§ RULE 40. GENERAL DOCKET, TRIAL ROSTERS, AND CALL OF CASES FOR TRIAL
RULE 40. GENERAL DOCKET, TRIAL ROSTERS, AND CALL OF CASES FOR TRIAL
(a) Dockets and Trial Rosters; Designation by Party.
(1) Clerk to Maintain Docket and Trial Rosters. The Clerk of Court shall maintain: (1) a General Docket of all cases filed in the Circuit Court; (2) a Jury Trial Roster of all cases transferred from the General Docket wherein the case is, by agreement of counsel, scheduling order, or expiration of time, deemed ready for jury trial; (3) a Nonjury Docket of all nonjury matters including all motions filed in the Circuit Court.
(2) Pleading or Motion to Designate Type of Matter. At the time of filing of a complaint or responsive pleading thereto, the party shall inform the clerk, or the pleadings shall state in the caption, subject to Rule 38(b), whether the matter is to be heard by a jury or to be heard by the court as a nonjury matter. In the absence of such statement the clerk shall file it as a nonjury matter, subject to a motion to transfer to the appropriate docket. All motions relating to discovery matters, scheduling orders or emergency matters shall state in the caption: Priority Matter.
(b) General Docket, Transfer of Cases to Jury Trial Roster; Call of Cases Only From Jury Trial Roster; Order of Call. The clerk initially shall place all cases in which a jury has been requested on the General Docket. A case may not be called for trial until it has been transferred to the Jury Trial Roster. Trial shall be had no earlier than 30 days from the date the case first appears on the Jury Trial Roster. Cases shall be called for trial in the order in which they are placed on the Jury Trial Roster, unless the court in a Scheduling Order has set a date certain for the trial, or, after the case has been set on the Jury Trial Roster, the court, upon motion, grants a continuance as provided in (i) below. The first 20 cases on the Jury Trial Roster at the opening of court on the first day of a term, excluding those previously dismissed, continued or otherwise resolved before the opening of that term of court, may be called for trial. For each additional judge sitting during that term of court an additional 20 cases are subject to call. All other cases may be called for trial in that term only upon no less than 24 hours notice. Notwithstanding the foregoing, no action may be called for trial until 180 days after service of the last pleading which adds a new party to the action, unless all parties consent in writing.
(c) Transfer to Jury Trial Roster by Agreement. A case may be moved from the General Docket to the Jury Trial Roster at any time by agreement of all counsel of record. If agreement is reached, counsel shall notify the clerk in writing who shall immediately transfer the case to the Jury Trial Roster.
(d) Transfer to Jury Roster Within Six to Nine Months of Filing.
(1) Agreement or Objection. No earlier than 180 days after the date the case was filed, any party may file and serve upon all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster. Within 10 days of the service of the Request to Transfer all other parties shall file and serve either an Agreement to Transfer, or, an Objection to the Request to Transfer. Absent a timely filing indicating a position, the same shall be waived. If all parties have agreed to the transfer, the requesting party shall notify the clerk in writing of the agreement and the clerk shall place the case on the Jury Trial Roster, and it may be called for trial as provided in paragraph (b). If any party files an Objection to Transfer, the case may not be transferred to the Jury Trial Roster within 9 months of filing of the complaint except by agreement or as provided in (d)(2) below.
(2) Objection Shall State Proposed Date of Transfer. Any party who objects to the transfer to the Jury Trial Roster shall also state in its Objection to Transfer whether it will consent to the transfer of the case to the Jury Trial Roster within 9 months of the date of the filing of the complaint, and the date on which it will consent to the transfer. Absent a timely filing indicating a position, the same shall be waived. If all non-moving parties specify a date within 9 months of the filing of the action on which the case may be transferred, the requesting party shall notify the clerk in writing of the agreement to transfer the case to the Jury Trial Roster on the latest date specified by any party that is less than 9 months after filing.
(e) Transfer to Jury Roster Nine Months to Twelve Months After Filing.
(1) Request and Response. No earlier than 9 months after the case was filed, any party in any case on the General Docket may file or re-file and serve upon all other parties a Request to Transfer to the Jury Trial Roster. Within 10 days of the service of the Request to Transfer all non-moving parties shall file and serve either an Agreement to Transfer on the date requested, or a Request for a Scheduling Order as provided in (e)(2) below. No other response is permitted. Absent a timely filing indicating a position, the same shall be waived. If all counsel of record have agreed to the transfer, the moving party shall notify the clerk in writing of the agreement, and the clerk shall place the case on the Jury Trial Roster and it may be called for trial as provided in (b).
