Posted: January 19, 2023
Rules of Civil Procedure – Comment Period Closed March 5, 2023
URCP004. Process. AMEND. The Committee proposes an amendment to subparagraph (d)(1)(D), similar to the amendment proposed by Judge Orme in Jordan Credit Union v. Sullivan, 2022 UT App 120, ¶ 18 (Orme, J., concurring), in order to allow for personal service of process on an incarcerated person.
URCP007. Pleadings allowed; motions, memoranda, hearings, orders. AMEND. The Committee proposes adding two motions to the subparagraph (l)(1) list of motions that a court may decide without awaiting a response. First, the Committee proposes adding a motion to strike a document filed by a vexatious litigant in violation of Rule 83(d). Where a vexatious litigant makes an improper filing, it is not presently clear whether an opposing party must proceed under Rule 7A’s procedures for enforcing the vexatious litigant order. Requiring the opposing party to do so would involve full briefing and considerable delay, contrary to the purpose of filing restrictions imposed under Rule 83. Second, the Committee proposes adding a motion to appear remotely.
URCP083. Vexatious Litigants. AMEND. The Committee proposes amending subparagraphs (b)(4) and (d)(1) to allow vexatious litigants to file a notice of appeal without first getting approval from the trial judge. Where a trial court imposes filing restrictions on a vexatious litigant, sometimes court clerks have refused attempts by the litigant to file a notice of appeal. This can create uncertainty in some cases as to whether an appellate court has jurisdiction over an appeal because the documentary evidence of a timely appeal is missing. The amendments would make it clear that the trial court may not erect barriers to the filing of a notice of appeal. The Committee also proposes amending subparagraphs (b)(4), (b)(5), and (d)(1) to change “leave of the court” to “permission of the court” to make the language more understandable to self-represented litigants.
Re Rule 4 amendment:
You got to love Judge Orme’s concurrence in Jordan Credit Union v. Sullivan, 2022 UT App 120; well worth your time to look up and read.
I agree with the change to Rule 4. Personal service is preferable to substitute service and the current rule does not allow personal service on incarcerated individuals as noted in the Jordan Credit Union decision. This rule change will offer additional protections as substitute service on incarcerated individuals allows for the opportunity for default when the incarcerated individual would have had no notice.
I also agree with the change to Rule 7 regarding motions to appear remotely. There is no reason why these motions should receive a full briefing, especially where the Courts are continuing to hold some hearings remotely. This resolves an access to justice issue where it would be a burden for the parties and their counsel to go in to the court, especially for motions that do not require testimony or introduction of evidence.
I have no substantive comments regarding the rule changes as they apply to vexatious litigants.
I am the appellant in the Jordan Credit Union case and I likewise agree that an amendment to the rule would be wise. The current language is clear and concise and does not allow personal service directly on an incarcerated individual.
Re URCP 83: It is not clear how petitions for interlocutory appeals are to be treated – by implication the vexatious litigant needs to get pre-approval from the trial court (because only appeal as of right is mentioned). If the aim is to keep the trial court out of both sorts of appeals, perhaps rephrase to include express reference to the rules, URAP 3-4 & 5.
I support the changes to Rule 7. Remote appearances work well for motions and status conferences, etc.
Being the appellant in the Jordan Credit Union case I agree that an amendment to the rule would be both fair and appropriate. While it is a technicality which resulted in a reversal of a default judgment, the current verbage and language is clear.