Rule 7.Pleadings Allowed: Form of Motions

was not opposed. The last sentence, indicating that the fact that a motion was not opposed did not assure that the requested relief would be granted by the court, as then drafted, also applied to most motions. Its purpose was to recognize the court’s inherent authority to refuse to grant requested relief, even if it were agreed to or unopposed, where the relief would be inconsistent with the interests of justice. Subsequently, subdivision (b)(4) was considerably narrowed to apply to only a limited number of motions relating to changes of time to act or continuance of trial or hearing. This narrowing was not intended to change recognition of the court’s broader authority to refuse to act on motions or to deny motions even if the motions were agreed to, unopposed, or improperly opposed. Moving the sentence recognizing this authority to its own subparagraph (7) reflects the initial intent when subparagraph (b)(4) was drafted that this authority apply to motions generally.

Advisory Committee’s Notes — January 1, 2001

The provisions of Rule 7(d) which addressed statements of material fact in summary judgment motion practice under Rule 56, are amended and moved to become Rule 56(h).

The rules are also amended to be consistent with changes in the Local Rules of the United States District Court for Maine which were adopted in 1999. Those changes are addressed in detail in the comments to the amendments to Rule 56.

Rule 7(f) is amended to respond to a growing concern among trial judges that parties are seeking to avoid the page limitations on memoranda of law by submitting memoranda printed in small fonts that are difficult to read. The Rule is amended to be consistent with the rules for appeals to require a 12- point font for the text of memoranda and at least an 11-point font for footnotes and quotations.

Advisory Committee’s Notes — May 1, 2000

A new subdivision (b)(5) is added to address the continuing confusion about motions for reconsideration. A corresponding amendment has been made to Rule 59 to provide explicitly that a motion to reconsider a judgment is

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a Rule 59 motion to alter or amend the judgment. Motions to reconsider should not be filed under Rule 60. Whether a motion seeks reconsideration of an interlocutory order or a judgment, however, new subdivision (b)(5) makes clear that such motions are not encouraged. Too frequently, disappointed litigants bring motions to reconsider not to alert the court to an error or to matter that could not have been presented earlier, but solely to reargue points that were or could have been presented to the court on the underlying motion. The new subdivision provides that the latter motions “shall not be filed” and, even on Rule 59 motions, the court may dispose of the motion without waiting for opposition to be filed. The existing subdivision (5) is redesignated (6).

In subdivision (f) the “at the bottom” portion of the page numbering requirement is eliminated. This accommodates current computer printing which often places page numbers at the top.

Advisory Committee’s Notes — May 1, 1999

Rule 7(b)(1) was amended to conform to the amendments to the discovery rules. The addition of the phrase “or under Rule 26(g)” recognizes that written discovery motions are no longer permitted unless the court orders otherwise. The purpose of the amendment is to cross-reference Rule 26(g) as an exception to the general rule that all applications to the court must be made by written motion. Rule 7(f) was amended to make clear that memoranda to the court should be printed on one side of the paper to ensure that submissions comply with the page limitations and to facilitate the use of court files.

Advisory Committee’s Notes — March 1, 1998

Subdivision (f) of Rule 7 is adopted to specify the form and length of memoranda of law. It is taken from Local Rule 7 (e) of the U.S. District Court for the District of Maine. The need for this amendment was identified by several justices and judges of the trial courts, who have found lengthy memoranda both burdensome and unnecessary for all but unusual circumstances. More specific requirements relating to font size and margins were considered, but the spirit of the rule is clear and should be enforced when transparent devices have been used to lengthen memoranda.

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Advisory Committee’s Notes — February 15, 1996

Rule 7(c) is amended to correct a problem that has arisen regarding motions for attachment under Rules 4A and 4B.

In 1993, Rules 4A(c) and 4B(c) were amended to provide that matter in opposition to a motion for attachment shall be filed “as required by Rule 7(c),” with the intent of incorporating the provision of that rule for filing matter in opposition 21 days after the filing of the motion. Previously, Rules 4A(c) and 4B(c) had provided that matter in opposition was to be filed within 10 days after service of the motion. See M.R. Civ. P. 4A(c), 4B(c) advisory committee’s notes, Feb. 15, 1993, amends., Me. Rptr., 602-17 A.2d LXII-LXIII. Since motions for attachment are often filed and served with the complaint, the defendant may not receive notice of the motion until a substantial time has elapsed after filing. Thus, the time to file matter in opposition may be shorter than the 10 days provided in the earlier version of the attachment rules.

The present amendment provides that matter in opposition to any motion filed at or before the filing of the complaint must be filed not later than the time for answer. Thus, the opposing party will know the nature of the action and will have at least 20 days for the response. The rule applies to any such motion, including motions for early discovery or for interim divorce relief.

