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Rule 80.11 – Procedure in Expedited Actions

May 14, 2021 | Civil Procedure, Vermont

(a)Applicability.

(1)Designation. A civil action will proceed as an expedited action under this rule when

(A) The complaint expressly designates the case as an expedited action and seeks only money damages not exceeding a total of $50,000, exclusive of interest, attorney’s fees, and costs; or
(B) All parties to the action file a joint stipulation that the action will be designated as an expedited action; or
(C) The court, on the motion of a party, finds that designation of the action as an expedited action will serve the interests of the parties and the court in its just, speedy, and inexpensive determination.
(2)Waiver. Unless the parties have stipulated otherwise:

(A) Any plaintiff bringing a claim pursuant to subparagraph (a)(l)(A) of this rule waives the right to recover any judgment exceeding a total of $50,000, exclusive of interest, attorney’s fees, and costs.
(B) Except as provided in (C), the filer of a counterclaim, cross-claim, or third-party claim in an action designated as expedited under paragraph (l) waives the right to recover any judgment exceeding a total of $50,000, exclusive of interest, attorney’s fees, and costs.
(C) Any party to an action designated as expedited under paragraph (l) who seeks to recover, by counterclaim, cross-claim or third-party claim, damages exceeding a total of $50,000, exclusive of interest, attorney’s fees, and costs, or nonmonetary relief, must file and serve with that party’s pleading a request that the action no longer be so designated. The judge shall then strike the “expedited” designation, and the action shall proceed as an ordinary civil action under the Vermont Rules of Civil Procedure.
(3)Identification in Filings. When an action is designated as an expedited action, it shall be clearly identified in the caption of all subsequent filings as an “EXPEDITED ACTION.”
(4) At any time on motion of a party in an action that has been designated as an expedited action under paragraph (1), the court, on a showing of good cause, may order that the action will no longer be so designated and will proceed as an ordinary civil action under the Vermont Rules of Civil Procedure.
(5) The Vermont Rules of Civil Procedure apply to actions under this rule except as otherwise provided in the rule or when inconsistent with its provisions.
(6) Any deadline or limitation stated in this rule may be eliminated or extended by the court on a showing of good cause. Any motion seeking to extend any deadline or limitation made after the expiration of the specified period must establish that the failure to act was the result of excusable neglect.
(b)Scheduling Conference. Unless the parties file a stipulation on a form to be provided by the Court Administrator as to the matters enumerated in V.R.C.P. 16.2(i)-(v) and a certificate and report or stipulation as to the scheduling of mediation under subdivision Cd) of this rule, the court shall hold a scheduling conference within 21 days after the filing of the last answer to consider those matters and shall issue a scheduling order as provided in V.R.C.P. 16.2.
(c)Motions. Motions may be filed for all purposes, and in the manner, provided in the Rules of Civil Procedure, except that:

(1) A memorandum in support of or opposition to a motion may not exceed 3000 words, and a reply memorandum may not exceed 1500 words. The memorandum must include a statement by the attorney, or self-represented party, certifying that it complies with the wordcount limit. The person preparing the certificate may rely on the word count of the wordprocessing system used to prepare the memorandum. The certificate must state the number of words in the memorandum and identify the word-processing system used.
(2) A party filing a nondispositive motion must certify that the party has made a good faith attempt to obtain the opposing party’s agreement to the requested relief. If obtained, the statement of agreement must be in the body of the motion, and the word “Stipulated” must be in the document caption.
(d)Mediation. Unless the parties have filed a certificate and report of voluntary mediation as provided in V.R.C.P. 16.3(a)(2)(B), they must undertake mediation in the manner provided in V.R.C.P. 16.3, except that:

(1) Scheduling of the mediation proceeding must take place within 21 days after the filing of the last answer.
(2) The mediation proceeding must be completed within 90 days after the filing of the last answer unless the court extends the date on motion of a party.
(3) The mediation proceeding shall not last more than 6 hours unless the parties agree to extend the time.
(4) The cost of mediation must be divided equally among the pmiies except as otherwise provided in V.R.C.P. Rule 16.3(c)(1). If one or both parties are unable to pay, the court shall determine whether mediation is required.
(e)Discovery. Discovery may be had as provided in V.R.C.P. 26–37, except as provided in this subdivision.

