JUDICIAL BRANCH MEMORANDUM. Re: New Hampshire Superior Court Civil Rules Effective October 1, 2013

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1 JUDICIAL BRANCH MEMORANDUM To: Attorneys; Legal Assistants; Litigants From: Patricia A. Lenz, Superior Court Administrator Julie W. Howard, Strafford Superior Court Clerk Date: Updated December 16, 2013 Re: New Hampshire Superior Court Civil Rules Effective October 1, 2013 This memo is intended as a primer on the topic of the new Superior Court Civil Rules effective October 1, Bear in mind that this primer is furnished for guidance only and may not be relied upon as authority for proceeding in your case in a particular fashion. It is intended as foresight on potential issues that may arise as seen from the Clerks perspective. You are responsible for your own case and this primer should not be substituted for your own judgment and opinion as to how you should handle a particular issue. Feedback is welcome and may be added as issues are raised and decided. Please send your comments to plenz@courts.state.nh.us or jwhoward@courts.state.nh.us. Sections of this primer: 1. Basic Outline 2. Applicability; Exemptions 3. Filing Fee 4. Number of copies; Service 5. Non-conforming pleadings 6. Ex Partes; Attachments 7. Time Frames 8. Return of Service 9. Appearance 10. Answers and Motions to Dismiss 11. Counterclaim 12. Structuring the Case 13. Telephonic Structuring Conference 14. Defaults and Sanctions 15. Automatic Disclosures 16. Medical Endpoints 17. Structure of the Complaint and Answer 1

2 18. Discovery 19. FAQ 1. Basic Outline of Process (Clerk s office perspective): o Original Complaint filed in court with service copies (two per defendant) and fee o Court checks for accuracy; assigns docket number o Court prepares Summons; attaches to Complaint o Court returns Summons to Plaintiff o Plaintiff arranges with Sheriff of Defendant s county to serve defendant, or conducts other method of service o Sheriff completes return of service, sends return to Plaintiff o Plaintiff files return of service with court o Defendant files answer and appearance Defendant may file Motion to Dismiss and if denied, Answer is filed within 30 days of clerk s notice of decision. o Parties file jointly a stipulated structuring conference order o If parties can t agree to file jointly, parties each file a proposed structuring conference order. o If no structuring conference order is filed, court has the discretion to order a compliance hearing or a telephonic structuring conference. o Case proceeds through discovery process, mediation, non-trial disposition or trial. 2. Applicability; Exemptions a. Applicability The Superior Court Civil Rules govern the procedure in New Hampshire Superior Court in all suits of a civil nature whether considered cases at law or in equity with the exception of those actions subject to specific procedure established by statute. Under the Rules, there is one form of action to be known as a civil action. To initiate a civil action, including an action authorized by law to be initiated by writ or petition, the plaintiff files a Complaint, an Appearance (name, address, telephone number, Bar number) and the filing fee. See Super. Ct. R. 4. Only two petitions are referenced in the new civil rules. These are a Petition for Minor Settlement and a Petition for Waiver of Parental Notification for Abortion. All other actions are Complaints. The Complaint needs to be signed by the attorney of record, authorized non-attorney representative, or self-represented party. The Complaint only needs to be notarized if ex parte relief is requested. 2

3 b. Exemptions The Superior Court will be issuing an administrative order listing the case types that are exempt from the civil rules. That order will be posted on the court s website. 3. Filing Fee The total filing fee for a civil action is $250, plus an additional $10 ADR fee. If an ex parte attachment is filed, the fee is an additional $40. Please consult the New Hampshire Judicial Branch website at for a complete list of filing fees. Click on the Superior Court link under the blue header and look for a link in the drop down menu to the Superior Court filing fees. If the incorrect filing fee is submitted in an amount less than the total fee, the court will reject the filing. Please note that a Complaint that is rejected as the result of an incorrect filing fee is not considered filed for the purposes of the statute of limitations. If the incorrect filing fee is submitted in an amount greater than the total fee, the Court will accept the case, process it, and will issue a check for the overpayment. TIP: In case of a question as to the fee, best practice may be to submit the higher calculated amount rather than risk lag in processing. However, please note that the court does not return an overpayment of $5 or less. 4. Number of Copies; Service The procedure is to FILE FIRST THEN SERVE. Every pleading initiating a civil action must be filed with the court before service. The court will process your case and will add a Summons to your Complaint. Please note that under the new rules, the term Summons replaces the term Order of Notice. The Summons functions exactly as an Order of Notice did. The court will return the Summons packet to you. You will then have your Complaint served on the defendant in the usual fashion. The court will require an original Complaint and two copies for each defendant. The original will be placed in the court file and the copies will be attached to the Summons. All copies are returned to the Plaintiff with the Summons. Plaintiff gives the service copies to sheriff for service. Plaintiff may make its own copy for its file (the court will not make the extra copy). Sheriff leaves one with each defendant and returns one to Plaintiff with proof of service. 3

