State of Maine Rules of Civil Procedure for 2012

Last reviewed and edited December 15, 2011 Includes amendments effective January 1, 2012

THE MAINE RULES OF CIVIL PROCEDURE

TABLE OF CONTENTS I. SCOPE OF RULES - ONE FORM OF ACTION RULE 1. SCOPE OF RULES RULE 2. ONE FORM OF ACTION II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS RULE 3. COMMENCEMENT OF ACTION RULE 4. PROCESS RULE 4A. ATTACHMENT RULE 4B. TRUSTEE PROCESS RULE 4C. ARREST [ABROGATED] RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS RULE 6. TIME III. PLEADINGS AND MOTIONS RULE 7. PLEADINGS ALLOWED: FORM OF MOTIONS RULE 8. GENERAL RULES OF PLEADING RULE 9. PLEADING SPECIAL MATTERS

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RULE 10. FORM OF PLEADINGS RULE 11. SIGNING OF PLEADINGS AND MOTIONS; SANCTIONS* RULE 12. DEFENSES AND OBJECTIONS--WHEN AND HOW PRESENTED BY PLEADING OR MOTION—MOTION FOR JUDGMENT ON PLEADINGS RULE 13. COUNTERCLAIM AND CROSS-CLAIM RULE 14. THIRD-PARTY PRACTICE RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS RULE 16. PRETRIAL PROCEDURE IN THE SUPERIOR COURT RULE 16A. PRETRIAL PROCEDURE IN THE DISTRICT COURT RULE 16B. ALTERNATIVE DISPUTE RESOLUTION IV. PARTIES RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY RULE 17A. SETTLEMENT OF CLAIMS OF INFANT PLAINTIFFS RULE 18. JOINDER OF CLAIMS AND REMEDIES RULE 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION RULE 20. PERMISSIVE JOINDER OF PARTIES RULE 21. MISJOINDER AND NONJOINDER OF PARTIES

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RULE 22. INTERPLEADER RULE 23. CLASS ACTIONS RULE 23A. DERIVATIVE ACTIONS BY SHAREHOLDERS RULE 23B. DERIVATIVE ACTIONS BY MEMBERS OF UNINCORPORATED ASSOCIATIONS RULE 24. INTERVENTION RULE 25. SUBSTITUTION OF PARTIES V. DEPOSITIONS AND DISCOVERY RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY RULE 27. DISCOVERY BEFORE ACTION OR PENDING APPEAL RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE RULE 30. DEPOSITIONS UPON ORAL EXAMINATION RULE 31. DEPOSITIONS UPON WRITTEN QUESTIONS RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS RULE 33. INTERROGATORIES TO PARTIES RULE 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

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RULE 36. REQUESTS FOR ADMISSION RULE 37. FAILURE TO MAKE DISCOVERY: SANCTIONS VI. TRIALS RULE 38. JURY TRIAL OF RIGHT IN THE SUPERIOR COURT RULE 39. TRIAL BY JURY OR BY THE COURT RULE 40. ASSIGNMENT OF CASES FOR TRIAL; CONTINUANCES RULE 41. DISMISSAL OF ACTIONS RULE 42. CONSOLIDATION; SEPARATE TRIALS RULE 43. TAKING OF TESTIMONY RULE 44. PROOF OF OFFICIAL RECORD RULE 44A. DETERMINATION OF FOREIGN LAW RULE 45. SUBPOENA RULE 46. PRESERVING OBJECTIONS RULE 47. JURORS RULE 48. MAJORITY VERDICT; STIPULATIONS AS TO NUMBER RULE 49. SPECIAL VERDICTS AND INTERROGATORIES RULE 50. JUDGMENT AS A MATTER OF LAW

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RULE 51. ARGUMENT OF COUNSEL; INSTRUCTIONS TO JURY RULE 52. FINDINGS BY THE COURT RULE 53. REFEREES VII. JUDGMENT RULE 54. JUDGMENTS; COSTS RULE 54A. COURT FEES RULE 55. DEFAULT RULE 56. SUMMARY JUDGMENT RULE 57. DECLARATORY JUDGMENTS RULE 58. ENTRY OF JUDGMENT RULE 59. NEW TRIALS: AMENDMENT OF JUDGMENTS RULE 60. RELIEF FROM JUDGMENT OR ORDER RULE 61. HARMLESS ERROR RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT RULE 63. INABILITY OF A JUDGE TO PROCEED VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS RULE 64. REPLEVIN RULE 65. INJUNCTIONS

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RULE 66. CONTEMPT PROCEEDINGS RULE 67. DEPOSIT IN COURT RULE 68. OFFER OF JUDGMENT RULE 69. EXECUTION RULE 70. JUDGMENT FOR SPECIFIC ACTS RULE 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES IX. APPEALS TO THE LAW COURT RULE 72 through RULE 76B are REPLACED BY MAINE RULES OF APPELLATE PROCEDURE IX-A. REMOVAL AND APPEAL FROM THE DISTRICT COURT TO THE SUPERIOR COURT OR THE LAW COURT RULE 76C. REMOVAL TO THE SUPERIOR COURT FOR JURY TRIAL RULE 76D. APPEAL TO THE SUPERIOR COURT RULE 76E. JOINT OR SEVERAL APPEALS TO THE SUPERIOR COURT RULE 76F. RECORD ON APPEAL TO THE SUPERIOR COURT RULE 76G. BRIEFS AND ORAL ARGUMENTS IN THE SUPERIOR COURT RULE 76H. ELECTRONIC SOUND RECORDING RULE 76I. REPLACED BY MAINE RULES OF APPELLATE PROCEDURE X. SUPERIOR AND DISTRICT COURTS AND CLERKS

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RULE 77. SUPERIOR AND DISTRICT COURTS AND CLERKS RULE 78. [RESERVED] RULE 79. BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES THEREIN XI. SPECIAL RULES FOR CERTAIN ACTIONS RULE 80. DIVORCE AND ANNULMENT RULE 80A. REAL ACTIONS RULE 80B. REVIEW OF GOVERNMENTAL ACTION RULE 80C. REVIEW OF FINAL AGENCY ACTION RULE 80D. FORCIBLE ENTRY AND DETAINER RULE 80E. ADMINISTRATIVE INSPECTION WARRANTS RULE 80F. TRAFFIC INFRACTIONS RULE 80G. ACTIONS FOR LICENSE REVOCATION OR SUSPENSION RULE 80H. CIVIL VIOLATIONS RULE 80I. SEARCH WARRANTS FOR SCHEDULE Z DRUGS RULE 80J. WARRANTS FOR SURVEYS AND TESTS RULE 80K. LAND USE VIOLATIONS RULE 80L. JURY TRIAL DE NOVO IN SMALL CLAIMS APPEALS TO THE SUPERIOR COURT RULE 80M. MEDICAL MALPRACTICE SCRENING PANEL PROCEDURES

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XII. GENERAL PROVISIONS RULE 81. APPLICABILITY OF RULES RULE 82. JURISDICTION AND VENUE UNAFFECTED RULE 83. DEFINITIONS RULE 84. FORMS RULE 85. TITLE RULE 86. EFFECTIVE DATE RULE 87. PUBLICATION OF ORDERS AND STANDARDS RULE 88. ASSIGNMENT OF COUNSEL RULE 89. WITHDRAWAL OF ATTORNEYS; VISITING LAWYERS; TEMPORARY PRACTICE WITH LEGAL SERVICES ORGANIZATIONS RULE 90. LEGAL ASSISTANCE BY LAW STUDENTS RULE 91. PROCEEDINGS FOR WAIVER OF PAYMENT OF FEES OR COSTS RULE 92. COURT ALTERNATIVE DISPUTE RESOLUTION SERVICE RULE 93. FORECLOSURE DIVERSION PROGRAM XII. FAMILY DIVISION RULE 100. SCOPE OF THE FAMILY DIVISION RULES RULE 100A. FORM OF ACTION RULE 101. COMMENCEMENT OF ACTION RULE 102. CONFIDENTIALITY

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RULE 103. PROCESS RULE 104. PRELIMINARY INJUNCTION RULE 105. ANSWER; RESPONSE; COUNTERCLAIM RULE 106. DEFENSES RULE 107. ORDERS PRIOR TO JUDGMENT RULE 108. CHILD SUPPORT AFFIDAVITS AND WORKSHEETS,

FINANCIAL STATEMENTS, AND REAL ESTATE CERTICATES RULE 109. FAILURE TO APPEAR; SANCTIONS RULE 110A. PREHEARING SCHEDULE AND PROCEDURE FOR CASES

INVOLVING MINOR CHILDREN RULE 110B. PREHEARING SCHEDULE AND PROCEDURE FOR CASES

INVOLVING NO MINOR CHILDREN RULE 111. JOINDER, CONSOLIDATION AND INTERVENTION RULE 112. DISCOVERY RULE 113. TIME FOR FINAL HEARING RULE 114. TRIAL RULE 115. NO JUDGMENT WITHOUT HEARING; JUDGMENTS TO BE

FINAL RULE 116. DISMISSAL OF ACTIONS RULE 117. DEFAULT RULE 118. FINAL ORDERS OF FAMILY LAW MAGISTRATES; JUDICIAL

REVIEW RULE 119. REFEREES

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RULE 120. POST-JUDGMENT RELIEF RULE 121. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT RULE 122. TRANSFER FROM SUPERIOR COURT TO DISTRICT COURT RULE 123. APPEALS TO THE LAW COURT RULE 124. REMOVAL TO SUPERIOR COURT RULE 125. EFFECTIVE DATE

MAINE RULES OF CIVIL PROCEDURE

I. SCOPE OF RULES - ONE FORM OF ACTION

RULE 1. SCOPE OF RULES These rules govern the procedure in the District Court, in the Superior Court, and before a single justice of the Supreme Judicial Court in all suits of a civil nature whether cognizable as cases at law or in equity, including appeals from a governmental agency, with the limitations stated in Rule 81. They shall be construed to secure the just, speedy and inexpensive determination of every action.

Advisory Committee’s Notes July 1, 2009

The amendment to Rule 1 removes a sentence addressing appeals that existed in the Rule before adoption of the Maine Rules of Appellate Procedure. The Maine Rules of Appellate Procedure now govern procedure in the Supreme Judicial Court sitting as the Law Court in both civil and criminal cases. Continuance of this sentence in the Civil Rules has occasionally created confusion, particularly regarding applicability of M.R. Civ. P. 6(c) that extends prescribed response time limits by three days when service of a document requiring a response is made by mail. A similar provision is not incorporated in the rules governing appeals. Rule 15 of the Maine Rules of Appellate Procedure incorporates Rule 6(a) but not Rule 6(c) of the Maine Rules of Civil Procedure.


The words to be stricken “and cases appealed or removed from the District Court” are a vestige from the era when the Rules of Civil Procedure only applied to matters in the Superior Court. As the rules now apply to all matters before the District Court, these words are unnecessary and potentially confusing.

Advisory Committee's Note December 31, 1967

Rule 1 is amended to reflect the fact that the District Court has now completely superseded the former municipal courts and trial justices. To be consistent with the broader terminology in Rule 80B as amended, the phrase “governmental agency” is substituted for “administrative agency.”

Reporter's Notes December 1, 1959

These rules cover all suits of a civil nature in the Superior Court and before a single justice of the Supreme Judicial Court with the limitations stated in Rule 81. They are promulgated under the authority of the rules enabling act (Public Laws of 1957, c. 159 [now 4 M.R.S.A. § 8]), which expressly provides that after they become effective “all laws and rules in conflict therewith shall be of no further force or effect.” No further legislative action was necessary to make the rules effective, but on the recommendation of the justices of the Supreme Judicial Court and the Rules Advisory Committee the Legislature adopted Public Laws of 1959, c. 317. This legislation repealed the statutes which would be wholly superseded by the rules and amended those which would be superseded in part. The objective was to avoid the confusion and uncertainty which would result from the continued presence in the statutes of provisions no longer of force or effect. Additional changes were made in order to harmonize the statutes with the rules or to forestall possible litigation as to whether a rule believed by the Court to be essential to the modernization of Maine procedure was within the grant of delegated power. When Public Laws of 1959, c. 317, was enacted, the Legislature had before it a draft of these rules which it was advised by the Court were in substantially final form. There was also presented to the Judiciary Committee of the Legislature a memorandum from the Rules Advisory Committee explaining the proposed statutory changes. The legislation was enacted substantially in the form proposed. The effective date of the statute was made December 1, 1959, to coincide with the announced effective date of these rules. The rules enabling act also authorized promulgation of rules for civil actions in the Municipal Courts and before trial justices. Procedure in the Municipal Courts is covered by the Municipal Court Civil Rules, promulgated simultaneously with these rules, but it has not been thought necessary to provide by rule for actions before trial justices. R.S.1954, Chap. 110 [§§ 1-21, 23, repealed in 1963],

dealing with trial justices, has been amended, however, to achieve a degree of conformity with the procedure under the rules. Included herein are certain rules, such as Rule 76A, governing practice in the Law Court in civil actions. They are not based upon the authority of the enabling act, but stem from the inherent rule-making power of the Court. They replace the present Supreme Judicial Court Rules governing such practice.

RULE 2. ONE FORM OF ACTION

There shall be one form of action to be known as “civil action.”


This rule is the same as Federal Rule 2. It abolishes the common law forms of action and effects a procedural merger of law and equity. The abolition of the forms of action has long since been achieved in all but a few states, and the merger of law and equity has similarly been a common reform. The right to a specific kind of legal or equitable relief upon proof of certain facts is not changed. The enabling act specifically authorized the merger of law and equity so as to secure one form of action. The effecting of such merger was complicated by the fact that at law the jurisdiction of the Superior Court is exclusive of that of the Supreme Judicial Court, while in equity the jurisdiction of the two courts is concurrent. Plainly law and equity could not be merged so long as these differences in original jurisdiction existed. Accordingly R.S.1954, Chap. 106, Sec. 5, [now 4 M.R.S.A. § 105] and Chap. 107, Sec. 4, [now 14 M.R.S.A. § 6051] have been amended so as to give exclusive original jurisdiction to the Superior Court of all cases whether legal or equitable in their nature, except those brought by extraordinary writ. See R.S.1954, Chap. 107, Sec. 1 [now 14 M.R.S.A. § 5301]. It is provided, however, that a single justice of the Supreme Judicial Court shall have full jurisdiction and power to hear, with his consent, any case in the Superior Court where trial is without jury. Public Laws of 1959, c. 317, § 74 [now 4 M.R.S.A. § 105]. The practical effect is to continue the desirable existing practice of having single justices of the Supreme Judicial Court hear equity cases. The phrasing in terms of trial without jury instead of trial of equity cases is simply to preserve the principle of merging law and equity. There is no thought that justices of the Supreme Judicial Court will sit in ordinary jury-waived cases of a legal nature. The amended statute requires the consent of the Supreme Judicial Court justice to hear such a case; and it may be assumed that such consent will not be forthcoming unless the case is equitable in nature.

Statutes providing for actions at law or suits in equity or specifying a named common law form of action are to be treated as referring to the civil action prescribed by these rules. This is spelled out in Rule 81(a).

II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

RULE 3. COMMENCEMENT OF ACTION

Except as otherwise provided in these rules, a civil action is commenced (1) by the service of a summons and complaint, or (2) by filing a complaint with the court. When method (1) is used, the complaint must be filed with the court within 20 days after completion of service. When method (2) is used, the return of service shall be filed with the court within 90 days after the filing of the complaint. If the complaint or the return of service is not timely filed, the action may be dismissed on motion and notice, and in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney fee as costs in favor of the defendant, to be recovered of the plaintiff or the plaintiff’s attorney.

Advisory Committee’s Note 1989

Rule 3 is amended to cure an omission which has existed since the original promulgation of the Rule. When a civil action is commenced by service, there is a 20-day time limit within which the complaint must be filed with the court. There is no comparable requirement that service be accomplished within a stated time when the action has been commenced by filing the complaint with the court. Although some leeway to account for difficulties in making service is desirable, there have been recent instances of actions filed against easily served entities such as hospitals or housing authorities in which service has not been accomplished for a year or more after the filing of the complaint. Such delay is not only inappropriate and potentially prejudicial to defense preparation. It is also inconsistent with other measures recently taken to expedite the pretrial proceedings. See 1988 Amendment of M.R. Civ. P. 16. In 1983, as part of a major revision of service of process procedures under which service is to be made by the plaintiff rather than by the United States marshal, Congress added Rule 4(j) to the Federal Rules of Civil Procedure. This provision imposed a 120-day time limit on service after filing and plainly reflected the concern of Congress that, with the clerk no longer controlling service, some sanction was necessary to avoid delay and abuse. Before the 1983 amendment, under Federal Rule 4(a), there was practice of dismissal for untimely service if process was not served “forthwith” by the marshal under the clerk’s direction.

Without even the support of “forthwith” in Maine Rule 4(b), Maine judges have been understandably reluctant to impose sanctions for untimely service, despite the encouragement of 1 Field, McKusick, and Wroth, Maine Civil Practice § 4-1 (2d ed. 1970). But see Order, Dalot v. Smith, No. CV-86-75 (Me. Super Ct., Franklin Co., 6-3-88) (Alexander, J.). [See Dalot v. Smith, 551 A.2d 448, 449 (Me. 1988).] The present amendment addresses this situation by imposing a requirement that return of service must be filed within 90 days after the filing of the complaint with the sanction of dismissal and, in the event of a vexatious filing, imposition of attorney fees. Of course, in a case where a justifiable reason for further delay is present, the 90-day period may be enlarged by court order under M.R. Civ. P. 6(b). For similar rules in other states, see Vt. R. Civ. P. 3; Mass. R. Civ. P. 4(j) (eff. 7/1/88).

Advisory Committee’s Note January 1, 1973

By simultaneous amendments made to Rules 4A(c), 4B(e) and 64(c), either an action in which attachment of personal property or on trustee process is sought or an action of replevin may be commenced only by filing the complaint with the court. Any other civil action may still be commenced by the first method prescribed in Rule 3, namely, by service of a summons and complaint. The qualifying phrase at the outset of Rule 3 is intended to refer to those provisions relating to attachments and replevin which prohibit in those circumstances the use of the first method for commencement of the action. Although the attachment of real estate is, under Rule 4A as amended, still permitted without prior notice and hearing and therefore the action could be commenced without first filing the complaint with the court,∗ it is thought unnecessary to preserve the requirement in Rule 3 that the complaint be filed not later than 30 days after the first real estate attachment.


∗ [Field, McKusick & Wroth comment that this is not true since the August 1, 1973, amendments. Field, McKusick & Wroth, Maine Civil Practice § 3.1 at 23 (Supp. 1981).]

This rule is unchanged except for the increase from 10 to 20 days of the period within which the complaint must be filed in court after service has been completed when method (1) for commencing the action has been used. The time for filing is increased because it has been reported that some lawyers have been caught by overlooking the 10-day rule. The error, when committed, is not a major one, since filing the complaint within the prescribed time is not a jurisdictional act and motions to permit late filing are commonly granted. Yet the Committee feels the increase to 20 days, corresponding generally to the time for filing a responsive pleading, would make for smoother operation of the rule. Rule 4C(b) relating to arrest prescribes a 10-day period for filing the complaint in court on penalty that a defendant arrested on a capias writ would otherwise be released. Since arrest in civil actions is looked upon with disfavor, no lengthening of that period is proposed.


This rule abolishes the practice of commencing actions by original writ. The first of the two methods for commencing an action is by the service of a summons and complaint prior to filing in court. This is analogous to existing practice at law under which an action is commenced by drawing a writ and placing it in the hands of an officer for service. Although original writs are no longer to be used, the possibility of commencing an action by service is retained in order not to lessen the effectiveness of attachment or trustee process. See Rules 4A and 4B. If an action is commenced by this method, the complaint must be filed with the court within specified time limits. This changes the existing practice at law, where nothing need be entered in court until the day the writ is returnable. The provision for taxing the plaintiff with a reasonable attorney's fee if the court finds that an action was vexatiously commenced is new to Maine law. The second method of commencing an action is by filing a complaint with the court. This is the exclusive method of commencing an action under the Federal Rules and corresponds to existing equity practice in Maine.


RULE 4. PROCESS (a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint. (b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make return of service and a copy of the summons and of the complaint for service upon the defendant. (c) Service. Service of the summons and complaint may be made as follows: (1) By mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this paragraph is received by the sender within 20 days after the date of mailing, service of the summons and complaint shall be made under paragraph (2) or (3) of this subdivision. (2) By a sheriff or a deputy within the sheriff’s county, or other person authorized by law, or by some person specially appointed by the court for that purpose. Special appointments to serve process shall be made freely when substantial savings in travel fees will result. (3) By any other method permitted or required by this rule or by statute.

(d) Summons: Personal Service. The summons and complaint shall be served together. Personal service within the state shall be made as follows: (1) Upon an individual other than a minor or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made pursuant to subdivision (g) of this rule. (2) Upon a minor, by delivering a copy of the summons and of the complaint personally (a) to the minor and (b) also to the minor’s guardian if the minor has one within the state, known to the plaintiff, and if not, then to the minor’s father or mother or other person having the minor’s care or control, or with whom the minor resides, or if service cannot be made upon any of them, then as provided by order of the court. (3) Upon an incompetent person, by delivering a copy of the summons and of the complaint personally (a) to the guardian of the incompetent person or a competent adult member of the incompetent person’s family with whom the incompetent person resides, or if the incompetent person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court and (b) unless the court otherwise orders, also to the incompetent person. (4) Upon a county, by delivering a copy of the summons and of the complaint to one of the county commissioners or their clerk or the county treasurer. (5) Upon a town, by delivering a copy of the summons and of the complaint to the clerk or one of the selectmen or assessors. (6) Upon a city, by delivering a copy of the summons and of the complaint to the clerk, treasurer, or manager.

(7) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district of Maine or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the United States District Court for the district of Maine and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency provided that any further notice required by statute or regulation shall also be given. Upon an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer or agency, provided that any further notice required by statute or regulation shall also be given. If the agency is a corporation the copy shall be delivered as provided in paragraph (8) or (9) of this subdivision of this rule. Upon any other public corporation, by delivering a copy of the summons and of the complaint to any officer, director, or manager thereof and upon any public body, agency or authority by delivering a copy of the summons and the complaint to any member thereof. (8) Upon a domestic private corporation (a) by delivering a copy of the summons and of the complaint to any officer, director or general agent; or, if no such officer or agent be found, to any person in the actual employment of the corporation; or, if no such person be found, then pursuant to subdivision (g) of this Rule, provided that the plaintiff’s attorney shall also send a copy of the summons and of the complaint to the corporation by registered or certified mail, addressed to the corporation’s principal office as reported on its latest annual return; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the corporation, provided that any further notice required by the statute shall also be given. (9) Upon a corporation established under the laws of any other state or country (a) by delivering a copy of the summons and of the complaint to any officer, director or agent, or by leaving such copies at an office or place of business of the corporation within the state; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by

statute to receive or accept service on behalf of the corporation, provided that any further notice required by the statute shall also be given. (10) Upon a partnership subject to suit in the partnership name in any action, and upon all partners whether within or without the state in any action on a claim arising out of partnership business, (a) by delivering a copy of the summons and of the complaint to any general partner or any managing or general agent of the partnership, or by leaving such copies at an office or place of business of the partnership within the state; or (b) by delivering a copy of the summons and of the complaint to any agent, attorney in fact, or other person authorized by appointment or by statute to receive or accept service on behalf of the partnership, provided that any further notice required by the statute shall also be given. (11) Upon the State of Maine by delivering a copy of the summons and of the complaint to the Attorney General of the State of Maine or one of the Attorney General’s deputies, either (a) personally or (b) by registered or certified mail, return receipt requested; and in any action attacking the validity of an order of an officer or agency of the State of Maine not made a party, by also sending a copy of the summons and of the complaint by ordinary mail to such officer or agency. The provisions of Rule 4(f) relating to completion of service by mail shall here apply as appropriate. (12) Upon an officer or agency of the State of Maine by the method prescribed by either paragraph (1) or (7) of this subdivision as appropriate, and by also sending a copy of the summons and of the complaint by ordinary mail to the Attorney General of the State of Maine. (13) Upon all trustees of an express trust, whether within or without the state, in any action on a claim for relief against the trust, except an action by a beneficiary in that capacity, (a) by delivering a copy of the summons and of the complaint to any trustee, or by leaving such copies at an office or place of business of the trust within the state; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the trust, provided that any further notice required by the statute shall also be given. (14) Upon another state of the United States, by the method prescribed by the law of that state for service of process upon it.

(e) Personal Service Outside State. A person who is subject to the jurisdiction of the courts of the state may be served with the summons and complaint outside the state, in the same manner as if such service were made within the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it. An affidavit of the person making service shall be filed with the court stating the time, manner, and place of service. Such service has the same force and effect as personal service within the state. (f) Service by Mail in Certain Actions. (1) Outside State. Where service cannot, with due diligence, be made personally within the state, service of the summons and complaint may be made upon a person who is subject to the jurisdiction of the courts of the state by delivery to that person outside the state by registered or certified mail, with restricted delivery and return receipt requested, in the following cases: where the pleading demands a judgment that the person to be served be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state, or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to any property. (2) Family Division Actions. Service of the summons and complaint or a post-judgment motion may be made in an action pursuant to Chapter XIII of these Rules upon a person who is subject to the jurisdiction of the courts of the state by delivery to that person, whether in or outside the state, by registered or certified mail, with restricted delivery and return receipt requested. (3) Service Completion. Service by registered or certified mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary mail.

(g) Service by Alternate Means; Motion Required.

(1) When Service May Be Made. The court, on motion upon a showing that service cannot with due diligence be made by another prescribed method, shall order service (i) to be made by leaving a copy of the order authorizing service by alternate means, the summons, and the complaint at the defendant’s dwelling house

or usual place of abode; or (ii) by publication unless a statute provides another method of notice; or (iii) to be made electronically or by any other means not prohibited by law.

Any such motion shall be supported by (i) a draft, proposed order to provide the requested service by alternate means, and (ii) an affidavit showing that:

(A) The moving party has demonstrated due diligence in attempting to

obtain personal service of process in a manner otherwise prescribed by Rule 4 or by applicable statute;

(B) The identity and/or physical location of the person to be served cannot

reasonably be ascertained, or is ascertainable but it appears the person is evading process; and

(C) The requested method and manner of service is reasonably calculated to

provide actual notice of the pendency of the action to the party to be served and is the most practical manner of effecting notice of the suit.

(2) Contents of Order. An order for service by alternate means shall include

(i) a brief statement of the object of the action; (ii) if the action may affect any property or credits of the defendant described in subdivision (f) of this rule, a description of any such property or credits; (iii) the substance of the summons prescribed by subdivision (a) of this rule; and (iv) a finding by the court that the party seeking service by alternate means has met the requirements in subdivision (g)(l)(A)-(C) of this rule. If the order is one allowing service by publication pursuant to subsection (g)(1)(ii), it shall also direct its publication once a week for 3 successive weeks in a designated newspaper of general circulation in the county or municipality and state most reasonably calculated to provide actual notice of the pendency of the action to the party to be served; and the order shall also direct the mailing to the defendant, if the defendant’s address is known, of a copy of the order as published. If the order is one allowing service by electronic or other alternate means pursuant to subsection (g)(1)(iii), it may include directives about adequate safeguards to be employed to assure that service can be authenticated and will be received intact, with all relevant documents and information.

(3) Time of Publication or Delivery; When Service Complete. When service is made by publication pursuant to subsection (g)(1)(ii), the first publication of the summons shall be made within 20 days after the order is granted. Service by alternate means hereunder is complete on the twenty-first day after the first service

or as provided in the court’s order. The plaintiff shall file with the court an affidavit demonstrating that publication or compliance with the court’s order has occurred. (h) Return of Service. The person serving the process shall make proof of service thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it to the plaintiff’s attorney. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. If service is made under paragraph (c)(1) of this rule, return shall be made by the plaintiff’s attorney filing with the court the acknowledgment received pursuant to that paragraph. The attorney’s filing of such proof of service with the court shall constitute a representation by the attorney, subject to the obligations of Rule 11, that the copy of the complaint mailed to the person served or delivered to the officer for service was a true copy. If service is made by a person other than a sheriff or the sheriff’s deputy or another person authorized by law, that person shall make proof thereof by affidavit. The officer or other person serving the process shall endorse the date of service upon the copy left with the defendant or other person. Failure to endorse the date of service shall not affect the validity of service. (i) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. (j) Alternative Provisions for Service in a Foreign Country. (1) Manner. When service is to be effected upon a party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for

transmission to the person or the foreign court or officer who will make the service. (2) Return. Proof of service may be made as prescribed by subdivision (h) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.

Advisory Note – November 2011 Service of process amendments adopted as part of the Model Registered Agents Act have removed any obligation of the Secretary of State to act as default agent for service of process. See 5 M.R.S. § 113. This amendment to Rule 4(d)(8) recognizes that change. It also adds a reference to Rule 4(g) as the default service choice to seek approval for an alternative means of service if service cannot be accomplished pursuant to subdivision (d)(8).

Advisory Committee Note July 1, 2010

Rule 4 has been amended to reflect the concerns expressed by the Law Court

in Gaeth v. Deacon 2009 ME 9, 964 A.2d 621, that service by alternative means, including publication, afford due process to the person to be served in accordance with the Maine and United States Constitutions. In the course of that opinion the Court also addressed the limits of service by print publication in the electronic age.

The Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide actual notice and an opportunity to respond. Lewien v. Cohen, 432 A.2d 800, 804-05 (Me. 1981) (citing, inter alia, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)). Service of process serves the dual purposes of giving adequate notice of the pendency of an action, and providing the court with personal jurisdiction over the party properly served. Gaeth, 2009 ME 9, ¶ 20, 964 A.2d at 626 (citing Brown v. Thaler, 2005 ME 75, ¶ 10, 880 A.2d 1113, 1116). The allowable means for serving process are governed primarily by court rule. 14 M.R.S. § 701. Presently, service by publication may be ordered when the defendant is an individual residing either within, Rule 4(d)(1), or outside, Rule 4(e) & (f)(1), the state, or when a person is a party to a Family Division action brought pursuant to Chapter XIII of these Rules, Rule 4(f)(2).

These amendments group together all forms of service that require a court

order and, upon motion supported by affidavit that the party has been unable to effect service by any other means, that no other means of effecting service are practicable and that service by the method requested is reasonably calculated to provide actual notice of the suit, allow for service to be made:

(1) by leaving a copy of the summons and complaint at the defendant’s dwelling house or usual place of abode [presently codified at Rule 4(d)(1)]; or

(2) by publication; or

(3) by other alternative means, including electronic means. The amendment makes clear that a court has the authority, in proper circumstances, to consider a request seeking to use an individual’s usual place of “virtual abode,” which might include Internet web sites with means of contact, email access, social networking sites, or any other alternative avenues where it is reasonably certain to provide a person with actual notice of the suit.

The motion for service by alternate means must be supported by a draft

order making the necessary findings and specifying the proposed method of alternative service.

Before a party can obtain an order allowing service by any alternate means, that party must first demonstrate that he or she has exhausted all reasonable attempts to make service in one of the other ways prescribed by Rule 4 (or by applicable statute) that are designed to provide actual notice of the action to the party to be served. Whether attempts at locating a party are reasonable will of necessity depend on the situation; likewise, whether a search is limited to one jurisdiction or many may depend on the nature of the parties and claims. Within the framework of any given set of facts, a party seeking an order approving service by publication or other alternate means may seek to show which of the following actions s/he has taken in attempting to serve the party: checked publicly available databases (including computer databases) such as tax records, voting rolls, criminal history records, credit records, telephone directories, divorce or death records, utility records, post office records, and motor vehicle registry records in the jurisdiction where the defendant is most likely to be found. In addition to demonstrating that he has made a reasonable search of available public data, a party seeking an order for publication or service by alternate means should also satisfy the court that he or she has made reasonable efforts to locate the current

address of the party to be served by checking private sources: known relatives, former employers, former educational institutions, and former neighbors. Once the party seeking the order for publication or service by alternate means has shown, through affidavit, that he or she has demonstrated due diligence and exhausted all reasonable efforts to provide actual notice of the action to the party to be served, the court must still fashion an order which is reasonably calculated to provide actual notice of the pending proceeding. The amended rule, consistent with Gaeth, recognizes that service by publication in a newspaper should be a last resort, used only after the party has exhausted other means more likely to achieve notice in this day and age. When considering an order for service by publication a court may potentially exclude the county where the suit is pending and/or where the plaintiff resides and instead focus upon the county or municipality (which may not even be within the State of Maine) where newspaper publication is most likely to provide actual notice to the defendant or to his family. Even if service by publication is permitted, the court may still require that notice be attempted or that notice of the publication be provided to the party to be served through other alternative means, including regular mail, certified mail or electronic mail sent both to the party to be served and even conceivably to relatives, employers, or educational institutions recently attended by the party.

Advisory Note July 1, 2009

The amendment to Rule 4(f) changes only the heading of paragraph 2 to recognize the Rule’s applicability to Family Division Actions under Chapter XIII.

Advisory Notes June 2008

Rule 4(f)(2) is amended [effective January 1, 2009] to recognize that Rule 80 is abrogated and to cite to Chapter XIII of these Rules that now governs most Family Division and domestic relations actions. The amendment also recognizes that post-judgment motions may be served by this service by certified mail alternative.

Advisory Committee’s Notes December 4, 2001

Rule 4(f) is amended to permit service by registered or certified mail in action arising under Rule 80(a) regardless of whether the person to be served is in or outside the state. The former rule permitted such service only upon persons outside the state and only in actions for divorce or annulment. The intent of the amendment is to afford litigants, many of whom are pro se, an easy and inexpensive means of serving initial process.

Advisory Committee’s Notes May 1, 2000

In subdivision (1) and subdivision (2), the term “minor” is substituted for the term “infant.”

Advisory Committee’s Notes

1993 Rule 4(d)(10) is amended for conformity to recent statutory changes. When Rule 4(d)(10) was adopted in 1967, Maine was among those states which did not recognize the “entity” theory of partnership. Thus, an action against a partnership on a partnership liability could be brought only against the individual partners. Rule 4(d)(10) was intended to simplify service of process in such an action by eliminating the necessity of personal service upon every partner named as a defendant in favor of service upon one partner or a general or managing agent of the partnership. See M.R. Civ. P. 4(d)(10) advisory committee’s note, 1 Field, McKusick & Wroth, Maine Civil Practice 53-55 (2d ed. 1970); Thurston v. Continental Casualty Co., 567 A.2d 922, 923-24 (Me. 1989). Subsequently, the Legislature has provided specifically that both general and limited partnerships may sue and be sued in the partnership name. 31 M.R.S.A. §§ 160-A, 290-A, enacted by P.L. 1987, ch. 92. Accordingly, the present amendment expressly extends the service provisions of Rule 4(d)(10) to “a partnership subject to suit in the partnership name.” Service upon such a partnership may be had “in any action,” whether or not the claim can be said to have arisen “out of partnership business.” The rule continues to provide a means for service upon partners individually in a claim that does arise out of partnership business. This provision thus permits service against members of a partnership established in a state which does not

recognize the entity theory. Service under the rule will also support jurisdiction against all partners as to their personal liability under the general law of partnership for claims that cannot be satisfied out of the partnership property. Note that the present rule is one of service of process only. While partners are not indispensable parties in an action on a partnership liability, they and the partnership are bound by a judgment only if formally named and joined as parties to the action. See 1 Field, McKusick & Wroth, supra § 4.4. The service provisions of the rule apply whether the partnership and partners are joined or are sued in separate actions. In clause (a) of the rule, the amendment limits service to “general” partners. Limited partners, who under the Revised Uniform Limited Partnership Act, 31 M.R.S.A. §§ 401-527, are not individually liable for the obligations of the partnership and do not participate in control of the partnership business, do not have sufficient stake or responsibility to assure that service upon them will be adequate notice to general partners. See 31 M.R.S.A. § 433; cf. id. § 409(1). Clause (b) of the rule incorporates as an alternative means of service upon a limited partnership the provisions of the Revised Uniform Limited Partnership Act for service upon a statutory agent. Thus, under 31 M.R.S.A. §409(l)(B), (C), service may be had upon the registered agent or any liquidating trustee of the partnership. If no registered agent has been appointed, or can be found, then the Secretary of State, by virtue of 31 M.R.S.A. § 409(2), is deemed the agent of the partnership for service of process. Similarly, under 31 M.R.S.A. § 410, the Secretary of State is deemed to be the agent for service of process upon a nonresident general partner. Similar provisions are made for service on foreign limited partnerships by 31 M.R.S.A. §§ 500-502. The service provisions of the Revised Uniform Limited Partnership Act contain savings for other methods of service. See 31 M.R.S.A. § 409(3) (domestic limited partnership); § 500(4) (foreign limited partnership authorized to do business in the state); § 501(2) (foreign limited partnership not authorized to do business in the state). While there is no similar saving in 31 M.R.S.A. § 410 for service upon nonresident general partners of domestic limited partnerships, the methods therein prescribed are not in terms exclusive of service under Rule 4(d)(10)(a).

Advisory Committee’s Notes 1992

Rule 4(c)(1) is amended to clarify the intent of the rule. As promulgated in 1990, Rule 4(c)(1) provided that, if no acknowledgement of service by mail is received by plaintiff within 20 days, service may be made by an officer or specially appointed person under Rule 4(c)(2). The amendment, substituting “shall” for “may,” follows Federal Rule 4(c)(2)(C)(ii), upon which the Maine rule was based. The intention is to make clear that the original service by mail is invalid if no acknowledgment is received, and that service under paragraph (2) or (3) must be employed if jurisdiction of the defendant is to be obtained. Rule 4(c)(3) is added to clarify the relationship between service by ordinary mail with acknowledgement under Rule 4(c)(1) and other methods. Service under Rule 4(c)(1) is an option that may be used initially against any defendant in lieu of the special service methods permitted or required by Rules 4(d)-(g), (j), and applicable statutes. Plaintiff may, however, choose at the outset to bypass Rule 4(c)(1) and make service initially by a method specifically provided by rule or statute for the type of defendant in question, which may be personal service or another method such as registered or certified mail. If service is attempted under Rule 4(c)(1) but fails for lack of acknowledgement, plaintiff must resort to either personal service or another method as appropriate in order to obtain jurisdiction.


Rule 4(c), providing that service of process is to be made by a sheriff, a deputy, another person authorized by law, or a person especially appointed by the court, is replaced by new Rule 4(c). Under the new provisions, service of the summons and complaint may be made by mail with written acknowledgement of receipt. Simultaneous amendments to Rules 4A(c) and 4B(c) make clear that writs of attachment and summonses on trustee process must be served by a sheriff or deputy. The change is intended to make service both more efficient and more economical. In many counties, delays occur because of the backlog of civil process in sheriffs’ offices. In addition, the costs of service, which may be significant in cases involving multiple parties, can be reduced by making service by mail freely available to Maine litigants. Such service is now available in the federal and many state courts, and in Maine, under Rule 4(f), may be used against out-of-state defendants. Since the party serving the summons and complaint bears the burden of establishing that service has been made and the risk of loss if service

is ineffective, it may be assumed that parties will continue to resort to service by officer in difficult cases. Rule 4(c)(1) provides that in the first instance service of summons and complaint may be made by the party or any person acting for the party by ordinary first-class mail. The sender must include with the summons and complaint two copies of a form of notice designed to alert the recipient to the procedure and an acknowledgement of receipt of service to be returned by the recipient in a postage-paid envelope provided for that purpose. If the sender does not receive the acknowledgement within twenty days of the mailing of the summons and complaint, the sender has the option of making service in hand under paragraph (2) of the subdivision. A form of notice and acknowledgement is being added to the Appendix of Forms as Form 3.20 by simultaneous amendment. Note that the acknowledgement must be received within 20 days of the mailing date, while the time for answer under Rule 12(a) is still 20 days from the date of service. In this case, the date on which the defendant mails the acknowledgement, which constitutes acceptance of this form of service, is the date of service for purposes of the time for answer. Rule 4(c)(2) carries forward the language of former Rule 4(c) permitting service by a sheriff, a deputy, or “other person authorized by law,” which includes constables and police and other governmental officers specifically authorized by statute. See e.g. 12 M.R.S.A. § 6025 (marine patrol officers); 34-A M.R.S.A. § 3231(H) (warden of the state prison). The clause in the present rule referring to the subpoena is deleted because Rule 4(c) will now apply only to service of summons and complaint. The provisions of the present rule for special appointment for service remain in effect. Rule 4(h) is amended to conform to the provisions of new Rule 4(c) by providing for return of service when service is made by mail.


Rule 4(d)(14) is added to make clear that service of process may properly be made under the Maine Rules of Civil Procedure upon one of the other 49 states of the United States in an appropriate case when that state requires service to be made upon it in a manner not otherwise provided in Rule 4(d). Service under this provision may be made outside Maine in accordance with Rule 4(e). The provision of Rule 4(j) for service upon any party in a foreign country by means

appropriate under the law of that country would reach a result similar to that under Rule 4(d)(14) if a foreign country were a party.


Rule 4(c) is amended to eliminate constables from the enumeration of those generally empowered to serve civil process. By statute, a constable’s power to serve process is limited to his own town or “an adjoining plantation.” 14 M.R.S.A. § 703. The rule as originally promulgated carried the implication that a constable could serve process anywhere within the state. Under the amended rule, a constable may still serve process in a proper case as an “other person authorized by law.”


Rule 4(d)(8)(a) is amended to eliminate the requirement that, when service is made upon a domestic private corporation by delivery to the Secretary of State, the copy of the process sent to the corporation by registered or certified mail be sent return receipt requested, with instructions to deliver to addressee only. Since postal regulations require that an individual be named for delivery to addressee only, and there may be no current officer or director of a corporation that still has assets, the requirement may frustrate service. In this situation, the mailing is simply a backup to service upon the Secretary of State as statutory agent of the corporation and is not required by the statute. Therefore, elimination of the addressee-only requirement will cause no real diminution in the notice afforded. See 13-A M.R.S.A. § 305(2).


Rule 4(e) is amended to make the rule more reflective of the present state of the law. As originally promulgated, the rule envisioned only two situations in which personal service might be had outside the state: service upon a domiciliary and service under the long-arm statute, 14 M.R.S.A. §704-A. Accordingly, the original rule limited such service expressly to cases involving domiciliaries and cases within the scope of the long-arm statute’s language of submission to the jurisdiction. Plainly, there are other situations where out-of-state service is constitutionally valid, as well as appropriate-e.g., jurisdiction by consent, or

jurisdiction under jurisdictional provisions other than the long-arm statute, such as those in the Maine Business Corporations Act, 13-A M.R.S.A. § 306, or the Probate Code, 18-A M.R.S.A. §§ 4-301, 3-602, 5-208. Rule 4(f) is amended to conform the rule to the effect of the decision in Shaffer v. Heitner, 433 U.S. 186 (1977). Related amendments are being made in Rules 4A(f) and 4B(h). In Shaffer, the Court overruled a line of cases founded on Pennoyer v. Neff, 95 U.S. 714 (1878), and exemplified by Harris v. Balk, 198 U.S. 215 (1905), which had held that, by the attachment of the tangible or intangible property of a nonresident defendant within the state, the courts of a state acquired jurisdiction to render a judgment subjecting that property to a claim against the defendant, regardless of the connection of the claim with the property or the state. Rule 4(f) as originally promulgated provided a means of service in three such situations. See 1 Field, McKusick, and Wroth, Maine Civil Practice 4.11, 4A.6 (2d ed. 1970). Shaffer holds that this form of “quasi in rem” jurisdiction violates due process, and that a state can exercise jurisdiction over the property of a nonresident defendant only if he has sufficient contacts with the state to sustain jurisdiction of his person in the action. Rule 4(f) in its original form was in effect a grant of jurisdiction over the property or status of the defendant in the three situations therein provided for, without regard to the contacts of the defendant. The effect of the present amendment is to limit service by mail to situations where jurisdiction is otherwise proper—that is, borrowing the language of Rule 4(e) as simultaneously amended, where defendant is “subject to the jurisdiction of the courts of the state.” Thus the mere presence of property or a pending adjudication of marital status, within the state will no longer of itself be a basis for such service. In such cases, however, where the defendant has sufficient contacts with Maine related to the transaction in suit, so that service under the long-arm statute and Rule 4(e) would be proper, service may be had outside the state by mail in the two situations provided in amended Rule 4(f): (1) Where title or other interest in real or personal property is involved; (2) where the action is for divorce or annulment. Ordinarily, in these situations, there will be contacts. See Shaffer v. Heitner, supra, at 207-08.

Advisory Committee’s Note

September 1, 1980

This rule is amended to provide a simple and efficient means of effectuating service on the United States or an agency thereof in a Maine court. The amendment is taken with only minor changes from Federal Rule 4(d)(4) and (5). Since federal statutes and regulations may contain provision for specific forms of service in particular classes of cases, language has been added similar to that in Rules 4(d)(8)-(10), (13), requiring that any form of notice specified in such a provision also be given.

Advisory Committee’s Note December 1, 1975

This amendment is made to conform to a change in the Postal Regulations effective February 13, 1975, which makes obsolete the present language of Rule 4(f) requiring “return receipt requested, with instructions to deliver to addressee only.” The new regulation provides for “Restricted Delivery.” Mail so marked may be delivered either to the addressee or to a person he specifically authorizes in writing to receive his Restricted Delivery mail. Authorization may be given by use of Form 3801, Standing Delivery Order, or by a letter to the postmaster. The sender may request on P.S. Form 3811 a Restricted Delivery return receipt for delivery to addressee only showing either (1) to whom and date delivered, or (2) to whom, date, and where delivered. Either form would satisfy this amendment.

Advisory Committee’s Note December 1, 1975

This amendment is designed to accomplish with respect to express trusts what Rule 4(d)(10) has done with respect to partnerships. Under Maine law a trust is not an “entity” which may sue and be sued as such. The trustees must sue and be sued and a judgment can be rendered only against them. This amendment does not change the requirement of joinder but eliminates the necessity of individual service upon each trustee. The purpose is to provide in actions on claims against a trust a means of serving process upon trustees that is less difficult and expensive than individual service, while fully satisfying the constitutional requirements of due process. In these days the use of business trusts is increasing, notably in the field of real estate development, and it is as appropriate to simplify service here as in the case of partnerships. There is, moreover, no reason to differentiate between the trust created to undertake business activity and any other form of express trust, including testamentary trusts. Requiring the trust to be “express” prevents

applicability of the amendment to implied or constructive trusts created by operation of law. The amendment will enable a plaintiff to use the simplified service on claims arising out of relations between the trust and third persons, such as tort or contract claims. The exclusion of actions by beneficiaries suing as such is to prevent the amendment from being used when the internal affairs of the trust are involved and the individual liability of a trustee may come in issue. Nor does the amendment provide for service on claims against trustees for breach of trust, for objectives such as restoration to the trust estate of assets wrongfully diverted from it.

Advisory Committee’s Note April 15, 1975

Paragraphs (11) and (12) are added to Rule 4(d) in order to specify the methods for making service upon the State of Maine and any officer or agency of the State. Service upon the State is made by service upon the Attorney General. This is parallel to Federal Civil Rule 4(d)(4). See also Rule 4(d)(2) of the Vermont Rules of Civil Procedure. Like the Federal Rule the new Maine Rule requires that in any action attacking the validity of an order of an officer or agency of the State of Maine not made a party, a copy of the summons and of the complaint just be mailed to that officer or agency. The new Maine rule, however, does go further than the Federal Rule in simplifying the form of service by permitting registered or certified mail upon the Attorney General (rather than personal service), and by permitting service by ordinary mail upon a state officer or agency which is not a party. For service upon a State officer or agency Rule 4(d)(12) incorporates the existing procedure for service under either paragraph (1) or (7) with the added requirement that a copy of the summons and complaint also be sent by ordinary mail to the Attorney General. The evident purpose of both paragraphs (11) and (12) is to assure early notice to the Attorney General, who is charged with the defense of many such actions.

Advisory Committee's Note November 1, 1969

A certificate of election of a corporation's clerk previously was filed in the registry of deeds in the county or district where the corporation was located or where it had a place of business or a general agent, but by 1965 Laws, c. 61, § 1 such certificates of election are now filed in the office of the Secretary of State.

Accordingly, the "last resort" method of service upon a domestic private corporation by delivery to the registry of deeds has become inappropriate. Furthermore, it is doubtful whether the existing provision of Rule 4(d) (8) satisfies the requirements of due process. It can be said of delivery to a filing office even more truly than of publication that "it would be idle to pretend that [it] alone . . . is a reliable means of acquainting interested parties of the fact that their rights are before the courts." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658, 94 L.Ed. 865 (1950). To meet these defects in the existing rule the "last resort" method of service is changed to be delivery to the Secretary of State accompanied by mailing of a copy of the summons and of the complaint to the corporation at its principal office as reported on its latest annual return. This provision is comparable to that of Section 3–5(b) of the proposed Maine Business Corporation Act (West Pub. Co. 1969). That proposed Act directs the Secretary of State to cause the mailing immediately. Since it is thought that the rules cannot direct the Secretary of State to take action, responsibility for the mailing under the rule is left to the attorney for the plaintiff.

Advisory Committee's Note

December 31, 1967 Many substantial business enterprises are conducted today by partnerships. Many doing business in Maine, as, for example, accounting and insurance and stock brokerage firms, have a large number of partners, many or even most of whom reside outside the state. The new Rule 4(d) (10) is intended to afford, in actions arising out of partnership business, a means for serving process upon partners that is less difficult and expensive than the present ones, and that, at the same time, complies fully with the constitutional requirements of due process. In Maine, where the common law of partnerships still prevails, suits by and against partnerships cannot be in a common name, but rather must be in the names of partners. Until Maine adopts the "entity theory" by rule or statute, the "persons composing [the partnership] must sue and be sued; and a judgment can only be rendered against them." Macomber v. Wright, 35 Me. 156, 157 (1852). The new Rule 4(d) (10) does not change the Macomber v. Wright rule. It does not eliminate the necessity to name as defendants all partners whom the plaintiff wishes to hold on a partnership liability. However, it does eliminate the necessity of making personal service upon each and every one of the partners who

are named as defendants. For the procedural purpose of service of process, the partners are treated by the amendment much the same as if they had elected the corporate form of doing business rather than the partnership. Compare subdivisions (d) (8) and (d) (9). Service upon one partner (or upon a general or managing agent of the partnership) will be effective as service upon all partners sued on a partnership liability. Under the existing procedure, service may be made upon a partner only by service upon him personally by the method provided in Rule 4(d) (1), subject to other methods being available in limited circumstances. Even if all members of the partnership are Maine residents such requirements for service are onerous in the case of any partnership of more than two or three partners. When many of the partners reside outside the state, even though personal service upon such non-resident partners is expressly authorized by Maine's "long-arm" statute (the 1959 Jurisdiction Act) as to most causes of action arising in Maine (14 M.R.S.A. § 704), the complications involved in getting personal service upon many different partners, often residing in many different states, can for practical purposes deny justice to meritorious claims against the partnership. On causes of action arising out of the doing within Maine by one partner or an agent of the partnership of any of the acts listed in the 1959 Jurisdiction Act, such as the transaction of any business or the commission of a tortious act, all partners are by that Act declared to have submitted themselves to the jurisdiction of the courts of this state. The particular mode for serving process provided by the Act is expressly stated not to limit or affect "the right to serve any process in any other manner now or hereafter provided by law." 14 M.R.S.A. § 704(4). The Committee is confident that the method for making service provided in the new subdivision (d) (10) satisfies due process. Cf. Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097 (1935). The Federal Rules and the rules of states following the entity theory of partnerships permit process to be served as prescribed in the new subdivision. See F.R. 4(d) (3); N.J.Rule 4.4-4(e); Minn.Rule 4.03(b); McKinney's N.Y. CPLR § 310. There is no factual or substantive law difference that would make such service adequate in giving the partners due notice of the action under the entity theory, but would render such service inadequate in Maine with its common law concept of the partnership. Indeed Maine already permits service upon partners by less than personal service upon all, in two limited situations: (1) Rule 4B (c), preserving the substance of a pre-rules statute, makes service of trustee process on one partner an effective attachment as to any of the defendant's property in the hands of the firm; and (2) Rule 4(j) (1), added in 1966 after careful study by both those concerned with

federal rulemaking and those here in Maine, permits service upon a partnership in a foreign country by delivery to a managing or general agent. In this day of mammoth partnerships, it may be difficult for the plaintiff's attorney to determine the names of all the parties. With the new subdivision (d) (10), it would appear permissible for him then to caption his suit by the style "John Smith v. James Jones, Henry Richards and all other persons who are partners of James Jones and Henry Richards in the partnership known as `Jones & Company'." The plaintiff could, through discovery against Jones and Richards determine the names of all other partners and could amend his complaint prior to trial so as to include those defendants specifically. The original service upon either Jones or Richards or a general or managing agent of the partnership would have been effective to give them the constitutionally required notice of the action and of its application to them.


This rule is a combination of Federal Rule 4, existing Maine statutes, and new provisions designed to simplify and improve methods of serving process. Rule 4(a) prescribes the form of the summons and is substantially the same as Federal Rule 4(b). See Form 1 in the Appendix of Forms. The reference to the facsimile signature of the clerk is inserted to make it clear that R.S.1954, Chap. 106, Sec. 9 [now 4 M.R.S.A. § 108], is not superseded by the rule. Alternate Form 1 in the Appendix of Forms is provided so that the clerk in one county may issue a summons for the commencement of an action in another county. Alternate Forms 2 and 2A are provided for the same reason. Rule 4(b) places upon the plaintiff's attorney the obligation to fill out the summons, which he procures in blank from the clerk, and to make the necessary copies of both summons and complaint. It is also provided that in all cases the plaintiff's attorney shall deliver the papers to the officer for service. This departs from the Federal Rules, which require the clerk to prepare the summons and deliver it to the officer for service. It does not seem desirable to put this additional burden upon the clerk's office. Rule 4(c) provides for service by presently authorized officers or by a person specially appointed by the court, the latter being taken from Federal Rule 4(c).

The general statutes relating to method of service of process, R.S.1954, Chap. 112, Sec. 17ff, have been repealed and service of process will in general be governed by Rule 4(d) to (i), inclusive. Rule 4(d) (1) changes the requirements for personal service upon an individual by eliminating the possibility that the process may be left at the last and usual place of abode without delivery of it to any person. The present practice of sliding the process under the door of an empty house is subject to possible abuse. The last sentence provides, however, that the court may order service to be made by leaving the process at the defendant's dwelling house or usual place of abode upon a showing that the prescribed service cannot be made with due diligence. This is designed to cover the situation where the officer might have to make repeated attempts to serve a defendant who was trying to evade service. It is intended as an alternative for rare cases and contemplates a substantial showing by the plaintiff. Because of the possibility that leaving the process at an empty house might in the particular circumstances be less effective than publication, the court may order service by the latter method (which would normally be accompanied by mailing the published notice to the defendant's address). Service by reading the writ or original summons to the defendant, as provided in R.S.1954, Chap. 112, Sec. 18, is not preserved in the rule. The reference to service on an agent "authorized by appointment or by law to receive service", taken from Federal Rule 4(d) (1), covers the situation where a defendant individual has made an actual appointment, whether voluntary or under compulsion of a statute such as R.S.1954, Chap. 84, Sec. 10 [now 32 M.R.S.A. § 4002] (non-resident real estate brokers and salesmen). It also covers situations where no appointment has been made in fact, but where the doing of an act within the state is given the effect of appointing a public official as agent for service. R.S.1954, Chap. 22, Sec. 70, as amended [now 29 M.R.S.A. § 1911] (non-resident operators of motor vehicles and aircraft), is such a statute. When service is on a statutory agent, such further notice as the statute requires shall be given. Rule 4(d) (2) to (9), inclusive, incorporates to a large extent the repealed statutes for service of process, but with some simplifications and modifications. As in the case of individuals, corporations may be served through an agent authorized by appointment or statute to receive such service on behalf of the corporation. This has the effect of retaining the numerous provisions scattered through the Revised Statutes which either require the designation of an agent for service of process as a condition of engaging in business activity in the state or

provide that service upon a named public official shall be sufficient. Any further notice required by the statute shall also be given. These requirements for service and notice vary from statute to statute without apparent reason, but it has seemed preferable to retain them as they are rather than to substitute a single uniform method of service. Rule 4(e) also provides that service may be made outside the state upon a person who has submitted to the jurisdiction of the courts of the state. The word "person" includes a corporation. R.S.1954, Chap. 10, Sec. 22 (XIV) [now 1 M.R.S.A. § 72]. Taken in connection with 1959 Laws, c. 317, § 125, which becomes R.S.1954, Chap. 112, Sec. 21, as amended [now 14 M.R.S.A. § 704] this provision significantly extends the jurisdiction of the courts of Maine. The purpose is to make a non-resident who comes into Maine and commits a tort or fails to perform a contract answerable for that wrong in the Maine courts even though he departs from the state before he can be served with process. It is an extension of the principle of the familiar non-resident motor vehicle statute (R.S.1954, Chap. 22, Sec. 70 [now 29 M.R.S.A. § 1911]). Under the 1959 amendment, a defendant can be personally served outside the state and a personal judgment rendered against him, on which he can of course be sued in his home state. At present jurisdiction cannot be obtained over such a non-resident without personal service in the state; but if his property can be attached, judgment good only against that property can be had. Martin v. Bryant, 108 Me. 253, 80 A. 702 (1911). This statute is borrowed with slight change from Illinois Revised Statutes, Chap. 110, Par. 17, the constitutionality of which has been upheld in that state, Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), and it is believed that the United States Supreme Court would also uphold it. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945) ; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199 (1957) ; and see Smyth v. Twin State Improvement Corp., 116 Vt. 569, 80 A.2d 664 (1951) (upholding a Vermont statute making the commission of a single tort a basis of jurisdiction over a foreign corporation). Moreover, it seems eminently fair to provide that a person who comes to Maine and commits a wrongful act shall by so doing submit himself to the jurisdiction of the Maine courts, rather than to require the Maine resident whom he has wronged to pursue him to his home state. Maine being the place of the wrong, it is presumably the most convenient place to assemble the witnesses for trial.

Rule 4(f) deals with service by mail outside the state. It is limited to cases (1) where the plaintiff has made an attachment or served a trustee writ within the state, (2) where the object of the action is to affect the defendant's title to real or personal property within the state, or (3) in divorce or annulment actions. In these cases the out-of-state service is not the basis for a personal judgment, but it satisfies due process requirements of notice so that a judgment affecting the defendant's property or status is effective. Plurede v. Levasseur, 89 Me. 172, 36 A. 110 (1896) (notice of enforcement of lien). If the address of a person to be served is unknown or if the rights of unknown claimants are involved, publication under Rule 4(g) can be used. In such a case publication satisfies due process. Rule 4(g) deals with service by publication, which is permitted only upon a showing that service cannot be made by another prescribed method. These rules recognize, as Mr. Justice Jackson did in Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658 (1950), that "it would be idle to pretend that publication alone . . . is a reliable means of acquainting interested parties of the fact that their rights are before the courts." The typical situation for service by publication will be when the whereabouts of the person to be served cannot be ascertained with due diligence. Rule 4(h) provides that the proof of service shall be made on the original process and that the person making the service shall return it to the plaintiff's attorney, who has the duty to file it with the court within the time during which the defendant must answer the complaint. Since it is the attorney's responsibility to make sure that the service and proof thereof were proper, it seems wise to have the process returned to him instead of having the officer return it to the court. It is not necessary that the original complaint be delivered to the officer who serves the copy. See the third sentence of Rule 4(h). Rule 4(i) is not covered by any existing statute, but is consistent with the general common law rule, and apparently with Maine practice. Cf. Glidden v. Philbrick, 56 Me. 222 (1868); Fairfield v. Paine, 23 Me. 498 (1844).

RULE 4A. ATTACHMENT

(a) Availability of Attachment. In any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover. Attachment under this rule shall not be available before judgment in any action against a consumer for a debt arising from a consumer credit transaction as defined in the Maine Consumer Credit Code. (b) Writ of Attachment: Form. The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court, the names and residences of the parties and the date of the complaint, be directed to the sheriffs of the several counties or their deputies, and command them to attach the goods or estate of the defendant to the value of a specified amount ordered by the court, or to attach specific property of the defendant designated by the court, and to make due return of the writ with their doings thereon. The writ of attachment shall also state the name of the justice or judge who entered the order approving attachment of property, if any, and the date thereof. (c) Same: Service. The writ of attachment may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The writ of attachment shall be served by a sheriff or a deputy within the sheriff’s county. The plaintiff’s attorney shall deliver to the officer making the attachment the original writ of attachment upon which to make return and a copy thereof. No property may be attached unless such attachment for a specified amount is approved by order of the court. Except as provided in subdivision (g) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the aggregate sum of the attachment and any liability insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process shown by the defendant to be available to satisfy the judgment.

An attachment of property shall be sought by filing with the complaint a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule. Except as provided in subdivision (g) of this rule, the motion and affidavit or affidavits with the notice of hearing thereon shall be served upon the defendant in the manner provided by Rule 4 at the same time the summons and complaint are served upon that defendant. In the case of an attachment approved ex parte as provided in subdivision (g) of this rule, the defendant shall also be served with a copy of the writ of attachment with the officer’s endorsement thereon of the date or dates of execution of the attachment or, if attachment has been perfected by filing under 14 M.R.S.A. § 4154, with a copy of the order of approval with the acknowledgment of the officer receiving the filing endorsed thereon. A defendant opposing a motion for approval of attachment shall file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the motion as provided in Rule 7(c) for failure to file opposition material within the time therein provided or as extended, the court shall, without hearing, upon a finding that the plaintiff is entitled to an attachment under the terms of this subdivision (c), enter an order of approval of attachment in an appropriate amount. Any attachment shall be made within 30 days after the order approving the writ of attachment. When attachments are made subsequent to service of the summons and complaint upon the defendant, a copy of the writ of attachment with the officer’s endorsement thereon of the date or dates of the attachments shall be promptly served upon the defendant in the manner provided by Rule 5. When an attachment made subsequent to the service of the summons and complaint has been perfected by filing under 14 M.R.S.A. § 4154, a copy of the order of approval, with the acknowledgment of the officer receiving the filing endorsed thereon, shall be promptly served upon the defendant in the same manner. (d) Approval of Limited Attachment or Substituted Security. (1) Attachment of Specific Property. In the order approving an attachment, the court shall specify that the attachment is to issue solely against particular property or credits upon a showing by the defendant (A) that the property or credits specified are available for attachment and would, if sold to satisfy any judgment obtained in the action, yield to the plaintiff an amount at least equal to the amount for which attachment is approved in accordance with the

criteria of subdivision (c), and (B) that the absence of such a limitation will result in hardship to the defendant. (2) Alternative Security for a Single Defendant. At the hearing on a motion for approval of an attachment against the property of a single defendant, the defendant may tender cash or bond at least equal to the amount of any attachment to be approved in accordance with the criteria of subdivision (c). If the court finds that the defendant has tendered cash in sufficient amount, it shall order that amount to be deposited with the court as provided in Rule 67 to be held as security for any judgment that the plaintiff may recover. If the court finds that the defendant has tendered a bond of sufficient amount and duration and with sufficient sureties, the court shall order the bond to be filed with the court. A surety upon a bond filed under this rule is subject to the terms and conditions of Rule 65(c). Upon such deposit or filing, the court shall further order that any prior attachment against the defendant to satisfy a judgment on the claim for which security has been tendered shall be dissolved. Thereafter, no further attachment shall issue against the defendant except on motion of the plaintiff and a showing that the cash deposited or bond filed has become inadequate or unavailable to satisfy the judgment. (3) Single Security for Multiple Defendants. At the hearing for approval of attachment against the property of two or more defendants alleged to be jointly and severally liable to the plaintiff, one or more of the defendants may tender cash or bond sufficient, in the aggregate, to satisfy the total amount the plaintiff would be entitled to recover upon execution against all such defendants. Upon the findings required by paragraph (2) of this subdivision for a single defendant, the court may order the cash to be deposited or the bond filed with the court on the same conditions and with the same effect provided in that paragraph. (e) Attachment on Counterclaim, Cross-Claim or Third-Party Complaint. An attachment may be made by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim. (f) Subsequent or Additional Attachment. If no writ of attachment has issued, or if the time period prescribed in subdivision (c) of this rule for making attachments has expired, the court on motion may issue an order of approval for attachment of real estate, goods and chattels or other property. The provisions of subdivisions (c), (d), and (g) of this rule apply to the motion and any attachment ordered thereunder, except that notice if appropriate shall be served upon the defendant in the manner provided in Rule 5.

(g) Ex Parte Hearings on Attachments. An order approving attachment of property for a specific amount may be entered ex parte only in an action commenced by filing the complaint with the court together with a motion for approval of the attachment as provided in subdivision (c) of this rule. The hearing on the motion shall be held forthwith. Such order shall issue if the court finds that it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the attachment and any insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process known or reasonably believed to be available to satisfy the judgment, and that either (i) there is a clear danger that the defendant if notified in advance of attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment, or (ii) there is immediate danger that the defendant will damage or destroy the property to be attached. The motion for such ex parte order shall be accompanied by a certificate by the plaintiff’s attorney of the amount of any insurance, bond, or other security, and any other attachment or trustee process which the attorney knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff’s attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule. (h) Dissolution or Modification of Attachments. On 2 days’ notice to the plaintiff or on such shorter notice as the court may prescribe, any person having an interest in property that has been attached pursuant to an ex parte order entered under subdivision (g) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the dissolution or modification of the attachment, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order that the moving party has challenged by affidavit. Upon motion and notice and a showing by any defendant that specific property or sufficient cash or bond is available to satisfy a judgment as provided in subdivision (d) of this rule, the court may modify an order of attachment, whether issued ex parte or after hearing, to limit the attachment to particular property or to order cash or bond to be held by the court as security for the judgment, and to dissolve the prior attachment as to all other property of the defendant. If a prior attachment has been perfected as to property specified in the modified order, the modified order shall relate back to the original attachment.

Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law. (i) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant’s own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.


The specific statutory citation in subdivision (a) is replaced by the general reference to the Maine Consumer Credit Code so that the Rules are not impacted by statutory changes.


Rule 4A(c) as amended effective February 15, 1992, is further amended to eliminate the 10-day period for filing material in opposition to a motion. Under the amended rule, filing will be subject to the 21-day period provided by Rule 7(c) for all types of motions. Experience under the rule as originally adopted indicated that the 10-day period was unrealistically short for parties to obtain counsel, in light of the 20 days allowed for answer. The change will not significantly affect the purpose of the 1992 amendment to assure expeditious proceedings.


Rule 4A is amended in a number of respects to address growing concerns of both bench and bar that the standards for granting attachment were not stringently or consistently applied and that the procedure was too cumbersome. Simultaneous amendments to the same effect have been made in Rule 4B. Forms 6.10 and 6.20 are simultaneously amended for conformity with the amendments to Rules 4A and 4B. Rule 4A(b) is amended to make the writ of attachment consistent with existing provision of Rule 4A(c) that an order granting an attachment fixes the

amount of the attachment and to take into account the prospect that under new Rule 4A(d)(1) an order granting an attachment may be limited to specific property. Rule 4A(c) is amended to change the “reasonable likelihood” standard to one requiring a showing that it is “more likely than not” that the plaintiff will recover judgment in an amount that equals or exceeds “the aggregate sum” of the attachment sought and other available security. The latter phrase is included in the amendment to make clear that the amount to be approved for attachment is the difference between the amount of the potential judgment that the court finds to be “more likely than not” and the other security. The change in the standard for attachment responds to prevailing concerns that attachments are too freely given under the existing standard. The “reasonable likelihood” standard was intended only as a constitutional minimum. See M.R. Civ. P.. 4A Advisory Committee’s Note to January 1973 amendment, 1 Field, McKusick & Wroth, Maine Civil Practice 62 (2d ed. Supp. 1981). As the Law Court has recently affirmed, that standard “requires only that the plaintiff claim ‘is not of such insubstantial character that its invalidity so clearly appears as to foreclose a reasonable possibility of recovery,’” and abuse of discretion in the trial court application of the standard will be found only where the record shows “that the plaintiff had ‘virtually no chance of recovery’” on the claim. Bay of Naples Condominium Ass’n v. Lewis, 582 A.2d 1210, 1212 (Me. 1990), quoting Northeast Inv. Co. v. Leisure Living Communities, Inc., 351 A.2d 845, 852 (Me. 1976); Herrick v. Theberge, 474 A.2d 870, 874 (Me. 1984). See also Precision Communications, Inc. v. Rodrigue, 451 A.2d 300, 301 (Me. 1982); DiPietro v. Casco N. Bank, 490 A.2d 215, 218 (Me. 1985); Barrett v. Stewart, 456 A.2d 10, 11 (Me. 1983); Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 756 (Me. 1981). The present amendment is adopted as a matter of policy rather than constitutional mandate. The constitutional minimum has not changed. See Connecticut v. Doehr, --- U.S. ---, 111 S.Ct. 2105, 2114, 115 L.Ed.2d 1 (1991). The purpose of the increased standard is to strike a more even balance between plaintiff and defendant in the use of attachment. Its effectiveness in achieving this goal will be subject to continuing review. Under the “reasonable likelihood” standard, it was expressly held that plaintiffs need not show that it was more likely than not that they would prevail. See Northeast Inv. Co. v. Leisure Living Communities, Inc., supra; Bowman v. Dussault, 425 A.2d 1325, 1328 (Me. 1981). Under the amended standard that

showing will be required. A moving party must show a greater than 50% chance of prevailing. This change in the threshold for obtaining an attachment, which applies to the showing of success on both liability and damage issues, will not cause the procedure for obtaining an attachment to be more complicated. No other change in the practice is intended. The type of evidence to be submitted will be the same as under existing law. The required showing is to be made through affidavits; there is no right to an evidentiary hearing. Atlantic Heating Co., Inc. v. John Lavin, 572 A.2d 478, 479 (Me. 1990). As under existing law, specificity is required in the showing for the amount of the attachment, and this amount cannot be offset by claims of the non-moving party. See Casco N. Bank, N.A., et al. v. New England Sales, Inc., et al., 573 A.2d 795, 797 (Me. 1990). To expedite proceedings, Rule 4A(c) is further amended to provide a kind of default procedure. An attachment “in an appropriate amount” will be ordered without hearing if there is no opposition filed in accordance with Rule 7(c) within ten days after service of the motion and if the plaintiff affidavit shows on its face that the claimed recovery is “more likely than not.” The Advisory Committee originally proposed that Rule 4A(c) also be amended by adding provisions requiring plaintiff to schedule a hearing with the clerk and providing that the hearing on an attachment with notice should be scheduled on an expedited basis, “at the earliest possible date requested by the plaintiff” more than 20 days after service on the defendant. See Advisory Committee on Civil Rules, Annual Report, p. 2 and Appendix A (10/29/91). The proposed amendment was intended to eliminate extensive delays in obtaining hearings on notice that had caused counsel to seek ex parte attachments in cases where they were not necessary or warranted. The Court, recognizing the need for expedited hearings, prefers to achieve the goal by administrative means. If delays persist, the Court will consider appropriate further amendment of the rule. A new Rule 4A(d) is added concerning the attachment of specific property and substitution of security. Rule 4A(d)(1) explicitly requires the motion justice to limit the attachment to certain specific property or credits upon a showing by the defendant that the property or credits offered by the defendant are adequate and available to satisfy the judgment and that, otherwise, hardship to defendant will result. The showing of adequacy should value the offered property under the assumption that a sale may take place upon execution of a judgment. Under present law, the Superior Court has some limited discretion to select particular property or credits to be attached but is not required to exercise that discretion. Compare Maine National Bank v. Anderschat, 462 A.2d 482 (Me. 1983), with

Sinclair v. Anderson, 473 A.2d 872, 874-75 (Me. 1984). The amendment is intended to prevent inequities that may arise if the motion justice cannot specify limitations on the attachment upon an appropriate showing of the defendant. However, the defendant must justify the need to go through that exercise based on a showing that prejudice would occur in the absence of such limitations. New Rule 4A(d)(2) permits substitution of a bond or cash for an attachment consistent with the bonding provision of 14 M.R.S.A. § 4613. The amendment makes clear that this substitution can occur before the fact, at the attachment hearing, as well as after the attachment has actually been issued. The paragraph also sets forth procedural guidelines, incorporating existing provisions of Rules 67 and 65(c). New Rule 4A(d)(3) allows a single bond or cash to be substituted for multiple attachments against defendants alleged to be jointly and severally liable to the plaintiff on a single debt. The intent of the provision is to eliminate the potential for over-securing a single debt, which can occur under present law. See Chase Commercial Corp. v. Hamilton & Son, 473 A.2d 1281 (Me. 1984). The remaining subdivisions of the rule are redesignated “(e)” through “(i).” Redesignated Rule 4A(f) is amended to make clear that the provisions of new Rule 4A(d) for limitation to specific property and substitution of security apply to additional or subsequent attachments. Redesignated Rule 4A(g), covering hearings on attachments, is amended to provide that the hearing on an ex parte motion should be held “forthwith”; to substitute the “more likely than not” standard for the “reasonable likelihood” showing; and to incorporate the “aggregate sum” language of amended Rule 4A(c). Redesignated Rule 4A(h) is amended to allow an existing attachment, whether ex parte or on notice, to be modified by substitution of specific property, cash or bond in the manner provided by new Rule 4A(d) for obtaining initial attachments.


Rule 4A(c) is amended for consistency with new M.R. Civ. P.. 4(c) adopted simultaneously. Under that Rule, service of the summons and complaint may now

be made by mail with notice and acknowledgement. The present amendment makes clear that a writ of attachment may be served only by a sheriff or deputy. See Rule 4A(b).


Rule 4A(c) is amended for consistency with 14 M.R.S.A. § 4154, as amended by P.L. 1983, ch. 125; P.L. 1985, ch. 187. That section now permits real or personal property subject to attachment to be attached by filing an attested copy of the court’s order of approval in the registry of deeds for the county where real property is located or, for personal property, in the filing office appropriate under 11 M.R.S.A. § 9-401(l). The order is to be filed within 30 days after its entry unless the court allows additional time on motion. Recording or filing fees are to be paid as for other documents. The statute expressly provides that filing constitutes perfection of the attachment and requires service of a copy of the court order upon the defendant “in accordance with the Maine Rules of Civil Procedure pertaining to service of writs of attachment.” The amendment to the rule addresses two questions. First, it provides, in the third paragraph of subdivision (c), that when an attachment which has been ordered ex parte is perfected by filing under the statute, the defendant is to be served with a copy of the order of approval containing the filing officer’s acknowledgement of receipt, rather than with the writ of attachment itself. The second situation is that in which an attachment is made after the filing of the summons and complaint, whether upon ex parte order or after order of approval granted upon motion and affidavits served with the summons and complaint. In such a case, when the attachment has been perfected by filing under the statute, an amendment to the fourth paragraph of subdivision (c) provides that a copy of the order of approval with acknowledgement of filing is to be served upon the defendant in the same manner as a copy of the writ and return are served in the case of a possessory attachment. In both situations, the effect of the statute is that no writ of attachment is prepared. It is service of the order, rather than the writ, which gives the defendant notice of the attachment.


Rule 4A(c) as originally promulgated required that an action in which attachment was sought could be commenced only by filing the complaint -- the second method provided in Rule 3. Experience under the rule has shown that there is no practical purpose to this limitation and that inconvenience arises from it. Accordingly, Rule 4A(c) is amended to permit the action to be commenced by either service or filing. Whichever method is used, the procedure is the same: the motion for approval of attachment and its supporting affidavits must be filed with the complaint and served with the summons and complaint, regardless of the order in which these steps are taken. Of course, attachment subsequent to the commencement of the action may still be had under Rule 4A(e). Rule 4A(c) is also amended to make clear that for attachment to be appropriate a plaintiff’s probable recovery must exceed the amount, not only of available liability insurance, but of any other fund available to satisfy the judgment. Rule 4(f) is amended to take account of the decision in Shaffer v. Heitner, 433 U.S. 186 (1977), that attachment of assets at the commencement of an action is no longer a constitutionally valid way of obtaining jurisdiction over a nonresident in the absence of any other contacts with the state. See Advisory Committee’s Note to simultaneous amendment of Rule 4(f). The present amendment deletes as a ground for ex parte attachment the fact that the defendant is not personally subject to the jurisdiction. That provision is no longer needed or appropriate, because under Shaffer the fact of absence by itself will not support jurisdiction. In a case in which under the long-arm statute, 14 M.R.S.A. § 704-A, defendant is subject to jurisdiction and service, he can be served personally under Rule 4 (e), by mail if appropriate under amended Rule 4 (f), or by publication if necessary under Rule 4(g). Attachment can then be sought on notice and hearing under Rule 4A(c). Only if there is danger that defendant will abscond with or imperil the security, may ex parte attachment issue under Rule 4A(f) as here amended. Rule 4A(f) is also amended for consistency with the simultaneous amendment of Rule 4A(c). The amendment limits the availability of ex parte attachment to actions commenced by filing the complaint -- except when subsequent attachment is appropriate under Rule 4A(e). The amended rule makes clear that the court must have the complaint before it when it passes on an ex parte motion for attachment and that the motion must be acted upon before it is served on defendant.

Rule 4A(g) is amended to make clear that an ex parte attachment obtained under Rule 4A(f) may be quashed by a person other than the defendant if that person has an interest in the property.

Advisory Committee's Note September 1, 1980

This rule is amended to conform to statutory requirements. The Uniform Consumer Credit Code, 9-A M.R.S.A. § 5.104, expressly forbids attachment or garnishment before judgment "in an action against the consumer for debt arising from a consumer credit transaction." A creditor authorizing such a procedure may be subject to penalties under 9-A M.R.S.A. § 5.201. A consumer credit transaction is defined by 9-A M.R.S.A. § 1.301(12) as "a consumer credit sale, consumer lease or consumer loan or a modification thereof including a refinancing, consolidation or deferral." Definitions of "consumer credit sale", "consumer lease", and "consumer loan", §§ 1.301(11), (13), (14), make clear that these are non-business transactions.

Advisory Committee's Note April 15, 1975

This amendment cures a practical problem that has arisen in the use of Rules 4A and 4B. A comparable change is being made simultaneously in the latter rule. These amendments will be applicable in the District Court as well, because the Civil Rules are incorporated by District Court Rules 4A and 4B. Rules 4A and 4B as originally promulgated and as amended in 1973 treated attachment and trustee process as incident to the commencement of an action. Accordingly, subsequent attachment was available under Rules 4A(e) and 4B(g) only when such process had been employed at the outset. Since under the amended rules neither property nor credits of any kind may be attached without hearing and consequent expense and delay, it is no longer feasible for plaintiffs to commence virtually every action with an attachment, as was common in prior practice. A plaintiff who has not attached, however, has no protection against changes in the debtor's financial position and is unable to attach assets discovered or acquired after the action is commenced. The present amendments to Rules 4A and 4B are intended to remedy that situation by making attachment and trustee process available in circumstances where they are otherwise appropriate not only at

the commencement of the action but at any time during the pendency of the action in the Superior Court. Rule 4A(a) is amended to eliminate the limitation of attachment to the commencement of the action. Rule 4A(c) is amended to provide that to approve an attachment the courts must find that the plaintiff is likely to recover an amount in excess not only of defendant's liability insurance but of any other attachments under this rule or Rule 4B. The new provision applies whether other attachments have been made previously or are being made simultaneously with. the attachment before the court. The amendment thus requires an aggregating of all assets available that was not required in former practice. The effect is to prevent plaintiffs from combining a series of motions for attachment and trustee process that would encumber more of defendant's assets than are necessary to secure the judgment. Amended Rule 4A(e) provides for two distinct types of attachment after the action has commenced. "Subsequent" attachment may be approved by the court at any time, if no attachment has previously issued under this rule. "Additional" attachment may be approved if attachment has previously issued either at the commencement of the action. under subdivisions (c) or (f) or subsequently or additionally under this subdivision. As under former Rule 4A(3), "additional" attachment is appropriate only after expiration of the time for making an attachment already issued. Other changes in the subdivision make clear that the motion .and findings upon which the court may approve subsequent or additional attachment are the same as those required at the commencement of the action. The motion may either be on notice under subdivision (c) or ex parte under subdivision (f) according to the circumstances of the case. The only difference with procedure at the commencement of the action is that, under the present subdivision, notice to the defendant if otherwise required may be given under Rule 5 rather than Rule 4, because he has already appeared. The amendment is silent as to the availability of subsequent or additional attachment after judgment and pending appeal. Although an order of attachment presumably may be granted during the automatic 30-day stay of execution provided by Rule 62(a) and thereafter if an appeal is taken, an order for immediate execution or bond in lieu thereof under Rule 62(c), or commencement of disclosure proceedings under 14 M.R.S.A. § 3121 et seq., may be more effective remedies. If there is an appeal, the power of the Superior. Court to act is terminated by the transmission of the record to the Law Court under Rule 74(p). In an extreme

situation, however, the Law Court might be persuaded to exercise its inherent power, reserved under Rule 62(g), "to preserve . . . the effectiveness of the judgment." On remand to the Superior Court for new trial, that court regains the power to order subsequent or additional attachment under amended Rule 4A(e). Rule 4A(f) is amended for consistency with the amendment of Rule 4A(c). At the same time subdivision (f) is amended to provide that an ex parte order for attachment is available if "there is a clear danger that the defendant if notified in advance of attachment of the property will . . . make it unavailable to satisfy a judgment." The quoted language is from item (ii) as amended and recognizes the practical fact that the defendant if forewarned may sell or encumber the property. The amendment generalizes on the occasions (previously only threatened removal from the state, concealment or destruction) when an attachment may be obtained without notice to the defendant. Both the affidavit filed with a motion for such an ex parte order and also the finding of the court should identify with specificity the nature of the action the defendant is in danger of taking if forewarned.

Advisory Committee’s Note August 1, 1973

These amendments, and the simultaneous amendments of Form 2, Alternate Form 2, and Forms 2D through 2G, are made for the purpose of applying to real estate attachments the identical procedures required on personal property attachments by the amendments which became effective on January 1, 1973. Those January 1, 1973, amendments, as explained in the accompanying Advisory Committee's Notes, did not go beyond the requirements of the cases previously decided in the First Circuit. At that time Gunter v. Merchants Warren Nat. Bank, 360 F.Supp. 1085 (D.Me.1973), testing the constitutionality of the Maine real estate attachment procedure, was pending before a three-judge district court in the District of Maine. On June 25, 1973, that court decided the Gunter case and a companion case, Lake Arrowhead Estates, Inc. v. Cumming, 360 F.Supp. 1085 (D.Me.1973), holding that a defendant is constitutionally entitled to the same prior notice and opportunity to be heard on a real estate attachment as on a personal property attachment and on trustee process. The present amendment brings the real estate attachment procedure into conformity with the requirements of due process as construed by the three-judge federal district court. All of the procedures which previously applied only to "attachments of property other than real estate" will hereafter apply generally to "attachments".

Advisory Committee Note

January 1, 1973 The amendment of this rule, as well as the simultaneous amendments to Rule 4B, Rule, 64 and the associated official forms, are made for the purpose of complying with the constitutional requirement of notice and hearing on mesne process as recently laid down by the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) [rehearing denied 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165], and subsequent decisions of three-judge federal district courts in the First Circuit, namely, McClellan v. Commercial Credit Corp., 350 F.Supp. 1013 (D.R.I.1972) [affirmed sub nom. Georges v. McClellan, 409 U.S. 1120, 93 S.Ct. 935, 35 L.Ed.2d 253 (1973)], and Schneider v. Margossian, 349 F.Supp. 741 (D.Mass.1972) . Each of those cases --Fuentes (replevin), McClellan (tangible personal property attachment) and Schneider (trustee process)--held that mesne process of a type similar to that used in Maine was constitutionally deficient for failure to give the defendant notice and opportunity to be heard. There is now pending before a three-judge district court in the District of Maine a case testing the constitutionality of real estate attachments in Maine, which attachments by recording in registries of deeds have continued to be made, at least in Cumberland County and some other counties of the State. Gunter v. Merchants Warren Nat. Bank, Civil Action Docket No. 13-117, now pending in the District of Maine (real estate attachment) [360 F.Supp. 1085 (1973)]. The constitutional deficiency of the existing rules in regard to personal property attachment, trustee process and replevin cannot be ignored, and the pertinent rules are here promptly amended in order to provide the notice and hearing that are constitutionally required. The amendments do not, however, go beyond the requirements of the decided cases. The amendment of Rule 4A does not modify the procedures for making real estate attachments. Fuentes and the cases thus far decided in the First Circuit do not in terms outlaw real estate attachments which do not disturb the defendant's possession. of the attached property. The Committee also wishes to avoid causing any prejudice to either party in the pending Gunter case, supra. No inference, one way or the other, as to the views of members of this Committee on the merits of the Gunter case is to be drawn from the retention of the present rule as to real estate attachments. Furthermore, the amendments of these rules do not go beyond the decided cases in that they do not completely eliminate personal property attachment or trustee process, as has been urged upon the Committee by some members of the Bar. These mesne attachment procedures have been a part of the legislative policy

of Maine and Massachusetts since the Colonial Ordinances of the 17th Century (see the history of attachment in Massachusetts and Maine set forth in McInnes v. McKay, 127 Me. 110, 141 A. 699 (1928), affirmed McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929), limited in Fuentes, supra at n. 23), and were reexamined as recently as the 1971 Legislature, L.D. 1614, after Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), had held trustee process of wages without prior notice and hearing to be unconstitutional. This matter will almost certainly be the subject of debate in the 1973 Legislature where the whole policy question may be fully debated in committee hearings and on the floor of the two houses by interested members of the public.

_______ The finding which the Superior Court justice must make before approving attachment of property other than real estate is "that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment . . . .” This finding wraps into itself both a finding of probable cause to believe that the plaintiff will succeed on the merits of the dispute and a finding that the attachment is reasonable in amount. The Fuentes, McClellan and Schneider cases, supra, do not require any greater showing. The Fuentes case at footnote 33 states: “Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the writ has little probability of succeeding on the merits of the dispute." (Emphasis added) Immediately thereafter the Fuentes decision quotes with approval the concurring opinion of Justice Harlan in the Sniadach case as follows: “[D]ue process is afforded only by the kinds of 'notice' and 'hearing' which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property . . . .” (First emphasis added, second in original) (92 S.Ct. at 2002-03) Similarly the three-judge District Court in Schneider, holding a hearing prior to attachment on trustee process to be constitutionally required, stated:

"Absent some such justification, reflecting an 'important governmental or general public interest', however, a defendant's property could not be subject to attachment unless he had an opportunity to contest at least the probable validity of the underlying claim before the attachment." (Emphasis added) There is nothing in this cases to indicate that the Constitution requires the additional showing "that there is good cause for the attachment", as required in Vermont Rule 4.1 (personal property attachment) and Vermont Rule 4.2 (trustee process). The Vermont Reporter's Note to its Rule 4.1 explained the "good cause" requirement of the rule as follows: "it may be assumed that a showing that defendant is beyond the reach of process or is about to dissipate assets or take some other step that would frustrate satisfaction of a judgment will be necessary". These showings may well be necessary to justify an ex parte order approving an attachment, as provided by the present amendments which add subdivision (f) to Rule 4A and subdivision (h) to Rule 4B, but the decided cases do not lay down any constitutional requirement of such showing in an adversary hearing on the proposed attachment. The required finding "that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment" does, however, require more than a mere finding that plaintiff makes out a prima facie case or that there is probable ground to support plaintiff's claim. The defendant has an opportunity through affidavits and other evidence under oath to contradict the plaintiff's initial showing of "reasonable likelihood" through contrary evidence and through the assertion of affirmative defenses such as the statute of limitations or discharge in bankruptcy. Also the amount of the attachment must be reduced to the extent of any liability insurance which the defendant shows is available to satisfy any judgment that may be obtained against him in the action. Although this provision of the amendment in its specificity goes beyond the decided cases, it is consistent with the constitutional requirement declared by Fuentes that any attachment (including its amount) be supported by a "probable cause" type finding by the court after hearing the defendant. It is the defendant that has the burden of establishing to the satisfaction of the court the amount of liability insurance that will be available. In situations where potentially there are multiple claimants against a single liability insurance fund, this showing by the defendant may be very difficult if not impossible. In Rule 4A(f) providing for ex parte approval of attachment in certain specified special situations, the plaintiff's attorney is required to certify, subject to

the obligations of Rule 11, the amount of liability insurance that he knows or has reason to believe will be available. The procedure in commencing an action will be unchanged by the amendments of Rule 4A if the plaintiff does not seek to go beyond an attachment of real estate. On the other hand, if the attachment of either tangible personal property or attachment on trustee process is desired, the new procedures as specified in the amendments to Rules 4A and 4B must be followed. In a case where one or both of those forms of attachment are sought, the action can be commenced only by the method of filing the complaint with the court, the second method specified in Rule 3. Along with the complaint there will be filed a motion for approval of the attachment supported by one or more affidavits setting forth specific facts showing that there is a reasonable likelihood that the plaintiff will recover in judgment at least as much as the attachment. In many instances the plaintiff will seek approval for both attachment of tangible personal property and attachment on trustee process. The motions for approval of both forms of attachment may be combined as a single motion and the official form that is added simultaneously with the amendment of Rules 4A and 4B, namely, Form 2D, as well as the order thereon, Form 2E contemplate the combination of both motions. The next step will be service on the defendant of the summons and complaint, together with the motion for approval of attachment, with the supporting affidavits. A real estate attachment may also have been made even prior to filing the complaint with the court ; and if so, the copy of the writ of attachment with the officer's endorsement of the date of the real estate attachment must also be served on the defendant at the same time as the summons and complaint. The notice of hearing (see new Form 2D) also served upon the defendant will state the time and date of the hearing on the motion, which in accordance with Rule 6(d) must be not sooner than seven days after service on the defendant. Also by Rule 6(d) the defendant should file any opposing affidavits not later than one day before the hearing. The court may hear the motion on the affidavits presented by the parties, but is also authorized by Rule 43(e) to hear the matter partly on oral testimony, and, in the event that the defendant appears at the hearing with witnesses ready to testify, reasonable opportunity should be accorded the defendant to present such evidence consistent with "minimiz[ing] unnecessary cost and delay" (Fuentes, supra, n. 33). Upon making the required finding of "reasonable likelihood" the judge will sign the order approving the attachment, which order may combine approval of trustee process under Rule 4B. See Form 2E. The motion for an approval order may be granted by default if the defendant does not file counter affidavits or otherwise appear.

After court approval of the attachment and/or trustee process, the plaintiff's attorney will, as now, fill out the writ of attachment and/or the trustee summons which he has procured in blank from the clerk. However, under the amendment of Rules 4A(b) and 4B(b), both the writ of attachment and the trustee summons contain a specific recitation of the amount of attachment approved by the court, the name of the justice of the court granting the order of approval, and the date of the order. See the additions made to Forms 2 and 2A and Alternate Form 2 and Alternate Form 2A. Any attachment of personal property or on trustee process must be made within 30 days after the order approving the attachment subject, as at present, to the court's permitting a subsequent attachment on motion and notice and for cause shown. See Rule 4A(e); cf. Rule 4B(g). Any such order for additional attachments will of course also require the same finding of "reasonable likelihood" and may be granted ex parte on a proper showing by affidavit. The addition of subdivision (f) to Rule 4A, and the simultaneous addition of subdivision (h) to Rule 4B, make a limited exception to the constitutional requirements for notice and hearing where necessary to serve an important governmental or general public interest. Fuentes recognized, at note 23, that no notice and hearing are required where the defendant is not subject to personal jurisdiction of the courts of the state so that attachment is necessary for the state court to secure quasi-in-rem jurisdiction, called by Fuentes "clearly a most basic and important public interest." Fuentes cited Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921). The Ownbey case involved the situation where the defendant could not be served personally within the state. Our Maine "long arm" statute substantially extends the jurisdiction of Maine courts over out-of-state defendants as to causes of action having the required nexus with Maine, see 1 Maine Civil Practice § 4.10, and in the same measure restricts the availability of ex parte attachment orders. Although Rule 4A (f)(i) speaks of "the person of the defendant", obviously the defendant may be a corporation and an ex parte order for attachment may be rendered against a corporate defendant which is beyond the personal jurisdiction of the court. Very recently the Delaware Chancery Court, citing Fuentes and also Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113, 119 (1971) [conformed to 329 F.Supp. 844 (D.Conn.)], which recognized "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event," held that the state's interest in aiding its citizens in prosecuting claims against nonresidents with property in the state justified ex parte attachment of Delaware property owned by a foreign corporation sued in a stockholder's derivative suit. Gordon v. Michel, 41 U.S.L.W. 2264 (Del.Chan.Ct., Oct. 24, 1972). Prior notice and hearing would, the

Delaware court said, permit the defendant to defeat a "most basic and important public interest." Ibid. Under Rules 4A(f) and 4B(h) the second ground for permitting an ex parte order of approval, that is, where there is a clear danger that the defendant will conceal the property to be attached or will remove it from the state if given prior notice of the attachment, has much the same purpose as the old ne exeat writ, namely, the protection of the power of the court to enforce a judgment in the action. The Fuentes case, in recognizing that special situations may demand prompt action, points by way of illustration to "cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods." (92 S.Ct. at 2000-01) The third ground stated in Rule 4A(f) for permitting an ex parte order approving an attachment is where "there is immediate danger that the defendant will damage or destroy the property to be attached." Except for the elimination of notice to the defendant and of an adversary hearing, the procedure for obtaining ex parte an order of approval of personal property attachment or of trustee process is generally the same as for an adversary hearing. However, the plaintiff's attorney is required to certify to the court the amount of any liability insurance which he knows or has reason to believe will be available. Furthermore the plaintiff's attorney is, in filing the motion for an ex parte order with the supporting affidavits, subject to the obligations of Rule 11; that is, he certifies "that to the best of his knowledge, information and belief there is good ground to support it." In any event, the absence of any notice to the defendant and any opportunity for him to be heard puts an extra obligation upon the court to scrutinize with particular care the affidavits presented by the plaintiff on the "reasonable likelihood" issue. Subdivision (g) of Rule 4A, and subdivision (i) of Rule 4B, are added in order to give the defendant whose property is attached without notice an opportunity to get the plaintiff promptly into court to justify the attachment. The ex parte order approving attachment is closely analogous to a temporary restraining order issued ex parte under Rule 65(a). The defendant whose property is attached is given a similar opportunity to move its dissolution or modification, and at the hearing on that motion there is put on the plaintiff the burden of justifying any of the findings in the ex parte order which the defendant challenges by affidavit. Fairness requires that a defendant beyond the reach of process be able to challenge an ex parte attachment order without thereby submitting to personal jurisdiction, and Rule 4A(g) and Rule 4B(i) so provide. Also, the defendant whose demand bank account is trusteed on an ex parte order is given a $100 exemption

representing living expenses pending the hearing on a dissolution. or modification hearing. See Advisory Committee's Note to Rule 4B(h). The modification and dissolution procedures of Rule 4A(g) and Rule 4B(i) apply to personal property attachments and to attachments on ex parte orders. Real estate attachments are also made subject to modification or dissolution on an expedited hearing. These rules are in addition to any other means which are available for obtaining dissolution, modification or discharge of attachments, see, e. g., 1.4 M.R.S.A. §§ 4601-13, and each of the new provisions expressly excludes any intention to abolish or limit those other remedies. Rule 4A(h) setting forth the required contents of affidavits filed in support of motions for attachment is drawn from the comparable provision of Rule 65(a) relating to affidavits in support of motions for temporary restraining orders. Rule 4B relating to trustee process and Rule 64 relating to replevin require the same contents for affidavits filed under those rules. It is to be noted that the affidavits must set forth specific facts sufficient to warrant the required findings. Compliance with this requirement may well be difficult with reference to the danger of removal or concealment of the property. It is contemplated that the plaintiff must show specific facts applicable to the particular case and not merely rely upon the possibility, present in every case, that the property to be attached may be removed or concealed if prior notice to the defendant is given.

Explanation of Amendment February 1, 1960

The amendment eliminated the necessity for the officer to transcribe a

complete copy of his return of service on the copy of the writ of attachment which he delivers to the defendant, often difficult and sometimes impossible to do under the usual circumstances of making a personal property attachment. All the officer need do now is indorse the writ in the appropriate space, as follows: “Writ executed on _________ (date).” A number of different dates, all of which should be indicated in the indorsement, may be involved in attachments under the same writ. Of course, if the officer does place a complete copy of his return, describing the property attached, etc., upon the copy given the defendant (as he might well do in the case of a real estate attachment), then he has more than adequately complied with the rule.


The purpose of this rule is to preserve the essentials of existing practice with respect to attachment. Subdivision (a) incorporates existing statutory law by reference. Thus R.S.1954, Chap. 112, Sec. 24 ff. [now 14 M.R.S.A. §§ 4151 ff.] will continue to control the manner in which and extent to which attachment may be used. The form of the writ of attachment is prescribed by subdivision (b). See Form 2 and Alternate Form 2 in the Appendix of Forms. The plaintiff's attorney fills out the writ and delivers the original and a copy thereof to the officer for service. When the summons and complaint are served upon the defendant, he is also to be served with a copy of the writ of attachment and the return of service thereof.* As with other process, the serving officer makes proof of service upon the original writ of attachment and returns it to the plaintiff's attorney. In substance and effect this reproduces existing practice. Although the rule requires a separate writ of attachment, summons and complaint, in contrast to the existing practice of inserting the declaration in a writ of attachment, the summons and writ of attachment might well be combined in printing so as to minimize the number of separate papers to be handled. The amount of the attachment, as filled in by the plaintiff's attorney, should include a reasonable allowance for interest and costs. The intention is to do away with the arbitrarily fixed ad damnum of existing practice, which has the effect of attaching property of substantially greater value than the plaintiff's real expectations of recovery, and at the same time to assure an attachment sufficient in amount to satisfy the judgment, including interest and costs. The rule prescribes a uniform time limit of 30 days from the date of the complaint for the making of an attachment, but this time is subject to enlargement under Rule 6(b). Under present law this limit is a variable one, depending upon the relationship between the date of commencement of the action and the return term. Subdivision (d) makes it clear that attachment is available to a party bringing a counterclaim, cross-claim, or third-party complaint.

* [Field, McKusick & Wroth note: “By virtue of the amendment of February 1, 1960, the officer's endorsement on the writ of the date of execution is sufficient.” 1 Field, McKusick & Wroth, Maine Civil Practice at 118 (2d ed. 1970)].

Subdivision (e) permits a subsequent attachment by order of the court after service upon the defendant. This is to cover the situation where the plaintiff's attorney later learns about property subject to attachment. It incorporates R.S.1954, Chap. 113, Sec. 20 (amended in 1959) [now 14 M.R.S.A. § 4102].

RULE 4B. TRUSTEE PROCESS

(a) Availability of Trustee Process. In any personal action under these rules except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander by writing or speaking, or for assault and battery, trustee process may be used, in the manner and to the extent provided by law, but subject to the requirements of this rule, for the purpose of securing satisfaction of the judgment for damages and costs which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from that person to the defendant for earnings. The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commissions, bonuses or otherwise, and includes periodic payments pursuant to a pension or retirement program. Trustee process under this rule shall not be available before judgment in any action against a consumer for a debt arising from a consumer credit transaction as defined by Maine Consumer Credit Code. (b) Summons to Trustee: Form. The summons to a trustee shall bear the signature or facsimile signature of the clerk, be under the seal of the court and contain the name of the court and the names of the parties, be directed to the trustee, state the name and address of the plaintiff’s attorney, a specified amount for which the goods or credits of the defendant are attached on trustee process or specific goods or credits designated by the court for attachment, and the time within which these rule require the trustee to make disclosure, and shall notify the trustee that in case of failure to do so the trustee will be defaulted and adjudged trustee as alleged. The trustee summons shall also state the name of the justice or judge who entered the order approving attachment on trustee process and the date thereof. (c) Same: Service. The trustee summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The trustee summons shall be served by a sheriff or a deputy within the sheriff’s county. The plaintiff’s attorney shall deliver to the officer making service the original trustee summons upon which to make return of service and a copy thereof for service upon the trustee. The trustee summons shall be served in like manner and with the same effect as other process. No trustee summons may be served unless attachment on trustee process for a specified amount has been approved by order of the court. Except as provided in subdivision (i) of this rule, the order of approval may be entered only after notice

to the defendant and hearing and upon a finding by the court that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an aggregate sum equal to or greater than the amount of the trustee process and any insurance, bond, or other security, and any property or credits attached by writ of attachment or by other trustee process shown by the defendant to be available to satisfy the judgment. Trustee process shall be sought by filing with the complaint a motion for approval of attachment on trustee process. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4A(i). Except as provided in subdivision (i) of this rule, the motion and affidavit or affidavits with notice of hearing thereon shall be served upon the defendant in the manner prescribed in Rule 4 at the same time the summons and complaint are served upon the defendant. A defendant opposing a motion for approval of attachment on trustee process shall file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the motion as provided in Rule 7(c) for failure to file opposition material within the time therein provided or as extended, the court shall, without hearing, upon a finding that the plaintiff is entitled to an attachment under the terms of this subdivision (c), enter an order of approval of attachment in an appropriate amount. Any trustee process shall be served within 30 days after the date of the order approving the attachment. Promptly after the service of the trustee summons upon the trustee or trustees, a copy of the trustee summons with the officer’s endorsement thereon of the date or dates of service shall be served upon the defendant in the manner provided in either Rule 4 or Rule 5. (d) Approval of Limited Attachment on Trustee Process or Substituted Security. (1) Attachment of Specific Property. In the order approving an attachment on trustee process, the court shall specify that the attachment is to issue solely against particular goods or credits upon a showing by the defendant (A) that the goods or credits specified are available for attachment on trustee process and would, if applied to satisfy any judgment obtained in the action, yield to the plaintiff an amount at least equal to the amount for which attachment on trustee process is approved in accordance with the criteria of subdivision (c), and (B) that the absence of such a limitation will result in hardship to the defendant.

(2) Alternative Security for a Single Defendant. At the hearing on a motion for approval of an attachment on trustee process against the goods or credits of a single defendant, the defendant may tender cash or bond at least equal to the amount of any attachment to be approved in accordance with the criteria of subdivision (c). If the court finds that the defendant has tendered cash in sufficient amount, it shall order that amount to be deposited with the court as provided in Rule 67 to be held as security for any judgment that the plaintiff may recover. If the court finds that the defendant has tendered a bond of sufficient amount and duration and with sufficient sureties, the court shall order the bond to be filed with the court. A surety upon a bond filed under this rule is subject to the terms and conditions of Rule 65(c). Upon such deposit or filing, the court shall further order that any prior attachment on trustee process against the defendant to satisfy a judgment on the claim for which security has been tendered shall be dissolved. Thereafter, no further attachment on trustee process shall issue against the defendant except on motion of the plaintiff and a showing that the cash deposited or bond filed has become inadequate or unavailable to satisfy the judgment. (3) Single Security for Multiple Defendants. At the hearing for approval of attachment on trustee process against the goods or credits of two or more defendants alleged to be jointly and severally liable to the plaintiff, one or more of the defendants may tender cash or bond sufficient, in the aggregate, to satisfy the total amount the plaintiff would be entitled to recover upon execution against all such defendants. Upon the findings required by paragraph (2) of this subdivision for a single defendant, the court may order the cash to be deposited or the bond filed with the court on the same conditions and with the same effect provided in that paragraph. (e) Disclosure by Trustee; Subsequent Proceedings. A trustee shall serve that trustee’s disclosure under oath within 20 days after the service of the trustee summons upon that trustee, unless the court otherwise directs. The proceedings after service of the trustee’s disclosure shall be as provided by law. When a trustee reports for examination, notice thereof shall be served upon the attorney for the plaintiff, and upon motion the court shall fix a time for the disclosure to be made. Before the disclosure is presented to the court for adjudication, there shall be minuted upon the back thereof the name of the attorney for the plaintiff, the name of the trustee with the date of the service of the summons upon that trustee, and the docket number of the action.

(f) Adjudication and Judgment. The proceedings for adjudication on the disclosure of the trustee and for the rendition and execution of judgment and the imposition of costs shall be as provided by law. (g) Trustee Process on Counterclaim, Cross-Claim or Third-Party Complaint. Trustee process may be used by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim, provided that the trustee resides or, if a corporation, maintains a usual place of business, in the county where the action is pending. If the counterclaim is compulsory under Rule 13(a), the party stating it may use trustee process, even though the trustee does not reside or maintain a usual place of business in the county where the action is pending. (h) Subsequent or Additional Trustee Process. If no trustee process has issued, or if the time period prescribed in subdivision (c) of this rule for serving trustee process has expired, the court on motion may issue an order of approval for an additional attachment on trustee process. The provisions of subdivisions (c), (d), and (i) of this rule apply to the motion and any trustee process ordered thereunder, except that notice if appropriate shall be served upon the defendant in the manner provided in Rule 5. (i) Ex Parte Hearings on Trustee Process. An order approving trustee process for a specified amount may be entered ex parte only in an action commenced by filing the complaint with the court together with a motion for approval of attachment on trustee process as provided in subdivision (c) of this rule. The hearing on the motion shall be held forthwith. Such order shall issue if t court finds that it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the trustee process and any insurance, bond or other security, or property or credits attached by writ of attachment or by other trustee process known or reasonably believed to be available to satisfy the judgment and that either (i) there is a clear danger that the defendant if notified in advance of the attachment on trustee process will withdraw the goods and credits from the hands and possession of the trustee and remove them from the state or conceal them, or otherwise make them unavailable to satisfy a judgment, or (ii) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods, to be attached on trustee process. A maximum of one hundred dollars of demand bank accounts of the defendant held by any one trustee shall, however, be exempt from trustee process approved by an ex parte order under this subdivision. The motion for an ex parte order under this subdivision shall be accompanied by a certificate by the plaintiff’s attorney of the

amount of any insurance, bond, or other security, and any other attachment or trustee process which the attorney knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff’s attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4A(i). (j) Dissolution or Modification of Trustee Process. On 2 days’ notice to the plaintiff or on such shorter notice as the court may prescribe, any person having an interest in goods or credits that have been attached on trustee process pursuant to an ex parte order under subdivision (h) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the dissolution or modification of the trustee process, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order that the moving party has challenged by affidavit. Upon motion and notice and a showing by any defendant that specific property or sufficient cash or bond is available to satisfy a judgment as provided in subdivision (d) of this rule, the court may modify an order of attachment on trustee process, whether issued ex parte or after hearing, to limit the attachment to particular goods or credits or to order cash or bond to be held by the court as security for the judgment, and to dissolve the prior attachment as to all other goods or credits of the defendant. If a prior attachment on trustee process has been perfected as to goods or credits specified in the modified order, the modified order shall relate back to the original attachment. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of trustee process that is otherwise available by law.

Author’s Note The Advisory Committee’s Notes to amend Rule 4B generally refer to the nearly identical provisions of Rule 4A. The Rule 4A notes thus should be referenced to aid in interpretation of Rule 4B.


The specific statutory citation in subdivision (a) is replaced by the general reference to the Maine Consumer Credit Code so that the Rules are not impacted by statutory changes. The term “attachment” taken from Rule 4A, is replaced by the proper reference to “trustee process.”

Advisory Committee’s Note February 1, 1983

Rule 4B(i) is amended to make this rule consistent with the language contained in Rule 4A(g). The change will permit any person claiming an interest in goods or credits attached on trustee process to bring a motion to dissolve or modify the trustee process. The right to bring such a motion is not limited to a party to the action.


This amendment is necessary to conform to statutory requirements. See Advisory Committee's Note to simultaneous amendment of Rule 4A(a).


The background and purpose of these amendments is explained in the Advisory Committee's Note to the simultaneous amendment of Rule 4A. Rule 4B(a) is amended to eliminate the limitation of trustee process to the commencement of the action. Amended Rule 4B(c), like amended Rule 4A(c), provides that an attachment on trustee process will not be approved unless plaintiff is likely to recover more than the aggregate amount of available liability insurance or other attachments obtained simultaneously or previously under this rule or Rule 4A. See Advisory Committee's Note to amendment of Rule 4A. Rule 4B(g), like Rule 4A(e), is amended to provide for either "subsequent" or "additional" trustee process. See Advisory Committee's Note to amendment of Rule 4A.

Rule 4B(h) is amended for consistency with the amendment of Rule 4B(c). At the same time subdivision (h) is amended for the same reasons as the simultaneous amendment of Rule 4A(f). See Advisory Committee's Note to Rule 4A.

Advisory Committee's Note January 1, 1973

The amendments made to this rule parallel the amendments being simultaneously made to Rule 4A relating to attachment of property other than real estate. Reference is made to the Advisory Committee's Note on the amendments to Rule 4A for an explanation of the purpose of these amendments as well as a discussion of the procedure to be followed in making either form of attachment. There are minor changes made in Rule 4B in addition to those which are parallel to the amendments of Rule 4A. In Rule 4B(c) the language "the person who is to make service" is changed to read "the officer making service.” Under Rule 4(c) service of process, as distinguished from execution of a writ of attachment, may be made by a person other than an officer. However, it seems desirable, since trustee process is now available only after a court order, that the trustee summons be served only by an officer experienced in service procedures and informed of the requirements for the court order. Subdivision (g) relating to subsequent trustee process is also amended to eliminate the language from the present rule reading "against the same or an additional trustee.” That former language in the context of the newly required adversary hearing on whether the order approving the additional attachment should be granted would imply that the plaintiff must reveal the identity of the additional trustees. Such identification is not relevant at the due process hearing on the issue of "reasonable likelihood." Whether the plaintiff will find it necessary to identify the trustee in order to show cause for the late trustee process will depend upon the facts of each individual case. Reference is made to the Advisory Committee's Note on Rules 4A(f) and (g), for an explanation of ex parte orders approving personal property attachments and of the provision for expeditious motions and hearings for dissolution or modification of those ex parte attachments, This explanation is equally applicable to the parallel provisions for Rules 4B(h) and (i) relating to attachments on trustee process. A special provision is, however, added to Rule 4B(h), in order to give

added protection to the defendant whose demand bank account is trusteed under an ex parte order. Such a defendant may well be relying upon his bank account to take care of his current living expenses in much the same way that the wage-earner whose wages were garnished in Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), relied on wages for living expenses. The $100 exemption applied against all demand bank accounts of the defendant held by any one bank means that the defendant will have the use of that sum in the brief period prior to an expeditious hearing on his motion under Rule 4B(i) to dissolve or modify the trustee process. It is true that a defendant with multiple bank accounts will get the benefit of multiple exemptions, but the complexities necessary to prevent this result make an attempt to do so impracticable. The affidavit filed in support of a motion for ex parte trustee process must set forth specific facts sufficient to warrant the court's finding of one of the factual bases (either (i) or (ii) or (iii) in subdivision (h)) justifying service of trustee process prior to notice and hearing. Under the rule the court should insist on a showing of something more than the mere possibility, present in every case, that a defendant forwarned of the trustee process will withdraw a bank account or other credit and put the proceeds out of reach of process. Furthermore, clause (iii) in speaking of "immediate danger that the defendant will dissipate the credits" refers to something more than normal withdrawals that the defendant would make in the ordinary course irrespective of an impending trustee process. For example, the fact that a business concern will write many payroll checks. on its bank account for its weekly payday does not by itself justify an ex parte order for immediate trustee process.


Amendments to Rule 4B(a), (c), and (g), and the abrogation of Rule 4B(h), are made necessary by the enactment of 1971 Laws, ch. 408, which makes major changes in the procedure for obtaining satisfaction of a money judgment. The Act adds a new Chapter 502 to Title 14 M.R.S.A., replacing the present disclosure proceedings of Title 14 with a hearing before a judge of the District Court. Under new 14 M.R.S.A. §§ 3127-3130, the judge is empowered to order a judgment debtor to make installment payments to his creditor in an amount proportionate to his earnings, up to limits similar to those incorporated in former Rule 4B(h)(2). New 14 M.R.S.A. § 3137 permits the court to order such payments to be made

directly by the employer in the event of default by the employee. Consistent with these provisions, section 2 of the Act amends 14 M.R.S.A. § 2602(6), the trustee process exemption provision, to prohibit use of trustee process against wages at any time. The present amendments to Rule 4B eliminate provisions of the rule intended to implement state and federal statutory limitations upon the use of trustee process against earnings. See Advisory Committee's Notes to amendments of December 31, 1967, and ,July 1, 1970. Rule 4B(a) continues to prohibit trustee process against earnings and carries forward the broad definition of earnings contained in new 14 M.R.S.A. § 3121(1), which is substantially that of former Rule 4B(h)(3)(i). These provisions are necessary to make clear that disclosure proceedings under new Chapter 502 are the creditor's exclusive remedy against earnings as thus defined. This is clearly the intent of the Act, although literally it exempts only the narrower "wages" under the amendment to 14 M.R.S.A. § 2602(6). M.R.C.P. Form 2C and Alternate Form 2C, summons to trustee for earnings, as well as the parallel forms for use in the District Court, have been abrogated.

