Bench & Bar

JUL 2015

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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19 B&B; • 7.15 the Court orders otherwise." Thus, while CR 5.06 is consis- tent with FRCP 5(d) (similarly forbidding the filing of certain discovery materials), this is an instance where the local rules must be consulted. The prac- tice varies widely among circuit courts in Kentucky, and CR 5.06 allows this to be decided by each court as a matter of local practice. CR 6 – Computation of Time The federal and state rules dif- fer slightly in the computation of certain filing deadlines. When it matters, it really mat- ters. Count carefully every time under the set of rules that is ap- plicable, never assuming you would reach the same date un- der the other rulebook. CR 7 – Pleadings and Motions The forms of pleadings recog- nized in both courts are the same, with Kentucky's rule specifically forbidding demur- rers in modern practice. CR 7.02(3). Federal court requires early disclosure statements by corporations to avoid the situa- tion of a judge learning later in the case, perhaps, that a con- flict of interest based on his or her indirect stock ownership might exist. FRCP 7.1. CR 7.03 contains express proto- cols for protecting sensitive personal data in any filing and requires redaction of social se- curity numbers and other infor- mation. Failure to comply may result in sanctions as set forth in CR 7.03(7). CR 8 – General Rules of Plead- ings CR 8.01(1) and FRCP 8(a) re- main substantively identical on the written page of the rule books. The development of federal case law, however, re- quiring a plausible claim to be stated under Iqbal and Twomb- ley, 5 is so important that a sep- arate article is included in this issue devoted to pleading prac- tice under rules 8 and 12. CR 8.01(2) forbidding the pleading of a sum certain for unliquidated damages has no federal counterpart. Close at- tention should be paid to the obligation of a claimant to specify the amount by answer to interrogatories. While sup- plementation may be allowed where there is no prejudice, it could well be denied, especial- ly in cases where the opposing party is indeed prejudiced by not knowing how to value the case for settlement or trial. CR 9 – Pleading Special Matters Kentucky's rule remains sub- stantially the same as the feder- al version. Both require plead- ing of fraud to be "with particu- larity." FRCP 9(h) includes admi- ralty and maritime claims for which, of course, there is no state counterpart. CR 11 – Signing and Sanctions The state and federal versions are procedurally very different, and particular attention should be given to these points: 1) The federal rule provides for a "safe harbor" of 21 days after notice is given of an alleged vi- olation. To facilitate this, a mo- tion for sanctions may be served but not filed if the chal- lenged action is withdrawn or corrected in the 21-day period. 2) Kentucky's rule directs that the trial court "shall postpone ruling on any Rule 11 motion" until after entry of a final judg- ment. In substance, the rules remain similar, requiring the signature of an attorney of record (or by the party directly, if unrepre- sented) on every document filed with the court and manda- tory provisions for striking un- signed papers. What that sig- nature means, in terms of "cer- tification" under CR 11 or "rep- resentations to the Court" un- der FRCP 11, is also similar, al- though the federal rule specifi- cally allows for factual con- tentions that are "specifically identified" to be made with the belief that they "will likely have evidentiary support after a rea- sonable opportunity" for dis- covery and investigation. This allows the practice of good- faith pleading "upon informa- tion and belief" to continue. CR 12 – Pleading Defenses/ Motion Practice Although CR 12 and FRCP 12 remain similar in many ways, the development of federal practice post-Iqbal, supra, now mandates consideration of whether a federal pleading states a plausible claim. 6 Whether Kentucky will follow this development under rules 8 and 12 has not yet been deter- mined. Compare, for example, Data Key Partners v. Permira Advisers, LLC, 7 in which Wis- consin adopted the plausibility standard, with Walsh v. US Bank, N.A., 8 in which Minneso- ta rejected it. The time for responsive plead- ings is 20 days under CR 12, and 21 days under FRCP 12. The denial of a dispositive mo- tion postpones the responsive pleading until 10 days after de- nial in state court and 14 days after denial in federal court. CR 14 – Third-Party Practice CR 14.01 requires a defendant in state court to move for leave to bring in a third-party defen- dant. By contrast, FRCP 14(a) allows a defendant to bring in a third party as a matter of right without the need to file any motion, so long as the third- party summons and complaint are filed within 14 days of the defendant's answer. If more than 14 days have passed, leave must also be sought in federal court. Both rules permit a plaintiff who is defending a counterclaim to also make a third-party claim, but CR 14.02 appears, again, to contemplate leave of court whereas FRCP 14(b) specially allows the plain- tiff to "bring in a third party." CR 14.03 addresses bond is- sues, for which there is no fed- eral counterpart; FRCP 14(c) addresses admiralty and mar- itime claims, for which there is no state counterpart. Both rules allow for an impleaded party to, in turn, engage in further third-party practice but, again, the state rule appears to con- template that leave of court will be sought in every instance. CR 15 – Amended and Supple- mental Pleadings With slight (but crucial) differ- ences in the deadlines for do- ing so, both sets of rules allow for amended and supplemental pleadings. Both rules still frame the standard for allowing later amendments (if the time for amendment as a matter of right has passed) as "when justice so requires." 9 Both state and fed- eral courts recognize a futility exception by case law. 10 CR 16 – Pretrial Case Management FRCP 16 is lengthier and more detailed, but both versions deal essentially with case manage- ment. Kentucky law recognizes that a court has inherent au- thority to control and manage its docket. 11 Thus, everything specified in the federal rule should be available for the state court's consideration as well. Whether a Kentucky court may use its CR 37 sanction power under CR 16, which is authorized by FRCP 16(f)(1), has not been expressly decided in Kentucky. The inherent power of a court to control the pro- ceedings before it is not unlim- ited. 12 But the "law is well set- tled that the parties are bound by a pretrial order." 13 Thus, if an order follows and confirms the state court's CR 16 scheduling conference, CR 37.02 relief would appear to be available in state court, just as it is in federal court, despite the difference in the language of these rules.

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