Rule 7

Advisory Committee Notes

The 2015 changes to Rule 7 repeal and reenact the rule. Many of the provisions from the former Rule 7 are preserved in the 2015 version, but there are many changes as well. The committee’s intent is to bring more regularity to motion practice. Some of these features are found in Rule 7-1 of the U.S. District Court for the District of Utah:

·         integrate the memorandum supporting a motion with the motion itself;

·         describe more uniform motion titles;

·         describe more uniform content in the memoranda;

·         regulate the process for citing supplemental authority;

·         prohibit proposed orders before a decision, except for specified motions;

·         move the special requirements for a motion for summary judgment to Rule 56;

·         allow a limited statement of facts for specified motions;

·         require an objection to evidence, rather than a motion to strike evidence; and

·         require a counter-motion rather than a motion in the opposing memorandum.

The 2015 amendments in this rule, as well as in Rule 54 and Rule 58A, respond to the Supreme Court’s directive to the committee in Central Utah Water Conservancy District v. King, 2013 UT 13 ¶27. In that case the Supreme Court directed the committee to address the problem of undue delay when the parties fail to comply with former Rule 7(f)(2). A major objective of the 2015 amendments is to continue the policy of clear expectations of the parties established in:

·         Butler v. Corporation of The President of The Church of Jesus Christ of Latter-Day Saints, 2014 UT 41

·         Central Utah Water Conservancy District v. King, 2013 UT 13;

·         Giusti v. Sterling Wentworth Corp., 2009 UT 2;

·         Houghton v. Dep't of Health, 2008 UT 86; and

·         Code v. Dep’t of Health, 2007 UT 43.

However, the 2015 amendments do so in a manner simpler than the “magic words” required under the former Rule 7(f)(2).

In these cases, the Supreme Court established a policy favoring a clear indication of whether a further document would be required from the parties after a judge’s decision. The parties should not be required to guess what, if anything, should come next.

There were three ways to meet the test: a proposed order was submitted with the supporting or opposing memorandum; an order was prepared at the direction of the judge; the decision included an express indication that a further order was not required. The 2015 amendments remove a proposed order from the process in most circumstances. The trend under the former rule was to include in every order an indication that nothing further was required, sometimes even when the order expressly directed a party to prepare a further order. In other cases orders were prepared in some manner other than as described in the rule, yet the order did not expressly state that nothing further was required. The order technically was not complete, but everyone proceeded as if it were.

The 2015 amendments continue the policy of a bright-line test for a completed decision but do not rely on conditions that might or might not be met. The one condition that can be counted on is the judge’s signature. Under the former rule, a completed decision was imposed by operation of law when the order was prepared in one of the recognized ways. The 2015 rule imposes a completed decision by operation of law when the document memorializing the decision is signed. Under the former rule, the judge’s silence meant that something further was required, unless the order was prepared in one of the ways described in Rule 7. The presumption in the 2015 amendments is the opposite: silence means that nothing further is required from the parties. Judges can expressly require an order confirming a decision if one is needed in a particular case.

The committee recognizes the many different forms a judge’s decision might take, and discussed defining “order,” but decided against the attempt. There are too many variations. If written, the document might be titled “order,” “ruling,” “opinion,” “decision,” “memorandum decision,” etc. The decision might not be written; an oral directive is an order. A clerk’s minute entry of an oral decision is, when signed by the judge, treated the same as a written order. The committee decided instead to modify a phrase of long standing from Rule 54(b)—“a decision, however designated”—in this rule and in Rule 58A. In this rule, however a judge’s decision may be designated, that decision is complete when the judge signs the document memorializing the decision. Whether there is a right to appeal is determined by whether the decision—or subsequent order confirming the decision—is a judgment. That analysis is governed by Rule 54. When the judgment is entered is governed by Rule 58A. If the order is not a judgment, the time in which to petition for permission to appeal under Rule of Appellate Procedure 5 is calculated from the date on which an order confirming an earlier decision is entered, but only if the judge directs that a confirming order be prepared. If the judge does not direct that a confirming order be prepared, the time is calculated from the date on which the decision, however designated, is entered.

The 2017 amendments to Rule 7 return pre-2015 paragraph (b)(2) language addressing limits on orders to show cause to new paragraph (q) and also clarify the discretion the court retains to manage its docket. Paragraph (q) is directed only at limitations on order to show cause proceedings initiated by parties.