Civil


 RULE  AFFECTS  SUMMARY AND IMPACT

Rule 68(h)
Rule 74(g)

R-10-0030

AOC Contact: Mark Meltzer

 

Superior Court

Judges
Clerks
Administrators

Summary: This petition sought to clarify that offers of judgment under Rule 68 can be made in arbitration proceedings under Rules 72-77, and the procedures for doing so.  The existing rules were ambiguous in this regard.  One source of ambiguity was a reference in existing Rule 68 only to “trials,” without mentioning arbitration hearings.  The existing rule also had an anomalous time sequence for arbitrations.

As a result of these rule changes:

  1. Rule 74(g) expressly authorizes the use of Rule 68 offers of judgment in arbitration proceedings.
  2. Under Rule 68(a), in cases subject to arbitration, no offer of judgment may be made during the period beginning 25 days before the arbitration hearing and ending upon the date of the filing of any notice of appeal of an award pursuant to Rule 77(a). Although an offer is generally effective for 30 days after it is served, Rule 68(h) now provides that in a case subject to arbitration, an offer that has not previously expired shall expire at 5:00 p.m. on the fifth day before the arbitration hearing.
  3. Under Rule 68(g), the determination whether a sanction should be imposed after an arbitration hearing shall be made by reference to the judgment ultimately entered, whether on the award itself pursuant to Rule 76(c) or after an appeal of the award pursuant to Rule 77.

Impact: Judicial officers have the authority to award Rule 68 sanctions in cases that have gone through arbitration.

Rule 55(a)(1)


R-10-0034

AOC Contact: Mark Meltzer

 Superior Court
Justice Court

Judges
Clerks		 Summary:  The current wording of Rule 55(a)(1) may have conveyed a mistaken impression that only certain parties must be served with applications for entry of default, and therefore practitioners may not have served all parties to an action with a copy of those applications.

This has now been clarified with an additional provision in Rule 55(a)(1) that states:  “Nothing in this Rule relieves a party requesting entry of default from the requirements of Rule 5(a) as to service on other parties.”

Impact: Applications for entry of default should include a certificate showing service not only on the party for whom default is sought, but also showing service on the other parties to the case.

Rule 8(h)(3)
Rule 8(i)
Rule 16.3
Rule 39.1
Rule 84, Form 10

R-10-0036

AOC Contact: Mark Meltzer

 Superior Court

Judges
Clerks
Administrators		 Summary: Rules 8(h)(3), 8(i), 16.3, and 39.1 were adopted by Supreme Court Administrative Order number 2002-107.  These rules were intended to provide procedures for cases that were admitted into a complex civil litigation pilot program established by that administrative order.   R-10-0036 has now adopted these rules on a permanent basis.  Although the substance of the rules remains the same, a variety of formatting changes were made.  The most significant of these changes was removing the form for certifying complexity from the body of Rule 8(i), and relocating it as a new Form 10 in Rule 84.

Impact:
Clerks:  Pursuant to Rule 8(h), in those counties in which a complex civil litigation program has been established, in addition to the civil cover sheet required by that rule, the caption shall also identify the action as complex, if the action meets the criteria listed in Rule 8(i). In those courts with an established complex civil litigation program, clerks should continue to anticipate the filing of a “certification of complexity/joint certification of complexity/contravening certification.”

Judges:   Judges with complex civil cases may continue to utilize the procedures for identifying and designating complex cases under Rule 8(i), for managing complex cases under Rule 16.3, and for the trial of complex cases under Rule 39.1.
Rule 77

R-11-0008

AOC Contact: Mark Meltzer		 Superior Court

Judges
Clerks
Administrators		 Summary:  Rule 77(d), provided that when a notice of appeal from an arbitration award was filed, “all rights to change of judge are renewed and no event prior thereto shall constitute a waiver.”  Under Rule 74(c), certain motions that are filed after a case is assigned to an arbitrator, such as a motion to dismiss, a motion for summary judgment, or a motion to continue on the inactive calendar, are heard by the assigned judge rather than by the arbitrator.  A party could therefore have one of these contested motions heard before the trial judge, and then on appeal from the arbitration, still have an intact right to a change of that judge under Rule 77(d).  This circumstance is contrary to Rule 42(D)(ii), which provides that a judge’s ruling on a contested issue operates as a waiver of the right to a change of judge.

Rule 77(d) has therefore been stricken.

Impact: Clerks and judges should be alert in arbitration appeals for a Rule 42 notice of change of judge, when the judge has previously heard under Rule 74(c) a contested issue in the course of that arbitration proceeding.  In these circumstances, there is no longer a right to a change of judge.
Rule 13(f)
Rule 15(a)(1)

R-11-0010

AOC Contact: Mark Meltzer		 Superior Court
Justice Court

Judges
Clerks
Administrators		 Summary:  Rule 13(f), entitled “omitted counterclaim,” has been abrogated.  “Omitted counterclaims” will now be governed by Rule 15 as are other amended pleadings.  This practice will be consistent with the practice under the 2009 revisions to the federal rules.

With the current revisions to Arizona Rule 15(a)(1) adopted by this rule petition, amendments to pleadings may be filed as a matter of course:
  • If the pleading is one to which no responsive pleading is permitted:  no later than 21 days after serving the pleading;
  • If the pleading is one to which a responsive pleading is permitted:  no later than 21 days after service of the responsive pleading; or if a motion under Rule 12(b), (e), or (f) is filed, on or before the date that a response to the motion is due, whichever is earlier.
Amendment as a matter of course after service of a motion under Rule 12(b), (e), or (f) does not, by itself, moot the motion as to the adequacy of the allegations of the pleading as revised in the amended pleading, and does not relieve a party opposing the motion from filing a timely response to the motion.

Impact: No impact is anticipated.  However, and as noted above, the court should be aware that when a motion is filed under Rule 12(b) [a motion to dismiss], (e) [a motion for a more definite statement], or (f) [a motion to strike], the filing of a revised pleading intended to cure the defects raised by the motion does not relieve the party opposing the motion of the duty to file a timely response to the motion.