be achieved without unnecessarily adding to counsel’s growing task list in cases where the relevant parties are represented.
I realize represented parties can opt out (at least under the proposed rule 7), but I don’t understand why they would need to take that additional step. Why is the caution/notice the default approach? I suspect that in many, many cases, these requirements will be surplusage. And they likely will expand the potential bases for counsel to seek delay or set aside.
Accordingly, I recommend the following revisions:
Proposed URCP 7(c)(2), line 25, insert after “For all dispositive motions”: “where the nonmoving party is unrepresented.”
Proposed URCP 7(c)(3), line 28, insert after “All motions”: “directed to unrepresented parties.”
Proposed URCP 8(a), line 10, insert after “pleading requesting relief”: “against an unrepresented party or a party whose representation is unknown.”
Proposed URCP 36(b)(1), line 11: insert after “All requests for admission”: “directed to an unrepresented party.” (I realize this proposal goes beyond the rule’s current iteration, but I think this revision is consistent with my proposal.)
4(3) Acceptance of Service:
(B)(i) and (ii) are particularly good changes.
7(c)(2): I suppose this is intended to aid pro se litigants. Could a lawyer come into court and obtain relief under (4) because the notice was absent? I wonder why the amendment does not say it is limited to cases with a pro se litigant?
Why would anyone opt out of the Notice? What benefit is there to opting out?
Is the Notice to Responding Party the Bilingual Notice of subsection (3)? Why is there no reference to where the Notice to Responding Party is found? It looks like it is part of Rule 7(a), but it is not certain. Why not be specific about location, or label the language in 7 as Notice to Responding Party?
7(c)(3): The Bilingual Notice is not available, so it is hard to know just what this section means. How is the language of the Bilingual Notice determined? Does the Judicial Council have some standard for which languages qualify for the Bilingual Notice? Why is there only one second language for Bilingual Notice? I would think that the languages ought to be tied to those spoken or read by the parties.
Are the Notice to Responding Party and Bilingual Notice substantively identical? How are they related to the notice in Rule 8? Is it 2 notices or 3 that are required? Or is (c)(2) language something other than a Notice to Responding Party? You should set out clearly, in one place, what is what and what is required when.
(a) How does this fit with 7(c)? What is the difference (if there is one) between “caution language” and “Notice to Responding Party”?
Same as 7(c).
(c)(1): This is a good change.
(c)(2): Why use the more onerous Rule 4? Rule 5 would seem sufficient, as Notice of Hearing goes to the parties to the case. Making judgments harder to collect seems to me the wrong idea.
(a) What do you mean by an “ex parte” motion? If filed electronically, there is notice to all counsel at least, which means it is not ex parte. Who is the motion not served on? If it is just to signal that different timelines apply, then ex parte is not necessary and does no work. It would be clearer to jst say that no response is required (or permitted, or whatever), particularly as the Committee is making the Rules more accessible to pro se litigants.
(b) To beat a horse that should be dead but seems resurrected once again, this subsection is in conflict with statute (78B-18a-104). The statute says one can use a declaration in lieu of an affidavit. The Rules of Civil Procedure do not outrank statutes, and there is no exception in the statute for this Rule. The text should say “affidavit or declaration” and “affiant or declarant.” Using just “affidavit” etc., invites motions and argument, and encourages confusion. And for pro se litigants it encourages a waste of time and money in finding a notary.
A couple of questions: a represented party may be found a vexatious litigant. Assuming the attorney filed the offending papers, there is no sanction against the attorney? Is that to be pursued under some other rule? It seems odd that an attorney gets off free while the client gets sanctioned when the conduct was also by the attorney, and the attorney has a positive obligation not to engage in the sanctioned conduct.
The relationship of the courts in (b) and (e) is a little unclear. “Any court” encompasses all courts, not just all Utah state courts. How does the consultation of of (e) work if the other court is a US District Court? Or is there none and the vexatious litigant order is ineffective except as to Utah courts?
Why require bilingual notices for everyone? If the party/attorney knows the person to be served speaks English, then there is no need for a bilingual notice. If the party/attorney knows the person to be served speaks Spanish, then there is no need for a bilingual notice. If the party/attorney knows the person to be served speaks Marshallese, then there is no need for a bilingual notice either because the party/attorney can and should have the summons translated into Marshallese.
A lingua franca is necessary for an ordered society. If I moved to a country that did not speak my native tongue (English), I’d work hard to learn the local language. For my sake and for my family’s. I’d ensure my children learned it too. For my and for their benefit. Not to penalize them. Not to burden them (even though learning a new language does take time and effort–it’s well worth it). The last thing we should be doing in the legal profession is providing fewer incentives for people to learn and speak English. An immigrant who learns English benefits in every way here. People who don’t learn English are at a disadvantage. Don’t make it harder for them to succeed by making it easy not to learn and work within society in English.