Advisory Committee’s Notes — March 1, 1994

Rule 7(b)(1) is amended at the request of the trial judges to provide that a motion must include a notice to the opposing party that failure to file matter in opposition within 21 days pursuant to Rule 7(c) will result in waiver of all objections to the motion. The amendment is intended primarily to assist pro se litigants unfamiliar with the rule. The summons provides warning of the time for answer, but there is no comparable warning of the consequences of failure to respond to a motion. The result may be dismissal of a meritorious claim or the use of court time in hearing and granting a request for relief from the sanction of Rule 7(c). The amendment will give the court a clear basis for dealing promptly and firmly with parties, whether represented or unrepresented, who fail to file the required material in time. The last sentence makes clear that if the moving party fails to include the notice in the motion,

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the opposing party will be relieved of any resulting failure to make a timely filing.

Rule 7(b)(5) is added to provide that the court may impose sanctions on a party who persists in frivolous support of or opposition to a motion. The rule assumes that the motion when made satisfied the standard of Rule 11 that there was “good ground to support it.” A moving party who continues to press for hearing after matter in opposition has been filed pursuant to Rule 7(c) or (d) must continue to have a “reasonable basis” to support the motion. Similarly, a party opposed to a motion who files matter in opposition pursuant to Rule 7(c) or (d) must have a “reasonable basis” for that position. In either case, the court may impose upon the party, the party’s attorney, or both, the sanctions provided for the filing of a frivolous motion by Rule 11, including actual expenses and attorney fees incurred.

Advisory Committee’s Notes

Rule 7 is amended to unify and consolidate the presently diverse time requirements for filing motions and memoranda in opposition to motions and to end the current uncertainties inherent in tying filing times to hearing dates. Simultaneous conforming amendments are being made to Rules 6 and 56.

These changes are necessitated by amendments to various rules in recent years which have resulted in inconsistent requirements for filing opposing memoranda and in changed practices whereby in the Superior Court motions are not now scheduled for hearing at the time they are filed. Allowing opposing memoranda to be filed shortly before hearing has created considerable confusion in motion practice and difficulty in scheduling hearings because of the uncertainty, at the time a hearing is scheduled, as to whether a motion will be opposed or unopposed. The new practice changes this direction to require that an opposing memorandum and other matter in opposition to a motion, if any is to be entered, be filed within a time certain after filing the motion.

The last sentence of Rule 7(b)(1) is stricken. Statement of a motion within a notice of hearing is inconsistent with current practice and is no longer appropriate.

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Rule 7(b)(3) is amended to add a new clause (3) reflecting District Court practice by requiring inclusion of a notice of hearing if a date is available. The rule is also amended to incorporate the requirement of filing affidavits with motions from abrogated Rule 6(d). The provisions regarding timing and waiver of opposition to motions are deleted because these matters are covered in new Rule 7(c).

Rule 7(b)(4) is amended to narrow the requirement that a moving party file a statement of opposition or non-opposition. The statement is only required for those matters where the moving party should be able to determine by a telephone call or other contact with opposing counsel that the motion will or will not be opposed. Thus, application of paragraph (4) is limited to motions to continue trials or hearings or to change dates or deadlines set by court rule or order.

Former Rule 7(c) directing that demurrers and other archaic pleadings no longer be used is abrogated. This provision was necessary when the rules were first adopted in 1959. However, it is no longer necessary as practice has developed in the past 30 years. The types of papers that can be filed are affirmatively described in Rules 7(a) and (b).

Rule 7(c) is added to govern timing of opposition to motions. Essentially the new rule requires that if a motion is to be opposed, a party must file a memorandum in opposition within 21 days after the motion is filed. Affidavits under Rule 56(c) must be filed within the same period. Twenty-one days is a sufficient time for a party to prepare and develop opposition to a motion. Under Local Rule 19(c) of the United States District Court for the District of Maine, parties have only 10 days to prepare and file similar opposing material. If a timely memorandum in opposition is not filed, the party’s objections will be deemed waived and the motion may be presented to the court for action without opposition. The rule also includes provision for the court to set another time for filing opposition to a motion.

Previously, Rules 6(d), 7(b)(3), and 56(c) provided somewhat inconsistent time periods for filing motions and opposing memoranda and affidavits, all of which were tied to the date of hearing. The elimination of these provisions and the adoption of Rule 7(c) mean that there is no longer any minimum time prescribed between the final filing and the date of hearing. In setting hearing dates under the amended rules, parties must be accorded

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reasonable notice. The notice period must necessarily be longer than the 21 days for filing opposing memoranda provided by Rule 7(c), except in a case where the court sets an earlier time for such filing. (Note that particular rules continue to impose restrictions on the times within which certain motions must be filed. See, e.g., Rules 12(b), (c); 50(b); 52(b); 56(a), (b); 59(b).)

Rule 7(d) is added to make special provision regarding motions for summary judgment. This rule is similar to Rule 19(b) of the Local Rules of the United States District Court for the District of Maine. The purpose of the new provision is to more directly focus argument on motions for summary judgment by requiring that moving parties briefly specify those facts which they claim are not in dispute and that opposing parties briefly specify those facts that they claim are in dispute. The statements to be filed under the rule must refer to specific portions of the record, including affidavits filed in support of or opposition to the motion, which support the party’s contentions as to the facts. Those references should include page, paragraph, or other appropriate specific designation. The new rule will require some adjustment of the current practice under which, too frequently, generalized claims that there are or are not disputes as to material facts are presented in arguments on motions for summary judgment.

