Idaho Institute for Court Management

Idaho Institute for Court Management

CIVIL CASES

2008 Revision

Hon. Galen L. Box, Magistrate

2011 Revision

Hon. Timothy Hansen, District Judge

INTRODUCTION

The district clerk and deputy clerks provide support for the district courts in each county. The clerk is custodian of all court pleadings and papers that are part of any cause of action,

civil or criminal, in the district courts served by the clerk. The district clerk indexes

and secures all court records, collects filing fees, and handles funds held in litigation.

A. CIVIL CASES 3

1. Jurisdiction and case assignment. (Idaho Constitution, Art. V, § 20; I.C. §§ 1-104 et seq.; I.R.C.P. 82) 3

2. Venue (Idaho Code §§ 5-401 et seq.; I.R.C.P. 40(e)) 3

B. CIVIL CASE PROCESS 4

1. Filing the Complaint. (I.R.C.P. 5(e)) 4

2. Receipt of the Answer or Notice of Appearance. 5

3. Receipt of Additional Pleadings and Documents. 6

4. Fax filings. (I.R.C.P. 5(e)(2) and (3)) 6

5. Receipt of Pleadings by Judges in Chambers 7

6. Change of Venue in Civil Cases (I.C. §§ 5-404; I.R.C.P. 40(e)) 7

7. Request for Assignment to Another Judge on Venue Change 10

8. Issuing the Summons (I.R.C.P. 4(a); 4(b)) 11

9. Service of Process (I.R.C.P. 4(c)(1) – 4(e)(2)) 11

10. Procedural Default (I.R.C.P. 55 (a) (1)) 14

11. Default Judgment. (I.R.C.P. 55(b)(1) and (2)) 15

12. Setting Aside the Default and Default Judgment (I.R.C.P. 55(c)) 16

13. Case Dismissal for Inactivity (I.R.C.P. 40(c)) 17

C. PRETRIAL PROCEDURE 17

1. Subpoenas for Witnesses Subpoenas Duces Tecum, (I.R.C.P. 45(a) – (f)) 17

1. a. Issuance by the Clerk (I.R.C.P. 45(a)) 17

CLERICAL DUTIES 18

1. b. Issuance by an Attorney (I.R.C.P. 45(a)) 18

2. Service of Subpoenas (I.R.C.P. 45(c)(2)) 19

3. Failure to Comply with a Subpoena (I.R.C.P. 45(f)) 19

4. Consolidation of Actions (I.R.C.P. 42(a)) 19

5. Interpreters (I.C. § 9-205) Idaho Administrative Rule 52 19

6. Expedited hearings. 20

6. a. Unlawful Detainer. I.C. § 6-310 20

6. b. Warrant to take physical custody of child. Expedited Proceedings. Idaho Code § 32-11-311 20

7. Copies (I.C. §§ 31-3201 and 31-3219) 20

8. Law and Motion Calendar 21

9. Scheduling Trials or Hearings 21

10. Time Limits for filing and Serving Motions (I.R.C.P. 7(b)(3) 21

11. Counting the days. (I.R.C.P. 6(a) 21

12. Continuances (I.R.C.P. 7(a)) 22

13. Note of Issue and Request for Trial Setting. 22

D. THE CIVIL TRIAL 23

1. Civil Minutes 23

2. Exhibits: 24

3. General Testimony 25

E. THE CIVIL JURY TRIAL 26

F. JUDGMENTS 27

1. Entry of Judgment (I.R.C.P. 58(a)) 27

2. Service of Judgments on Parties 27

3. Memorandum of Costs (I.R.C.P. 54(d)(5) and 54(d)(6)) 28

4. Abstract of Judgment (I.C. §§ 10-1110 and 10-1302) 29

5. Satisfaction of Judgments (I.R.C.P. 58(b); I.C. § 10-1115) 29

6. Notice of Satisfaction of Judgment 30

7. Recording Satisfaction of Judgment. 31

8. Payment of Judgment to Prevailing Party. 31

9. Foreign Judgments (I.C. §§ 10-1301 et seq) 32

10. Renewal of Judgment 32

11. Executions (I.R.C.P. 69; I.C. §§ 11-101 – 11-108) 33

12. Preparation of Writs of Execution. 34

13. Return on Execution. 35

G. DEBTORS EXAMINATIONS 35

A. CIVIL CASES

Civil cases are brought to resolve disputes, usually by the payment of money by one person or entity to another. The party who initiates the suit is the “plaintiff,” and

the party against whom the suit is brought is the “defendant.” In civil cases, the plaintiff must prove its case by “a preponderance of the evidence,” as opposed to the “beyond a reasonable doubt” standard in criminal cases.

