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In re Montana Rules of Civil Procedure

Supreme Court of Montana

December 14, 2016

IN THE MATTER OF THE MONTANA RULES OF CIVIL PROCEDURE

          ORDER

         Following a publication of proposed changes with a comment period, the Court hereby adopts amendments to several of the Montana Rules of Civil Procedure.

         The first three changes are to M. R. Civ. P. 4. Of these, the first is for a non-substantive change to M. R. Civ. P. 4(c)(2)(C)(i) and (ii), to correct parentheticals that were inadvertently reversed. The second change comes at the recommendation of the Montana Secretary of State, who reports that the fees set forth in M. R. Civ. P. 4(j)(3)(B) and 4(p)(2)(C) for service on her office are insufficient to cover actual costs. The fees are raised from $10 to $20. The third change clarifies M. R. Civ. P. 4(o)(1)(C), concerning service by publication.

         The Court revises M. R. Civ. P. 52(a)(3) to require that orders issued under M. R. Civ. P. 12 and 56 must include articulation of the basis for the order.

         Finally, the Court revises the timelines and the procedure for deemed denial of motions for new trial or to alter or amend a judgment, and motions for relief from a judgment or order under M. R. Civ. P. 59(b) and (f), and 60(c)(1), respectively.

         IT IS ORDERED that the above changes to the Montana Rules of Civil Procedure are adopted, effective July 1, 2017. The changes are reflected in the attached complete Montana Rules of Civil Procedure.

         IT IS FURTHER ORDERED that this Order shall be published on the Court's website and that notice of this Order shall be posted on the website of the State Bar of Montana and in the next available issue of the Montana Lawyer.

         The Clerk is directed to provide copies of this Order to the Montana State Law Library and the State Bar of Montana. The Clerk is further directed to provide copies of this Order to Todd Everts, Connie Dixon, and Derek Gallagher at Montana Legislative Services Division; to Helene Haapala and Colena Webb at Thomson Reuters; to Robert Roy and Patti Glueckert at LexisNexis; to the Montana Trial Lawyers Association; to the Montana Defense Trial Lawyers Association; to Montana Legal Services; and to the Montana Judges Association.

          MIKE McGRATH, PATRICIA COTTER, MICHAEL E WHEAT, BETH BAKER, LAURIE McKINNON, JAMES JEREMIAH SHEA, JIM RICE

         RULES OF CIVIL PROCEDURE

         TITLE I. Scope of Rules; Form of Action

         Rule 1. Scope of Rules.

         These rules govern the procedure in all civil actions and proceedings in the district courts of the state of Montana, including probate proceedings, unless specifically provided to the contrary in the Uniform Probate Code; and except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

         COMMITTEE NOTES

         The language of Rule 1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         The former reference to "suits of a civil nature" is changed to the more modern "civil actions and proceedings." This is not meant to be a substantive change.

         The rules minimize the use of inherently ambiguous words. For example, the word "shall" is removed because it is inherently ambiguous in that it can mean "must, " "may, " or something else depending on the context. "Shall" is replaced with "must, " "may, " or "should, " depending on which one the context and established interpretation make correct in each rule.

         Language has been added to make it clear that the Civil Rules apply to probate proceedings except where the Probate Code specifies different procedures. This is consistent with section 72-1-207.

         Rule 2. One form of Action.

         There is one form of action -- the civil action.

         COMMITTEE NOTES

         The language of Rule 2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         TITLE II. Commencing an Action; Service of Process, Pleadings, Motions, and

         Orders Rule 3. Commencing an Action. A civil action is commenced by filing a complaint with the court.

          COMMITTEE NOTES

         The language of Rule 3 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Rule 4. Persons Subject to Jurisdiction; Process; Service.

         (a) Definition of Person. As used in this rule, the word "person, " whether or not a citizen of this state, a resident of this state, or organized under the laws of this state, includes:

(1) an individual, whether operating in the individual's own name or under a trade name;
(2) an individual's agent or personal representative;
(3) a corporation;
(4) a limited liability company;
(5) a business trust;
(6) an estate;
(7) a trust;
(8) a partnership;
(9) an unincorporated association;
(10) any two or more persons having a joint or common interest or any other legal or commercial entity; and
(11) any other organization given legal status as such under the laws of this state.

         (b) Jurisdiction of Persons.

         (1) Subject to Jurisdiction.

         All persons found within the state of Montana are subject to the jurisdiction of Montana courts. Additionally, any person is subject to the jurisdiction of Montana courts as to any claim for relief arising from the doing personally, or through an employee or agent, of any of the following acts:

(A) the transaction of any business within Montana;
(B) the commission of any act resulting in accrual within Montana of a tort action;
(C) the ownership, use, or possession of any property, or of any interest therein, situated within Montana;
(D) contracting to insure any person, property, or risk located within Montana at the time of contracting;
(E) entering into a contract for services to be rendered or for materials to be furnished in Montana by such person;
(F) acting as director, manager, trustee, or other officer of a corporation organized under the laws of, or having its principal place of business within, Montana; or
(G) acting as personal representative of any estate within Montana. (2) Acquisition of Jurisdiction. Jurisdiction may be acquired by Montana courts over any person:
(A) through service of process as herein provided; or
(B) by the voluntary appearance in an action by any person either personally or through an attorney, authorized officer, agent, or employee.

         (c) Summons.

         (1) Issuance. On or after filing the complaint, the plaintiff or the plaintiff's attorney must present a summons to the clerk for issuance. The clerk must issue and deliver a properly completed summons to the plaintiff or the plaintiff's attorney, who must thereafter deliver it for service upon the defendant as prescribed by these rules. Service of the summons must be accomplished within the times prescribed by Rule 4(t). Upon request, the clerk must issue separate or additional summons against any parties designated in the original action or any additional parties who may be brought into the action. Such separate or additional summons must also be served in the manner and within the times prescribed by these rules. The party requesting issuance of the summons bears the burden of having it properly issued, served, and filed with the clerk.

         (2) Form.

