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Legal Updates

New Superior Court Rules Bring More Transparency To Civil Litigation

On November 1, 2018, the Massachusetts Superior Court adopted new rules for filing civil motions. The new rules are designed to encourage parties to resolve procedural disagreements on their own, thereby lessening the burden on the courts.

Among other things, counsel are now required to confer in advance of filing dispositive motions – e.g., motions to dismiss or for summary judgment – and engage the court only if the parties cannot, in good faith, find common ground. This represents a significant departure from prior civil practice.

Background

Massachusetts Superior Court civil motion practice is governed by Superior Court Rules 9A through 9E. The Legislature enacted these rules to streamline the manner in which litigants seek relief from the court. Prior to the promulgation of these rules, parties in Superior Court cases filed motions directly with the court, with oppositions to those motions likewise filed with the court within a specified time period thereafter, depending on the relief sought. (This remains standard practice in other Massachusetts courts and in federal court.)

Under Superior Court Rule 9A, the moving party sends its motion papers to opposing counsel directly, rather than the court, and then waits for a specified time period to receive an opposition. Once it receives the opposition, the moving party files both its original motion and the opposition with the court, in what is known as the “Rule 9A package.” The court therefore receives all the relevant documents in one filing, rather than over the course of multiple weeks.

Superior Court Rule 9C imposes a special requirement for motions arising out of discovery disputes. Where a party believes that the opposing party has failed to comply with discovery obligations – e.g., document production, or interrogatory answers – that party is obligated to confer with opposing counsel (in person or by telephone), in advance of serving a motion to compel discovery, and attempt in good faith to narrow the areas of disagreement. Motions that fail to include a “Rule 9C certification” are typically denied without prejudice.

Obligation To Confer In Advance Of Serving Dispositive Motions

The new Superior Court rules impose the same “meet and confer” requirement on parties seeking to dismiss a complaint at the outset of a lawsuit. Defendants often seek to dispose swiftly of newly initiated litigation if the plaintiff has failed to follow procedural requirements or has failed to plead facts sufficient to obtain the requested relief. Typically, defendants have moved to dismiss without prior notice to the plaintiff.

Now, however, prior to seeking dismissal, the moving party is required to confer with opposing counsel, identify the deficiencies in the plaintiff’s complaint, and allow the plaintiff an opportunity to “fix” those deficiencies, whether by amended pleading or otherwise. Theoretically, this change will save courts (and parties) potentially wasted time and resources, especially since courts often allow plaintiffs to remedy pleading defects in response to a motion to dismiss. Of course, some plaintiffs may balk at a defendant’s proposed procedural and/or substantive fixes, but the new requirement to confer exists nonetheless.

The same holds true for summary judgment motions. Prior to seeking summary judgment, the moving party must now alert opposing counsel that a summary judgment motion is forthcoming, and seek to avoid forcing the court to adjudicate issues that might be resolved by the parties themselves without court intervention. Again, this could lead to an agreed-to amendment of the pleadings or voluntary dismissal of certain claims.

These new rules may raise certain ethical dilemmas. In evaluating dispositive motions, courts will likely take notice of the steps taken by the moving party to avoid bringing the dispute before a judge. Obviously, counsel has a strict duty of loyalty to the party he or she represents. It thus seems counter-intuitive and problematic for a defendant’s attorney to be obligated to “help” the plaintiff’s counsel craft his or her pleadings in a manner that will enable them to survive a motion to dismiss or motion for summary judgment. A movant, however, runs a risk of the court looking unfavorably upon it if the court believes the movant is wasting its time with unnecessary motion practice.

Newly Added Defendants

The new Superior Court rules also change the way plaintiffs add new defendants to existing litigation. Previously, a plaintiff seeking to add a new defendant copied only the then-existing defendant(s) with its request. Existing defendants typically lodged no objection, as newly added defendants tend to expand potential liability to multiple parties.

Under the new rules, a plaintiff seeking to add a new defendant is required to notify that party in advance of seeking relief with the court, and allow the potentially newly added party the opportunity to respond.

It is unclear why the Superior Court implemented this change, as it provides newly added defendants with two opportunities to formally contest their involvement in the pending litigation – both upon the plaintiff’s initial request, and then again at the time the plaintiff serves the newly added defendant with the complaint (at which time it can seek dismissal). “Original” defendants, by contrast, are limited only to one opportunity to seek dismissal. It remains to be seen whether, in light of this change, courts will treat newly added defendants with more deference as to whether claims properly lie against them.

Other Procedural Changes

Other amendments to the Superior Court rules similarly attempt to assist courts in expeditiously adjudicating motions, especially summary judgment motions. In particular, the new rules impose page limitations on summary judgment fact statements, and prohibit opposing parties from advancing frivolous responses to undisputed facts. The new rules also address cross-motions, emergency motions, requests for filing reply briefs, certain formatting changes, and whether electronic service is permitted.

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If you have questions about these major changes to the procedural rules for Superior Court cases, please feel free to contact one our experienced litigators.