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RULES OF THE CIRCUIT COURT OF THE STATE OF NEW HAMPSHIRE -- DISTRICT DIVISION

CIVIL RULES APPLICABLE TO CASES FILED ON OR AFTER THE IMPLEMENTATION OF ELECTRONIC FILING

 

III.      Pleadings and Motions

Rule 3.6.      Pleadings Allowed

(a)  The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.  There shall be allowed a Complaint and an Answer; an Answer to a counterclaim denominated as such; an Answer to a cross-claim, if the Answer contains a cross-claim; a Third-Party Complaint, if a person who was not an original party is summoned to appear in an action; a Third-Party Answer, if a Third-Party Complaint is served; and a Reply, if an affirmative defense is set forth in an Answer and the pleader wishes to allege any matter constituting an avoidance of the defense.  No other pleading shall be allowed as of right.

(b)  Demurrers, Pleas, and Exceptions for insufficiency of a pleading shall not be used.

Rule 3.7.      Pleadings, Motions and Objections, General

See Rules 1.8 and 1.8-A.

Rule 3.8.      Complaint

(a)  Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain a statement of the material facts known to the pleading party on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement;  provided, however, that in any personal action a pleading shall not allege the amount of damages claimed, but shall state only that the damages claimed are within the jurisdictional limits of the court.  

(b)  An amendment to a pleading relates back to the date of the original pleading when:

(1)  a statute that provides the applicable statute of limitations allows relation back;
(2)  the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading; or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 3.8(b)(2) is satisfied and if, within the period provided for serving the summons and complaint, the party to be brought in by amendment:

(A) received such notice of the action that it will not be prejudiced in defending on the merits; and
(B) knew or should have known that the action would have been brought against it, but for a mistake or lack of information concerning the proper party’s identity.

(c)  A plaintiff against whom a counterclaim is filed and who is entitled to a trial by jury and desiring a trial by jury shall so indicate at the time plaintiff files an Answer to such counterclaim.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the plaintiff thereof.

(d) Every Complaint shall contain in the caption, or in the body of the Complaint, the names and addresses of all parties to the proceedings.

Rule 3.9.      Answers; Defenses; Forms of Denials

(a)  An Answer or other responsive pleading shall be filed with the court within 30 days after the person filing said pleading has been served with the pleading to which the Answer or response is made.  It shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the allegations upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission. All facts well alleged in the Complaint and not denied or explained in the Answer, will be held to be admitted.

In addition, within the same 30 days, the person filing an Answer or other responsive pleading shall also file an appearance in accordance with Rule 3.17.  No attorney, non-attorney representative or self-represented party will be heard until his or her Appearance is so entered.

(b)  Instead of an Answer, a person responding to a pleading to which a response is required may, within 30 days after the person has been served with the pleading to which the Answer or response is required file a Motion to Dismiss.  If a Motion to Dismiss is submitted and denied, an Answer must be filed within 30 days after the date on the Notice of the Decision finally denying the motion; provided, however, that if a Motion to Dismiss which challenges the court’s personal jurisdiction, the sufficiency of process and/or the sufficiency of service of process is filed, an Answer must be filed within the time specified in section (e) of this rule.

(c)  To preserve the right to a jury trial, a defendant entitled to a trial by jury must indicate his or her request for a jury trial upon the first page of the Answer at the time of filing.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the defendant thereof.

(d)  Failure to plead as affirmative defenses or file a Motion to Dismiss based on affirmative defenses, including the statute of limitations, within the time allowed in section (b) of this rule will constitute waiver of such defenses.
Affirmative defenses include the following:

(1) accord and satisfaction;
(2) arbitration and award;
(3) assumption of risk;
(4) contributory negligence;
(5) duress;
(6) estoppel;
(7) failure of consideration;
(8) fraud;
(9) illegality;
(10) injury by fellow servant;
(11) laches;
(12) license;
(13) payment;
(14) release;
(15) res judicata;
(16) statute of frauds;
(17) statute of limitations; and
(18) waiver.

(e)  A party does not waive the right to file a Motion to Dismiss challenging the court's personal jurisdiction, sufficiency of process and/or sufficiency of service of process by filing an Answer or other pleadings or motions addressing other issues. However, a party who wishes to challenge the court's personal jurisdiction, sufficiency of process, and/or sufficiency of service of process must do so in a Motion to Dismiss filed within 30 days after he or she is served. If a party fails to do so within this time period, he or she will be deemed to have waived the challenge. If the trial court denies the Motion to Dismiss:

(1)  The party will be deemed to have waived the challenge if the party does not seek review of the denial by the Supreme Court within 30 days of the clerk's final written notice of the trial court's decision. If the party does not seek review of the denial by the supreme court, the party must file an Answer within 30 days of the clerk's final written notice of the trial court's decision.
(2)  If the party appeals the denial, and the supreme court declines the appeal, the party must file an Answer within 30 days after the date of the supreme court's final written notice declining the appeal. The supreme court's declining to accept the appeal does not preclude a party who has complied with this section from challenging the trial court's ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court.
(3)  If the Supreme Court accepts the appeal and rejects the party's challenge, the party must file an Answer within 30 days after the date of the supreme court's final decision rejecting the challenge.

Rule 3.10.    Counterclaims, Cross-claims and Third-Party Claims

          (a)  Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

          (b) Permissive Counterclaims.  A pleading may state as a counterclaim against an opposing party any claim that is not compulsory so long as a right of action existed thereon at the time of the filing of the complaint.

          (c)  A pleading may state as a cross-claim any claim by one party against a co-party which arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim therein.