(1)Timing of Discovery. All discovery other than expert disclosures under paragraph (3) must be completed within 180 days after the filing of the last answer.
(2)Initial Disclosures. A party shall, within 30 days after the filing of the last answer, and without waiting for a discovery request, provide to the other parties:

(A) The name and, if known, address, telephone number, and email address, of each individual likely to have discoverable information regarding the claims and defenses asserted, and a statement identifying the subjects of information, unless the use of the information would be solely for impeachment;
(B) A copy of each document, data compilation, and tangible thing and all electronically stored information in the possession or control of the disclosing party which may be used in the party’s case in chief, unless the use of the information would be solely for impeachment;
(C) A copy of each document referenced in the party’s pleadings;
(D) A computation of any damages claimed by the party and a copy of all discoverable documents or evidentiary material on which such computation is based, including materials about the nature and extent of the injuries suffered; and
(E) A copy of any agreement under which any other person or entity may be liable to satisfy part or all of a judgment or to indemnify or reimburse for payments made to satisfy the judgment.
(3)Disclosure ofRetained Expert Testimony.

(A)Disclosures. A party shall, without waiting for a discovery request, disclose the identity of any retained expert witness it may use at trial to present evidence under V.R.E. 702. This disclosure must be accompanied by a written report including:

(i) the expert’s name and qualifications, including a list of all publications authored within the preceding ten years, and a list of any other cases in which the expert has testified as an expert within the preceding four years;
(ii) a brief summary of the opinions to which the expert is expected to testify;
(iii) all data and other information that will be relied upon by the witness in forming those opinions; and
(iv) the compensation to be paid to the witness.
(B)Timing. The party who bears the burden of proof on the issue for which expert testimony is offered shall provide the information required in subparagraph (3)(A) within 14 days after the close of fact discovery. If expert testimony is intended solely to rebut or contradict an expert disclosed by another party, the rebuttal expert shall be disclosed within 14 days after the deposition of the other party’s expert.
(4)Limits on Discovery.

(A)Interrogatories under V.RC.P. 33. Each party may serve on any other party no more than 15 written interrogatories, including all discrete subparts.
(B)Requests to Produce. The parties shall be limited to 15 Requests for Production under V.R.C.P. 34, including all discrete subparts.
(C)Requests for Admission. The parties shall be limited to 15 Requests for Admission under V.R.C.P. 36, including all discrete subparts.
(D)Depositions. The parties shall be limited to a total of 15 hours each for oral depositions of parties and fact witnesses under V.RC.P. 30.
(E)Depositions of Experts. An expert may be deposed under V.RC.P. 26(b)(4) within thirty days after being disclosed. A deposition of an expert shall last no more than three hours.
(5)Additional Discovery.

(A)Stipulation. The parties may stipulate to additional discovery within the deadlines established by this rule or by the court
(B)Motion. The court may grant additional discovery pursuant to paragraph (a)(6).
(f) Trial Readiness; Pretrial Conference.

(1)Timeframe. Every action under this rule shall be ready for trial within 270 days after the filing of the last answer unless the court grants an extension for good cause on motion filed before the deadline.
(2)Pretrial Conference. When the action is ready for trial, the court will hold a pretrial conference to set or confirm the trial date, specify the issues to be tried, determine the number of days required for trial, and address any other matters pertaining to trial raised by the parties or the court.
(3)Pretrial Disclosures. Not later than 14 days prior to trial, the parties shall exchange witness and exhibit lists, including a marked copy of each exhibit that may be used at trial. Unless good cause is shown, failure to adhere to this requirement shall result in preclusion of the witness or exhibit. Objections to the proffered witnesses and exhibits, including the grounds therefor, shall be filed seven days prior to trial.
(g)Effective Date. This rule applies to cases filed after its effective date. Parties to a case pending at the time this rule becomes effective may opt in to its provisions by stipulation.

