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Rule 12 – Motions – Specific [Effective pending further Order of the Supreme Court]

May 14, 2021 | Civil Procedure, New Hampshire

(a)Motions to Amend.

(1) No plaintiff shall have leave to amend a pleading, unless in matters of form, after a default until the defendant has been provided with notice and an opportunity to be heard, to show cause why the amendment should not be allowed.
(2) Amendments in matters of form will be allowed or ordered, as of course, on motion; but, if the defect or want of form be shown by the adverse party, the order to amend will be made on such terms as justice may require.
(3) Amendments in matters of substance may be made on such terms as justice may require.
(4) Amendments may be made to the Complaint or Answer upon the order of the court, at any time and on such terms as may be imposed.
(b)Motions to Consolidate. Whenever a Motion is filed in any county requesting the transfer of an action there pending to another county for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, the court may, after notice to all parties in all such pending actions and hearing, make such order for consolidation in any one of such counties in which such actions are pending, as justice and convenience require.
(c)Motions to Continue.

(1) Continuances may be granted upon such terms as the court shall order.
(2) All motions for continuance or postponement shall be signed and dated by the attorney, non-attorney representative, or self-represented party filing such motion. Any other party wishing to join in any such motion shall also do so in writing. Each such motion shall contain a certificate by the attorney, non-attorney representative, or self-represented party filing such motion that the party so filing the motion has been notified of the reasons for the continuance or postponement, has assented thereto either orally or in writing, and has been forwarded a copy of the motion.
(3) Where a trial has been scheduled in one case prior to the scheduling of another matter in another court, or elsewhere, where an attorney, non-attorney representative or self-represented party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:

(a) A subsequently scheduled case involving trial by jury in a Superior, or Federal District Court, or argument before the Supreme Court.
(b) Unusual circumstances causing the respective courts to agree that an order of precedence other than the above shall take place.
(d)Motions to Dismiss. Upon request of a party, hearings on motions to dismiss shall be scheduled as soon as practicable, but no later than 30 days prior to the date set for trial on the merits, unless the court shall otherwise order in the exercise of discretion. All parties shall be prepared, at any such hearing, to present all necessary arguments.
(e)Motions to Reconsider. A party intending to file a motion for reconsideration or to request other post-decision relief shall do so within 10 days of the date on the written Notice of the order or decision, which shall be mailed or electronically delivered by the clerk on the date of the Notice. The Motion shall state, with particular clarity, points of law or fact that the court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present; but the motion shall not exceed 10 pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the court the opportunity to consider such issues; thus, to the extent that the court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the motion shall not be permitted except by order of the court.

(1) No Answer or Objection to a Motion for Reconsideration or other post-decision relief shall be required unless ordered by the court.
(2) If a Motion for Reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.
(3) The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

Commentary:

The third sentence of the first paragraph derives from N.H. Dep’t of Corrections v. Butland , 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16 -A.

(f)Motions to Recuse. All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the court. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the court shall make a record of the request, the court’s findings, and its order. The court’s ruling on the motion shall issue promptly. If the motion is denied, the court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.
(g)Motions for Summary Judgment.

(1) Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-aas amended. Such motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the court in support of or in opposition to the Motion for Summary Judgment. Only such materials as are essential and specifically cited and referenced in the Motion for Summary Judgment, responses, and supporting memoranda shall be filed with the court. In addition, except by permission of the court received in advance of filing the memoranda, no such motion, response, or supporting memorandum of law shall exceed 20 double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the court. Excerpts of documents and discovery materials shall be used whenever possible.
(2)Statement of Material Facts.

(a) Content. Every motion for summary judgment shall be accompanied by a separate statement of the material facts as to which the moving party contends there is no genuine issue to be tried, set forth in consecutively numbered paragraphs, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. Failure to include the foregoing statement shall constitute grounds for denial of the motion.
(b) Additional Service of Electronic Form of Statement of Material Facts to other Parties. At the time the motion and separate statement of material facts are filed with the court, the statement of material facts shall also be contemporaneously sent in electronic form by email to all parties against whom summary judgment is sought in order to facilitate the requirements of the following paragraph. The statement of material facts in electronic form shall be sent as an attachment to an email and shall be in a Microsoft Word document (or a document convertible to Word) unless the parties agree to use another word processing format. The requirement to email the statement of material facts to the opposing party does not alter the date or method of service. The requirement for transmission by email of the statement of material facts in electronic form shall be excused if (A) the moving or any opposing party is appearing pro se, (B) the attorney for the moving party certifies in an affidavit that he or she does not have access to email, (C) the attorney for the moving party certifies in an affidavit that an opposing party’s attorney has no email address or has not disclosed his or her email address, or (D) the parties believe that the process outlined herein will be unworkable due to particular circumstances in their case and receive advance approval from the Court for filing separate documents.
(3)The Non-Moving Party.

