75 J. Kan. Bar Assn. 4, 28-35 (2006). Comparison of Federal and State Court Practice.

Author:By David G. Seely, Charles E. Millsap, and Ron Campbell

Kansas Bar Journal

Volume 75.

75 J. Kan. Bar Assn. 4, 28-35 (2006).

Comparison of Federal and State Court Practice

Kansas Bar Journal75 J. Kan. Bar Assn. 4, 28-35 (2006)Comparison of Federal and State Court PracticeBy David G. Seely, Charles E. Millsap, and Ron CampbellI. Introduction

Whether as a result of removal from state court or the client being sued in federal court, a Kansas lawyer can unexpectedly find himself or herself in federal court. The infrequent federal court practitioner should not make the mistake of assuming that the conventions of civil practice from Kansas courts will apply. Despite the similarities between the Kansas Code of Civil Procedure and the Federal Rules of Civil Procedure, there are some significant differences between state and federal practice that the Kansas lawyer should know in order to avoid unfortunate surprises.

  1. A Different Environment: ECM/ECF

    Perhaps the most dramatic recent change in the U.S. District Court for the District of Kansas has been the implementation of Electronic Case Management/Electronic Case Filing (ECM/ECF). In March 2003, the District of Kansas became one of the first federal district courts to implement this electronic system. ECF establishes and requires a "paperless" court file, with all documents (except the initial complaint, summons, and civil cover sheet) submitted and recorded in electronic form only.(fn1) Filings and service are made via the Internet, using the court's electronic interface, not e-mail. Notices and orders from the court are also issued in electronic form only.

    This electronic environment is now a fact of life. In order to appear and file papers in federal court, a lawyer must register and participate in electronic transmission of documents.(fn2) The ECF system affords 24-hour electronic access to court documents and permits round-the-clock filing. Each document filed or generated by the ECF system may be downloaded or viewed once at no charge. After the initial viewing of a document, access to the court's electronic case file is subject to a per page fee.

    The technological requirements include a PC running a recent version of Windows or Macintosh, Internet access, a reliable browser, a scanner (for documents to be filed as exhibits), WordPerfect software (for submission of proposed orders), and Adobe Acrobat or other software capable of creating and viewing a PDF image file. Free ECM/ECF training is available from court staff,(fn3) and the Kansas Continuing Legal Education Commission has approved this program for two hours of CLE credit.

    The court has adopted Administrative Procedures for ECM/ECF, which are available on the court's Web site, along with the court's published local rules.(fn4)

  2. Standing Orders and Judges' Guidelines

    Upon learning of the judge assigned to the federal district court case, it is imperative that counsel review any standing orders and written guidelines issued by that particular judge. These items can be accessed and reviewed on the federal district court's Web site under the Chambers and Judges link.(fn5) It is strongly recommended that these be reviewed early, rather than on the eve of trial. The orders and guidelines cover a number of different topics, such as required chamber's copies of electronically-filed motions and memos, limits on the length and format of briefs, exhibits, instructions, and general courtroom conduct rules.

  3. Commencement of Action - Service Issues

    The differences between federal and state practice begin with the initial pleading. A civil action is commenced in federal court by filing a complaint,(fn6) while in state court, such a pleading is titled a petition.(fn7)

    Commencement of federal claims is governed by federal law.(fn8) Under Fed. R. Civ. P. 3, an action "is commenced by filing a complaint with the court," and the plaintiff then has 120 days to obtain service of the summons and complaint, under Fed. R. Civ. P. 4(m). Commencement of state law claims filed under federal diversity jurisdiction is governed by state law.(fn9) Under K.S.A. 60-203, an action is commenced if filed and service obtained within 90 days, unless extended for good cause.

