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Order Promulgating Amendments to Gen. Rules, CX-89-1863

Supreme Court of Minnesota
Nov 30, 2005
No. CX-89-1863 (Minn. Nov. 30, 2005)

Opinion

No. CX-89-1863.

Filed: November 30, 2005.

Appeal from the Minnesota Court of Appeals.


The Supreme Court Advisory Committee on the General Rules of Practice for the District Courts has recommended certain amendments to the General Rules of Practice.

The Court solicited comments on the proposed amendments.

The Court has reviewed the proposals and is advised in the premises.

IT IS ORDERED that:

1. The attached amendments to the General Rules of Practice for the district Courts be, and the same are, prescribed and promulgated to be effective on January 1, 2006.

2. These amendments shall apply to all actions or proceedings pending on or commenced on or after the effective date.

3. The inclusion of advisory committee comments is made for convenience and does not reflect court approval of the statements made therein.

Amendments to Minnesota General Rules of Practice for the District Courts TITLE I. RULES APPLICABLE TO ALL COURT PROCEEDINGS

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RULE 8. INTERPRETERS

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Rule 8.04. Interpreters to assist jurors

Qualified interpreters appointed by the court for any juror with a sensory disability may be present in the jury room to interpret while the jury is deliberating and voting.

Advisory Committee Comment — 2006 Amendment

Rule 8.04 is intended to provide guidance on the role of interpreters appointed for the benefit of jurors with a sensory disability. The requirement that such interpreters be allowed to join the juror in the jury room is logical and necessary to permit the juror to communicate in deliberations. In this situation the interpreter should be given an oath to follow other constraints placed on jurors ( e.g. , not to discuss the case, not to read or listen to media accounts of the trial, etc.) and also that the interpreter will participate only in interpreting the statements of others, and will not become an additional juror. An interpreter in this situation should also not be allowed or required to testify as to any aspect of the jury's deliberations in any context a juror would not be allowed or required to testify.

This amendment is drawn from the language of Minn. R. Crim. P. 26.03, subd. 16.

The rule is limited by its terms to interpreters appointed for the benefit of jurors with a sensory disability only because that is the only condition generally resulting in the appointment for jurors. In other, unusual, situations where such an interpreter is appointed, these procedures would presumably apply as well.

TITLE II. RULES GOVERNING CIVIL ACTIONS

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RULE 113. ASSIGNMENT OF CASE(S) TO A SINGLE JUDGE

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Rule 113.03. Consolidation Assignment of Cases in More Than One District to a Single Judge (a) Assignment by Chief Justice. When two or more cases pending in more than one judicial district involve one or more common questions of fact or are otherwise related cases in which there is a special need for or desirability of central or coordinated judicial management, a motion by a party or a court's request for assignment of the cases to a single judge may be made to the chief justice of the supreme court.

(b) Procedure. The motion shall identify by court, case title, case number, and judge assigned, if any, each case for which assignment to a single judge is requested. The motion shall also indicate the extent to which the movant anticipates that additional related cases may be filed. An original and two copies of the motion shall be filed with the clerk of appellate courts. A copy of the motion shall be served on other counsel and any unrepresented parties in all cases for which assignment is requested and the chief judge of each district in which such an action is pending. Any party may file and serve a response within 5 days after service of the motion. Any reply shall be filed and served within 2 days of service of the response. Except as otherwise provided in this rule, the motion and any response shall comply with the requirements of Minn. R. Civ. App. P. 127 and 132.02. (c) Mechanics and Effect of Transfer. When such a motion is made, the chief justice may, after consultation with the chief judges of the affected districts and the state court administrator, assign the cases to a judge in one of the districts in which any of the cases is pending or in any other district. If the motion is to be granted, in selecting a judge the chief justice may consider, among other things, the scope of the cases and their possible impact on judicial resources, the availability of adequate judicial resources in the affected districts, and the ability, interests, training and experience of the available judges. As necessary, the chief justice may assign an alternate or back-up judge or judges to assist in the management and disposition of the cases. The assigned judge may refer any case to the chief judge of the district in which the case was pending for trial before a judge of that district selected by the chief judge.

