When I was more of a spring chicken than I am now, a senior associate invited me to tag along at a Superior Court motion calendar hearing. “It’s time you learn what formal, ready, and ready subject mean,” she said. I had no idea what she was talking about. In case you’re thinking the same thing, here’s a basic overview of the state court calendars for civil matters and some of the strange terms that litigants and new lawyers might hear in Rhode Island Superior Court.
Most of the action these days is pre-trial. There are several types of calendars that a litigant or attorney in civil litigation is likely to encounter in Superior Court before a trial starts, including:
- The Motion Calendar.
- This is the default calendar for motions that aren’t heard on other calendars. Typical motions include things like discovery motions, motions to withdraw as counsel, motions for alternate service, motions to extend time, or motions to assign to the continuous jury trial calendar.
- The motion calendar occurs on standard days each month in the four county courthouses (Providence/Bristol Counties in Providence; Kent County in Warwick; Newport County in Newport; Washington County in Wakefield). The hearing dates for all counties other than Providence/Bristol are set forth in Superior Court Rule of Practice 2.2. The hearing date for Providence/Bristol County is set by standing order (it’s currently Thursday — back in the day it was two days a week). A litigant can mark a motion for the motion calendar (by putting the hearing date and time on the top of the first page of the motion) without seeking advance permission from the court as long as the calendar date is at least 10 days from the filing of the motion.
- The Motion Calendar in Providence/Bristol Counties is usually presided over by the most recently appointed judge to the Superior Court. This isn’t true for the other counties.
- The Formal and Special Cause Calendar
- The formal and special cause calendar (not to be confused with a formal motion, which is described below) hears motions that require the taking of evidence, equitable relief like preliminary injunctions, tax foreclosure proceedings, post-judgment matters, and other forms of miscellaneous relief. A mostly comprehensive list of formal and special cause matters is listed in the Superior Court’s omnibus calendar assignment form.
- Traditionally, the Formal and Special Cause Calendar in Providence/Bristol Counties is presided over by the second most recently appointed judge to the Superior Court. This isn’t true for the other counties.
- Unlike the motion calendar, parties must request a hearing date from the clerk for the judge assigned to the formal and special cause calendar before setting a hearing date (most clerks prefer e-mail communication). The party then files the omnibus calendar assignment with the anointed date. Judge Licht allowed parties to pick dates for certain types of formal and special matters without advance permission from the clerk, but this is the exception to the rule.
- The Dispositive Motion Calendar
- The dispositive motion calendar hears summary judgment motions and motions to dismiss (which are mostly motions to dismiss under Rule 12(b)(6)).
- Parties must request a hearing date from the clerk for the judge assigned to the dispositive motion calendar before setting a hearing date. The party then files the omnibus calendar assignment form with the date. There is usually a lag time between the filing of the motion and the hearing date. Many judges issue standing orders for dispositive motions that can require things like highlighting pertinent cases in bench copies.
- The Business Calendar
- Litigants can request that certain types of cases be assigned to the business calendar – the list includes things like breach of contract in business cases, uniform commercial code disputes, and shareholder actions. The full list is here for Providence and Bristol counties and here for the other counties.
- To request assignment to the business calendar, litigants file a business calendar opening sheet. The business calendar judge will usually request a conference with the parties. A detailed explanation of the business calendar is available here.
- The Continuous Jury Trial Calendar
- There are no automatic scheduling orders in the Rhode Island Superior Court.
- To move a case to trial, a party must file a “motion to assign” (heard by the motion calendar), which moves the case to the continuous jury trial calendar. Once the case is assigned to the trial calendar, the presiding judge (or magistrate judge) on that calendar will hold status conferences and eventually assign the case for trial.
- Usually, parties must certify that discovery is substantially complete to assign a case to the trial calendar. At least one county has a standing order that formalizes this rule.
Each of these calendars operates slightly differently in the four county courthouses. As noted above, the Motion Calendar has standard days under the Superior Court Rules of Practice (not to be confused with the Superior Court Rules of Civil Procedure). Most of the other calendars are more fluid. For example, at the Providence courthouse, the Formal and Special Cause calendar sits five days a week, but this isn’t true for most of the other counties. Contacting the clerk’s office for the county is usually the best way to confirm the date for a specific calendar. Also, many judges issue standing orders when they take the bench in a county for a specific calendar (here’s a list of all the standing orders by county). But they eventually rotate off the calendar for that county and it’s not always clear if the new presiding judge on the calendar will adhere to the former judge’s standing order.
Recently, circa September 2019, the Rhode Island Superior Court changed its miscellaneous orders webpage. It removed some of the older legacy orders from judges, and now describes some of the orders as the “current” protocol for each county. The page is confusing in some respects, however, because the “current” order in Kent County conflicts with the Order that Justice Lanphear entered thereafter for motions in Kent County. If there is any confusion, a quick call to the clerk’s office can usually confirm one way or the other.