Advisory Committee's Note July 1, 1970

The amendments to Rule 4B are made principally for two purposes: (1) To eliminate the restriction to 30 days after judgment for the service of trustee process against earnings; and (2) to write into the rule for the convenience of practicing lawyers the present practical effect of the monetary limitations imposed upon trustee process against earnings by a federal statute that goes into effect in this regard on July 1, 1970; namely, the Consumer Credit Protection Act. Also, the word "earnings" as used in the federal Act has been substituted for the phrase "wages or salary" used previously in Rule 4B. The Committee considered but rejected as unnecessary an amendment in the last sentence of Rule 4B(c) to make clear that the thirty-day limitation upon service of trustee process used in connection with the commencement of the action against types of goods and credits other than earnings may be extended by court order under Rule 6(b). That time period, like the thirty-day period for attachments under Rule 4A(c) and all other time periods under the rules may be enlarged except as restricted under Rule 6(b) itself.

The thirty-day restriction on post-judgment trustee process against earnings is eliminated as a result of a widely held belief that the restriction served no useful purpose and often resulted in real hardship to the judgment debtor. It was reported to the Committee that in light of the thirty-day restriction collection attorneys armed with a judgment often feel compelled to demand immediate payment in full or to serve several trustee summonses against earnings in rapid succession, without leaving time to work out an accommodation. No time restriction upon use of trustee process against earnings after judgment appears in either the 1965 Maine Act which made judgment a prerequisite for such trustee process, or the federal Consumer Credit Protection Act. Rule 4B(h)* is now divided for convenience into three paragraphs. The first paragraph incorporates the substance of the prior Rule 4B(h), substituting the phrase "at any time" for the prior phrase "during a period of thirty days", and adding to the last sentence an express requirement, that certainly was implicit previously, that the judgment plaintiff using trustee process against earnings must serve upon the judgment debtor a copy of the trustee summons with the officer's endorsement thereon of the date of service upon the trustee. The new paragraphs (2) and (3) of Rule 4B(h) incorporate the principal provisions of title III of the federal Consumer Credit Protection Act, P.L. 90-321, 15 U.S.C.A. §§ 1671-77, which imposes certain maximum limits upon the amount of "earnings" as defined in the Act that may be garnished to satisfy a debt and forbids any state or federal court to "make, execute or enforce any order or process in violation of" the Act. Under Section 303 of the Act, 15 U.S.C.A. § 1673, the maximum amount which may be garnished is the lesser of (1) 25% of defendant's weekly disposable earnings or (2) the amount by which those earnings exceed 30 times the federal minimum hourly wage. For pay periods other than a week, the Secretary of Labor is to provide by regulation a means for computing the equivalent of the latter sum. The amended rule expresses the requirements of the Act in terms of their practical effect. A sum equal to 30 times the federal minimum wage, which would presently be $48, is exempt from attachment in any case. If earnings are between $48 and $64 a week, the excess over $48 will be less than 25% of the total, so only that excess may be attached. When earnings are more than $64 a week, 25% will be the lesser amount and hence subject to attachment.

* Rule 4B(h) was abrogated September 23, 1971.

Subparagraph (iii) of the rule simply incorporates the Secretary's regulations for pay periods other than a week. Currently, the Secretary proposes merely to multiply the weekly figure by the number of full weeks and fractions of a week in the pay period. For example, the figure for a monthly pay period would be 4 1/3 times $48 or $208. See Proposed Regulations, 29 C.F.R. Ch. V, 34 Fed.Reg. 19296-97 (Dec. 5, 1969). Present Maine law would not satisfy the standards of the federal Act. Under 14 M.R.S.A. § 2602(6) earnings at the rate of $40 per week are exempt, presumably for whatever period of time they are owed at the time of attachment. See 1 Field, McKusick & Wroth, Maine Civil Practice, 140–42 (2d ed. 1970). Under the Maine statute, if defendant had total disposable earnings of $64 for one week, $24 would be subject to attachment, while the federal Act would limit attachment to $16. While, as previously noted, the rule will supersede the statute, it will be desirable to repeal 14 M.R.S.A. § 2602(6) as obsolete and potentially confusing. Under Section 305 of the federal Act, 15 U.S.C.A. § 1675, the Secretary may "exempt" from the statute's preemptive bar state laws with restrictions "substantially similar" to the federal provisions. While regulations governing such exemptions are not yet final (see Proposed Regulations, 29 C.F.R. Ch. V, 34 Fed.Reg. 19296–97 [Dec. 5, 1969]) one of the Consultants to the Committee has been assured by the Regional Solicitor of the Department of Labor that the proposed rule satisfies the federal requirements. Note that Section 304 of the federal Act, 15 U.S.C.A. § 1674, forbids discharge of any employee for garnishment where only one debt is involved and imposes criminal penalties for willful violation. No rule seems appropriate or necessary to implement this provision, which is self-operating regardless of state law. Rule 4(h)(3) incorporates verbatim the definitions of "earnings" and "disposable earnings" found in Section 302 of the federal Act, 15 U.S.C.A. § 1672. The definition of "earnings" makes clear that the entire rule applies to all forms of compensation, including payments under pension or retirement plans, thus eliminating a possible inequity. The definition of "disposable earnings" solves the otherwise difficult problem of what deductions from wages are to be included in the attachment. Those deductions "required by law to be withheld", such as income and social security taxes, are excluded, while others, such as health insurance premiums for insurance not imposed by law, are included. The amendments of Rule 4B made to conform with and to declare the practical effect of the federal Act are derived from a Vermont rule which went into effect on May 1, 1970.


December 31, 1967 The change in subdivision (a) and the addition of subdivision (h) are intended to bring the rule into conformity with the 1965 amendment of 14 M.R.S.A. § 2602(6), which prevents the use of trustee process against the wages or salary of the principal defendant for personal labor until after judgment has been obtained. Under the statute and the existing rule the plaintiff was put to the expense and trouble of an action on the judgment, and the employer served with a trustee process in the second action had no way of knowing whether or not a prior judgment had been obtained or for how much or even that it was an action on a judgment. See Field and McKusick, Maine Civil Practice, § 4B.3 (Supp.1967). Subdivision (h) allows the use of trustee process as a part of the principal action, but permits it to be served only during a period of 30 days after the entry of judgment therein. The proviso added to 4B(a) simply incorporates the 1965 amendment. To accompany these changes, Form 2C and Alternate Form 2C, entitled "Summons to Trustee for Wages", are added. The forms advise the trustee of the date and amount of the judgment upon which the trustee process is based. The provision in 4B(c) for service of trustee process upon a partnership has been rendered unnecessary in view of the addition of Rule 4(d) (10) providing for a simplified service of all process upon partnerships.


This amendment was promulgated at the same time and for the same reason

as the amendment to Rule 4A(c) discussed above. Again the purpose is to make the task of the officer making the service less burdensome and to lessen the possibility for error.


The purpose of this rule is to preserve existing practice with respect to trustee process. Subdivision (a) states the actions in which trustee process may be

used, as set forth in R.S.1954, Chap. 114, Sec. 1 (amended in 1959) [now 14 M.R.S.A. § 2601], and incorporates existing law by reference. Subdivision (b) prescribes the form of the summons to the trustee, which will have the effect of the present trustee writ and summons. See Form 2A and Alternate Form 2A in the Appendix of Forms. The amount for which the defendant's goods or credits are attached should not exceed the amount named in the demand for judgment together with a reasonable allowance for interest and costs. The object is to limit the amount caught by trustee process to a value sufficient to cover the plaintiff's prospective judgment including interest and costs. The plaintiff's attorney will fill in the summons to show the total amount attached. Subdivision (c) calls for service upon a trustee in the manner provided for service generally, but with the proviso, taken from R.S.1954, Chap. 114, Sec. 4 [now 14 M.R.S.A. § 2603], that service upon a single partner is sufficient attachment of the defendant's property in the possession of the firm.* When the summons and complaint are served upon the defendant, he is also to be served with a copy of the trustee summons and the return of service thereof.** As with other process, the serving officer makes proof of service upon the trustee summons and returns it to the plaintiff's attorney. Practice under this rule differs from present practice in that it substitutes a summons to the trustee and a separate summons and complaint to the principal defendant for the trustee writ in which the declaration is inserted, but its practical effect is unchanged. As in the case of attachment, this rule prescribes a uniform time limit of 30 days from the date of the complaint for the service of a trustee process, but this time is subject to enlargement under Rule 6 (b). Under present law this limit is a variable one, depending upon the relationship between the date of commencement of the action and the return term. * [According to Field, McKusick & Wroth, “This provision was eliminated as superfluous,

effective Dec. 31, 1967. See Rule 4(d) (10).” 1 Field, McKusick & Wroth, Maine Civil Practice at 131 (2d ed. 1970)].

** [According to Field, McKusick & Wroth, “by virtue of the February 1, 1960, amendment of Rule 4B(c), the officer's endorsement on the trustee summons of the date of execution is sufficient.” 1 Field, McKusick & Wroth, Maine Civil Practice at 131 (2d ed. 1970)].

Subdivision (d) requires the trustee to serve his disclosure under oath within 20 days after service upon him. The form of the disclosure is very similar to that now in use. See Form 21A in the Appendix of Forms. Existing law as to subsequent proceedings is incorporated by reference. The last two sentences of this subdivision are taken from Revised Rules of Court 12. Subdivision (e) similarly incorporates by reference existing law as to adjudication and judgment. Subdivision (f) provides for the use of trustee process by a party bringing a counterclaim, cross-claim or third-party complaint if the venue is proper as to the trustee. If the counterclaim is compulsory, trustee process may be used irrespective of where the trustee resides. The latter provision is a practical necessity in order not to force upon the counterclaiming party the disadvantage of losing his chance to get security by trustee process for any judgment he might recover. This adds to the burden of a trustee by compelling him to appear outside his own county, but he is already required to do so in cases where the action is brought in a different county in which another trustee resides. See R.S.1954, Chap. 114, Sec. 5 (amended in 1959) [now 14 M.R.S.A. § 2604]. Subdivision (g) provides means of obtaining a court order for an additional attachment on trustee process after service on the principal defendant. Wages or salary of the defendant cannot, however, be reached by such subsequent trustee process. Successive trustee services for this purpose will therefore be limited to the 30-day period between the commencement of the action and service upon the defendant.*** It is believed that any further extension would place an unwarranted burden upon the wage-earner.

*** [According to Field, McKusick & Wroth, “The sentence in the text should have read,

‘Successive trustee services for this purpose will therefore be limited to the 30-day period after the date of the complaint. Rule 4B(c).’ In any event, trustee process against wages is now limited under Rule 4B(h) to the 30-day period after entry of judgment. See Advisory Committee's Note and § 4B.3a below.” 1 Field, McKusick & Wroth, Maine Civil Practice at 132 (2d ed. 1970)].

RULE 4C. ARREST [ABROGATED]

[Abrogated effective February 15, 1985.]

Explanation of Amendments

December 1, 1959; January 1, 1967

Rule 4C(a) was amended November 2, 1959, effective December 1, 1959, to assure the exclusion of any common-law right to arrest on mesne process.

The 1967 amendment updated the statutory reference.


This rule provides for arrest on a capias writ in the manner and to the extent provided by law.* It should be noted, however, that 1959 Laws, c. 317, §§ 55 and 56, amending R.S.1954, Chap. 120, Secs. 1 and 2 [now 14 M.R.S.A. § 3601], considerably restrict the use of arrest in civil cases. The amendment strikes out Sec. 1, which permits arrest to be made freely in tort cases, and makes Sec. 2, now limited to contract actions, govern arrest in all cases. This means that arrest in a tort case will be possible only upon the oath of the plaintiff or his attorney that he has reason to believe and does believe that the defendant is about to depart and reside beyond the limits of the state and take with him property or means of his own beyond what is needed for his immediate support. In practice arrest has been little used in contract cases, and it seems likely that under the amended statute it will also be used sparingly in tort cases. Subdivision (c) provides for the retention in substance of the procedure under the old ne exeat writ under which a defendant may be arrested as a means of insuring the performance of an act, the neglect or refusal to perform which would be punishable as a contempt.

* [According to Field, McKusick & Wroth: “By a 1959 amendment the use of arrest was limited

to the manner expressly provided in what is now 14 M.R.S.A. § 3601.” 1 Field, McKusick & Wroth, Maine Civil Practice at 157 (2d ed. 1970)].


RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

(a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, notice of change of attorneys, pretrial memorandum, demand, offer of judgment, designation of record and statement of points on appeal, and similar paper shall be served upon each of the parties, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. (b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party personally is ordered by the court. When an attorney has filed a limited appearance under Rule 11(b), service upon the attorney is not required. Service upon an attorney who has ceased to represent a party is a sufficient compliance with this subdivision until written notice of change of attorneys has been served upon the other parties. Service upon an attorney or upon a party shall be made by delivering a copy to the attorney or to the party or by mailing it to the last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the office of the attorney or of the party with the person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein, or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. (c) Same: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendant and replies

thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. (d) Filing: No Proof of Service Required. Subject to the provisions of Rule 26(f), all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party shall constitute a representation by the party, subject to the obligations of Rule 11, that a copy of the paper has been or will be served upon each of the other parties as required by subdivision (a) of this rule. No further proof of service is required unless an adverse party raises a question of notice. (e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court except that a justice or judge may permit the papers to be filed with that justice or judge, in which event the justice or judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. After hours or other office filings are subject to Rule 5(g). (f) Filing of Papers Not in Compliance with Rules, Orders or Statute. Filings that are received but which are not signed, or are not accompanied at the time of filing by a legally required element, including but not limited to, a filing fee, appeal fee, registry recording fee and envelope or summary sheet, or, if filed by an attorney, do not have the attorney’s Maine Bar Registration Number, shall be returned by the clerk as incomplete. The clerk will not docket the attempted filing but will retain a copy of the attempted filing and the notice of return for six months. The offeror may refile the documents when all elements are complete. The filing will be docketed when the complete filing is received. (g) After Hours and Other Office Filings. (1) Clerks of courts may not, unless authorized by a judge or justice, accept filings for other courts, or accept pleadings or other documents filed with or left for the clerk after normal business hours. Unless the party or counsel has filed the pleading or document directly with a judge or justice, or the clerk has received explicit instructions from a judge or justice to accept an after-hours filing

as filed on the date it is made, the clerk shall date stamp the filing, and docket it as filed, on the next regular business day. (2) Judges or justices may, for good cause shown, accept filings made after regular business hours, accept filings for other courts, or may make arrangements with a clerk for the clerk to accept a filing after regular business hours. In such a matter, the judge, justice or clerk shall note the judge’s authorization on the pleading or document, along with the date and time of actual receipt. The receiving official shall promptly transmit the filing to the proper court, where the filing shall be docketed as filed on the date originally received by the judge, justice, or clerk. Judges or justices may discuss the need for such filings with the offering party or counsel, and such discussions are deemed not to be ex parte communications, or to require notice to opposing parties or counsel. (h) Pleading Summary Sheets. (1) Any pleading which sets forth a claim for relief, except those specified in subdivision (3) below, shall be accompanied by a properly completed and executed Summary Sheet which is available in blank form at the clerk’s office. Docket numbers of original Disclosure proceedings must be indicated on Summary Sheets initiating a second or subsequent request for disclosure. (2) Summary Sheets are required to be filed with Post-Judgment Motions in proceedings under Rule 120. (3) Summary Sheets are not required in Small Claims, UIFSA, Mental Health Actions or DHS Protective Custody or Administrative Paternity Proceedings and are not required in Special Actions (SA) other than Money Judgment requests for disclosure. (i) Form of Papers. (1) Size. All original papers shall be typed double-spaced or printed on 8 1/2 x 11 inch paper with text on only one side of each page. (2) Condensed Transcripts. Unless otherwise ordered by the court, a party serving or filing a transcript of a deposition or other proceeding may elect to serve or file a copy of the transcript with up to four 8 1/2 x 11-inch pages or normal type size reduced so that such pages may be reproduced on a single 8 1/2 x 11-inch sheet, with text on one side of the sheet only, if the reporter or

stenographer transcribing the deposition or proceeding has the capacity to produce a transcript in this format. (3) Endorsement for Costs. In any case where an endorsement for costs is required, the name of an attorney of this State appearing on the complaint filed with the court, shall constitute such an endorsement in absence of any words used in connection therewith showing a different purpose. (j) Fax Filings. (1) Fax Filings. Facsimile documents are not acceptable substitutes for signed original documents required by M.R. Civ. P. 11 and will not be accepted as filings. Except as otherwise provided in this Rule, documents transmitted by facsimile may not be retained in a case file or docketed by a clerk. If an attempt is made to file pleadings or other documents by facsimile, the clerk shall dispose of the documents, and shall attempt to transmit a form notice of disposal back to the sender. (2) In a proceeding under the Uniform Interstate Family Support Act, documentary evidence or orders from another court or tribunal may be received from another state by facsimile, and may be filed and docketed by a clerk. (3) Judges may accept correspondence or other communications which are transmitted by fax for informational purposes but any such documents accepted by a judge under this subdivision will not ordinarily be retained in any case file. (k) Electronic Filing. Filings by electronic transmission of data or by means of a compact disk (CD) or floppy disk or any other method for electronic or internet filing in place of the filing of paper documents required by these rules, is not permitted.

Advisory Note – November 2011

This is a technical amendment to Rule 5(h) to replace the reference to former Rule 80(k) addressing post judgment motions in family matters with the reference to Rule 120, the current rule addressing such post judgment motions.

Advisory Notes 2004

In light of current discussions of electronic filing, M.R. Civ. P. 5(k) is added to clarify that, for the present time, electronic filing with the Maine courts is not permitted. Presently, the trial courts lack the capacity to receive, record or retain electronically filed documents.

Advisory Notes 2004

Pursuant to M.R. Civ. P. 5(f), documents filed at clerks’ offices and not signed or otherwise accompanied by the requisite fee or some legally required element are sent back without a copy being retained and without being docketed. As a result, there is no accurate record of what was filed or when it was filed, but only a copy of the notice of returning the document with the date of the return notice. When it turns out a document may have been improperly sent back, or a minor inadvertence could have been corrected, there is now way to recreate what was filed and when it was filed. As a result, important rights may be lost if the documents were time sensitive due to statutes of limitations or filing deadlines. The problem has escalated recently, particularly in domestic relations cases, due to confusion in clerks’ offices as to what filings do or do not require fees under the Court Fees Schedule adopted in August, 2003. For example, motions to amend child support do not require fees, motions to amend other parental rights do require fees.

The amendment addresses this problem by having the clerk retain a copy of the document attempted to be filed so that some reflection of timing of the filing is preserved and some recourse is possible in case of an error in rejecting a document.


[Rule 5(b) Amendment] The Court has amended the Maine Bar Rules and Rules 5, 11 and 89 of the Maine Rules of Civil Procedure to permit attorneys to assist an otherwise unrepresented litigant on a limited basis without undertaking the full representation of the client on all issues related to the legal matter for which the attorney is engaged. By these amendments, the Court has sought to enlarge access to justice in Maine courts.

The amendment to Rule 5(b) makes clear that where an attorney has filed a limited appearance under amended Rule 11(b), service of papers upon the attorney is not required. Service is sufficient if made upon the party, despite the limited representation. The purpose of the amendment is to avoid confusion by establishing the identity of the person to be served throughout the case. The amendment places the burden upon the otherwise unrepresented litigant and the attorney filing the limited appearance to ensure that have made arrangements for served papers to be processed in a timely fashion. At the same time, two observations are appropriate. First, the amendment applies only in cases in which the limited appearance has been filed under Rule 11(b); in all other cases, the first sentence of Rule 5(b) requires service on the attorney, not the represented party. Second, even in cases in which service upon the party is permitted, the amendment is not intended to discourage the tradition of courtesy among the Maine Bar by sending to the attorney copies of served papers. [Rule 5(d) Amendment] M.R. Civ. P. 83(3) provides that a reference to an attorney includes the party represented by the attorney, and a reference to a party includes the party’s attorney. However, change in Rule 5 is recommended to specify that it covers parties, which include attorneys, to avoid potential for confusion by individuals representing themselves who may believe that, because of the Rule 5(d) references to “attorney,” unrepresented parties may have a lesser obligation with regard to service on other parties. The rule change clarifies the point and makes clear that parties representing themselves have the same obligation as represented parties to serve documents filed with the court on all other parties and be subject to the obligations of Rule 11 in such filings.


Rule 5 (e), (f), and (g) are significantly amended, principally to accommodate the MEJIS changes directed by the November 27, 1996, September 19, 1997, May 1, 1998 and July 31, 1998 Administrative Orders. Subdivision (h) is entirely new and references pleading summary sheets. It is taken, with modification, from the Administrative Orders and includes provisions which the Administrative Orders indicated should be included in Rules 8 and 10. The provisions indicated for Rules 8 or 10 are moved to this new Rule 5(h) so that pleading summary sheets are addressed only in one rule which

addresses filing of papers, which appears to be the most appropriate place for the discussion. The changes in subdivisions (f) and (g) are likewise intended to incorporate the MEJIS changes with language closely following those changes. Subdivision (i) conforms to recent rules amendments to Rule 7(f) requiring materials to be filed, typed double spaced or printed on 8 1/2 x 11 paper. Additionally, the rule would require that text appear on only one side of each page. Subdivision (g) addresses after hours and out of venue filing requirements from the Administrative Order of September 19, 1997. Subdivision (j) is added to incorporate the substance of the FAX filing Administrative Order of November 22, 1996.


Rule 5(f) [now (i)(2)] is amended to permit the filing of miniaturized transcripts containing up to four 8 1/2 x 11 inch pages reduced to fit on a single 8 1/2 x 11-inch page. Such “travel transcripts” are commonly used by lawyers for their own purposes. They involve significant savings in cost and bulk. Allowing miniaturized transcripts to be filed in court will both eliminate the need to obtain a full-sized transcript for that purpose and ease the filing burden for the clerks’ offices. The final clause assures that reporters will not be forced to obtain the equipment necessary to produce the miniaturized transcripts. Simultaneous amendments of Rules 26(f) and 74(b) make clear that such transcripts may be used both for depositions that are to be served or filed and for the transcript on appeal.


Rule 5(d) is amended simultaneously with the addition of Rule 26(f) to make the requirement of filing all papers with the court subject to the provisions of the latter rule, which will eliminate the requirement of filing for discovery materials.


This rule is amended to eliminate the requirement that docket information appear on the back of all pleadings and other papers. This information is necessary only for documents filed in the traditional triple-folded manner. With flat filing, the need for this practice is eliminated.


It is the purpose of this amendment to require that pleadings filed with the Court shall be on 8½ x 1.1 inch paper. This provision has previously been accomplished in the Maine Rules of Criminal Procedure and this amendment is intended to secure conformity with respect to the size of pleadings in both criminal cases and civil cases. The Committee recognizes that there may be isolated instances in which added expense may be incurred in preparing the record for purposes of appellate proceedings in certain types of proceedings, An example is in the case of probate appeals in some of the counties where the Probate Court utilizes pre-printed forms which are of legal size. It is suggested that in such cases an application be made to the Superior Court Justice or the District Court Judge when such cases are first entered with the Court for permission to utilize legal size pleadings in order to avoid the added expense of re-typing pleadings for inclusion in the record on appeal. It is presumed that in such cases where a proper showing of an avoidance of unnecessary expense can be made, the justice or judge hearing such application would allow it.

Advisory Committee's Note October 1, 1970

In connection with the general revision of the Discovery Rules (for an over-all discussion of which see the Advisory Committee's Note to Rule 26), Rule 5(a) is amended to include among the papers which must be served upon each party "every paper relating to discovery required to be served upon a party.” Although the existing language expressly includes notices and demands, it is not clear whether answers and responses to discovery under Rules 33, 34, and 36 are required to be served upon all parties or only upon the parties seeking the discovery. The court may relieve a party from this obligation of serving on all parties if it is too onerous because the discovery papers are particularly voluminous or the parties particularly numerous.


The addition to Rule 5(a) makes clear that the pre-trial memorandum provided for in amended Rule 16 must be served upon each of the parties.

Explanation of Amendment November 1, 1966

This amendment was taken from a 1963 amendment to F.R. 5(a). The

exception it contains is to make it clear that an inconsistent provision elsewhere in the rules is controlling. There is, for example, such an inconsistent provision in Rule 5(c).


This rule describes the mechanics of serving and filing pleadings and other papers. It is substantially the same as Federal Rule 5. The reference to notice of change of attorneys in subdivision (a) is not in the federal rule, nor is the sentence in subdivision (b) concerning the sufficiency of notice to the former attorney until notice of the change has been served. These are taken from Revised Rules of Court 2. The last two sentences of subdivision (d) are not in the federal rule. The purpose is to eliminate all formalities as to proof of service of papers upon other parties. If an adverse party raises a question of notice, appropriate proof will naturally have to be made. Subdivision (f) is not in the federal rule. It provides for the backing of all papers required to be filed. It further provides that the attorney's name on the back of the complaint shall constitute an endorsement for costs, where this is required, in the absence of any words showing a different purpose. This reflects existing law. See R.S.1954, Chap. 112, Sec. 6 (amended in 1959) [now 14 M.R.S.A. § 601]; Sawtelle v. Wardwell, 56 Me. 146.

RULE 6. TIME (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. For the purpose of this subdivision legal holidays shall include days on which the Chief Justice of the Superior Court or Chief Judge of the District Court pursuant to Rule 77(c) specifically orders the clerk’s office closed. (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), except to the extent and under the conditions stated in those rules. (c) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.


July 1, 2001 This amendment [to Rule 6(b)] deletes the reference to Rule 73(a) which is being replaced by the Maine Rules of Appellate Procedure.


Subdivision (a) is amended to add the word “legal” in front of the word “holidays.” Subdivision (c) indicating that time is not affected by expiration of terms of court is stricken. This is archaic language that bears no relation to present practices now that terms of court no longer exist. Subdivision (d) is in the present rule is redesignated subdivision (c).

[1995] Advisory Committee’s Note to Withdrawal of 1995 Amendment of M.R. Civ. P. 6(a)

The Court promulgated an amendment of Rule 6(a) effective February 15, 1995, that adopted a recent amendment of Federal Rule 6 extending from 7 to 11 days the period in which holidays and weekends are not counted in computing time. Order of January 6, 1995, Me. Rptr., 645-654 A.2d XXX. Concerned that such a rule would have unintended effects on statutory time provisions because of the incorporation of Rule 6(a) in 1 M.R.S.A. § 71(12), the Court stayed the amendment prior to the effective date. See Order of February 2, 1995, Me. Rptr., 645-654 A.2d XXIX. Subsequently, the Advisory Committee recommended to the Court that the operation of the amendment be further suspended pending study of the issue. The amendment is now permanently withdrawn because the benefit of conformity with the federal rule is outweighed by the potential for confusion and inconsistency in Maine law.

Advisory Committee's Note May 13, 1974

This amendment is made simultaneously with the amendment of Rule 77(c) placing in the hands of the Chief Justice of the Supreme Judicial Court the fixing of days on which the clerks' offices will be closed. In order to avoid prejudicing the rights of any party seeking to file documents on a day when a clerk's office is closed by order of the Chief Justice, such a day is, for purposes of computing time periods, treated as a legal holiday, that is, excluded from the count of days when the end of the time period falls on that day.


The notice of the hearing on a motion, which is required to be served not later than 7 days before the time specified for the hearing, should in order to mean anything specify a definite date on which the hearing will in fact be held. Oftentimes, however, the moving party at the time that he must file a motion, as, for example, a motion under Rule 12, will not know at what definite date the court will be able to hear the motion. Accordingly, it may be necessary to serve the notice of motion separate from the motion itself, although it is obviously preferable if possible to serve them together. Existing Rule 6(d) does not require the motion and notice of hearing thereof to be served together. It merely requires that both be served not later than 7 days before the time specified for the hearing. However, in order to eliminate any possible ambiguity, Rule 6(d) is amended to authorize expressly the separate service of the two papers. As a matter of courtesy to opposing counsel, the moving party should inform him of his intention to serve the notice of hearing just as soon as a definite date for it is known.


The change of the rules referred to by number in Rule 6(b) works no substantive change. It is necessary in light of the rearrangement of the rules relating to the record on appeal to the Law Court.


This amendment was adopted to conform to the language of Maine Criminal

Rule 45(d), by requiring seven days notice of a motion hearing, rather than five.


This rule is substantially the same as Federal Rule 6. Rule 6(a) is declaratory of present Maine practice except for the exclusion of Saturdays, Sundays and holidays in computing a period of time of less than 7 days. This exclusion is contrary to the holding in Cressey v. Parks, 75 Me. 387. Rule 6(b) deals with enlargement of the time for doing any act under these rules. It is to be noted that most time periods may be extended on motion after, as well as before, the expiration of the specified period, but there are several

important exceptions. The time cannot be extended either before or after its expiration for any of the following acts except to the extent and under the conditions stated in the particular rule: a motion for judgment notwithstanding the verdict under Rule 50(b), a motion to amend findings in a non-jury case under Rule 52(b), a motion for new trial by a party under Rule 59(b), on the initiative of the court under Rule 59(d), or to amend a judgment under Rule 59(e), a motion for relief from a judgment under Rule 60(b), an appeal to the Law Court under Rule 73(a), filing the record on appeal under Rule 73(d) [now Rule 74(o)], and designation of contents of record on appeal under Rule 75(a) [now Rule 74(a)]. Rule 6(c) is a drastic change in Maine practice. It abolishes the fixing of time for doing any act under the rules in relation to terms of court. This does not mean any change in the times the court will sit in the various counties as fixed by R.S. 1954, Chap. 106, Sec. 11 [now 4 M.R.S.A. § 110]. It merely affects the time for doing various acts under the rules. For instance, the time for filing an answer under Rule 12(b) is within 20 days after service of the summons and complaint, rather than within the first three days of the return term. The distinction between term time and vacation ceases to be of significance under these rules. The 1959 amendment to R.S.1954, Chap. 113, Sec. 39 [now 14 M.R.S.A. § 1101], is identical to the last sentence of Rule 6(c).

III. PLEADINGS AND MOTIONS

RULE 7. PLEADINGS ALLOWED: FORM OF MOTIONS

(a) Pleadings. There shall be a complaint and an answer, and a disclosure under oath, if trustee process is used; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim denominated as such; a third-party complaint, if a person who was not an original party is summoned under Rule 14; and there shall be a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. (b) Motions and Other Papers. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial or under Rule 26(g), shall be made in writing, shall state with particularity the grounds therefor and the rule or statute invoked if the motion is brought pursuant to a rule or statute, and shall set forth the relief or order sought.

(A) Any motion except a motion that may be heard ex parte shall include a notice that matter in opposition to the motion pursuant to subdivision (c) of this rule must be filed not later than 21 days after the filing of the motion unless another time is provided by these Rules or set by the court. The notice shall also state that failure to file timely opposition will be deemed a waiver of all objections to the motion, which may be granted without further notice or hearing. If the notice is not included in the motion, the opposing party may be heard even though matter in opposition has not been timely filed.

(B) In addition to the notice required to be filed by subparagraph (1)(A) of this subdivision, a motion for summary judgment served on a party shall include a notice (i) that opposition to the motion must comply with the requirements of Rule 56(h) including specific responses to each numbered statement in the moving party’s statement of material facts, with citations to points in the record or in affidavits filed to support the opposition; and (ii) that not complying with Rule 56(h) in opposing the motion may result in entry of judgment without hearing.

(C) A pre-judgment motion to decide a case on the merits,

pursuant to Rule 12(b)(6), 12(c), or Rule 56, and a post-judgment motion for relief, to modify, to reconsider, to enforce by contempt, for a new trial, or for a stay, pursuant to Rules 59, 60(b), 62, 66, or 80(k) shall be accompanied by a fee set in the Court Fees Schedule which shall be paid when the motion is filed. A pre-judgment motion to decide a case based on res judicata or any defense that is addressed in Rule 12 (b) (1), (2), (3), (4), or (5), is not subject to payment of a fee.

(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules. (3) Any party filing a motion, except motions for enlargement of time to act under these rules, for continuance of trial or hearing, or any motion agreed to in writing by all counsel, shall file with the motion or incorporate within said motion (1) a memorandum of law which shall include citations of supporting authorities, (2) a draft order which grants the motion and specifically states the relief to be granted by the motion, and (3) unless the motion may be heard ex parte, a notice of hearing if a hearing date is available. When a motion is supported by affidavit, the affidavit shall be served with the motion. (4) Any party filing a motion for enlargement of time to act under these rules or for continuance of trial or hearing, shall include in the motion a statement that (1) the motion is opposed; or (2) the motion can be presented without objection; or (3) after reasonable efforts, which shall be indicated, the position of an opposing party regarding the motion cannot be determined. (5) Motions for reconsideration of an order shall not be filed unless required to bring to the court’s attention an error, omission or new material that could not previously have been presented. The court may in its discretion deny a motion for reconsideration without hearing and before opposition is filed. (6) If a motion is pursued or opposed in circumstances where the moving or opposing party does not have a reasonable basis for that party’s position, the court, upon motion or its own initiative, may impose the sanctions provided by Rule 11 upon the party, the party’s attorney, or both. (7) Except as otherwise provided by law or these rules, after the opposition is filed the court may in its discretion rule on the motion without

hearing. The fact that a motion is not opposed does not assure that the requested relief will be granted. (c) Opposition to Motions. (1) Any party opposing a motion that was filed prior to or simultaneously with the filing of the complaint shall file a memorandum and any supporting affidavits or other documents in opposition to the motion not later than the time for answer to the complaint, unless another time is set by the court. (2) Any party opposing any other motion shall file a memorandum and any supporting affidavits or other documents in opposition to the motion not later than 21 days after the filing of the motion, unless another time is set by the court. (3) A party failing to file a timely memorandum in opposition to a motion shall be deemed to have waived all objections to the motion. (d) In addition to the requirements of this rule, motions for summary judgment are subject to the requirements of Rule 56. (e) Reply Memorandum. Within 7 days of filing of any memorandum in opposition to a motion, or, if a hearing has been scheduled, not less than 2 days prior to the hearing, the moving party may file a reply memorandum, which shall be strictly confined to replying to new matter raised in the opposing memorandum. (f) Form and Length of Memoranda of Law. All memoranda shall be typed or otherwise printed on one side of the page of 8 1/2 x 11 inch paper. The typed matter must be double spaced in at least 12 point type, except that footnotes and quotations may appear in 11 point type. All pages shall be numbered. Except by prior leave of court, no memorandum of law in support of or in opposition to a nondispositive motion shall exceed 10 pages. Except by prior leave of court, no memorandum of law in support of or in opposition to a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or a motion for injunctive relief shall exceed 20 pages. No reply memorandum shall exceed 7 pages. (g) The use of telephone or video conference calls for conferences and non-testimonial hearings is encouraged. The court on its own motion, or upon request of a party, may order conferences or non-testimonial hearings to be conducted by

telephone conference calls or with the use of video conference equipment. The court shall determine the party or parties responsible for the initiation and expenses of a telephone or video conference or non-testimonial hearing.

Advisory Note July 2008

This amendment adds Rule 12(c), addressing motions for judgment on the pleadings to those motions subject to a fee as addressed in sub-paragraph (C).

Advisory Note April 2008

This amendment to M.R. Civ. P. 7(b)(1) adopts a new sub-paragraph (C) to place motion filers on notice that certain motions must be accompanied by a filing fee set in the Court Fees Schedule. The amendment is adopted to limit confusion that has existed since filing fees for some motions were adopted in the past few years. At the same time, the Court Fees Schedule is being amended to adopt a new fee for pre-judgment motions to decide a case on the merits by a motion to dismiss or a motion for summary judgment. Fees are not required for pre-judgment motions based on res judicata, lack of personal or subject matter jurisdiction, improper venue, or improper service of process, as a motion addressing one of these grounds does not reach the factual or legal merits of the claim asserted.

Advisory Notes 2004

Rule 7(g) is amended to increase efficiency within the court system while reducing costs and expenses for the parties. The use of video and telephone conferences will allow for more flexible event scheduling, increased event certainty, and reduced travel expenses associated with routine conferences and hearings.

Advisory Notes July 2003

Rule 7(b)(4) is amended to allow a party filing a motion covered by M.R. Civ. P. 7(b)(4), as an alternative to filing a statement that the motion is opposed or can be granted without objection, to file a statement that, after reasonable efforts,

the position of another party cannot be determined. This covers the situation where a party makes reasonable efforts but cannot contact another party. The efforts must be indicated, and normally would include efforts to obtain a verbal statement of position. Reasonable efforts should be something more than sending another party a written notice of the motion and asking for a response.


Rule 7(b)(7) is amended to permit the court in its discretion to rule on a motion without a hearing, assuming that the hearing is not otherwise required by law or rule (see, e.g., Rule 80(k) requiring a hearing for post-judgment relief under Title 19-A), and that the opposition is filed. The amendment is intended to address the considerable delay that occurs when the court finds that it would not benefit from oral argument but cannot act on the motion until a hearing can be scheduled. Hearing dates in some counties may not be available for weeks or even months after motions are fully briefed. The amendment is not intended to diminish the importance of hearings as a process for assisting the court and as an opportunity for counsel and the parties to address the court directly. It is anticipated that the court will exercise its discretion to hold a hearing when the parties so request.


[Rule 7(b)(1) Amendment] With increased emphasis on the importance, in summary judgment practice, of precise statements of material fact with record references as required by M.R. Civ. P. 56(h) and similarly precise opposition tied to record references, courts and practitioners have noticed an increasing problem with unrepresented litigants not properly responding to motions for summary judgments in ways which comply with the requirements of Rule 56(h). This rule amendment assures that individuals who must defend against a motion for a summary judgment, are properly notified not only of the timing and necessity of any response, but also of the requirements of Rule 56(h) which their response must meet. Where litigants, defending against motions for summary judgments, are improperly notified of the requirements of Rule 56(h), trial courts may be more flexible in considering responses that do not meet the requirements of the rule. [Rule 7(b)(4) & 7(b)(7) Amendments]

When Rule 7(b)(4) was originally adopted in 1988, it required that most motions include with the motion a statement as to whether the motion was or was not opposed. The last sentence, indicating that the fact that a motion was not opposed did not assure that the requested relief would be granted by the court, as then drafted, also applied to most motions. Its purpose was to recognize the court’s inherent authority to refuse to grant requested relief, even if it were agreed to or unopposed, where the relief would be inconsistent with the interests of justice. Subsequently, subdivision (b)(4) was considerably narrowed to apply to only a limited number of motions relating to changes of time to act or continuance of trial or hearing. This narrowing was not intended to change recognition of the court’s broader authority to refuse to act on motions or to deny motions even if the motions were agreed to, unopposed, or improperly opposed. Moving the sentence recognizing this authority to its own subparagraph (7) reflects the initial intent when subparagraph (b)(4) was drafted that this authority apply to motions generally.

Advisory Committee’s Notes January 1, 2001

The provisions of Rule 7(d) which addressed statements of material fact in summary judgment motion practice under Rule 56, are amended and moved to become Rule 56(h). The rules are also amended to be consistent with changes in the Local Rules of the United States District Court for Maine which were adopted in 1999. Those changes are addressed in detail in the comments to the amendments to Rule 56. Rule 7(f) is amended to respond to a growing concern among trial judges that parties are seeking to avoid the page limitations on memoranda of law by submitting memoranda printed in small fonts that are difficult to read. The Rule is amended to be consistent with the rules for appeals to require a 12-point font for the text of memoranda and at least an 11-point font for footnotes and quotations.


A new subdivision (b)(5) is added to address the continuing confusion about motions for reconsideration. A corresponding amendment has been made to Rule 59 to provide explicitly that a motion to reconsider a judgment is a Rule 59 motion

to alter or amend the judgment. Motions to reconsider should not be filed under Rule 60. Whether a motion seeks reconsideration of an interlocutory order or a judgment, however, new subdivision (b)(5) makes clear that such motions are not encouraged. Too frequently, disappointed litigants bring motions to reconsider not to alert the court to an error or to matter that could not have been presented earlier, but solely to reargue points that were or could have been presented to the court on the underlying motion. The new subdivision provides that the latter motions “shall not be filed” and, even on Rule 59 motions, the court may dispose of the motion without waiting for opposition to be filed. The existing subdivision (5) is redesignated (6). In subdivision (f) the “at the bottom” portion of the page numbering requirement is eliminated. This accommodates current computer printing which often places page numbers at the top.


Rule 7(b)(1) was amended to conform to the amendments to the discovery rules. The addition of the phrase “or under Rule 26(g)” recognizes that written discovery motions are no longer permitted unless the court orders otherwise. The purpose of the amendment is to cross-reference Rule 26(g) as an exception to the general rule that all applications to the court must be made by written motion. Rule 7(f) was amended to make clear that memoranda to the court should be printed on one side of the paper to ensure that submissions comply with the page limitations and to facilitate the use of court files.

Advisory Committee’s Notes March 1, 1998

Subdivision (f) of Rule 7 is adopted to specify the form and length of memoranda of law. It is taken from Local Rule 7 (e) of the U.S. District Court for the District of Maine. The need for this amendment was identified by several justices and judges of the trial courts, who have found lengthy memoranda both burdensome and unnecessary for all but unusual circumstances. More specific requirements relating to font size and margins were considered, but the spirit of the rule is clear and should be enforced when transparent devices have been used to lengthen memoranda.


February 15, 1996 Rule 7(c) is amended to correct a problem that has arisen regarding motions for attachment under Rules 4A and 4B. In 1993, Rules 4A(c) and 4B(c) were amended to provide that matter in opposition to a motion for attachment shall be filed “as required by Rule 7(c),” with the intent of incorporating the provision of that rule for filing matter in opposition 21 days after the filing of the motion. Previously, Rules 4A(c) and 4B(c) had provided that matter in opposition was to be filed within 10 days after service of the motion. See M.R. Civ. P. 4A(c), 4B(c) advisory committee’s notes, Feb. 15, 1993, amends., Me. Rptr., 602-17 A.2d LXII-LXIII. Since motions for attachment are often filed and served with the complaint, the defendant may not receive notice of the motion until a substantial time has elapsed after filing. Thus, the time to file matter in opposition may be shorter than the 10 days provided in the earlier version of the attachment rules. The present amendment provides that matter in opposition to any motion filed at or before the filing of the complaint must be filed not later than the time for answer. Thus, the opposing party will know the nature of the action and will have at least 20 days for the response. The rule applies to any such motion, including motions for early discovery or for interim divorce relief.


Rule 7(b)(1) is amended at the request of the trial judges to provide that a motion must include a notice to the opposing party that failure to file matter in opposition within 21 days pursuant to Rule 7(c) will result in waiver of all objections to the motion. The amendment is intended primarily to assist pro se litigants unfamiliar with the rule. The summons provides warning of the time for answer, but there is no comparable warning of the consequences of failure to respond to a motion. The result may be dismissal of a meritorious claim or the use of court time in hearing and granting a request for relief from the sanction of Rule 7(c). The amendment will give the court a clear basis for dealing promptly and firmly with parties, whether represented or unrepresented, who fail to file the required material in time. The last sentence makes clear that if the moving party fails to include the notice in the motion, the opposing party will be relieved of any resulting failure to make a timely filing.

Rule 7(b)(5) is added to provide that the court may impose sanctions on a party who persists in frivolous support of or opposition to a motion. The rule assumes that the motion when made satisfied the standard of Rule 11 that there was “good ground to support it.” A moving party who continues to press for hearing after matter in opposition has been filed pursuant to Rule 7(c) or (d) must continue to have a “reasonable basis” to support the motion. Similarly, a party opposed to a motion who files matter in opposition pursuant to Rule 7(c) or (d) must have a “reasonable basis” for that position. In either case, the court may impose upon the party, the party’s attorney, or both, the sanctions provided for the filing of a frivolous motion by Rule 11, including actual expenses and attorney fees incurred.


Rule 7 is amended to unify and consolidate the presently diverse time requirements for filing motions and memoranda in opposition to motions and to end the current uncertainties inherent in tying filing times to hearing dates. Simultaneous conforming amendments are being made to Rules 6 and 56. These changes are necessitated by amendments to various rules in recent years which have resulted in inconsistent requirements for filing opposing memoranda and in changed practices whereby in the Superior Court motions are not now scheduled for hearing at the time they are filed. Allowing opposing memoranda to be filed shortly before hearing has created considerable confusion in motion practice and difficulty in scheduling hearings because of the uncertainty, at the time a hearing is scheduled, as to whether a motion will be opposed or unopposed. The new practice changes this direction to require that an opposing memorandum and other matter in opposition to a motion, if any is to be entered, be filed within a time certain after filing the motion. The last sentence of Rule 7(b)(1) is stricken. Statement of a motion within a notice of hearing is inconsistent with current practice and is no longer appropriate. Rule 7(b)(3) is amended to add a new clause (3) reflecting District Court practice by requiring inclusion of a notice of hearing if a date is available. The rule is also amended to incorporate the requirement of filing affidavits with motions from abrogated Rule 6(d). The provisions regarding timing and waiver of opposition to motions are deleted because these matters are covered in new Rule 7(c).

Rule 7(b)(4) is amended to narrow the requirement that a moving party file a statement of opposition or non-opposition. The statement is only required for those matters where the moving party should be able to determine by a telephone call or other contact with opposing counsel that the motion will or will not be opposed. Thus, application of paragraph (4) is limited to motions to continue trials or hearings or to change dates or deadlines set by court rule or order. Former Rule 7(c) directing that demurrers and other archaic pleadings no longer be used is abrogated. This provision was necessary when the rules were first adopted in 1959. However, it is no longer necessary as practice has developed in the past 30 years. The types of papers that can be filed are affirmatively described in Rules 7(a) and (b). Rule 7(c) is added to govern timing of opposition to motions. Essentially the new rule requires that if a motion is to be opposed, a party must file a memorandum in opposition within 21 days after the motion is filed. Affidavits under Rule 56(c) must be filed within the same period. Twenty-one days is a sufficient time for a party to prepare and develop opposition to a motion. Under Local Rule 19(c) of the United States District Court for the District of Maine, parties have only 10 days to prepare and file similar opposing material. If a timely memorandum in opposition is not filed, the party’s objections will be deemed waived and the motion may be presented to the court for action without opposition. The rule also includes provision for the court to set another time for filing opposition to a motion. Previously, Rules 6(d), 7(b)(3), and 56(c) provided somewhat inconsistent time periods for filing motions and opposing memoranda and affidavits, all of which were tied to the date of hearing. The elimination of these provisions and the adoption of Rule 7(c) mean that there is no longer any minimum time prescribed between the final filing and the date of hearing. In setting hearing dates under the amended rules, parties must be accorded reasonable notice. The notice period must necessarily be longer than the 21 days for filing opposing memoranda provided by Rule 7(c), except in a case where the court sets an earlier time for such filing. (Note that particular rules continue to impose restrictions on the times within which certain motions must be filed. See, e.g., Rules 12(b), (c); 50(b); 52(b); 56(a), (b); 59(b).) Rule 7(d) is added to make special provision regarding motions for summary judgment. This rule is similar to Rule 19(b) of the Local Rules of the United States

District Court for the District of Maine. The purpose of the new provision is to more directly focus argument on motions for summary judgment by requiring that moving parties briefly specify those facts which they claim are not in dispute and that opposing parties briefly specify those facts that they claim are in dispute. The statements to be filed under the rule must refer to specific portions of the record, including affidavits filed in support of or opposition to the motion, which support the party’s contentions as to the facts. Those references should include page, paragraph, or other appropriate specific designation. The new rule will require some adjustment of the current practice under which, too frequently, generalized claims that there are or are not disputes as to material facts are presented in arguments on motions for summary judgment. Rule 7(e) is added to govern the time for filing reply memoranda. In essence, a reply memorandum must be filed within 7 days after the filing of any opposition memorandum or within 2 days of hearing if that time is less than 7 days after receipt of the opposing memorandum. This rule is based on Local Rule 19(d) of the United States District Court for the District of Maine.


Rule 7(b)(4) is amended to provide that in all motions where a statement of opposition or nonopposition is required, the statement must be filed with the motion. The prior provision allowing such a statement to be filed within ten days after filing the motion had proved unworkable. Such motions are often filed less than 10 days before action on the motion is required. Moreover, they ordinarily do not require the extensive review contemplated by the 10-day period.


Rule 7(b)(3) is amended to add a requirement that all motions, except those already exempted from the other provisions of the paragraph, shall be accompanied by a draft of a proposed order granting the motion and stating the relief granted in specific terms. On more complicated motions, the terms of the draft order will aid the court and the opposing party in determining exactly what relief is requested. The draft will also provide a basis for preparing an order specifically directed to the relief sought. The draft order, whether or not it is granted in terms, will also assist those reviewing the file in determining exactly what rulings have been issued on prior motions. The draft order should not simply indicate “motion granted.” It

should specify who has made the motion and that it is granted. In a separate paragraph, the draft order should then state the specific relief that is to be granted. Rule 7(b)(4) is added, providing that a statement indicating whether or not a motion is opposed must be filed with the motion or within ten days after filing, except in the cases of motions for summary judgment and dismissal and ex parte motions. The paragraph also makes clear that the court retains the discretion to deny an unopposed motion. The new provision is intended to eliminate a burden which present motion practice imposes upon the clerks’ offices. The clerks now must frequently call counsel for opposing parties to determine whether some motions—particularly motions for continuance or motions to extend deadlines—are opposed or not. The amendment shifts the burden for making this determination to counsel for the moving party. In order to comply with the rule, counsel must consult or otherwise ascertain the position of opposing counsel in some manner prior to the date set for hearing on the motion. In addition to relieving the clerks’ offices, this requirement should result in a significant reduction of the number of motions that are set for hearing as opposed.


The purpose of this amendment is to require counsel to expressly set forth in any motion that rule or statute upon which the request for relief set forth in the motion is based. It is suggested that the procedural rule under which the motion is brought should be indicated in parenthesis immediately under the title of the motion. Further it is the intent of the rule to require that counsel cite in the body of the motion any rule or statute on which the request for relief is based which is set forth in the motion in order that the Court and opposing counsel may have notice of the pertinent provisions of law on which the claim for relief is based.

Advisory Committee's Note February 2, 1976

A trap for the unwary is created by the fact that a reply to a counterclaim is required only if the counterclaim is "denominated as such", whereas an answer to a cross-claim is required without any such limitation. 2A Moore's Federal Practice, § 7.04, expresses the thought that "it might have been better had the rule provided for 'an answer to a cross-claim denominated as such.' " The Committee does not completely share the confidence expressed by Moore in the very next sentence:

. . . since cross-claims concern co-parties, a co-party served with an answer will probably be adequately informed that a claim is being made against him by his co-party, which he should answer although that claim is not denominated a cross-claim.

There seems no reason for leaving the matter in doubt. The amendment treats the cross-claim exactly the same as a counterclaim and requires a responsive pleading only if the cross-claim is denominated as such.

Explanation of Amendment December 1, 1959

Rule 7(d) was amended November 2, 1959, effective December 1, 1959, by deleting reference to the time for serving reasons of appeal, thereby leaving the matter wholly to statute. 4 M.R.S.A. § 402. Consistent with Probate Rule LIII, 151 Me. at 525, the papers to be filed in the Superior Court and the prescribed time for such filing are indicated.


This rule is substantially the same as Federal Rule 7. The only pleadings ordinarily required under these rules are the complaint and the answer. "Complaint" includes what has hitherto been a declaration at law and a bill in equity. The answer, as will be seen from Rule 12(b), includes every defense in law or fact, whether hitherto made by plea in bar or in abatement, but certain defenses may also be made by motion. Demurrers are specifically abolished. The function of a general demurrer is served by a motion under Rule 12(b) (6) to dismiss for failure to state a claim upon which relief can be granted. Rule 7(d) in effect adopts existing practice with respect to appeals to the Superior Court sitting as the Supreme Court of Probate. Although these appeals are subject to these rules, no defensive pleading is required. The Maine practice of permitting a counter brief statement by the plaintiff, R.S.1954, Chap. 113, Sec. 36 (repealed in 1959), is altered by this rule. Statutes which use the words "petition", "declaration", "plea", "demurrer", and other such terminology are modified in form.

RULE 8. GENERAL RULES OF PLEADING

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief which the pleader seeks. Relief in the alternative or of several different types may be demanded. (b) Defenses; Form of Denials. A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments 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 averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or the pleader may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, the pleader may do so by general denial subject to the obligations set forth in Rule 11. (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, comparative fault, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, immunity, injury by co-employee, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(e) Pleading to Be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. (g) Pleadings by Agreement. An action may be commenced and issue joined therein, without the filing or service of a complaint and answer, by the filing of a statement, signed and acknowledged by all the parties or signed by their attorneys, specifying plainly and concisely the claims and defenses between the parties and the relief requested. Signing constitutes a certificate that the issues are genuine.


The summary sheet requirement of Rule 8(a) is moved to Rule 5(h). In subdivision (c), the reference to contributory negligence is changed to comparative fault, a reference to immunity is added, “co-employee” is substituted for “fellow servant” and, a meaningless reference to “on terms” is eliminated.


The Law Court has now held that the defendant has the burden of proof on the issue of contributory negligence in all circumstances. Crocker v. Coombs, 328 A.2d 389 (Me. 1974); Isaacson v. Husson College, 332 A.2d 757 (Me.1975). It is appropriate to make contributory negligence also an affirmative defense for pleading purposes in all instances.


This rule is substantially the same as Federal Rule 8, but very different from present Maine practice. The "short and plain statement of the claim showing that the pleader is entitled to relief" demands less particularity of allegation than is necessary in Maine to survive a demurrer. See, e. g., Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802 (1950). Form 9 in the Appendix of Forms illustrates that a general allegation of negligence at a stated time and place will suffice in a motor vehicle tort case. The intent and effect of the rule is to permit a claim to be stated in general terms, but the pleader must nevertheless supply adequate factual information to disclose the basis of his claim for relief. To compel detailed particularization would encourage fruitless battles over the mere form of statement and might stop a plaintiff at the threshold of the litigation by dismissal for failure to state a claim when the facts upon which he must rely are known only to the defendant and will have to be elicited by discovery. The rule must be read with awareness that if the defendant needs more information than the complaint discloses, the discovery devices are designed for this purpose. Despite the permitted generality of allegation, a plaintiff may well find it in his enlightened self-interest to make his allegations more informative than the rules require. By use of the discovery devices the defendant will be able to get any needed additional information, and the plaintiff may often spare himself the time and cost involved in discovery by stating his claim in more specific terms than necessary to defeat either a motion to dismiss or a motion for a more definite statement under Rule 12. Rule 8(b) is intended to prevent the indiscriminate use of the general issue or general denial in the typical situation where much of the plaintiff's complaint is in fact not in controversy. Rule 8(c) lists affirmative defenses which must be specially pleaded. In general, these are matters not open under the general issue which are now raised by brief statement. R.S.1954, Chap. 113, Sec. 36. Payment, which is now open under the general issue, Hibbard v. Collins, 127 Me. 383, 143 A. 600 (1928), would have to be pleaded as an affirmative defense under the rule. This subdivision is like

Federal Rule 8(c) except that it incorporates R.S.1954, Chap. 113, Sec. 50,* which makes contributory negligence an affirmative defense only in wrongful death cases and personal injury actions where the plaintiff has died before trial. Under the federal rule, the burden of pleading contributory negligence is on the defendant in all cases. Rule 8(e) (2) permits pleading in the alternative or in hypothetical form. This is a change in Maine law. Macurda v. Lewiston Journal Co., 104 Me. 554, 72 A.490 (1908). Rule 8(g) is not in the federal rule. The idea is borrowed from a recent New York statute, N.Y.Civil Practice Act, Sec. 218-a, and the phraseology follows closely a revision of the statute recommended by the New York Temporary Commission on the Courts in 1957.

* [Field, McKusick & Wroth note: “Repealed by 1959 Laws, c. 317, § 176, and substantially re-

enacted in 1967 as 14 M.R.S.A. § 160. See § 8.7.” 1 Field, McKusick & Wroth, Maine Civil Practice at 191 (2d ed. 1970).]

RULE 9. PLEADING SPECIAL MATTERS (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, but when so made the party pleading the performance or occurrence has the burden of establishing it. (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special Damage. When items of special damage are claimed they shall be specifically stated.


This rule is substantially the same as Federal Rule 9 and does not significantly change Maine law. Capacity to sue need not now be alleged by the plaintiff, Leonard Advertising Co. v. Flagg, 128 Me. 433, 148 A. 561 (1930), and averments of fraud must be stated with particularity. Semo v. Goudreau, 147 Me. 17, 83 A.2d 209 (1951). Subdivision (c) seems declaratory of existing practice under R.S.1954, Chap. 113, Sec. 28 (repealed in 1959). Subdivision (f) is chiefly important for making the averment of time material in determining the applicability of the statute of limitations, contrary to the common law rule. Subdivision (g) preserves the present requirement of alleging items of special damage. See Fournier v. Great Atlantic & Pacific Tea Co., 128 Me. 393, 148 A. 147 (1929).

RULE 10. FORM OF PLEADINGS

(a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the county in the Superior Court, the location of the District Court, the title of the action, the docket number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Each pleading shall be dated. If a pleading contains a claim or defense involving title to real estate, the words “TITLE TO REAL ESTATE IS INVOLVED” shall be included directly beneath the designation of the pleading. (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.


In subdivision (a) the dating requirement is changed from referencing the complaint to referencing each pleading. Subdivision (d), adopted by the MEJIS rules is eliminated because in substance it is moved to Rule 5(h).

Advisory Committee’s Notes June 2, 1997

Rule 10(a) is amended to require that the caption identify the location rather than the division of the District Court in which the action is filed. Few litigants are aware of the locations of the District Courts by division, as opposed to the city or town in which the court is located. This amendment promotes a clear

understanding of the location at which filings are to be made and hearings are to be attended. Thus, the amended rule is satisfied, for example, by substituting “Portland” for “Division of Southern Cumberland” in the caption.


Rule 10(a) is amended to implement P.L. 1991, ch. 125, which enacted 14 M.R.S.A. § 2401(2), effective January 1, 1992, requiring clerks to identify cases affecting title to real estate on the docket. A reference to the amended rule is incorporated in the instructions to the Caption section of the Appendix of Forms by simultaneous amendment. The amendment places the burden for identifying real estate cases on the attorneys filing the pleadings. The rule applies to any pleading asserting a claim or defense in which title is involved. The statute provides that such cases include but are not limited to partition actions, boundary and access disputes, insolvency proceedings, mortgage foreclosures, declaratory judgment actions, actions commenced by attachment, actions to enforce mechanics’ liens, dissolutions, and actions to acquire title. Many divorce actions will also be included. A failure to comply with this provision is curable by amendment and does not affect the validity of a judgment obtained in the action.

Advisory Committee Notes December 1, 1959

Rule 10(a) was amended November 2, 1959, effective December 1, 1959, to assure that the complaint be dated, in view of the references in Rules 4A(c) and 4B(c) to the date of the complaint.


This Rule is substantially the same as Federal Rule 10.

RULE 11. SIGNING OF PLEADINGS AND MOTIONS; SANCTIONS

(a) Attorney Signature Required; Sanctions. Subject to subdivision (b), every pleading and motion of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading or motion and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a representation by the signer that the signer has read the pleading or motion; that to the best of the signer's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading or motion is not signed, it shall not be accepted for filing. If a pleading or motion is signed with intent to defeat the purpose of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, upon a represented party, or upon both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading or motion, including a reasonable attorney's fee. (b) Limited Appearance of Attorneys. To the extent permitted by the Maine Bar Rules, an attorney may file a limited appearance on behalf of an otherwise unrepresented litigant. The appearance shall state precisely the scope of the limited representation. The requirements of subdivision (a) shall apply to every pleading and motion signed by the attorney. An attorney filing a pleading or motion outside the scope of the limited representation shall be deemed to have entered an appearance for the purposes of the filing.

(c) Documents Filed in Federal Court. Any document originally filed in the United States District Court for the District of Maine or any other federal court, and transferred to a court subject to these rules, shall be deemed to be signed if the document is signed or signing of the document is indicated in a manner that is acceptable for filing in the court from which the document is transferred.

Advisory Notes

2004

The United States District Court for the District of Maine requires electronic filing of documents. As a result, those courts accept electronic representations of signatures in lieu of actual signatures. M.R. Civ. P. 11(c) is added to state that

when documents originally filed electronically in the federal court are transferred to the state courts, they shall be deemed to be signed for purposes of M.R. Civ. P. 11, if the document is signed or the signature of the document is indicated in a manner that is acceptable for filing in the court from which the document is transferred.


The Court has amended the Maine Bar Rules and Rules 5, 11 and 89 of the Maine Rules of Civil Procedure to permit attorneys to assist a pro se litigant on a limited basis without undertaking the full representation of the client on all issues related to the legal matter for which the attorney is engaged. By these amendments, the Court has sought to enlarge access to justice in Maine courts. Rule 11 (a) is amended to make its provisions subject to a new subdivision (b). New Rule 11 (b) permits attorneys to file a limited appearance on behalf of an otherwise unrepresented litigant. The effect of the limited appearance is to permit the attorney to represent the client on one or more matters in the case but not for all matters. The attorney need not file a motion to withdraw unless the attorney seeks to withdraw from the limited appearance itself. The attorney is responsible under Rule 11 (a) only for those filings signed by the attorney. The benefits of a Rule 11(b) are obtained only by the filing of a limited appearance identified as such. The limited appearance should clearly state the scope of the limited representation. Any doubt about the scope of the appearance should be resolved in a manner that promotes the interests of justice and those of the client and opposing party. As to those filings signed by the attorney, Rule 11 (a) applies fully and the attorney is deemed to have entered an appearance for the purposes of the filing, even if the filing is beyond the apparent scope of the limited appearance. A limited appearance is created by the Maine Supreme Judicial Court’s rulemaking authority. Consequently, counsel in cases removed to the United States District Court should be aware that limited appearances may not be recognized in the federal forum. See, e.g., Order, Donovan v. State of Maine, Civil No. 00-268-P-H (February 16, 2001) (striking partial objection to recommended decision made through purported “limited appearance”); McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (noting trial judge not required to allow hybrid representation); U.S. v. Campbell, 61 F.3d 976, 981 (1st Cir. 1982) (same);

O’Reilly v. New York Times Co., 692 F.2d 863, 868 (2d Cir. 1982) (same; civil case).


Rule 11 is amended to resolve problems that have become apparent under both the Maine rule and its federal equivalent. The changes are adapted from the June 1981 Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, _____ F.R.D. _____ (1981). The Maine rule has not been effective in providing a sanction against attorneys who may violate its provisions, because it follows the language of the federal rule in authorizing “appropriate disciplinary action” for a willful violation by an attorney. Maine trial judges, noting that disciplinary power rests in the Board of Bar Overseers and the Supreme Judicial Court, have felt themselves unable to impose sanctions in the nature of professional discipline. In the federal courts, even though discipline is the province of the District Court, Rule 11 has been ineffective because of confusion as to the circumstances that should trigger action under it, the standard of conduct expected of attorneys, and the range of available and appropriate sanctions. See Federal Advisory Committee’s Notes to June 1981 Proposed Amendments to Rules 7(b)(3), 11, _____ F.R.D. _____ (1981), citing 5 Wright and Miller, Federal Practice and Procedure § 1334 (1969). These problems also exist under the identical language of the Maine rule. The amendment seeks to solve these problems by shifting the focus from attorney discipline to a broad range of sanctions similar to those applicable to discovery orders under Rule 37. Because of this shift in focus, the rule also subjects parties who sign pleadings, whether in conjunction with an attorney or acting pro se, to its obligations. In construing the obligation of a party, the courts will of course not charge him with an attorney’s knowledge of the law in evaluating the probable validity of his claim or defense. To eliminate any possible doubt, the amendment also expressly states that the rule applies to motions as well as to pleadings. This provision makes explicit the intention of Rule 7(b)(2) to subject motions to the sanctions of Rule 11. See 1 Field, McKusick and Wroth, Maine Civil Practice § 7.2 (2d ed. 1970). The amendment eliminates language in the prior rule referring to “sham and false” pleadings and to “scandalous or indecent matter.” To the extent that these faults in a pleading indicate, that it is violative of the rule, sanctions will now be

appropriate against the attorney or party. To the extent that the faults go to the merits or the content of the pleading, they are properly the basis for motions to dismiss under Rules 12(b), (c), or 56 or a motion to strike under Rule 12(f). See Federal Advisory Committee’s Note to June 1981 Proposed Amendment to Rule 11, supra. In lieu of these provisions, the amended rule provided simply that an unsigned pleading or motion may not be accepted for filing and that a pleading or motion signed with intent to defeat the purpose of the rule may give rise to sanctions against the attorney or party who signed it or, in a proper case, against a party represented by the signing attorney. The amended rule does not delineate all the appropriate sanctions but makes clear that a proper sanction could be the costs of responding to the improper pleading or motion including attorney fees. The intent of the amendment is to give the court great flexibility in determining the nature and severity of the sanctions and the individual upon whom they are to be imposed, according to the circumstances of the case. This flexibility will allow the court to deal fairly and reasonably with situations involving pro se parties. See Federal Advisory Committee’s Note to June 1981 Proposed Amendment to Rule 11, supra.


This rule is substantially the same as Federal Rule 11. The policy of the rule is to require bona fide pleading and the determination of the real issues without delay. Ordinarily pleadings need not be verified, but verification may be required by a statute or by rule. See e. g., Rule 23(b) (shareholders' suits), Rule 65(a) (temporary restraining order), Rule 80(b) (divorce; allegation that defendant's address is unknown).

RULE 12. DEFENSES AND OBJECTIONS--WHEN AND HOW PRESENTED BY PLEADING OR MOTION---MOTION FOR JUDGMENT

ON PLEADINGS (a) When Presented. A defendant shall serve that defendant’s answer within 20 days after the service of the summons and complaint upon that defendant, unless the court directs otherwise when service of process is made pursuant to an order of court under Rule 4(d) or 4(g), and provided that a defendant served pursuant to Rule 4(e), 4(f), or 4(j) outside the Continental United States or Canada may serve the answer at any time within 50 days after such service. A party who is served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court’s action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be

given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. (f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by a motion for judgment on the pleadings, or at the trial on the merits. (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.


Subdivision (d) is amended to eliminate the unnecessary word “mentioned.” Subdivision (e) is amended to substitute the word “filing” for the word “interposing.”


Rule 4(j), added on November 1, 1966, provides alternative provisions for service in a foreign country. The amendment of Rule 12(a) makes clear that service under one of the alternative provisions of Rule 4(j) results in the defendant having 50 days within which to serve his answer, if the service is in a foreign country other than Canada.

Explanation of Amendments November 1, 1966

These amendments were taken from the 1966 amendments to F.R. 12. The purpose of the amendment to Rule 12(b) was to conform to the terminology of the simultaneous amendment of Rule 19.

The purpose of Rule 12(g) as originally adopted was to prevent a party from delaying the action by raising a succession of defenses and objections by motion prior to answer. The 1966 amendment carried forward that purpose with clarifying verbal changes, including a reference to new subdivision (h) (2).

The amended Rule 12(h) was designed to settle the question, on which the federal decisions have been divided, whether an available defense omitted from a motion, which cannot be made the basis of a second motion, may nevertheless be pleaded in the answer. The amendment makes it clear that specified threshold defenses omitted from a motion made prior to answer are waived. This was the preferred construction of the present rule. See § 12.8 of the text. These defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process. The amendment also provides that any of these same defenses is waived by failure to raise it by motion or to include it in the answer or in any amendment thereto to which a party is entitled as a matter of course under Rule 15(a).


This rule is substantially the same as Federal Rule 12. It alters Maine practice very considerably. The requirement that an answer be filed within 20 days after service upon the defendant is new, as are the other time limits in Rule 12(a). Under Rule 12(b), all defenses of law or fact must be asserted in the answer except that the seven enumerated matters may, at the defendant's option, be set up by motion. There is no such thing as a plea in abatement, and the defendant may in effect plead and demur at the same time. A motion to dismiss for failure to state a claim upon which relief can be granted serves the purpose of a general demurrer under present practice. The last sentence allows the court in its discretion to consider an affidavit accompanying a motion to dismiss, making it in effect a speaking demurrer. The court will then treat the motion as one for summary judgment under Rule 56. This is one of several instances in the rules where the failure to label a paper properly is not fatal. See, for example, the similar provision in Rule 12(c).

The "unless" clause in the first sentence of Rule 12(a) is not the same as the federal rule. Under it the court may allow additional time for answer when it orders service upon the defendant by leaving a copy of the summons and complaint at his usual place of abode pursuant to Rule 4(d) (1) or by publication pursuant to Rule 4(g). Furthermore, when service outside the state personally or by mail is made in accordance with Rule 4(e) or 4(f), the defendant is given 50 days within which to answer if he is served outside the limits of the Continental United States or Canada. This is comparable to the present Equity Rule 7, but in the light of modern transportation it has seemed sensible to shorten the limits somewhat. It is to be noted that no defense or objection is waived by being joined with others in a responsive pleading or motion. A challenge to jurisdiction may be combined with an answer to the merits, although it may also be made by motion. Special appearances are no longer necessary in order to avoid submission to jurisdiction. Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir. 1944). This of course changes the present Maine practice. See Munsey, Ex'r v. Groves, 151 Me. 200, 117 A.2d 64 (1955). A motion for judgment on the pleadings under Rule 12(c) may be made by either the plaintiff or the defendant. When made by the defendant in the normal situation where no reply to the answer is ordered, it has the same effect as a motion to dismiss for failure to state a claim. The defendant cannot take advantage of any denials in his answer, which under Rule 8(d) are taken as denied or avoided. When made by the plaintiff, it challenges the legal sufficiency of the answer. Rule 12(d) provides in the court's discretion for a preliminary hearing on the seven matters which under Rule 12(b) may be raised by motion. Such a preliminary hearing may be held whether these matters are raised by motion or by answer. Rule 12(e) allows a motion for a more definite statement only when it is necessary in order to enable the mover to frame his responsive pleading. There is no longer such a thing as a motion for specifications or a bill of particulars. It is contemplated that these matters shall be elicited through the use of the discovery devices, such as interrogatories to the opposing party under Rule 33. Aside from the obvious purpose of striking redundant, immaterial, impertinent or scandalous matter, the chief point of Rule 12(f) is to allow a means for testing the legal sufficiency of a defense. If, for example, an answer contains two defenses, the sufficiency of either one would be fatal to a motion for judgment

on the pleadings. A motion to strike one of the defenses would permit the elimination from the case at the pleading stage of an insufficient defense. This is akin to a motion to strike all or part of the brief statement under present practice. Leonard Advertising Co. v. Flagg, 128 Me. 433, 148 A. 561 (1930). Under the Maine practice where the general issue may be pleaded in all cases accompanied by a brief statement of special matters of defense, R.S.1954, Chap. 113, Sec. 36 (repealed in 1959), a demurrer to the brief statement, if sustained, would not lead to judgment because the general issue would remain to be tried. Corthell v. Holmes, 87 Me. 24, 32 A. 714 (1894). Rule 12(g) is designed to prevent a party from delaying an action by making successively a series of motions. Rule 12(h) has been held to make it impossible to raise for the first time by motion after verdict or in the appellate court the contention that the complaint is insufficient as a matter of law. Black, Sivalls & Bryson v. Shondell, 174 F.2d 587 (8th Cir. 1949). In such a case, however, the defendant might obtain relief from the judgment pursuant to Rule 60(b) if justice so required.

RULE 13. COUNTERCLAIM AND CROSS-CLAIM

(a) Compulsory Counterclaims. (1) Pleadings. Unless otherwise specifically provided by statute or unless the relief demanded in the opposing party’s claim is for damage arising out of the ownership, maintenance or control of a motor vehicle by the pleader, a pleading shall state as a counterclaim any claim which at the time of serving the pleading 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 of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (A) at the time the action was commenced the claim was the subject of another pending action, or (B) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. (2) Removal of Claims Not Within the Subject-Matter Jurisdiction of the District Court. If a compulsory counterclaim filed in the District Court is not within the subject-matter jurisdiction of that court, the pleader shall simultaneously file and serve notice of removal and pay the required removal fee under Rule 54A, and the action shall be removed to the Superior Court as provided in that rule. (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party that is within the subject-matter jurisdiction of the court. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim Against the State. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the State of Maine or an officer or agency thereof. (e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with

the permission of the court, be presented as a counterclaim by supplemental pleading. (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. (g) Cross-Claim Against Co-party. A pleading may state as a cross-claim any claim by one party against a co-party that is within the subject-matter jurisdiction of the court and arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20. (i) Separate Trials; Separate Judgment. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) even if the claims of the opposing party have been dismissed or otherwise disposed of.


Rule 13(j) requires that when an action is removed from the District to the Superior Court, permissive counterclaims and cross-claims are permitted as if filed in an original action in the Superior Court and the clerk “shall forthwith notify all parties of the requirements of this subdivision.” The subdivision is an amended vestige of the days in which compulsory counterclaims were not allowed in the District Court. The subdivision has no purpose in a unified court and imposes a meaningless burden on the clerks. Under current practice, when an action is removed to the Superior Court, the entire action is removed, including counterclaims and cross-claims.


Subdivision (a)(2) is amended to correct the reference to the rule specifying payment of a removal fee and to indicate that the subject fee is one that involves removal.


District Court Civil Rule 73(a) at present provides for trial de novo upon an appeal to the Superior Court from a default judgment in the District Court. Simultaneously with the deletion of that provision, former Rule 13(k) is amended to eliminate the compulsory counterclaim in the Superior Court in such cases. See the Advisory Committee's Note to the amendment of District Court Civil Rule 73(a). Thus, in any District Court case which goes to judgment, there is no compulsory counterclaim on appeal to the Superior Court. The defendant in the District Court is subject, however, to the same dangers of collateral estoppel as are present in the Superior Court on claims arising out of the same transaction or occurrence as the plaintiff's claim. The defendant's protection is to plead his claim as a permissive counterclaim in the District Court under District Court Rule 13(a) or, if his claim exceeds the jurisdictional limit of the District Court, to remove the action to the Superior Court where he can assert the counterclaim. Since municipal courts and trial justices have been superseded by the District Court, former Rule 13(j) is deleted and former Rule 13(k) is renumbered Rule 13(j).

Explanation of Amendments September 1, 1960; August 1, 1962; November 1, 1966

Rules 13(a) and (b)

The amendment of September 1, 1960, modified M.R.C.P. 13(a) by eliminating the compulsory counterclaim requirement in cases where the claim arises out of a motor vehicle accident. Prior to the amendment any defendant who had a claim against the plaintiff arising out of the same transaction or occurrence as the plaintiff’s claim was required to interpose it as a counterclaim or be precluded from recovery upon it. A later independent action would not lie.

The objective of Rule 13(a) as originally promulgated was to avoid the possibility of two trials on the same facts and the further possibility of the defendant’s inadvertent loss of his own claim by reason of the adverse

determination in the first trial of facts essential to that claim. Desirable though that objective may be conceded to be, the rule did not work satisfactorily in motor vehicle actions in which, as is usually the case, the defendant carried liability insurance.

Under the terms of its policy, the insurer controls the defense of such actions. Counsel for the insurer properly felt obligated to notify the assured of the compulsory counterclaim rule, with the likely result that the assured would request him to handle the counterclaim. If counsel acceded to the request, it caused resentment on the part of the “plaintiff bar” that a member of the “defendant bar” had pre-empted law business which he would not have had under the prior practice where an independent action was required. This resentment was particularly serious in the mind of the attorney who by reason of former representation of the assured in other matters looked upon him as a regular client. Moreover, when the same lawyer was charged with protecting both the interests of the insurance company in defending a claim and the interests of the assured in asserting a claim, problems of conflict of interest would naturally arise. On the other hand, if the insurer’s counsel told the assured that he must retain his own lawyer for the prosecution of the counterclaim, the assured found it hard to understand why two lawyers were necessary to do the work of one. The layman’s reaction was likely to be adverse both to the insurer’s attorney and the legal profession generally.

Criticism of the rule was statewide and came both from lawyers who habitually represented plaintiffs and those who habitually represented insurance companies. After several months of experience with the rule, the Supreme Judicial Court concluded that there was sufficient merit to this criticism to warrant the elimination of the compulsory counterclaim requirement in these cases. Since the complaints evoked by the rule involved motor vehicle cases, the Court limited the amendment to this type of case.

As a matter of drafting, the operative words of the exception were taken from the standard form of automobile liability insurance policy. It is to be noted that it is only when the original claim is against the owner or operator of a motor vehicle that the counterclaim is no longer compulsory. For instance, if action is brought against a railroad for a grade crossing accident, any claim the railroad may have for damage to its locomotive is still compulsory. Here the problem of double representation of insurer and assured, with the attendant serious problems of conflict of interest, would not commonly exist.

The bar should note that this amendment restores the possibility, adverted to above, that a defendant may lose his own claim because of the adverse determination in an action against him, very likely defended by counsel retained by his insurer, of an issue decisive of liability in his potential plaintiff claim. This results from the application of that branch of the doctrine of res judicata properly denominated collateral estoppel. The principle of collateral estoppel is recognized in Maine by a long line of decisions. See Cianchette v. Verrier, 155 Me. 74, 85 ff., 151 A.2d 502, 508 ff. (1959). In that case, the Court quotes with approval the succinct statement of the rule set forth in the Restatement of Judgments as follows:

“Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action, except as stated in sections 69, 71 and 72.” Restatement of Judgments, § 68(1).

The hazards of collateral estoppel can be minimized, assuming separate

actions are brought, by having them consolidated for trial pursuant to Rule 42(a). This may be done even if the actions are pending in different counties. See Section 42.2 of the text. A further possibility is for the defendant to file a permissive counterclaim in the same action. A literal reading of Rule 13(b), prior to the amendment effective August 1, 1962, might lead to the conclusion that a counterclaim in an automobile accident case was not even permissive, since it was not a claim “not arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.” However, the Superior Court adopted the practical construction that any counterclaim which was not compulsory was permissive, and the August 1, 1962, amendment of Rule 13(b) has eliminated any doubt as to the correctness of that view.

The 1966 amendment at the end of Rule 13(a) was taken from a 1963 amendment to F.R. 13(a). It exempts from the compulsory counterclaim requirement a suit brought by attachment or trustee process where the court does not acquire personal jurisdiction and the defendant chooses to come in to defend his interest in the property. If, however, the defendant does elect to assert any counterclaim, he is required to assert any other counterclaim which is compulsory within the meaning of Rule 13(a).

Rule 13(h)

The amendment of Rule 13(h) was taken from a 1966 amendment to F.R. 13(h). It clarifies by explicit reference to amended Rules 19 and 20 the circumstances under which additional parties to a counterclaim or cross-claim may be brought into the action.

Rule 13(k)***

In connection with the promulgation of the Maine District Court Rules, Rule 13(k) was added to the Maine Rules of Civil Procedure, effective August 1, 1962. Rule 13(k) requires a defendant to plead counterclaims made compulsory by Rule 13(a) in any action commenced in the District Court after they are removed or appealed (after default judgment)*** to the Superior Court. Rule 13(k), applicable to actions commenced in the District Court, differs from Rule 13(j), applicable to actions commenced in a municipal court. Since there is no trial de novo on appeal from a judgment of the District Court entered otherwise than by default [see District Court Rule 73(a)], there is no compulsory counterclaim when the plaintiff or the non-defaulting defendant appeals to the Superior Court. The defendant is subject, however, to the same dangers of collateral estoppel as are present in the Superior Court on claims arising out of the same transaction or occurrence as the plaintiff’s claim. The defendant’s protection is to plead his claim as a permissive counterclaim in the District Court under District Court Rule 13(a) or, if his claim exceeds the jurisdictional limit of the District Court, to remove the action to the Superior Court where he can assert the counterclaim.


This rule is substantially the same as Federal Rule 13. Rule 13(a) is wholly new to Maine practice. A defendant who has a claim against the plaintiff arising out of the same transaction or occurrence as the plaintiff's claim must interpose it

*** [Field, McKusick & Wroth commented: “Now subdivision (j) by virtue of a December 31, 1967 amendment, which also eliminated the reference to an appeal from a default judgment.” 1 Field, McKusick & Wroth, Maine Civil Practice at 265.]

as a counterclaim or he will be precluded from recovery upon it.∗ A later independent action will not lie. The danger of being thus foreclosed from a valid claim is minimized somewhat by subdivision (f) of the rule, which gives the court discretion to allow an omitted counterclaim to be set up by amendment. Furthermore, the official form of summons (Form 1 in the Appendix of Forms) contains a specific statement to warn the defendant of the consequences of failure to assert a counterclaim arising out of the same transaction or occurrence. It is to be further noted that a defendant defaulted for failure to answer is not within the language of Rule 13(a), since he has not served a pleading. Such a defendant is therefore free to bring a new action upon a counterclaim which would ordinarily be compulsory. The "unless" clause at the outset of Rule 13(a) is not in the federal rule. It is added in order to take care of the rare situation arising under R.S.1954, Chap. 172, Sec. 51, as amended in 1959 [now 14 M.R.S.A. § 6654] (proceedings at law to try title), where the application of a compulsory counterclaim rule would defeat the statutory objective. Rule 13(b) broadens existing practice by permitting any claim which the pleader has against an opposing party to be stated as a counterclaim, even though it is factually unrelated to the main claim, and whether or not it is for a liquidated sum or one ascertainable by calculation. This removes the present restrictions on setoff, R.S.1954, Chap. 113, Sec. 76 (amended in 1959), and also changes the common law of recoupment. Ruggles Lightning Rod Co. v. Ayer, 124 Me. 17, 125 A. 144 (1924) (recoupment denied where the claim was founded upon an independent and distinct transaction). Rule 13(c) allows the defendant an affirmative judgment if his recovery on the counterclaim exceeds that of the plaintiff. Rule 13(g) provides for cross-claims. A cross claim must be distinguished from a counterclaim. The latter is a claim against the opposite party, and the cross-claim is a claim against another party on the same side of the case. A cross-claim

∗ [Field, McKusick & Wroth commented: “By virtue of a Sept. 1, 1969 amendment this requirement does not apply in motor vehicle cases. See Explanation of Amendments.” 1 Field, McKusick & Wroth, Maine Civil Practice at 261.]

is never compulsory, and it is permissible when it arises out of the same transaction as the original action or a counterclaim therein or relates to property that is the subject matter of the original action. Rule 13(j) is not in the federal rule. It deals with compulsory counterclaims in actions appealed or removed from a municipal court or trial justice.**** There is no requirement for such counterclaims in the lower courts because such a large portion of the defendants appear without counsel that a compulsory counterclaim rule might cause undue hardship. When such an action reaches the Superior Court, however, Rule 13(a) becomes applicable and a counterclaim compulsory under that subdivision must be asserted by amendment to the answer. As a further precaution in such cases, the rule provides that upon entry of such an action in the Superior Court the clerk shall notify the parties of this requirement.

** [Field, McKusick & Wroth commented: “Former subdivision (j) was deleted and the present subdivision (j), dealing with removals from the District Court, was added in amendments effective Aug. 1, 1962, and Dec. 31, 1967. See Explanation of Amendments and Advisory Committee's Note.” 1 Field, McKusick & Wroth, Maine Civil Practice at 262.]

RULE 14. THIRD-PARTY PRACTICE (a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third-party plaintiff may cause to be served a summons and complaint upon a person not a party to the action who is or may be liable to such third-party plaintiff for all or part of the plaintiff’s claim against the third-party plaintiff. The person so served, hereinafter called the third-party defendant, shall make any defenses to the third-party plaintiff’s claim as provided in Rule 12 and any counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim within the subject-matter jurisdiction of the court against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim within the subject-matter jurisdiction of the court against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and the plaintiff’s failure to do so shall have the effect of the failure to state a claim in a pleading under Rule 13(a). The third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13 and in the District Court may remove the action to the Superior Court as provided in Rule 76C. Any party may move for severance, separate trial, or dismissal of the third-party claim; the court may direct a final judgment upon either the original claim or the third-party claim above in accordance with the provisions of Rule 54(b). A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. (b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so. (c) Orders for Protection of Parties and Prevention of Delay. The court may make such orders as will prevent a party from being embarrassed or put to undue expense, or will prevent delay of the trial or other proceedings, by the assertion of a third-party claim, and may dismiss the third-party claim, order separate trials, or

make other orders to prevent delay or prejudice. Unless otherwise specified in the order, a dismissal under this rule is without prejudice.


This rule is similar to Federal Rule 14. It represents a drastic departure from Maine practice. When a defendant believes that a third person, not a party to the action, is or may be liable to him for all or part of the plaintiff's claim, he may bring such third person into the case as a party by service upon him of a summons and complaint. Thus the entire controversy can be settled in a single proceeding. Under existing practice the defendant must submit to judgment in the original action before he can sue the third party. He may, however, by giving the third party notice and calling upon him to defend, make the judgment conclusive against the third party, whether he appears or not. Davis v. Smith, 79 Me. 351, 10 A. 55 (1887). Moreover, although not a party to the record, such third party has standing under R.S.1954, Chap. 123, Sec. 1(111) (repealed in 1959), to bring a petition for review. Vermeule v. Brazer, 128 Me. 437, 148 A. 566 (1930). Hence the proposed rule has a respectable origin in present Maine practice. Finally, under R.S.1954, Chap. 96, Sec. 93 [now 23 M.R.S.A. § 3701], there is a provision for third-party procedure in an action against a town for a defect in a railroad crossing constituting part of a highway. The use of this device is optional with the defendant, who may elect to wait and bring a separate action. It is also discretionary with the court whether to allow the impleader to proceed. Impleader cannot be used by a defendant who contends that it is the third party instead of the defendant who is liable to the plaintiff. The rule is careful in the terminology used. The term "plaintiff" always refers to the original plaintiff in the action. The term "third-party plaintiff" always is used to designate the defendant in the original action who asserts the third-party claim against a third party, who is always referred to as the "third-party defendant." Careful reading of the rule should avoid any confusion. In practice the third-party plaintiff should attach a copy of the original complaint as an exhibit to his third-party complaint served on the third party. The departures from the federal rule are as follows: (1) the federal rule allows a third-party claim only upon motion of the defendant*; (2) the sentence in Rule 14(a) about severance, separate trial, or dismissal of the third-party claim is

not in the federal rule;* (3) the federal rule does not contain the requirement that the failure of the plaintiff to assert a claim against the third-party defendant shall have the effect of failure to assert a counterclaim made compulsory by Rule 13(a); (4) there is nothing comparable to Rule 14(c) in the federal rule. The first two of these departures are taken from an unadopted proposal of the federal Advisory Committee in 1955. The requirement of seeking leave of court to serve a third-party complaint accomplished little, for the court had to pass upon it before the third-party defendant had answered, and thus at a time when it was hard to appraise the complications of bringing in the third party. This does not remove the discretion of the court as to allowance of the impleader. That, discretion is to be exercised on motion after the third party has been brought into the case. The second departure from the federal rule emphasizes the existence of this discretion. It seems particularly desirable in Maine not to require a judicial ruling on the propriety of an impleader unless someone objects to it. Since there are, in many of the counties, protracted periods when no judge is readily available, it appears desirable to reduce so far as practicable the necessity of trips to court. The third change from the federal rule has to do with compulsory counterclaims in third-party practice. A plaintiff may under the federal rule assert his own claim against the third-party defendant if he chooses, or he may await the outcome of the initial suit and then bring a new action against the third-party defendant. It seems an unfair burden upon the latter not to require the plaintiff to clean up in a single action the entire controversy arising out of a single transaction or occurrence. The purpose of Rule 14(c) is to reemphasize that the court should exercise its discretion as to third-party claims with due regard for the protection of the parties and the prevention of delay. It is taken from a 1959 amendment to the Minnesota rules.

* [Field, McKusick & Wroth commented: “F.R. 14(a) was amended, effective July 1, 1963, to require leave of court only if the impleader is filed more than 10 days after answer and to incorporate language substantially similar to the severance provision of the Maine rule.” 1 Field, McKusick & Wroth, Maine Civil Practice at 287 (2d ed. 1970).

RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS (a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining an action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the condition of paragraph (2) of this subdivision is satisfied and, within the period provided by Rule 3 for service of the

summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. (d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.


Rule 15(c) is amended to adopt a 1991 amendment of Federal Rule 15(c) for the purpose of maintaining Maine’s relation-back provisions in conformity with the federal rule. The reasons are those given in the federal Advisory Committee Note, which reads as follows: The rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense. Paragraph (c)(1). This provision is new. It is intended to make it clear that the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law . . . . Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim . . . . If Schiavone v. Fortune, 106 S. Ct. 2379 (1986) implies the contrary, this paragraph is intended to make a material change in the rule. Paragraph (c)(3). This paragraph has been revised to change the result in Schiavone v. Fortune, supra, with respect to the problem of a misnamed defendant. An intended defendant who is notified of an action within the period allowed by [M.R. Civ. P. 3] for service of a summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the

defendant’s name, provided that the requirements of clauses (A) and (B) have been met. If the notice requirement is met within the [M.R. Civ. P. 3] period, a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification. On the basis of the text of the former rule, the Court reached a result in Schiavone v. Fortune that was inconsistent with the liberal pleading practices secured by Rule 8 . . . .


The amendment of Rule 15(c) was taken from a 1966 amendment to F.R.

15(c). It states the circumstances under which an amendment of a pleading bringing in a new party defendant “relates back” to the date of the original pleading so as to prevent the statute of limitations from barring the action. Such relation back can take place only if the new defendant has received such notice of the action that his defense on the merits will not be prejudiced and if he knew or should have known that he would have been sued originally but for a mistake concerning the identity of the proper party. In addition, the amendment must satisfy the usual condition of Rule 15(c) of “arising out of the conduct . . . set forth . . . in the original pleading.” The federal rule was amended to cure injustice arising in actions against officers or agencies of the United States where the proper defendant was not named and the mistake was not discovered within the time for commencing a new action. It is apparent that the cases in Maine covered by the amendment will be rare indeed, and in some of them relation back might be allowed under the rule as originally framed. Nevertheless, the amendment seems soundly based and may prevent an occasional injustice.

The amendment to Rule 15(d) was taken from a 1963 amendment to F.R. 15(d). It resolves a conflict in the federal cases as to whether a complaint failing to state a claim on which relief can be granted can be made good by the assertion in a supplemental complaint of subsequently occurring events. Under the amendment the court has discretion to permit a supplemental complaint despite the fact that the original pleading is defective.


This rule is the same as Federal Rule 15. It broadens somewhat the already liberal Maine practice with respect to amendments. A pleading may be amended once as a matter of course without leave of court before a responsive pleading is

filed, or, if no responsive pleading is permitted, within 20 days after it is served. This is comparable to the present Equity Rule 20, allowing amendments before issue as of course. There is no provision at law for amendment without leave of court, but Revised Rules of Court 3 allows amendments in matters of form, as of course, on motion. Revised Rules of Court 4 gives broad discretionary power to allow amendments of substance, on terms, but forbids a new count or amendment "unless it be consistent with the original declaration, and for the same cause of action." The notion of consistency with the original declaration requires that the action be of like kind, subject to the same plea, and such as might have been originally joined with the other. Anderson v. Wetter, 103 Me. 257, 69 A. 105 (1907). With the abolition of the forms of action and common law pleading, and with the freedom of joinder of causes under these rules, this requirement becomes meaningless. The requirement of the present rule of court that the amendment be for the same cause of action is modified by Rule 15. The words "cause of action" are avoided in these rules, but the concept of "claim for relief" is broad enough to include the mass of operative facts upon which the plaintiff's grievance is based. The theory of recovery is not a part of the claim for relief and a shift of theory is permissible. The present Maine law is considerably narrower. For instance, Cornish, J., in Anderson v. Wetter, supra, poses the question of what is meant by the term "cause of action", and answers it by saying: "It does not refer to the facts and circumstances which may be introduced in evidence and because of whose occurrence the action has resulted." (103 Me. at 265, 69 A. at 108). This is contrary to the approach of these rules. This matter is chiefly significant when the amendment comes after the statute of limitations would bar a fresh action, which is discussed below under Rule 15(c). Rule 15(b) allowing amendments to conform to the proof seems substantially declaratory of existing law. There are many cases, both in equity, e. g., Maxim v. Thibault, 124 Me. 201, 126 A. 869 (1924), and Sawyer v. White, 125 Me. 206, 132 A. 421 (1926) ; and at law, e. g., Charles v. Harriman, 121 Me. 484, 118 A. 417 (1922) ; Clapp v. Cumberland Cy. Power & Light Co., 121 Me. 356, 117 A. 307 (1922); Rowe v. Kerr, 126 Me. 35, 135 A. 825 (1927); Burner v. Jordan Family Laundry, 122 Me. 47, 118 A. 722 (1922) ; and Hoskins v. B. & A. Ry., 135 Me. 285, 195 A. 363 (1937), which allow amendments to conform to the proof where the issues have been fully tried. The provision for a continuance in the event that an amendment allowed at trial unfairly surprises an opponent also reflects present practice. Charlesworth v. American Express Co.,

117 Me. 219, 103 A. 358 (1918); Fournier v. Great Atlantic & Pacific Tea Co., 128 Me. 393, 148 A. 147 (1929). Rule 15(c), dealing with relation back of amendments, is important only when the statute of limitations would bar a new suit. Here an amendment which changes the "cause of action", as that term has been commonly construed, is allowed if the amended claim arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. To illustrate, an amendment alleging violation of the Boiler Inspection Act has been allowed under Federal Rule 15(c) to relate back and thus defeat the bar of the statute of limitations where the original complaint was under the Federal Employers' Liability Act. Tiller v. Atlantic Coast Line Ry., 323 U.S. 574, 65 S.Ct. 421 (1945). Similarly, an amendment has been permitted where the theory of recovery was changed from negligence in the use of a scaffold to negligence in its construction. Blair v. Durham, 134 F.2d 729 (6th Cir. 1943). Apparently the former would not be in accord with Maine law (Cf. Frost v. Cone Taxi Co., 126 Me. 409, 139 A. 227 (1927)), and it is at least doubtful whether the latter would be (Cf. Tolman v. Union Mut. Life Ins. Co., 124 Me. 42, 126 A.16 (1924)). Rule 15(d), providing for supplemental pleadings setting forth events which have happened since the date of the original pleading somewhat broadens Maine law. Although the supplemental bill is familiar in Maine equity practice, it has not been permitted in order to maintain a cause of action that accrued after the original bill was filed, even though arising out of the same transaction. Rose, Adm'x v. Osborne, 136 Me. 393, 11 A.2d 345 (1940). The old plea puis darrein continuance at law has allowed the pleading of defensive matter arising after the commencement of the action, but this plea has operated as an abandonment of all former pleas. Hilliker v. Simpson, 92 Me. 590, 43 A. 495 (1899). Rule 15(d) is not thus restricted in its operation. A warning is appropriate as to the effect upon an attachment of an amendment of the pleadings. If a new demand is introduced after an attachment under present Maine law, it will not be good against subsequent attaching creditors. Fairbanks v. Stanley, 18 Me. 296 (1841). But amendments merely in form will not dissolve an attachment so as to let in subsequently attaching creditors. Marston v. F. C. Tibbetts Mercantile Co., 110 Me. 533, 87 A. 220 (1913). Under Rule 15(c), it is plain that an amendment will discharge an attachment insofar as it introduces a new cause of action in the sense of a claim arising from an altogether different transaction. An attachment will not, however, be dissolved by an amendment which can fairly be regarded as within the

contemplation of the parties under the original pleadings even though there is a change in the cause of action as that term has been construed in the Maine cases. See Aronow v. Gold, 274 Mass. 65, 174 N. E. 267 (1931) (bond to dissolve attachment not discharged by amendment from demand on written contract to quantum meruit for work and materials in rendering the identical service).

RULE 16. PRETRIAL PROCEDURE IN THE SUPERIOR COURT (a) Case Management. (1) Standard Scheduling Order. Unless otherwise ordered by the court, after the filing of the answer in any civil action in the Superior Court other than proceedings pursuant to Rule 80, 80B or 80C, the court shall enter a standard scheduling order setting deadlines for a conference of counsel concerning discovery, the joinder of additional parties, the exchange of expert witness designations and reports, the scheduling and completion of an alternative dispute resolution conference when required by Rule 16B, the completion of discovery, the filing of motions, and the placement of the action on the trial list. The standard scheduling order shall not be modified except in accordance with Rule 16(a)(2) or on motion for good cause shown. The joinder of additional parties after the standard scheduling order has issued shall not require a modification of the scheduling order except on motion for good cause shown. (2) Modified Scheduling Order. On motion by a party filed within 30 days of the entry of the standard scheduling order, or at any time on the court's own initiative, the standard scheduling order may be modified or supplemented to address the requirements of a case not addressed by the standard scheduling order. The court, after conferring with the parties and considering the nature of the case, may in the modified or specialized scheduling order establish deadlines, schedules, and other orders for the efficient preparation of the case for trial. Once entered, the modified scheduling order shall not be further modified except for good cause shown. (b) Pretrial Order and Trial Management Conference. Unless the court has ordered otherwise when the action is placed on the trial list, the court shall enter a pretrial order setting deadlines for final pretrial filings and settlement discussions. The pretrial order shall be issued not later than 30 days prior to the commencement of the trial session and shall not be modified except on motion for good cause shown. On motion of a party or on its own motion, the court may defer the pretrial order and order the parties to file pretrial memoranda, briefs or such other filings as the court may direct. The court may conduct a trial management conference. Unless excused for good cause, each party shall be represented at the trial management conference by the attorney who is to conduct the trial and who shall be prepared to represent the party’s position on settlement and on all matters involved in the conduct of the trial. At the trial management conference, the parties shall be prepared and authorized to discuss settlement in good faith. The

court may conduct a settlement conference and may direct the parties, their insurers, and their authorized representatives to appear at the settlement conference and to participate in good faith. (c) Reserved. (d) Sanctions. If a party fails to comply with the requirements of this rule or any order made hereunder, the court may impose upon the party or the party’s attorney, or both, such sanctions as the circumstances warrant, which may include the dismissal of the action or any part thereof with or without prejudice, the default of a party, the exclusion of evidence at the trial, and the imposition of costs including attorney fees and travel. The court may expressly order that the costs of sanctions be borne by counsel and not paid by counsel’s client.

Advisory Committee Note July 2008

Rule 16 is amended with corresponding amendments to Rules 26, 33, 34 and

37 to address the need for specific treatment of the discovery of electronically stored information. These amendments are taken largely from the 2006 amendments of the Federal Rules of Civil Procedure, which comprehensively address the discovery of electronically stored information. Guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee's Notes, and cases applying the federal rules. "Electronically stored information" is intended to have the same broad meaning found in Rule 34 (a), which permits discovery of electronically stored information regardless of the medium in which the information is stored or the method by which it is retrieved. Given the amount of information that exists only in electronic form, the discovery rules need to address the preservation and production of this information. The fact that Rule 16 encourages the parties to address electronic information if a discovery conference is requested and that the discovery rules provide for the production of such information does not suggest that discovery of electronically stored information is appropriate in every case. As in every case, the parties are expected to engage in discovery in a reasonable manner. The court has broad powers at under Rules 26 and 37 to regulate discovery. Rule 16(a)(1) is amended to require a scheduling order to include "a conference with counsel concerning discovery” early in the case. The form

scheduling order recommended by the Advisory Committee requires a conference to be held “if requested by any party.” The purpose of the conference with counsel concerning discovery is twofold. First, it is desirable for a counsel to discuss their plans for discovery early in the case. Frequently, such discussions can lead to narrowing the scope of discovery and setting the stage for more efficient use of resources in preparing the case. Second, cases now more frequently involve the production of electronically stored information. In those cases in which the discovery of electronically stored information is contemplated, it is important for counsel to discuss early in the case preservation of that information, which might otherwise be altered or deleted in the ordinary course of business, and to discuss the form in which such information can be preserved and produced. The intent of the rule is that this discussion take place early in the case to ensure that discovery proceeds efficiently and to require the parties to document an agreement concerning the preservation and production of information in order to prevent disputes later in the case. The form scheduling order should be amended in part as follows:

SCHEDULING ORDER Pursuant to M.R.Civ.P. 16(a), the court orders as follows: 1. Discovery Conference. If requested by any party, a conference of counsel shall be held to discuss a plan for discovery, including in appropriate cases a plan for the production and preservation of electronically stored information. Agreements by the parties, including an agreement that no such provisions need be made, shall not be filed with the court but shall be documented by written communication to all counsel. In the absence of agreement, disputes shall be resolved under Rule 26 (g). [renumber remaining paragraphs accordingly]

* * * * * The draft scheduling order amendment submitted by the Advisory Committee with the amendment to Rule 16(a)(1) contains a new paragraph 1 to require a discovery conference “if requested by any party.” The purpose of the conference is to encourage counsel "to discuss a plan for discovery, including in appropriate cases a plan for the production and preservation of electronically stored information." The parties may decide not to have such a conference. If the

conference is requested and held, however, the parties may make agreements as to discovery generally and electronically stored information specifically or, alternatively, they may agree that no provisions need be made. In either case, the parties must document the agreements they reach in a written communication. That communication "shall not be filed with the court," but it must be in the form in which it can be presented to the court in the event that there is a dispute later in the case. The provision for a discovery conference is motivated by two considerations. First, the scheduling order encourages the parties to address the issue of discovery, including electronically stored information where appropriate, and to document what they have decided to do. It obviously would be simple to require such a conference, but the Advisory Committee believes that parties should be free to decide for themselves whether a conference need be held. Second, if the parties do address these issues and reach some agreement on how the issues are to be handled, it is the objective of this process to reduce the likelihood of disputes later in the case, including claims of spoliation of evidence. For example, if the parties agree that a particular type of information should be produced or preserved or agree that no such information need be preserved, those agreements as documented in the written communication required by the order should enable the court to address a spoliation claim in a more focused way than if no agreements were reached. In other jurisdictions, spoliation claims, particularly as to electronic information, have resulted in substantial sanctions. Maine lawyers now have the tools to reduce that exposure. Similarly, the conference is a good opportunity for the parties to address whether electronically stored information is “reasonably accessible” within the meaning of Rule 26(b)(6). Since the scheduling order is entered shortly after the answer is filed, the defendant may not have all of the information required to enter into definitive agreements on some of the discovery issues. In that case, the parties may agree -- and document their agreement -- to address these issues at a future time. If the parties are unable to agree on an issue during the discovery conference, the dispute "shall be resolved under Rule 26 (g)," as the proposed scheduling order requires. Since the discovery schedule is relatively short, in cases in which a large volume of electronically stored information is produced, parties may find out later that information that is privileged or subject to the work product qualified immunity has been inadvertently produced. Proposed Rule 26(b)(5)(B) specifically addresses this issue and prescribes the procedure for handling the information once the claim of privilege is raised. In this context, and under amended Rule 26(b)(5)(B), the term "privilege" is intended to mean confidential

information protected from discovery on any ground, whether by statutory provision, privilege created by law or rule, or otherwise.

Advisory Committee Note April 2, 2007

This amendment is designed to provide parties and the court with a choice for differentiated case management. Once the parties have appeared, the Superior Court enters a form scheduling order that sets deadlines for the case. The amendment to Rule 16(a) establishes a subdivision (a)(1), which is directed to the form scheduling order, now called the "standard" scheduling order in the amendment. A "standard" scheduling order will issue unless, in a few cases, the court has previously issued a specialized scheduling order governing the particular proceeding. The deadlines in the "standard" scheduling order may not be modified under the rule unless "good cause" can be shown. Although the standard scheduling order should govern the great majority of cases, there are cases in which the form order may not serve the requirements of an individual case. The adoption of Rule 16(a)(2) permits the court, on its own or on a motion, filed within 30 days of the scheduling order, to modify the order without having to meet the exacting "good cause" standard. A Rule 16(a)(2) modification of the scheduling order should be the exception, rather than the routine. The new subdivision (a)(2) purposely does not specify the kinds of cases in which a departure from the form order is warranted, but obvious examples include complex or multi-jurisdictional cases, cases with many parties and counsel, and extremely simple cases that do not require the full standard treatment. A motion for modification to the standard scheduling order should specify why the standard order does not meet the requirements of the case and should proffer an alternative order, preferably with the agreement of all counsel. The court is intended to have broad discretion to decide whether to depart from the standard order and, if so, on the schedules and orders made to address the particular requirements of the case.


The amendment makes changes in Rule 16(b) to recognize present practice. The scheduling order issued under Rule 16(a) now controls subsequent pretrial proceedings, so the provisions presently in Rule 16(c) are superfluous. The amendments to Rule 16(b) reflect the current more flexible practices. The amendments also address settlement and permits the court to compel the

attendance of parties including insurers. Although many judges believe that the court now has the inherent power to compel such attendance, the grant of express authority dispels any possible argument that under the present rule the court may not have the power to compel the attendance of an insurer who is not a party. The sanctions provisions presently in place are sufficient to cover the settlement conference.


February 8, 2001 Subsection 1 amends Rule 16(a) to add an ADR scheduling component to the scheduling order which the court now issues under Rule 16(a). The scheduling order specifies the time within which the ADR conference has to be scheduled and completed. As with other aspects of the 16(a) scheduling order, the dates for scheduling and completion of the ADR conference may be adjusted by the court for good cause shown. The scheduling order would reference Rule 16B for implementation procedures.


Rule 16 has been completely replaced in a continuing effort to improve pretrial procedure. The objective of the new rule is to implement reforms to the discovery process and to bring the rule itself into line with a simplified pretrial process. The new pretrial procedure under Rule 16 applies only to the Superior Court and does not apply to proceedings filed under Rules 80, 80B or 80C. In 1980, a new Rule 16 was adopted to strengthen the pretrial memorandum/conference process, which was nearly the exclusive means by which cases were made ready for trial. In 1988, however, the court adopted a new procedure by which cases were “tracked” either to the expedited pretrial list or the regular pretrial list. Conforming amendments were made to Rule 16 to recognize that cases on the expedited pretrial list would be called for trial without formal pretrial memoranda or conferences. Assignment to the regular pretrial list required parties to file detailed pretrial memoranda and to address at a pretrial conference the many issues required by the 1980 amendment. In all cases, amendments to Rule 16 also required the parties to confer within 15 days of the service of the answer in order to prepare and file a pretrial scheduling statement that specified whether the case would be tried to a jury, the time required for trial and discovery, and the possibility of settlement.

As the practice developed, however, the overwhelming majority of cases were placed on the expedited pretrial list, rendering the detailed pretrial memorandum/conference requirements inapplicable. The process of preparing the pretrial scheduling statement became little more than a pro forma filling out of a form, frequently performed without personal contact among counsel. The process also imposed a burden on the clerk to initiate and police the filing of the statement. Most importantly, the process did not deliver the intended substantive exchange between the parties at an early point in the case. The present amendments to Rule 16 recognize that for the large majority of cases, it is most efficient for the court to send out a scheduling order automatically, setting deadlines for joinder of parties and amendment of pleadings, expert witness designations, discovery deadlines, jury demand, trial time estimates, exchange of witness lists, and deadlines for filing motions. The scheduling order also requires an automatic disclosure of expert witness information required by M.R. Civ. P. 26(b)(4)(A)(i) by the plaintiff with a corresponding disclosure by the defendant thereafter. A similar process has been used with success in the federal court for the District of Maine. The scheduling order, set forth below, is automatically entered by the court when issue is joined in the case. It is contemplated that all actions will be governed by the form scheduling order unless a party moves to amend or alter the order within 10 days of its issuance, a deadline set by the order itself. Departure from the schedule should be allowed only where it is shown that the circumstances of the case make imposition of the order’s deadlines unfair or impractical. In the absence of a motion, the order sets the discovery deadline, which triggers important obligations for the parties. Not later than 15 days after the discovery deadline, the parties must exchange a witness list and must have conferred and filed with the court an estimated number of days required for the trial. Within 60 days of the discovery deadline, all motions except motions in limine must be filed. When the case is set for trial, the court will issue a form pretrial order, set forth below, specifying the date for trial and deadlines for pretrial preparation. The order is issued once, although the case may appear on more than one trial list if not reached. The parties are required by the order to exchange settlement positions and lists of exhibits and witnesses. In advance of the trial date, the parties are also required to edit depositions to be offered at trial. One day prior to the commencement of the trial session, each party is required by the order to submit a trial brief consisting of a short statement of legal and factual issues. The trial brief

should have attached a witness and exhibit list and any requested voir dire, jury instructions or special verdict form. It is the intent of the rule and the orders implementing the rule that pretrial preparation be conducted in good faith and on schedule. The automatic process contemplated by Rule 16(a) and (b), implemented by the scheduling and pretrial orders, may not be appropriate for cases complicated by the issues, the number of parties or the need for special management. In these cases, on motion of a party or on the court own motion, the court may order the parties to file pretrial memoranda and to attend a pretrial conference under Rule 16(c). The intent of the new provisions for the pretrial memorandum and pretrial conference is to simplify the process and to give the court maximum flexibility in the management of the preparation for trial. The language of Rule 16(c) is taken from Local Rule 16.4(b) of the United States District Court for the District of Maine. The purpose of the rule is to require the parties to file brief memoranda flushing out the issues and identifying witnesses and exhibits, to hold a conference among counsel and the court, and to provide for the entry of a customized pretrial order that will “control the subsequent course of the action.” Since pretrial memoranda and a conference will be required only in those cases requiring special management, the intent of the procedure is to provide a means for case specific simplification of the issues and management of the trial. As in the former Rule 16, Rule 16(d) expressly empowers the court to impose a variety of sanctions upon a party or upon counsel alone for failure to comply with the requirements of the rule or with the orders issued on authority of the rule. The purpose is to provide the court with the tools to require adherence to its processes and to encourage the court to use those tools where appropriate. As the pretrial order specifically states, agreements among counsel to waive requirements or to extend deadlines will not be recognized. The requirements of Rule 16 are neither onerous nor pointless.


Rule 16(c)(1) is amended to delete the requirement for a pretrial conference

under Rule 16 in divorce actions unless one of the parties has requested a conference in his pretrial memorandum. Past experience has indicated that in the vast majority of divorce actions, a pre-trial conference has not served the functions set forth in Rule 16 for other actions. A conference will not be held therefore

unless a specific request is made by a party. Absent such a request by either party the clerk will place the action on the trial list.


I. General. The abrogation of the existing Rule 16 and its replacement with a new Rule relating to pretrial procedure is the most significant modification of the Maine Rules of Civil Procedure in recent years. It results from a two-year study of pretrial procedure undertaken by the Advisory Committee at the direct mandate of the Supreme Judicial Court. The new Rule 16 is intended to remedy substantial defects in the existing scheme of pretrial procedure and to give more explicit, rigorous and detailed directions for pretrial procedure for the benefit of both the Bench and the Bar. The new procedure represents a response to a perceived need for greater structure to and stricter enforcement of pre-trial processes and requirements. Of significance is the issuance by the Supreme Judicial Court of an Administrative Order to the Bench and the Regional Administrators and Clerks detailing the expectations of the Supreme Judicial Court relative to compliance with the requirements of the new Rule and urging the Bench to achieve "vigorous enforcement" after "a brief period of adjustment.” The purposes of this reform of pretrial procedure are to reduce delay and costs to litigants; to insure a just result of litigation; to meet some genuine concerns of the litigating bar; and to increase the efficient utilization of judicial resources. The Supreme Judicial Court sets forth in the Administrative Order, its expectations in respect to future conduct of pretrial procedures. It states:

First, we expect acceptance by justices and by counsel of the principle that pretrial procedures can be beneficial to all concerned by focusing productively on the genuine issues and expediting trials where necessary, settlements where possible.

Second, we expect that, after a brief period of adjustment, the

requirements of Rule 16 will be vigorously as well as fairly enforced, by sanctions whenever appropriate.

Third, we expect the pretrial justice to address the often complex issues at pretrial conference and to produce a useful pretrial order in every case.

Fourth, we expect trial counsel to fulfill his professional

responsibility, in simple cases, not to burden our limited judicial resources with cumbersome procedures and, in complex cases, to assist the pretrial justice in the preparation of the necessary pretrial order.

Fifth, we except the decisions by the administrative staff, and

the Regional Presiding Justices to adhere to the directives and the purposes expressed herein.

Sixth, we expect that the Regional Presiding Justices will

institute the following procedures and see that they are adhered to:

A. The first six items on each pretrial memo will be examined by the civil calendar clerk to assist in the performance of scheduling duties.

B. When directed by the Regional Presiding Justice, pretrial

conferences will be scheduled as conveniently as possible (not less than one-half hour apart) and not less than three weeks in advance of the conference.

C. Time will be scheduled approximately one week prior to

pretrial conference for the pretrial justice to examine the files, determine whether pre-trial conference is in order, or may be dispensed with upon the entry of a pretrial order under Rule 16(b).

D. When appropriate in the opinion of the pre-trial justice,

he shall designate cases to be specially assigned to a date certain. He shall not determine the date, which shall be done by the clerk and/or the Regional Court Administrator.

E. When all parties agree, and sufficient justification is

presented to the Regional Presiding Justice, the Regional

Presiding Justice may recommend the special assignment of an individual justice by the Chief Justice.

F. When requested by the pretrial justice, the clerk shall

type a pretrial order on the basis of the Justice's notes. When the justice has directed counsel to prepare a pretrial order, the clerk shall see that the order has been entered before the case is placed on the trial calendar.