Advisory Committee Comment — 2006 Amendment

The amendments to Rule 113.03 are intended to provide more detailed guidance about the procedures to be followed in seeking transfer of cases under the rule. The rule clarifies the existing practice and specifically incorporates the normal procedures for handling motions in the appellate courts. Because the motion is made to the chief justice rather than the entire court, fewer copies are necessary, but other procedures of Minn. R. Civ. App. P. 127 and 132.02 apply to these motions.

TITLE IV. RULES OF FAMILY COURT PROCEDURE PART A. PROCEEDINGS, MOTIONS, AND ORDERS

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RULE 302. COMMENCEMENT; CONTINUANCE; TIME; PARTIES

Rule 302.01. Commencement of Proceedings (a) Service. Marriage dissolution, legal separation and annulment proceedings shall be commenced by service of a summons and petition upon the person of the other party, by alternate means authorized by statute, or by publication pursuant to court order. Service in other family court proceedings shall be governed by the rules of civil procedure.

(b) Joint Petition.

(1) No summons shall be required if a joint petition is filed. Proceedings shall be deemed commenced when both parties have signed the verified petition.

(2) Where the parties to a proceeding agree on all property issues, have no children together, the wife is not pregnant, and the wife has not given birth since the date of the marriage to a child who is not a child of the husband, the parties may proceed using a joint petition, agreement, and judgment and decree for marriage dissolution without children. Form 12 appended to these rules is a sufficient form for this purpose.

(3) Upon filing of the "Joint Petition, Agreement and Judgment and Decree," and Form 11. 1 appended to Title I of these rules, and a Notice to the Public Authority if required by Minn. Stat. § 518.551, subd. 5(a), the court administrator shall place the matter on the default calendar for approval without hearing pursuant to Minn. Stat. § 518.13, subd. 5. A Certificate of Representation and Parties and documents required by Rules 306.01 and 306.02 shall not be required if the "Joint Petition, Agreement and Judgment and Decree" provided in Form 12 is used.

(4) Court Administrators in each Judicial District shall make the "Joint Petition, Agreement and Judgment and Decree for Marriage Dissolution Without Children" available to the public at a reasonable cost, as a fill-in-the-blank form.
(c) Service by Alternate Means or Publication. Service of the summons and petition may be made by alternate means as authorized by statute. Service of the summons and petition may be made by publication only upon an order of the court. If the respondent subsequently is located and has not been served personally or by alternate means, personal service shall be made before the final hearing.

Advisory Committee Comment — 2006 Amendment

Rule 302 is amended to incorporate procedures to deal with service "by alternate means" as authorized by statute. Minn. Stat. § 518.11 expressly provides authority for service by various other means. The rule retains provision for service by publication as well, because publication is authorized for a summons and petition that may affect title to real property. See Minn. Stat. § 518.11(c) (2004).

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RULE 306. DEFAULT

Rule 306.01. Scheduling of Final Hearing

Except when proceeding under Rule 302.01(b) by Joint Petition, Agreement and Judgment and Decree, to place a matter on the default calendar for final hearing or for approval without hearing pursuant to Minnesota Statutes, section 518.13, subdivision 5, the moving party shall submit a default scheduling request substantially in the form set forth in Form 10 appended to these rules and shall comply with the following, as applicable:

(a) Without Stipulation — No Appearance. In all default proceedings where a stipulation has not been filed, an affidavit of default and of nonmilitary status of the defaulting party or a waiver by that party of any rights under the Soldiers' and Sailors' Servicemembers Civil Relief Act of 1940, as amended, shall be filed with the court.

