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STATE OF MAINE
SUPREME JUDICIAL COURT
AMENDMENTS TO THE
MAINE RULES OF CIVIL PROCEDURE
Effective April 2, 2007
All
of the Justices concurring therein, the following amendments to the Maine Rules
of Civil Procedure, are hereby adopted, prescribed, promulgated, and amended,
to be effective April 2, 2007.
The specific rules
amendments are set forth below. To
aid in understanding of the amendments, an Advisory Committee Note appears
after the text of each amendment.
The Advisory Committee Note states the reason for recommending the
amendment, but the Advisory Committee Note is not part of the amendment adopted
by the Court.
1. Subdivision (a) of RULE 16 of the Maine
Rules of Civil Procedure is amended to read as follows:
(a)
Case Management.
(1)
Standard Scheduling Order. Unless
otherwise ordered by the court, after the filing of the answer in any civil
action in the Superior Court other than proceedings pursuant to Rule 80, 80B or
80C, the court shall enter a standard scheduling order setting deadlines
for the joinder of additional parties, the exchange of expert witness
designations and reports, the scheduling and completion of an alternative
dispute resolution conference when required by Rule 16B, the completion of
discovery, the filing of motions, and the placement of the action on the trial
list. The standard
scheduling order shall not be modified except in accordance with Rule
16(a)(2) or on motion for good cause shown. The joinder of additional parties after the standard scheduling
order has issued shall not require a modification of the scheduling order
except on motion for good cause shown.
(2)
Modified Scheduling Order. On motion by a
party filed within 30 days of the entry of the standard scheduling order, or at
any time on the court's own initiative, the standard scheduling order may be
modified or supplemented to address the requirements of a case not addressed by
the standard scheduling order. The
court, after conferring with the parties and considering the nature of the case,
may in the modified or specialized scheduling order establish deadlines,
schedules, and other orders for the efficient preparation of the case for
trial. Once entered, the modified
scheduling order shall not be further modified except for good cause shown.
Advisory Committee
Note
This
amendment is designed to provide parties and the court with a choice for
differentiated case management.
Once the parties have appeared, the Superior Court enters a form
scheduling order that sets deadlines for the case. The amendment to Rule 16(a) establishes a subdivision
(a)(1), which is directed to the form scheduling order, now called the
''standard" scheduling order in the amendment. A "standard" scheduling order will issue unless, in a few
cases, the court has previously issued a specialized scheduling order governing
the particular proceeding. The
deadlines in the "standard" scheduling order may not be modified under the rule
unless "good cause" can be shown. Although the standard scheduling order should govern the
great majority of cases, there are cases in which the form order may not serve
the requirements of an individual case.
The
adoption of Rule 16(a)(2) permits the court, on its own or on a motion, filed
within 30 days of the scheduling order, to modify the order without having to
meet the exacting "good cause" standard. A Rule 16(a)(2) modification of the scheduling order should
be the exception, rather than the routine. The new subdivision (a)(2) purposely does not specify the
kinds of cases in which a departure from the form order is warranted, but
obvious examples include complex or multi-jurisdictional cases, cases with many
parties and counsel, and extremely simple cases that do not require the full
standard treatment. A motion for
modification to the standard scheduling order should specify why the standard
order does not meet the requirements of the case and should proffer an
alternative order, preferably with the agreement of all counsel. The court is intended to have broad
discretion to decide whether to depart from the standard order and, if so, on
the schedules and orders made to address the particular requirements of the
case.
2. RULE 16A of the Maine Rules of Civil
Procedure is amended to read as follows:
(a) Orders
Prior to Trial. In any action in the District Court, the court may issue a scheduling
order, trial management order, or other order directing the future course of
the action. The court may issue standard orders, in a form approved by the
Chief Judge of the District Court, directing the future course of the action
without the signature of a judge, and when so issued such orders are binding on
the parties.