(A) Contents. A summons must:
(i) name the court and the parties;
(ii) be directed to the defendant;
(iii) state the name and address of the plaintiff's attorney or -- if unrepresented -- of the plaintiff;
(iv) state the time within which the defendant must appear and defend;
(v) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
(vi) be signed by the clerk; and
(vii) bear the court's seal.
(B) Quiet Title Actions. In an action to quiet title to real estate, the following must be added to the summons: "This action is brought to quiet title to land situated in _________ County, Montana, and described as follows: [Here insert descriptions of land]."
(C) Statutory Exceptions. Whenever a Montana statute, or a court order or citation issued pursuant thereto, provides for the service of a notice, order, or citation in lieu of summons upon any person, service shall be made under the circumstances and in the manner prescribed by the statute, order, or citation. Additionally, all persons are required to comply with the provisions of the following sections, when applicable:
(i) 33-1-603 (service on an insurer through the commissioner of insurance);
(ii) 33-1-613 (service on unauthorized insurer doing business in Montana);
(iii) 33-1-614 (exemptions from service of process for certain insurers);
(iv) 33-2-314 (where to bring suit against an insurer);
(v) 33-2-315 (when the commissioner of insurance is appointed agent for service of process);
(vi) 70-28-207 (how summons must read in a suit to quiet title to property granted to an heir of a deceased entryman);
(vii) 70-28-208 (publication and posting of summons in a suit to quiet title to property granted to an heir of a deceased entryman);
(viii) 70-28-209 (personal service of summons -- service by mail in a suit to quiet title to property granted to an heir of a deceased entryman); and
(ix) 70-28-212 (time for the defendant to appear and answer in a suit to quiet title to property granted to an heir of a deceased entryman).
(D) By Publication. When service by publication is permitted pursuant to Rule 4(o), the published summons must also include a statement in general terms of the nature of the action. When the action is one in which the title to, or any interest in or lien upon, real property is involved, affected, or brought into question, the published summons must also contain a description of the real property and a statement of the object of the action.

         (d) Service.

(1) In General. The summons and complaint must be served together. The plaintiff must furnish the necessary copies to the person who makes service.
(2) In Person. Service of all process may be made in the county where the party to be served is found by a sheriff, deputy sheriff, constable, or any other person over the age of 18 not a party to the action.
(3)(A) By Mail. A summons and complaint may also be served by mailing via first class mail, postage prepaid, the following to the person to be served:
(i) a copy of the summons and complaint;
(ii) two copies of a notice and acknowledgment conforming substantially to form 18-A; and
(iii) a return envelope, postage prepaid, addressed to the sender.
(B) A summons and complaint may not be served by mail to the following: (i) A minor;
(ii) An incompetent person; or
(iii) A corporation, partnership, or other unincorporated association, whether domestic or foreign.
(C) If no acknowledgment of service by mail is received by the sender within 21 days after the date of mailing, service of the summons and complaint must be made in person.
(D) If a person served by mail does not complete and return the notice and acknowledgment within 21 days, the court must order that person to pay the costs of personal service unless good cause is shown for not doing so.
(E) The notice and acknowledgment must be signed and dated by the defendant, and service of summons and complaint will be deemed complete on the date shown.

         (e) Serving an Individual. An individual -- other than a minor or an incompetent person -- must be served by either:

(1) delivering a copy of the summons and complaint to the individual personally; or
(2) delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process. If the agent is one designated by statute to receive service, such further notice as the statute requires must be given.

         (f) Serving a Minor over the Age of 14 Years. A minor over the age of 14 years must be served by either:

(1) delivering a copy of the summons and complaint to the minor personally and leaving a copy thereof at the minor's usual place of abode with some adult of suitable discretion also residing therein; or
(2) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

         (g) Serving a Minor under the Age of 14 Years.

         A minor under the age of 14 years may be served by delivering a copy of the summons and complaint to the minor's guardian within Montana. If the minor does not have a guardian within Montana, service of process must be delivered to any of the following:

(1) the minor's father;
(2) the minor's mother;
(3) another person or agency having the minor's care, control, or with whom the minor resides; or
(4) another person or agency as provided by court order.

         (h) Serving an Incompetent Person.

(1) An incompetent person who has been adjudged of unsound mind by a Montana court or for whom a guardian has been appointed in Montana by reason of incompetency may be served by delivering a copy of the summons and complaint to the person's guardian, if such guardian resides in Montana, was appointed under Montana law, and is acting under Montana law. If there be no such guardian, the court must appoint a guardian ad litem for the incompetent person.
(2) When a party is alleged to be of unsound mind, but has not been so adjudged by a Montana court, process may be served personally upon that party.
(3) The court may also stay any action pending against a person on learning that such person is of unsound mind.

         (i) Serving a Business or Nonprofit Entity.

         (1) For the purposes of this Rule, a business or nonprofit entity includes the following:

(A) a corporation;
(B) a limited liability company;
(C) a partnership;
(D)any other unincorporated association; and
(E) any business entity that has filed with the office of the secretary of state.

         (2) Service is available under this rule for a domestic business or nonprofit entity, as well as a foreign business or nonprofit entity that either:

(A) has a place of business in Montana;
(B) does business in Montana permanently or temporarily; or
(C) was doing business in Montana permanently or temporarily at the time the claim for relief accrued.

         (3) A business or nonprofit entity must be served by either:

(A) delivering a copy of the summons and complaint to:
(i) an officer;
(ii) a director;
(iii) a manager;
(iv) a member of a member-managed limited liability company;
(v) a superintendent;
(vi) a managing agent;
(vii) a general agent; or
(viii) a partner;
(B) leaving copies of the summons and complaint at the office or place of business within Montana with the person in charge of such office;
(C) delivering a copy of the summons and complaint to the registered agent named on the records of the secretary of state;
(D)delivering a copy of the summons and complaint to any other agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the business or nonprofit entity, provided that if the agent or attorney in fact is designated by statute to receive service, further notice as required by the statute must also be given; or
(E) if the suit is against a business or nonprofit entity whose charter or right to do business in Montana has expired or been forfeited, by delivering a copy of the summons and complaint to its trustees or stockholders or members.

         (j) Serving a Corporation or Limited Liability Company When Persons Designated Under Rule 4(i) Cannot Be Found Within Montana.

