Me. R. Civ. P. 76C
Me. R. Civ. P. 76C
Advisory Note - November 2023
Subdivision (b) is amended in light of the Maine Rules of Electronic Court Systems to require that the District Court clerk transfer the record to the Superior Court rather than filing it with the Superior Court.
Advisory Committee's Notes - 1991
Rule 76C is completely revised to restate and amplify its provisions in clearer form.
Rule 76C(a) is intended to make clear that the removal rule applies to all civil actions and proceedings in the District Court, including civil violation proceedings under Rule 80K, except where express contrary provision is made. Thus, under Rule 80D(i), removal is permitted in forcible entry and detainer actions only in accordance with the statutory provision for entry of the action in the Superior Court by the plaintiff when the defendant pleads title. Under Rule 80F(g), removal of traffic infraction proceedings is prohibited entirely. Under Rule 80H(g), removal is permitted in a civil violation proceeding only where there is a right to trial by jury. As under the prior rule, removal is available only to a defendant or a party in similar procedural posture and is effected by filing notice of removal and the requisite fee and cost of transmission of the record within the time for filing the appropriate responsive pleading. Prior provisions permitting joint or separate removal by joint defendants are carried forward.
Rule 76C(b) makes clear that the record which the clerk is to transmit is similar in form to the record on appeal provided for in Rule 76F(a). The subdivision carries forward existing provisions concerning District Court action on pending motions and the effect of orders of the District Court entered prior to removal. As under the former Rule, failure on the part of the removing party to comply with the provisions of the Rule concerning filing and service of the notice and payment of the removal fee and cost of the record has the effect of voiding the removal.
Rule 76C(c) makes clear that the transfer of jurisdiction to the Superior Court takes effect when the record is received in that court. The subdivision adapts language of Rule 76F(a) requiring the Superior Court clerk to give notice of the completion of removal to other parties. As under the prior rule, upon the completion of removal, pleading and other procedural steps are to be carried forward as though the action had been brought in the Superior Court in the first instance.
Rule 76C(d) carries forward provisions of the prior rule permitting removal by either party if title to real estate is put in issue by the pleading. An exception is made for the statutory provision concerning forcible entry and detainer discussed in connection with subdivision (a) above.
Advisory Committee's Note - January 1, 2001
P.L. 1999, Chapter 731, § § II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERSZ-2 et seq. unified the Superior Court and the District Court civil jurisdiction, with certain stated exceptions. Nonetheless, the Superior Court will continue to conduct jury trials. Consequently, a defendant or another party joined to a civil action in the District Court may remove that action to the Superior Court for jury trial in accordance with Rule 76C. Removal for jury trial is now the only occasion on which a removal under Rule 76C is appropriate. Amended subdivision (a) makes clear that a party seeking removal for jury trial must pay the jury fee at the time of removal. Consequently, under present practice, the payment of the jury fee will occur earlier upon removal than if the case had been commenced in the Superior Court. Former subdivision (d) pertaining to removal of actions involving title to real estate, has been abrogated since this ground for removal no longer exists with the jurisdictional changes enacted by the unification amendments.
Subdivisions (a) and (c) are also amended to clarify the requirements for filing a notice of removal. Former subdivision (a) provided that the notice shall be filed within the time for "filing" the answer or reply. This requirement made the time for filing difficult to determine, since Rule 12(a) requires the answer be "served" and Rule 5(d) requires that a served paper may be filed "within a reasonable time thereafter." The amendment to subdivision (a) makes clear that the notice shall be filed within the time for serving the answer or reply, which means that although service or reply may be complete upon mailing, the notice of removal must be filed with the court in order to be timely. Subdivision (c) has been amended to make clear that once the record is received in the Superior Court, all filings thereafter shall be made in the Superior Court.
A further amendment to subdivision (c) prescribes the procedure where a case is removed to the Superior Court, but the opposing party contends that no jury trial right exists for the removed action. The procedure under amended subdivision (c) is to file a motion in the Superior Court to remand the action to the District Court. The motion will be filed, briefed and disposed of under Rule 7. If the Superior Court should find an improvident removal (i.e., a removal where no proper grounds exist), the action shall be remanded to the District Court and the removing party receives no refund of fees previously paid.
Advisory Committee's Note - May 16, 2001
For cases subject to the court-connected ADR requirements of Rule 16B and which are removed from District Court, payment of the jury fee is deferred until 150 days after entry of the scheduling order required by M.R. Civ. P. 16(a). This rule amendment recognizes that payment of the jury fee shall be deferred in those ADR cases. For all other cases, the jury fee is due promptly upon filing the removal notice. For cases which are not exempt from the ADR process, but are later exempted by a court order, the jury fee must be paid promptly after the exemption order is entered.
Advisory Committee's Notes - July 1, 2001
[Rule 76C(a) Amendment]
Rule 54B was abrogated in 1999. Fees for specific actions such as removal or the jury fee are now set by Administrative Order authorized by Rule 54A. As occurs at most points in the Civil Rules, the fee is referenced without reference to Rule 54A. The particular fee should be determined by examining the Administrative Order regarding fees. [That Administrative Order follows Rule 54A in this document]
Advisory Committee's Note - January 1, 2006
This amendment eliminates the removal fee and the forwarding fee from the rule. The amendment also eliminates a provision relating to support and custody determinations that is unnecessary, as such matters may no longer be removed to the Superior Court.
Advisory Committee Note - January 1, 2008
The amendment clarifies that the notice of removal should be filed at the time of entry of appearance if no written answer is required in the action. See City of Biddeford v. Holland, 2005 ME 121.
Advisory Committee Note - July 1, 2010
The amendment to Rule 76C is intended to clarify that any party may remove an action to the Superior Court within the time allowed to respond to any pleading which is the first document to initiate a new claim. This change establishes that a plaintiff may remove an action after a counterclaim is filed in the District Court, an issue on which there has been uncertainty.