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December 2020


Rules are Rules. Really.

A high-profile federal case reminds us that court rules are not just suggestions.

By David F. Herr


1120-Pirate-Rules

The Code is more what you’d call “guidelines” than actual rules.1
– Captain Barbossa

 

We practice in a world of rules—often familiar rules, but also sometimes surprises. That surprise may be a rule we did not know of, or had forgotten, or it may just be a rule we have gotten into the habit of ignoring until it is suddenly enforced. Why does this happen? And should it?

The first principle to understand is that, with all due deference to Captain Barbossa, the rules of court are really rules—not just “guidelines.” But then, we are not pirates either. Most procedural rules exist to provide orderly and efficient handling of cases. They were created for a reason and normally are followed. And we should be able to expect the courts and our adversaries to follow them.

Obviously, it helps to know the rules, which requires reading them. But none of us can keep all the rules in mind. There is a good reason that most litigators have a paper-bound rulebook close to the workspace on their desks (or sometimes electronically made part of their workspace). Even when we think we know the rule, we learn to look it up anyway, just to be sure.

A recent 6th Circuit decision, In re National Prescription Opiate Litigation,2 puts the imperative nature of court rules into sharp focus. The twin holdings in the case will make it an oft-cited precedent: First, rules are to be followed. Second, the rules apply to judges too. Just as judges can expect the rules to be followed, the parties should be able to rely on judges to follow them.

Opiates is a decision that is important in complex MDL litigation, but is useful guidance in all types of cases. The judge was assigned by the Judicial Panel on Multidistrict Litigation to preside over massive litigation involving claims brought by individuals and classes against manufacturers and distributors of Oxycontin and similar opiate drugs. The litigation comprised a wide variety of cases with a similarly wide variety of plaintiffs—individuals, classes, businesses, and various governmental entities and subdivisions. The assigned judge entered several orders that some of the defendants found unfair and inconsistent with the rules—and the 6th Circuit agreed, issuing the extraordinary remedy of mandamus, requiring the judge to apply the rules as written. The orders were entered in cases brought by two Ohio counties that were headed for early “bellwether” trials.

The petitions in Opiates complained of three orders issued by the transferee judge in those cases. First, the court allowed the plaintiffs to amend their complaint to assert claims that they had previously disavowed and did so 19 months after the deadline for pleading amendments in the pretrial order and a year after the close of discovery. Second, the court refused to hear the defendants’ motions to dismiss their claims under Fed. R. Civ. P. 12(b)(6). Third, the court ordered these defendants to produce data on every prescription filled by any of their pharmacies nationally for a 13-year period, despite the fact the upcoming bellwether trial would relate solely to sales in Ohio and affecting the two plaintiff counties. The entire MDL proceeding would not include trials of cases filed elsewhere in the country. Under the Supreme Court’s Lexecon decision, the transferee court would not be able to try the claims of non-Ohio plaintiffs—they would have to be remanded for trial to the district where they were initially filed.3

So, what is so extraordinary—warranting issuance of a writ—about these actions by the transferee judge? Sure, they did not exactly conform to important provisions of the rules of civil procedure, but this was a massive MDL, and “extraordinary cases require extraordinary measures,” right? That may have been the transferee judge’s view, but it was not the 6th Circuit’s. It explicitly rejected the district court’s allowance of the amendment to add new, previously abandoned claims on the eve of trial. The rules allow amendments, but the pretrial order in the case set a specific deadline for seeking them. Rule 16 establishes a simple, and important, requirement to guide the courts in considering modification of the deadline: a showing of “good cause.”4 

The 6th Circuit defined the “good cause” requirement of Rule 16 as requiring a showing that “despite their diligence they could not meet the original deadline.”5 The court found that neither the parties nor the court had even attempted to establish diligence. The circuit court rejected the trial judge’s superficial assertion that it would be “efficient” to allow the extension of the deadline.

The court held that the defendants had no other means of remedying the harm caused by the district court’s amendment order and found that the decision “manifests a persistent disregard of the federal rules”6 and held that that disregard warranted issuance of an extraordinary writ of mandamus.

The court issued its writ on the basis of the untoward allowance of the amendment, but also observed that Fed. R. Civ. P. 12(b) expressly allows a party to bring a motion to dismiss and that a district court may not simply refuse to adjudicate motions properly brought under the rule. That observation was intended to guide the district court in further proceedings on remand. Similarly, the court analyzed the scope of discovery contained in Fed. R. Civ. P. 26(b)(1)—limited it to the claims and defenses of the parties following the 2015 amendments and proportionate to the needs of the case. The court held that discovery of evidence that was not relevant to the Ohio counties’ claims was not proportionate to the particular cases and was therefore improper.

