Rules are Rules. Really.

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

By David F. Herr

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

Minnesota General Rules of Practice

Minnesota Rules of Evidence

Minnesota Rules of Civil Appellate Procedure

Minnesota Rules of Criminal Procedure

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).