Skip to main content
scroll to top

Rules of The Circuit Court of the State of New Hampshire -- District Division

Show Table of Contents

Page Content Page Number Page ID
5181

Rule 1.1. Relief from failure to comply.

As good cause appears and as justice may require, the court may waive the application of any rule, except where precluded by law.
 

|576|5186

Rule 1.1A. Computation and extension of time.

(1) In computing any period of time prescribed or allowed by these rules, by order of court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday as specified in RSA ch. 288, as amended.

    (2) Motions to enlarge the time prescribed by these rules or by court order for doing any act are not favored.
 

|576|5191

Rule 1.1B. Application.

References in court rules to the district court shall be deemed to include the circuit court – district division; references to the probate court shall be deemed to include the circuit court – probate division; and references to the judicial branch family division shall be deemed to include the circuit court – family division.

|576|5196

Rule 1.2. Violation of rules.

Upon the violation of any rule of court, the court may take such action as justice may require. Such action may include, without limitation, the imposition of monetary sanctions against either counsel or a party, which may include fines to be paid to the court, and reasonable attorney's fees and costs to be paid to the opposing party.

|576|5201

Rule 1.3. Attorneys and Non-attorney Representatives

 A. Anyone addressing the Court or examining a witness shall stand, except by leave of court. No-one should approach the bench to address the Court except by leave of the Court.

    B. No attorney shall be compelled to testify in any case in which he is retained, unless he shall have been notified in writing five days previous to the commencement of the trial that he will he summoned as a witness therein, and unless he shall have been so summoned previous to commencement of the trial.

    C. (1)  An attorney, who is not a member of the Bar of this  State (a "Nonmember Attorney"), shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice, which will not ordinarily be granted unless a member of the Bar of this State (the "In-State Attorney") is associated with him or her and present at the trial or hearing. 

(2)  A Nonmember Attorney seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:

   (a)  the applicant's residence and business address;

   (b)  the name, address and phone number of each client sought to be represented;

   (c)  the courts before which the applicant has been admitted to practice and the respective period(s) of admission;

   (d)  whether the applicant: (i) has been denied admission pro hac vice in this State; (ii) had admission pro hac vice revoked in this State; or (iii) has otherwise formally been disciplined or sanctioned by any court in this State.  If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

   (e)  whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

   (f)  whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); and

   (g)  the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this State within the preceding two years; the date of each application; and the outcome of the application.

   (h)  In addition, unless this requirement is waived by the district court, the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at any trial or hearing. 

(3)  The court has discretion as to whether to grant applications for admission pro hac vice.  An application ordinarily should be granted unless the court finds reason to believe that:

   (a)  such admission may be detrimental to the prompt, fair and efficient administration of justice;

   (b)  such admission may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;

   (c)  one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or

   (d)  the applicant has engaged in such frequent appearances as to constitute common practice in this State.

        (4)  When a Nonmember Attorney appears for a client in a proceeding pending in this state, either in the role of co-counsel of record with the In-State Attorney, or in an advisory or consultative role, the In-State Attorney who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency.  It is the duty of the In-State Attorney to advise the client of the In-State Attorney’s independent judgment on contemplated actions in the proceeding if that judgment differs from that of the Nonmember Attorney.

       (5)  An applicant for permission to appear pro hac vice shall pay a non-refundable fee as set forth in Circuit Court-District Division Rule 3.3; provided that not more than one application fee may be required per Nonmember Attorney for consolidated or related matters regardless of how many applications are made in the consolidated or related proceedings by the Nonmember Attorney; and further provided that the requirement of an application fee may be waived to permit pro bono representation of an indigent client or clients, in the discretion of the court.

    D. (1)  Non-attorney Representatives. No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the Clerk: (1) a valid authorizing document constituting said person his or her attorney to appear in the particular action; and (2) a written statement in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives, (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court, (d) all prior proceedings in which said person has not been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court, and (e) all prior proceedings in which said person's permission to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court has been revoked. This statement shall be signed and shall indicate the person's understanding that making a false statement in the pleading may subject that person to criminal penalties. Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

(2)   Limited Appearance of Attorneys. To the extent permitted by Rule 1.2 of the New Hampshire Rules of Professional Conduct, an attorney providing limited representation to an otherwise unrepresented litigant may file a limited appearance in a non-criminal case on behalf of  such unrepresented party.  The limited appearance shall state precisely the scope of the limited representation, and the attorney’s involvement in the matter shall be limited only to what is specifically stated. The requirements of District Court Rule 1.3(E) shall apply to every pleading and motion signed by the limited representation attorney.  An attorney who has filed a limited appearance, and who later files a pleading or motion outside the scope of the limited representation, shall be deemed to have amended the limited appearance to extend to such filing.  An attorney who signs a writ, petition, counterclaim, cross-claim or any amendment thereto which is filed with the court, will be considered to have filed a general appearance and for the remainder of that attorney’s involvement in the case, shall not be considered as a limited representation attorney under these rules; provided, however, if such attorney properly withdraws from the case and the withdrawal is allowed by the Court, the attorney could later file a limited appearance in the same matter.

    E. (1)  All pleadings and the appearance and withdrawal of counsel shall be signed by the attorney of record or an associate or by a pro se party. Names, addresses, New Hampshire Bar identification numbers and telephone numbers shall be typed or stamped beneath all signatures on papers to be filed or served. No attorney or pro se party will be heard until an appearance is so entered.

         The signature of an attorney to a pleading constitutes a certificate that the pleading has been read by the attorney; that to the best of the attorney's knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

         If a pleading is not signed, or is signed with an intent to defeat this rule, it may be stricken and the action may proceed as though the pleading had not been filed.

       (2)  Pleading Prepared for Unrepresented Party.  When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the Court in a proceeding in which (a) the attorney is not entering any appearance, or (b) the attorney has entered a limited appearance which does not include representation regarding such document, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.” The unrepresented party must comply with this required disclosure.  Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 1.3.E.(1) despite the fact the pleading need not be signed by the attorney.

    F. When any party shall change attorneys during the pendency of the action, the name of the new attorney shall be entered on the record.

    G. Whenever the attorney of a party withdraws an appearance in a civil case and no other appearance is entered, the Clerk shall notify the party by mail of such withdrawal, and unless the party appears pro se or through counsel by a date fixed by the Court, the Court may take such action as justice may require.

    H. In a criminal case, whenever the Court approves the withdrawal of appointed defense counsel, the Court shall appoint substitute counsel forthwith and notify the defendant of said appointment by mail. Notwithstanding I(1) (below), if appointed counsel in a criminal matter must withdraw due to a conflict of interest as defined by Rules 1.7(a), 1.9(a) and (b) and/or 1.10(a), (b) and (c) of the New Hampshire Rules of Professional Conduct, counsel shall forward a Notice of Withdrawal to the court and substitute counsel shall be appointed forthwith. Court approval of a withdrawal shall not be required in this circumstance unless the Notice of Withdrawal is filed less than 20 days from the date of a trial in which case Court approval shall be required. Automatic withdrawal shall not be allowed and court approval shall be required if the basis for the withdrawal is a breakdown in the relationship with the client, the failure of the client to pay legal fees, or any other conflict not specifically set forth in Rules 1.7(a), 1.9(a) and (b) and/or 1.10(a), (b), and (c) of the New Hampshire Rules of Professional Conduct.
   
    I. (1)  Other than limited representation by attorneys as allowed by Rule 1.3.D.(2), and Professional Conduct Rule 1.2(f)) and except as provided in Rule 1.3(H), no attorney shall be permitted to withdraw that attorney’s appearance in a case after the case has been scheduled for trial or hearing, except upon motion to permit such withdrawal granted by the Court for good cause shown, and on such terms as the Court may order.  Any motion to withdraw filed by counsel shall clearly set forth the reason therefor and contain a certification that copies have been sent to all other counsel or opposing parties, if appearing pro se, and to counsel's client at the client's last known address, which shall be fully set forth within the body of the motion. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the attorney's services.
    
    Upon receipt of a motion to withdraw, the Clerk shall schedule a hearing before the Court. Notice by mail shall be sent to all counsel of record, or parties if unrepresented by counsel, and to the client of withdrawing counsel, at the client's last known address as set forth in the motion.
    
    If withdrawing counsel's client fails to appear at said hearing, the Court may, in its discretion, and without further notice to said client, order the trial date continued or make such other order as justice may require.

       (2) Automatic Termination of Limited Representation.  Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Rule 1.3.D.(2) of this Court, shall automatically terminate upon completion of the agreed representation, without the necessity of leave of Court, provided that the attorney shall provide the Court a “withdrawal of limited appearance” form giving notice to the Court and all parties of the completion of the limited representation and termination of the limited appearance.  Any attorney having filed a limited appearance who seeks to withdraw prior to the completion of the limited representation stated in the limited appearance, however, must comply with Rule 1.3.I.(1).

       (3) Automatic Withdrawal of Court-Appointed Counsel in Criminal Cases. In all criminal cases, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty (30) days after sentence is imposed unless the sentence imposed was a deferred sentence or unless a post-sentencing motion is filed within said thirty (30) day period.  Where a deferred sentence is imposed, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty (30) days after the deferred sentence is brought forward or suspended.  Where a post-sentencing motion is filed within thirty (30) days after imposition of sentence, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty (30) days after the court rules on said motion.  Provided, however, that in any criminal case in which an appeal to the supreme court is filed, trial counsel shall remain responsible for representing the defendant in the supreme court pursuant to Supreme Court Rule 32.

       (4) Automatic Withdrawal of Court-Appointed Counsel in Delinquency and Children in Need of Services Cases.  In all Juvenile Delinquency and Children in Need of Services matters brought pursuant to RSA 169-B and RSA 169-D respectively, the appearance of counsel for the child shall be deemed to be withdrawn thirty (30) days after the date of the Clerk’s notice of the dispositional order unless a post-dispositional motion is filed within that thirty (30) day period or the court otherwise orders representation to continue.  Where a post-dispositional motion is filed within thirty (30) days, the appearance of counsel for the juvenile shall be deemed to be withdrawn thirty (30) days after the court rules on said motion.  Where the court otherwise orders representation to continue, the order shall state the specific duration and purpose of the continued representation.  Counsel for the juvenile shall be deemed to be withdrawn immediately at the end of the ordered duration.

|576|5206

Rule 1.3-A. Pleadings – copies to all parties.

(A) Copies of all pleadings filed and communications addressed to the Court shall be furnished forthwith to all other counsel or to the opposing party if self-represented.  When an attorney has filed a limited appearance under Rule 1.3.D.(2) on behalf of an opposing party, copies of pleadings filed and communications addressed to the Court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney.  After the limited representation attorney files that attorney’s “withdrawal of limited appearance” form, as provided in Rule 1.3.I.(2), no further service need be made upon that attorney.  All such pleadings or communications shall contain a statement of compliance herewith.

(B) In any case when all parties are represented by lawyers, all parties' counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel's signature, a facsimile thereof, “/s/ [counsel's name]” as used in the federal ECF system, or similar notation indicating the document was signed.

(C) A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court.  At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case.  Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

|576|5211

Rule 1.4. Photographing, Recording and Broadcasting

(a) Except as otherwise provided by this rule or by other provisions of law, any person, whether or not a member of an established media organization, shall be permitted to photograph, record and broadcast all court proceedings that are open to the public, provided that such person provides advance notice to the presiding justice in accordance with section (c) of this rule that he or she intends to do so.  No person shall photograph, record or broadcast any court proceeding without providing advance notice to the presiding justice that he or she intends to do so.  In addition to giving any parties in interest an opportunity to object, the purpose of the notice requirement is to allow the presiding justice to ensure that the photographing, recording or broadcasting will not be disruptive to the proceedings and will not be conducted in such a manner or using such equipment as to violate the provisions of this rule.

(b)  Official court reporters, court monitors and other persons employed or engaged by the court to make the official record of any court proceeding may record such proceeding by video and/or audio means without compliance with the notice provisions of section (a) of this rule.

(c) Any person desiring to photograph, record or broadcast any court proceeding, or to bring equipment intended to be used for these purposes into a courtroom, shall submit a written request to the clerk of the court or his or her designee, who, in turn, shall deliver the request to the presiding justice before commencement of the proceeding, or, if the proceeding has already commenced, at the first reasonable opportunity during the proceeding, so the justice before commencement of the proceeding, or at an appropriate time during the proceeding, may give all interested parties a reasonable opportunity to be heard on the request.

(d)  Any party to a court proceeding or other interested person who has reason to believe that a request to photograph, record or broadcast a court proceeding will be made and who desires to place limitations beyond that specified by this rule upon these activities may file a written motion seeking such relief.  The motion shall be filed as far in advance of the proceeding as is practicable.  Upon the filing of such a motion, the court may schedule a hearing as expeditiously as possible before the commencement of the proceeding and, if a hearing is scheduled, the court shall provide as much notice of the hearing as is reasonably possible to all interested parties and to the Associated Press, which shall disseminate the notice to its members.

(e)  No court or justice shall establish notice rules, requirements or procedures that are different than those established by this rule.

(f)  At any hearing conducted pursuant to subsections (c) or (d) of this rule, the party or person seeking to prohibit or impose restrictions beyond the terms of this rule on the photographing, recording or broadcasting of a court proceeding that is open to the public shall bear the burden of demonstrating: (1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted; (2) that the relief sought is no broader than necessary to protect that interest; and (3) that no reasonable less restrictive alternatives are available to protect the interest.  Any order prohibiting or imposing restrictions beyond the terms of this rule upon the photographing, recording or broadcasting of a court proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the court’s action.

(g)  The presiding justice retains discretion to limit the number of cameras, recording devices and related equipment allowed in the courtroom at one time.  In imposing such limitations, the presiding justice may give preference to requests to photograph, record or broadcast made by a representative of an established media organization that disseminates information concerning court proceedings to the public.  The presiding justice also may require representatives of the media to arrange pool coverage.