(b) Conferences. The court may also
schedule a conference, issue a pretrial order or, in its discretion, direct
the attorneys for the parties and/or the parties to appear before it for
a conference to consider address:
(1)
The simplification of the issues;
(2)
The necessity or desirability of amendments to the pleadings;
(3)
The possibility of obtaining admissions of fact and of documents which will
avoid unnecessary proof;
(4)
The limitation of the number of expert witnesses; and
(5)
Such other matters as may aid in the disposition of the action.
The court may, in its
discretion, permit attendance at the conference by telephone or video
conferencing.
(c) Orders after Conference. If a conference is held, T the
court shall make an order which recites the action taken at the conference.,
the amendments allowed to the pleadings, and the agreements made by the parties
as to any of the matters considered, and which limits the issues for trial to
those not disposed of by admissions or agreements of counsel; and such
order, when entered, controls the subsequent course of the action, unless modified
at the trial to prevent manifest injustice. The court in its discretion may
establish a pretrial calendar on which actions may be placed for
consideration as above provided.
(d) Sanctions. If a party fails to comply with the requirements of
this rule, to attend a pretrial conference held under this rule,
or to comply with any order made hereunder, the court shall impose on the party
or the party's attorney, or both, such sanctions as the circumstances warrant,
which may include the dismissal of the action or any part thereof with or
without prejudice, the default of a party, the exclusion of evidence at the
trial, and the imposition of costs, including attorney fees and travel. The court may expressly order, where
appropriate in its discretion, that the costs of such sanctions be borne by
counsel and that they shall not be passed on to counsel's client.
Advisory
Note
The District Court needs more options to manage its
dockets, including self-executing tools such as scheduling orders. Rule 16A is
expanded to provide some of those options. It is also separated into several
subdivisions to improve readability.
The current rule limits pretrial conferences to attorneys. The suggested
amendment updates the rule to reflect that many self represented parties may be
required to attend pretrial conferences. Also, the rule expressly authorizes
standard orders, in a form approved by the Chief Judge of the District Court,
to be issued without being signed by a judge. Requiring an individual judge to
sign every order issued under this rule would be unduly burdensome. Finally,
the rule is amended to make clear that sanctions for non-compliance apply to
all orders issued under the rule, not just pretrial conferences and orders.
3. The introductory sentence and subdivisions
(a) and (i) of RULE 16B of the Maine Rules of Civil Procedure are amended to
read as follows:
This
rule is applicable to cases filed in the Superior Court and cases removed to
the Superior Court from the District Court. when the original filing date
for the complaint is on or after January 1, 2002.
(a)
Applicability. All parties to any civil action filed in
or removed to the Superior Court, except actions exempt in accordance with
subsection (b) of this rule, shall, within 60 days of the date of the Rule
16(a) scheduling order, schedule an alternative dispute resolution conference
which conference shall be held and completed within 120 days of the date of the
Rule 16(a) scheduling order. By
agreement of all parties, reported to the court in writing within 120 days of
the date of the Rule 16(a) scheduling order, the time for the completion of the
alternative dispute resolution conference shall be extended for a period not
to exceed 180 days from the date of the Rule 16(a) scheduling order.
.
. . .
(i)
Jury Fee. For cases required to have an
alternative dispute resolution conference in accordance with this rule, payment
of the civil jury fee required by Rule 38(b) or Rule 76C, shall be deferred
until 150 210 days after the date of the Rule 16(a) scheduling
order.
.
. . .
Advisory Committee
Note
Rule
16B is amended in an effort to make alternative dispute resolution more
flexible. Much experience has been
gained since the Supreme Judicial Court first promulgated Rule 16B in 2002. On the whole, the program has been very
successful in creating settlements in cases that otherwise might have persisted
in the process before ultimately settling, as the large majority of cases
do. However, many cases may not be
ready for ADR when first filed.
More time may be required to gather the information the parties need to
evaluate their cases. The
amendments are intended to provide more flexibility in scheduling mediations.