(a)Response to the Motion and the Statement of Material Facts. The non-moving party shall have 30 days after filing to object to a motion for summary judgment, unless another deadline is established by order of the court. An objection to a motion for summary judgment shall include a response to the moving party’s statement identifying the facts the moving party contends are material and undisputed. In its response, the nonmoving party shall indicate which, if any, of the purported undisputed facts identified in the moving party’s statement the nonmoving party contends are in dispute. The form of the nonmoving party’s response shall be consistent with the requirements of paragraph b. For purposes of summary judgment, any fact set forth in the moving party’s statement of material facts shall be deemed to have been admitted unless controverted as set forth in this paragraph.
(b)Filing a Single Document Containing all Parties’ Positions. To permit the court to have in hand a single document containing the parties’ positions as to material facts in easily comprehensible form, the opposing party shall save the moving party’s statement of material facts as a new document and shall set forth a response to each directly below the appropriate numbered paragraph, including, if the response relies on opposing evidence, page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. Where the obligation to send the statement of material facts in electronic form has been excused, the response to the statement of material facts may be in a separate document.
(c)Statement of Additional Material Facts. Along with its response to the moving party’s statement of facts, the nonmoving party may assert an additional statement of material facts with respect to the claims on which the moving party seeks summary judgment, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.
(d)Filing a Single Document with Additional Material Facts. Such an additional statement shall be a continuation of the opposing party’s response described in Paragraph (g)(3)(a), with an appropriate heading, and shall not be a separate document. Where the party opposing summary judgment includes such an additional statement in its response, the response, including the additional statement, also shall be sent in electronic form by email to the moving party, unless excused as provided in Paragraph (g)(2).
(4)The Moving Party’s Reply to Additional Material Facts. The moving party shall reply to the opposing party’s additional statement of material facts within 20 days of filing and in the manner required by Paragraph (g)(3), resulting in a final, single consolidated document for the court’s consideration, unless the obligation to send the additional statement of material facts in electronic form has been excused. For purposes of summary judgment, any fact set forth in the opposing party’s additional statement of material facts shall be deemed to have been admitted unless controverted as set forth in this paragraph.
(5)Page Limits. Neither the statement of material facts as to which there is no genuine issue to be tried nor the response thereto shall be subject to the 20-page limitation in paragraph (g)(1) of this rule.
(6)Cross-Motions. Cross-motions for summary judgment and oppositions thereto shall comply with the requirements of Paragraph (g)(3), with the result that there shall be a single consolidated document for both motions for summary judgment (multiple documents may only be filed with advance leave of court) containing the respective statements of material facts and responses thereto, unless excused as provided in Paragraph (g)(2).
(7)Partial Summary Judgment. Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability and the case proceeds to trial by jury, the parties must provide the trial judge with a statement of agreed facts sufficient to explain the case to the jury and place it in a proper context so that the jurors might more readily understand what they will be hearing in the remaining portion of the trial. The court shall present the jury with the agreed statement of facts. Absent such an agreement on facts, the court shall provide such a statement.
(8)Sanctions for Noncompliance. The court need not consider any motion or opposition that fails to comply with the requirements of this rule and may deny or grant a motion for summary judgment based on the failure of the moving party or the non-moving party to comply with this rule.

N.H. R. Super. Ct. 12

Amended Apr. 4, 2014, eff. May 1, 2014; amended October 18, 2017, eff. January 1, 2018; amended by Order dated July 13, 2018, eff. as of the date set forth in a subsequent order of this court implementing electronic filing in the superior court; amended effective July 1, 2019.

Comment

The third sentence of the first paragraph in Rule 12(e) derives from N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16 -A.