(h)  It is the responsibility of representatives of media organizations desiring to photograph, record or broadcast a court proceeding to contact the clerk of court in advance of a proceeding to ascertain if pool coverage will be required.  If the presiding justice has determined that pool coverage will be required, it is the sole responsibility of such media representatives, with assistance as needed from the clerk or his or her designee, to determine which media organization will provide the coverage feed.  Disputes about pool coverage will not ordinarily be resolved by the court, and the court may deny media organizations’ requests to photograph, record or broadcast a proceeding if pool agreements cannot be reached.  It also is the responsibility of said person to make arrangements with the clerk of court or his or her designee sufficiently in advance of the proceeding so that the set up of any needed equipment in the courtroom, including equipment for pool coverage, can be completed without delaying the proceeding.  The court shall allow reasonable time prior to a proceeding for the set up of such equipment.

(i)  The court shall make all documents and exhibits filed with the court, and not sealed, available for inspection by members of the public in a reasonably timely fashion, it being recognized that the court’s need to make use of documents and exhibits for official purposes must take precedence over their availability for public inspection.  The court may elect to make one “public” copy of an exhibit available in the clerk’s office.

(j)  The exact location of all recording, photographing and broadcasting equipment within the courtroom shall be determined by the presiding justice.  Once established, movement of such equipment within the courtroom is prohibited without the express prior approval of the presiding justice.  The court may prohibit the use of any equipment which requires the laying of cords or wires that pose a safety hazard or impair easy ingress and egress from the courtroom.  All equipment used must operate with minimal noise so as not to disrupt the proceedings.

(k) Unless otherwise ordered by the presiding justice, the following standing orders shall apply to all recording, photographing or broadcasting of proceedings within any courtroom:

    (1)  No flash or other artificial lighting devices shall be used.

    (2)  Set up and dismantling of equipment in a disruptive manner while court is in session is prohibited.

    (3)  No recording, photographing or broadcasting equipment may be moved into, out of, or within the courtroom while court is in session.

    (4)  Recording, photographing or broadcasting equipment must remain a reasonable distance from the parties, counsel tables, alleged victims and their families and witnesses, unless such person(s) voluntarily approach the position where such equipment is located.  No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between lawyer and client or conferences held at the bench among the presiding justice and counsel or the parties.

    (5)  All persons using recording, photographing or broadcasting equipment must abide by the directions of court officers at all times.

    (6)  Interviews within the courtroom are not permitted before or after a proceeding.

    (7)  A person who has been granted permission to record, photograph or broadcast a court proceeding shall not engage in any activity that distracts the participants or impairs the dignity of the proceedings.  

 

Comment

With respect to subsection (c) of this rule, it is contemplated that such requests will be deemed timely if they are filed enough in advance of the proceeding that the presiding justice has an opportunity to read and consider the request, to orally notify all interested parties of its existence, and to conduct a brief hearing in the event that any interested party objects to the request.  Given the strong presumption under New Hampshire law that photographing, recording and/or broadcasting court proceedings that are open to the public is allowable, this subsection is not intended to impose lengthy or onerous advance notice requirements; instead, it recognizes that frequently such requests will be filed only shortly before the proceeding in question is to begin.

|576|5216

Rule 1.5. Interpreters.

No person who has assisted in the preparation of a case shall act as an interpreter at the trial thereof, if objection is made.

|576|5221

Rule 1.6. Clerks office and judges chambers.

A. No witnesses, police personnel, plaintiffs or defendants shall be permitted into a clerk's office or judge's chambers, except when necessary and as authorized by the Court.

    B. Official business should be transacted in an area set aside as being accessible to the public for that purpose.

    C. No person shall make any statement with regard to the merits of that person's case, orally or in writing, to any judge in whose court or before whom any suit, petition or other proceeding is pending or to be heard or tried except in open court or in the presence of all parties thereto.

    Any person who shall make any such statement to any judge, except in open court or in the presence of all parties, may be subject to contempt proceedings under RSA 495:2.

|576|5226

Rule 1.7. Argument of counsel.

Each party shall be allowed such time for argument as the Court shall order. The defendant shall argue first. The plaintiff, or the prosecutor in criminal cases, shall argue last.

      
In criminal cases where the defendant has moved that certain evidence be suppressed, requests for findings of fact and rulings of law, and memoranda must be submitted to the Presiding Justice at the close of the hearing on said motion. The Presiding Justice will make sufficient findings and rulings to permit meaningful appellate review.

|576|5231

Rule 1.8. Motions.

A. Any request for action by the Court shall be by motion. All motions, other than those made during trial or hearing, shall be made in writing unless otherwise provided by these rules. They shall state with particularity the grounds upon which they are made and shall set forth the relief or order sought.

B. The Court will not hear any motion grounded upon facts, unless the moving party indicates in writing an understanding that making a false statement in the pleading may subject that party to criminal penalties, or the facts are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule will be applied as to all facts relied on in opposing any motion.

C. Any party filing a motion shall certify to the Court that a good faith attempt to obtain concurrence in the relief sought has been made, except in the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably assumed that the party or counsel will be unable to obtain concurrence.

D. In any case, other than small claims cases, unless the opposing party requests a hearing upon any motion and sets forth the grounds of the objection by a pleading and, if required, an affidavit within ten days after the filing of the motion, that party shall be deemed to have waived a hearing and the court may act thereon.

In small claims cases, unless the opposing party requests a hearing upon any motion and sets forth the grounds of the objection by a pleading and, if required, a written statement indicating an understanding that making a false statement in the pleading may subject that party to criminal penalties, within ten days after the filing of the motion, that party shall be deemed to have waived a hearing and the court may act thereon.

E. Any motion which is capable of determination without the trial of the general issue shall be raised before trial, but may, in the discretion of the Court, be heard during trial.

F. The Court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion.

G. Motions to Dismiss. Upon request of a party, hearings on motions to dismiss shall be scheduled as soon as practicable, but no later than 30 days prior to the date set for trial on the merits, unless the court shall otherwise order in the exercise of discretion. All parties shall be prepared, at any such hearing, to present all necessary arguments.

H. Motions to Recuse. All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the court. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the court shall make a record of the request, the court’s findings, and its order. The court's ruling on the motion shall issue promptly. If the motion is denied, the court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.

I. Motions to Reconsider. A party intending to file a motion for reconsideration or to request other post-decision relief shall do so within 10 days of the date on the written notice of the order or decision, which shall be mailed or electronically delivered by the clerk on the date of the notice. The motion shall state, with particular clarity, points of law or fact that the court has overlooked or misapprehended and shall contain such argument in support of the motion as the movant desires to present; but the motion shall not exceed 10 pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the court the opportunity to consider such issues; thus, to the extent that the court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the motion shall not be permitted except by order of the court.

(1) No answer or objection to a motion for reconsideration or other post-decision relief shall be required unless ordered by the court.

(2) If a motion for reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

(3) The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

J. No filing which is contained in a letter, will be accepted by the clerk, as such, or acted on by the court. All pleadings, motions, objections and forms filed shall be in the format of 8 1/2 x 11 inch documents either typewritten or printed double spaced, on one side of the paper, so they are clearly legible.

K. All pleadings, motions and objections shall set forth the factual allegations in numbered paragraphs.

L. No attorney, non-attorney representative or party to litigation shall directly address himself or herself by pleading, motion, or objection to any judge but shall file such pleading, motion, or objection with the clerk.

M. All motions must contain the word "Motion" in the title. Filers shall not combine multiple motions seeking separate and distinct relief into a single filing. Separate motions must be filed. Objections to pending motions and affirmative motions for relief shall not be combined in one filing.

N. The court may in all cases order either party to plead and also to file a statement in sufficient detail to give to the adverse party and to the Court reasonable knowledge of the nature and grounds of the action or defense.

O. Documents shall not be withdrawn from the court files except by leave of court and upon the filing of a receipt therefor.

|576|5236

Rule 1.8-A. Continuances and postponements and motions for recusal

A. All motions for continuance shall be in writing, signed by the moving party stating the reasons therefor and stating that the opposing party does not desire a hearing on the motion, if such is the case.

    B. No motion for continuance shall be granted without a hearing unless approval of the opposing party is obtained. The moving party shall have the burden of obtaining such approval.

    C. Agreement of the parties shall constitute a waiver of hearing on a motion to continue; but notwithstanding agreement of the parties, the Court shall exercise its sound discretion in granting such continuances.

    D. All motions for continuance or postponement in a civil action shall be signed and dated by counsel. Other counsel wishing to join in any motion shall do so in writing. Each motion shall contain a certificate by counsel that the client has been notified of the reasons for the continuance or postponement, has assented thereto either orally or in writing, and has been forwarded a copy of the motion.

    E. In exceptional situations, motions to continue may be made orally in accordance with these rules and shall be effective as such, but it shall be the burden of the moving party to establish a record thereof by confirming such request in writing. Only attorneys, police prosecutors, or parties pro se, shall be permitted to continue orally.

    F. In all civil cases, other than small claims cases filed in district division locations in which the electronic filing pilot program has been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, no motion for a continuance, grounded on the want of material testimony, will be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is wanted, the particular facts expected to be proven with the grounds of such expectation, and what has been done to procure attendance or deposition, so that the Court may determine whether due diligence has been used for that purpose. No action shall be continued on such motion if the adverse party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated; and such agreement shall be in writing at the foot of the affidavit and signed by the party or the attorney.

   In small claims cases filed in district division locations in which the electronic filing pilot program has been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, no motion for a continuance, grounded on the want of material testimony, will be granted, unless supported by a signed statement in which the moving party indicates in writing an understanding that making a false statement in the pleading may subject that party to criminal penalties and stating the name of the witness, if known, whose testimony is wanted, the particular facts expected to be proven with the grounds of such expectation, and what has been done to procure attendance or deposition, so that the Court may determine whether due diligence has been used for that purpose. No action shall be continued on such motion if the adverse party will agree that the statement shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated; and such agreement shall be in writing at the foot of the statement and signed by the party or the attorney.

G. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, paper or other evidence of like nature; or in the absence of a material witness whom the party deems it necessary to have upon the stand.

    H. All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the Court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the judge. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order.  The Court's ruling on the motion shall issue promptly.  If the motion is denied, the Court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.

|576|5241

Rule 1.8-B. Grounds for continuance.

A. Where a trial has been scheduled in one case prior to the scheduling of another matter in another Court, or elsewhere, where an attorney or party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:

        (a) A subsequently scheduled case involving trial by jury in a Superior or Federal District Court, or argument before the Supreme Court.

        (b) Unusual circumstances causing the respective Courts to agree that an order of precedence other than the above shall take place.

    B. Other grounds for continuance may be illness of a defendant, defense attorney, or prosecutor; want of material testimony, document, or other essential evidence; unavoidable absence of an essential witness; and such other exceptional grounds as the Court may deem to be in the interest of justice.

    C. Grounds for a continuance shall be set forth in detail in the motion.

|576|5246

Rule 1.9. Depositions and use of video tape depositions.

[Repealed.]

|576|5251

Rule 1.10. Written interrogatories.

[Repealed.]

|576|5256

Rule 1.11. Appeals to the Supreme Court.

A.  When a question of law is to be transferred after a decision on the merits, all appeals shall be deemed waived and final judgment shall be entered on the thirty-first day from the date on the Clerk's written notice that the Court has made the decision on the merits, unless the party aggrieved enters a notice of appeal in the Supreme Court within thirty days from the date on the Clerk's written notice of the Court's decision that aggrieves the party, pursuant to Supreme Court Rule 7, and mails the number of copies provided for by the rules of the Supreme Court to the Clerk thereof.  The Court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court.  See Supreme Court Rule 21(6).

    B. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the Clerk of the District Court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 and Supreme Court Rule 9, and after the Court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the Clerk thereof.

|576|5261

Rule 1.12. Court sessions.

Times and frequency of court sessions will be established pursuant to guidelines promulgated by the Supreme Court.

|576|5266

Rule 1.13. Disbursements.

No Justice or Special Justice shall authorize the spending of, and no Clerk shall disburse, any Court funds not authorized by the Revised Statutes Annotated. Any Justice who wishes to use Court funds for the improvement of courtroom facilities, the employment of additional personnel, or any purpose other than the usual and regular operating expenses of the Court, shall first submit the proposed expenditure for consideration and approval of the Administrative Office of the Courts. 

|576|5271

Rule 1.14. Dockets.

The dockets to be used in all District Courts shall be in the form approved by the Administrative Office of the Courts.

|576|5276

Rule 1.15.

Repealed, effective March 1, 1990.

|576|5281

Rule 1.16. Attendance of clerks.

Clerks shall attend all regular or special sessions of the Court unless excused by the Justice. The Clerk is answerable for all records and documents filed with the Court, and the records may not be taken from the Clerk's custody without special order of the Court. The parties may at all times have copies.

|576|5286

Rule 1.17. Exhibits.

The Clerk is responsible for all exhibits entered during the case. The Clerk shall seasonably return exhibits to the attorney by whom they have been produced upon final disposition of the case, unless otherwise ordered by the Court.

|576|5291

Rule 1.18.

Repealed, effective September 1, 2008.

|576|5296

Rule 1.19. Sound Recordings of Proceedings.

The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15. 

|576|5301

Rule 1.20. Uniform Forms.

[Repealed.]

|576|5306

Rule 1.21. Periodic Payments.

  (1) A judgment creditor who seeks an order for periodic payments under RSA 524:6-a shall file a Motion for Periodic Payments, setting out specific grounds for relief. An unsatisfied execution is not required as a prerequisite for such a motion. Such a motion shall be made orally in court if the defendant is present when the verdict or judgment is awarded; in which case, the court shall conduct a hearing, pursuant to subdivision (3).