Opiates will prove important to multidistrict litigation as a reminder that all judges, including MDL transferee judges, need to apply the rules as written. It based its decision, in part, on the rule recognized by the Supreme Court in Gelboim v. Bank of America,7 that unless cases in a MDL docket are actually consolidated, they retain their individual status and need to be treated as separate cases. But the Opiates holding on the legal force of court rules should be even more compelling for the rest of the courts’ dockets.

“Rules are rules” does not mean they require a Draconian interpretation. The federal rules—and the Minnesota rules that mirror them—are given broad and justice-seeking interpretation. Each includes a general provision requiring courts to interpret and apply the rules to accomplish the “just, speedy, and inexpensive determination of every action.”8 Rule 1 means something too, and should guide the courts toward a fair set of procedures for every case.

Minnesota’s rules are similar in most material ways to their federal counterparts, and the Minnesota Supreme Court has frequently recognized the value of federal decisions interpreting the rules.9 Minnesota’s rules advisory committees have not followed federal rules changes in lockstep, but they have often found that conforming Minnesota’s rule to their federal counterparts makes sense.

 Minnesota has another key rule—Rule 1.02 in the General Rules of Practice, which allows a judge to modify the application of the rules “to prevent manifest injustice.” This rule should provide a clear signpost to lawyers and to judges—Rule 1.02 and Rule 1 of the civil rules allow flexibility in the application of the rules, but they require a showing that flexibility is required in a particular case. A showing of good cause, or the need to prevent manifest injustice, must be made by the parties (or one party) and the court must explain why the rule as written should not be applied.

The civil rules include at least a dozen situations (and the general rules more than a score) where “good cause” is the standard for relief from or modification of the rules. The many rules explicitly embracing the “good cause” standard are set forth in Table 1. Lawyers should not give this requirement short shrift. “Good cause” is not a rigid standard and is inherently context sensitive. Even where the rules do not specifically allow for modification, any rule is potentially changeable in some respect. The facts and circumstances constituting good cause should be demonstrated by affidavit and with particularity. One particularly helpful fact or argument to establish is diligence by the party seeking relief from the strict application of a rule. Conversely, the most compelling arguments from an opponent may be reliance on the rule and prejudice if it is modified by the court. There are, unfortunately, too many cases where a party seeking to avoid a rule simply pleads for relief without making any meaningful showing that it is justified or meets the “good cause” or “interest of justice” standard.

Our rules serve important purposes of establishing procedures for the efficient and consistent administration of justice. They foster predictability. They even allow for exceptions. Lawyers—and judges—can do well to follow both the rules and, where appropriate, the exceptions. 

Minnesota Rules of Civil Procedure

Rule Number

Applicable situation

4.05

Standard to be excused for failure to waive service of summons

16.02

Modification of scheduling order

26.01(c)(2)

Excuse for failure to waive objections to pretrial disclosures

26.02(b)(2) & 45.04(a)(4)

Standard for discovery of ESI after showing of it not being reasonably accessible

32.03

Standard for waiver of requirement that deposition testimony be present in non-stenographic form

33.01(a) & (b)

Leave to serve more than 50 interrogatories or set different deadline for responding

35.01 & .04

Grounds for issuance of orders for physical exams and depositions of medical experts

44.02

Grounds for admission of attested copy of foreign record or a summary

47.04

Grounds for excusing juror from service

59.03

Extension of deadline for motion for new trial (and by incorporation, other post-trial motions)

 

Minnesota General Rules of Practice

 
 

4.02(e)

Standards for overcoming presumption that post-plea criminal proceedings must be open to visual or audio coverage

11.05(a)

Obtaining access to Confidential Financial Source Documents

14.01(b)(3); 14.01(b)(5)

Request for exemption from mandatory e-filing and e-service

111.04

Amendment of scheduling order

131.02(d)(3) & (5)

Motion for use of interactive video teleconference for court proceedings. “Good cause” considerations set forth in Minn. Gen. R. Prac. 131.02(d)(4)

145.04

Excuse from attendance at minor settlement approval hearing

146.01 & .05(i)

Continuance of trial date set for complex cases

303.03(c)

Excuse from meet-and-confer requirements before hearing motions

303.04(e)

Grounds for why notice to opposing party is not required for emergency motion

304.04

Grounds for amendment of scheduling order

305.02(a)