4 Plaintiff must file this second copy (Return of Service) with the Court. Proof of service shall be filed with the Court within 21 days of the courtordered deadline for service. See Super. Ct. R. 4. Service is made using applicable service laws as they presently exist. Nothing about actual service has changed. You still serve via sheriff, secretary of state, certified mail, or whatever is required by law for adequate service. TIP: Generally, if ex parte relief has been granted OR a very quick (likely temporary) hearing is set there will have to be in hand (only) service. TIP: If plaintiff wants other than typical service (in hand or abode), s/he must file a Motion for Alternative Service and obtain permission of the court. 5. Non-conforming pleadings Non-conforming pleadings will not be accepted for filing and will be rejected and returned to the filer as of October 1, Ex Partes; Attachments The procedure regarding attachments has not changed. Please make sure you use the correct attachment form, which can be found on the Court s website. The traditional attachment form (pre-pad) makes reference to a return day, which has been abolished under the new rules. If ex parte relief is requested, Plaintiff must make a representation that Plaintiff contacted the other side or why the other side was not contacted. See Super. Ct. R. 47; Rules and Procedures to Implement Attachment Law (RSA 511-A). If the judge grants the ex parte request, a preliminary hearing will be scheduled within 10 days. If an ex parte is granted, the time frame in which the defendant may be served will be shorter. Thus, you will need to take immediate action to get the paperwork to the sheriff. Service on ex parte orders and accompanying paperwork is in hand only. On a Motion to Attach with Notice, once the objection is received the court will schedule a hearing on the Motion. 7. Time Frames There is no Return Day under the new rules. The sheriff will have 45 days from the date the Summons is issued to serve the defendant. The service date is listed on the Summons. 4

5 The sheriff will make his/her return on the Summons and return them to the plaintiff. Plaintiff must file the Return of Service within 21 days after the court ordered deadline for service. The time clock for the defendant to file an answer or responsive pleading runs from the date of actual service. If you represent the plaintiff, note the service date so that you can calculate your deadlines. If you represent the defendant, be aware that service triggers the time clock for deadlines in the case. TIP: If your defendant client does not deliver the paperwork to you in time for you to file your answer and appearance within 30 days of the service date, you may wish to file a Motion to Extend the time to file your answer, appearance and counterclaim. 8. Return of Service The new civil rules state that proof of service shall be filed within 21 days of the court ordered deadline for service. The court ordered deadline for service appears on the Summons. See Super. Ct. R. 4. Thus, if the Return of Service is not filed within 21 days of the court ordered deadline for service, the rules state that the court shall dismiss the action with or without prejudice, as justice may require. If you cannot file the return of service within 21 days, the best practice is to file a motion for late entry of the return of service along with the return of service. Don't forget to seek the defendant's assent and copy him/her/it on your motion for late entry. 9. Appearance The Appearance is due when the Answer is due: 30 days from the date of actual service. As discussed in paragraph 10 Answers and Motions to Dismiss, litigants are no longer required to enter special appearances. See Super. Ct. R Answers and Motions to Dismiss The issue of the filing of an Answer and a possible waiver of personal jurisdiction is one that has been frequently raised by practitioners. Under the new rules, challenges to personal jurisdiction and/or sufficiency of process can be made by filing a Motion to Dismiss within 30 days after service. If the motion is denied and no appeal is filed, an Answer must be filed within 30 days of the clerk s final written notice of the Court s decision. A party does not waive the right to file a Motion to Dismiss by filing a Answer or other pleading or motion. The prior practice whereby the defendant s entry of an Appearance operated as a general denial of all allegations of the plaintiff s writ has been eliminated. 5