G. Every pretrial order shall address the matters enumerated

in Rule 16(c)(2). H. Attached hereto is a recommended form entitled "Report

of Pretrial Conference and Order" for use by justices and counsel.

I. Every pretrial order when signed by the justice shall be

entered on the docket and copies thereof forwarded to all counsel.

J. When necessary, counsel may obtain an amendment of a

pretrial order on motion which may be heard by a justice other than the pretrial justice if he is not available.

K. No case shall be moved forward to the trial calendar

without a pretrial order that complies with Rule 16. Clearly the Court intends this revision of the Rule to result in meaningful and effective management of cases at the pretrial stage. It is to be expected that the full resources of the Bench and the Administrative Office will be brought to bear to secure very strict compliance with the requirements of the Rule. Vigorous enforcement by use of appropriate sanctions is to be anticipated. II. Comments on the Rule. 1. Filing of Pretrial Memoranda. All parties are required to file a pretrial memorandum addressing the matters set forth in Paragraph (a)(3) of the Rule. No such memorandum. may be filed until the last responsive pleading has been served or the time therefore has elapsed without its filing. The memoranda must be filed in every case unless the party is specifically excused by the court

from such filing. It is anticipated that such excuses will be rarely ordered. A party excused from filing a pretrial memorandum must file a demand for jury trial under Rule 38 if he wishes to preserve his right to jury trial. No case may be scheduled for trial until the memoranda have been filed, unless otherwise ordered by the court. Counsel should be at pains to notice that sanctions, including dismissal of the action and entry of default, may be imposed for failure to file pretrial memorandum in a timely manner. 2. Pretrial List and Advancement of Cases to Trial. All cases are to be placed upon the Pretrial List on filing of a pretrial memorandum. Cases on the list will be scheduled for pretrial conference in accordance with Paragraph (c)(1) of the Rule. The pendency of discovery in the case will not delay assignment for pretrial conference. A case may be placed upon the Trial List only if a Pretrial Conference is held under Paragraph (c) of the Rule or if the court dispenses with the need for such conference under Paragraph (b) of the Rule. It is expected that this requirement will result in Pretrial Conferences being held in all but very simple cases and in cases in which counsel have met and filed, by agreement, a satisfactory proposed Pretrial Order for the consideration of the pretrial justice. 3. Contents of Pretrial Memoranda. Paragraphs (a)(3) and (a)(4) of the Rule set forth in detail the subjects to be addressed by the respective parties in their pretrial memoranda. Some subjects are newly added to the Rule and are of great importance. It is imperative that all the listed subjects be addressed by each party in a meaningful way unless a party adopts the statement of another party on the subject in question. Any party desiring a pretrial conference must request it in the pretrial memorandum. It should he noted that even if all parties seek to dispense with the pretrial conference, the court may, nevertheless, order that it be held. Counsel should attempt to be candid and accurate in estimating the time required for pretrial conference and for trial. Paragraph (a)(3)(F) requires all pending motions to be identified in the memorandum. This provision is intended to aid the court in performing its duty under Paragraph (c)(2)(A) in disposing all pending motions. The need for strict compliance is obvious. Paragraph (a)(3)(G) requires a statement of the nature of the case. This should be as concise as possible but should be detailed enough to give the court an

understanding of the factual circumstances in which the legal issues of the case are raised. "Boiler plate" or "pro-forma" descriptions of the case, as have often been used in the past, will no longer be acceptable. Paragraph (a)(3)(H) requires a “precise statement” of the legal issues. General or conclusory statements of the issues will not be acceptable. Failure to list a legal issue in the pretrial memorandum will probably result in a waiver of that issue at trial unless it is preserved in the pretrial order. It is expected that the court will enforce such waivers unless counsel has a valid excuse for failure to identify an issue in the memorandum or at pretrial conference. Paragraph (a)(3)(I) requires identification of unusual legal issues and sanctions may be imposed if the trial process is delayed or unduly complicated where such an issue has not been identified by counsel in the pretrial process. In such case the court may treat the issue as waived. Paragraph (a)(3)(J) requires that the court be fully apprised of the status of pretrial discovery in the memoranda. Counsel are to provide candid and factual information to the court, in the memoranda on this point. The court at pretrial conference will consider this matter and establish a deadline for completion of further discovery. Hence, it is in the interest of counsel to state clearly and at length those further discovery needs he intends to satisfy. Paragraph (a)(3)(M) requires provision of a list of exhibits to be offered at trial. Failure to list exhibits in the memoranda may well result in exclusion of the omitted exhibits at trial, for that reason. Counsel are to treat this requirement most seriously. This places on counsel the need and obligation for detailed trial preparation in advance of the filing of the memoranda if this risk is to be avoided. Paragraph (a)(3)(P) requires a detailed itemization of all damages claimed. The emphasis here is on the word "detailed.” This provision is intended to require counsel to break down his party's claim for damages into specific, legally cognizable categories of damage and to prove a specific and complete listing and quantification of damages claimed under each such category of damage. Paragraph (a)(3)(S) requires a concise description of the settlement posture of the case. The contents of the pretrial memoranda are not to include reference to specific figures involved in prior discussions or negotiations. Counsel is, however, to indicate in this section of the pretrial memorandum. whether or not settlement discussions have been had and, in a general manner, to describe for the court the present posture of those negotiations. It is important that this information be

provided in as much detail and with as much accuracy as possible as the court now has, under this Rule, a more significant role with respect to settlement discussions than has previously been the case. See: Paragraph (c)(5) of the Rule. The concluding sentence of Paragraph (a)(3) provides that counsel may submit with the pretrial memorandum a proposed Pretrial Order. It is anticipated that under the new pre-trial procedure, counsel will be required, with greater frequency than in the past, to prepare the Pretrial Order for approval by the court as the result of discussions had at pretrial conference. This provision of the rule is intended to facilitate counsel's cooperation in the preparation of the Pretrial Order by permitting it to be done in advance of the pretrial conference so that the actual text of the proposed Pretrial Order may be available at the conference for discussion with the court. It is suggested that really effective pretrial procedure, especially in serious and complex cases, would dictate that counsel meet in advance of the filing of pretrial memoranda and attempt to agree upon a proposed Pretrial Order for submission with the memoranda. Where this can be done it will greatly facilitate the subsequent preparation of the Order as a result of discussions had at the pretrial conference. 4. Actions Set for Trial Without Pretrial Conference. Under the new pretrial procedure the pretrial justice is to be provided in advance of the actual conference with the time required to review the pretrial memoranda in each case and other pertinent documents in the court's file. Subdivision (b) of the Rule provides an opportunity for the court and counsel to dispense with the pretrial conference in an appropriate situation. If counsel believes that a conference is not required, this may be indicated in the pretrial memorandum under Paragraph (a)(3)(A) of the Rule. In such event, counsel must file with the pretrial memoranda a proposed joint Pre-trial Order for review by the court. The preparation of the proposed joint Pretrial Order will require the agreement of counsel. Its drafting will, in almost all cases, require very detailed discussions about the case among counsel. The Order must respond to all the subjects listed in Paragraph (c)(2) of the Rule and should follow the format of the "Report of Pretrial Conference and Order" recommended by the Supreme Judicial Court as an appendix to its Administrative Order. If such submission is made, it is for the pretrial justice to determine, after review of the Pretrial Memoranda and the proposed joint Pretrial Order, if Pretrial Conference may be dispensed with. If the justice finds that the proposed Pretrial Order is unacceptable, he will order that a Pretrial Conference be held. If the justice finds that the proposed Pretrial Order adequately covers the subjects listed

in Paragraph (c)(2) of the Rule and that there is no further action necessary to prepare the case for trial, he may sign the proposed joint Pretrial Order and cause it to be docketed. The case will then go on the appropriate trial list in accordance with his instructions in the Pretrial Order. Counsel should be aware that the mechanism provided by subdivision (b) of the Rule is not intended to be a source of easy escape from the requirement of a meaningful pretrial conference. In order for the pretrial conference to be dispensed with, the justice must be completely satisified that all the requirements of Rule 16 have been fully complied with and that there remains nothing further to be done in order to place the case in a trial posture in compliance with the Rules. This is not an "automatic" or "routine" procedure. Counsel can expect that the justice will make a discrete judgment as to whether the case is fully prepared for trial. The burden of satisfying the court on this particular rests fully with counsel. Hence, full preparation of the case, detailed compliance with the Rule's requirements and complete cooperation among counsel will be required if counsel expects to achieve the goal of having the pretrial conference dispensed with by the pretrial justice. 5. Scheduling of Pretrial Conference. One purpose of the revision accomplished by this Rule is to expedite the assignment of cases for pretrial conference and trial as soon as any party files pretrial memorandum. On filing of such a memorandum by any party, other parties are required to file a responsive pretrial memorandum within twenty days. Under Section. (c)(1) the clerk is to assign the case at the earliest possible opportunity after the expiration of a thirty day period following the period following the first filing of a pretrial memorandum. 6. Matters to Be Considered at Pretrial Conference. Section (c)(2) of the Rule sets forth a rather detailed listing of seventeen subject matters to be discussed at the pretrial conference. It is imperative that counsel come to every pretrial conference prepared to put forth his party's position with respect to each of these subject matters. The court is, under the Rule, entitled to expect counsel to be fully prepared to discuss all of these subjects at pretrial conference in a definitive and meaningful manner. Failure to be prepared for such discussions may result in the imposition of sanctions. Finally, at the conclusion of the pretrial conference, the court may direct counsel to prepare and submit to the court for approval a proposed Pretrial Order. It is anticipated that the preparation of a proposed Pretrial Order will, in most cases, require the full collaboration of all counsel in the case, in the interest of promptly submitting an appropriate proposed Pretrial Order which is satisfactory to the court. The filing of the Pretrial Order is to be entered on the

docket. The Supreme Judicial Court's recommended form for the "Report of Pretrial Conference and Order" specifically directs the appropriate docket entry to be made. Such a direction, appropriate to circumstances of the case, should be set forth in every Pretrial Order. 7. Effect of Pretrial Order. One of the most significant changes in pretrial procedure under the revised Rule is that accomplished by Section (c)(3) which provides that the Pretrial Order, once entered, ". . . [C]ontrols the subsequent course of the action unless modified at the trial to prevent manifest injustice." It is intended that this provision will be interpreted by the court to make the Pretrial Order the definitive document in determining the future course of the case at trial, unless modified for good cause. Counsel should understand that the Pretrial Order will supersede the pleadings for purposes of definition of issues and recording the contentions of the respective parties. Counsel should appreciate that failure to include any significant matter in the Pretrial Order may well result in the waiver at trial of significant issues. It is important that counsel review the Pretrial Order when it is entered by the court since it becomes final unless counsel files objections to the contents of the Order within ten days of the date on which the Pretrial Order is mailed to counsel. 8. Attendance of Trial Counsel at Pretrial Conference. Section (c)(4) of the Rule is intended to secure the attendance at pretrial conference of the counsel who will actually try the case, wherever that is reasonably possible. Counsel are required to be fully prepared for purposes of pretrial conference to discuss all aspects of. the case. Where there is good reason why trial counsel cannot be present at pretrial conference, application may be submitted to the court for substitute counsel to appear at pretrial conference. The application must, however, contain an express representation that such substitute counsel will be thoroughly familiar with the rule and the case to be pretried and that he will be fully authorized to act at pretrial conference in all respects. It is anticipated that the court will no longer tolerate the situation where substitute counsel appears at pretrial conference without sufficient knowledge of the case and without authorization to act at pretrial conference. Under this section of the rule the court is entitled to presume that the counsel who appears at pretrial conference will be present as trial counsel at the time of the trial. If, in the period following pretrial conference, pretrial counsel discovers that it is necessary for other counsel to act as trial counsel, that fact should be brought promptly to the attention of the court and the approval of the court obtained.

9. Settlement. Section (c)(4) requires that counsel come to pretrial conference fully authorized with respect to settlement. Section (c)(5) imposes upon the court the duty to explore settlement negotiations to the date of the conference between the parties and to attempt to assist the parties in reaching a fair disposition of the case by settlement. Counsel is required, on the other hand, to be in a position to make a representation at pretrial conference that he has made a recommendation to his client in respect to settlement and that the client has acted on such recommendation. This requirement makes it mandatory that counsel evaluate cases prior to attendance at pretrial conference. Delaying the evaluation process until the eve of trial is no longer possible. Counsel can expect that if it is not in a position to make the representation required by this section of the rule, sanctions will be imposed, absent good cause for such failure. It is the intention of this provision to assure that, in most cases, meaningful and substantial discussions on the subject of settlement of the case take place at pretrial conference and immediately thereafter. Counsel, under the rule, has the obligation to discuss settlement in good faith and in a constructive manner. This requirement is not to be taken lightly. 10. Sanctions. Subdivision (d) is intended to make explicit the authority of the pretrial justice to impose sanctions upon any party or attorney where the requirements of this Rule have not been adequately observed. The content of the Administrative Order in respect to pretrial procedures makes it clear that the Supreme Judicial Court is prepared to stand behind the actions of the pretrial justice in imposing such sanctions where such action is appropriate. Counsel should anticipate that sanctions will be used liberally "after a brief period of adjustment" to bring about full and meaningful compliance with the requirements of this Rule in respect to pretrial procedures. Of special significance is that provision of subdivision (d) which gives the court discretionary authority to impose sanctions directly upon counsel and to prohibit the counsel from passing such sanctions on to the client. The purpose of this provision is to promote the responsibility of counsel with respect to pretrial requirements by requiring counsel to bear the burden of an appropriate sanction where failure to comply with pretrial requirements is caused solely by the conduct of counsel. It is to be anticipated that, with the passage of time, the court will develop a full panoply of sanctions appropriate to discourage particular types of noncompliance with this Rule. Counsel should bear in mind that sanctions, as contemplated by the rule do not consist entirely of imposition of monetary sanctions. The court may in appropriate circumstances, impose sanctions which

substantially affect the interests and positions of noncomplying parties in the specific litigation in question. As previously pointed out, these include the enforcement of waivers of important matters at trial, the exclusion of evidence, the entry of judgment by default and the involuntary dismissal of the action. Hence, failure to comply with pretrial requirements has the potential to substantially affect the rights of litigants in a specific case.


Rule 16 is amended to require the pre-trial memoranda to state the intention of a party to offer a learned treatise as substantive evidence. The amendment was recommended by the Evidence Advisory Committee. Evidence Rule 803 (18) provides as an exception to the hearsay rule for the use of statements of learned treatises to the extent they are called to the attention of an expert witness upon cross-examination. If a treatise is established as authoritative, it may then be admitted as substantive evidence. For the purpose of preventing the expert from being unfairly surprised, this amendment calls for the identification of the treatise and the part thereof to be offered and specification of the matter intended to be proved.


These amendments implement the simultaneous amendment of Rule 38, requiring that a party wishing trial by jury make demand therefor in his pre-trial memorandum. See Advisory Committee's Notes to that rule and to Rule 39. A warning of the necessity of filing a jury demand even when a pre-trial memorandum is excused is specifically added to subdivision (a)(1). When the party is filing a pre-trial memorandum, the check-list of subdivision (a)(3)(xii) reminds him of the necessity of making a jury demand.


The substantial amendments of Rule 16, while preserving the substance of the pre-trial memoranda and the pre-trial conference make extensive changes in the scheduling and other mechanics of pre-trial procedure. The shortcomings of the existing Rule 16 and pre-trial practice under it, which have become increasingly apparent, were emphasized in an article written by Justice Thomas E. Delahanty in

the January 1973, issue of the Maine Bar Bulletin. Suggesting that "it may now be time to reappraise pre-trial practice," he made specific proposals for reform. Rule 16 as originally promulgated in 1959 made the holding of a pre-trial conference entirely discretionary with the court and in brief terms specified the matters to be considered at the pre-trial conference and the nature of the pre-trial order resulting therefrom, if a pre-trial conference was held. After a minor amendment in 1962 there was a total revision of the rule effective December 31, 1967. See "History of Rule", Field, McKusick & Wroth, 1 Maine Civil Practice 312-13 (1970). Enough experience has accumulated in the intervening five and a half years to call for substantial revision. There is much that remains unchanged in revised Rule 16. The contents of pre-trial memoranda previously set forth in Rule 16(a) are substantially unchanged in the revised Rule 16(a)(3), (4). The itemization of the matters to be considered at the pre-trial conference is in revised Rule 16(c)(2) preserved in the same form in which it was originally adapted in 1959 from Federal Rule 16. Also the requirements for representation by counsel and for the contents of the pre-trial order, as well as the provision of sanctions, are retained substantially unchanged. The principal changes worked in Rule 16 by this revision are the following: 1. The time for filing pre-trial memoranda and the scheduling of pre-trial conferences, which were previously tied in with terms of court, no longer will have any direct relation-ship to court terms. By virtue of a 1969 amendment of 4 M.R.S.A. § 110 the times for holding civil terms of the Superior Court in each county are established by the Chief Justice of the Supreme Judicial Court. It has been demonstrated in practice that to tie the timing of pre-trial procedure to the time of holding court sessions produces an undesirable inflexibility. It is still left to the parties to initiate the pre-trial procedure. One or other of them presumably will have incentive to do so, since as declared in Rule 16(a)(1) the filing of the pre-trial memoranda is the only way (other than by court order) to cause an action to be moved forward to be in order for trial. The time period leading up to the pre-trial conference runs from the filing of a pre-trial memorandum by either party. Within 14 days after the first party files a pre-trial memorandum the opposing party must file a responding pre-trial memorandum. Under Rule 16(c)(1) the clerk shall under the court's direction schedule the pre-trial conference (whether or not the responding memorandum is filed) as soon as

possible after a period of 21 days following the filing of the first pre-trial memorandum has expired. 2. In revised Rule 16(a)(2), and in a simultaneous amendment of Rule 40(a), simple clear-cut procedures are prescribed for the clerks in all sixteen counties to follow in maintaining a Pre-Trial List and two Trial Lists, one for jury cases and the other for non-jury cases. These lists are maintained under the court's direction in all respects. The clerk will automatically enter upon the Pre-Trial List any action at the time any party files a pre-trial memorandum therein. At the same time the clerk will make a notation on the Pre-Trial List of the date when the first pre-trial memorandum was filed. Thus in every county there will always be available a constantly maintained list from which the Superior Court Justice who schedules pre-trial conferences can readily determine which cases will be in order to be pre-tried on the date when a judge is available to hold pre-trial conferences. In other words, if that date comes more than 21 days after an action went on the Pre-Trial List that action can be scheduled for a pre-trial conference. 3. Although no pre-trial memorandum may be filed (and therefore the pre-trial procedure may not be commenced) until the last responsive pleading has been served or the time therefor has elapsed, the present revision eliminates the following sentence inserted in 1967: "No conference shall be held, except by agreement or unless otherwise ordered, while there are pending any discovery proceedings notice of which has been filed with the clerk.” Justice Delahanty reports the mischief produced by the all-too-common practice of not answering interrogatories or pursuing other discovery until the notice of the pre-trial conference stirs counsel into action. Maine Bar Bulletin, January, 1973, pp. 25-26. Obviously such delays cannot be eliminated by any rules amendment; only firm action by the judges holding pre-trial conferences can dissuade counsel from using those tactics. However, the elimination of the above-quoted sentence does put the burden of persuasion on any attorney seeking continuance of the pre-trial conference in order to permit additional discovery. 4. References in the 1967 rule to joint pre-trial memoranda have been eliminated. In practice such memoranda are very rare. If the parties still wish to file a joint pre-trial memoranda they clearly may do so and by stipulation they may waive the 21-day waiting period for the pre-trial conference and request a more prompt conference from the court. 5. Complete control of the transfer of cases from the Pre-Trial List to the appropriate Trial List maintained under Rule 40(a) is vested in the Superior Court

Justices. See revised Rule 16(b) and 16(c)(4). Although the clerk automatically puts the case on the Pre-Trial List when a pre-trial memorandum is filed, every step thereafter is taken only at the specific direction of a judge. That includes the scheduling of pre-trial conferences on the basis of the information shown on the Pre-Trial List, and the transfer of cases from the Pre-Trial List to either the Jury or the Nonjury Trial List. 6. Present Rule 16(d) provides for "excepted actions" in which a pre-trial conference would not be required. Such actions included those where both parties waived pre-trial, as well as a number of actions in which the pre-trial procedure was deemed unnecessary. The "excepted action" provision has been eliminated, Pre-trial memoranda will be required in all cases (see revised Rule 16(a)(1)) and, except in those cases where the court concludes that the pre-trial memoranda will suffice for the efficient conduct of the trial, a pre-trial conference will also be held in all cases. Of course while the rule no longer expressly permits the waiver of pre-trial conference by the parties, it will be open to them to move the court to dispense with the pre-trial conference on the basis of the pre-trial memoranda. This substantial revision of Rule 16 is made in recognition of the great benefits that result from pre-trial memoranda and conferences wherever both court and counsel work at realizing those benefits.

Advisory Committee’s Note October 1, 1970

In a continuing attempt to make pre-trial conferences an effective device, two amendments are made to Rule 16. First, Rule 16(b) is amended to permit either party to require the holding of a pre-trial conference, even though the court believes that the pre-trial memoranda will suffice for the efficient conduct of the trial and also even though the action is one excepted by Rule 16(d) from. the pretrial requirement. In the second place, Rule 16(e) is amended to make clear that it is within the power of the court to impose penalties and sanctions upon the attorney of a party who fails to comply with the requirements of the pre-trial rule or any order made thereunder. Although it would appear that the existing rule could have been interpreted to permit the imposition of costs upon the delinquent attorney, the courts have uniformly been reluctant to take action against the attorney, and at the same time have in many cases believed that the party should not suffer because of the delinquency of his attorney.

Advisory Committee’s Note (Dec. 31, 1967)

Rule 16 has been completely revised in order to resolve many of the

problems which have arisen with regard to the pre-trial conference since promulgation of the rules in 1959. Although the original rule spoke in the discretionary language of Federal Rule 16, and the draftsmen apparently intended a flexible practice (see Field and McKusick, Maine Civil Practice, Reporter’s Note to Rule 16; § 16.1), the justices of the Superior Court in a policy statement dated December 1, 1959, made the pre-trial conference mandatory in virtually every case. Dissatisfaction on the part of both bench and bar in the last two years has resulted in a number of suggestions for improvement from the bar and considerable experimentation by individual justices. In drafting the new rule the Committee has had the benefit of the report of a committee of the Maine State Bar Association presented at the annual meeting in August 1966 (55 Rep.Maine Bar Assn. 115–123 (1966)), and of experience with the various experimental procedures developed by the justices. An earlier draft, substantially similar to the new rule, was approved by the Conference of Superior Court Justices at a meeting on February 11, 1967. The new rule contains two basic departures from previous practice: (1) Unless the court otherwise orders, any case in which the parties agree to waive pre-trial, or which is one of a list of specified actions, may be set for trial on request of a party without a pre-trial conference; and (2) in any other action, to move the case to trial the parties must file either separate pre-trial memoranda or a joint memorandum, on the basis of which the trial judge may either dispense with a conference or order the parties to appear for a conference. These changes are intended to make the pre-trial conference more effective in what the Committee conceives to be its primary role in Maine practice—simplifying and guiding preparation for trial and trial itself. Subdivision (a) establishes the basic requirement of the memorandum. A party who wishes to move to trial an action not excepted by waiver or otherwise under subdivision (d) must either file a pre-trial memorandum 21 days prior to the start of the term at which he wishes trial or obtain the agreement of the opposing party to file a joint memorandum 10 days before the term begins. The 21-day period is necessary in the case of a separate memorandum to provide time for the opposing party to file a responsive memorandum, which he must do at least 10 days prior to the start of the term.

The contents of the memorandum are itemized in the rule. The items are in general those which have been required in experiments carried out in the last two years by individual justices. They also include most of the requirements of local Rule 17(b) of the United States District Court for the District of Maine. In filing his responsive memorandum, the opposing party may adopt all or part of the original memorandum, but must set forth in detail any new matter which he presents. The memoranda have a twofold purpose: (1) They will simplify the conference by insuring preparation in advance and by advising parties and the court of the principal matters to be raised; and (2) they will give the court a basis for determining under subdivision (b) that no purpose would be served by a conference. Subdivision (b) provides that the court, on reviewing the memoranda or joint memorandum, may dispense with the conference if the memoranda will serve “for the efficient con-duct of the trial.” The court has the further discretion to order that the memoranda or joint memorandum shall control the course of the litigation as a pre-trial order under subdivision (c). Presumably, this latter discretion will be exercised only in a case where the memoranda are in accord as to the issues and such other elements of an order on which agreement is necessary. Even where the memoranda do not have the force of an order, however, they should serve informally to assist court and counsel to shape the trial. Several of the Superior Court justices have experimented with the practice of review embodied in subdivision (b) and have found that it could be conducted effectively in the 24 hours prior to the start of the term. In view of the reduced number of cases subject to pre-trial, it should be possible in all counties to adjust the schedule so that the justice who is to hold a trial term may review the memoranda either on the first day of the term or at some time prior thereto. Under subdivision (c), if the court has not dispensed with pre-trial, it is to order the parties to appear for a conference. As a practical matter, the clerks, after the 10-day deadline for filing has passed, should follow present practice and schedule conferences in all cases where memoranda have been filed. In a case in which the court dispenses with the conference under subdivision (b), the clerk should immediately notify counsel by the most expeditious means that the scheduled conference is cancelled as unnecessary. The items to be considered at the conference are those contained in present Rule 16 with several provisions added. Provisions of local Federal Rule 17(c), requiring

that, unless excused, trial counsel attend the conference and be prepared on the case and fully authorized with respect to settlement, have been adopted verbatim. The new rule also provides that no conference shall be held while discovery proceedings are pending unless the parties agree or the court so orders. The court’s power to order a conference despite the pendency of discovery should prevent abuse of a provision which seems necessary for the most fruitful results of the conference. Finally, the rule permits the court even after the conference to use the memoranda as the basis of its order; otherwise the form and effect of the order are as under present Rule 16. Subdivision (d) lists the actions excepted from the requirement of a pre-trial memorandum and conference. Collection cases, property damage cases, and condemnation proceedings have been excepted because the issues in such actions are ordinarily of such a routine nature that no formal conference procedure is necessary to guide the course of the trial. A study of the files of the Superior Court for Cumberland County for the period, January 1, 1965, to June 30, 1966, bears out this conclusion. In property damage cases during the period, pre-trial orders were issued in only 34.5% of the cases in which conferences were held, while in collection cases the percentage was only 37%. By contrast, the percentage for personal injury cases was 61.2% and for ordinary contract damage cases, 47%, suggesting the much greater utility of the conference in the latter two types of cases. (The number of condemnation cases during the period was insignificant.) The same study indicates that elimination of these three classes of cases will effect a 25% reduction in the present pre-trial conference load. Nonjury cases have also been excepted on the theory that in the more flexible circumstances of a court trial, the court can arrange whatever preliminary discussions are necessary without the formality of a conference. Eliminating all jury-waived cases would lead to an additional 20% reduction in the pre-trial calendar according to the foregoing survey. Finally, to provide ultimate flexibility, the parties may waive the entire pre-trial procedure by agreement. It is obvious that in some of the arbitrarily excepted actions there will be issues which should properly he pre-tried. Subdivision (d) provides that the court may order a pre-trial in such an action if “unusual factual or legal issues are involved.” Thus, if either party objects to the elimination of pre-trial in an action, or if the court finds that the case is not as simple as the parties have represented, the court has discretionary power to order memoranda and set a conference, modifying the rule’s time periods and other requirements as circumstances dictate. This practice should be followed only in an exceptional case, in order not to defeat the basic salutary purpose of subdivision (d).

Subdivision (e), providing sanctions for noncompliance with any provision of the rule or orders made under it, is based on local Rule 17(f) of the United States District Court for the District of Maine. It is much stronger than the sanctions added to the rule in 1962, applying only to nonappearance.


The purpose of this amendment was to make clear the court’s inherent

authority to dismiss or default a case for failure to obey an order to appear for pre-trial. The court is expressly given the powers of dismissal and default under Rules 41(b) (2) and 55(b), but only on the written motion or application of opposing counsel. The amendment avoids putting opposing counsel to the possible embarrassment of making such a motion or application.

Such dismissal is with prejudice unless otherwise stated in the order. See Rule 41(b) (3). The only relief available to a party in such circumstances is that provided by Rule 60(b).


This rule is substantially the same as Federal Rule 16. Use of the pre-trial conference is made discretionary, and it is to be expected that there would be experimentation in its use, with the practice varying from county to county.

RULE 16A. PRETRIAL PROCEDURE IN THE DISTRICT COURT (a) Orders Prior to Trial. In any action in the District Court, the court may issue a scheduling order, trial management order, or other order directing the future course of the action. The court may issue standard orders, in a form approved by the Chief Judge of the District Court, directing the future course of the action without the signature of a judge, and when so issued such orders are binding on the parties. (b) Conferences. The court may also schedule a conference, issue a pretrial order or, in its discretion, direct the attorneys for the parties and/or the parties to appear before it for a conference to address: (1) The simplification of the issues; (2) The necessity or desirability of amendments to the pleadings; (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; (4) The limitation of the number of expert witnesses; and (5) Such other matters as may aid in the disposition of the action.

The court may, in its discretion, permit attendance at the conference by telephone or video conferencing. (c) Orders after Conference. If a conference is held, the court shall make an order which recites the action taken at the conference and such order, when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish a calendar on which actions may be placed for consideration as above provided. (d) Sanctions. If a party fails to comply with the requirements of this rule, to attend a conference held under this rule, or to comply with any order made hereunder, the court shall impose on the party or the party's attorney, or both, such sanctions as the circumstances warrant, which may include the dismissal of the action or any part thereof with or without prejudice, the default of a party, the exclusion of evidence at the trial, and the imposition of costs, including attorney fees and travel. The court may expressly order, where appropriate in its

discretion, that the costs of such sanctions be borne by counsel and that they shall not be passed on to counsel's client.

Advisory Note April 2, 2007

The District Court needs more options to manage its dockets, including self-executing tools such as scheduling orders. Rule 16A is expanded to provide some of those options. It is also separated into several subdivisions to improve readability. The current rule limits pretrial conferences to attorneys. The suggested amendment updates the rule to reflect that many self represented parties may be required to attend pretrial conferences. Also, the rule expressly authorizes standard orders, in a form approved by the Chief Judge of the District Court, to be issued without being signed by a judge. Requiring an individual judge to sign every order issued under this rule would be unduly burdensome. Finally, the rule is amended to make clear that sanctions for non-compliance apply to all orders issued under the rule, not just pretrial conferences and orders.

Advisory Notes 2004

Rule 16A is amended to state the court’s authority to utilize video and telephone conferencing options.

RULE 16B. ALTERNATIVE DISPUTE RESOLUTION This rule is applicable to cases filed in the Superior Court and cases removed to the Superior Court from the District Court, (a) Applicability. All parties to any civil action filed in or removed to the Superior Court, except actions exempt in accordance with subsection (b) of this rule, shall, within 60 days of the date of the Rule 16(a) scheduling order, schedule an alternative dispute resolution conference which conference shall be held and completed within 120 days of the date of the Rule 16(a) scheduling order. By agreement of all parties, reported to the court in writing within 120 days of the date of the Rule 16(a) scheduling order, the time for the completion of the alternative dispute resolution conference shall be extended for a period not to exceed 180 days from the date of the Rule 16(a) scheduling order. (b) Exemptions. The following categories of cases are exempt from the requirements of this rule:

(1) Actions under Rule 80D, 80L, and Chapter XIII; (2) Appeals under Rule 80B or Rule 80C; (3) Appeals under 36 M.R.S.A. § 151; (4) Actions for recovery of personal injury damages where the plaintiff requests exemption and certifies that the likely recovery of damages will not exceed $30,000. (5) Actions where the parties have participated in statutory prelitigation screening or dispute resolution processes including medical malpractice and Maine Human Rights Act cases; (6) Actions where the parties certify that they have engaged in formal alternative dispute resolution before a neutral third party. The certification shall state the name of the neutral and the date(s) on which formal alternative dispute resolution conferences occurred; (7) Actions for nonpayment of notes in mortgage foreclosures and other secured transactions; (8) Actions by or against prisoners in state, federal or local facilities; and (9) Actions exempted by the court on motion by a party and for good cause shown but only where the motion seeking exemption is filed within 30 days of the date of the Rule 16(a) scheduling order.

(c) Motions and Discovery. Motions and discovery practice shall proceed in accordance with these rules while an alternative dispute resolution process is being scheduled and held. (d) Neutral Selection and Conference Scheduling. (1) Promptly after the filing of an answer in the Superior Court or removal from the District Court, the parties shall confer and select an alternate dispute resolution process (that is, mediation, early neutral evaluation, or nonbinding arbitration) and a neutral third party to conduct the process. If the parties cannot agree on the ADR process, they shall proceed to mediation. If the parties cannot agree on the selection of a neutral, they shall notify the court, which shall designate a neutral third party, with experience appropriate to the nature of the case, from the appropriate roster of court neutrals developed by CADRES; (2) Unless the court orders or the parties otherwise agree, fees and expenses for the neutral shall be apportioned and paid in equal shares by each party, due and payable according to fee arrangements worked out directly by the parties and the neutral. Fees and expenses paid to the neutral shall be allowed and taxed as costs in accordance with Rule 54(f). If any party is unable to pay its share of the fees and expenses of the neutral, that party may apply for in forma pauperis status pursuant to Rule 91. If granted, the court may allocate the fee among those parties who are not in forma pauperis or ask the selected neutral to undertake the conference on a reduced fee basis. Failing the consent of the selected neutral to the reduced fee, the court will designate an alternate neutral from the roster developed by CADRES who will agree to undertake the assignment on a reduced fee basis or pro bono. (3) Once the neutral is selected or designated, the parties shall agree with the neutral on a time and place for the conference. The plaintiff shall notify the court of the name of the neutral and the time and place for the conference no later than 60 days after the date of the Rule 16(a) scheduling order. The conference must be held and completed no later than 120 days after the date of the Rule 16(a) scheduling order. (e) Conference Issues. At the alternative dispute resolution conference, the only required function is to conduct the ADR process selected by the parties. If at the conclusion of that process and, after a serious effort by the parties, agreement is not reached on all issues, then the neutral may proceed to a case management discussion with the parties to try to reach agreement on the following:

(i) identification, clarification and limitation of remaining issues; (ii) stipulations; and (iii) discovery-related issues; The neutral should not address case management issues in cases that are specially assigned or subject to single judge management, except with the approval of the assigned judge. When case management issues are addressed, the neutral may not extend deadlines or otherwise modify directives in the scheduling order set pursuant to M.R. Civ. P. 16(a). An ADR conference need not be reconvened if, after an initial session, the only remaining issues are case management issues. (f) Conference Attendees. (1) Conference attendees shall include: (i) Individual parties;

(ii) A management employee or officer of a corporate party, with appropriate settlement authority, whose interests are not entirely represented by an insurance company; (iii) A designated representative of a government agency party whose interests are not entirely represented by an insurance company; (iv) An adjuster for any insurance company providing coverage potentially applicable to the case, provided that the adjuster participate in the conference with appropriate settlement authority; (v) Counsel for all parties; and (vi) Nonparties whose participation is essential to settlement discussions—including lienholders—may be requested to attend the conference.

(2) The court may impose appropriate sanctions on any party or representative required and notified to appear at a conference who fails to attend. (3) Attendance shall be in person, or in the discretion of the neutral, for good cause shown, by telephone or video conference. (g) Conference Documents. If requested by the neutral, five days prior to the conference, the plaintiff shall provide to the neutral: -The complaint; -The answer or other responsive pleading; -Any pretrial scheduling statement;

-Any pretrial order that may have issued; and -Any dispositive motions and memoranda that have been filed in connection with those motions.

(h) Conference Report and Order. (1) Settlement. If the conference results in a settlement, the parties shall, within 10 days after the conference, report that fact to the court and include a proposed order concerning the settlement. The court shall order the appropriate entry to be made on the docket. (2) Neutral Report. If the conference does not result in a settlement, the neutral shall, within 10 days after the conference, file with the court a report and, if appropriate, a proposed order which indicates any agreements of the parties on matters such as stipulations, identification and limitation of issues to be tried, discovery matters and further alternative dispute resolution efforts. If there are no agreements of the parties, the report shall so indicate. If the neutral does not file the report, the parties shall prepare and file the report indicating their points of agreement and disagreement. The parties shall be equally responsible for assuring that the neutral’s report is filed in a timely manner and may be subject to appropriate sanctions if filing of the report is filed later than 130 days after the date of the Rule 16(a) scheduling order. (i) Jury Fee. For cases required to have an alternative dispute resolution conference in accordance with this rule, payment of the civil jury fee required by Rule 38(b) or Rule 76C, shall be deferred until 210 days after the date of the Rule 16(a) scheduling order. Cases required to have an alternative dispute resolution conference in accordance with this rule but subsequently exempted from this rule by court order pursuant to Rule 16B(b) shall pay the jury fee: (A) when exemption is being requested pursuant to M.R. Civ. P. 16B(b)(4), or (B) within 14 days of exemption being ordered by the court pursuant to Rule 16B(b)(9) or any other provision of these rules. If the jury fee is not paid within the time required, any right to jury trial shall be deemed waived and the case shall be scheduled on the nonjury list for trial. (j) Standards for Alternative Dispute Resolution. No agreement or order to enter into alternative dispute resolution pursuant to this rule may be entered or issued without consideration being given to the needs of indigent or unrepresented parties or parties in situations where there is a potential for violence, abuse, or intimidation.

(k) Confidentiality. A neutral who conducts an alternative dispute resolution conference pursuant to this rule, or an alternative dispute resolution process pursuant to subsection (b)(6), shall not, without the informed written consent of the parties, disclose the outcome or disclose any conduct, statements, or other information acquired at or in connection with the ADR conference. A neutral does not breach confidentiality by making such a disclosure if the disclosure is: (i) necessary in the course of conducting the dispute resolution conference and reporting its result to the Court as required in (h)(2); (ii) information concerning the abuse or neglect of any protected person; (iii) information concerning the intention of one of the parties to commit a crime, or the information necessary to prevent the crime or to avoid subjecting others to the risk of imminent physical harm; or (iv) as otherwise required by statute or court order. (l) Sanctions. If a party or a party’s lawyer fails without good cause to appear at a dispute resolution conference scheduled pursuant to this rule, or fails to comply with any other requirement of this rule or any order made thereunder, the court may, upon motion of a party or its own motion, order the parties to submit to alternative dispute resolution, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances. In lieu of or in addition to any other sanction, the court shall require the party or lawyer, or both, to pay the reasonable expenses, including attorney fees, of the opposing party, and any fees and expenses of a neutral, incurred by reason of the nonappearance, unless the judge finds an award would be unjust in the circumstances.


Rule 16B(b)(1), addressing exemptions from the Rule 16B ADR processes is amended to recognize that Rule 80 is abrogated [effective January 1, 2009] and to cite to Chapter XIII of these Rules that now governs most Family Division and domestic relations actions.

Advisory Committee Note December 2007

M.R. Civ. P. 16B(f)(3) is amended to permit the neutral to approve participation by telephone or video conference but only where good cause is shown

for not participating in person. Mediation works best when the parties and persons with appropriate settlement authority are present and actively engaged in the process and, therefore, remote participation should be discouraged.


Rule 16B is amended in an effort to make alternative dispute resolution more flexible. Much experience has been gained since the Supreme Judicial Court first promulgated Rule 16B in 2002. On the whole, the program has been very successful in creating settlements in cases that otherwise might have persisted in the process before ultimately settling, as the large majority of cases do. However, many cases may not be ready for ADR when first filed. More time may be required to gather the information the parties need to evaluate their cases. The amendments are intended to provide more flexibility in scheduling mediations. On occasion, parties agree that a case is not ready for productive ADR and may need additional time to prepare the case. Rule 16B(a) is amended to permit the parties to agree to an automatic extension of the ADR process not to exceed an additional 60 days. To obtain the extension, the parties notify the court by letter or by a filing recording their agreement to the extension. To assist the ADR process and to control costs, subdivision (i) and the form scheduling order are amended to provide that the time for paying the jury fee is extended to 210 days in all cases.

Advisory Notes 2004

Rule 16B is amended to state the court’s or a neutral’s discretion to order parties to appear by video and telephone conferencing options.

Advisory Committee’s Note May 16, 2001

The first sentence of Rule 16B is added to clarify the effective date of the court-connected ADR rule to indicate that it applies only to cases in the Superior Court when the original date for filing the complaint is on or after January 1, 2002. Accordingly, the rule would not apply to cases filed in the District Court before January 1, 2002 but removed to the Superior Court after that date, and it would not apply to cases already pending in Superior Court on January 1, 2002. The original

filing date, whether in District Court or Superior Court, becomes the critical date for determining applicability of the rule to a particular case.

Rule 16B, subdivision (i), is amended, because under current practice, a party demanding a jury trial pursuant to Rule 38 or removing a case for jury trial pursuant to Rule 76C must pay the jury fee promptly. Cases which proceed through the court-connected ADR process are exempt from the jury fee payment requirement until 150 days after the date of the Rule 16(a) scheduling order. Those cases which are authorized to automatically request and receive exemption from the ADR requirements by Rule 16B(b)(4) or which receive a court order exempting them from the ADR requirements pursuant to Rule 16B(b)(9) or any other provision of these rules, become subject to the normal jury fee payment requirements. The jury fee must be paid with the filing of the automatic exemption request pursuant to Rule 16(b)(4). For other cases receiving exemptions, the jury fee must be paid within 14 days of the exemption being ordered by the court. If the jury fee is not paid as required, the parties shall be deemed to have waived their right to jury trial. A case removed from District Court pursuant to Rule 76C which then waives its jury trial right by default in the required payment of the jury fee would be remanded to the District Court for further proceedings.

Advisory Committee’s Notes February 8, 2001

Subsection 2 amends the rules to adopt a new Rule 16B generally covering the ADR processes. Subsection (a) directs all parties to civil actions either filed in the Superior Court or removed from the District Court to the Superior Court, except exempt actions, (i) to schedule an ADR conference within either 60 days of the date of the Rule 16(a) scheduling order; and (ii) to hold that ADR conference within 120 days of the same date. The time limits in Rule 16B(a) are subject to M.R. Civ. P. 6(b) which allows the court to enlarge a time limit “for cause shown.” See also M.R. Civ. P. 16(a) (allowing scheduling order modification “for good cause shown”). Subsection (b) exempts from the ADR requirements: 1. Divorce, Forcible Entry and Detainer, [Civil Violations,] and Small

Claims Actions.

2. 80B and 80C appeals. 3. State tax assessors appeals. Even though these actions are “de novo,”

36 M.R.S.A. § 151, in fact they have been through an extensive discussion process. Further, most of these matters that do get to Superior Court are resolved on stipulations or cross-motions for summary judgment. Considering that the Superior Court often does not get these actions until they have been in the administrative process for three or four years, an additional ADR component would not appear to be productive.

4. Actions for recovery of personal injury damages where the plaintiff

requests exemption and certifies that the likely recovery will not exceed $30,000. This exemption addresses the concern of many trial lawyers that adding an ADR process may unacceptably increase the cost of prosecuting cases where relatively small damages and fees may be recovered. The exemption must be initiated by the plaintiff who thus could choose ADR by not seeking exemption. The choice is limited to the plaintiff, as it is the plaintiff’s potential recovery and any resulting contingent fee that may be most impacted by ADR related cost increases.

The certification should be a good faith estimate by the plaintiff at the time it is filed that likely recovery will not exceed $30,000. However, this estimate does not preclude a plaintiff, at trial or in any other forum where plaintiff’s claim is addressed, from seeking and recovering more than $30,000.

5. Actions where parties have already participated in statutorily required

ADR or prelitigation screening processes such as medical malpractice and Maine Human Rights Acts cases. Cases where parties exempt themselves from the prelitigation screening process in medical malpractice cases or proceed based on a right to sue letter, without the dispute resolution processes of the Maine Human Rights Act, would be subject to the normal ADR processes.

6. Actions where the parties certify that, prior to the time for answer or

removal, they already engaged in a formal ADR process before a neutral third party. The certificate would be required to state the

name of the neutral and the date(s) on which the formal ADR process occurred.

7. Actions for non-payment of notes in mortgage foreclosures and other

secured transactions. 8. Actions by or against incarcerated persons. 9. Actions where a party demonstrates good cause to gain an exemption

from or a deferral of the ADR process. This reflects the choice that such exemptions should not be automatic if the parties agree but only subject to court approval based on “good cause.” For instance, the parties may persuade a court that “no ADR process is likely to deliver benefits to the parties sufficient to justify the resources consumed by its use.” ADR Local Rule 3-2 of the Northern District of California. Compare the experience with mediation in small claims actions. If ADR is an economic hardship to one of the parties and a pro bono neutral cannot be obtained, the Court should relieve the parties of this requirement. ADR, although highly desirable, should not be a barrier to court access. The rule requires that any such exemption motion be filed within 30 days of the date of the Rule 16(a) scheduling order to assure that such exemptions are seriously considered and don’t become a dilatory tactic for people that are late in getting around to selecting a neutral and scheduling an ADR conference.

An exemption under 16B(b) is to be distinguished from a time limit extension which may be sought pursuant to M.R. Civ. P. 6(b) or 16(a).

Subsection (c) indicates that discovery and motion practice will proceed unaffected by the ADR process. Presumably, if the parties agree, scheduling adjustments can be made as contemplated in M.R. Civ. P. 6(b) and 16(a). Subsection (d)(1) requires the parties to confer promptly after answer or removal to select an ADR process and a neutral to conduct the process. If the parties cannot agree on the process, mediation will be the process. If the parties cannot agree on a neutral, the court will select a neutral with experience appropriate to the nature of the case from the appropriate roster developed by CADRES.

Subsection (d)(2) provides that costs for the neutral will, initially, be shared equally by the parties—e.g., if there is one plaintiff and two defendants, each party will pay one-third. The neutral will be required to be paid in accordance with fee arrangements worked out directly between the neutral and the parties. Ultimately, these costs would be assessed in accordance with Rule 54(f). The court can order a different cost payment arrangement if, for instance, one of the parties sought in forma pauperis status pursuant to Rule 91. If the designated neutral does not consent to the revised fee arrangement, the court will designate an alternative neutral from the CADRES roster. Subsection (d)(3) relates to the parties agreeing with the neutral on the timing of the conference with responsibility then placed upon the plaintiff to notify the court of the name of the neutral and the time and place for the conference—this notification to occur no later than 60 days after the date of the Rule 16(a) scheduling order, with the conference to be held and completed no later than 120 days of the same date. Subsection (e) indicates that the primary function of the conference is to conduct the selected ADR process. The first priority is on efforts at settlement and means of exploring settlement. If settlement does not happen then case management issues may be discussed. There are three limitations on the neutral’s address of case management issues. First, the neutral will not address management issues in cases that are specially assigned or subject to single judge management. Second, the neutral cannot extend deadlines or otherwise modify directives in scheduling orders issued pursuant to M.R. Civ. P. 16(a). Third, a conference which adjourns after substantive claims in the case are addressed—as where one or both parties want some time to consider an offer or a proposed resolution—need not be reconvened if the only remaining issues to be addressed are case management issues. This avoids the delay and expense that would otherwise be required to reschedule, prepare for and attend a reconvened meeting. Subsection (f) addresses conference attendees. It follows recommendation of the ADR Planning and Implementation Committee with the addition of a new subparagraph (iii) addressing participation by a designated representative of a government agency. For many government agencies, no particular individual may have settlement authority. See State v. Town of Franklin, 489 A.2d 525 (Me. 1985). Subsection (f)(2) is a sanction section emphasizing that failure to attend may subject a party to sanctions.

Subsection (f)(3) provides that in the discretion of the neutral required attendees may participate by telephone. Some cases may not support requiring every attendee to be personally present or justify the expense of fully face to face conferences. Subsection (g) requires the plaintiff to provide copies of the listed documents to the neutral, but only if requested by the neutral. Subsection (h)(1) is very similar to practice under the pilot project, with the only change being the requirement that the parties submit to the court a proposed order concerning the settlement. The order may simply state that the parties have agreed to a dismissal of the action with (or without) prejudice. Subsection (h)(2) directs that, if there is no settlement, the neutral is to file a report within 10 days. In most cases it is anticipated that the report would be prepared at the end of the conference and filed shortly thereafter. Along with the report would be, if appropriate, a proposed order to implement the report. The report would indicate any matters on which the parties had reached agreement such as stipulations, identification and limitation of issues to be tried, discovery matters and any further alternative dispute resolution efforts. The report would also indicate if there were no agreements. The subparagraph also includes a sentence placing upon the parties, equally, the responsibility for assuring that the report is filed in a timely manner and subjecting them to appropriate sanctions if the report is unduly delayed. If the neutral does not file the report, or does not do so in a timely manner, the parties are to prepare and file a report indicating their points of agreement and disagreement. Although the report is due 10 days after the conference, the court will consider it delinquent 130 days after the date of the Rule 16(a) scheduling order. Subsection (i) defers payment of the jury fee for those cases to experience the ADR conference until 150 days after the date of the Rule 16(a) scheduling order. If the fee is not paid, the right to a jury trial is waived. Note that the rule does not include a specific rule reference for the jury fee. Subsection (j) is included to remind the court and neutrals that during ADR proceedings they must be alert to the particular needs of the poor, the unrepresented and those subject to violence, abuse or intimidation.

Subsection (k) imposes a duty of confidentiality upon all neutrals who act pursuant to the rule. Like the analogous provision of the Maine Code of Professional Responsibility, the rule prohibits, with certain exceptions, disclosure in any private or public context. Cf. M. Bar R. 3.6(h). The purpose of the rule is to encourage candid and complete discussions that will enable neutrals to achieve the goals of the process in which they are involved. The permitted disclosures are those necessary to the process itself, for project research, or for compliance with law, or that a neutral may make to disclose evidence of abuse or neglect of any protected person or to prevent future criminal conduct. It is anticipated that Rule 16(B)(k)(iv), authorizing a disclosure pursuant to court order, will be utilized only after the court finds that the need for disclosure substantially outweighs the importance of the state’s policy favoring the protection of confidentiality of settlement discussions such as the ADR conference. Subsection (l) provides a variety of sanctions that the court may impose on parties or counsel who fail to comply with the express terms of the rule and orders issued thereunder. Specifically, the rule focuses on appearance at the dispute resolution conference. Other matters subject to sanction are requirements of the rule pertaining to filings and other deadlines. There is no sanction for failure to participate appropriately in a conference or proceeding. Standards for determination of the appropriate level of participation would be difficult to articulate and apply, and enforcement would raise serious problems of confidentiality. The range of sanctions available under the rule is intended to give the court flexible power both to penalize noncompliance and to serve the interests of other parties and the court in bringing an action to a fair and just resolution. The rule expressly provides that payment of costs incurred may be awarded as a sanction, in addition to whatever procedural remedies may be appropriate.

IV. PARTIES

RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the State of Maine. An insurer who has paid all or part of a loss may sue in the name of the assured to whose rights it is subrogated. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. When in proceedings in the nature of quo warranto the title to office in a private corporation is involved, the action may be brought in the name of the interested party and the Attorney General need not be a party thereto. (b) Guardians and Other Representatives. Whenever a minor or incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. A minor or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person. In any action in which there are or may be defendants who have been served only by publication and who have not appeared, the court may appoint an agent, guardian ad litem, or next friend to represent them. (c) Subrogated Insurance Claims. No claim or counterclaim shall be asserted on behalf of an insurer in the name of the assured for damages resulting from alleged acts of negligence, claimed by right of subrogation or assignment, unless at least 10 days prior to asserting such claim the insurer gives notice in writing to the assured of its intention to do so. Such notice shall be served in the manner provided for service of summons in Rule 4 or by registered or certified

mail, return receipt requested, with instructions to deliver to addressee only. There shall be attached to the pleading asserting such subrogation claim a copy of the notice together with either the return of the person making the service or the return receipt. An assured or any party suing in an assured’s right who desires to assert a claim arising out of the same transaction or occurrence shall notify the insurer or its attorney in writing within 10 days after receipt of such notice.


Subdivision (b) is amended to substitute the term “minor” for the term “infant.”


In connection with the 1967 amendment of Rule 81(c) to abolish the extraordinary writs of certiorari, quo warranto and mandamus as procedural devices, the statutory provisions appearing in 14 M.R.S.A., Chaps. 603, 605 and 607 were repealed by the 1967 Pub. Laws, Chap. 441, § 7. Included among the repealed statutory provisions is one (14 M.R.S.A. § 5402) excusing the Attorney General from being a party in quo warranto proceedings involving the title to office in a private corporation. The substance of the repealed statute is incorporated into Rule 17(a). A new subdivision (c) is added to Rule 17 for the purpose of protecting the assured from loss of what may be a substantial claim for personal injury by application of the doctrine prohibiting splitting of causes of action. Frequently the insurance company, having wholly or partially reimbursed the assured for loss in a motor vehicle accident under the coverage of its collision policy, will sue the third party on the subrogated or assigned claim. Under Rule 17(a) the insurance company has an option of bringing such subrogated or assigned claim either in its own name or in the name of the assured. If the company commences action in the name of the assured for only the subrogated or assigned property damage claim, the assured will thereby be barred from commencing a separate action for the personal injury. Pillsbury v. Kesslen Shoe Co., 136 Me. 235, 7 A.2d 898 (1939); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849 (1st Cir. 1947). By the new Rule 17(c) the assured will be informed of the insurer's intention to commence suit on the subrogated or assigned claim and can take appropriate action to protect his personal injury claim. He can gain such protection either by beating

the insurer to the courthouse or by joining the insurer in pressing both the personal injury and the property claim in a single action. The first sentence of Rule 17(c) prohibits the assertion of any claim or counterclaim by the insurance company until it has given the required 10-day notice to the assured. On the other hand, the language of the last sentence of Rule 17(c), while imposing upon the assured the obligation in hortatory language to notify the insurer of his intention to assert a claim arising out of the same transaction or occurrence as the subrogated or assigned claim, does not bar the subsequent assertion of such a claim. It is, however, of obviously great importance that the insurance company be given notice of the intention on the part of the assured to bring suit and the new Form 32, which is the insurer's notice under Rule 17(c), specifies in strong language that Rule 17(c) requires the assured within the set time to notify the insurance company of his intention to bring suit. If the insurance company proceeds with its suit even after receiving notice from the assured and he is thereby prevented from recovering on his personal injury claim, the insurance company may well be required to respond in damages to the assured. In order to avoid that danger, as well as to avoid the other difficulties of divided control of litigation on both the property damage and personal injury claims, an insurance company may be well advised to assert the subrogated or assigned claim in its own name as the real party in interest. That latter course, which is permitted by Rule 17(a), would also have the advantage to the insurance company of eliminating the need of complying with the notice requirements of Rule 17(c). Rule 17(c) does not resolve the difficulty that at times arises as to whether the insurer or the insured is entitled to manage the litigation when the subrogated property damage claim and the insured's personal injury claim are brought in a single proceeding. It would appear that the insured should have a right to manage the case. Cf. Buzynski v. Knox County, 159 Me. 52, 188 A.2d 270 (1963).

Explanation of Amendments March 22, 1965; November 1, 1966

The amendment to Rule 17(a) was taken from a 1966 amendment to F.R.

17(a). The principal change is the provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the raising of the objection, for the real party in interest to ratify the commencement of the action or for him to be joined or substituted. The interests of justice dictate this result. In addition, there is a minor textual change to make it clear that the specific instances enumerated are

illustrations of the rule rather than exceptions to it. The word “bailee” is added to the illustrative list. A bailee suing on behalf of the bailor with respect to the property bailed is thus the real party in interest.

The last sentence of Rule 17(b), added by a 1965 amendment, was in general modeled on 14 M.R.S.A. § 6656 (applicable only to proceedings to quiet title). The rule as amended has, however, more general application than the statute. Appointment of a representative for absent parties, who indeed may be identified only by class description, may in the court’s discretion be used to aid in fully airing the issues of the litigation. There would appear to be no due process requirement of such an appointment, assuming that the due process standards of notice have been complied with.


This rule is like Federal Rule 17, but with some eliminations and modifications. Unlike most states, Maine has not had the conventional real party in interest statute upon which Rule 17(a) is based. The rule will forbid suit in the name of the assignor of a non-negotiable chose in action and to this extent change the Maine law, Rogers v. Brown, 103 Me. 478, 70 A. 206 (1908), but the defendant now has the right to compel disclosure of the identity of the assignee and to recover costs against him. R.S.1954, Chap. 113, Sec. 168 (repealed in 1959). The last sentence of subdivision (a) allows a subrogated insurer to sue in the name of the assured. This is consistent with the view that the injection into a trial of the fact that the defendant has liability insurance is improper and may result in a mistrial. Ritchie v. Perry, 129 Me. 440, 152 A. 621 (1930); Deschaine v. Deschaine, 153 Me. 401, 140 A.2d 746 (1958). At present the action must be in the name of the assured. Rockingham, etc. Ins. Co. v. Bosher, 39 Me. 253 (1855). Most but not all of the real party in interest statutes have been construed to require the insurer to be named as plaintiff, and the rule has been written so as to preclude that construction. This sentence is not in the federal rule.

RULE 17A. SETTLEMENT OF CLAIMS OF MINOR PLAINTIFFS (a) Motion or Application for Settlement. In any action commenced by or on behalf of a minor, the guardian, guardian ad litem, or next friend of such minor may move the court for an order of approval of settlement. If no action has been commenced on a claim by a minor, any such representative may file an application in any court in which such an action might have been commenced, seeking an order of approval of settlement. The application shall contain a short and plain statement of the claim to be settled. No service of the application and no further pleadings shall be required unless directed by the court. The motion or application and supporting papers may be prepared by the attorney for an adverse party or by an attorney obtained by an adverse party to represent the interests of the minor. (b) Supporting Papers. Any motion or application filed in accordance with subdivision (a) of this rule shall be accompanied by: (1) an affidavit or verified application of the moving party or plaintiff stating the terms of and any reasons for approving the settlement and any fee to be paid to an attorney for the minor and also stating that the movant or plaintiff was informed of the right to attend the hearing upon the motion or application and that the right to attend a hearing is waived, where court action without hearing is sought; (2) A statement by the moving party or plaintiff describing the age of the minor, the nature of the injuries or damages suffered by the minor, and the facts of the event which led to the injury or damage. This statement shall be in sufficient detail to allow the court to evaluate the injuries or damages in determining whether to approve the settlement. Where the total amount of the proposed settlement exceeds $5,000 or where the attorney who prepared the motion has any connection with a party adverse to the plaintiff, the statement shall have attached to it copies of any police reports, any emergency room reports of the incident and resulting injuries or damages, a statement from a physician indicating the nature of the injuries and expectations for recovery or permanent impairment, and such other reports of the injuries or damages and the incident which caused the injuries or damages as the court may require; (3) An affidavit of the attorney who prepared the motion or application and the supporting papers stating whether or not the attorney was

retained at the instance of, represents, or has any connection with a party adverse to the minor. (4) Where a defendant is not represented by counsel, a statement signed by the defendant, or a representative of the defendant’s insurer, indicating that the defendant consents to judgment in the settlement amount; and (5) A draft proposed order which states all of the financial arrangements of the settlement, allocates the funds as indicated in the settlement, designates a depository of the funds received for the minor and subjects any withdrawals to court approval until the minor reaches majority. (c) Hearing and Judgment. At the hearing on the motion or application the court may require the moving party or plaintiff, the minor, and any attorney representing the minor to attend, and may make such inquiry as it deems necessary into the circumstances giving rise to the claim, the nature and extent of the damages sustained by the minor, other proceedings concerning the same claim, and any other matters pertinent to the adequacy of the settlement. Under exceptional circumstances the court may appoint a referee under Rule 53 to make such inquiry and to make recommendations thereon. After hearing, the court may approve the settlement or order entry of final judgment in accordance with its terms or may, with the consent of the parties, make such other order as justice may require, including provisions for a trust created for the minor’s benefit and for payments to be made to the minor after age 18. Judgment shall be entered without costs and shall approve the fee for the minor’s attorney, if any. (d) Custody of Proceeds. The court may order that the proceeds of the settlement be deposited to the credit of the minor with such depository, trustee or custodian and on such terms as the court may designate until the minor reaches majority. No withdrawal of funds so deposited shall be made unless approved by a justice or judge of the court in which the order of deposit was entered. (e) Verification. Not later than 30 days after entry of the order approving the settlement, the attorney or party to whom the funds are paid shall file a sworn affidavit verifying that the funds paid have been deposited as required by the court order, stating the depository financial institution and account number, and certifying that a copy of the court’s order with restrictions on withdrawal, if any, has been provided to the depository financial institution.


May 1, 2000 The amendment substitutes the word “minor” for “infant” in the title. The text of the rule is not changed.


Rule 17A (c) and (d) are amended to give the court more flexibility in approving minor settlements. Prior to the amendment, the language of the rule appeared to limit the parties and the court to the deposit of funds in a bank. The best interests of the minor can be served by more flexible arrangements, such as trusts created and administered under court supervision. Although the parties now have the flexibility to propose a trust for the minor benefit, the court still retains final authority on approval of the terms of the trust and any withdrawals therefrom.


Subdivision (c) of Rule 17A is amended to make clear that the court approval of a minor settlement may include a provision for payments after the minor has reached the age of 18. This change authorizes the use of special needs trusts or other continuing payments where medical or other needs may be arranged for the minor’s best advantage early in the minor’s life. The court will continue to be guided by the minor’s best interests, as 14 M.R.S.A. § 1605 (Supp. 1995) intends.


Rule 17A is amended to assure that the court receives sufficient information about the nature of a minor’s injuries and their cause to permit an informed evaluation of a request for settlement. The amendment is also intended to provide more protection to the minor by requiring verification of deposits and better confirmation that all parties have agreed to the settlement. Throughout the Rule, the word “minor” has been substituted for “infant” as more in accord with current terminology.

Rule 17A(b) has been substantially rewritten. Paragraph (1) has been amended to specify procedures for waiving hearing if hearing is not desired. A new paragraph (2) has been added, requiring a detailed statement of the nature and the causes of the minor’s injury or damages, with special requirements for detail in independent reports where a settlement is for more than $5,000 or is presented by adverse parties. A new paragraph (4) has been added to require written indication of approval of settlements by defendants not represented by counsel. Paragraph (5) has been added to require that a draft order be submitted, detailing the financial arrangements and fund distributions. Rule 17A(e) has been added. The provision requires verification that required deposits have in fact been made and that the depository institution has received a copy of the court’s order, including any restrictions on withdrawal.


This rule spells out for the first time the procedure for obtaining the court approval required by 18 M.R.S.A. § 3652 for settlement of the claim of an infant plaintiff. It is adopted out of a concern on the part of both the courts and the practicing bar for the protection of the rights of injured minors and for the avoidance of any appearance of impropriety on the part of the legal profession or laxness on the part of the judiciary. Previously, such settlements were generally approved through the medium of the so-called "friendly suit" in which an attorney, often secured and paid by the defending insurance company, sued on the minor's behalf. Such suit would then be settled upon petition of the defendant. While responsible counsel would see that the court was fully informed both as to the nature of the representation and as to the circumstances surrounding the claim and settlement, there was no duty to investigate or present evidence and no standards other than good faith and absence of fraud by which to measure the adequacy of counsel's presentation. See Ayer v. Androscoggin & Kennebec R. R., 163 A. 270, 131 Me. 381 (1932). Moreover, under 18 M.R.S.A. § 3652 the court had sole discretion as to the procedure and criteria for approval of the settlement. The new rule substitutes for the friendly suit a procedure less subject to abuse and criticism and provides detailed guidelines for the court to follow whether settlement is sought under the new procedure or in ordinary adversary proceedings. The statutory foundation for Rule 17A was laid by the recent amendment adding the following sentences to 18 M.R.S.A. § 3652 (see 1970 Laws, c. 590, § 22-A):

If no action has been commenced, an infant by next friend may apply to any court in which an action based on the claim of the infant could have been commenced for an order approving the settlement of any such claim. An order approving such a settlement shall have the effect of a judgment.

The rule is based on N.Y.C.P.L.R. § 1207, R. 1208, with simplifications in the requirements for affidavits and hearing. The procedure spelled out in the rule applies both where there is a pending action commenced on behalf of the infant (whether or not the action was commenced completely at arms length) and where a settlement agreement has been arrived at without the commencement of an action. In the latter case, the guardian or the other representative of the infant may file an application seeking an order of approval of settlement. Where there is a pending action the plaintiff representing the infant simply files a motion for an order of approval for settlement. Rule 17A(a) expressly permits the motion or the application and also the supporting papers to be prepared by the attorney for an adverse party (typically the insurance company lawyer) or by an attorney obtained by the adverse party. The rule thus eliminates the sham involved in the prior practice of the "friendly suit.” The rule makes no attempt to create the appearance of independence upon the part of the attorney preparing the papers for the infant. Rather the emphasis is put upon spelling out on the record in the form of an affidavit of the attorney who prepared the papers the full facts relating to his connections with the adverse party. The rule does not, and indeed cannot, eliminate the responsibility of the court to investigate the reasonableness of the proposed settlement. On the other hand, the supporting papers required by the rule are intended, without imposing unnecessarily burdensome paper work, to provide the court with the essential information on the subject. That information must be made a part of the record in an affidavit sworn to by the guardian or other representative of the infant. Subdivision (c), by expressly providing that the court may require the guardian or other representative as well as the infant and any attorney representing him to attend the hearing, encourages the court to make the hearing something more than a perfunctory matter. Counsel undoubtedly will try to make the affidavit of the guardian or other representative of the infant sufficiently full to avoid the delay and expense of a hearing at which all such persons are required to be present in person.

Subdivision (c) spells out the matters as to which the court should make inquiry relating to the adequacy of the settlement. The court may appoint a referee to investigate the adequacy of the settlement and to make his recommendations to the court. As stated in Rule 53(b) a "reference shall be the exception and not the rule." A referee should not be appointed as a routine matter, but only under exceptional circumstances or, in the language of Rule 53(b) "upon a showing that some exceptional condition requires it.” Such "exceptional circumstances" might exist, for example, if the issue of liability on the infant plaintiff's claim involved serious difficulties in the proof of essential facts or doubtful questions of law and a settlement is proposed representing far less than full compensation for the injuries received by the plaintiff infant. It would obviously be improper for the referee subsequently to represent any party in regard to the infant’s claim or any related claim. See Disciplinary Rule 9-101(A) of the Code of Professional Responsibility and in particular Note 7 appended thereto.

RULE 18. JOINDER OF CLAIMS AND REMEDIES (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join either as independent or as alternate claims as many claims either legal or equitable or both, and individually and in the aggregate within the subject-matter jurisdiction of the court, as the party has against an opposing party. (b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims, if within the subject-matter jurisdiction of the court, may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to the plaintiff, without first having obtained a judgment establishing the claim for money.


Subdivision (b) is amended to eliminate the specific reference to the Superior Court. This change was apparently overlooked in the merger of the District Court and Superior Court rules.


This amendment was taken from a 1966 amendment rewriting F.R. 18(a). It

clears up confusion in the federal cases by stating clearly, as a comprehensive proposition, that a party asserting a claim (an original claim, counterclaim, cross-claim, or third-party claim) may join as many claims as he has against an opposing party. This permitted joinder is not affected by the fact that there are multiple parties in the action. This is only a rule of pleading and does not, of course, prevent a separation of issues for trial for convenience or to avoid prejudice, as provided in Rule 42(b).


This rule is the same as Federal Rule 18. Rule 18(a) allows unlimited joinder of claims by a plaintiff or a counterclaiming defendant. Law and equity having been merged, this means that legal and equitable claims may be joined, either independently or in the alternative. The rule changes Maine practice, which still maintains the artificial common law restrictions on joinder of claims involving different forms of action. These present restrictions may prevent the joinder of logically connected claims and allow the joinder of wholly unrelated ones.

RULE 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION (a) Persons to Be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.


Rule 19 as completely redrafted was taken from a 1966 amendment to F.R.

19, with omissions of certain matters applicable only to federal jurisdiction and venue. F.R. 19 has been much criticized. The use of “indispensable” and “joint

interest” gave the rule an appearance of rigidity in adhering to technical concepts which is inconsistent with modern notions. It also introduced into Maine practice a new terminology. See § 19.2 of the text. It is plainly desirable for all persons materially interested in the subject of an action to be joined as parties so that a complete disposition can be made. When this is impossible, the court should decide on pragmatic grounds between dismissing the action and proceeding with it in the absence of particular interested persons. Rule 19 tended to divert the courts from this basic objective. Sensible results have often been achieved despite the rule, but some courts have gone astray. The rewritten rule is designed to correct the demonstrated defects and to point out clearly to the courts the proper basis for decision.

Subdivision (a) defines the persons whose joinder in the action is desirable. Clause (1) looks to the joinder of all persons whose absence will make impossible complete relief to those already parties. Clause (2) recognizes the importance of protecting an absentee from practical prejudice to his interests by an adjudication in his absence and also the importance of not leaving a party to the action in a position where a person not joined can later subject him to a double or otherwise inconsistent liability.

Subdivision (b) deals with what happens when a person described in subdivision (a) cannot be made a party. It sets out four relevant considerations to be taken into account in deciding whether to proceed with the parties before it or to dismiss. The first is the adverse effect on the absentee in a practical sense of a judgment in the action. The second deals with the possibility of lessening or avoiding this prejudice by the shaping of relief or otherwise. The third, tied closely with the shaping of relief just mentioned, calls attention to the extent of the relief that can be accorded among the parties joined. The fourth looks to the availability to the plaintiff of an adequate remedy elsewhere where better joinder would be possible.

The term “indispensable” appearing in subdivision (b) clearly does not read back into the rule the old formalistic concepts. As the federal Advisory Committee’s Note states:

“The subdivision uses the word ‘indispensable’ only in a conclusory sense, that is, a person is ‘regarded as indispensable’ when he cannot be made a party and, upon consideration of the factors above-mentioned, it is

determined that in his absence it would be preferable to dismiss the action, rather than to retain it.”

Subdivision (c) essentially duplicates the corresponding subdivision of the

old rule. Subdivision (d) repeats the exception in the first clause of the superseded Rule 19(a) with respect to class actions.


This rule is like Federal Rule 19 except for the omission of phrases relating to the jurisdiction of federal district courts. Rule 19(a) is a general statement of the common law and equity rules. It is not intended to change any tests laid down by statute or decision, at law or in equity, as to who must be joined. Necessary joinder applies to indispensable parties. Indispensable parties are those without whose presence the action cannot proceed. They are to be distinguished from necessary parties, who are dealt with in Rule 19(b). Necessary parties are those who should be joined if feasible, but whose presence is not essential. In Maine the terminology has been different. "Necessary" and "indispensable" seem to be treated as synonymous, and they are distinguished from "proper" parties. The results in terms of case law appear to have been essentially the same as in federal practice. Medico v. Employers Liability Assurance Corp., 132 Me. 422, 172 A. 1 (1934).

RULE 20. PERMISSIVE JOINDER OF PARTIES (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief within the subject-matter jurisdiction of the court jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief within the subject-matter jurisdiction of the court in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. (b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.


This amendment was taken from a 1966 amendment to F.R. 20(a). It simply

changes “of them” to “these persons” in one place and to “defendants” in another place in order to resolve a possible ambiguity as to the antecedent of “them.” The amendment to Rule 18 should be enough to prevent construing “them” to refer to claims, but this amendment removes any possible doubt.


This rule is the same as Federal Rule 20. It offers greater freedom in joinder of parties than does existing law, but it does not provide for unrestricted joinder of parties to the extent that Rule 18 provides for unrestricted joinder of claims. The rule applies to allow an action on claims of two or more plaintiffs or against two or more defendants arising out of the same or related transactions. It abrogates the Maine rule preventing the joinder of a master and servant in a single action arising

out of the latter's negligence. Hobbs v. Hurley, 117 Me. 449, 104 A. 815 (1918). The claims may be in the alternative. Where the plaintiff is uncertain as to which of several defendants is liable, he may plead to that effect and join them all in a single action. See Form 10 in the Appendix of Forms.

RULE 21. MISJOINDER AND NONJOINDER OF PARTIES Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and presented separately.


The substitution of “presented” for “proceeded with” merely corrects awkward language and no change in substance is intended.


This rule is the same as Federal Rule 21. It does not greatly affect Maine law. Plaintiffs may be added or stricken by amendment of the writ. R.S.1954, Chap. 113, Sec. 12 (repealed in 1959). Defendants may similarly be stricken by amendment and, in actions of contract express or implied, added by amendment. R.S.1954, Chap. 113, Sec. 14 (repealed in 1959). In equity also misjoinder of plaintiffs is harmless, Brown v. Lawton, 87 Me. 83, 32 A. 733 (1894), and nonjoinder of plaintiffs may be cured by amendment. Hussey, v. Dole, 24 Me. 20 (1844). Similarly misjoinder of defendants in equity is not a ground for dismissal of the bill. See Kennebec etc. Ry. v. Portland etc. Ry., 54 Me. 173 (1866). N onjoinder may usually be cured by amendment of the bill. See Beals v. Cobb, 51 Me. 348 (1863). The rule must be read in conjunction with Rules 18 and 19. It is not a general authorization for adding parties. Since the demurrer and the plea in abatement have been abolished, defects in joinder of parties will be raised by the responsive pleading, or, if a failure to join an indispensable party, by motion under Rule 12(b) (7).

RULE 22. INTERPLEADER Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability in an action may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.


P.L. 1999, Chapter 731, §§ ZZZ-2 et seq. unified the Superior Court and the District Court civil jurisdiction, with certain stated exceptions. Rule 22 is amended to delete the reference to the Superior Court, since actions for interpleader may now also be brought in the District Court.


This rule, which is like Federal Rule 22(1), removes a number of technical restrictions which grew up under the old equity practice and caused trouble. It avoids the confusion that developed around bills of strict interpleader and bills in the nature of interpleader. A comparison of the rule with the leading Maine case on interpleader, First National Bank of Portland v. Reynolds, 127 Me. 340, 143 A. 266 (1928), will indicate the changes made by the rule. The privity requirement is eliminated, so that no longer is it necessary that all of the adverse claims be dependent or derived from a common source. This requirement was often difficult of application and was somewhat watered down by the courts, as is shown in the Reynolds case itself. The requirement that the person asking the relief must not have nor claim any interest in the subject matter is also specifically abrogated. The interpleader plaintiff may, in other words, plead that he owes neither claimant anything; but that if he does, he does not know which. The rule permits a defendant exposed to multiple liability to admit liability, pay the money into court, and be dismissed

from the case. But payment into court is not required. Cf. Gardiner Savings Institution v. Emerson, 91 Me. 535, 40 A. 551 (1898).

RULE 23. CLASS ACTIONS (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests, or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;

(D) the difficulties likely to be encountered in the management of a class action.

(c) Determination by Order Whether Class Action to Be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. (2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through his counsel. (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. (d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the

members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; and (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. (e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.


P.L. 1999, Chapter 731, §§ZZZ-2 et seq. unified the Superior Court and the District Court civil jurisdiction, with certain stated exceptions. Rule 23 is amended to delete the reference to the Superior Court, since class actions may now also be brought in the District Court.


Rule 23 is amended by substituting for the present Maine rule the verbatim text of Federal Rule 23. When the Maine Rules were first promulgated in 1959, Federal Rule 23 as it then stood was adopted virtually verbatim. The present federal rule was promulgated in 1966, but the Maine rule was not changed to follow suit, because Maine’s experience with class actions had been limited and it seemed wisest to allow time for local development. Nevertheless, the more detailed and specific provisions of the new federal rule were viewed as appropriate guidelines for class action practice in Maine. See 1 Field, McKusick, and Wroth, Maine Civil Practice § 23.1 (2d ed., 1970). Since 1966 there has been an increasing number of class

actions in the Maine courts, and it has become clear that a more specific and authoritative procedural provision for such actions is necessary. The present federal rule is adopted for three reasons: (1) It codifies in general the pattern previously followed in Maine and it has over the years been the subject of a substantial body of interpretation in the federal courts which is available as further guidance to the Maine practitioner. See 1 Field, McKusick, and Wroth, supra, §§ 23.1-23.6; 7 and 7A Wright and Miller, Federal Practice and Procedure §§ 1751-1803 (1972; Supp., 1981); (2) The Maine practice has not yet become systematized enough to provide the basis for a rule reflecting significant local variation from the federal model; and (3) The only alternative, the Uniform Class Actions [Act] [Rule], adopted by the National Conference of Commissioners on Uniform State Laws in 1976, 12 Uniform Laws Annotated 20 (Supp. 1981), is admirable drafting but deals with a range of complex problems which have not yet arisen, and may never arise, in Maine. Promulgation of the rule marks a new departure in class actions for Maine. It is to be expected that experience with the more systematic procedure afforded by the rule will lead to amendments designed to adapt its provisions to the specific conditions and needs of Maine practice.


This rule is based upon Federal Rule 23, but with significant departures. Rule 23(a) is much simpler than the corresponding federal rule and takes into account some serious criticisms which have been made of that rule. The language is taken from a recommendation made by Professor Chafee. Chafee, Some Problems of Equity, Chap. 7. Class actions brought by or against representatives of a class so numerous as to make it impracticable to bring them all before the court were well known in classical equity practice. Whitehouse, Equity Practice §§ 162-165. The principal types of cases in which this principle of representation was applied were creditors' bills, stockholders' bills, and bills of peace. See, by way of illustration, Mason v. York & Cumberland Ry. Co., 52 Me. 82, 107ff. (1861); Carlton v. Newman, 77 Me. 408 (1885). The innovation in Rule 23 is to make this device applicable to all actions, legal as well as equitable.

Rule 23(b) deals specifically with shareholders' derivative actions. The requirement for verification of the complaint is one of the few instances where the rules require verification. Federal Rule 23(b) contains the requirement that the complaint shall aver that the plaintiff was a shareholder at the time of the transaction complained of. That requirement is not included in this rule because of the belief that it calls for a policy judgment which ought not to be effected by rule even if it is thought to be within the rule-making power. There appears to be no Maine decision either imposing or rejecting this requirement, and the omission from the rule is not to be taken as an expression of any view as to whether or not the requirement exists. Rule 23(c) is designed to protect absent members against unfair dismissal or compromise.

RULE 23A. DERIVATIVE ACTIONS BY SHAREHOLDERS

In a derivative action brought in the Superior Court by one or more shareholders to enforce a right of a corporation, the corporation having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege that the plaintiff was a shareholder at the time of the transaction of which the plaintiff complains or that the plaintiff’s share thereafter devolved on the plaintiff by operation of law. The complaint shall also allege with particularity that the plaintiff has made a written demand upon the corporation to take the suitable action. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the corporation in enforcing the right of the corporation. The action shall not be dismissed or settled without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs if the court determines that a proposed discontinuance or settlement substantially affects the interests of a corporation’s shareholders or a class of shareholders.


See Advisory Committee’s Notes below Rule 23B for an explanation of this amendment.


Rule 23A is taken with only minor changes from Federal Rule 23.1. The new rule is added simultaneously with the promulgation of new Rule 23, also based on the comparable federal rule. The new Rule 23A is similar in basic effect to the original Maine Rule 23(b) as promulgated in 1959 and now withdrawn. Principal differences are inclusion in the new rule of requirements that the complaint allege that the plaintiff was a member or shareholder at the time of the transaction complained of and that the plaintiff be an adequate representative of the interests of others similarly situated. The former point, though previously an open question in Maine, was resolved for corporations at least by legislative adoption in 1971 of 13-A M.R.S.A. § 627(l) (A), making similar provisions. The requirement of representation was found in original Rule 23(a) and was in any event inherent in the practice. See 1 Field, McKusick, and Wroth, Maine Civil Practice § 23.2 (2d ed., 1970; Supp. 1981).

In other respects also, the rule is consistent with 13-A M.R.S.A. § 627, respecting actions by shareholders of foreign or domestic corporations. I n actions subject to that provision, however, the plaintiff must allege specifically that he gave written notice of his action to the corporation or board of directors at least ten days before bringing action. Also, by virtue of the last sentence of the statute, it will be “necessary” under the rule to allege or prove demand upon the shareholders only in the case of a close corporation.

RULE 23B. DERIVATIVE ACTIONS BY MEMBERS OF UNINCORPORATED ASSOCIATIONS

In a derivative action brought in the Superior Court by one or more members

to enforce a right of an unincorporated association, the association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege that the plaintiff was a member at the time of the transaction of which the plaintiff complains or that the plaintiff’s membership thereafter devolved on the plaintiff by operation of law. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the members, and the reasons for the plaintiff’s failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the members similarly situated in enforcing the right of the association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to members in such manner as the court directs.


Rule 23A has been amended to eliminate conflicts between the Rule and the

provisions governing derivative actions by shareholders in the revised Maine Business Corporation Act (the “Act” or “new Act”), which the Legislature adopted effective July 1, 2003. P.L. 2001, ch. 640; P.L. 2003, ch. 344.

To conform to the new Act, Rule 23A has been divided into two separate rules: a revised Rule 23A, “Derivative Actions by Shareholders” and a new Rule 23B, “Derivative Actions by Members of Unincorporated Associations.” The revised Rule 23A reflects, and changes are made solely to reflect, the requirements of the new Act with respect to derivative actions by shareholders of business corporations. New Rule 23B carries forward without change the provisions of former Rule 23A with respect to unincorporated associations. No substantive changes have been made in rules for derivative actions in unincorporated associations because the new Act has not made any change in the law applicable to such associations.

The changes to Rule 23A to reflect new requirements of the new Act are as follows:

1. The amended Rule requires the complaint to allege with particularity that the plaintiff has made a written demand upon the corporation to take suitable action. The requirement is in the words of 13-C M.R.S.A. § 753(1), which requires that the demand be made upon the corporation in all cases. This “universal demand” completely replaces and supersedes Rule 23A’s former requirement of a particularized allegation of the plaintiff’s “efforts, if any, to obtain the action the plaintiff desires.” The revised Rule also eliminates the further language of the former Rule that required “the reasons for the plaintiff’s failure to obtain the action or for not making the effort.” By requiring that demand be made in all cases, § 753 eliminates the possibility that the demand requirement may be excused if the plaintiff can prove that making the demand would have been futile.

2. The requirement in former Rule 23A that the plaintiff make an effort “if

necessary” to obtain the desired action from shareholders or members has been deleted because under the new Act no such effort is “necessary.” Former Section 627(1)(C) of the 1971 Maine Business Corporation Act provided that if the corporation is a close corporation, the plaintiff must allege with particularity “his efforts to secure from the shareholders such action as he desires (or allege) with particularity the reason why such efforts would have been futile.” Section 627 went on to state expressly that when the subject corporation is not a close corporation, it is not necessary for the plaintiff to allege or prove a demand upon the other shareholders. That express provision abrogated the rule of prior case law, which had held that for all corporations a demand upon shareholders, as well as upon the board of directors, was required before a plaintiff could properly assert a derivative action.1 The Advisory Committee’s Notes to Rule 23A as previously in effect made clear that a demand was required on shareholders only in the case of a close corporation.2 Section 753 in the new Act contains no requirement for close corporations that the plaintiff make (or allege) any efforts made to secure from shareholders the action he desires. Given the statutory history, the Rule has been revised to reflect the absence of any such requirement from the new statute.

1 See, e.g., Ulmer v. Maine Real Estate Co., 93 Me. 324, 327, 45 A. 40, 41 (1899).

2 Advisory Committee’s Notes to Rule 23A contained in 428-433 A.2d (1981) at LII.

3. In keeping with 13-C M.R.S.A. § 752(2), revised Rule 23A makes the focus of the required fair and adequate representation by the plaintiff the interests of “the corporation” and not “the shareholders . . . similarly situated,” as the former Rule provided. New Section 752 requires that the plaintiff “fairly and adequately represent the interests of the corporation in enforcing the right of the corporation.” That new requirement of Section 752 is intended to better reflect the nature of a derivative action, where the plaintiff stands in the shoes of the corporation and not the shoes of other shareholders. Rule 23A has been revised accordingly.

4. The final sentence of Rule 23A has been revised to track closely the

language of 13-C M.R.S.A. § 756 pertaining to court approval of discontinuance or settlement of derivative actions and to notice to shareholders of the same.

Section 756 of the new Act provides:

A derivative proceeding may not be discontinued or settled without the court’s approval. If the court determines that a proposed discontinuance or settlement substantially affects the interest of the corporation’s shareholders or a class of shareholders, the court shall direct that notice be given to the shareholders affected.

Former Rule 23A provided, like Section 756, that a shareholder derivative action “shall not be dismissed or compromised without the approval of the court,” but it also declared that notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.” Former Rule 23A did not require personal notice to all shareholders, but it did require some form of shareholder notice in all cases. Section 756 now specifies that notice to all shareholders (or a particular class of shareholders) is required only if the court determines in its discretion that the proposed discontinuance or settlement will substantially affect the interests of those shareholders. The Rule has been modified to match the requirement of new Section 756.

RULE 24. INTERVENTION (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. (d) Intervention by the State. When the constitutionality of an act of the legislature affecting the public interest is drawn in question in any action to which the State of Maine or an officer, agency, or employee thereof is not a party, the plaintiff shall notify the Attorney General, and the court shall permit the State of Maine to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.


Subdivision (d) is changed to put the burden on a plaintiff, rather than the court to notify the Attorney General when constitutionality of a law is challenged.


November 1, 1966

The amendment to Rule 24(a) was taken from a 1966 amendment to F.R. 24(a). M.R.C.P. 24(a) departed substantially from the original F.R. 24(a) and was intended to preserve the existing Maine law on intervention. The 1966 federal amendment eliminated the difficulties in the federal rule which led to this departure, and Maine has now followed the federal model in its amended form. Instead of making the test for intervention of right whether the would-be intervenor “will either gain or lose by the direct legal effect of the judgment,” the amended rule resorts to the pragmatic consideration of whether the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect his interests. This approach draws upon the 1966 revision of Rule 19 and the reasoning underlying it.

The amendment also specifically provides, as M.R.C.P. 24(a) did not, that intervention is not allowed if the applicant’s interest is adequately represented by existing parties.

The purpose of the amendment to Rule 24(c) was to eliminate an inconsistency with Rule 5(a).


This rule is derived from Federal Rule 24 but changes have been made in Rule 24(a)* and the substance of Federal Rule 24(c) has been split between Rule 24(c) and a new Rule 24(d). The reason for the separation is to give emphasis to the right of the State of Maine to intervene when the constitutionality of a statute is questioned in a case to which the State is not a party. This is new to Maine law except in limited circumstances. See R.S.1954, Chap. 107, Sec. 48 [now 14 M.R.S.A. § 5963].

[Field, McKusick & Wroth commented: “1966 amendments to both the Maine and federal rules

have brought them into substantial uniformity.” 1 Field, McKusick & Wroth, Maine Civil Practice at 399 (2d ed. 1970).]

Intervention is a familiar equity procedure. Whitehouse, Equity Practice §§ 319-320. The rule is somewhat broader than the general practice as to permissive intervention and is somewhat simpler procedurally.

RULE 25. SUBSTITUTION OF PARTIES (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. (2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties. (b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party’s representative. (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. (d) Public Officers; Death or Separation From Office. (1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) A public officer who sues or is sued in an official capacity may be described as a party by the officer’s official title rather than by name; but the court may require the officer’s name to be added.


This amendment to Rule 25(a) was taken from a 1963 amendment to F.R.

25(a). M.R.C.P. 25(a) was taken from a proposed 1955 amendment to F.R. 25(a) which was not then adopted for the federal courts. The 1963 federal amendment was substantially the same as M.R.C.P. 25(a), but it added a provision for filing a suggestion of death upon the record. A 90-day time limit for substitution starts running with such filing. The Maine and Federal Rules 25(a) have now been brought into conformity. A new Form 31, taken from Federal Form 30, for the suggestion of death was also added.

The amendment to Rule 25(d) was taken from a 1961 amendment to F.R. 25(d). The purpose of subdivision (d) (1) was to eliminate the burdensome requirement of the original rule that application with a showing of need for continuing the action be made before a successor officer could be substituted. The phrase “in his official capacity” was added to make clear that the subdivision does not apply to actions in which the relief sought is merely a money judgment against the officer to be satisfied out of his personal assets. Subdivision (d) (2) repeats in slightly different form the last two sentences of original Maine Rule 25(d), taken from the proposed 1955 federal amendment.


This rule departs from Federal Rule 25(a),* which has not worked out very satisfactorily. Unlike the federal rule, it imposes no rigid time limit for the substitution of parties, but permits dismissal as to a deceased party if substitution is

* [Field, McKusick & Wroth commented: “Amendments to both the Maine and * federal rules

have brought them into substantial uniformity.” 1 Field, McKusick & Wroth, Maine Civil Practice at 405 (2d ed. 1970).]

not made within a reasonable time. This change is one recommended by the federal Advisory Committee in 1955, but not adopted. There is no stated time limit for substitution in R.S.1954, Chap. 113, Sec, 57 (repealed in 1959).

Last reviewed and edited January 12, 2009 Includes amendments effective January 1, 2009

V. DEPOSITIONS AND DISCOVERY

RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant,

surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to identify the data or other information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years, and the compensation to be paid for the study and testimony, provided however, that, unless otherwise ordered by the court, information relating to qualifications, publications and compensation need not be provided for experts who have been treating physicians of a party for any injury that is a subject of the litigation; (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such

provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(5) Information Withheld under Claims of Privilege or Protection of

Trial Preparation Materials; Inadvertent Production of Privileged or Trial Preparation Material.

(A) Claim of Privilege and Identification Required. When a party

withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial-preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(B) Inadvertent Production of Privileged or Trial Preparation Material.

If information is inadvertently produced in discovery that is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may

not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

(6) Specific Limitations on Electronically Stored Information. A party

need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or expense. On application under Rule 26(g) to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or expense. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations and remedies of Rule 26(c). The court may specify conditions for the discovery and shall impose on the requesting party the reasonable expense of producing such electronically stored information . (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, any justice or judge of the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including without limitation one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; (9) that the party taking the deposition pay the traveling expenses of the opposite party and of his attorney for attending the taking of the deposition; and (10) that a witness under the control of the party taking the deposition be required to be brought within the state for his deposition. The power of the court under this rule shall be exercised with liberality toward the accomplishment of its purpose to protect parties and witnesses.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony. (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (f) Filing of Discovery. (1) Unless otherwise ordered by the court, or necessary for use in the proceeding, notices, written questions and transcripts of depositions prepared in accordance with Rule 5(f), interrogatories, requests pursuant to Rules 34 and 36, and answers, objections and responses thereto shall be served upon other parties but shall not be filed with the court. Notification of the date on which discovery

papers were served on the parties shall be filed with the clerk. The party that has served notice of a deposition or has otherwise initiated discovery shall be responsible for preserving and ensuring the integrity of original transcripts and discovery papers for a period of two years after final judgment for use by the court or other parties. (2) If depositions, interrogatories, requests or answers or responses thereto are to be used at trial, other than for purposes of impeachment or rebuttal, or are necessary to a ruling on a motion, the complete original of the transcript of the discovery material to be used, prepared in accordance with Rule 5(f), shall be filed with the clerk 7 days prior to trial or at the filing of the motion insofar as their use can be reasonably anticipated by the parties. A party relying on discovery transcripts or materials in support of or in opposition to a motion shall file with the memorandum required by Rule 7(b)(3) a list of specific citations to the parts on which the party relies. Discovery transcripts and materials thus filed with the court shall be returned to appropriate counsel after final disposition of the case. (g) Discovery Motions (1) Motions. No written motions under Rule 26 through 37 shall be filed without the prior approval of a justice or judge of the court in which the action is pending. The moving party shall first confer with the opposing party in a good faith effort to resolve by agreement the issues in dispute. If the dispute is not resolved by agreement, the moving party shall request a hearing from the clerk by letter. The letter shall succinctly and without argument or citation describe the nature of the dispute and the relief requested. In cases involving objections to interrogatories or document requests, the moving party shall attach to the letter copies of only the specific objections in question and the specific interrogatories or requests to which objection has been made. In exigent circumstances a request for a hearing may be made to the clerk by telephone or in person. The request for a hearing constitutes a representation to the court, subject to Rule 11, that the conference with the opposing party has taken place and that the moving party has made a good faith effort to resolve the dispute. The clerk shall inform the moving party of the manner, date and time of the hearing. The moving party shall provide prompt notice of the hearing to all the other parties. If the hearing is to be conducted by telephone conference or video conference, the moving party shall connect all other parties who elect to participate and shall initiate the telephone or video conference call to the court.

(2) Hearing or Conference. The court may issue an order without a hearing if the request is based on a failure to either answer or object to outstanding discovery requests. In all other cases the parties shall be prepared to offer oral argument at a hearing or a telephone or video conference on the discovery issues in question if scheduled by the court. No written argument shall be submitted and no motion papers shall be filed with the clerk without prior leave of the court. (3) Orders at Hearing. The justice or judge may make such orders at the hearing as are necessary to resolve the dispute. Such orders shall be reduced to writing and shall constitute orders for purposes of Rule 37. If the motion is not decided at the hearing, the justice or judge may order a written motion and supporting memoranda to be filed under Rules 7 and 37 and may make such orders as are necessary to narrow or dispose of the dispute.

Advisory Note January 2009

This amendment to Rule 26(f)(1), in combination with the amendment to Rule 79(a) eliminates the requirement that clerks docket notices regarding discovery to reduce unnecessary work in overburdened clerks’ offices. Placing notices in the file, date stamped when received, will provide a sufficient record of events should any question of timeliness or other compliance with the rules arise. The amendment also eliminates an outdated reference to the Appendix of Forms that no longer exists.


Rule 26(b)(5)(B) is adopted to govern the inadvertent production of privileged or trial preparation material. Subdivision (b)(6) is adopted to regulate the discovery of "electronically stored information" where the production of such information would cause undue burden and expense. The term "electronically stored information" as used now in the Maine Rules of Civil Procedure is intended to have the same broad meaning set forth in Rule 34(a), which permits discovery of electronically stored information regardless of the medium in which the information is stored or the method by which it is retrieved. These amendments are part of amendments to Rules 16, 26, 33, 34 and 37 to address the discovery of electronically stored information. The amendments are generally taken from the 2006 amendments to the Federal Rules of Civil Procedure governing electronic

discovery. The Advisory Committee's Notes to the federal amendments are instructive and should guide the interpretation of the Maine amendments. The amendment to Rule 26(b)(5)(B) recognizes that in discovery, especially in the production of a large volume of electronically stored information, privileged information or trial preparation material may inadvertently be produced. In this context, the term "privilege" includes material or information that is confidential and protected from disclosure in discovery, whether by statute, privilege or otherwise. Under the amendments, if a party has inadvertently produced documents or information that is subject to a claim of privilege or protection as trial preparation material, the party making the claim must notify the receiving parties of the claim and the basis for it. After notification, the receiving party may not use or disclose the documents or information until the claim is resolved. The receiving party may, at its option, return, sequester or destroy the information, together with any copies it has made or disseminated. If the receiving party disputes the claim of privilege, the receiving party may properly present the information to the court under seal and request a determination of the claim under Rule 26 (g). Since information may have been delivered to expert witnesses or other persons involved in the case, the receiving party must also "take reasonable steps to retrieve" the information. Throughout this process and until the claim is determined, the producing party must preserve the information so that it is available to the court. These requirements are generally consistent with the Law Court’s holding in Corey v. Norman Hanson & DeTroy, 1999 ME196, ¶ 19, 742 A.2d 933, 941, especially in its teaching that an inadvertent production does not, without more, automatically waive a privilege. The intent of the amendment is to recognize that given tight discovery schedules and the volume of electronically stored or other information produced, a producing party may not have identified every document on which a claim of privilege may be appropriate. The amendment provides a procedure by which the producing party may notify other parties of a claim of privilege, stop the use of the information, and have the issue promptly determined. By its terms, the rule applies only where the production has been truly "inadvertent," and it is not intended to be used where information was knowingly produced and because of a change of tactics or circumstances, the privilege is belatedly asserted. Of course, the amendment to Rule 26(b)(5)(B) as a rule of procedure does not create any substantive law concerning privilege, trial preparation material or waiver of these protections.

Rule 26(b)(6) is also adopted to make clear that a party need not provide discovery of electronically stored information if that information is not "reasonably accessible because of undue burden or expense." The rule is taken from its federal counterpart, with an adaption to Maine practice by referring to Rule 26(c) and using the term “expense” in Rule 26(c) rather than “cost” in the federal rule. No substantive difference is intended. The new subdivision implements the commonsense principle that discovery is not unlimited.

If electronically stored information cannot be retrieved or translated into reasonably usable form without "undue burden or expense," the producing party must identify that fact to the requesting party. If an application is made to produce the information under Rule 26(g), the party resisting discovery bears the initial burden to show the court that the information is not, in fact, “reasonably accessible because of undue burden or expense.” The requesting party must then show “good cause” why the information should be produced notwithstanding the burden and expense. The court then considers whether the showings required by the rule have been made and it has broad discretion and remedial powers in addressing the issue. If the information can be reasonably produced, even if there is some burden or cost that is not “undue,” production should simply be ordered as routine discovery. On the other hand, if the producing party meets its burden and the requesting party cannot show good cause for the production, no production is to be ordered. If the showings have been made, the court may still consider whether production should be required under the circumstances. If production is required, the court should consider, as Rule 26(c) contemplates, the extent of the production and what conditions the court may order to eliminate or mitigate “undue burden or expense." Assuming some “undue burden or expense” remains, however, the rule, unlike its federal counterpart, mandates that the requesting party pay the reasonable expense of that production.

Advisory Committee Note December 2007

The adoption of M.R. Civ. P. 26(b)(5)[A] is intended to provide a procedure for identifying information or material withheld under a claim of privilege or work product. The provision is a verbatim adoption of its federal counterpart, Fed. R. Civ. P. 26(b)(5)(A).

Present practice frequently is for the withholding party simply to invoke the privilege in an objection to the discovery, leaving the requesting party no basis on which to evaluate whether the privilege is properly invoked. In response, the

requesting party occasionally demands a “privilege log” so detailed that the protection of afforded by the privilege is lost. In either case, the court has no basis on which to resolve the dispute efficiently. The purpose of the rule is not to create a burdensome duty to provide a detailed list of documents or information withheld. The intent of the rule is to require a general description of what is withheld so that the requesting party can decide whether to contest the claim and the court has some basis on which to resolve the dispute. Obviously, the court in resolving the issue may require more detail or an in camera inspection, but the rule should obviate some disputes entirely and provide a basis for resolving most disputes if they require judicial intervention.

Advisory Notes 2004

Rule 26(g)(1) & (2) are amended to state the court’s authority to utilize video and telephone conferencing options.

Advisory Note January 1, 2003

The purpose of the amendment to M.R. Civ. P. 26(b)(4)(A)(i) is to exempt treating physicians from providing information on qualifications, publications and compensation. In practice such information has proven difficult to obtain from treating physicians with busy practices and varying billing rates, and the need for such information is less for treating physicians than for experts retained for case-related purposes.


There are three amendments to Rule 26. In Rule 26(a), the former last sentence of the subdivision, specifying that the frequency of use of discovery methods was not limited, has been deleted. Given the specificity of the other discovery rules, the provision became superfluous. New language is added to Rule 26(b)(4)(A)(i) to expand the information required to be produced in the designation of expert witnesses. Under the amendment, a party is required to identify information and exhibits used by the expert to form or support opinions, and to set forth the qualifications, compensation, and publications of the expert. The intent of the amendment is to

catalogue information that is now routinely requested by opposing parties and routinely allowed by the court. Although the rule still states that a party may obtain this information “through interrogatories,” as a practical matter, the automatic disclosure provisions of the scheduling order will require production of this information as a matter of course. It is the intent of the rule that a full, good faith disclosure be made to avoid issues concerning expert testimony arising for the first time at trial.

Advisory Committee’s Notes May 1, 1999 (Second)

Subdivision (g) has been abrogated and replaced. Although a good faith discovery conference is required to resolve disputes by agreement, the rule prohibits written discovery motions unless otherwise ordered by the court. Discovery disputes will now be resolved by telephone or personal conference or hearing of a justice or judge of the court in which the action is pending. The purpose of the amendment is to provide a swift, inexpensive means for judicial intervention to resolve discovery disputes and to keep the case moving forward according to the original deadlines entered by the scheduling order. Most discovery issues can be quickly and efficiently resolved by a judicial officer without the necessity of written motions and memoranda. In order to initiate the new process, the party requesting court action simply contacts the appropriate clerk by letter or, in exigent circumstances, by telephone or in person. The request itself constitutes a representation to the court, subject to the sanction of Rule 11, that the issue remains unresolved after a discovery conference had been conducted in good faith. The clerk then sets up a time for the hearing or conference with the court and informs the moving party, who is responsible for notifying all other parties and for initiating any telephone conference. The hearing or conference is intended to be as informal as the process of requesting it. It is the moving party’s obligation to provide an unargumentative letter to the court describing the dispute succinctly and enclosing the discovery requests and responses at issue. No written argument is to be submitted and no other papers are to be filed with the clerk without prior leave of the court. The letter and the materials are intended simply as a guide to the court in the resolution of the dispute.

The rule explicitly gives the justice or judge conducting the hearing the authority to make “such orders at the hearing as are necessary to resolve the dispute.” The orders are to be reduced to writing and constitute “orders” for the purposes of sanctions under Rule 37. If it appears that the nature of the dispute is such that the court would find written submissions helpful, the court may order the parties to file written motions and supporting memoranda on some or all of the issues. The process is intended to be swift, practical, inexpensive and flexible.


Rule 26(f) is amended to make clear that miniaturized deposition transcripts may be served and filed as provided in the simultaneous amendment of Rule 5(f).


Rule 26(g) is added. The provision is adapted from Local Rule 16(e) of the United States District Court for the District of Maine. Its purpose is to reduce the number of contested discovery motions by requiring the moving party to make a good faith effort to confer with opposing counsel prior to filing a motion and to certify that the conference has occurred or that it was not held for stated reasons.


Rule 26(f) is added to eliminate the requirement of filing discovery materials with the Court unless otherwise ordered, or unless the material is to be used in the proceeding. See also simultaneous amendments of M.R. Civ. P. 5(d) and 30(f)(1) and additions of Form 17. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C.Civ.R. 26. The rule is taken from Rule 16(d), (g) of the Rules of the United States District Court for the District of Maine and from F.R.Civ.P. 5(d), upon which the local rule is based. The new rule is deemed necessary because currently the filing of large volumes of interrogatory requests and responses and deposition transcripts poses a significant problem for Superior Court clerk’s offices. Further, including discovery in court files makes those files much more difficult to review. The party initiating the discovery should file Official Form 17, added by simultaneous

amendment, to provide information from which the clerk may docket the service to provide entries that stop the running of the two-year period of Rule 41(b). Under paragraph (1) of the new rule, discovery materials are to be retained by the party serving notice of a deposition or otherwise initiating discovery for a period of two years after final judgment. Note that, in the event of an appeal, the final judgment referred to is that entered after disposition of the appeal. The burden remains upon the party who would use a deposition as evidence under Rule 32(a), or use other discovery materials as part of the record, to obtain the original or appropriate copies from the party having custody for appropriate filing. The duty to preserve the integrity of the materials is a matter of professional responsibility on the part of the lawyer having custody. Paragraph (2), taken from D. Me. D.R. 16(g), provides the procedure for filing when discovery material is to be used at trial and makes plain that, to assure that the full context is available, the complete deposition or other matter must be filed.


February 1, 1983

Rule 26(a) is amended to make the rule consistent with the recent revision of Rule 33 whereby the limitation on the number of written interrogatories was removed.

Advisory Committee’s Notes October 1, 1970

General Discussion of Discovery Amendments

The Federal Rules of Civil Procedure relating to discovery have been

extensively amended, effective on July 1, 1970. See 48 F.R.D. 459-80 (1970). Those amendments which affect F.R. 26 and 29-37 and certain related rules such as Rules 5(a), 45(d) (1), and 69 and Form 24 have been under consideration by the federal Advisory Committee on Civil Rules for several years. In November, 1967, that Committee presented to Bench and Bar a Preliminary Draft of the proposed Amendments for their comments.

This comprehensive review of the federal discovery rules, the first undertaken since their promulgation in 1938, has resulted in improvements which

on their merits commend themselves for adoption in State practice. In addition, it is desirable for the convenience of Maine practicing lawyers to maintain substantial uniformity between the Federal Rules of Procedure and the Maine Rules of Civil Procedure. Substantial uniformity was a guiding principle in the original promulgation in 1959 of the Maine Rules. Also, a substantial body of amendments were made to the Maine Rules effective November 1, 1966, in order to conform to 1963 and 1966 Amendments to the Federal Rules. For both of these reasons, namely, the inherent merit of the amendments to the federal discovery rules and the desirability of maintaining uniformity between the State and federal practice, the Advisory Committee recommends amendment of the Maine discovery rules. At the same time, the Committee recommends that a limited number of differences be maintained for the same reasons which were deemed sufficient in 1959. First, whereas F.R. 30(b) provides for merely “reasonable notice” of the taking of a deposition, Maine Rule 30 requires a minimum of seven days’ notice of a deposition unless the court otherwise orders. Secondly, whereas F.R. 33 puts no limitation upon the number or frequency of interrogatories, Maine Rule 33 permits, except by court order, only one set of interrogatories, numbering not in excess of thirty.

The principal changes in the discovery rules have been explained in an introductory statement by the federal Advisory Committee on Civil Rules in the following terms:

“The discovery rules, as adopted in 1938, were a striking and

imaginative departure from tradition. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. These amendments make substantial changes in the discovery rules. Those summarized here are among important changes.

“Scope of Discovery. New provisions are made and existing

provisions changed affecting the scope of discovery: (1) The contents of insurance policies are made discoverable (Rule 26(b) (2)). (2) A showing of good cause is no longer required for discovery of documents and things and entry upon land (Rule 34). However, a showing of need is required for discovery of ‘trial preparation materials other than a party’s discovery of his own statement and a witness discovery of his own statement; and protection

is afforded against disclosure in such documents of mental impression, conclusions, opinions, or legal theories concerning the litigation. (Rule 26(b) (3)). (3) Provision is made for discovery with respect to experts retained for trial preparation, and particularly those experts who will be called to testify at trial (Rule 26(b) (4)). (4) It is provided that interrogatories and requests for admission are not objectionable simply because they relate to matters of opinion or contention, subject of course to the supervisory power of the court (Rules 33(b), 36(a)). (5) Medical examination is made available as to certain nonparties. (Rule 35(a)).

“Mechanics of Discovery. A variety of changes are made in the

mechanics of the discovery process, affecting the sequence and timing of discovery, the respective obligations of the parties with respect to requests, responses, and motions for court orders, and the related powers of the court to enforce discovery requests and to protect against their abusive use. A new provision eliminates the automatic grant of priority in discovery to one side (Rule 26(d)). Another provides that a party is not under a duty to supplement his responses to requests for discovery, except as specified (Rule 26(e)).

“Other changes in the mechanics of discovery are designed to

encourage extrajudicial discovery with a minimum of court intervention. Among these are the following: (1) The requirement that a plaintiff seek leave of court for early discovery requests is eliminated or reduced, and motions for a court order under Rule 34 are made unnecessary. Motions under Rule 35 are continued. (2) Answers and objections are to be served together and an enlargement of the time for response is provided. (3) The party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties. (4) Judicial sanctions are tightened with respect to unjustified insistence upon or objection to discovery. These changes bring Rules 33, 34, and 36 substantially into line with the procedure now provided for depositions.

“Failure to amend Rule 35 in the same way is based upon two

considerations. First, the Columbia Survey (described below)** finds that * [Field. McKusick & Wroth comment: “See Field, McKusick & Wroth § 26.1, n. 2; and Glaser,

Pre-Trial Discovery and the Adversary System (1968).” Field, McKusick & Wroth, Maine Civil Practice at 204 (Supp. 1981).]

only about 5 percent of medical examinations require court motions, of which about half result in court orders. Second and of greater importance, the interest of the person to be examined in the privacy of his person was recently stressed by the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The court emphasized the trial judge=s responsibility to assure that the medical examination was justified, particularly as to its scope.

“Rearrangement of Rules. A limited rearrangement of the discovery

rules has been made, whereby certain provisions are transferred from one rule to another. The reasons for this rearrangement are discussed below in a separate section of this statement, and the details are set out in a table at the end of this statement.

“Optional Procedures. In two instances, new optional procedures

have been made available. A new procedure is provided to a party seeking to take the deposition of a corporation or other organization (Rule 30(b) (6)). A party on whom interrogatories have been served requesting information derivable from his business records may under specified circumstances produce the records rather than give answers (Rule 33(c)).

“Other Changes. This summary of changes is by no means

exhaustive. Various changes have been made in order to improve, tighten, or clarify particular provisions, to resolve conflicts in the case law, and to improve language. All changes, whether mentioned here or not, are discussed in the appropriate note for each rule @ (48 F.R.D. 487-89 (1970)).

In general, the original discovery rules, both federal and Maine, were

structured in terms of individual discovery devices. For example, Rules 26 and 28 through 32 dealt with taking depositions and Rules 33 to 36 dealt with written interrogatories, production of documents and things, physical or mental examination, and requests for admission. The amendment of the federal discovery rules makes Rule 26 the repository of general provisions applicable to all or most of the discovery devices. It includes new provisions in regard to the scope, timing and regulation of discovery generally. Other provisions in the existing Rule 26 relating only to depositions are transferred to Rules 30, 31 and 32. This rearrangement of the discovery rules produces a more coherent and intelligent pattern.

Table Showing Rearrangement of Rules

Existing Rule No. New Rule No. 26(a) 30(a), 31(a) 26(c) 30(c) 26(d) 32(a) 26(e) 32(b) 26(f) 32(c) 30(a) 30(b) 30(b) 26(c) 32 32(d) The foregoing over-all explanation of the federal discovery amendments serves a similar role for the Maine amendments. [A] separate Advisory Committee’s Note accompanying each of the amended discovery rules points out the particular changes made thereby in Maine practice and the differences between the federal and the State amendments. For a study in depth of the background of the federal and Maine discovery amendments, resort may be had to the extensive federal Advisory Committee’s Notes. See 48 F.R.D. 491-545.

Amendments to Rule 26 In carrying out the limited rearrangement of the discovery rules in order to establish Rule 26 as a rule governing in general all six discovery devices, certain subdivisions of existing Rule 26 are moved elsewhere: Existing Rule 26(a) dealing with when depositions may be taken, is moved to Rule 30(a) as to oral depositions and to Rule 31(a) as to depositions upon written questions. Existing Rule 26(c), relating to examination and cross-examination of deponents, is moved to Rule 30 (c). Existing Rules 26(d), (e), and (f), relating to the use of depositions, objections to admissibility, and the effect of taking and using depositions, become Rules 32(a), (b) and (c), where they are combined with the existing subject matter of Rule 32, which becomes subdivision (d), relating to the effect of errors and irregularities in depositions. To complete the rearrangement affecting Rule 26, existing Rule 30(b) providing for orders for the protection of parties and witnesses is moved to become new Rule 26(c). Rule 26(a) merely lists the six methods of discovery and states that the frequency of use of such methods is unlimited, except as the use of written interrogatories is limited by Rule 33(a) to one set of not more than thirty interrogatories and also except as the court may otherwise direct in a protective order.