Comment

A “Motion for Periodic Payments” form that may be used to comply with this paragraph is available at the clerk’s office of any Circuit Court and on the Judicial Branch website at http://www.courts.state.nh.us/district/forms/allforms.htm#civil


    (2) Upon the filing of a written motion under subdivision (1), a notice of hearing will issue, requiring the judgment debtor to appear at a time and date named therein and to submit to an examination relative to the judgment debtor's property and ability to pay the judgment. The judgment creditor shall cause the notice of hearing to be served either in-hand or by certified mail, restricted delivery, return receipt requested. If the judgment creditor elects to serve the notice of hearing by certified mail, restricted delivery, return receipt requested, and if the return receipt is returned without indication that the notice of hearing has been properly served, then in-hand service shall be required.

    (3) On hearing, the judgment debtor may be required to submit a Statement of Assets and Liabilities, which shall be confidential as to non-parties, and may be examined under oath as to the judgment debtor's property and ability to pay the judgment. Either party may introduce oral and written evidence as the court deems relevant. Technical rules of evidence do not apply.

Comment

The “Statement of Assets and Liabilities" form referred to in this paragraph is available at the clerk’s office of any Circuit Court and on the Judicial Branch website at http://www.courts.state.nh.us/district/forms/allforms.htm#civil


    (4) If the judgment debtor fails to appear at the hearing, the court may proceed, and orders may be made in the judgment debtor's absence or an order for arrest may be issued. Attendance by the plaintiff or plaintiff's counsel is required unless excused by the court.

    (5) If the court is satisfied that the judgment debtor has property not exempt from attachment or execution, the court may order the property to be produced or so much thereof as may be sufficient to satisfy the judgment and cost of the proceedings so it may be taken on execution. If the judgment debtor is able to make periodic payments on the judgment, the court may, after allowing the judgment debtor an appropriate amount for support and support of the judgment debtor's family, if any, order the judgment debtor to make such periodic payments as are deemed as appropriate. The court may order a combination of the foregoing.

    (6) The court may prescribe the times, places, amounts of payments and other details in making any order. The court may at any time review, revise, modify, suspend or revoke any order. Failure to obey any lawful order of the court without just cause shall constitute a contempt of court. Contempt proceedings may be initiated by the judgment creditor by motion or Motion for Contempt for Non-Compliance with Payment Order and will result in the issuance of an order of notice to appear before the court to show cause why the defendant should not be held in contempt of court.  The judgment creditor shall cause the order of notice to be served either in-hand or by certified mail, restricted delivery, return receipt requested.  If the judgment creditor elects to serve the order of notice by certified mail, restricted delivery, return receipt requested, and if the return receipt is returned without indication that the order of notice has been properly served, then in-hand service shall be required.

Comment

A Motion for Contempt for Non-Compliance with Payment Order form that may be used to comply with this paragraph is available at the clerk’s office of any Circuit Court and on the Judicial Branch website at http://www.courts.state.nh.us/district/forms/allforms.htm#civil


    (7) At the contempt hearing following an order to show cause, the court may require an investigation by probation or other appropriate agency. The court, after hearing, may find the defendant in contempt and may make such orders as are appropriate, including a commitment to the house of correction until contempt is discharged.

    (8) A sentence for contempt shall not end the proceedings nor satisfy any order for periodic payments. Future violations of the order on which the sentence was founded may likewise be dealt with as a contempt.

    (9) If a motion for periodic payments is denied for want of property or ability to pay, the judgment creditor shall not file another motion against the same debtor upon the same judgment within three months unless the court otherwise allows for good cause.

    (10) All costs and fees incurred by the plaintiff in carrying out the provisions of this rule shall be paid by the defendant.

|576|5311

Rule 1.22. Formal proof of highway waived unless demanded.

In any case, civil or criminal, in which a road or way is alleged to be a "way" as defined in RSA 259:125 or a public highway, a party shall notify the opposing party or counsel at least ten days prior to trial if said "way" or public highway must be formally proved; otherwise, the need to formally prove said "way" or public highway will be deemed to be waived.

|576|5316

Rule 1.23. Exceptions unnecessary.

Formal exceptions to nonevidentiary rulings or orders of the Court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at or before the time the ruling or order of the Court is made or sought, makes known to the Court by pleading or orally on the record the action which is requested of the Court or any objection thereto requested by a party opponent, provided that in each instance the party has informed the Court of the specific factual or legal basis for the position taken. Objections to evidentiary rulings are governed by N.H.R.Ev. 103.

|576|5321

Rule 1.24. Protection of children in sex-related cases.

In any criminal case or delinquency proceeding under RSA chapter 169-B alleging a sex-related offense in which a minor child was a victim, the Court shall allow the use of anatomically correct drawings and/or anatomically correct dolls as demonstrative evidence to assist the alleged victim or minor witness in testifying, unless otherwise ordered by the Court for good cause shown.

    In the event that the alleged victim or minor witness is nervous, afraid, timid, or otherwise reluctant to testify, the Court may allow the use of leading questions during the initial testimony but shall not allow the use of such questions relating to any essential element of the criminal offense.

|576|5326

Rule 1.25. Untimely-filed guardian ad litem reports.

(A)  A guardian ad litem who, without good cause, fails to file a report required by any court or statute by the date the report is due may be subject to a fine of not less than $100 and not more than the amount of costs and attorneys fees incurred by the parties to the action for the day of the hearing.  The guardian ad litem shall not be subject to the fine under this rule if, at least ten days prior to the date the report is due, he or she files a motion requesting an extension of time to file the report. 

    (B)  The court clerk shall report to the guardian ad litem board all guardians ad litem who fail to file a report by the date the report is due. However, the report shall clearly indicate all such guardians for whom the court has found good cause for the late filing.  The court clerk shall make such report available to the public.

|576|5331

Rule 1.26. Access to Confidential Records -- Fees and Notice.

Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record.   See Petition of Keene Sentinel, 136 N.H. 121 (1992).

    Filing Fee:  There shall be no filing fee for such a motion or petition.

    Notice:  In open cases, the person filing such a motion shall provide the parties to the proceeding with notice of the motion by first class mail to the last mail addresses on file with the clerk.

   In closed cases, the court shall order that the petitioner notify the parties of the petition to grant access by certified mail to the last known address of each party, return receipt requested, restricted delivery, signed by the addressee only, unless the court expressly determines that another method of service is necessary in the circumstances.

|576|5336

Rule 1.27. Dismissal of Cases Pending Without Action

With the exception of a case which has been accepted for appeal by the New Hampshire Supreme Court, any non-criminal matter which has been pending without action for three calendar years from the date of the last court action may be dismissed by the court. Thirty days prior to dismissal the court shall send a notice of the pending dismissal to the last known address of all parties and counsel of record. A case may be considered “pending without action” in the following circumstances:

No court hearing has been scheduled or requested;
No pleadings are pending before the court;
No judgment has been entered in the case; and
No court order has been issued to stay the case.

|576|5341

Rule 1.28. Court fees

(I)  Fees

(A) Original Entries:

1. Civil Complaint or Counterclaim
(including set-off, recoupment, cross-
claims and third-party claims)                                       $ 150.00
Replevin                                                                          $ 150.00
Landlord/Tenant entry                                                    $ 125.00
Registration of Foreign Judgment                                 $ 175.00

2. Small Claims Entry and Counterclaim, $5000
or less (including set-off, recoupment, cross-
claims and third-party claims)                                         $ 80.00
Small Claims Transfer Fee                                             $ 145.00
Small Claims Entry and Counterclaim, $5001
to $10,000 (including set-off, recoupment,
cross-claims and third-party claims)                               $ 135.00

(B) General and Miscellaneous

Motion for Periodic Payments                                          $ 25.00
Petition to annul criminal record (does not
include Petition to Annul record of arrest only
for which there is no fee)                                                  $ 125.00
Original writ                                                                     $ 1.00
Writ of Execution                                                              $ 40.00
Petition/Motion for Ex Parte Attachment, or Writ
of Trustee Process                                                             $ 40.00
Reissued Orders of Notice, Reissued Summons              $ 25.00
Application to Appear Pro Hac Vice                                $ 350.00

(C) Certificates & Copies
Certificate of Judgment                                                      $ 10.00
Exemplification of Judgment                                             $ 40.00
Certified Copies                                                                $ 10.00
All copied material (except transcripts)                            $ .50/page
Printing from court kiosks and
computer screen printouts                                                  $ .25/page

(II)  Surcharge

Pursuant to RSA 490:26-a, II, the sum of $25.00 shall be added to each civil filing fee set forth in paragraph (I)(A)(1) above other than Landlord/Tenant entry.

(III) Records Research Fees

(A)  Records Research Fees. Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.  A fee of $20 per name will be assessed per name for up to 5 names.  Additional names will be assessed $5 per name.  Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.
(B) The Clerk may waive the records research fee when a request for record information is made by a member of the media consistent with the public's right to access court records under the New Hampshire Constitution.

(IV) Electronic Case Filing Surcharge

(A) The sum of $20.00 shall be added to each civil filing fee set forth in paragraph I(A)(1) above.
(B) The sum of $10.00 shall be added to each filing fee set forth in paragraph I(A)(2) above, with the exception of the small claim transfer fee.

Note: The electronic case filing surcharge is not an entry fee subject to the escrow fund for court facility improvements or the judicial branch information technology fund. All revenue from the electronic case filing surcharge shall be deposited into the general fund to partly offset capital fund expenditures for the NH e-Court Project.

|576|5346
33696

CIVIL RULES, WITH THE EXCEPTIONS NOTED BELOW, APPLICABLE TO CASES FILED BEFORE THE IMPLEMENTATION OF ELECTRONIC FILING IN CIVIL CASES IN THE DISTRICT DIVISION

NOTE: These rules apply only to cases commenced before the date electronic filing is implemented. Any cases filed on or after the date electronic filing is implemented in civil cases in the Circuit Court-District Division shall be governed by the Civil Rules Applicable to Cases Filed on or after the Implementation of Electronic Filing, including those cases in which the court grants an exception to electronic filing. Rules 3.23 (Interrogatories) and 3.26 (Depositions) of the Civil Rules Applicable to Cases Filed on or after the Implementation of Electronic Filing shall also apply to cases commenced before the date electronic filing is implemented.

5351

Rule 3.1. Writs.

Except in small claim matters, (Appendix to RSA 491, Supreme Court Rule #1) the Clerk shall deliver blank writs to no one except attorneys who have been admitted by the Supreme Court or to individuals who shall elect to prosecute their own suit or to have a citizen of good character who is not an attorney of the court prosecute their suit for them. Blank writs delivered to individuals not attorneys of the court shall be entitled by the Clerk.
    
No attorney who has been admitted by the New Hampshire Supreme Court shall cause any blank writ to be used by any other person than himself or some attorney of the Court.

5356

Rule 3.2. Entry of actions.

A. Writs may be entered with the court prior to service of process or after service of process. For purposes of complying with the statute of limitations, an action shall be deemed commenced on the date of service of the writ, or the date of entry of the writ, whichever event occurs first. Writs will not be accepted for entry unless the mail address and actual street address of each party plaintiff appear thereon (except domestic violence petitions, in accordance with RSA 173-B:3), and no appearance card shall be filed unless it contains the mail address and actual street address of each party defendant included in said appearance card. For good cause shown, any writ or appearance card rejected for non-compliance with this rule may, upon motion and compliance, be admitted for filing.
    
    For the purpose of compliance with any time deadlines or statutes of limitation, the terms "filing" and "entry" shall have the same meaning and shall be used interchangeably. Whenever any document is received by the court and time-stamped as received, or the receipt is entered on the court's database, the earlier of the two shall be accepted as filing or entry.
    
    All changes of either mail address or actual street address shall be filed with the Clerk. Whenever notice to a party is required, notice to the last mail address on file shall be deemed notice to, and binding on, the party.

    B. No civil action shall be entered upon the docket until the writ is filed and the entry fee paid, and no such action shall be entered after the day following the return day named in the writ, unless by agreement signed by the adverse party, or his attorney, or by leave of court after notice to the adverse party.

    C. [Repealed.]

    D. The Clerk may refuse to accept any pleading or motion that he determines does not comply with these rules. In the event an objection is made to such determination, a written motion may be made to the Court to rule on such determination.

    E. No attorney shall directly address himself by motion or pleading to any judge of any District Court, but he shall file such motion or pleading with the Clerk of that Court.

5361

Rule 3.3. Court fees

(I)  Fees

    (A) Original Entries:

       Civil Writ of Summons or Counterclaim
          (including set-off, recoupment, cross-
          claims and third-party claims)                             $ 150.00
        Replevin                                                                      $ 150.00
        Landlord/Tenant entry                                             $ 125.00
        Registration of Foreign Judgment                          $ 175.00
        Small Claims Entry and Counterclaim, $5000
          or less (including set-off, recoupment, cross-
          claims and third-party claims)                             $ 80.00
        Small Claims Transfer Fee                                       $ 145.00
        Small Claims Entry and Counterclaim, $5001
          to $10,000 (including set-off, recoupment,
          cross-claims and third-party claims)                 $ 135.00

    (B) General and Miscellaneous

        Motion for Periodic Payments                                  $ 25.00
        Petition to annul criminal record                             $ 125.00
        Original writ                                                                 $ 1.00
        Writ of Execution                                                        $ 40.00
        Petition for Ex Parte Attachment, or Writ
          of Trustee Process                                                   $ 40.00
        Reissued Orders of Notice                                        $ 25.00
        Application to Appear Pro Hac Vice                         $ 350.00

 

(C) Certificates & Copies

Certificate of Judgment                                  $ 10.00
        Exemplification of Judgment                           $ 40.00
        Certified Copies                                          $ 10.00
        All copied material (except transcripts)              $ .50/page
        Printing from court kiosks and
          computer screen printouts                           $ .25/page
       

(II)  Surcharge

        Pursuant to RSA 490:26-a, II, the sum of $25.00 shall be added to each civil filing fee set forth in paragraph (I)(A) above, except for the following types of cases which pursuant to RSA 490:26-a, II(b) are exempt from the surcharge:
(A)  Actions relating to children under RSA 169-B, RSA 169-C, and RSA 169-D.

