By Andrew R. Weiner
Recent amendments to Superior Court Rule 9A significantly change the procedure for filing and opposing summary judgment motions, and also increase the role of e-mail and word-processing technology with respect to civil motion practice generally.
While the amendments, which went into effect on March 2, apply to all civil motions filed in Superior Court, the most significant departure from prior practice concerns summary judgment motions.
Specifically, under the amended version of Rule 9A(b)(5), contemporaneous with the service by mail of a summary judgment motion, the moving party is now required to e-mail all parties "against whom summary judgment is sought" an electronic version of the moving party's statement of undisputed material facts in Rich Text Format (RTF), unless the parties agree to use another word-processing format.
The requirement that the moving party circulate the statement of undisputed material facts via e-mail is excused only if: (1) the moving party or any opposing party is appearing pro se; (2) the attorney for the moving party certifies in an affidavit that he does not have access to e-mail; or (3) the attorney for the moving party certifies in an affidavit that an opposing party's attorney has no e-mail address or has not disclosed his e-mail address.
A party opposing a motion for summary judgment is now required to respond to the moving party's statement of undisputed material facts within the moving party's pleading itself.
Under the previous version of Rule 9A, the opposing party would prepare a separate pleading setting forth its response to each numbered paragraph in the moving party's statement of undisputed material facts.
As a result, a judge deciding the motion would previously have had to refer to two (or more) separate documents in order determine the parties' respective positions on the material facts at issue in the case.
Now, under the amended version of Rule 9A(b)(5)(ii), "[t]o permit the court to have in hand a single document containing the parties' positions as to material facts in easily comprehensible form," a party opposing a summary judgment motion is required to reprint the moving party's statement of material facts and state below the appropriate numbered paragraph its response to each of the moving party's material facts.
As with the previous version of Rule 9A, a party opposing summary judgment may submit a statement of additional material facts in its response to the moving party's statement of undisputed facts.
However, under the amended rule, the opposing party's statement of additional material facts must be set forth under a separate heading (within the same document), immediately after its response to the moving party's statement of material facts.
The opposing party must e-mail back to the moving party the entire Rule 9A statement, which would be comprised of the moving party's statement of undisputed facts, the opposing party's response, as well as the opposing party's statement of additional material facts, if any. The moving party has 21 days to respond to any additional material facts asserted by the opposing party.
The end result is a single document for the judge's consideration setting forth each party's position on the material facts.
Interestingly, the amended version of Rule 9A has done away with the requirement of submitting a statement of the legal elements applicable to a summary judgment motion.
Under the prior version of the rule, a party moving for summary judgment had to include in its statement of undisputed material facts a statement of the legal elements, with citations to supporting law, of each claim upon which summary judgment was sought.
If the party opposing summary judgment disagreed with the moving party's statement of legal elements, then it was obligated to include its own statement of legal elements in its response to the moving party's statement.
In an effort to facilitate the exchange of pleadings between counsel electronically, the amended Rule 9A(a)(6) provides that "[e]ach party or attorney filing motion or opposition papers shall include his or her email address on the papers, unless he or she does not have an email address."
Significantly, the requirement that an attorney list an e-mail address within the pleading applies to all civil motions and oppositions, and not just summary judgment motions.
A judge "need not consider any motion or opposition" that fails to comply with any of the requirements set forth in the amended Rule 9A, according to Rule 9A(b)(6).
By way of example, if an attorney has an e-mail address but does not list that e-mail address in his motion papers, then a judge could deny the motion outright without reaching the merits.
In light of these important changes in motion practice, civil litigators practicing in Superior Court should familiarize themselves with all of the recent changes to Rule 9A, including the increased role of e-mail and word-processing technology.
Andrew R. Weiner is a civil litigator in the Boston office of Taylor, Duane, Barton & Gilman. His practice focuses on business litigation, employment law and insurance coverage issues. He can be contacted at aweiner@taylorduane.com.
May 18, 2009