1. Jurisdiction and case assignment. (Idaho Constitution, Art. V, § 20; I.C. §§ 1-104 et seq.; I.R.C.P. 82)

Jurisdiction is the power of a court to hear a case. In Idaho, the district courts have original jurisdiction over civil trials. The Magistrate Division of the district courts is assigned cases where the amount in controversy is less than $10,000. Judges of the Magistrate Division also are assigned all divorce and probate cases regardless of the amount in controversy, as well as unlawful detainer (landlord tenant eviction) cases. Cases where the amount in controversy exceeds $10,000 are assigned to the District Court. See I.C. §§ 1-104; 1-701; 1-705; 1-2208; 1-2210. See also I.R.C.P. 82(a) – (e).

#1 CLERICAL DUTIES

A court must have jurisdiction over the parties and the action in order to hear the case.

2. Venue (Idaho Code §§ 5-401 et seq.; I.R.C.P. 40(e))

“Venue” means the county in which the case should be tried. Idaho Code sections 5-401 et seq. set forth proper venue. Typically it is where the defendant, or any of the defendants reside. In order for venue to be proper, it must be in accordance with these code sections. A defendant may file a motion to change venue. Absent a stipulation changing venue, any motion to change venue must be noticed for hearing. This procedure is discussed more below.

B. CIVIL CASE PROCESS

1. Filing the Complaint. (I.R.C.P. 5(e))

A plaintiff initiates a civil case in the district court by filing a complaint. The complaint names the defendant(s) and describes the dispute. The court charges a “filing fee” when the complaint is filed. The amount of the filing fee is set forth in Appendix “A” to the Idaho Rules of Civil Procedure. If a litigant cannot afford to pay the required fee the judge may permit them to proceed in forma pauperis (without paying the costs associated with the action). Idaho Code § 31-3220; I.R.C.P. 10(a)(6). A prisoner may seek permission of the court to proceed upon partial payment of the filing fee pursuant to Idaho Code section 31-3220A.

FAMILY LAW CASES: Complaints, petitions or applications in family law cases, including divorce, custody, paternity, modification, minor guardianship, adoption, termination of parental rights, civil protection orders, and child protection act shall not be filed unless and until the filing party furnishes to the clerk a completed Family Law Case Information Sheet on a form adopted by the Supreme Court and furnished by the clerk. This Family Law Case Information Sheet shall be exempt from disclosure according to I.C.A.R. 32(d). I.R.C.P.3(a)

State agencies and persons seeking a Domestic Violence protection order are exempt from paying filing fees. Idaho Code §§ 39-6305; 67-2301.

Once the filing fee has been tendered or waived court clerks make no determination regarding the filing of a complaint or amended complaint (if filed before an answer is filed) and should file any complaint or amended complaint presented for filing. Once an answer has been filed the court must approve of the filing of an amended complaint.

#2 CLERICAL DUTIES

Idaho Rules of Civil Procedure require all pleadings, motions, briefs and other documents filed in the court shall be on paper eight and one-half by eleven inches in size. (I.R.C.P. 10(a)(1)). Prisoners may be exempt from these requirements but the pleadings must be legibly hand-printed and printed in black ink.

Pleadings must be signed by the party filing the pleading or that party’s attorney. If the pleading is not signed, the clerk should not file it, unless the clerk immediately notifies the party or individual that it needs to be signed and such party does in fact promptly sign the pleading. (I.R.C.P. 11(a)(1)).

2. Receipt of the Answer or Notice of Appearance.

After the complaint and summons have been issued, the defendant may file an Answer or Notice of Appearance. The answer is the defendant's written response to the plaintiff's claim. In an answer the defendant may file a counterclaim in which damages are sought from the plaintiff. A defendant may also file a cross-claim against another defendant to the suit, or a third-party complaint against someone who is not yet a party to the action.

If the defendant does not file an answer to the complaint or otherwise make an appearance, the plaintiff may request that a default judgment be entered against the defendant

#3 CLERICAL DUTIES

The filing of other pleadings, aside from an Answer or Notice of Appearance may constitute a responsive pleading for which a filing fee may be required.