    Timely service is important in a case filed close to the expiration of the statute of limitations. Under Fed. R. Civ. P. 4(m), a plaintiff has 120 days to obtain service of the summons and complaint, but the court can extend the time for service for an "appropriate period" upon a showing of good cause. Federal courts have held that "good cause is more than simple inadvertence, mistake, or ignorance,"(fn10) and "neither reliance upon a third party or process server nor half-hearted efforts by counsel to effect service constitute good cause."(fn11) Likewise the fact that the defendant has actual notice of the lawsuit and the absence of prejudice to the defendant does not constitute good cause.(fn12) The plaintiff has the burden of showing good cause.(fn13) If the plaintiff fails to show good cause, the court must then consider whether a permissive extension of time is warranted or whether the case should be dismissed without prejudice.(fn14)

    Under K.S.A. 60-203, a plaintiff has 90 days to obtain service, but the court can grant a 30-day extension for good cause. The 30-day extension must be requested and granted within the initial 90-day period.(fn15) Failure to have a summons issued or take other steps to obtain service within the first 90 days may result in the denial of the extension request.(fn16)

  4. Punitive Damages

    In 1987, the Kansas Legislature enacted a set of procedural and substantive statutes to govern the award of punitive damages in tort actions.(fn17) When a state tort claim for which punitive damages may be recoverable is litigated in federal district court, you must not assume that all of the punitive damages provisions of the Kansas Code of Civil Procedure will apply.

    Kansas state law provides the following rules, both substantive and procedural, for an award of punitive damages. Great care must be exercised in identifying those rules that are applied in federal court and those that are not.

    1. Pleading

      In state court, no claim for punitive damages may be included in the original petition or pleading. The party seeking an award of punitive damages must move the court for permission to amend the pleading to add such a claim. The motion must be filed before the date of the final pretrial conference. On the basis of supporting and opposing affidavits, the court may allow the amendment where the movant has established a probability that it will prevail on the claim for punitive damages.(fn18)

      Our Kansas federal district courts have consistently held that the pleading procedure of K.S.A. 60-3703 does not apply in a diversity action. Punitive damages are items of "special damage" that must be set forth in the complaint in accordance with Fed. R. Civ. P. 9(g), and there is no requirement of court approval for a request for such damages.(fn19)

      In federal district court a claim for punitive damages must be included in the initial pleading containing the cause of action for which such damages are recoverable (e.g., the complaint, counterclaim, or cross-claim). If your state court tort action is removed to federal district court, your petition will likely not include a request for punitive damages. In that case, you must move, at the earliest opportunity, to amend your pleading to include such a claim. In Section 3(a) of the federal district court's Rule 16 scheduling order, the parties will be provided with a deadline to move to amend the pleadings. For a plaintiff in a removed case, this should be treated as the deadline for moving to amend the pleading to include a claim for punitive damages.

    2. The decision to award punitive damages

      In Kansas state courts the trier of fact (usually the jury) determines, concurrent with all of the issues presented, whether punitive damages should be awarded. However, the jury does not set the amount of punitive damages. If the jury determines that punitive damages should be awarded, the court conducts a separate proceeding to determine the amount of such damages.(fn20)

      Questions often arise regarding the jury's role in a diversity tort action trial involving a claim of punitive damages. Implicated in such questions are the Erie doctrine,(fn21) the Seventh Amendment right to trial by jury,(fn22) and Fed. R. Civ. P. 38(a).(fn23) There are many examples of cases where Kansas federal district court judges have themselves determined the amount of punitive damages to be awarded in a diversity jury trial action, in apparent compliance with the procedure set forth in K.S.A. 60-3702(a). In fact, a majority of published District of Kansas cases hold that the court should follow K.S.A. 60-3702(a) and set the amount of punitive damages to be awarded.(fn24) However, in a recent and thorough discussion of the role of a jury in a diversity tort case wherein punitive damages are sought, authored by Senior Judge Wesley E. Brown, the court held that there is a right to jury trial on the amount of punitive damages.(fn25)

      Following a detailed analysis of the interplay between the Seventh Amendment and the Erie doctrine and a discussion of the history of the treatment of this issue in the U.S. District Court for the District of Kansas, Judge Brown determined that K.S.A. 60-3702(a)'s provisions for a court determination of the amount of punitive damages are not applicable ...

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