          (d)  Unless otherwise provided by law, whenever a third party may be liable to a defendant in any pending action for any of the plaintiff’s claim against said defendant, or if said defendant may have a claim against a third party depending upon the determination of an issue or issues in said pending action, said defendant may bring an action against said third party and, unless otherwise ordered on motion of any party, such action will be consolidated for trial with the pending action or, if justice requires, said third party may be made a party to the pending action, for the purpose of being bound by the determination of any common issues.  However, except for good cause shown to prevent injustice and upon such terms as the court may order, no such action will be consolidated with or said third party joined in said pending action, unless suit is brought against said third party within 30 days following filing of the defendant’s Answer in said pending action.

          (e)  A third party against whom an action is brought in accordance with this rule and a plaintiff against whom a counterclaim has been filed may, under the same circumstances prescribed by this rule, use the same procedure with respect to another person and the same time limitation shall apply, except that as to a plaintiff the 30 days will begin to run on the date the counterclaim is filed.

          (f)  This rule shall not be construed to limit or abridge in any way the existing common law practice of joining parties in pending actions whenever justice and convenience require, or the giving of notice to third parties to come in and defend any pending action or be bound by the outcome thereof.

          (g)  This rule does not apply to a defendant who contends that a third party is solely liable to the plaintiff or to a defendant in a tort action as to a possible joint tortfeasor against whom said defendant has no right to contribution or reimbursement.

          (h)  For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims or third-party claims.

Rule 3.11     Motions – General

          See Rules 1.8, 1.8-A and 1.8-B.

Rule 3.12.    Motions – Specific

(a) Motions to Amend.

(1)  No plaintiff shall have leave to amend a pleading, unless in matters of form, after a default until the defendant has been provided with notice and an opportunity to be heard, to show cause why the amendment should not be allowed.
(2)  Amendments in matters of form will be allowed or ordered, as of course, on motion; but, if the defect or want of form be shown by the adverse party, the order to amend will be made on such terms as justice may require.
(3)  Amendments in matters of substance may be made on such terms as justice may require.
(4)  Amendments may be made to the Complaint or Answer upon the order of the court, at any time and on such terms as may be imposed.

(b)  Motions to Consolidate. Whenever a Motion is filed in any Circuit Court requesting the transfer of an action there pending to another Circuit Court for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, the court may, after notice to all parties in all such pending actions and hearing, make such order for consolidation in any one of such Circuit Courts in which such actions are pending, as justice and convenience require.

(c)  Motions for Summary Judgment.

(1)  Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a as amended. Such motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the court in support of or in opposition to the Motion for Summary Judgment. Only such materials as are essential and specifically cited and referenced in the Motion for Summary Judgment, responses, and supporting memoranda shall be filed with the court. In addition, except by permission of the court received in advance, no such motion, response, or supporting memorandum of law shall exceed 20 double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the court. Excerpts of documents and discovery materials shall be used whenever possible.
(2)  The non-moving party shall have 30 days after filing of a motion for summary judgment to respond, unless another deadline is established by agreement of the parties or order of the court.
(3)  Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability and the case proceeds to trial, the parties must provide the trial judge or trier of fact with a statement of agreed facts sufficient to explain the case and place it in a proper context so that the trier of fact might more readily understand what she/he will be hearing in the remaining portion of the trial. 
(4)  Any party filing a Motion for Summary Judgment shall provide the opposing party with notice, substantially as set forth in the following form, of the obligation to file an objection and supporting affidavit within 30 days after filing of the motion.  The form of the notice in substance shall be as follows:

NOTICE TO THE DEFENDANT/OR PLAINTIFF

THIS MOTION FOR SUMMARY JUDGMENT IS FILED IN ACCORDANCE WITH RSA 502-A:27-c AND RSA 491:8-a.  IF YOU OBJECT TO THE FACTS SET FORTH IN THIS MOTION, YOU MUST FILE YOUR WRITTEN OBJECTION WITHIN 30 DAYS.  YOUR OBJECTION MUST BE ACCOMPANIED BY AN AFFIDAVIT SETTING FORTH SPECIFIC FACTS SHOWING THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF YOU FAIL TO FILE AN OBJECTION AND ACCOMPANYING AFFIDAVIT WITHIN 30 DAYS, THIS MOTION MAY BE ACTED UPON WITHOUT A HEARING OR TRIAL, AND JUDGMENT ENTERED IN FAVOR OF THE PARTY WHO FILED THE MOTION. 

          (d)  See also Rules 1.8 and 1.8A.

Rule 3.13.    Objections

(a)  A non-moving party may object or otherwise respond to a motion within 10 days after filing thereof unless: (1) the party is responding to a Motion for Summary Judgment, see RSA 491:8-a; or (2) another deadline is established by court order.

(b)  Unless a party requests oral argument or an evidentiary hearing on any motion filed by the party, or on any objection thereto by another party, setting forth by memorandum, brief statement or written offer of proof the reasons why the oral argument or evidentiary hearing will further assist the court in determining the pending issue(s), no oral argument or evidentiary hearing will be scheduled and the court may act on the motion on the basis of the pleadings and record before it. Except with respect to motions that fall within Rules 3.13(a)(1) and (2) above, such memorandum, brief statement or written offer of proof shall be filed within 10 days after the filing of the motion.  With respect to motions that fall within Rule 3.13(a)(1), such memorandum, brief statement or written offer of proof shall be filed within 30 days after the filing of the motion.  With respect to motions that fall within Rule 3.13(a)(2), such memorandum, brief statement or written offer of proof shall be filed within the deadline established by court order. Failure to object shall not, in and of itself, be grounds for granting the motion.

Rule 3.13A.           Reply and Surreply

Any party may file a reply within ten (10) days of the filing of an objection to a motion.  A party who intends to file a reply to an objection shall advise the clerk within three (3) days of the Court’s receipt of the objection.  Surreplies may only be filed with permission of the Court.

 

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