How the Proposed Changes to the Montana Rules of Civil Procedure Should Change You

1. How the Proposed Changes to the Montana Rules of Civil Procedure Should Change You Cynthia Ford, Professor and Briana Schwandt, Student University of Montana School of Law

2. M.R.Civ.P. Research Route Read the rule, then • Montana Commission/Committee Comment • Montana Supreme Court cases • Compare to Federal Rule • Only if they are similar: • Federal Commission Comments • Federal Treatise • Federal Cases

3. Outline of Practices to Change • Serve Summons and Complaint together: 4d1 • Disabilityof Judges • DEADLINES • Time to serve process after filing original complaintstill 3 years: Rule 4t • Time to substitute real for fictitious defendantstill 3 years: Rule 4t • Number of days to respond to service of process by mail: now 21, not 20: Rule 4d3C

4. Outline of changes, cont’d • A.G. gets 60, not 20 to intervene in cases challenging the constitutionality of a state statute: Rule 5.1(b) • Privacy requirements now in M.R.Civ.P. 5.2, consistent with the Supreme Court’s Rules for Privacy and Public Access to Court Records http://courts.mt.gov/crt_records/default.mcpx and similar to F.R.Civ.P. 5.2

5. Outline of Changes cont’d • Corporate parties required to file disclosure identifying any corporation owning 10% or more of its stock, or stating there is none: Rule 7.1 • Rule 11 significantly changed to conform to federal version • Danger here: no more “empty” Rule 12b6 motions to dismiss to gain more time?! • Rule 12b response deadlines changed from 20 to 21 days (for State, 42); pleadings after court rules on Rule 12 motion due within 14 days

6. Outline of Changes, cont’d • Defense of improper venue now treated like other Rule 12b defenses: may raise by motion or in answer, but will be waived if not made in the earlier. No longer required to make a motion to assert this defense. • New procedure for claiming privilege or work-product protection in discovery responses: Rule 26b7A • New procedure for mistakenly produced privileged or protected material: Rule 26B7B

7. Outline of Changes, cont’d • New clarification of interstate depositions and discovery, Rule 28c, drawn from the Uniform Interstate Depositions and Discovery Act

8. Proposed Rule 4(d)(1) • In General. The summons and complaint must be served together. The plaintiff must furnish the necessary copies to the person who makes service. How to comply: serve summons and complaint together 

9. Present Rule 4D(1)(b)(i) . . . If no acknowledgment of service under this subdivision of this rule is received by the sender within20 days after the date of mailing the summons and complaint, service of such summons and complaint shall be made by one of the persons mentioned in Rule 4D(1)(a) in the manner prescribed by Rule 4D(2) and Rule 4D(3).

10. Proposed Rule 4(d)(3)(C) . . . If no acknowledgment of service by mail is received by the sender within 21 days after the date of mailing, service of the summons and complaint must be made in person. How to comply: change your acknowledgment of service form to reflect that defendant has 21 days; change your calendar system to 21 days before you can arrange personal service Use Form 18-A of the Official Forms

11. Present Rule 4E (1) A plaintiff shall have 3 years after filing a complaint to have a summons issued and accomplish service. (2) A plaintiff who names a fictitious defendant in the complaint, pursuant to 25-5-103, MCA, may amend the complaint to substitute a real defendant for the fictitious defendant within 3 years of filing the original complaint in the action. The 3 year time period set forth in subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified defendant, from the date of the filing of the original complaint.

12. Proposed Rule 4(t) (1) a plaintiff must accomplish service within two yearsafter filing a complaint. Absent an appearance by defendant(s), the court, upon motion or its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so. NOTE: MSC APPARENTLY REJECTED, STILL 3 (2) a plaintiff who names a fictitious defendant in the complaint pursuant to 25-5-103, MCA, may, within two years of filing the original complaint, amend the complaint to substitute a real defendant for the fictitious defendant. The two year time period set forth in Rule (t)(1) begins to run as to the newly identified defendant from the date of the filing of the original complaint. DITTO: STILL 3

13. Comments about 4t • Still different from federal version, F.R.Civ.P. 4m, which provides that a complaint will be dismissed if not served within 120 days. Federal dismissal is without prejudice, may be made by motion or suasponte. Plaintiff may get extension “for good cause shown.” • Montana dismissal also without prejudice, but DANGER if sol runs in meantime

14. New 5b2E/F • “A paper is served under this rule by: • …(E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or • (F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the party of agency designated to make delivery.”

15. Committee Note • “Rule 5b2E has been added to conform to the Federal Rules…in recognition of the practice of service by admission.”

16. How to use Rule 5b2E,F to accomplish electronic service • Must obtain consent in writing from target • Writing means hard copy • Draft, file stipulation that service may be by electronic means, designate the email address • Change certificate of service to show that service was made “pursuant to prior consent in writing, filed with this court, electronically by email to the following address: …..”