Rule 26(b) prescribes the permissible scope of discovery. The general statement of scope contained in Rule 26(b) (1) is in substance unchanged from existing Rule 26(b), broadened to apply to all discovery methods. Rule 26(b) (2) makes insurance coverage discoverable, but it is expressly declared that disclosure does not make the facts concerning insurance coverage admissible in evidence at trial. As the federal Advisory Committee’s Note points out, “Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” 48 F.R.D.487, 499. In light of the realities of personal injury and property damage litigation today, discovery of insurance coverage is as necessary to “the just, speedy, and inexpensive determination of every action” called for by Rule 1 as is discovery of the facts pertinent to liability and damages. Rule 26(b) (3) declares the terms upon which trial preparation materials may be discovered. Maine Rule 26(b) as adopted in 1959 anticipated the express provision now contained in the new F.R.26(b) (3), requiring a special showing for the discovery of documents and tangible things prepared in anticipation of litigation or for trial by the adverse party or his representative and giving absolute protection of disclosure of an attorney's mental impressions, conclusions, opinions or legal theories. The first paragraph of new Rule 26(b) (3) thus works no substantial change in Maine practice. Rule 26(b) (3) does, however, in its second paragraph eliminate the requirement of any showing to permit a party to obtain a copy of a statement concerning the action or its subject matter previously made by him. That paragraph will thus resolve a question that has previously been undecided in Maine. See Field, McKusick and Wroth § 26.16. A further change permits a non-party witness to obtain a copy of his own statement; he needs to make no special showing. Rule 26(b) (4) spells out in detail the limited circumstances in which facts known and opinions held by experts and acquired or developed in anticipation of litigation or for trial may be discovered. The last sentence of present Maine Rule 26(b) extends a complete immunity from discovery to “the conclusions of an expert,” except as provided in Rule 35(b) for reports of physical and mental examinations. Although the existing immunity is absolute, the scope of the protection is limited to “conclusions” and to “experts” who are not parties and who are specially employed in connection with the litigation. See Field, McKusick and Wroth § 26.17. The new rule reflects the view of much recent authority to the effect that there should not be any absolute immunity even of limited scope, that

the identity and content of proposed testimony of an expert witness to be called at trial should be freely available, and that facts known or opinions held by other experts retained in anticipation of litigation, but not expected to be called at trial, should be available only under showing of exceptional circumstances. It is believed that the new rule in regard to experts is desirable in spelling out in greater detail the extent of discoverability of facts known and opinions held by experts and imposing allocation of fees and expenses. Rule 26(c) is substantially identical to existing Rule 30(b). Items (9) and (10) are added to F.R. 26(c) to preserve two specific types of protective orders for which the Maine Rule from the beginning has expressly provided. The last sentence calling upon the court to exercise with liberality its power to issue protective orders is also preserved from the original Maine Rule 30(b) and does not appear in the corresponding Federal Rule. Rule 26(d) is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. Although problems in this regard have been encountered in federal practice, see federal Advisory Committee’s Note to F.R. 26(d), 48 F.R.D. 506-07, it is not believed that any change in Maine practice will be produced by new Rule 26(d). Rule 26(e) fills a gap existing in the present rules by setting forth those limited circumstances where a party who has responded to a request for discovery is under a duty to supplement his responses. The new F.R. 26(e) is substantially similar to Local Rule 15(c) of the United States District Court for Maine, and does not differ substantially from the duty which Maine lawyers feel they owe their fellow attorneys as a matter of fair dealing. See Field, McKusick and Wroth § 26.18a.


This amendment was taken from a 1963 amendment to F.R. 26(e). It simply

incorporated a reference to Rule 28(b), which was amended at the same time in order to provide a greater degree of flexibility in the taking of depositions in foreign countries.


This rule is substantially the same as Federal Rule 26, but with the addition of the last sentence of Rule 26(b). Under Rule 26(a) the deposition of any witness, including a party, may be taken on either oral or written interrogatories within or outside the state. Leave of court is not required except when a plaintiff seeks a deposition within 20 days after service upon the defendant, for at such time the defendant might not have retained counsel. This freedom to take the deposition of any person should be read in the light of Rule 26(d), which limits the use of depositions at trial. Under R.S.1954, Chap. 117, Sec. 5, 21 (repealed in 1959), the deposition of an adverse party may be taken by commission only when he is outside the state. The rule contains no such limitation. The effect of the rule is to make depositions broadly usable for discovery purposes even though the witness will presumably be available for trial. Rule 26(b) makes it clear that the scope of examination on deposition is not limited by the standards of admissibility of evidence at trial. Inquiry may be made as to any matter, not privileged, which is relevant to the subject matter of the action. Depositions may be taken to obtain disclosure of an opponent's case and to obtain leads to aid in the development of one's own ease. That these leads are in the form of inadmissible hearsay is no ground for objection at the deposition stage, although the testimony would be excluded on objection if the deposition were offered at trial. Thus a party can learn the names and addresses of witnesses unknown to him and what their story will be. He can find out about the existence and location of relevant books, documents and the like, so that he can proceed to obtain discovery of them. The sweep of disclosure is, however, limited by the last sentence of Rule 26(b), which is taken from the New Jersey rule. It forbids discovery of a written statement taken by or for an attorney in anticipation of litigation or in preparation for trial unless the court otherwise orders to prevent injustice or undue hardship. This reflects the holding of the Supreme Court of the United States in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), but is broader than that holding. Rule 26(d) covers the use of depositions at trial, where the ordinary rules of admissibility govern. The deposition of an adverse party may be used for any purpose, so far as the rules of evidence permit. It may be used as substantive evidence even though the party is present and has testified. The deposition of a witness other than an adverse party may be used if the witness is unavailable for any of the reasons specified in the rule. The test of unavailability is somewhat broader than in the Maine statute. Naturally the deposition of any witness may be used to contradict or impeach his testimony, just as any other inconsistent statement can be.

Rule 26(e) allows objection to deposition evidence to be made for the first time at trial except objections based upon grounds which might have been obviated if presented at the taking of the deposition. This is similar to R.S.1954, Chap. 117, Sec. 18 (repealed in 1959).

RULE 27. DISCOVERY BEFORE ACTION OR PENDING APPEAL (a) Before Action. (1) Petition. A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition in the Superior Court in the county, or in the District Court in the division, of the residence of any expected adverse party; and if there be more than one expected adverse party, some of whom may live in different counties or divisions, then the petition may be filed in any county or division in which an expected adverse party may reside. The petition shall be entitled in the name of the petitioner and shall show: (i) that the petitioner expects to be a party to an action cognizable in a court of the state but is presently unable to bring it or cause it to be brought, (ii) the subject matter of the expected action and the petitioner’s interest therein, (iii) the facts which the petitioner desires to establish by the proposed testimony or other discovery and the petitioner’s reasons for desiring to perpetuate or obtain it, (iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (v) the names and addresses of the persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the petitioner expects to elicit or obtain from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or 35 from the persons named in the petition. (2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 4(d), (e), or (j) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d), (e), or (j), an attorney who shall represent them and whose services shall be paid for by the petitioner in an amount fixed by the court, and, in case they are not otherwise represented, shall cross-examine the deponent. If any

expected adverse party is a minor or incompetent the provisions of Rule 17(b) apply. (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35. Discovery may then be had in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed. (4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the court by the authority of which it is taken, it may be used in any action involving the same subject matter subsequently brought in any court of this state having cognizance thereof in accordance with the provisions of Rule 32(a) and (b). (b) Pending Appeal. If an appeal has been taken from a judgment or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony or may allow discovery under Rule 34 or 35 for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony or obtain the discovery may make a motion therefor upon the same notice and service thereof as if the action was pending in that court. The motion shall show (1) the names and addresses of persons to be examined or from whom other discovery is sought and the substance of the testimony or other discovery which the party expects to elicit or obtain from each; (2) the reasons for perpetuating the testimony. If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in civil actions generally. (c) Recording in Registry of Deeds. Any deposition to perpetuate testimony taken before action or pending appeal together with the verified petition therefor

and certificate of the officer before whom it was taken may, within 90 days after the taking, be recorded in the registry of deeds in the county where the land or any part of it lies, if the deposition relates to real estate; if not, in the county where the parties or any of them reside. (d) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

Advisory Committee’s Note September 23, 1971

The principal amendments made to Rule 27 have the purpose of expressly

permitting production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken. The changes which are made in subdivisions (a) (1) and (a) (3) and in subdivision (b) clarify an ambiguity that exists in Federal Rule 27 and in the existing Maine rule modeled thereon. See 8 Wright & Miller, Federal Practice and Procedure § 2074 (1970). The rule as amended conforms to Rule 27 of the Vermont Rules of Civil Procedure. Rule 27 has always provided, both in connection with depositions before action and depositions pending appeal, that the court “may make orders of the character provided for by Rules 34 and 35.” See Rule 27(a) (3) and 27(b). Of course the express provision that the court may permit independent discovery under Rule 34 or Rule 35 in no way implies that the court may not combine such a Rule 34 or 35 order with one for depositions.

The other two changes in Rule 27 are necessitated by prior amendments of other rules. Rule 27(a) (2) is amended to make specific reference to the possibility of service under Rule 4(j), which through a 1966 amendment made available alternative provisions for service in a foreign country. Correction of the cross-reference in Rule 27(a) (4) became necessary with the rearrangement of certain rules in connection with the substantial revision of the discovery rules effective July 1, 1970.


This rule, which is substantially the same as Federal Rule 27, is intended only for the perpetuation of testimony and not as a discovery device. It is not significantly different from R.S.1954, Chap. 117, Sec. 21ff. (repealed in 1959).

Rule 27(c) is not in the federal rule. It continues the requirement of R.S.1954, Chap. 117, Sec. 24 (amended in 1959) [now 16 M.R.S.A. § 552], that a deposition to perpetuate testimony be recorded in the appropriate registry of deeds within 90 days after the taking.

RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN (a) Within the State. Within the state depositions shall be taken before a notary public or a person appointed by the court. A person so appointed has power to administer oaths and take testimony. (b) Outside the State. Within another state, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person appointed or commissioned by the court, and such a person shall have the power by virtue of the appointment or commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in (here name the state, territory or country).” Evidence obtained in a foreign country in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. (c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.


Rule 28(d) is abrogated. The procedure which it provides is replaced by the

revised procedures contained in simultaneous amendments adding Rules 30(h) and 31(d). Those rules are a more logical location for these provisions. The current amendments provide an appropriate opportunity for this clean-up change.


November 1, 1969 The appointment of commissioners to take depositions under 16 M.R.S.A. §§ 554-56, has fallen into complete disuse, and 1969 Laws, c. 367, § 3 repeals those sections. The present amendment of Rule 28(a) eliminates the reference to commissioners appointed under that statute. The other amendment of Rule 28(a) and the amendment in Rule 28(b) are made for the purpose of making available within another state or within a territory or insular possession subject to the dominion of the United States all the same options for deposition-taking as are available in foreign countries under the existing Rule 28(b). The present rule created the anomalous situation that there were fewer options for taking a deposition in the State of New Hampshire or the State of Louisiana than there were for taking a deposition in Canada. For example, the letter rogatory was not provided as a way for taking a deposition in another state. This revised form of Rule 28 follows Rule 28 of the Rhode Island Rules of Civil Procedure.

Explanation of Amendment November 1, 1966; January 1, 1967

The amendment in Rule 28(a) merely updated the statutory reference.

Revised Rule 28(b) was taken from a 1963 amendment to F.R. 28(b), which

was developed collaboratively by the Commission and Advisory Committee on International Rules of Judicial Procedure and the Federal Advisory Committee on Civil Rules. It enlarges the class of persons before whom depositions may be taken in a foreign country so as to include officers of the country in which the deposition is taken. It also makes clear that the appointment of a person to take a deposition in itself confers the power to administer any necessary oath, as Rule 28(a) already provides with respect to depositions within the United States. The amendment also seeks to overcome an antipathy to letters rogatory reflected in some federal decisions and to give the court a free choice in issuing a letter rogatory or a commission in the light of all the circumstances. The last sentence of the amended rule gives discretion to the trial court to admit a deposition taken under a letter rogatory which does not satisfy the ordinary requirements for depositions taken within the United States. In executing a letter rogatory a foreign court may be expected to follow its customary procedure for taking testimony, which may not be in accord with our own.


This rule is similar to Federal Rule 28 but with some modifications and additions. The first sentence of Rule 28(a) preserves existing law. R.S.1954, Chap. 117, Sec. 2 (repealed in 1959). The reference in the statute to disqualification for interest is covered by Rule 28(c). Depositions without the state but within the United States may be taken before any of the enumerated persons. Compare R.S. 1954, Chap. 117, Sec. 20 (repealed in 1959). Rule 28(b) covers depositions in foreign countries. It is contemplated that under this rule depositions will be taken under the simple notice procedure whenever practicable. The notice procedure will not work, however, when it is necessary to enlist the aid of the foreign court to compel the attendance of the witness. Moreover, some foreign countries will not allow a person appointed by a court of another country to sit within their jurisdiction to take deposition testimony. This is true in Russia, Yugoslavia and Switzerland. Hence letters rogatory may be necessary. When the need arises to take a deposition in a foreign country, it is advisable to make inquiry of the State Department as to precisely what method may be used. Rule 28(d), which is not included in the federal rule, is designed to help persons in other states get deposition testimony from witnesses in Maine. A witness who fails to respond to a subpoena for a deposition in an out-of-state action is punishable for contempt, and the court may order an answer in accordance with Rule 37(a) and punish for contempt in accordance with Rule 37(b) (1).

RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery.


One objective of the amendments to the discovery rules is to permit the

discovery process to operate with a minimum of intervention by the court. In Maine where a judge is in many counties available only infrequently and where in all counties the judges are too busy to be burdened with handling routine and nonessential motions, extrajudicial operation of discovery is even more desirable. Rule 29 permits the parties by stipulation to modify any of the procedures provided by the discovery rules. Any stipulation varying the discovery procedures may be superseded by court order. It is expected that the court will intervene to overrule a stipulation only under extraordinary circumstances.

Among the discovery procedures which may be modified by written stipulation of the parties are the time periods for responding to interrogatories under Rule 33, requests for production or inspection under Rule 30(b) (5) or Rule 34, and requests for admissions under Rule 36. The November, 1967, Preliminary Draft of the proposed amendments to the federal discovery rules contained Rule 29 in the same form as now adopted by Maine. However, the federal Advisory Committee on Civil Rules before the final submission of its recommendations to the Judicial Conference of the United States added the following limited clause: “except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may be made only with the approval of the court.” The Maine Committee does not believe that this limitation on written stipulations by the parties would be desirable in the context of Maine practice and accordingly have not followed the lead of the federal rulemakers in this regard.


This rule is the same as Federal Rule 29.

RULE 30. DEPOSITIONS UPON ORAL EXAMINATION (a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, either within or without the state, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. Unless otherwise ordered by the court, each party to the action may take no more than 5 depositions. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Notice of Examination: General Requirements; Special Notice; Non-stenographic Recording; Production of Documents and Things; Deposition of Organization. (1) A party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action at least 10 days before the time of the taking of the deposition, but the court on an ex parte application and for good cause shown may prescribe a shorter notice. The notice shall state:

(A) The time and place for taking the deposition and whether a stenographic court reporter will be present to record the deposition;

(B) The name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular category of persons to which the person to be deposed belongs;

(C) The person before whom the deposition will be taken; and

(D) The method by which the deposition will be recorded, which method shall be one of the methods designated in subdivision (b)(4) of this rule.

If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the state and will be unavailable for examination unless the person’s deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff’s attorney shall sign the notice, and the attorney’s signature constitutes a certification by the attorney that to the best of the attorney’s knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when the party was served with notice under this subdivision (b)(2) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party. (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) A deposition may be recorded by:

(A) Shorthand writing,

(B) Stenotype machine,

(C) Tape recording with multi-track tape,

(D) Video camera recording, or

(E) Any other method agreed to by the parties or approved by the court.

Any method for recording a deposition shall:

(A) Comply with the requirements of Rule 28;

(B) Assure an accurate and trustworthy recording;

(C) Provide clear identification of the separate speakers;

(D) Permit editing for use at trial in a manner that will allow expeditious removal of objectionable and extraneous material without significant disruption in presentation of the edited testimony to a jury;

(E) Allow prompt preparation of a written transcript of the proceedings if such is ordered by any party or the court; and

(F) Allow prompt copying of any audio or video tape of the proceedings, where an audio or video tape is used, if such is ordered by any party or the court.

Any party may object to the taking of a deposition on the grounds that the recording method is not one of those approved above, or that the recording method will not comply with one or more of the criteria (A) through (F) above. Such an objection shall be served in writing and received by the other parties and the court at least 3 days prior to the scheduled date for the deposition. Where such an objection is served, the deposition shall be deferred until such time as the objection is heard by the court. In a video deposition, the camera shall focus only on the witness and any exhibits utilized by the witness, unless the parties agree otherwise. Any other party may record a deposition by any means, provided that the recording does not disrupt or impede the deposition process. The method of recording specified in the notice by the party noticing the deposition shall constitute the only official record of the deposition. (5) The notice to a party deponent may be accompanied by a request that at the taking of the deposition the party deponent produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of Rule 26(b). The party deponent may, within 5 days after service of the notice, serve upon the party taking the deposition written objection to inspection or copying of any or all of the designated materials. If objection is made, the party taking the deposition shall not be entitled to inspect the materials except pursuant to an order of any justice or judge of the court in which the action is pending. The party taking the deposition may move at any time before or during the taking of the deposition for an order

under Rule 37(a) with respect to any objection to the request or any part thereof, or any failure to produce or permit inspection as requested. (6) A party may in the party’s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Maine Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness. The testimony shall be recorded by the means specified in the notice of taking as provided in subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. The court may order the cost of transcription paid by one or some of, or apportioned among, the parties. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Manner of Making Objections; Duration of Depositions; Motion to Terminate or Limit Examination.

(1) Any Objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3). (2) No deposition shall exceed 8 hours of testimony, but the court may allow additional time on such terms as justice requires for a fair examination of the deponent or if the deponent or another party impedes or delays the examination. If the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney fees incurred by any parties as a result thereof. (3) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, any justice or judge of the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness by the officer for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court

holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. The officer shall notify counsel of record of the witness’ action or inaction. (f) Certification by Officer; Exhibits; Copies. (1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. The officer shall then promptly deliver or mail it to the party that has served the original notice of a deposition. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if the person producing the materials affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. (2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (3) Where the deposition is recorded electronically and a transcript is not prepared, the certification and materials required in paragraph (1) of this subdivision shall be filed with the tape cassette or other electronically preserved record of the deposition. (g) Failure to Attend or to Serve Subpoena; Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorney fees.

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorney fees. (h) Depositions for Use in Foreign Jurisdictions. (1) The deposition of any person may be taken in this state upon oral examination pursuant to the laws of another state or of the United States or of another country for use in proceedings there. (2) If a party seeking to take a deposition or depositions under this subdivision files with the clerk in the county where any deponent resides or is employed or transacts business in person an application as provided in paragraph (3) of this subdivision,

(i) the clerk shall docket the application as though it were a pending action under these rules and may issue a subpoena or subpoenas as provided in Rule 45, in aid of the taking of the deposition of any person named or described in the application;

(ii) whether or not a subpoena has issued, any deponent or party may apply for and be granted any appropriate relief as provided in subdivision (d) of this rule and in Rules 37(a) and 37(b)(1).

(3) The application required by paragraph (2) of this subdivision shall bear the same title as the action or proceeding in the court where it is pending and shall set forth

(i) The name and location of the court in which the action or proceeding is pending.

(ii) The title and docket or other identifying number of the action or proceeding in the court where pending.

(iii) A brief statement of the nature of the action or proceeding and the provisions of the laws of the jurisdiction where the action or proceeding is pending which authorize the deposition.

(iv) The time and place for taking each deposition.

(v) The name and address of each person to be examined, if known, and if the name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs.

(vi) If a subpoena duces tecum is to be served, a designation of the materials to be produced.

(vii) A statement that timely and adequate notice of the taking has been given to all opposing parties either in the manner required by the laws of the jurisdiction where the action or proceeding is pending or in the manner provided in paragraph (1) of subdivision (b) of this rule.

The application shall be signed by a member of the bar of this state, and the member’s signature constitutes a certification by the member that to the best of the member’s knowledge, information, and belief all statements and supporting facts contained therein are true. The sanctions provided by Rule 11 are applicable to the certification.


The amendment to M.R. Civ. P. 30(b)(1)(A) requires a party to state in the notice whether a court reporter will be present to record the deposition. The intention of the amendment is to give an opposing party sufficient time to procure a court reporter if the recording method is to be one of the other methods permitted by the rule.


May 1, 1999 There are two significant amendments to Rule 30, one limiting the number and length of depositions and the other proscribing certain unfair tactics. Rule 30(a) now provides that each party may take no more than five depositions. The purpose of this amendment and the other new limitations in the discovery rules is to limit the amount of discovery a party may undertake as a matter of right. If a party proposes to take more than five depositions, court approval must be obtained by request under Rule 26(g). Just as the amendment does not limit the court authority to allow more than five depositions, the court also has the authority to limit the number of depositions to less than five in appropriate cases, such as where multiple parties represent a single interest. Thus, a case brought by a tort claimant for injury and by the claimant’s spouse for loss of consortium may well be a candidate for the court deciding on motion that both parties represent a single interest for the purposes of the discovery limitations. The total length of a single deposition is also limited to eight hours under Rule 30(d)(2). Again, the court may alter the limitation “as justice requires” on application under Rule 26(g). A second amendment to Rule 30 is made by a new subdivision (d)(1), taken from its federal counterpart. The amendment proscribes “speaking objections” at depositions that either burden the record with argument of counsel or suggest responses to the witness. The new subdivision also permits an instruction to a deponent not to answer a question only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court or to present a motion concerning the issue. Lawyers frequently complain that opposing counsel instruct witnesses not to answer questions on the grounds of relevance or other improper bases. The intent of the rule is to eliminate this practice by providing that the only proper occasion for an instruction not to answer is one in which the giving of the answer would make the invocation of a privilege or a limitation imposed by the court an empty exercise. Applications to the court under Rule 30(d)(1) should be made under Rule 26(g). An amendment to the redesignated subdivision (d)(3) has no substantive affect. The language “during the taking of the deposition” has simply been changed to “during a deposition.”


Rule 30(b)(7) is added to provide that a deposition may be taken by telephone upon stipulation or order of the court. The amendment embodies the first sentence of Federal Rule 30(b)(7) added by amendment in 1980.


The purpose of these amendments is to broaden the current rules relating to recording of depositions to accommodate technologies, particularly electronic recording and video recording which have developed or been perfected since the rule was last significantly revised in 1970. Additionally, the rules amendments avoid concern that the present rules may unduly restrict competition in this area. Further, it is hoped that the amended rules may present some opportunities for cost savings in discovery. The amendments have the following features: 1. The notice time for depositions in paragraph (b)(l) is extended to 10 days to provide more realistic times for notice and to provide opportunities for objection where appropriate. Counsel should make all appropriate efforts to contact other parties and arrange mutually convenient deposition times rather than simply sending notices and expecting other parties to comply. 2. The second sentence of paragraph (b)(1) is amended to restructure the sentence into subparagraphs A, B, C and D. However, subparagraphs A and B essentially are the same as the present rule. Subparagraph C is consistent with present practice where the deposition officer is regularly identified. Subparagraph D requires that the notice of the deposition specify the manner in which the deposition will be taken. It is the intent of this provision that the parties, in addition to designating who will take the deposition, indicate the recording method that will be used in taking the deposition. This may allow parties properly to prepare for the deposition, and it also will allow for any objections to the method of deposition taking to be filed in accordance with amendments to paragraph (b)(4) below. 3. Paragraph (b)(4) is completely rewritten. The principal effect of the amendment is to provide four alternative methods of recording depositions

which do not need prior approval by court order. These are shorthand writing, which is still used by a few court reporters; the stenotype machine, which is presently the principal method for recording depositions; tape recording by multi-track tape, which is the method of recording testimony presently used in District Court and is also utilized in some deposition recording proceedings; and video camera recording. Multi-track tape considerably eases the task of identifying separate speakers on a tape. It should be evident that single-track tape recorders, such as the standard cassette recorders with single microphones, would not meet this criterion and would not be viewed as adequate for deposition recording. Video camera recording also considerably simplifies identification of the speaker, because the focus is on the witness, who is the principal speaker, and the questioners can identify themselves separately. Further, questioner identification can be aided by proper operator records. Frequently video camera recording of depositions is supplemented by stenotype machine recording. However, if alternative adequate means are provided to separately identify speakers, stenotype machine supplement of video camera recording would not be needed in all cases. In video depositions, occasionally disputes have developed regarding proper focus of the camera. For that reason, the rule includes a provision that, unless the parties agree otherwise, the camera should focus only on the testifying witness and exhibits being utilized by that witness. In addition to the listed methods, any other method may be used which is agreed to by the parties or approved by the court. This qualification recognizes that there may be other developments and alternative systems which may be appropriate; it also recognizes, as presently under Rule 29, that the parties can do virtually anything in discovery procedure by agreement. The rule also establishes criteria which any deposition recording method must meet. The purpose is to permit greater flexibility in deposition taking methods by only setting criteria, rather than dictating the technology which must be used in taking the deposition. Generally, deposition recording methods which meet these criteria will be approved even where not listed specifically above. The criteria basically:

(A) Recognize the provisions of Rule 28, particularly the requirement that the deposition officer have no conflict of interest or relationship to the

parties, Rule 28(c), and that the deposition taker be a notary or other officer authorized to administer oaths, Rule 28(a).

(B) Incorporate the present requirement of paragraph (b)(4) that the deposition method assure an accurate and trustworthy recording.

(C) Assure that whatever deposition method is used, persons reviewing the deposition, either on the tape or in a typed transcript, will be able to identify separate speakers with relative ease.

(D) Require that any deposition method used be susceptible to editing in such a manner that the deposition can be either read back or played back at trial after any objectionable and/or extraneous materials have been removed from the deposition. Further, subsection (D) necessarily requires that this editing process operate without great cost or difficulty.

(E) and (F) Require that the deposition taker be able to prepare a written transcript relatively promptly on request of any party and, in addition, that the deposition taker can make available either a recorded tape or a video tape of any deposition where tape recording or video tape is used. This may allow counsel to obtain a taped copy, if desired, at considerably less cost than preparing a full transcript would involve.

The rules also establish a procedure for making objections to deposition methods. The procedures would require that any objection be received in writing by both the court and other parties to the deposition at least three business days before the deposition is scheduled. This would allow sufficient time to either reschedule or rearrange the deposition if a prompt court hearing on the objection to the deposition could not be scheduled. The issues at the court hearing would be whether the recording methods were those approved by this rule, and whether the recording methods to be utilized meet the criteria set in the rule. The procedure authorizes automatic extension of the time for deposition until the objection is ruled on by the court. The rule drafters recognize that there is the potential in this rule for improper use of frivolous objections to obstruct or delay depositions. At the same time, some objection procedure appears to be necessary until experience is gained with alternative technologies. Where the court finds objections to be frivolous or asserted for the purpose of delay, the court could impose appropriate sanctions under Rule 11 or Rule 37.

The amended rule also indicates that any party may record a deposition by any means as long as it does not obstruct the deposition. This amendment in part recognizes the current practice under Rule 30(b)(4) which authorizes stenographic recording even if an alternative means of taking the deposition is used. In addition, it recognizes current problems which have developed where some persons, often indigent or pro se litigants, have brought tape recorders to depositions, seeking to have a means of preserving their testimony without undertaking the cost of purchase of a transcript. Such recording would be allowed under the rules provided that it in no way obstructed the deposition. However, the result of any recording would not be an official transcript of the proceedings and could not be used to compete in any way with the official transcript should the official transcript be used in court. Rule 30(c) is amended for consistency with the simultaneous amendment of Rule 30(b)(4). Rule 30(e) is amended to make clear that it is the responsibility of the officer before whom a deposition has been taken to present the transcribed deposition to the witness for signature and that the officer must then notify counsel whether or not the witness has signed the deposition. The changes will allow counsel to request the officer to sign and file the transcript in timely fashion so that, at trial, issues as to whether the deposition transcript has been properly handled so as to be usable in court may be minimized. The catch-line of Rule 30(f) has been amended to eliminate a reference to filing by the officer, for consistency with the 1985 amendments eliminating the requirement of filing. Rule 30(f)(3) has been added, consistent with the amendments of Rule 30(b), to allow the filing of a certification and evidence used at the deposition along with a cassette or other electronically preserved record of the deposition without the necessity for filing a transcript.


Rule 30(f)(1) is amended simultaneously with the addition of Rule 26(f) to provide that the officer taking a deposition shall transmit it to the party that served the notice of taking, rather than to the clerk of court. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C.Civ.R. 30. The

requirement of the rule that the deposition be sealed has been eliminated since it is no longer necessary to insure the integrity of the original.


Rule 30(c) is amended by changing “of Rule 43(b)” in the first sentence to

read “of the Maine Rules of Evidence.” Rule 43(b), which is being abrogated, deals with the use of leading questions, the calling, interrogation, impeachment and scope of cross-examination of adverse parties, officers, etc. These topics are dealt with in many places in the Evidence Rules. Moreover, many pertinent topics included in the Evidence Rules, such as privilege, are not mentioned in Rule 43(b). A reference to the Evidence Rules generally is therefore made in this subdivision.


This amendment adds a new Rule 30(h), providing a simplified procedure

for taking depositions upon oral examination within Maine to be used in proceedings in another jurisdiction. The former procedure for such depositions contained in Rule 28(d) has been abrogated by a simultaneous amendment. At the same time, a new Rule 31(d) has been added, making the new provision applicable to depositions upon written questions. See Advisory Committee’s Notes to amendments of Rules 28 and 31. The amendments will be applicable in the District Court, because Civil Rules 28, 30 and 31 are incorporated in the comparable District Court rules.

Rule 30(h) (1), based on former Rule 28(d), asserts the general proposition that oral depositions may be taken within Maine pursuant to the laws of another jurisdiction. This provision means that most aspects of the deposition, including such matters as the scope and manner of examination and the method of recording, signing, and attesting, will be covered by foreign law. The rule serves only to make available to the foreign party the compulsory process of the Maine courts and to provide necessary protection for the deponent and other parties against abuse of that process. See [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.5 (2d ed. 1970).

Rule 30(h) (2) provides that upon the filing of the application specified in paragraph (3) of the subdivision, subpoenas to deponents may issue as of course and the protective and compulsive features of the rules come into play. See Form

16 and Advisory Committee’s Note thereto. The amendment simplifies the practice under former Rule 28(d), which required a court order entered upon petition for the issuance of subpoenas. Experience under that rule has shown the requirement of an order to be a pure formality. Proceedings were invariably ex parte and the court had no realistic basis for evaluating the petition. The new rule expressly places the burden for seeking relief from an improperly granted subpoena where it has always been in practice B upon the objecting deponent or party, who must move for relief under Rule 30(d). The effect is to place the proceeding on a parity with an action brought in Maine. The application serves the function of the notice of taking under Rule 45(d) (1). As under former Rule 28(d), the application is still to be filed in the county of residence or other personal contact of a deponent. The application is to be docketed by the clerk so that it will be readily accessible to the deponent or the parties.

In a further simplification of the practice, only one such application need be filed even where depositions are sought from deponents in more than one county. As in a Maine action, the clerk in the county where the application is filed may issue subpoenas to be served in other counties. Rule 45 (d) (2), incorporated by reference, protects the deponent from harassment by limiting the distance which he may be required to travel. Although incorporation of Rule 45 (d) (1) would seem to permit the use of subpoena duces tecum, neither that device nor production under Rule 30 (b) (5) should be allowed unless such production in conjunction with a deposition is permitted by the law of the jurisdiction where the action is pending.

Under new Rule 30(h) (2) (ii), the filing of the application gives the party seeking the deposition the right to compel answers under Rule 37(a) and seek a contempt sanction under Rule 37(b) (1). The deponent or any opposing party may also proceed under Rule 30(d) for an order terminating the examination or limiting it in one of the ways provided in Rule 26(c). To some extent the Maine court will be restricted in its actions under this provision by the law of the jurisdiction where the action is pending. Thus, if a court of that jurisdiction has issued a protective order under its own discovery rules, the Maine court should adhere to it. In shaping relief under Rule 26(c), the Maine court should be guided by any applicable provisions of the law of the other jurisdiction covering matters such as alternate discovery procedures or scope of examination, and it may be advisable in some instances simply to order suspension of the examination pending a ruling from the court where the action is pending. Of course, where the procedure being followed offends basic standards of fairness or would invade an interest protected under Maine law, such as the work product of a Maine lawyer or the evidentiary

privilege of a Maine citizen, the Court should not hesitate to grant appropriate relief. See [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.5.

Rule 30(h) (2) (ii) applies even if a subpoena has not been issued, so long as an application has been filed. Thus, as in a Maine action where notice of the deposition has been given to the parties, the parties may proceed without service of a subpoena and still have the advantages of the compulsive and protective provisions of the rules. Of course, the party seeking the deposition may elect to ignore the rule, relying entirely on the power of the foreign court over parties and witnesses within its jurisdiction to compel attendance and answers. In such case, the remedy of the deponent or an opposing party in the event of abuse would ordinarily be sought in the foreign court, although in an unusual instance involving irreparable harm of great magnitude a Maine court might grant injunctive relief in a separate proceeding. A Maine witness over whom the foreign court has no present or potential jurisdiction has the further recourse of declining to comply with a discovery request that is not backed up by the subpoena or order of a Maine court issued upon application under this rule. Cf. [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.3 at n. 3.

Rule 30(h) (3) describes the contents of the application, which for convenience of reference should be entitled as it is in the court where the action is pending. The application is not served on the deponent but remains on file and accessible to him like the pleadings in an action brought in Maine. The actual subpoena (Official Form 16) should include a reference to the application and the clerk’s office where it is filed. An accurate statement of the title of the court and action, including docket number, is required by subparagraphs (i) and (ii) both for completeness of the record in Maine and to enable the deponent to obtain copies of the pleadings if necessary. The term “proceeding” is used to make clear that the rule is not limited to civil actions but may be used to obtain depositions for use in probate, administrative, or criminal proceedings if the law of the other jurisdiction so provides. The statement of the action required by subparagraph (iii) should indicate briefly the factual basis of the plaintiff’s claim or other matter. Pertinent discovery provisions of the law of the other jurisdiction should at least be summarized and a proper citation given.

Rule 30(h) (3) (iv), (v), and (vi) are taken from the requirements for notice of deposition in Rule 30(b) (1). They are intended to provide the same foundation for the issuance of a subpoena under Rule 45(d) (1) that service and filing of the notice provides in a Maine action. Subparagraph (v) does not refer expressly to the provisions for corporate depositions contained in Rule 30(b) (6). If the jurisdiction

where the action is pending permits such a procedure, the appropriate designation should be included as the description of the deponent. Subparagraph (vii) makes clear that timely and adequate notice must be given to all opposing parties. Maine has an interest in assuring to all parties the opportunity to raise objections such as privilege even if the other jurisdiction does not so provide. If the law of that jurisdiction does not provide a form of notice the same as or equivalent to that provided by Rule 30(b) (1), the party seeking the deposition must give notice as provided in that rule. The last two sentences of Rule 30(h) (3), in language similar to that of Rule 30(b) (2), are intended to provide the Maine court with a guarantee against frivolous or abusive use of its process. Even if the party seeking the deposition is appearing pro se in the other jurisdiction, he must retain Maine counsel for purposes of this rule. Otherwise there would be no person against whom any necessary sanctions could be applied.


September 23, 1971

This amendment clarifies the procedure for examination of a non-party corporation or other organization. Subdivision (b) (6) permits a party to name a corporation or other organization (rather than a natural person) as a deponent in the notice of examination, which must also designate the matters about which discovery is desired. The corporation or other organization is then obliged to designate natural persons authorized to testify on its behalf. In the case of a non-party organization, it is necessary to serve a subpoena rather than merely a notice of examination in order to compel attendance at the taking of the deposition. See [1] Field, McKusick & Wroth, Maine Civil Practice § 45.5. The amendment makes clear that the subpoena may be used in this situation. When served with a subpoena naming it as the deponent and indicating the matters about which discovery is desired, the non-party organization must respond by designating natural persons who are then obliged to testify as to matters known or reasonably available to the organization. To insure that a non-party organization that is not represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to advise of the duty in the body of the subpoena. This amendment is taken directly from the amendment to F.R. 30(b) (6) which became effective July 1, 1971.


October 1, 1970

Rule 30 reflects some rearrangement of the discovery rules to consolidate in that rule the provisions relating to the procedure for taking oral depositions. The amendment reflects no changes in substance. Rule 30(a), substantially similar to existing Rule 26(a), makes several changes in the existing requirement of leave of court for the taking of a deposition by the plaintiff soon after service upon the defendant. First, leave is required by reference to the time the deposition is to be taken rather than the date of serving the notice of taking. Second, the twenty-day period is extended to thirty days. Third, leave is not required beyond the time that the defendant initiates discovery, thus showing that he has retained counsel. Fourth, leave of court is not required if the plaintiff’s attorney, subject to the sanctions of Rule 11, in the notice for the taking of a deposition states, and sets forth facts to support the statement, that the deponent is about to leave the state and will be unavailable for examination unless his deposition is taken before the expiration of the thirty-day period.

Rule 30(b) (1) preserves the requirement of the Maine Rule that, in absence of a court order changing the length of notice, a notice of at least seven days shall be given for the taking of an oral deposition. The difference is thus maintained between the Maine Rule and the Federal Rule, which requires merely “reasonable notice.” Rule 30(b) (1) also requires that if a subpoena duces tecum is to be served upon the deponent, the notice shall include a designation of the materials to be produced pursuant to subpoena; thus each party is able to prepare for the deposition more effectively.

Rule 30(b) (4) permits the use of less expensive methods of recording the deposition than the customary stenographic means, but requires that a court order be obtained therefor in order to assure accuracy and trustworthiness, unless the parties stipulate under Rule 29 for such modification of the standard procedures.

Rule 30(b) (5) spells out a simple procedure for the production and inspection of documents or things in connection with the taking of the deposition of a party witness. The procedure is similar to that under Rule 34 for requests for the production or inspection of documents or things, except that the time within which to subject to the request is shortened from thirty days to five days because of the necessities of the deposition situation. If the party deponent objects to the request for production and inspection, as, for example, on the ground of privilege or on the ground that the requested matter does not come within the scope of Rule 26(b) or on the ground of impossibility of compliance by the time of the taking of the deposition the party taking the deposition must take the initiative in seeking an order of court under Rule 37(a) compelling discovery. The procedure of Rule

30(b) (5) is comparable to that spelled out by Rule 45(d) for use when a subpoena duces tecum is served against a deponent. However, only the contempt powers of the court are available to enforce a subpoena duces tecum, which is usable only against a person who can be served within the state, and thus the subpoena duces tecum will customarily be used only against non-party deponents as to whom it is the only avail-able device. On the other hand, the full range of sanctions listed in Rule 37(b) (2) are available against a party deponent, thus making the procedure available against a party deponent under Rule 30(b) (5) both simpler and more effective.

The simple procedure of Rule 30(b) (5) specified for production in connection with a party deposition eliminates the problems that have previously existed as to the interrelation of existing Rules 30, 34 and 45, which problems were discussed in 1 Field, McKusick and Wroth 486-87. Maine Rule 30(b) (5) differs from the federal rule in that it spells out independently of Rule 34 the procedure for production in connection with depositions. F.R. 30(b) (5) simply states: “The procedure of Rule 34 shall apply to the request.” This intended application is ambiguous because Rule 34 gives 30 days within which to respond whereas a deposition can be taken on notice of a relatively few days, i. e., 7 days under Maine Rule 30(b) (1) and “reasonable” time under F.R. 30(b) (1).

Rule 30(b) (6) adds a new procedure on depositions which should be advantageous to both sides. A party may name a corporation, partnership, association or governmental agency as the deponent and designate the matters on which he requests examination; then the organization is required to designate the person or persons who shall appear and testify on its behalf.

Rule 30(c) has only minor changes. The first sentence is transferred from existing Rule 26(c). The present Rule provides that the testimony will be transcribed unless all parties waive transcription. The new Rule provides for transcription only upon the request of one of the parties. The fact of the request is relevant to the exercise of the court’s discretion in determining who shall pay or share in paying for transcription. Confidentiality of the questions to be asked by a party who elects to serve written questions rather than participate personally in an oral deposition is preserved, by providing that such party may serve the written questions in a sealed envelope upon the party taking the deposition who shall then transmit them in the sealed envelope to the officer.

Rule 30(d) does not make any changes in regard to motions to terminate or limit examination except to add a cross-reference to Rule 37(a) (4) in regard to the award of expenses incurred in relation to the motion.

The provision in Rule 30(e) relating to the refusal of a witness to sign his deposition is tightened through insertion of a thirty-day time period.

The second paragraph added to Rule 30(f) (1) spells out the procedure for handling exhibits related to the deposition.


December 1, 1959

The last sentence of Rule 30(d) was added, for consistency with the next to the last sentence of Rule 30(b), to permit a single justice of the Supreme Judicial Court to limit or terminate examination during the taking of a deposition in an action pending before him.


This rule is based on Federal Rule 30, but with some changes. Subdivisions (b) and (d) are important checks against abuse of the liberal discovery procedures. There is a similar check with respect to Rules 31, 33 and 34, which incorporate these provisions by reference. Subdivision (b) applies before the taking of the deposition begins. Subdivision (d) offers protection while it is being taken; at this point an improper purpose may be more easily detected or demonstrated. The reference in Rule 30(b) to "undue" expense and the last sentence of the subdivision are not in the federal rule and are inserted to emphasize that the rule should be administered in a way to afford adequate protection to parties and witnesses, particularly in cases involving small sums. The provision for charging the party taking the deposition with the travelling expenses of his opponent in appropriate cases is similarly not included in the federal rule, although it reflects the federal decisions. The language is taken from the New Mexico rule, as is also the provision that a party may be compelled to bring into the state a witness under his control for the purpose of having his deposition taken. The provision in Rule 30(c) that the court may order the cost of transcription to be paid by one or some of, or apportioned among, the parties is not in the federal

rule. It is taken from an unadopted recommendation of the Federal Advisory Committee made in 1955. It is designed to aid the court in policing the fairness of the use of the deposition machinery. For instance, a party wishing to take a brief deposition on a single vital issue might appropriately seek relief from paying the full cost of transcribing a lengthy examination by his opponent. Furthermore, when the party who took the deposition does not care to have it transcribed and the adverse party wants it, this rule would permit an order requiring the adverse party to bear the cost of transcription. There has been a conflict in the federal decisions as to the propriety of such an order under the present federal rule. The attendance of a witness may be compelled by subpoena, but no subpoena is necessary to take the deposition of an adverse party. A notice of the taking, given to the attorney as provided by Rule 5(b), is sufficient. A party is not guilty of contempt for non-appearance unless he has been served with a subpoena, but the sanctions of Rule 37 may be invoked against him. Thus an adverse party in Houlton, San Francisco or Moscow can be notified to appear in Portland on a given date for a deposition. His attorney may seek a protective order under Rule 30(b), but he cannot simply ignore the notice without risking dismissal or default under Rule 37(b). Rule 30(e) deals with the mechanics of submitting the deposition to the witness for his examination, correction and signature. Cf. R.S.1954, Chap. 117, Sec. 13 (repealed in 1959). In practice these requirements are often waived. Rule 30(f) is similar to R.S.1954, Chap. 117, Secs. 15 and 16 (repealed in 1959). It differs slightly from Federal Rule 30(f), following in this respect a 1959 amendment to the Minnesota rules. The change is merely for clarity.

RULE 31. DEPOSITIONS UPON WRITTEN QUESTIONS (a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, either within or without the state, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time. (b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer. (c) Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties. (d) Depositions for Use in Foreign Jurisdictions. The deposition of any person may be taken in this state upon written questions pursuant to the laws of another state or of the United States or of another country for use in proceedings there. The provisions of Rule 30(h)(2) and (3) apply to such depositions.


April 15, 1975

This amendment adds a new Rule 31(d), providing a simplified procedure for taking depositions upon written questions within Maine to be used in proceedings in another jurisdiction. The former procedure for such depositions contained in Rule 28(d) has been abrogated by a simultaneous amendment. At the same time, a new Rule 30(h) has been added, making provision for such depositions upon oral examination. That rule is incorporated by reference in the present rule. S ee Advisory Committee’s Notes to amendments of Rules 28 and 30.


Both of the existing Rules 31 and 33 use the term “interrogatories,” but the

two rules provide two very different discovery devices: (1) depositions of witnesses (whether or not parties), taken upon “written interrogatories” pursuant to Rule 31, and (2) the serving of “written interrogatories” upon parties pursuant to Rule 33. Rule 31 is now amended to avoid that confusion by substituting the word “questions” for the word “interrogatories” throughout Rule 31.

The fifteen-, five-, and five-day periods for service of cross, redirect, and recross questions have been extended to thirty, ten and ten. The new time limits are believed to be more realistic than the present ones. Since no party is required to serve cross questions less than thirty days after the notice and questions are served under Rule 31, no special restriction is placed on the time for the plaintiff’s initiating a Rule 31 deposition. Rule 31(a) is amended to make clear that the court may for cause shown enlarge or shorten the time periods therein prescribed.


This rule is the same as Federal Rule 31 except for increase in the time limits for serving cross and redirect interrogatories. This increase is to lessen the pressure on a busy lawyer practicing by himself. Rule 31 providing for depositions of parties or witnesses on written interrogatories is to be distinguished from Rule 33 providing for interrogatories to parties. Under Rule 31, the deposition of "any person," including a party, may be

taken, whereas under Rule 33 interrogatories may be served only upon an "adverse party." Furthermore, a Rule 31 deposition is taken with the same formalities as an oral deposition, i.e., before a notary public, etc., and with the questions and answers taken down by a stenographer. On the other hand, Rule 33 interrogatories are simply answered under oath directly by the party, customarily with the immediate advice and participation by his lawyer. The scope of examination and the use of depositions taken under this rule are covered by Rule 26.

RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment, or a conflicting commitment that could not be broken or scheduled at another time without subjecting the witness or others to legally enforceable sanctions or significant risk of physical detriment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action in any court of the United

States or of any State has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (c) Transcript. Regardless of the method by which a deposition was recorded or is to be used in court proceedings, a party using a deposition in court proceedings under this rule shall provide to the court an accurate written transcript of the deposition. (d) Effect of Errors and Irregularities in Depositions. (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to Taking of Deposition.

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are

waived unless seasonable objection thereto is made at the taking of the deposition.

(C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.

(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, indorsed, transmitted, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.


The amendment adds a new subdivision (c), replacing an abrogated provision on the effect of using depositions. It requires that a party using a deposition in court provide to the court an accurate written transcript of the deposition. If the deposition was recorded only by videotape, the transcript may be prepared from the tape itself. With the increased use of video depositions, a reliable transcript is indispensable to the court’s efficient review of the proffered testimony in order to address any issues that may arise regarding use of the deposition.


Rule 32(a)(3) is amended to permit the use of a deposition at trial whenever a witness is unable to attend because of a conflict of substantial seriousness. The rule is intended to avoid the serious problem of continuances and trial delay which now may occur in scheduling the appearance of certain witnesses, such as doctors, who are not saved by the 100-mile distance provision of Rule 32(a)(3)(B) under which a deposition might be used, but nevertheless cannot attend at a scheduled trial date because of some other commitment of overriding necessity. Commitments which could justify the invocation of this provision should be limited to only the most serious circumstances, such as a required appearance under subpoena in another court or surgery that is essential to the health of a

patient. If the court is satisfied that such conditions exist, however, the deposition may be used.


Rule 32(c) is abrogated because it appears to be no longer necessary in the

light of the Evidence Rules.


Existing Rule 32 becomes subdivision (d) of the rule; the provisions of the

new Rules 32(a), (b), and (c) are derived from existing Rules 26(d), (e) and (f).

The Maine Rule keeps the phrase “due notice” in the introductory paragraph of Rule 32(a). The Federal Amendment substitutes the phrase “reasonable notice,” but “due notice” is more appropriate in Maine where a seven-day notice is prescribed by Rule 30(b).

Subdivision (a) (4) involves a change in the standard under which a party offering part of a deposition in evidence may be required to introduce additional parts of the deposition. The present standard in Rule 26(d) (4) is “all of it which is relevant to the part introduced.” The substituted phrase “any other part which ought in fairness to be considered with the part introduced,” suggests a somewhat greater measure of discretion in application. The new standard conforms to Rule 1B07 of the proposed Federal Rules of Evidence. As stated in the Advisory Committee’s Note to the March, 1969, Preliminary Draft of those proposed Federal Rules of Evidence, the rule is based upon two considerations: “The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial.” The fairness test appears to be more specifically directed to those considerations than the existing test of relevancy.

Other changes in Rule 32 are necessitated by changes in other rules and are minor verbal changes made for clarification.


This rule is the same as Federal Rule 32 except for increase in the time limit for objections to interrogatories. The policy of this rule is to subordinate minor procedural irregularities to the better over-all administration of justice, but at the same time to prevent the waiver of important objections. Rule 32(c) (1). R.S.1954, Chap. 117, Sec. 18 (repealed in 1959), is closely similar.

RULE 33. INTERROGATORIES TO PARTIES (a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Unless otherwise ordered by the court, more than one set of interrogatories may be served, but not more than a total of 30 interrogatories may be served by a party on any other party. Each distinct subpart in an interrogatory shall be deemed a separate interrogatory for the purposes of this rule. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. A party in responding to interrogatories shall set forth each interrogatory in full immediately preceding the party’s answer or objection thereto. (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. (c) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has

been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.


Rule 33 is amended to make clear that "business records" include "electronically stored information," which is intended to have the same broad meaning set forth in Rule 34 (a), which permits discovery of electronically stored information regardless of the medium in which the information is stored or the method by which it is retrieved. The amendment is made with simultaneous amendments to Rules 16, 26, 34 and 37 to provide a procedure for the discovery of electronically stored information. The amendments are taken largely from the 2006 amendments to the Federal Rules of Civil Procedure, whose Advisory Committees Notes and case law may be consulted for guidance.


Two amendments are made to Rule 33. The sentence in Rule 33(a) limiting a party to one set of interrogatories in the absence of court order has been deleted. The amendment inserts new language making clear that a party may serve more than one set of interrogatories on another party but may not serve more than a total of 30 interrogatories. For the purposes of the rule, subparts of interrogatories are deemed to be separate interrogatories. The intent of the rule is to limit the total number of interrogatories served and to encourage simple, direct questions rather than elaborate form questions containing multiple parts. Like the limitation on depositions, the court has flexibility to permit more interrogatories in appropriate cases or to limit the number of interrogatories upon request under Rule 26(g). Thus, a court may well conclude that two defendants jointly representing a single interest may be considered one party for the purposes of the rule.


The original Rule 33 in Maine limited the number of interrogatories to 30. The Advisory Committee believes that this arbitrary limitation has not functioned as originally anticipated. The limitation to 30 questions has not been interpreted consistently. Neither has the limitation served to relieve parties from overly-burdensome discovery. Rather, the courts have been increasingly burdened with motions disputing the actual number of interrogatories involved. The parties may still object, based on Rule 26, should the situation require. This amendment conforms the Maine rule with the federal rule regarding the number of interrogatories permitted.


This amendment expressly requires what is already the better practice in responding to interrogatories; namely, to set forth in full each interrogatory immediately preceding the answer or objection made thereto. This has long been the requirement of Local Rule 15(a) of the United States District Court for the District of Maine. See Field, McKusick & Wroth, Maine Civil Practice § 33.5. A similar amendment is made to Rule 36(a) relating to requests for admission. The juxtaposition of the interrogatory and the answer or objection thereto is helpful not only to opposing counsel and to the court in their subsequent examination of the discovery papers, but also to the responding counsel himself in drafting and revising his responses to interrogatories.


The mechanics of the operation of Rule 33 are substantially revised for the purpose of reducing the need of court intervention. Two of the changes made by the federal amendments, namely, the enlargement to 30 days of the period for answers or objections to interrogatories, and the elimination of any requirement for leave of court for serving interrogatories, were anticipated by a December 31, 1967, amendment of M.R.C.P. 33. Now following the lead of the federal amendments as actually promulgated, the following additional improvements are made: (1) A defendant is in no event required to serve answers or objections to interrogatories in less than 45 clays after service of the summons and complaint upon him. (2) If objections to interrogatories are served, the burden is on the interrogating party to move under Rule 37(a) for a court order to compel answers,

in the course of which the court will pass on the objections. This works a change in the burden of going forward since existing Rule 33 requires a party serving written objections to serve therewith "a notice of hearing the objections at the earliest practicable time". Changing the burden of going forward will test the seriousness of the interrogating party in propounding the objected-to interrogatories and will in many instances avoid the court hearing which is required as a matter of course under the existing rule. A change in the burden of going forward does not, however, alter the obligation of' an objecting party to justify his objections if the propounding party files a motion. Rule 33(a) is also amended to permit the service of interrogatories upon any other party. The existing restriction to "adverse" parties is eliminated. The highly technical distinctions that have been drawn in the federal cases interpreting the existing rule are thereby avoided. See Field, McKusick and Wroth § 33.2. Maine Rule 33(a) continues to differ from F.R. 33(a) in that the Maine Rule puts a limit upon the use of interrogatories. Except by court order for good cause shown, a party may not serve more than one set of interrogatories upon any other party, nor may the number of interrogatories exceed 30 in number. Rule 33(b) in its second paragraph resolves a question on which there have been conflicting decisions in the federal courts, namely, whether and to what extent interrogatories are limited to matters "of fact" or may elicit opinions, contentions and legal conclusions. See Field, McKusick and Wroth § 26.18. Rule 33(b) declares that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates either to fact or to the application of law to fact. The only type of interrogatories that are objectionable are those that involve issues of "pure law", that is, legal issues unrelated to the facts of the case. Under certain circumstances Rule 33(c) permits the interrogated party the option of producing voluminous business records, in lieu of answering an interrogatory. Thus, the burden of research and computations may be placed on the party who seeks the information and presumably expects to benefit, therefrom. The option is available only if the burden of deriving or ascertaining the answer from the records is substantially the same for both sides.


In 1967 substantial revision and rearrangement of the discovery rules (26 through 37) of the Federal Rules of Civil Procedure are under consideration. While the Advisory Committee, believing as it does that maintenance of substantial uniformity with the Federal Rules is a desirable goal, does not intend any thoroughgoing revision of the Maine discovery rules until the current federal proposals are finally acted upon, change at once in certain time periods for interrogatories to parties under Rule 33 seems desirable. In the first place, both the 10-day period for objecting to interrogatories and the 15-day period for answering are extended to 30 days. Experience has shown that the shorter periods previously prescribed were often inadequate. The short 10-day period for objecting to interrogatories has tended to encourage cautious attorneys routinely to file time-consuming objections. The lengthening of the period for objecting or answering removes the original reason for not permitting, except with leave of court, the plaintiff to serve interrogatories for 20 days after commencement of the action. Since the defendant will be likely to consult a lawyer in order to answer the complaint within 20 days after service upon him, it is no burden in the run of cases for him also to answer (or object to) interrogatories within 30 days after service of the complaint. Thus, the amendment removes the previous restriction upon the time when the plaintiff might serve interrogatories.


This rule is based upon Federal Rule 33, but the limitation to a single set of interrogatories not more than 30 in number unless the court otherwise orders is not in the federal rule. It is taken from a Massachusetts statute enacted to correct the abuse of burdening an adversary with answering a needlessly large number of questions. I n determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be separately counted, whether or not it is subsidiary or incidental to, or dependent upon, another question, and however the questions may be grouped, combined or arranged. In the unusual case where 30 interrogatories are inadequate, leave for additional interrogatories may be granted by the court. Interrogatories to parties, provided for by this rule, have been the standard way of getting information about an opponent's case in Massachusetts for over a century. They are quick and inexpensive and to a large extent compensate for the

generality of allegation permitted by Rule 8. Unlike pleadings, answers to interrogatories must be made under oath by the interrogated party. Interrogatories under this rule are a one-sided inquiry. There are no cross interrogatories, as there may be on depositions under Rule 31. Subject to the rules of evidence, the answers may be used at trial by the interrogating party for any purpose, but not by the answering party. The scope of inquiry is the same as under Rule 26(b). It is not limited to facts admissible in evidence and may be used to get leads to aid the interrogating party's investigation.

RULE 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, electronically stored information, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). (b) Procedures. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to produce or to permit inspection as requested.

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. If a request does not specify the form for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form that is reasonably usable. A party need not produce the same electronically stored information in more than one form. A party upon whom a request is served to produce the party’s medical, employment or other records in the possession of a third party may, at the party’s option, produce in place of such records an effective written authorization by which the submitting party may obtain the requested records. Within 10 days of receiving records pursuant to the authorization, the party submitting the request shall serve upon the authorizing party a complete copy of the records so obtained. (c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.


Rule 34 is amended to make explicit that discovery of "electronically stored information" is permitted. Discovery of electronically stored information is permitted regardless of the medium in which the information is stored or the method by which it is retrieved. The amendment is made with simultaneous amendments to Rules 16, 26, 34 and 37 to provide a procedure for the discovery of electronically stored information. The amendments are taken largely from the 2006 amendments to the Federal Rules of Civil Procedure, whose Advisory Committees Notes and case law may be consulted for guidance. Under the amendment to subdivision (b), a request for production of electronically stored information may specify the form in which the requesting party desires the production of the information. Thus, under the amended rule, accounting records could be requested in printed form on paper or the requesting party could specify that the production of the records be made in electronic form in a commercial spreadsheet program format. If the producing party can reasonably produce the electronically stored information in the requested form, it must do so. At the same time, it is not the intent of the rule to impose undue burden or cost on the producing party. Consequently, the producing party may object to the

requested form of production under the amendment to Rule 34 (b). If a dispute arises as to the form in which the information should be produced, or if the producing party claims that it would constitute an "undue burden or cost" to produce the information at all (see Rule 26 (b)(6)), the dispute must be resolved under Rule 26 (g). If no particular form is specified in the request, electronically stored information may be produced in the form in which it is ordinarily maintained or in any form "that is reasonably usable." As the amendment to Rule 34(b) states, a party need not produce the same electronically stored information in more than one form.


This amendment to Rule 34(b) is recommended to address problems that sometimes develop when a party gives an opposing party an authorization to obtain records. In some cases, the party giving the authorization may not have copies of or even be aware of what records have been obtained. This change in the rules will provide that where a party obtains records of the other party pursuant to an authorization, the receiving party will provide the authorizing party with a complete set of the records received within 10 days.


Rule 34(c) is amended to adopt a 1991 amendment of Federal Rule 34(c) for the purpose of maintaining conformity with the federal rule. The reasons are those stated in the federal Advisory Committee Note, which reads as follows: This amendment reflects the change effected by revision of Rule 45 to provide for subpoenas to compel non-parties to produce documents and things and to submit to inspections of premises. The deletion of the text of the former [Rule 34(c) saving an independent action] is not intended to preclude an independent action for production of documents or things or for permission to enter upon land, but such actions may no longer be necessary in light of this revision.


Rule 34(b) is amended to add a provision making clear that documents produced under the rule must be produced either in their normal business order or in the order specified in the request. This provision was added to Federal Rule 34(b) in 1980 to eliminate the practice of deliberately confusing the requesting party by intermixing critical documents with others. The provision also benefits the producing party, however, by giving that party the option simply to produce the documents as they are kept in the regular course of business. Under the latter provision, if documents produced come from different branches or divisions within the same business they may be presented in the order in which they are kept at their specific locations, with only the location of each group of documents indicated.


The changes made in Rule 34 are thus summarized by the federal Advisory Committee's Note:

Rule 34 is revised to accomplish the following major changes in the existing rule: (1) to eliminate the requirement of good cause; (2) to have the rule operate extrajudicially; (3) to include testing and sampling as well as inspecting or photographing tangible things; and (4) to make clear that the rule does not preclude an independent action for analogous discovery against persons not parties. Subdivision (a). Good cause is eliminated because it has furnished an uncertain and erratic protection to the parties from whom production is sought and is now rendered unnecessary by virtue of the more specific provisions added to Rule 26(b) relating to materials assembled in preparation for trial and to experts retained or consulted by parties." (48 F.R.D. 526)

The procedure provided in Rule 34(b) for production of documents and things and entry upon land for inspection is essentially the same as that in the amended Rule 33. Rule 34 continues to apply only to parties. Subdivision (c) makes clear, however, that this rule is not pre-emptive and independent actions in the nature of

bills in equity may be brought in order to enter land or inspect large tangible things in the possession of persons who are not parties.


This rule is the same as Federal Rule 34. It is much broader than R.S.1954, Chap. 113, Sec. 23 (repealed in 1959), which applies only to "books, papers or written instruments material to the issue." The test for production under this rule is the same as the scope of permitted examination under Rule 26(b), subject to the protective provisions of that rule. A motion under this rule requires a showing of good cause, and it is limited to parties to the action. If a document is in the control of a third person, a deposition under Rule 26 and a subpoena duces tecum under Rule 45(b) must be used. This rule is primarily intended to govern production and inspection before trial. Rule 45(b) applies both to the taking of depositions and to testimony and production of documents at trial.

RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a licensed physician or a mental examination by a licensed psychologist, or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (b) Report of Examining Physician or Psychologist. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the person against whom the order is made shows that it is unobtainable. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner’s testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of the deposition of the examiner in accordance with the provision of any other rule.


1993 Rule 35(a) is amended to permit the court to order a mental examination by a “licensed . . . psychologist.” The change, which is in accord with a 1988 Congressional revision of Federal Rule 35(a), reflects the increasing incidence of claims involving mental or emotional condition in civil litigation and the corresponding need for increased resort to psychologists. In Maine, licensed psychologists are those practitioners defined in 32 M.R.S.A. § 3811(2) and qualified and licensed as provided in 32 M.R.S.A. §§ 3831(2), 3832-36. A psychologist from another state satisfies the rule if qualified and licensed under similar provisions of that state’s law. The amendment also expressly requires that examining physicians be “licensed.” The rule thus requires licensure pursuant to 32 M.R.S.A. §§ 3270, 3271-3276, for physicians or 32 M.R.S.A. §§ 2571-2573 for osteopathic physicians, or similar provisions in another state. The amendment does not extend as far as the December 1991 amendment of the federal rule to include any “suitably licensed or certified examiner,” because of the extreme range and variety in licensing provisions and standards. Rules 35(b)(1) and (3) are amended for conformity with the amendment of Rule 35(a) by using the term “examiner” to refer to either a licensed physician or a licensed psychologist. Cf. Rule 35(b)(2).


Rule 35(a) is amended to permit an order against a party for the examination of a person in his custody or under his legal control. Thus, a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination. It is also made clear that examination may be obtained where the blood group of the person to be examined is in controversy. In contrast with the elimination from Rule 34 of any requirement of a showing of "good cause" and of any requirement for a prior court order, for the purpose of obtaining production of documents or things, Rule 35 preserves those requirements in the sensitive area of physical and mental examinations. In

addition, it must be shown that the relevant physical or mental condition is "in controversy". Rule 35(b)(1) is amended to correct a previously existing imbalance. The amended rule will entitle, as the existing rule does not, the examined party to receive from the party causing the physical or mental examination any reports of earlier examinations of the same condition to which the latter may have access. The amendment also requires that the written report of the examining physician include the results of all tests made, such as results of x-rays and cardiograms. Rule 35 (b)(3) expressly declares two points of existing practice: (1) The provisions of Rule 35(b) come into play even if the physical or mental examination is by consent. See Field, McKusick and Wroth § 35.4. (2) The existence or non-existence of the right to get a report under Rule 35(b) does not affect the discovery of such reports under the provisions of other rules--such as Rule 34 or 26(b)(3) or 26(b)(4).


The present amendment is identical to F.R. 35(b) (2). When the rules were promulgated, there was no physician-patient privilege recognized in Maine. Accordingly, at that time there was no occasion to adopt a rule like F.R. 35(b) (2), which deals with waiver of any privilege the examined party may have if he requests and obtains a report of an examination under Rule 35. 1968 Laws, c. 544, § 82 created a privilege for communications between a person and a psychologist or psychological examiner. 32 M.R.S.A. § 3815. 1969 Laws, c. 378 created a physician-patient privilege. 32 M.R.S.A. § 3153. The psychologist privilege is by its terms unlimited, but the physician's privilege does not exist "when the physical or mental condition of the patient is at issue in such action" (the very same circumstance when an examination under Rule 35(a) is obtainable) or "when a court in the exercise of sound discretion, deems such disclosure necessary to the proper administration of justice." Ibid. Although the 1969 physician-patient privilege is too limited to appear to require adoption of Rule 35(b) (2), the Committee believes the existence of the broader psychologist-patient privilege makes it advisable to provide for a waiver where the examined party asks for and gets a copy of the examination report. Adoption of the amendment is not designed to foreclose further judicial development of the doctrine of waiver. There is authority for the proposition that

bringing an action in which the existence of a physical ailment is an essential element is a waiver of the privilege for all communications concerning that ailment, a position vigorously espoused by Wigmore. Wigmore on Evidence § 2389 (3d ed. 1940). Other authorities hold that testimony by the plaintiff about the ailment is such a waiver, and still others that calling any physician to testify about it is a waiver as to all communications with all doctors. A sufficient reason for this amendment is that a defendant whose physical or mental condition is in controversy may be examined under Rule 35, and he could not be said to waive anything by being sued. Therefore, the adoption of the amendment warrants no inference as to what else may constitute a waiver, but the matter is left open for decision in the ordinary processes of adversary litigation. It is to be noted that the examination that may be ordered under Rule 35(a) can be conducted only by a physician. However, the waiver which under Rule 35(b)(2) results from the examining party's requesting and obtaining a copy of the physician's report applies to "the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition." (Emphasis added) Thus, the waiver extends to a psychologist, even though an examination by the psychologist could not be ordered under Rule 35. Such is the policy of F.R. 35(b) (2) and it seems to the Committee to be proper policy in Maine to the extent there is a privilege in this area.


This rule is substantially the same as Federal Rule 35. There is no provision for physical or mental examination by court order in Maine, but examinations are permitted by consent as a matter of course in most personal injury cases. Even if the examination is had without resort to the rule, it is intended that the examined party be able to obtain upon request a copy of the examining doctor's report in accordance with Rule 35(b). To construe the rule otherwise would mitigate against the sensible practice of examination by consent. If the report is thus furnished to a plaintiff, the defendant may in turn demand a like report from the plaintiff of any examination, previously or thereafter made, of the same physical or mental condition.

RULE 36. REQUESTS FOR ADMISSION (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. Subject to the provisions of subdivision (b) of this rule, the matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon that defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it. A party in responding to requests for admission shall set forth each request in full immediately preceding the party’s answer or objection thereto. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court

determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.


Rule 36(a) is amended to make clear that a party who has not answered or objected to a request for admission may be relieved under Rule 36(b) from the conclusive effect of the admission. The amended provision applies to all litigants, but it is particularly necessary in the case of pro se litigants who may not understand the effect of failure to respond to a request for admission. The rule is also amended to eliminate gender references that were inadvertently omitted from the general amendments of July 1, 1987, eliminating such references.


For the convenience of both counsel and the court each response to a request for admission must set forth the request in full to which answer or objection is being made. See the parallel amendment made to Rule 33(a) relating to interrogatories.


October 1, 1970

Rule 36 is extensively amended for the purpose of making requests for admission more effective in narrowing issues and facilitating proof. The principal revisions of Rule 36(a) are the following: 1. The matter requested to be admitted may relate to statements or opinions of fact or of application of law to fact. Thus, the requirement that the matters be "of fact" only is eliminated. 2. A party may not object to a request for admission merely because he believes that it involves a genuine issue for trial. 3. The answering party is required to make a reasonable inquiry and secure such information and knowledge as are readily obtainable by him. 4. The requirement that the answer to a request for admission be sworn to is eliminated. New Rule 37(c) is believed to furnish an appropriate deterrent to false answers. 5. Changes in the mechanics of this discovery device are made to conform to the new mechanics in Rules 33 and 34, as follows: a. The time for response is lengthened from 10 to 30 days with the added provision that a defendant in no event is required to respond in less than 45 days after service of the summons and complaint upon him. b. Because of the longer time for responding, any requirement of leave of court for service of a request for admission is eliminated. c. The present requirement that the objecting party move automatically for a hearing on his objection is eliminated and the burden is put on the requesting party to move for an order. However, no change is made in the present law placing the burden of persuasion on the objecting party. 6. Amended Rule 36(a) provides for the first time that the court in advance of the trial will on motion scrutinize the answers and if it finds them defective may either rule that the matter stands as admitted or order that an amended answer be served.

Rule 36(b) is amended to declare, as the rule previously did not, that any matter admitted under the rule is conclusively established for the purposes of the pending action unless the court on motion permits withdrawal or amendment of the admission.


This rule is substantially the same as Federal Rule 36. The present Equity Rule 25 in Maine provides a similar device for discovering whether the adverse party admits the genuineness of documents. There is no counterpart in Maine practice for admission of facts. The purpose is to save the time and expense of offering proof of matters put in issue by the pleading but as to which there is no genuine controversy. A party whose refusal to admit is found to be unreasonable may be ordered to pay his adversary's expenses in making proof in accordance with Rule 37(c).

RULE 37. FAILURE TO MAKE DISCOVERY: SANCTIONS (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Appropriate Court. A motion for an order to a party or a deponent shall be made under Rule 26(g). On matters relating to a deposition being taken outside the state, the court may order that an application for an order to the deponent be made to any court having general civil jurisdiction in the place where the deposition is being taken. (2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for production or inspection submitted under Rule 30(b)(5) or 34, fails to respond that inspection will be permitted as requested or fails to produce or to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling production or inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c). (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure to Comply With Order. (1) Sanctions by Court in Place Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the place in which the deposition is being taken, the failure may be considered a contempt of that court. (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Rule 26(g), Rule 35 or subdivision (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 26(g) or Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit. (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take a deposition, after being served with a proper notice, or to comply with a properly served request for production under Rule 30(b)(5), without having made an objection thereto, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for production or inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require

the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).

(e) Electronically Stored Information. Absent exceptional circumstances, the court shall not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.


Rule 37(e) is adopted to address the discovery of electronically stored information. Corresponding amendments have also been made to Rules 16, 26, 33, and 34. The amendment to Rule 37 (e) is intended to protect parties who may have lost electronically stored information "as a result of the routine, good-faith operation of an electronic information system." The amendment is identical to the 2006 amendment to F.R.Civ.P. 37 (e), whose Advisory Committee's Notes and case law should be consulted for guidance. The amendment to Rule 37(e) is in effort to balance two interests. First, a party should not be sanctioned or subject to a claim of spoliation of evidence if electronically stored information is lost or altered as a result of the good-faith operation of the party’s electronic information system. The amendment recognizes that electronic information is dynamic, subject to routine alteration or deletion, and may not always be available in the same form as when the events giving rise to the case took place. Second, the rule also recognizes that the dynamic nature of electronically stored information is not a license to create or maintain an environment in which relevant evidence is rendered unavailable. The rule seeks to balance these interests by requiring that the protection of the rule extends only to the operation of an electronic information system that is both "routine" and "good faith." Obviously, the requirement that the operation of the information system be "routine" requires that the operation be in the ordinary course of business. At the

same time, “good faith” may require an intervention to ensure that information is not lost. As the federal Advisory Committee Note makes clear, "[G]ood faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. . . . The good faith requirement of Rule 37 (e) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations while allowing that operation to continue in order to destroy specific stored information that it is required to preserve." One of the sources of such a requirement may be a "litigation hold" order or agreement that might be created in the discovery conference process under Rule 16 (a). A party receiving a litigation hold request before or during suit would be well advised to take reasonable steps to protect the information pending a ruling from the court. Although the amendment to Rule 37 (e) provides that a party will not be sanctioned under the circumstances the rule contemplates, if a party is found to have rendered electronically stored information unavailable by means not the result of the "routine, good faith operation in an electronic information system," the court has broad powers to make appropriate orders and to sanction the offending party.


An amendment is made to Rule 37(a)(1) to require that motions compelling discovery be made under Rule 26(g) in order to implement the new informal discovery resolution process prescribed by that rule. Similar references to Rule 26(g) have been inserted in subdivisions (b)(2) and (b)(2)(E). An amendment with no substantive effect was also made to subdivision (b)(2) by moving the reference to Rule 35 from a location following the phrase “subdivision (a) of this rule” to the location preceding it.


Rule 37 provides generally for the sanctions available against parties or persons who unjustifiably resist discovery. The existing rule uses both the term "failure" to afford discovery and the term "refusal" to do so. The term "failure" is used consistently throughout the amended rule in order to avoid any implication that the different term "refusal" imports wilfulness.

Rule 37(a)(1) preserves the provision of the existing Maine Rule 37(a) permitting application “to any court having general civil jurisdiction in the place where the deposition is taken for an order compelling an answer.” As was stated in the Reporter's Note to the original rule (see 1 Field, McKusick and Wroth at 542) a Maine rule cannot direct an out-of-state court what to do, nor can a Maine court control the conduct of a nonparty witness beyond its jurisdiction. However, it is believed that the inclusion of this reference will make it more likely that the out-of-state court will take appropriate action against a recalcitrant deponent as a matter of comity. See Field, McKusick and Wroth § 28.2 for discussion of enforcement against a recalcitrant deponent outside the state. As against a party or an in-state deponent, the application for an order will properly be made to a Justice of the Superior Court, that is, to the court in which the action is pending, except when the action is pending before a single justice of the Supreme Judicial Court, in which event application should be made to that justice. Rule 37(a)(4) reverses the statement of the circumstances under which an award of expenses will be made on a motion for an order compelling discovery. The existing rule provides for an award of expenses only if the losing party or person is found to have acted without substantial justification. As amended the rule states that the court shall award expenses, including reasonable attorneys fees, to the prevailing party or persons unless the losing party's action is found to have been substantially justified. Thus, although the test of "substantial justification" is preserved, the reversal in the language provides in effect that expenses should ordinarily be awarded unless the court finds that the losing party acted justifiably in carrying this point to court. Rule 37(b) spells out the sanctions that are available in the event of a failure by a party or other person to comply with an order for discovery. Subdivision (b)(1) applies in a case where an out-of-state court has entered an order that a non-party deponent within its jurisdiction be sworn or answer a question propounded or submitted under Rules 30 or 31. Again this rule hopefully will encourage the out-of-state court to exercise its contempt powers in aid of the Maine deposition as a matter of comity. Under Rule 37(b)(2) the court in which the action is pending has a much wider choice of sanction. Rule 37(c) spells out the expenses, including reasonable attorneys fees, allowable in the event of failure without good reason to admit a matter as requested under Rule 36. Rule 37(d) is expanded to cover requests for inspection under Rules 30(b)(5) and 34, as well as depositions and interrogatories which were

previously covered. Both in Rule 37(d) and also in Rule 37(a)(2) deviations from the similarly numbered federal rules occur by the separate reference to requests for inspection under Rule 30(b)(5). The separate references are necessary in Maine because Maine Rule 30(b)(5) spells out an independent procedure for production in connection with depositions of parties whereas F.R. 30(b)(5) merely refers to the procedure of Rule 34. The advantages of the Maine treatment of the problem are discussed in the Advisory Committee's Note to Rule 30. The second paragraph of subdivision (d) is added to make clear that a party may not remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests for inspection to be improper and objectionable. If he elects not to appear or not to respond, he must apply for a protective order.


This rule is substantially the same as Federal Rule 37, but with omission of parts inapplicable to state practice. It furnishes the sanctions necessary to make the preceding rules work. Court surveillance of discovery procedure may be worked in two ways: (1) by application for a protective order under Rule 30(b) or 30(d) on appropriate objection from the party against whom discovery is sought; and (2) by application for a Rule 37 sanction by the party seeking discovery. Rule 37(a) covers the case where a party or a deponent refuses to answer a question on oral examination. Of course the officer before whom the deposition is taken has no power to punish for contempt, nor does he have power to make rulings on evidence. The proponent of the question has his choice between completing his examination on other matters or adjourning the deposition and applying to the court for an order compelling an answer. An unreasonable refusal may be penalized by imposing the costs of obtaining the order, including counsel fees, not only upon the recalcitrant party but upon the attorney advising the refusal. Similarly, costs may be imposed for the unreasonable resort to the court for an order which is denied. The reference in Rule 37(a) to an application for an order to any court having general civil jurisdiction in the place where the deposition is taken deals with the situation where a deposition is taken outside the state for use in a Maine action. Of course, a Maine rule cannot direct an out-of-state court what to do, nor can a Maine court control the conduct of a non-party witness beyond its

jurisdiction. It is believed that the inclusion of this reference will make it more likely that the out-of-state court would take appropriate action against a recalcitrant deponent as a matter of comity. The same procedure is available for refusal to answer a question on written deposition under Rule 31 or on Rule 33 interrogatories to a party although as to the latter there would be little or no occasion to apply to an out-of-state court for aid, since the sanctions against the party under Rule 37(b) would be sufficient. Rule 37(b) lists the sanctions. As to non-party witnesses punishment for contempt is the sole sanction. As to parties, the sanctions vary up to and including dismissal of the case or default. The court will select the one thought most adaptable to the particular situation. It is expressly provided that a party refusing to submit to a physical examination may not be punished for contempt, but his case may be dismissed.

VI. TRIALS

RULE 38. JURY TRIAL OF RIGHT IN THE SUPERIOR COURT (a) Right Preserved; Number. The right of trial by jury as declared by the Constitution of the State of Maine or as given by a statute shall be preserved to the parties inviolate. (b) Demand. In an action in the Superior Court, any plaintiff may demand a trial by jury of any issue triable of right by a jury by filing a demand and paying the fee therefor as required by the scheduling order entered by the court. For cases required to have an alternative dispute resolution conference pursuant to Rule 16B, payment of the jury fee shall be made as required by Rule 16B(i). (c) Same: Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If a plaintiff demands trial by jury for none or only some of the issues, the defendant shall file within 10 days a demand for trial by jury of any other or all of the issues of fact in the action and, in the absence of a demand by the plaintiff, pay the jury fee upon filing the demand. (d) Waiver. The failure of a party to make a demand and pay the fee as required by this rule constitutes a waiver by that party of trial by jury; provided that for any reason other than a party’s own neglect or lack of diligence, the court may allow a party to file and serve a demand upon all other parties within such time as not to delay the trial. (e) Withdrawal. A demand for trial by jury made as provided in this rule may not be withdrawn without the consent of all parties.


Rule 38(a) is amended to strike the last sentence, which duplicates

provisions regarding numbers of jurors that also appear in M.R. Civ. P. 48(b). Concurrently, Rule 48(b) is being amended to recognize changes to 14 M.R.S.A. § 1204 governing numbers of jurors. Those changes are discussed in the advisory notes to the amendment to Rule 48(b).

Advisory Committee’s Note May 16, 2001

The stricken language was a transition provision relating to cases filed prior to May 1, 1999. It is no longer relevant, as all cases filed prior to May 1, 1999, would have, by now, proceeded through the pretrial scheduling statement and jury fee payment process. The added language, effective January 1, 2002, recognizes that for cases subject to court-connected ADR in accordance with Rule 16B, payment of the civil jury fee is deferred, in accordance with M.R. Civ. P. 16B(i), until 150 days after the date of the scheduling order entered in accordance with M.R. Civ. P. 16(a). Cases which are exempt from court-connected ADR by the provisions of Rule 16B or by court order, must continue to pay the jury fee with the demand for the jury trial or upon exemption, as presently.


Amendments are made to subdivisions (b), (c) and (d) to conform jury demand practice to the procedure that would be in effect under Rule 16 and the scheduling order issued under the authority of that rule. Parties will no longer file pretrial scheduling statements. Under the new Rule 16, the court issues a scheduling order automatically. That order requires a plaintiff requesting a trial by jury to file a demand for jury trial and pay the required fee within 20 days after the date of the order. In cases filed before May 1, 1999, the demand is made in the pre-trial scheduling statement and the fee is paid when the statement is filed. If the plaintiff does not request a trial by jury or requests a jury trial on only some of the issues, subdivision (c) now requires the defendant to file a demand for jury trial within 10 days. The scheduling order requires that the party demanding a jury trial on any issue pay the jury fee at the time of the demand. In short, Rule 38 and the scheduling order assign the plaintiff the initial responsibility to demand a jury trial. If the plaintiff demands a trial by jury, the defendant need do nothing further. If the plaintiff does not demand a trial by jury or limits the demand to certain issues, the defendant desiring the jury trial must respond promptly by filing the demand under subdivision (c) and, if the plaintiff made no demand, paying the fee. As subdivision (d) makes clear, the failure to make the demand and to pay the fee waives the right to trial by jury.


Rule 38 is amended simultaneously with the amendments incorporating the Civil Case Flow Expedition Administrative Order in Rule 16 to provide a procedure for making a demand for trial by jury consistent with those amendments. Rule 38(b) is amended to provide that a jury demand by any party is to be made in the pretrial scheduling statement as provided in new Rule 16(b)(1), rather than in the pretrial memorandum as formerly. Thus, language concerning cases in which no pretrial memorandum is filed has been eliminated. Rule 38(c) requires the plaintiff in preparing the pretrial scheduling statement to include a jury demand or any specification of issues for jury trial requested by another party because the plaintiff has not made such a request. Language referring to the pretrial memorandum is eliminated. Rule 38(d) provides that the right to trial by jury is waived by the failure of a party to include, or cause to be included, a jury demand in the pretrial scheduling statement. To assure that no party is deprived of the right by lack of opportunity to make such a request, or by failure of the plaintiff to comply with a request duly made, the rule provides that in such a case the court may allow a demand to be filed and served “within such time as not to delay the trial.” Rule 38(e) carries forward the present final sentence of subdivision (d) in a separate subdivision for purposes of clarity.


This amendment is intended to implement the provisions of Chap. 102 of the Laws of 1977 which provides as follows

14 M.R.S.A. § 1204, last ¶, as amended by P.L.1975, c. 41, § 1, is repealed and the following enacted in its place:

The Supreme Judicial Court may by rule provide for the trial of civil actions by juries of 6, 7 or 8 jurors ; provided that the parties to a civil action may stipulate that the jury may consist of any number of jurors less than provided by such rule; and provided further that any party to a civil action shall have the right to a jury consisting of 8 jurors if such party so requests before the day of the trial.

The change is intended to recognize the right of any party to a jury consisting of eight jurors. Amendments to Rules 47(c)(1), 47(c)(3), 47(d) and 48(b) deal with related matters, such as the number of peremptory challenges, the selection of alternate jurors and the stipulation for a jury consisting of less than eight jurors, and should be consulted in connection with this rule. The Advisory Committee urges that in the interest of administrative economy, counsel continue to utilize, wherever possible, the six person jury. This can be done under the provisions of Rule 48(b) as amended this date. The Committee further suggests that the Justice conducting the final pre-trial conference make it a point to raise the matter of jury size for discussion at the final pre-trial conference and attempt to obtain a stipulation to a six person jury in accordance with the provisions of Rule 48(b).


This amendment and corresponding changes in Rules 47 and 48 are made to implement 1975 Laws, c. 41, which amended the last sentence of 14 M.R.S.A. § 1204 to provide that civil actions might be tried "by juries of not less than 6 jurors" instead of the present minimum of eight. The exception already in the rule referring to the right of the parties to stipulate a smaller number under Rule 48(b) is in accord with language virtually identical to that rule which was added to § 1204 by the same amendment. See Advisory Committee's Notes to Rules 47, 48.


This amendment, with accompanying amendments of Rules 16 and 39, clarifies an important area. When the rules were adopted in 1959, the prior Maine practice of setting a case for jury trial in the absence of an affirmative waiver thereof was retained in Rule 38, instead of the federal rule requiring a demand. See Field, McKusick and Wroth, Maine Civil Practice §§ 38.3, 38.5 (2d ed. 1970). The pre-trial memorandum practice adopted in the 1967 amendment of Rule 16, however, required that a jury be demanded in the pre-trial memorandum. The result has been in practical effect the adoption of the federal practice. The present amendments clarify any doubts as to the mechanics and effect of the jury demand by adopting pertinent provisions of the federal rules, with modifications to bring them in line with Maine practice.

Rule 38(b) sets forth the basic requirement of the demand, and makes clear that the demand is to be made in the pre-trial memorandum in the first instance, whether made by a moving party under Rule 16(a)(3) or a responding party under Rule 16(a)(4). In this respect., the rule works an improvement over Federal Rule 38(b), which requires that a demand be made within 10 days after service of the last pleading. Under the Maine rule, parties will be discouraged from making jury demands routinely in every case, because the demand is to be made at a time when the issues are clear enough to permit a realistic assessment of the practical need for, as well as the right to, jury trial in the case; moreover, unnecessary demands will be discouraged by the imminence of judicial scrutiny at the pre-trial conference. Where under Rule 16 the court under special circumstances specifically excuses the filing of a pre-trial memorandum, the jury demand must be made in a separate writing served within 7 days after the court excuses the pre-trial memorandum. Rule 38(c) provides that a party may limit his jury demand to certain issues. In such a case an opposing party may make a demand for jury trial of other issues. If the original demand was made in a moving party's pre-trial memorandum, the opposing party's demand must be made in that party's responding memorandum. If the original demand was itself made in a responding memorandum or in a separate writing where pre-trial memoranda have been specifically excused by the court, any subsequent demand for jury trial on additional issues must be made by service of a separate writing within three days after service of the memorandum. Rule 38(d) makes clear that failure to demand a jury as provided in subdivisions (b) and (c) is a waiver of the right to a jury. The rule further provides that a demand once made may be withdrawn only with the consent of the parties. This provision is to protect other parties, also wishing a jury, who may have relied on the first party's demand.


The Special Session of the 105th Legislature enacted 1971 Laws, c. 581 to become effective June 9, 1972. Section 1 added the following sentence to 14 M.R.S.A. § 1204: The Supreme Judicial Court may by rule provide for the trial of civil actions only by juries of 8 jurors.

Section 2 of the Act added the following sentence to 14 M.R.S.A. § 1354: If the Supreme Judicial Court has by rule provided for the trial of civil actions by juries of 8 jurors, then 6 jurors may agree on a verdict and return it into court as the verdict of the jury, and the trial judge shall so instruct the jury. Thus the principle of the 9-3 majority verdict permitted in civil cases by a 1969 enactment (14 M.R.S.A. § 1354, added by 1969 Laws, c. 310) was carried over by the Legislature into the jury reduced in size. The amendments being made simultaneously to Rules 38, 47 and 48 are designed to implement this permissive 1972 statute authorizing the Court to institute 8-member juries (with 6-juror majority verdicts). Rule 38(a) is amended to conform with amended 14 M.R.S.A. § 1204, but preserves the present power of the parties to agree on a smaller jury. In evaluating the policy considerations involved in reducing the size of the jury, the memorandum dated November 29, 1971, issued by Judge Edward T. Gignoux in connection with the adoption by Local Rule of 6-member civil juries in the Federal Court for the District of Maine states the advantages to be derived, as follows:

The six-member jury will expedite the trial of civil cases by saving time in calling, impaneling, and otherwise managing the jury panel. The voir dire examination will not consume the time it now does. An appreciable saving of time will also result in the jurors' examination of exhibits during trial. And, quite probably, the length of jury deliberation will be shortened. These benefits will result in a saving of time to the Court and to counsel. Not the least significant benefit of the change to a six-member jury will be the substantial financial saving to the government. Federal Jury costs have been rising rapidly each year. Federal jurors now receive statutory compensation of $20 per day and a mileage and maintenance allowance, which in this District frequently runs into substantial sums because of the distances involved. The Report of the Director of the Administrative Office of the United States Courts shows that for the fiscal year 1971, jury fees and allowances in the federal courts amounted to almost $14,000,000. It is estimated that

the six-member civil jury can reduce jury costs by at least $3,000,000 per year. There is every reason to believe that six-member juries will function as effectively and fairly as 12-member juries. Such experiments which have been conducted support this conclusion, and the judges and trial lawyers in those districts which now provide for six-member juries have expressed satisfaction with them in practice.

See 2 Field, McKusick and Wroth, Maine Civil Practice 59, 60-61 (1972 Supp.). In opinions announced on May 22, 1972, the United States Supreme Court in 5-4 decisions, with numerous concurring and dissenting opinions, has held that Louisiana's and Oregon's constitutional provisions permitting less than unanimous verdicts in certain criminal cases do not violate the Due Process Clause of the Fourteenth Amendment. Johnson v. Louisiana, 40 U.S.Law Week 4524 (9-3 verdicts) [406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)] and Apodaca v. Oregon, 40 U.S.Law Week 4528 (10-2 verdicts) [406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972)]. The purpose of the Louisiana provision was to "facilitate, expedite and reduce expense in the administration of justice." Thus so far as the United States Constitution is concerned, the states are free to institute (even in criminal cases) either both juries of less than 12, Williams v. Florida, [supra], 399 U.S. 78, [90 S.Ct. 1893, 26 L.Ed.2d 446] (1970), and less than unanimous verdicts, Johnson and Apodaca cases, supra. In passing it should be noted that the Article I, Section 7 of the Maine Constitution, in quiring trial by jury in criminal cases, specifies that the jury "usual number and unanimity . . . shall be held indispensable." No such restriction appears in the civil jury provision of the Maine Constitution, Article I, Section 20. See Field, McKusick & Wroth, Maine Civil Practice § 48.1. The Advisory Committee carefully considered recently expressed views in opposition to either reducing the size of the jury or permitting less than unanimous verdicts, Zeisel, "The Waning of the American Jury", 58 A.B.A. Journal 367 (April, 1972), and questioning the power of federal district courts to adopt six-member juries, Gibbons, "The New Minijuries: Panacea or Pandora's Box”, 58 A.B.A.Journal 594 (June, 1972). The Committee found Judge Gignoux's practical arguments compelling, however, and felt that any constitutional question was removed by the recent Supreme Court decisions.


This rule departs from the federal counterpart, under which the waiver of jury trial is automatic unless timely demand for it is made. The Maine practice of having a trial by jury unless the right is affirmatively waived is preserved. Rule 38(c) is designed to alleviate one purely administrative problem arising out of the merger of law and equity. The constitutional right to jury trial has always been construed to mean the right to jury trial of issues so triable when the constitution was adopted. Farnsworth v. Whiting, 106 Me. 430, 76 A. 909 (1910). There may be a doubt whether the jury right exists as to a particular case or issue in a case brought under the merged system. If the parties are not called upon to specify their request for a jury, the mechanics of reaching a decision whether to place the action on a jury or nonjury trial list will pose some difficulties. Most cases will, of course, be either plainly legal or plainly equitable, and presumably it would not occur to counsel to make an agreement for waiver of jury in a case of an equitable nature. Subdivision (c) seeks to solve this problem by essentially reversing the federal process. It provides that a party believing the case to be one in which there is no jury right may demand trial without jury. This demand may be endorsed upon the party's pleading. If there is no counter-demand for a jury, the action will be tried without jury. If there is such counter-demand, the court will have to decide whether a jury right exists. It is to be assumed that in the typical case demanding equitable relief the plaintiff's pleading will be endorsed with a demand for nonjury trial, which the adversary will recognize as sound and file no counter-demand. The case will then be tried without jury. As a further aid to administration the court is empowered to make this determination on its own initiative. It is believed that this scheme will not be onerous to the bar and that it will effectively meet a major objection to the preservation of the jury right without an affirmative demand.

RULE 39. TRIAL BY JURY OR BY THE COURT (a) By Jury. When trial by jury has been demanded as provided in Rule 38 or Rule 76C, the action shall be placed on the Jury Trial List when appropriate under Rule 16, and the trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the State of Maine. (b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, in the Superior Court the court in its discretion upon motion may order a trial by a jury of any or all issues. (c) Hearings Outside County. Any hearings without a jury may be held at such place in any county or division as the court may appoint; and the clerk in the county or division in which the action is pending shall transmit the papers in the action to the justice or judge to hear the same, who shall return them after hearing. (d) Advisory Jury and Trial by Consent. In all actions in the Superior Court not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of the parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.


Rule 76C, was amended effective January 1, 2001, to recognize that statutory court unification changes now allows removal from District Court by a party only for a jury trial. Thus, the removal process is effectively a jury trial demand. The change to Rule 39 recognizes this reality. The change also avoids any potential for confusion as to whether Rule 38 and Rule 76C, the two means of demanding a jury trial, should be treated any differently for Rule 39 purposes.


These amendments are intended to accompany those to Rule 38 requiring a jury demand. See Advisory Committee’s Notes to that rule. Rule 39(a), taken from the federal rule, provides that an action in which a jury has been demanded shall be listed and tried as a jury action unless prior to trial the parties stipulate to trial by the court or the court orders such trial on the ground that there is no jury right. A motion for trial without jury should ordinarily be made in time to be determined at the pre-trial conference, but the motion is not waived by failure to make it at that time.


This rule departs from Federal Rule 39 in order to fit the changes made in Rule 38. The provision for advisory juries is in accord with existing Maine law. The verdict of an advisory jury may be wholly disregarded if it is not satisfactory to the conscience of the court. Farnsworth v. Whiting, 106 Me. 430, 76 A. 909. Rule 39(b) incorporates provisions of R.S.1954, Chap. 107, Sec. 30 (repealed in 1959).

RULE 40. ASSIGNMENT OF CASES FOR TRIAL; CONTINUANCES (a) Definitions. (1) “Continuance Order” is defined as an order entered by a judge that effectively removes a case from a trial list or date certain court event in response to a written motion. Absent the entry of a continuance order, a case is subject to being called for trial throughout the trial list period or for a court event on the designated date certain. (2) “Effectively removes a case from a trial list” includes the unavailability for essential dates or when the number of days necessary for trial of the case, based on the parties’ good faith estimate of the time for trial, is more than the difference between (i) the number of days remaining on a trial list at the time a motion for a continuance or a request for protection is made, and (ii) the number of days sought in the motion for a continuance or the request for protection. (3) “Essential Dates” include jury selection days, case management days, and other dates essential to the completion of trial on the list at issue. (4) “Request for Protection” is defined as an informal, non-docketed written request that a case not be called for trial on one or more specified days of a trial list and which, if allowed, would not effectively remove a case from a trial list. A request for protection shall only be acted upon by a judge and shall not take the place of or be treated as a motion for continuance. (5) “Scheduled” is defined as follows: (i) For trial list cases, “scheduled” means a case has been assigned to a trial list as that term is defined in this rule; (ii) for all other cases, “scheduled” means that a date certain has been identified for a hearing or trial. (6) “Trial list” means the list of a group of cases assigned to an actual, discrete period of time. A trial list is not simply a list of cases ready for trial. Rather, it is a list for a trial session that has beginning and ending dates, consists primarily of consecutive court days, and realistically exposes all of the assigned cases to trial.

(b) Assignment for Trial.

(1) Jury Trial List. In those actions in which a jury trial has been properly demanded, the clerk of the Superior Court shall maintain a Jury Trial List and a Nonjury Trial List of actions in the chronological order in which they are transferred from the Pre-Trial List by direction of the court under Rule 16. Scheduling of actions for trial from the lists shall be at the direction of the court. (2) Nonjury Trial List. The court may by order provide for the setting of cases for trial upon the calendar, the order in which they shall be heard and the resetting thereof. All actions, except those otherwise governed by statute or court orders shall be in order for trial at a time set by the court on such notice as it deems reasonable, but not less than 10 days after service of the last required pleading.

(c) Continuances. A motion for a continuance order shall be made

immediately after the cause or ground becomes known. The motion must specify (1) the cause or ground for the request, (2) when the cause or ground for the request became known, and (3) whether the motion is opposed. If the position of the other party or parties cannot be ascertained, notwithstanding reasonable efforts, that shall be explained. Telephonic or other oral notice of the motion shall be given immediately to all other parties. The fact that a motion is unopposed does not assure that the requested relief will be granted. Continuances should only be granted for substantial reasons.

(d) Unavailable Witness or Evidence. The court need not entertain any

motion for a continuance based on the absence of a material witness unless supported by an affidavit which shall state the name of the witness, and, if known, that witness’ residence, a statement of that witness’ expected testimony and the basis of such expectation, and the efforts which have been made to procure that witness’ attendance or deposition. The party objecting to the continuance shall not be allowed to contradict the statement of what the absent witness is expected to testify but may disprove any other statement in such affidavit. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree in writing, signed by that party or that party’s attorney, that the same shall be received and considered as evidence at the trial as though the witness were present and so testified. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, thing or other evidence. In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not.

(e) Protections. A request for a protection from a trial list shall be made immediately after the cause or ground becomes known, and shall be submitted in a written Uniform Request for Protection Form or in a writing containing substantially the same information.


January 1, 2006

The amendments to the rule are designed to promote greater uniformity and predictability with respect to court event scheduling. A key determinant of event certainty in the courts is the application of uniform and predictable approaches to continuances and protections. The absence of uniformity and predictability results in more frequent postponements of scheduled court events that increase the time, expense, and clerical work associated with the resolution of disputes. The revised rule is intended to make the public and the courts more mindful of the long-term negative consequences that event uncertainty has on the public, judicial resources and, ultimately, the administration of justice.

The rule provides clear guidance as to when an informal request for protection should be submitted in lieu of a formal motion for a continuance. A request for protection is an important feature of active trial list management by the court. A conflict during a trial list should be addressed by way of a request for protection, rather than a motion for a continuance order, if the granting of the request will not “effectively remove a case from a trial list” as that term is defined by the rule. The revised rule should encourage the public and the bar to make greater use of protections in lieu of continuances, and cause judges, when responding to requests for protection, to actively manage the scheduling of cases prior to and during a defined trial list period. The definition of “Trial list” corresponds with the Judicial Branch’s effort to adopt effective practices surrounding the organization and judicial management of trial lists. Trial list periods and the assignment of cases to trial lists will be made in accordance with standards established by the Judicial Branch for the various case types. The revised rule provides that continuances may be granted for substantial reasons so that the judicial process does not become unnecessarily onerous or unduly burdensome to the public and the bar. Substantial reasons may include, but are not limited to, conflicts arising from (1) another scheduled court event that is a higher priority case as determined by the priority of cases established by the

Supreme Judicial Court; (2) another scheduled court event in another jurisdiction; (3) long-standing travel or vacation plans of a party or attorney; (4) unforeseen witness unavailability; (5) unexpected family-care responsibilities; and (6) other unforeseeable reasons such as illness or death.


P.L. 1999, Chapter 731, §§ ZZZ-2 et seq. unified the Superior Court and the District Court civil jurisdiction, with certain stated exceptions. The amendments to Rule 40 reflect that jury trials shall continue to be tried in the Superior Court, while nonjury trials may be tried in either court.


The only change involves a change in the title, but not the text, of subdivision (c). The new title, replacing “Affidavit in Support of Motion” with “Unavailable Witness or Evidence” more accurately reflects the substance of the subdivision.


Rules 40(a) and (b) are rewritten simultaneously with a substantial revision of Rule 16. These revisions are intended to clarify and make uniform for all Superior Court Justices and for the clerks in all counties the procedural mechanics for moving a case forward through pretrial conference to trial. The amendments to Rule 16 require pre-trial memoranda in all cases and also require pre-trial conferences except when specifically dispensed with by the court. The scheduling of pre-trial conferences is done completely under the supervision of a Superior Court Justice. Revised Rule 40(a) requires that under the court's direction the clerk maintain both a Jury Trial List and a Nonjury Trial List. It is only by order of a Superior Court Justice that a case is moved from the Pre-Trial List maintained under Rule 16(a)(2) to one of the trial lists maintained pursuant to Rule 40(a). A different Superior Court Judge coming into the county to hold a term of court will be able readily upon examination of these lists to know in what cases he can set specific dates for commencement of trial. See Advisory Committee's Note (September 1, 1973) to Rule 16.

Rule 40(b) is also substantially revised. Since the date of commencement of a term of court now has little or no relation to the date fixed for trial of a case, the deadline for a motion for a continuance is changed to be tied in with the scheduled trial date. The four-day period is picked by way of compromise between the needs of the attorney seeking the continuance and those of the attorneys for the other parties. In addition to the written notice by service of the motion under Rule 5(a), the moving party is required to give prompt telephonic or other oral notice to the other parties. Obviously the moving party, particularly on a motion made close to the deadline, must act promptly to have his motion heard by the judge assigned to try the case. The present last sentence of Rule 40(b), relating to assessment of costs, is eliminated as inappropriate in light of the other changes in this subdivision. It in any event was a sanction of dubious effectiveness.


Rule 16 as revised specifies the procedure by which a party moves a case forward to being placed on the trial calendar. Rule 40(a) is amended merely to provide that the clerk shall maintain a trial calendar showing the cases which are ready for trial and the order in which they will be tried. Although the court will of course maintain control over the trial calendar, it appears well to specify in the rules that the clerk in each county will maintain a trial calendar.


This rule is not taken from the Federal Rules. At present cases are assigned for trial by different procedures in different counties. Rule 40(a) permits the presiding justice to continue to accommodate himself to the established practice in each county. The second sentence of Rule 40(a) provides that actions shall ordinarily be in order for trial at the first term of court held not less than 10 days after completion of the pleadings. This will replace Revised Rules of Court 28 under which the plaintiff can get a trial at the return term by giving notice 30 days before the sitting and the defendant by giving such notice 10 days before the sitting. The abolition of the concept of return terms necessitates a change, but the result will be fairly to approximate the present time limits. An action for divorce will not be in order for hearing until 60 days after service of the complaint. See Rule 80(g).

Rule 40(b) and (c) are taken from Revised Rules of Court 14 and 15 with some changes. Rule 40(c) expressly makes discretionary with the court the requirement of an affidavit in support of a motion for a continuance and the further requirement that the continuance will be denied if the adversary admits that the affidavit may be considered as evidence. The present rule in terms makes the action of the court mandatory, but it is believed that the change not only produces a more equitable result but also accords with the actual existing practice.

RULE 41. DISMISSAL OF ACTIONS (a) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e) and of any statute, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action; provided, however, that no action wherein a receiver has been appointed shall be dismissed except by order of the court. A dismissal under this paragraph may be as to one or more, but fewer than all claims, but not as to fewer than all of the plaintiffs or defendants. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this state or any other state or the United States an action based on or including the same claim. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the counterclaim shall remain pending for independent adjudication by the court despite the dismissal of the plaintiff’s claim. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal: Effect Thereof. (1) On Court’s Own Motion. The court, on its own motion, after notice to the parties, and in the absence of a showing of good cause to the contrary, shall dismiss an action for want of prosecution at any time more than two years after the last docket entry showing any action taken therein by the plaintiff other than a motion for continuance. (2) On Motion of Defendant. For failure of the plaintiff to prosecute for 2 years or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.

(3) Effect. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. (d) Costs of Previously-Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.


Rule 41(a)(l) is amended to provide that the plaintiff may unilaterally dismiss an action only prior to the filing of the answer or a motion for summary judgment, rather than at any time prior to trial, as formerly. The amendment adopts the language of Federal Rule 41(a)(1). The Maine Rule as promulgated in 1959 departed from the Federal Rule in deference to prior Maine practice. See Reporter’s Notes to M.R. Civ. P. 41(a); 1 Field, McKusick, and Wroth, Maine Civil Practice § 41.1 (2d ed. 1970). The development of extensive pretrial discovery practice and the recent emphasis on expedited pretrial procedure in Maine mean that plaintiffs should no longer have the tactical ability to impose expense and delay on other parties or avoid rule- or court-imposed deadlines by dismissal after extensive pretrial proceedings have taken place. The amendment will change the result of Hall v. Norton, 549 A.2d 372 (Me. 1988), in which the Law Court upheld a voluntary dismissal filed without prior notice to the court or defendant at 9:00 on the morning on which jury selection was to begin.


Rule 41(b)(2) is amended by deleting the last three sentences, which are to be incorporated for clarity in new Rule 50(d), added by simultaneous amendment. See Advisory Committee's note to that amendment.


Under existing Rule 41(a)(1) it is unclear whether a plaintiff may voluntarily dismiss without order of court as to fewer than all claims involved in the complaint or as to fewer than all defendants and whether one of several plaintiffs may take a voluntary dismissal without order of court. Although the language of the rule reading "an action may be dismissed by the plaintiff" would seem to exclude such partial dismissals, 5 Moore § 41.06-1 argues that voluntary dismissals as to one party or one claim should be permitted under Federal Rule 41(a). Moore also points to Rule 21 and Rule 15 as bases for motions to dismiss as to one party and as to one claim, respectively, but dismissal under both rules of course requires the court's approval upon motion. It is thought undesirable policy to permit free withdrawal of one of several plaintiffs or free dismissal as to one of several defendants, because this makes for piecemeal litigation. Federal Rule 41(a) permits voluntary dismissal without court approval only up until the filing of the answer or a motion for summary judgment; in Maine such voluntary dismissal may come as late as the eve of trial, at a time when other parties may have expended great time and effort as to the plaintiff or the defendant involved in the partial dismissal. For this policy reason it is thought that a court order under Rule 21 or 41(a) (2) should be required for dismissing as to a party. Some of the same policy considerations militate against permitting voluntary dismissal as to one or more but fewer than all claims. However, there is a contrary policy favoring any action that the parties may take to delimit the issues between them and thus simplify and expedite the litigation. Weighing these policy considerations in the balance, the Committee believes that voluntary dismissal as to less than all of the claims should be permitted without court approval. Subject to the provisions of the last sentence of Rule 41(a)(1), a dismissal as to fewer than all the claims would be without prejudice. Existing Rule 41(b)(1) relating to involuntary dismissal for want of prosecution permits by its terms such dismissal "without notice". In contrast Rule

41 of the District Court Civil Rules has from the beginning provided notice to the parties. Furthermore, in practice, notice is currently given at each term of court of those cases in which no action has been taken for more than two years and dismissal is ordered by the presiding justice only after the list of such cases, of which the counsel involved had been notified, is called in open court. This is done out of a feeling that such notice is required by common fairness, if not by the requirements of constitutional due process. The amendment expressly requires notice to be given.


These amendments to subdivisions (b) (2) and (b) (3) were taken

respectively from 1963 and 1966 amendments to F.R. 41(b). The changes in Rule 41(b) (2) were to make clear that it applies only to actions tried without jury; the appropriate motion in a jury case is for a directed verdict under Rule 50(a). The previous overlap between the two rules had caused some confusion. The change in Rule 41(b) (3) was simply to substitute a reference to the amended Rule 19 for the present provision referring to dismissal for lack of an indispensable party.


This rule substantially modifies Federal Rule 41. It continues the existing Maine practice which allows the plaintiff to take a voluntary nonsuit as of right at any time before the commencement of the trial. Hayden v. Maine Central R. R. Co., 118 Me. 442, 108 A. 681 (1920). It is intended that "commencement of the trial" shall refer to the same time as "opening his case to jury, or to the court, when tried before the court without the intervention of a jury," the language used in the Hayden case, 118 Me. at 447, 108 A. at 683. The rule is couched in terms of "voluntary dismissal" instead of "nonsuit" to conform to the federal terminology. A voluntary dismissal, like a nonsuit, is without prejudice the first time, but the rule provides that a second voluntary dismissal of the same claim operates as an adjudication on the merits. Rule 41(a) (2) deals with a dismissal by order of the court, which may be upon such terms as the court deems proper. It further provides that voluntary dismissal cannot defeat a counterclaim already pleaded. A dismissal under this paragraph is without prejudice unless otherwise specified in the order.

Rule 41(b) (1) incorporates the present Maine rule for dismissal for want of prosecution for two years either at law (Revised Rules of Court 41) or in equity (Equity Rule 42) unless good cause is shown. Rule 41(b) (2) permits a defendant to move for dismissal at the close of the plaintiff's case without waiving the right himself to produce evidence if the motion is denied and with res judicata effect if the motion is granted. This is contrary to Maine practice, Pendergrass v. York Mfg. Co., 76 Me. 509, but the change seems wise, particularly in the light of the court's discretionary power to dismiss without prejudice if it appears that the plaintiff deserves a chance to remedy the defect in his proof. Rule 41(b) (3) makes it clear that any dismissal under this subdivision, whether by the court for want of prosecution or on motion of the defendant, operates as an adjudication on the merits. As indicated above, this is a change from the present law with respect to a nonsuit at the close of the plaintiff's case, but it appears to be in accord with existing law with respect to dismissal for want of prosecution. Cf. S. D. Warren Co. v. Fritz, 138 Me. 279, 25 A.2d 645 (1942); Davis v. Cass, 127 Me. 167, 142 A. 377 (1928). Rule 41(d) is designed to prevent vexatious litigation. It is comparable to but less severe than R.S.1954, Chap. 113, Sec. 164 (amended in 1959) [now 14 M.R.S.A. § 1510]. The rule is permissive, whereas the statute is mandatory. In one respect, however, the rule is broader than the statute, since it in terms covers a prior action brought in another state or a Federal court, whereas the statute does not. Folan v. Lary, 60 Me. 545 (1872).

RULE 42. CONSOLIDATION; SEPARATE TRIALS (a) Consolidation. When actions involving a common question of law or fact are pending before the court, in the same county or division or a different county or division, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial in the county or division where the action is pending, or a different county or division, of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues. (c) Convenience and Justice. In making any order under this rule, the court shall give due regard to the convenience of parties and witnesses and the interests of justice.


This rule is similar to Federal Rule 42, but slight changes have been made and subdivision (c) has been added. Rule 42(a) is one of trial convenience. It complements the liberal provisions for joinder of claims and parties. Where joinder could have been had but was not, the court can order a consolidated hearing. It is to be noted that an order for consolidation may apply to separate issues and not necessarily to entire cases. For instance, several actions arising out of the same accident may be consolidated for trial on the issue of liability with reservation of separate trials on damages. Rule 42(b) is similarly for trial convenience. The broad provisions for joinder of claims and parties, for counterclaims, cross-claims, and third-party claims may produce an unwieldy package for trial. A discretionary power to separate them is a practical necessity for efficient administration. Under this provision the court has discretion to isolate a single issue which may be decisive of the case and try that issue separately. For example, where the affirmative defense of a release is pleaded, a court might try that issue first, since it

would save the time and expense of a trial if proved. More commonly, of course, the rule is applied in multiple claim situations. The rule goes somewhat further than Field v. Lang, 89 Me. 454, 36 A. 984 (1897), which indicates a broad discretion in the presiding justice to order actions to be tried together, but suggests a distinction between a joint trial and a consolidation of the actions. The rule includes an express provision that cases pending in different counties may be consolidated for trial in one county. R.S.1954, Chap. 113, Sec. 24 (amended in 1959) [14 M.R.S.A. § 508], now allows a change of venue for trial from one county to any other county, for good cause shown, but it does not appear commonly to have been utilized to provide a single trial of two or more actions brought in different counties on the same facts. It seems desirable that this be done and equally desirable that a separate trial of a claim or issue ordered under Rule 42(b) be held in a different county if more convenient.

RULE 43. TAKING OF TESTIMONY (a) Form. In every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise. The court may, on its own motion or for good cause shown upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence applied in the courts of this state. (b) Scope of Examination and Cross-Examination [Abrogated]. (c) Record of Excluded Evidence [Abrogated]. (d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (f) Copies of Deeds [Abrogated]. (g) Copies of Corporate Records. Copies of any votes or other records upon the books of a corporation or of any papers in its files may, when attested by its clerk, be received in evidence unless it appears that the adverse party has been denied access to the originals at reasonable hours. (h) Notice to Produce. No evidence of the contents of a writing in the hands of an adverse party will be admitted unless previous notice to produce the writing at trial has been given, nor shall counsel be allowed to comment upon a refusal to produce it without first proving such notice. (i) Examination of Witnesses. The examination and cross-examination of each witness shall be conducted by one counsel only on each side, except by special leave of court, and counsel shall stand while so examining or cross-examining unless the court otherwise permits. Any re-examination of a witness shall be limited to matters brought out in the last examination by the adverse party except by special leave of court.

(j) Order of Evidence. A party who has rested cannot thereafter introduce further evidence except in rebuttal unless by leave of court. (k) Attorneys as Bail or Witnesses [Abrogated]. (l) Interpreters. The court may appoint a disinterested interpreter of its own selection, including an interpreter for the deaf, and may fix the interpreter’s reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. Interpreters shall be appropriately sworn.

Advisory Notes 2004

Rule 43(a) is amended to allow the court upon its own motion or upon a motion of a party, on a showing of good cause, to order that testimony in a hearing be presented by an appropriate method of transmission from a remote location. To make this option more available the “in compelling circumstances” language is deleted from the present rule. The “appropriate safeguards” would include assurances that the testimony is properly sworn; the identity of the individual testifying is confirmed; the witness is subject to the authority of counsel and the court; and the presence of others at the remote location and other environmental factors which could affect the testimony are recognized and, if necessary, controlled.


Rule 43(a) was originally based on F.R.Civ.P. 43(a). In 1996, F.R.Civ.P. 43(a) was amended. F.R.Civ.P. 43(a) now reads as follows: (a) Form. In every trial, the testimony of witnesses shall be taken in open court, unless a federal law, these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court provide otherwise. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.

The significant changes in F.R.Civ.P. 43(a), according to the Federal Advisory Committee Notes: 1. Removed the oral testimony requirement to recognize and

accommodate the fact that some individuals are not able to present themselves orally; and

2. Modified the open court requirement to permit taking live testimony

from remote locations in appropriate circumstances. M.R. Civ. P. 43(a) is amended to conform to the present Federal Rule to reflect both modern telecommunication capabilities and increased recognition of the need to accommodate witnesses who may have particular challenges in appearing and testifying live.


Rule 43 is amended because the title and many of its provisions are no longer appropriate with the adoption of the Evidence Rules. Subdivision (a). The provision for taking testimony in open court is not duplicated in the Evidence Rules and is retained. The very general statement about admissibility of evidence is superseded by the detailed provisions of the Evidence Rules. Subdivision (b) is abrogated. The subdivision is no longer needed or appropriate since the matters with which it deals are treated in the Evidence Rules. The use of leading questions, both generally and in the interrogation of an adverse party or witness identified with him, is the subject of Evidence Rule 611(c). Who may impeach is treated in Evidence Rule 607, and scope of cross-examination is covered in Evidence Rule 611(b). Subdivision (c) is no longer needed or appropriate and is abrogated. Offers of proof and making a record of excluded evidence is treated in Evidence Rule 103. Subdivision (f) is abrogated. It was based on 16 M.R.S.A. § 452. Evidence Rule 803(14) broadens that statute. The statute allows in evidence an attested copy from the Registry without proof of execution of a deed when the party offering it is

not the grantee in the deed, nor claiming as his heir, nor justifying as his agent. The Evidence Rule makes such a record admissible without limitation.


