By Kyle Moen
The Minnesota Supreme Court adopted amendments to the Minnesota Rules of Civil Procedure (“MRCP”) and the General Rules of Practice for the District Courts (“General Rules”). These amendments apply to all actions or proceedings pending on or commenced on or after July 1, 2013. The rules changes are significant, and anyone seeking to avail themselves of Minnesota state courts should review the amendments before taking any action. The entire text of the revised rules can be found in the Order Adopting Amendments at: http://www.mncourts.gov/Documents/0/Public/Clerks_Office/Rule%20Amendments/2013-02-04%20Order%20Civ%20Proc%20&%20Gen%20Rls%20Amendments.pdf
There are several significant changes to the MRCP and the General Rules. The amendments that will likely have the greatest impact on litigation are:
Under MRCP Rule 5.04, any action that is not filed with the court within one year of commencement against a party will be considered dismissed with prejudice against any party. This is a critical change to our state court rules. Currently, Minnesota allows for hip-pocket service. That is, a lawsuit may be commenced and fully litigated (short of trial and assuming no motions requiring judicial involvement) without being filed in court. Parties may serve written discovery, take depositions, retain experts, and participate in alternative dispute resolution all without ever filing their lawsuit with the court. Now, unless the parties sign a stipulation extending the filing period, the action must be filed within one year of commencement or it is deemed dismissed with prejudice – meaning on the merits. The Court provided a small transition period for the implementation of MRCP Rule 5.04, stating that no action shall be involuntarily dismissed under this rule until one year after the effective date.
MRCP Rule 26 has been amended to emulate the Federal Rules of Civil Procedure. For those unfamiliar with federal court procedures, this rule change is significant. Most critically, parties will now be required to make automatic, initial disclosures to the other parties within 60 days after the answer is due, or 60 days after the service of the expert affidavit in medical malpractice cases. Additionally, the amended rules now require a discovery conference between the parties within 30 days from the initial due date of the answer and a written discovery plan must be filed with the court within 14 days of the discovery conference. These amendments are intended to provide for a more effective and efficient civil case process. However, they will also require parties to invest more time and resources at the beginning stages of litigation.
Under MRCP Rule 37, sanctions are now available for a party’s failure to make proper initial disclosures. If a party fails to provide information or identify a witness as required under Rule 26, the party is not allowed to use that information or witness, unless the court determines the failure was substantially justified or harmless. The court may also enter additional sanctions, such as taxing costs to the party who fails to make initial disclosures.
Under new Rule 104 of the Minnesota General Rules of Practice, an informational statement is no longer required. Instead, the parties will file a civil cover sheet at the outset of the case. This civil cover sheet must contain the name, postal address, e-mail address and telephone number of all counsel and unrepresented parties, along with a certificate of representation and parties. Scheduling information may now be submitted in the civil cover sheet. The party who files the action must also file a civil cover sheet at the time of filing. Any other party may file a supplemental cover sheet within 10 days of service of the filing party’s civil cover sheet to provide additional information about the case.
The General Rules also create a new method for bringing non-dispositive motions. Under new Rule 115.04(d), a party may proceed by expedited, informal motion via a telephone conference with the court. Some state district court judges already encourage parties to resolve non-dispositive disputes, such as discovery motions, through informal means. Now the rules provide an express mechanism for doing so. The moving party may invoke the informal resolution process by written notice to the court and to opposing counsel. The parties may file short letter submissions setting forth their respective positions; however, parties may not file affidavits or declarations. The court can either issue its ruling verbally at the conclusion of the hearing, or in writing. These informal motions will not be recorded or transcribed, so if a party wishes to preserve a record, it is required to proceed by formal motion.
Finally, new Rule 1 imposes a proportionality requirement on all civil cases. It is now the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues raised in the action. The factors that will be considered by the court in making its “proportionality assessment” include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation. It is unclear how parties or the courts will seek to enforce this provision. But one thing is certain – this rule change will not impact our common sense approach to advising clients on the litigation process.
TO FAMILY LAW CLIENTS: Most of these amendments do not apply to family law cases. If you have questions or concerns, please contact your attorney.