(B)  Domestic violence actions under RSA 173-B.

(C)  Small claims actions under RSA 503.

(D)  Landlord/tenant actions under RSA 540, RSA 540-A, RSA 540-B, and RSA 540-C.

(E)  Stalking actions under RSA 633:3-a.


(III) Records Research Fees

(A)  Records Research Fees. Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.  A fee of $20 per name will be assessed per name for up to 5 names.  Additional names will be assessed $5 per name.  Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.

(B) The Clerk may waive the records research fee when a request for record information is made by a member of the media consistent with the public's right to access court records under the New Hampshire Constitution.


(IV) Electronic Case Filing Surcharge

(A) Small Claims Surcharge                                       $10.00

Note: The electronic case filing surcharge is not an entry fee subject to the escrow fund for court facility improvements or the judicial branch information technology fund. All revenue from the electronic case filing surcharge shall be deposited into the general fund to partly offset capital fund expenditures for the NH e-Court Project.

5366

Rule 3.4. Attachment procedures (RSA 511-A).

A. WRIT FORMS. The writ form, which has been in use in recent years, is not to be used. There will be a writ of summons and a separate writ of attachment. Attachment as used herein includes trustee process.

    B. ATTACHMENT WITH NOTICE. The following procedure is to be used where the plaintiff petitions for permission to make an attachment, using the method requiring notice to the defendant, and an opportunity to be heard:

        (1) The petition shall be executed under oath, and accompanied with the notice to defendant and order form, in accordance with the Petition to Attach with Notice.

        (2) The petition to attach shall be fastened to the face of the writ of summons.

        (3) The original writ and copies are then to be given to the sheriff, or his deputy, for service on the defendant; immediately after such service, that writ, together with the sheriff's return, is to be entered in Court.

        (4) If the petition is granted, the plaintiff's attorney is authorized to fill out a writ of attachment in accordance with the order granting the petition, and deliver it, with copies, to the sheriff, or his deputy, to effect the attachment. If the petition to attach is granted, but the plaintiff is not represented by a lawyer admitted to practice in New Hampshire, the Clerk is to make out the writ of attachment. The sheriff's return is to be filed on completion of the attachment.

    C. EX PARTE ATTACHMENT. The following procedure is to be used where the plaintiff petitions for permission to attach, using the method that does not require notice to the defendant prior to the attachment:

        (1) The petition shall be executed under oath, and accompanied with the notice to defendant and order form, in accordance with the Petition for Ex Parte Attachment.

        (2) The petition, and copies, are to be filed in Court, and an entry fee will then become due.

        (3) If the petition is denied, the plaintiff may then petition for attachment under the provisions of RSA 511-A:3.

        (4) If the petition is granted, the plaintiff's attorney is authorized to fill out a writ of attachment in accordance with the order granting the petition. If the petition is granted, but the plaintiff is not represented by a lawyer admitted to practice in New Hampshire, the Clerk is to make out the writ of attachment.

        (5) A certified copy of the petition, including the notice to the defendant, and with the Court's order thereon, shall be fastened to the face of the writ of summons.

        (6) The writs of attachment and summons, together with copies, shall be delivered to the sheriff, or his deputy, with directions to serve the writ of attachment first, within the time directed by the Court's order, and immediately thereafter the writ of summons. The returns of service are to be filed immediately after service has been completed.

ATTACHMENTS IN PROCEEDINGS OTHER THAN ACTIONS AT LAW. The above procedures, and forms, are also to be used where an attachment is sought in connection with a proceeding other than an action at law, with appropriate adaptation for the different form of action.

Comment

The “Petition to Attach with Notice” form and the “Petition for Ex Parte Attachment” form referred to in this rule are available at the clerk’s office of any Circuit Court and on the Judicial Branch website at http://www.courts.state.nh.us/district/forms/allforms.htm#civil  

5371

Rule 3.5. Court records (dockets).

A. The Clerk shall enter upon the court records at each return day the names of all parties including trustees to each suit entered at such return date.

B. The causes shall be tried in the order in which they are entered unless otherwise ordered by the Court.

5376

Rule 3.6. Appearance, general and special.

 A. The names of the attorneys or parties who conduct each case shall be entered upon the court record, and if the defendant shall neglect to enter an appearance within seven days after the return day of the writ, he shall be defaulted, and judgment shall be rendered accordingly; and no such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require, upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.
    
Special appearances shall be deemed general thirty days after the return day of the action, unless a special plea or motion to dismiss is filed within that time.

B. MOTION FOR EARLY TRIAL. Any plaintiff or defendant may move for an early trial and such motion shall be a representation that the case is ready for trial.

5381

Rule 3.7. Specifications.

All writs at the time of service upon the defendant shall have attached thereto a specification setting forth the particulars of the claim or a special declaration, but the Court, for good cause shown, may waive this requirement on motion of the plaintiff, which must be filed at the time of entry of the writ and accompanied by such specification or special declaration and a statement that copies of the same have been mailed or delivered to the defendant or his attorney, but the Court for good cause shown upon motion also filed with the writ may extend the time for filing specification or special declaration.
    
    No writ will be accepted for entry except on compliance with this rule and the filing of any writ to which a specification or special declaration is attached without accompanying motions shall constitute a certification that this rule has been complied with.

5386

Rule 3.8. Amendments.

A. No plaintiff shall have leave to amend, unless in matters of form, after a default, until a notice upon the defendant, to show cause why the amendment should not be allowed, has been served.

B. Amendments in matters of form will be allowed or ordered, as of course, on motion; but if the defect or want of form be shown by the adverse party by demurrer, plea, or motion, the order to amend will be made on such terms as justice may require.

C. Amendments in matters of substance may be made on such terms as justice may require.

5391

Rule 3.9. Third party practice.

A. Whenever a third party is, or may be, liable to a defendant in any pending action for all or part of the plaintiff's claim against said defendant or if said defendant may have a claim against a third party, depending upon the determination of an issue or issues in said pending action, said defendant may bring an action against said third party and, unless otherwise ordered on motion of any party, such action will be consolidated for trial with the pending action or, if justice requires, on such motion said third party may be made a party to the pending action for the purpose of being bound by the determination of any common issues; provided, however, that, except for good cause shown to prevent injustice and upon such terms as the Court may order, no such action will be consolidated with or said third party joined in said pending action, unless suit is brought against said third party within thirty days following the return day of said pending action.

B. A third party against whom an action is brought in accordance with this rule and a plaintiff against whom a counterclaim has been filed may, under the same circumstances prescribed by this rule, use the same procedure with respect to another person and the same time limitation shall apply, except that as to a plaintiff the thirty days will begin to run on the date the counterclaim is filed.

C. This rule shall not be construed to limit or abridge in any way the existing common law practice of joining parties in pending actions whenever justice and convenience require, or the giving of notice to third parties to come in and defend any pending action or be bound by the outcome thereof.

D. This rule does not apply to a defendant who contends that a third party is solely liable to the plaintiff or by a defendant in a tort action as to a possible joint tortfeasor against whom said defendant has no right to contribution or reimbursement.

5396

Rule 3.10. Special pleas and brief statements.

A. All special pleas and brief statements shall be filed within thirty days following the return day of the writ; otherwise, the cause shall be tried upon the general issue. No brief statement or special plea shall be afterwards received except by leave of Court for good cause shown and upon such terms as justice may require.

B. The Court may in all cases order either party to plead and also to file a statement in sufficient detail to give to the adverse party and to the Court, reasonable knowledge of the nature and grounds of the action or defense. Upon failure to comply with such order, the Court may take such action as justice may require.

C. Pleas in abatement shall be filed and a copy delivered to counsel for the adverse party within thirty days after the entry of the writ.

D. No set-off, counterclaim or recoupment shall be filed after thirty days from the entry of the action except by leave of Court and upon payment of costs; and when a set-off, counterclaim or recoupment is filed, a copy shall be given to the plaintiff or his attorney.

5401

Rule 3.11. Motions.

A. Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 502-A:27-c and RSA 491:8-a as amended. Such motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the court in support or opposition to the motion for summary judgment. Only such materials as are essential and specifically cited and referenced in the motion for summary judgment, responses, and supporting memoranda shall be filed with the court. In addition, except by permission of the court received in advance, no such motion, response, or supporting memorandum of law shall exceed twenty (20) double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the court. Excerpts of documents and discovery materials shall be used whenever possible.
    
    Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability, the parties must provide the trial judge with a statement of agreed facts sufficient to explain the case to the jury and place it in a proper context so that the jurors might more readily understand what they will be hearing in the remaining portion of the trial. Absent such an agreement on facts, the matters of liability and damages cannot be severed.
    
    If it appears to the court at any time that any motion for summary judgment, response, or affidavit has not been presented in good faith or has been presented solely for the purpose of delay, the court shall forthwith order the party and/or the attorney presenting it to pay to the other party the amount of the reasonable expenses which the filing of the motion, response, or affidavit caused the party to incur, including reasonable attorney's fees. Such additional sanctions may be imposed as justice may require.

    B. Unless the opposing party requests a hearing upon any motion within ten days after the filing thereof, he shall be deemed to have waived hearing and the Court may act thereon.

    C, D. Repealed.

    E.  (1) A motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the clerk's written notice of the order or decision which shall be mailed by the clerk on the date of the notice. The motion shall state, with particularity, points of law or fact that the Court has overlooked or misapprehended and shall contain such argument in support of the motion as the movant desires to present; but the motion shall not exceed ten (10) pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the Court the opportunity to consider such issues; thus, to the extent that the Court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the motion shall not be permitted except by order of the Court.

        (2) No answer to a motion for reconsideration or other post-decision relief shall be required unless ordered by the Court, but any answer or objection must be filed within ten (10) days of notification of the motion.

        (3) If a motion for reconsideration or other post-decision relief is granted, the Court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

        (4) The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the Court unless, upon specific written request, the Court has ordered such a stay.
Commentary:

  The third sentence of paragraph (1) derives from N.H. Dep't of Corrections v. Butland , 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16-A.


    F. Any party filing a Motion for Summary Judgment shall provide the opposing party with notice, substantially as set forth in the following form, of the obligation to file an objection and supporting affidavit within 30 days.  The form of the notice in substance shall be as follows:

NOTICE TO THE DEFENDANT/OR PLAINTIFF

 THIS MOTION FOR SUMMARY JUDGMENT IS FILED IN ACCORDANCE WITH RSA 502-A:27-c AND RSA 491:8-a.  IF YOU OBJECT TO THE FACTS SET FORTH IN THIS MOTION, YOU MUST FILE YOUR WRITTEN OBJECTION WITHIN 30 DAYS.  YOUR OBJECTION MUST BE ACCOMPANIED BY AN AFFIDAVIT SETTING FORTH SPECIFIC FACTS SHOWING THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF YOU FAIL TO FILE AN OBJECTION AND ACCOMPANYING AFFIDAVIT WITHIN 30 DAYS, THIS MOTION MAY BE ACTED UPON WITHOUT A HEARING OR TRIAL, AND JUDGMENT ENTERED IN FAVOR OF THE PARTY WHO FILED THE MOTION.

5406

Rule 3.12. Sessions of Court-Continuances and postponements.

A. A session of each court for the trial of civil actions shall he held at least once each month. All actions will be in order for trial as scheduled by the court.

B - E. Repealed.

F. Every party shall be entitled to a reasonable time to prepare for trial.

G. Continuances granted shall be upon such terms as the Court may order.

5411

Rule 3.13. Settlement agreement.

Whenever a party states orally or in writing to the Clerk that a particular case has been settled and that agreements will be filed, the parties shall file the agreement with the Clerk within twenty days and if not so filed, the Court shall take such action as justice may require.

5416

Rule 3.14. Orders of notice.

In actions continued for notice, when the order of notice issued thereafter has not been complied with, the action will be discontinued forty days after the return day named in said order of notice, unless an affidavit of the party showing good cause why it should not be discontinued is filed prior to the expiration of said forty days. An affidavit of the attorney will not be sufficient. All actions continued for notice will be discontinued thirty days after the original return day unless prior to that time an order of notice has been requested or further continuances are granted for not more than thirty days upon motion for good cause shown.

5421

Rule 3.15. Dismissal of old cases.

Whenever an action shall have remained upon the docket for two years preceding without action shown upon the docket, other than being placed on the trial list, marking for trial, being set down for trial, or the filing or withdrawal of an appearance, such action may upon motion or by general order of the Court relating to all such cases, be dismissed. Whenever such motion to dismiss has been allowed or such dismissal ordered, such action shall be continued for judgment to the next judgment day at least fourteen days after such allowance, or order of dismissal, unless the Court for cause otherwise orders. At any time before judgment shall have been entered in any action so dismissed, the order for dismissal may be vacated upon motion after notice for cause shown upon such terms and conditions as the Court may impose.

5426

Rule 3.16. Admission of relevant facts, genuineness of documents and signatures.

A. The signatures and indorsements of all written instruments declared on will be considered as admitted unless the defendant shall file a notice within thirty days after the return day at which the writ is entered that they are disputed.

B. Any party desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he believes not to be in dispute, may, after the return day of the action without leave of Court, serve an original request therefor, accompanied by any documents involved, to the adverse party or his attorney. Each of the matters, of which an admission is requested, shall be deemed admitted unless within thirty days after such service the party requested serves a copy thereof to the party requesting such admission, or his attorney, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.

    C. If objection is made to part of a request, the remainder shall be answered within the time limit, and when good faith requires that a party qualify his answer or deny only a part of a matter, he shall specify so much of it as is true and qualify or deny the remainder.

    D. Any party who without good reason or in bad faith denies under this subsection or subsection (A) of this rule any signature or fact which has been requested and which is thereafter proved or who without good reason or in bad faith requests such admission under this rule and thereafter fails to prove it may, on motion of the other party, be ordered to pay the reasonable expense, including attorney's fees, incurred by such other party in proving the signature or fact or in denying the request, as the case may be.

