Note to 2007 Amendment:

The last sentence of Rule 40(b) establishes a minimum period of time following the joinder of a new party during which the action may not be called for trial without the consent of all parties. The 2007 amendment extends this period from 120 days to 180 days, and measures this period from the date the newly joined party is served with process, rather than the filing date of the pleading adding the new party. As before, the 180 day exclusion may be waived with the consent of all parties.

This Rule 40 is substantially a compendium of present Circuit Court Rules governing preparation of trial rosters, setting the order of cases for trial, and granting postponement or continuance. The Federal rule simply directs that the District Courts shall provide local rules on these matters. See also Rule 79 as to clerks of court maintaining calendars (File Book).

Note to 1986 Amendment:

The amendment to Rule 40(b)(2) permits the clerk to place actions on the appropriate trial roster 120 days after filing, and assures that counsel will have at least 120 days from the date of filing of the original summons and complaint, or the last pleading which brings in a new party, before the case can be tried so that there will be adequate time to prepare the case. Assertion of new claims between existing parties does not extend the time automatically.

Note to 1994 Amendment:

Rule 40 addresses problems in the scheduling of cases and substantially revises the way jury cases are called for trial. Previously, under Rule 40(b)(2) a case could not be called for trial for 120 days after it was filed or the last party was joined. This short period and the lack of specific procedures meant that attorneys could not predict accurately when a case would be called, and some were called without adequate notice or opportunity to complete discovery. Former Rule 40(c)(3) often was used to dismiss and refile many of these cases causing confusion in the docket and the status of those cases.

This rule addresses these problems and provides counsel an adequate time to prepare for trial, yet prevents unnecessary delay by fixing a time when the case must be placed on the Jury Roster. The rule has four parts. First, the rule sets the procedure for placing a case on the Jury Roster and provides a minimum period within which it cannot be called without the consent of the parties, and also a time when it must be scheduled for trial. Second, the rule establishes procedures for the call of cases on the Jury Roster during a term of court. Third, the rule provides that Priority Motions, those involving emergency matters, motions for scheduling orders and discovery motions, must be given precedence when hearings are scheduled. Prompt resolution of these motions speeds trial preparation. Fourth, the procedure in former Rule 40(c)(3) used to dismiss a case has been revised and limited.

Rule 40(a) establishes the dockets and rosters and describes how cases are filed initially. All cases are placed on the General Docket. Rule 40(b). Counsel must inform the clerk or the pleadings must state whether it is a jury or nonjury matter. Rule 40(a)(2). However, the time for demanding a jury remains governed by Rule 38. Jury cases remain on the General Docket until transferred by consent, Scheduling Order or expiration of time. Rule 40(b). Nonjury cases are transferred immediately to the Nonjury Docket. Rule 40(h). In the absence of a designation as jury or nonjury, the matter is placed on the Nonjury Docket, subject to a motion to transfer. Rule 40(a)(2). At any time the case can be transferred to the Jury Trial Roster with the consent of all parties.

The first major section is paragraphs (c)-(h) which governs the transfer of a case from the General Docket to the Jury Trial Roster. The rule divides the pre-trial period into three parts. Rule 40(d) governs the first year after the case is filed. During that period the case can be transferred only with the consent of all parties. Rule 40(c) and (d)(1). The rule, however, establishes a way to determine if the case may be transferred to the Jury Roster within a year of its being filed. Six months after the filing of the case any party may file and serve a Request for Transfer. A Response is mandatory within 10 days and a failure to do so is deemed consent to the transfer. Rule 40(d)(1). The Response to a Request to Transfer is either consent or an objection to the transfer. If objecting, a party must also state whether it consents to a transfer within a year of the case’s filing date. Therefore within 10 days of the Request to Transfer, the parties will have determined if the case can be immediately transferred, or transferred within a year of filing. If the parties consent but suggest different dates for transfer within the first year, the latest date controls. Rule 40(d)(2). The moving party notifies the clerk of court of the date of transfer. Rule 40(d)(1). A transfer made without consent or in violation of the rule may be challenged under Rule 40(g). If any party objects to a transfer on any date within the first year it remains on the General Docket. Rule 40(d)(1).