I concur with most of the above comments. In particular, the bilingual requirement should only be applicable for cases when the attorney filing pleadings, motions and other papers reasonably knows or should know that the opposing party or parties are not reasonably fluent in the English language. In the past 25 years, having filed hundreds of cases, I have never experienced a case where the other parties were not reasonably fluent in the English language. Imposing such a bilingual requirement is draconian and unnecessarily burdensome in 99.999% of the cases.
The proposal to have the “warning language” in the top right-hand corner (several of the rules, esp Rule 5) will/may interfere with the Judge’s Electronic Signature in that same location.
I agree with Eric’s and Michael’s comments above.
(1) I think that the nation’s language should be required in legal proceedings, in promotion of cultural and national unity, rather than encouraging accommodation of multiple languages.
(2) The proposed 3-page Ten Day Summons is 2 pages too long, discouraging reading.
(3) !Auda! !Audame! I’m unable to print Arabic and Vietnamese characters, as on the suggested form, and Spanish only with difficulty.
I have a comment about the proposed amendment to Rule 42, specifically the second sentence of Rule 42(a)(2). The proposed amendment is written like this: “A motion to consolidate may be filed or opposed by any party. The motion shall be filed in and heard by the judge assigned to the first action filed and served on all parties in each action pursuant to Rule 5.”
It is unclear to me whether the second sentence is saying (a) the motion must be filed and heard in the first action where a complaint has been filed and service has been effectuated on all parties, or (b) the motion must be filed and heard in the first action where a complaint is filed, and then that motion must be served on all parties in each action.
Option (a) could be problematic for a few reasons, including that parties might not be completely identical in actions that otherwise qualify for consolidation. Option (b) makes sense and does not appear problematic. Assuming option (b) is the intended interpretation, I recommend the sentence be modified to eliminate the ambiguity in this way: “The motion shall be filed in and heard by the judge assigned to the first action filed and MUST BE served on all parties in each action pursuant to Rule 5.” (proposed addition in CAPS.)
I want to comment in support of the bilingual notice requirements and, generally, in support of more notice to parties of their rights and obligations. I am not a lawyer, but my understanding is that, within the US judicial system, all people (regardless of language spoken) have a right to due process, and that two important components of due process are notice and a hearing. I think the judicial system has a responsibility to do its best to ensure due process for everyone, including those who may not speak English, and I think these proposed rule changes are a good step toward fulfilling this responsibility.
A number of earlier comments support the proposed changes only for notices directed to unrepresented parties or parties where representation is unknown. First, from my experience working with and advocating for low income tenants, I think it is important to point out that according to the Utah Bar Foundation’s “The Justice Gap” report (2020) over 80%* of defendants in civil cases in Utah were not represented by an attorney in fiscal year 2019. So unrepresented parties constitute a significant percentage of all parties in civil cases.
Second, I worry that narrowing these requirements to apply only to unrepresented parties would result in mistakes at best, and abuse at worst. If someone fails (whether by mistake or malice) to serve an unrepresented non-English-speaking party with a bilingual notice, it is unlikely they will be aware of, and able to assert, their right to a bilingual notice. If bilingual notice is required in all cases, failure to serve a bilingual notice to someone who needs it will be reduced. Overall, I think there is justification for making the new notice requirements apply universally for all civil cases.
*my own calculation based on The Justice Gap (2020) Figure 4
Debt Collection: 62% of total civil cases; 98% of defendants unrepresented
Divorce/annulment: 14% of total civil cases; 81% of defendants unrepresented
Eviction: 6% of total civil cases; 95% of defendants unrepresented
Protective orders: 5% of total civil cases; 70% of defendants unrepresented
(0.62*0.98) + (0.14*0.81) + (0.06*0.95) + (0.05*0.70) = 0.813 or 81.3%
Rule 4(c)(e) already requires that the Summons must “notify the defendant that in case of failure to answer in writing, judgment by default will be entered against the defendant” So this notice is already contained in the Summons from the existing Rule. The required form of the “dual language” “10-day” summons that was provided in the link with the Utah Court Notices email regarding all of these amendments now has a special “Deadline” section.
Now, if I read it correctly, Rule 8 is amended to require “A pleading requesting relief must include the following caution language at the top right of the first page, in bold print: If you do not respond to this document within applicable time limits, judgment could be entered against you as requested. Failure to include the caution language may provide the responding party with a basis under Rule 60(b) for excusable neglect to set aside any resulting judgment or order.” With this Notice language in a special location at the top of the page, of the Complaint, and in bold.
However, the Complaint must be served with a Summons. Going back to the required form of the “dual language” “10-day” summons already mentioned above, it does not show this Notice in the upper part of page one (that is required for the Complaint), but has it only in the body of the document under “Deadline” – which makes it confusing as to just what format we are to follow with these proposed amendments.