(b) Without Stipulation — Appearance. Where the defaulting party has appeared by a pleading other than an answer, or personally without a pleading, and has not affirmatively waived notice of the other party's right to a default hearing, the moving party shall notify the defaulting party in writing at least ten (10) fourteen (14) days before the final hearing of the intent to proceed to Judgment. The notice shall state:

You are hereby notified that an application has been made for a final hearing to be held on ____________, 20__, at __:__ _.m. at __________________ [a date not sooner than three (3) fourteen (14) days from the date of this notice]. You are further notified that the court will be requested to grant the relief requested in the petition at the hearing. You should contact the undersigned and the District Court Administrator immediately if you have any defense to assert to this default judgment and decree.

The default hearing will not be held until the notice has been mailed to the defaulting party at the last known address and an affidavit of service by mail has been filed.

If the case is to proceed administratively without a hearing under Minn. Stat. § 518.13, subdivision 5, then the notice shall be sent after the expiration of the 30-day answer period, but at least fourteen (14) days before submission of a default scheduling request as required by this rule, and shall state:

You are hereby notified that an application will be made for a final judgment and decree to be entered not sooner than fourteen (14) days from the date of this notice. You are further notified that the court will be requested to grant the relief requested in the Petition. You should contact the undersigned and the District Court Administrator immediately if you have any defense to assert to this default judgment and decree.
(c) Default with Stipulation. Whenever a stipulation settling all issues has been executed by the parties, the stipulation shall be filed with an affidavit of nonmilitary status of the defaulting party or a waiver of that party's rights under theSoldiers' and Sailors' Servicemembers Civil Relief Act of 1940, as amended, if not included in the stipulation.

In a stipulation where a party appears pro se, the following waiver shall be executed by that party:

I know I have the right to be represented by a lawyer of my choice. I hereby expressly waive that right and I freely and voluntarily sign the foregoing stipulation.

Advisory Committee Comment — 2006 Amendment

Rule 306 is amended to clarify the role of the notice required to be given to parties who are in default but who have "appeared" in some way. A party is not entitled to prevent entry of judgment if that party is in default by not serving and filing a timely written answer to the Petition. Nonetheless, the court may, in its discretion, consider some appropriate measures to prevent the case from being decided on a default basis and to obviate a motion for relief from the default judgment and decree. Accordingly, the rule is amended to afford more useful notice as to the request for a default.

The rule does not define how a party might appear either by "a pleading other than an answer," or "personally without a pleading." Both conditions should be limited to some actions that approach responding to the Petition despite the fact they may be insufficient as a matter of law to stand as a response. Sending a letter that responds to a Petition might suffice for the first condition, as might a letter to the court. Appearing at a court hearing despite having not answered would certainly meet the "appeared personally" condition. When in doubt as to other circumstances, the party seeking a default should, to comply with Rule 306.01(b), provide the required notice, with the expectation that many of these responses that fall short of an answer will not prevent entry of judgment.

The Soldiers' and Sailors' Civil Relief Act of 1940 was amended and renamed in 2003, and the rule is amended to use the new name as a matter of convenience. See Servicemembers Civil Relief Act, Pub.L. No. 108-189, § 1, 117 Stat. 2835, 2840-42 (2003) (to be codified at 50 U.S.C. app. § 521). The former rule would still apply, however, because it included the "as amended" extension of the citation.

PART B. EXPEDITED CHILD SUPPORT PROCESS

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RULE 372. MOTIONS TO MODIFY, MOTIONS TO SET SUPPORT, AND OTHER MATTERS

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Rule 372.07. Fees

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Subd. 2. Modification Fee. Pursuant to Minn. Stat. § 357.021, subd. 2(13 2), a separate fee shall also be collected upon the filing of the motion to modify and a responsive motion or counter motion.

Advisory Committee Comment — 2006 Amendment

Rule 372.07, subd. 2, is amended to correct the statutory reference. In 2005, the legislature set t The modification fee to be collected under Rule 372.07 at $55.00. Act of June 3, 2005, ch. 164, § 2, 2005 Minn. Laws 1878, 1879-80 (to be codified at Minn. Stat. § 357.021). Litigants are advised to review the statute or contact the court administrator for current fee amounts. is $20.00. (Order setting fee, File C9-85-1134, filed March 31, 1993).