When the hearing day arrives, at the call of the calendar at the beginning of the hearing when the clerk reads the cases by docket number, you may hear attorneys say odd things. Here are some of them:
- “Formal,” or “Ready Formal”
- The motion is uncontested, usually because the opposing party didn’t file an objection or withdrew the objection. Formal motions are usually heard first at hearings because they go faster.
- Under Superior Court Rule of Civil Procedure 7(b)(3), some motions are granted by rule of court if no objection is filed at least three days before the hearing date. Rule 7(b)(3) contains a list of motions that are granted automatically. Per Rule 7(b)(3), motions granted by rule of court are “granted as a matter of course and shall not be placed on the motion calendar.”
- Most formal motions are unopposed motions that are not granted by rule of court under Rule 7(b)(3), so the filing party must appear on the hearing date to press the motion.
- “Ready” or “Ready Contest” or “Ready Hearing”
- The motion is contested because the opposing party has filed an objection or indicated that the motion is opposed. Ready matters are usually heard after formal matters because both sides get to argue and they take longer.
- “Ready Subject” or “Hold” or “Formal Subject”
- The attorney wants to press the motion or wants to oppose the motion, but isn’t available until later in the day. For example, “ready subject to 11 o’clock” means the attorney expects to be available at 11 a.m. and the parties will be ready at that time to argue the motion. “Hold” means the court will hold the motion until later in the morning. “Formal subject” means the motion is formal but the attorney has a conflict and can’t attend until later. The clerk will usually call the calendar again later in the morning to see if the attorneys have become available.
- “Continued by agreement to [new date]”
- The parties have agreed to reschedule the motion to a new hearing date. This type of calendar call is fine for small motions, but not so good for big motions like summary judgment when the judge has prepared in advance for the hearing.
- “Order to enter”
- The parties have agreed on a disposition for the motion and will submit a proposed order to the Court after the hearing.
- “That’s a 30-day order” (sometimes a 45 or 60-day order)
- This is usually called for a motion to compel discovery. The party defending the motion has agreed to produce the requested discovery within 30 days.
- “That’s a 30-day conditional order” (or 45 or 60-day conditional order)
- Before a party moves to dismiss a case or default a defendant for not responding to discovery, the moving party must file a motion for a conditional order of default. A 30-day order means that the parties have agreed to a conditional order to default/dismiss, and if the defending party does not respond within the deadline, the moving party can move to dismiss/default.
- “Pass”
- The party that filed the motion has decided not to press it.
- Judges on the calendar will also say “pass” if the party does not respond to the clerk at the call of the calendar at the beginning of the hearing.
- “Can we conference that?”
- This is a less common request — it means the parties would like to discuss an issue with the judge off the record in chambers. Frequently after a conference, the parties will emerge and put the outcome (or their positions) on the record. The Rhode Island Supreme Court is not a fan of conferences when this doesn’t happen. E.g., Resendes v. Brown, 966 A.2d 1249, 1256 (R.I. 2009) (“the business of the court should not ordinarily be conducted by chamber conferences because this practice results in an absence of evidence and fact-finding and represents a failure . . . to comply with . . jurisprudential obligations in adversarial proceedings”).
The party that prevails on the motion typically files a proposed order with the court after the hearing. Proposed orders are governed by Rule 77(f) of the Superior Court Rules of Civil Procedure. The clerk will enter the proposed order if no objection is filed within four days.
Some calendars pre-sort the cases before the call on the day of the hearing. In Providence/Bristol Counties, there’s a standing order for the Motion Calendar that requires the moving party to e-mail the clerk two days before the hearing to let the Court know if the motion is formal or ready. This makes things more efficient. Back in the old days (like 5 years ago), all attorneys had to sit through the call of the calendar, sometimes for dozens of pages of cases. Today’s system is faster.
I still remember one motion calendar about 8 years ago. A retired Superior Court Justice filled in unexpectedly for the justice assigned to the motion calendar. We all sat there expecting the clerk to call the calendar and the attorneys to stand up one by one and say “ready,” or “formal,” etcetera for the next 20 minutes. Instead, the Judge took the bench and said, “all right, who’s got a formal matter? Come forward.” It was awesome but semi-chaotic. Attorneys milled around and eventually formed a line in haphazard fashion. The experience gave new meaning to what the Sheriffs say at the beginning of hearings — something like, “Hear ye, hear ye, hear ye. All persons having any business in this Court held in and for Providence and Bristol counties, draw near, give your attendance, and you shall be heard.” Literally, the attorneys that day drew near, gave their attendance, and they were heard. That’s probably how it worked in the days of Abraham Lincoln, when judges traveled to different parts of the state and people came to the courthouse with no advance notice.
The current system of organizing civil motions is a necessity because there are lots of cases in the state courts. The day the retired judge threw out the regular order on the motion calendar hearkened back to an earlier era. And it sure was fun.