The Summons is giving the deadline more than the Complaint is but the Complaint needs a special “page one” Notice. In addition, the amendment to the Rule 36 Request for Admission also requires the special “page one” Notice similar to that of the Complaint, but the Summons does not have a “page one” Notice but a special “Deadline” section within the body of the document.
On top of this, any Motion seeking relief needs its own “page one” Notice, which Notice is to be stated differently (different word combination) than what is required on a Complaint or Request for Admission.
These seem to be on a track to create confusion.
While I am guessing that attorneys can just change their basic formats for pleadings, discovery, motions, etc., it would appear that this is convoluting the process for pro se litigants, thus making it more difficult for people to access the judicial/legal system at a time we are trying to come up with ways to make the justice/legal system less costly and burdensome to the every-day person. These changes do not seem to be geared toward this more recent goal, unless that goal is not meant to apply to those petitioner/plaintiff pro se litigants and only geared to defendant pro se litigants.
As these rules appear to apply regardless of whether the parties have legal counsel, it does not seem geared to keep the cost down for those who already have, or routinely use litigation counsel, or make the practice of law run more smoothly or less expensively in any but the few of a certain group of potential defendants: in debt collection matters (already governed by the FDCPA on giving notice about an attempt to collect a debt); and residential landlord/tenant matters where pro se litigants are generally a high percentage (assuming the “Justice Gap” article in the Sep/Oct 2020 Bar Journal is accurate).
I can’t get my head around just what the real goal/purpose is for these broad changes the way they are presented. Perhaps a different approach would be better? One tailored to these particular areas of litigation?
As to the proposed changes of URCP004, URCP007, URCP008, URCP036 and URCP101: directions are already pretty explicit on each of the pleadings already. Additional language will only appear more boilerplate and will not futher help direct pro se litigants. Also, the additional language requirements is unduly burdensome. If the courts want to help litigants that are either pro se or have a different native language then the courts can more effectively take that on without shifting the burden. More appropriate then addtional language might be reference to a self-help website administered by the courts. Each pleading or notice can direct the litigant to a website address. That link can then provide explanations for various types of summons, motions, discovery requests,etc. The website can also provide phone numbers, translations, or links for resources to help litigants that primarily speak a different language. An option like that can help address access to justice issues while not displacing additional burdens on the parties already trying to seek legal redress of grievances. It will also be a more succinct option that may be more effective than further complicating notices and pleadings with additional language.
(URCP64) Requiring motions and additional hearings in post-judgment remedies is a waste of judicial resources and prejudicial to prevailing parties. When a judgment has already entered, it is not uncommon for the party against whom a judgment was entered to either avoid enforcement or to cause additional delays. The proposed rule which would require motion practice in post-judgment remedies just gives those parties a new avenue to continue litigation (which is already resolved) and avoid the consequences of a judgment. Objections and hearings are already available to parties with a judgment. But, to require motions and hearings needlessly increases costs of collection, enforcement, and causes potentially more litigation on already resolved matters. With that said, it is already the usual practice of most courts to require personal service for a supplemental proceedings before issuing a bench warrant for failure to appear. Clarifying that usual practice in rule may be appropriate, but I am concerned about the precedent this rule may set for other post-judgment remedies like writs of garnishments, writs of execution, etc. Requiring personal service of post-judgment remedies is unduly burdensome, costly and prejudicial as well. If a party is already subject to a judgment then you can expect they will avoid service even more intentionally. This increases costs for parties that have already been adjudged to have been legally damaged. This also potentially decreases an aggrieved party’s ability to effectively collect on a judgment if collection can be delayed by avoiding service in a matter where service was already effectuated.
I would strongly urge the rules committee to further consider notice requirements and other alternatives before implementing the above proposed rule changes. I would also strongly urge the rules committee to consider a revised, more narrow adoption of the proposed changes to Rule 64.
In regards to the proposed bilingual notice amendments: the difficult thing about including different languages is that the proposed rule would only include English and Spanish. Utah has a number of litigants, particularly refugees, who speak neither English nor Spanish. Parties who speak neither English nor Spanish are often the ones who are the most unfamiliar with our court system, and need the most help in interacting with the courts. But there would be obvious difficulties in requiring pleadings to be in every language. It would make more sense to provide a website URL on pleadings where parties could go to seek language assistance, rather than requiring Spanish explanations.
In regards to the caution language: the proposed amendments seem duplicative, burdensome, and potentially would be better served by pointing a party to where they can find help. The rule 7 amendment would say “this motion requires you to respond” but it doesn’t say how to respond, when to respond, or what in the motion the respondent should focus on. Similar things could be said about the notices outlined in the amendments to Rules 8, 36, and 101. It wouldn’t be practicable to include a statement telling the party the precise way that they should litigate their case – because each motion/situation is unique that’s what an attorney is for. It would be a better use of resources to point parties to pro se assistance (such as the eviction and collection assistance that is already provided by the Utah Bar) rather than simply telling the party that they have to respond without informing them how/what/when they have to respond.