The specific reference to an interpreter for the deaf is added in order to eliminate any doubt that the interpreter who may be appointed under this rule may be an aid wherever there is difficulty of communication for any reason. The rule does not spell out, and it would seem unnecessary to spell out, the form of communication that may be used with the deaf person. The interpreter may be interpreting sign language, lip reading or written characters.


This amendment was taken principally from a 1966 federal amendment

adding F.R. 43(f). It authorizes the court to appoint interpreters (including ones for the deaf), to provide for their compensation, and to tax their compensation as costs in the discretion of the court. Use of interpreters has of course been common in Maine courts, but a variety of practice has prevailed as to their selection and compensation. In Cumberland County interpreters have, at least at times, been compensated by the County and it would seem that the new rule does not foreclose that possibility hereafter.

The express requirements that the interpreter be disinterested and that he be sworn do not appear in F.R. 43(f). They were added to conform with Maine Criminal Rule 28(b).


Rule 43(a) to (e), inclusive, is the same as Federal Rule 43.* It is generally declaratory of present Maine law. The second sentence of Rule 43(b) permits a party to call an adverse party and ask leading questions, contradict, and impeach him. R.S.1954, Chap. 113, Sec. 118 [now 16 M.R.S.A. § 154], declares the same policy and in practice has been applied to permit an adverse party to be * [As Field, McKusick & Wroth note the statement is incorrect. See 1 Field McKusick & Wroth, Maine Civil Practice at § 43.13.]

interrogated with leading questions. The rule is believed to be sound in extending the existing statute and practice to apply to officers of a corporate adverse party. The limitation of cross-examination of a witness thus called is consistent with the general federal practice of limiting the scope of cross-examination to the subject matter of the direct, a limitation which does not prevail in Maine. Even so, there is sound justification for the limitation as applied to the cross-examination of a party or agent of a party called by his adversary. The last sentence of Rule 43(b) is taken from Revised Rules of Court 10. Rule 43(f) to (k), inclusive, is drawn from the present Revised Rules of Court. Rule 43(f) is derived from Revised Rules of Court 26, Rule 43(g) from Equity Rule 25, Rule 43(h) from Revised Rules of Court 27, Rule 43(i) from Revised Rules of Court 35, Rule 43(j) from Revised Rules of Court 36, and Rule 43(k) from Revised Rules of Court 38. There are a few verbal differences, but the substance of the present rules is left unchanged.

RULE 44. PROOF OF OFFICIAL RECORD (a) Authentication. (1) Domestic. An official record kept within the United States, or any state, district, or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or by a copy attested by a person purporting to be the officer having the legal custody of the record, or the officer’s deputy. If the official record is kept without the state, the copy shall be accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by that seal. (2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. The final certification is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties. (b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of

a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or entry or lack of entry therein by any other method authorized by law.


Rule 44(a) is amended to adopt a 1991 amendment of Federal Rule 44(a) for the purpose of maintaining Maine’s authentication provisions in conformity with the federal rule. Variations between the basic Maine and federal provisions to take account of Maine practice are retained. See M.R. Civ. P. 44 Reporter’s Notes and explanation of 1966 amendment, 1 Field, McKusick and Wroth Maine Civil Practice 606 (2d ed. 1970). The reasons for the amendment are those given in the federal Advisory Committee Note: The amendment to paragraph (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States, and adds a generic term to describe governments having a relationship with the United States such that their official records should be treated as domestic records. The amendment to paragraph (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Moreover, it does not affect the former practice of attesting the records, but only changes the method of certifying the attestation. The Hague Public Documents Convention provides that the requirement of a final certification is abolished and replaced with a model apostille, which is to be issued by officials of the country where the records are located. See Hague public Documents Convention, Arts. 2-4. The apostille certifies the signature, official

position, and seal of the attesting officer. The authority who issues the apostille must maintain a register or card index showing the serial number of the apostille and other relevant information recorded on it. A foreign court can then check the serial number and information on the apostille with the issuing authority in order to guard against the use of fraudulent apostilles. This system provides a reliable method for maintain the integrity of the authentication process, and the apostille can be accorded greater weight than the normal authentication procedure because foreign officials are more likely to know the precise capacity under their law of the attesting officer than would an American official . . . .


This amendment was taken from a 1966 amendment to F.R. 44. It provides

a new procedure with respect to proof of foreign official records. It was developed collaboratively by the Commission and Advisory Committee on International Rules of Judicial Procedure and the Federal Advisory Committee on Civil Rules. For the proof of domestic official records the basic provisions of M.R.C.P. 44 remain unchanged. While a double certificate is required for domestic records kept outside Maine, a single certificate suffices to prove records kept within the state. See Reporter’s Notes to Rule 44 above.


This rule is a departure from both Federal Rule 44 and the existing Maine statute. In fact, R.S.1954, Chap. 113, Secs. 149-151,* enacted in 1939, is a verbatim copy of Federal Rule 44. Both require in effect a "double certificate" for the proof of official records whether from an office within the state or outside. This rule in effect eliminates the "double certificate" for proof of an official record kept within the state, while preserving it for out-of-state records. More than 10 years ago New Jersey did away with the double certificate for in-state records. This seems particularly desirable for Maine, where because of its small population and the availability of information in the Maine Register and elsewhere, it is generally known who the keepers of official records are. The result should be

* [Field, McKusick & Wroth noted: “Became 16 M.R.S.A. §§ 460-462, subsequently repealed by

1965 Laws, c. 356, § 65.” 1 Field, McKusick & Wroth, Maine Civil Practice at 606 (2d ed. 1970.]

merely to eliminate time-consuming nuisance in making proof. It is, of course, always open to the adverse party to impeach the authenticity of the record. A 1959 amendment to the statute makes it conform to the rule. It is preserved in statute form because of its applicability to criminal cases.

RULE 44A. DETERMINATION OF FOREIGN LAW A party who intends to raise an issue concerning the law of a foreign country shall give notice in that party’s pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Maine Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.


Rule 44A simply changes “Rule 43” to “the Maine Rules of Evidence.”

Since the purpose of the provision is to free the judge, in determining foreign law, from any restrictions imposed by evidence rules a general reference to the Evidence Rules is appropriate.


This rule, new to Maine, was taken from F.R. 44.1, added in 1966. It was

designed to furnish a uniform and effective procedure for raising and determining an issue concerning the law of a foreign country. It requires a party who intends to raise a question of foreign law to give reasonable written notice in his pleadings or otherwise. It broadens the methods for ascertainment of foreign law by allowing the court to consider any relevant material, including testimony, whether or not admissible under ordinary rules of evidence. The last sentence in the rule is but a restatement of existing Maine law by reason of Maine’s adoption of the Uniform Judicial Notice of Foreign Law Act. 16 M.R.S.A. § 406. F.R. 44.1 was developed collaboratively by the Commission and Advisory Committee on International Rules of Judicial Procedure, the Columbia Law School Project on International Procedure, and the Federal Advisory Committee on Civil Rules.

RULE 45. SUBPOENA (a) Form; Issuance. (1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and

(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things, or permit inspection of premises, in the possession, custody or control of that person at a time and place therein specified; and

(D) set forth the text of subdivisions (c) and (d) of this rule.

A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. (2) A subpoena for the Superior Court may issue from the court in any county, and for the District Court from the court in any district. (3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney admitted to the Maine Bar may also issue and sign a subpoena as officer of the court. (b) Service. (1) A subpoena may be served by any person who is not a party and is not less than 18 years of age, including the attorney of a party. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspection of premises or the appearance of a witness in discovery or pretrial proceedings shall be served on each party in the manner prescribed by Rule 5(b) at least 14 days

prior to the response date set forth in the subpoena. A party shall have 7 days to object to a discovery or pretrial subpoena and to arrange for the determination of the objection by the court. Subpoenas commanding the appearance of a witness or the production of documents or things at trial or hearing shall be served on each party in the manner prescribed by Rule 5(b). (2) A subpoena may be served at any place within the state. (c) Protection of Persons Subject to Subpoenas. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court for which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings, a reasonable attorney fee, and other reasonable expenses incurred in seeking the sanction. (2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents, or tangible things, or inspection of premises, need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena a written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of any justice or judge of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow a reasonable time for compliance;

(ii) requires a resident of this state who is not a party or an officer of a party to travel to attend a deposition outside the county wherein that person resides or is employed or transacts business in person or a distance of more than 100 miles one way, whichever is greater, unless the court otherwise orders; requires a nonresident of the state who is not a party or an officer of a party to attend outside the county wherein that person is served with a subpoena, or farther than 100 miles from the place of service, unless some other convenient place is fixed by an order of court;

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles one way to attend trial,

the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) Duties in Responding to a Subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. (e) Motions and Objections. Motions or objections concerning subpoenas issued in discovery or pretrial proceedings shall be made under Rule 26(g). Motions or objections concerning subpoenas issued to command appearance or production of documents or tangible things at trial or hearing shall promptly be directed first to the judge or justice presiding at such trial or hearing. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending or in the county in which the deposition is taken. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A). Punishment for contempt under this subdivision (f) shall be in accordance with Rule 66 and 16 M.R.S.A. § 102.

Advisory Committee Note December 11, 2007

Subdivision (b) is amended to require that discovery subpoenas be served sufficiently in advance to enable an opposing party to object to the subpoena and to arrange to present the objection to the court under subdivision (e), which incorporates the procedure under Rule 26 (g). The amendment is intended to eliminate the sharp practice of timing the service of subpoenas during discovery so that opposing parties have no practical opportunity to object and obtain a ruling before the response to the subpoena is required. Since a party under this procedure may simply object, rather than move to quash (the remedy for nonparties), a conforming amendment is made to subdivision (e). The amendment also confirms that trial subpoenas should be served under Rule 5. Obviously, when time is short prior to trial, the best practice is for the serving party to alert the other parties by means more expedient than Rule 5 or risk having to explain to the court why a

telephone call, fax or email could not have been sent to avoid a hurried hearing on motions or objections to the subpoena. Objections should be promptly directed to the court under subdivision (3).


A new subdivision (e) has been added, re-designating the former subdivision (e) as (f). Under the new subdivision (e), motions concerning subpoenas issued in discovery or pretrial proceedings must be made under Rule 26(g). The purpose of the amendment is to simplify and expedite the resolution of discovery disputes by prohibiting written motions. If the subpoena requires a witness appearance or the production of documents and tangible things at trial or hearing, a written motion should be filed, directed first to the judge or justice presiding at the trial or hearing.


Rule 45 (c) is amended to extend the reach of subpoenas to 100 miles rather than 50 miles. This amendment brings Rule 45 into line with M.R. Civ. P. 32(a)(3) and federal practice.


Rule 45(a)(1)(D) is added to make clear the original intention of the 1993 amendments of Rule 45 that the text of Rules 45(c) and (d) were to be appended to the subpoena. Forms 11.10 and 11.20, as simultaneously amended in 1993, call for inclusion of the rule language, and the requirement is made explicit in footnotes to those forms. The present amendment conforms the Maine rule to Federal Rule 45(a)(1)(D) and eliminates any doubt or question about the source of the requirement.


Rule 45 is amended to adopt a 1991 amendment of Federal Rule 45. Former Rule 45 is abrogated, but the amendment retains distinctive features of the former rule and practice under it that are appropriate for the Maine courts. See 1 Field,

McKusick and Wroth, Maine Civil Practice § 45.7 (2d ed. 1970). By simultaneous amendments conforming changes have been made in Forms 11.10 and 11.20 and a new Form 11.30 has been added. The purposes of the amendment are to clarify the organization of the rule and to facilitate access to documentary evidence or other material, and inspection of premises, in the possession of nonparties. The amended rule provides expanded protection for the interests of witnesses and other nonparties. Rule 45(a)(1), in the words of the federal Advisory Committee Note, authorizes the issuance of a subpoena to compel a non-party to produce evidence independent of any deposition. This revision spares the necessity of a deposition of the custodian of evidentiary material required to be produced. A party seeking additional production from a person subject to such a subpoena may serve an additional subpoena requiring additional production at the same time and place. * * * * * [The provision also] authorizes the issuance of a subpoena to compel the inspection of premises in the possession of a non-party. Rule 34 has authorized such inspections of premises in the possession of a party as discovery compelled under Rule 37, but prior practice required an independent proceeding to secure such relief ancillary to the federal proceeding when the premises were not in the possession of a party * * * * *. The simultaneous addition of a new Rule 34(c) makes clear that the purpose of these amendments is to extend the production and inspection provisions of Rule 34 to nonparties. No change in the scope of production and inspection from that under Rule 34 is intended. When the purpose is discovery, the scope is that delineated in Rule 26(b). Rules 45(a)(2), (3), depart from the federal rule to carry forward present Maine practice permitting issuance of the subpoena in blank to a party by the clerk or issuance by a member of the Maine bar. As under the prior rule, the subpoena may issue in any county or district. The requirement that the subpoena bear the seal of the court, which under former Rule 45(a) applied only to subpoenas issued by the clerk, has been eliminated for all subpoenas. Only the signature of the issuing clerk or attorney is required. Cf. F.R.Civ.P. 45(a) advisory committee’s note to 1991 amendment. Rule 45(b) substantially retains the provisions for service presently found in subdivisions (c) and (e). The amended rule makes clear that a party’s attorney may

make service. Because the procedure replaces the former practice of taking a deposition with a subpoena duces tecum, paragraph (1) contains a requirement of notice of production or inspection to other parties in order to preserve their opportunity to object to or supplement the discovery. Rule 45(c) is intended to protect the rights of witnesses by stating, in paragraph (1), a general prohibition against abuse of a subpoena and giving the court to which a subpoena is returnable broad powers to issue protective orders and impose sanctions to assure that nonparties are protected against significant expense and other burdens. The protective provisions are intended to track those of Rule 26(c) but are here phrased in terms reflecting the perspective of the witness. See F.R.Civ.P. 45(c) advisory committee’s note to 1991 amendment. Consistent with present M.R. Civ. P. 45(d)(2), the limits on travel by a deponent or trial witness are set at 50 miles, rather than 100 miles as in the federal rule. Rule 45(d)(1) extends to nonparties the requirements of orderly production imposed on parties by the last paragraph of Rule 34(b). Paragraph (2) is intended to provide a party against whom a claim of privilege has been lodged sufficient information to resist an unjustified claim. See F.R.Civ.P. 45(d)(2) advisory committee’s note to 1991 amendment. Consistent with the purpose of Federal Rule 45(a)(1)(D) (not adopted in Maine), Forms 11.10 and 11.20 have been amended to require the full text of Rules 45(c) and (d) to be appended to a subpoena, and a similar provision has been made in new Form 11.30. See Advisory Committee’s Notes to those forms. Rule 45(e) retains the provision for contempt presently found in Rule 45(f), with the addition of language expressly recognizing that disobedience of a subpoena calling for attendance or production outside the geographical limits of new Rule 45(c)(3)(A)(ii) is not a contempt.


By a procedure that is analogous to that provided in amended Rule 34, Rule 45(d)(1) is amended to make clear that a subpoena duces tecum issued for taking a deposition may command the person to whom it is directed, not only to produce, but also to permit inspection and copying of designated books, papers, etc. The person to whom the subpoena is directed has ten days within which to object. In

the event of such objection, the party serving the subpoena is required to go forward in seeking a court order that he be permitted to inspect the copies.


As the terms of trial justices expire, their functions, civil as well as criminal, are taken over by the District Court (1961 Laws, c. 386, § 1; 4 M.R.S.A. § 152) and any continuing purpose for the issuance of subpoenas by trial justices in civil cases is eliminated.


This amendment was adopted to conform to the language of Maine Criminal

Rule 17(f) (2), by specifying that the limitation on a deponent’s travel is fifty miles “one way.” Conformity eliminates the possibility that a different meaning might be implied in the Civil Rule.


This rule adopts Federal Rule 45 with minor variations. It makes the following changes in Maine practice: 1. Equity Rule 26 and R.S.1954, Chap. 113, Sec. 23 (repealed in 1959), are changed by permitting the issuance of a subpoena duces tecum without an order of court. Rule 45(b) does, however, give the party served with such a subpoena the opportunity to obtain the protection of the court. 2. Rule 45(c) in permitting service of a subpoena by any person seems to change the law in the statute books, but it is in keeping with existing Maine practice, as evidenced by 1 Sullivan, Maine Civil Officer 427, where there appears a form of affidavit when service is made by a person other than an officer. 3. Rule 45(d) (2) broadens existing law with respect to the distance a witness may be required to travel to give his deposition. R.S.1954, Chap. 117, Sec. 11 (repealed in 1959), limits this distance to 30 miles. The rule uses as a limit the county lines or a distance not exceeding 50 miles if outside the county, unless the court otherwise orders. It seems more reasonable to require one witness to travel a

considerable distance than to force the lawyers, the notary, and the court reporter to do so.

RULE 46. PRESERVING OBJECTIONS Objections to rulings admitting or excluding evidence and other rulings or orders of the court shall be made, preserved and appealed in accordance with Maine Rules of Evidence, these Rules and any applicable statutes. Exceptions to rulings or orders of the court shall not be made. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party’s objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice that party.


Rule 46, making exceptions unnecessary, addresses a practice that has not existed for forty years. The rule is completely revised to pertain to objections, now fully covered by the Maine Rules of Evidence. The title is amended to be entitled “Preserving Objections.”


This rule is substantially the same as Federal Rule 46. It is a great departure from traditional practice in Maine. Exceptions, hitherto essential to the preservation of a question for appellate review, are abolished. This change has also been incorporated in R.S.1954, Chap. 106, Sec. 14, as amended in 1959 [now 15 M.R.S.A. § 2117], with respect to civil cases. It was deemed desirable to make the change a matter of statute to avoid any possible contention that the requirement of exceptions as a prerequisite to appellate review was jurisdictional. It is to be noted that although formal exceptions are unnecessary, a party must still make known at the time of the ruling the actions he wants or his objection to the action taken and his grounds therefor. There is no good reason for requiring the talismanic word "exception" as essential to the preservation of rights. The importance of this rule rests upon its relation to appellate review. Since there are no exceptions, there can be no bill of exceptions. All appellate review is

by appeal, and any claimed error to which adequate objection was made is open to the aggrieved party on appeal. Lawyers should be alert to the fact that this rule has no applicability to criminal cases, which are not within the scope of the rule-making power delegated to the Supreme Judicial Court. Review by exceptions will accordingly continue in criminal cases.*

* [Field, McKusick & Wroth noted: “This situation has now been changed by statute and rule.

15 M.R.S.A. § 2117 and Maine Criminal Rule 51 are identical to M.R.C.P. 46. See Glassman § 51.1.” 1 Field, McKusick & Wroth, Maine Civil Practice at 631 (2d ed. 1970)].

RULE 47. JURORS (a) Examination of Jurors. The court shall conduct the examination of prospective jurors unless in its discretion it permits the parties or their attorneys to do so. The court shall permit the parties or their attorneys to suggest additional questions to supplement the inquiry and shall submit to the prospective jurors such additional questions as it deems proper, or the court in its discretion may permit the parties or their attorneys themselves to make such additional inquiry as it deems proper. (b) Challenges for Cause. Challenges for cause of individual prospective jurors shall be made at the bench, at the conclusion of the examination. (c) Peremptory Challenges. (1) Manner of Exercise. After all jurors challenged for cause have been excused, the clerk shall draw the names of eight prospective jurors and shall draw one additional name for each peremptory challenge allowed to any party by this rule or by the court. Peremptory challenges shall be exercised by striking out the name of the juror challenged on a list of the drawn prospective jurors prepared by the clerk. Any party may waive the exercise of any peremptory challenges without thereby relinquishing the right to exercise any remaining peremptory challenge or challenges to which that party is entitled. If all peremptory challenges are not exercised, the court will strike from the bottom of the list sufficient names to reduce the number of jurors remaining to eight. (2) Order of Exercise. In any action in which both sides are entitled to an equal number of peremptory challenges, they shall be exercised one by one, alternatively, with the plaintiff exercising the first challenge. In any action in which the court allows several plaintiffs or several defendants additional peremptory challenges, the order of challenges shall be as determined by the court. (3) Number. Each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. (d) Alternate Jurors. The court may direct that not more than three jurors in addition to the regular panel be called and impaneled to sit as alternate jurors as provided by law. The manner and order of exercising peremptory challenges to

alternate jurors shall be the same as provided for peremptory challenges of regular jurors. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by this rule if one or two alternate jurors are to be impaneled, and two peremptory challenges if three alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this rule shall not be used against an alternate juror. (e) Note-Taking by Jurors. The court in its discretion may allow jurors to take handwritten notes during the course of the trial. If note-taking is allowed, the court shall instruct the jury on the note-taking procedure and on the appropriate use of the notes. Unless the court determines that special circumstances exist that should preclude it, jurors should be allowed to take their notes into the jury room and use them during deliberations. Counsel may not request or suggest to a jury that jurors take notes or comment upon their note-taking. Upon the completion of jury deliberations, the notes shall be immediately collected and, without inspection, physically destroyed under the court’s direction.


Rule 47 (e) was adopted to permit note-taking by jurors during trial, subject to the discretion of the court. The subdivision is identical to M.R.Crim.P. 24 (f), which has been successfully implemented at criminal trials, with the intention of making the practice uniform in criminal and civil trials.


This amendment [to subdivision (c)(1)] provides for modification of the manner of exercise of peremptory challenges in the selection of an eight person jury as provided, as of this date, by amendment to Rule 38(a). The rule, as so modified, results in the selection of an eight person jury. The provisions of the rule are subject to any stipulation entered into under Rule 48(b) for reduction in the size of the jury. This amendment [to subdivision (c)(3) ] is intended to adjust the number of peremptory challenges in accordance with the eight person jury provided for this date in Rule 38(a). The rule, as amended, provides for three peremptory challenges as opposed to two peremptory challenges which were allowed in the

case of the selection of a six person jury. This amendment represents a return to the provisions of the rule as they existed prior to October l, 1975 when the statutory provisions provided for the use of eight person juries. Rule 47(d) is amended simultaneously with amendments to Rules 38 and 48 in order to implement the provisions of Chap. 102 of the Public Laws of 1977. Rule 38(a) provides for the selection of eight person juries where requested by either party prior to trial. The amendments to 47(d) represent a return to the system of selection of alternate jurors which existed prior to October 1, 1975 when eight person juries were mandated by the pertinent statutory provisions. The rule now provides for the selection of "not more than 3 jurors" as alternates and provides for a maximum of two peremptory challenges if three alternate jurors are to be selected, and for a single peremptory challenge, for each party, if either one or two alternate jurors are selected. It should be noted that the challenges provided for under Rule 47(d) may be utilized only with respect to potential alternate jurors.


This amendment, like the simultaneous changes made in Rules 38 and 48, accommodates the jury selection procedures to the 1975 amendment of 14 M.R.S.A. § 1204, providing for six-member juries. See Advisory Committee's Notes to Rules 38, 48.


Rule 47(c) and Rule 47(d) are amended simultaneously with amendments to Rules 38 and 48 in order to implement the permissive 1972 statute authorizing the Supreme Judicial Court to institute 8-member juries (with 6-juror majority verdicts). See the Advisory Committee's Note (January 1, 1973) to Rule 38(a). Rule 47(c)(1) is amended to reflect the smaller number of jurors that will be drawn and Rule 47(c)(3) and Rule 47(d) are amended in order to reduce the number of peremptory challenges and the maximum permissible number of alternate jurors, respectively, approximately in proportion to the reduction of the number of jurors from 12 to 8. At the same time that Rule 47 is being amended to implement the 8-member jury statute, a new third sentence is added to Rule 47(c)(1) in order to specify by

rule the better practice in regard to waiver of peremptory challenges. That new sentence, taken from Rule 19 of the Local Rules of the United States District Court for the District of Maine, makes clear that a party by waiving the exercise of any one of his peremptory challenges does not thereby relinquish his right to exercise any subsequent remaining peremptory challenge to which he is entitled. This is already the better practice. See Field, McKusick and Wroth, Maine Civil Practice § 47.3, at 640-41.


These amendments are intended to bring the civil and criminal practice with regard to challenges to the jury and alternate jurors into substantial conformity. They are drawn from Maine Criminal Rule 24 and the practice of the United States District Court for the District of Maine under its Local Rule 19. In an accompanying statutory change, 14 M.R.S.A. § 1204 has been amended to eliminate the now largely formal practice of drawing two regular panels at the beginning of the term and to substitute for provisions concerning peremptory challenges and alternate jurors an express rule-making power in the Supreme Judicial Court. 1967 Pub. Laws, Chap. 441, Sec. 3. The provision of 14 M.R.S.A. § 1302 for a challenge to the panel has also been repealed. Id., Sec. 4. These changes parallel amendments made to the comparable criminal procedural statutes when the Maine Rules of Criminal Procedure were promulgated. See 15 M.R.S.A. § 1258. Under the amended rule a jury will be specially drawn for the trial of each case. It is envisioned that the practice will be substantially as follows: All jurors available for the trial of the case will be examined on voir dire. In the federal court Judge Gignoux accomplishes this step with a set of prepared questions which he addresses to all the prospective jurors as a group, directing further questions to a juror as circumstances dictate. After the voir dire, under amended Rule 47(b) counsel will make their challenges for cause at the bench out of the hearing of the jurors. This practice, identical to that under Criminal Rule 24(b), is intended to eliminate any prejudice which might result from a challenge for cause. See Reporter's Notes, Me.R.Crim.P. 24. Under amended Rule 47(c), when challenges for cause have been completed and the challenged jurors excused, the clerk will draw a number of jurors' names

equal to the size of the jury plus the total number of peremptory challenges available to all parties—20 names in the ordinary civil case (12 plus four challenges for each party). As he draws, the clerk will make a list of the drawn jurors. Counsel for each party will then alternately strike from the completed list the names of those whom they wish to challenge peremptorily up to the maximum allowed. When all challenges have been exercised, if more than 12 names remain the court will strike the surplus from the bottom of the list. The remainder will be the jury for the trial of the case. This procedure is based on Maine Criminal Rule 24(c) and local Rule 19(c) of the United States District Court for Maine. Its purpose is to eliminate complexity and potential for prejudice which tend to discourage the exercise of peremptory challenges. See Reporter's Notes, Me.R.Crim. P. 24. Subdivision (c)(3) incorporates the number of peremptory challenges presently allowed by 14 M.R.S.A. § 1204 (Supp. 1966) for cases in which a jury is specially drawn. The last sentence of the subdivision is taken from 28 U.S.C.A. § 1870, source of the comparable federal rule for civil actions. Its effect is the same as that of the last sentence in Maine Criminal Rule 24(b). Subdivision (d) increases to four the number of alternate jurors permitted in a civil action from the two allowed under 14 M.R.S.A. § 1204 (Supp.1966). The increase brings the number of alternates into line with that permitted by Maine Criminal Rule 24(d). Although both of the comparable Federal Rules permit six alternates, the smaller number seems warranted by the actualities of Maine practice. The rule is generally similar to Federal Civil Rule 47(b), except that the provisions of the latter as to the drawing and functions of alternate jurors are omitted to be consistent with Maine Criminal Rule 24(d). These provisions appear in virtually identical form in 14 M.R.S.A. § 1204 as amended in 1967.


This rule modifies Federal Rule 47 only in minor respects. It also follows closely existing Maine practice. R.S.1954, Chap. 113, Sec. 101 [now 14 M.R.S.A. § 1301] provides that the court shall on motion pose certain questions to prospective jurors. At present there is no uniform practice among judges as to permitting counsel to question prospective jurors. While subdivision (a) of this rule preserves a discretion in the

trial judge to permit interrogation by counsel, Federal Rule 47(a) is modified to indicate clearly that questioning by the judge should be the normal procedure. R.S.1954, Chap. 113, Sec. 95 [now 14 M.R.S.A. § 1204] provides for alternate jurors in both civil and criminal cases.* It is substantially the same as Federal Rule 47(b), and it seems preferable to incorporate the statute by reference in lieu of adopting the federal rule. Otherwise there would be undesirable minor variations in practice between civil and criminal cases.

* [Field, McKusick & Wroth noted: “As amended by 1965 Laws, c. 356, §§ 12, 13, and 1967

Laws, c. 441, § 3, the section now applies only to civil cases and gives the court specific rulemaking authority as to the number of alternates and challenges to them. See Advisory Committee's Note . . .” 1 Field, McKusick & Wroth, Maine Civil Practice at 635 (2d ed. 1970)]..

RULE 48. MAJORITY VERDICT; STIPULATIONS AS TO NUMBER (a) Majority Verdict. A number of jurors equal to at least two-thirds of the total number of jurors serving on a jury may agree on a verdict or any finding submitted to the jury and return it into court as the verdict or finding of the jury, unless otherwise agreed by the parties in accordance with subdivision (b) of this rule. The court shall so instruct the jury.

(b) Number of Jurors. All civil trials by jury shall be to juries consisting of eight or nine jurors unless the parties thereto stipulate that the jury may consist of any number of jurors less than eight. The parties may also stipulate that the verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. Any stipulation as to the number of the jury shall also provide whether and by what amount the number of peremptory challenges to be allowed shall be reduced.

Unless stipulated by the parties, no jury shall be seated with less than eight members. Where personal emergency or disqualification causes a juror to be excused after the jury is seated, no verdict may be taken from a jury reduced to fewer than seven members, unless stipulated by the parties.

Advisory Notes 2004

In 2004, the Maine Legislature amended 14 M.R.S.A. §§ 1204(1) and 1354 to state that verdicts in civil cases may be returned by a vote of two-thirds of the jurors deliberating in the jury panel. This change follows amendments which occurred in 2003, allowing civil jury deliberations to occur with a jury of seven, eight, or nine members. Those changes are discussed in the 2003 Advisory Notes. As a result of this change to a two-thirds vote requirement, jury verdicts may be reported by a vote of six out of nine jurors, six out of eight jurors or five out of seven jurors.


Rule 48(b) is amended to recognize the amendment to 14 M.R.S.A. § 1204 adopted by PL 2003, ch. 299, § 1. The September 15, 2003, effective date is near the effective date of the statutory change. The change in the statute authorizes a

civil jury to be seated with either eight or nine members. The principal purpose of the amendment is to allow ninth jurors, who have been selected as alternates but not allowed to deliberate, to now join the deliberations as a regular juror. Section 1204, as revised, also authorizes a verdict to be returned by a jury of seven, eight or nine members. However, a seven-member jury could only occur if a juror was excused for some compelling reason or disqualified after a jury of eight or nine had been seated. The Rules and the related law indicating that at least three-quarters of the deliberating jurors must join in any jury verdict is not changed. Thus, with the change in the numbers of available jurors, jury verdicts would be returnable by votes of seven out of nine jurors, six out of eight jurors, or six out of seven jurors. The three-quarters concurrence requirement prevents a five to two vote in the unusual case where a jury may be reduced to seven members reporting a verdict. The Legislation amending section 1204 was entitled: “An Act To Include Alternates as Regular Jurors.” Accordingly, it does not appear that it contemplates any change in the current widespread practice of selecting eight civil jurors and at least one alternate. The only difference is that if, at the conclusion of the case, nine jurors remain including the juror considered the alternate, all jurors would deliberate including the alternate. Because this change is designed to achieve change in practice regarding jury deliberation, but not regarding jury selection, no changes are recommended in M.R. Civ. P. 47(c) relating to peremptory challenges or M.R. Civ. P. 47(d) relating to alternate jurors. As presently, where more than eight jurors are to be selected, additional peremptory challenges as indicated by M.R. Civ. P. 47(d) should be allowed. Further, the limitations in M.R. Civ. P. 47(d) that no more than three jurors be selected as alternates continues to contemplate that no more than a total of eleven jurors be seated to consider a civil case. If, at the conclusion of any case, more than nine jurors remain, the remaining tenth or eleventh jurors would have to be excused. The change in the law and the rule contemplates that only the first alternate—the ninth juror, be eligible to participate in jury deliberations and join in reporting the verdict.


Subdivision (a) is amended to make reference to jurors rather than juries.


The amendment of Rule 48(b) is accomplished simultaneously with amendments to Rules 38 and 47 in order to implement the provisions of the Public Laws of 1977, (Chap. 102, which provides as follows: 14 M.R.S.A. § 1204, last ¶, amended by P.L. 1975, c. 41, § 1, is repealed and the following, enacted in its place: The Supreme Judicial Court may by rule provide for the trial of

civil actions by juries of 6, 7 or 8 jurors; provided that the parties to a civil action may stipulate that the jury may consist of any number of jurors less than provided by such rule; and provided further that any party to a civil action shall have the right to a jury consisting of 8 jurors if such party so requests before the day of the trial.

The Committee strongly recommends in the interest of administrative economy, the utilization of six person juries wherever possible, and urges that the provisions of Rule 48 (b) as amended be utilized to accomplish that purpose. The Committee further recommends that the Justice conducting the final pretrial conference make it a point to raise the matter of jury size for discussion at the final pretrial conference and attempt to obtain a stipulation to a six person jury in accordance with the provisions of Rule 48(b). The stipulation should slate the number of jurors agreed upon for selection and must also provide “. . . whether and by what amount the number of peremptory challenges to be allowed shall be reduced..” In addition, the stipulation may provide for a stated majority of the jurors which shall, be agreement of the parties, be taken as the verdict or finding of the jury less than the "at least three-fourths" majority now required by Chap. 41 of the 1975 Public Laws.


The new language in the first sentence of Rule 48(a) is that of the 1975 amendment of 14 M.R.S.A. § 1204, providing for six-member juries. See Advisory Committee's Notes to Rules 38, 47. Since the majority must be "at least 3/4," the effect is that if the jury consists of six members, the required majority will

be five. A five-member jury will require a four-juror majority, and a four member jury will require a majority of three. If the jury consists of three members or less, its verdict must be unanimous. The exception already in the rule referring to the right of the parties to stipulate a different majority under Rule 48(b) is in accord with language virtually identical to that rule which added to 14 M.R.S.A. § 1354 by 1975 amendment. A sentence added to Rule 48(b) makes clear what would have been the better practice under the rules as they formerly stood. When the parties stipulate for a jury of less than six, they must make clear what number peremptory challenges they wish to have.


Rule 48 is amended, simultaneously with the amendment of Rule 38 and Rule 47, in order to implement the statute enacted by the 1972 Special Session of the 105th Legislature authorizing the Supreme Judicial Court to institute 8-member juries, with 6-juror majority verdicts. 1971 Laws, c. 581, amending 14 M.R.S.A. § 1204 and § 1354. See the Advisory Committee's Notes (January 1, 1973) to the amendments to Rules 38 and 47. Rule 48(a) is entirely new. It incorporates the language of amended 14 M.R.S.A. § 1354, with the addition of reference to "any finding submitted to the jury" in order to make clear that the rule applies also to special verdicts and to interrogatories accompanying a general verdict. See Rule 49. Rule 48(b) is present Rule 48 amended for conformity with the other amendments being made to the jury rules. Clearly, if the parties agree to a number of jurors less than eight, their stipulation must include a provision as to the number of such jurors required to bring in a verdict.


This rule is the same as Federal Rule 48. Very likely the stipulations referred to could be made without benefit of a rule.

RULE 49. SPECIAL VERDICTS AND INTERROGATORIES (a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. (b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.


This rule is the same as Federal Rule 49. It is recognized in the Maine decisions that a special verdict or a general verdict accompanied by answers to

interrogatories may be compelled. Salter v. Greenwood, 112 Me. 548, 92 A. 786 (1915); Russell v. Brown, 56 Me. 94 (1868). In the latter case the court said, "It may, perhaps, be doubted whether they do not as often tend to embarrass as to elucidate a case, and the right should be carefully and sparingly exercised." This advice has been heeded, and very few such cases are found in the reports. The advice may have been based upon certain common law weaknesses, particularly the requirement that the special verdict must include a finding on every material issue of fact. Many special verdicts were vitiated because material findings were omitted. Rule 49(a) seeks to correct this weakness by providing that if the court omits an issue in submitting the case to the jury, each party waives his jury right as to such issue unless he objects before the jury retires. The court may make its own finding on such an issue and thus complete the necessary factual basis for a judgment. Furthermore, if it fails to do so, the appellate court will treat it as though the finding had been made which would support the judgment entered. Rule 49(b) offers a means of checking the jury's application of the law to the facts and may in some cases render immaterial an error in instructions which would nullify a general verdict. For instance, if there are two issues in the case and the jury's answer to each is fatal to the plaintiff's claim, an error in instructions as to one of the issues would not compel a reversal. It seems desirable to make both of these devices available for such use as the court deems it wise to make of them.

RULE 50. JUDGMENT AS A MATTER OF LAW (a) Judgment as a Matter of Law in an Action Tried by Jury. In an action tried to a jury, a motion for judgment as a matter of law on any claim may be made at any time before submission of the case to the jury. The motion shall specify the claim or claims as to which judgment is sought and the issue or issues as to which it is contended that the law and the facts entitle the moving party to judgment. Before considering the motion, the court shall ascertain that the party opposing the motion has been fully heard with respect to the issue or issues raised. The court may grant the motion as to any claim if the court determines that, viewing the evidence and all reasonable inferences therefrom most favorably to the party opposing the motion, a jury could not reasonably find for that party on an issue that under the substantive law is an essential element of the claim. (b) Renewal of Motion for Judgment as a Matter of Law After Trial. Whenever a motion for judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed in open court or by service and filing not later than 10 days after entry of judgment. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned the court may direct the entry of judgment as a matter of law or may order a new trial. (c) Disposition of Appeal From Grant or Denial of Motion After Trial. If on appeal the Law Court finds that the court has erroneously entered a judgment as a matter of law after trial, it may reinstate any verdict and direct the entry of judgment thereon. If on appeal the Law Court finds that the court has erroneously denied the motion for judgment as a matter of law after trial, it may itself direct the entry of such judgment or order a new trial. (d) Motion for Judgment as a Matter of Law in Nonjury Case. In an action tried by the court without a jury, a motion may be made at any time for judgment as a matter of law on any claim. The motion shall specify the claim or claims as to which judgment is sought and the issue or issues as to which it is contended that the law and the facts entitle the moving party to judgment. Before considering the motion, the court shall ascertain that the party opposing the motion has been fully heard with respect to the issue or issues raised. If the court finds against the party

opposing the motion on any issue that under the substantive law is an essential element of any claim, the court may enter judgment as a matter of law against that party on that claim. Alternatively, the court may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits, the court shall upon request make findings as provided in Rule 52(a).


Rule 50 is amended to adapt a 1991 amendment of Federal Rule 50 for Maine. The general purpose of the amendment is to render the terminology and procedure of the rule more accurate and reflective of practice. As the federal Advisory Committee Note said: The revision abandons the familiar terminology of direction of verdict for several reasons. The term is misleading as a description of the relationship between judge and jury. It is also freighted with anachronisms . . . . The term “judgment as a matter of law” is an almost equally familiar term and appears in the text of Rule 56; its use in Rule 50 calls attention to the relationship between the two rules. Finally, the change enables the rule to refer to pre-verdict and post-verdict motions with a terminology that does not conceal the common identity of two motions made at different times in the proceeding. Amended Rule 50(a) incorporates the new terminology and makes clear that the motion for judgment as a matter of law in a jury trial may be made at any time before the case goes to the jury, thus retaining the right to offer evidence and renew the motion before or after verdict if it is not initially granted. The amended rule also makes clear that the motion may be made as to one or more claims and must specify not only the claims but the specific issues involved. The amended rule is designed to assure that each party has a full opportunity to present all relevant evidence. Thus, the court is not to act on a motion under the rule without ascertaining that the opposing party has been fully heard. The final sentence of the amendment sets forth in functional terms the standard for direction of a verdict or grant of judgment notwithstanding the verdict found in many Maine cases. The court is to view the evidence and all reasonable inferences from it in the light most favorable to the party against whom judgment is sought. The motion for judgment will be granted on any claim (which may be part or all of the party’s case) if the court concludes that the jury could not reasonably find for the party opposing the motion on an issue that as a matter of

the controlling substantive law is essential to the claim. See, e.g., Bates v. Anderson, No. 6315, slip op. at 3 (Me. Oct. 5, 1992); Kraul v. Maine Bonding & Cas. Co., 600 A.2d 389, 390 (Me. 1991); Baker v. Mid Maine Med. Ctr., 499 A.2d 464, 466-67 (Me. 1985). Rules 50(b) and (c) are amended to conform to the changes of terminology made in subdivision (a). The amendment of subdivision (b) makes clear that, as under present practice, the motion for judgment may be renewed orally in open court, as well as in writing. Rule 50(d) is amended to make provision for cases tried without a jury comparable to those of amended Rule 50(a) for jury cases. The equivalent federal provisions are found in F.R.Civ.P. 52(c), added by amendment in 1991.


Rule 50(d) is added to clarify a situation that has been a continuing source of confusion. The Rules as promulgated and subsequently amended follow Federal Rule 41(b)(2), in providing for a defendant’s motion for involuntary dismissal at the close of the plaintiff’s case in a nonjury case. This motion, like the common law motion for nonsuit, in effect seeks a judgment for the defendant on the merits. It is the functional equivalent of a motion for directed verdict under Rule 50(a) in a jury case. The judge, however, does not merely decide the legal sufficiency of the plaintiff’s evidence but may decide the factual issues and render judgment against the plaintiff, making findings of fact and conclusions of law under Rule 52(a). See 1 Field, McKusick, and Wroth, Maine Civil Practice § 41.7 (2d ed. 1970). Confusion has arisen under Rule 41(b)(2), because what is in fact a motion for judgment is misleadingly entitled a motion for involuntary dismissal. Lawyers frequently move for directed verdicts in nonjury cases. While the court can and should treat such an improperly labeled motion as one for involuntary dismissal, there is no reason to continue the confusion. Moreover, technically the judgment is one of dismissal, only operating as an adjudication on the merits by virtue of Rule 41(b)(3). The court’s order, like the judgment entered after grant of a directed verdict in a jury case, should be a judgment on the merits of its own force. To clarify this situation, the last three sentences of Rule 41(b)(2), which outline the procedure, have been eliminated from that rule by simultaneous amendment and are by this amendment incorporated virtually verbatim in new

Rule 50(d). The only change is the significant verbal one that the motion is now one for “judgment” instead of “dismissal.”


The amendments to this rule were taken from the 1963 amendments to F.R.

50. The amendments, minor in nature, preserve the Maine pattern which departed sharply from F.R. 50(b). See the Reporter’s Notes to Rule 50. First, the captions to the rule and its subdivisions are altered for the sake of clarity. Second, a sentence is added to negate the idea that action by the jury is required in the mechanics of directing a verdict. Occasionally jurors have resisted signing a verdict form as ordered by the court. Third, the time within which a motion for judgment notwithstanding the verdict may be made will run from the entry of judgment on the verdict, not from the reception of the verdict. This makes the time provision consistent with that prescribed in Rule 59(b) for moving for a new trial. This difference is not consequential, since Rule 58 directs the clerk to enter judgment on a jury verdict “forthwith.”


This rule is based upon Federal Rule 50, but with significant variations. Rule 50(a) is substantially the same as Federal Rule 50(a). The second sentence provides that a party may move for a directed verdict without resting. See the discussion of involuntary dismissal in the Note to Rule 41. The third sentence is declaratory of Maine law. Gilman v. F. O. Bailey Carriage Co., 125 Me. 108, 131 A. 138 (1925). Rule 50(b) and (c) are adapted from Federal Rule 50(b) and the practice in the federal appellate courts. They work a drastic change in Maine practice. It has always been the law of Maine that if the trial judge erroneously fails to direct a verdict, the only relief that can be given by either the trial judge or the Law Court is a new trial. It is not possible to order a final judgment for the aggrieved party, although that is what he would have had if the trial judge had made the correct ruling in the first instance. Under the rule the trial judge on motion after verdict can reconsider the sufficiency of the evidence and enter judgment notwithstanding the verdict if he believes that a directed verdict would have been proper. He may, however, decline to do so and grant a new trial to the party whose verdict he is taking away if it appears that the party ought to have a chance to fill the holes in

his proof. If he believes that a directed verdict would have been improper, he will naturally let the verdict stand. On appeal the Law Court will review the action of the trial judge with the following results: 1. If it finds that the trial court erroneously granted a judgment notwithstanding the verdict, it will reinstate the verdict and order judgment thereon.

2. If it finds that the trial court erroneously denied a judgment notwithstanding the verdict, it will itself order the entry of such judgment, or if it believes that justice requires the party whose verdict is taken away to have another chance, it will grant a new trial. 3. If it finds that the trial court was correct in either granting or denying a judgment notwithstanding the verdict, it will obviously affirm. In practice the trial judge will ordinarily resolve all doubts by submitting the case to the jury and then enter the judgment that he thinks proper after the verdict. This will save many new trials which would otherwise be unavoidable. For instance, a plaintiff who today has a verdict directed against him has to try his case all over again if the Law Court rules that the direction of a verdict was error. Under Rule 50(c) if the trial judge lets the case go to the jury and the plaintiff gets a verdict, that verdict will be reinstated by the Law Court if it finds that the trial judge was in error in ordering judgment notwithstanding the verdict. On the other hand, it is true that a plaintiff who today is at least assured of a new trial if the Law Court rules that a verdict should have been directed against him will no longer have that right. Unless he can produce better evidence, however, the new trial will do him no good; and if he shows that in fact he can so improve his case as to make an issue for the jury, he can ask for the discretionary grant of a new trial. Federal Rule 50(b), from which this rule is taken, was designed to do away with the result in Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523 (1913), where a bare majority of the court held that the entry of a judgment contrary to the verdict was a violation of the constitutional right to jury trial guaranteed by the Seventh Amendment. A later case, Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890 (1935), found an escape from Slocum through the device of having the trial judge expressly reserve decision on the motion for directed verdict before submitting the case to the jury. If this was done the court could dispose of the case after verdict just as it might have done by

granting the directed verdict motion. Federal Rule 50(b) made this express reservation of the point unnecessary by writing into the rule that the judge was "deemed" to have reserved the point. By this fiction the reservation was made automatic, and any constitutional difficulty such as that raised in the Slocum case is avoided. Our Rule 50(b) uses the same device of the "deemed" reservation of the point, although the Slocum case is not controlling upon a state court in interpreting its state constitution, and several states have rejected its reasoning and upheld a judgment notwithstanding a contrary verdict. See, e. g., Bothwell v. Boston Elevated Ry., 215 Mass. 467, 102 N.E. 665 (1913). Rules 50(b) and (c) have departed from the Federal rule in some respects because of the difference between the standard for the direction of a verdict in Maine and the accepted standard in the Federal courts and the majority of state courts. In Maine the rule is that a verdict should be directed whenever a contrary verdict could not be permitted to stand. Ward v. Cumberland County Power & Light Co., 134 Me. 430, 187 A. 527 (1936). And exceptions to the refusal to direct a verdict raise the same question as a motion for a new trial. Blacker v. Oxford Paper Co., 127 Me. 228, 142 A. 776 (1928); Mills v. Richardson, 126 Me. 244, 137 A. 689 (1927). This means that there is no such thing as a case where a directed verdict would be improper and the grant of a new trial on the law and evidence would be proper. In the Federal courts, the contrary is true. A verdict may be set aside as contrary to the weight of the evidence and a new trial granted in many cases where a directed verdict would be impossible. See 5 Moore [Moore’s Federal Practice] § 50.03, 2 B & H [Barron & Holtzoff] § 1080. There is no intention to change the present test for the direction of a verdict. That being so, the elaborate procedure in Federal Rule 50(b), as explained in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189 (1940), for filing motions in the alternative for a judgment notwithstanding the verdict and for a new trial on the law and evidence and requiring the trial judge to pass on both motions simultaneously would have no place in Maine practice, since the decision on both motions would have to be the same.

RULE 51. ARGUMENT OF COUNSEL; INSTRUCTIONS TO JURY (a) Time for Argument. Counsel for each party shall be allowed such time for argument as the court shall order. Counsel for the moving party shall argue first. Opposing counsel shall then argue. Counsel for the moving party shall be allowed time for rebuttal. When multiple claims or multiple parties are involved in an action, the order and division of the arguments shall be subject to the direction of the court. (b) Instructions to Jury; Objections. In an action tried to a jury, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. (c) Summing Up and Comment by Court. In an action tried to a jury, at the close of the evidence and arguments of counsel, the court may fairly and impartially sum up the evidence, but shall not during the trial, including the charge, express an opinion upon issues of fact. Upon timely objection by an aggrieved party such an expression of opinion is sufficient cause for a new trial.


Rule 51(b) is amended to provide that the court has the option of instructing the jury before or after closing argument, or both before and after. The amendment adopts a 1987 amendment of Federal Rule 51 intended to

permit resort to the long-standing federal practice [of instructing after argument] or to an alternative procedure, which has been praised because it gives counsel the opportunity to explain the instructions, argue their application to the facts and thereby give the jury the maximum assistance in determining the issues and arriving at a good verdict on the law and the evidence. As an ancillary benefit, this approach aids counsel by supplying a natural outline so that arguments may be directed to the essential fact issues

which the jury must decide . . . . Moreover, if the court instructs before an argument, counsel then know the precise words the court has chosen and need not speculate as to the words the court will later use in its instructions. Finally, by instructing ahead of argument the court has the attention of the jurors when they are fresh and can give their full attention to the court’s instructions. It is more difficult to hold the attention of jurors after lengthy arguments.

Fed. R. Civ. P. 51(b) advisory committee’s note to 1987 amend.


Rule 51(a) is amended at the request of the Conference of Superior Court Justices by deleting paragraph (1), which gave each party in a Superior Court civil action one hour for closing argument. The effect of the amendment is to make former paragraph (2), setting forth the District Court practice under which the court has discretion as to the time for argument, applicable in both courts. The purpose is to expedite Superior Court trials by allowing the court to curtail argument in cases where the issues are clear.


Rule 51 is amended by adding a new subdivision (c) concerning summing up and comment by court. It reflects existing Maine law in forbidding the court from expressing an opinion upon issues of fact. 14 M.R.S.A. § 1105. The reason for its inclusion is to make it clear that the rule set forth in the statute is unchanged. The Federal Rule as proposed by the Supreme Court contained a provision allowing comment on the weight of the evidence in accordance with the existing federal practice. Although this rule was deleted by Congress, it seems desirable to avoid the possibility of confusion, especially on the part of new members of the Bar, by putting it in the rules. Since it is not really a rule of evidence, the Evidence Committee recommended that it be included as an amendment to the Maine Rules of Civil Procedure.


Rule 51(a) is not covered by the Federal Rules. It is taken from Revised Rules of Court 37. Rule 51(b) is the same as Federal Rule 51. It contains some departures from the generally prevailing practice. The court must inform counsel of its proposed action on the requests before argument, so that the argument may be geared to the court's indicated views of the law. This makes for more effective argument as well as saving counsel the embarrassment of making an argument on assumptions as to the law which the court immediately tells the jury are erroneous. As already stated in connection with Rule 46, the magic word "exception" is not necessary to save rights as to alleged errors in the charge. It is necessary, however, to make clear one's objections and the grounds for them before the jury retires. On appeal a party cannot rely upon an error not specifically called to the trial court's attention so as to give a fair opportunity to correct it.

RULE 52. FINDINGS BY THE COURT (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the Superior Court justice or, if an electronic recording was made in the District Court, the District Court judge, shall, upon the request of a party made as a motion within 5 days after notice of the decision, or may upon its own motion, find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment if it differs from any judgment that may have been entered before such request was made; provided that, in every action for termination of parental rights, the court shall make findings of fact and state its conclusions of law thereon whether or not requested by a party. In granting or refusing interlocutory injunctions the court shall similarly on such request set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a referee, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 50(d). (b) Amendment. The court may, upon motion of a party made not later than 10 days after notice of findings made by the court, amend its findings or make additional findings and, if judgment has been entered, may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment.


This amendment to Rule 52(a) is designed to correlate this rule with the

changes made in Rule 41(b) (2) and Rule 50(d).


A problem may arise as to when the time for appeal under Rule 73(a) starts running when a request for findings of fact and conclusions of law is made after a judge, sitting without a jury, has ordered the entry of judgment and the judge complies with the request to make findings but does not direct the entry of any judgment. Under the existing rule it might be argued that the judge's failure to "direct the entry of the appropriate judgment" after making the requested findings left the case without a then appealable judgment. The amendment makes clear that no judgment is required after the making of findings unless the appropriate judgment would differ from the judgment originally directed. It at the same time follows that the original judgment remains appealable. Of course the provisions of Rule 73(a) extending the time for taking an appeal where there has been a timely motion under Rule 52(a) eliminate any necessity for filing a protective appeal prior to the judge's making the requested findings.


This rule is like Federal Rule 52 with one important modification. Under Maine practice in equity separate findings of law and fact are required upon request of either party. R.S.1954, Chap. 107, Sec. 26 (repealed in 1959). A judge sitting without jury at law is under no such duty. See Sacre v. Sacre, 143 Me. 80, 101, 55 A.2d 592, 603 (1947). The merger of law and equity calls for the same treatment in this respect of matters of legal and equitable cognizance. The rule provides for findings of fact and conclusions of law upon request in all non-jury cases, but permits the request to be made within 5 days of notice of the decision. The Federal rule requires findings and conclusions in all non-jury cases. It is believed that this would be an unnecessary burden on trial judges with limited stenographic facilities. There are many cases where it is obvious that there will be no appeal so that a general finding is sufficient. The rule provides that findings of fact shall not be set aside unless clearly erroneous. It is believed that this standard corresponds to the present Maine law, both at law and in equity, although the court has formulated the standard in various ways. Law: Ray v. Lyford, 153 Me. 408, 140 A.2d 749 (1958) (no error if supported by "any credible evidence"); Ayer v. Androscoggin & Kennebec Ry., 131 Me. 381, 163 A. 270 (1932) (findings final "so long as they find support in the evidence"); Chabot & Richard Co. v. Chabot, 109 Me. 403, 84 A. 892 (1912) (findings final "if there is any evidence to support them"). Equity: Strater v. Strater, 147 Me. 33, 83 A.2d 130 (1951) (findings conclusive "unless clearly

wrong"). Superior Court justice sitting as Supreme Court of Probate: Cotting v. Tilton, 118 Me. 91, 106 A. 113 (1919) (findings conclusive "if there is any evidence to support them"). There is no intention to change the law in this respect. Rule 52(b) permits a motion for amendment of findings only if made within 10 days after notice of the findings. This departure from Federal Rule 52(b), which measures the time from entry of judgment, is necessary since under Rule 52(a) findings need be made only upon request.

RULE 53. REFEREES (a) Appointment and Compensation. The court in which an action is pending may appoint one or more referees therein, not exceeding three in number. As used in these rules “referee” includes a master and an auditor, and the singular includes the plural. The compensation to be allowed to a referee shall be fixed by the court, and such compensation and necessary expenses incurred by a referee as allowed by the court shall be paid by the state on presentation of the proper certificate of the clerk, or by such of the parties, or out of any fund or subject matter of the action, which is in the custody and control of the court, or by apportionment among such sources of payment, as the court shall direct. The referee shall not retain the report as security for compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party. (b) Reference. (1) Reference by Agreement. The court may appoint a referee in all cases where the parties agree that the case may be so tried. (2) Reference Without Agreement. In absence of agreement of the parties, a reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when an investigation of accounts or an examination of vouchers is required; in an action to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it. (c) Powers. The order of reference to the referee may specify or limit the referee’s powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee’s report. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 103 of the Maine Rules of Evidence for a court sitting without a jury. (d) Witnesses. The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness

may be punished by the court as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. (e) Report. (1) Contents and Filing. The referee shall prepare a report upon the matters submitted to the referee by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. In cases where the reference is by agreement of the parties, the referee shall file with the clerk of the court the report, together with the original exhibits and together with any transcript which, at the election and expense of one or more of the parties, may be made of the proceedings and of the evidence before the referee. In cases where the reference is without agreement and where the action is to be tried without a jury, when the order of reference so provides, the referee shall file with the report and the original exhibits a transcript of the proceedings and of the evidence and the cost of such transcript shall be included in the necessary expenses incurred by the referee as provided in Rule 53(a). The clerk shall forthwith mail to all parties notice of the filing. (2) In Non-jury Actions. In an action where there has been a reference by agreement, the referee’s conclusions of law and findings of fact shall be subject to the right of the parties to object to acceptance of the referee’s report. On waiver by all parties of the right to object to acceptance of the referee’s report, the court shall forthwith enter judgment on the referee’s report. Except where such waiver occurs, any party may within 10 days after being served with notice of the filing of the report serve written objections upon the other parties. Application to the court for action upon the report and upon objections thereto, if any have been served, shall be by motion and upon notice as prescribed in Rule 7(b). The court shall adopt the referee’s findings of fact unless clearly erroneous. Except as otherwise provided in this paragraph (2), the court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. If no objections have been timely filed, the court shall forthwith enter judgment on the referee’s report. (3) In Jury Actions. In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee’s findings upon the issues submitted to the referee are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(4) Draft Report. Before filing a report a referee may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. (5) Amendment. On motion of a party made not later than five days after notice of filing of the report, the referee may amend the findings or recommendations or make additional findings or recommendations. The referee shall file a supplemental report containing any amended or additional findings or recommendations or denying the motion, in the manner provided for filing the original report in paragraph (1) of this subdivision. Within ten days after being served with notice of the filing of a supplemental report, any party may serve written objections to the original or the supplemental report as provided in paragraph (2) of this subdivision.


Rule 53(e) is amended to correct a misreference that occurred when Rule 6(d) and Rule 7 were amended on July 1, 1990. The correct reference is now Rule 7(b).


Rule 53(a) is amended to permit reference in the District Court. Given the broad range of jurisdiction now permitted to that court, there is good reason to make available a procedural device with the potential for saving time and expense for the parties and reducing burdens on the trial docket. Referees’ reports will be subject to objection in the District Court. Appeal from any judgment entered will lie to the Superior Court and then to the Law Court as in other actions.


Rule 53(e)(5) is added to cure a difficulty that has arisen in practice under the original rule: There is no provision for resubmission of a case to the referee for clarification or amendment of his report prior to its submission to the court. As originally drafted, the rule apparently envisioned that in such situations objections would be made under Rule 53(e)(2) and the objecting party would then seek remand by the court after review of the record. This is a very cumbersome

procedure, especially with a voluminous transcript wholly unfamiliar to the Superior Court justice. The amended rule provides a procedure for such situations similar to that contained in Rule 52(b) for amendment of the court’s findings in a case tried without a jury. Under the new provision, the referee may, on motion made within five days after notice of filing of the report, make amended or additional findings or recommendations. These new matters, or his denial of the motion, are to be contained in a supplemental report which is to be filed in the same manner as the original report. Objections to either the original or the supplemental report must be made within ten days, as provided in Rule 53(e)(2).


Rule 53(a) is amended to reflect the fact that expenses of this variety are now paid by the state. Rule 53(c) is amended to reflect the abrogation of Rule 43(c) and the incorporation of its substance in Maine Rule of Evidence 103.


The purpose of the amendment is to change the previously existing requirements of the rule which required a party to reserve his right at the time of reference of a case to object to the referee's report. The amendment does this by making it unnecessary to preserve the right to object at the time the action is referred. The rule states that the referee's conclusions of law and findings of fact are subject to the right of the parties to object to acceptance to the referee's report. The rule provides that such objections must be asserted within ten (10) days after the party or its counsel is served with notice of the filing of the report. This is accomplished by the serving of written objections upon other parties and filing them with the Court. In the event that objections are not served within the ten-day (10) period, the Court is required to forthwith enter judgment on the basis of the referee's report.


This amendment is designed to resolve doubts which have arisen about the responsibility of a party to file a motion for action upon the referee's report when no objections have been timely filed. In the past some judges have required motion and notice in such cases and others have accepted the referee's report on ex parte presentation. When the reference is by agreement without reservation of the right to object, the referee's conclusions of law and findings of fact are conclusive. In these circumstances no useful purpose is served by the motion procedure and the amendment provides that the court shall forthwith enter judgment on the report. Similarly, when no objections have been timely filed in situations where the reference is by agreement with the right to object reserved or where the reference is in the absence of agreement, the motion and notice procedure seems an equally needless burden. It is not unreasonable to impose upon the parties the obligation to file objections if they are dissatisfied with either the referee's conclusions of law or his findings of fact. When the rule provides for entry of judgment on the report forthwith, it is contemplated that the clerk will perform the ministerial function of presenting the report to the court for acceptance, but a party may do so if the clerk does not.

Explanation of Amendments February 1, 1960; September 18, 1961

The September, 1961, amendment added language to Rule 53(a) permitting

the court in its discretion to order the parties, or any of them, to pay the compensation and expenses of the referee or to order such payment to be made out of any property which is the subject matter of the action and in the custody and control of the court. It is intended that this be used only in the exceptional situation and not in the usual reference case. In prior practice it has been for the most part limited to receivership actions and actions for partition. Simultaneously with the September, 1961, amendment of Rule 53(a), the applicable statute (now 4 M.R.S.A. § 501) was amended in the same fashion.

The amendment of Rule 53(a) also makes it clear that the referee may not delay filing his report until his compensation has been paid; but provides that his remedy is by execution against the party or parties ordered by the court to pay such compensation.

The February, 1960, amendment made Rule 53(e) more consistent with prior Maine practice in reference cases. It is not customary for a transcript of the testimony to be filed with the referee’s report. The rule, as originally written, would require a transcript of the proceedings to be filed unless otherwise directed

by the order of reference in all actions to be tried without a jury. As amended, the rule requires a transcript only when requested by one or more of the parties and at the expense of the requesting party or parties, in cases referred by agreement; and only when the order of reference provides for a transcript, in cases referred by the court without agreement.


This rule differs in many significant respects from Federal Rule 53, although based in general upon it. The term "referee" is used to cover referees, masters, and auditors because referees are the most widely used in Maine and most of the cases arising under the rule will be referee cases. Rule 53(b) (1) is designed to preserve the existing practice of references by agreement. R.S.1954, Chap. 113, Sec. 93 (amended in 1959) [now 4 M.R.S.A. § 501]. Such references have not hitherto been possible in equity cases, Faxon v. Barney, 132 Me. 42, 165 A. 165 (1933), and under a merger of law and equity it may be expected that the court would not normally grant a reference in a case when equitable relief is sought. Rule 53(b) (2) reflects the prevailing attitude when it says that references without agreement shall be the exception rather than the rule. The second sentence covers the situation where the present statute provides for an auditor's hearing. R.S.1954, Chap. 113, Sec. 89 (repealed in 1959). Rule 53(e) (2) provides that the referee's findings of fact in nonjury actions shall be accepted unless clearly erroneous. It is believed that this formulation is consistent with existing law and that the various statements of the standards are distinctions without a difference. Staples v. Littlefield, 132 Me. 91, 167 A. 171 (1933) (reference by agreement; findings upheld "if there is any evidence to support" them); Stewart v. Grant, 126 Me. 195, 137 A. 63 (1927) (master; report not to be set aside "unless the evidence shows it to be clearly wrong"). There is no intention to change the law with respect to either a referee's or a master's findings. The rule goes into much less detail than Federal Rule 53 about procedural matters. The intention is that except as otherwise provided the existing Maine practice shall continue. Some of this practice is a matter of custom not spelled out by statute, and it appears to have worked satisfactorily.

R.S.1954, Chap. 113, Sec. 93, as amended in 1959 [now 4 M.R.S.A. § 501], provides the basic statutory authority for the appointment and compensation of referees, masters and auditors, and specifies certain of their powers which are not included in Rule 53.

VII. JUDGMENT

RULE 54. JUDGMENTS; COSTS (a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings or the record of prior proceedings. (b) Judgment Upon Multiple Claims or Involving Multiple Parties; Attorney Fees. (1) Except as otherwise provided in paragraph (2) of this subdivision and in Rule 80(d), when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, except those enumerated in paragraph (2) of this subdivision and in the last sentence of Rule 80(d), which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (2) In an action in which there is a claim for attorney fees, a judgment entered on all other claims shall be final as to those claims unless the court expressly finds that the claim for attorney fees is integral to the relief sought. If the court so finds, any order or other form of decision, however designated, shall not terminate the action as to any claim and is subject to revision at any time before the entry of a final judgment adjudicating all claims including that for attorney fees. (3) When final judgment has been entered on all claims except a claim for attorney fees, an application for the award of attorney fees shall be filed within 60 days after entry of judgment if no appeal has been filed. If an appeal has been filed, the application may be filed and acted upon in the trial court at any time after entry of the judgment appealed from and in any case shall be filed not later than 30 days after final disposition of the action. An application for attorney fees shall

ordinarily be acted upon by the justice or judge who rendered the judgment on the merits. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every judgment shall grant the relief to which the party in whose favor it is rendered is entitled even if the party has not demanded such relief in his pleadings. (d) Allowance of Costs. Costs shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs. (e) Taxation of Costs. Costs shall be taxed by the clerk upon a bill to be made out by the party entitled to them or, if no such bill is presented, upon inspection of the proceedings and files. If the adverse party has notified the clerk in writing of a desire to be present at the taxation of costs, no costs shall be taxed without notice to such adverse party. (f) Schedule of Fees. The following schedule of fees shall be taxable as costs: Costs and fees as allowed to a party or witness by statute or administrative order. Service as taxed by the officer or process server, subject to correction. Surveyors, commissioners and other officers appointed by the court, fees as charged by them subject to correction. Costs of reference as reported by the referee, and allowed by a justice of the court. (g) Costs on Depositions. The taxing of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer’s reasonable fee for attendance, and the cost of the original transcript and one copy of the testimony or such part thereof as the court may fix and, for depositions used at trial in lieu of live testimony, a reasonable fee for appearance by any expert and costs incident to preparing, editing and presenting the deposition at trial.


The purposes of this amendment to M.R. Civ. P. 54(g) are to: (1) allow compensation for expert witnesses who appear at trial by deposition in the same manner as compensation for expert witnesses who testify live at trial, see Poland v. Webb, 1998 ME 104, ¶¶ 12-15, 711 A.2d 1278, 1280-82; and, (2) allow recovery of costs for videotaping or other recording and for any necessary editing and any costs for presenting a deposition at trial in lieu of live testimony. With this amendment, costs may be recovered incident to any use and presentation of a deposition at trial in lieu of live testimony.


The last sentence of subdivision (f) refers to compensation to clerks or referees in damages hearings to be set by a justice but paid by the county. The counties have no such role at this time and the sentence is eliminated.


Rule 54 (f) is amended to remove the schedule of fees, many of which were outdated, and to substitute an incorporation by reference of the governing statutes and administrative orders that may prescribe fees recoverable as costs. In addition, the rule now recognizes that process is frequently served by process servers whose fees should be recoverable as costs.


Rule 54(b) is amended to clarify the situation regarding finality of a judgment on the merits in a case where there is also a claim for attorney fees. In such a case, of course, the initial order of judgment may expressly include attorney fees as well as the judgment on the merits. If the judgment is silent as to attorney fees, however, new Rule 54(b)(2) provides that the judgment is final as to all substantive claims which it embraces (subject, of course, to the further provisions of Rule 54(b)(1) concerning a judgment on less than all of the substantive claims). Only if the court expressly finds that the claim for attorney fees “is integral to the relief sought” and defers decision on that claim, is the judgment on the substantive claims rendered non-final.

The purpose of the rule is to enable the parties to be clear on the question of finality. The rule differs from the practice established in the federal courts under Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), in which the Court adopted a “bright line rule” providing that the decision on the merits was always final whether or not the issue of attorney fees had been considered. The nature of state court litigation requires a more flexible rule. In matters such as divorce and mortgage foreclosure, attorney fees are in effect a part of the substantive remedy being awarded the prevailing party. In that sense, they are integral to the relief sought. Cf. Crossman v. Maccoccio, 792 F.2d 1, 3 (1st Cir. 1986). The rule is consistent with Law Court decisions permitting consideration of attorney fees issues after judgment on the merits. Cf. Peterson v. Leonard, 622 A.2d 87, 89-90 (Me. 1993) (on appeal disposing of merits of contempt motion in divorce action, remand for consideration of attorney fees); Rodrigues v. Tomes, 610 A.2d 262, 265 (Me. 1992) (in wrongful eviction proceedings under 14 M.R.S.A. § 6014(2)(b), attorney fees could be awarded on motion to amend judgment). New Rule 54(b)(3) provides a procedure for addressing an application for attorney fees after final judgment on other claims pursuant to paragraph (2). If there is no appeal, the application for fees must be filed within 60 days after entry of judgment. If there is an appeal, the application may be filed at any time between entry of judgment and 30 days after final disposition of the case, which ordinarily will be the entry of judgment in the lower court after receipt of the mandate. (A simultaneous amendment to Rule 73(f) adds actions under this paragraph to the list of those that the Superior Court may take after the appeal has been docketed in the Law Court.) Rule 54(b)(3) is similar to Rule 32 of the Local Rules of the United States District Court for the District of Maine. Rule 54(b)(3) also provides that, to assure continuity, attorney fees issues are, in the usual case, to be acted upon by the judge who decided the issues on the merits.


This amendment permits taxable costs on depositions to include the cost not only of the original transcript but also of one copy. As a practical matter, in most cases the attorney for either party, whether or not he is taking the deposition, needs to have a copy of the transcript in order adequately to prepare for trial. The original filed in the court can be used only with considerable inconvenience. It should be emphasized that the first sentence of Rule 54 (g) makes the taxing of costs in the taking of depositions subject to the discretion of the court.

This discretion extends to the scope of such taxable costs as well as the question whether any taxable costs will be allowed. There may be some situations where a copy of the deposition transcript was unnecessary in the preparation of the case and so taxable costs, even though otherwise allowable, would be denied for that item. Needless to say, taxable costs would not include the cost of a copy of the transcript if in fact such cost was not incurred by the party to whom costs are awarded.


As originally promulgated, Rule 54(b) began "When multiple claims for relief or multiple parties are involved in an action . . . ." Federal Rule 54(b) begins "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved . . . ." Although no substantive difference whatever is intended between the two rules, the Maine Rule is open to a possible construction of being more limited than the Federal Rule. It might be argued that the Maine Rule applies only to multiple claims asserted in the complaint. To avoid any such unintended construction, Rule 54(b) is amended to conform to the Federal Rule.


This amendment, although it changes the appearance of Rule 54(f) substantially, makes no drastic change in present practice. It increases the fees payable to attorneys as costs, to make them more realistic in view of present practice and to eliminate the odd amounts previously provided, e. g., $3.60 for a summons and complaint. The provision for costs of $5.00 for the drawing and filing of a conditional judgment comes from 14 M.R.S.A. § 1502. Taxing costs for the pleadings of a successful defendant in the same amount, as are taxed for the plaintiff's summons and complaint, carries out the even-handed treatment of the parties contemplated by 14 M.R.S.A. § 1501. The amendment to subdivision (f) (2), which provides for miscellaneous items of costs collected by the Clerk of the Superior Court for the use of the county, eliminates some confusion that previously existed. The present subdivision (f) (2) is for the most part a copy of 4 M.R.S.A. § 555. By eliminating the itemized list from the rule it is hoped that some confusion caused by periodic statutory changes not reflected in the rule will be avoided.


This rule is like Federal Rule 54 with minor differences and the addition of three subdivisions not found in the federal rule. Rule 54(a) defines a judgment as including a decree and any order from which an appeal lies. With law and equity merged into a single form of action it is natural that there should be no distinction between a judgment at law and a decree in equity and that there should be a single method of appellate review. The method of review under these rules is by appeal from the judgment. This is not unlike the present appeal in equity under R.S.1954, Chap. 107, Sec. 21 (repealed in 1959), but it is strikingly different from the existing modes of obtaining appellate review in law cases. The fundamental point to be made is that in all cases, whether sounding in law or in equity, the end result in the trial court is a judgment. Judgment upon a jury verdict is entered "forthwith" by the clerk. Rule 58. At present judgment generally is entered as of the last day of the term in which the verdict was rendered; but if meanwhile a bill of exceptions has been filed, there is no entry of judgment. The case is marked "Law" and continued until after the Law Court has acted. R.S.1954, Chap. 103, Sec. 15 (amended in 1959) [now 4 M.R.S.A. § 57]. Rule 54(b) deals with judgment on multiple claims and provides that the court may direct the entry of a final judgment on one or more but less than all of such claims upon an express determination that there is no just reason for delay. The rule serves a purpose in the light of the provisions for substantially unlimited joinder of claims and parties. Since there may be several unrelated claims in the same action, injustice might result if judgment had to be delayed until the final adjudication of all of them. If the trial court makes the determination called for under this rule, there may be an immediate appeal. The rule does not, however, make appealable any order that does not finally dispose of one or more claims. It should be noted that in appropriate circumstances the court may stay the enforcement of a partial judgment entered under this rule. Rule 62(h). Rule 54(c) provides that a judgment by default shall not be different in kind from or exceed in amount that demanded in the complaint. In all other situations a party can get the relief to which he is entitled even if he has not demanded it. He may, for example, be awarded a larger amount of damages than he alleged. Couto v. United Fruit Co., 203 F.2d 456 (2d Cir.1953). This is contrary to present Maine

law. Jeffery v. Sheehan, 135 Me. 246, 194 A. 543 (1937). He may be granted damages when he prayed for equitable relief, or equitable relief when he prayed for money damages. This also is a departure from Maine law. See Wolf v. W. S. Jordan Co., 146 Me. 374, 82 A.2d 93 (1951). Rule 54(d) provides for the allowance of costs to the prevailing party and incorporates by reference existing statutes as to costs. See R.S.1954, Chap. 113, Sec. 155ff [now 14 M.R.S.A. § 1501]. These sections were amended in 1959 so as to conform to these rules. Rule 54(e) covers taxation of costs. It is taken from Revised Rules of Court 29. Rule 54(f) is based upon Revised Rules of Court 48, with minor changes necessitated by the adoption of these rules. It also includes the substance of Revised Rules of Court 13. Taxable costs for travel and attendance are as provided by statute. R.S.1954, Chap. 113, Sec. 156 [now 14 M.R.S.A. § 1502]. Rule 54(g) covers the taxing of costs in the taking of depositions. It has no counterpart in Federal Rule 54, but it reflects the case law developed in Federal practice under the rules. See 3 B & H § 1197. It is to be emphasized that the taxing of costs on depositions is subject to the discretion of the court. Costs are not to be allowed unless the court finds that the taking of the deposition was reasonably necessary. Ordinarily the cost of taking a deposition for use at trial because of the prospective unavailability of a witness will be regarded as taxable, but the rule makes it clear that the actual use of the deposition as evidence is not the exclusive test. The rules permit the very broad use of depositions for discovery purposes, and discretion as to the allowance of costs therefor is necessary in order to forestall abuse of this privilege.

RULE 54A. COURT FEES The fees of the Maine Courts are established by the Supreme Judicial Court and shall be published in a Fee Schedule.


Rule 54A is amended to provide greater flexibility in the type of order or action that is necessary to adopt or amend a fee schedule.


Former Rules 54A and 54B, establishing fees for the Superior Court and District Court respectively, have been abrogated and replaced with a new Rule 54A. The new rule provides that the fees of those courts are established by administrative order of the Supreme Judicial Court [Rule 54A was promulgated effective October 15, 1979. There were no Advisory Committee Notes.]. [The most current Court Fees Schedule may be referenced as an

Administrative Order on the Judicial Branch web site.]

Last reviewed and edited January 5, 2010 Includes Amendments effective August 3, 2009

RULE 55. DEFAULT

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default. (1) Foreclosure Actions. No default or default judgment shall be entered in a foreclosure action filed pursuant to Title 14, Chapter 713 of the Maine Revised Statutes except after review by the court and determination that (i) the service and notice requirements of 14 M.R.S. § 6111 and these rules have been strictly performed, and (ii) the plaintiff has properly certified proof of ownership of the mortgage note and produced evidence of the mortgage note, the mortgage, and all assignments and endorsements of the mortgage note and the mortgage. (b) Judgment. Subject to the limitations of Rule 54(c), judgment by default may be entered as follows: (1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk shall, upon request of the plaintiff and upon affidavit of the amount due and affidavit that the defendant is not a minor or incompetent person, enter judgment for that amount and costs against the defendant, if the defendant has been defaulted and has failed to appear. (2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or incompetent person unless represented in the action by a guardian, guardian ad litem, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment in the same manner and subject to the same response requirements as for motions pursuant to Rule 7; provided that, if the reason for default is a party’s failure to appear at trial, such notice need be served only if ordered by the court. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take

an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall in the Superior Court accord a right of trial by jury to the plaintiff if the plaintiff so requests. (3) Judgment on Negotiable Obligation. No judgment by default shall be entered upon a claim based on a negotiable instrument or other negotiable obligation unless an original or copy of the instrument or obligation is filed with the clerk or unless the court for cause shown shall otherwise direct on such terms as it may fix. (4) Affidavit Required. Notwithstanding the foregoing, no judgment by default shall be entered until the filing of an affidavit made by the plaintiff or the plaintiff’s attorney, on the affiant’s own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the “Soldiers’ and Sailors’ Civil Relief Act” of 1940, as amended, except upon order of the court in accordance with that Act, and setting forth facts showing that venue was properly laid at the place where the action was brought. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). (d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. (e) Collections Fee. A request or motion for a default that seeks a judgment for a sum certain, or for a sum that can, by computation of costs and interest, be made certain, shall be accompanied by a fee set in the Court Fees Schedule which shall be paid when the request or motion is filed. The fee payment requirement shall apply only when a judgment of $10,000 or more is sought.

Advisory Note August 2009 (Amended October 2009)

This amendment to Rule 55[a] is designed to assure that, prior to entry of any default in a foreclosure action, the trial court reviews the record and determines that, as required by law, the notice and service requirements of law

have been complied with. Because court review of the record in foreclosure actions is required prior to entry of a default, defaults and default judgments in such actions must be entered by the court and not by a clerk.

Advisory Note

April 2008 This amendment to Rule 55 compliments the amendment to Rule 7(b)(1)(C) and is designed to assure that in foreclosure and other major debt collection matters, responsibility for payment of the fee for a motion to decide a case is not avoided by a practice of use of a default to obtain a final judgment. Major debt collection matters are those with a requested judgment of $10,000 or more.


Subdivision (b)(1) and (2) are amended to substitute “minor” for “infant.” Subdivision (b)(2) is changed to make the service requirements for request for judgment, in a case where a defaulted party has appeared, the same as the service requirements for a motion. The three day requirement is a carry-over from the original rules which may have anticipated prescheduled motion days on which any motion or request for judgment might be heard. With current scheduling practices, the three days prior to hearing requirement is not really appropriate as hearings are scheduled well in advance of three days, absent special emergencies that would be unlikely in a default judgment situation. Rule 7, governing motion practice, also allows matters to be heard on shorter notice, if ordered by the court. Subdivision (b)(3) is amended to allow either an original or a copy of the negotiable instrument upon which a default is sought to be filed with the court. This will limit the practice, that now exists, of regularly filing motions to be permitted to file copies in lieu of originals in such circumstances.


Rule 55(b)(2) is amended to eliminate the requirement of three days’ notice for hearing on default in a case not involving a sum certain when the default is occasioned by defendant’s failure to appear at trial. The vast majority of defaults are due to other circumstances. In those cases, the three-day notice requirement is entirely appropriate. Where the case has been called for trial, however, the notice of trial puts the defendant on notice that all issues involved in the litigation are ripe for hearing. In such cases the three-day notice requirement may create a significant inequity. For example, where plaintiff appears for trial with witnesses ready to testify, defendant fails to appear, and plaintiff then for the first time applies for default, the present rule precludes immediate consideration of damages by the court. Since notice of trial has already been given, delay for further notice serves no useful purpose. Such delay also may cause significant unfairness if damages witnesses have traveled great distances or are not readily available on the date set for hearing in the further notice. Under the amended rule, the court retains the power to order notice if circumstances indicate that defendant might have grounds to reopen the default judgment by motion under Rule 60(b).

Advisory Committee’s Note November 1, 1969

Under the amendment to Rule 55(b) (4) no default judgment will be entered without receipt of an affidavit which asserts facts showing that the venue was properly laid in the county where the action was commenced. The amendment is designed to prevent a potential abuse of small collection suits being brought in a county distant from the residence of both the plaintiff and the defendant for the very purpose of discouraging the unrepresented defendant from getting representation and defending. It is well settled under the Federal Rules that a defendant who, validly served with process, submits to default judgment without answer or appearance, thereby waives any objection to the venue. Commercial Cas. Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S.Ct. 98, 73 L.Ed. 252 (1929); Clover Leaf Freight Lines v. Pacific Coast Wholesalers Ass'n, 166 F.2d 626 (7th Cir.1948), certiorari denied 335 U.S. 823, 69 S.Ct. 46, 93 L.Ed. 377; Bavouset v. Shaw's of San Francisco, 43 F.R.D. 296 (S.D.Tex.1967). The danger of this abuse is particularly great in collection suits for relatively small amounts, and the danger exists both in the Superior Court and the District Court. The amendment is taken over automatically into D.C.C.R. 55 through incorporation by reference.

The affidavit required by the amendment would appear to protect adequately against the abuse. Unless the affidavit is filed, no default judgment can be obtained in a collection suit brought in an improper venue. On the other hand, if a false affidavit is filed, grounds would exist for the defaulted defendant to get relief from the default judgment under Rule 60(b).


Rule 55(b) (1) in its original form appeared to place upon the clerk

responsibility for determining that the defendant was not an infant or incompetent person. The amendment provides that the clerk in entering a default judgment may rely upon an affidavit stating that the defendant is neither an infant nor an incompetent. The amendment merely serves to eliminate reluctance to enter default judgments which had developed on the part of some clerks. Needless to say, falsity of the affidavit not only may involve serious consequences for the affiant, but also may be a ground for setting aside the judgment in accordance with Rule 60(b).


This rule is closely similar to Federal Rule 55. Rule 55(a) provides for the entry of a default by the clerk for failure to plead or otherwise defend as provided by the rules. The typical situation for a default is the failure to file an answer within 20 days as required by Rule 12, but it may also result from the failure to "otherwise defend." It is comparable to a default under R.S.1954, Chap. 113, Sec. 3 (repealed in 1959). Judgment by default may be entered by the clerk only under the circumstances set forth in Rule 55(b) (1). When a default judgment must be rendered by the court, rather than by the clerk, Rule 55(b) (2) requires an application for judgment with at least 3 days written notice in any case where the defendant has appeared. Rule 55(b) (2) provides for assessment of damages by a jury in a default cause if the plaintiff so requests. This is in accord with Revised Rules of Court 39. The defaulted defendant is entitled to be heard on damages but is not entitled to a jury.

Rule 55(b) (3) and (4) is not in Federal Rule 55. Rule 55(b) (3) requires the filing with the clerk of a negotiable obligation upon which a default judgment is rendered. The court may dispense with this requirement, however, for cause shown. This makes possible recovery upon an instrument which has been lost or destroyed. Rule 55(b) (4) preserves the substance of Revised Rules of Court 46, and is required in any event by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. Rule 55(c) permits a default to be set aside for good cause shown. If a default judgment has been rendered, it may be set aside only in accordance with Rule 60(b), which replaces the Maine provisions for review as of right within one year in such a case. R.S.1954, Chap. 113, Sec. 5 (repealed in 1959).


RULE 56. SUMMARY JUDGMENT (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. A motion for summary judgment may not be filed until the expiration of 20 days from the commencement of the action. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, but within such time as not to delay the trial, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof. (c) Proceedings on Motion. Any party opposing a motion may serve opposing affidavits as provided in Rule 7(c). Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by subdivision (h) show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party. (d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. In the event that a moving party's motion for summary judgment is denied in whole or in part, facts admitted by the parties solely for the purpose of the summary judgment motion shall have no preclusive effect at trial.

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of that party’s pleading, but must respond by affidavits or as otherwise provided in this rule, setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees, and any offending party or attorney may be adjudged guilty of contempt. (h) Statements of Material Fact. In addition to the material required to be filed by Rule 7, a motion for summary judgment and opposition thereto shall be supported by statements of material facts as addressed in paragraphs (1), (2), (3), & (4) of this rule.

(1) Supporting Statement of Material Facts. A motion for summary judgment shall be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried. Each fact asserted in the

statement shall be set forth in a separately numbered paragraph and shall be supported by a record citation as required by paragraph (4) of this rule. (2) Opposing Statement. A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. Each such statement shall begin with the designation “Admitted,” “Denied,” or “Qualified” (and, in the case of an admission, shall end with such designation). In addition to any denials or qualifications, the party opposing summary judgment may note any objections to factual assertions made by the moving party as set forth in paragraph (i). The opposing statement may contain in a separately titled section any additional facts which the party opposing summary judgment contends raise a disputed issue for trial, set forth in separate numbered paragraphs and supported by a record citation as required by paragraph (4) of this rule. (3) Reply Statement of Material Facts. A party replying to the opposition to a motion for summary judgment shall submit with its reply a separate, short, and concise response limited to the additional facts submitted by the opposing party and any objections to denials or qualifications as set forth in paragraph (i). The reply statement shall admit, deny or qualify such additional facts by reference to the numbered paragraphs of the opposing party’s statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by paragraph (4) of this rule. Each reply statement shall begin with the designation “Admitted,” “Denied,” or “Qualified” (and, in the case of an admission, shall end with such designation). (4) Statement of Facts Deemed Admitted Unless Properly Controverted; Specific Record of Citations Required. Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of facts.

(i) Motions to Strike Not Permitted. (1) Motions to strike factual assertions, denials, or qualifications contained in any statement of material facts filed pursuant to this rule are not permitted. If a party contends that the court should not consider a factual assertion, denial, or qualification, the party may set forth an objection in either its opposing statement or in its reply statement and shall include a brief statement of the reason(s) for the objection and any supporting authority or record citations. (2) A party moving for summary judgment may respond in its reply statement to any objections made by the party opposing summary judgment. If the moving party objects in its reply statement to any factual assertion, denial, or qualification made by the opposing party, the party opposing summary judgment may file a response within 7 days of the filing of the reply statement. Such a response shall be strictly limited to a brief statement of the reason(s) why the factual assertion should be considered and any supporting authority or record citations. (j) Foreclosure Actions. No summary judgment shall be entered in a foreclosure action filed pursuant to Title 14, Chapter 713 of the Maine Revised Statutes except after review by the court and determination that (i) the service and notice requirements of 14 M.R.S. § 6111 and these rules have been strictly performed; (ii) the plaintiff has properly certified proof of ownership of the mortgage note and produced evidence of the mortgage note, the mortgage, and all assignments and endorsements of the mortgage note and the mortgage; and (iii) mediation, when required, has been completed or has been waived or the defendant, after proper service and notice, has failed to appear or respond and has been defaulted or is subject to default. In actions in which mediation is mandatory, has not been waived, and the defendant has appeared, the defendant’s opposition pursuant to Rule 56(c) to a motion for summary judgment shall not be due any sooner than ten (10) days following the filing of the mediator’s report.

Advisory Note – November 2011

The amendment to Rule 56(d) establishes that a fact admitted or not opposed by any party solely for purposes of summary judgment is not deemed admitted for any other purpose if the motion for summary judgment is denied. The purpose of the amendment is to make it unnecessary to controvert facts for purposes of summary judgment solely because of concern about the possible preclusive effect

of any admission of fact at trial or in other subsequent proceedings. The rule amendment does not preclude the issuance of a partial summary judgment order.

Advisory Note August 2009

This amendment to Rule 56[j] is designed to assure that, prior to entry of any summary judgment in a foreclosure action, the trial court reviews the record and determines that, as required by law, the notice and service requirements of law have been complied with and any available mediation has been completed or has been waived. In addition, when mediation is mandatory and the defendant has appeared but not waived mediation, this amendment sets the deadline for opposing a motion for summary judgment ten days following the filing of the mediator’s report. For some counties, foreclosure mediation may not be available or required until January 1, 2010.

Advisory Committee Note

April 2, 2007 The purpose of these amendments is to make Rule 56 practice more uniform and efficient and, in particular, to eliminate the practice of filing motions to strike in order to raise or preserve objections to factual assertions contained in statements of material facts filed in connection with motions for summary judgment. This practice has led to a situation where motions for summary judgment, which are often complicated enough in their own right, have spawned multiple subsidiary motions and needless additional filings in the form of motions to strike and objections thereto. The second major change is that a new last sentence in subsection (d) explicitly states that facts admitted for summary judgment shall have no preclusive effect at trial upon any third party who did not participate in the summary judgment proceeding. There is a related concern among practitioners that a court may not grant partial summary judgment but will instead determine factual issues at the summary judgment stage with preclusive effect at trial. The Committee did not amend the rule to address this concern for two reasons. First, the existing rule makes clear that such a finding under subdivision (d) occurs only after the court "by interrogating counsel" determines those facts "without substantial controversy," a

finding that could not be made if counsel in this process indicates that facts are disputed. Second, the amended rule states that there is no such preclusive effect on third parties for facts admitted on summary judgment. The Committee also observed that the procedure of subdivision (d) appears to be used rarely if at all. Until real problems arise, there seems to be little need to amend the rule to eliminate a process that could potentially be useful if properly employed. The rule continues to provide that a party opposing summary judgment must admit, deny, or qualify each statement in the moving party's statement of material facts. Because motions to strike assertions contained in statements of material fact have been eliminated, the amended rule provides that parties may also object to factual assertions, denials, or qualifications in their statements of material facts. The grounds for such objections are specified in subparagraph (i). The reply statement previously was limited only to the so-called additional facts in the opposing statement of material facts, but as part of this amendment the reply statement may now also be used to object to denials or qualifications in the Rule 56(h)(2) statement submitted by the party opposing summary judgment. The objection should be limited to a short and concise statement of the basis for the objection with a statement of authority or a record citation. The objection, however, is not an excuse for not responding to the factual statement. The statement should still be admitted, denied or qualified subject to the objection. These amendments also provide that if objections are raised for the first time in a reply statement of material facts, the opposing party may file a response to the objections within seven days. Such response, however, is to be strictly limited to a brief statement of why the objection is invalid along with any supporting authority or record citations. In instances where parties admit certain facts but argue that those facts are not material because they do not affect the outcome of the motion, they should raise their arguments with respect to materiality in their memoranda of law rather than in their statements of material facts. In short, the statements of fact should be precisely what the rule requires: "short and concise." Rule 56(h)(1). Where a party raising an objection to factual assertions or disputes contained in a statement of material facts wishes to direct the court's attention to portions of the record which support the objection, the party shall set forth citations to the relevant portions of the record in its opposing or reply statement of facts. Thus, all citations to the record should be found in the original statement of material facts, in

the opposing statement of material facts, or in the reply statement of material facts. On a motion for summary judgment, the court is not obliged to review any portions of the record that are not identified in any of the statements of material fact filed in connection with the motion. The parties may bring any unusual issues presented by a motion for summary judgment to the attention of the court in their memoranda of law or as otherwise permitted by the rules without filing motions to strike. For instance, if a statement of material facts cites to documents or witnesses that were requested but not disclosed during discovery, the opposing party may, in addition to raising an objection to this effect, also bring the discovery violation to the attention of the court by requesting a conference pursuant to Rule 26(g) while the summary judgment motion is pending.

Advisory Committee Notes January 1, 2004

The amendments to M.R. Civ. P. 56(h)(1), (2), and (3) continue the policy of conforming summary judgment practice under M.R. Civ. P. 56 with practice under Local Rule 56 of the United States District Court for Maine. The amendments are nearly identical to amendments to Local Rule 56 effective July 1, 2003. The only difference is that the amendment to Rule 56(h)(1) is added to the last sentence, rather than the middle sentence, of the Rule to make the wording of the amendment more precise. The purpose of these amendments is to clarify that: 1. Each separate fact asserted in a supporting or opposing statement of material fact must be stated in a separately numbered paragraph, and 2. Responses must also be in separately numbered paragraphs and, if a fact is admitted, the admission shall be stated and nothing more. If a fact is denied or qualified, the denial or qualification must be supported by a record citation. These amendments will make it easier to determine what facts are stated, what facts are admitted, denied or qualified, and what facts are unopposed and may be deemed admitted under M.R. Civ. P. 56(b)(4).


The amendment, striking reference to Rule 7(d) and substituting the reference to subdivision (h) makes a correction necessitated by moving of the statement of material fact requirements from Rule 7(d) to Rule 56(h).


The requirement that motions for summary judgment be supported or opposed by statements of material fact was originally added as Rule 7(d). Its provisions were based on then existing Rule 19(b) of the Local Rules for the United States District Court for Maine in order to have practice similar in Federal and State courts. Experience in summary judgment motion practice indicated need for some clarification of the statement of material fact requirement. Accordingly, in 1999, the Local Federal Rule regarding statements of material fact was amended and renumbered as Rule 56 of the Local Rules. This amendment conforms state practice for statements of material fact to the present Federal Local Rule 56, and moves the statement of material fact requirements back into Rule 56(h). The important changes from Rule 7(d): — Emphasize that each statement of material fact must be short, concise

and supported by a record citation. Pursuant to Rule 56(e), the record citation must be to facts “as would be admissible in evidence.”

— Require that opposing statements reference each numbered paragraph

of the moving party’s statement and admit, deny or qualify those facts, with denials or qualifications supported by record references. Opposing statements may add additional statements of material fact supported by record references.

— Allow a properly supported responding statement by the moving

party.

— Specify that record citations must be to specific pages or paragraphs of the record. General references (e.g. “See Deposition Pages 8-25,” “See Plaintiff’s Affidavit”) are no longer sufficient and may be disregarded.

— State that the court has no independent duty to search the record beyond the parts specifically referenced in the parties’ statements of material facts.


1999 The last two sentences of subdivision (a) have been eliminated in view of the corresponding replacement of Rule 16. The time for filing and disposing of motions, including motions for summary judgment, is now governed by the scheduling order and pretrial order issued under new Rule 16.


Rule 56(a) is amended for conformity with the simultaneous amendment of Rule 16(c)(2) requiring post-discovery summary judgment motions in fast-track cases to be filed within 60 days after completion of discovery or within 21 days after filing of such a motion by an opponent. For other actions, the motion must be filed when specified in a pretrial order under Rule 16, subject to the continuing requirement that filing not delay the trial.


Rule 56(c) is amended to strike provisions governing timing of filing and opposition to motions for summary judgment. The timing for such motions is now subject to the provisions of Rule 7, which has been simultaneously amended. See Advisory Committee’s Note to that amendment. The court’s decision under Rule 56(c) is now closely tied to the requirement of new Rule 7(d) that the parties file statements of material fact with or in opposition to a summary judgment motion. In ruling on the motion, the court is to consider only the portions of the record referred to, and the material facts set forth, in the Rule 7(d) statements.


Rule 56(c) is amended to change from 10 to 30 days the time before hearing by which a motion for summary judgment must be filed and to require that the adverse party serve opposing affidavits at least 7 days prior to hearing unless

permitted to make service at a later time on a showing of good cause. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C. Civ. R. 56. The amendment is intended to cure a problem which the short filing times in the original rule have created. These filing times frequently result in disruption of the summary judgment hearing process, because the judge has not had adequate time to review memoranda and affidavits filed at the last minute in opposition to the motion. This difficulty is in part caused by an inadvertent conflict between Rule 56(c) and the 1981 addition of Rule 7(b)(3) requiring a memorandum in opposition to a motion to be filed within 10 days after service of the motion. The 30-day time limit in the present amendment will assure that the Rule 7(b)(3) memorandum is before the court well before the hearing date. The 7-day time period for filing affidavits will further assist in eliminating the last-minute burden on the judge. Where difficulties in obtaining affidavits in time arise, the good cause exception in the amended rule may be invoked by motion for enlargement of the time period under Rule 6(b).


This amendment is designed to prevent delaying tactics and reflects present practice. The courts, using their inherent powers, have in practice interpreted the rule in this manner. This amendment simply makes it clear that they have the power to do so and conforms to the language of Rule 12(c).

Explanation of Amendment (Nov. 1, 1966)

This amendment was taken from a 1963 amendment to F.R. 56(e). It is trivial in nature. The caption is changed to make it more informative, and “answers to interrogatories” is inserted as one of the means by which summary judgment affidavits may be supplemented or opposed. Other 1963 changes in F.R. 56(e) were in M.R.C.P. 56(e) as originally promulgated.


This rule is substantially the same as Federal Rule 56. It is an innovation in Maine procedure, but it represents established practice in over 30 states. Rule 56(c)

is the heart of the rule. The third sentence states the guiding principle. The key words are that a summary judgment will be entered upon a showing "that there is no genuine issue as to any material fact." In making this determination the court considers pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. The federal rule does not include answers to interrogatories as a basis for summary judgment, but their inclusion reflects the federal case law. American Airlines v. Ulen, 186 F.2d 529 (D.C.Cir.1949). If the motion is heard on the pleadings alone, it serves the function of the old demurrer. The affidavits, if any, must be on personal knowledge and set forth such facts as would be admissible in evidence. Summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

RULE 57. DECLARATORY JUDGMENTS The procedure for obtaining a declaratory judgment pursuant to 14 M.R.S.A. §§ 5951-5963 shall be in accordance with these rules, and the right to trial by jury is preserved under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.

Explanation of Amendment (Jan. 1, 1967)

The amendment effective January 1, 1967, updates the statutory references.


This rule, which is substantially the same as Federal Rule 57, simply provides that actions under the declaratory judgment statute shall be in accordance with these rules. A declaratory judgment action may be either legal or equitable in its nature. Maine Broadcasting Co. v. Eastern Trust & Banking Co., 142 Me. 220, 49 A.2d 224. If it is legal in nature, the right to trial by jury is preserved.

RULE 58. ENTRY OF JUDGMENT

Unless the court otherwise directs and subject to the provisions of Rule 54(b), judgment upon the verdict of a jury shall be entered forthwith by the clerk; but the court shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to Rule 49. When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by the clerk of the direction; but when the court directs entry of judgment for other relief, the court shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk. The notation of a judgment in the civil docket in accordance with Rule 79(a) constitutes the entry of the judgment. Any judgment or other order of the court is effective and enforceable upon signature by the court, or if not signed by the court, then upon entry of the judgment in the civil docket. The date of entry of the judgment or order shall govern time calculations pursuant to these rules or applicable statutes. The entry of the judgment shall not be delayed for the taxing of costs.


Rule 58 is amended to change the time when a judgment is effective and enforceable from entry on the docket to the time when a judgment or order is signed by a judge. This change is necessary because, in current practice, due to court staffing shortages, there is sometimes a considerable delay between the time when a judgment or order is signed and the time when that judgment or order is entered into the docket. This difference has created some problems, particularly in domestic relations cases where changes to parental rights orders, meant to be promptly effective, were delayed in effect because of delays in entry into the docket. Confusion also existed because, while Rule 58 addresses judgments, and particularly final judgments, some clerks and attorneys were construing it as applicable to prejudgment or post-judgment orders. Under Rule 58, as amended, any judgment or other order of the court becomes effective and enforceable upon signature by a judge. Where a court judgment or order is not signed by a judge, but is entered into the docket by the clerk upon direction by a judge, such an order or judgment continues to be effective and enforceable only when it is entered into the docket. While a judgment or order that is signed by a judge becomes effective and enforceable when signed, the date of entry of the judgment or order in the docket will continue to govern time calculations under the rules or applicable

statues. Thus, when the date of the judge’s signature differs from the date of entry of a judgment or order into the docket, the date of entry of the judgment or order into the docket will continue to control the time for filing a notice of appeal or a motion for new trial under M.R. Civ. P. 59 or a motion for reconsideration or amendment of judgment under M.R. Civ. P. 60. For money judgments, calculation of interest at prejudgment or post-judgment rates would change based on the date of entry of the judgment in the docket. The rule amendment does not change requirements relating to notice of judgments or orders to make them effective and enforceable.


This amendment adds the phrase "in accordance with Rule 79(a)" in the next to the last sentence. It is made for purposes of clarity, at the same time that Rule 79(a) is amended to permit, in appropriate exceptional cases, the notation of judgment to consist of incorporation by reference of documents filed with the clerk by the court.


This rule is the same as Federal Rule 58. Time for appeal starts running from the date of judgment, which in a jury case is entered forthwith upon the verdict. This is unlike the existing Maine practice at law. See the discussion in the Note to Rule 54.

RULE 59. NEW TRIALS: AMENDMENT OF JUDGMENTS (a) Grounds. The justice or judge before whom an action has been tried may on motion grant a new trial to all or any of the parties and on all or part of the issues for any of the reasons for which new trials have heretofore been granted in actions at law or in suits in equity in the courts of this state. A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit such portion thereof as the court judges to be excessive. A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court judges to be reasonable. On a motion for a new trial in an action tried without a jury, the justice or judge before whom the action has been tried may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment. (c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period either by the justice or judge before whom the action has been tried for good cause shown or by the parties by written stipulation. Such justice or judge may permit reply affidavits. (d) On Initiative of Court. Not later than 10 days after entry of judgment the justice or judge before whom the action has been tried without motion of a party may order a new trial for any reason for which the justice or judge might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case the court shall specify in the order the grounds therefor. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. A motion for reconsideration of the judgment shall be treated as a motion to alter or amend the judgment.

(f) Unavailability of Transcript. When any material part of a transcript of the evidence taken cannot be obtained because of an official Court Reporter’s death or disability, or because of a technical failure of an electronic transcription, the justice or judge before whom the action has been tried may on motion, if the justice or judge is satisfied that the lack of such transcript prevents a party from effectively prosecuting an appeal, set aside any judgment entered in the action and grant a new trial.


Rule 59 (e) is amended to add a new last sentence making clear that a motion to reconsider the judgment is a motion to alter or amend the judgment, thereby removing confusion as to whether the appeal period is suspended until the court can dispose of the motion. Motions to reconsider should not be filed under Rule 60. A corresponding amendment to Rule 7(b) discourages such motions and permits the court to dispose of motions to reconsider without waiting for opposition to be filed. Subdivision (f) is revised to address unavailability of transcript whether the availability relates to problems with an official court reporter or the electronic recording division.


The purpose of this amendment is to make it clear that in a case where one party has benefited from a jury verdict that is extravagantly high or inordinately low the trial judge has power to give that party the opportunity to agree to a figure deemed by the judge to be appropriate. The order for a new trial is thus to be conditioned upon the refusal of the advantaged party to agree to the new amount set by the judge. The amendment is derived from Mass.G.L. c. 231, § 127, as amended by Acts of 1967, c. 139. The use of remittitur, the conditional reduction of an excessive verdict, is well established in Maine. DeBlois v. Dunkling, 145 Me. 197, 74 A.2d 221 (1950). The use of additur, the conditional increase of an inadequate verdict, is a different matter. A bare majority of the Supreme Court, in a much criticized decision, held that this device was not constitutionally permissible in a federal court. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This is not a binding

precedent on the question of the use of additur under the Maine Constitution. The Law Court has arguably approved it in Roy v. Huard, 157 Me. 477, 174 A.2d 41 (1961), when it ordered a new trial on the plaintiff's appeal from a jury verdict and judgment unless the defendant should consent within 30 days to entry of a judgment for a specified higher amount. This was, however, a case in which the higher amount was the only legally possible one, but the plaintiff had not filed a motion for judgment notwithstanding the verdict. In the absence of such a motion the court expressed itself as reluctant to order that judgment and resorted to the conditional order for a new trial instead. This does not necessarily amount to an endorsement of the use of additur by a trial judge in a case involving unliquidated damages. On principle, however, the device seems as fair and desirable as remittitur. It is to be noted that the amended rule comes into play only when the size of the verdict is the sole ground for the grant of a new trial. If there is other reason for a new trial, the amendment is by its terms inapplicable. Under present practice the court in a proper case may grant a new trial on damages only. Under the amendment a new trial solely on that issue may be granted, but only after the court has given the opportunity of additur or remittitur. Such a partial new trial is much more likely to be appropriate when the verdict is excessive than when it is inadequate because of likelihood in the latter case of compromise on the issue of liability. Domenico v. Kaherl, 160 Me. 182, 187, 200 A.2d 844, 846 (1964). When the verdict is so low as to satisfy the court that the jury acted improperly by compromising on the issue of liability, the inadequacy of damages is not the sole ground for a new trial and the amendment does not apply.

Explanation of Amendments (Sept. 18, 1961; Nov. 1, 1966)

Rule 59(d) The amendment of Rule 59(d) was taken from a 1966 amendment to F.R. 59(d). Its purpose is to override some restrictive decisions to the effect that the trial court is without power to grant a motion for a new trial, timely served, by an order more than 10 days after entry of judgment, based upon a ground not stated in the motion. In giving the court this power, provision was made for the parties to have an opportunity for hearing. Rule 59(f)

Simultaneously with the effective date (September 18, 1961) of an amendment of the statute (R.S.1954, c. 113, § 191, now 4 M.R.S.A. § 654) relating to death of the court reporter in a criminal case, the Supreme Judicial Court added Rule 59(f) relating to the same subject matter in civil actions. The Court's obvious purpose was to put beyond any doubt the power of the trial court to give relief where the lack of a transcript prevents a party from effectively prosecuting an appeal. Compare Rule 63 relating to the death or disability of the trial judge. R.S.1954, c. 113, § 191, prior to the 1961 amendment, applied by its terms to "any cause", including probably criminala as well as civil cases, and apparently was originally enacted in reaction to The Stenographer Cases.b See 1913 Laws, c. 103, § 2. As to civil actions the statutory provision was swept up into Rule 60(b), whose broad ground (6) for relief from a judgment—"any other reason justifying relief from the operation of the judgment"—encompasses lack of a transcript because of death or disability of the court reporter. Nonetheless, that specific ground for relief occurred frequently enough to justify, it was believed, expressly providing for it in Rule 59(f), added by amendment. The Federal Rules have no counterpart to the express provision of Rule 59(f). The 10-day period prescribed in Rule 59(b) for filing other motions for new trial is obviously inapplicable. That is necessarily so since the death or disability of the Official Court Reporter may come later than 10 days after the judgment and yet within the period for filing a notice of appeal or for filing the record on appeal. Rule 60(b) (6) has no time limitation other than "a reasonable time", and the only time limitation upon moving for a new trial under Rule 59(f) is the requirement that "the lack of such transcript pre-vents] a party from effectively prosecuting an appeal." If the moving party has failed to file a notice of appeal within the time prescribed in Rule 73(a), the lack of a transcript thereafter will not be the factor preventing him from prosecuting his appeal. There are also other instances where the lack of a transcript would not prevent effective prosecution of an appeal, as, for example, where the appeal would involve only questions of pretrial order, etc. Likewise Rules 74(n) and (r) a Cheney v. Richards, 130 Me. 288, 291, 155 A. 642, 644 (1931), quotes with approval the

statement in Blyew v. U.S., 80 U.S. (13 Wall) 581, 20 L.Ed. 638 (1871) that: “Any question, civil or criminal, contested before a court of justice, is a cause or case.” Query whether the statutory phrase “any cause, in law or equity” was more limited than “any cause” standing alone.

b 100 Me. 271, 61 A. 782 (1905).

(formerly Rule 75(m) and Rule 76) provide methods by which a record on appeal may be prepared despite the lack of a transcript. The winning party below should not be put to the expense and delay of a new trial unless the would-be appellant attempts to follow those methods and fails, or can show that such attempt would be unavailing. The extent to which the trial judge in exercising his discretion under Rule 59(f) may take into account his estimate of the futility of the attempted appeal is unsettled. The trial judge would seem to have some discretion in civil cases in view of the use of the word "may" and the phrase "if he is satisfied"—to be contrasted with the simultaneous statutory amendment applicable to criminal cases (4 M.R.S.A. § 654) using the word "shall" and the phrase "if it is evident". Arguably, the death or disability of the reporter should not give the windfall of a new trial to a losing party who otherwise would not have appealed or have had any chance whatever of success on appeal. On the other hand, the trial judge should lean over backwards to grant the relief under Rule 59(f)—assuming that the moving party is otherwise entitled to it—because exercise of his discretion in this area, even though theoretically reviewable for abuse,c is for practical purposes beyond effective supervision by the Law Court. Some questions of the coverage of Rule 59(f) may be discussed. If another court reporter can transcribe the stenographic notes of the deceased or disabled court reporter, a new trial under Rule 59(f) is not available. If the court reporter's stenographic notes are lost or destroyed prior to transcription, Rule 59(f) does seem to apply since the transcript cannot be obtained because of the reporter's disability to produce such transcript. This interpretation is bolstered by the availability also of Rule 60(b) (6) under which the same result may be achieved.d


This rule is substantially the same as Federal Rule 59. New trials may be granted for any of the reasons for which they have been granted in Maine in the

c Cf. Tozer v. Charles A. Krause Mill. Co., 180 F.2d 242 (3d Cir. 1951) (denial of motion under

F.R. 60(b) reversed for abuse of discretion). d On the general subject matter of Rule 59(f), see Annot., “Death or disability of court reporter . . . as ground for new trial or reversal,” 19 AL.R.2d 1098 (1951).

past. The possibility of a new trial on part of the issues only is in accord with existing law. Moreland v. Vomilas, 127 Me. 493, 144 A. 652 (1929). The important change from present practice is the requirement that all motions for a new trial be addressed to the trial judge. In Maine today a party contending that the verdict is against the law or the evidence may either seek a new trial from the trial judge or go directly to the Law Court on a report of the whole case. Furthermore, unsuccessful resort to the trial judge does not preclude another motion addressed to the Law Court. R.S.1954, Chap. 113, Sec. 59 (repealed in 1959). The rule contemplates that the Law Court would consider the question de novo on appeal from the judgment, unaffected by the action of the trial judge. It is believed that the rule is an improvement over present practice. From the point of view of the moving party, he would be forced to make his motion first to the trial judge, whom he can now ignore, but he would not lose the right he now has for the Law Court to pass upon it. His only loss would appear to be the time spent, in arguing the motion and the slight delay in getting to the Law Court. Moreover, if he is successful with the trial judge, he saves the time and expense of a trip to the Law Court. From the point of view of the opposing party, he must defend his verdict twice instead of once, but under present practice he can be forced to do the same thing at the plaintiff's option. The rule also requires the trial judge to pass initially upon a motion for new trial on any alleged cause not shown by the evidence presented at the trial, such as a motion based upon newly discovered evidence. At present such a motion is addressed to the Superior Court, which takes the evidence in support of the motion and in opposition thereto, at which point the case is marked "Law" and goes to the Law Court without decision by the trial court. R.S.1954, Chap. 113, Sec. 59 (repealed in 1959). New trials on the ground of newly discovered evidence are not and should not be lightly granted, and the present requirement puts a burden of expense upon the moving party which undoubtedly operates as an effective deterrent, since he must pay for the report of the testimony at the trial and of the new evidence. On the other hand, the rare cases where such a motion is granted are likely to be pretty flagrant ones, like White v. Andrews, 119 Me. 414, 111 A. 581 (1920), where any justice of either court would probably come to the quick conclusion that a new trial is called for. In such a situation the moving party ought not to be burdened by the expense and delay inherent in the present method. Rule 59 (b) provides a time limit of 10 days after judgment, and the time cannot be enlarged. Rule 6(b). At present a motion to set aside the verdict as

against the law or the evidence must be filed at the same term of court on which the verdict is returned but never more than 30 days after verdict. R.S.1954, Chap. 113, Sec. 60 (repealed in 1959), Revised Rules of Court 17. By these rules terms of court no longer determine the time limit for action under the rules. See Note to Rule 6. A motion for a new trial or a motion to alter or amend a judgment under Rule 59(e) suspends the running of the time for appeal, and the full time for appeal runs afresh after disposition of the motion. Rule 73(a).

RULE 60. RELIEF FROM JUDGMENT OR ORDER (a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Superior Court or Law Court, and thereafter while the appeal is pending may be so corrected with leave of the Superior Court or Law Court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of bills of review are abolished as means of reopening judgments entered under these rules, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.


This rule is substantially the same as Federal Rule 60. Rule 60(a) presents no significant problems. The trial court has the power of correction at any time. This is the present Maine law. Bubar v. Sinclair, 146 Me. 155, 79 A.2d 165 (1951). The correction may be made during the pendency of an appeal if the Law Court gives leave. It is not clear whether this is a change in Maine law. Cf. Davis v. Cass, 127

Me. 167, 142 A. 377 (1928) (correction not allowed after judgment, as "the parties were out of court, [and] the judicial power of the court ceases"). Rule 60(b) collects in a single rule all of the ways to obtain relief from a final judgment. A simple motion to the court in which the judgment in the action was rendered serves the function of the old writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, all of which are expressly abolished as a means of reviewing a judgment under these rules. They are not abolished as to criminal cases.* An independent action to relieve a party from a judgment is not forbidden by the rule, and under established equitable principles such an action may be maintained either in the court which rendered the original judgment or in another court. The grounds for relief should not require elaboration. Compare the grounds stated in R.S.1954, Chap. 123, Sec. 1 (VII) for a petition for review (repealed in 1959). The time limitations are two-fold in nature: First, all motions must be made within a reasonable time, the test of timeliness here being laches. Second, motions on the first three enumerated grounds must be made within one year after judgment. The time limits for petitions for review in Maine are longer, either 3 years or 6 years, depending upon the cause. R.S. 1954, Chap. 123, Sec. 1 (repealed in 1959). And a second review may be granted within 3 years after judgment in the first if the court thinks "that justice manifestly requires it." A motion under Rule 60(b) does not affect the finality of the judgment or suspend its operation.