On
occasion, parties agree that a case is not ready for productive ADR and may
need additional time to prepare the case.
Rule 16B(a) is amended to permit the parties to agree to an automatic
extension of the ADR process not to exceed an additional 60 days. To obtain the extension, the parties
notify the court by letter or by a filing recording their agreement to the
extension. To assist the ADR
process and to control costs, subdivision (i) and the form scheduling order are
amended to provide that the time for paying the jury fee is extended to 210
days in all cases.
4. Subdivisions (d) and (h) of RULE 56 of
the Maine Rules of Civil Procedure is amended to read as follows:
(d)
Case Not Fully Adjudicated on Motion. If on motion
under this rule judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and by interrogating
counsel, shall if practicable ascertain what material facts exist without
substantial controversy and what material facts are actually and in good faith
controverted. It shall thereupon
make an order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are
just. Upon the trial of the action
the facts so specified shall be deemed established, and the trial shall be
conducted accordingly. In the
event that a moving party's motion for summary judgment is denied in whole or
in part, facts admitted by the parties solely for the purpose of the summary
judgment motion shall have no preclusive effect at trial upon any third party
who did not participate in the summary judgment proceeding.
(h)
Statements of Material Fact. In addition to the
material required to be filed by Rule 7, a motion for summary judgment and
opposition thereto shall be supported by statements of material facts as
addressed in paragraphs (1), (2), (3), and (4) of this rule.
(1)
Supporting Statement of Material Facts.
A motion for summary judgment shall be supported by a separate, short,
and concise statement of material facts, set forth in numbered paragraphs, as
to which the moving party contends there is no genuine issue of material fact
to be tried. Each fact asserted in
the statement shall be set forth in a separately numbered paragraph supported
by a record citation as required by paragraph (4) of this rule.
(2)
Opposing Statement of Material Facts.
A party opposing a motion for summary judgment shall submit with its
opposition a separate, short, and concise opposing statement of
material facts. The
opposing statement shall admit, deny or qualify the facts asserted by reference
to each numbered paragraph of the moving party's statement of material facts
and unless a fact is admitted, shall support each denial or qualification by a
record citation as required by this rule.
Each such statement shall begin with the designation
"Admitted," "Denied," or "Qualified" (and, in the
case of an admission, shall end with such designation). In addition to any denials or
qualifications, the party opposing summary judgment may note any objections to
factual assertions made by the moving party as set forth in paragraph
(i). The opposing statement may
contain in a separately titled section any additional facts which the
party opposing summary judgment contends raise a disputed issue for
trial, set forth in separate numbered paragraphs and supported by a record
citation as required by paragraph (4) of this rule.
(3)
Reply Statement of Material Facts. A party replying to the opposition to a motion for summary
judgment shall submit with its reply a separate, short, and concise statement
of material facts which shall bo response limited to any the
additional facts submitted by the opposing party and any objections to
denials or qualifications as set forth in paragraph (i). The reply statement shall admit, deny
or qualify such additional facts by reference to the numbered paragraphs of the
opposing party's statement of material facts, and unless a fact is admitted,
shall support each denial or qualification by a record citation as required by
paragraph (4) of this rule. Each
reply statement shall begin with the designation "Admitted,"
"Denied," or "Qualified" (and, in the case of an admission,
shall end with such designation).
(4)
Statement of Facts Deemed Admitted Unless Properly Controverted; Specific Record of Citations
Required. Facts contained in a supporting or
opposing statement of material facts, if supported by record citations as
required by this rule, shall be deemed admitted unless properly
controverted. An assertion of fact
set forth in a statement of material facts shall be followed by a citation to the
specific page or paragraph of identified record material supporting the
assertion. The court may disregard
any statement of fact not supported by a specific citation to record material
properly considered on summary judgment.
The court shall have no independent duty to search or consider any part
of the record not specifically referenced in the parties' separate statement of
facts.
