A Modest Proposal: The Rule 3(a) Waiver Agreement, 0317 COBJ, Vol. 46 No. 3 Pg. 23
| Author | Stephen E. Kapnik, Alan S. Thompson, J. |
The Civil Litigator
Stephen E. Kapnik, Alan S. Thompson, J.
This article proposes a method to litigate and manage civil actions temporarily outside of the court system by using a “Rule 3(a) waiver agreement”
Early in a case, conversations between opposing counsel regularly involve concerns about the CRCP 16 front-loaded case management obligations and case acceleration pressures on the justice system and the case itself, stemming, in part, from Chief Justice Directive 08-05.[1] This article suggests using a waiver agreement under CRCP 3(a) as a way to manage case deadlines and obligations outside of the court system, until court intervention becomes necessary. A Rule 3(a) waiver agreement frees the parties, at least initially, from rigid deadline-oriented case management and liberates courts from the often thankless and laborious administrative tasks imposed by a civil docket.
A Rule 3(a) waiver agreement takes advantage of a feature under CRCP 3(a)2 that authorizes plaintiffs to commence a case by service of process only and allows defendants to waive the 14-day filing requirement imposed on such previously served complaints.[3] This method, sometimes called “hip pocket service,” allows a plaintiff to commence a case by serving the summons and complaint without filing anything in court at or near the time of service. If a defendant timely agrees to waive the 14-day filing requirement, the parties are free to litigate their civil action on their own timeline, unless and until one or both parties decide that judicial intervention is necessary. Each party retains a unilateral option to invoke the court’s assistance and authority by simply filing the complaint and other pleadings.
Commencing a Case
CRCP 3(a) provides two methods for commencement of civil cases: filing a complaint in court, and hip pocket service. A court-filed complaint immediately becomes subject to the uniform case management system with its associated deadline-driven obligations. These deadlines arise from rules such as CRCP 4(m), which requires service of process within 63 days of the filing of the complaint, and a panoply of judicial tools for managing cases to trial within a year, such as “delay reduction orders,” which set deadlines for trial and pre-trial conferences; p re-trial order deadlines that are in addition to and sometimes conflict with CRCP 16; and initial case management orders that impose deadlines and limitations on discovery and trial presentation, including the number and types of experts. These case management constructs and deadlines impose uniform but sometimes arbitrary and unnecessary structure on civil cases.
Alternatively, commencing a case by hip pocket service and using a Rule 3(a) waiver agreement potentially limits and could eliminate the need for active court administration of a case by allowing litigants and counsel to undertake many if not all pre-trial activities outside of the constraints discussed above. Like arbitration, hip pocket service and use of a Rule 3(a) waiver agreement allow parties to resolve privately all or part of their dispute and reduce the burden on the court system.
Allowing parties the discretion to work together to create novel solutions is inherent in the rules of procedure. For example, CRCP 7(d) allows parties to dispense with pleadings altogether in appropriate cases and file an agreed statement of facts, which then serves as “an action at issue” subject to the rules of procedure. CRCP 30(b)(4) allows parties nearly complete freedom in determining how to conduct a deposition. And under CRCP 29, parties may stipulate (unless otherwise directed by the court) to various alternative discovery methods and requirements, unless such agreements “would interfere with any time set for completion of discovery, for hearing of a motion, or for trial.”
Rule 3(a) waiver agreements do not interfere with the courts’ control over the majority of cases. While parties to a Rule 3(a) waiver agreement may limit application of the CRCP 16 case management system by setting different pre-trial tasks, obligations, and deadlines, the case remains subject to the potential jurisdiction of the court. Thus a Rule 3(a) waiver agreement cannot override the CRCP 16 case management protocol.
Before court intervention, however, the parties’ use of and compliance with CRCP 16 remains flexible. The rule is triggered when a case is deemed “at issue,” which is “when all parties have been served and all pleadings permitted by C.R.C.P. 7 have been filed . . . .”4 Thus while a case may be commenced by service of process, until the complaint and answer are filed in court it is not deemed “at issue,” and the case management system and discovery and disclosure under CRCP 26 and CRCP Chapter 4 do not apply.5 In a case appropriate for a Rule 3(a) waiver agreement, the parties’ ability to stipulate to alternative case management, discovery methods, deadlines, and requirements is limited only by the parties’ claims, circumstances, and the extent to which they can cooperate and agree.
Allowing litigants to create and enforce their own deadlines and procedures without becoming subject to the trial court case management system is neither unique nor novel, even in states that have implemented complex case management structures to control unmanageable dockets. For example, in New York parties and counsel can essentially litigate a civil action privately, at least in part. Under New York C.P.L.R. 306-a, plaintiffs may commence a case by filing a complaint, petition, or summons with notice, paying the requisite fees, and thereafter obtaining an index number from a court clerk. The indexed case is not entered into the court’s case management system, but issuance of the index number allows parties to exchange pleadings and undertake discovery and other pre-trial activities on their own terms, using applicable civil rules, until and unless either party actively seeks judicial intervention (such as by asking for a trial date or motions hearing). The system is collegial, but not based on blind trust; both parties retain the ability to seek court intervention at any time.
In Minnesota, litigants may similarly commence and litigate cases without ever officially engaging with the court system. Under Minn. R. Civ. P. 3.01, plaintiffs may commence a lawsuit by hip pocket service and the parties may then voluntarily proceed to discovery and other litigation tasks without filing papers with the court. The parties file the lawsuit with the court only if they need judicial involvement.6 Some have attributed a reduction in civil lawsuits filed between 1994 and 2002 to Minnesota’s hip pocket service and its associated private litigation opportunity.[7]
When to Use a Rule 3(a) Waiver Agreement
While the Rule 3(a) waiver agreement technique appears versatile and potentially useful across many types of civil cases,8 it will not work in every case. For example, plaintiffs seeking a preliminary injunction, prejudgment attachment, or an order authoring sale under CRCP 120, and defendants seeking a threshold ruling on a CRCP 12 issue,9 may require the court’s immediate attention And some litigants may welcome the pressure and deadlines of the case management structure afforded by an active, involved judiciary. Death or incompetency of a party may mandate filing and court intervention10 Class action litigation, depositions before an action is filed, foreign depositions under letters rogatory, and actions contesting an election under CRCP 100 are also unlikely candidates for a Rule 3(a) waiver agreement.
Rule 3(a) Waiver Agreement Sample Letter
[DATE]
Dear [DEFENDANT]:
This letter accompanies the summons and complaint served upon you. The...
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