Rule 40(e) governs transfers between one year and eighteen months after the case is filed. A Request to Transfer filed during this period results either in a transfer to the Jury Trial Roster or a Scheduling Order issued by the Chief Judge for Administrative Purposes. In either event scheduling now comes under the control of the court. Any party may file a Request to Transfer after one year. Rule 40(e)(1). Only two responses are permitted. A consent to the transfer or a Request for a Scheduling Order. A failure to respond is deemed consent. If there is consent the moving party notifies the clerk and the case is transferred. Rule 40(e)(1). A transfer made without consent or in violation of the rule may be challenged by a motion to strike from the Jury Roster. Rule 40(g). If no party requests a transfer the case remains on the general docket and may not be transferred without the consent of all parties.

A Request for a Scheduling Order requires that each party file and serve within 10 days a Response to a Request for a Scheduling Order which is a detailed statement describing the status of the case so the court has enough information to set an appropriate time to place the case on the Jury Trial Roster. The Response to a Request for a Scheduling Order shall contain all matters that may be raised at a pre-trial hearing, all outstanding motions, the remaining discovery, all matters that affect the trial date, and the date on which the case will be ready for trial. The Request for a Scheduling Order is a Priority Matter and must be so designated on the motion. Rule 40(a)(2). Priority Matters are given precedence whenever motions and non-jury matters are scheduled. Rule 40(h). At the hearing on the Scheduling Order the Chief Judge for Administrative Purposes can set a date for the case to be transferred to the Jury Roster, set a date certain for trial, or set a date before which it cannot be called for trial. The Scheduling Order can be amended by any judge acting as Chief Administrative Judge to take into account subsequent developments.

After eighteen months every case is subject to the control of the court regardless of the actions of counsel. Rule 40(f) requires automatic transfer of any case which is not subject to a Scheduling Order, or has a pending motion for a Scheduling Order. The clerk should notify counsel of the transfer but publishing the Jury Trial Roster is deemed notice of the transfer.

Rule 40(b) is the second major section of the rule and governs the call of cases on the Jury Roster. The principal features of this paragraph are provisions providing adequate notice of when the case may be called for trial. Cases are called in the order in which they appear on the Jury Roster. But a case must be on the Jury Roster for 30 days before it may be called for trial. More importantly, the rule restricts the number of cases that are subject to trial on the first day of a term of court. The Jury Roster at the opening of the first day of the term of court fixes the number that may be immediately called. The first twenty cases on the Jury Trial Roster that, before the opening of that term of court, have not been dismissed, continued or otherwise resolved, may be called immediately. All cases after the first twenty require at least 24 hours before they may be called for trial. For each additional judge sitting in a term, another twenty cases are subject to immediate call. Once called the court may in its discretion grant a continuance as provided in Rule 40(i) which is the same as former Rule 40(b)(1) and (2). Or, a party may strike the case from the docket by agreement under Rule 40(j) which is more restrictive than the former Rule 40(c)(3).

The third major section of the Rule addresses motion practice to ensure that certain ones are promptly scheduled and resolved to prevent unnecessary delay in trial preparation. Rule 40(h) designates certain motions as priority matters including emergency matters, discovery motions and Requests for a Scheduling Order. Counsel must so designate those motions when filing them. Rule 40(a)(2). All motions are placed on the Nonjury Docket, and the Chief Judge and clerk of court must give the Priority Motions preference when scheduling the nonjury matters or setting motions for hearing at any other time. Counsel generally must give 10 days notice to opposing counsel of any motion, as in Rule 6(d) and 56(c), and once that period has expired, motions may be called at any time. Nonjury trials, however, may not be called for trial until 120 days after filing or the joinder of the last party to the action as is the current practice.

Rule 40(j) is the final section of the rule and substantially revises the procedure for dismissing a case previously found in Rule 40(c)(3). Rule 40(j) now requires all adverse parties to consent to the dismissal in writing, but, the consent also operates to toll the statute of limitations for one year after the case is stricken from the docket as to each consenting party. Any remaining portion of the statute of limitations begins to run one year after the case was stricken unless the case has previously been restored to the General Docket. A party moving to restore a case must give 10 days notice of the motion, and upon being restored the case is placed on the General Docket where it proceeds as a newly filed action on the General Docket. A case can also be dismissed voluntarily under Rule 41(a).

Note to 1998 Amendment:

This amendment added subsection (k) to the rule. It provides an alternative procedure for transferring a case to the jury roster and is based on a March 14, 1995 order of the South Carolina Supreme Court.

Note to 2001 Amendments:

Rule 40(d), (e)(1), (f), and (k) are amended to shorten the time period before cases move to the Jury Trial Roster.