5. Subdivision (i) is added to RULE 56 of
the Maine Rules of Civil Procedure to read as follows:
(i)
Motions to Strike Not Permitted.
(1)
Motions to strike factual assertions, denials, or qualifications contained in
any statement of material facts filed pursuant to this rule are not
permitted. If a party contends
that the court should not consider a factual assertion, denial, or
qualification, the party may set forth an objection in either its opposing
statement or in its reply statement and shall include a brief statement of the
reason(s) for the objection and any supporting authority or record citations.
(2)
A party moving for summary judgment may respond in its reply statement to any
objections made by the party opposing summary judgment. If the moving party objects in its
reply statement to any factual assertion, denial, or qualification made by the
opposing party, the party opposing summary judgment may file a response within
7 days of the filing of the reply statement. Such a response shall be strictly limited to a brief
statement of the reason(s) why the factual assertion should be considered and
any supporting authority or record citations.
Advisory Committee
Note
The
purpose of these amendments is to make Rule 56 practice more uniform and
efficient and, in particular, to eliminate the practice of filing motions to
strike in order to raise or preserve objections to factual assertions contained
in statements of material facts filed in connection with motions for summary
judgment. This practice has led to
a situation where motions for summary judgment, which are often complicated
enough in their own right, have spawned multiple subsidiary motions and needless
additional filings in the form of motions to strike and objections thereto.
The
second major change is that a new last sentence in subsection (d) explicitly
states that facts admitted for summary judgment shall have no preclusive effect
at trial upon any third party who did not participate in the summary judgment
proceeding.
There
is a related concern among practitioners that a court may not grant partial
summary judgment but will instead determine factual issues at the summary
judgment stage with preclusive effect at trial. The Committee did not amend the rule to address this concern
for two reasons. First, the
existing rule makes clear that such a finding under subdivision (d) occurs only
after the court "by interrogating counsel" determines those facts
"without substantial controversy," a finding that could not be made
if counsel in this process indicates that facts are disputed. Second, the amended rule states that
there is no such preclusive effect on third parties for facts admitted on summary
judgment. The Committee also
observed that the procedure of subdivision (d) appears to be used rarely if at
all. Until real problems arise,
there seems to be little need to amend the rule to eliminate a process that
could potentially be useful if properly employed.
The
rule continues to provide that a party opposing summary judgment must admit,
deny, or qualify each statement in the moving party's statement of material
facts. Because motions to strike
assertions contained in statements of material fact have been eliminated, the
amended rule provides that parties may also object to factual assertions,
denials, or qualifications in their statements of material facts. The grounds for such objections are
specified in subparagraph (i).
The
reply statement previously was limited only to the so-called additional facts
in the opposing statement of material facts, but as part of this amendment the
reply statement may now also be used to object to denials or qualifications in
the Rule 56(h)(2) statement submitted by the party opposing summary
judgment. The objection should be
limited to a short and concise statement of the basis for the objection with a
statement of authority or a record citation. The objection, however, is not an excuse for not responding
to the factual statement. The
statement should still be admitted, denied or qualified subject to the
objection.
These
amendments also provide that if objections are raised for the first time in a
reply statement of material facts, the opposing party may file a response to
the objections within seven days.
Such response, however, is to be strictly limited to a brief statement
of why the objection is invalid along with any supporting authority or record
citations.
In
instances where parties admit certain facts but argue that those facts are not
material because they do not affect the outcome of the motion, they should
raise their arguments with respect to materiality in their memoranda of law
rather than in their statements of material facts. In short, the statements of fact should be precisely what
the rule requires: "short and concise." Rule 56(h)(1).
Where
a party raising an objection to factual assertions or disputes contained in a
statement of material facts wishes to direct the court's attention to portions
of the record which support the objection, the party shall set forth citations
to the relevant portions of the record in its opposing or reply statement of
facts. Thus, all citations to the
record should be found in the original statement of material facts, in the
opposing statement of material facts, or in the reply statement of material
facts. On a motion for summary
judgment, the court is not obliged to review any portions of the record that
are not identified in any of the statements of material fact filed in
connection with the motion.