* [Field, McKusick & Wroth noted: “Since enactment in 1963 of the Post-Conviction Relief Act,

14 M.R.S.A. §§ 5502-08, and promulgation of the Maine Rules of Criminal Procedure in 1965, this statement requires some qualification. See § 81.3 below. Cf. M.R. Cr.P. 35, 36; Glassman § 35.5.” 2 Field, McKusick & Wroth, Maine Civil Practice at 69 (2d ed. 1970)].

RULE 61. HARMLESS ERROR No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.


This rule is the same as Federal Rule 61. It is declaratory of Maine law, as reflected by many cases. See, e.g., McCully v. Bessey, 142 Me. 209, 49 A.2d 230 (1946) (admission of evidence); Torrey v. Congress Square Hotel Co., 145 Me. 234, 75 A.2d 451 (1950) (exclusion of evidence); Mencher v. Waterman, 125 Me. 178, 132 A. 132 (1926) (instructions to jury).

RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT (a) Automatic Stay, Exceptions--Injunctions and Receiverships. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 21 days after its entry or until the time for appeal from the judgment as extended by the rules governing appeals has expired. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action or an order relating to the care, custody and support of minor children or to the separate support or personal liberty of a person or for the protection of a person from abuse or harassment shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (d) of this rule govern the suspending, modifying, restoring or granting of an injunction during the pendency of an appeal. (b) Stay of Execution on Default Judgment. Execution in a personal action shall not issue upon a judgment by default against an absent defendant who has no actual notice thereof until one year after entry of the judgment except as provided by law. (c) Order for Immediate Execution. In its discretion, the court on motion may, for cause shown and subject to such conditions as it deems proper, order execution to issue at any time after the entry of judgment and before an appeal from the judgment has been taken or a motion made pursuant to Rule 50, 52(b), 59, or 60; but no such order shall issue if a representation, subject to the obligations set forth in Rule 11, is made that a party intends to appeal or to make such motion. When an order for immediate execution under this subdivision is denied, the court may, upon a showing of good cause, at any time prior to appeal or during the pendency of an appeal order the party against whom execution was sought to give bond in an amount fixed by the court conditioned upon satisfaction of the damages for delay, interest, and costs if for any reason the appeal is not taken or is dismissed, or if the judgment is affirmed. (d) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

(e) Stay Upon Appeal. Except as provided in subdivisions (c) and (d) of this rule, the taking of an appeal from a judgment shall operate as a stay of execution upon the judgment during the pendency of the appeal, and no supersedeas bond or other security shall be required as a condition of such stay. (f) Continuance of Attachment. An attachment of real or personal property or an attachment on trustee process or a bond given to vacate any such attachment or to release the defendant from arrest on capias writ shall, unless dissolved by operation of law, continue during the time within which an appeal may be taken from the judgment and during the pendency of any appeal. When a judgment has become final by expiration of the time for appeal, by dismissal of an appeal, or on certificate of decision from the Superior Court or Law Court, any such attachment or bond shall continue for 60 days if the judgment is for the plaintiff but shall be dissolved forthwith if the judgment is for the defendant. (g) Power of Reviewing Court Not Limited. The provisions in this rule do not limit any power of the Superior Court or Law Court during the pendency of an appeal to suspend, modify, restore, or grant an injunction or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered. (h) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.


Rule 62(a) is amended to recognize that the time when a judgment becomes final and subject to enforcement is now 21 days after entry. M.R. App. P. 2(b)(3). The amendment also recognizes the special proceedings to protect people from abuse and harassment, 19-A M.R.S. §§ 4001 to 4014 (2006) and 5 M.R.S. §§ 4651 to 4660-A (2006). An amendment to subdivision (a) is added to provide that orders under the relief provisions of these statutes are not stayed pending appeal. The intent of the amendment is to maintain court-ordered personal safety protections during the appeal. In individual cases, however, relief ordered by the court may be appropriately and safely stayed pending appeal, as in the case of orders for the payment of money. In such cases, the burden is on the appellant to

move the court to "otherwise order" a stay during the pendency of the appeal of all or part of the relief ordered. The trial court is invested by subdivision (a) with broad discretion to make such orders as are required by the case. In addition, subdivision (g) empowers the reviewing court to "make any order appropriate" to preserve the status quo or to ensure the effectiveness of the judgment subsequently to be entered.


Rule 62(a) is amended to strike the references to the specific appeal rules and substitute a general reference to the “rules governing appeals.” This change covers a reference to both the old rules and the new rules during the time when both may be in effect. It also provides a sufficient continuing reference to the Rules of Appellate Procedure.


Rule 62(a) is amended to provide that the exception to the automatic stay of execution provisions provided in the rule for certain orders involving minor children or spouses is no longer limited to divorce actions, and that the exception for orders involving separate support and personal liberty is no longer limited to spouses. The effect of the amendment is to make clear that the exception applies to appeals from protective and other orders in domestic abuse proceedings under 19 M.R.S.A. § 766 and support proceedings under 19 M.R.S.A. § 214. The amendment sets forth what would have been the appropriate construction of the rule in any case consistent with its provisions for such orders in divorce actions, which were added prior to the enactment of the protection from abuse statutes. Note that the court retains the power to order a stay in a proper case.


Rule 62(a) is amended to substitute “spouse” for “wife” in the description of actions for separate support or personal liberty which are not to be stayed prior to or pending appeal without court order. The amendment brings the language of the rule into line with what has long been the statutory language. See 19 M.R.S.A. §§ 693, (amended P.L. 1977, ch. 439, § 3), 694 (amended P.L. 1975, ch. 701, § 10).


December 31, 1967 This amendment eliminates the difference between the Federal and the Maine Rule 62(a) which was noted in Hazzard v. Westview Golf Club, Inc., 217 A.2d 217, 222 (Me.1966).

Explanation of Amendments (Feb. 1, 1960; Nov. 1, 1966)

The 1960 amendment of Rule 62(a) was to make certain that the wife and children are cared for pending an appeal in a divorce action. This is especially important in cases where it has been found necessary to place children in the care of the Department of Health and Welfare to prevent their neglect. The 1966 amendment of Rule 62(h) was taken from a 1961 amendment of F.R. 62(h). It substituted a simple reference to “the conditions stated in Rule 54(b)” for the original reference to judgment “on some but not all of the claims.” M.R.C.P. 54(b) picked up a proposed 1955 amendment to F.R. 54(b), not then adopted by the Supreme Court, which added a reference to multiple parties to the provision for final judgment on less than all of multiple claims in an action. When the amendment to F.R. 54(b) was finally adopted in 1961, it was noticed that a conforming amendment to Rule 62(h) was required. Its omission from M.R.C.P. 62(h) was an inadvertence.


This rule follows neither Federal Rule 62 nor present state practice. Its purpose is to come as closely as possible to the essentials of present practice and still fit within the framework of a set of rules based for the most part upon federal procedure. The merger of law and equity, the abolition of terms as measuring the time for doing any acts under the rules, and the abolition of exceptions compel departures from existing methods of appellate review. Review of all actions, legal or equitable, is by appeal as in the federal system. Rule 73. See Reporter's Notes to Rule 54. The federal procedure with respect to judgment and execution does not, however, seem satisfactory. It gives an automatic ten-day stay of execution after

entry of judgment to give the parties time to decide what, if any, post-verdict motions are to be made. The court may give a further stay pending the disposition of any such motions, but if an appeal is taken there is no further stay pending appeal unless the appellant gives a supersedeas bond conditioned upon full satisfaction of the judgment. If no supersedeas bond is given, the prevailing party may obtain execution while the appeal is pending. He must, of course, repay what he has received in the event of a reversal of the judgment. Under present Maine law, on the other hand, a case in which a bill of exceptions has been filed before the end of the term in which it was tried is marked "Law" and does not go to judgment until after rescript from the Law Court. This means that there can be no execution until that time. A case where no exceptions are filed goes to judgment as of the last day of the term, and execution can be taken out at once. The result is that a defendant can by filing exceptions delay execution until the Law Court has acted and there is no occasion to require him to give any security for the satisfaction of an ultimate judgment. Rule 62(a) provides that no execution shall issue until the time for appeal has expired, and Rule 62(e) says that the taking of an appeal shall stay execution during the pendency of the appeal. This approximates present practice in cases where exceptions are filed, but the 30-day appeal period will increase the delay in getting execution in cases where the defeated party has no intention of litigating the matter further. It does not seem desirable thus to delay execution in the routine collection type of case in which exceptions are unlikely and which would go to judgment at present at the end of the term. Rule 62(c) is designed to make it possible to get an immediate order for execution in appropriate cases. A winning plaintiff may move for such an order, which the court has discretion to grant "for cause shown." The normal cause would be that the case is one in which there is no likelihood of an appeal. The rule goes on to provide that no such order shall issue if opposing counsel represents to the court that he intends to appeal. This representation is expressly made subject to the obligations set forth in Rule 11, calling for the attorney's good faith. It is not believed that a Maine lawyer would make a false representation of this intention, but he might very properly represent that he has been unable to get a decision from his client. Presumably he would then be afforded a reasonable time to get instructions. The rule continues with a provision that at any time prior to appeal or during its pendency the court may on a showing of good cause order a party against whom

execution is denied under this Rule 62(c) to give a bond conditioned upon satisfaction of the damages for delay, interest and costs if the appeal is not taken, or is dismissed, or the judgment is affirmed. This would seem to offer some deterrent to the frivolous appeal, and seems fairer than to require a bond conditioned upon satisfaction of the judgment. In the typical case the bond presumably would cover only interest and costs, the "damage" from loss of the use of the money in the interval being in legal contemplation only the interest upon it. Rule 62(b) is not in the federal rule. It preserves the existing statutory provision with respect to execution on default judgments. R.S.1954, Chap. 113, Secs. 5-7 (amended in 1959) [now 14 M.R.S.A. §§ 4701-4703]. Rule 62(d) follows Federal Rule 62(c) with respect to injunctions during the pendency of appeal. Compare Revised Rules of Court 18 (supersedeas of execution of peremptory writ or other process). Rule 62(f) is designed to protect an attachment so long as the possibility remains that the plaintiff may obtain a judgment and for 60 days after such judgment. This conforms to R.S.1954, Chap. 112, Sec. 72, as amended in 1959 [now 14 M.R.S.A. § 4601]. This period had previously been 30 days. Rule 62(g) is essentially the same as Federal Rule 62(g). It makes it clear that nothing in the rule limits any power which the Law Court would otherwise have to take action during the pendency of an appeal. Rule 62(h) is the same as Federal Rule 62(h). It gives the court power to stay enforcement of a final judgment entered pursuant to Rule 54(b) on less than all of the claims in a single action until judgment on the remaining claims. The court may prescribe appropriate conditions for such stay. For instance, judgment on a claim might be stayed awaiting judgment on a counterclaim only if the plaintiff gave bond to satisfy the judgment. Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959).

RULE 63. INABILITY OF A JUDGE TO PROCEED

If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.


Rule 63 is entirely replaced to adopt a 1991 amendment of Federal Rule 63 for the purpose of maintaining conformity to the federal rule. The reasons for and intended scope of the new rule are those stated in the federal Advisory Committee Note:

* * * * * The former rule was limited to the disability of the judge, and made no provision for disqualification or possible other reasons for the withdrawal of the judge during proceedings. In making provision for other circumstances, the revision is not intended to encourage judges to discontinue participation in a trial for any but compelling reasons * * * * *. Manifestly, a substitution should not be made for the personal convenience of the court, and the reasons for a substitution should be stated on the record.

The former rule made no provision for the withdrawal of the judge during the trial, but was limited to disqualification after trial. Several courts concluded that the text of the former rule prohibited substitution of a new judge prior to the points described in the rule, thus requiring a new trial, whether or not a fair disposition was within reach of a substitute judge * * * * *.

The increasing length of federal trials has made it likely that the number of trials interrupted by the disability of the judge will increase. An efficient mechanism for completing these cases without unfairness is needed to prevent unnecessary expense and delay. To avoid the injustice that may result if the substitute judge proceeds despite unfamiliarity with the action, the new Rule provides, in language similar to Federal Rule of Criminal

Procedure 25(a), that the successor judge must certify familiarity with the record and determine that the case may be completed before that judge without prejudice to the parties. This will necessarily require that there be available a transcript or a videotape of the proceedings prior to substitution. If there has been a long but incomplete jury trial, the prompt availability of the transcript or videotape is crucial to the effective use of this rule, for the jury cannot long be held while an extensive transcript is prepared without prejudice to one or all parties.

The “certification” required of the successor judge may be an oral acknowledgement of familiarity made on the record. The federal Advisory Committee’s Note continues:

The revised text authorizes the substitute judge to make a finding of fact at a bench trial based on evidence heard by a different judge. This may be appropriate in limited circumstances. First, if a witness has become unavailable, the testimony recorded at trial can be considered by the successor judge pursuant to F.R. Evid. [and M.R. Evid.] 804, being equivalent to a recorded deposition available for use at trial pursuant to Rule 32. For this purpose, a witness who is no longer subject to a subpoena to compel testimony at trial is unavailable. Secondly, the successor judge may determine that particular testimony is not material or is not disputed, and so need not be reheard. The propriety of proceeding in this manner may be marginally affected by the availability of a videotape record; a judge who has reviewed a trial on videotape may be entitled to greater confidence in his or her ability to proceed.

The court would, however, risk error to determine the credibility of a witness not seen or heard who is available to be recalled. . . .


This rule, which closely follows Federal Rule 63, is similar to R.S.1954, Chap. 107, Sec. 51 (amended in 1959 so as to apply in criminal cases only) [later 4 M.R.S.A. § 1055, repealed in 1965 following adoption of Maine Criminal Rule 25] which permits another justice to allow exceptions in the event of the disability of the trial justice. The rule specifies that if the justice who is assigned to act for the disabled justice is satisfied that he cannot perform this duty, he may in his discretion grant a new trial. No Maine case has been found covering this situation,

but the rule seems a sensible one. It would obviate at least the possibility of the result that when the trial justice was disabled and the successor was satisfied that he could not act, the aggrieved party would be without any remedy. Cf. The Stenographer Cases, 100 Me. 271, 61 A. 782 (1905).

VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

RULE 64. REPLEVIN

(a) Availability of Replevin. A plaintiff claiming the possession of goods wrongfully taken or detained may replevy the goods on writ of replevin as provided by this rule or by law, provided that the value of the goods sought to be replevied is within the subject-matter jurisdiction of the court. (b) Writ of Replevin: Form. The writ of replevin shall bear the signature or facsimile signature of the clerk, be under seal of the court, contain the name of the court, the names and residences of the parties and the date of the complaint, be directed to the sheriff or the sheriff’s deputies of the county within which the goods are located, and command them to replevy the goods, which shall be described with reasonable particularity and their respective values stated. The writ of replevin shall also state the name of the justice or judge who entered the order approving the writ of replevin and the amount of the replevin bond and the date of the order. (c) Same: Service. No writ of replevin shall be executed unless both it and the amount of the replevin bond are approved by order of the court. Except as provided in subdivision (h) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that it is more likely than not that the plaintiff will prevail in the replevin action and that the amount of the replevin bond is twice the reasonable value of the goods and chattels to be replevied. A replevin action may be commenced only by filing the complaint with the court, together with a motion for approval of the writ of replevin and the amount of the replevin bond. The motion shall be supported by affidavit or affidavits setting forth specific facts sufficient to warrant the required finding and shall be upon the affiant’s own knowledge, information and belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true. Except as provided in subdivision (h) of this rule, the motion and affidavits or affidavits with notice of hearing thereon shall be served upon the defendant in the manner provided in Rule 4 at the same time the summons and complaint are served upon that defendant.

A defendant opposing a motion for approval of a writ of replevin shall file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the motion as provided in Rule 7(c) for failure to file the opposition material within the time therein provided or as extended, the court shall, without hearing, upon a finding that the plaintiff is entitled to a writ of replevin under the terms of this subdivision (c), enter an order of approval of the writ. The writ of replevin may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The plaintiffs’ attorney shall deliver to the officer replevying the goods the original writ of replevin upon which to make the officer’s return and shall attach thereto the bond required by law and a copy of the writ of replevin and bond for service on the defendant. The officer shall forthwith cause the goods to be replevied and delivered to the plaintiff. Thereupon the defendant shall be served, in the manner provided in either Rule 4 or Rule 5, with a copy of the writ of replevin and bond, with the officer’s endorsement thereon of the date of execution of the writ. (d) Allegations of Demand and Refusal; Title. If the action is for a wrongful detention only, a demand and refusal of possession before beginning the action shall be alleged by the plaintiff in replevin. Where the title to the goods of the plaintiff in replevin rests upon the title of a third person or upon a special property, the facts shall be alleged. (e) Defenses; Counterclaim. All defenses shall be made by answer. If the defendant in replevin claims title to the goods or relies upon the title of a third person or upon a special property, the answer shall so state. All claims by the defendant in replevin for a return of the goods, or for damages, or a lien in an amount within the subject-matter jurisdiction of the court, shall be made by counterclaim or answer. (f) Replevin on Counterclaim, Cross-Claim or Third-Party Complaint. Goods may be replevied on writ of replevin by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim, provided that the goods are located within the county where the action is pending and the value of the goods is within the subject-matter jurisdiction of the court. (g) Equitable Replevin. These rules shall not be construed to extend or limit the availability of equitable replevin.

(h) Ex Parte Orders Approving Replevin. An order approving a writ of replevin and the amount of the replevin bond may be entered ex parte upon findings by the court that it is more likely than not that the plaintiff will prevail in the replevin action and that the amount of the replevin bond is twice the reasonable value of the goods and chattels to be replevied, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action; or (ii) there is a clear danger that the defendant if notified in advance of replevin of the property will remove it from the state or conceal it; or (iii) there is immediate danger that the defendant will damage or destroy the property to be replevied. The motion for such ex parte order, in the filing of which the plaintiff’s attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meetings the requirements set forth for affidavits in subdivision (c) of this rule. The hearing on the motion shall be held forthwith after the filing of the complaint. (i) Return of Property Replevied on Ex Parte Order. On 2 days’ notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant from whom property has been replevied pursuant to an ex parte order entered under subdivision (h) of this rule may appear, without thereby submitting to the personal jurisdiction of the court, and move the return of the property replevied, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means, otherwise available by law, for obtaining return of the replevied property or damages or a lien, or for obtaining an adjudication of the rights of the parties in the replevied property.


Rules 64(c) and (h) are amended for conformity with Rules 4A and 4B as amended effective February 15, 1992, and simultaneously with the present amendment. The standard of “more likely than not” is adopted for approval of a writ of replevin as a matter of policy rather than constitutional mandate in order to strike a more even balance between plaintiff and defendant. Under the former standard of “reasonable likelihood,” the plaintiff had only to show that there was some substance to the claim. Under the amended standard, the plaintiff must show a greater than fifty percent chance of prevailing.

Language is also added to Rule 64(c) for the purpose of expediting proceedings by requiring the court to issue the writ of replevin without hearing if the defendant fails to respond to the motion for approval within 21 days as provided in Rule 7(c). Rule 64(h) is further amended to provide for expedited hearing of an ex parte motion for approval. For further discussion of the reasons for these amendments, see M.R. Civ. P. 4A advisory committee’s note to 1992 amend., Me. Rptr., 604 A.2d adv. sht. no. 2 at CXLII-CXLIV, and Advisory Committee’s Note to simultaneous amendments of Rule 4A. Rule 64(c) is also amended to eliminate a gender reference that was inadvertently omitted from the general amendments of July 1, 1987, eliminating such references.


This amendment corrects an obvious typographical error made in the Promulgation Order for the amendment effective January 1, 1973.


The amendment of this Rule, as well as the simultaneous amendment of Form 14 and the addition of Forms 14A through 14D, are made for the purpose of complying with the constitutional requirement of notice and hearing before property may be taken on writ of replevin as recently laid down by the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) [rehearing denied 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165]. In Fuentes the replevin procedures of Florida and Pennsylvania, similar in pertinent respects to the replevin procedures in Maine, were held constitutionally deficient because "at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ.” (92 S.Ct. at 1991) The Supreme Court specifically held that the requirements that the plaintiff "must first post a bond, allege conclusorily that he is entitled to specific goods, and open himself to possible liability in damages if he is wrong" are "hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights." (Id. at 1995) As the

Supreme Court said, "when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented." (Id. at 1994)

Three-judge federal district courts in the First Circuit have applied the Fuentes principle to hold unconstitutional both Rhode Island attachment of tangible personal property and Massachusetts trustee process (both similar to the parallel mesne process in Maine) because of the absence of prior notice and hearing. McClellan v. Commercial Credit Corp., 350 F.Supp. 1013 (D.R.I.1972) [affirmed sub nom. Georges v. McClellan, 409 U.S. 1120, 93 S.Ct. 935, 35 L.Ed.2d 253 (1973)] ; Schneider v. Margossian, 349 F.Supp. 741. (D.Mass. 1972). Simultaneously with the amendment of the replevin rule and forms, Rules 4A and 4B and the associated official forms are being amended to meet the constitutional requirements as declared in Fuentes and applied in McClellan and Schneider. Reference is made to the Advisory Committee's Notes to Rules 4A and 4B. The United States Supreme Court in the Fuentes case leaves open the exact "nature and form of such prior hearings" (Id. at 2002), except to say that "the essential reason for the requirement of prior hearing is to prevent unfair and mistaken deprivations of property" and that accordingly "it is axiomatic that the hearing must provide a real test.” By quoting from Justice Harlan's concurring opinion in the Sniadach case (Id. at 2002-03) the Supreme Court makes clear that the defendant must be given "an opportunity to contest at least the probable validity of the underlying claim.” (Quoted language is from Schneider v. Margossian, supra) This opportunity the rule assures to the defendant by requiring that a writ of replevin can be approved only if the court finds, upon the basis of affidavits or any other sworn evidence received from the parties, that there is a reasonable likelihood that the plaintiff will prevail in the replevin action. Compare the similar test for approval of attachment of tangible personal property and attachment on trustee process under the simultaneous amendments to Rules 4A and 4B. The amendment to the replevin rule goes further and requires as a prerequisite to court approval of the writ of replevin that the court determine the reasonable value of the goods and chattels to be replevied, thus assuring the defendant the full protection of the statute requiring a replevin bond in an amount twice that value. The plaintiff will not prevail on his motion for approval of the writ of replevin simply by making out a prima facie case on the basis of his affidavits. The defendant by affidavit or other evidence can contest the plaintiff's attempted

showing of "reasonable likelihood" both by contradictory evidence and by affirmative defenses including, for example, claims of title to the goods or title in a third person. If the motion is being heard prior to the filing of an answer the special requirements for stating defenses as set forth in Rule 64(e) should not be applied to prevent the defendant from raising any such defenses as a basis for convincing the court that there is not a reasonable likelihood that the plaintiff will prevail in the replevin action. The procedure in the early stages of the replevin action will, under the amended Rule 64 and associated forms, be as follows: The replevin action may be commenced only by the second method specified in Rule 3, that is, by filing the complaint with the court. Along with the complaint there will be filed a motion for approval of the writ of replevin and of the amount of the replevin bond. The motion must be supported by one or more affidavits setting forth evidentiary facts showing that there is a reasonable likelihood the plaintiff will prevail in the replevin action and also showing the reasonable value of the goods and chattels to be replevied. The next step will be service on the defendant of the summons and complaint, together with a copy of the motion and its supporting affidavits. The notice of hearing also served upon the defendant at that time will state the exact time and date of the hearing, which in accordance with Rule 6(d) must be not sooner than 7 days after service on the defendant. The defendant has the right to file opposing affidavits not later than 1 day before the hearing. See Rule 6(d). For the form of the motion and notice of hearing, see new Form 14A. Upon making the required findings of "reasonable likelihood" and of the reasonable value of the goods and chattels to be replevied, the judge will enter the order approving the writ of replevin and the replevin bond. See new Form 14B. After court approval of the writ and the bond, the plaintiff's attorney will, as now, fill out the writ of replevin which he has procured in blank from the clerk. Under the amendment of Form 14, the writ of replevin must contain a specific recitation of the name of the Superior Court Justice granting the order of approval, the amount of the replevin bond approved by the court and the date of the order. The writ of replevin with the attached bond is then put in the hands of the officer for execution. Following the replevy of the described goods and chattels, a copy of the writ of replevin and bond bearing the officer's endorsement as to the date the writ was executed must be served upon the defendant. Normally, the officer should serve that copy on the defendant at the same time he replevies the goods and in such case he would use the methods of service prescribed in Rule 4 for the original service of summons and complaint. However, if (as will be the case except where under subdivision (h) the writ of replevin and bond have been

approved ex parte) the defendant has already been served with the summons and complaint, the copy of the writ of replevin with the officer's endorsement may be served upon the defendant by mail as prescribed in Rule 5. Although the Fuentes case lays down the normal requirement for prior notice and hearing, it does recognize that "there are ‘extraordinary situations’ that justify postponing notice and opportunity for a hearing." (92 S.Ct. at 1999) Rule 64(h) added by this amendment specifies, as does the newly added Rule 4A(f), extraordinary situations justifying the issuance ex parte of an order approving the writ of replevin and replevin bond. The first situation where no prior notice and hearing are required is that held valid in Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921), approved in Fuentes, n. 23. The second and third situations were also recognized by Fuentes (92 S.Ct. at 2000–01) as "demanding prompt action," namely, situations of "immediate danger that a debtor will destroy or conceal disputed goods."

The ex parte order for replevin will normally be granted on affidavits only. Those affidavits are required, in the same manner as affidavits in support of motions for temporary restraining orders under Rule 65(a), to set forth specific facts (and not merely conclusory allegations) sufficient to warrant the required court findings both as to "reasonable likelihood" and as to a special situation in which notice to the defendant may be dispensed with. Rule 64(h), providing as it does for a court order for replevin without notice to the defendant, has many similarities to Rule 65(a) permitting ex parte temporary restraining orders. Rule 64(i) permits the defendant from whom property is replevied ex parte to move expeditiously for return of the property. A defendant who is not subject to personal service in the state may appear to contest the ex parte replevin without thereby submitting himself to the personal jurisdiction of the court. On the hearing under Rule 64(i) the plaintiff has the burden of proof. Rule 64(i) expressly declares that the provision there made for an expeditious hearing on return of the replevied property is in addition to other available means for obtaining return of the property or other relief.

Explanation of Amendments (Dec. 1, 1959; Aug. 1, 1962)

Rule 64(b) was amended November 2, 1959, effective December 1, 1959, to require the writ of replevin to set forth the respective values of the goods to be replevied. Although the same conclusion had been previously achieved by

interpreting any claim stated in an answer as being a counterclaim,* the 1962 amendment of Rule 64(e) puts beyond any doubt that a claim for return of the replevied goods, for damages, or for a lien, need not be denominated as a counterclaim. If not denominated as a counterclaim, the plaintiff is not required to file a reply. See Rule 7(a).


The purpose of this rule is to preserve existing practice with respect to replevin to the extent compatible with these rules. It has no counterpart in the Federal Rules. Rule 64(a) makes available the remedy of replevin as provided by this rule or by law, thus incorporating by reference R.S.1954, Chap. 125, as amended in 1959 [now 14 M.R.S.A. § 7301.] Rule 64(b) prescribes the form of the writ of replevin. See Form 14 in the Appendix of Forms. The requirement that the goods be described with reasonable particularity is in accord with case law. Musgrave v. Farren, 92 Me. 198, 42 A. 355 (1898). Rule 64(c) provides that service shall be made as in other actions and prescribes the requirement of a replevin bond. R.S.1954, Chap. 125, Sec. 10 [now 14 M.R.S.A. § 7303]. The procedure is similar to that in ordinary attachments. A separate summons and complaint are required, and the defendant is also to be served with a copy of the writ of replevin and of the officer's return thereon. Presumably the writ of replevin and the summons and complaint would ordinarily be served together. Rule 64(d) apparently changes the law in requiring allegations of demand and refusal where the claim is for wrongful detention only. Although in such a case proof of demand and refusal is necessary (unless the defendant claims title in himself), the Maine cases hold that it need not be pleaded. Cate v. Merrill, 116 Me. 432, 102 A. 235 (1917). The last sentence may also require a more specific statement than present practice. * According to Field, McKusick & Wroth: “Note in original: Memo of Supreme Judicial Court

Conference of July 13, 1960.” 2 Field, McKusick & Wroth, Maine Civil Practice at 97 (2d ed. 1970)].

Rule 64(e), consistently with the rules generally, requires the factual basis of the defendant's position to be spelled out in the answer; and provides that a claim for a return, for damages, or for a lien shall be by counterclaim.* Rule 64(f) allows replevin on counterclaims and the like, but only when the goods are located within the county where the action is pending. This limitation is because replevin is a local action which can be brought only in such county. R.S. 1954, Chap. 125, Sec. 9 [now 14 M.R.S.A. § 7302].** A counterclaim in replevin is not compulsory within the meaning of Rule 13(a) when the goods are detained in another county even though the replevin claim arises out of the same transaction or occurrence as the plaintiff's claim.

* [Field, McKusick & Wroth noted: “Or by answer. See Explanation of Amendments.” 2 Field, McKusick & Wroth, Maine Civil Practice at 97 (2d ed. 1970)].

** [Field, McKusick & Wroth noted: “By 1963 Laws, c. 402, § 203, the venue of replevin actions in the District Court was further restricted to the division where the goods are detained. See § 0.8 n. 21 above.” 2 Field, McKusick & Wroth, Maine Civil Practice at 97 (2d ed. 1970)].

RULE 65. INJUNCTIONS (a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. The verification of such affidavit or verified complaint shall be upon the affiant’s own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry as the court fixes, unless within the time so fixed the order, for good cause shown, is extended or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (b) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. The application for preliminary injunction may be included in the complaint or may be made by motion.

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained, provided, however, that for good cause shown and recited in the order, the court may waive the giving of security. A surety upon a bond or undertaking under this rule submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety’s agent upon whom any papers affecting the surety’s liability on the bond or undertaking may be served. The surety’s liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known. (d) Form and Scope of Restraining Order or Injunction. Every restraining order and every order granting a preliminary or permanent injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Statutes. These rules do not modify any statute relating to temporary restraining orders and preliminary injunctions in domestic relations actions, actions affecting employer and employee or any other actions where an injunctive proceeding is conducted according to statute.

(f) Presentation to Other Justice or Judge. When an application for an injunction or for an order or decree under this rule is made to one justice or judge and has been acted upon by that justice or judge, it shall not be presented to any other justice or judge except by consent of the first justice or judge which may be oral.


Subdivision (e) is broadened. The present language is the same as that adopted in 1959. At that time, statutes may have only significantly affected injunctive relief issues in labor disputes. Since then a number of statutes have been adopted in other areas, particularly domestic relations, that prescribe injunctive practice for particular causes of actions, for example, the automatic injunctions that issue to protect against dissipation of property in divorce cases. Accordingly, the amendment broadens the language of the rule to recognize these other statutory impacts on injunctive practice.


This amendment is intended to facilitate the on-going prosecution of requests for temporary restraining orders or preliminary injunctions. The rule still is intended to prohibit counsel from showing an application for a temporary restraining order or preliminary injunction in the first instance to more than one Justice. As noted in Field, McKusick & Wroth, Maine Civil Practice, § 65.9 at p. 114, this rule is intended to “. . . [P]revent the plaintiff's counsel from shopping around from judge to judge until he finds one who will grant the desired injunction.” The language of the rule as amended is not intended, however, to restrict the on-going consideration of the application to the judge who initially hears the matter and grants the temporary restraining order or preliminary injunction. It is the purpose of this amendment to permit subsequent proceedings on the application to be held before any justice who has the oral consent of the justice who initially heard the application. It is not intended that the rule should delay proceedings on such applications according to the scheduling needs of the justice initially hearing the application.


This amendment makes the effective period of a temporary restraining order a matter of the discretion of the court. The rigid time limit of 10 days, with one extension for a like period, is eliminated. However, it would be expected that the court will continue to fix only a very limited duration for a temporary restraining order, and will exceed the present time periods only in the unusual circumstance where the situation of the parties and the schedule of the court require a greater amount of time before the hearing on the application for preliminary injunction. Also, the defendant against whom the temporary restraining order has been issued without notice can move for the dissolution of the order. The last sentence of Rule 65(a) assures him of a prompt hearing.

Explanation of Amendments (Nov. 1, 1966)

The amendment of Rule 65(a) was taken from a 1966 amendment to F.R. 65(b). It adverts specifically to the possibility of oral notice to the adverse party or his attorney before granting a temporary restraining order. It has been common in Maine for the judge to insist upon such notice if it is practicable. The amendment codifies this practice and requires an opportunity for the adverse party or his attorney to be heard in opposition to a temporary restraining order unless irreparable injury will result. The amendment of Rule 65(b) was taken from a 1966 amendment to F.R. 65(a). It adds a new subdivision (2) providing express authority for consolidation of an application for a preliminary injunction with the trial on the merits (a power presumably existing without need of specification by rule). The new subdivision provides further that when there is no such consolidation, evidence received in connection with an application for a preliminary injunction which would be admissible on the trial on the merits becomes part of the trial record and need not be repeated at trial.


This rule is like Federal Rule 65, but with minor changes. It is somewhat more elaborate than the procedure under R.S.1954, Chap. 107, Sec. 34 (repealed in 1959), but not significantly different. The second sentence of Rule 65(a) is not in the federal rule but is taken from Equity Rule 12.

Similarly the second sentence of Rule 65(b) has no federal counterpart. It is designed to make clear that when the complaint demands only a permanent injunction, a preliminary injunction may be sought by motion. Ordinarily it may be assumed that a preliminary injunction will be prayed for in the complaint if the plaintiff desires such relief. The proviso giving the court power, for good cause shown, to waive the giving of security under Rule 65(c) is not in the federal rule. Subdivision (e) makes it clear that R.S.1954, Chap. 107, See. 36 [now 26 M.R.S.A. § 5], dealing with injunctions in labor disputes, is not affected by the rule. Rule 65(f) is not in the federal rule. It is taken from Equity Rule 37, with the added proviso that a justice who has acted upon a matter may direct that because of his necessary absence it may be presented to another justice.

RULE 66. CONTEMPT PROCEEDINGS (a) In General. (1) Purpose and Scope. This rule establishes procedures to implement the inherent and statutory powers of the court to impose punitive and remedial sanctions for contempt. This rule shall not apply to the imposition of sanctions specifically authorized by other provisions of these rules or by statute. (2) Definitions. For purposes of this rule:

(A) “Contempt” includes but is not limited to:

(i) disorderly conduct, insolent behavior, or a breach of peace, noise or other disturbance or action which actually obstructs or hinders the administration of justice or which diminishes the court’s authority; or

(ii) failure to comply with a lawful judgment, order, writ, subpoena, process, or formal instruction of the court.

(B) A punitive sanction is a sanction imposed to punish a completed act of contempt or to terminate any contempt which obstructs the administration of justice or diminishes the court’s authority.

(C) A remedial sanction is a sanction imposed to coerce the termination of an ongoing contempt or to compensate a party aggrieved by contempt.

(D) A summary proceeding is as described in subdivision (b).

(E) A plenary proceeding is as described in subdivisions (c) and (d).

(F) “Court” means a Judge of the District, Probate or Administrative Court or a Justice of the Superior or Supreme Judicial Court.

(3) Designation of Appropriate Proceeding. The court or the moving party must designate the nature of the contempt claimed and the sanctions sought. Where both punitive and remedial sanctions are being sought, the court must use procedures for punitive sanctions.

(b) Summary Proceedings. (1) Applicability. A summary proceeding under this subdivision may be used when punitive or remedial sanctions are sought for contempt occurring in the actual presence of the court and seen or heard by the court. (2) Procedure. A contempt may be punished summarily if the court certifies that the court saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. Before imposition of sanctions the court shall allow the alleged contemnor an opportunity to be heard in defense and mitigation. If the court finds that the alleged contemnor committed the contempt, the court shall issue a written order that directly or by incorporation of the record:

(A) specifies the conduct constituting the contempt;

(B) certifies that the conduct constituting contempt occurred in the presence of the court and was seen or heard by the court;

(C) contains the sanction imposed.

(3) Punitive Sanctions. The court may impose a punitive sanction that is proportionate to the conduct constituting the contempt. In a summary proceeding the court may impose a punitive sanction that consists of either imprisonment for a definite period not to exceed 30 days or a fine of a specified amount not to exceed $5000 or a combination of imprisonment and fine. (4) Remedial Sanctions. The court may impose remedial sanctions of the kind specified in subdivision (d), paragraph (3) of this rule. (5) Appeal. A person upon whom a punitive or remedial sanction has been imposed in a proceeding brought under this subdivision may seek appellate review as provided by the Maine Rules of Criminal Procedure. (c) Plenary Proceedings for Punitive Sanctions. (1) Applicability. A plenary proceeding under this subdivision must be used when punitive sanctions are sought for contempt occurring outside the

presence of the court. A proceeding under this subdivision may be used when punitive sanctions are sought for contempt occurring in the presence of the court and must be used when a punitive sanction in excess of that provided in subdivision (b), paragraph (3) is contemplated. (2) Procedure. A proceeding under this subdivision shall proceed as provided by the Maine Rules of Criminal Procedure for the prosecution of a Class D crime, except as hereinafter provided.

(A) Initiation. A proceeding under this subdivision is initiated by the court on its own motion or at the suggestion of a party.

(B) Request for Prosecution. The court may request that an attorney for the state prosecute the proceeding. If that request is refused, the court may appoint a disinterested member of the bar to act as prosecutor.

(C) Complaint. The prosecuting attorney shall draft a complaint and summons which shall be served upon the alleged contemnor in accordance with the Maine Rules of Criminal Procedure. The complaint shall

(i) state the essential facts constituting the contempt and whether remedial as well as punitive sanctions are sought; and

(ii) specify the time and place of a hearing.

(D) Trial. The date of trial shall allow the alleged contemnor a reasonable time for the preparation of a defense. Trial shall be to the court, except that, if the court concludes that in the event of an adjudication of contempt a punitive sanction of imprisonment of more than 30 days or a serious punitive fine may be imposed, trial shall be to a jury unless waived by the alleged contemnor.

(E) Failure to Appear. An alleged contemnor who fails to appear as required may be arrested pursuant to a bench warrant.

(3) Punitive Sanctions. The court may impose a punitive sanction that is proportionate to the conduct constituting the contempt. In order to impose a punitive sanction, the court must find beyond a reasonable doubt that

(A) the alleged contemnor has intentionally, knowingly or recklessly failed or refused to perform an act required or has done an act prohibited by a court order; and

(B) it was within the alleged contemnor’s power to perform the act required or refrain from doing the prohibited act.

(4) Remedial Sanctions. The court may impose remedial sanctions of the kind specified in subdivision (d), paragraph (3) of this rule. (5) Appeal. A person upon whom a punitive or remedial sanction has been imposed in a proceeding brought under this subdivision may seek appellate review as provided by the Maine Rules of Criminal Procedure. (d) Plenary Proceedings for Remedial Sanctions. (1) Applicability. Unless remedial sanctions are sought in plenary punitive proceedings under subdivision (c) of this rule, a plenary remedial proceeding under this subdivision must be used when remedial sanctions are sought for contempt occurring outside the presence of the court. A proceeding under this subdivision may be used when remedial sanctions are sought for contempt occurring in the presence of the court. (2) Procedure.

(A) Initiation. A proceeding under this subdivision, or a request for remedial sanctions in a proceeding under subdivision (b) or (c) of this rule, is initiated by the court on its own motion or at the suggestion of a party. The motion of a party shall be under oath and set forth the facts that give rise to the motion or shall be accompanied by a supporting affidavit setting forth the relevant facts.

(B) Notice. The court shall set the matter for hearing on oral testimony, depositions, or affidavits and shall order that a contempt subpoena be served on the alleged contemnor. The subpoena shall set forth the title of the action and the date, time, and place of the hearing and shall allow the alleged contemnor a reasonable time to file an answer and prepare a defense. The subpoena may include an order to request documents requested by the moving party. The subpoena shall contain a warning that failure to obey it may result in arrest and that if the court finds the alleged

contemnor to have committed contempt, the court may impose sanctions that may include fines and imprisonment, or both.

(C) Service. The contempt subpoena shall be served with a copy of the court order or of the motion and any supporting affidavit upon the alleged contemnor. Service upon an individual shall be made in hand by an officer qualified to serve civil process. Service upon a party that is not an individual shall be made by any method by which service of a civil summons may be made. Service shall be completed no less than 10 days prior to the hearing unless a shorter time is ordered by the court.

(D) Hearing. All issues of law and fact shall be heard and determined by the court. The alleged contemnor shall have the right to be heard in defense and mitigation. In order to make a finding of contempt, the court must find by clear and convincing evidence that:

(i) the alleged contemnor has failed or refused to perform an act required or continues to do an act prohibited by a court order, and

(ii) it is within the alleged contemnor’s power to perform the act required or cease performance of the act prohibited.

(E) Failure to Appear. An alleged contemnor who fails to appear as required may be arrested pursuant to a bench warrant and may be subject to a default judgment.

(F) Order. In the event that the court makes a finding of contempt, the court shall issue an order which specifies the sanction to be imposed.

(G) Appeal. A person upon whom a remedial sanction has been imposed in a proceeding brought under this subdivision may seek appellate review as provided by the Maine Rules of Civil Procedure.

(3) Remedial Sanctions. The court may impose any of the following sanctions on a person adjudged to be in contempt in a proceeding seeking remedial sanctions. The court may also order such additional relief as has heretofore been deemed appropriate to facilitate enforcement of orders, such as appointment of a master or receiver or requirement of a detailed plan or other appropriate relief. An order containing a remedial sanction shall contain a clear description of the action that is required for the contemnor to purge the contempt.

(A) Coercive Imprisonment. A person adjudged to be in contempt may be committed to the county jail until such person performs the affirmative act required by the court’s order.

(B) Coercive Fine. A person adjudged to be in contempt may be assessed a fine in a specific amount, to be paid: (i) unless such person performs an affirmative act required by the court’s order; or (ii) for each day that such person fails to perform such affirmative act or continues to do an act prohibited by the court’s order.

(C) Compensatory Fine. In addition to, or as an alternative to, sanctions imposed under subparagraph (A) or (B) of this paragraph, if loss or injury to a party in an action or proceeding has been caused by the contempt, the court may enter judgment in favor of the person aggrieved for a sum of money sufficient to indemnify the aggrieved party and to satisfy the costs and disbursements, including reasonable attorney fees, of the aggrieved party.


June 1, 2000 Rule 66, subdivisions (a), (b), and (d) are amended to revise and clarify language that has created confusion in implementation of the 1997 rule changes. Going through the text of the rule, the following changes are recommended:

1. The definition of “contempt,” subdivision (a)(2)(A)(i), is broadened to include any obstructing, demeaning, or hindering action, returning to the interpretation, prior to the 1997 amendment, which narrowed the definition. “Contempt of court may be defined as an act which is calculated to embarrass, hinder or obstruct a court in the administration of justice or which is calculated to lessen its authority or dignity.” In re Bernard, 408 A.2d 1279, 1281 n.2 (Me. 1979) citing In re Holbrook, 133 Me 276, 280 (1935). 2. The definition of punitive sanction, subdivision (a)(2)(B), is amended to recognize that it may be imposed either to punish a completed act of contempt or to punish and stop an ongoing act of contempt. The existing definition with the word “retrospectively” created concern that contempt could not be imposed until after the contemptuous act or disruption

was completed. Sometimes the court must act while the disruption is ongoing. 3. Subdivision (a)(3) is revised to remove the requirement for citation of a specific subdivision of this rule as part of the initiation of a contempt proceeding. 4. Subdivision (a)(4) is removed. The general law regarding disqualification and recusal would continue to apply, as it always has, in contempt proceedings. Discussing the former disqualification rule under M.R. Civ. P. 42(b), the Law Court, in Alexander v. Sharpe, 245 A.2d 279, 285 (Me. 1968) stated:

Rule 42(b) expressly excepts from this requirement the action of a justice for contempts occurring in the justice’s presence. Neither our Rule 42(a) nor the Federal Rule from which ours was adopted disqualifies the Presiding Justice from dealing with contempts committed in open court in his presence in cases where the alleged contemptuous conduct, besides offending the orderliness of the proceedings, also impugns the integrity of the Justice. The need for summary action plus the advantage of the presiding justice’s first hand observation of the offending actions and their background must be balanced against the danger that personal resentment may enter into the Justice’s evaluation of the incident.

Accordingly, no special rule governing disqualification is needed in contempt proceedings.

5. Subdivisions (b)(1) and (2) are revised to follow the summary contempt language and practice of the first sentence of F.R. Crim. P. 42(a). Under this revision, summary contempt may be imposed where contempt is committed in the actual presence of the court. Subparagraphs (A) and (B) of subdivision (b)(2) are stricken as unnecessary, and subparagraphs (C) and (D) are incorporated into the text of subdivision (b)(2). These amendments are designed to return summary contempt practice to practice as it existed prior to the 1997 amendments.

6. Subdivision (b)(3) is amended to increase the fine cap for summary contempts from $1000 to $5000. 7. Subdivision (d)(2)(C) is amended to permit the court to order that a hearing be held less than 10 days after service in appropriate circumstances. Such may be particularly important in cases seeking contempt for violation of parental rights orders. 8. Subdivision (d)(2)(D) is amended to remove the prohibition on court appointed counsel. There may be circumstances such as alleged violation of child protective orders or termination of parental rights orders, where individuals may have rights to court appointed counsel as a result of operation of other provisions of law. Because the general law regarding assistance of counsel and right to court appointed counsel applies to such proceedings, and there generally is no such right in civil proceedings with some exceptions, removal of the entire sentence is recommended. 9. Subdivision (d)(3) is amended to specify that sanctions may be imposed after a finding of contempt but during the same contempt proceeding. This removes concern that two hearings may be required to complete a remedial contempt process.

This is not inconsistent with Wells v. State, 474 A.2d 846 (Me. 1984). In Wells, the petitioners had been jailed without any judicial determination of ability to pay their unpaid debt, 474 A.2d at 851. The Court held that a “subsequent hearing” on ability to pay was required, but only because that determination had not been made in the initial contempt hearing, 474 A.2d at 852. A trial court may address and decide all contempt issues in one hearing.


Rule 66 is identical to M.R.Crim.P. 42, both rules being adopted at the same time to clarify present confusion about contempt and to provide a road map applicable to all contempt proceedings. [Effective July 1, 2003, M.R.Crim.P 42 was abrogated except for a cross reference and statement that M.R. Civ. P. 66 governs procedure for contempt matters arising in criminal cases.] Subdivision (a) is intended to make the rule applicable to a contempt proceeding unless the imposition of sanctions is specifically covered by rule or

specific statutory provisions. For example, the rule does not apply to the specific sanctions found in other provisions of the Civil and Criminal rules. See, e.g., M.R. Civ. P. 11, 37, 76(f); M.R.Crim.P. 16(d), 16A(d). Nor does it apply to a statutory provision such as 17-A M.R.S.A. § 1304 (1983 & Supp. 1995). Paragraph (3) assures that the proceeding will follow the correct procedural path, according to whether the contempt occurred in or outside the presence of the court and whether punitive or remedial sanctions are sought. Subdivision (b) provides a summary procedure for contempt occurring in open court and actually seen or heard by the judge or justice. Both punitive and remedial sanctions may be sought in the same summary proceeding for such a contempt. In the court discretion, plenary proceedings under subdivision (c) or (d) may be used for in-court contempt. Sanctions must be proportionate to the offense. State v. Alexander, 257 A.2d 788 (Me. 1969). There is no right to jury trial. State v. Spickler, 637 A.2d 857 (Me. 1994). The alleged contemnor may be heard through counsel if counsel is present. Subdivision (c) provides for a plenary proceeding when punitive sanctions are sought. Remedial sanctions may be imposed in the same proceeding. Jury trial is provided if the court expects to seriously consider imposing a punitive sanction of a serious punitive fine or imprisonment in excess of 30 days upon adjudication of contempt. The language “serious punitive fine” is taken from United Mine Workers v. Bagwell, 512 U.S. 821, 837-39 (1994), which used it to describe the constitutional trigger for the right to jury trial. That Court, in holding that a $52,000,000 fine against the labor union was “unquestionably . . . a serious contempt sanction,” found it unnecessary to “answer . . . the difficult question where the line between petty and serious contempt fines should be drawn.” Id. at 837 n.5. However, it did point out that in Muniz v. Hoffman, 422 U.S. 454, 477 (1975) it had held that a fine of $10,000 imposed on a union was insufficient to trigger the Sixth Amendment right to jury trial and also cited to “18 U.S.C. § 1(3) (defining petty offenses as crimes, the penalty for which . . . does not exceed imprisonment for a period of six months or a fine of not more than $5,000 for an individual and $10,000 for a person other than an individual, or both)” as additional source material supporting the proposition. Id. The Court reference to the current language of 18 U.S.C. § 1(3) serves to at least suggest what “magnitude of contempt fine” constitutes a serious punitive fine. Id. The potential imposition of a punitive sanction of up to 30 days imprisonment does not trigger the right to a jury trial under the United States Constitution. Bloom v. Illinois, 391 U.S. 194 (1968). Nor would such potential imposition trigger a jury trial right under the common law. Id. at 196. See also Eilenbecker v. District Court of Plymouth

County, 134 U.S. 31, 36-39 (1890). Although the issue was left open in State v. Sklar, 317 A.2d 160, 171 n.11 (Me. 1974), the Maine Constitution, like that of its mother Commonwealth, presumably accords no jury trial right. See generally, Root v. MacDonald, 157 N.E. 684, 691 (Mass. 1927); Miaskiewicz v. Commonwealth, 402 N.E.2d 1036 (Mass. 1980). An alleged contemnor has the right to retained or appointed counsel as provided in Rule 44 of the Maine Rules of Criminal Procedure. Proof that the alleged contemnor has acted “intentionally, knowingly or recklessly” satisfies the state of mind element. Subdivision (d) provides a plenary proceeding for remedial sanctions for contempt, designed either to coerce obedience to an order of the court or to compensate a party injured by disobedience. Remedial sanctions may also be awarded for in-court contempt under subdivision (b) or in conjunction with punitive sanctions under subdivision (c). The procedure is consistent with 14 M.R.S.A. §§ 252 and 3136 (Supp. 1995). There is no right to trial by jury in proceedings for remedial sanctions. City of Rockland v. Winchenbaugh, 667 A.2d 602, 604 (Me. 1995). The standard of proof is that of clear and convincing evidence. This is consistent with the standard in all the federal circuits, see, e.g., Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991), and with the Law Court decision in Small v. Small, 413 A.2d 1318, 1325, n.7 (Me. 1980). The opportunity to purge gives the imprisoned contemnor “the keys to his freedom.” Slauenwhite v. Slauenwhite, 679 A.2d 93, 94 (Me. 1996). See also Bagwell, 512 U.S. 821 at 828-29.

RULE 68. OFFER OF JUDGMENT At any time more than 10 days before the trial begins or within such shorter time as the court may approve, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer or within such shorter time as the court may order the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days, or such shorter time as the court may approve, prior to the commencement of hearings to determine the amount or extent of liability.


The rule is amended to permit the court to allow offers of judgment to be made less than 10 days before trial. Not infrequently the pre-trial conference, at which issues are shaped up between the parties, is held less than 10 days before the trial is scheduled to begin. The rigid 10-day rule (which was not present in the "offer to be defaulted" statute of the pre-rules era, R.S. 1954, c. 113, § 42) may prevent what otherwise would be a meritorious simplifying of the trial. However, the court should guard against the defendant's unreasonably deferring his offer of judgment, thereby casting upon the plaintiff the burden of having substantially completed his trial preparation before the offer is made. The shortened period should remain the exception to the usual 10-day rule.


This amendment was taken from a 1966 amendment to F.R. 68. It provides for possible use of the offer-of-judgment procedure when the issue of liability has been resolved, but the amount of damages remains to be determined.


This rule is the same as Federal Rule 68. This rule has a substantial basis in R.S.1954, Chap. 113, Sec. 42 ff. (repealed in 1959), establishing a procedure for offering to be defaulted as a means of minimizing costs. The rule changes the statutory procedure as follows: (1) the requirement that the offer be more than 10 days before trial begins is not in the statute; (2) the 10-day limit for acceptance of the offer is not in the statute, which provides that the court shall fix such time;* and (3) the rule states that the fact of an unaccepted offer does not preclude a subsequent offer, a point upon which the statute is silent.

* [Field, McKusick & Wroth commented: “Both of the first two differences have been

substantially eliminated by the amendments effective December 31, 1967. See Advisory Committee's Note . . .” 2 Field, McKusick & Wroth, Maine Civil Practice at 121 (2d ed. 1970)].

RULE 69. EXECUTION Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. No execution running against the body shall be issued unless, where the law expressly permits such execution, it is so ordered by the court after motion and hearing for good cause shown. In addition to the procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution, as provided by law, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person in the manner provided in these rules; provided that discovery may be obtained against the judgment debtor only in connection with a disclosure proceeding pursuant to 14 M.R.S.A. §§ 3120-3136 and only upon the order, entered on motion for good cause shown, of the District Court in the division in which such proceeding is pending.


This amendment is made necessary by the enactment of 1971 Laws, ch. 408, which makes major changes in the procedure for obtaining satisfaction of a money judgment. That enactment adds a new Chapter 502 to Title 14 M.R.S.A., replacing the present disclosure proceedings of Title 14 with a hearing before a district judge. The Act also repeals provisions of 14 M.R.S.A. §§ 253, 254, 3251-3951, for arrest on execution by writ of capias, leaving only the provision of 14 M.R.S.A. § 3701, as amended, that “In any civil action, except where express provision is by law made to the contrary, an execution shall not run against the body of the judgment debtor.” Capias execution thus remains available in only a few situations where it is expressly authorized. See, e. g., 14 M.R.S A. § 6852 (proceeding for fees by surveyor retained in real action); 14 M.R.S.A. § 7105 (proceeding against attorney for failure to pay over collection proceeds); 22 M.R.S.A. § 3452 (proceedings for nonsupport of relatives). In all other actions, a capias to bring in to the disclosure hearing and contempt proceedings are the only sanctions that the creditor has against the recalcitrant debtor. The amendment not only makes the rule consistent with the new statutory procedure, but makes clear that, regardless of present statutory language, the court will permit capias executions even where statutorily authorized only upon a showing of good cause. In view of the availability of the disclosure procedure even in cases where capias may be had, proper occasions for use of the capias will be rare. Also a question of the constitutionality of the remaining statutory

provisions for arrest or capias may be raised in light of the 1971 repeal of the provision for release of the judgment debtor upon his taking the poor debtor's oath. 14 M.R.S.A. §§ 3702-3721, repealed by 1971 Laws, ch. 408, § 6. Consistent with the purpose of the statute to focus all enforcement proceedings in the disclosure hearing before a District Court judge, the amended rule permits discovery against the judgment debtor only in connection with such a hearing and in the court where the hearing is pending. A showing of cause, as, for example, that the books of a corporate debtor are so complex as to require preliminary examination, is required for all forms of discovery against the judgment debtor.


Existing Rule 69 by its terms makes only depositions available in aid of execution on a judgment. The amendment makes clear that all the discovery devices are available.

Explanation of Amendment (Dec. 1, 1959)

The second sentence was believed necessary, in view of the single form of action, to avoid confusion as to use of capias executions.*


This rule incorporates by reference the existing statutory procedure for execution and levy. It provides, however, that in supplementary proceedings any person, including the judgment debtor, may be examined in the manner provided in these rules for taking depositions.

* See Field, McKusick & Wroth, Maine Civil Practice at § 69.1 (2d ed. 1970).

RULE 70. JUDGMENT FOR SPECIFIC ACTS If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may after notice and opportunity to be heard, direct the act to be done by some other person appointed by the court and the act when so done has like effect as if done by the party, except that the appointee of the court shall have no authority to execute a conveyance of land located outside the State of Maine. The court may also in proper cases adjudge the party in contempt.


The rule is amended to require that any direction or substitution for action only occur after notice and opportunity to be heard, a procedural safeguard likely required by due process in any event. The reference to costs is removed. Presumably costs could be assessed under the court’s general cost authority, if it deems such appropriate. However, costs need not be assessed in every such case.


This rule is based upon a part of Federal Rule 70. It authorizes a conveyance of land by a court-appointed official in a case where a judgment directs a conveyance and the party fails to comply. Most states have either an "appointing" or a "vesting" type of statute to deal with this contingency; and Federal Rule 70 provides for both methods. Maine has no such statute, although R.S.1954, Chap. 119, Sec. 16 [now 33 M.R.S.A. § 4] covers the problem in cases where a person who has contracted to convey real estate dies before conveying it and his executor, administrator, or heirs neglect or refuse to comply with a decree for conveyance. It appears, however, that this power is held to exist in Maine without a statute. Rowe v. Hayden and Eaton, 149 Me. 266, 101 A.2d 190 (1953); Du Puy v. Standard Mineral Co., 88 Me. 202, 33 A. 976 (1895). In the Rowe case, the court reversed a decree which recited that the recording of a certified copy of the decree, in the Penobscot Registry of Deeds would transfer record title to the land in question, on the ground that Maine had no statute providing for it. Merrill, C. J., went on to say, however, that if the defendant's whereabouts were unknown or if he was personally outside the

jurisdiction, the court below could in aid of the decree appoint a master to make conveyance to the plaintiff of the defendant's title. Apparently the conveyance by a master, therefore, can be justified without a statute although a decree purporting to vest title cannot. It may be questioned whether a court rule could cure the lack of a statute in the latter situation. Because of that doubt and because the "appointing" approach equally serves the purpose, the rule eliminates that part of Federal Rule 70 which gives a court decree the effect of a conveyance. The provision that a court-appointed official shall not have authority to execute a conveyance of land outside the state is not in Federal Rule 70. It seems highly unlikely, however, that the deed of such an official would pass title to foreign land or that full faith and credit would be required of such a judgment. See Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909).

RULE 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES

When an order is made in favor of a person who is not a party to the action, that person may enforce compliance with the order by the same process as if a party; and, when compliance with an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing compliance with the order as if a party.


The rule is amended to substitute “compliance with” for “obedience to.”


This rule is the same as Federal Rule 71. The situations where it will be invoked are unlikely to arise often.

IX. APPEALS TO THE LAW COURT

RULES 72 THROUGH 76B & 76I Rules 72, 73, 74, 74A, 74B, 74C, 75, 75A, 75B, 75C, 75D, 76, 76A, 76B and 76I of the Maine Rules of Civil Procedure have been abrogated. Appeals to the Law Court are now governed by the Maine Rules of Appellate Procedure, effective January 1, 2001. [See those Rules and the Comments thereto for the history and Committee Notes.]

RULE 76E. JOINT OR SEVERAL APPEALS TO THE SUPERIOR COURT Parties interested jointly, severally, or otherwise in a judgment of the District Court may join in an appeal therefrom; or any one or more of them may appeal separately or any two or more of them may join in an appeal.

RULE 76F. RECORD ON APPEAL TO THE SUPERIOR COURT (a) Record to Be Filed in Superior Court. When an appeal is completed, the clerk of the division shall file the record with the Superior Court. The original papers and exhibits filed in the District Court and a copy of the docket entries prepared by the clerk of the District Court, together with any transcript made pursuant to Rule 76H of these rules, shall constitute the record on appeal in all cases. A party must make advance arrangements with the clerk for the transportation and receipt of documents or exhibits of unusual bulk or weight. The record on appeal prepared in accordance with this subdivision shall be filed in the Superior Court not later than 40 days after the filing of the notice of appeal or 10 days after the filing of any transcript of the proceedings requested in accordance with Rule 76H, whichever occurs later. It shall be the appellant’s responsibility to insure that these time limits are met and to provide the clerk such assistance as is necessary in preparing and copying the record for filing in the Superior Court. If the appellant fails to comply with the requirements of this rule, the District Court may on motion of any party or on its own initiative, dismiss the appeal for want of prosecution. Upon showing of good cause, the District Court may increase or decrease the time allowed for filing the record. Upon receipt of the record from the District Court, the clerk of the Superior Court shall send each counsel of record or unrepresented party a written notice of the docketing of the receipt of the record on appeal, the Superior Court docket number, the date upon which the record was received, the date upon which the appellant’s brief is due, and a copy of the briefing schedule required by Rule 76G(a). (b) Power of Court to Correct or Modify Record. It is not necessary for the record on appeal to be approved by the District Court judge except as provided in subdivisions (c) and (d) of this rule but, if any difference arises as to whether the

record truly discloses what occurred, the difference shall be submitted to and settled by the District Court judge and the record made to conform to the truth. If anything material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by stipulation, or the District Court judge, either before or after the record is transmitted to the Superior Court, or the Superior Court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk. (c) Appeals When No Electronic Recording Was Made. In any case in which electronic recording would be routine or has been timely requested under Rule 76H(a) of these rules, if for reasons beyond the control of any party, no recording, or no transcript thereof, was made, or is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection, for use instead of a transcript. This statement shall be served on the appellee within 10 days after an appeal is taken to the Superior Court, and the appellee may serve objections or propose amendments thereto within 10 days after service upon the appellee. Thereupon the statement, with the objections or proposed amendment, shall be submitted to the court for settlement and approval and as settled and approved shall be included in the record on appeal filed with the Superior Court. (d) Record on Agreed Statement. When the questions presented by an appeal to the Superior Court can be determined without an examination of all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the Superior Court. The statement shall include a copy of the judgment appealed from, a copy of the notice of appeal with its filing date, and a concise statement of the points to be relied on by the appellant. If the statement conforms to the truth, it, together with such additions as the District Court judge may consider necessary fully to present the questions raised by the appeal, shall be approved by the District Court judge and shall then be certified to the Superior Court as the record on appeal.


Rule 76F, subdivision (a), is amended to remove the requirement that the copy of the docket entries be “certified.”


Rule 76F(a) is amended for consistency with Rule 74(a) to provide that, as on appeal from the Superior Court to the Law Court, the record in a District Court appeal to the Superior Court consists of the original of all papers and exhibits in the District Court and that those originals are to be forwarded to the Superior Court. The amendment makes the practice in District Court civil appeals consistent with that in criminal appeals. See M.R.Crim.P. 36A(b). The purpose of consistency among all three forms of appeal is to eliminate confusion on the part of the District Court clerks, who must handle the record not only in civil and criminal appeals to the Superior Court but in occasional direct District Court appeals to the Law Court.


[Note: Former D.C.C.R. 75(a), after the 1987 abrogation of the District Court Civil Rules, became M.R. Civ. P. 76F(a)] This amendment [to D.C.C.R. 75(a)] imposes deadlines, which presently do not exist, for filing the record on appeal from District Court. Basically, the record would have to be filed 40 days after filing the notice of appeal or ten days after any transcript of the proceedings which has been requested in accordance with District Court Civil Rule 76, whichever occurs later. Further, the amendment makes it clear that although the clerk bears the responsibility for sending the record to the Superior Court, the appellant is held responsible to assure that the record is prepared and to provide the clerk such assistance, including copying and other matters which might impose significant cost upon the court, as is necessary to assure that the record can be submitted within the time limits specified in the rule.

RULE 76G. BRIEFS AND ORAL ARGUMENTS IN THE SUPERIOR COURT

(a) Time for Filing Briefs. The appellant shall file the appellant’s brief within 40 days after the date on which the record is filed in the Superior Court, the appellee shall file the appellee’s brief within 30 days after service of the brief of the appellant, and the appellant may file a reply brief within 14 days after service of the brief of the appellee. In no event shall any brief be filed less than 6 calendar days before the date set for oral argument. Upon a showing of good cause, the Superior Court may increase or decrease the time limit specified in this subdivision. (b) Consequence of Failure to File Briefs. If an appellant fails to comply with subdivision (a) of this rule, the Superior Court may dismiss the appeal for want of prosecution. If an appellee fails to comply, the appellee will not be heard at oral argument except by permission of the Superior Court. (c) Scheduling of Oral Argument. Unless the Superior Court otherwise directs, all appeals shall be in order for hearing 20 days after the date on which appellee’s brief is due or is filed, whichever is earlier. The parties may, by agreement, waive hearing and submit the matter for decision on the record and the briefs. The clerk of the Superior Court shall schedule oral argument for the first appropriate date after the appeal is in order for hearing, and shall notify each counsel of record or unrepresented party of the time and place at which oral argument will be heard.

RULE 76H. ELECTRONIC SOUND RECORDING (a) Recording of Proceedings. The Chief Justice of the Superior Court and the Chief Judge of the District Court shall provide for the electronic sound recording of proceedings in their respective courts by the use of recording equipment to be procured and installed in such manner as they may direct. They may by administrative order in their discretion direct that all proceedings, or certain proceedings, be recorded routinely without special request or order. Any proceedings not routinely recorded shall be recorded at the request of any party in such proceedings or by order of the presiding justice or judge on the court’s own motion. Nothing in this rule shall prevent any party or counsel from recording or transcribing such proceedings independently at the expense of that party or

counsel, provided, however, that no record or transcription therefrom nor any part thereof, made other than under the authority granted to the Chief Justice or Chief Judge by this rule shall be incorporated in or substituted for any portion of a transcript included in a record on appeal without the consent of all parties to the proceedings and the approval of the presiding justice or judge. (b) Personnel. (1) Operators. The Chief Justice of the Superior Court and Chief Judge of the District Court shall designate as authorized operators of electronic recording equipment a sufficient number of court personnel to assure that an authorized operator will be available whenever and wherever court is in session. It shall be the responsibility of the Chief Justice and Chief Judge to employ and train personnel in the use of electronic equipment. (2) Transcribers. The Chief Justice and Chief Judge shall appoint a sufficient number of transcribers of electronic recordings to assure that all transcription of such recordings required under this rule is accomplished without unreasonable delay. All persons appointed as transcribers shall be sworn to the faithful discharge of their duties. (c) Courtroom Operation. The Chief Justice of the Superior Court and the Chief Judge of the District Court shall establish standards and procedures for courtroom operation of electronic recording equipment in their respective courts that will assure a complete and accurate oral recording of all proceedings, as well as a written record of all information necessary for an accurate transcription. At all times, the operation of the recording equipment shall be subject to the direction and order of the trial justice or judge, provided that the right of any party to have any proceedings recorded shall not thereby be defeated. (d) Transcription. (1) In General. The Chief Justice of the Superior Court and the Chief Judge of the District Court shall establish standards and procedures for transcription that will assure the timely production of a neat and accurate transcript of any portion of the recorded proceedings transcribed in accordance with this subdivision. They shall by administrative order provide for the ordering by any person or any person’s attorney of a transcript of all or any portion of a proceeding to which such person is a party or is otherwise authorized by law to have access.

(2) Transcript on Appeal.

A. Appeals to the Law Court. In an appeal from the Superior Court or the District Court to the Law Court, the transcript of proceedings recorded in accordance with this rule shall be ordered and transmitted as provided in M.R. App. P. 5(b)(2) and 6(c).

B. Appeals to the Superior Court. In an appeal from the District Court to the Superior Court if the appellant wishes to include all or any portion of the transcript in the record on appeal, the appellant shall file with the notice of appeal a fully completed transcript order form including a brief description of those portions of the transcript which the appellant intends to include. The appellant shall at the same time order such portions in the manner provided by administrative order pursuant to subdivision (1) of this Subdivision. Payment arrangements for transcripts shall be made as provided by M.R. App. 5(b)(2). Immediately upon completion of the transcript, the office designated by administrative order shall transmit the original of it to the clerk of the District Court for filing and inclusion in the record on appeal. The clerk shall serve notice of such filing upon all parties. If the appellant does not file a description of transcript or does not include the entire transcript in their description, the appellee may, within 10 days after service of the notice of appeal, file a description of transcript and proceed as provided in this subdivision. The clerk of the District Court shall not file the record on appeal with the Superior Court until all portions of the transcript ordered in accordance with this subdivision have been filed. The party ordering a portion of the transcript shall pay the cost of that portion unless the court otherwise orders. All matters not essential to the decision of the questions presented by the appeal shall be omitted from the transcript. For the inclusion of nonessential matter, the Superior Court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties.

(3) Correction of Transcript. If either party claims an error in the transcript, such error may be corrected at any time by agreement of the parties or by order of the court. (e) Retention of Records. All electronic recordings and written records pertaining to a proceeding shall be retained in the office of the clerk for a period of at least ten days from the entry of judgment or other final disposition. During this

period, the clerk shall permit any recording to be heard upon request by any party or counsel in the proceedings in which the recording was made. A reasonable fee, may be charged for hearing a recording. At the conclusion of the 10-day period, such recordings and records shall then be mailed by the clerk to a repository as directed by the Chief Justice or Chief Judge. Such records and recording shall be retained under the jurisdiction of the Chief Justice or Chief Judge for such a period of time from entry of final judgment as they shall determine by administrative order. They shall establish other standards and procedures to assure the orderly transmission, retention and destruction of recordings and records under this subdivision.

Advisory Note 2003

This amendment to Rule 76H(e) removes the reference to a specific fee. The fees for allowing and supervising listening to recordings will be set and revised in the Court Fees Schedule.


The amendments to Rule 76H(d)(2) substitute references to the appropriate sections of the Maine Rules of Appellate Procedure for references to the provisions of Rule 74 and Rule 74A of the Maine Rules of Civil Procedure which are being replaced by the Maine Rules of Appellate Procedure.


January 1, 2001 Rule 76H was amended by deleting subdivision (f). The subject matter of Rule 76H is to prescribe a procedure for the creation, transcription and retention of electronic sound recordings in the courts. Subdivision (f) required that any administrative orders, procedures and similar requirements established by the court shall be published and made available to members of the bar. This provision too narrowly focused on electronic sound recording procedures and, if broadened, would have been out of place in Rule 76H. Consequently, a new Rule 87 has been adopted to make clear that all administrative orders, standards, procedures, schedules and forms promulgated or established by any of the courts shall be published and made available to the clerks and the members of the bar.


Subdivision (d)(2)(B) is amended to recognize the requirements of the transcript production Administrative Order of September 19, 1997. Mostly this is accomplished by reference to Rule 74(b)(4), as recommended to be revised.


Rule 76H is amended pursuant to 4 M.R.S.A. § 651-A, enacted by P.L. 1991, ch. 591, § E-3, to reflect the fact that electronic recording is now being used in the Superior Court in a number of counties and will be made available in that court throughout the state as funds permit installation of the necessary equipment. The Chief Justice of the Superior Court and the Chief Judge of the District Court will issue appropriate administrative orders to implement the rule in the two courts. Note that Rule 76H(d)(2)(3) continues to apply only to transcripts on appeal from the District Court to the Superior Court. Transcripts on Law Court appeals are governed by Rules 74(b) and 74A(b). [Now M.R.App.P. 5(b)(2) and 6(c).]

ADMINISTRATIVE ORDER [Standards and Procedures for Recording]

Effective October 15, 1997 This order is adopted to address the method to be used in making a record of court proceedings. The order recognizes the resource limitations facing the courts in preparing records and the need for flexibility in using those resources. At the

same time, it is necessary to establish criteria to ensure that transcripts can be provided when required. 1. Records of court proceedings will be created using one of the following methods: a. Official Court Reporter. b. Electronic recording. 2. These, methods will be used as follows:

a. In the Superior Court, an Official Court Reporter will be used for jury trials and, when ordered, for testimony before the grand jury.

b. In the Superior Court, an Official Court Reporter or electronic recording will be used for nonjury trials and other testimonial proceedings.

c. In the Superior Court, an Official Court Reporter or electronic recording will be used for criminal nontestimonial proceedings.

d. In the District Court and the Administrative Court, an electronic recording will be used for trials, other testimonial proceedings, and criminal nontestimonial proceedings,

e. No record will be made in any court of civil nontestimonial matters.

3. In exceptional circumstances, the application of the criteria stated above may be modified as follows:

a. No record at all will be made when the parties and the judge agree.

b. Subject to a recognition of resource limitations, the presiding judge or justice may deviate from these criteria for good and sufficient reason stated on the record.

c. Whenever both methods are approved pursuant to paragraph 2 above, the choice will be made by the Regional Court Administrator who will attempt to avoid adverse impact by considering staff availability and transcript production backlog status of both the Official Court Reporters and the Electronic Recording Division.

4. In District Court, twenty-four hours advance notice is required for recording of civil proceedings. Whenever electronic recording is used, a recording log, as specified by the Electronic Recording Supervisor, will be completed. For arraignments and misdemeanor pleas in the District Court, an abbreviated recording log, as specified by the Electronic Recording Supervisor, will be completed. Any electronic recording made without compliance with this paragraph will not be transcribed or copied. 5. In order to preserve resources, requests for transcripts will be controlled as follows:

a. Members of the bar are encouraged to use alternatives to transcription, such as agreed statements of fact or statements of the evidence.

b. Transcription of daily copy is prohibited except when approved by the trial judge in consultation with a Regional Court Administrator.

c. Judges may not order transcripts, other than brief excerpts, without the approval of the Chief Justice of the Superior Court or Chief Judge of the District Court.

Dated: September 19, 1997 For the Court

Chief Justice

ADMINISTRATIVE ORDER Regarding [Duplicate Tapes of] Electronic Recording

in the Superior and District Courts Effective March 15, 1995

Pursuant to Rule 76H, M.R. Civ. P., the preparation and availability of duplicate tapes of official court proceedings shall be governed as follows:

1. The Electronic Recording Division shall provide a duplicate tape recording of any official court proceeding which has been electronically recorded pursuant to Rule 76H, M.R. Civ. P., to counsel of record or a party upon request. 2. Duplicate tapes shall not constitute a part of an official record nor shall it be admissible into evidence. 3. No record or transcription made from a duplicate tape, nor any part thereof, shall be incorporated in or substituted for any portion of a transcript included in an official record without the consent of all parties to the proceeding and with the approval of the presiding justice or judge. 4. No record or transcription made from a duplicate tape, nor any part thereof, shall be incorporated in or substituted for any portion of a transcript which is to be admitted into evidence or used for the impeachment or rehabilitation of a witness in any official proceeding without the consent of all parties to the proceeding and with the approval of the presiding justice or judge. 5. Tapes of proceedings which are confidential by statute or rule may not be duplicated except by Order of the court. 6. The Electronic Recording Division shall charge a fee of $20.00 for the first tape (Fn. 1) and $7.50 for each additional tape of the same proceeding. 7. The Electronic Recording Division shall request a deposit in advance which shall be sufficient to cover the estimated costs of providing a duplicate tape. 8. This Order shall apply to both civil and criminal proceedings in the Superior and District Courts. Fn. 1. This charge applies to the first tape, regardless of length. Each tape will record approximately 45 minutes of testimony.

X. SUPERIOR AND DISTRICT COURTS AND CLERKS

RULE 77. SUPERIOR AND DISTRICT COURTS AND CLERKS (a) Courts Always Open. The Superior and District Courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, and rules. Filings after normal business hours and at places other than appropriate for the venue of the proceeding are governed by Rule 5(g). (b)(1) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a justice or judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the county or division where the action is pending. (2) Recording. In District Court, 24 hours advance notice is required for recording of any civil proceeding. Except by special order of the court, no record will be made in any court of civil nontestimonial matters. (c) Clerk’s Office and Orders by Clerk. The clerk’s office with the clerk or a deputy in attendance shall be open during such hours as the Chief Justice of the Superior Court, or Chief Judge of the District Court as the case may be, may designate, on all days except Saturdays, Sundays, and legal holidays, and except such other days as the Chief Justice or Chief Judge may designate. All motions and applications in the clerk’s office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings that do not require allowance or order of the court are grantable of course by the clerk; but the clerk’s action may be suspended or altered or rescinded by the court upon cause shown. (d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in a manner provided for in Rule 5 upon every party who is not in default for failure to appear, and shall make a note in the docket accordingly. In lieu of serving a notice of the docket entry, the clerk may serve a copy of the order or judgment in a manner provided for in Rule 5. Any such service is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers.

Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in the Maine Rules of Appellate Procedure. (e) Facsimile Signature of the Clerk. A facsimile of the signature of the clerk imprinted at the clerk’s direction upon any summons, writ, subpoena, judgment, order or notice, except executions and criminal process, shall have the same validity as the clerk’s signature.


The amendment [to Rule 77(d)] strikes the reference to Rule 73(a) of the civil appeal rules which is being replaced by the Maine Rules of Appellate Procedure. A specific rule citation is not needed in this reference.


May 1, 2000 Subdivision (a) is amended to recognize the after hours filing provisions and limitations of the filing Administrative Orders of September 19, 1997. Subdivision (b) is amended by adding a subdivision (2) relating to recording as directed by the transcript production Administrative Orders of September 19, 1997.

Advisory Committee's Note to February 15, 1983, Amendment of Rule 77 (d):

This change permits notice of an order or judgment to be delivered to a party in hand or as otherwise permitted in Rule 5. The purpose of this change is to encourage giving an immediate notice while the parties are in court which will encourage savings of postage.


May 15, 1974 Since the organization of the District Court its Chief Judge has designated the hours and days when the District Court clerks' offices are open. See D.C.C.R. 77(c). This amendment puts into the hands of the Chief Justice of the Supreme

Judicial Court the comparable function of designating any days (in addition to Saturdays, Sundays and legal holidays) on which the offices of the clerks of courts will be closed. The Committee believes that the substitution of the Chief Justice for the county commissioners of the sixteen counties is most desirable in order both to achieve statewide uniformity and to give prime consideration to the needs of the courts. The existing rule is ambiguous in requiring the clerk's office to be open “during business hours.” This ambiguity is removed by also giving the Chief Justice the responsibility for designating those hours for being open. Rule 6(a), relating to computation of time periods, is at the same time amended to give any day on which the Chief Justice orders the clerk's office closed the same effect as a legal holiday. Also, Rules 56 and 45(a) of the Maine Rules of Criminal Procedure are being amended in the same ways as their counterparts, Rules 77(c) and 6(a), of the Civil Rules.


The amendment of Rule 77(e) is intended to put beyond any possible doubt the use of the facsimile signature of the clerk on any judgment. By proposing the amendment to Rule 77(e) the Committee is not to be taken as believing that a judgment entered under the existing rule with use of the clerk's facsimile signature is for that reason invalid. The Committee is of the opinion that the present Rule 77(e) was intended to cover broadly all types of papers issued by the clerk, the breadth of the papers intended to be included being emphasized by the single express exception for "executions and criminal process.” Although Rule 54(a), which declares that "judgment" "includes a decree and any order from which an appeal lies", does not answer the question of whether "order" in Rule 77(e) includes a judgment, it would seem strange if a facsimile signature could be used on something which was called an "order" but could not be used on something which was called a "judgment.” The official forms for judgments, Form 28 and Form 29, both of which are signed by the clerk of the Superior Court as a mere ministerial act (Rule 58), contain the language, "It is Ordered and Adjudged". (Emphasis added) Both the entry of default and the entry of judgment by default are also mere ministerial acts requiring no judicial determination or exercise of discretion on the part of the clerk. See Field & McKusick, Maine Civil Practice §§ 55.1, 55.3 (1959). Thus, there is no policy reason forbidding the use of facsimile signatures on those papers. The same is true of the entry of judgment

upon the verdict of the jury or upon the direction of the court. Under Rule 58 there are in certain circumstances standing directions to the clerk to enter judgment automatically and as a ministerial act. See id. at § 58.2. Although the Committee is confident that the Law Court would rule that a judgment entered on the facsimile signature of the clerk was not invalid for that reason, it proposes the amendment of the rule in order that the question need not even be litigated.


This amendment was taken from a 1963 amendment to F.R. 77(d). It simply eliminated the words “affected thereby” in order to conform to M.R.C.P. 5(a) and to the 1966 amendment of M.R.C.P. 24(c).


This rule is substantially the same as Federal Rule 77, with the addition of subdivision (e) which takes into the rules the provisions of R.S.1954, Chap. 106, Sec. 9 [now 4 M.R.S.A. § 108].

RULE 78. [RESERVED]


Rule 78 is abrogated because its establishment of motion days is no longer necessary and not consistent with present practice. This rule was designed for a time when specific motion days were scheduled by the court and then attorneys would notice motions for hearing on those days.


This rule is substantially the same as Federal Rule 78. It contemplates the continued use of the so-called secondary circuit. Motion day will probably vary from month to month depending upon the availability of a justice. During term time in each county, motion day might well be set for a particular day of the term as at present. Also there will be occasions under the rules, the same as at present, where the need for prompt action will necessitate seeking out a justice residing either in or outside the county.

Last reviewed and edited January 12, 2009 Includes amendments effective January 1, 2009

RULE 79. BOOKS AND RECORDS KEPT BY THE CLERK AND

ENTRIES THEREIN (a) Civil Docket. The clerk shall keep the civil docket, and shall enter therein each civil action to which these rules are applicable. Actions shall be assigned docket numbers. Upon the filing of a complaint with the court, the name of each party and each trustee, and the name and address of the plaintiff’s attorney shall be entered upon the docket. Thereafter the name and address of the attorney appearing or answering for any defendant or trustee shall similarly be entered. All pleadings and motions addressed in Rule 7(a) and (b), and any opposition thereto and any returns showing execution of process filed with the clerk, and all appearances, fee payments, orders, verdicts, and judgments shall be noted chronologically upon the docket and shall be marked with the docket number. These notations shall briefly show the nature of each document filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. In the alternative the notation of an order or judgment may consist of an incorporation by reference of a designated order, judgment, opinion or other document filed with the clerk by the court, provided that the notation shows that it is made at the specific direction of the court. The notation of an order or judgment shall show the date the notation is made. (b)(1) Motion to Impound. Upon the filing of a motion or other request to impound or seal documents or other materials, the clerk shall separate such materials from the publicly available file and keep them impounded or sealed pending the court’s adjudication of the motion. (2) Confidential Materials. Requests for inspection or copying of materials designated as confidential, impounded or sealed within a case file must be made by motion in accordance with Rule 7. (c) Custody of Papers by Clerk. The clerk shall be answerable for all records and papers filed with the court, and they shall not be taken from the clerk’s custody without special order of the court; but the parties may at all times have copies. (d) Other Books and Records. The clerk shall keep such other books and records as may be required from time to time by the Chief Justice of the Superior Court, or the Chief Judge of the District Court, as the case may be.

Advisory Note January 2009

This amendment to Rule 79(a), in combination with an amendment to Rule 26(f)(1), is designed to reduce workload in court clerk’s offices by eliminating the requirement that all papers, notices and other documents filed in a case be noted by an entry in the docket. In place of the “all papers” docketing requirement, the amended rule includes a listing of filings that must be docketed that denote events and progress in the case. With this change, entries in the docket will be required for each complaint, counterclaim, cross-claim, third-party complaint, for any answer or reply to any complaint or claim, for a disclosure under oath, if trustee process is used, for issuance of writs, and for all appearances, fee payments, motions, opposition to motions, requests for findings, orders, verdicts, judgments, amendments to judgments, and notices of appeal. However, other papers such as letters, notices, exhibits, and attachments to pleadings or motions will be date stamped when received and placed in the case file, but will not be noted in the docket.


Subdivision (b) is adopted to include language covering the issue of confidential materials now addressed in the Administrative Order of May 28, 1996 regarding public access to court files.


Rule 79(b) is amended to facilitate implementation of 14 M.R.S.A. § 2401(l), enacted by P.L. 1991, ch. 125, prohibiting the destruction of court records “affecting title to or rights in land.” Since extended records of judgments in real actions are no longer maintained and the judgment itself may simply be incorporated by reference on the docket under Rule 79(a), the actual judgment order in the file is the only source in many cases. The amendment requires a separate file of all judgments to be maintained by the clerk, permitting destruction of other file documents. All judgments are to be retained so that the clerk does not have to determine whether title to real estate is affected. Cf. Amendment of M.R. Civ. P. 10(a), effective January 1, 1992.


This deletion [of then 79(b), reserved for future use] recognizes that this

subdivision has not been utilized for some time and is no longer necessary.


A next-to-the-last sentence is added to subdivision (a) in order to permit the court to direct that incorporation by reference on the docket of an order or judgment will constitute sufficient notation of judgment, in place of a statement of its substance. By Rule 58 the notation of a judgment in the docket constitutes entry of judgment, thereby starting the time period running for a motion for a new trial or to alter the judgment (Rule 59), a motion for relief from the judgment (Rule 60(b)), or an appeal (Rule 73(a)). It is obviously important that there be no uncertainty as to when the judgment is entered. In a number of unreported cases, the Law Court has found appeals to be premature because no proper entry of judgment had ever been made. Also, in the case of a lengthy and complex order or judgment (as, for example, is not infrequently entered in an injunctive, multi-party, or class action), the notation upon the docket of the "substance" of the order or judgment is both difficult of proper preparation and cumbersome for physically placing on the docket. The amendment enables the judge in such a case to direct the clerk to enter judgment by means of a notation on the docket incorporating by reference a designated order, judgment, opinion or other document which the court has filed with the clerk. The parties are fully informed of the contents of the order or judgment through other means than the docket; and the clerks' offices, this Committee understands, have adequate methods to preserve documents that are so incorporated, in order thus to assure that any interested non-parties can have ready access to full information about the judgment. The incorporation alternative should be used sparingly. It should be reserved for the truly lengthy and complex order or judgment. It may be used only at the specific direction of the court, and judges should not direct incorporation as a routine matter. It decidedly should be the exception to the rule.

Explanation of Amendment (Dec. 1, 1959)

Rule 79(b) was amended November 2, 1959, effective December 1, 1959, to reduce the number of actions for extended records must be prepared by the clerk while providing the Chief Justice with latitude to prescribe that additional records be maintained. It also provided that in actions for divorce a copy of the judgment be included in the extended record.


This rule differs considerably from Federal Rule 79. Rule 79(a) requires the clerk to keep the civil docket. It is taken partly from Federal Rule 79(a) and partly from Revised Rules of Court 1 and 2. Rule 79(b) includes the provisions of Revised Rules of Court 44 and Equity Rule 43, both as amended, for extended records in specified types of proceedings. Rule 79(c) is taken from Revised Rules of Court 31. Rule 79(d) is a general authorization to the Chief Justice of the Supreme Judicial Court to require the clerk to keep additional books and records.

Last reviewed and edited, January 12, 2009 Includes amendments effective January 1, 2009

RULE 80. DIVORCE AND ANNULMENT [Rule 80 is abrogated, effective January 1, 2009, to be replaced by Chapter

XIII of these Rules. The text of the abrogated Rule 80 is retained at this point to aid in

understanding the advisory notes to prior amendments to Rule 80.]

(a) Applicability of Rules. These Rules shall apply to actions for divorce, annulment, judicial separation, separate support, and determination of parental rights and responsibilities, except as otherwise provided in this rule. (b) Complaint; Counterclaim; Joinder. In an action under this rule the plaintiff shall use the court approved complaint form or incorporate into the complaint prepared by the plaintiff all of the information on the court form. The complaint shall be signed by the plaintiff. A complaint containing the child custody information required by 19-A M.R.S.A. § 1710 shall be signed under oath. When the residence of the defendant can be ascertained, it shall be stated in the complaint. When the residence of the defendant is not known by the plaintiff and cannot be ascertained by reasonable diligence, the complaint shall so allege. No counterclaim shall be permitted in any action under this rule except for divorce, annulment, separate support, or a determination of parental rights and responsibilities. Failure of the defendant to file a counterclaim permitted by this subdivision shall not bar a subsequent action therefor. A defendant shall also file under oath the information related to children required under 19-A M.R.S.A. § 1710. (c) Filing of Financial Affidavits and Work Sheets. In any proceeding under this rule in which child support is an issue, the parties shall exchange and file child support affidavits and, child support work sheets as required by 19-A M.R.S.A. § 2004 and, if applicable, the rules of the Family Division In any proceeding under this rule in which there is a dispute about either a division of property or an award of spousal support the parties, prior to mediation or within 60 days after the party’s answer and response, whichever is earlier, shall exchange and file a financial statement showing the assets, liabilities, and current income and expenses of both parties and indicating separately all marital and non-marital property. Financial statements, child support affidavits and child support work sheets shall be filed on

forms that the Supreme Judicial Court may from time to time prescribe by administrative order. All child support affidavits and financial statements shall be signed by the party under oath. The justice or judge may require during the pendency of any action involving a financial order that a new child support affidavit or financial statement containing current information be filed by the parties. Any financial statement or child support affidavit filed shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, the attorneys whose appearances are entered in the case, the parties to the case, their expert witnesses, and public agencies charged with responsibility for the collection of support, as necessary. If a party fails to file any affidavit, worksheet, or statement required by this rule, the court may make such orders in regard to such failure as are just, including those specified in Rule 37(b)(2), as appropriate. (d) Orders Prior to Judgment. At any time prior to judgment in any proceeding under this rule in which the court has personal jurisdiction over the parties, the court, on motion after notice served not later than 7 days before the hearing unless a shorter time is ordered by the court, may order either party to pay to the other party or to that party’s attorney sufficient money for the defense or prosecution thereof, and to make reasonable provision for that party’s separate support; may make such orders as it deems proper for the allocation of parental rights and responsibilities for any minor children, including support; may prohibit either party from imposing any restraint on the personal liberty of the other; and may dissolve or modify a preliminary injunction entered under 19-A M.R.S.A. § 852 and 903. In any action under this rule in which the court lacks personal jurisdiction of the defendant, the court may at any time prior to judgment, on motion after notice served not later than 7 days before the hearing unless a shorter time is ordered by the court, enter any of the foregoing orders that it deems proper that does not involve the payment of, or the allocation of responsibility for the payment of, money. The provisions of Rule 7(b)(3), (c), and (e) shall not apply to motions for orders prior to judgment under this subdivision. A motion for an order under this subdivision shall be accompanied by a draft order that grants the motion and specifically states the relief to be granted. If child support is in issue, the motion shall be accompanied by a child-support affidavit and worksheet.

Costs may be taxed and counsel fees may be ordered on any motion under this subdivision and the court may in all cases enforce obedience as in other actions. Execution for counsel fees shall not issue until after entry of final judgment. (e) Guardian Ad Litem. Notwithstanding the provisions of Rule 17(b), a minor party to any proceeding under this rule need not be represented by next friend, guardian ad litem, or other fiduciary, unless the court so orders. Whenever it shall appear to the court to be in the best interests of a minor child of the parties to a proceeding under this rule, the court may on its own motion or on motion of a party, appoint a guardian ad litem. The court may make such provision for payment of a guardian ad litem by the parties as it deems necessary and proper. (f) No Judgment Without Hearing; Appearance by Defendant; Judgments to Be Final. No judgment, other than a dismissal for want of prosecution, shall be entered in an action under this rule except after hearing, which may be ex parte if the defendant does not appear. Even though the defendant does not file an answer, the defendant may, upon entering a written appearance before commencement of hearing on issues of parental rights and responsibilities for children, alimony, support, counsel fees, and division of marital or non-marital property, be heard on those issues. Unless otherwise ordered by the court on its own motion or on request of a party, any order granting a divorce, annulment, disposition of property under 19-A M.R.S.A. § 953, or other disposition, award, or division of property incident upon a divorce or annulment, other than a temporary order under subdivision (d) of this rule, shall be a final judgment, notwithstanding the pendency of any other claim or counterclaim in the action. (g) Discovery. In any proceeding under this rule, discovery on issues of alimony, support, counsel fees, and disposition of property may be had as in other actions, but only after the parties have exchanged and filed financial statements. On other issues discovery shall be had only by order of the court for good cause shown. (h) Pretrial Conference. Rules 16 and 16A shall not apply to actions under this rule, except that on request of a party or on its own motion the court may order a pretrial conference to be held as provided in Rule 16(f) or Rule 16A as appropriate. An action shall be transferred to the trial list by order of the court.

(i) Time of Trial. An action for divorce or annulment shall not be in order for hearing until 60 days or more after service of the summons and complaint; nor shall it be in order for hearing until there is on file with the court a statement signed by the plaintiff, which may be contained in the complaint, stating whether any divorce or annulment actions have previously been commenced between the parties, and if so, the designation of the court or courts involved and the disposition made of any such actions. (j) Filing of Real Estate Certificate. In every divorce action under this rule in which any party has an interest in real estate, the parties shall file with the court, at least three days prior to the hearing, a certificate that includes the book and page numbers of an instrument that describes the real estate, the applicable Registry of Deeds, and the town, county and state where the real estate is located. (k) Post-judgment Relief. Except as otherwise provided in Title 19-A: (1) Any proceedings for modification or enforcement of the judgment in an action under this rule shall be on motion for post-judgment relief. The motion shall be served on the opposing party in accordance with Rule 4, except that when a motion is made in response to a motion filed by a party represented by an attorney, the responsive motion may be served upon the attorney in accordance with Rule 5(b). The opposing party shall file a memorandum in opposition to the motion, including all objections, denials, and affirmative defenses, in accordance with Rule 7(c). The failure to file a memorandum in opposition may permit entry of the modified judgment by default in accordance with Rule 55. The motion and any opposing memorandum shall be accompanied, as appropriate, by the affidavits, worksheets, or financial statements required by subdivision (c) of this rule. Post-Judgment Motions filed in an action under this rule must be accompanied by a properly completed Summary Sheet, which is available from the clerk. (2) No final order modifying a judgment shall be entered on a motion for post-judgment relief except after hearing in accordance with subdivision (f) of this rule, unless the parties under oath certify to the court that there is a stipulated judgment or amendment and no hearing is necessary. (3) Upon motion of a party made within 5 days after notice of a decision under this rule, or upon the court’s own motion, the justice or judge who has entered an order modifying a judgment on a motion for post-judgment relief shall make findings of fact and conclusions of law in accordance with Rule 52(a).

(l) Transfer From the Superior Court to the District Court. Upon agreement of the parties any action for divorce or annulment pending in the Superior Court may be transferred to the District Court in accordance with the provisions of this subdivision. Transfer shall be effected by filing a notice thereof agreed to by the parties or their counsel and by paying to the clerk of the Superior Court fees in the same amount required in the District Court on removal to the Superior Court, including the entry fee in and the cost of forwarding the action to the District Court. No transfer may be effected at a time while the court is hearing or has under advisement the merits of the action or any motion either prior to or after judgment. The action may be transferred to a division of the District Court, designated by the notice of transfer, which lies within the county in which either party resided at the commencement of the action; provided that after a judgment for divorce or annulment has become final, the action may be transferred to any division of the District Court. The clerk shall thereupon file a copy of the record and all original papers in the action in the District Court in that division. Thereafter the action shall be prosecuted as if all prior proceedings in the action had taken place in the District Court. (m) Enforcement. The rights and remedies of parties to any proceeding under Title 19-A may be enforced under Rule 66. The availability of Rule 66 does not limit the inherent or statutory authority of the court to impose other remedies or relief as allowed by law.


In 2001, M.R. Civ. P. 4(f)(2) was amended to permit service of a summons and complaint in a divorce action to be completed by registered or certified mail with return receipt. The previous limitation to personal service for divorce cases within the State of Maine was removed by the 2001 amendment. This amendment removes the personal service limitation for post-judgment motions in a divorce, making the rules for service for such motions consistent with the rules for service of original divorce complaints.


The adoption of Rule 66 was intended to establish “procedures to implement the inherent and statutory powers of the court to impose punitive and remedial

sanctions for contempt.” M.R. Civ. P. 66 (a)(1) (emphasis added). The second sentence of Rule 66 (a)(1) (“shall not apply to the imposition of sanctions specifically authorized by other provisions of these rules or by statute”) has been interpreted by some to mean that Rule 66 does not apply to actions governed by Rule 80. The purpose of new Rule 80(m) is to resolve any ambiguity as to the application of Rule 66 to pre- or post-divorce remedies when necessary to enforce a lawfully entered court order. Rule 66 cannot be an exclusive remedy as various federal and state laws confer other specific sanctions for violation of court orders. See, e.g., 19-A M.R.S.A. § 2101, et seq. (1998) (support enforcement). The Law Court has historically permitted flexible and creative solutions to the unique enforcement issues associated with family law. See, e.g., Booth v. Booth, 640 A.2d 1065 (Me. 1994) (use of lien); Elliot v. Elliot, 431 A.2d 55, 56 (Me. 1991) (inherent power of court available for enforcement). The trial court, therefore, retains this flexibility, within constitutional limitations, but a party may elect the procedures available under Rule 66.


The amendment to Rule 80 (a) was recommended by the Maine Family Law Advisory Commission, while the remaining amendments to Rule 80 were recommended by the Pro Se Divorce Team, a task force appointed by the Court to recommended changes to the rule governing divorce procedure in the light of the substantial number of divorces in which one or both parties appear pro se. The amendment to subdivision (a) results from a comprehensive revision to the judicial separation statute, 19-A M.R.S.A. § 851. The statute makes the remedies available in an action for judicial separation virtually the same as those in a divorce, with the exception of dissolution of the marriage. In addition, a counterclaim for divorce may be filed in an action for judicial separation. The amendment recognizes these changes by placing judicial separation actions in the same procedural framework as divorces. The amendment to subdivision (b) is intended to ensure that the plaintiff uses the court complaint form or, at least, incorporates all of its language into the initial filing of the plaintiff. The use of the court forms ensures that paperwork is uniform and kept to the minimum necessary to process the divorce filings. Several new forms have been adopted by administrative order as a result of the Pro Se Divorce Team’s recommendations. The amendments to subdivision (c) require a child support affidavit in appropriate cases and eliminate the requirement of a financial statement except in cases where there is a dispute about property or

spousal support issues. If a financial statement is to be filed, the child support affidavit is not required, but the child support worksheet must be filed. Subdivision (g) is amended to make clear that the financial statements are intended to reduce the need for discovery, not to add to it. The financial statement should be used in lieu of discovery whenever possible. A new subdivision (j) is adopted to require a certificate to provide the court with accurate information on any real estate involved in the action. Subdivisions (j) and (k) are redesignated (k) and (l), respectively, and the former subdivision (j) (4) is abrogated to account for the repeal of 19 M.R.S.A. § 777, effective July 1, 1995.

Advisory Committee’s Notes July 1992

Rule 80(d) as adopted effective February 15, 1992, is amended to eliminate the requirement of filing memoranda in support or opposition to motions for orders prior to judgment in family law actions. Such a motion, however, must be accompanied by a draft order and, if child support is in issue, the appropriate affidavit and worksheets. The principal purpose of the amendment is to eliminate the delays incident upon preparation of the memorandum and imposed by the 21-day period for reply provided under Rule 7(c). The amendment is also intended to avoid overburdening the clerks and court with material that will not provide significant useful information. Rule 80(j) as adopted effective February 15, 1992, is amended to reflect the effect of P.L. 1991, ch. 840, § 4, repealing and replacing 19 M.R.S.A. § 319 with a provision establishing specific procedure and standards for modification of child support orders. Rule 80(j) is expressly made subject to the provisions of 19 M.R.S.A. §§ 311-320 (Supp. 1991) governing child support orders, and former paragraph (2) covering motions to modify such orders is deleted.

Advisory Committee’s Notes February 1992

Rules 80 and 80G are entirely revised and replaced by the present amendment, which is based on proposed changes developed and presented to the Advisory Committee by a working group of the Maine State Bar Association’s Family Law Section. The purposes of the new rule are to clarify procedural provisions relating to family law actions and bring them into line with current family law practice and recent state and federal legislation. Rule 80G and Form 7.10 are abrogated by simultaneous amendments.

Rule 80(a) makes clear that the Civil Rules, as modified by Rule 80, apply to divorce, annulment, separate support, and any action related to parental rights and responsibilities for a minor child under Title 19. References in former Rule 80 to other provisions of the rules are thus deleted as redundant. Former Rule 80(i) covering annulment is omitted as superfluous. Rule 80(b) carries forward provisions of former Rule 80(b) covering pleading. Restrictions on service of process and redundant and obsolete provisions have been eliminated. Guardians ad litem are now covered in Rule 80(e). Provisions concerning counterclaims found in former Rule 80(e) are now included in Rule 80(b). The last sentence of Rule 80(b) requires the child custody affidavit required under Maine’s Uniform Child Custody Jurisdiction Act. Rule 80(c) is entirely new, superseding former Rule 80(n). It incorporates the requirements of the child support guidelines statute and provides for prompt financial disclosure in cases not involving children. The rule outlines procedures for the filing of financial affidavits. The intent is to require the parties to provide the court and mediators with accurate financial information early in the litigation. Former Form 7.10 is abrogated because it will be superseded by forms adopted pursuant to this subdivision. Rule 80(d) carries forward former Rule 80(c) with clarifying changes and references to newly enacted 19 M.R.S.A. § 692-A relating to preliminary injunctions. The 1990 amendments to Rule 7 are now fully applicable to motions under this subdivision. Rule 80(e) carries forward the provision of former Rule 80(b) permitting minor parties to proceed without guardians ad litem despite Rule 17(b). The new rule adds specific procedures for the appointment of a guardian ad litem for a minor child of the parties when the court determines it to be in the best interests of the child. Rule 80(f) carries forward former Rule 80(d) with language clarifying the procedure in the case of a defendant who does not answer but appears. The intent of the rule is to require a defendant to enter an appearance prior to the commencement of trial if the defendant wishes to participate in the proceeding or to object at hearing. Former Rule 80(d) granted a right to “be heard” before “judgment,” which permitted parties failing to answer in accordance with the summons to oppose the judgment after trial but during the appeal period. Rule

80(f) is intended to permit a defaulting party to appear and participate at hearing in accordance with Rule 55, but if a party does not file an answer and enter an appearance before trial, there is no right to participate in the trial at all. Rule 80(g) is identical to former Rule 80(f). Rule 80(h), superseding former Rule 80(m), makes clear that the expedited pre-trial and memorandum procedures of Rule 16(a)-(e) do not apply in family law actions. The new rule provides for an optional pre-trial conference on motion of the parties or court. The provision is purposely broad to permit the trial courts to continue their present experimentation in the development of pretrial procedure in family law cases. Former Rule 80(h), prohibiting a new trial or other relief from judgment “if the parties have cohabited or one of them has contracted a new marriage,” is eliminated. The provision carried forward limitations on a pre-1959 statutory procedure that was the equivalent of motions to reopen or modify a divorce judgment under Rules 60(b) or 80(j). See R.S. ch. 166, § 66 (1954); Simpson v. Simpson, 119 Me. 14, 17, 109 A. 254 (1920), and cases cited therein. Those limitations are now obsolete in light of changes in divorce law and practice. The equitable nature of Rules 60(b) and 80(j) will allow the court to treat post-divorce cohabitation or remarriage flexibly and fairly in the circumstances of each case. Rule 80(i) is identical to former Rule 80(g). Rule 80(j) clarifies and strengthens the provisions of former Rule 80(j) concerning post-judgment motions. Post-judgment motions are now labeled “motions for post-judgment relief” and must be served by one of the methods provided in Rule 4 for service of summons, unless the opposing party is represented by an attorney. All objections and other defenses to the motion are to be filed in the memorandum in opposition required by Rule 7(c). The memorandum fulfills the function of an answer, and failure to file such a memorandum may result in a default judgment under Rule 55 modifying or amending the original divorce judgment. Special provision is made to incorporate financial disclosure under this rule, and other special provisions are made for motions seeking modification of child support. A hearing is required unless the parties certify that the motion is uncontested. In actions involving child support, the parties must provide the court with a proposed order incorporating the child support worksheet so as to expedite decisions. The parties may now request findings of fact and conclusions of law in accordance with Rule 52(a) after entry of

a final judgment on a post-judgment motion. Remedies under the statutory conditional withholding order are preserved. Rule 80(k) is virtually identical to former Rule 80(k). Former Rule 80(o) governing removal from the District Court is omitted as superfluous.

Advisory Committee’s Notes July 1990

[Note: Former 80(j) is now 80(k)] Rule 80(j) is amended concurrently with the amendments changing the Motion practice under Rule 7 effective July 1, 1990. The amendment makes clear that provisions of amended Rule 7(b) apply to filing and serving motion and notice of motion in post-judgment divorce proceedings. Rules 7(c) and (e) are also applicable even though they are not expressly incorporated. Rule 80(j) is further amended to eliminate an apparent inconsistency with the provisions of Rule 5(b) permitting service of a responsive pleading upon a party represented by an attorney by delivery to the attorney. Rule 80(j) provides that a post-judgment motion in a divorce proceeding must be served in hand as provided in Rule 4. The purpose is to assure notice in a situation in which the motion is served long after the opposing party’s counsel has withdrawn. When the original motion is served by a party then represented by counsel, however, that problem is not present. Accordingly, the amendment provides that in such a case service may be made upon the original movant’s attorney under Rule 5(b).


[Note: Former 80(f) is now 80(g)] Rule 80(f) is amended to broaden the scope of discovery allowed in divorce actions and to make the same measure of discovery available in actions for annulment under the rule. A similar change is being made in Rule 80G(f) covering actions for separate support and custody. Both amendments will apply in the District Court by virtue of their incorporation in D.C.C.R. 80 and 80G respectively.

Under the amended rule, not merely depositions and interrogatories but all discovery, including production under Rule 34, physical and mental examination under Rule 35, and requests for admission under Rule 36, will be available on what are essentially economic issues. To the enumeration in the former rule of alimony, support, and counsel fees as issues where discovery is available as of course, the amendment adds disposition of property. The intention is to include all property dispositions whether granted under 19 M.R.S.A. § 722-A, or otherwise. See Rule 80(d). As under the former rule, discovery on issues other than those enumerated may be taken only upon court order for cause shown. This distinction is maintained in recognition of the “delicacy” of non-monetary issues in marital actions. See 2 Field, McKusick, and Wroth, Maine Civil Practice, § 80.1 (2d ed. 1970); Reporter’s Notes to Rule 80(f), id. at 268; Advisory Committee’s Note to 1967 amendment of Rule 80(f), id. at 271.


[Note: Former 80(d) is now 80(f)] Rule 80(d) is amended to provide that in divorce actions the presumption of Rule 54(b) that a judgment on less than all the claims in an action is non-final is reversed: An order granting a divorce, annulment, or marital property disposition is final notwithstanding the pendency of other claims in the action unless the court otherwise orders. The amendment is intended to eliminate a trap for the unwary that was sprung in Parent v. Parent, 425 A.2d 975 (Me. 1981). Judgments affecting status or title to property should not be subject to uncertainty due to possible failure of counsel to comply with procedural rules. The rule complements the recent action of the 110th Legislature, which validated all divorce, annulment, and marital property judgments similarly subject to pending claims or counterclaims, except those in which the appeal period was still running on June 30, 1981, the effective date of the Act. P.L. 1981, ch. 529 § 2. In those proceedings, it remains open to the appropriate party to pursue the pending claim or secure its dismissal by proper means. In divorce actions where judgment was entered between June 30, 1981 and the effective date of the rule amendment and a pending claim or counterclaim was overlooked, counsel should either obtain the appropriate dismissal or obtain the appropriate Rule 54(b) order.


This rule is amended by adding a provision that tracks the language of DCCR 80(l)(2) providing for payment of service costs in in forma pauperis cases from court funds. Now that the Superior Court has an administrative budget, there is no reason that this expense cannot be assumed in that court also.


The purpose of the amendment to subparagraph (d) of Rule 80 of the Maine Rules of Civil Procedure is to provide in the case where a Defendant does not file an Answer and is not represented by counsel, that he may be heard on any issues relating to the division of the marital property of the parties to the action, in addition to those already specified in the rule. It should be noted that in order to preserve this right to be heard, the Defendant must file a written appearance before judgment is entered in the case.


It is the purpose of this amendment to conform the provisions of this rule [80j) in respect to service outside of the state to current postal regulations, providing for "restricted delivery" in lieu of the prior designation "deliver to addressee only". A similar change has previously been accomplished with respect to M.R.C.P. 4(f).


November 15, 1976 Rules 80(c) and (e) are amended to reflect more accurately current practice or the intent of the rule. The changes are made at this time for consistency with the very similar provisions of Rule 80G, added by simultaneous amendment. Rule 80(c), covering orders prior to judgment, now applies to any action under the rule, including annulment as well as divorce. While most of its provisions would ordinarily be inapplicable in annulment proceedings, there seems no reason not to make the rule apply to both. Other changes in Rule 80(c) reflect the current reality that divorce proceedings may be brought on behalf of either husband or wife and that, consequently, the provisions of the rule may run in favor of or against either spouse. The amendment adds an express requirement of notice

and hearing for all orders under it. This procedure was required in any event by virtue of the general provisions of Rule 5-7. See 2 Field, McKusick, and Wroth, Maine Civil Practice, § 80.2 (2d ed.1970). The provision of Rule 80(c) delimiting the jurisdiction of the court over temporary custody motions is changed from children "within the state" to children "subject to the jurisdiction of the court." This amendment is intended to embrace situations in which minor children not within the state may be subject to Maine's jurisdiction on some other ground, such as presence of the parent having custody or a prior valid custody order of a Maine court. The change is consistent with the purpose of the prior language which was simply intended to make clear that jurisdiction in custody matters, in contrast to support, did not depend on personal jurisdiction of the affected parent. See Explanation of Amendments (1962), 2 Field, McKusick, and Wroth, supra, at 270. The second-to-last sentence of Rule 80(c) is changed in the interests of clarity, with no change in substance intended. The change in the final sentence, delaying issuance of execution for counsel fees until after final judgment, also works a change in the applicable statutory provision. See 19 M.R. S.A. § 722. The amendment ties the time of issuance of execution to the more certain event of entry of judgment and allows for the possibility that the amount of counsel fees awarded may be reviewed and revised by the court after hearing on the merits. Rule 80(e) is amended to include counterclaims for separate support or custody under new Rule 80G among those permitted. The subdivision is reworded to specify that the enumerated counterclaims are the only ones permitted by the rule. The former provision that a counterclaim "may be filed by leave of court at any time prior to judgment" has been eliminated to make clear that the enumerated counterclaims, if included in a pleading as provided in Rule 13(b), may be filed without leave of court. After-acquired counterclaims, or those omitted through inadvertence or the like, may still be added by leave of court under Rules 13(e) and (f).

Advisory Committee's Note June 6, 1972

The United States Supreme Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 789, 28 L.Ed.2d 113 (1971), has held that a state may not constitutionally deprive an indigent spouse of access to the divorce court by requiring payment of filing and service fees:

". . . a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so." (Id. at 383).

Thus, a constitutional mandate rests upon the Maine Supreme Judicial Court to the extent of its rulemaking power to provide a means by which an indigent spouse may commence a divorce (or related) proceeding in forma pauperis. Other states have acted either to provide in forma pauperis proceedings in divorce cases (see Mass. Probate Rule 41A approved by Mass. Supreme Judicial Court, Feb. 2, 1972) or to make such proceedings available in any kind of case (see New Jersey Rule 1:13-2 as amended effective Sept. 13, 1971). M.R.C.P. 80(l) provides a means by which the filing fee may be waived by order of the court upon an application supported by affidavit. There will probably be little or no occasion for anyone to seek waiver of the modest $2.00 filing fee now charged in the Superior Court. The costs of making service, however, are of greater consequence and the Boddie requirements extend also to those costs. In the amendment of Rule 80 of the District Court Civil Rules which is being made simultaneously, provision is made for payment of service fees as an administrative expense of the District Court. It is believed that the constitutional requirements are thus met. The in forma pauperis rules adopted by some states in reaction to Boddie permit use by the indigent of less expensive modes of service. For example, Massachusetts Probate Court Rule 41A provides that:

"The court in such a case may order service of the order of notice, in a manner reasonably calculated to give notice to the libellee, as for example by a disinterested person or attorney, or by certified or registered mail."

The Committee rejects watering down the divorce service requirements for the indigent plaintiff, believing that the purpose of those special requirements applies alike to the indigent and the non-indigent (see 2 Field, McKusick & Wroth, Maine Civil Practice 272-73) and that the constitutional obligations of the courts to the indigent should be treated as raising solely the question of where the moneys for paying service fees are to come from.

The rule does not attempt to spell out tests of indigeney. The Supreme Court has given some guidance on this subject. In Boddie (id. at 372–73) it found that affidavits established indigency where they showed that each, person's

"welfare income . . . barely suffices to meet the costs of the daily essentials of life and includes no allotment that could be budgeted for the expense to gain access to the courts in order to obtain a divorce."

Similarly, In re Smith, 323 F.Supp. 1082 (D.Colo.1971), a recent federal district court decision has applied a liberal definition of the word "indigence" in an action granting waiver of federal bankruptcy filing fees:

"We will not attempt to set forth a complete definition of indigence, but we think it fair to state that a person who cannot afford to live from day to day and also pay the cost of a court filing fee is indigent for the purpose of being entitled to proceed without prepayment of costs. To require that a person seeking access to court be so destitute as to be unable to maintain himself from day to day would deny access as surely as does the filing fee requirement." (Id. at 1092).

