Good Cause Not Required for Extension of Service Period

• Author: Ashlee E. Hamilton
• Pages: 21-23

that the facts in que stion should be deemed admitted wit h-

out challenge. Once t he parties have stipulated to admitte d

facts, a part y will not later be permitted to d isprove a stipu-

lated fact.

Parties may stipul ate to the authentication a nd admis-

sibility of tria l exhibits. The se stipulations ma ke it unnec-

essary to use t ime at trial to authenticate document s or to

establish t he admissibility of exh ibits where admissibility i s

not disputed. They ca n be particularly helpful in t rials where

each side gets a lim ited amount of time. I n addition, parties

sometimes begi n settlement discussion while motions are

pending, and t he litigants may stipulate to withdraw pend-

ing motions while t hey pursue settlement.

Finally, under Rule 39(a), even when a jury tri al has been

demanded, the pa rties may waive the right to jury tria l by

ling a stipul ation to a nonjury trial or by s o stipulating on

the record.

Stipulations Strictly Construe d

A stipulation can be u sed for entry of judgment to dismiss

claims aft er summary judgment. Be espe cially careful in

such circumst ances. The court will st rictly construe the

stipulation. Is the s tipulation for dismissal with or wit hout

prejudice? Does the st ipulation preserve the r ight to appeal?

In David son v. O’Reilly Auto Enter prises, LLC, the Ninth

Circuit recent ly held that a party rel inquished her right to

appeal the dism issal of a wage statement cla im by stipulating

that judgment be entered “i n accordance” with an adverse

ruling but wit hout reserving th e right to appeal

her wage statement claim . The circuit court

found that the right to appe al the claim “was

not a term of the agreeme nt.”

What You Cannot Do by Stipulati on

Some things t he parties cannot do by mere

agreement. Parties cannot by agreement confer

federal subject mat ter jurisdiction upon a fed-

eral court. I n Insurance Corp. of Irelan d, Ltd.

v. Compagnie d e Bauxites de Guinee, t he U.S.

Supreme Court emphasi zed that because federal

subject matter jur isdiction derives s olely from Article III of

the Constitut ion, “the consent of the pa rties is irrele vant.”

Similarly, part ies cannot dene the law for the cour t by

agreement or stipulat ion. Litigants cannot stipulate to give

jury instr uctions that incorrectly state t he law. A stipulation

cannot extend t he statute of limitations. Partie s may, how-

ever, enter into a tolling agr eement to extend the t ime for a

plaintiff to  le suit. Private tolling agreements do not need

court app roval.

Nor can parti es amend a scheduli ng order simply by stip-

ulation. If the pa rties agree on how much additional time i s

needed, the par ties may present a joint request to the court

that shows good cause for the ex tension of deadlines.

Do not assume that an a greement between counsel on a

continuance is su fcient for the cou rt to grant the reque st. It

is not. Courts wa nt to keep cases moving for ward. Although

jury trials h ave largely been suspende d due to the coronavi-

rus pandemic , in most federal cour ts motion hearings and

other civil proce edings are oc curring by Zoom or telephoni-

cally. Even depositions and set tlement conferences are being

conducted via Zoom . Courts were congested before the pan-

demic and the pande mic has only exacerbate d delays. This

does not mean the cou rt will necessarily rejec t the parties’

request to extend dates . It just means you will have to make

a proper showing based on t he specic fact s and circum-

stances in your c ase.

You will still need to convi nce the judge that the nee d

for more time was not caused by d ilatory or delaying tactics

on either side. The stipul ation should explain t hat the par-

ties have been dil igent in moving the case along and should

include facts that suppor t that assertion. This is espe cially

true when seeki ng to extend discovery cutoff or deadli nes for

bringing di spositive motions, or to move the t rial date.

Can You Withdraw a Stipulatio n?

After the cou rt enters a stipulation in a civil case , can you

withdraw it? Maybe. It wi ll depend on the nature of the

stipulation, the i mportance of the i ssues to resolution on the

merits, and the st age of the proceedings. To correct a minor

error, you can simply submit an am ended stipulation that ,

when signed by the cour t, will supersede the previous one.

If the need to withd raw the stipulation is the result of a

more substantive error, promptly noti fy opposing counsel

and bring it to the cour t’s attention. An agg rieved party can

move to withdraw the stipulat ion. The court w ill want to

know why the stipulation was erron eous or if an opposing

party has b een somehow misled. Ha s it caused delay? Was

there a mutual mis take? Will prejudic e result if the stipu la-

tion is not withdrawn? A ll the relevant evidence

should be presented to the cou rt in sworn af-

davits or declaration s with supporting le gal

memoranda. If the i ssue is disputed, the court

may require ful l brieng and hold a hea ring.

Stipulations can s eem routine in complex

litigation, but bec ause the implication s can be

far reaching, ne ver approach them casually.

Take great care to consider how the ag reement

will impact your c ase going forward. This does

not require that you be ree xively disagree able.

It simply means you must be st rategic—even

when it seems that a str aightforward st ipulation is all th at

is needed to change a dead line. Failing to do so could risk

annoying the cou rt and jeopardizing your client’s case.

RESOURCES

Fed. R. Civ. P. 1.

Fed. R. Civ. P. 39(a)(1).

Davidson v. O’ Reilly Auto Enters., LLC , 968 F.3d 955 (9th Cir.

2020).

Ins. Cor p. of Ireland, Ltd. v. Comp agnie de Bauxites de Guine e,

456 U.S. 6 94 (1982).

Before agreeing

to stipulate,

make sure you

understand the

consequences

of the proposed

agreement.

AMERICA N BAR ASSOCIATION SPRING 20 21 • VOL. 46 NO. 3 | 19

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.