3. Receipt of Additional Pleadings and Documents.

After the filing of the complaint and answer, additional documents and pleadings may be filed such as: cross-claims, counterclaims, third-party complaints, amended complaints, motions. Interrogatories or answers to interrogatories, responses to request for the production of documents, or depositions are not to be received or filed with the court. (I.R.C.P. 33(a)(4); I.R.C.P. 34(b)(3)). However, the party serving interrogatories or request for production must file with the court notice of when such things were served, and the party responding thereto must also file with the court notice of when its response was served. (I.R.C.P. 33(a)(5); I.R.C.P. 34(d)).

#4 CLERICAL DUTIES

4. Fax filings. (I.R.C.P. 5(e)(2) and (3))

The rules of civil procedure allow parties to file certain pleadings by fax. Any pleading or document may be filed by fax except those that require a filing fee or that are filed as proof of incarceration of a party to the action. If a fax document is filed it should be treated as the original. The additional original document need not be filed. Filings by fax are only allowed during the normal courthouse hours and only if there is a fax machine in the filing clerk’s office. Documents over ten pages cannot be filed by fax. In addition, copies of faxes may also be filed with the court as original documents. There is no page limit when a party files a copy of a fax.

5. Receipt of Pleadings by Judges in Chambers

A judge may receive any of the above documents in open court or in chambers by noting on the document the filing date, hour and minute and then transmitting them to the office of the clerk ( I.R.C.P. Rule 5(e)(1)).

Upon receipt in the clerk's office, the clerk enters the date of receipt written on the document by the judge into the register of actions.

6. Change of Venue in Civil Cases (I.C. §§ 5-404; I.R.C.P. 40(e))

Change of venue involves transferring the assignment of a case from one county to another. The change must be approved by the court based upon the grounds outlined in the rule. (I.R.C.P. 40(e)). The judge may grant a change of venue or change the place of trial to another county in any civil action when:

(A) The county designated in the complaint is not the proper county, or

(B) There is reason to believe that an impartial jury cannot be seated, or

(C) The convenience of witnesses and the ends of justice would be promoted by the change.

The parties may stipulate to a change of venue. If no stipulation, the defendant must file a Motion for Change of Venue and notice it for hearing. Upon the filing of a Motion to Change Venue the clerk has certain duties.

#5 CLERICAL DUTIES

If the judge changes venue to a county within the same judicial district the court issues an “Order for Change of Venue” which transfers the case to the new county.

#6 CLERICAL DUTIES

If the judge changes venue to a county outside the judicial district the court issues an “Order of Change of Venue” which transfers the case to the new county. The judge may desire to continue assignment of the case. If the judge desires to continue assignment over the case, it will state this in the order.

#7 CLERICAL DUTIES

The clerk of the court for the receiving county has specific duties.

#8 CLERICAL DUTIES

7. Request for Assignment to Another Judge on Venue Change

#9

REQUEST FOR ASSIGNMENT--CIVIL

Case No. ______County: ______Date Filed: ______

Plaintiff: ______Attorney: ______

______

V.

Defendant: ______Attorney: ______

______

BRIEFLY DESCRIBE THE ISSUES INVOLVED:

DISQUALIFICATIONS: JUDGE ______BY ______

(attach copy of order) ______

______

REASON FOR DISQUALIFICATION:

IF CHANGE OF VENUE, ATTACH ORDER OR EXPLAIN:

ANYTHING UNUSUAL ABOUT CASE NEW JUDGE SHOULD BE TOLD:

ANY URGENCY TO SCHEDULE HEARING OR TRIAL: [ ] YES [ ] NO

EXPLAIN:

STATUS OF CASE:

EST. TRIAL TIME ___ DAYS [ ] Jury Trial [ ] Court Trial

DATE:

SIGNATURE:

SEND REQUEST TO:

CHIEF JUSTICE ROGER BURDICK

PO BOX 83720

BOISE ID 83720-0101

8. Issuing the Summons (I.R.C.P. 4(a); 4(b))

A plaintiff may request that the clerk of the court issue a summons. If so, the clerk must issue the summons and deliver it for service as provided in I.R.C.P. 4(c). This procedure will be discussed below. If service is not completed within six months, the case may be dismissed. I.R.C.P. 4(a)(2).

The clerk who issues the summons must sign the document. It must also comply with the other elements provided for in I.R.C.P. 4(b). Thus, it must be under the seal of the court, it must contain the name of the court, the assigned case number, the names of the parties, the county in which the action is brought and the name and address of the plaintiff’s attorney. The summons should also generally state the time within which the defendant must respond to the complaint and should also notify the defendant of the consequences of his or her failure to do so. I.R.C.P. 4(b)(2). A summons may also be published so long as it substantially complies with the template provided in I.R.C.P. 4(b)(3).