(1) This Rule applies when none of the persons designated in Rule 4(i) can be found within Montana with the exercise of due diligence, and a claim for relief is pending in any Montana court against the following:
(A) a corporation or limited liability company that has filed a copy of its charter in the office of the Montana secretary of state and is qualified to do business in Montana;
(B) a corporation or limited liability company which is subject to the jurisdiction of Montana courts under Rule 4(b), even though it has never qualified to do business in Montana; or
(C) a national banking corporation which, through insolvency or lapse of charter, has ceased to do business in Montana.
(2) The party causing summons to be issued shall exercise reasonable diligence to ascertain the last known address of any person designated under Rule 4(i).
(3) If, after exercising reasonable diligence, the party causing summons to be issued is unable to accomplish service, the following must be filed with the clerk of the court in which the claim for relief is pending:
(A) an affidavit reciting that none of the persons designated in Rule 4(i) can be found within Montana, as well as a recitation of either:
(i) the last known address of any person designated under Rule 4(i); or
(ii) a statement that no address for any person designated under Rule 4(i) could be found after the exercise of reasonable diligence; and
(B) $20 deposited with the clerk to be paid to the secretary of state as a fee for each defendant for whom the secretary of state is to receive service. When service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address.
(4) An affidavit filed pursuant to Rule 4(j)(3)(A) reciting that diligent inquiry was made is sufficient evidence of the diligence of inquiry. The affidavit need not detail the facts constituting such inquiry. The affidavit may also be combined in the same instrument with the affidavit required under Rules 4(o)(3)(A)(ii) and 4(p), should an affidavit under these Rules be required.
(5) Upon receiving the necessary affidavit and fees as required under Rule 4(j)(3), the clerk of court must:
(A) issue an order directing process to be served upon the Montana secretary of state or, in the secretary of state's absence, upon the Montana deputy secretary of state; and
(B) mail to the secretary of state at the office of the secretary of state:
(i) the original summons;
(ii) one copy of the summons and affidavit for the files of the secretary of state;
(iii) one copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and
(iv) the fee for service.
(6)(A) Upon receiving the materials required under Rule 4(j)(5)(B), the secretary of state must mail a copy of the summons and complaint by certified mail, return receipt requested, either:
(i) to the last known address of any of the persons designated in Rule 4(i); or
(ii) if the corporation or liability company is not organized in Montana and no address for a person designated under Rule 4(i) is known, to the secretary of state of the state in which the corporation or limited liability company was originally incorporated, if known.
(B) The secretary of state must also make a return as provided in Rule 4(p).
(7) Service made in accordance with this Rule is deemed personal service on the corporation or limited liability company and the secretary of state, or a deputy in the absence of the secretary of state, is thereby appointed agent of the corporation or limited liability company for service of process.
(8)(A) If a person designated in Rule 4(i) is located and served personally as provided by this Rule, service is deemed complete upon the corporation or limited liability company regardless of the receipt of any return receipt or advice by the postal authority of refusal of the addressee to receive the process mailed.
(B) If a person designated in Rule 4(i) is not located or served personally as provided by this Rule, service by publication must also be made as provided in Rules 4(c)(2)(D) and 4(o)(4). Such publication must first be made within 60 days from the date the original summons is mailed to the secretary of state. If such first publication is not made, the action shall be deemed dismissed as to any corporation or limited liability company intended to be served by such publication. Service by publication in accordance with this Rule is complete upon the date of the last publication of summons.
(9) When service of process is made in accordance with this Rule, and there is no appearance thereafter made by any attorney for such corporation or limited liability company, service of all other notices required by law to be served in such action may be served upon the secretary of state.

         (k) Serving a Local Government Entity.

         (1) For purposes of this Rule, a local government entity includes the following:

(A) a city;
(B) a village;
(C) a town;
(D)a school district;
(E) a county; or
(F) a public agency or board of any such entity.

         (2) A local government entity must be served by delivering a copy of the summons and complaint to any of the following:

(A) a commissioner;
(B) a trustee;
(C) a board member;
(D) a mayor; or
(E) a head of the legislative department thereof. Whenever an officer or employee of the local government entity is sued in an individual capacity for an act or omission occurring in connection with duties performed on the local government entity's behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the local government entity and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n).

         (1) Serving the State. The state, as well as any state board or agency, must be served by delivering a copy of the summons and complaint to the attorney general and any other party prescribed by statute. Whenever an officer or employee of the state is sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the state and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n).

         (m) Serving an Estate or Trust.

         (1) An estate must be served by delivering a copy of the summons and complaint to the personal representative.

         (2) A trust must be served by delivering a copy of the summons and complaint to any of the trustees.

         (n) Personal Service outside Montana.

         (1) When a person cannot, with due diligence, be served personally within Montana, service may be made outside Montana in the manner provided for service within Montana. Such service has the same force and effect as though it had been made within Montana.

         (2) Where service by publication is permitted, personal service of the summons and complaint upon the defendant outside Montana is equivalent to and dispenses with the procedures, publication, and mailing provided for in Rules 4(o)(3), 4(o)(4), and 4(o)(5).

         (o) Service by Publication.

         (1) When Permitted.

         A defendant who has not been served under the foregoing sections of Rule 4 can only be served by publication in the following situations:

