Insight Following the Recipe: A Rules Reminder for Motion Practice

This article was originally published in the February 2015 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

When you look at a menu, it often tells you what is in the meal you are ordering, but rarely does it tell you how it is being made. This omission is understandable, as what you are eating often is more important to you than what the chef had to do to make it. However, you can’t make a pound cake only knowing what the ingredients are – you also have to know how to properly cream the butter with the sugar. You have to follow the recipe.

The same is true with civil motions. Not only do you have to be able to effectively communicate the substance of the information, you also have to properly file and serve the motion, or you can end up with a motion that fails for not following a basic procedural rule. This article will remind you of some of the most basic rules related to civil motion practice, including timing and what to put in affidavits, in Idaho state courts.

Timelines for motion practice

Motion timeline rules are important because getting the timing rules wrong can potentially be fatal to your motion. That being said, motion timing rules are easy to overlook or confuse as they are not uniform for every motion. The attached chart outlines three different timelines for fairly common motions:¹

Note that each of these timelines contains deadlines based on the date of hearing.⁵ Those familiar with federal practice are aware that the federal filing timelines are based on the date of filing⁶ and that it is the Court who determines whether to set a hearing.⁷

In Idaho State Court, either the parties or the Court may set a hearing.⁸ Thus, the briefing schedule is not usually set until a hearing is scheduled. Remember, the timelines for fees and costs are a bit different, as the initial steps are based on the date of the judgment. However, once the motion to disallow costs/fees is filed and a hearing is set, the general motion timelines apply to responsive and reply briefs. In particular regard to fees and costs, failure to timely file an objection constitutes a waiver of the objection; thus the timeline for objecting is essential.⁹

Following these rules will solve a majority of the problems attorneys have when it comes to civil motion timing. However, these rules are not the end, as there are other general rules that overlay the specific timelines. The attached chart outlines some of these issues:

Another overlay to timing issue involves service. Rule 5 discusses all the methods of allowed service, including hand delivery, mailing, “facsimile machine process” (i.e. faxing), etc.¹³ If a party is represented, serving their attorney is sufficient. Hand delivery is effective upon delivery, as is serving by fax.¹⁴

Serving motion documents by mail, however, involves a confused set of timing rules. Rule 5(b)(C) says that service of motions can be made by, “mailing it to the person’s last known address in which event service is complete upon mailing.” This language indicates that service of a motion document by mail is effective upon service. Rule 6(e)(1) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three (3) days shall be added to the prescribed period.

Based on a reasonable interpretation of these rules, if you have to do something after notice of an event (such as responding to discovery¹⁵ or objecting to a memorandum of costs) the recipient may add three extra days to the response deadline calculation if the notice was mailed. It would not seem to apply to motion deadlines, which are not based on notice, but instead based on hearings dates.

However, such interpretation has been specifically rejected by the Idaho Courts. In Ponderosa Paint Mfg., Inc. v. Yack, the Idaho Court of Appeals stated:

The Rule 56(c) time frames for service are supplemented by the provision of Rule 6(e)(1) that a party who is served by mail must be allowed an additional three days within which to respond. Thus, when a motion for summary judgment and supporting documentation are served by mail, they must be mailed at least 31 days in advance of the hearing.¹⁶

Ponderosa Paint specifically holds that if a motion is served by mail, Rule 6(e)(1) requires that the serving party add three extra days to the time by which the motion must be served. Other cases have upheld this interpretation of Rule 6(e)(1) with regard to both motions for summary judgment and other motions.¹⁷

These rules are significant because trial courts may strike or disregard any untimely document.¹⁸ As an example, in Arregui v. Gallegos-Main (a medical malpractice case), the defendant filed a motion for summary judgment on October 26, 2010, and set the motion for hearing on November 23, 2010.¹⁹ The plaintiff filed and served a responsive brief and affidavit on November 12, 2010, only 11 days before the hearing.²⁰ The trial court rejected the affidavit as untimely²¹ and the Idaho Supreme Court agreed.²² In part because the affidavit was untimely, the plaintiff lost her case.²³

Does this mean that any late motion or brief is doomed to be disregarded or stricken by the Court? Not necessarily.