Rule 7(e) is added to govern the time for filing reply memoranda. In essence, a reply memorandum must be filed within 7 days after the filing of any opposition memorandum or within 2 days of hearing if that time is less than 7 days after receipt of the opposing memorandum. This rule is based on Local Rule 19(d) of the United States District Court for the District of Maine.

Advisory Committee’s Notes

Rule 7(b)(4) is amended to provide that in all motions where a statement of opposition or nonopposition is required, the statement must be filed with the motion. The prior provision allowing such a statement to be filed within ten days after filing the motion had proved unworkable. Such motions are often filed less than 10 days before action on the motion is required. Moreover, they ordinarily do not require the extensive review contemplated by the 10-day period.

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Advisory Committee’s Notes

Rule 7(b)(3) is amended to add a requirement that all motions, except those already exempted from the other provisions of the paragraph, shall be accompanied by a draft of a proposed order granting the motion and stating the relief granted in specific terms. On more complicated motions, the terms of the draft order will aid the court and the opposing party in determining exactly what relief is requested. The draft will also provide a basis for preparing an order specifically directed to the relief sought. The draft order, whether or not it is granted in terms, will also assist those reviewing the file in determining exactly what rulings have been issued on prior motions. The draft order should not simply indicate “motion granted.” It should specify who has made the motion and that it is granted. In a separate paragraph, the draft order should then state the specific relief that is to be granted.

Rule 7(b)(4) is added, providing that a statement indicating whether or not a motion is opposed must be filed with the motion or within ten days after filing, except in the cases of motions for summary judgment and dismissal and ex parte motions. The paragraph also makes clear that the court retains the discretion to deny an unopposed motion. The new provision is intended to eliminate a burden which present motion practice imposes upon the clerks’ offices. The clerks now must frequently call counsel for opposing parties to determine whether some motions—particularly motions for continuance or motions to extend deadlines—are opposed or not. The amendment shifts the burden for making this determination to counsel for the moving party. In order to comply with the rule, counsel must consult or otherwise ascertain the position of opposing counsel in some manner prior to the date set for hearing on the motion. In addition to relieving the clerks’ offices, this requirement should result in a significant reduction of the number of motions that are set for hearing as opposed.

Advisory Committee’s Note — November 15, 1976

The purpose of this amendment is to require counsel to expressly set forth in any motion that rule or statute upon which the request for relief set forth in the motion is based. It is suggested that the procedural rule under which the motion is brought should be indicated in parenthesis immediately

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under the title of the motion. Further it is the intent of the rule to require that counsel cite in the body of the motion any rule or statute on which the request for relief is based which is set forth in the motion in order that the Court and opposing counsel may have notice of the pertinent provisions of law on which the claim for relief is based.

Advisory Committee’s Note — February 2, 1976

A trap for the unwary is created by the fact that a reply to a counterclaim is required only if the counterclaim is “denominated as such”, whereas an answer to a cross-claim is required without any such limitation. 2A Moore’s Federal Practice, § 7.04, expresses the thought that “it might have been better had the rule provided for ‘an answer to a cross-claim denominated as such.’ “ The Committee does not completely share the confidence expressed by Moore in the very next sentence:

. . . since cross-claims concern co-parties, a co-party served with an answer will probably be adequately informed that a claim is being made against him by his co-party, which he should answer although that claim is not denominated a cross-claim.

There seems no reason for leaving the matter in doubt. The amendment treats the cross-claim exactly the same as a counterclaim and requires a responsive pleading only if the cross-claim is denominated as such.

Explanation of Amendment — December 1, 1959

Rule 7(d) was amended November 2, 1959, effective December 1, 1959, by deleting reference to the time for serving reasons of appeal, thereby leaving the matter wholly to statute. 4 M.R.S.A. § 402. Consistent with Probate Rule LIII, 151 Me. at 525, the papers to be filed in the Superior Court and the prescribed time for such filing are indicated.

Reporter’s Notes — December 1, 1959

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This rule is substantially the same as Federal Rule 7. The only pleadings ordinarily required under these rules are the complaint and the answer. “Complaint” includes what has hitherto been a declaration at law and a bill in equity. The answer, as will be seen from Rule 12(b), includes every defense in law or fact, whether hitherto made by plea in bar or in abatement, but certain defenses may also be made by motion. Demurrers are specifically abolished. The function of a general demurrer is served by a motion under Rule 12(b) (6) to dismiss for failure to state a claim upon which relief can be granted.

Rule 7(d) in effect adopts existing practice with respect to appeals to the Superior Court sitting as the Supreme Court of Probate. Although these appeals are subject to these rules, no defensive pleading is required.

The Maine practice of permitting a counter brief statement by the plaintiff, R.S.1954, Chap. 113, Sec. 36 (repealed in 1959), is altered by this rule.

Statutes which use the words “petition”, “declaration”, “plea”, “demurrer”, and other such terminology are modified in form.