5431

Rule 3.17. Filing and withdrawing papers.

A. In order that the Clerk may seasonably make up and complete his record, the parties shall seasonably file all papers and documents necessary to make up and enter the judgment and to complete the record of the case; and no execution shall issue, or final order or decree be entered, until such papers are filed.

B. Papers shall not be withdrawn from the files except by leave of Court and upon a receipt therefor being filed.

5436

Rule 3.18. Paying money into court.

A. In proper cases, the defendant may pay into the Court any sum of money which he admits to be due, accompanied by the general issue as to the balance; and if the plaintiff shall refuse to accept the same with his costs, in full satisfaction of his claim, such sum shall be stricken from the declaration; and unless the plaintiff shall prove that a larger sum be due him, he shall have no costs, but the defendant shall be allowed costs from the time of such payment.

    B. When a sum of money shall be paid into Court accompanied by a special plea, or when a set-off, counterclaim or recoupment shall be filed and a sum of money paid into Court as the balance due the plaintiff, the costs of the plaintiff up to that time, shall also be paid into Court; and the defendant, if he prevail, shall be allowed his subsequent costs.

5441

Rule 3.19. Agreement as to undisputed facts.

Parties, or their attorneys, shall be prepared to furnish the Court with a statement of facts not in dispute, prior to the commencement of the trial.

5446

Rule 3.20. Procedure during trial.

Procedure during all civil trials shall be governed in the following manner:

    A. Counsel shall seasonably furnish for the convenience of the presiding justice, as he may require, copies of the specification, contracts, letters or other papers offered in evidence.

    B. After a witness has been dismissed from the stand, he cannot be recalled without permission of Court.

    C. In all trials, the plaintiff shall put his whole case before resting, and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

    D. Unless otherwise ordered by the Court, all requests for findings of fact and rulings of law must be submitted at the commencement of trial; memoranda of law must be submitted at the close of the evidence.

5451

Rule 3.21. Procedure after trial.

Procedure during all civil trials shall be governed in the following manner:

    A. Counsel shall seasonably furnish for the convenience of the presiding justice, as he may require, copies of the specification, contracts, letters or other papers offered in evidence.

    B. After a witness has been dismissed from the stand, he cannot be recalled without permission of Court.
A. A motion to set aside a verdict shall be filed within ten days of the date on the clerk's written notice of the order or decision, which shall be mailed by the clerk on the date of the notice, and shall fully state all reasons and arguments relied on.

    B. In all actions at law or in equity, in which a verdict or decree is entered, or in which a motion for a nonsuit or directed verdict is granted, or in which a bill in equity is dismissed, or in which any motion is acted upon after verdict or decree, all appeals relating to the action shall be deemed waived and final judgment shall be entered as follows, unless the Court has otherwise ordered, or unless a notice of appeal has then been filed with the Supreme Court pursuant to its Rule 7:

        a. where no motion, or an untimely filed motion, has been filed after verdict or decree, on the thirty-first day from the date on the Clerk's written notice that the Court has made the aforementioned entry, grant, or dismissal; or

        b. where a timely filed motion has been filed after verdict or decree, on the thirty-first day from the date on the Clerk's written notice that the Court has taken action on the motion.

    C. Final default may be entered by the Court, sua sponte, where appropriate, or by motion of a party, a copy of which shall be sent to all parties defaulted or otherwise.

    In all cases in which final default is entered, whether due to failure to file an appearance, answer, or otherwise, the case shall be marked "final default entered, continued for entry of judgment or decree upon compliance with District Court Rule 3.21(C)." A copy of the Court's order and any subsequent orders shall be mailed to all parties, defaulted or otherwise.

    The non-defaulting party may then request entry of final judgment or decree, by filing a motion, together with an affidavit of damages or, in equity cases a proposed decree, and where the default is based on a failure to file an appearance, shall include an affidavit as to military service. The moving party shall certify to the Court that a copy of all pleadings has been mailed to the defaulting party and shall include a notice that entry of final judgment or decree is being sought. Any party may request a hearing as to final judgment or decree. All notices under this rule shall be sufficient if mailed to the last known address of the defaulting party.

    A hearing as to final judgment or decree shall be scheduled upon the request of any party. Otherwise, the Court may enter final judgment or decree based on the pleadings submitted or exercise its discretion to hold a hearing depending on the circumstances of the default, the sufficiency of the pleadings and the nature of the damages sought or relief requested.

    If the Court schedules a hearing, all parties, defaulted or otherwise, shall receive notice and an opportunity to be heard.
    C. In all trials, the plaintiff shall put his whole case before resting, and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

    D. Unless otherwise ordered by the Court, all requests for findings of fact and rulings of law must be submitted at the commencement of trial; memoranda of law must be submitted at the close of the evidence.

5456

Rule 3.22. Trustees.

[Repealed.]

 

[Editor's Note:  See RSA chapter 512.]   

5461

Rule 3.23. Taxation of costs in civil proceedings.

 (a) Costs. Costs shall be allowed as of course to the prevailing party as provided by these rules, unless the Court otherwise directs.

    (b) Taxation of Costs. The party claiming costs shall file with the Clerk an itemized, verified bill of costs. The Clerk shall revise the verified bill of costs to conform to these rules. No costs shall be taxed by the Clerk in any case except the fees of the Clerk, fees for the service of process, and witness fees, unless the same shall be agreed to in writing by the adverse party or the party's attorney. If a party objects to any costs allowed or not allowed by the Clerk, such party may by motion request that the Presiding Justice review the action of the Clerk. Any party aggrieved by the Presiding Justice's order concerning costs may appeal therefrom within 30 days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

    (c) Allowable Costs. The following costs shall be allowed to the prevailing party: Fees of the Clerk, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

5466

Rule 3.24. Petition for approval of settlement on behalf of minors.

A. All petitions for approval of settlement of actions on behalf of minors shall be signed by the parent, next friend or guardian of the minor.

    B. Court approval is not required for the settlement of any suit or claim brought on behalf of a minor in which the net amount is equal to or less than $10,000.00. Any settlement of such suit or claim in which the net amount exceeds $10,000.00 shall require Court approval.

    C. In any suit or claim on behalf of a minor if the amount to be paid to the minor before the age of majority exceeds $10,000.00, the Court shall require proof in the form of a certified statement from the Court of Probate that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. In the event of a structured settlement where an amount will be paid to the minor both before and after the minor reaches the age of majority, no guardian of the estate of such minor is required if the amount to be paid to the minor before the age of majority is $10,000.00 or less. If the amount to be paid to the minor before the age of majority in such structured settlement exceeds $10,000.00, then a guardian of the estate of such minor is required. In determining whether the net amount of a settlement exceeds $10,000.00, all sums covering attorneys fees, court costs and other expenses related to the claim including medical expenses are to be excluded.

    D. The petition shall contain the following information where applicable:

        1. A brief description of the accident and of all injuries sustained and the age of the minor.

        2. An itemized statement of all medical expenses and special damages incurred by the minor.

        3. The total amount of the settlement and whether any bills or expenses are to be paid out of the total settlement or are being paid in addition as part of the parent's claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid to the parent and a specification of the items covered.

        4. Whether the settlement was negotiated by counsel actually representing the minor.

        5. A statement from the attorney for the minor as to whether there was medical payment insurance available to the minor and whether or not a claim has been made for said benefits or whether payment has been received.

        6. A statement from the attorney for the minor as to whether any liens for medical providers have been asserted or are assertable and how the settlement would resolve those liens.

        7. The net amount to be received on behalf of the minor.

        8. A prayer that the settlement be approved.

    E. The petition must be accompanied with the following material:

        1. A photocopy of the minor's birth certificate.

        2. An itemized statement from counsel detailing the nature of the work performed and the time spent on the case. An attorney's fee in excess of 25% of the settlement amount will not be ordinarily allowed unless upon good cause shown. In the event that counsel seeks an attorney's fee in excess of 25%, counsel shall file a motion requesting such an approval which motion shall contain the reasons for the request. A copy of that motion shall be provided to the next friend at least ten (10) days prior to the hearing or conference relative to approval of the settlement.

    F. The court will not authorize the next friend to settle the action or authorize the execution of releases and will not make any order respecting indemnity agreements, and the petition should make no such request.

    G. The Court, upon its own motion, may appoint a guardian ad litem to represent the interests of the minor child and/or to review the proposed settlement. The fees of the guardian ad litem shall be paid by defendant.
    
    H. The attorney, minor, parent, guardian, or next friend, will ordinarily be required to appear in all cases in support of the petition unless attendance has been excused by the Court upon prior motion of counsel or upon the Court's review of the file. In all cases where the minor has not actually been represented in the negotiation of the settlement, the minor, parent, and the next friend or guardian shall be required to appear with the attorney for the minor.

    I. A full medical report, including a recent and detailed prognosis from the attending physician, will ordinarily be required. "Recent" shall mean a report dated not more than six months prior to the date of the filing of the petition for approval of a settlement.

    J. 1. Court approval of a net settlement of $10,000.00 or less is not required by statute, however if a party desires Court approval, the Court's order will ordinarily be in substantially the following form:

    Settlement approved. All bills listed in the petition are to be paid. Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance, amounting to $_____________, shall be deposited in a savings account in the __________ Bank at ________________ in the name of ______________, as Trustee for ______________, no withdrawals to be made prior to the 18th birthday of said minor, except on written approval of a Justice of the District Court. Said savings institution is authorized to pay over the full amount remaining in said account to the said ________________ upon satisfactory proof that he/she has reached the age of 18 years. Approval is conditional upon compliance with this order with respect to payment of bills and deposit.

        2. If the net amount of a settlement exceeds $10,000.00, Court approval is required, and the Court's order will ordinarily be in substantially the following form:


    Settlement approved. All medical bills and other approved expenses listed in the petition are to be paid. Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance amounting to $_____________, shall be paid over to ________________, as guardian over the estate of the minor.

    Said funds shall, upon payment, be under the jurisdiction of the appropriate Court of Probate and shall be administered in accordance with the requirements of the Court of Probate. Any requests for withdrawal shall be addressed to the Court of Probate for its consideration.
    
    Approval is conditional upon compliance with this order with respect to payment of bills and deposit of funds in accordance with this order.
    
    Counsel for the minor shall be responsible for the settlement funds until said funds shall have actually been deposited in the appropriate guardianship account pursuant to the terms of this order and pursuant to the terms of the guardianship.


    K. In the event that the parties desire to enter into a structured settlement, which is defined as a settlement wherein payments are made on a periodic basis, the following rules shall also apply:

        1. Counsel for the defendants shall provide the Court with an affidavit from an independent certified public accountant, or an equivalent professional, specifying the present value of the settlement and the method of calculation of that value.

        2. If the settlement is to be funded by an annuity, the annuity shall be provided by an annuity carrier meeting at least the following criteria:

            (a) The annuity carrier must be licensed to write annuities in New Hampshire and, if affiliated with the liability carrier or the person or entity paying the settlement, must be separately capitalized, licensed and regulated and must have a separate financial rating.

            (b) The annuity carrier must have a minimum of $100,000,000.00 of capital and surplus, exclusive of any mandatory security valuation reserve.

            (c) The petition shall contain the following information about the annuity and the annuity carrier:

                (i) a description of the structure of the annuity arrangement;

                (ii) a description of the history and size of the annuity carrier and its experience in issuing annuities;

                (iii) a certificate from the New Hampshire Insurance Department stating that the annuity carrier is in good standing in New Hampshire;

                (iv) whether the annuity carrier is domiciled or licensed in a state accredited by the National Association of Insurance Commissioners under that organization's Financial Regulation Standards program; and

                (v) the annuity carrier's most recent ratings from at least two of the commercial rating services listed in subparagraph (d).

            (d) The annuity carrier must have one of the following ratings from at least two of the following rating organizations:

                (i) A.M. Best Company: A++, A+, A, or A-.

                (ii) Moody's Insurance Financial Strength Rating: Aaa or Aa.

                (iii) Standard & Poor's Corporation Insurer Claims-Paying Ability Rating: AAA, AA+, AA, or AA-.

                (iv) Duff & Phelps Credit Rating Company Insurance Company Claims Paying Ability Rating: AAA, AA+, AA, or AA-.

            (e) The annuity Carrier must meet any other requirement the Court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained.

            (f) The annuity carrier issuing an annuity contract pursuant to a qualified funding plan under these rules may not enter into an assumption reinsurance agreement for the annuity contract without the prior approval of the Court and the owner of the annuity contract and the claimant having the beneficial interest in the annuity contract. The Court shall not approve assumption reinsurance unless the reinsurer is also qualified under these rules.

            (g) The annuity carrier and the broker procuring the policy shall each furnish the Court with an affidavit certifying that the carrier meets the criteria set forth in subsection (d) above as of the date of the settlement and that the qualification is not likely to change in the immediate future. The broker's affidavit shall also contain the following certification: "This determination was made with due diligence by the undersigned based on rating information which was available or should have been available to an insurance broker in the structured settlement trade."

            (h) In the event that the parties to the action desire to place the annuity with an annuity carrier licensed in New Hampshire which does not meet the above criteria, the Court may consider approving the same, but only if the annuity obligation is bonded by an independent insurance or bonding company, licensed in New Hampshire, in the full amount of the annuity obligation.

            (i) The Court reserves the right to require other reasonable security in any structured settlement if the circumstances should so require.

        3. The Court may, for good cause shown, approve a structured settlement that does not comply with the provisions of paragraph (K). If the Court approves a settlement that does not comply with the provisions of paragraph (K), the Court shall make specific findings on the record explaining the reason(s) for approving the settlement.

5471

Rule 3.25. Dismissal for failure to appear.

If a hearing on a civil matter is scheduled, and neither party appears for the hearing, the case is dismissed. Nothing herein shall be interpreted as requiring the presence of the plaintiff after the matter has gone to judgment.

5476

Rule 3.26. Rendition of decision.

A decision on the merits in civil matters shall be rendered within sixty days following the hearing and submission of briefs or memoranda, if any.