(2) Mandatory Scheduling Order. If any party requests a Scheduling Order, that party, and all other parties, within 10 days thereafter, shall file and serve a Response to the Request for a Scheduling Order which shall include: (1) all matters deemed relevant by counsel that may be raised in a Pre-Trial Hearing under Rule 16 including all motions outstanding, and all dispositive motions to be filed; (2) all discovery remaining to be completed or other discovery matters governed by Rule 26(f) Discovery Conference; (3) any other matter affecting the trial date, including the disposition of all previous requests to transfer the case to the Jury Trial Docket; and (4) the date on which all pre-trial matters shall be completed and the case ready for trial. The clerk shall promptly set the request for a Scheduling Order for a hearing before the Chief Judge for Administrative Purposes which shall take priority as provided in (h) below, at which time the Chief Judge for Administrative Purposes shall review the matter and, in its discretion, set a date on which the case is to be transferred to the Jury Trial Roster, and may set a date before which the case may not be called for trial or a date certain for trial. The Scheduling Order may be amended by a subsequent Chief Judge for Administrative Purposes.
(f) Automatic Transfer. The clerk shall review the General Docket and shall transfer to the Jury Trial Roster all cases which have remained on the General Docket for 12 months and in which the court has not entered a Scheduling Order setting the date when the case is to be transferred to the Jury Trial Roster or in which there is no pending motion for a Scheduling Order in the file. The clerk shall notify counsel of record of the transfer, but publication of the Jury Trial Roster also shall be deemed notice of the automatic transfer.
(g) Motion to Strike From Jury Trial Roster. A party may move to strike a case from the Jury Trial Roster if upon timely motion that party establishes that it did not consent to the transfer as represented to the clerk, or that at the time the case was automatically transferred under (f) above, there was in effect a scheduling order setting another date for the transfer, or a pending motion for such order.
(h) Nonjury Docket; Priority of Matters. The clerk shall immediately transfer all matters designated as nonjury matters from the General Docket to the Nonjury Docket. All motions on the Motions Calendar and motions filed in any case shall be immediately placed on the Nonjury Docket. The Chief Judge for Administrative Purposes, in cooperation with the clerk, is responsible for setting all matters on the Nonjury Docket for disposition. Motions may be scheduled for hearing at any time after the period for notice of the motion required by these rules. Priority in scheduling hearings on nonjury matters and scheduling motions at any other time shall be given to all motions designated Priority Matter which includes emergency matters, discovery motions, and all requests for Scheduling Orders as specified in (a)(2) above. Provided, however, that no contested nonjury action may be called for trial on the merits until 120 days after the filing of the summons and complaint, or the last pleading that adds a new party to the action, unless agreed to in writing by all parties.
(i) Continuance.
(1) For Cause. As actions are called, counsel may request that the action be continued. If good and sufficient cause for continuance is shown, the continuance may be granted by the court. Ordinarily such continuances shall be only until the next term of court. Each scheduled calendar week of circuit court shall constitute a separate term of court.
(2) For Absence of Witness. No motion for continuance of trial shall be granted on account of the absence of a witness without the oath of the party, his counsel or agent, to the following effect, to wit: That the testimony of the witness is material to the support of the action or defense of the party moving; that the motion is not intended for delay; but is made solely because the party cannot go safely to trial without such testimony; that there has been due diligence to procure the testimony of the witness or of such other circumstances as will satisfy the court that the motion is not intended for delay. In all such cases where a subpoena has been issued, the original shall be produced, with proof of service, or the reason why not served, endorsed thereon, or attached thereto; or, if lost, the same proof shall be offered with additional proof of the loss of the original subpoena. A party applying for such postponement on account of the absence of a witness shall set forth under oath in addition to the foregoing matters what fact or facts he believes the witness if present would testify to, and the grounds for such belief.
(j) Case Stricken From Docket by Agreement. A party may strike its complaint, counterclaim, cross-claim or third party claim from any docket one time as a matter of right, provided that all parties adverse to that claim, counterclaim, cross-claim or third party claim agree in writing that it may be stricken, and all further agree that if the claim is restored upon motion made within 1 year of the date stricken, the statute of limitations shall be tolled as to all consenting parties during the time the case is stricken, and any unexpired portion of the statute of limitations on the date the case was stricken shall remain and begin to run on the date that the claim is restored. A party moving to restore a case stricken from the docket shall provide all parties notice of the motion to restore at least 10 days before it is heard. Upon being restored, the case shall be placed on the General Docket and proceed from that date as provided in this rule.
(k) Alternate Method of Transfer to Jury Roster. Notwithstanding any other provision of this rule, any party may file and serve on all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster no earlier than 120 days after the case was filed. The Request must certify that the party is ready to go to trial and must indicate any outstanding pre-trial matters. Within 10 days after service of the Request to Transfer, any party may file a Response to the Request. If the Response opposes the transfer, it shall indicate in what respect the case is not ready for trial. Once the time to file Responses has expired, the clerk shall promptly set the Request for Transfer for a hearing before the Chief Judge for Administrative Purposes. The hearing shall be given priority as provided by subdivision (h) of this rule. After a hearing, the Chief Judge may, as a matter of discretion, transfer the case to the Jury Trial Roster.