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Fixing Holes Where the Rain Gets In: Seven Recent Arizona Civil Rule Amendments Dissected

Identifying the specific problems sought to be remedied by seven sets of amendments

The Record Reporter asked me to summarize the significant 2014 Arizona civil rule amendments in 1,000 words, and I failed. What follows are 1,330 words identifying the specific problems sought to be remedied by seven sets of amendments and (hopefully simplified) explanations of how these amendments are intended to operate. Because of the word limit, everything that follows is written in a dry, humorless and efficient style. I apologize in advance, but trust you will appreciate my sacrifice of style for the sake of substantive content. Also — and this is important — please read the new rules for yourself. This piece is a summary and, necessarily, a poor substitute.

1. Rule 15(a)(1), Ariz. R. Civ. P.

Problem addressed: The Rule’s current wording is ambiguous as to whether a party may amend its pleading before service.

Adoption of the language of federal Rule 15(a)(1) in 2011 infected the Arizona Rule with an ambiguity the federal courts now face. Federal Rule 15(a)(1) provides that amendments as a matter of course may be had "within" certain numbers of days after service. Read strictly, this means that one cannot amend a pleading until after it is served – when prejudice is most likely to have been realized.

Solution: This amendment cures the ambiguity and renders explicit the historic right had by Arizona litigants to amend their pleadings as a matter of course at any time leading up to the specified dates, including during the pre-service period, by clarifying that amendment may be had "no later than" (as opposed to "within") certain numbers of days following service.

2. Rules 7.1(f) and 56(c)(4), Ariz. R. Civ. P.

Problem addressed: The introduction of satellite motion practice, within the larger context of an independent, underlying motion, concerning whether something should be stricken. In reality, motions to strike are usefully interposed in these situations only to make and preserve evidentiary objections, which should not delay and expand resolution of the underlying motion.

Solution: These amendments generally prohibit the filing of motions to strike, specify procedures to be followed in order to object to evidence offered during motion practice, and delineate procedures for permitted motions to strike.

Motions to strike are not prohibited unless otherwise specifically permitted by statute or rule, or seeks to strike a part of a filing unauthorized by rule, statute or order. If the latter, the motion is limited to two pages and must be filed within five days of service of the offending filing, the response is limited to two pages, and no replies are allowed.

Objections to evidence offered during motion practice are made in response and reply briefs, and not separate filings. If the evidence is first offered in a reply, a separate objection limited to three pages must be filed within five days of service of the reply, and no response or reply is permitted without court order.

Under Rule 56(c)(4), objections to evidence offered during summary judgment practice are governed by Rule 7.1(g), although concise objections may be stated in a response to another party’s statement of facts.

3. Rule 7.1(g), Ariz. R. Civ. P.

Problem addressed: County by county, and even judge by judge, the protocol for obtaining a briefing schedule extension varied from informal phone calls to formal stipulations/motions and orders. Also, litigants often neglected to inform courts of extensions, wasting judicial resources on rulings later vacated by stipulated orders.

Solution: This amendment creates a new Rule providing a unified and clarified procedure for seeking briefing schedule extensions.

Extensions are obtained through notice to the court, and without need for an order, unless: (1) the extension places the deadline less than five days before a scheduled hearing, or beyond a deadline established by scheduling order, or (2) the deadline has already passed.

The court retains the ability to reject any agreement.

4. ARCAP, Rule 9.1

Problem addressed: Once an appeal is taken, a trial court is divested of jurisdiction such that it lacks the ability to take otherwise required action that might impact the appeal (e.g. rule on a Rule 60 motion or motion for new trial).

Solution: This new Rule codifies existing decisional authority permitting suspension of an appeal by the Court of Appeals, and revestment of jurisdiction in the Superior Court to allow it to take some specified action. Note, however, that the filing of a stipulation or motion under this Rule does not extend any deadline in either court.

5. ARCAP, Rules 13, 21 and 23

Problem addressed: Traps for the unwary exist with respect to preserving the right to seek fees incurred on appeal by making a proper claim to fees with a citation to the substantive basis for the award.

Solution: Road signs have been placed at intuitive places in ARCAP to alert litigants of the need to cite a substantive basis for a fee award in their brief or by motion.

Also, as an equitable cushion against manifestly unjust results, the Court of Appeals may treat a request for fees made in the trial court as satisfying the notice requirements, provided no prejudice to an opposing party would result.

6. Rules 54(c) and 58(a), Ariz. R. Civ. P., and ARCAP, Rule 9

Problem addressed: Undue uncertainty and complexity persists with respect to the question of whether any given judgment is final and appealable, leading to dismissal of prematurely-taken appeals.

Solution: These amendments provide greater certainty as to whether a final, appealable judgment has been entered, and affords relief under certain circumstances for prematurely-taken appeals.

If a judgment is intended to be final, the court must certify that it disposes of all claims as to all parties pursuant to new Rule 54(c), the counterpoint to Rule 54(b).

With respect to premature appeals, a notice of appeal filed after announcement of a judgment or order but before entry of the judgment or order is treated as if filed on the date of and after entry of the judgment or order.

If a notice is filed before filing of a motion which tolls the time for appeal, the appellant notifies the court, and the appeal is suspended until notice of decision of the last motion.

7. Rules 16, 38.1, etc., etc., etc., Ariz. R. Civ. P.

Problem addressed: Rule 38.1’s motion to set and certificate of readiness and Inactive Calendar/Active Calendar method of case management and trial setting is outdated, ineffective, and largely ignored.

Solution: These amendments fundamentally alter the means by which civil cases are managed and set for trial. Motions to set and certificates of readiness are eliminated, with cases now managed and trials set through scheduling orders issued under Rule 16.

Within certain timeframes early in the life of a case, parties must meet and confer regarding specified subject matter, and submit one of three alternative sets of Joint Reports and Proposed Scheduling Orders found in Rule 84’s forms. Either with or without hearing, the court enters a scheduling order containing deadlines for major case events and culminating in either a trial date or trial-setting conference.

The Active Calendar/Inactive Calendar is abolished, replaced by a Dismissal Calendar. Placement on the Dismissal Calendar occurs 270 days after case commencement and results in dismissal unless at some time prior to expiration of 60 days on the Calendar, a continuance is obtained or a Joint Report and Proposed Scheduling Order are filed with the Court. If a Joint Report and Proposed Scheduling Order are filed earlier, the case will never be placed on the Dismissal Calendar.

Applicability. These amendments apply to all cases filed on or after April 5, 2014, and many cases pending before then. As the questions of how and when these rules will apply to pre-April 15, 2014 cases defies adequate explanation in an article of this length, the Supreme Court’s November 27 Amended Order Regarding Applicability Provision should be read. The Order is simple and clear, and readily available at the Supreme Court’s website.