TITLE VI. CONCILIATION COURT RULES

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RULE 508. SUMMONS; TRIAL DATE

(a) Trial Date. When an action has been properly commenced, the court administrator shall set a trial date and prepare a summons. Unless otherwise ordered by a judge, the trial date shall not be less than 10 days from the date of mailing or service of the summons.

(b) Contents of Summons. The summons shall state the amount and nature of the claim; require the defendant to appear at the trial in person or if a corporation, by officer or agent; shall specify that if the defendant does not appear judgment by default may be entered for the amount due the plaintiff, including fees, expenses and other items provided by statute or by agreement, and where applicable, for the return of property demanded by the plaintiff; and shall summarize the requirements for filing a counterclaim.

(c) Service on Plaintiff. The court administrator shall summon the plaintiff by first class mail.

(d) Service on Defendant.

(1) If the defendant's address as shown on the statement of claim is within the county, the administrator shall summon the defendant by first class mail, except that if the claim exceeds $2,500 the summons must be served by the plaintiff by certified mail, and proof of service must be filed with the administrator. If the summons is not properly served and proof of service filed within 60 days after issuance of the summons, the action shall be dismissed without prejudice.

(2) If the defendant's address as shown on the statement of claim is outside the county but within the state, and the law provides for service of the summons anywhere within the state, the administrator shall summon the defendant by first class mail, except that if the claim exceeds $2,500 the summons must be served by the plaintiff by certified mail, and proof of service must be filed with the administrator. If the summons is not properly served and proof of service filed within 60 days after issuance of the summons, the action shall be dismissed without prejudice.

(3) If the defendant's address as shown on the statement of claim is outside the state, the administrator shall forward the summons to the plaintiff who, within 60 days after issuance of the summons, shall cause it to be served on the defendant and file proof of service with the administrator. If the summons is not properly served and proof of service filed within 60 days after issuance of the summons, the action shall be dismissed without prejudice. A party who is unable to pay the fees for service of a summons may apply for permission to proceed without payment of fees pursuant to the procedure set forth in Minnesota Statutes Section 563.01.

(4) Service by mail, whether first-class or certified, shall be effective upon mailing.
(e) Proof of Service. Service by first class mail or certified mail shall be proven by an affidavit of service in form substantially similar to that contained in Form 508.1. Service may be alternatively proven, when made by the court administrator, by any appropriate notation in the court record of the date, time, method, and address used by the administrator to effect service.

Advisory Committee Comment — 2006 Amendment

Rule 508(d)(4) is a new provision, intended to remove any confusion in the rule over when service by mail is deemed complete. This question is important in determining questions of timing. Making service effective upon mailing is consistent with the provisions of Minn. R. Civ. P. 5.02 and Minn. R. Civ. App. P. 125.03

The rule has historically required proof of service, but has not specified how service is proven. Rule 508(e) specifies that an affidavit of service should be prepared in form substantially similar to new Form 508.1 to prove service by anyone other than the court administrator. Where the rule requires the administrator to effect service by mail or certified mail, it is not necessary to require an affidavit of the administrator to prove serve, and Rule 508(e) recognizes that a notation of the facts of service in the court's file will suffice to prove that service was effected.

Some courts follow the practice of using certified mail receipts as proof of service. In fact these receipts generally only prove receipt of the mailing, not the mailing itself. Although proof of receipt may be important if a question arises as to the effectiveness of service, it is not an adequate substitute for proof of the facts of service, including the date of mailing.

Form


Summaries of

Order Promulgating Amendments to Gen. Rules, CX-89-1863

Supreme Court of Minnesota
Nov 30, 2005
No. CX-89-1863 (Minn. Nov. 30, 2005)
Case details for

Order Promulgating Amendments to Gen. Rules, CX-89-1863

Case Details

Full title:ORDER PROMULGATING AMENDMENTS TO GENERAL RULES OF PRACTICE

Court:Supreme Court of Minnesota

Date published: Nov 30, 2005

Citations

No. CX-89-1863 (Minn. Nov. 30, 2005)