5481

Rule 3.27. Ordering weekly payments on judgments.

Issuance of a Writ of Execution need not be a preliminary step to the weekly payment of judgment process provided by RSA 524:6-a.

5486

Rule 3.28. District Court Civil Writ Mediation Rules.

  (A)  Purpose. The District Court establishes these Civil Writ mediation rules to increase access to justice; to increase parties’ satisfaction with the outcome; to reduce future litigation by the same parties; to make more efficient use of judicial resources; and to expand dispute resolution resources available to the parties.

(B)  Definitions. 

 For the purpose of this rule, the following definitions apply.    (1)  Mediation.  Mediation is a process in which a mediator facilitates settlement discussions between parties.

                a.  The mediator has no authority to make a decision or impose a settlement upon the parties.

                b.  The mediator attempts to focus the attention of the parties upon their needs and interests rather than upon their rights and positions.

                c.  Any settlement is entirely voluntary.

                d.  In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.

    Mediation is based upon principles of communication, negotiation, facilitation and problem solving that emphasize:

                a.  The needs and interest of the parties

                b.  Fairness

                c.  Procedural flexibility

                d.  Privacy and confidentiality

                e.  Full disclosure

                f.  Self determination

    (2)  Mediator.  An impartial person who facilitates discussions between the parties to a mediation.  The role of the mediator includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, and providing the parties an opportunity for each to be heard in a dignified and thoughtful manner. The mediator’s focus will be on encouraging and supporting the parties’ presentations to and reception from one another allowing them to find a resolution that is appropriate.

    (3)  Party.  Any person whose name is designated on the record as plaintiff or defendant and their attorney or any other person who has filed an appearance.

(C)  Mediator Qualifications. 

 Mediators shall satisfy the qualifications and criteria specified by the Supreme Court.  Minimum qualifications include:  completion of a 20-hour mediation process training; two years experience as a mediator or equivalent experience, and an understanding of civil and landlord/tenant law is helpful.

    All mediators serving as civil writ mediators shall contract with the Administrative Office of the Courts for a term of one year.

(D)  Referral of cases to mediation.   The Civil Writ mediation program is voluntary. Cases may be referred to mediation where parties have not filed an “opt-out” notice with the Court and all remaining parties indicate that they desire to proceed with mediation.

(E) Continuances. If a party files a Motion to Continue Mediation for good cause, the Court has discretion to continue the mediation and set a new mediation date if no prior Motions to Continue Mediation have been granted.   The Court will not grant multiple requests to continue mediation.

(F)  Failure to Attend Mediation. If either party fails to attend mediation without good cause and without providing sufficient notice to the other party(ies) and to the Court, the parties shall lose the opportunity to participate in the mediation program. Under those circumstances the matter shall not be rescheduled for mediation and the matter shall be returned to the trial docket.

(G)  Mediator Assignment.  The Administrative Judge of the District Court, in consultation with the Office of Mediation and Arbitration, shall determine the mediation needs for each District Court in the Civil Writ program. Assignment of mediators shall be based on the mediator needs of each Court.

    Each District Court shall schedule civil writ cases and allocate mediator(s) in a manner that accommodates the case load of the Court.

(H) Payment of mediator fees.  Civil writ mediators shall be paid on a per case fee set by the Supreme Court. Payments shall be made out of the Office of Mediation and Arbitration (“OMA”) Fund established under RSA 490-E:4.  No additional fees or reimbursements shall be made.

(I) Disclosure of Conflict.  Upon receipt of a notice of appointment in a case, the mediator shall disclose any circumstances likely to create a conflict of interest, the appearance of conflict of interest, a reasonable inference of bias or other matter that may prevent the process from proceeding as scheduled.

    (1)  If the mediator withdraws, has a conflict of interest or is otherwise unavailable, another mediator shall be appointed by the Court.

    (2)  The burden of disclosure rests on the mediator.  After appropriate disclosure, the mediator may serve if both parties so desire.  If the mediator believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.

(J)  Impartiality.  Impartiality shall be defined as freedom from favoritism or bias in word, action and appearance.

    (1)  Impartiality implies a commitment to aid all parties, as opposed to an individual party, when moving toward an agreement.  A mediator shall be impartial and shall advise all parties of any circumstances bearing on possible bias, prejudice or impartiality.

    (2)  A mediator shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of the proposed options for settlement.

    (3)  A mediator shall withdraw from mediation if the mediator believes the mediator can no longer be impartial.

    (4)  A mediator shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney or any other person involved and arising from the mediation process.

(K)  Prohibitions.  A mediator shall not provide counseling or therapy to any party during the mediation process nor shall a mediator who is an attorney represent either party, or give legal advice during or after the mediation.

    The mediator shall not use the mediation process to solicit or encourage future professional services with either party.

(L)  Self determination.  A mediator shall assist the parties in reaching an informed and voluntary settlement.  Decisions are to be made voluntarily by the parties.

    (1)  A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make a substantive decision for any party to a mediation process.

    (2)  A mediator shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting a mediation.

    (3)  A mediator shall promote consideration of the interest of persons affected by actual or potential agreements who are not present during a mediation.

   (4)  The mediator shall promote mutual respect amongst the parties throughout the process.

(M)  Professional Advice.  A mediator shall only provide information the mediator is qualified by training or experience to provide.

    (1)  When a mediator believes a non represented party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.

    (2)  While a mediator may point out a possible outcome of the case, under no circumstances may a mediator offer a personal or professional opinion as to how the Court in which the case is filed will resolve the dispute.

(N)  Confidentiality.  A mediator shall preserve and maintain the confidentiality of all mediation proceedings.  Any communication made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential.

   (1)  A mediator shall keep confidential from the other parties any information obtained in an individual caucus unless the party to the caucus permits disclosure.

    (2)  All memoranda, work products and other materials contained in the case file of a mediator are confidential. The mediator shall render anonymous all identifying information when materials are used for research, training or statistical compilations.

    (3)  Confidential materials and communications are not subject to disclosure in any judicial or administrative proceedings except for any of the following:

              a.  Where the parties to the mediation agree in writing to waive the confidentially.

              b.  When a subsequent action between the mediator and a party to the mediation for damages arises out of the mediation.

              c. Where there are threats of imminent violence to self or others.

              d. Where reporting is required by state law.

(O)  Inadmissibility of Mediation Proceeding. Mediation proceedings under this rule are non-binding and shall not impair the right of the litigants to demand a trial. Any settlement reached at mediation shall be binding on the parties and entered as a judgment. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.

    (1)  Statements made and documents prepared by a party, attorney, or other participant in the aid of such proceedings shall be privileged and shall not be disclosed to any Court or construed for any purpose as an admission against interest.

    (2)  All mediation proceedings are deemed settlement conferences as prescribed by Court rule and the Rules of Evidence.  In addition, the parties shall not introduce into evidence in any subsequent proceeding the fact that there has been a mediation proceeding.

    (3)  Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in a mediation proceeding under this rule.

   (4)  A mediator shall not be called as a witness in any subsequent proceeding relating to the parties’ negotiation and participation except as set forth in Section N of this rule.

(P)  Concluding Mediation.  If an agreement is reached during the mediation process, the parties shall reduce their agreement to a written memoranda on the points on which agreement has been reached, and the memoranda shall be reviewed and signed by all parties before the mediation ends, unless the parties otherwise agree that additional time is necessary to ensure that the parties have time to consult with counsel about their agreement if unrepresented at the time of the mediation.  In that case, the parties shall submit the written agreement to the Court within thirty days of the mediation session.  Within 48 hours of the mediation session, the mediator shall submit an ADR report indicating the status of the agreement either attaching it to the ADR report, or, indicating that it will be filed with the Court within the next thirty days.

    If an agreement is not reached during the mediation process, the mediator shall notify the Court via the ADR report that the mediation failed to resolve the issue in conflict or if the mediation successfully resolved part of the matter, the ADR report will so indicate.

(Q) Immunity.  The mediator will not be acting as legal advisor or legal representative. The parties should recognize that, because the mediator is performing quasi-judicial functions and is performing under the auspices of the District Court, each such mediator has immunity from suit, and shall not be called as a witness in any subsequent proceeding relating to the parties' negotiations and participation except as set forth in Section N of this rule.

(R)  Removal from list of Civil Writ mediators. Appointment to the Civil Writ roster in the District Court confers no vested rights to the mediator, but is a conditional privilege that is revocable.

    (1)  At any time during the one year rostering period, upon notice and opportunity to be heard, a civil writ mediator who is found to have engaged in conduct that reflects adversely on his/her impartiality or in the performance of his/her duties as a mediator, or is found to have persistently failed to carry out the duties of a mediator, or is found to have engaged in conduct prejudicial to the proper administration of justice, shall be removed from the list of civil writ mediators.

   (2) All complaints regarding a mediator’s performance shall be forwarded to the NH Judicial Branch Director of the Office of Mediation and Arbitration and the Administrative Judge of the District Court. The Director of the OMA will investigate the complaint and will make recommendations to address the complaint to the Administrative Judge of the District Court.

    (3)  All civil writ mediators must inform the Director of the Judicial Branch Office of Mediation and Arbitration and the Administrative Judge of the District Court within 30 days of a change in circumstances such as a conviction of a felony or loss of professional license.  Civil writ mediators who are convicted of a felony or misdemeanor involving moral turpitude, or who have a professional license revoked, shall be denied certification.

5491

CIVIL RULES APPLICABLE TO CASES FILED ON OR AFTER THE IMPLEMENTATION OF ELECTRONIC FILING IN CIVIL CASES IN THE DISTRICT DIVISION

CIVIL RULES APPLICABLE TO CASES FILED ON OR AFTER THE IMPLEMENTATION OF ELECTRONIC FILING IN CIVIL CASES IN THE DISTRICT DIVISION

5496

Rule 3.1. Scope, Purpose, Enforcement, Waiver and Substantial Rights

(a)  These rules govern the procedure in New Hampshire circuit court in all civil actions in which money damages are sought, excluding small claims and those actions which are subject to specific procedures established by statute, commenced on or after the date of implementation of electronic filing in civil actions.  These rules govern all cases filed on or after that date, including those cases in which the court grants an exception to electronic filing.  In all cases that involve a statutory reference to a “return day,” the Answer and Appearance deadline shall be considered the “return day.”

(b)  The rules shall be construed and administered to secure the just, speedy, and cost-effective determination of every action.

(c)  Upon the violation of any of these rules, the court may take such action as justice requires, which action may include, without limitation, the imposition of monetary sanctions against either counsel or a party, fines to be paid to the court, and reasonable attorney’s fees and costs to be paid to the opposing party. 

(d)  As good cause appears and as justice may require, the court may waive the application of any rule except where precluded by law.

(e)  A plain error that affects substantial rights may be considered and corrected by the court of its own initiative or on the motion of any party.

(f)  The clerk may refuse to accept, by notification in writing, any filing that the clerk determines does not comply with these rules.  In the event an objection is made to such determination, a written motion may be made to the court to rule on such determination. The written notification shall state: (1) all the reasons why the filing is not being accepted; and (2) that in the event the filing party objects to such determination, a written motion shall be made to the court to rule on such determination within 15 days of the date of the notification. 

|421|5501

Rule 3.2 Computation of time

See Rule 1.1A.

|421|5506

Rule 3.3 Filing and Service

See Rule 1.3A.

|421|5511

Rule 3.4. Preliminary Process

(a)  To initiate a civil action for monetary damages which is not filed as a small claim pursuant to RSA 503, the plaintiff files with the court: (i) the Complaint; (ii) an Appearance (indicating the plaintiff’s representative by name, address, email address, telephone number, and New Hampshire Bar Association identification number); and (iii) either the filing fee or a motion to waive the filing fee.  See Rule 1.28.  For purposes of complying with the statute of limitations or analogous time limit, an action shall be deemed commenced on the date the Complaint is filed.

(b)  Upon receipt of the Complaint and, if the filing fee is not waived, the filing fee, the court will process the action and provide plaintiff with the completed Summons for service.  The Summons will identify: (i) the date the Complaint is filed; (ii) the court-ordered deadline for service; and (iii) a hearing date, if appropriate.  Plaintiff will cause the Summons together with a copy of the Complaint to be served on defendant no later than the court-ordered deadline for service, service to be made as specified in RSA 510, or as otherwise allowed by law.  Proof of service shall be filed with the court within 21 days of the court-ordered deadline for service.  If a defendant is not served within the court-ordered deadline for service, the court shall dismiss the action with or without prejudice, as justice may require.

(c)  In all cases of notice by publication where the time may be fixed by the court, the order shall be for publication in some newspaper or newspapers named by the court in general or special orders, once a week for 3 successive weeks.  The last publication shall not be later than the time fixed by the court.

(d)  Appearances and Answers or other responsive pleadings are due within 30 days of the date the defendant is served with the Summons and Complaint.  See Rule 3.9. 

|426|5516

Rule 3.5. Case Structuring Order

(a)  Within 20 days of the Answer date counsel, or parties if unrepresented, may confer to discuss the claims, defenses and counterclaims and to attempt to reach agreement on the following matters: (1) a proposed date for trial and the estimated length of trial; (2) dates for the disclosure of expert reports; (3) status of waiver of RSA 516:29-b requirements; (4) deadlines for the parties to propound interrogatories; (5) deadlines for the completion of all depositions; (6) deadlines for the completion of all discovery; (7) deadline for filing all dispositive motions, which shall not be less than 120 days prior to the trial date; (8) deadlines for filing all other pre-trial motions, which shall be filed not later than 14 days prior to trial; (9) the type of alternative dispute resolution (ADR) procedures that shall be utilized and the deadline for completion of ADR; and (10) deadline for filing witness and exhibit lists, which shall not be later than the trial management conference.

(b)  If the parties reach agreement as to all information required by Rule 3.5(a) above, they may file a completed written stipulation setting forth their agreement on all of the required matters within the said 20 days.  Upon review by the court, if those stipulations are deemed acceptable, they shall become the case structuring order of the court.