There are competing interests in addressing untimely motions. The purpose of the timing rules, “is to give the opposing party an adequate and fair opportunity to support its case.”²⁴ In contrast, courts generally are unwilling to strike an untimely document if it does not create prejudice to the other party.²⁵ Rule 61 specifically instructs courts to, “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” This language is cited in a number of cases related to refusing to strike late motion documents.²⁶ Further, the rules regarding timing contain clauses allowing them to be modified by the Court, which indicates that timing rules are not set in stone.²⁷

What should an attorney take from these rules? Timing rules are of significant importance. First, as Arregui showed, cases can be lost if the timing rules are ignored. Second, the rules are not always clear. When in doubt, pick the longest applicable time line to work from. Third, timing rules are not located in one place. It is important to become familiar with the civil rules (and statutes) as a whole in order to ensure all rules are followed. Fourth, failure to abide by the rules, while not wise, is not always fatal. If an emergency happens, the parties should ask for the Court to utilize its discretion to alter motion timelines, or (in a worst case scenario), argue that an untimely document is not prejudicial and is at worst harmless error under Rule 61.²⁸

What should and should not be included in an affidavit

When an affidavit is filed, attorneys should endeavor to follow the applicable civil and evidentiary rules. Both Rule 7(b)(3) and 56 discuss affidavits accompanying motions. However, Rule 56(e) contains special standards for affidavits supporting or opposing summary judgment. Such affidavits, “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”²⁹ Arguably, this mandate could be seen as repeating various rules of evidence.³⁰ However, there is no similar mandate in Rule 7(b)(3). Does this mean that affidavits supporting non-summary judgment motions may ignore evidentiary rules? Probably not.

Generally, courts have broad discretion in determining whether to consider evidence presented through affidavits.³¹ The evidentiary rules, “govern all actions, cases and proceedings in the courts of the State of Idaho and all actions, cases and proceedings to which rules of evidence are applicable.”³² Therefore affidavits should comply with the rules of evidence even if they do not support a motion for summary judgment. So what does this mean for an attorney preparing an affidavit?

First, make sure that the person for whom the affidavit is prepared has personal knowledge about the subject matter of the affidavit. Second, if documents are attached to the affidavit, make sure there is sufficient foundation and authentication for the documents.

Authentication or identification of documentary evidence is a condition precedent to its admissibility. Pursuant to I.R.E. 901(a), authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. One example of authentication or identification conforming with the requirements of this rule is testimony of a witness with knowledge that a matter is what it is claimed to be.³³

Third, ensure that all statements of fact in an affidavit are either not hearsay or are subject to a hearsay exception. While an affidavit should strive to follow all evidentiary rules, these three basic rules will save most affidavits.

Under these rules it will rarely be necessary for attorneys to prepare an affidavit for themselves. Attorneys should never take discovery documents from their file and use them as exhibits in their own affidavit. An attorney is not the proper person to testify to the authenticity of documents or facts from the case. Any information that an attorney has about documents or facts usually comes from their client or other parties, and is likely inadmissible hearsay.

Often, the only time the attorney is the right person to make an affidavit to support a motion is when the affidavit has exhibits which were created by or for the attorney (such as letters to or from opposing counsel, discovery requests and responses, depositions, etc.).

Finally, if an affidavit violates a rule of evidence (or Rule 56(e)), does that mean the affidavit is dead in the water? Not necessarily. Though evidence is important in motions (and particularly in motions for summary judgment³⁴), evidentiary issues can be waived.³⁵ Thus, if an affidavit is riddled with hearsay, the trial Court is fully within its discretion to review the hearsay (even on summary judgment) if the other party does not object.

I personally experienced this in a private injury case I was defending. When searching through the plaintiff’s voluminous medical records, I found a document which indicated that the plaintiff had assigned her claims to another entity. Ignoring my own rules about affidavits, I promptly attached the document to an affidavit and filed a motion for summary judgment to argue that the defendant was not a real party in interest. The case settled shortly thereafter. Even though I wasn’t trying to get away with anything, my summary judgment motion could have gone down in flames because the affidavit was based on a hearsay and unauthenticated document.