17. Proposed Rule 5(d)(1) (d) Filing. (1) Required Filings; Certificate of Service. Any paper after the complaint that is required to be served – together with a certificate of service – must be filed within a reasonable time after service. But the following discovery requests and responses must not be filed until they are used in the proceeding, ordered by the court in the Rule 16 conference, or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admission, expert disclosure reports, and interrogatory answers.

18. Effect of 5d1: • Don’t routinely file • Depositions • Interrogatories or answers • Requests for production or responses • Requests for admissions or responses • Expert reports Do file deposition notices

19. Present Rule 5(e) (e) Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Papers may be filed by facsimile or other electronic means, provided the original document must be filed with the clerk within five business days of the receipt of the facsimile copy or the filing will be treated as void.

20. Proposed Rule 5(d)(3)(A) (3) Electronic Filing, Signing, or Verification. (A) A court may, by local rule, allow papers to be filed, signed or verified by electronic means (other than facsimile) that are consistent with any technical standards established by the court or local rule. A paper filed by electronic means in compliance with a local rule is a written paper for purposes of these rules.

21. Proposed 5(d)(3)(B) • “Papers may be filed by facsimile provided the original document is filed with the clerk within 5 business days of the receipt of the facsimile copy or the filing will be treated as void” Proposed Rule 5d3 divides facsimile (allowed then and now) from other electronic filing (not allowed yet)

22. Committee Note re: Electronic Filing • “Rule 5d3A, which allows for electronic filing other than by facsimile, is purely anticipatory. It follows the Federal Rules, but it is the Committee’s intent that this Rule not become operative until further order of the Montana Supreme Court allowing electronic filing (other than by facsimile) either on a state-wide district court basis or in selected districts as experiments.”

23. Present Rule 24(d) (d) Cases involving constitutional questions where the state is not a party. When the constitutionality of any act of the Montana legislature is drawn in question in any action, suit or proceeding to which neither the state nor any agency or any officer or employee thereof, as such officer or employee, is a party, the party raising the constitutionality of the act shall notify the Montana attorney general and the court of the constitutional issue…. The attorney general may within 20 days thereafter intervene as provided in Rule 24(c) on behalf of the state.

24. Proposed Rule 5.1 Constitutional Challenge to a Statute - Notice and Intervention. (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, and to?? serve the notice and paper on the state Attorney General either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the state unconstitutional. (c) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

25. Effect of new 5.1 • Changes time for A.G. to intervene from 20 to 60 days, more realistic • ADDS new subsection, (c): “Failure to file and serve the notice…does not forfeit a constitutional claim or defense that is otherwise timely asserted.” Same as F.R.Civ.P. • No corollary to F.R.Civ.P. 5.1“(b) Certification by the Court.The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.”

26. Proposed Rule 5.2Privacy Protection for Filings Made with the Court (a) Redacted Filings. (1) Unless the court orders or the law requires otherwise, in any filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing must include only: (A) the last four digits of the social- security number and taxpayer-identification number; (B) the year of the individual's birth; (C) the minor's initials; and (D) the last four digits of the financial account number . . . .

27. Summary of Privacy • Privacy requirements now in M.R.Civ.P. 5.2, consistent with the Supreme Court’s Rules for Privacy and Public Access to Court Records http://courts.mt.gov/crt_records/default.mcpx • and similar to F.R.Civ.P. 5.2 • See also M.R.App.P. 10(7), 13(2)

28. Rule 6: DEADLINE COMPUTATION!! • Big changes here: read new version over and over • Revise your calendaring system!! • If need extension, make motion before the deadline • If move for extension after deadline, must show “excusable neglect” AARGH

29. Most 10 day deadlines expanded to 14 • Committee Note: “Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method - two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period - the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty day and longer periods, however, were generally retained without change.”

30. Calculating the deadline: 6a • Applies whenever a deadline set in number of days or hours, but date not specified • If court sets date (brief due on Feb. 7), court’s date controls and Rule 6a does not apply • 6a does not count the day which starts the event, but does count every day in between, including weekends and holidays. True whether more or less than 11 days • Brief due in 15 days: don’t count Feb. 4, but do count last day: Get brief in by Feb. 19, but last day is weekend, so can file on Monday the 21st, but it is a holiday, so ok Tues 2/22 • Also true if court says brief due in 5 days: don’t count Feb. 4, but do count last: get in by Feb. 9 • Most deadlines in Rules are in multiples of 7 days

31. Motion deadlines: Rule 6c • 14 days before the hearing, must serve written motion and notice of hearing AND must serve supporting affidavits, if any, WITH the motion • 7 days before the hearing: opposing affidavit must be served

32. Present Rule 6 (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

33. Proposed Rule 6 (a) Computing Time. The following rules apply in computing any time period specified in these rules, or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday (2) Period Stated in Hours.When the period is stated in hours: . . . .