Vt. R. Civ. P. 80.11

Adopted June 15, 2017, eff. Aug. 15, 2016; amended July 1, 2016, eff. Sept. 12, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Order Continuing Addition of Rule 80.11 to the Vermont Rules of Civil Procedure

PROMULGATED VRCP 80.11.pdf

This Order was promulgated April 30, 2018; effective immediately. Rule 80.11 of the Vermont Rules of Civil Procedure added on June 15, 2016, and amended on July 11, 2016, has been continued, and the sunset date of August 16, 2019 set in the Court’s order of June 15, 2016 is void. The Advisory Committee on the Rules of Civil Procedure has been directed to continue to review the operation of this rule and to advise the Court not later than August 31, 2021, whether the rule should be further revised or made permanent. It the absence of further order, the rule will be void and of no further effect in any civil action commenced after August 31, 2022.

Reporter’s Notes-2018 Amendment

Rule 80.11(e)(3)(B) is amended to change its 15-day time period to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes-2016 Amendment

Rule 80.11 as added June 15, effective August 15,2016, is amended to reflect the abrogation and replacement ofV.R.C.P. 16.3. New Rule 16.3 significantly simplifies the procedure of the former rule and provides only for mediation, rather than for a variety of alternative dispute resolution methods. The present amendments are intended to reflect those changes by substituting “mediation” for “alternative dispute resolution” wherever it appears and replacing cross-references to former Rule 16.3 with references to the appropriate provisions of the new rule.

For clarity and convenience, the paragraph of the original Reporters Notes to V.R.C.P. 80.11 referring to “ADR” under former Rule 16.3 is repeated here with references corrected to substitute “mediation” for the former term and correct cross-references:

Unless the parties stipulate as to the matters listed in V.R.C.P. 16.2 and the provisions of Rule 80.11(d) for scheduling mediation, Rule 80.11(b) requires a scheduling conference and scheduling order early in the case to address those matters. Under Rule 80.11(c), there are important limitations on motion practice, including a requirement that the party filing a nondispositive motion must certify that the party has made a good faith attempt to obtain the opposing party’s agreement to the requested relief. Rule 80.11(d) requires parties who have not voluntarily undertaken mediation to engage in mediation in accordance with V.R.C.P. 16.3 but on a tight schedule and under other limitations. Paragraph (d)(4) requires the court to make a specific determination as to whether to require mediation if either or both parties cannot pay its cost.

Reporter’s Notes

Rule 80.11 is added to address the widely recognized problem that the cost and time needed to litigate civil claims are often disproportionate to the value of the cases. Currently, simple nonmonetary claims and any case exceeding the small claims threshold of $5000 must be brought as a civil action under the Vermont Rules of Civil Procedure. As a result, the pursuit of potentially meritorious claims and defenses may be discouraged because of the cost entailed, or litigants may represent themselves-a course that is ineffective and imposes significant costs on opposing parties and court resources.

The new rule is designed to provide an effective, efficient, and predictable case management process for lower-value or lesscomplicated cases. Its intent is to make it economically feasible for lawyers to take on these cases and for litigants to be able to afford to hire lawyers. Rule 80.11 will also result in the more efficient conduct of litigation in cases where litigants are self-represented or have limited representation under V.R.C.P. 79.1(h). Making representation both more economical and less time-consuming will increase access to justice.

The rule was developed by a committee of the Vermont Bar Association (VBA) working in conjunction with the Civil Division Oversight Committee and the Court’s Advisory Committee on the Rules of Civil Procedure. After an initial comment period and public presentation at the fall 2014 VBA meeting, a draft rule, revised by the VBA committee on the basis of extensive comments received, was sent out for comment at the request of the Court’s Advisory Committee on Rules of Civil Procedure. The present rule incorporates further changes resulting from review by the Advisory Committee after the second comment period. With the adoption of Rule 80.11, Vermont will join several federal district courts and the courts of a number of other states that have developed rules to expedite procedures in less-complicated civil cases. See Inst. for the Advancement of the Am. Legal Sys., A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country (2015) http://iaals.du.edu/sites/default/files/documents/publications/summary chart of CUlTent sse programs.pdf [https://perma.ccIN56V-C4C5].