So should an attorney move to strike an objectionable affidavit? That is based on a number of considerations.

For example, if the affidavit contains an evidentiary issue that can easily be corrected, it might not be worth the effort and expense of objecting now just to redo the motion at a later date. However, if an applicable scheduling deadline has passed, moving to strike might have a tactical advantage.

Also, some judges will accept any objection as a basis for reviewing admissibility of evidence, whether written or oral, while other judges require a formal motion to strike be filed in advance.³⁶ The Supreme Court has stated, “There is no authority in this state that requires a motion to strike or an objection before a trial court may exclude or not consider evidence offered by a party.”³⁷ Be that as it may, prudence would indicate that best practice would be to submit a written motion objecting to the affidavit, in whatever form the attorney deems best.³⁸

Following all the rules

When preparing a motion, attorneys should make sure to not only follow the civil rules and applicable statutes (including the basic formatting requirements of Rule 10), but also to follow all local rules. Rule 1(c) allows judicial districts to set their own local rules. These local rules must be consistent with the Idaho Rules of Civil Procedure,³⁹ but otherwise the districts are free to include whatever procedural rules they desire.

Local rules vary from location to location, and include things such as hearing requirements,⁴⁰ page limits,⁴¹ location requirements,⁴² and format requirements.⁴³ The local rules may be found at the judicial district websites, or at http://www.isc.idaho.gov/district-courts.⁴⁴

Conclusion

Learning the rules of civil procedure is a career-long process. Rarely does any attorney get everything right the first time around. Hopefully this article will help ensure that fewer deadlines are missed and affidavits are stricken. Remember that ingredients are important, but how you put them together to make the meal is equally, if not more, essential.