(A) when the subject of the action is real or personal property in Montana in which the defendant has or claims an actual or contingent lien or interest, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein;
(B) when the action is to foreclose, redeem from, or satisfy a mortgage, claim, or lien upon real or personal property within Montana;
(C) when the action is for dissolution, legal separation or a declaration of invalidity of a marriage of a Montana resident, for modification of a decree of dissolution, or for an order on custody, visitation, support, or a parenting plan granted by a Montana court; or
(D) when the defendant has property within Montana which has been attached or has a debtor within Montana who has been garnished. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under Rules 4(o)(1)(A), 4(o)(1)(B), or 4(o)(1)(C).
(2)Effect of Service by Publication.
When a defendant has been served by publication as provided in this Rule, any Montana court having jurisdiction may render a decree adjudicating any interest of such defendant in the status, property, or thing acted upon. Such a decree does not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.
(3) Filing of Pleading and Affidavit for Service by Publication; Order for Publication.
(A) Before service of the summons by publication is authorized, the following must be filed with the clerk of the district court of the county in which the action is commenced:
(i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in Rule 4(o)(1); and
(ii)(a) in situations defined in Rules 4(o)(1)(A), 4(o)(1)(B), and 4(o)(1)(C), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that either:
1. such defendant resides out of Montana;
2. such defendant has departed from Montana;
3. such defendant cannot, after due diligence, be found within Montana;
4. such defendant conceals the defendant's person to avoid the service of summons;
5. the defendant is a business or nonprofit entity as defined in Rule 4(i)(1) of which none of the persons in Rule 4(i) can, after due diligence, be found within Montana; or
6. the defendant is an unknown claimant and the affiant has made diligent search and inquiry for all persons who claim or might claim any present or contingent right, title, estate, interest in, lien, or encumbrance upon such property or any part thereof, adverse to plaintiff's ownership, or any cloud upon plaintiff's title thereto, including any right of inchoate or accrued dower, and that the affiant has specifically named as defendants in such action all such persons whose names can be ascertained.
(b) Such affidavit is sufficient evidence of the diligence of any inquiry made by the affiant if it recites the fact that diligent inquiry was made. The facts constituting such inquiry need not be detailed.
(c) Such affidavit may be with the affidavit required under Rules 4(j)(3)(A) and 4(p), should an affidavit under these Rules be required.
(iii) In the situation defined in Rule 4(o)(1)(D), proof that a valid attachment or garnishment has been effected must first be presented to the court.
(B) Upon complying herewith, the plaintiff must obtain an order, issued either by the judge or clerk of court, for the service of summons to be made upon the defendants by publication.
(4) Number of Publications.
Service by publication must be made by publishing the summons once a week for three successive weeks in a newspaper published in the county in which the action is pending or, if no newspaper is published in such county, then in a newspaper published in an adjoining county that has a general circulation therein.
(5) Mailing Summons and Complaint.
A copy of the summons and complaint, at any time after the filing of the affidavit for publication but not later than 14 days after the first publication of the summons, must be mailed, postage prepaid, to the defendant at defendant's place of residence, unless the affidavit for publication states that the residence of the defendant is unknown. If the defendant is a business or nonprofit entity as defined in Rule 4(i)(1), and personal service cannot with due diligence be effected within Montana on any of the persons designated in Rule 4(i), then the secretary of state must be served pursuant to Rule 4(j).
(6) Time When First Publication or Service outside Montana Must Be Made.
The first publication of summons or personal service of the summons and complaint upon the defendant out of Montana must be made within 60 days after the filing of the affidavit for publication. If not, the action must be dismissed as to any party intended to be served by such publication.
(7) When Service by Publication or Outside Montana Complete.
Service by publication is complete on the date of the last publication of the summons or, in case of personal service of the summons and complaint upon the defendant out of Montana, on the date of such service.
(p) Serving the Secretary of State.
(1) Whenever service is to be made as provided in Rules 4(i) and 4(o)(5), the requirements of Rule 4(i) must be met.
(2) In all other cases, unless otherwise provided by statute, whenever the Montana secretary of state has been appointed, or is deemed by law to have been appointed, as the agent to receive service of process for any person who cannot with due diligence be found or served personally within Montana, the party or the party's attorney must file with the clerk of court in which the claim for relief is pending the following:
(A) an affidavit stating the facts showing that the secretary of state is such agent, as well as the residence and last known address of the person to be served;
(B) sufficient copies of the affidavit, summons, and complaint for service upon the secretary of state; and
(C) $20 to be paid to the secretary of state as a fee for each of the defendants for whom the secretary of state is to receive service. Where service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address.
(3) Upon receipt of the materials specified in Rule 4(p)(2), the clerk must forward to the secretary of state the following:
(A) the original summons;
(B) a copy of both the summons and the affidavit for the files of the secretary of state;
(C) a copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and
(D) the fee.
(4) Such service on the secretary of state is sufficient personal service upon the person to be served provided that either:
(A) notice of such service, a copy of the summons, and a copy of the complaint are sent from the secretary of state or a deputy to the party to be served at the party's last known address by registered or certified mail, marked "Deliver to Addressee Only" and "Return Receipt Requested." Either such return receipt purportedly signed by the addressee must be received by the secretary of state, or the postal authority must advise the secretary of state that delivery of the registered or certified mail was refused by the addressee, except in those cases where compliance is excused under the provisions of Rule 4(i). The date upon which the secretary of state receives either the return receipt or the advice of the postal authority is deemed the date of service; or
(B) the secretary of state, or a deputy, may cause a copy of the summons and complaint to be served by any qualified law enforcement officer in accordance with the applicable procedure from Rules 4(e)-(n).
(5) The secretary of state or a deputy must make an original and two copies of an affidavit reciting the following:
(A) the fact of service upon the secretary of state by the clerk of court, including the day and hour of such service;
(B) the fact of mailing a copy of the summons, complaint, and notice to the defendant, including the day and hour thereof, except in those cases where such mailing is excused under Rule 4(i), in which cases the affidavit must so recite; and
(C) the fact of receipt of a return from the postal department, including the date and hour thereof. A copy of such return must be attached to the affidavit.
(6) The secretary of state, or a deputy, must then transmit to the clerk of court the following, which the clerk must file in the claim for relief:
(A) the original summons;
(B) the original affidavit; and
(C) a copy of the notice to the defendant, when such notice was required.
(7) The secretary of state or a deputy must also transmit to the plaintiff's attorney a copy of the secretary of state's or deputy's affidavit, along with a copy of the notice to the defendant where such notice was required.
(8) The secretary of state must keep on file in the secretary of state's office copies of the following:
(A) the summons;
(B) the affidavit served on the secretary of state by the clerk of court; and
(C) a copy of the affidavit executed and issued by the secretary of state or a deputy.
(9) Continuance to Allow Defense. In any of the cases provided for in either this Rule or Rule 4(i), the court in which the claim for relief is pending may order any continuance necessary to afford a reasonable opportunity to defend the action.
(q) Amendment. Upon such notice and terms as it deems just, the court in its discretion may allow any process or proof of service thereof to be amended at any time, unless it appears that material prejudice would result to the substantial rights of the party against whom the process issued.
(r) Proof of Service.
(1) Proving service of the summons and the complaint or notice accompanying the same, if any, must be accomplished as follows:
(A) if by the sheriff or other officer, the sheriff's or other officer's certificate including the time, date, and place of service;
(B) if by any other person, that person's affidavit;
(C) if by publication, an affidavit of the publisher and an affidavit of the deposit of a copy of the summons and complaint in the post office as required by law, if deposited; or
(D) the written admission of the defendant showing the date and place of service.
(2) If service is made under Rule 4(d)(3), the sender must file with the court the acknowledgment received.
(3) Failure to make proof of service does not affect the validity of service.
(4) The required affidavit of service must state the time, date, place, and manner of service. When service is by a person other than the sheriff or person designated by law, the affidavit must also state that the person serving is of legal age and knew the person served to be the person named in the papers served and the person intended to be served.
(s) Procedure Where Not All Defendants Served.
(1) If the summons is served on one or more, but not all, defendants, plaintiff may proceed to trial and judgment against the served defendant(s).
(2) At any time thereafter, plaintiff may serve summons to cause the unserved defendant(s) to appear to show cause why the unserved defendant(s) should not be made a party to such judgment. The court must then hear and determine the matter in the same manner as if the unserved defendant(s) had been originally brought into court. The unserved defendant(s) must also be allowed the benefit of any payment or satisfaction made on the recovered judgment.
(t) Time Limit for Issuance and Service of Process.
(1) A plaintiff must accomplish service within three years after filing a complaint. Absent an appearance by defendant(s), the court, upon motion or on its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so.
(2) A plaintiff who names a fictitious defendant in the complaint pursuant to section 25-5-103 may, within three years of filing the original complaint, amend the complaint to substitute a real defendant for the fictitious defendant. The three-year time period set forth in Rule 4(t)(1) begins to run as to the newly identified defendant from the date of the filing of the original complaint.