(c)  If the parties are unable to reach agreement as to any of the matters set forth in Rule 3.5(a), do not confer and file a written stipulation or if the court rejects their proffered stipulations, the matter may be scheduled for a case structuring conference between the court and counsel, or parties if unrepresented.  The case structuring conference shall be held no later than 75 days after the Answer is filed.  The case structuring conference may be telephonic or the court may order the parties to appear in court for the hearing if the court deems this necessary for the efficient progression of the case.  Mediation may be offered to the parties on the day of the case structuring conference.  Should counsel, or parties if unrepresented, be unable to reach an acceptable agreement as to any of the required matters, the court may issue such orders as it deems appropriate including referral to mediation or other manner of alternative dispute resolution.  The fact that a structuring conference has not yet been held or a case structuring order has not yet been issued does not preclude any party from pursuing discovery and does not constitute grounds for any party to fail to comply with its discovery obligations.

(d)  Following the case structuring conference (if one is necessary), the court will issue a case structuring order.

|426|5521

Rule 3.6. Pleadings Allowed

(a)  The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.  There shall be allowed a Complaint and an Answer; an Answer to a counterclaim denominated as such; an Answer to a cross-claim, if the Answer contains a cross-claim; a Third-Party Complaint, if a person who was not an original party is summoned to appear in an action; a Third-Party Answer, if a Third-Party Complaint is served; and a Reply, if an affirmative defense is set forth in an Answer and the pleader wishes to allege any matter constituting an avoidance of the defense.  No other pleading shall be allowed as of right.

(b)  Demurrers, Pleas, and Exceptions for insufficiency of a pleading shall not be used.

|431|5526

Rule 3.7. Pleadings, Motions and Objections, General

See Rules 1.8 and 1.8-A.

|431|5531

Rule 3.8. Complaint

(a)  Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain a statement of the material facts known to the pleading party on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement;  provided, however, that in any personal action a pleading shall not allege the amount of damages claimed, but shall state only that the damages claimed are within the jurisdictional limits of the court.  

(b)  An amendment to a pleading relates back to the date of the original pleading when:

(1)  a statute that provides the applicable statute of limitations allows relation back;
(2)  the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading; or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 3.8(b)(2) is satisfied and if, within the period provided for serving the summons and complaint, the party to be brought in by amendment:

(A) received such notice of the action that it will not be prejudiced in defending on the merits; and
(B) knew or should have known that the action would have been brought against it, but for a mistake or lack of information concerning the proper party’s identity.

(c)  A plaintiff against whom a counterclaim is filed and who is entitled to a trial by jury and desiring a trial by jury shall so indicate at the time plaintiff files an Answer to such counterclaim.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the plaintiff thereof.

(d) Every Complaint shall contain in the caption, or in the body of the Complaint, the names and addresses of all parties to the proceedings.

|431|5536

Rule 3.9. Answers; Defenses; Forms of Denials

(a)  An Answer or other responsive pleading shall be filed with the court within 30 days after the person filing said pleading has been served with the pleading to which the Answer or response is made.  It shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the allegations 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 allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission. All facts well alleged in the Complaint and not denied or explained in the Answer, will be held to be admitted.

In addition, within the same 30 days, the person filing an Answer or other responsive pleading shall also file an appearance in accordance with Rule 3.17.  No attorney, non-attorney representative or self-represented party will be heard until his or her Appearance is so entered.

(b)  Instead of an Answer, a person responding to a pleading to which a response is required may, within 30 days after the person has been served with the pleading to which the Answer or response is required file a Motion to Dismiss.  If a Motion to Dismiss is submitted and denied, an Answer must be filed within 30 days after the date on the Notice of the Decision finally denying the motion; provided, however, that if a Motion to Dismiss which challenges the court’s personal jurisdiction, the sufficiency of process and/or the sufficiency of service of process is filed, an Answer must be filed within the time specified in section (e) of this rule.

(c)  To preserve the right to a jury trial, a defendant entitled to a trial by jury must indicate his or her request for a jury trial upon the first page of the Answer at the time of filing.  Failure to request a jury trial in accordance with this rule shall constitute a waiver by the defendant thereof.

(d)  Failure to plead as affirmative defenses or file a Motion to Dismiss based on affirmative defenses, including the statute of limitations, within the time allowed in section (b) of this rule will constitute waiver of such defenses.
Affirmative defenses include the following:

(1) accord and satisfaction;
(2) arbitration and award;
(3) assumption of risk;
(4) contributory negligence;
(5) duress;
(6) estoppel;
(7) failure of consideration;
(8) fraud;
(9) illegality;
(10) injury by fellow servant;
(11) laches;
(12) license;
(13) payment;
(14) release;
(15) res judicata;
(16) statute of frauds;
(17) statute of limitations; and
(18) waiver.

(e)  A party does not waive the right to file a Motion to Dismiss challenging the court's personal jurisdiction, sufficiency of process and/or sufficiency of service of process by filing an Answer or other pleadings or motions addressing other issues. However, a party who wishes to challenge the court's personal jurisdiction, sufficiency of process, and/or sufficiency of service of process must do so in a Motion to Dismiss filed within 30 days after he or she is served. If a party fails to do so within this time period, he or she will be deemed to have waived the challenge. If the trial court denies the Motion to Dismiss:

(1)  The party will be deemed to have waived the challenge if the party does not seek review of the denial by the Supreme Court within 30 days of the clerk's final written notice of the trial court's decision. If the party does not seek review of the denial by the supreme court, the party must file an Answer within 30 days of the clerk's final written notice of the trial court's decision.
(2)  If the party appeals the denial, and the supreme court declines the appeal, the party must file an Answer within 30 days after the date of the supreme court's final written notice declining the appeal. The supreme court's declining to accept the appeal does not preclude a party who has complied with this section from challenging the trial court's ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court.
(3)  If the Supreme Court accepts the appeal and rejects the party's challenge, the party must file an Answer within 30 days after the date of the supreme court's final decision rejecting the challenge.

|431|5541

Rule 3.10. Counterclaims, Cross-claims and Third-Party Claims

 (a)  Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving 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 over whom the court cannot acquire jurisdiction.

          (b) Permissive Counterclaims.  A pleading may state as a counterclaim against an opposing party any claim that is not compulsory so long as a right of action existed thereon at the time of the filing of the complaint.

          (c)  A pleading may state as a cross-claim any claim by one party against a co-party which arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim therein.

          (d)  Unless otherwise provided by law, whenever a third party may be liable to a defendant in any pending action for any of the plaintiff’s claim against said defendant, or if said defendant may have a claim against a third party depending upon the determination of an issue or issues in said pending action, said defendant may bring an action against said third party and, unless otherwise ordered on motion of any party, such action will be consolidated for trial with the pending action or, if justice requires, said third party may be made a party to the pending action, for the purpose of being bound by the determination of any common issues.  However, except for good cause shown to prevent injustice and upon such terms as the court may order, no such action will be consolidated with or said third party joined in said pending action, unless suit is brought against said third party within 30 days following filing of the defendant’s Answer in said pending action.

          (e)  A third party against whom an action is brought in accordance with this rule and a plaintiff against whom a counterclaim has been filed may, under the same circumstances prescribed by this rule, use the same procedure with respect to another person and the same time limitation shall apply, except that as to a plaintiff the 30 days will begin to run on the date the counterclaim is filed.

          (f)  This rule shall not be construed to limit or abridge in any way the existing common law practice of joining parties in pending actions whenever justice and convenience require, or the giving of notice to third parties to come in and defend any pending action or be bound by the outcome thereof.

          (g)  This rule does not apply to a defendant who contends that a third party is solely liable to the plaintiff or to a defendant in a tort action as to a possible joint tortfeasor against whom said defendant has no right to contribution or reimbursement.

          (h)  For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims or third-party claims.

|431|5546

Rule 3.11. Motions – General

See Rules 1.8, 1.8-A and 1.8-B.

|431|5551

Rule 3.12. Motions – Specific

(a) Motions to Amend.

(1)  No plaintiff shall have leave to amend a pleading, unless in matters of form, after a default until the defendant has been provided with notice and an opportunity to be heard, to show cause why the amendment should not be allowed.
(2)  Amendments in matters of form will be allowed or ordered, as of course, on motion; but, if the defect or want of form be shown by the adverse party, the order to amend will be made on such terms as justice may require.
(3)  Amendments in matters of substance may be made on such terms as justice may require.
(4)  Amendments may be made to the Complaint or Answer upon the order of the court, at any time and on such terms as may be imposed.

(b)  Motions to Consolidate. Whenever a Motion is filed in any Circuit Court requesting the transfer of an action there pending to another Circuit Court for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, the court may, after notice to all parties in all such pending actions and hearing, make such order for consolidation in any one of such Circuit Courts in which such actions are pending, as justice and convenience require.

(c)  Motions for Summary Judgment.

(1)  Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a as amended. Such motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the court in support of or in opposition to the Motion for Summary Judgment. Only such materials as are essential and specifically cited and referenced in the Motion for Summary Judgment, responses, and supporting memoranda shall be filed with the court. In addition, except by permission of the court received in advance, no such motion, response, or supporting memorandum of law shall exceed 20 double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the court. Excerpts of documents and discovery materials shall be used whenever possible.
(2)  The non-moving party shall have 30 days after filing of a motion for summary judgment to respond, unless another deadline is established by agreement of the parties or order of the court.
(3)  Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability and the case proceeds to trial, the parties must provide the trial judge or trier of fact with a statement of agreed facts sufficient to explain the case and place it in a proper context so that the trier of fact might more readily understand what she/he will be hearing in the remaining portion of the trial. 
(4)  Any party filing a Motion for Summary Judgment shall provide the opposing party with notice, substantially as set forth in the following form, of the obligation to file an objection and supporting affidavit within 30 days after filing of the motion.  The form of the notice in substance shall be as follows:

NOTICE TO THE DEFENDANT/OR PLAINTIFF

THIS MOTION FOR SUMMARY JUDGMENT IS FILED IN ACCORDANCE WITH RSA 502-A:27-c AND RSA 491:8-a.  IF YOU OBJECT TO THE FACTS SET FORTH IN THIS MOTION, YOU MUST FILE YOUR WRITTEN OBJECTION WITHIN 30 DAYS.  YOUR OBJECTION MUST BE ACCOMPANIED BY AN AFFIDAVIT SETTING FORTH SPECIFIC FACTS SHOWING THAT THERE IS A GENUINE ISSUE FOR TRIAL.  IF YOU FAIL TO FILE AN OBJECTION AND ACCOMPANYING AFFIDAVIT WITHIN 30 DAYS, THIS MOTION MAY BE ACTED UPON WITHOUT A HEARING OR TRIAL, AND JUDGMENT ENTERED IN FAVOR OF THE PARTY WHO FILED THE MOTION. 

          (d)  See also Rules 1.8 and 1.8A.

|431|5556

Rule 3.13. Objections

(a)  A non-moving party may object or otherwise respond to a motion within 10 days after filing thereof unless: (1) the party is responding to a Motion for Summary Judgment, see RSA 491:8-a; or (2) another deadline is established by court order.

(b)  Unless a party requests oral argument or an evidentiary hearing on any motion filed by the party, or on any objection thereto by another party, setting forth by memorandum, brief statement or written offer of proof the reasons why the oral argument or evidentiary hearing will further assist the court in determining the pending issue(s), no oral argument or evidentiary hearing will be scheduled and the court may act on the motion on the basis of the pleadings and record before it. Except with respect to motions that fall within Rules 3.13(a)(1) and (2) above, such memorandum, brief statement or written offer of proof shall be filed within 10 days after the filing of the motion.  With respect to motions that fall within Rule 3.13(a)(1), such memorandum, brief statement or written offer of proof shall be filed within 30 days after the filing of the motion.  With respect to motions that fall within Rule 3.13(a)(2), such memorandum, brief statement or written offer of proof shall be filed within the deadline established by court order. Failure to object shall not, in and of itself, be grounds for granting the motion.

|431|5561

Rule 3.13A. Reply and Surreply

Any party may file a reply within ten (10) days of the filing of an objection to a motion.  A party who intends to file a reply to an objection shall advise the clerk within three (3) days of the Court’s receipt of the objection.  Surreplies may only be filed with permission of the Court.

|431|5566

Rule 3.14. Third Parties

In addition to the participation of plaintiffs and defendants, a civil action may also involve third parties whenever third parties may be liable to a defendant in any pending action for all or part of the plaintiff’s claim against said defendant or if said defendant may have a claim against third parties, depending upon the determination of an issue or issues in said pending action.

|436|5571

Rule 3.15. Intervention

Any person shown to be interested may become a party to any civil action upon filing and service of an Appearance and pleading briefly setting forth his or her relation to the cause; or, upon motion of any party, such person may be made a party by order of court notifying him or her to appear therein. If a party, so notified, neglects to file an Answer or other responsive pleading on or before the date established by the court, that party shall be defaulted.  No such default shall be set aside, except by agreement or by order of the court upon such terms as justice may require.

|436|5576

Rule 3.16.

Reserved for Future Use.

|436|5581

Rule 3.17. Appearance and Withdrawal

(a)  An Appearance in an action shall be made by filing a typed or handwritten Appearance form containing the name, street address, mailing address, email address, New Hampshire Bar Association member identification number, and telephone number of the person entering the Appearance, and the complete name, street address, and telephone number of the party on whose behalf the Appearance is filed. If counsel includes all of the foregoing information in a complaint, answer or motion to dismiss, that pleading will be considered his or her appearance, and a separate appearance need not be filed.

(b) A party who chooses to represent himself or herself must file an Appearance and shall state in the Appearance that the party is choosing to represent himself or herself.  If the self-represented party includes all of the information required in paragraph (a) above, with the exception of the New Hampshire Bar Association member identification number in a complaint, answer or motion to dismiss, that pleading will be considered his or her appearance, and a separate appearance need not be filed.  The failure of a self-represented party to file an Appearance in conformity with this rule shall result in a conditional default or other order as justice requires. The clerk shall be notified of any changes of address of any of the parties. 