The
parties may bring any unusual issues presented by a motion for summary judgment
to the attention of the court in their memoranda of law or as otherwise
permitted by the rules without filing motions to strike. For instance, if a statement of
material facts cites to documents or witnesses that were requested but not
disclosed during discovery, the opposing party may, in addition to raising an
objection to this effect, also bring the discovery violation to the attention
of the court by requesting a conference pursuant to Rule 26(g) while the
summary judgment motion is pending.
6. Subdivision (a) of RULE 62 of the Maine
Rules of Civil Procedure is amended to read as follows:
(a) Automatic Stay,
Exceptions—Injunctions and Receiverships.
Except
as stated herein, no execution shall issue upon a judgment nor shall
proceedings be taken for its enforcement until the expiration of 30 21
days after its entry or until the time for appeal from the judgment as extended
by the rules governing appeals has expired. Unless otherwise ordered by the court, an interlocutory or
final judgment in an action for an injunction or in a receivership action or an
order relating to the care, custody and support of minor children or to the
separate support or personal liberty of a person or for the protection of a
person from abuse or harassment shall not be stayed during the period after
its entry and until an appeal is taken or during the pendency of an
appeal. The provisions of
subdivision (d) of this rule govern the suspending, modifying, restoring or
granting of an injunction during the pendency of an appeal.
Advisory Committee
Note
Rule
62(a) is amended to recognize that the time when a judgment becomes final and subject to
enforcement is now 21 days after entry.
M.R. App. P. 2(b)(3). The
amendment also recognizes the special proceedings to protect people from abuse
and harassment, 19-A M.R.S. §§ 4001 to 4014 (2006) and 5 M.R.S. §§ 4651 to
4660-A (2006). An amendment to
subdivision (a) is added to provide that orders under the relief provisions of
these statutes are not stayed pending appeal. The intent of the amendment is to maintain court-ordered
personal safety protections during the appeal. In individual cases, however, relief ordered by the court
may be appropriately and safely stayed pending appeal, as in the case of orders
for the payment of money. In such
cases, the burden is on the appellant to move the court to "otherwise
order" a stay during the pendency of the appeal of all or part of the
relief ordered. The trial court is
invested by subdivision (a) with broad discretion to make such orders as are
required by the case. In addition,
subdivision (g) empowers the reviewing court to "make any order appropriate"
to preserve the status quo or to ensure the effectiveness of the judgment
subsequently to be entered.
7. RULE 84 of the Maine Rules of Civil
Procedure is amended to read as follows:
RULE 84. FORMS
The
forms contained in the Appendix of Forms are examples of forms that are
intended to indicate the simplicity and brevity of statement that the rules
contemplate. The Supreme Judicial Court, the Chief Justice of the Superior
Court, and the Chief Judge of the District Court may from time to time adopt
official forms for use in their respective courts.
Advisory Committee Note
The
amendment to Rule 84 eliminates the reference to an Appendix of Forms. That Appendix was eliminated from the
rules several years ago. Most
civil forms may be observed and printed from the Court's web site or obtained
from court clerk's offices.
8. These amendments shall take effect
April 2, 2007.
Such rules as thus
adopted and amended shall be recorded in the Maine Reporter.
Dated: February 27, 2007
/S/
LEIGH
I. SAUFLEY
Chief
Justice
/S/
ROBERT
W. CLIFFORD
Associate Justice
/S/
HOWARD
H. DANA, JR.
Associate Justice
/S/
DONALD
G. ALEXANDER
Associate Justice
/S/
SUSAN
CALKINS
Associate Justice
/S/
JON
D. LEVY
Associate Justice
/S/
WARREN
M. SILVER
Associate Justice