         COMMITTEE NOTES

         The language of Rule 4 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Rule 4(a)(11) was added by the Montana Supreme Court.

         Rules 4(c)(2)(C) and 4(c)(2)(D) contain language from previous Rules 4D(4) and 4D(5)(h) for the purpose of including all rules regarding the form of a summons in the same rule.

         The first two sentences of previous Rule 4D(2) have been moved to Rule 4(d)(1) to make the rule more easily understood and to conform to the Federal Rule.

         Rules 4(i) and 4(j) remove the language in previous Rule 4D(2)(e)(iii), because this language in pertinent part simply repeats the language in Rule 4(i)(3)(B). The language regarding the sheriff in previous Rule 4D(2)(e)(iii) is superfluous.

         The rule removes the language "organized under the laws of the state, or against a corporation or limited liability company organized under the laws of any other state or country" at the beginning of previous Rule 4D(2)(f), because such language includes all corporations and limited liability companies.

         The rule adds "any business entity filed in the office of the secretary of state" in the list of entities which constitute business or nonprofit entities for purpose of this rule.

         Previous Rule 4D(4) has been moved to Rule 4(c)(2)(C) for the purpose of including all the rules regarding the form of a summons in the same rule.

         Rule 4(d)(3)(C) (acknowledgment of summons) has been changed from 20 to 21 days for the reasons stated in Committee Notes to Rule 6.

         Rule 4(o) removes the language "whether known or unknown" from previous Rules 4D(5)(a), 4D(5)(a)(i), and 4D(5)(b), because such language includes all defendants.

         Rule 4(o) moves previous Rule 4D(5)(h) to Rule 4(c)(2)(D) for the purpose of including all rules regarding the form of a summons in the same rule.

         Rule 4(q) removes the adjective "clearly" to avoid potential ambiguity.

         Rule 4(r)(3) incorporates the last sentence of previous Rule 4D(8)(e). This change is meant to apply the principle that "failure to make proof of service does not affect the validity of service" to all situations, thereby putting Rule 4(r) in agreement with the Federal Rule. Rule 4(r)(4) incorporates previous Rule 4D(9) to avoid duplication and foster clarity.

         Rule 4(t) removes reference to issuance of summons in favor of a single deadline regarding service of process for simplicity. For process to be served in three years, summons must also have been issued within three years.

         Rule 4(t) removes the deadline for the plaintiff to file the summons with the clerk of the court, because the failure to meet this deadline in the rule has no practical effect.

         NOTE

         By order entered on December 13, 2016, the Court corrected inadvertently reversed parentheticals in Rule 4(c)(2)(C)(i) and (ii), increased the filing fees in 4(j)(3)(B) and 4(p)(2)(C) to $20, and revised 4(o)(1)(C) for purposes of clarification.

         Rule 4.1. Limited Representation Permitted -- Process.

         (a) In accordance with Rule 1.2(c) of the Montana Rules of Professional Conduct, an attorney may undertake to provide limited representation to a person involved in a court proceeding.

         (b) Providing limited representation of a person under these rules shall not constitute an entry of appearance by the attorney for purposes of Rule 5(b) and does not authorize or require the service or delivery of pleadings, papers, or other documents upon the attorney under Rule 5(b).

         © Representation of the person by the attorney at any proceeding before a judge or other judicial officer on behalf of the person constitutes an entry of appearance, except to the extent that a limited notice of appearance as provided for under Rule 4.2 is filed and served prior to or simultaneous with the actual appearance. Service on an attorney who has made a limited appearance for a party shall be valid only in connection with the specific proceedings for which the attorney appeared, including any hearing or trial at which the attorney appeared and any subsequent motions for presentation of orders. (d) The attorney's violation of this Rule may subject the attorney to sanctions provided in Rule 11.

         NOTE

         The Court enacted Rules 4.1 and 4.2 as Rules 4.2 and 4.3 on March 15, 2011, to take effect on October 1, 2011. Rules 4.1 and 4.2 have been renumbered to fit in with the comprehensive 2011 M. R. Civ. P. revisions.

         Rule 4.2. Notice of Limited Appearance and Withdrawal as Attorney.

         (a) Notice of limited appearance. If specifically so stated in a notice of limited appearance filed and served prior to or simultaneous with the proceeding, an attorney's role may be limited to one or more individual proceedings in the action.

         (b) At the conclusion of such proceedings the attorney's role terminates without the necessity of leave of court, upon the attorney filing notice of completion of limited appearance.

         NOTE

         The Court enacted Rules 4.1 and 4.2 as Rules 4.2 and 4.3 on March 15, 2011, to take effect on October 1, 2011. Rules 4.1 and 4.2 have been renumbered to fit in with the comprehensive 2011 M. R. Civ. P. revisions.

         Rule 5. Serving and Filing Pleadings and other Papers.

         (a) Service: When Required.

