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October 22nd, 2015

Civil Motions Pilot Program – Changing Civil Motions Practice in South Carolina

by Kathleen Barnes in Motions, Practice Pointers, Pre-Trial

On September 10, 2015, the Supreme Court issued an order instituting new, mandatory procedures for civil motions practice in the Third and Fifteenth Judicial Circuits.  The “Civil Motions Pilot Program” is likely to expand statewide.  This post discusses the mechanics of civil motions practice under the program.

The program operates similar to federal motions practice—requiring the filing of supporting memorandum and exhibits with the motion, setting a deadline for filing an opposing memorandum and reply, and allowing the court to decide a motion without oral argument.  The order took effect on October 1, 2015, and all civil motions filed in the Third and Fifteenth Judicial Circuits on or after October 1 must comply with the new requirements.  The court may extend or expedite any of the filing deadlines discussed below.  The parties may extend the deadlines only if the total time for briefing does not exceed 75 days from the date the moving party served the motion.

Supporting Memorandum

A supporting memorandum, if necessary, “shall be filed and served with” the written motion.  A supporting memorandum is not required if the written motion contains a full explanation and “a memorandum would serve no useful purpose.”  If filing only a written motion, include a statement in the motion that no supporting memorandum is filed along with it because the written motion contains a full explanation.  The memorandum cannot exceed 35 double-spaced pages, unless the court grants an exception.

Opposing Memorandum

An attorney “shall” file and serve an opposing memorandum within 30 days after service of the motion, including any supporting affidavits and exhibits.  Based on the language of the Supreme Court’s order, an attorney on the receiving end of a motion must file an opposing memorandum.  The memorandum cannot exceed 35 double-spaced pages, unless the court grants an exception.  The 30-day filing deadline does not affect the time period in Rule 59(c), SCRCP, which provides only 10 days to file opposing affidavits in response to a motion for a new trial based on affidavits.

Reply Memorandum

Unlike the mandatory “shall” language the order uses when referring to an opposing memorandum, the order states that the moving party “may” file and serve a reply memorandum, including any supporting affidavits and exhibits, within 10 days of service of the opposing memorandum.  A reply is “encouraged” but not required.  It cannot exceed 15 double-spaced pages, unless the court grants an exception.

Affidavits and Other Supporting Exhibits

Any affidavits or other supporting exhibits “shall be filed and served with the” motion or memorandum.  The order requires citation to specific pages numbers of affidavits and exhibits.  When a deposition or transcript is filed, a party must specifically reference the page and line number in the motion or memorandum.  When filing a motion to compel discovery, an attorney must file the relevant discovery requests and responses with the motion.

Oral Argument

One of the significant parts of the order is that it allows the court to decide a motion without oral argument.  Presumably, because the parties are required to put all necessary information in the memorandum, affidavits, and exhibits, the court may not need oral argument.  The court is still required to hold oral argument for dispositive motions, unless the parties agree it is not necessary, but that does not include a Rule 59(e), SCRCP, motion.

Under the order, the court must dispose of motions within 90 days of the date of filing.  The program requires more work at the time of filing a motion, but should eliminate last-minute scurrying before a motion hearing and resolve motions much faster.