Changing Rule 81

March 15, 2019 § 5 Comments

As I did last month, I invite your comments and suggestions as to how MRCP 81 might be amended to improve its performance. Or maybe you think it’s fine as is. Please comment and let me know your thoughts.

The MSSC Advisory Committee on Civil Rules is combing through the MRCP to suggest amendments. Your thoughts as practitioners and judges will be helpful in the process.

§ 5 Responses to Changing Rule 81

  • R. Michael Bolen says:

    Pursuant to Rule 81 (d)(2), certain enumerated actions including contempt, “shall be triable 7 days after completion of service of process” in any manner. . . I see no need to serve a Rule 81 summons on a party for a contempt action that is filed after entry of the order on temporary features, but before the final judgment is entered. The parties are already before the court and the court has jurisdiction of the parties. The defendant has already been served with a Rule 4 summons and a Rule 81 summons for the hearing on temporary features. The parties are likely represented by attorneys. The better procedure is to file the motion, serve it on counsel opposite and obtain a hearing date. The issue I encountered was the deadbeat defendant avoided service for about six weeks before the process server could corner him.

  • Pieter T says:

    Both Mr. Kieronskil and Mr. West raise valid points. Agreeing with Mr. K, the major problem with Rule 81 is a lack of reading; the bar exam used to test on it, but not recently. Mr. W raises some merit on the 30 days issue and expense, though I disagree that Rule 4 alone would suffice. The uninque character of particular (though not all) matters in chancery necessitates someting other than Rule 4. And don’t forget the beauty of 81(g)!

    My two cents, for which there may be change is: simplify the matters subject to Rule 81(d) (thus addressing part of Mr. W’s concern); eliminate 81(e) (this was more important three or four decades ago than today). Mr. K, if we figure out the solution to the lack of lawyers reading, then we should corner the market.

    On another note, there are Rules other than 81 which produce much greater headache such as Rule 56 allowing for affidavits until the day before a hearing, but the UCCCR attempting to limit that to 10 days after a motion is filed. The Advisory Committee might also want to address the often seen but where-in-the Rules(?) “Motion to Reconsider”, etc.

    Apologize for th long post; been a long week.

  • William W. Smith says:

    I think Rule 81 works fine as is and see no need for change.

  • Joseph Kieronski says:

    Rule 81 has been around for nearly 40 years and problem that I see arise is many attorneys do not read it on a consistent basis. I think it works just fine as it is.

  • Jay Westfaul says:

    Having to set a hearing for the 30 day matters is a complete waste of time and is expensive. Rule 4 would suffice just fine. I would limit Rule 81 matters to emergencies.

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