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
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
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
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
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
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
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
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