An affidavit was accepted by a federal district court in New York "in the absence of evidence to the contrary," although the court pointed out that the trustee had the statutory duty of examining the bankrupt (11 U.S.C. § 75(a)) and that he could adequately provide against possible abuses of the use of affidavits. In re Kras, 331 F. Supp. 1207, 1213 (E.D.N.Y.1971).*


The Special Session of the 104th Legislature meeting in January-February, 1970, enacted an amendment to 4 M.R.S.A. § 152 to authorize the remand, or transfer, of divorce and annulment cases from the Superior Court to the District Court. (1969 Laws, c. 587) The rule uses the word "transfer" rather than the * [Field, McKusick & Wroth note: “This case was reversed sub nom. United States v. Kras, 409

U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). The Supreme Court held that the principle of Boddie should not be extended to waiver of the filing fee amounting to no more than $50 as a prerequisite to discharge in bankruptcy.” Field, McKusick & Wroth, Maine Civil Practice at 553 (Supp. 1981).

statutory language of "remand" which is technically inappropriate in the bulk of actions which have never previously been in the District Court. The difference in language is plainly not one of substance. The rule makes clear what is implicit in the statute; namely, that any pending action may be transferred, even though it had been commenced or even had gone to judgment prior to enactment of the statute. Thus, if the parties find the District Court a more convenient forum for further proceedings to modify an existing Superior Court divorce judgment, they may cause remand of the action regardless how long ago the judgment was entered. The transfer of the action from the Superior Court to the District Court is in many respects the converse of the removal of actions from the District Court to the Superior Court under D.C.C.R. 73(b). The latter rule is used as a model for the mechanics of transfer prescribed in Rule 80(k). Transfer is accomplished by filing a notice in the Superior Court (which must bear the signature of both parties or their counsel in evidence of their agreement) and by paying to the Clerk of the Superior Court fees in the same amount required in the District Court on removal. Those fees are prescribed in 4 M.R. S.A. §§ 174-75 ($7.00 for removal including entry fee and $5.00 for copies of papers) and are incorporated by reference in Rule 80(k) subject to possible future changes by the Legislature. The Clerk of the Superior Court will file with the Clerk of the District Court in the Division to which the transfer is made a copy of the record in the Superior Court and all the original papers in the case. Compare the procedure for removal from the District Court, Field, McKusick & Wroth, Maine Civil Practice § 173.10 (2d Ed. 1970). M.R.C.P. Form 33 added simultaneously with Rule 80(k), provides a form for transfer of a divorce or annulment action to the District Court. M.R.C.P. 84 declares it to be sufficient under the Rules. The selection of the division of the District Court to which the action is transferred is left up to the parties, subject to the limitation that prior to the time that a judgment of annulment or for divorce from the bonds of matrimony has become final, transfer may be made only to a division in a county where either party resided at the commencement of the proceedings. The reason for this restriction is the provision of 19 M.R.S.A. § 691 declaring: "A divorce from the bonds of matrimony may be decreed in the county where either party resided at the commencement of the proceedings . . . . " Poulin v. Poulin, 241 A.2d 611 (Me. 1968), held that this restriction of the county where the divorce might be decreed is a matter of subject-matter jurisdiction.* There appears, however, to be no such

* [Field, McKusick & Wroth opined: “But see Section 0.8 of this Supplement for expression of

the author’s opinion that Poulin v. Poulin should not read to make the statutory county

restriction on post-judgment motions, as, for example, motions for modification of the provisions for alimony or child custody or support. It can be anticipated that most transfer of divorce actions from the Superior Court to the District Court will come after judgment. The rule proceeds on the belief that the place of trying post-judgment matters in a divorce action is a matter of venue and not of jurisdiction, and that being a matter of venue both parties by their agreement to the transfer will waive any objection that might otherwise exist to the venue. The above quoted language of 19 M.R.S.A. § 691 is limited to the decreeing of a divorce from the bonds of matrimony, and the last sentence of that same section and also 19 M.R.S.A. § 664 state in broad language that both the District Court and the Superior Court have jurisdiction over actions for divorce in all counties. While it might be suggested that post-judgment transfers be limited to divisions in counties in which at least one of the parties lives at the time of the transfer, such limitation is clearly not necessary if the division of transfer is only a matter of venue.

restriction jurisdictional in a divorce action where one or both spouses are residents.” Field, McKusick & Wroth, Maine Civil Practice at 550 (Supp. 1981).

Obviously the availability of transfer to the most convenient division of the District Court is a highly desirable feature. For example, the original Superior Court divorce action might have been commenced in Aroostook County where both parties then resided; after the divorce judgment is final, the husband may have moved to East Hartford, Connecticut and the wife to Biddeford, Maine. By Rule 80(k) the parties may by agreement cause the action to be transferred by the Aroostook County Superior Court to a division of the District Court located in York County where the wife lives or to any other division in the state which the parties choose for any reason - whether to suit the convenience of the parties or their lawyers or of the witnesses, or otherwise. The judgment of divorce from the bonds of matrimony becomes final by written waiver of appeal, by expiration of the time for appeal, by dismissal of an appeal, or on certificate of decision from the Law Court. Cf. Rule 62(f) ; see, as to waiver of appeal, 2 Field, McKusick & Wroth, Maine Civil Practice § 80.3 (2d ed. 1970). Although a Rule 60(b) motion for relief from the judgment of divorce might on the facts of a particular case still be timely, a division of the District Court in a county in which neither party resided at the commencement of the action would not have subject-matter jurisdiction to grant relief that attacks the divorce from the bonds of matrimony itself. Such is one's conclusion from 19 M.R.S.A. § 691. If the divorce action is transferred to a division where the action could not have been originally brought, because neither party resided there at the commencement of the action, and if after transfer a Rule 60(b) motion is filed, the District Court Judge should, if he believes the motion meritorious, transfer the case to a division which would have subject matter jurisdiction. Such a transfer of venue between divisions of the District Court is authorized by 4 M.R.S.A. §§ 155(7) and (8). See Id. at § 100.7. Rule 80(k) contemplates no participation in the transfer process by either the Superior Court Justice or the District Court Judge. It is intended to be simple in operation, put into motion by the agreement of the parties and carried out by the clerk of the Superior Court. It may be expected that the bulk of the divorce and annulment actions that will be transferred from the Superior Court to the District Court will be those actions which have gone to judgment in the Superior Court and which thereafter involve motions for modification of alimony or child custody or support. The resident District Court Judge can in general provide continuing supervision more satisfactorily than can the Superior Court Justices who in performing their circuit duties come and go from a particular county. Furthermore, the transfer device

should be particularly attractive to the parties to a divorce judgment who have subsequent to commencement of the Superior Court action moved to a different part of the State. It should be noted that a Superior Court divorce action may be transferred to the District Court even though it was commenced or even went to judgment prior to enactment in 1970 of the statutory authorization for remand or transfer. The statute and the rule apply to any pending case.


As noted in the original Reporter's Note to Rule 80(f), it "does not seem desirable to have the free use of discovery" in the divorce actions. For example, discovery on the subject matter of the grounds for divorce might have undesirable consequences. However, the same undesirable consequences would not accompany discovery as to monetary issues involved in the action. It is believed that the wife should have discovery freely available to discover facts relating to issues of alimony, support or counsel fees.

Explanation of Amendments (Feb. 1, 1960; August 1, 1962; Nov. 1, 1962)

Rule 80(b) was amended by the addition of the final sentence to make it clear that Rule 17(b) providing for the appointment of a guardian ad litem for an infant does not apply to divorce actions. The court may, however, when it deems it advisable, order such appointment. See § 17.5 of the Text. Rule 80(c) was almost completely rewritten by the amendment of February 1, 1960. As amended, Rule 80(c) applies only to orders prior to judgment in a divorce action. Rule 80(j), added by the February 1, 1960, amendment, and amended effective August 1, 1962, controls procedures for obtaining orders after judgment. Rule 80(c) provides the procedures for obtaining the relief granted by 19 M.R.S.A. §§ 693-94. The court cannot enter an order for support of the wife and minor children or for money for prosecution of the divorce action under this subdivision unless it has personal jurisdiction over the husband. He must be a domiciliary of Maine or have submitted to the jurisdiction of the Maine courts and further he must have been personally served with a copy of the complaint and summons, either within the state or elsewhere. Service by mail pursuant to Rule 4(f) does not give the court personal jurisdiction, nor does service by publication except in the rare situation covered by Rule 4(d) (1). The court may make orders for the custody of minor children who are within the state pending judgment on a

divorce action in any case, whether or not the errant spouse is subject to the jurisdiction of the court. The court may order the husband to pay reasonable counsel fees for the prosecution of a motion under this subdivision if requested in the motion and may enforce any order made under this subdivision by issuing its capias execution. A capias execution will be ordered, however, only when specifically requested by motion and after hearing. The last sentence of Rule 80(c) simply restates a portion of 19 M.R.S.A. § 722. A motion under Rule 80(c) for an order pending judgment in a divorce action is similar to a motion in any other civil case. It may be signed by counsel for the party and, in contrast to motions after judgment, may be served upon counsel and pursuant to any of the methods of Rule 5. Rule 80(j) was added on February 1, 1960, to resolve questions that had arisen during the first few months of operation under the new rules and to make clear that orders modifying or enforcing a divorce judgment are obtained by motion and not by separate action. The rule requires, however, that a motion for alteration or enforcement of an existing judgment shall be delivered to the party himself. Such motions are often brought several years after the judgment, and service upon the attorney of record in the original proceeding imposes an undue burden upon the attorney who may have long been out of touch with the party. The August 1, 1962, amendment imposes an additional requirement for service of these Rule 80(j) motions. Because of the possible seriousness of the result of a motion for enforcement or modification of a divorce judgment, the rule as amended requires that notice of the motion be by delivery in hand or by registered or certified mail, return receipt requested, deliver to addressee only. Since a motion, and not original process, is being served, such delivery in hand need not be made by an officer. If service cannot be made by one of these methods after due diligence, the court upon motion may order service by publication or by ordinary mail or both. The provision for publication was found necessary in the case of a party who has moved since the date of judgment and whose present whereabouts are unknown. The provision for service by regular mail, if ordered by the court, is to reach the

party who avoids service in hand and who neither accepts nor refuses registered or certified mail. The purpose of the second sentence of Rule 80(g), added by amendment effective November 1, 1962, is to put the court on notice in a situation where an unsuccessful plaintiff in a divorce action subsequently commences a new action using the same grounds, hoping to get a different and more lenient Superior Court Justice the next time, or even worse, manufacturing some new evidence for use at the subsequent hearing.


An action for divorce or annulment is a suit of a civil nature and so within the coverage of these rules, but they are sufficiently different from other civil actions to require a separate rule. The objective is to make only such changes in existing practice as are necessary for general conformity with the pattern of these rules. There is no comparable Federal rule. Rule 80(a) simply states that these rules shall apply to divorce actions unless otherwise provided. Rule 80(b) is taken basically from R.S.1954, Chap. 166, Secs. 56 (amended in 1959) [now 19 M.R.S.A. § 692] and 57 (repealed in 1959). The words "complaint", "plaintiff", and "defendant" have been used to conform to the other rules. Rule 80(c) incorporates with slight verbal changes the provisions of R.S.1954, Chap. 166, Secs. 59 and 60 [now 19 M.R.S.A. §§ 693-694]. Rule 80(d) requires a hearing in divorce actions. An answer in accordance with Rule 12 is contemplated if the defendant proposes to contest the divorce, but an appearance without answer permits him to be heard on custody, alimony, and the like. Rule 80(e) provides for counterclaims in divorce actions, in lieu of cross-libels, but expressly makes a counterclaim permissive only so that failure to counterclaim would not preclude a later action for divorce for a cause arising previously.

Rule 80(f) requires a court order for the use of the discovery devices in divorce actions.* It does not seem desirable to have the free use of discovery in this type of case. On the other hand, depositions may now be taken in divorce actions under R.S.1954, Chap. 117, Sec. 1 (repealed in 1959), and presumably the court will permit a deposition in the circumstances under which a deposition can be taken under existing law. Rule 80(g) provides that a divorce action shall be in order for hearing not less than 60 days after service of process on the defendant. This approximates the time limitations in R.S.1954, Chap. 166, Sec. 61 (repealed in 1959), which uses the abolished concept of "return term." Provision for a new trial in divorce actions will be governed by Rule 59 and by the provisions of Rule 60(b) dealing with relief from judgments. R.S.1954, Chap. 166, Sec. 66 [repealed in 1961], providing for a new trial within three years after judgment, is superseded. Rule 80(h) provides, however, that there shall not be a new trial or relief from a judgment when the parties have cohabited or either has contracted a new marriage since the judgment. This provision is lifted from the superseded statute. Rule 80(i) incorporates R.S.1954, Chap. 166, Sec. 52 [now 19 M.R.S.A. § 632] dealing with annulment of invalid marriages. Perhaps some reference to the provisions of R.S.1954, Chap. 166 [now 19 M.R.S.A. §§ 631-752], which are not covered by the rule is desirable. Section 55 [now 19 M.R.S.A. § 691] sets forth the causes for divorce and jurisdiction of divorce actions and is plainly substantive. Section 58 [now 19 M.R.S.A. § 661] is also substantive in that it provides a criminal penalty. It does not appear necessary to incorporate Sec. 61 (repealed in 1959), providing for jury issues in divorce cases, into these rules. The statute provides that jury issues "may" be framed and that findings of a jury shall have the same force and effect as similar findings in probate appeals. In probate appeals a jury verdict is advisory, and it is for the court to decide the case. In re Look, Appellant, 129 Me. 359, 152 A. 84 (1930). Rule 39(c) already provides that the court may try * [Field, McKusick & Wroth noted: “By a December 31, 1967, amendment discovery by

depositions and interrogatories is permitted on "money issues" as in other actions. See Advisory Committee's Note . . .” 2 Field, McKusick & Wroth, Maine Civil Practice at 268 (2d ed. 1970).

any issue with an advisory jury in all actions not triable of right by a jury. This would apply in an action for divorce. Sections 62 to 65-A [now 19 M.R.S.A. §§ 662, 721-723, 725] and 67 to 70 [now 19 M.R.S.A. §§ 663, 724, 751-752] are not affected by this rule. They are largely substantive, and the procedural provisions seem to fit satisfactorily into the pattern of the rules.

RULE 80A. REAL ACTIONS (a) Applicability. Writs of entry are abolished, and these Rules of Civil Procedure shall govern the procedure in real actions including actions in the District Court to quiet title to real estate under 14 M.R.S.A. §§ 6651-6658 and 36 M.R.S.A. § 946, except as otherwise provided in this rule. (b) Commencement of Action; Service. An action to recover any estate in fee simple, in fee tail, for life, or for any term of years shall be commenced by complaint and service of summons as in other civil actions. (c) Complaint. The demanded premises shall be clearly described in the complaint. The plaintiff shall declare on the plaintiff’s own seizin within 20 years then last past, without naming any particular day or averring a taking of the profits, and shall allege a disseizin by the defendant. The plaintiff shall set forth the estate which the plaintiff claims in the premises, but if the plaintiff proves a lesser estate than the plaintiff has alleged, amendment may be made to conform to the proof and judgment ordered accordingly. The plaintiff need not state in the complaint the origin of the plaintiff’s title, but the court may, on motion of the defendant, order the plaintiff to file a statement of the plaintiff’s title and its origin. The complaint shall include any claim against the defendant for damages which have accrued at the time of commencement of the action for the rents and profits of the premises or for any destruction or waste of the buildings or other property for which the defendant is by law answerable. (d) Answer. All defenses shall be made by answer as in other actions. The defendant may defend for a part only of the premises, and when for a part only, it shall be described in the answer with like certainty as is required in the complaint. If the defendant defends for a part only, the plaintiff shall, subject to the provisions of Rule 54(b), have judgment against the defendant on the pleadings for recovery of possession of the part not defended. If the defendant by answer alleges that the defendant has been in possession of a tract of land lying in one body for 6 years or more before the commencement of the action, that only part of it is demanded, and that the plaintiff has as good a title to the whole as to such part, proof of that fact shall defeat the action unless the complaint is amended so as to include the whole tract, which the court may allow without costs. A defendant not in possession of the premises when the action was commenced may defeat the action by disclaiming in the answer any right or title to the premises.

(e) No Abatement by Death or Intermarriage. No real action shall be abated by the death or intermarriage of either party after it has been commenced. The court shall proceed to try and determine such action, but only after such notice as the court orders has been given to all persons interested in his estate. (f) Judgment. The judgment shall declare the estate, if any, in all or in any part of the demanded premises to which the plaintiff is entitled; and if the plaintiff shall recover judgment for title and possession of all or any part of the demanded premises, the court may order one or more writs of possession to issue in accordance with law. If either party dies before a writ of possession is executed or the action is otherwise disposed of, any money payable by the defendant may be paid by the defendant, the defendant’s executor or administrator, or by any person entitled to the estate under the defendant, to the plaintiff, or the plaintiff’s executor or administrator with the same effect as if both parties were living. The writ of possession shall be issued in the name of the original plaintiff against the original defendant, although either or both are dead; and when executed, it shall enure to the use and benefit of the plaintiff, or of the person who is then entitled to the premises under the plaintiff, as if executed in the lifetime of the parties. (g) Foreclosure of Mortgage. An action under this rule may be used for the purpose of the foreclosure of a mortgage of real estate as provided by law.


Real actions are suits of a civil nature and so within the coverage of these rules, but here also a separate rule seems required. There is no intention to change present practice except in the specific respects referred to in this Note. There is no comparable federal rule. Subdivision (a) abolishes writs of entry and states that these rules shall apply to real actions unless otherwise provided. Subdivision (b) provides that a real action shall be commenced by complaint and service of summons as in other civil actions. The special provisions for service in R.S. 1954, Chap. 172, Sec. 1 (amended in 1959) [now 14 M.R.S.A. § 6701] are omitted. Rule 4 seems adequately to cover the problem. The words "of freehold", which were in the statute, are omitted from the rule and the 1959 amendment of the statute because estates for years are not estates of freehold.

Subdivision (c) is a combination of R.S.1954, Chap. 172, Sec. 21 (description of premises), Sec. 2 (declaration of seizin and disseizin), Sec. 3 (setting forth of estate claimed), and Sec. 11 (recovery of damages in same action). These sections were repealed in 1959. The addition to the third sentence is designed to change the law. It appears that the effect of Sec. 4 and Sec. 8 of Chap. 172 (amended in 1959) [now 14 M.R.S.A. §§ 6901-6902] is that a plaintiff who proves a lesser estate than he has alleged can get no relief whatever. The rule allows amendment to conform to the proof in such a case. Probably such an amendment would be possible in any event because Rule 15(b) is made generally applicable by subdivision (a) of this rule, but since it is contrary to the wording of the existing statute, a specific statement seems desirable. Actually it appears that under present practice an amendment may be allowed. Parker v. Murch, 64 Me. 54 (1874). The final sentence is broader than Sec. 11 (repealed in 1959), which seems to make the inclusion of a claim for damages permissive only; but it reflects the case law. Bemis v. Diamond Match Co., 128 Me. 335, 147 A. 417 (1929). The wording is designed to make it clear that a separate action for mesne profits or for damage to the premises may still be brought against a third person, as stated in Sec. 15 (amended in 1959) [now 14 M.R.S.A. § 6955], Bemis v. Diamond Match Co., supra, or against the defendant for damages accruing after the commencement of the real action. Larrabee v. Lumbert, 36 Me. 440 (1853). Subdivision (d) makes it clear that defenses hitherto in abatement are now to be included in the answer. The second and third sentences are intended to correspond to R.S.1954, Chap. 172, Secs. 6 and 22 (both amended in 1959) [now 14 M.R.S.A. §§ 6801 and 7052], with the added provision for a separate judgment, subject to Rule 54(b), for the part of the premises not defended. The fourth sentence is a paraphrase of the last sentence of Sec. 21 (repealed in 1959), and is not intended to change the practice. The fifth sentence is also taken from Sec. 6 (amended in 1959) [now 14 M.R.S.A. § 6801]. Subdivision (e) is taken from R.S.1954, Chap. 172, Sec. 16 (repealed in 1959). The change in wording to the effect that the trial shall proceed "only after such notice" is to emphasize the result of Butts v. Fitzgerald, 151 Me. 505, 121 A.2d 364 (1956). Subdivision (f) incorporates that part of R.S.1954, Chap. 172, Sec. 18 (amended in 1959) [now 14 M.R.S.A. § 6704], which provides for a writ of possession. The words "judgment for title and possession" do not appear in the

statute, but are taken from the form of Execution for Possession. This subdivision includes the substance of R.S.1954, Chap. 172, Secs. 39 and 40 (repealed in 1959). The addition of subdivision (g) is to make clear that a real action may be used in the foreclosure of a mortgage of real estate. Public Laws of 1959, c. 317 amended R.S.1954, Chap. 172, to substitute the word "plaintiff" for "demandant", and to use the word "defendant" to refer to the defending party. These changes, both conform to the terminology of the rules and serve to clear up the inconsistent senses in which the word "tenant" was used in the statute. Perhaps some reference to the parts of the statute not incorporated in the rule is desirable. R.S.1954, Chap. 172, Secs. 4 and 8 [now 14 M.R.S.A. § 6901–6902] deal in large part with what the demandant must prove in order to win his case. To that extent they are substantive, and will remain unaffected by the rule. The procedural aspects have been changed, as discussed above. Similarly, Secs. 5 and 7 [now 14 M.R.S.A. §§ 6702, 6802] are substantive, and hence excluded. Section 9 [now 14 M.R.S.A. § 6751] is also excluded. Insofar as it allows joinder or severance in an action of this sort, it is procedural, but in the light of Clarke v. Hilton, 75 Me. 426, holding that a tenant in common suing alone can recover only his own proportion of the estate, it has substantive overtones. It is not superseded or otherwise affected by these rules. Sections 12 and 14 [now 14 M.R.S.A. §§ 6952, 6954] are obviously substantive and unaffected by the rule. The second paragraph of Sec. 18 [now 14 M.R.S.A. § 6704] is thought to be incorporated into subdivision (f) by the words "in accordance with law," insofar as it deals with what the clerk shall do, and the Court is not empowered to touch what the register of deeds shall do. Section 20 [14 M.R.S.A. § 6956] in setting forth when betterments shall be allowed is substantive. The subsequent detailed treatment of valuation of betterments, election of the demandant to abandon, and the like are largely substantive, and to the extent that they include procedural points they are unaffected by the rules.

RULE 80B. REVIEW OF GOVERNMENTAL ACTION

(a) Mode of Review. When review by the Superior Court, whether by appeal or otherwise, of any action or failure or refusal to act by a governmental agency, including any department, board, commission, or officer, is provided by statute or is otherwise available by law, proceedings for such review shall, except to the extent inconsistent with the provisions of a statute and except for a review of final agency action or the failure or refusal of an agency to act brought pursuant to 5 M.R.S.A. § 11001 et seq. of the Maine Administrative Procedure Act as provided by Rule 80C, be governed by these Rules of Civil Procedure as modified by this rule. The complaint and summons shall be served upon the agency and all parties in accordance with the provisions of Rule 4, but such service upon the agency shall not by itself make the agency a proper party to the proceedings. The complaint shall include a concise statement of the grounds upon which the plaintiff contends the plaintiff is entitled to relief, and shall demand the relief sought. No responsive pleading need be filed unless required by statute or by order of the court, but in any event any party named as a defendant shall file a written appearance within the time for serving an answer under Rule 12(a). Leave to amend pleadings shall be freely given when necessary to permit a proceeding erroneously commenced under this rule to be carried on as an ordinary civil action. (b) Time Limits; Stay. The time within which review may be sought shall be as provided by statute, except that if no time limit is specified by statute, the complaint shall be filed within 30 days after notice of any action or refusal to act of which review is sought unless the court enlarges the time in accordance with Rule 6(b), and, in the event of a failure to act, within six months after expiration of the time in which action should reasonably have occurred. Except as otherwise provided by statute, the filing of the complaint does not stay any action of which review is sought, but the court may order a stay upon such terms as it deems proper. (c) Trial or Hearing; Judgment. Any trial of the facts where provided by statute or otherwise shall be without jury unless the Constitution of the State of Maine or a statute gives the right to trial by jury. The judgment of the court may affirm, reverse, or modify the decision under review or may remand the case to the governmental agency for further proceedings. (d) Motion for Trial; Waiver. If the court finds on motion that a party to a review of governmental action is entitled to a trial of the facts, the court shall order a trial to permit the introduction of evidence that does not appear in the record of governmental action and that is not stipulated. Such motion shall be filed within 30 days after the complaint is filed. The failure of a party to file said motion shall

constitute a waiver of any right to a trial of the facts. Upon filing of a motion for trial of the facts, the time limits contained in this rule shall cease to run pending the issuance of an appropriate order of court specifying the future course of proceedings with that motion. With the motion the moving party shall also file a detailed statement, in the nature of an offer of proof, of the evidence that the party intends to introduce at trial. That statement shall be sufficient to permit the court to make a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate under this rule and if so to what extent. After hearing, the court shall issue an appropriate order specifying the future course of proceedings. (e) Record. Except where otherwise provided by statute or this Rule, it shall be the plaintiff’s responsibility to insure the preparation and submission to the Superior Court of the record of the proceedings of the governmental agency being reviewed. Except where otherwise provided by this Rule, the record for review shall be submitted at the same time as or prior to the plaintiff’s brief. Where a motion is made for a trial of the facts pursuant to subdivision (d) of this Rule, the moving party shall be responsible to insure the preparation and submission of the record to the court and such record shall be submitted with the motion. The parties shall meet in advance of the time for filing the plaintiff’s brief to agree on the record to be submitted. Where agreement cannot be reached, any dispute as to the record shall be submitted to the court. The record shall include the application or other documents that initiated the agency proceedings and the decision and findings of fact that are appealed from, and the record may include any other documents or evidence before the governmental agency and a transcript or other record of any hearings. In lieu of an actual record, the parties may submit stipulations as to the record; however, the full decision and findings of fact appealed from shall be included. (f) Review Limited to Record. Except where otherwise provided by statute or by order of court pursuant to subdivision (d) hereof, review shall be based upon the record of the proceedings before the governmental agency. (g) Time for Briefs and Record. Unless otherwise ordered by the court, all parties to a review of governmental action shall file briefs. The plaintiff shall file the plaintiff’s brief within 40 days after the date on which the complaint is filed. Any other party shall file that party’s brief within 30 days after service of the

plaintiff’s brief, and the plaintiff may file a reply brief 14 days after last service of the brief of any other party. However, no brief shall be filed less than 6 calendar days before the date set for oral argument. On a showing of good cause the court may increase or decrease the time limits prescribed in this subdivision. (h) Consequence of Failure to File. If the plaintiff fails to comply with subdivision (e) or (g) of this rule, the court may dismiss the action for want of prosecution. If any other party fails so to comply, that party will not be heard at oral argument except by permission of the court. (i) Joinder With Independent Action. If a claim for review of governmental action is joined with a claim alleging an independent basis for relief from governmental action, the complaint shall contain a separate count for each claim for relief asserted, setting forth in each count a concise statement of the grounds upon which the plaintiff contends the plaintiff is entitled to relief and a demand for the relief sought. A party in a proceeding governed by this rule asserting such an independent basis for relief shall file a motion no later than 10 days after the filing of the complaint, requesting the court to specify the future course of proceedings, including the timing of briefs and argument and the scope and timing of discovery and other pretrial proceedings including pretrial conferences. Upon the filing of such a motion, the time limits contained in this rule shall cease to run pending the issuance of an appropriate order of court. After hearing, the court shall issue such order. (j) Discovery. In a proceeding governed by this rule, discovery shall be allowed as in other civil actions when such discovery is relevant either to the subject matter involved in a trial of the facts to which the discovering party may be entitled or to that involved in an independent claim joined with a claim for review of governmental action as provided in subdivision (i) of this rule. No other discovery shall be allowed in proceedings governed by this rule except upon order of court for good cause shown. (k) Pretrial Procedure. In the absence of a court order, the pretrial procedure of Rule 16 shall not be applicable to a proceeding governed by this rule. (l) Scheduling of Oral Argument. Unless the court otherwise directs, all appeals shall be in order for oral argument 20 days after the date on which the responding party’s brief is due or is filed, whichever is earlier. The parties may, by agreement, waive hearing and submit the matter for decision on the record and the briefs. The clerk of the Superior Court shall schedule oral argument for the first

appropriate date after an appeal is in order for hearing, and shall notify each counsel of record or unrepresented party of the time and place at which oral argument will be heard. (m) Review by the Law Court. Unless by statute or otherwise the decision of the Superior Court is final, review by the Law Court shall be by appeal or report in accordance with the Maine Rules of Appellate Procedure, and no other method of appellate review shall be permitted. If the Superior Court remands the case for further proceedings, all issues raised on the Superior Court’s review of the governmental action shall be preserved in a subsequent appeal taken from a final judgment entered on review of such governmental action.


Subdivision (n), a transition provision governing actions filed before adoption of the revised rule in 1981 is eliminated as no longer necessary.


Rule 80B(m) is amended to clarify that an order of remand from the Superior Court to the governmental agency is not a final judgment from which an appeal lies, absent special circumstances. The amendment is not intended to change the law governing final judgments, moot issues or the preservation of issues for appeal. The amendment simply makes clear that in the ordinary case, an order of remand is not appealable and, to the extent that issues have been properly preserved throughout the course of the proceedings and are ripe for appeal when the remanded issues have been decided, the appeal from the final judgment preserves issues raised prior to the remand.


Rule 80B(e) is amended to provide that a motion for trial of the facts in the Superior Court on an appeal under the rule must be accompanied by the record of the proceedings below. The purpose of the amendment is to insure that both the opposing party and the court have the opportunity to assess the need for a trial of the facts when the motion is presented.

A similar amendment is simultaneously being made to M.R. Civ. P. 80C(e).


Rule 80B(1) is amended to make clear that, after the briefing of an administrative appeal to the Superior Court is completed, scheduling for oral argument is automatic and is initiated by the clerk. The new language replaces a sentence which implied that scheduling was at the discretion of the parties. The change parallels M.R. Civ. P. 75C(a).

Advisory Committee's Notes To February 15, 1983 Order Amending Rule 80B

Rule 80B is amended simultaneously with the promulgation of Rule 80C. The two rules will now provide separate procedural paths for judicial review of local government agencies and for review of state administrative agencies subject to the Maine Administrative Procedure Act. The present amendments also contain a number of changes refining and carrying further the August 1981 amendments of Rule 80B. Rule 80B(a) as most recently amended effective February 1, 1983, is further amended to except from the provisions of the rule proceedings to review administrative action or inaction brought pursuant to 5 M.R.S.A. § 11001 et seq. of the Administrative Procedure Act (APA). Such proceedings will now be covered by new Rule 80C. See Advisory Committee's Note to that rule. Rule 80B will continue to serve as the means for review of all other governmental action, consisting primarily of the decisions of municipal zoning and planning boards and other local agencies. A separate rule has been established for APA appeals because of the extensive role of statutory provisions in such appeals and because of wide variations in procedure and the generally greater degree of informality in local administrative proceedings. To the extent possible, consistent with those differences, the procedure provided by Rule 80B is parallel to that now established in Rule 80C. It may be anticipated, however, that experience with the two rules as presently promulgated will lead to future amendments recognizing the differing procedural needs of the two types of proceedings. The amendment to Rule 80B(a) makes one further change. Consistent with language in Rule 80C(a), the amendment provides that the Rules of Civil Procedure govern administrative review under this rule "except to the extent

inconsistent with the provisions of a statute." This change from the former language, "except as otherwise provided by statute," is intended to emphasize that Rule 80B controls except in the case of direct functional clash between a statutory and a rule provision. Rule 80B is not ousted by the mere existence of a statutory provision covering review of a particular agency if there is no actual inconsistency between rule and statute. For cases of administrative action or inaction within the newly limited scope of Rule 80B, Rule 80B(a) continues to provide that the rule is the exclusive procedural route for seeking any form of judicial review, whether the right to review is one "provided by statute" or is one "otherwise available by law." Many actions of local governmental agencies are reviewable under a wide variety of separate statutory provisions. For many other actions of such agencies, review "otherwise available by law" is review in the nature of that formerly available under common-law extraordinary writs such as certiorari, mandamus, or prohibition, adapted to current conditions. See generally, 2 Field, McKusick, and Wroth, Maine Civil Practice §§ 80B.1–2, 81.9-11 (2d Edn. 1970; Supp.1981); Advisory Committee's Notes to 1967 amendments of Rules 80B and 81, id. at 305-306, 326-329; Diesel and Carter, "M.R.Civ.P. 80B: A Procedural Vehicle for Judicial Intervention in Governmental Agency Action, in Maine State Bar Association CLE Program, Lawyering Within the Administrative Process 21, 28–33 (1982). (Of course, a plaintiff who seeks relief other than "review" of administrative action, or for whom "review" is not an adequate remedy, may have an independent action at law or in equity against the agency or its members. See further discussion in connection with amendment of Rule 80B(i) below). The determination of when review is "otherwise available by law" remains a difficult one despite more than 15 years of practice under this provision, first adopted by amendment of Rule 80B in 1967. If the review sought is not "provided by statute," or if applicable statutory review provisions do not provide an adequate or complete remedy, appropriate review is "otherwise available by law" under Rule 80B if it is within either (1) the traditional scope of review of one of the extraordinary writs as determined by the direct application of prior authority delineating that scope of review in cases comparable to that before the court; or (2) a common-law extension of the scope of review of one of the extraordinary writs to a case not previously held to be within it. In determining whether to make such an extension, the court must address the basic policy question whether nonstatutory judicial review of executive action in the particular situation is appropriate in light of the necessary deference which a reviewing court must show, both to the proper scope to be allowed to executive action in its own sphere and to the intention of the

legislature in setting up the statutory scheme under which the executive agency operates. This deference, if not mandated by constitutional separation-of-powers principles, at least reflects a rule of judicial restraint that is an extension of those principles. Regardless of whether review is statutory or nonstatutory, the court under Rule 80B has a broad range of remedies at its command. Thus, if statutory review is sought, the court may not only reverse and remand the matter for further consideration by the agency; it may, by incorporation of applicable provisions of the rule, grant a full range of injunctive or declaratory relief. The nonstatutory remedies in the nature of mandamus and prohibition are, in effect, mandatory and prohibitory injunctions, and declaratory relief is available as an alternative or adjunct to them. When appropriate, these forms of relief may be combined in one judgment without formal pleading or amendment. See 2 Field, McKusick, and Wroth, supra, §§ 80B.1, 80B.2; Diesel and Carter, supra, at 46-47. Rule 80B(d) is amended to clarify the procedure by which a trial of the facts may be obtained. Under the amendment, the court must order a trial if it finds on motion that a party is en-titled to one. The time for filing a motion for trial of the facts is also changed by the amendment to run from the filing of the complaint rather than the filing of briefs, because under the simultaneous amendment of Rule 80B(g) the court may relieve a party of the obligation to file a brief in a particular case. Sub-division (d) is further amended to correct the inadvertent omission of the catch-line title and two words in the promulgation of the August 1981 amendments. Rule 80B(g) is amended to make explicit the intention of the August 1981 amendments that briefs be required in all Rule 80B proceedings unless the court otherwise orders. Rule 80B(i), providing a specific procedural format for actions in which claims for Rule 80B review are joined with so-called "independent actions," is new. Such joinder has always been appropriate under Rule 18. See 2 Field, McKusick, and Wroth, supra, § 80B.2, at n. 24. This unlimited right to joinder has begun to cause problems in recent years as it has become common for a party challenging administrative action not only to bring a complaint for review under Rule 80B but to allege in the complaint an independent basis for relief. Such actions allege that they are brought pursuant to Rule 80B and also allege private common-law or statutory causes of action. If an independent action is joined with an action under Rule 80B, the court may be called upon to act both in an appellate

capacity, reviewing the agency record with respect to the Rule 80B claim, and as a court of original jurisdiction, taking evidence in the independent action. On occasion a court may be asked to review the same governmental action in both capacities. Considerable confusion concerning how the court should proceed has arisen under this practice. In the first place, the developing case law has left some doubt as to when an "independent action" does in fact lie. Fisher v. Dane, Me., 433 A.2d 366 (1981), and Colby v. York Co. Commissioners, Me., 442 A.2d 544 (1982), indicate that such an action is available only when review will not raise all issues involved or will not provide an adequate remedy. Moreover, the question is not what relief the plaintiff has actually claimed under Rule 80B, but whether under any construction of the rule the issues raised in the independent action could be litigated and the relief sought could be granted under Rule 80B, whether by statute or on some basis analogous to the former extraordinary writs discussed above under Rule 80B(a). See also Thomas v. Amoroso, Me., 451 A.2d 898 (1982). Yet, in Paradis v. School Administrative District, Me., 446 A.2d 46 (1982), a teacher was allowed to bring an independent action for damages for breach of contract against a school board even though the claim necessarily involved "review" of board action eliminating her position, because the Law Court found that her claim had an independent legal basis. See also Ward v. School Directors, Maine School Administrative District No. 56, Me., 384 A.2d 681 (1978) ; see generally, 2 Field, McKusick, and Wroth, supra, § 80B.2; Diesel and Carter, supra, at 34-40. Given the doubt as to when an independent action lies, it is not surprising that problems have arisen in the pleading and trial of actions in which independent claims have been joined with Rule 80B claims. If the independent claim has not been properly pleaded, it may be ignored by the parties and the court altogether or until late in the proceeding. See Flynn v. Maine Employment Security Commission, Me., 448 A.2d 905 (1982). Even when the claim is pleaded correctly at the outset or added by amendment, confusion may arise as to the scope of discovery, the course of pretrial proceedings, the order of trial, and the scope of the judgment.

Failure to be aware of the relationship between a Rule 80B claim and an independent action may cause more serious problems. An action brought after the 30-day time for appeal provided by Rule 80B(b) has expired, though in form cast as an in-dependent action, will be time-barred unless it is truly independent under the analysis suggested by Fisher, Colby, and Paradis. Further, a separate action that is not truly independent may be barred by res judicata principles of claim preclusion if it arises out of the same transaction or series of transactions as the

Rule 80B claims and even a truly independent action may be affected by doctrines of issue preclusion (collateral estoppel) whether or not the claims are joined. See Restatement (Second) of Judgments §§ 24–28 (1982); cf. Beegan v. Schmidt, 451 A.2d 642 (1982).

To address the procedural concerns described above, Rule 80B(i) provides that when a Rule 80B claim is joined with an independent claim the claims must be separately pleaded in counts complying with the specificity requirements of Rule 80B(a). The party asserting such claims must file a motion for a procedural order, so that both the parties and the court will focus on the separate independent claim. After hearing, unless the court finds that the alleged independent claim is not truly independent, it will issue an appropriate order governing the future proceedings to prevent confusion concerning the capacity in which the court is acting. In fashioning an appropriate order, a range of options is available to the court, including severance of the independent count for trial under Rule 42(a). Note that order of trial in a joined proceeding may be critical because determination of any issues of fact for the claim first tried may be binding on the second claim as a matter of issue preclusion. If there is a right to jury trial upon the independent claim, that trial accordingly must be held first in order to preserve the right. Cf. 1 Field, McKusick, and Wroth, supra, § 38.2. Rule 80B(j) is added to clarify the use of discovery when factual issues are to be tried, either as part of Rule 80B review under Rule 80B(d) or incident upon trial of an independent claim under Rule 80B(i). In such cases, discovery "relevant to the subject matter" involved in the evidentiary hearing may be had as in other actions. This standard, taken from Rule 26(a), is intended to prevent the use of joinder as a means of obtaining discovery for a fishing expedition or for harassment. As in other actions, protective orders are available to prevent abuse. Note, however, that in a Rule 80B(d) situation, the discovering party need not first establish the right to a trial. The standard is that he "may be entitled" to such a trial, which means simply a prima facie showing of entitlement if discovery is challenged by motion for a protective order. In actions other than those involving factual hearings under Rules 80B(d) or (i), discovery may be had only upon a showing of good cause. Rule 80B(k) is added to make clear that proceedings under Rule 80B are excepted from the requirements of Rule 16 concerning pre-trial proceedings. The procedures of Rule 16 will normally be unnecessary for cases limited to a review of an agency record, unless the court issues an order permitting the introduction of

additional evidence under subdivision (d) or when an independent claim is joined under subdivision (i). Former subdivisions (i) and (j) are renumbered as subdivisions (1) and (m) respectively. New Rule 80B(n) provides a mechanism for implementing the August 7, 1981, amendments to Rule 80B earlier than would be possible under Rule 86(b), which provides that amendments to rules shall affect pending actions only if application of the amendments would be feasible.


Rule 80B(a) is being amended in two respects. First, the rule has been clarified to indicate that an agency is not made a party to an action merely by being served. Second, the rule is amended to reinsert a final sentence which was inadvertently omitted in the 1976 Maine Rules of Court Pamphlet. The omission was carried forward in the subsequent edition of the rules pamphlet and in the 1977 and 1980 supplements to Maine Civil Practice.


[Rule 80B(d)] This amendment creates a new procedure for Rule 80B actions where a trial of the facts is appropriate. It requires that the party seeking to introduce new evidence justify his demand for a trial of the facts at a hearing before the court. This amendment requires that a party seeking to add facts to the existing record file a motion to do so. With the motion, the party shall be required to file an offer of proof. The court should then decide what evidence, if any, is appropriate to be heard in a trial on the facts. The court’s action would, of course, be subject to any requirements of the statute or law under which review is sought, e.g., 5 M.R.S.A.

§ 11006 of the Administrative Procedure Act, which limits a court’s ability to go outside the record in state agency reviews. In fashioning an appropriate order for proceeding, a wide range of options would be available for the trial judge. These include (a) combining the factual matters with the matters in which the court is sitting as an appellate court; (b) severing the matters and sitting as an appellate court in a separate proceeding from the matters which the Superior Court is being asked to try on the facts, (c) treating the matter as any other Superior Court action and thereafter ordering it scheduled for pretrial conference; or (d) remanding to the agency to take further evidence. It should be noted that in some cases where facts outside the record below are required, the party may stipulate agreement to those facts. In such instances, the matter would be heard in accordance with normal Rule 80B procedures as amended herein. The Maine Administrative Procedure Act basically assures that nearly all state agency decisions subject to Rule 80B review will include findings of fact and be based upon a record. For municipalities, the Freedom of Access Law, 1 M.R.S.A. § 401 et seq. requires public hearings, 1 M.R.S.A. § 402, and written decisions articulating reasons for decisions on permit applications, 1 M.R.S.A. § 407. Thus, it is far more likely today that there will be a formal record of municipal decisions for the Superior Court to review than has been true, even in the recent past. Rule 80B(d), (e), (f ), (g), (h) and (i). These amendments specify procedure for a Rule 80B matter which the Superior Court is hearing in its appellate capacity. The new subdivision (e) specifies that review will be on the record and makes the plaintiff responsible to prepare and submit the record except as 230 otherwise provided by statute or law. In effect, this generally places responsibility on the plaintiff for preparing the record for review of municipal decisions. Record preparation for most state actions reviewed under Rule 80B is governed by 5 M.R.S.A. § 11005 requiring that the state agency prepare and file the record for review. Section 11005 also specifies the contents of the record to be filed and the time when the state agency record is to be filed.

Because of the varying circumstances regarding a record which are likely to exist at the municipal level, the procedures for submission of the record are necessarily general. As under present case law, the plaintiff or party seeking review is held responsible to assure that an adequate record is filed. However, the parties are required to meet to prepare the record. Where the parties cannot agree what should and what should not be in the record, then the matters in disagreement should be submitted. Any party which believes he may be unduly burdened by the demands of another party for inclusion of materials in the record could, as presently, petition the court for relief. Further, a party unduly burdening the record could be assessed costs at the end of the proceeding. The record must include the application, notice of hearing or other document which initiated the agency proceeding and the decision and findings of fact of the agency. It may include any other documents before the agency and a transcript of all or portions of any hearing. In lieu of a transcript, it may include minutes or such other record of the agency hearing as is available. While this procedure may not be as precise a record preparation procedure as comports with ideal appellate practice, it would seem to be made necessary by the relative variety of municipal record keeping processes which will be encountered. In lieu of an actual record, parties are allowed to stipulate to a record. Subdivision (f) establishes the scope of review for Rule 80B appeals, again when not otherwise provided by statute such as 5 M.R.S.A. § 11007. Basically, as with review of District Court decisions, the Superior Court would have authority for complete review of the law and limited review of the facts to determine if the facts found were clearly erroneous or unsupported by the evidence. Under subdivision (g) the time for filing of briefs is made identical to the time limit set for civil appeals to the Law Court and, by the simultaneous amendment of D.C.C.R. 75(a), for appeals from District Court. The court is allowed to increase or decrease the time for filing upon a showing of good cause. Subdivisions (h) and (i) track Rule 75(c) and (d) in the present civil appeals rules. However, the present rules do recognize that the parties may, by agreement, waive hearing and submit the matter to the court on the briefs, and the time in which the matter can be in order for hearing is reduced to 20 days.


A problem has arisen from the fact that this rule [80B(a)] as promulgated dispensed with the need of a responsive pleading unless required by statute or by order of the court. In these circumstances there is no way to get a default judgment in a Rule 80B action. This amendment resolves the problem by requiring a written appearance within the time for serving an answer under Rule 12(a.). Rule 12 does not require a formal appearance in the ordinary case. See Field, McKusick, and Wroth, Maine Civil Practice § 12.2 (2d ed. 1970). It seems justified in this situation where no responsive pleading need be filed and there is no way to determine whether a defendant wants to participate in the review proceeding unless some action on his part is required. Compare Rule 80(d). There is no set form for the appearance. All that is required is a letter or statement signed by counsel or the party, sufficient to apprise the clerk and other parties of the fact of appearance. Failure to file an appearance will be a failure to "otherwise defend," resulting in the entry of default under Rule 55(a).


This amendment [to 80B(c)] makes clear that the Superior Court in reviewing governmental action has a broad range of options in shaping the relief granted. Because of the inadequacy of the record made before the governmental body, it may be appropriate for the Superior Court to remand the case for further proceedings. This procedure has been used by the Law Court in a case on report. See Cumberland Farms Northern, Inc. v. Maine Milk Commission, 234 A.2d 818, 823 (Me.1967). See also the earlier remand by a Superior Court justice in the same case (id. at 819). Thus the amendment serves only to recognize in the rule a practice already existing.


The amendments to Rule 80B(a), in conjunction with those to Rule 81, are intended to make the simplified procedures of Rule 80B the sole means of judicial review of action by all governmental agencies except those for which the legislature has expressly made a different provision. In Carter v. Wilkins, 160 Me. 290, 203 A.2d 682 (1964), and First Mfrs. Nat. Bank v. Johnson, 161 Me. 369, 212 A.2d 840 (1965), the Law Court made clear that even where there were no prior

authorities permitting review on certiorari or mandamus in the precise circumstances then before the court, such review was "heretofore available by extraordinary writ" and thus appropriate under Rule 80B as it then stood if the writ were available as a matter of substantive law. See Field and McKusick, Maine Civil Practice § 80B.1 (Supp.1967). The amended language providing that the Rule applies when review "is provided by statute or is otherwise available by law" is intended to incorporate the results of those cases by making the provisions of Rule 80B uniformly applicable to statutory review measures and to means of review based on the former extraordinary writs. In addition, the rule will apply to such other nonstatutory means of review as the courts, in light of the abolition of the extraordinary writs as procedural devices in the amendments to Rule 81, may now feel free to develop, unfettered by the rigid confines of prohibition, certiorari, and mandamus. The addition of the language “or failure or refusal to act” is intended to incorporate the practical effect of the decision in First Mfrs. Nat. Bank that ”review” under Rule 80B includes mandamus to compel action. See Field and McKusick, Maine Civil Practice § 80B.l (Supp.1967). The provisions in Rule 80B(a) for service of summons and complaint under Rule 4 and for free amendment if an action is erroneously brought under Rule 80B are intended to obviate procedural confusion. It may occasionally be difficult to differentiate between proceedings under this rule and an ordinary civil action an agency, such as a suit for injunctive relief. In such cases, if the plaintiff has erroneously proceeded under Rule 80B but has some other valid right against the defendant, the action need not be dismissed. Jurisdiction will have been obtained in full compliance with Rule 4, and the amendment provisions will permit both parties to revise their pleadings in any way dictated by the altered circumstances. The amendments to Rule 80B(b) provide a flexible time limit for review of a failure to act, since there is no precise event from which a limitation in such a case may run. In addition, the former provision for written notice is eliminated in light of the incorporation of the service requirements of Rule 4 in Rule 80B(a), and a provision for stay of the action being reviewed is added. Cf. 5 M.R.S.A. § 2451(3). Other desirable features of the former practice under the extraordinary writ statutes are duplicated by existing provisions of the Rules made applicable generally by an amendment to Rule 80B(a). See Advisory Committee’s Note to Rule 81. Since Rule 80B(a) as amended makes these Rules of Civil Procedure generally applicable, the provision of Rule 80B(c) making them applicable to trials is no longer necessary.

The last sentence of Rule 80B(d) is deleted as now obsolete or unnecessary. 14 M.R.S.A. § 5452, providing for speedy hearing of appeals in mandamus on written arguments, has been repealed by the 1967 Legislature. (1967 Pub.Laws, Chap. 441, Sec. 7). In the appropriate situation the Law Court may accord the parties a similarly expedited hearing by suspending the rules pursuant to Rule 76a(c). See Advisory Committee’s Notes to Rule 76A(c) and Rule 81(c).


This rule deals with the difficult problem of harmonizing with these rules the review of decisions of administrative agencies and officers. Subdivision (a) provides that all review of administrative action shall be by filing a complaint with the court. Many of the statutes fail to provide any procedure whatever but simply state that "an appeal" may be taken. It seems reasonable that in all these proceedings the aggrieved party should be required to state his grievance, as some of the statutes now provide. Generally there is no statutory requirement for a responsive pleading, and there seems to be no reason for requiring one in the absence of a statutory provision. Several of the statutes provide that the agency shall certify to the court a transcript of the record before it, particularly when the review is on the agency record. It is intended that such requirements be preserved. It is also provided that the court has discretion to order a responsive pleading. There may be situations where this would make for a desirable clarification of the issues. Subdivision (b) specifies that the time within which review may be sought shall be as provided by statute, with the proviso that, when the statute is silent as to time limits, the complaint must be filed within 30 days after the administrative action. The court may, however, enlarge the time on motion. The many statutes fixing the time for seeking review with reference to terms of court were amended in 1959 so as to provide a 30-day time limit, but the statutes providing a shorter or longer time than 30 days were left unchanged. The rule requires that written notice of the claim of review be given to the opposite party, together with a copy of the complaint. The rule does not require the service of a summons as in ordinary civil actions. Subdivision (c) provides that these rules shall govern trial when the review provided by statute calls for a trial. Apparently a trial de novo is the customary

mode of review, although most of the statutes are not explicit on the point. When review is on the agency record (e. g., R.S.1954, Chap. 76, Sec. 13 [Repealed, 1961 Laws, c. 394, § 40; see 5 M.R.S.A. § 2451), obviously there is no occasion to resort to rules governing the trial of facts. The provision for hearing without jury unless otherwise required by the Constitution or a statute is out of an abundance of caution. Subdivision (d) provides that the sole mode of review by the Law Court shall be by appeal in accordance with these rules. This rule does not, of course, cover cases which go directly from the agency to the Law Court, such as public utility cases under R.S.1954, Chap. 44, Sec. 67 [now 35 M.R.S.A. 303] . There is no special provision in the rules governing filing and certifying the record to the Law Court in such eases. It is intended, however, Rule 73(d) and (e) [now Rules 74(o) and (p)] shall by analogy apply as nearly as may be. Rule 76A [now Rules 75-76A], governing proceedings in the Law Court, also governs these cases. It is not intended to alter the practice in reviewing workmen's compensation cases with its pro forma action by the Superior Court, R.S.1954, Chap. 31, Sec. 41 [now 39 M.R.S.A. § 103], as a prelude to review by the Law Court.

RULE 80E. ADMINISTRATIVE INSPECTION WARRANTS (a) Who May Secure. An official or employee of the state or of any political subdivision of the state who is authorized by law to conduct inspections of premises may apply to a District Court Judge, in the division and district in which the property to be inspected is located, for a warrant to inspect particularly described premises for particularly described purposes authorized by law. (b) Contents of Application. The application shall be in the form of a sworn affidavit and shall set forth the following facts: (1) The statutory or other authority pursuant to which the applicant claims to be authorized to conduct inspections, the premises to be inspected, and the purpose of the inspection. (2) Whether such inspection is sought as part of a general area inspection and if so, the area being inspected and the grounds of probable cause to believe that there is located on the property in said area violations of statutes, ordinances, or regulations the applicant is authorized to enforce. (3) If the inspection is not part of a general area inspection, the grounds of probable cause to believe that there is located on the particular premises to be inspected violations of statutes, ordinances, or regulations the applicant is authorized to enforce. (4) That the applicant has requested permission from the owner or occupant of the premises to be inspected to conduct such inspection and that such permission has been denied. (5) That the applicant has at least 24 hours in advance of the presentation of the application given written notice to the owner or occupant of the premises to be inspected of the time and place at which the applicant intends to present the application to the court. (6) The requirements of subdivisions (4) and (5) of this rule may be dispensed with if the application sets forth facts showing probable cause to believe that there are located on the premises to be inspected violations of law which constitute an immediate threat to the health or safety of the public.

(c) Issuance. Upon a finding of probable cause the District Court Judge shall issue a warrant to the applicant, but if the owner or occupant of the premises is present at the time of presentation of the application no warrant shall issue until said owner or occupant has been afforded an opportunity to state any opposition to the issuance of the warrant. (d) Contents. The warrant shall specify the grounds of probable cause, the premises to be inspected, the purpose of the inspection, and the person authorized to conduct the inspection. (e) Execution. The person to whom a warrant is issued shall execute the same by conducting the inspection authorized during normal business hours within 10 days after issuance of the warrant. The person executing the warrant shall at the time of execution deliver a copy thereof to the owner or the occupant of the premises inspected or leave a copy on said premises in a conspicuous place. (f) Return. Not later than 10 days after execution of the warrant the person executing it shall file a return with the court from which the warrant issued setting forth the date and time of the inspection and any violations of law found upon the inspected premises.

RULE 80F. TRAFFIC INFRACTIONS (a) Applicability. These rules shall apply to traffic infraction proceedings in the District Court except as otherwise provided in this rule. (b) Commencement of Proceeding. A proceeding under this rule is commenced by delivery of a copy of a Violation Summons and Complaint completed in the manner prescribed by subdivision (c). Such Violation Summons and Complaint may be: (1) filled out and delivered to defendant personally by any officer authorized to enforce the motor vehicle laws of this state who has probable cause to believe that a traffic infraction has been committed; (2) filled out by any officer authorized to enforce the motor vehicle laws of this state who has probable cause to believe that a traffic infraction has been committed and (A) transmitted to any officer authorized to enforce a statute of this state defining a traffic infraction for delivery to the defendant personally, or

(B) served on the defendant in any manner permitted under Rule 4(c)(4) of the Maine Rules of Criminal Procedure; or (3) filled out by a prosecutor and delivered to the defendant personally or the defendant’s attorney personally if the traffic infraction arises out of the same set of facts which gave rise to another traffic infraction or criminal complaint under the motor vehicle laws of this state. Any Violation Summons and Complaint served as provided in this paragraph (3) may be filed in the Violations Bureau by delivering it to the clerk of the division in which the infraction is alleged to have been committed or in a county in which the criminal complaint is or was pending. The clerk may receive the defendant’s answer and shall send the Violation Summons and Complaint and any answer to the Violations Bureau. The officer delivering the Violation Summons and Complaint shall not take the defendant into custody. Within 5 days after delivery to defendant, the officer shall cause the original of the Violation Summons and Complaint to be filed with the Violations Bureau. No filing fee is required. All proceedings arising under a statute shall be brought in the name of the State of Maine. All proceedings arising under an ordinance shall be brought in the name and to the use of the political subdivision that enacted such ordinance. (c) Content of Violation Summons and Complaint. The Violation Summons and Complaint shall contain the name of the defendant; the time and place of the alleged infraction; a brief description of the infraction; the number of days within which the defendant is to file an answer in writing with the Violations Bureau; and the signature of the officer issuing the ticket and complaint. No other summons, complaint or pleading shall be required of the state, but motions for appropriate amendment of the complaint shall be freely granted. (d) Pleadings of Defendant. (1) Answer. An answer shall be filed with the Violations Bureau within 20 days of the date of service of the Violation Summons and Complaint. The answer shall state that the violation is either contested or not contested and the answer shall be made in writing by the defendant or by defendant’s attorney. (2) No Joinder. Proceedings pursuant to this rule shall not be joined with any actions other than another proceeding pursuant to this rule, nor shall a defendant file a counterclaim.

(3) Not Contested. An answer that a violation is not contested shall not be admissible as an admission in any civil or criminal proceeding arising out of the same set of facts. (4) Judgment on Acceptance of Answer of “Not Contested.” The Violations Bureau clerk may accept an answer of “not contested” to any traffic infraction and assess the fine as set in accordance with a schedule of fines established by the Chief Judge for various categories of traffic infractions. (e) Incomplete Filing. Notwithstanding Maine Rule of Civil Procedure 5(f), the Clerk of the Violations Bureau or the Clerk’s designee, may docket an incomplete filing in a traffic infraction matter for the sole purpose of being able to respond to customer service inquiries. (f) Filed Cases. When the attorney for the State files a traffic infraction complaint, with or without conditions, such filing shall be for a period of 180 days. Filed cases shall be dismissed by the Clerk of the Violations Bureau or the Clerk’s designee at the conclusion of the 180-day period unless the attorney for the State notifies the Bureau within that time period that the case should be set for trial. When the attorney for the State files a traffic infraction complaint, with the condition of payment of costs, the costs must be paid to the Violations Bureau within 30 days of the date of the filing. If the costs are not paid within 30 days, the Violations Bureau shall set the case for trial. (g) Venue; Trial. A traffic infraction proceeding shall be filed in the Violations Bureau and, upon the filing of an answer of “contested,” the Violations Bureau shall transfer the case to the appropriate division of the District Court for trial. Unless otherwise ordered by the court, the trial of a traffic infraction shall be held in the division in which the infraction is alleged to have been committed. If the defendant is adjudicated to have committed the traffic infraction and a fine is imposed by the court, the court shall inform the defendant that immediate payment of the fine in full is required. Immediately upon disposition, the case shall be returned to the Violations Bureau. (h) Discovery. Discovery shall be had only by agreement of the parties or by order of the court on motion for good cause shown. (i) Removal. There shall be no removal of traffic infraction proceedings.

(j) Standard of Proof. Adjudication of a traffic infraction shall be by a preponderance of the evidence. (k) Default. (1) Entry of Default. If the defendant fails to respond within 20 days of the date of service of the Violation Summons and Complaint, or if the defendant fails to appear at trial, the Clerk of the Violations Bureau or the Clerk’s designee shall enter a default judgment and adjudicate that the defendant has committed the traffic infraction alleged. In each case, after entry of default, the Clerk or the Clerk’s designee shall impose the fine from the schedule of fines established by the Chief Judge. (2) Setting Aside the Default. For good cause shown the court may set aside the default and adjudication under M.R. Civ. P. 55 (c) and 60 (b), as applicable. If it is determined that due to the operation of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, a default should not have been entered, all costs shall be stricken, the adjudication vacated, the default stricken, and the defendant permitted an opportunity to answer. (l) Extension of Time to Pay Fines. (1) Failure to Answer or Answer of “No Contest.” If a defendant in a traffic infraction proceeding fails to answer within 20 days of the date of service of the Violation Summons and Complaint or answers “no contest” but does not pay the fine or pays only part of the fine, the Violations Bureau shall send a notice to the defendant, at his/her last known address, that if the fine is not paid in full within 30 days, the defendant’s right to operate a motor vehicle in Maine will be suspended without further notice. If the fine is not paid in full within the 30-day period, the suspension is effective and the Secretary of State shall be notified of the suspension. (2) Contested Infractions. If the traffic infraction case is referred to court because the defendant contested the case and if the defendant changes the answer to “no contest” or if a fine is imposed by the court, the fine must be paid within 30 days of imposition unless the court orders a different payment date. If the fine is not paid in full within 30 days or within the period of time ordered by the court, whichever is longer, the defendant’s right to operate a motor vehicle in Maine is suspended immediately without further notice and the Secretary of State shall be notified of the suspension.

Other than the above, there shall be no extensions of time for payment of a traffic infraction fine. (m) Appeal. A party entitled to appeal may do so as in other civil actions. (n) Costs. Costs shall not be awarded as in other civil actions. Only those costs expressly authorized by statute shall be imposed. (o) Notice of Order or Judgment. The clerk is not required to serve a notice of the entry of an order or judgment on the State or a political subdivision. The clerk is not required to serve a notice of the entry of an order or judgment on the defendant when the defendant, in writing, enters an answer of “not contested” to the traffic infraction or when the defendant, personally or through counsel, appears in court and is informed by the court of the judgment or order.

Advisory Notes July 1, 2005

These amendments to Rule 80F are designed to improve the processing of traffic infraction cases within the Violations Bureau.

1. The amendments to 80F(c) and 80F(d)(1) allow the Violations Summons and Complaint form to be amended to specify that an answer must be filed within 20 days in order to avoid a default. Under current practice, an officer must write in the response date on the summons and complaint. This is unnecessary. The amendment specifies that the form indicate the “number of days” within which a defendant must file an answer to avoid a default and that the answer must be filed within 20 days of service of the summons and complaint. Separately, the default rule, presently 80F(i), but 80F(k), as revised, is being amended to specify the 20-day response time. 2. Subdivision (e) and subsequent subdivisions of Rule 80F are relettered. 3. A new subdivision 80F(e) is added specifying that staff of the Violations Bureau may docket an incomplete filing in a traffic infraction matter in order to be able to respond to customer service inquiries that may be directed to the Violations Bureau before the filing of the violations

summons and complaint is completed by the summonsing officer or department. 4. Subdivision 80F(f) is added to address procedures for dealing with traffic infraction complaints that are filed by the State with or without conditions. To assure that cases are completed in a timely manner, the Violations Bureau is authorized to dismiss filed cases that are not set for trial within 180 days after filing. The amendment also specifies that when a traffic infraction is filed with condition of payment of costs, costs must be paid to the Violations Bureau within 30 days of the date of filing or the case will be reset for trial. 5. The default rule is redesignated as 80F(k). It is changed to indicate that when a defendant fails to respond to a summons within 20 days, the staff of the Violations Bureau shall enter a default and impose the fine according to the fine schedule. When a defendant requests a trial but then fails to appear at trial, the clerk of the District Court at which the trial is to occur, or a member of the Violations Bureau staff, shall enter the default and adjudicate that the defendant has committed the traffic infraction alleged. The clerk or staff member shall than impose the fine from the fine schedule. 6. A new rule 80F(l) is adopted regarding extension of time to pay fines. It specifies the terms under which an extension of time to pay fines may be granted and the procedure for notification of the Secretary of State and suspension of right to operate if the fine is not paid within the requisite time.


In the 2000 Legislative session, 14 M.R.S.A. § 3141(2) was amended to require that, at a defendant’s initial appearance in a traffic infraction proceeding, the defendant is to be informed by the court that if the defendant is adjudicated to have committed the traffic infraction, “and if a fine is imposed by the court, immediate payment of the fine in full is required.” The above amendment to Rule 80F(e) attempts to address that directive in the context of a practice regarding appearances for traffic infractions where the defendant does not appear before the court prior to a requested trial. When the defendant does appear for trial, having transferred the traffic infraction from the

Violations Bureau, it would appear bad form to start the proceedings by the court advising the defendant that, if they are found to have committed the infraction, and if a fine is imposed, immediate payment of the fine is required. Such a statement, in a proceeding explicitly for trial, could be construed by citizens to suggest prejudgment of their case. Such must be avoided to assure that defendants believe that they will get a fair trial. Accordingly, the court should defer advice regarding the payment responsibility for any fine until the trial is completed with an adjudication that the defendant has committed the infraction. This advice would still be given at the defendant’s “initial appearance” but at a time more appropriate in the unique context of an appearance for trial in a traffic infraction.


The amendment to subdivision (i)(2) incorporates references to Rules 55 (c) and 60 (b) to make clear that if an entry of default or an adjudication by default is to be set aside, the procedure of those rules governs.


Rule 80F(b)(3) is amended to make clear the original intent that the paragraph following paragraph (3) applies only to a Violation Summons and Complaint served under paragraph (3). Filing of the Violation Summons and Complaint and the answer in cases where the process is served by an officer is covered by the final separate paragraph of subdivision (b) and by Rule 80F(d)(1). See M.R. Civ. P. 80F(b) advisory committee’s note to Jan. 1, 1992, amend., Me. Rptr., 589-601 A.2d XXXVII.


Rule 80F(b)(2) is amended to eliminate the procedure under which a District Court clerk could fill out and deliver for service a traffic infraction Violation Summons and Complaint if satisfied upon examination of the complainant and any witnesses that a traffic infraction had been committed. This provision was seldom used. It represents an unnecessary step that could impose an undue burden upon clerks who may have difficulty in applying the standard. Under the amended rule, if an officer with probable cause cannot, or does not wish to, make service in person under Rule 80F(b)(1), the officer may either deliver the process to another

traffic enforcement officer for service, or cause it to be served in any other manner appropriate for a criminal summons under M.R. Crim. P. 4(c)(4). Comparable amendments are being made simultaneously in Rules 80H(b) and (c) and 80K(b) and (c).


Rule 80F is amended to implement P.L. 1991, ch. 549, authorizing the Chief Judge of the District Court to establish a violations bureau to process all traffic infraction matters beginning January 1, 1992. Rule 80F(b) is amended to refer to the charging instrument in traffic infraction matters as the Violation Summons and Complaint. The amendment permits service of the complaint either on the defendant personally by an officer with probable cause or by any method of service of a criminal summons under M.R. Crim. P. 4(c)(4). There seems to be no reason to continue the provision of the current rule imposing a stricter requirement for service of a Violation Summons and Complaint than for a summons in a criminal case. Rule 80F(b)(3) is added to permit a Violation Summons and Complaint to be prepared by a prosecutor and filed with the local District Court clerk after service on the defendant or the defendant’s counsel. The purpose of this amendment is to permit the prosecutor freedom in plea bargaining situations. This subdivision is also amended to conform with the statute requiring the officer who serves the Violation Summons and Complaint to file the complaint in the Violations Bureau within 5 days. Rule 80F(c) is amended to require that the defendant’s answer to a Violation Summons and Complaint be filed in writing with the Violations Bureau on or before the date set forth in the complaint. This changes current practice under which the defendant must appear in court personally or by counsel to enter a denial and seek a trial. New Rule 80F(d) omits any reference to oral answers of “admit” and “deny,” substituting written answers of “contested” and “not contested.” The new rule also provides for the answer to be filed with the Violations Bureau. As with the current answer of “admit,” an answer of “not contested” may not be admitted into evidence as an admission in any other civil or criminal proceeding involving the same incident. In Rule 80F(d)(4) “not contested” is substituted for “admit,”

and all reference to a schedule of fines set by the resident judge is eliminated. The latter change is necessitated by P.L. 1991, ch. 549, § 3, amending 4 M.R.S.A. § 164(12). New Rule 80F(e) provides that the place of trial in a contested traffic infraction matter shall be in the division in which the alleged infraction occurred, although the court is given discretion to order that the trial be in another division. It is anticipated that transfers for trial will be authorized in those situations in which the interests of justice will be served by permitting the defendant or the State a more convenient trial location or by permitting the court to group together a number of traffic infraction matters to save administrative expenses. Rule 80F(i) is added as a result of the repeal of 14 M.R.S.A. § 3143, which detailed the procedure to be followed in a situation in which a defendant failed to appear. This repeal was a part of P.L. 1991, ch. 549. The new rule provides a method for disposition of those traffic infraction cases in which the defendant takes no action to answer the summons and complaint or, having answered, fails to appear for trial. It also provides that the defendant will be given the opportunity to answer in the event the defendant’s default should not have been entered because of the applicability of the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.A. App. § 520(4). See 2 Field, McKusick & Wroth, Maine Civil Practice § 55.5 (2d ed. 1970). Rule 80F(l) is amended by adding that notice of the judgment need not be served on a political subdivision that initiated the Violation Summons and Complaint. It also changes the reference from an answer of “admit” to one of “not contested.”

RULE 80G. ACTIONS FOR LICENSE REVOCATION OR SUSPENSION (a) Actions for License Revocation or Suspension. Actions in the District Court under 4 M.R.S.A. § 152(9) seeking revocation or suspension of a license issued by a state licensing agency pursuant to 4 M.R.S.A. § 184 shall be governed by this rule. (b) Complaint and Service of Process. The action shall be commenced by complaint filed in the District Court. The complaint must allege the violation of a cited statute or rule and the relief requested. The complaint and summons shall be served as required by 4 M.R.S.A. § 184. (c) Emergency Revocation or Suspension of License. Upon the filing of a verified complaint or complaint accompanied by affidavits demonstrating an immediate threat to the public health, safety or welfare, the court ex parte may order the temporary revocation or suspension of a license pursuant to 4 M.R.S.A. § 184 (6). The court shall promptly order expedited notice and hearing on the complaint. A temporary order of revocation or suspension shall expire within 30 days of issuance unless renewed after notice and hearing. (d) Trial. Trial of the action shall be as provided in these rules. (e) Judgment. The parties may not dispose of the action by agreement or consent decree without the approval of the court. The court shall make findings of fact and conclusions of law as required by 4 M.R.S.A. § 184(7). Upon entry of judgment, the clerk shall serve each party with a copy of the judgment, including any separate opinion, findings of fact and conclusions of law supporting the judgment, and with a statement describing appellate rights to seek review of the judgment.


Former Rule 80G prescribed the procedure for separate support and custody proceedings. The Rule was abrogated, effective February 15, 1992, since the procedure was superseded by statutory and rule changes. New Rule 80G now prescribes the procedure for actions for license revocation or suspension. P.L. 1999, c. 547, section B-6 enacted 4 M.R.S.A. § 152(9) to confer exclusive jurisdiction upon the District Court for actions to revoke or to suspend licenses issued by certain state licensing agencies, effective March 15, 2001. P.L. 1999, c.

547, section B-10 enacted 4 M.R.S.A. § 184 to prescribe the procedure for such actions. 4 M.R.S.A. § 184(9) provides that the Supreme Judicial Court may adopt rules governing the procedure. New Rule 80G incorporates the explicit requirements for procedure set forth in 4 M.R.S.A. § 184. Consequently, the Rule must be read in harmony with the requirements of the statute. The procedure is simple, but has explicit requirements for the content of the complaint, for expedited hearings, and for entry of judgment or approval of negotiated dispositions. The statutes also contains explicit directions requiring the witnesses be sworn and an “official record” be maintained of the testimony and exhibits (4 M.R.S.A. § 184(3) and (4)), but these requirements are not different from those governing civil trial generally. Consequently, subdivision (d) of the Rule provides that the trial of the action shall be as provided generally for civil trials. P.L. 1999, c. 547, section B-6 also enacted 4 M.R.S.A. § 152(10), governing appeals from disciplinary decisions of occupational licensing boards and commissions. That procedure is prescribed by amendments to Rule 80C promulgated this date.


[Editor’s Note: This Note refers to a version of the Rule when it concerned separate support and custody, abrogated in 1992]. This rule is added to implement the provisions of 19 M.R.S.A. § 304, enacted in 1973, that actions for civil support may be commenced by summons rather than on order of notice under 19 M.R.S.A. § 301 as formerly, and that the Law Court may "prescribe by general rule the procedure" for such actions. The rule thus provides a procedure for willful non-support actions under 19 M.R.S.A. § 301 and for enforcement of the general support obligation under 19 M.R.S.A. §§ 441-452. The rule also includes proceedings for custody and support under 19 M.R.S.A. § 214, because the procedure for such actions is virtually identical to that under § 301. Proceedings under 19 M.R.S.A. § 401 (Uniform Reciprocal Enforcement of Support Act), 19 M.R.S.A. §§ 491-516 (alternative method of support enforcement), and 22 M.R.S.A. §§ 3791-3800 (custody and support of neglected children) are excluded because those statutes contain ample and complex procedural provisions that do not fit the pattern of this rule. See, generally, 2 Field, McKusick, and Wroth, Maine Civil Practice 512-513 (2d ed. 1970).

Rule 81(b)(3), which formerly excluded all separate support actions has been amended to exclude only URESA actions. A comparable Rule 80G has been added to the District Court Civil Rules and a comparable change has been made in D.C.C.R. 81(b). The present rule is numbered "80G" for uniformity of numbering with the District Court Civil Rules, where the numbers 80C-80F have already been used. The latter numbers in the Maine Rules of Civil Procedure are "reserved" for future rules that do not have a District Court equivalent. Rule 80G and D.C.C.R. 80G supersede the procedure of the enumerated statutes for separate support and custody actions in the Superior and District Courts. The statutory procedure remains in effect, however, for such proceedings brought in the Probate Courts, where these rules do not apply. Note also that the new rules apply only in the relatively rare situation where support or custody is sought independent of an action for divorce or judicial separation. If a divorce or separation is also sought, Rule 80 and D.C.C.R. 80 (incorporated by D.C.C.R. 80C for separations) continue to govern support and custody, and the new rules are inapplicable. The differences are minor, however, because Rule 80G and D.C.C.R. 80G adopt a procedure very similar to that now provided by Rule 80 (and incorporated in D.C.C.R. 80) for divorce. Although the new rules supersede the prior statutes, the intent is to carry forward in simplified form the summary procedures of those statutes where they are necessary to meet immediate needs of the plaintiff or minor children. At the same time, the rules preserve the ability of a defendant to raise a genuine defense through appropriate procedures. Rule 80G(a) makes the rule applicable to actions for support of a husband as well as of a wife or minor child. Although the action provided by 19 M.R.S.A. § 301 for willful nonsupport lies only against a husband, the general support obligation of a woman under 19 M.R.S.A. § 443 extends to "her husband ... when in need." Rule 80G(b) is based on Rule 80(b), except that the third sentence tracks 19 M.R.S.A. § 394, prescribing the contents of a URESA petition. An action under this rule may thus be readily converted into a URESA proceeding if circumstances warrant. Note that service outside the state under Rules 4(e) and (f) was held invalid to sustain a support order against a nonresident in Stanley v. Stanley, 271 A.2d 636 (Me.1970), and Rule 4(f) in terms does not extend to separate custody proceedings. The recent amendment to the long arm statute, 14 M.R.S.A. § 704-A, enacted by 1975 Laws, c. 770, § 80, provides in subd. (2) (G) that

"Maintaining a domicile in this State while subject to a marital or family relationship out of which arises a claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody; or the commission in this State of any act giving rise to such a claim"

is an act the doing of which submits the actor to the jurisdiction of the Maine courts. In addition, subd. (2)(I) of the amended statute extends jurisdiction to "any other relation to the State or to persons or property" sufficient to create a constitutional basis for such jurisdiction. Presumably, by virtue of these amendments, out-of-state service under Rule (3) in support and custody matters is more widely available than previously. Rule 80G(c) is basically similar to Rule 80(c) as amended simultaneously with the adoption of this rule. See Advisory Committee's Note to that amendment. This rule does not contain the provision of Rule 80(c) for an order barring restraint on personal liberty of the other spouse. Rule 80G(d) is based on Rule 80(d). Defendant may contest custody and the amount of support without filing an answer but must raise an issue as to liability for support by answer. Rule 80G(e) is identical to Rule 80(e) as amended simultaneously with the adoption of this rule. See Advisory Committee's Note to that amendment. Nothing is gained by requiring a separate action when a defendant sued for support or custody wishes to inject the question of divorce. Rule 80G(g) is similar in effect to Rule 80(f). Rules 80G(g), (h), incorporate by reference Rules 80(j), (l).

RULE 80H. CIVIL VIOLATIONS (a) Applicability. These rules shall apply to civil violation proceedings in the District Court, other than traffic infraction proceedings; provided, however, that this rule, so far as applicable, shall supersede the general provisions of the rules in all such proceedings where the amount of the fine, penalty, forfeiture or other

sanction that may be assessed for each separate violation is $1,000 or less. “Civil violation” has the meaning set forth in 17-A M.R.S.A. § 4-B. (b) Commencement of Proceedings. A proceeding under this rule shall be commenced by one of the following methods: (1) A citation may be filled out in the manner prescribed in paragraph (1) of subdivision (c) of this rule and served upon the defendant within the state by any officer authorized to enforce a statute or ordinance to which this rule applies, if the officer has probable cause to believe that a civil violation under such statute or ordinance has been committed. Service under this paragraph shall be made upon an individual by delivering a copy of the citation to the individual personally and, if the defendant is an incompetent person, personally to the appropriate individual specified in Rule 4(d)(3) of these rules. Service under this paragraph shall be made upon any other entity by delivering a copy of the citation personally to one of the appropriate individuals specified in Rules 4(d)(4) through (10) of these rules. (2) A citation may be filled out in the manner prescribed in paragraph (1) of subdivision (c) of this rule by any officer authorized to enforce a statute or ordinance to which this rule applies, if the officer has probable cause to believe that a civil violation under such statute or ordinance has been committed. The officer may cause the citation to be served, by any method provided in Rule 4(d), (e), (f), (g) or (j) of these rules. The officer serving the citation shall not take the defendant into custody, except as temporary detention is authorized by 17-A M.R.S.A. § 17. As soon as practicable after service upon the defendant, the officer shall cause the original of the citation to be filed with the court. No filing fee is required. All proceedings arising under a statute shall be brought in the name of the State of Maine. All proceedings arising under an ordinance shall be brought in the name and to the use of the political subdivision which enacted such ordinance. (c) Content of Citation and Complaint. (1) A citation to be served as provided in subdivision (b) of this rule shall contain the name of the defendant; the time and place of the alleged violation; a brief description of the violation; the time, place and date the defendant is to appear in court, which shall in no case be less than seven days from the date of service unless the defendant agrees to a shorter period of time; and the signature of the officer issuing the citation.

(2) The citation shall serve as a complaint, and no other summons, complaint or pleading shall be required, but motions for appropriate amendment of the complaint shall be freely granted. Any form which contains the elements specified in paragraph (1) of this subdivision shall be sufficient under the rules. (d) Pleadings of Defendant. (1) Oral. Unless the matter has been previously disposed of as provided in paragraph (3) of this subdivision, the defendant shall appear at the time and place specified, either personally or by counsel, and shall answer to the complaint orally. At a defendant’s initial appearance before the court, the defendant shall be informed by the court that if the defendant is adjudicated to have committed the civil violation and if a fine is imposed by the court, immediate payment of the fine in full is required. (2) No Joinder. Proceedings pursuant to this rule shall not be joined with any actions other than another proceeding pursuant to this rule, nor shall a defendant file any counterclaim. (3) Judgment on Acceptance of Admission. The District Court Clerk may accept, at the signed request of the defendant, an admission upon payment of a fine as set by the judge in that particular case or as set by the resident judge in accordance with a schedule of fines established by the judge with the approval of the Chief Judge for various categories of civil violations. (e) Venue. A civil violation proceeding shall be brought in the division in which the violation is alleged to have been committed. (f) Discovery. Discovery shall be had only by agreement of the parties or by order of the court on motion for good cause shown. (g) Standard of Proof. Adjudication of a civil violation shall be by a preponderance of the evidence. (h) Default.

(1) Entry of Default. If the defendant fails to appear as required by

this Rule, the judge shall enter the defendant’s default, adjudicate that the defendant has committed the civil violation alleged, and impose a fine as set by the

judge for that particular case or as set in accordance with a schedule of fines for civil violations established by the Chief Judge of the District Court.

(2) Setting Aside the Default. For good cause shown, the court may

set aside the default and adjudication under M.R. Civ. P. 55(c) and 60(b), as applicable. If it is determined that, due to the operation of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, a default should not have been entered, the court shall vacate the adjudication, strike the default and all costs assessed, vacate any license suspension, and permit the defendant an opportunity to answer. (i) Appeal. A party entitled to appeal may do so as in other civil actions. (j) Costs. Costs shall not be awarded as in other civil actions. Only those costs expressly authorized by statute shall be imposed. (k) Notice of Orders or Judgments. The clerk is not required to serve a notice of the entry of an order or judgment on the State or municipality. The clerk is not required to serve a notice of the entry of an order or judgment on the defendant when the defendant, in writing, admits the violation or when the defendant, personally or through counsel, appears in court and is informed by the court of the judgment or order.


[M.R. Civ. P. 80H(b)(1)] This amendment to M.R. Civ. P. 80H(b)(1) removes the requirement that the parent of a minor charged with a civil violation be identified and served with the civil violation citation. This makes Rule 80H consistent with Rule 80F, the traffic infraction rule, which does not require service upon parents of minors. In practice, many civil violations committed by minors occur far from the minor’s home or in other situations where a parent may be difficult to identify and serve. The requirement for service upon individuals with responsibility for incompetent persons remains. [M.R. Civ. P. 80H(h)] The courts regularly default defendants who fail to appear in court for civil violations pursuant to M.R. Civ. P. 80H. The authority to default defendants in this manner is implied in several statutes and rules, but is not explicitly stated in

the Maine Rules of Civil Procedure. The default provisions found in M.R. Civ. P. 55, while useful, do not exactly address the situation where the defendant fails to appear at court in response to a citation. The new subsection (h) replaces an abrogated subsection addressing enforcement of judgments. It clarifies the default procedure, using language consistent with the default procedure of M.R. Civ. P. 80F and the fine assessment procedure of Rule 80H(d). The sentence referencing the Soldiers’ and Sailors’ Civil Relief Act of 1940 adds a directive to vacate any license suspension that may have been imposed as a result of an adjudication for any civil violation. The licenses that are most likely to be affected are hunting and fishing licenses. A similar provision does not appear in M.R. Civ. P. 80F. No traffic infraction results in an immediate suspension of a driver’s license, and any subsequent suspension caused by the traffic infraction would occur only after notice and opportunity for hearing.


In the 2000 Legislative session, 14 M.R.S.A. § 3141(2), was amended to require that at initial appearances before the court in civil violation cases, a defendant shall be informed by the court that, if the defendant is adjudicated to have committed the civil violation, “and if a fine is imposed by the court, immediate payment of the fine in full is required.” This amendment to Rule 80H(d)(1) adds the directive of the statute regarding payment of fines to the portion of Rule 80H that addresses the defendant’s initial appearance before the court. This advice is similar to other advice given parties at first appearances or arraignments. Rule 80H(g) has been removed. The unification of the District Court and the Superior Court by P.L. 1999, c. 731, section ZZZ-2, et seq., section ZZZ-4(14) conferred upon the District Court jurisdiction over all civil violations as provided in Title 17-A, § 9, and traffic infractions. 4 M.R.S.A. § 152(14). If a right to trial by jury is available in such actions, the procedure for removal is prescribed by Rule 76C. Thus, there is no longer a need for Rule 80H(g).


Rule 80H(b)(2) is amended to eliminate the procedure under which a District Court clerk could fill out and deliver for service a civil violation citation upon

examination of the complainant and any witnesses and a finding of reasonable grounds to believe that a civil violation had been committed. This provision was seldom used. It represents an unnecessary step that could impose an undue burden upon clerks who may have difficulty in applying the standard. Under the amended rule, if an officer with probable cause cannot, or does not wish to, make service in person under Rule 80H(b)(1), the officer may cause the citation to be served by one of the methods of service of civil process provided by Rule 4. Rule 80H(c) is amended by deleting former paragraph (2) providing for the content of a citation filled out by the clerk and by numbering the former unnumbered final paragraph of the subdivision as paragraph (2). Comparable amendments are being made simultaneously in Rules 80F(b) and 80K(b) and (c).


Rule 80H(d) is amended consistent with the simultaneous amendment of Rule 80F(d) to expedite the handling of certain civil violation proceedings in which a waiver list may be established by a resident judge or the chief judge. See Advisory Committee’s Note to simultaneous amendment of Rule 80F(d). Appropriate instances include those offenses for which the Legislature has fixed a minimum mandatory penalty which many judges would order the defendant to pay.


Rule 80H(b) is amended to eliminate the requirement of a filing fee in civil violation proceedings. The amendment reflects what is generally the present practice. Payment of filing fees in such proceedings simply represents the transfer of funds from one pocket of the state to another. Rule 80H(i) is abrogated. Statutory procedures for the enforcement of fines in civil violation proceedings have effectively superseded the Rule. See 14 M.R.S.A. §§ 3141 et seq. Rule 80H(k) is amended to make clear that the only costs to be awarded in civil violation proceedings are those expressly provided by statute. There is presently no costs provision in Rule 80H, which means that the provisions of Rule

54B apply to civil violation proceedings. In practice, the state never files a bill of costs in such proceedings. By statute, costs of $25 are automatically imposed when a fine is not paid within 30 days. 4 M.R.S.A. § 173-A. The present amendment makes clear that the statute is the sole provision regarding costs. New Rule 80H(1) eliminates the requirement of service of notice of entry of order or judgment on the state and on a defendant who has pleaded guilty or been informed of the judgment in open court. This provision reflects current practice. The burden of serving such notices in civil violation proceedings would be immense, and the practice is not necessary in the cases encompassed in the Rule.


Rule 80H(g) is amended to provide a procedure for removal from the District Court to the Superior Court of civil violation proceedings brought under Rule 80H in which a right to trial by jury may now be claimed as a result of the Law Court’s recent decision in City of Portland v. DePaolo, [531 A.2d 669] No. 4522 (Me. Oct. 1, 1987). In that case, a District Court prosecution under a Portland ordinance that prohibited the sale of obscene materials, the Court held that Rules 80H(g) and (j) violated the guarantee of trial by jury in civil actions provided by article I, section 20, of the Maine Constitution because those provisions prevented both removal and appeal with trial de novo to the Superior Court. The reach of DePaolo is unclear, because the opinion calls for an examination in each case to determine whether the case is one in which the right to a jury would not have existed at the time of the adoption of the Maine Constitution in 1820. Nevertheless, it seems plain that the jury issue will now be raised frequently in civil violation proceedings and that the right will be found to exist in many instances in which it has not heretofore been recognized. Under the amended rule, the defendant must demand a jury in a motion for removal filed at any time after the commencement of the proceeding, but in any event not later than 21 days after defendant’s appearance under Rule 80H(d)(l). Failure to move for a jury within the time period results in waiver of the right. The 21-day period after appearance is designed for consistency with M.D.C.Cr.R. 40(a), under which jury trial in a District Court criminal prosecution must be demanded within 21 days after arraignment. In language borrowed from Rule 75B(b) concerning motions for procedural orders in the Law Court, the amended rule provides that the motion may be heard

ex parte. The court, however, has discretion to await a reply and decide the motion after hearing both parties. If the court finds that there is a right to jury trial, it may order the action removed. If the motion is granted, the rule requires the payment of a removal fee as in other removed cases. Service of the order of removal will fulfill the function of the notice of removal provided for other civil actions in Rule 76C and the action is to proceed thereafter as provided in that rule. The purpose of this provision is to make clear that, regardless of the future course of the proceedings, the action will remain in the Superior Court. If the Superior Court on plaintiff’s motion decides that there is no right to trial by jury, or if the defendant ultimately waives the right in the Superior Court, the case will be tried in the Superior Court without a jury. Similarly, if the defendant changes the answer to one that admits the violation, judgment will be entered in the Superior Court without trial.


Rule 80H is abrogated simultaneously with the promulgation of amended D.C.C.R. 80H to implement the amendment of 17 M.R.S.A. § 4-A(4) by 1977 Laws, c. 510, § 16. See Advisory Committee's Notes to 1977 amendment of D.C.C.R. 80H. The present rule is abrogated, because it is conceived that as a practical matter there will be no occasion to invoke Superior Court jurisdiction in civil violation proceedings. The detailed provisions of the present rule, with modifications called for by the increased number of civil violations, have been incorporated in the amended District Court rule. Abrogation of the present rule means that there is now no procedure available for bringing summary proceedings upon civil violations in the Superior Court. Abrogation should not be understood, however, as reflecting any determination of the question whether there may be Superior Court jurisdiction of civil actions upon civil violations, either in plenary proceedings under the Rules of Civil Procedure or in summary proceedings if the Supreme Judicial Court should again provide for such proceedings by special rule.

Advisory Committee.'s Note November 15, 1976

This rule is adopted to implement the provisions of the new Maine Criminal Code, 17-A M.R.S.A. §§ 4(3), 17(1), that certain conduct is to be deemed a "civil

violation", the sanctions for which are enforceable in a civil action brought by the appropriate public official and commenced by service of a citation. Its provisions are made applicable in the District Court by the simultaneous adoption of D.C.C.R. 80H. In so far as possible, the rule tracks D.C.C.R. 80F, which provides for comparable proceedings under the Uniform Traffic Ticket and Complaint. Certain conforming changes have been made in D.C.C.R. 80F by simultaneous amendment. The rule applies only to civil violations that have been expressly designated as such in the statute creating them. See 17-A M.R.S.A. § 4(3). An amendment to the rule will be necessary if the provisions of 17-A M.R..S.A.. § 4-A(4), declaring prohibited conduct for which imprisonment is not the penalty to be a civil violation, take effect as provided in 17-A M.R.S.A. § 4-A(1)(B) on October 1, 1977, without further legislative change. Further, the rule is not intended to preclude the commencement by the Attorney General of an ordinary civil action to enforce a civil penalty, or for other relief, where authorized by law. Rule 80H(a) ties the scope of the rule to the statutory definition of "civil violation" and makes clear that the rule does not apply to traffic infractions. Such proceedings will continue to be brought in District Court under D.C.C.R. 80F. A separate rule is needed for traffic infractions because of differences in terminology and the fact that there is no Superior Court jurisdiction of them. Rule 80H(b) provides that the action is commenced upon service of a citation on the defendant by personal delivery to him. Cf. Rule 3. This is important for purposes such as tolling the statute of limitations. The citation, which is to be in the form provided in subdivision (c), may be prepared either by a law enforcement officer who has probable cause or, upon complaint, by the clerk if he is satisfied that defendant has committed a violation. (This standard, borrowed from D.C.Cr.R. 4(a), is essentially a probable cause standard.) The latter method is based on 4 M.R.S.A. § 171-A, providing for issuance of such civil process upon complaint. The citation is to be served either by the preparing officer or by an officer to whom the clerk has transmitted it for service. In either event, the defendant is not to be taken into custody except as permitted in 17-A M.R.S.A. § 17 for a brief period necessary to ascertain his identity. After service, the officer is required to file the original of the citation with the court. Rule 80H(c) provides that the citation shall contain the elements required by 17-A M.R.S.A. § 17(1). Cf. D.C.C.R. 80F(c). It is the intent of the rule that, pending adoption of a new form, the Uniform Traffic Ticket and Complaint, with

appropriate deletions, may be used as process for any civil violation. The rule expressly states that the citation, whatever its form, is to serve as the state's complaint for pleading purposes in the civil action that is to follow. Rule 80H(d) is identical to D.C.C.R. 80F(d), with elimination of references and terminology peculiar to traffic infraction proceedings. Note that, as in the traffic infraction rule, an answer admitting a violation is not admissible as an admission in other proceedings. The purpose is to encourage such answers in the interests of cutting down the number of trials. Cf. M.R.Ev. 410. Rule 80H(e) limits venue to the county in which the violation is alleged to have been committed. Cf. D.C.C.R. 80F(e). Rules 80H(f), (h), (i), are identical to D.C.C.R. 80F(f), (h), (i). Rule 80H(g) is necessary in the Superior Court. Like the limitation on discovery, it recognizes the basic simplicity of the issues in such proceedings and is intended to promote speed and economy in court. Rule 80H(j) is identical to D.C.C.R. 80F(j) as amended. The intent of the rule is to take no position on the question of the state's right to appeal a civil violation, which is arguably left ambiguous by 17-A M.R.S.A. §§ 4(3), 17(1). The rule omits the provision found in D.C.C.R. 80F(j) prior to its amendment that required an appellant to deposit with the court the amount of the judgment as a condition for a stay. This provision was deemed unduly onerous on defendants who might have a legitimate ground of appeal and basically inappropriate as a condition on appeal in a civil action. See Rule 62(e).

XII. GENERAL PROVISIONS

RULE 81. APPLICABILITY OF RULES (a) To What Proceedings Fully Applicable. These rules apply to all proceedings in suits of a civil nature in the District Court, in the Superior Court, or before a single justice of the Supreme Judicial Court, with the exceptions set forth in subdivision (b) of this rule. They apply to civil proceedings in the Superior Court on removal or appeal from the District Court. A civil action under these rules is appropriate whether the suit is cognizable at law or in equity and irrespective of any statutory provisions as to the form of action. (b) Limited Applicability. (1) Superior Court. These rules do not alter the practice prescribed by the statutes of the State of Maine or the Maine Rules of Criminal Procedure or the Maine Bar Rules for beginning and conducting the following proceedings in the Superior Court or before a single justice of the Supreme Judicial Court:

(A) Proceedings for post-conviction relief in criminal actions or under the writ of habeas corpus.

(B) [RESERVED]

(C) Proceedings governed by the Maine Bar Rules.

(D) Applications for naturalization, judicial declarations of citizenship, or any other ex parte proceeding.

(E) Applications by any governmental agency, department, board, commission, or officer to enforce a subpoena, to compel the production of documents, or to require answer to pertinent questions.

(F) Proceedings with respect to contested elections for county or municipal office.

In respects not specifically covered by statute or other court rules, the practice in these proceedings shall follow the course of the common law, but shall otherwise conform to these rules, except that depositions shall be taken or interrogatories served only by order of the court on motion for cause shown.

Review by the Law Court, to the extent that review of any such proceeding is available, shall be by appeal or report in accordance with these rules, except that any such review in proceedings with respect to contested elections for county or municipal office shall conform to the procedure specified by statute therefor. (2) District Court. These rules do not apply to the beginning and conducting of the following actions and proceedings in the District Court:

(A) Actions under the statutory small claims procedure except as incorporated expressly or by analogy in the Maine Rules of Small Claims Procedure.

(B) Ex parte proceedings.

(C) [Abrogated.]

(D) Proceedings for commitment or recommitment of persons mentally ill.

(E) [RESERVED]

(F) Proceedings in the Juvenile Court.

Review by the Superior Court in all these proceedings and actions, except proceedings in the Juvenile Court, shall be by appeal in accordance with these rules except as modified for actions under the statutory small claims procedure by the Maine Rules of Small Claims Procedure. (c) Scire Facias and Certain Extraordinary Writs Abolished. The writs of scire facias, mandamus, prohibition, certiorari, and quo warranto are abolished. Review of any action or failure or refusal to act by a governmental agency, including any department, board, commission, or officer, shall be in accordance with procedure prescribed by Rule 80B. Any other relief heretofore available by any of such writs may be obtained by appropriate action or motion under the practice prescribed by these rules. In any proceedings for such review or relief in which an order that an agency or other party do or refrain from doing an act is sought, all provisions of these rules applicable to injunctions shall apply.

(d) Other Writs Abolished. Writs of waste, dower, partition and account are abolished. In any action for relief or damages because of waste, or for dower, partition or account, the practice and procedure, including the summons, shall be as in other civil actions. (e) Terminology in Statutes. In applying these rules to any proceeding to which they are applicable, the terminology of any statute which is also applicable, where inconsistent with that in these rules or inappropriate under these rules, shall be taken to mean the device or procedure proper under these rules. (f) When Procedure Is Not Specifically Prescribed. When no procedure is specifically prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution of the State of Maine, these rules or any applicable statutes.


The amendments to this rule are designed to modernize its language. The Bar Rules now govern proceedings for disciplinary action against of attorneys, and accordingly they are referenced in Rule 81. There is no longer an action to replevy a person, and the amendment eliminates the reference in subdivision (b)(1)(A). Paternity actions (what were once called “bastardy” cases), and Interstate Support Enforcement actions (no longer called “URESA”, as former subdivision (b)(2)(E) provided) are now subject to the regular provisions of the Maine Rules of Civil Procedure with appropriate adjustment for specific statutory requirements.


This amendment is adopted simultaneously with the promulgation of new Rule 80G, covering separate support and custody actions. The amendment eliminates the exception from the rules of all support actions except those under the Uniform Reciprocal Enforcement of Support Act, 19 M.R.S.A. §§ 331-420. See Advisory Committee's Note to Rule 80G.


Rule 81(a) is amended to reflect the completion of the transition to the District Court system from the former municipal courts and trial justices. The District Court Civil Rules themselves contain certain limitations on the proceedings in the Superior Court on removal or appeal from the District Court. For example, an appeal to the Superior Court is on questions of law only. See Me.D.C.C.R. 73(a). Thus, the applicability of the Rules of Civil Procedure to such proceedings appealed or removed from the District Court is in those respects modified by the District Court Civil Rules. The amendment of Rules 81(b) and (c) eliminates the extraordinary writs of mandamus, prohibition, certiorari, and quo warranto as separate procedural devices. An accompanying statutory change repeals 14 M.R.S.A. §§ 5351-5354, 5401-5402, and 5451-5454, which provided special procedures for certiorari, quo warranto, and mandamus. 1967 Pub.Laws, Chap. 441, Sec. 7. These steps do not alter the substantive law pertaining to the writs or make any change in the kinds of relief available in situations where they have been appropriate, any more than the merger of law and equity altered the substantive rules of equity. Relief in the nature of that previously available by extraordinary writ may now be had in a civil action under the rules, with the special provisions of Rule 80B for review of governmental action. A 1967 amendment to 14 M.R.S.A. § 5301, continuing the Supreme Judicial and Superior Courts' jurisdiction "in proceedings . . . in the nature of prohibition, . . . mandamus, quo warranto, and certiorari," is intended to make this clear. 1967 Pub.Laws, Chap. 441, Sec. 6.* The proposed amendment of Rule 81(c) is comparable in form to Federal Rule 81(b), which abolishes scire facias and mandamus as procedural devices without affecting the substantive relief available. See 7 Moore, Federal Practice, par. 81.07. The change in the Maine rule is deemed necessary because of an ambiguity in the present practice demonstrated in Young v. Johnson, 161 Me, 64, 207 A.2d 392 (1965), and First Mfrs. Nat. Bank v. Johnson, 161 Me. 369, 212 A.2d 840 (1965). At present, review of "administrative action" which was previously available by extraordinary writ is to be had under Rule 80B, but the extraordinary writs, with their individual statutory procedure, may still be used for review of action other than "administrative." See Field and McKusick, Maine Civil Practice §§, 81.2, 81.4-81.8. Doubt as to what is "administrative action" has led to procedural confusion and delay, as well as to confusion about the scope of review * [Field, McKusick & Wroth note: “As enacted the statute reads ‘proceedings in . . . prohibition . . . .’” 2 Field, McKusick & Wroth, Maine Civil Practice at 327 (2d ed. 1970)].

of particular kinds of action. See Note, 18 Maine L.Rev. 187-190 (1966); Field and McKusick, Maine Civil Practice § 80B.1 (Supp.1967). The amendment, with related changes in Rules 80B and 81(b), eliminates the possibility of such confusion by making all review of "governmental" action or inaction, whether statutory or nonstatutory, available under Rule 80B, while extraordinary relief against nongovernmental action or inaction is to be had in an ordinary civil action under the rules. See Advisory Committee's Note to Rule 80B. The principal procedural features of the extraordinary writ statutes will remain available in substance whether extraordinary relief is now sought in a civil action under the rules or in a proceeding under Rule 80B, to which most provisions of the Rules of Civil Procedure are applicable. Thus, the provision of 14 M.R.S.A. § 5352 that on certiorari, "the court may quash or affirm such proceedings, or enter such judgment as the court below should have rendered, or may make such order, judgment or decree in the premises as law and justice may require," is encompassed in the general provision of Rule 54(c) that "every judgment shall grant the relief to which the party in whose favor it is rendered is entitled." The certiorari provision covering costs (14 M.R.S.A. § 5353) does not differ materially from those applicable to civil actions generally, which will henceforth control. See 14 M.R.S.A. §§ 1501, 1509. The six-year statute of limitations on certiorari proceedings (14 M.R.S.A. § 5354) will no longer apply, but is in any event superseded already in cases of administrative review by the 30-day limit on Rule 80B proceedings which governs virtually every case included in the former certiorari practice. See Field and McKusick, Maine Civil Practice §§ 80B.3, 81.7. A special provision of the quo warranto statute, 14 M.R.S.A. § 5402, dealing with parties, has been embodied in an amendment to Rule 17(a). As for mandamus, there will be one salutary change from present practice. It has been held that on appeal the record must be in such shape that, if the Law Court finds for the petitioner, a peremptory writ may issue without further hearing at the trial level. 14 M.R.S.A. §§ 5451, 5452; Dorcourt Co. v. Great Northern Paper Co., 146 Me. 344, 81 A.2d 662 (1951); Field and McKusick, Maine Civil Practice § 81.5. As a result, some Superior Court judges have felt that they should not dismiss a petition on a preliminary question of law without holding a full hearing of all issues. While in practice the Law Court has not adhered to any such stultifying rule (see, e. g., Hourihan v. Mahoney, 160 Me. 260, 203 A.2d 278 (1964)), the problem will not exist under the amendment, because such matters will be decided on motion under Rule 12 or Rule 56 and a dismissal will be an appealable final judgment.

Other statutory mandamus procedures will be available in essence under the Civil Rules. Provisions of 14 M.R.S.A. §§ 5453 and 5454 for citation and substitution of third-parties are adequately covered by Rules 14 and 25. 14 M.R.S.A. § 5452 provided a 5-day appeal period in mandamus proceedings and an expedited hearing before the Law Court on written argument only. The substance of these provisions remains available after the rules amendments. To consider first the 5-day limit on appeals, that statutory provision principally benefits the plaintiff who has won below and wants to obtain the relief sought before events make his claim moot. If the plaintiff has lost, however, he does not need the short limit because he can appeal as soon as necessary to protect his rights. Moreover, in the latter case, the defendant has no valid interest in finality that would justify cutting off the plaintiff's right any more than in an ordinary civil action. The only beneficial effect of the present statute—finality for the victorious plaintiff—is achieved by the provision added to Rule 81(c) that the judgment of the trial court should be treated as an injunction, which in a merged legal system it really is. Then Rule 62(a) would make it effective at once "unless otherwise ordered by the court." Thus, if the plaintiff wins, he may have his relief immediately unless a defendant moves for a stay. Presumably, the court would grant a stay only on a good-faith representation by the defendant that he intended to file an appeal within such time as not to harm the plaintiff. Compare Field and McKusick, Maine Civil Practice, § 62.2. If the plaintiff loses, however, the automatic 30-day period of Rules 62(a) and 73(a) would apply, with the further protections of Rule 62(d) if he does choose to appeal. The other appeal problems to be dealt with are those involving the provisions of 14 M.R.S.A. § 5452 for prompt certification of the record by the trial judge to the Law Court and for submission of the case to the Law Court on written arguments for immediate consideration and decision. It is clear that such measures are not needed in all mandamus cases and might indeed be undesirable in a case where there was no urgency of time involved and the questions before the court were difficult or important. The power given the Court by the revised Rule 76A(c) to suspend the appellate rules would certainly allow the adoption of the expeditious procedure of 14 M.R.S.A. § 5452 on motion in an appropriate case. See the Advisory Committee's Note to Rule 76A(b). With the claim treated as one for an injunction, Rule 65 and other present procedural law on injunctions will serve as a basic procedural framework for other phases of an action for relief heretofore available in mandamus. If there is no

urgency, the procedure should be that followed in an ordinary civil action. Where there is need for speed, however, as in a proceeding to compel production of a list of stockholders, the plaintiff in his complaint could ask for an order (comparable to a temporary restraining order) that the clerk of the corporation produce the list or appear at a date certain to show cause why he should not. The hearing held pursuant to this order would be equivalent to the hearing on an application for a preliminary injunction. If necessary to prevent the plaintiff's claim from becoming moot, the court could order the hearing consolidated with the trial on the merits under Rule 65(b) (2). The final disposition in any case would be a judgment either denying the relief or granting a permanent mandatory injunction ordering the clerk to produce the list. The Law Court has recognized the propriety of a mandatory injunction ordering an act to be done, but preliminary mandatory relief is ordinarily not granted and would presumably be inappropriate in these circumstances. See Field and McKusick, Maine Civil Practice § 65.2 n. 4; Whitehouse, Equity Practice 729-731 (1915); Proprietors of Maine Wharf v. Proprietors of Custom House Wharf, 85 Me. 175, 27 A. 93 (1892); Tracy v. Le Blanc, 89 Me. 304, 36 A. 399 (1896). The seldom-used writ of prohibition should receive the same treatment. The final sentence of the revised Rule 81(c) applies to prohibition as well as mandamus.

Explanation of Amendments (Sept. 21, 1963; Nov. 1, 1966)

Rule 81(b) (1) was amended effective September 21, 1963, in connection with the Rules in Proceedings for Post-Conviction Relief which also became effective on that date. Those Rules were in turn superseded effective December 1, 1965, by the Maine Rules of Criminal Procedure of which Rule 35(b) relates to post-conviction relief. Accordingly, Rule 81(b) was subsequently further changed to refer to the Maine Rules of Criminal Procedure rather than to Rules in Proceedings for Post-Conviction Relief.


Rule 81(a) emphasizes the scope of full applicability of these rules. They apply to all original proceedings of a civil nature in the Superior Court with the exceptions set forth in Rule 81(b), including proceedings to review administrative action. They also apply to appeals to the Superior Court as the Supreme Court of Probate and appeals and removals from municipal courts and trial justices * in civil actions. In such appeals and removals there is no requirement of further pleading

in the Superior Court, except when the defendant removes before answer. In such case the defendant is required to file his answer forthwith in the Superior Court. See Municipal Court Civil Rule 27(b). Furthermore, under Rule 13(j) any action which would be a compulsory counterclaim under Rule 13(a) will be barred unless asserted as a counterclaim by amendment after appeal or removal. Also, an equitable defense, which is not permissible in the lower court for jurisdictional reasons, may be asserted by amendment to the answer. The last sentence of Rule 81(a) makes it clear that any reference in a statute to a particular common law form of action is to be disregarded. There are a very large number of references to actions of "debt", "assumpsit", "on the case", and the like scattered through the statutes. In any such case, a civil action under these rules is of course appropriate. The same is true when a statute gives a remedy by a bill in equity. These changes in terminology were made in 1959 Laws, c. 317, in statutes being changed for other reasons, but there seemed to be no pressing reason thus to amend a statute otherwise unaffected. Rule 81(b) enumerates the proceedings to which these rules have only limited applicability. The intention is to preserve existing procedures for beginning and conducting such actions, whether such procedures are covered by statute or follow the course of the common law. These procedures have worked so satisfactorily that there appears to be no need to conform them to these rules. On the other hand, a uniform method of review by the Law Court seems appropriate. Accordingly, Rules 72 to 76A, inclusive, apply to all of these proceedings, with the few exceptions noted below. Moreover, there are numerous other rules which can be uniformly applied without upsetting familiar patterns. These include Rules 4(d) (e) and (h), 5, 6, 7(b), 10, 11, 15, 24, 25, 43, 45, 46, 59 and 60. The foregoing enumeration is not necessarily complete. The decision to give these rules this limited applicability made it possible to repeal many procedural statutes which would otherwise have had to be retained solely to cover these special proceedings. The proceedings to which the rules have only limited applicability and the reasons therefor are as follows: (1) Proceedings under the extraordinary writs are excluded from general coverage because they differ so greatly from the ordinary civil actions for which the rules are primarily designed. Some of them, notably habeas corpus, symbolize traditional rights of citizens. While the substance of these rights would of course be preserved in any event, there is value in preserving the symbol as well. The

scope of mandamus and certiorari is cut down somewhat by the exclusion of the extraordinary writs as a means of reviewing administrative action. (2) Proceedings in bastardy cases are civil in nature. Easton v. Eaton, 112 Me. 106, 90 A. 977 (1914). Hence they would be covered by these rules if special provision to the contrary were not made. The procedure set forth in R.S.1954, Chap. 166, Secs. 23-34 [19 M.R.S.A. §§ 251-262, repealed in 1967] is satisfactory and should not be disrupted.** (3) Procedure in proceedings to compel the support of a minor child or children under R.S.1954, Chap. 166, Sec. 43 [now 19 M.R.S.A. § 301] also is well defined by statute. An additional reason for retaining the present procedure is that the probate courts have concurrent jurisdiction in these matters. The rules enabling act does not give power to make rules for the probate court, and it would not be desirable to have different procedures for the same type of action. (4) Disciplinary proceedings against attorneys are satisfactorily covered by R.S.1954, Chap. 105, Secs. 15-21 [now 4 M.R.S.A. §§ 851-857]. (5) The exclusion of naturalization cases, judicial declarations of citizenship and other ex parte proceedings seems sensible since they do not fit into the pattern of the rules. An example of an excluded ex parte proceeding is found in R.S.1954, Chap. 36, Sec. 56 [now 30 M.R.S.A. § 4153], where the Superior Court is empowered to appoint commissioners to locate lands reserved for public use. (6) Applications to the Superior Court to aid administrative bodies in making their subpoena powers effective are excluded because they are summary proceedings unlike ordinary adversary litigation. (7) Contested election cases are excluded because of their special nature and because the detailed procedure of R.S. 1954, Chap. 5, Secs. 84-86 [Repealed, 1961 Laws, c. 360, § 18; see 21 M.R.S.A. § 1212; 30 M.R.S.A. § 2252] seems satisfactory. Review by the Law Court is to be in accordance with these rules in all proceedings enumerated in this subdivision except mandamus, proceedings for the removal of an attorney, and cases of contested elections for county office. Each of the excepted proceedings has its special statutory procedure for review by the Law Court, with shortened time limits and provision for written argument only. Since

time is of the essence in these cases, it would not be desirable to make Rules 72 to 76A apply. Rule 81(c) abolishes the writ of scire facias in favor of appropriate action on motion under these rules. It is taken from Federal Rule 81(b). Rule 81(d) abolishes other ancient writs and provides that relief hitherto available thereunder shall be by action in accordance with these rules. Rule 81(e) is to cover the many instances where statutes couched in terms rendered obsolete by these rules have not yet been amended. Rule 81(f) gives the court a little leeway in situations not expressly provided for in the rules. It may occasionally serve a useful purpose.

RULE 90. LEGAL ASSISTANCE BY LAW STUDENTS (a) Permitted Activities. An eligible student may appear in court, in any civil action, or before any administrative tribunal in this State, on behalf of any indigent person receiving legal services through an organization providing legal services to the indigent, which organization has been approved by the Supreme Judicial Court, if the person on whose behalf the student is appearing has indicated in writing consent to that appearance and the supervising lawyer has also indicated in writing approval of that appearance. An eligible student may appear in court in any civil action or before any administrative tribunal in this State on behalf of the State or an agency thereof with the written approval of the lawyer who is supervising the student in that appearance. The written consent and approval referred to above shall be filed in the record of the case and shall be brought to the attention of the judge or justice of the court or the presiding officer of the administrative tribunal. (b) Requirements and Limitations. In order to be an eligible law student under this rule, the student must: (1) Be duly enrolled in a law school approved by the American Bar Association. (2) Have completed legal studies amounting to at least four (4) semesters. (3) Be certified by the dean of the student’s law school as being of good character and competent legal ability, as being adequately trained to perform as a legal intern and as having met the other requirements of this subdivision (b). (4) Neither ask for nor receive any compensation or remuneration of any kind for services from the person on whose behalf such services are rendered, but this shall not prevent a legal aid bureau, law school, or the State from paying compensation to the eligible law student, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require. (5) Certify in writing that the student has read and is familiar with the Maine Bar Rules, the Maine Rules of Civil Procedure, the Maine Rules of Criminal Procedure, the Maine Rules of Appellate Procedure, and the Maine Rules of Evidence.

(c) Approved Organization. Upon application of any organization located in this State providing free legal services to indigents in this State for permission to allow eligible law students to practice under its supervision pursuant to this rule, the Supreme Judicial Court may grant permission by filing an order authorizing such practice with the Clerk of the Law Court. (d) Certification. Certification of a student by the law school dean: (1) Shall be filed with the Clerk of the Law Court. (2) May be withdrawn by the dean at any time by mailing a notice to that effect to the Clerk of the Law Court. It is not necessary that the notice state the cause for withdrawal. (3) May be terminated by the Supreme Judicial Court without notice or hearing and without any showing of cause. Notice of such termination shall be filed with the Clerk of the Law Court. The dean may refuse certification of a law student to practice in a position which the dean considers of insufficient educational benefit to the student. (e) Other Activities. Subject to the limitation of subdivisions (b) and (c) of this rule. (1) An eligible law student may also engage in other activities authorized by law, under the general supervision of a member of the bar of this State, but outside the personal presence of that lawyer, including:

(i) Preparation of pleadings and other documents to be filed in any matter in which the student is eligible to appear, but such pleadings or documents must be signed by the supervising lawyer.

(ii) Preparation of briefs and other documents to be filed in the Law Court in any matter in which the student is eligible to appear, but such documents must be signed by the supervising lawyer.

Each pleading, document or brief must contain the name of the eligible law student who has participated in drafting it. If the student has participated in drafting only a portion of it, that fact may be mentioned.