6 11. Counterclaim If a Counterclaim is filed with an Answer, it must be answered within the same time frame as was given to defendant to answer: 30 days. Don t forget to include the filing fee for a counterclaim! Don't risk your pleading being rejected! 12. Structuring the Case Once the Answer is filed, new deadlines arise. Parties have 20 days from the Answer date to meet and confer to structure the case. See Super. Ct. R. 5. The rule does not further explain the term Answer date. The court will count the 20 days from the filing date of the Answer, not the date on the Answer. If parties choose to use the date on the Answer, they are still within the 20 day deadline set by the court and the rule. A written stipulation structuring the case must be filed with the court within those 20 days. For requirements for the stipulation, see Super. Ct. R. 5(a). Summary statements are no longer required. If the court does not receive the Structuring Agreement on the 21st day after the Answer is filed, or if the court rejects the stipulation, the rules state that the court will schedule a Telephonic Structuring Conference. See Super. Ct. R. 5(b). Please note that some courts may opt to schedule a compliance hearings at the court instead of a telephonic structuring conference, if the structuring agreement is not filed. At the compliance hearing, counsel will be required to explain to the judge why a stipulation has not been filed. Partial Agreement: If you are conferring on a case in an attempt to reach agreement and can t agree on all issues, the rule states that the Court will schedule a telephonic hearing with the judge. It is suggested that each side submit a Proposed Structuring Order along with a Motion for Telephonic Conference. Chances are that the Court will be grateful for at least the partial agreement and the limited scope of the telephonic issues. The Court will then schedule a telephonic hearing on the limited issue. TIP: Once the court has scheduled the telephonic Structuring Conference, the Court will cancel the telephonic hearing if a joint proposed structuring conference order is filed by the parties prior to the hearing. A motion to cancel the telephonic hearing is not required. 6

7 13. Telephonic Structuring Conference If the Court does have to schedule a structuring conference, the rules require the Court to schedule all Structuring Conferences as telephonic hearings, even those with selfrepresented parties. See Super. Ct. R. 5(c). The Court will initiate the conference call to the parties. The hearing notice will contain a toll-free phone number and a conference room number to get into the conference call. The conference call vendor currently is Hi-Def Corporate Conferencing. The number is: (866) The conference room number for the court will be in your hearing notice. At the designated time for the hearing, dial the conference call number. You will hear Welcome to Hi-Def Corporate Conferencing. Please enter your conference room number followed by the pound sign. The conference room number can be found on your hearing notice. You will be connected to your hearing when the judge is ready. The Court will be the moderator of the conference. 14. Defaults and Sanctions Errors in filing are going to be handled by the Court issuing some kind of default. 1. If no Answer or Appearance is filed within 30 days after act of service = default 2. If Appearance filed but no Answer = default 3. If no Appearance but Answer is filed within 30 days = conditional default Conditional defaults are typically responded to with a Motion to Strike from the defaulted party with a curative response. 16. Automatic Disclosures Please do not file your discovery disclosures with the Court. They will be returned to you. 17. Medical Endpoints The rules are designed to reduce cost of litigation by getting the facts out early; reducing the time necessary to get more information, and thus the expense; using fewer tools in discovery (interrogatories and depositions); get the case to trial or otherwise adjudicated quickly rather than have discovery games and costs. That said, if you need to file your case even if your client is not at a medical endpoint, it is recommended that you file with the Court. The Court will entertain motions to extend the trial date. As you obtain more information regarding the medical condition or degree of permanency, you supplement discovery to the other side. 18. Structure of the Complaint and Answer 7