Excusing counsel who will try case from pretrial conference

364.05

Grounds for continuance of hearing

377.09, subd. 5

Grounds for obtaining hearing

512(h)

Grounds for continuance of trial in conciliation court

520(b)

Grounds for vacation of judgment

610

Time to respond to motion

611

Extension of time to obtain transcripts of referee proceedings

707

Extension of deadline for filing grand jury transcript

904.05

Removal of guardian ad litem by judge

 

Minnesota Rules of Evidence


412(2)(A)

Deadline for motion by accused to offer evidence of previous sexual conduct of victim

703(b)

Standard for receiving data for limited purpose of showing basis for expert opinion

902

Self-authentication of foreign public documents

 

Minnesota Rules of Civil Appellate Procedure


102

Court may supersede provisions of rules
(except as prohibited in Rule 126.02)

107.01

Grounds for requiring issuance of cost bond

110.02, subd. 3

Request for extension of time to complete transcript

114.01

Grounds for requiring issuance of cost bond

114.03, subd. 2

Extension of deadline for forwarding of record in administrative appeal.

115.03, subd. 2

Grounds for requiring issuance of cost bond

115.04, subd. 3

Grounds for deadline for service and filing of itemized list of contents of the record

126.02

Grounds for extension of time (except changing time to appeal)

131.02, subd. 1

Grounds for extension of time for filing brief

132.01, subd. 3

Overlength briefs

133.01

Excuse from mandatory mediation in family law cases

139.04

Grounds for disallowance of costs or disbursements

141.01(b) & 141.02(b)

Deadline for seeking recusal in Supreme Court and Court of Appeals, respectively

142.02

Deadline for moving to reinstate appeal following default by appellant


Minnesota Rules of Criminal Procedure


5.05

Extension of time for Rule 8 appearance

6.06

Extension of time for misdemeanor trial

7.03

Extension of deadline for notice of intent to seek aggravated sentence

8.04(c)

Extension of time for omnibus hearing

9.01, subd. 2(1) & (2)

Standard for requiring prosecutor to disclose information

9.03, subd. 6

Standard for motion to make discovery motion in camera

10.01, subd. 2

Standard for relief from waiver of defense or objection

10.02

Standard for relief from waiver of attack on jurisdiction in misdemeanor case

10.03

Motions relating to omnibus hearing

11.06 & 11.09

Continuance of hearing or trial and deadline for trial

12.04, subds. 3 & 12.07

Motions re: timing of hearing on evidentiary matters and pretrial conferences

18.04, subd. 1

Disclosure of grand juror’s name on motion of defendant

19.04, subds. 4 & 5

Date for arraignment and omnibus hearing

26.02, subd. 5(2)

Allowance of late challenge to juror for cause

26.04, subds. 3 & 4

Timing for defendant’s motion for new trial and service of supporting documents

28.01, subds. 3 & 4(3)(g)

Standards for court of appeals to suspend application of rules

28.02, subd. 9

Deadline for appellant to order transcript

29.01, subd. 3 & 29.03, subd. 3(f)

Standards for supreme court to suspend application of rules

29.04

Time for petition for review from court of appeals




DAVID HERR litigates complex cases and has handled appeals in many appellate courts, including the United States Supreme Court. He practices with Maslon LLP and has contributed many years of service as reporter for several Minnesota Supreme Court rules advisory committees on court rules. He is grateful to Mitchell Hamline law student Carly Johnson for her helpful research on Minnesota law on the rules.


Notes

1 Pirate Captain Barbossa appeared in the Pirates of the Caribbean movie The Curse of the Black Pearl (2003), and famously rejected a captive’s claim of a right of return to shore under the Pirate’s Code, stating:

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the Code is more what you’d call “Guidelines” than actual rules. Welcome aboard the Black Pearl, Miss Turner. (Emphasis added).

2 956 F.3d 838 (6th Cir. 2020) (“Opiates”).

3 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

4 Fed. R. Civ. P. 16(b)(4)

5 956 F.3d at 943, quoting Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir. 2003).

6 Id. at 845.

7 Gelboim v. Bank of America Corp., 574 U.S. 405 (2015).

8 Minn. R. Civ. P. 1; cf. Fed. R. Civ. P. 1. Some of the Minnesota rules that expressly require “good cause” to obtain modification of the rules are set forth in Appendix A.

9 See, e.g., T.A. Schifsky & Sons, Inc. v. Bahr Const., LLC, 773 N.W.2d 783 (Minn. 2009).

 

 

 

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