34. When No Extensions allowed Per Rule 6b2 for • 50b and d (post-trial motions for judgment as a matter of law/new trial) • 52b (motion to amend findings of fact) • 59b, d, e (motions for new trial, to alter/amend judgment) • 60 b (motion for relief from final judgment)

35. No current Rule Similar . . . . . . To proposed Rule 7.1, which is regarding disclosure statements by corporations Committee Note says: “Rule 7.1 wholly adopts the relevant language of the F.R.Civ.P [7.1

36. Proposed Rule 7.1 (a) Who Must File; Contents. A nongovernmental corporate party must file 2 copies of a disclosure statement that: (1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation. (b) Time to File; Supplemental Filing. A party must: (1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information changes.

37. MRCivPv. FRCivP 11 • Montana and federal rules same until 1983 • Big federal amendment to insert “teeth” in 1983 • Montana followed suit • Several federal amendments 1993-2007 • Montana still has 1993 version, proposed amendment now follows current F.R.Civ.P.

38. West Headnote of Day 2/2/11 • 170A Federal Civil Procedure • 170AXX(C) Persons Liable for or Entitled to Sanctions • In General. Rule 11's admonition that every lawyer do necessary work to find law before filing brief applies even to lawyers who have two varsity letters in a collision sport and who were presidents of their fraternities. 
Chambers v. Am. Trans Air, Inc., 17 F.3d 998 (7th Cir. 1994)



39. Present Rule 11 Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

40. Proposed Rule 11 • Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name -- or by a party personally if the party is unrepresented. The paper must state the signer's address and telephone number, if any. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention. (b)(2) Representations to the Court…the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous[was good faith] argument (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence, or if specifically so identified, are reasonably based on belief or lack of information. . . .

41. Effect of Signing per new Rule 11 • Must include attorney’s phone number on all papers • Must specifically identify factual contentions and denials which do NOT have evidentiary support; by including, signer certifies that the contentions are “likely to have support after a reasonable opportunity for further investigation or discovery” and that the identified denials are reasonably based on belief or lack of information • Legal contentions are warranted by existing law or “nonfrivolous” [v. “good faith” argument]

42. ENORMOUS RULE 11 CHANGE, UNSTATED • Montana practice has traditionally allowed a defendant to file an unsupported Rule 12b6 motion to gain more time to answer than the 20 days technically allowed by Rule 12a • Montana Commission Comment to current Rule 11 specifically exempted Rule 12b6 motions • Proposed Rule/Comments make no exception!

43. ADVISORY COMMITTEE'S NOTE TO OCTOBER 9, 1984, AMENDMENT • ... It has been the practice for many years in both Montana Federal and State Courts for the pleader to first file a responsive motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b) for the purposes of obtaining additional time within which to prepare an answer and to inform the court and parties that an appearance is being made. The courts have recognized this practice and routinely overrule the motions unless briefs are filed in support or the motions are set for oral argument. It is not the intent of the Advisory Commission in adopting the foregoing amendment to do away with this practice.

44. Proposed Rule 11: Notice/Safe Harbor • (c)(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 1l(b).The motion must be served under Rule 5, but must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

45. Sanctions Changed: Less Bite? • Now permissive, were mandatory “If…the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction… If imposed, sanctions not necessarily monetary: may include nonmonetary directives; a penalty paid to court; OR to opponent for part or all of the fees and expenses caused by the violation

46. How to Comply with New Rule 11 Substantively • Do an inquiry which is reasonable under the circumstances before filing any paper • Identify any factual contentions or denials which are NOT supported by the inquiry • Do NOT file an unsupported Rule 12b6 motion to dismiss simply to gain more time to answer: your signature certifies, inter alia, that the paper is “not being presented for any improper purpose, such as …to cause unnecessary delay…”

47. How to comply with Rule 11 procedurally • If move for sanctions, must • Make separate motion, describing the specific violation • Serve motion on opponent • Wait 21 days before file motion; target is allowed to withdraw or correct in interim • Prepare detailed proposed order describing the sanctioned conduct and basis for the sanction (11c6)

48. Rule 12(a): timing changed • Old rule: 20 days to file answer to complaint or cross-claim, reply to counterclaim (40 for state) • New rule: 21 days for answer to complaint, counterclaim or crossclaim (42 for state) • Old rule: If defendant made Rule 12 motion to dismiss, denied, answer due in 20 days • New rule: If Rule 12 motion to dismiss is made and denied, answer must be filed within 14 days.

49. Proposed Rule 12(a) (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows: (A) a defendant must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise under Rule 4(a)(2)(c). (B) a party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) a party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2) State of Montana and Its Agencies, Officers, or Employees Sued in an Official Capacity. The State of Montana, a state agency, or a state officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the attorney general. (3)State Officers or Employees Sued in an Individual Capacity. A state officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the officer or employee or service on the attorney general, whichever is later.

50. Proposed Rule 12(b)(3) (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; . . .