Did you know that a defendant can move for summary judgment before filing an Answer?

Plaintiffs sued a bank to prevent foreclosure. The bank moved to dismiss; the trial court dismissed most of the Complaint’s 36 counts but not all of them. The bank did not file an Answer within twenty days of that ruling; instead it moved for summary judgment on the remaining counts. Plaintiffs applied for default. The trial court denied default and granted summary judgment

Plaintiffs argued that under Rule 12 a summary judgment does not extend the time to answer. The Court of Appeals affirms the trial court for two reasons.

First, “Rule 55(a) governs defaults, not Rule 12.” Rule 55 allows default when a defendant does not “plead or otherwise defend.” A summary judgment motion is not a pleading but qualifies as otherwise defending.

Second, “even if Rule 12 were relevant” summary judgment does indeed extend the time to answer. How? Because a motion to dismiss extends the time and can be converted to summary judgment. So, says the court (and manages to find some commentators on federal law to agree with it), there’s no reason not to treat a motion originally brought for summary judgment the same way.

The court seems to think it straightforward that a Rule 56 motion is a Rule 12 motion because a rule 12 motion can under some circumstances become a Rule 56 motion. One wonders why, if that’s what Rule 12 means, it doesn’t say so. Perhaps its drafters paid some attention to the structure of the procedures they were drafting, or perhaps they had in mind the complications – both procedural and substantive – that can arise from allowing pre-Answer summary judgment. In any event, it has now been allowed.

(link to opinion)

This little special action may seem unimportant but we think it a useful reminder of something.

Defendant’s Disclosure Statement attached an expert’s report explaining why a non-party was at fault. Defendant then filed its Notice of Non-Party at Fault; the Court of Appeals says it only “cursorily” described the non-party’s fault (though it was more extensive than many non-party notices we’ve seen and probably more than a few we’ve written). Defendant later disclosed another report from another expert again detailing the non-party’s fault.

Plaintiff then moved to strike the notice because it hadn’t sufficiently described the non-party’s fault. The trial court granted the motion. Defendant took special action.

Is anyone in doubt of the result? Jurisdiction accepted, relief granted. “When a notice specifically identifies a non-party at fault, and timely disclosures explain the factual basis for the allegation of fault, the documents must be read together.”

You may wonder how a trial judge with any concept of civil discovery could grant such a motion. That’s the reminder: many don’t have any (although we don’t mean to draw conclusions about this particular judge). The trial bench is filling up with people whose sole or primary practice experience (to the extent they had much at all) was with criminal law. Expect more of this sort of ruling.

(link to opinion)

This case discusses the relationship between Rule 68 (offer of judgment) and Rule 77f (appeal from arbitration – the 23% rule) in a case where the numbers were just right to tangle them.

Plaintiff sued for personal injury (car accident). Defendant made an offer of judgment. At arbitration Plaintiff beat it. Defendant appealed. The jury award was below the OJ, so the court awarded Defendant some costs (Rule 68g), but was not more that 23% greater than the arbitration award, so the court ordered her to pay fees (Rule 77f).

Defendant argued that the court should have applied Rule 68 first, deducting those costs from the amount of the verdict before comparing it to the arbitration award. Had it done so, she would have done more than 23% better and wouldn’t have had to pay fees.

The court looks to the language of Rule 68:”the determination . . . shall be made by reference to the judgment ultimately entered, whether on the award . . . or after an appeal of the award pursuant to Rule 77. This language, says the court, “provides that the court shall determine whether to impose a sanction under Rule 68(g) only after first complying with Rule 77.“ But the language doesn’t’ say anything about what the court does, it just says that there can be an appeal. So the court also cites Hales (App. 1996), a Rule 68 case that talks about making “apples to apples” comparisons by including costs in both the OJ and the judgment. The court apparently realizes that this doesn’t hit the nail on the head either, though, by roping in an Oregon appellate case for the proposition that “the amount of any sanction awarded . . . is not to be regarded as part of the judgment.”

The court chides Defendant for not citing any authority for her position. That’s a bit much. If there were decent authority on the point outside the rules themselves (Hales is tangential at best) then the court wouldn’t have had to reach to Oregon for some. If there were already authority, this opinion wouldn’t be publishable.

(link to opinion)