         (1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) An order stating that service is required;
(B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;
(C) a discovery paper required to be served on a party, unless the court orders otherwise;
(D) a written motion and any supporting brief, except one that may be heard ex parte;
(E) a written notice, appearance, demand, or offer of judgment, or any similar paper; and
(F) briefs, supporting appendices, and supporting affidavits.
(2)If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party in the manner provided for service under Rule 4.
(3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized.

         (b) Service: How Made.

         (1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.

         (2) Service in General. A paper is served under this rule by:

(A) handing it to the person;
(B) leaving it:
(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(C) mailing it to the person's last known address -- in which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no known address;
(E) sending it by electronic means if the person consented in writing -- in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or
(F) delivering it by any other means that the person consented to in writing --in which event service is complete when the person making service delivers it to the party or agency designated to make delivery.

         (c) Serving Numerous Defendants.

         (1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:

(A) defendants' pleadings and replies to them need not be served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.
(2) Notifying Parties. A copy of every such order must be served on the parties as the court directs.

         (d) Filing.

         (1) Required Filings; Certificate of Service. Any paper after the complaint that is required to be served -- together with a certificate of service -- must be filed within a reasonable time after service. But the following discovery requests and responses must not be filed until they are used in the proceeding, ordered by the court in the Rule 16 conference, or the court orders filing: depositions or notices thereof, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admission, expert disclosure reports, and interrogatory answers.

         (2) How Filing Is Made -- In General. A paper is filed by delivering it:

(A) to the clerk; or
(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.
(3) Electronic Filing, Signing, or Verification. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means, including facsimile, that are consistent with any technical standards established by the court or local rule. A paper filed by electronic means in compliance with a local rule is a written paper for purposes of these rules.
(4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

         COMMITTEE NOTES

         The language of Rule 5 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Rule 5(a)(1)(E) removes the term "designation of record" because it is already addressed in the Appellate Rules.

         Rule 5(b)(2)(E) has been added to conform to the Federal Rules. It is added in recognition of the practice of service by admission.

         Rule 5(d)(3) allows for electronic filing, including by facsimile. It follows the Federal Rules.

         Rule 5.1. Constitutional Challenge to a Statute -- Notice and Intervention.

         (a) Notice by a Party. A party that files a pleading, written motion, or other paper challenging the constitutionality of a state statute must promptly file a notice of constitutional question stating the question and identifying the paper that raises it, and serve the notice and paper on the state attorney general either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

         (b) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

         (c) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

         COMMITTEE NOTES

         Rule 5.1, which replaces previous Rule 24(d), has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         The Committee decided it was more appropriate to place this Rule at 5.1, consistent with the Federal Rules.

         Rule 5.2. Privacy Protection for Filings Made With the Court.

         (a) Redacted Filings. Unless the court orders or the law requires otherwise, in any filing with the court that contains an individual's social security number, taxpayer identification number, or birth date, or a financial account number, a party or nonparty making the filing must include only:

(1) the last four digits of the social security number or taxpayer identification number;
(2) the year of the individual's birth; and
(3) the last four digits of the financial account number.

         (b) Exemptions from the Redaction Requirement.

         The redaction requirement does not apply to the following:

(1) a financial account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding;
(3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and
(4) a filing covered by Rule 5.2(c).

         (c) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

         (d) Protective Orders. For good cause, the court may by order in a case:

(1) require redaction of additional information;
(2) limit or prohibit a nonparty's remote electronic access to a document filed with the court; or
(3) provide other guidance regarding privacy and access consistent with the Rules for Privacy and Public Access to Court Records in Montana.

         (e) Option for Additional Unredacted Filing under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

         (f) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

         (g) Non-conforming Documents. (1) Waiver. A person waives the protection of Rule 5.2(a) as to the person's own information by filing it without redaction and not under seal.

         (2) Sanctions. If a party fails to comply with this rule, the court on motion of another party or its own motion may order the pleading or other document to be reformed. If the order is not obeyed, the court may order the document stricken.

         COMMITTEE NOTES

         Rule 5.2 is similar to the Federal Rule 5.2, and is consistent with the Rules for Privacy and Public Access to Court Records in Montana. The rule is designed to be a reference point for attorneys and parties seeking guidance on how to handle personal and private information that is included in documents filed with the courts.

         Rule 5.2 provides instruction on how to redact protected information. For example, only the year of an individual's birth may be included in a document filed with the court, not the entire birth date. For a social security or financial account number, only the last four digits may be included.

         Under certain circumstances, a non-redacted document may be included in the court file without the protected information contained in it being made public. Rule 5.2(c) allows the court to order a filing to be made under seal without redaction while Rule 5.2(e) allows a party who makes a redacted filing to also submit a non-redacted document under seal. This is often necessary in family law cases where including information such as social security numbers in key documents is required by federal and state statutes.

         Rule 5.2(f) provides an alternate method for protecting personal information. A party may submit a reference list under seal that includes a unique identifier to match each item of protected information involved in the case. The party then may use the unique identifier in its filed documents instead of redacting these documents.

         The Montana Supreme Court has adopted Rules 10(7) and 13(2), M. R. App. P., for confidentiality in filings.

         Rule 6. Computing and Extending Time; Time for Motion Papers.

         (a) Computing Time. The following rules apply in computing any time period specified in these rules, or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Period Stated in Hours. When the period is stated in hours:
(A) begin counting immediately on the occurrence of the event that triggers the period;
(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.
(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is inaccessible:
(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or
(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.
(4) "Last Day" Defined. Unless a different time is set by a statute or court order, the last day ends:
(A) for electronic filing, at midnight in the court's time zone; and
(B) for filing by other means, when the clerk's office is scheduled to close. (5) "Next Day" Defined. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(6) "Legal Holiday" Defined. "Legal holiday" means:
(A) the day set aside by statute for observing New Year's Day, Martin Luther King, Jr. Day, Lincoln's and Washington's Birthdays, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, or state general election day;
(B) any day declared a holiday by the President of the United States or by the Governor of this state; and
(C) for periods that are measured after an event, any other day declared a holiday by the state.
(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
(2) Exceptions. The court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).
(c) Motions, Notices of Hearing, and Affidavits.
(1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for any hearing, with the following exceptions:
(A) when the motion may be heard ex parte;
(B) when these rules set a different time; or
(C) when a court order -- which a party may, for good cause, apply for ex parte -- sets a different time.
(2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.
(d) Additional Time after Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), or (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).