Endnotes

1. This chart is not comprehensive. Other timelines apply to specialized motions.
2. As discussed below, add three days to each of these deadlines if service is done by mail.
3. Note that the rule specifically indicates objections to proposed costs are filed as motions to disallow part or all of the requested costs. This indicates that once an objection/motion to disallow is filed, it follows general motion timeline rules.
4. Note that I.R.C.P. 7(b)(3)(C-D) and (E) could be read to conflict. Rule 7(b)(3)(C-D) require a party, when filing a motion, to request oral argument, or file a memorandum within 14 days. 7(b)(3)(E) requires any brief in support to be filed and served at least 14 days prior to the hearing. If the motion is filed more than 28 days before the hearing, a brief filed 14 days before the hearing could be timely under 7(b)(3)(E), but untimely under 7(b)(3)(C – D).
5. As mentioned above, the general motion timelines only come into play on fees and costs if the parties set it for hearing. However, the preliminary steps are based on the date of the judgment. Idaho R. Civ. P. 54(d) and (e).
6. See Dist. Idaho Loc. Civ. R. 7.1 (b)(3) and (c)(1).
7. See Dist. Idaho Loc. Civ. R. 7.1 (d)(1)(A).
8. Idaho R. Civ. P. 6(e)(2) (Court may notice any motion for hearing); Idaho R. Civ. P. 7(b) (discussing that parties file the notice of hearing). Also, local rules affect how hearings are handled. See, e.g. Fourth Jud. Dist. Loc. R. 2.1 (discussing that parties must contact the judge’s clerk to schedule a hearing). Note that it is fairly uncommon for the Court to set a hearing if the parties do not do so.
9. Idaho R. Civ. P. 54(d)(6).
10. Idaho Code § 73-109 and Idaho R. Civ. P. 6(a) are often read together, and usually are not deemed in conflict. See, e.g., Cather v. Kelso, 103 Idaho 684, 687-88, 652 P.2d 188, 191-92 (1982); Young v. Idaho Dep’t of Law Enforcement (Alcohol Beverage Control Div.), 123 Idaho 870, 873-74, 853 P.2d 615, 618-19 (Ct. App. 1993). However, when the rules of civil procedure do not apply, Idaho Code § 73-109 controls. See Page v. McCain Foods, Inc., 145 Idaho 302, 311, 179 P.3d 265, 274 (2008).
11. This rule is clear when counting forward to a deadline. However, it is less clear about what to do when counting backward. For example, if a response to a motion (whose deadline is established by counting backward from a hearing date) falls on a Court holiday, is the response due the day before or the day after the holiday? Idaho law does not specifically say what to do under these circumstances. However, prudence dictates that filing earlier would be the best course of action.
12. As an example, if a reply is due two days before a hearing and two days before a hearing is Saturday or Sunday, the reply must be filed and served so that it is received on Thursday or Friday, respectively. This rule can result in unexpected consequences. As a second example, if a hearing is on Wednesday, but Tuesday is a Court holiday, then a reply brief is not due on the Monday the week of the hearing, but is instead due the Friday before.
13. Idaho R. Civ. P. 5(b). Note that any other electronic means of service (such as e-mail) is not allowed unless the receiving party has consented to such service in writing. Idaho R. Civ. P. 5(b)(E).
14. Idaho R. Civ. P. 5(b).
15. Discovery deadlines are generally based on service of the discovery requests. See Idaho R. Civ. P. 33(a)(2) (answers to interrogatories due 30 days after service); Idaho R. Civ. P. 34(b)(2) (responses to requests for production due 30 days after service); Idaho R. Civ. P. 36(a) (requests for admission deemed admitted unless denied within 30 days of service).
16. Ponderosa Paint Mfg., Inc. v. Yack, 125 Idaho 310, 316, 870 P.2d 663, 669 (Ct. App. 1994) (citations omitted).
17. Jarman v. Hale, 112 Idaho 270, 271, 731 P.2d 813, 814 (Ct. App. 1986) (adding extra days when mailing a motion for summary judgment); Matter of Estate of Keeven, 126 Idaho 290, 296, 882 P.2d 457, 463 (Ct. App. 1994) (adding extra days when serving a motion by mail); McClure Eng’g, Inc., v. Channel 5 KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006) (affirming the ruling in Ponderosa Paint Mfg.).
18. See Cumis lns. Soc’y, Inc. v. Massey, 155 Idaho 942, 946, 318 P.3d 932, 936 (2014) (“This Court reviews a district court’s decision to accept an untimely filed affidavit in connection with summary judgment, and a court’s decision to relieve a party from a stipulation, for an abuse of discretion.”); Arregui v. Gallegos-Main, 153 Idaho 801, 805, 291 P.3d 1000, 1004 (2012), reh’g denied (June 7, 2012) (holding that a decision on a motion to strike an untimely document is made in the trial court’s discretion).
19. Arregui at 803, 291 P.3d at 1002.
20. Id.
21. Id.
22. Id. at 805, 291 P.3d at 1004.
23. In addition to finding that the affidavit was untimely, the Supreme Court found that the affidavit was inadmissible. Id. at 806, 291 P.3d at 1005 (2012).
24. Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 133 Idaho 1, 5, 981 P.2d 236, 240 (1999). Arregui cited this rule, but its application in that case is ambiguous – the stricken affidavit was the responsive affidavit, after which no further affidavits are typically allowed by rule. Therefore, it is unclear how the moving party needed additional time to support its case, when it was not allowed to file any further affidavits.
25. See Ponderosa Paint Mfg., Inc., 125 Idaho at 317, 870 P.2d at 670 (late mailed summary judgment motion did not cause prejudice); McClure Eng’g, Inc., v. Channel 5 KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006) (late mailed motion to withdraw did not cause prejudice); Matter of Estate of Keeven, 126 Idaho at 296, 882 P.2d at 463 (motion mailed less than eight days before the hearing did not cause prejudice).
26. See, e.g., Ponderosa Paint Mfg., Inc., 125 Idaho at 317, 870 P.2d at 670; Matter of Estate of Keeven, 126 Idaho at 296, 882 P.2d at 463.
27. Idaho R. Civ. P. 6(b) (allowing for enlargement of time on motions based upon excusable neglect); 56(c) (allowing for modifications of the summary judgment timeline by the Court for good cause).
28. It is not recommended that attorneys rely on Idaho R. Civ. P. 61 to file late documents. This is akin to putting your head in an alligator’s mouth on the reliance that it won’t find you tasty.
29. Idaho R. Civ. P. 56(e).
30. See, e.g. Idaho R. Evid. 602 (witnesses must have personal knowledge), 402 (only relevant evidence is admissible), 702 (expert witness qualifications), and other evidentiary rules such as hearsay.
31. Foster v. Traul, 145 Idaho 24, 27, 175 P.3d 186, 189 (2007) (fn. 1) (discretion to strike an affidavit); Harris, Inc. v. Foxhollow Const. &Trucking, Inc., 151 Idaho 761, 770, 264 P.3d 400, 409 (2011) (discretion to admit or exclude evidence).
32. Idaho R. Evid. 101 (b). However, there are proceedings where the Rules of Evidence do not apply. See Idaho R. Evid. 101 (d – e) and 104.
33. Shea v. Kevic Corp., 156 Idaho 540, 328 P.3d 520, 526 (2014) (citations and quotation marks omitted).
34. With motions for summary judgment, courts have an extra role. “Summary judgment proceedings are decided on the basis of admissible evidence.” Shea, 156 Idaho at 328 P.3d at 524. “The question of admissibility is a threshold question to be answered before applying the liberal construction and reasonable inferences rule to the admissible evidence.” Hecla Min. Co. v. Star-Morning Min. Co., 122 Idaho 778, 784, 839 P.2d 1192, 1198 (1992) (citations omitted). In other words, the court is supposed to look at whether affidavits are admissible before it even starts applying the inferences available to the non-moving party.
35. Camp v. Jiminez, 107 Idaho 878, 881, 693 P.2d 1080, 1083 (Ct. App. 1984); Naccarato v. Vill. of Priest River, 68 Idaho 368, 372, 195 P.2d 370, 373 (1948) (“A party who fails to object to the admission of evidence waives an objection to the subsequent admission of the same or similar evidence.”). Tolmie Farms, Inc. v. J.R. Simplot Co., 124 Idaho 613, 617, 862 P.2d 305, 309 (Ct. App. 1992) aff’d in part, rev’d in part, 124 Idaho 607, 862 P.2d 299 (1993) (“[U]nless noncompliance of an affidavit with Rule 56(e) is brought to the lower court’s attention by a proper objection and motion to strike, it is waived.”).
36. Often, attorneys want a motion to strike to be heard at the same time as the underlying motion. If the motion to strike is filed within the 14 day time limit for general motions, attorneys often file a “Motion to Shorten Time” when they attempt to have Motion to Strike heard the same day as the underlying motion. There is no rule allowing for a “Motion to Shorten Time” specifically. However, the Court has discretion under Idaho R. Civ. P. 6(b) to alter time limits, even if such rule does not specifically identify such motions as “Motions to Shorten Time.”
37. Hecla Min. Co., 122 Idaho at 782-83, 839 P.2d at 1196-97 (stating that “some form of objection is ordinarily necessary,” but such objection does not necessarily need to be in the form of a motion to strike).
38. If such motion is filed, it is encouraged that the moving party follow all applicable rules, including local rules. For example, if a party files a Motion to Strike and Motion to Shorten in the Fourth Judicial District, the party also must file a notice of hearing on such motions, or the Court could refrain from hearing the motions. See Fourth Judicial Dist. Loc. R. 2.2.
39. Idaho R. Civ. P. 1(c).
40. See, e.g., Fourth Judicial Dist. Loc. R. 2 (on setting hearings); First Judicial Dist. Loc. R. 2 and 3 (on scheduling); Second Judicial Dist. Loc. R. 9 (hearings over 30 minutes must be set for a time certain).
41. See, e.g., Fourth Judicial Dist. Loc. R. 8.1 (setting page limits on motions, responses, and replies); Sixth Judicial Dist. Loc. R. 3 (setting page limits on civil and criminal motions).
42. See, e.g., Seventh Judicial Dist. Loc. R. 3 (discussing serving documents on non-resident judges).
43. See, e.g., Third Judicial Dist. Loc. R. 2 (discussing format for requests for trial settings).
44. Last checked Oct. 2, 2014.

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