Major Changes to Superior Court Motion Practice

by Victoria Fuller

Practice Tips

Superior Court Rule 9A was amended effective November 1, 2018.  Although the Rule has been amended several times in the last few years, the most recent changes are big.  Really big.  Everything from cross-motions to summary judgment to basic formatting have been revised.  Superior Court practitioners who fail to familiarize themselves with these changes risk having motions returned or denied.

Summary Judgment Packages Get Leaner

The biggest change to Rule 9A affects summary judgment procedure.  These changes are geared to slimming down filings and simplifying the issues before the Court.  First, the Statement of Facts, as served, cannot exceed 20 pages, and cannot include several types of facts:

1. Immaterial Background facts;
2. Quotations from, or characterizations of, transactional documents (“except if admissible through percipient witnesses”); and
3. Quotations from statutes, regulations or rules.

Parties may submit these types of material, without argument or commentary, in an addendum to the party’s memorandum.

Second, the rule limits the permissible scope of responses to the Statement of Facts by prohibiting some common responses that have complicated the Court’s ability to determine what facts are actually disputed in good faith.  Opposing parties may state whether a fact is disputed, and if so, cite supporting record evidence.  They may not, however:

1. Deny a fact, or state that a fact is not supported by the cited materials, without a good faith basis;
2. Comment on whether the fact is relevant or material. The opposing party may, however, state that the fact is admitted solely for purposes of summary judgment;
3. Assert additional facts; or
4. Include legal argument or advocacy concerning the sufficiency, relevance or materiality of the fact.

Third, opposing parties are no longer permitted to serve Statements of Additional Facts, except in support of a cross-motion for summary judgment.  They may, however, include additional facts in their opposition with supporting record citations.  The rule also directs the parties to cite both the joint appendix exhibit number and the corresponding paragraph in the Statement of Facts in their memoranda.

In addition, three types of summary judgment motions may now be denied by the Court on the papers:

1. Multiple motions made by the same party, or a motion filed by a party sharing similar interests with a party who has already moved for summary judgment, which raises issues previously resolved by the Court;
2. Motions for partial summary judgment that will save little to no trial time, will not simplify trial, or will not promote resolution of the case; and
3. Motions where a genuine dispute of material fact is obvious.

Finally, the rule has updated sanctions for non-compliance with the summary judgment provisions.  The court may not consider the motion or opposition, may return the submission to counsel with instructions for re-filing, or may impose other sanctions for flagrant violations.

Cross-Motions Are Integrated Into a Single Filing Package

The rule has now filled a procedural gap affecting cross-motions.  For example, if a party serves a motion to compel, and the opposing party serves an opposition and a cross-motion for protective order: Under the old rule, the cross-motion was not required to be included in the same 9A package.  As a consequence, the motion to compel could be filed and heard before briefing on the cross motion was complete.

Under the new rule, opposing parties serve cross-motions with their opposition to the original motion.  The original moving party then serves the reply (if any) and opposition to the cross-motion.  The original moving party files both motions and oppositions as part of the same 9A package.

Cross-motions for summary judgment generally follow the same process, but in addition, a Consolidated Statement of Facts is prepared.

Parties Must Now Confer on Dispositive Motions

The new Rules 9A and 9C extend meet and confer obligations to dispositive motions (with limited exceptions).  Motions lacking a 9C certificate under the new rule, as under the old, will be denied without prejudice.

New Procedure for Requesting Leave

Parties must still seek leave to file additional briefing and pages, which will be granted only in “exceptional circumstances.”

Rule 9A(a)(6) also sets forth a new procedure for requesting leave.  Letter requests are gone.  Now, requests must be captioned as a pleading, not exceed one page, state the grounds for the relief sought, and include a certificate of service.  The request is sent to the session clerk, captioned “ATTN: Session Judge.”  If the Court grants a request for additional pages, this will apply to the opposing party’s memorandum as well, unless otherwise ordered. The permitted pleading must state the date on which leave was allowed.  Note that a request for leave does not extend the date for filing the Rule 9A package, unless permitted by Court or by agreement of the parties.

Formatting Changes

Under the old rule, papers had to be typed in “no less than 12-point type.”  Now, papers must be 12-point type – no more, no less.  In addition, quotes and footnotes must also be 12-point type. An addendum that sets forth “verbatim and without argument, pertinent excerpts from key documents, statutes, regulations or the like” need not be included in counting permitted pages.

Finally, email addresses must be included in the signature block or the attorney must certify that he or she lacks one.

Service on Non-Parties Now Required In Limited Circumstances

Unless excused by court order, or where ex parte relief is authorized by statute or rule, the new rule requires service on non-parties under three circumstances:

1. the motion seeks to add the non-party as a party to the case;
2. the motion seeks an order or other relief against the non-party; or
3. the motion addresses issues which affect the personal information or other interests of the non-party.

Electronic Service Now Permitted

Many practitioners will rejoice that email service is now permitted.  The parties must agree in writing, and parties must include “served via email” on their filings for the clerk to accept scanned signatures.  That said, parties filing papers signed under the penalties of perjury, such as affidavits, and all required 9A certifications, must bear original signatures.

Motions Exempt from Rule 9A

Finally, the new Rule 9A adds two categories of motions as exempt: motions governed by e-filing rules, and review of decisions of administrative agencies.

The new rule also seeks to prevent parties from trying to skirt Rule 9A by declaring a motion an “emergency.”  Now, parties filing emergency motions must certify that they have made a good faith effort to confer with all parties, and must state whether any party assents to or opposes the motion.

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Though extensive, these changes should streamline and improve Superior Court motion practice.  Prudent practitioners will ensure that they, and other attorneys in their firm or organization, familiarize themselves, and comply, with the new rule.

R. Victoria Fuller is an attorney in the Boston office of White and Williams LLP.  Her practice focuses on insurance law, employment law, and general commercial litigation.