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.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
18 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N While Kentucky's Rules of Civil Proce- dure were patterned very close- ly upon the federal rules then in effect, the current ver- sions are not identical and some of their modern differences can be sig- nificant. 1 This article provides an overview of some of the most important current differ- ences between those rules. Other articles in this same issue will focus in greater detail on a few specific rules. Where the rules are substan- tively the same, federal cases interpreting them will often be considered by Kentucky courts interpreting Kentucky's state rules. 2 But it is the differences that can make us stumble. Here, in the order of their appearance (and by primary reference to Ken- tucky rules), are a few places where it is particularly impor- tant to ask: am I in federal court or state court? CR 3 - Commencement of Action While both the state and feder- al rules provide that a civil ac- tion is commenced with the fil- ing of a complaint, Kentucky's rule adds "and the issuance of a summons or warning order herein in good faith." This can be crucial in cases involving statutes of limitations. 3 While the filing of just a complaint in feder- al court might be enough to beat the limitations dead- line, additional steps – issuance and service of a summons – can be critical un- der Kentucky law. 4 CR 4 - Getting the Parties Before the Court (Summons, Service, etc.) The federal rule approves "fol- lowing state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where serv- ice is made." FRCP 4(e)(1) (em- phasis added). But the form of the summons, who prepares it (court or plaintiffs), alternative methods of service, provisions for waiver – all of those details are completely different. Prac- tioners should pay special at- tention to the appropriate Rule 4 and comply with the respective requirements of federal or state court. CR 4 also contains many provi- sion not found in FRCP con- cerning constructive service, court control over property or proceeds of persons construc- tively served (or a bond in lieu thereof), unknown defendants, and amendment of summons. CR 5 – Serving and Filing Papers The parts of CR 5 dealing with the service of papers on coun- sel or parties are generally simi- lar to FRCP 5, with both sets now providing for electronic service. But important details are different (including state provisions for warning order at- torneys), and the applicable rule should be consulted in each case. For example, CR 5.03 requires that the electron- ic address used for service be stated in the proof of serv- ice. On a more substantive note, FRCP 5.1 (providing for notice to the United States Attorney General in cas- es involving federal constitu- tional challenges) has no coun- terpart in CR 5, but does con- tain a counterpart in CR 24.03 (requiring notice to the Ken- tucky Attorney General for con- stitutional challenges and state law). CR 24.03 refers specifically to CR 5 for service of a motion to intervene in such cases. CR 5.06 provides that certain discovery documents "shall not be filed with the Court unless OVERVIEW OF THEMED ISSUE Litigators embrace the rules of civil procedure. A place for everything and everything in its place. Order and certainty. Deadlines and even how to calculate them. It doesn't get any better than this. But Kentucky attorneys practicing in both state and federal courts do face a real challenge in keeping their rules straight. This challenge is what lead the KBA Civil Litigation Section to suggest this themed issue, offering a practical comparison of the federal and state rules. At the time this issue was being completed, the KBA Civil Litigation Section was chaired by Chad Meredith of Ransdell & Roach, PLLC, in Lexington. The section meets monthly by telephone and at the KBA Annual Convention. Anyone interested in participating is encouraged to contact: Lori J. Alvey Program & Publications Attorney/Section Liaison Kentucky Bar Association lalvay@kybar.org (502) 564-3795, ext. 253 WHAT'S THE DIFFERENCE? CIVIL PROCEDURE IN KENTUCKY VS. FEDERAL COURTS By: Anne A. Chesnut