         COMMITTEE NOTES

         The December 1, 2009 Federal Rule 6 has been adopted almost verbatim (several parts are deleted which apply strictly to the Federal Rule). The Federal rationale for changing the time calculation provisions of Rule 6 is set forth in the following Federal Commission Comment, and has been adopted:

Subdivision (a). Subdivision (a) has been amended to simplify and clarify the provisions that describe how deadlines are computed. Subdivision (a) governs the computation of any time period found in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. In accordance with Rule 83(a)(1), a local rule may not direct that a deadline be computed in a manner inconsistent with subdivision (a).
The time-computation provisions of subdivision (a) apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v. P.A. Days, Inc., 427 F.3d 1015, 1016 (6th Cir. 2005) (holding that Civil Rule 6(a) "does not apply to situations where the court has established a specific calendar day as a deadline"), and reject the contrary holding of In re American Healthcare Management, Inc., 900 F.2d 827, 832 (5th Cir. 1990) (holding that Bankruptcy Rule 9006(a) governs treatment of date-certain deadline set by court order). If, for example, the date for filing is "no later than November 1, 2007, " subdivision (a) does not govern. But if a filing is required to be made "within 10 days" or "within 72 hours, " subdivision (a) describes how that deadline is computed.
Subdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. . . .
Subdivision (a)(1). New subdivision (a)(1) addresses the computation of time periods that are stated in days. It also applies to time periods that are stated in weeks, months, or years. See, e.g., Rule 60(c)(1). Subdivision (a)(1)(B)'s directive to "count every day" is relevant only if the period is stated in days (not weeks, months or years).
Under former Rule 6(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 6(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same day -- and the 10-day period not infrequently ended later than the 14-day period. See Miltimore Sales, Inc. v. Int'l Rectifier, Inc., 412 F.3d 685, 686 (6th Cir. 2005).
Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days -- including intermediate Saturdays, Sundays, and legal holidays -- are counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the discussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day when the clerk's office is inaccessible.
Where subdivision (a) formerly referred to the "act, event, or default" that triggers the deadline, new subdivision (a) refers simply to the "event" that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change meaning.
Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. See, e.g., Rule 14(a)(1).
Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method -- two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period -- the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty-day and longer periods, however, were generally retained without change.
Subdivision (a)(2). New subdivision (a)(2) addresses the computation of time periods that are stated in hours. No such deadline currently appears in the Federal Rules of Civil Procedure. But some statutes contain deadlines stated in hours, as do some court orders issued in expedited proceedings.
Under subdivision (a)(2), a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day that is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be "rounded up" to the next whole hour. Subdivision (a)(3) addresses situations when the clerk's office is inaccessible during the last hour before a filing deadline expires.
Subdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour period that commences at 10:23 a.m. on Friday, November 2, 2007, will run until 9:23 a.m. on Monday, November 5; the discrepancy in start and end times in this example results from the intervening shift from daylight saving time to standard time.
Subdivision (a)(3). When determining the last day of a filing period stated in days or a longer unit of time, a day on which the clerk's office is not accessible because of the weather or another reason is treated like a Saturday, Sunday, or legal holiday. When determining the end of a filing period stated in hours, if the clerk's office is inaccessible during the last hour of the filing period computed under subdivision (a)(2) then the period is extended to the same time on the next day that is not a weekend, holiday, or day when the clerk's office is inaccessible.
Subdivision (a)(3)'s extensions apply "[u]nless the court orders otherwise." In some circumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour extension; in those instances, the court can specify a briefer extension.
The text of the rule no longer refers to "weather or other conditions" as the reason for the inaccessibility of the clerk's office. The reference to "weather" was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerk's office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through case law, see, e.g., William G. Phelps, When Is Office of Clerk of Court Inaccessible Due to Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers Under Rule 6(a) of Federal Rules of Civil Procedure, 135 A.L.R. Fed. 259 (1996) (collecting cases). In addition, many local provisions address inaccessibility for purposes of electronic filing, see, e.g., D. Kan. Rule 5.4.11 ("A Filing User whose filing is made untimely as the result of a technical failure may seek appropriate relief from the court.").
Subdivision (a)(4). New subdivision (a)(4) defines the end of the last day of a period for purposes of subdivision (a)(1). Subdivision (a)(4) does not apply in computing periods stated in hours under subdivision (a)(2), and does not apply if a different time is set by a statute, local rule, or order in the case. . . .
Subdivision (a)(5). New subdivision (a)(5) defines the "next" day for purposes of subdivisions (a)(1)(C) and (a)(2)(C). The Federal Rules of Civil Procedure contain both forward-looking time periods and backward-looking time periods. A forward-looking time period requires something to be done within a period of time after an event. See, e.g., Rule 59(b) (motion for new trial "must be filed no later than 28 days after entry of the judgment"). A backward-looking time period requires something to be done within a period of time before an event. See, e.g., Rule 26(f) (parties must hold Rule 26(f) conference "as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b)"). In determining what is the "next" day for purposes of subdivisions (a)(1)(C) and (a)(2)(C), one should continue counting in the same direction -- that is, forward when computing a forward-looking period and backward when computing a backward-looking period. If, for example, a filing is due within 30 days after an event, and the thirtieth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4, 2007 (Monday, September 3, is Labor Day). But if a filing is due 21 days before an event, and the twenty-first day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk's office is inaccessible on August 31, then subdivision (a)(3) extends the filing deadline forward to the next accessible day that is not a Saturday, Sunday, or legal holiday -- no later than Tuesday, September 4.
Subdivision (a)(6). New subdivision (a)(6) defines "legal holiday" for purposes of the Federal Rules of Civil Procedure, including the time-computation provisions of subdivision (a). Subdivision (a)(6) continues to include within the definition of "legal holiday" days that are declared a holiday by the President or Congress.
For forward-counted periods -- i.e., periods that are measured after an event -- subdivision (a)(6)(C) includes certain state holidays within the definition of legal holidays. However, state legal holidays are not recognized in computing backward-counted periods. For both forward- and backward-counted periods, the rule thus protects those who may be unsure of the effect of state holidays. For forward-counted deadlines, treating state holidays the same as federal holidays extends the deadline. Thus, someone who thought that the federal courts might be closed on a state holiday would be safeguarded against an inadvertent late filing. In contrast, for backward-counted deadlines, not giving state holidays the treatment of federal holidays allows filing on the state holiday itself rather than the day before. Take, for example, Monday, April 21, 2008 (Patriot's Day, a legal holiday in the relevant state). If a filing is due 14 days after an event, and the fourteenth day is April 21, then the filing is due on Tuesday, April 22 because Monday, April 21 counts as a legal holiday. But if a filing is due 14 days before an event, and the fourteenth day is April 21, the filing is due on Monday, April 21; the fact that April 21 is a state holiday does not make April 21 a legal holiday for purposes of computing this backward-counted deadline. But note that if the clerk's office is inaccessible on Monday, April 21, then subdivision (a)(3) extends the April 21 filing deadline forward to the next accessible day that is not a Saturday, Sunday or legal holiday -- no earlier than Tuesday, April 22.
The times set in the former rule at 1 or 5 days have been revised to 7 or 14 days.