8 a. The Complaint should be detailed, and paragraph by paragraph describe: i. Who the parties are ii. What the relationship is to one another iii. What happened (what the defendant allegedly did) iv. What duty was owed to the plaintiff v. What the breach of that duty was vi. What are the damages suffered b. The Answer must be equally responsive: i. Paragraph by paragraph, as to what the plaintiff has alleged, you: ii. Admit it iii. Deny it iv. Don t have enough information to determine whether to admit or deny v. Explain your side of what happened 19. Discovery If you want to use something at trial, you must disclose it. Discovery is similar to open file discovery practiced in criminal cases. See Super. Ct. R Witnesses You must tell the identity of people you will use to prove your case and provide a summary of what they will say if there is no statement. Documents You must produce copies of the documents, not simply describe them. Damages Use a rule of reason compute within your ability to make a computation. Insurance Coverage Must be automatically disclosed. Multiple Parties Barring some requested relief from the Court at the outset of the case, each defendant will have its own set of deadlines, beginning from the service date. You may wish to ask that the Court structure the deadlines in a more consistent way. If you have multiple parties, you may wish to seek relief from the Court to expand the limitations on hours of deposition and numbers of interrogatories. Timing of Disclosures 1. Plaintiff 30 days after defendant's answer filed 2. Defendant 60 days after defendant's answer filed Supplementing Discovery 8

9 You have a duty to supplement promptly. Sanctions are available if you do not comply with promptly. Sanctions are likely to be something on the order of being prevented from using in your case. Limitations 1. Interrogatories 25 (Super. Ct. R. 23) 2. Depositions: total combined time 20 hours unless party stipulate or court allows (Super. Ct. R. 26) Electronically Stored Information (ESI) (Super. Ct. R. 25) Parties are obligated to preserve ESI once they are aware of its potential relevance. Counsel must notify the client to put a "litigation hold" on potentially relevant electronic information. ESI must be produced in a reasonably useable form. You may request the form that you want the information in. ESI does not need not be produced in more than one format. Depending on how large your request is, the cost may shift from them to you. Inadvertent disclosures are subject to "claw back provision." 20. Frequently Asked Questions Q: The Probate Court follows the Superior Court rules when there is a suit against an estate. Does the advent of the new civil rules mean that the Probate Rules change also? Or is a Writ of Summons still used in Probate? A: The Supreme Court civil rules apply to suits brought in Superior Court. The Probate Court procedure will remain as it was until further order of the Supreme Court. Q: Many statutes still refer to a return day. Are return days still applicable? A: The new rules do not provide for a return day. The rules may be amended to include a provision stating that in all cases that include a statutory reference to a return day, the Answer and Appearance deadline shall be considered the return day. Q: I was unable to have my Summons served within the appropriate time frame. What should I do? A: You need to return the unserved Summons to the Court with a cover letter explaining that you need a new Summons. The court will reissue the Summons with new deadlines. Please note that there is a fee of $25 for reissued Summons. Q: What should I do if I know ahead of time that I need extra time to serve a defendant? A: You should file a Motion to Extend Time for Service along with your Complaint. Obviously, you will not be able to obtain the assent of the other side, 9

10 so the Court understands that you are filing such a motion without benefit of the other side's position. The staff will obtain permission of the Court in advance and issue the appropriate Summons. Of course you should suggest in your motion the amount of time that you need. The staff will use the time frame you provide. Please note the difference between attempting to serve the Summons and not having enough time versus knowing in advance that you will need extra time. The latter would require a motion for extension of time. Q: I am concerned about filing an Answer if I also plan to file a Motion to Dismiss given the case law in New Hampshire about personal jurisdiction. What should I do? A: The new rules provide for the filing of a Motion to Dismiss, followed by the filing of an Answer, if the Motion to Dismiss is denied. The Answer is due 30 days from the date of the clerk s notice of decision on the Motion to Dismiss. Q: Do I need to file a Summary Statement? A: Summary Statements are no longer required under the rules. Q: I used to file Petitions for Declaratory Judgment and Petitions to Enjoin Foreclosure. Under the new rules, am I now to file a Complaint for Declaratory Judgment and a Complaint to Enjoin Foreclosure? A. Yes. There are only two references to petitions in the new rules. Those are a Petition for Minor Settlement and a Petition for Waiver of Parental Notification for Abortion. Q: Rule 4(b) requires that the plaintiff file an appearance in addition to a complaint. How is the Court going to handle a situation where a complaint is filed, but an appearance is not filed? A. The Superior Court will be issuing an administrative order stating that if the required information (name, address, telephone number and Bar number) are included on the complaint, the filing of an appearance form is not necessary. 10