(2) An eligible law student may participate in oral argument in the Law Court in any matter in which the student is eligible to appear, but only in the presence of the supervising lawyer. (f) Supervision. The member of the bar under whose supervision an eligible law student does any of the things permitted by this rule shall: (1) Assume personal professional responsibility for the student’s guidance in any work undertaken and for supervising the quality of the student’s work. (2) Assist the student in preparation to the extent the supervising lawyer considers it necessary. (g) Miscellaneous. Nothing contained in this rule shall affect the right of any person who is not admitted to practice law to do anything that the person might lawfully do prior to the adoption of this rule.

Advisory Committee Notes January 2004

Rule 90(b)(5) is amended to add reference to the Maine Rules of Appellate Procedure and to strike the reference to the separate District Court Criminal Rules which have been abrogated.


The specific gender reference in subdivision (d)(3) is eliminated, substituting the title “the dean.”


This rule is amended to reflect the promulgation by the Supreme Judicial Court of the Maine Bar Rules, which in Rule 3 provide a Code of Professional Responsibility that is binding upon all attorneys "admitted to, or engaging in, the practice of law in this state." Me. Bar R. 1(a); see Me. Bar R. 3.1(a).

Explanation of Amendment (June 1, 1976)

Rule 90 was generally amended to permit Maine law students enrolled in law schools outside the state to practice under the rule. In addition, the rule was amended to list the various rules of procedure and of evidence with which the students must be familiar.


Rule 90 was promulgated to implement the provisions of 1969 Laws, c. 396, which amended 4 M.R.S.A. § 807 to permit appearances by third-year law students in the courts of Maine on behalf of the State or on behalf of an indigent receiving free legal services through an approved legal aid organization. The rule is based on the "Proposed Model Rule Relative to Legal Assistance by Law Students," approved by the American Bar Association House of Delegates in January, 1969. Minor adaptations have been made to fit Maine practice and the statutory authorization. While the "Model Rule" deals with practice in civil and criminal cases, Rule 90 applies only to civil cases in the Superior Court and the Law Court. Contemporaneous with the promulgation of Rule 90, a similar rule bearing the same number was incorporated in the Maine District Court Civil Rules to allow practice in civil cases in the District Court and Rule 62 was added to the Maine Rules of Criminal Procedure and the Maine District Court Criminal Rules to govern practice in criminal cases.

RULE 91. PROCEEDINGS FOR WAIVER OF PAYMENT OF FEES OR COSTS (a) (1) Application. Any person who intends to (i) bring a civil action under these rules, (ii) file any motion requiring service under Rule 4, or (iii) file any motion requiring payment of any fee, may, without fee, file an application in the court in which such action or motion is to be brought, or such motion is to be filed asking for leave to proceed without payment of fees or costs. The reference to “motion” shall include jury requests or any other filing that requires payment of a fee in the trial court. (2) Affidavit. The application shall be accompanied by an affidavit of the plaintiff or moving party stating (i) the person’s monthly income and necessary monthly expenses; (ii) that the person possesses no other source from which filing or service fees may reasonably be paid; (iii) if the person is receiving poverty-based public assistance income identify the government program and the nature and the duration of the assistance; and (iv) that the action is brought, or the motion is filed, in good faith. The affidavit shall be kept separate from the other papers in the case and kept confidential. The affidavit may be disclosed to any party to the action, but shall not be available for public inspection, except by order of the court. (3) Presumption of Inability to Pay. There shall be a presumption that a moving party is without sufficient funds to pay required fees or costs if the moving party’s affidavit states that the person’s income is derived from poverty-based public assistance programs. (b) Waiver of Complaint Filing Fee. An application for waiver of the filing fee shall be filed with the complaint. The action shall thereupon be entered upon the docket. If the court finds that the action is not frivolous and has been brought in good faith, and if the plaintiff is without sufficient funds to pay the filing fee, it shall order that the fee be waived. If the court denies the application, the action shall be dismissed without prejudice, unless within seven days after the denial the plaintiff pays the fee to the clerk. (c) Payment of Service Costs. An application for payment of service costs shall be filed with the complaint or motion. If the court finds that the action is brought, or the motion filed, in good faith and that the plaintiff or moving party is without sufficient funds to pay all or part of the costs incurred in making service of process, it shall order all or such part of those costs to be paid as an administrative

expense of the Superior Court or the District Court as the case may be. The court shall pay cost for service of process only after the party seeking such payments certifies that it has attempted to accomplish service by agreement or by means that do not require payment of costs except for postage, and those efforts have not been successful in completing service. (d) Waiver of Motion Filing Fee. An application for waiver of a motion filing fee shall be filed with the motion unless an application for waiver of payment of fees or costs has previously been granted to the moving party. The motion shall thereupon be accepted for filing and entered upon the docket. If the court finds that (i) the motion is not frivolous and has been brought in good faith, and (ii) the moving party is without sufficient funds to pay the motion filing fee, it shall order that the fee be waived. If the court denies the application, the motion shall be dismissed without prejudice, unless within seven days after the denial the moving party pays the fee to the clerk. (e) Costs; Reimbursement. If the plaintiff or moving party prevails, any service costs paid under subdivision (c) of this rule may be taxed as costs against the opposing party in favor of the State, if the court finds that party is able to pay those costs. Before accepting a complaint or motion for filing with the fee waived or disbursing funds for service costs, the clerk shall cause the plaintiff or moving party to sign an agreement to repay the court for any fees or costs that have been waived or paid, if at any time during the pendency of the action the party becomes or is discovered to be financially able to repay those funds. The State Court Administrator is authorized to proceed by execution or action to recover for the appropriate court account all fees or costs which any party becomes liable to pay or reimburse under this subdivision, if such payment or reimbursement is not made voluntarily upon demand. (f)(1) Appeal From District or Superior Court. A party seeking to appeal to the Superior Court or the Law Court may file or renew an application for leave to proceed without payment of fees or costs as provided in subdivision (a) of this rule. If the court from which the appeal is taken finds that the appeal is brought in good faith and is not frivolous and that the applicant is without sufficient funds to pay all or part of the costs of entering the appeal, it shall order all or part of those costs to be waived. The court may enter such orders limiting the record on appeal as it deems appropriate. The provisions of subdivision (e) of this rule apply to proceedings under this subdivision.

(f)(2) Copy of Electronic Recording. When the hearing that is subject to the appeal was electronically recorded, and the court finds that all or a portion of the transcript of the hearing is necessary to support the appeal, a copy of the recording of the hearing, in lieu of a paper transcript, shall be filed as part of the record pursuant to M.R. App. P. 6, except that a paper transcript shall be prepared for any child protective proceeding on appeal from the District Court. When the hearing that is subject to the appeal was recorded by an official court reporter, the court shall not pay for a transcript to support the appeal, and the court shall direct the parties to prepare and submit to it an agreed statement of the record pursuant to M.R. App. P. 5(f).

Advisory Committee’s Notes August 1, 2009

The amendment makes several changes to Rule 91: First, it removes the Latinism “In Forma Pauperis” from the Rule and makes other editing changes to make the Rule easier to read and understand. Second, it adds a provision that the financial affidavit be kept confidential and separate from the case file. The affidavit could be viewed by any other party, but otherwise would be available only by court order. Third, it adds provisions to clarify that motion fees, jury fees and other court filing fees that may be imposed during litigation may be waived. Fourth, it requires that before service costs are ordered to be paid, the applicant demonstrate that low cost or no costs options for service have been attempted without success. Fifth, it eliminates the reference in current subdivision (e) to waiver of costs for removal of cases from District Court, as the removal fee was eliminated at the time that identical filing fees were adopted for District Court and Superior Court actions.


Practice and implementation of M.R. Civ. P. 91(f) has indicated the need for clarification regarding the court’s obligation to pay for a transcript once an appellant is found qualified for a waiver of costs pursuant to the rule. Some courts have taken the view that the reference to the term “record” in the rule refers to the clerk’s record as described in M.R. App. P. 6(b) or the 21-day record formerly addressed in M.R. Civ. P. 74A(a) (abrogated, December 31, 2001). This record included any transcripts in the file, but did not include transcripts that had to be prepared by court reporters or the electronic recording division. Other courts construed the term “record” to include transcripts of hearings that had to be prepared. At one point, funds were sought from the Legislature to pay the additional costs of transcripts for civil appeals that were not constitutionally required but were requested by individuals filing appeals who asserted they could not afford to pay for a transcript to support their appeal. Funds for that purpose were not appropriated. This amendment to the rules clarifies that when the court finds an individual qualified for a waiver of costs for appeal, this finding does not also commit the court to pay for a transcript of any hearing for which a transcript has not been prepared. In addition, the amendments to the rule describe alternatives available in lieu of court payment for preparation of a transcript. When the hearing that is subject to the appeal was electronically recorded and the court finds that: (1) the appellant financially qualifies for a waiver of costs; (2) the appeal is brought in good faith and is not frivolous; and (3) all or a portion of the transcript of the hearing is necessary to support the appeal, then a copy of the recording of the hearing will be filed with the Law Court as part of the record in lieu of a paper transcript. Depending upon the available hearing recording equipment, the electronic recording may be by cassette tape, CD, or DVD. Parties may obtain copies of the recording themselves as presently provided under M.R. Civ. P. 76H(e) and Administrative Order JB-05-14. In cases where the proceedings were recorded by an official court reporter, there is no capacity to get a copy of an electronic recording, as there is no official electronic recording of the proceedings. Because the court system does not have available funds to pay for transcripts in such circumstances, no transcripts can be provided. However, where the court finds that (1) an appellant is financially qualified for waiver of costs of appeal, and (2) the appeal is brought in good faith and is not frivolous, the parties are directed to prepare a statement in lieu of the

record in accordance with M.R. App. P. 5(f) which shall then be presented to the Court in accordance with Rule 5(f) and, if approved, forwarded as the record in lieu of a transcript. A statement would have to be prepared and considered pursuant to M.R. App. P. 5(f) only if the available record was insufficient, because of a lack of a transcript, to present the issues for consideration on appeal. These amendments leave unchanged the trial court’s authority under Rule 91(f) to enter such orders limiting the record on appeal, as it deems appropriate.


The language of subdivisions (a) and (b) is revised to incorporate the presumption of in forma pauperis status for persons receiving poverty-based public assistance as set forth in the Administrative Order of March 1, 1995.


Rule 91 (b) is amended to incorporate the more objective test for facial merit provided in subdivision (f) and to clarify that no different standard is intended in the determination to waive fees for initial filing or for appeals.


Rule 91(f) is added to provide a procedure for the allowance of in forma pauperis appeals in both the District and Superior courts. The party seeking to appeal in forma pauperis is to file an application in the lower court containing the same information concerning financial status required by Rule 91(a) for leave to bring a civil action in forma pauperis. Thus, the application must be accompanied by an affidavit setting forth the party’s income and expenses, the absence of any other resources from which the costs of the appeal may be paid, and the party’s representation that the appeal is taken in good faith. The application is to be granted if the court from which the appeal is to be taken finds that the appellant is proceeding in good faith, that the appeal is not frivolous, and that the appellant lacks sufficient funds. The rule thus abandons the standard that the Law Court established in Melder v. Carreiro, 541 A.2d 1293 (Me. 1988), under which in all cases except those involving a “fundamental right” an

appellant seeking to proceed in forma pauperis must establish a reasonable likelihood of success on the appeal. While this standard might have the effect of limiting appeals in certain areas where pro se representation is common, the Melder rule in effect allows the judge who has decided the case on the merits to determine the question of the likelihood that the decision will be overturned. The requirement in Rule 91(f) that the appeal not be frivolous, which is similar to the language of Rule 76(f) allowing the award of expenses against a party in a frivolous appeal in the Law Court, should be adequate to deter unwarranted in forma pauperis applications. Once the appropriate finding has been made, the court may use a number of methods to limit the costs of the appeal. In the first instance, the court need only order “limiting” the record as a further means of reducing costs. This step might involve asking the appellant to identify the specific issues being appealed, providing only a partial transcript, using findings of fact to narrow the issues, or using the provisions of Rule 74(d) for limiting the record to an agreed statement of the parties. See also Rule 76F(d).


Rule 91 is added to provide generally for in forma pauperis proceedings in civil actions under the rules. This extension of the right to proceed in forma pauperis formerly provided for divorce and separate support and custody actions under Rules 80(l) and 80G(h) is deemed necessary because of the substantial increase in filing fees made by the April 1, 1983, amendments to Rule 54A and D.C.C.R. 54A. Rule 91(a) is taken from present Rule 80(l)(1), with the addition of language making clear that that rule also applies to motions requiring service under Rule 4. See, e.g., Rule 80(j). Rules 91(b) and (c) are taken from present Rule 80(l)(2) and (3), with the addition of a requirement that the court find that the action is brought in good faith. This provision is necessary to prevent abuse of the rule and unnecessary resort to the reimbursement provisions set forth in Rule 91(d). To eliminate doubt as to the time of entry, subdivision (b) makes clear that the action is to be treated as entered as of the filing, subject to dismissal without prejudice if the application is denied. Under subdivision (c), an application for costs of serving the complaint must be

filed with the complaint. Thus, all in forma pauperis actions must be commenced by filing rather than by service. See Rule 3. Rule 91(d) is taken from Vermont Rule of Civil Procedure 80(l)(3). It provides for recovery of any disbursements for entry or service against a non-indigent opponent if the plaintiff or moving party prevails. The court should assess the opponent’s financial status in the same manner as an applicant’s status is assessed upon granting leave to proceed in forma pauperis. The rule also provides for reimbursement by the plaintiff or moving party of any fees or costs waived or paid if his financial condition changes during the pendency of the action. Again, the court should apply the same standard in determining financial ability. The rule makes clear that the court Administrator may recover for the court all sums for which any party becomes liable under its provisions.

RULE 92 COURT ALTERNATIVE DISPUTE RESOLUTION SERVICE

This rule shall govern the operation of the Court Alternative Dispute Resolution Service established pursuant to 4 M.R.S. § 18-B. (a) Alternative Dispute Resolution in General Civil Actions. (1) Rule 16B Referrals in the Superior Court. Unless exempted, all contested civil actions filed in or removed to the Superior Court are subject to the alternative dispute resolution (ADR) process specified in Rule 16B. (2) Referees. Rule 53 governs reference of cases in the Superior Court or the District Court, including reference of family matters. (3) CADRES Referrals Not Otherwise Governed. By agreement of the parties or in the court’s discretion upon a finding of good cause, any civil action not otherwise governed or exempted by statute, rule, or order, may be referred to ADR through the Court Alternative Dispute Resolution Service (“CADRES”) or another ADR agreed to by the parties. The following applies to civil actions referred to ADR through CADRES: (A) Administrative Fee. If the referral is made through CADRES, the parties shall pay an administrative fee, which shall be shared equally by the parties and paid to the clerk, unless in forma pauperis status has been granted pursuant to Rule 91; (B) Notification to CADRES. Upon payment of the administrative fee, the clerk shall notify CADRES of payment and send a copy of the referral order to CADRES; (C) Selection of Provider. Except when proceeding pursuant to Rule 16B or Rule 53, in actions referred to mediation or another form of ADR through CADRES, the parties shall select their ADR provider from the roster approved by CADRES; (D) Date and Location of ADR. Once selected, the ADR provider shall assist the parties in arranging a mutually agreeable date, time, and location for mediation. ADR may take place at a courthouse, if space is available and if authorized by the clerk; and

(E) Compensation to Provider. The parties and the ADR provider shall negotiate and agree on compensation for services, and such compensation shall be paid directly to the ADR provider.

(b) Mediation of Family Matters. (1) Mediation Required. All contested divorce, parental rights, judicial separation, and child support actions shall be referred to mediation, unless mediation is waived pursuant to 19-A M.R.S. § 251(2)(B). (2) Mediation Optional. Actions for visitation rights of grandparents, emancipation of minors, paternity, and motions to modify a preliminary injunction, motions to enforce a judgment, and motions for contempt may be referred to mediation. (3) Mediation Not Available. Protection from abuse and protective custody actions (other than those that may be specially referred or included in a pilot mediation program) are not subject to referral to mediation.

(4) Court Defined. As used in this subdivision (b) of the Rule, the term “Court” includes a Justice, Judge or Family Law Magistrate. (5) CADRES Referral. In all contested family matters referred to mediation through CADRES, the following shall apply: (A) Date and Location of Mediation. Mediation shall occur prior to the assignment of a hearing date unless otherwise ordered by the court. Mediation shall be scheduled to occur within 28 days of the order for mediation, unless otherwise ordered by the court. Mediation shall be held at a courthouse, unless otherwise authorized by the court or the Director of CADRES; (B) Mediation Fee. A mediation fee as set by the court shall be paid by the date ordered, which shall be before the mediation or when mediation is requested by a party. The fee entitles the parties to two mediation sessions. An additional mediation fee is due for any further mediation. When a mediation session is not held due to failure of one or more participants to appear, the court may reschedule the mediation session at no additional cost and/or impose sanctions. No mediation fee is required for mediation of motions solely to enforce child support orders or when mediation is requested by the Department of Health and Human Services;

(C) Apportionment and Payment of Mediation Fee. The mediation fee shall be shared equally by the parties, unless otherwise ordered by the court. In ordering payment of the mediation fee, the court shall specify the amount due by each party with a payment date; (D) Assignment of Mediators. Mediators on the Domestic Relations Mediation Roster shall notify the clerk of the courts to which they are assigned by CADRES of the dates and times at which they are available to mediate. The clerks shall assign mediation to eligible rostered mediators on a rotating basis that is generally equitable over time. If a party or attorney requests assignment of a specific mediator, the clerk shall attempt to honor that request to the extent practicable. If a party or attorney objects to the assignment of a certain mediator, the clerk shall honor that request and assign a different mediator. At least twice annually, CADRES shall supply to every District Court a current list of mediators on the Domestic Relations Mediation Roster for that court; (E) Attendance at Mediation. Each party and their attorney, if any, shall be present at mediation and shall make a good faith effort to mediate all disputed issues. In exceptional circumstances, a party may participate by telephone with the prior approval of the court. If any party or attorney fails to attend or to make a good faith effort to mediate, the court may impose appropriate sanctions; (F) Exchange of Information. If any financial issues, including child support, spousal support, or property division are contested, each party shall complete and file with the court, with a copy to the other party, a properly completed Child Support Affidavit, Child Support Worksheet and Financial Statement. When required, these documents shall be filed with the court at least three (3) business days prior to the scheduled mediation; and (G) Continuances. A party requesting a continuance of a mediation session shall file a written motion with the clerk at least four (4) days in advance of the scheduled mediation, and shall otherwise comply with the requirements of Rule 40(c), including the requirement that the motion to continue or cancel a scheduled mediation must be filed immediately after the cause or grounds becomes known. All continuance requests shall be heard and ruled on by the court. A mediator may not grant a continuance for mediation or reschedule a mediation session. (c) Mediation of Small Claims.

(1) Mediation Required. The parties to all Small Claims cases may be required to participate in mediation as ordered by the court. This requirement does not apply to Small Claims disclosure actions, which are not subject to referral to mediation. (2) Date and Location of Mediation. Mediation shall take place on the hearing date, unless all parties agree to hold mediation prior to the hearing date, and CADRES is able to arrange for mediation. Mediation shall take place at a courthouse, unless otherwise authorized by the court or the CADRES Director. (3) Mediation Fee. The mediation fee is included in the small claims filing fee, and no additional fee is required for mediation. (4) Assignment of Mediators. The clerk of court, or a designee, shall notify CADRES of all dates on which the Small Claims docket is to be scheduled, as well as any subsequent scheduling changes. CADRES shall assign one or more mediators to provide mediation services at every scheduled Small Claims docket. At least twice annually, CADRES shall supply to every District Court a current list of Small Claims mediation assignments, as well as a current list of mediators on the Small Claims Mediation Roster. (5) Continuances. All requests for continuance of mediation or a hearing date shall be presented to and ruled on by the court. A mediator may not grant a continuance for mediation or a hearing date in a Small Claims case.

(d) Mediation of Land Use and Natural Gas Pipeline Matters. (1) Referral to Mediation. All requests for mediation of land use or natural gas pipeline matters pursuant to 5 M.R.S. §§ 3341 or 3345 shall be referred to CADRES upon the filing of an application with the Superior Court as required by 5 M.R.S. §§ 3341(4) and 3345(4). The original application will be docketed and retained by the clerk in an “SA” file, and a copy sent to the CADRES Director. In addition to these statutory land use matters, any case involving a land use dispute may be referred to CADRES at the discretion of the court or on request of the parties.

(2) Date and Location of Mediation. Once the mediator is selected, the mediator shall assist the parties in arranging a mutually agreeable date, time and location for mediation. The mediation may take place at a courthouse, if space is available, and if authorized by the clerk.

(3) Mediation Fee. The fee for the initial land use and natural gas pipeline mediation session is payable by the landowner who submits the application. Additionally, the CADRES Director shall determine the cost of providing notice, if any, which the landowner shall pay prior to the scheduling of mediation. If subsequent mediation sessions occur, the parties and mediator shall agree on an appropriate fee arrangement. (4) Selection of Mediator. The parties shall choose their mediator from the Land Use and Environmental Mediation Roster list provided by CADRES. A list of mediators on the Land Use and Environmental Mediation Roster shall be available to the public in printed copy upon request and posted on the Judicial Branch website, where it shall be updated at least twice annually.

(e) Mediation of Environmental Enforcement Actions. (1) Referral. All requests for mediation pursuant to 38 M.R.S. § 347-A shall be referred to CADRES upon the receipt of a request from a party.

(2) Mediation Fee. A fee for environmental enforcement mediation shall be paid. If an action pursuant to Rule 80K is not already pending, the additional applicable filing fee is required. Notwithstanding the general exemption for state agencies from payment of fees, the State of Maine Department of Environmental Protection (DEP) shall pay one-half of the fee and may pay the entire fee. The DEP is exempt from payment of any filing fee. (3) Selection of Mediator. The parties shall choose their mediator from a Land Use and Environmental Mediation Roster provided by CADRES. A current listing of the mediators on the Land Use and Environmental Mediation Roster shall be available to the public in printed copy upon request and posted on the Judicial Branch website, where it shall be updated at least twice annually. (4) Date and Location of Mediation. Once the mediator is selected, the mediator shall assist the parties in arranging a mutually agreeable date, time, and location for mediation. The mediation may take place at a courthouse, if space is available, and if authorized by the clerk. (f) Mediation in Forcible Entry and Detainer Actions.

(1) Mediation Required. The parties to all Forcible Entry and Detainer actions may be required to participate in mediation as ordered by the court. The court may not order mediation if no mediator is available on the hearing date or if mediation would delay the hearing. (2) Date and Location of Mediation. Mediation shall take place on the hearing date, unless all parties agree to hold mediation prior to the hearing date, and CADRES is able to arrange for mediation. Mediation shall take place at a courthouse, unless otherwise authorized by the court or the CADRES Director. (3) Mediation Fee. The mediation fee is included in the filing fee. (4) Assignment of Mediators. The clerk of court, or a designee, shall notify CADRES of all dates on which the Forcible Entry and Detainer docket is to be scheduled, as well as any subsequent scheduling changes. CADRES shall assign one or more mediators to provide mediation services at every scheduled Forcible Entry and Detainer docket. At least twice annually, CADRES shall supply to every District Court a current list of Forcible Entry and Detainer mediation assignments, as well as a current list of mediators on the Forcible Entry and Detainer Mediation Roster. (5) Continuances. All requests for continuance of mediation or a hearing date shall be presented to and ruled on by the court. A mediator may not grant a continuance for mediation or a hearing date. (g) Sanctions. If a party or party’s attorney fails to appear at mediation or other ADR process scheduled pursuant to this Rule, or fails to comply with any other requirement of this Rule or any court order issued pursuant to this rule, the court may, upon motion of a party or on its own motion, order the parties to submit to mediation or other ADR, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances. In lieu of or in addition to any other sanction, the court shall require the party or attorney, or both, to pay reasonable expenses, including attorney fees, of the opposing party, and any fees and expenses of a neutral, incurred by reason of the nonappearance, unless the court finds that an award would be unjust in the circumstances.

Advisory Notes December 2007

Upon recommendation of CADRES, subdivisions (a)(3)(A), (d)(3), and (e)(2) of M.R. Civ. P. 92 are amended to delete references to specific fees. Fees for these ADR or mediation sessions will now be set in the Court Fees Schedule or other court order. The adoption of Rule 92(f), and the concurrent amendment to Rule 80D(e), implements the program for available mediation in forcible entry and detainer matters authorized by the Legislature, enacting 14 M.R.S. § 6004-A in P.L. 2007, chap. 246, effective January 1, 2008. The mediation offered in these matters is intended to be similar to the mediation presently offered in Small Claims matters. Mediation should not be a cause for delay of hearings in these matters. The provisions of 14 M.R.S. § 6004-A relating to good faith participation and sanctions are similarly addressed in the Sanctions provisions in subdivision (g). The issue of fees must be separately addressed in the Court Fees Schedule.

Advisory Notes May 2007

The proposed addition of Rule 92 to the Maine Rules of Civil Procedure implements the requirement of 4 M.R.S. § 18-B(9) that the Supreme Judicial Court adopt rules governing the referral of cases to the Court Alternative Dispute Resolution Service (“CADRES”). It also consolidates rules that formerly appeared in the Uniform Domestic Relations Administrative Order (JB-00-05) and the Rules for Referral to CADRES, and it provides the public with an initial point of reference to navigate Alternative Dispute Resolution (ADR) options in the court system. Rule 92 addresses mediation in general civil actions, family and domestic relations matters, small claims cases, cases involving land use and natural gas pipeline location issues, and Department of Environmental Protection enforcement matters. The Rule includes a subdivision (f) providing for sanctions for non-compliance with ADR rule requirements or court orders implementing ADR requirements. Subdivision (f) does not limit a court’s inherent authority to impose sanctions on misconduct or the court’s general authority to impose sanctions pursuant to M.R. Civ. P. 11 or 66.

The Rule is supported by conforming amendments to M.R. Civ. P. 80K and to Rule 5 of the Maine Rules of Small Claims Procedure.

Last reviewed and edited January 5, 2010 Rule adopted effective January 1, 2010

RULE 93. FORECLOSURE DIVERSION PROGRAM

This Rule shall govern operation of the Foreclosure Diversion Program. (a) Definitions. As used in this Rule, the following terms shall have the following meanings: (1) “Commercial loan” means a loan made to a borrower in which the proceeds of the loan are not used, in whole or in part, for personal, family or household purposes, and/or are not used to refinance a loan made in whole or in part for personal, family or household purposes. (2) “Foreclosure action” means any civil action initiated pursuant to title 14, chapter 713 of the Maine Revised Statutes (14 M.R.S. §§ 6101-6325) to foreclose on a property subject to a mortgage or other note or bond secured by that property, other than a State mortgage pursuant to 14 M.R.S. §§ 6151-6153. (3) “Owner-occupant” means an individual who is the mortgagor of a residential property that is that individual’s primary residence. The term may include: (A) two or more individuals who are joint mortgagors of that residential property, and (B) a mortgagor of a residential property who resided at that property as that individual’s primary residence within 180 days prior to commencement of the foreclosure action and has not established primary residence at another property subject to a mortgage with that individual as the mortgagor. (4) “Primary residence” means a residential property that is an individual’s principal place of abode. (5) “Residential property” means a single residential real property including: (A) not more than four residential units owned by the mortgagor, or (B) a single condominium unit owned by the mortgagor within a larger residential condominium property. (b) Foreclosure Diversion Program Application and Administration. (1) Actions Covered. This Rule shall govern all foreclosure actions filed after December 31, 2009, against a defendant who is an owner-occupant. This Rule shall also govern all foreclosure actions that are filed on or before

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December 31, 2009, against defendants who are owner-occupants, and who are ordered by the court to mediation pursuant to subsection (q) of this Rule. (2) Manager. The Manager of the Foreclosure Diversion Program, under the direction of the State Court Administrator or designee, shall manage the Foreclosure Diversion Program and shall supervise the:

(A) Establishment and support of the Foreclosure Diversion Program state-wide; (B) Identification and qualification of persons to be mediators in the Program; (C) Training and certification of individuals to be mediators pursuant to this Rule; (D) Trial court clerks’ scheduling of mediations required or requested pursuant to this Rule; (E) Payment of mediators for services pursuant to this Rule; (F) Preparation and filing of reports about mediations conducted pursuant to this Rule and of such other reports and recommendations regarding the Foreclosure Diversion Program as may be required by the Supreme Judicial Court, or the State Court Administrator or designee; and (G) Development and implementation of policies, procedures, and forms to manage, evaluate, and report about the Foreclosure Diversion Program. (3) Mediators. (A) Active Retired Justices or Judges may be assigned by the Chief

Justice or Chief Judge of their courts to act as Foreclosure Diversion Program mediators after receiving the required training; and

(B) Other persons eligible to be certified as mediators pursuant to this

Rule shall:

(i) Be educated and experienced in the professions of law, accounting, banking, or mediation; have work experience that includes foreclosures, credit and collections work; or have done work

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on behalf of creditors or debtors in actions to collect on mortgages, notes, or debts; (ii) Have successfully completed training provided by the Foreclosure Diversion Program; (iii) Have received a certificate of qualification to serve as mediators from the Foreclosure Diversion Program subject to such terms and conditions as deemed appropriate; and (iv) Have a laptop computer that is compatible with court printers for use at all mediation sessions. In the alternative, mediators may use laptops or other portable computers and portable printers.

(c) Foreclosure Diversion Program Participation Requirements.

(1) Answers: Request for Mediation. Within 20 days after being served with a summons and complaint each defendant shall (i) serve an answer to the complaint on the plaintiff, and (ii) file a copy of that answer with the court. To answer foreclosure complaints and request mediation, defendants may use the one-page form approved and developed by the Department of Professional and Financial Regulations, Bureau of Consumer Credit Protection, or may file an answer that complies with M.R. Civ. P. 12(a) and also requests mediation. However, if a defendant appears or otherwise requests mediation in the action within 20 days after service of the summons and complaint, but does not file an answer to the complaint, mediation shall be scheduled in accordance with this Rule, and the deadline for filing an answer shall be extended until 20 days after a final mediator’s report is filed with the court or until 20 days after the court waives mediation or orders that mediation shall not occur.

(2) Mediation. The court will schedule a mediation session for each foreclosure action filed against a defendant who is an owner-occupant and who appears, answers, or otherwise requests mediation in the action within 20 days after service of the summons and complaint. It is within the court’s discretion whether to schedule mediation in actions in which the defendant fails to timely appear, answer, or otherwise request mediation, but has not been defaulted pursuant to M.R. Civ. P. 55. (3) Informational Sessions. The Foreclosure Diversion Program is authorized to design and implement informational sessions, and the court may, in

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its discretion, schedule informational sessions and order parties, counsel, and others to attend. (4) Financial Forms to be Provided. In addition to the pleading requirements specified by statute and Court Rules, a plaintiff shall file and serve with the foreclosure complaint a set of financial forms requesting information from the defendant that would allow the plaintiff to consider or develop alternatives to foreclosure or otherwise facilitate mediation of the action. These forms may be forms designed by individual lenders or standardized forms developed by the federal government, a state agency, or some other group, provided that the forms sent by the plaintiff are the forms that it will use in considering or developing alternatives to foreclosure. With each set of financial forms served on a defendant, the plaintiff must include an envelope large enough to contain the forms. The envelope shall be addressed to the plaintiff’s attorney, to whom this information will be sent. (5) Completion and Return of Forms. Defendants shall send one set of copies of all of the completed financial documents to plaintiff’s attorney AND one set of copies of all of the completed financial documents to the court no later than 21 days after the informational session, if one is held, or no later than 42 days after service of the complaint and summons, if no informational session is held. If plaintiff’s attorney has not received the forms by the 23rd day after the informational session, if one is held, or by the 44th day after service of the complaint and summons, if no informational session is held, plaintiff’s attorney shall notify the court in writing that the defendant has failed to comply with this requirement for mediation, and shall send a copy of this notice to the defendant. If the defendant has failed to attend a scheduled informational session and has failed to send the required paperwork to plaintiff’s counsel on time, the court may order that mediation not occur and return the case to the regular court docket. (d) Deferral of Dispositive Motions and Requests for Admissions.

(1) Generally. When a defendant, who is an owner-occupant, appears, answers, or otherwise requests mediation within 20 days after service of the summons and complaint in a foreclosure action filed after December 31, 2009, or when mediation is ordered by the court pursuant to subsections (c)(2) or (q), no dispositive motions or requests for admissions shall be filed until five (5) days after mediation is completed and a final mediator’s report is filed with the court, or until the court orders that mediation shall not occur.

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(2) Exception for Commercial Loans. In any actions where the mortgage acts as collateral given solely to secure a commercial loan, counsel for the plaintiff, or the plaintiff, if unrepresented by counsel, may file and serve with the complaint a motion requesting exemption from the deferral provided for in section (1). The motion shall be subject to Rule 11(a), and shall include both the assertion that the loan is a commercial loan, as well as the factual basis for that assertion. The motion shall be accompanied by a proposed order setting forth the specific relief requested. In any proceeding to determine whether section (1) should apply, the plaintiff must establish, by a preponderance of the evidence, that the mortgage was given solely to secure a commercial loan. If the court determines that the plaintiff has met this burden, section (1) shall not apply unless the court concludes that its application is in the best interests of justice.

(e) Timing of Informational Session and Mediation. (1) If the court requires a defendant or other party to attend an informational session before mediation, the clerk shall send an informational session scheduling order listing the date of the informational session to the defendant and any other party required to attend, and shall provide a copy of that order to the plaintiff. (2) Not more than 7 days after the scheduled informational session that the defendant was notified to attend, the clerk shall send a foreclosure mediation scheduling order to all parties, unless the court orders that mediation not occur. (3) When the court does not require the defendant to attend an informational session, the clerk shall send a foreclosure mediation scheduling order to all parties, so as to not delay the start of the mediation process. (4) Unless the parties agree otherwise or unless the court extends the deadline pursuant to subsection (i), mediation shall be completed not later than 90 days after the clerk sends the mediation scheduling order to the parties. (f) Contents of the Foreclosure Mediation Scheduling Order.

The mediation scheduling order shall contain a list of information that the parties are required to file with the court, exchange with each other in advance, or bring to the mediation session(s).

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(g) Mediation Issues.

The mediation shall address all issues of foreclosure, including but not limited to: (1) proof of ownership of the note and any assignments of the note; (2) calculation of the sums due on the note for principal, interest, and any costs or fees, reinstatement of the mortgage, and modification of the loan; and (3) restructuring of the mortgage debt. Foreclosure mediations shall utilize the calculations, assumptions and forms established by the Federal Deposit Insurance Corporation and published in the Federal Deposit Insurance Corporation Loan Modification Program Guide, as set out on the Federal Deposit Insurance Corporation’s publicly accessible website.

(h) Participation in Mediation. (1) A mediator shall include in the mediation process any person the mediator determines is necessary for effective mediation, including a property lien holder, other creditor or party-in-interest whose participation is essential to resolution of issues in the foreclosure. Mediation and appearance in person is mandatory for:

(A) the defendant; (B) counsel for the defendant, if represented; (C) counsel for the plaintiff; and (D) the plaintiff, or representative of the plaintiff, who has the authority to agree to a proposed settlement, loan modification, or dismissal of the action. When the plaintiff is represented by counsel who has authority to agree to a proposed settlement and is present, the plaintiff or its representative may participate by telephone or video.

(2) For persons who are not the plaintiff or the defendant in the pending civil action, or their attorneys, participation is voluntary and the mediation shall proceed in the absence of such a person if that person declines to participate in the mediation. (3) When a plaintiff participates by telephone, plaintiff’s counsel shall ensure the quality of the connection is sufficient to allow clear communication for the duration of the session. Plaintiff’s counsel may be required to furnish a speakerphone for use in the mediation room, or elsewhere. When telephone

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equipment is available, the plaintiff’s counsel shall make arrangements at plaintiff’s expense for reaching the plaintiff at a toll free number or through the use of automated conference call services. Plaintiff will comply with all requests contained in the mediation scheduling order, including requests for information about telephone participation or video participation. Requests for video participation must be made at least 10 days before the scheduled mediation session. (i) Multiple Sessions.

Mediators are authorized to schedule additional or follow-up sessions, if necessary. Such sessions will be conducted in the same manner as the original session, and will not extend the time limit to complete mediation set in subsection (e)(4) unless the parties agree to such an extension or unless the court finds that such an extension is necessitated by a plaintiff’s delay.

(j) Good Faith Effort.

If a plaintiff or defendant or attorney fails to attend or to make a good faith effort to mediate, the mediator shall inform the court, and the court may impose appropriate sanctions. Sanctions may include, but are not limited to, the assessment of costs and fees, assessment of reasonable attorney fees, entry of judgment, permitting dispositive motions and/or requests for admissions to be filed, entry of an order that mediation shall not occur, dismissal without prejudice, dismissal without prejudice with a prohibition on refiling the foreclosure action for a stated period of time, and/or dismissal with prejudice.

(k) Continuing or Canceling Mediation. (1) If either party needs to have a mediation session continued, that party shall file a motion requesting such change with the court and serve a copy upon all opposing parties. If the motion is granted, the party requesting a continuance shall inform, in writing, all other parties and the mediator of any change approved. (2) If the parties agree to a settlement, and have filed a dismissal of the action at least 48 hours before the scheduled mediation, mediation will be cancelled by the clerk. (3) If the plaintiff or the defendant or the mediator appears at the original mediation date and time because the party requesting the continuance failed to timely advise all other parties or the mediator, the offending party or counsel may be sanctioned.

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(l) Location of Mediation Sessions.

Mediation sessions will be held at court locations, whenever possible. The Foreclosure Diversion Program Manager may approve use of an alternate site if the parties and mediator agree upon a location, or if courthouse resources cannot accommodate mediation sessions. The original case file shall not leave Judicial Branch buildings.

(m) Waiver of Mediation.

A defendant may request that mediation be waived by filing a completed “motion to waive” form with the court. If the defendant files that motion, the court may waive mediation only upon a finding by the court that:

(A) there is good cause to waive mediation, and (B) the defendant is making a free choice to waive mediation after being informed of the options and services that may be available through mediation.

(n) Mediator’s Reports. (1) Not later than 7 days following the mediation session, each mediator shall complete and file with the court a report for each mediation session, including follow-up sessions, conducted pursuant to this Rule. (2) The mediator shall also send a copy of each mediator’s report to the Foreclosure Diversion Program and shall send or deliver copies of each report to the parties at the time of filing.

(3) In the final mediator’s report, the mediator shall indicate that the parties fully completed the Net Present Value Worksheet found in the Federal Deposit Insurance Corporation Loan Modification Program Guide or explain the reasons why the parties did not complete this worksheet.

(4) If the final mediator’s report indicates a failure to reach agreement or any result other than a settlement or dismissal of the case, the final report shall include the outcomes of the Net Present Value Worksheet and must note any points of agreement reached during the mediation.

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(o) No Waiver of Rights.

No party waives any rights in the foreclosure action by participating in informational sessions or foreclosure mediation.

(p) Information and Confidentiality. (1) Parties shall submit all information required by the Foreclosure Diversion Program or Foreclosure Diversion Program mediator. (2) Admissibility of evidence of statements made or discussions occurring during mediation is subject to M.R. Evid. 408. (3) Disclosures by a mediator of statements or actions occurring during mediation or of information acquired during mediation shall be subject to the same limitations as are stated in M.R. Civ. P. 16B(k) and M.R. Evid. 514. A mediator shall keep confidential and not disclose financial documents, worksheets and information received during the course of the mediation, except as such information may be used to facilitate the mediation session or as disclosure is otherwise authorized by court order. (4) Except for financial information included as part of the foreclosure complaint or any answer or response filed by the parties, any financial statement or information provided to the court, a mediator, or to the parties during the course of mediation is confidential and is not available for public inspection. Any financial statement or information shall be made available, as necessary, to the court, the attorneys whose appearances are entered in the case, the mediator assigned to the matter, and the parties to the mediation. Any financial statement or information designated as confidential under this subsection, if filed with the court, shall be sealed and kept separate from other court papers in the case and may not be used for any purposes other than mediation. (5) Information needed for statistical purposes, and for the evaluation and improvement of the Foreclosure Diversion Program will be collected. (q) Optional Availability of Mediation. (1) In addition to those foreclosure actions for which mediation is mandatory pursuant to this Rule and 14 M.R.S. § 6321-A, a defendant who is an owner-occupant in any foreclosure action that was pending but had not yet resulted in final judgment as of January 1, 2010, may request by motion that the court order

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mediation pursuant to this Rule. The court may order mediation pursuant to this Rule if:

(A) after consulting with the Foreclosure Diversion Program Manager, the court determines that mediation resources are available to perform the mediation; and (B) the court finds that mediation will not unduly delay the proceedings or result in prejudice to the plaintiff.

(2) When optional mediation is ordered pursuant to paragraph (1):

(A) the court may order the plaintiff to send the financial forms described in subsection (c)(4) of this Rule to the defendant; (B) the court may order the parties to attend an informational sessions prior to mediation; (C) the filing of dispositive motions and requests for admissions shall be deferred until five days after mediation is completed and a final mediator’s report is filed with the court; and (D) in any action filed prior to June 15, 2009, the plaintiff shall pay the Mediation in Foreclosure action fee established in the Court Fees Schedule.

Advisory Notes January 2010

Rule 93 of the Maine Rules of Civil Procedure is adopted to implement,

statewide, the foreclosure service and notice requirements adopted in 14 M.R.S. § 6111(1-A) and the Foreclosure Mediation Program authorized in 14 M.R.S. § 6321-A. The Court is acting pursuant to its general rulemaking authority and specific authority to act on this issue established by 4 M.R.S. § 18-B(12). Rule 93 tracks fairly closely the Rules adopted for the Foreclosure Diversion Program Pilot Project in York County that were implemented by Administrative Order JB-09-03, effective August 3, 2009. This draft includes adjustments to recognize the experience gained in the Pilot Project.

The statute indicates that the foreclosure diversion program is to take effect

statewide on January 1, 2010. Thus the draft indicates that actions not subject to

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the new rules are those actions filed on or before December 31, 2009, and actions subject to the new rules are those actions filed after December 31, 2009.

Rule 93 includes sections (a) through (q) as follows:

Section (a) includes definitions of important terms.

-- the commercial loan definition covers loans used exclusively for commercial purposes, with the intention that the mortgages securing those loans may be exempted from the delay imposed on motion practice by section (d)(1).

-- the foreclosure action definition essentially covers the foreclosure

provisions in title 14, chapter 713 of the Maine Revised Statutes, excepting State mortgages;

-- the owner-occupant definition includes a look-back provision, not

in the statute, to include people who may have left their home in the last six months because they could not afford to live in it and perhaps found a renter or abandoned the home. Persons who have left their homes could not qualify if they have assumed another mortgage;

-- the primary residence definition is based on case law addressing

the residence issue, see e.g., State v. Falcone, 2006 ME 90, ¶¶ 7-11, 902 A.2d 141, 143-44;

-- the residential property definition follows 14 M.R.S. § 6321-A(3)

as to what properties qualify, with the added reference to a single condominium unit, which could be in a larger than four unit building. Section (b)(1) indicates that Rule 93 governs all foreclosure actions filed

after December 31, 2009, against defendants who are owner-occupants. Rule 93 also may govern foreclosure actions filed before December 31, 2009 against defendants who are owner-occupants, but only when a court orders the parties to participate in mediation. The manager description section (b)(2) is self-explanatory. The mediator description in section (b)(3) follows the statute in addressing active retired judges separately from others who may seek to be mediators. For

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others there are relevant training, education, and experience qualifications described in (b)(3)(B). Section (c) establishes filing, response and scheduling requirements for the program. Subsection (c)(1) addresses the requirement for defendants to file answers in addition to appearing in or otherwise requesting mediation in the action. Although 14 M.R.S. § 6321-A(6) did not limit the time period during which a homeowner could request mediation, the Rule includes such a limitation in order to both expedite the mediation process and limit the delay imposed. Defendants who do not properly answer or otherwise respond may be subject to default pursuant to M.R. Civ. P. 55. Subsection (c)(2) generally establishes the mandatory mediation process for foreclosure actions filed after December 31, 2009, against defendants who are owner-occupants. It also recognizes that a plaintiff may proceed to seek a default judgment pursuant to M.R. Civ. P. 55 if a properly served defendant completely fails to respond to an action. Subsection (c)(3) gives courts discretion to order defendants and others to attend informational sessions before participating in mediation. The informational sessions, when they can be held, will be used to educate individuals about the law, process and paperwork involved in foreclosure actions so that they may better understand their options as the action proceeds. Subsections (c)(4) and (5) outline the duties of the plaintiff and defendant in coordinating the preparation and exchange of financial information needed for the parties to consider alternatives to foreclosure. The rule requires homeowners to provide the requested financial information necessary within a relatively short period of time, again in order to expedite the mediation process and to avoid delay. The date the defendant must return the financial forms to plaintiff’s counsel, with a copy of the forms sent to the court, is dependent upon whether the defendant is required to attend an informational session. If the defendant fails to attend an informational session and fails to send the required paperwork with plaintiff’s counsel on time, the court may order that mediation will not occur, and return the foreclosure case to the regular court docket. Section (d)(1) addresses the deferral of dispositive motions and requests for admissions for all cases where mediation has been ordered. This is designed to allow the parties to focus on the mediation process, and is based on 14 M.R.S. § 6321-A(9), which requires that when a defendant has responded to an action, there be no entry of judgment before mediation is completed. However, subsection

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(d)(2) provides that cases involving commercial loans may be exempted from the deferral by order of the court. Section (e) describes the timing of notice to the parties regarding informational sessions and mediation. The Rule imposes a 90-day limit on the mediation process, in order to ensure that mediation occurs as expeditiously as possible. Section (f) authorizes the court to require parties to gather and exchange specific financial information in the foreclosure mediation scheduling order. Section (g) outlines the issues to be addressed in mediation. It is based on 14 M.R.S. § 6321-A(3) with proof of mortgage ownership and calculation of sums due issues added. Section (h) addressing mandatory and discretionary participation in mediation is based on 14 M.R.S. § 6321-A(11) with lien holders and other essential creditors added. It also addresses requirements for remote participation in mediation sessions. Section (i) authorizes mediators to schedule additional mediation sessions, if determined necessary by the mediator, provided that the time limit to complete mediation is not exceeded, unless the parties agree to or the court has ordered an extension. Section (j), the good faith provision, is based on 14 M.R.S. § 6321-A(12). Although section (j) lists some sanctions available to the court, it is not meant to limit a court’s authority to devise other forms of appropriate sanctions. Section (k) outlines the procedure for parties to request continuances or cancellations of scheduled mediation sessions and to inform the mediator and other parties of such requests. Section (l) specifies that mediations will be conducted at court locations, whenever possible. If the parties would prefer an alternate location, or if courthouse resources cannot accommodate mediation sessions, the Foreclosure Diversion Program Manager may permit the session to occur in an alternate site. Original case files may not be removed from Judicial Branch buildings. Section (m) addresses waiver of mediation with court approval. Only defendants may request waiver of mediation.

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Section (n) regarding mediator’s reports is based on 14 M.R.S. § 6321-A(13), with an added reference to points of agreement to be reported. Section (o) specifying that no party waives any rights by participating in informational sessions or mediation tracks 14 M.R.S. § 6321-A(5). Section (p) addressing mediation confidentiality and the confidentiality of information provided or developed during the mediation process, is based on 14 M.R.S. § 6321-A(4) with added reference to M.R. Evid. 408, 514, and M.R. Civ. P. 16B(k). Section (q) authorizes courts in their discretion, and after consultation with the Foreclosure Diversion Program Manager, to order parties to foreclosure actions involving defendants who are owner-occupants, which were filed before January 1, 2010, and have not yet resulted in a final judgment to participate in mediation. One requirement for participation in this program is payment of the mediation fee. That fee, set in the Court Fees Schedule, is currently $200. The Rule does not specify the fee amount because the Fees Schedule is subject to change.

XIII. FAMILY DIVISION

[Chapter XIII , Rules 100 – 125, is effective January 1, 2009]

RULE 100. SCOPE OF THE FAMILY DIVISION RULES The rules in this chapter shall govern procedure in the District Court

and, where applicable, procedure on post-judgment motions in the Superior Court, in all actions for divorce, annulment, judicial separation, paternity or parentage, parental rights and responsibilities, child support, emancipation, visitation rights of grandparents, and any post-judgment motions arising from these actions. The District Court shall have exclusive jurisdiction over such actions, except that (1) any issue on which there is a constitutional right to a trial by jury may be heard and decided by a jury in the Superior Court upon a proper and timely request for transfer in accordance with Rule 76, and (2) the Superior Court may continue to hear post-judgment motions in actions that were pending or concluded in the Superior Court on or before December 31, 2000 and have not been transferred to the District Court. Reference to the court within this chapter includes District Court Judges, Superior Court Justices, and Family Law Magistrates, unless otherwise specified.

The Maine Rules of Civil Procedure shall govern all matters not addressed in these Family Division Rules.

The rules in this chapter shall be construed to provide a system of justice that is responsive to the needs of families and the support of their children.


Rule 100 governs the scope of Chapter XIII for cases now within the

exclusive jurisdiction of the District Court. The rule is derived from Rule 80(a) and FAM DIV I.A. The listing of covered subjects is based on the current Family Division Rules. Although child protection, protection from abuse, and juvenile actions also involve families, such actions have specialized and unique procedures. Those procedures are significantly different from actions that have historically been referred to as family matters. As a result, it was determined that at this time, it would be more appropriate to exclude those actions from the general Family Division Rules.

The first paragraph recognizes that the District Court has exclusive jurisdiction over such matters, but also recognizes the possibility that there may be a state constitutional right to a jury trial on certain limited issues within these cases.

The rule uses the term “parentage actions” to recognize de facto parents. See, e.g., Young v. Young, 2004 ME 44, 845 A.2d 1144; C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146; Stitham v. Henderson, 2001 ME 52, 768 A.2d 598; Merchant v. Bussell, 139 Me. 118, 27 A.2d 816 (1942). Parties raising de facto parentage issues must conform to the provisions of this chapter.

Although not restated here, this chapter promotes the goals of the

Family Division provided in FAM DIV II.B.1 Rule 100 outlines the mission of the Family Division which is that the rules shall be construed to provide a system of justice that is responsive to the needs of families and the support of their children as stated in 4 M.R.S. § 183. See also, FAM DIV II.A.

Matters not addressed in the Family Division Rules are governed by

the other provisions of the Maine Rules of Civil Procedure.

1 The goals of the Family Division as stated in Fam. Div. II.B. have been: 1. To promote a timely resolution of family cases. 2. To address promptly the establishment or modification of child support and to promptly enforce compliance with support orders and all other orders in family cases. 3. To provide effective case management for family cases involving children. 4. To facilitate parenting arrangements in the best interest of children at an early stage in the proceedings. 5. To promote education for the parties about parenting issues and to inform litigants about community services available to help them address family problems. 6. To provide court users with a better understanding of court processes. 7. To identify domestic relations cases in which there is domestic abuse or a power imbalance in order to protect children and adults and to ensure a fair resolution of the case. 8. To promote civility in divorce and other family law proceedings. 9. To minimize the harm to children caused by family law cases. 10. To make appropriate referrals to alternative dispute resolution services.

RULE 100A. FORM OF ACTION

An action under these Family Division Rules shall be known as a Family Division action, docketed as a Family Matter (FM).

Advisory Notes

June 2008

Rule 100A follows Rule 2 but provides that an action under this rule shall be known as a “Family Division action” rather than a “civil action.” The docketing designations of Family Division cases will not change from present practice.

RULE 101. COMMENCEMENT OF ACTION

(a) Filing. Except as otherwise provided by these rules, or by statute, a Family Division action shall be initiated by filing and service of (1) a complaint, (2) a petition, or (3) a motion for post-judgment relief. Accompanying any complaint, petition, or motion for post-judgment relief shall be a summons or other notice to the party served indicating the time within which any response to the complaint, petition or motion must be filed, the location and address of the court where the response must be filed, an indication of what actions, if any, the court may take if there is no timely response to the complaint, petition or motion and an indication of the time and place of any court hearings that may have been scheduled. The time for filing the complaint, petition or motion and filing any return of service with the court shall be as specified in Rule 3. (b) Complaint, Petition or Motion Form. In a Family Division action under this chapter, when a court-approved form is available, the party initiating the action shall use the court form or incorporate in his or her pleading all of the information requested on the court form. The party initiating the action shall sign the complaint, petition or motion and file it with a Family Division court-approved summary sheet and a child support affidavit if required by Rule 108. A complaint, petition or motion containing the child custody information required by 19-A M.R.S. §1753 shall be signed under oath. The complaint, petition or motion shall state the

residence of the responding party or shall state that the residence of the responding party is not known and cannot be ascertained by reasonable diligence. (c) Minor as a Party. Notwithstanding the provisions of Rule 17(b), a minor party to any action under this chapter need not be represented by next friend, guardian ad litem, or other fiduciary, unless the court so orders. Nothing in this rule shall be construed to change the current and limited matters in which a minor may be a party to the action.


Rule 101 is based on Rule 3 with the change that a Family Division

action may be initiated by filing (i) a complaint; (ii) a petition; or (iii) a motion for post-judgment relief. Because of the wide variety of potential Family Division actions and court hearing or return dates, the second sentence of subdivision (a) notes that accompanying any particular complaint, petition, or motion for post-judgment relief must be a notice to the parties served indicating the specific time within which any response to the complaint, petition or motion must be filed and the court where that response must be filed. For example, some actions may be subject to a fairly prompt court hearing. Others await an answer within a specific time, usually 20 days, before beginning processing. Absent some specific statutory or rule based timing or filing requirement, the deadlines for filing the complaint, petition or motion and filing any return of service would be as specified in Rule 3.

Forms will need to be developed to provide the appropriate notice for each type of action, so that the response time and means of response can be indicated when the complaint, petition or motion is served. Present court forms will have to be reviewed to assure compliance with the overall requirements of these rules.

Subdivision (b) tracks Rule 80(b) but with some reordering of sentences and an updated reference to the Uniform Child Custody Jurisdiction and Enforcement Act. A sentence is added noting that a summary sheet must be filed with each initiating action. The filed documents must comply with the information disclosure requirements in 19-A M.R.S. § 1753(1)-(4).

Subdivision (c) tracks the first sentence of Rule 80(e). A minor party involved in an action under this chapter need not be represented by a next friend, guardian ad litem, or other fiduciary, unless ordered by the court. The second sentence of subdivision (c) is new, to emphasize that the reference to a minor being a party to an action is not intended to change the current and limited matters in which a minor may be a party. Other issues in Rule 80(e) relating to appointment and compensation of a guardian ad litem are addressed in Rule 107 that more generally addresses court actions available in preliminary proceedings.

RULE 102. CONFIDENTIALITY

If a party alleges in an affidavit or a pleading under oath that the health, safety or liberty of a party or minor child would be jeopardized by disclosure of identifying information appearing in any document filed with the court, the clerk shall seal the identifying information and shall not disclose the information to any other party or to the general public. Disclosure may be ordered only after a hearing in which the court takes into consideration the health, safety, and liberty of the party or minor child and determines that the disclosure is in the interest of justice. The court is authorized to enter any orders in furtherance of the purposes of this section.

Advisory Notes

June 2008

Rule 102 is based on 4 M.R.S. §§ 8-A & 8-B and 19-A M.R.S. §1753(5) and follows FAM DIV III.K. It appears in the beginning of this chapter, as the possibility of confidentiality is an important qualification to be understood early in case processing. If identifying information is sealed, the clerk’s office must serve the party who sought confidentiality with all the filings made by the other party. In drafting this rule, the committee initially considered adding a requirement that the party seeking confidentiality, if not represented by counsel, provide an alternate mailing address for use by the court and by the other party unless otherwise ordered by the court. This was intended to avoid adding workload to clerks’ offices. The Family Division staff recommended that this requirement not be added, as it anticipates that clerks’ offices can handle any necessary forwarding without great difficulty.

RULE 103. PROCESS All actions commenced by filing a complaint, petition or a motion for post-judgment relief with accompanying documents as required by this chapter shall be personally served upon the other party or parties in accordance with Rule 4, except as may be provided in these rules or by statute. In all actions under this chapter, including motions for post-judgment relief, service may be made by registered or certified mail, with restricted delivery and return receipt requested as permitted under Rule 4(f)(2). This form of service may be made in or outside of the state, provided that the party being served is subject to the court’s jurisdiction.


Rule 103 states that all actions to be commenced by filing a complaint, petition or motion for post-judgment relief must be personally served on the other party or parties except as may be provided in these rules or by statute. In addition, the rule permits the service of a complaint or petition and summons by registered or certified mail with restricted delivery and return receipt as currently provided in Rule 4(f)(2). The process outlined in this rule continues current practice in Family Division actions that requires that a complaint, a petition and a motion for post-judgment relief be personally served to commence an action. This is one important difference between Family Division actions and other civil actions. In other civil actions, motions for post-judgment relief generally need not be personally served but are served in the same manner as other civil motions. Because a motion for post-judgment relief in a Family Division action is a motion to essentially reopen a judgment, and may be filed many years after entry of the original judgment, personal service is required to assure proper notification and attention of the other party. Service is governed by Rule 4.

RULE 104. PRELIMINARY INJUNCTION

(a) Preliminary Injunction. In all actions for (i) divorce; (ii) judicial separation; or (iii) spousal or child support following a divorce by a court that lacked personal jurisdiction over the absent spouse, the clerk of the

court, upon commencement of the action, shall issue a preliminary injunction on a form including requirements specified by statute.

(1) The preliminary injunction shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties and, if the plaintiff is represented, state the name and address of the plaintiff’s attorney. The plaintiff shall obtain the preliminary injunction form from the clerk and complete it before filing.

(2) The plaintiff shall serve the preliminary injunction, along with the summons and complaint or motion, upon the defendant in accordance with Rule 4 and Rule 103. The preliminary injunction is effective against the plaintiff upon the commencement of the action. It is effective against the defendant upon service of a copy of both the complaint or motion and the preliminary injunction order. The plaintiff is deemed to have accepted service of the plaintiff’s copy of the preliminary injunction and to have actual notice of its contents by filing or causing the complaint or motion to be served.

(3) The preliminary injunction remains in effect until entry of a final judgment, until the action is dismissed or until the preliminary injunction is revoked or modified by the court. It is enforceable by all remedies made available by law, including contempt of court. (b) Revocation or Modification. A preliminary injunction may be revoked or modified after hearing for good cause shown. The party seeking to revoke or modify the preliminary injunction shall file a motion together with an affidavit that demonstrates the good cause necessary for revocation or modification. A motion for revocation or modification of the preliminary injunction does not require a mediation before a hearing is held. On 7 days notice to the other party or on shorter notice as the court may order, the court shall proceed to hear and determine the motion as expeditiously as justice requires. (c) Post-Judgment Proceedings. The injunction authorized in this section does not apply to post-judgment actions except as provided in subdivision (a)(iii) above.

Advisory Notes

June 2008 Rule 104 governs statutory preliminary injunctions. Once an action for divorce, judicial separation, or separate support is initiated, 19-A M.R.S.

§ 852 and 19-A M.R.S. § 903 require that a preliminary injunction issue and specify the terms of the preliminary injunction order. The preliminary injunction procedure applies to original actions identified in the rule. It does not apply to actions initiated by a post-judgment motion, except for a narrow category of post-judgment motions for support where a divorce court lacked jurisdiction over an absent spouse. The purpose of the preliminary injunction is to protect property of either or both parties from dissipation and subject the property to control of the court during the divorce or other adjudicative process. The form and language of a preliminary injunction should track the statutes upon which the preliminary injunction is based. The rule also clarifies that mediation is not required prior to a hearing on a modification or a revocation of a preliminary injunction.

RULE 105. ANSWER; RESPONSE; COUNTERCLAIM

(a) Answer and Appearance. Except as provided for motions to modify support filed pursuant to 19-A M.R.S. § 2009, a party served with a complaint, petition or post-judgment motion shall file an appearance and answer within 20 days after service unless the court directs otherwise. Responses to motions to modify support shall be filed within 30 days after service, unless the court directs otherwise. Any party served with a counterclaim or a cross-claim shall serve an answer within 20 days after service on that party. The time for answer by persons served outside the Continental United States or Canada shall be governed by Rule 12(a). When the court schedules a hearing on any matter before the 20 day time for filing an appearance and answer, the appearance and answer shall be filed before the time set for hearing if the hearing notice was served with the complaint, petition or motion.

If parental rights and responsibilities of a minor child or children is a subject of the action, the person responding shall file under oath the child-related information required by 19-A M.R.S. § 1753. No answer is required in an emancipation action or in a grandparents visitation action pursuant to 19-A M.R.S. § 1803.

A party who does not file an answer or response may enter an

appearance before commencement of a hearing and be heard on issues of paternity or parentage, parental rights and responsibilities for children, child

support, spousal support, counsel fees, and distribution of marital or nonmarital property.

(b) Counterclaims and Cross-claims. A grandparent visitation or emancipation action may not be asserted as a counterclaim or cross-claim and no counterclaim or cross-claim may be asserted in those actions. Any other Family Division action that could be brought pursuant to this chapter, including an action allowable by Rule 111, can be asserted as a counterclaim and cross-claim. Except for an action that could be filed as a Family Division action pursuant to this chapter, no counterclaim shall be permitted in any action pursuant to this chapter. Failure to file a counterclaim permitted by this rule shall not bar a subsequent action based on such a claim.


Rules 105 and 106 incorporate significant portions Rule 12, with

adjustments for Family Division actions. Placement of the answer and counterclaim requirement at this point in the rule, immediately following the service requirements and preceding the motion requirements, appears more logical for progression of the Family Division actions.

Rule 105, while based upon Rule 12(a), does not incorporate that rule

by reference, but rather explicitly states the 20-day responsive pleading requirements to assure that parties responding to Family Division actions are fully informed of the deadlines for response. 19-A M.R.S. § 2009 provides an exception to the 20-day rule. In child support actions, section 2009 requires the response to be filed within 30 days.

The provisions for responsive pleadings by individuals outside of the

Continental United States and Canada are incorporated by reference from Rule 12(a).

The rule modifies Rule 12(a) practice for those instances where the

court may schedule a hearing on a particular matter before the 20 day response time normally accorded for answer after service of a complaint or post-judgment motion. In such cases, the response must be filed prior to the time set for hearing, if the notice of hearing was served with the complaint or post-judgment motion. This rule makes the time for filing the response to

post-judgment motions the same as the response time for original actions. This rule does require a notice of response to post-judgment motions. However, Rule 105(a) specifies that a party who does not file an answer or response may still be heard on most issues, upon entering an appearance before commencement of a hearing. See also Rule 117 addressing Default.

Rule 105(b) contains the restriction on counterclaims in certain

Family Division actions, consistent with the restriction on counterclaims in Rule 80(b). Because grandparent visitation actions and emancipation actions are Family Division actions, this rule clarifies that grandparent visitation and emancipation actions cannot be brought as counterclaims or cross-claims, and other Family Division actions cannot be asserted as counterclaims or cross-claims to such actions. Any other Family Division action may be brought as a counterclaim or cross-claim. Actions authorized to be joined pursuant to Rule 111 may be asserted as a counterclaim or cross-claim.

RULE 106. DEFENSES (a) Defenses to be Asserted. Every defense, in law or fact, shall be asserted in the responsive pleading except that the following defenses may be asserted by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of Process; and (5) insufficiency of Service of Process. (b) Waiver or Preservation of Certain Defenses. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service is waived if omitted from a responsive pleading or not made by motion. Whenever the court finds that it lacks jurisdiction over the subject matter, the court shall dismiss the action.


Rule 106, subdivision (a) is derived from Rule 12(b). It is more limited than 12(b), addressing only those defenses that may apply to Family Division actions. Subdivision (b) is based on Rule 12(h).

RULE 107. ORDERS PRIOR TO JUDGMENT (a) Motions for orders prior to judgment. At any time prior to judgment in any action under this chapter in which the court has personal jurisdiction over the parties, the court may order the following:

(1) parental rights and responsibilities for any minor children, including health insurance and child support;

(2) appointment and payment of a guardian ad litem;

(3) participation in a parental education program;

(4) paternity testing;

(5) psychological or other evaluations;

(6) investigation by the Department of Health and Human Services

pursuant to 19-A M.R.S. § 905;

(7) possession of owned or rented real and personal property pending the final judgment;

(8) payment of debts and obligations;

(9) sale of any property of the parties, along with the disposition of the proceeds;

(10) interim spousal support;

(11) a job search;

(12) payment by either party to the other or to the party’s attorney of sufficient money for costs and counsel fees for the defense or prosecution of any action or any motion under this chapter. Execution for counsel fees shall not issue until after entry of final judgment;

(13) prohibition of either party from imposing any restraint on the personal liberty of the other;

(14) enforcement of compliance with the court’s orders by appropriate process as the court can order in other actions; and

(15) dissolution or modification of a preliminary injunction or an attachment or trustee process. No orders prior to judgment may be entered without notice to the parties or upon motion. The motion may be accompanied by a draft order granting the relief requested. In any action under this chapter in which the court lacks personal jurisdiction over the defendant, the court may at any time prior to judgment, and governed by the same notice provisions, enter any of the foregoing

orders that it deems proper that do not involve the payment of, or the allocation of responsibility for the payment of, money. (b) Expedited Hearings. A party, or a guardian ad litem, may request that a hearing on a motion be expedited. Such requests shall be in the form of a motion for expedited hearing and shall demonstrate extraordinary circumstances in the particular case that justify an expedited hearing. The request for an expedited hearing shall be considered in light of all relevant factors, including: (1) the court’s ability to provide time for expedited hearing, and the effect on other cases awaiting hearing; (2) the likelihood that denial of the motion for expedited hearing could have a substantial adverse effect on the best interest of a child or the parental rights of a party; (3) the likelihood that denial of the motion for expedited hearing could have a substantial adverse effect on the health or financial standing of a party; (4) the likelihood that denial of the motion for expedited hearing could have a substantial adverse effect on the court’s ability to render a full and fair decision on any issue present in the case;

(5) any unreasonable delay on the part of the moving party in filing the motion;

(6) any conduct on the part of either party impairing a fair and just resolution of the issues.

The moving party must determine and report to the court whether any other party objects to the requested relief and the motion for expedited hearing. The motion shall contain a notice stating the time for a response to the motion. Responses to a motion for expedited hearing shall be filed in writing within 7 days of the notice of the motion.

The court may rule on a motion for expedited hearing without actual notice to other parties if the moving party has made a reasonable and good faith effort to notify the other parties or if delay would defeat the purposes of

the motion. No ruling granting substantive relief shall be made without notice and opportunity to be heard.

Advisory Notes

June 2008 Rule 107 is based on Rule 80(d) and 19-A M.R.S. §§ 105 and 904 relating to preliminary matters. It would also implement the recommendation of the Family Division Task Force to establish a procedure to seek an expedited hearing. It follows 80(d) with appropriate adjustments to fit it into the context of the Family Division Rules. The list of actions the court may take, as stated in 80(d), is separated out into individually numbered subparagraphs and some new categories of actions are added that reflect current practice and provide consistency with Rule 110A(b)(1) which is derived from FAM DIV III.A.1. The rule clarifies an uncertain issue as to whether the court has authority to order the sale of property pending a divorce as well as order the disposition of the proceeds. The new rule adds provision for appointment and payment of a guardian ad litem, as presently found in Rule 80(e). This rule does not change the current practice before the magistrates that permits an oral motion for an order prior to judgment. The sentence requiring the filing a child support affidavit when child support is an issue is deleted because that language is provided by Rule 108. Rule 107 deletes the language found in Rule 80(d) that provided for a hearing 7 days after a party had notice of a motion. It was deleted because no substantive standard existed for considering that motion, and the procedure was seldom used. The rule substitutes a requirement for a written response within 7 days of notice of the motion, leaving scheduling of any hearing to the court. The rule also outlines criteria to grant a request for an expedited hearing if the circumstances of the case warrant immediate court intervention.

RULE 108. CHILD SUPPORT AFFIDAVITS AND WORKSHEETS, FINANCIAL STATEMENTS, AND REAL ESTATE CERTICATES

(a) Child Support Affidavits.

(1) In any proceeding under this chapter in which child support is

an issue, the parties shall exchange and file child support affidavits. Except for actions initiated by the Department of Health and Human Services, the party initiating the action shall serve and file a completed child support affidavit with the complaint, petition or motion. The responding party shall file a completed child support affidavit with the response or appearance but no later than the case management conference.

(2) If the Department of Health and Human Services seeks to initiate or modify a support order and is unable to secure the affidavit of a custodial parent who is in receipt of public assistance, the Department may submit an affidavit based upon its information and belief regarding the custodial parent’s income. (b) Child Support Worksheets. In any proceeding under this chapter in which child support is an issue, the court may, at any time, order the parties to file child support worksheets. (c) Financial Statements. In any divorce or judicial separation action in which there is a dispute about either a division of property or an award of spousal support or counsel fees, the parties shall exchange and file a financial statement showing the assets, liabilities, and current income and expenses of both parties and indicating separately all marital and nonmarital property. The financial statement shall be filed within 21 days of the Family Division Scheduling Order or before mediation, whichever is earlier. (d) Miscellaneous requirements.

(1) Financial statements, child support affidavits and child support worksheets shall be filed on court approved forms that are published by the court.

(2) All child support affidavits and financial statements shall be signed by the party under oath.

(3) Any financial statement or child support affidavit filed shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available, as necessary, to the court, the attorneys whose appearances are entered in the case, the parties to the case,

their expert witnesses, and public agencies charged with responsibility for the collection of support. (e) Real Estate Certificates. In every divorce action in which any party has an interest in real estate, the parties shall file with the court, at least 3 days before the hearing, the following information on the court approved form: the book and page numbers of an instrument describing the real estate; the applicable Registry of Deeds; and the town, county and state where the real estate is located. (f) Sanctions.

(1) If a party fails to file any child support affidavit, child support worksheet, financial statement, or real estate certificate required by these rules, the court may make such orders in regard to such failure as are just, including imposition of sanctions, as appropriate, including but not limited to sanctions set forth in Rule 37(b)(2). However, a magistrate may not impose any sanctions or penalties based upon a determination of contempt under Rule 66.

(2) A child support order shall be entered notwithstanding a party’s failure to file a child support affidavit. If a party fails to file a child support affidavit without good cause, the court may take any of the following actions:

A. Set that party’s gross income in accordance with:

(1) The statutory minimum wage for a 40-hour work week;

(2) Maine Department of Labor statistics;

(3) An affidavit submitted by or testimony of the opposing party; or

(4) Information included in that party’s most recent federal income tax return.

B. Enter an order requiring that party to release all requested information to the court. Failure to comply with the order may result in a finding of contempt punishable by a fine or jail sentence.

C. Award attorney fees.


Rule 108 addresses the requirements for filing child support affidavits, child support worksheets and financial statements as found in Rule 80(c) and real estate certificates found in Rule 80(j). Under subdivision (a), child support affidavits must be filed in all cases where child support is an issue. Child support is always an issue in original actions such as a divorce involving minor children, parental rights and responsibilities actions and parentage and paternity actions. This is a departure from the current rule that requires that child support affidavits be filed in every action involving a minor child. The prior rule was broader than the statute, 19-A M.R.S. § 2004(1)(A). The committee believes that in many post-judgment proceedings, such as enforcing and modifying contact rights, child support affidavits are not necessary. Rule 108 interfaces with Rule 112 because one of the original purposes for requiring the filing of the child support affidavit was to reduce discovery. Rule 112 provides the authority for the court to order the parties to file child support affidavits when not required by Rule 108. Accordingly, when the court (primarily magistrates who have discussions with the parties at conferences) determines that child support should be reviewed, the court can order the parties to file child support affidavits. Subdivisions (a) (1) and (2) include the qualification and exemption of the Department of Health and Human Services from such filings provided by FAM DIV III.A.2. Subdivision (b) departs from the prior requirement that parties must file child support worksheets. The experience of magistrates who handle virtually all of these cases suggests that the initial required worksheets are frequently neither filed nor useful to the court. This rule deletes that requirement but permits the court to order the filing of worksheets. In Lawrence v. Webber 2006 ME 36 ¶ 3 n.4, 894 A.2d 480, the Law Court noted that the trial court may have been aided had the parties filed child support worksheets as required by 19-A M.R.S. § 2004(1)(C). The

magistrates, however, are in a better position to know the appropriate time to order the parties to file worksheets, which will usually be before hearings and conferences. The court now has available software programs that perform worksheet calculation functions upon entry of appropriate income and other figures. In subdivision (c), financial statements must be filed in all divorce or judicial separation actions where division of property, spousal support, or counsel fees is an issue. The rule is developed from Rule 80(c). Rule 80(c), however, neither limits the requirement for filing of financial statements to divorce and judicial separation actions nor includes counsel fees as an issue. In practice, however, financial statements are filed only in the two original actions. Also, the court-approved financial statement form refers to counsel fees. Rule 108 interfaces with Rule 112 because the filing of the financial statement triggers discovery. In practice, financial statements were not filed in post-judgment motions or parental rights and responsibilities complaints so that triggering discovery with the filing of the financial statement does not make sense. The committee believes that the rule should reflect practice. Division of property is only an issue in original actions. Although spousal support and counsel fees may be issues in both original actions and post-judgment motions, Rule 108 requires that the financial statement be filed only in the original action, which is the current practice. Rule 112 provides that the court, on its own motion or at the request of the parties, may order the filing of financial statements in any proceeding under this chapter in which it would assist in discovery or otherwise be appropriate. Subdivision (c) also changes the time period for filing the financial statement. Often in practice, the financial statement was exchanged at mediation which does not adequately permit the parties to prepare for mediation. The filing of the financial statement shall be ordered in the Family Division Scheduling Order to be within 21 days of the date of the order or before mediation, whichever is earlier. Finally, subdivision (c) also provides the court with authority to shorten or lengthen the time period for filing the financial statement as appropriate. Subdivision (d) outlines other miscellaneous requirements located in Rule 80(c).

Subdivision (e) relating to filing a real estate certificate is included in Rule 108 so that all required supplemental financial and asset filing requirements are contained within one rule. Subdivision (f) relates to actions the court may take if there is a failure to file required materials. Subsection (f) (1) is based on Rule 80(c). It indicates that if a party fails to file any required affidavit, worksheet, financial statement, or real estate certificate required by this rule, the court may make such orders in regard to the failure to file as are just, including the imposition of sanctions as appropriate. The rule clarifies that magistrates are not permitted to impose any sanctions or penalties based upon a determination of contempt under Rule 66. Subdivision (f) (2) is based on FAM DIV III.H.2. It authorizes entry of child support orders notwithstanding a party’s failure to file affidavits and sets the process by which the court may determine income levels for assessment of child support. It also allows the court to impose certain obligations for filing upon non-cooperating parties and it allows award of attorney fees. All of this is as provided in FAM DIV III.H.2.

RULE 109. FAILURE TO APPEAR; SANCTIONS If, after proper notice, a party fails to appear at a case management, pretrial or status conference, mediation or a hearing, without good cause, the court may take appropriate action, including but not limited to, issuing an interim, status conference or pretrial order, or a default or a default judgment as provided in Rule 117. If, after proper notice, the moving party fails to appear at a case management, pretrial or status conference, mediation or a hearing, without good cause, the moving party’s complaint, motion or other pleading may be dismissed by the court with or without prejudice. Costs may be awarded as allowed by these rules, as well as the cost of mediation, and reasonable attorney fees.


Rule 109 outlines the actions a court may take if a party fails to appear at a proceeding. It follows FAM DIV III.H.1. The rule refers to Rule 117 regarding default judgments.








(11) a job search;






Advisory Notes











(11) a job search;






Advisory Notes




RULE 110A. PREHEARING SCHEDULE AND PROCEDURE FOR CASES INVOLVING MINOR CHILDREN

(a) Family Law Magistrates. In all Family Division actions involving minor children, Family Law Magistrates shall have authority to: (1) hold case management conferences and other prehearing or pretrial conferences including judicial settlement conferences; (2) determine whether a party or counsel may attend a conference, mediation or hearing by telephone; (3) issue interim orders prior to judgment under Rule 107(a) and act on motions for expedited hearings under Rule 107(b); (4) issue final orders establishing or modifying child support; and (5) issue orders in child support enforcement actions. In an uncontested proceeding, magistrates may issue divorce judgments, paternity judgments, parentage judgments, judicial separation decrees, final orders establishing parental rights and responsibilities, and orders on post-judgment motions modifying any such original orders. In contested proceedings, with the consent of the parties, magistrates may hear and decide interim orders establishing parental rights and responsibilities. In contested proceedings under a pilot project established by the Chief Justice of the Supreme Judicial Court, a magistrate may hear and decide final divorce judgments. When the parties are subject to a Protection from Abuse order, magistrates may amend the parental rights and responsibilities portion of the protection order to conform with the orders authorized above. Nothing in these rules shall prohibit a judge from managing a case as provided in these rules. (b) Case Management. (1) Case Management Conferences. Whenever a complaint, petition or motion is filed in any proceeding involving minor children, except an emancipation action, the parties, and if represented their counsel, shall attend a case management conference with a magistrate or judge. At the initial conference and any subsequent conference the parties shall be prepared to address any issues in the case that may be raised by the court or the parties including, but not limited to: any issues in dispute; the need for an

interim order or orders under Rule 107(a); a prehearing conference; an uncontested hearing date; and any other matters pertinent to the case. Following the conference, the magistrate shall enter a case management order and other orders as appropriate. In appropriate circumstances, a magistrate may dispense with a conference and set the matter promptly for hearing, may enter agreements on the record at the conference, may hold a hearing immediately following the conference, or may advise the parties that the matter will be referred to a judge. (2) Notice of Conference. Except for motions to modify support filed pursuant to 19-A M.R.S. § 2009, the parties will be notified of the date and time of the case management conference within two weeks after the filing in court of the proof of service of the complaint, petition or motion. The conference will be held after the time for filing a response has passed. When a motion to modify support is filed pursuant to section 2009, the clerk will schedule a conference after receiving a response to the motion. If there is no response, a conference will not be scheduled, and the court will proceed in accordance with the provisions of section 2009. (3) Requests to Reschedule or Waive Conference or Mediation.

(A) Rescheduling (i) Continuance. Requests to continue a conference shall be in

writing and may be granted for good cause shown pursuant to Rule 40(a). An agreement of the parties to continue, with an assurance by both parties that the children’s needs are being met, constitutes good cause. Requests to continue mediation must proceed in accordance with Rule 92(b)(5)(G).

(ii) Deferral of Conference. Parties may request by letter, accompanied by the appropriate mediation fee, that the case management conference be deferred for up to 90 days and that they proceed directly to mediation pursuant to Rule 92(b). The letter must state that the parties or their counsel have conferred and that they agree that the children’s needs are being met, there are no discovery disputes, there are no issues of domestic violence, financial statements will be filed with the court before mediation, and both parties join in the request. Both parties, or an attorney of record, must sign the letter. The appropriate mediation fee must be paid to the court

when mediation is requested. The conference shall be scheduled by the clerk for no later than 90 days after the deferral.

(B) Waiver of Conference. Instead of attending an initial case management conference following the filing of a complaint or petition, the parties may file a certificate stating that they have reached a temporary agreement on all issues relating to the children. The certificate must be signed by both parties or their attorneys, indicate what issues, if any, remain unresolved in the case, and include a date for a status conference, mediation, payment of mediation fee, or a final hearing not to exceed 90 days from the date of the certificate. The parties are responsible for obtaining dates from the court. With the certificate, the parties must submit for the magistrate’s review child support affidavits, worksheets, a written agreement on parental rights and responsibilities that addresses the children’s residence, support or maintenance, and parent-child contact, and if an interim order is requested, a proposed order incorporating the terms of the agreement. The magistrate may require the parties to attend a case management conference if the agreement appears inequitable on its face, if the agreement provides for a deviation from the child support guidelines, if there has been a history of domestic abuse, or for any other reason. Upon receipt of a written statement by either party that the agreement is not being followed, a case management conference will be scheduled. (4) Interim Relief.

(A) Interim Orders Without Hearing. At any stage in the proceedings, a magistrate may enter interim orders with the consent of the parties or when a party is in default. Whether or not the parties agree, a magistrate may enter a Family Division Scheduling Order. At their initial court appearance, the parties shall be advised of their right to have a judge determine interim parental rights and responsibilities. To exercise this right, a party must file a written request with the court clerk either before or at the time of their initial court appearance. In the absence of such a written request, the parties’ consent will be presumed, and a magistrate may determine interim parental rights and responsibilities.

(B) Mediation. When the parties cannot reach an interim agreement on all issues or if the court defers a conference at the request of the parties, mediation shall be promptly scheduled as provided in Rule 92(b). The magistrate may waive the required mediation for good cause shown. An

agreement reached through mediation shall be reviewed by the court. If approved, it may be entered as either an interim or final order.

(C) Interim Orders After Hearing. If, after mediation, the parties

have not reached an interim agreement, the magistrate may conduct a hearing on the contested issues and enter an interim order. In any case in which a party has exercised the right to have a judge decide interim parental rights and responsibilities other than child support, the matter shall be promptly scheduled for a conference or hearing before a judge.

(5) Proceedings After Entry of Interim Order.

(A) Uncontested Proceedings. If there are no issues in dispute following the entry of an interim order, the case shall be scheduled for an uncontested final hearing before the court.

(B) Contested Proceedings. When issues remain in dispute and

mediation has not been held on these issues, the case shall be referred to mediation as provided in Rule 92(b).

(i) If the issues are resolved by mediation, the case shall be

scheduled for a final, uncontested hearing before the court.

(ii) When issues remain in dispute, the case shall be scheduled for a final, contested hearing. If child support is the only contested issue, the matter shall be scheduled before a magistrate. When other issues are in dispute, a judge shall preside at the final hearing.

(6) Post-Judgment Motions.

(A) Motions to Modify. (i) The case management process stated in these rules shall be used

for post-judgment motions to modify.

(ii) Uncontested Motions. Instead of attending a case management conference on a post-judgment motion, the parties may file a certificate stating that a hearing is not necessary because the motion is unopposed or the parties have reached an agreement. The certificate must be signed by both parties under oath, and be accompanied by a stipulated order. When the proceeding is a motion to modify child support and the responding party does not request a hearing, the conference may be waived and the magistrate may enter an order pursuant to 19-A M.R.S. § 2009(6).

(B) Motions to Enforce. A motion to enforce a judgment or order shall be addressed in a timely fashion and shall not be included in the case management process. The motion shall be referred to a judge who may refer the motion to mediation, or may refer the action for prompt scheduling of a hearing before a judicial officer. Relief on a motion to enforce may include amendment of a judgment or order if such is necessary to achieve the purposes of the judgment or order.

(C) Contempt. Contempt proceedings shall be referred to a judge. (7) Effect of Case Management and Interim Orders. A

magistrate’s case management and interim orders are effective when signed and remain effective until amended or until a final order is entered. A magistrate’s order is enforceable as an order of the court and is entitled to full faith and credit. An interim order does not constitute the law of the case, and the issues may be decided de novo at the final hearing.

Advisory Notes

June 2008 The rule recognizes that pre-hearing procedure applies to two groups of Family Division actions—those with minor children and those without. Cases involving minor children should receive priority treatment. Rule 110A applies to actions involving minor children. Rule 110B applies to actions that do not involve minor children. Rule 110A incorporates substantial portions of the current Family Division rules relating to calendaring and scheduling of cases and conduct of case management conferences.

Subdivision (a) is based on FAM DIV I.C. making specific reference to the authority and limitations on authority of Family Law Magistrates. It also corresponds with the accepted practice that emancipation actions have not been placed in the case management system because of their summary nature. It clarifies that magistrates may act in uncontested matters on post-judgment motions. Subdivision (b)(1) is based on FAM DIV III.A.1. It relates to scheduling of conferences before Family Law Magistrates. FAM DIV III.A.1 states a list of issues that may be raised by the court or the parties and be considered at the conference. Subdivision(b)(1) does not include the list. The list of issues that may be addressed and actions that may be considered is stated in Rule 107(a) relating to interim orders and cross referenced in this draft to avoid duplication and confusion that might result from any different wording. Child support affidavits are based on FAM DIV III.A.2 and are addressed by Rule 108. Subsection (b)(2) is based on FAM DIV III.A.3. Subsection (b)(3)(A)(i) is based on FAM DIV III.A.4 and is amended to include requests to continue mediation. Subsection (b)(3)(A)(ii) relating to deferral of a conference is a new provision and permits the parties to attend mediation before a conference with the court. The amendment also requires the parties to pay the mediation fee if mediation is requested. Subsection (b)(3)(B) is based on FAM DIV III.A.5 and requires the parties to obtain dates for mediation and payment of the mediation fee. Subsection (b)(4) is based on FAM DIV III.B. Subsection (b)(5) is based on FAM DIV III.C. Subsection (b)(6) is based on FAM DIV III.D. and Rule 80(k)(2). The new rule provides that Motions to Enforce shall be eliminated from the case management system to avoid delay in enforcing existing orders. This is

consistent with the recommendation of the Family Division Task Force to reduce the number of conferences in family matters. FAM DIV III.E & F. are addressed in Rule 114. Subsection (b)(7) is based on FAM DIV III.G(1). FAM DIV III.G.2-4 is addressed in Rule 118.

RULE 110B. PREHEARING SCHEDULE AND PROCEDURE FOR CASES INVOLVING NO MINOR CHILDREN

The procedures in this rule apply to all actions under this chapter in which there are no minor children, except post-judgment motions. (a) Scheduling Order. Upon the filing of an answer, response, or entry of appearance, the court shall issue a Scheduling Order which sets deadlines for: filing of financial statements and real estate certificates, scheduling and completion of mediation as provided in Rule 92(b), completion of discovery, date for exchanging witness and exhibit lists, scheduling of a pre-trial conference if necessary, filing of motions, and placement of the action on the trial list. Before the issuance of the Scheduling Order, parties may file an agreed-upon Scheduling Order covering all the deadlines outlined above. The Scheduling Order may be modified upon motion and for good cause shown. An agreement by the parties to amend the Scheduling Order may constitute good cause shown. Sanctions may be imposed for non-compliance with the order. (b) Failure to Respond. If no answer, response, or entry of appearance is filed, the clerk shall set the case for an uncontested hearing. (c) Prehearing Conference. Upon the court’s own motion or at the request of a party, the court may hold prehearing conferences, including a judicial settlement conference, as provided in Rule 16(b) or Rule 16A and to address prehearing and hearing issues including case management. The court shall exercise its discretion in deciding whether to permit a party to participate in conferences, mediation or hearings by telephone. (d) Post-Judgment Motions. The pretrial procedure for post-judgment motions in which there are no minor children shall be left to the discretion of the court upon review of the filings.

Advisory Notes

June 2008

Because there is no case management system for cases that do not involve minor children, some system-wide procedure should be implemented. Scheduling Orders shall be issued in cases that are not subject to the Case Management System. These orders have been employed in some of the courts across the state and have been effective at managing the flow of cases when there is no Family Law Magistrate oversight. These cases may involve highly charged, emotional issues. There may be cases in which both parties agree that the court-ordered schedule does not meet their needs. The court should honor a request made jointly by the parties to amend the Scheduling Order. Scheduling Orders need not be issued when there is no answer, response or entry of appearance. The rule also provides that these cases should be set for uncontested hearing so that they do not lay dormant.

Rule 110B is the former Rule 80(h). It has been the practice of the court to hold prehearing conferences to discuss discovery and trial issues and to hold judicial settlement conferences. All conferences before a final hearing are prehearing conferences and the authority to hold them is derived from this rule. The rule permits attendance by telephone, if permission is acquired before the conference, mediation or hearing.

Because there is a variety of post-judgment motions, a standard Scheduling Order would be impossible to draft. The court must exercise its discretion to determine the appropriate pretrial procedure in any particular case after review of the filings.

RULE 110B. PREHEARING SCHEDULE AND PROCEDURE FOR CASES INVOLVING NO MINOR CHILDREN

The procedures in this rule apply to all actions under this chapter in which there are no minor children, except post-judgment motions. (a) Scheduling Order. Upon the filing of an answer, response, or entry of appearance, the court shall issue a Scheduling Order which sets deadlines for: filing of financial statements and real estate certificates, scheduling and completion of mediation as provided in Rule 92(b), completion of discovery, date for exchanging witness and exhibit lists, scheduling of a pre-trial conference if necessary, filing of motions, and placement of the action on the trial list. Before the issuance of the Scheduling Order, parties may file an agreed-upon Scheduling Order covering all the deadlines outlined above. The Scheduling Order may be modified upon motion and for good cause shown. An agreement by the parties to amend the Scheduling Order may constitute good cause shown. Sanctions may be imposed for non-compliance with the order. (b) Failure to Respond. If no answer, response, or entry of appearance is filed, the clerk shall set the case for an uncontested hearing. (c) Prehearing Conference. Upon the court’s own motion or at the request of a party, the court may hold prehearing conferences, including a judicial settlement conference, as provided in Rule 16(b) or Rule 16A and to address prehearing and hearing issues including case management. The court shall exercise its discretion in deciding whether to permit a party to participate in conferences, mediation or hearings by telephone. (d) Post-Judgment Motions. The pretrial procedure for post-judgment motions in which there are no minor children shall be left to the discretion of the court upon review of the filings.


Because there is no case management system for cases that do not involve minor children, some system-wide procedure should be implemented. Scheduling Orders shall be issued in cases that are not subject to the Case Management System. These orders have been employed in some

of the courts across the state and have been effective at managing the flow of cases when there is no Family Law Magistrate oversight. These cases may involve highly charged, emotional issues. There may be cases in which both parties agree that the court-ordered schedule does not meet their needs. The court should honor a request made jointly by the parties to amend the Scheduling Order. Scheduling Orders need not be issued when there is no answer, response or entry of appearance. The rule also provides that these cases should be set for uncontested hearing so that they do not lay dormant.

Rule 110B is the former Rule 80(h). It has been the practice of the court to hold prehearing conferences to discuss discovery and trial issues and to hold judicial settlement conferences. All conferences before a final hearing are prehearing conferences and the authority to hold them is derived from this rule. The rule permits attendance by telephone, if permission is acquired before the conference, mediation or hearing.

Because there is a variety of post-judgment motions, a standard Scheduling Order would be impossible to draft. The court must exercise its discretion to determine the appropriate pretrial procedure in any particular case after review of the filings.

RULE 111. JOINDER, CONSOLIDATION AND INTERVENTION (a) Joinder.

(1) Joinder of Claims and Remedies. Grandparent visitation and emancipation actions shall not be joined with other Family Division actions. Any other claim, counterclaim or request for relief that could be brought as a separate Family Division action may be joined to an action under these rules.

(2) Joinder of Persons or Entities. The only persons who may be joined as parties to an action under these rules are persons or entities specifically authorized to file or participate in a Family Division action by Title 19-A of the Maine Revised Statutes. However, persons who file emancipation or grandparents visitation actions may not be joined. (b) Consolidation. Rule 42 governs consolidation in Family Division matters. (c) Intervention. A person may petition to intervene in a Family Division action only when that intervention is specifically authorized by statute, or when the individual or entity would be authorized to file a complaint or post-judgment motion involving one or more of the same parties and issues that are being addressed in the Family Division action in which the person is seeking to intervene. Where intervention is authorized, practice regarding intervention is governed by Rule 24.


Joinder, consolidation and intervention capability for Family Division

actions is very different from regular civil practice. In civil practice, joinder of actions involving parties and claims is liberally allowed. In Family Division actions, subdivision (a)(1) prohibits joinder of grandparent visitation and emancipation actions. Subdivision (a)(1) further limits joinder only to other claims or remedies that could be originally brought as a Family Division action. This is derived from Rule 80(b). Thus, for example, an action for assault may not be joined with an action for divorce.

An earlier version of this draft included a sentence similar to 19-A M.R.S. § 953(4) (2007), which provides:

4. Disposition of marital property. If both parties to a divorce action also request the court in writing to order disposition of marital property acquired by either or both of the parties to the divorce prior to January 1, 1972, or non marital property owned by the parties to the divorce action, the court shall also order disposition in accordance with subsection 1.

Section 953(4)’s predecessor – 19 M.R.S.A. § 722-A(4) - was enacted in response to the Young v. Young, 329 A.2d 386, 390 n. 4 (Me. 1974), which raised, but did not decide, the question of whether the then new equitable distribution statute could be constitutionally applied to property acquired prior to the enactment of the statute. This question was subsequently answered in the affirmative in Fournier v. Fournier, 376 A.2d 100, 102 (Me. 1977). In Bryant v. Bryant, 411 A.2d 391 (Me. 1980), the Law Court observed that section 953(4)’s predecessor – 19 M.R.S. § 722-A(4) – had become surplusage and the written request it provided for was no longer required. Thus, reference to section 953(4), and the corresponding sentence in the earlier draft of Rule 111(a)(1) is no longer necessary to assist resolution of property division issues.

Subdivision (a)(2) narrowly restricts those persons who may be joined in a Family Division action. The only persons who may be joined to a Family Division action would be individuals or entities (most often the DHHS), who would be authorized to file or participate in a Family Division action involving the same subject matter, except for persons who assert or defend grandparent visitation and emancipations actions. Thus two mothers could join a child support enforcement action against one father of their children. DHHS could also join the action.

Subdivision (b) of this rule relates to the consolidation of matters for

trial. The court’s authority and flexibility under current Rule 42 is sufficient to cover issues of consolidation in Family Division actions. Courts should consolidate Family Division actions for trial with protection from abuse actions only when consolidation does not delay any necessary hearings to insure the safety or protection of a party or the minor child or children of a party.

Subdivision (c) indicates that no parties may intervene in an action except where intervention is specifically authorized by statute or where the individual or entity seeking to intervene would be authorized to bring or participate in an action involving the same subject matter under the Family Division rules. In cases where intervention may be authorized, the practice for intervention is governed by Rule 24.

RULE 112. DISCOVERY

(a) Discovery Limitations. In any proceeding under this chapter, a party may obtain discovery on issues of spousal and child support, counsel and guardian ad litem fees, and disposition of property and debt as in any other civil actions. However, when financial statements are required under Rule 108(c), discovery may be initiated only after the parties have filed and exchanged the financial statements. If the exchange does not occur, the party who has filed a financial statement may serve discovery after the time period has expired as provided in Rule 108(c). On other issues, including parental rights and responsibilities, discovery may be served only by order of the court for good cause shown. (b) Financial Statements. In any proceeding under this chapter upon motion of a party or its own motion, the court may order the parties to file and exchange financial statements or child support affidavits when the filing of these documents is not required under Rule 108. The court may also order the supplementation of financial statements or child support affidavits. (c) Discovery Procedure. Where discovery occurs, discovery practice shall be governed by Rules 26 through 37. If a party fails to comply with discovery, compliance with discovery may be enforced by a judge or magistrate. A magistrate may impose sanctions for failure to comply with discovery, including but not limited to those set forth in Rule 37, but excluding any sanctions or penalties based upon a determination of contempt under Rule 66. (d) Updated Statements. The parties shall update child support affidavits and financial statements 7 days before trial.


Rule 112 is based on Rule 80(g). It extends the restrictions on discovery presently applicable to divorce cases to all Family Division actions. Under this rule—and the present Rule 80(g)—discovery without court approval is limited to financial issues. If Rule 108 requires the filing of financial statements, discovery may begin only after parties have exchanged financial statements or after a party has filed a financial statement and waited for the expiration of the time periods under Rule 108. On issues

other than financial issues, discovery may be had only with court approval for good cause shown. Thus, no discovery is allowed, without court approval, on parental rights and responsibilities issues.

Rule 108 (c) does not require the filing of financial statements in all actions. For example, post-judgment motions and Complaints for Determination of Parental Rights and Responsibilities do not require filing of financial statements. Therefore in those proceedings, discovery may be initiated as permitted in the Rules 26 through 37. The court, however, may require the filing of financial statements if such exchange of information would reduce the amount of discovery. In addition, if the filing of a child support affidavit is not required under Rule 108, the court may order the filing and exchange of child support affidavits if the court obtains information indicating that the child support should be reviewed. Also the court may order supplementation of the financial statement or child support affidavit.

Where discovery occurs, discovery practice shall be as provided in Rules 26 through 37. The discovery rules provide adequate tools for both discovery and providing testimony for trial. The rule provides that magistrates shall have the authority to impose sanctions for failure to comply with discovery, including but not limited to those set forth in Rule 37, but excluding any sanction or penalties based upon a determination of contempt under Rule 66.

The preferred practice is that financial information is updated before a trial, and as a result the updating requirement is set in the rules.

RULE 113. TIME FOR FINAL HEARING

An action for divorce or annulment shall not be in order for final hearing until 60 days or more after service of the summons and complaint; nor shall it be in order for hearing until there is on file with the court a statement signed by the plaintiff, which may be contained in the complaint, stating whether any divorce or annulment actions have previously been commenced between the parties, and if so the designation of the court or courts involved and the disposition made of any such actions. Except as the court may otherwise direct, no case involving real estate shall be ready for final hearing until the real estate certificates have been completed as required by Rule 108. If the responding party has not entered an appearance, the party initiating the action shall file a Federal Affidavit stating under oath that the responding party is not serving in the military or an affidavit signed by the responding party waiving rights conferred by the Service Members Civil Relief Act. Other matters may be scheduled for trial at such time as pretrial proceedings are complete and the matter is in order for hearing on the merits. All actions under this chapter shall be transferred to the trial list by order of the court.


Rule 113 is based on Rule 80(i). By referring to final hearings, the rule clarifies that interim hearings are available to the parties before the 60 days. The rule recognizes that the court has the authority to set cases for trial or final hearing and that in some actions such as Emancipation, Motions for Enforcement and Motion for Contempt, the court may order a case to a final hearing without going through the case management system. This paragraph of the rule is derived from Rule 80(h).

RULE 114. TRIAL

(a) Trial Process. A judge, or a magistrate where authorized, shall preside over the trials of all issues presented for decision in accordance with this chapter and the child support guidelines. The Maine Rules of Evidence shall govern trials, except that where a witness is presented as an expert on any issue, the court may, in its discretion, allow or require that a written report of the expert be offered in lieu of all or a portion of that individual’s direct testimony. However, the expert must be available for cross-examination and questioning by the court and for any redirect examination on issues that are fairly raised in the cross-examination or questioning by the court. The proponent of the report shall request a prehearing conference before the trial to address all issues surrounding use of the expert’s report, when the court has not previously addressed those issues. (b) Final Orders by Family Law Magistrates. (1) Child Support. A magistrate may enter final orders relating to child support, including orders to establish, modify or enforce child support obligations, whether or not the matter is contested. (2) Other Matters. A magistrate may enter final judgments or orders on other issues by agreement of the parties or when the matter is unopposed. A magistrate may review and approve or reject a settlement agreement. When rejecting a settlement agreement, a magistrate may refer the parties to mediation or direct them to proceed to a case management conference or trial before a judge.

Advisory Note June 2008

Rule 114 is based on Rule 39 and FAM DIV III.E.&F. but limited to Family Division cases and recognizing the ability of both the court and magistrates, with appropriate authorization, to try Family Division cases. Subdivision (a) incorporates by reference the child support guidelines as a matter for trial decision-making. Subdivision (a) also makes one adjustment in current practice to recognize an issue that frequently recurs in Family Division cases. It states that the Maine Rules of Evidence govern trial proceedings. However, the rule also allows trial courts, if they wish to do so, to require that where expert witnesses are presented, reports of the expert

witness be presented in lieu of direct testimony. The expert witness still must be available for cross-examination, questioning by the court, and limited redirect examination to issues brought up on cross-examination and not adequately addressed in the report. The purpose of this provision is to aid courts in better understanding expert presentations by having the expert’s written report available to read, rather than being forced to take notes as the expert’s report is given through direct examination. This alternative approach, in non-jury cases, improves both the efficiency of the proceeding and the court’s understanding of the testimony and reflects an informal practice that is used today in some courts. The amendment requires the parties and the court to address this issue before the hearing. Subdivision (b) addresses final orders that may be issued by Family Law Magistrates. It is based on FAM DIV III.F. It also recognizes that there is a pilot project permitting Family Law Magistrates to hear contested final hearings with the consent of the parties.

RULE 115. NO JUDGMENT WITHOUT HEARING; JUDGMENTS TO BE FINAL

(a) Hearing. Unless otherwise provided by these rules, no judgment, other than a dismissal for want of prosecution, shall be entered in an original action under these rules except after hearing, which may be ex parte if a party does not appear. With the permission of the court, a party may appear at a hearing by telephone or by video-conference. (b) Finality. Unless otherwise ordered by the court on its own motion or on request of a party, any order granting a divorce, annulment, judicial separation, disposition of property, or other disposition, award, or division of property incident to a divorce, annulment, judicial separation or any order relating to paternity, parentage, parental rights and responsibilities including child support, emancipation, and visitation rights of grandparents, other than a temporary or interim order under these rules, shall be a final judgment, notwithstanding the pendency of any other claim or counterclaim in the action.


Rule 115 is based on Rule 80(f). Current practice specifically authorized by Rule 80(f) appears more liberal than some of the current provisions of the Family Division rules by allowing appearances and participation by parties who do not file answers and other documents. See FAM Div.III.H.1. Hearing rights, without a prior appearance, are addressed in Rule 105(a). The current practice is to permit parties to appear at hearing by telephone or by video-conference, particularly in uncontested matters. The court has discretion to determine whether the interests of justice are served by permitting a party to appear and testify by telephone or by video-conference in a contested matter. The rule is amended to list all the actions that may be brought under this chapter. It specifies that no judgment in an original action may be entered without a hearing. Judgments and orders on post-judgment motions

may be entered without a hearing when there is an agreement regarding the post-judgment motion or order.

RULE 116. DISMISSAL OF ACTIONS

Rule 41 shall govern practice under this chapter regarding dismissal of actions, except that all dismissals shall be without prejudice unless the court specifically indicates that a dismissal is with prejudice and precludes further litigation of the same issue. Any new action addressing issues similar to a dismissed action shall be subject to appropriate counterclaims and defenses.


Rule 116 incorporates Rule 41 relating to dismissals with a special provision under the Family Division Rules. That provision allows filing of another action to address similar issues subject to appropriate counterclaims and defenses following the dismissal of a prior action that is not a final judgment on the merits. Thus, when a divorce action is filed but dismissed without a final judgment, that dismissal does not preclude a subsequent divorce action from being filed, heard, and decided on the merits. The same non-preclusive effect of a dismissal would apply to other Family Division actions unless the court, in entering the dismissal, specially indicated that the dismissal was with prejudice, precluding further litigation of the same issues.

RULE 117. DEFAULT Rule 55 shall govern practice regarding defaults and default judgments, except that no default or default judgment shall be entered by the clerk. No default judgment shall be entered in an action for divorce, child support, spousal support, counsel fees, division of marital or non-marital property, paternity, parentage or parental rights and responsibilities, or motions for post-judgment relief, without all parties being given notice and opportunity to appear and be heard before entry of judgment. Notice of hearing is not required prior to entry of a default judgment where the court finds that the party, although properly served with the complaint, petition or motion for post-judgment relief, has not entered an appearance and/or otherwise participated in proceedings before the judgment.


Rule 117 indicates that procedures regarding defaults and default judgments are generally governed by Rule 55. However, Family Division cases do not lend themselves to the clerk entered defaults or default judgments authorized by Rule 55(b)(1). For similar reasons, post-judgment motions under Rule 120 do not lend themselves to a waiver of objections as authorized by Rule 7(c)(3). The text of Rule 117 also reflects the spirit of Rule 80(f) that parties should have notice of final hearings and the pendency of final judgments in Family Division actions. Thus, the rule requires that no default judgment shall be entered in actions for divorce, child support, spousal support, paternity, parentage or parental rights and responsibilities without all parties being given notice and an opportunity to appear and be heard before entry of judgment. To avoid ambiguity that is often inherent in summons and notices regarding preliminary proceedings in divorce cases where parties who do not contest the ultimate result—the divorce—and thus do not respond indicating such a contest, the summons and notices must be changed to reflect all consequences of not participating in the proceedings. The proposed rule does allow the court to waive notice to properly served parties who have not entered any appearance and not otherwise participated in the proceedings before the hearing and judgment. The summons must be redrafted to reflect all consequences of a failure to respond or enter an appearance.

RULE 118. FINAL ORDERS OF FAMILY LAW MAGISTRATES;

JUDICIAL REVIEW (a) Objection and Review. Any party who wishes to appeal a Family Law Magistrate’s final judgment or order shall file an objection in the District Court within 21 days of the entry of the magistrate’s final judgment or order. If no objection is filed, the parties are deemed to have waived their right to object and to appeal, and the magistrate’s final judgment or order shall become the judgment of the court and have the same effect as any final judgment signed by a District Court judge.

(1) The objection must specifically state the grounds alleged for rejecting or modifying the judgment or order. If a party fails to comply with these requirements, the objection may be dismissed with prejudice. An objection shall not be dismissed solely because it is erroneously captioned as a “motion,” “appeal,” “notice of appeal” or some other form of pleading.

(2) When an objection is filed, a judge shall review the record established before the magistrate with or without a hearing and may adopt, modify or reject the order, set the matter for further hearing before a judge or magistrate or recommit the matter to the magistrate with instructions.

(3) A magistrate’s final order addressing parental rights and responsibilities, residency, and support of minor children or the separate support or personal liberty of a person is effective when signed and remains in effect until modified or rejected by a judge.

(4) Every written final order of a magistrate shall state the parties’ right to object to the magistrate’s final order and the consequences if the parties fail to object. (b) Appeals. An appeal from a judgment entered after objection to a final judgment or order of a magistrate shall be taken in accordance with the Maine Rules of Appellate Procedure. No appeal may be taken from a final judgment or order of a magistrate as to which no timely objection was filed pursuant to subdivision (a).

(c) Waiver of Rights. The parties may waive their right to object and request immediate confirmation of a magistrate’s final order. They may also waive their rights to appeal.


Rule 118 incorporates, with only technical amendments, FAM DIV.III.G.2-4 addressing final judgments and orders that may be issued by magistrates and provisions for judicial review and appeal of those final judgments and orders.

RULE 119. REFEREES

The court may appoint a referee in any case where the parties agree that the case may be heard by a referee, pursuant to Rule 53.

Advisory Notes

June 2008 Rule 119 of the Family Division Rules differs slightly from Rule 53 of the Maine Rules of Civil Procedure. Appointment of a referee is allowed only by the agreement of the parties. When a referee is appointed, practice is governed by Rule 53.

RULE 120. POST-JUDGMENT RELIEF

(a) Except as otherwise provided in Title 19-A, any proceedings for modification or enforcement of a final judgment in an action under this chapter shall be on a motion for post-judgment relief. The motion shall be served in accordance with Rule 103. A motion made in response to a motion filed by a party represented by an attorney may be served upon the attorney in accordance with Rule 5. A motion, any response, and any opposing motion or memorandum shall be accompanied, as appropriate, by the child support affidavits if required by Rule 108. A motion for contempt may also be brought pursuant to Rule 66. After a hearing on a motion for contempt and a finding of contempt, in addition to other relief, a court may determine that an order amending a judgment or order is necessary to achieve the purposes of the judgment or order that is the subject of the motion for contempt. Post-judgment motions filed in an action under this chapter must be accompanied by a properly completed Summary Sheet, which is available from the clerk. (b) The court shall hold a hearing on a motion for post-judgment relief, unless (i) the parties certify to the court that there is a stipulated judgment or amendment and no hearing is necessary, or (ii) there is no timely request for a hearing on a motion to modify child support and entry of an order without hearing is authorized by 19-A M.R.S. § 2009(6). (c) Upon motion of a party made within 5 days after notice of a decision under these rules, or upon the court’s own motion, the justice or judge who has entered an order on a motion for post-judgment relief shall make findings of fact and conclusions of law in accordance with Rule 52.

Advisory Committee’s Note July 1, 2009

This amendment clarifies that post-judgment motions to modify child support may be acted on without hearing when there is no request for a

hearing filed within 30 days pursuant to M.R. Civ. P. 105(a) and other conditions of 19-A M.R.S. § 2009(6) requiring that such “without hearing” orders include a child support obligation equal to or greater than specified in the child support guidelines are met. The terms of 19-A M.R.S. § 2009(6) in effect at the time of this rule change state that:

6. Order without hearing. If a party does not request a hearing within 30 days after service, the court may enter an order modifying support without hearing using the proposed order, as long as the proposed modified support obligation is equal to or greater than the obligation resulting from the application of section 2005. If a downward deviation is proposed, the court shall hold a hearing prior to entering an order. The court may apply the presumptions set out in section 2004, subsection 1, paragraph D.


This rule establishes the procedures for filing post-judgment motions seeking to amend or enforce Family Division orders and judgments that have become final by operation of law. The rule incorporates the provisions of Rule 80(k) but with a qualification noting that enforcement of judgments may also be initiated by a contempt motion pursuant to Rule 66. Service is governed by Rule 103. Responses to motions for post-judgment relief are governed by Rule 105. The filing of a memorandum in support of or opposition to a post-judgment motion is not required. To avoid multiple appearances by the parties, appearances before two judicial officers for the same issue, and filing of multiple motions, a judge who hears a motion for contempt and finds contempt may consider any orders or amendments of orders necessary to achieve the purposes of the underlying judgment or order. See Rule 66(d)(3).

RULE 121. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

Unless otherwise ordered by the court, an interlocutory or final judgment in an order addressing parental rights and responsibilities, residency and support of minor children or the separate support or personal liberty of a person shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Rule 62 shall govern the practice for a stay of a judgment or enforcement or a judgment.


Rule 121 relating to a stay of proceedings to enforce a judgment incorporates Rule 62 by reference.

RULE 122. TRANSFER FROM SUPERIOR COURT TO DISTRICT COURT

Any Family Division action pending in the Superior Court may be

transferred to the District Court. Transfer shall be accomplished by filing a notice of transfer agreed to by the parties or their counsel and by paying to the clerk of the Superior Court any required fees. No transfer may be requested during a hearing or while the court has under advisement the merits of the action or any motion after hearing. The action may be transferred to a division of the District Court, located within the county in which either party resided at the commencement of the action. The notice must designate the receiving District Court. After a judgment has become final, the action may be transferred to any division of the District Court. The clerk shall file a copy of the record and all original papers in the action in the District Court in that division. Thereafter the action shall be prosecuted as if all prior proceedings in the action had taken place in the District Court.

Advisory Notes

June 2008 Rule 122 is similar to Rule 80(l). The court unification legislation

authorized all actions for divorce and annulment pending in the Superior Court as original actions on or before December 31, 2000, to continue to be adjudicated in the Superior Court. At the same time, the unification legislation called for opportunity to transfer such actions to the District Court. This rule allows actions for divorce and annulment pending as original matters in the Superior Court to be transferred to the District Court for further processing under the Family Division rules. This transfer can only occur by agreement of the parties. Transfers cannot occur while the Superior Court is hearing or has under advisement the merits of any contested matter before it.

RULE 123. APPEALS TO THE LAW COURT

Appeals to the Law Court from orders and judgments entered in accordance with this chapter, in which there is a right of appeal to the Law Court, shall be governed by the Maine Rules of Appellate Procedure. Parties may waive their right to appeal on a court approved form.


Rule 123 notes that appeals to the Law Court from orders and judgments entered in accordance with the Family Division rules are governed by the Maine Rules of Appellate Procedure. The rule contains the qualification that appeals to the Law Court are only available where there is a right of appeal to the Law Court. Rule 123 in no way expands the existing rights of appeal. For example, interlocutory or interim orders issued in Family Division actions cannot be appealed, except to the extent that appeal of such orders is specifically authorized by statute, by precedent, or by rule of court. Rule 123 also recognizes the present practice of allowing waiver of rights of appeal, to render judgments final before expiration of the appeal period.

RULE 124. REMOVAL TO SUPERIOR COURT

When the Maine Constitution or the United States Constitution provides a right to a trial by jury in any action or on any issue in an action brought pursuant to this chapter, that action or issue may be removed to the Superior Court for jury trial. When such a removal is authorized, the removal shall be governed by Rule 76C, provided that once the constitutional action or issue is resolved by verdict of the jury, the matter shall be remanded to the District Court for such further proceedings as are authorized or required by this chapter.


As a result of court unification, the District Court has exclusive jurisdiction of Family Division actions. Cases in categories such as divorce, separate support, and paternity may no longer be removed, as a matter of right, to the Superior Court. The rule does not, however, impose an absolute prohibition on removal. It leaves the possibility of removal, but only in those cases where there may be a right to jury trial of all or a portion of a Family Division action. The rule also provides that once the matter as to which there is a constitutional jury trial right is resolved by verdict of the jury, the matter is to be remanded to the District Court for further proceedings as authorized by these rules. See Rule 100.

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RULE 125. EFFECTIVE DATE

The rules in Chapter XIII are effective January 1, 2009. They shall govern all proceedings in Family Division actions brought on and after January 1, 2009 and all further proceedings in actions then pending.


Rule 125 makes Chapter XIII effective on January 1, 2009. It indicates that the rules shall govern all proceedings in the Family Division brought on and after January 1, 2009, and also all further proceedings in actions then pending.

State of Maine Rules of Civil Procedure for 2012

Documents

Transcript of State of Maine Rules of Civil Procedure for 2012