         Montana has deviated from the Federal Rule in two minor respects. First, Rule 6(a) deleted the words "in any local rule" and Rule 6(a)(4) deleted the words "local rule." For that reason, unlike the Federal Rules, the time calculation procedure provisions of Rule 6 may not be varied by local rules.

         Rule 6(a)(4)(A) provides for electronic filing until midnight. The Committee expressly recognizes and endorses the existing practice of facsimile filing in Montana as provided in Rule 5(d)(3). However, until a system of electronic filing is adopted for the district courts, the balance of the language of Rule 6(a)(4)(A) should not be interpreted to allow electronic filing other than by facsimile. For that reason, the Committee expressly notes that e-mail and other electronic filing, except for facsimile filing, is not allowed by this Rule until the Montana Supreme Court indicates otherwise through the adoption of some type of electronic filing system for the district courts.

         Rules 6(a)(4)(A) and 6(a)(4)(B) define the recognized legal holidays.

         Rule 6(c) has been modified to conform Montana's Rule to Federal Rule 6(c). This provides that notice of a hearing, if any, must be served at least 14 days before the hearing. Montana substituted the word "any" for "the, " modifying hearing, so there is no implication that a hearing is mandatory. This may need to be harmonized with Uniform District Court Rule 2, "Motions."

         TITLE III. Pleadings and Motions

         Rule 7. Pleadings Allowed; Form of Motions and Other Papers.

(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers.
(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.

         COMMITTEE NOTES

         The language of Rule 7 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Previous Rule 7(c) is deleted because it has done its work. If a motion or pleading is described as a demurrer, plea, or exception for insufficiency, the court will treat the paper as if properly captioned.

         Rule 7.1. Disclosure Statement.

         (a) Who Must File; Contents. A nongovernmental corporate party must file and serve a disclosure statement that:

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or
(2) states that there is no such corporation.
(b) Time to File; Supplemental Filing. A party must:
(1) file and serve the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and
(2) promptly file and serve a supplemental statement if any required information changes.

         COMMITTEE NOTES

         Rule 7.1 adopts the relevant language of the Federal Rules of Civil Procedure. Montana did not previously have a current Rule 7.1.

         Rule 8. General Rules of Pleading.

         (a) Claim for Relief. A pleading which states a claim for relief must contain:

(1)a short and plain statement of the claim showing that the pleader is entitled to relief; and
(2)a demand for the relief sought, which may include relief in the alternative or different types of relief.
(b) Defenses; Admissions and Denials. (1) In General In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B)admit or deny the allegations asserted by an opposing party. (2)Denials -- Responding to the Substance. A denial must fairly respond to the substance of the allegation
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading -- including the jurisdictional grounds -- may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation -- other than one relating to the amount of damages -- is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense including, but not limited to:
• accord and satisfaction;
• action on advice of counsel; .arbitration and award;
• assumption of risk;
• comparative negligence;
• discharge in bankruptcy;
• duress;
• estoppel;
• failure of consideration; . fraud;
• illegality;
•injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and

         (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

         (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General Each allegation must be simple, concise, and direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

         (e) Construing Pleadings. Pleadings must be construed so as to do justice.

         COMMITTEE NOTES

         The language of Rule 8 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Rule 9. Pleading Special Matters.

(a) Capacity or Authority to Sue; Legal Existence.
(1) In General. A pleading need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge.
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
(c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.
(d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.
(f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading.
(g) Special Damages. If an item of special damage is claimed, it must be specifically stated.

         COMMITTEE NOTES

         The language of Rule 9 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and conform them to the recent changes in the Federal Rules.

         Rule 10. Form of Pleadings.

         (a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.

         (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence -- and each defense other than a denial -- must be stated in a separate count or defense.

         (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

         COMMITTEE NOTES

         The language of Rule 10 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and conform them to the recent changes in the Federal Rules.

         Rule 11. Signing Pleadings, Motions, and other Papers; Representations to the Court; Sanctions.

         (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name -- or by a party personally if the party is unrepresented. The paper must state the signer's address, email address, and telephone number, if any. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

         (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it --an attorney or unrepresented party certifies to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney fees, incurred for the motion.
(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
(e) Limited Scope Representation. An attorney may help to draft a pleading, motion, or document filed by an otherwise self-represented person, and the attorney need not sign that pleading, motion, or document. The attorney in providing such drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

         COMMITTEE NOTES

         The language of Rule 11 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules.

         Rule 11(a)(2) requires the signor of pleadings to include a telephone number consistent with the revised Federal Rules and most local rules.

         Rule 11(c)(2) is substantively changed to follow the Federal approach which provides that a sanctions motion must be served but not filed until 21 days after service. This gives the targeted party the chance to withdraw the offending document.

         The Court adopted the language in Rule 11(e) as part of rule amendments to encourage limited scope representation, by order dated March 15, 2011. It has been renumbered to fit in with the comprehensive 2011 revision of these rules.

         Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing.

(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise under Rule 4(c)(2)(C).
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
(2) State of Montana and Its Agencies, Officers, or Employees Sued in an Official Capacity. The State of Montana, a state agency, or a state officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the attorney general.
(3) State Officers or Employees Sued in an Individual Capacity. A state officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the officer or employee or service on the attorney general, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and (7)failure to join a party under Rule 19.

         A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. If a court grants a motion made under subsection (3), any ...


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