Rule 80.11(a) (1 )(A) provides that the expedited procedures apply when a case is expressly designated as an “expedited action” in a complaint alleging that no more than $50,000 is in controversy, exclusive of interest, costs, and attorney’s fees. Subparagraph (B) allows the parties to agree that an action will be commenced and calTied on as an expedited action regardless of the amount in controversy, or to agree that an action commenced under the ordinary provisions of the rules may subsequently be designated and calTied on as expedited. Subparagraph (C) allows the court, on any party’s motion, to designate an action as expedited regardless of the amount in controversy if designation will advance “the just, speedy, and inexpensive determination” standard ofV.R.C.P. 1.

Rule 80.11(a)(2)(A) provides that a plaintiff, by filing an action designated as expedited, waives recovery of any damages in excess of $50,000. Subparagraph (B) makes similar provision for the filer of a counterclaim, cross-claim, or third-party claim in response to an expedited filing, subject to the provision of subparagraph (C) that if the filer of an ancillary claim, seeking relief beyond that allowed for application of the rule, so requests in the pleading, the judge will strike the expedited action designation and the action will proceed as an ordinary civil action.

Rule 80.11(a)(3) requires that all filings subsequent to designation, whenever and however it occurs, must be clearly labeled “EXPEDITED ACTION.”

Paragraph (4) allows the court on motion to remove the action from the expedited process on a showing of good cause-for example that more than $50,000 is in controversy and there is no contrary showing of need for the expeditious process pursuant to subparagraph (1 )(C), or that there is a demonstrable need for procedural steps not permitted by other provisions of Rule 80.11. Note that paragraph (6) provides that the comi, for good cause, may make exceptions to deadlines or other limits provided in the rule, subject to a showing of need based on excusable neglect if the request is made after the deadline. See also Rule 80.11(e)(5) (stipulation or motion for additional discovery). These provisions may address specific concerns that might otherwise require removal of the action from expedited status.

Rule 80.11(a)(5) provides that the general provisions of the Civil Rules apply to expedited actions unless otherwise provided in, or inconsistent with the rule; however, careful attention should be paid to the significant differences in key procedural areas.

Unless the parties stipulate as to the matters listed in V.R.C.P. 16.2 and the provisions of Rule 80.11(d) for scheduling ADR, Rule 80.11(b) requires a scheduling conference and scheduling order early in the case to address those matters. Under Rule 80.11(c), there are important limitations on motion practice, including a requirement that the party filing a nondispositive motion must certify that the party has made a good faith attempt to obtain the opposing party’s agreement to the requested relief. Rule 80.11(d) requires parties who have not voluntarily undertaken ADR to engage in ADR in accordance with V.R.C.P. 16.3 but on a tight schedule and under other limitations. Paragraph (d)(4) requires the court to make a specific determination as to whether to require ADR if either or both parties cannot pay its cost.

Rule 80.11(e) imposes significant limits on discovery to minimize its time and cost. Under Rule 80.11(e)(1), all discovery except of retained experts must be completed within 180 days after the last answer is filed. Paragraph (2) requires that initial disclosures like those required under the federal rules must be made within 30 days after the last answer is filed. Similarly, under paragraph (3), automatic disclosures ofthe identity of retained experts and the substance of their testimony are required. Rule 80.11(e)(4) provides limits on specific forms of discovery: The parties are limited to 15 Rule 33 interrogatories, 15 Rule 34 requests to produce, and 15 Rule 36 requests for admission in each case including discrete subparts. Oral depositions other than of experts are limited to 15 hours total for each party. Expert depositions may be taken within 30 days after disclosure and are limited to three hours each. Rule 80.11(e)(5)(A) allows stipulations for additional discovery within existing deadlines. Under subparagraph (B), the court may extend deadlines or other limitations on additional discovery for good cause as provided in Rule 80.11(a)(6).

The foregoing provisions expediting all aspects of pretrial procedure culminate in the requirement of Rule 80.11(f)(1) that all cases must be ready for trial within nine months of the time the answer is filed. Once a case is ready, further provisions of subdivision (f) expedite the trial itself, requiring a pretrial conference covering issues pertaining to trial and mandating the exchange of witness and exhibit lists and copies of exhibits under penalty of preclusion of a witness or exhibit. Objections must be filed seven days prior to trial.

Rule 80.11(g) provides that the rule applies to all cases filed after its effective date and that parties to cases pending on that date may jointly stipulate that their cases may go forward under the rule. See subparagraph (a)(1)(B).