(c) A separate Appearance is to be filed by counsel, non-attorney representative, or self-represented party with respect to each case in which said counsel, non-attorney representative or self-represented party appears, whether or not such cases are consolidated for trial or other purposes.

(d)  The Appearance and Withdrawal of counsel, non-attorney representative, or self-represented party shall be signed by that person.  Names, street addresses, mailing addresses, New Hampshire Bar Association member identification numbers, and telephone numbers shall be typed or stamped beneath all signatures or papers to be filed or served.  No attorney, non-attorney representative, or self-represented party will be heard until his or her Appearance is so entered.

(e) Limited Appearance of Attorneys – see Rule 1.3(D)(2).

(f)  An attorney or non-attorney representative may withdraw from an action by serving a Notice of Withdrawal on the client and all other parties and by filing the notice, provided that: (1) there are no motions pending before the court; (2) a Trial Management Conference has not been held; and (3) no trial date has been set.  Unless these conditions are met, an attorney or non-attorney representative may withdraw from an action only by leave of court.  Whenever an attorney or non-attorney representative withdraws from an action, and no other Appearance is entered, the court shall notify the party by mail of such withdrawal.  If the party fails to appear by himself, herself, attorney or non-attorney representative by a date fixed by the court, the court may take such action as justice may require.

|436|5586

Rule 3.18. Counsel

See Rule 1.3.

|436|5591

Rule 3.19. Out-of-State Counsel (Admission Pro Hac Vice)

See Rule 1.3(C).

|436|5596

Rule 3.20 Non-attorney Representatives

See Rule 1.3(D)(1).

|436|5601

Rule 3.21. General Provisions

(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 or mental examinations; and requests for admission.

(b) Scope of Discovery.  Unless otherwise limited by order of the court in accordance with these rules, parties may obtain discovery regarding any matter, not privileged, that 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, electronically stored information, 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.

(c) Privilege Log.  When a party withholds materials or information otherwise discoverable under this rule by claiming that the same is privileged, the party shall promptly and expressly notify the opposing party of the privilege claim and, without revealing the contents or substance of the materials or information at issue, shall describe its general character with sufficient specificity as to enable other parties to assess the applicability of the privilege claim.  Failure to comply with this requirement shall be deemed a waiver of any and all privileges.

(d) Discovery Abuse; Sanction.

(1)  The court may impose appropriate sanctions against a party or counsel for engaging in discovery abuse.  Upon a finding that discovery abuse has occurred, the court should normally impose sanctions unless the offending party or counsel can demonstrate substantial justification for the conduct at issue or other circumstances that would make the imposition of sanctions unfair.  Discovery abuse includes, but is not limited to, the following:

(A)  employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or undue burden or expense;
(B) employing discovery methods otherwise available which result in legal expense disproportionate to the matters at issue;
(C)  making, without substantial good faith justification, an unmeritorious objection to discovery;
(D)  responding to discovery in a manner which the responding party knew or should have known was misleading or evasive;
(E)  producing documents or other materials in a disorganized manner or in a manner other than the form in which they are regularly kept;
(F)  failing to confer with an opposing party or attorney in a good faith effort to resolve informally a dispute concerning discovery;

(2)  The sanctions which may be imposed for discovery abuse include, but are not limited to, the following:

(A)  a monetary sanction in an amount equal to the unnecessary expenses incurred, including reasonable attorney’s fees, as the result of the abusive conduct;
(B)  an issue sanction that orders that designated facts be taken as established by the party who has been adversely affected by the abuse;
(C)  an evidence sanction that prohibits the offending party from introducing certain matters into evidence;
(D)  a terminating sanction that strikes all or parts of the claims or defenses, enters full or partial judgment in favor of the plaintiff or defendant, or stays the proceeding until ordered discovery has been provided.

(e)  Trial Preparation.

(1)  A party may obtain discovery of documents, electronically stored information and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his or her attorney, non-attorney representative, 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 his or her case and that he or she 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.

(2)  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.  For purposes of this paragraph, a statement previously made is (i) a written statement signed or otherwise adopted or approved by the person making it, or (ii) 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.

(f)  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.

(g)  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 his or her response to include information thereafter acquired, except as follows:

(1)  A party is under a duty seasonably to supplement his or her 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 he or she is expected to testify, and the substance of his or her testimony.
(2)  A party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.
(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.

|441|5606

Rule 3.22. Automatic Disclosures

(a)  Materials that Must Be Disclosed.  Except as may be otherwise ordered by the court for good cause shown, a party must without awaiting a discovery request, provide to the other parties:

(1) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support his or her claims or defenses, unless the use would be solely for impeachment, and, unless such information is contained in a document provided pursuant to Rule 3.22 (a)(2), a summary of the information believed by the disclosing party to be possessed by each such person;
(2) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in his or her possession, custody or control and may use to support his or her claims or defenses, unless the use would be solely for impeachment;
(3)  a computation of each category of damages claimed by the disclosing party together with all documents or other evidentiary materials on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(4) for inspection and copying, any insurance agreement or policy under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(b)  Time for Disclosure.  Unless the court orders otherwise, the disclosures required by Rule 3.22(a) shall be made as follows:

(1) by the plaintiff, not later than 30 days after the defendant to whom the disclosure is being made has filed his or her Answer to the Complaint; and
(2) by the defendant, not later than 60 days after the defendant making the disclosure has filed his or her Answer to the Complaint.

(c)  Duty to Supplement.  Each party has a duty to supplement that party’s initial disclosures promptly upon becoming aware of the supplemental information.

(d)  Sanctions for Failure to Comply.  A party who fails to timely make the disclosures required by this rule may be sanctioned as provided in Rule 3.21.

|441|5611

Rule 3.23 Written Interrogatories

(a) Any party may serve, by mail or delivery by hand, upon any other party written interrogatories relating to any matter, not privileged, that 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, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

(b) A party may propound more than one set of interrogatories to an adverse party, but the total number of interrogatories shall not exceed 25, unless the court otherwise orders for good cause shown after the proposed additional interrogatories have been filed with the court.  In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether or not it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

(c) Any party propounding interrogatories shall provide the opponent with notice, substantially as set forth in the following form, of the obligation to answer said interrogatories within thirty days after service.  The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print.  The form of the notice in substance shall be as follows:

THESE INTERROGATORIES ARE PROPOUNDED IN ACCORDANCE WITH RULE 3.23 OF THE RULES OF THE CIRCUIT COURT OF THE STATE OF NEW HAMPSHIRE.  YOU MUST ANSWER EACH QUESTION SEPARATELY AND FULLY IN WRITING AND UNDER OATH.  YOU MUST SERVE THE ORIGINAL AND ONE COPY OF YOUR ANSWERS ON THE PARTY OR COUNSEL WHO SERVED THE INTERROGATORIES UPON YOU WITHIN THIRTY (30) DAYS OF BEING SERVED.  IF YOU OBJECT TO ANY QUESTION, YOU MUST NOTE YOUR OBJECTION AND STATE THE REASON THEREFORE.  IF YOU FAIL TO RETURN YOUR ANSWERS WITHIN THIRTY (30) DAYS, THE PARTY WHO SERVED THEM UPON YOU MAY INFORM THE COURT, AND THE COURT SHALL MAKE SUCH ORDERS AS JUSTICE REQUIRES, INCLUDING THE ENTRY OF A CONDITIONAL DEFAULT AGAINST YOU.

(d) Interrogatories may be served at any time after service of the action.

(e) The party serving the interrogatories shall furnish the answering party with an original and two copies of the interrogatories.  The interrogatories shall be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering party to have his or her answer typed in.  The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party’s available word processing technology.  In the event of such an agreement, the requirement of providing space between each question sufficient to manually insert answers is obviated.

(f) Interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the party.

(g) Each question shall be answered separately, fully and responsively in such manner that the final document shall have each interrogatory immediately succeeded by the separate answer.

(h) If, in any interrogatory, copies of papers, documents or electronically stored information are requested, such interrogatory shall be deemed to be a request for production pursuant to Rule 3.24. 

(i)  The party, who is served with interrogatories, shall serve his or her answers thereto, by mail or delivery in hand, upon the party propounding them within 30 days after service of such interrogatories.  The parties may extend such time by written agreement.

(j)  The answers shall be served, together with the original and one copy of the interrogatories, upon the propounding party.  If copies of papers are annexed to answers, they need be annexed to only one set.

(k)  (1) If a party, upon whom interrogatories are served, objects to any questions propounded therein, he or she may answer the question by objecting and stating the grounds.  The party shall make timely answer, however, to all questions to which he or she does not object.  The propounder of a question to which another party objects may move to compel an answer to the question, and, if the motion is granted, the question shall be answered within such time as the court directs.  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) When objections are made to interrogatories or requests for admissions, before there is any court hearing regarding said objections, counsel for the parties shall attempt in good faith to settle the objections by agreement.  It shall be the responsibility of counsel for the objecting party to initiate such attempt and to notify the clerk if the objections are settled by agreement.

(3) If, following such conference, counsel are unable to settle objections, counsel for the objecting party shall notify the clerk and request a hearing on such objections as remain unsettled.

(4) Where an objection to an interrogatory has been withdrawn by agreement of counsel or has been overruled by the court, the answer to such interrogatory shall be served within 10 days thereafter.

(l)  The adverse party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

(m)  If a party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served as follows:

(i)  A party is under a duty seasonably to supplement his or her 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 he or she is expected to testify, and the substance of his or her testimony.
(ii)  A party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.
(iii)  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.

(n)  Interrogatories and answers may be used at the trial to the same extent as depositions.  If less than all of the interrogatories and answers thereto are introduced or read into evidence by a party, an adverse party may introduce or read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read or otherwise introduced into evidence.

(o)  Neither the interrogatories nor the answers need be filed with the court unless the court otherwise directs.

|441|5616

Rule 3.24. Production of Documents

(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, copy, test, or sample any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form, or to inspect and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 3.21(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 3.21(b).

(b)  Procedure.

(1)  The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity.  The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.
(2)  The party upon whom the request is served shall serve a written response within 30 days after the service of the request.  A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties.  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, in which event the reasons for the objection shall be stated.  If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts.
(3)  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.

|441|5621

Rule 3.25. Discovery of Electronically Stored Information (ESI)

(a) Promptly after litigation is commenced, the parties must meet and confer about preservation of any electronically stored information (ESI).  In the absence of an agreement, any party may move for an order governing preservation of ESI.  Because the parties require a prompt response, the court must make an order governing preservation of ESI as soon as possible.

(b) The parties have a duty to preserve all potentially relevant ESI once the party is aware that the information may be relevant to a potential claim.  Counsel for the parties have a duty to notify their clients to place a “litigation hold” on all potentially relevant ESI.

(c) Requests for ESI shall be made in proportion to the significance of the issues in dispute.  If the request for ESI is considered to be out of proportion to the issues in the dispute, at the request of the responding party, the court may determine the responsibility for the reasonable costs of producing such ESI.

(d)  A party may serve on another party a request for designated ESI, including documents, email messages and other electronically recorded messages and communications, photographs, sound recordings, drawings, charts, graphs and other data or data compilations, including back-up and archived copies of ESI – stored in any medium from which information could be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

(e)  The request must describe with reasonable particularity each item or category of items to be produced.  The request must also state the form or forms in which ESI is to be produced.

(f)  The responding party must respond to each item or category of items or state an objection to the request including the basis of the objection, within 30 days of the receipt of the request.

(g)  The responding party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.

(h)  The responding party need not produce the same ESI in more than one form.

(i)  The responding party does not waive privileged information by its inadvertent disclosure under this rule.

(j)   Inadvertently disclosed privileged ESI is subject to “claw-back” at the request of the responding party.  If agreement is not reached by opposing counsel or the litigants concerning any “claw-back” requests, the court may decide any disputes.

(k)   A party may also serve on another party a request to permit the requesting party and or its representatives to inspect, copy, test or sample the ESI in the responding party’s possession or control.

|441|5626

Rule 3.26 Depositions

(a)  A party may take as many depositions as necessary to adequately prepare a case for trial so long as the combined total of deposition hours does not exceed 20 unless otherwise stipulated by counsel or ordered by the court for good cause shown.

(b)  No notice to the adverse party of the taking of depositions shall be deemed reasonable unless served at least 3 days, exclusive of the day of service and the day of caption, before the day on which they are to be taken. Provided, however, that 20 days’ notice shall be deemed reasonable in all cases, unless otherwise ordered by the court.  No deposition shall be taken within 30 days after service of the Complaint, except by agreement or by leave of court for good cause shown.

(c)  Every notice of a deposition to be taken within the State shall contain the name of the stenographer proposed to record the testimony.

(d)  When a statute requires notice of the taking of depositions to be given to the adverse party, it may be given to such party or the party’s representative of record.  In cases where the action is in the name of a nominal party and the Complaint or docket discloses the real party in interest, notice shall be given either to the party in interest or that party’s attorney of record.  Notices given pursuant to this rule may be given by mail or by service in hand.  If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.

(e)  The interrogatories shall be put by the attorneys or non-attorney representatives and the interrogatories and answers shall be taken in shorthand or other form of verbatim reporting approved by the court and transcribed by a competent stenographer agreed upon by the parties or their attorneys present at the deposition.  In the absence of such agreements, the stenographer shall be designated by the court.  Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer recording the testimony.

(f)  No deposition, as transcribed, shall be changed or altered, but any alleged errors may be set forth in a separate document attached to the original and copies.

(g)  The stenographer shall cause to be noted any objection to any interrogatory or answer without deciding its competency.  If complaint is made of interference with any witness, the stenographer shall cause such complaint to be noted and shall certify the correctness or incorrectness thereof in the caption.

(h)  Upon motion, the court may order the filing of depositions, and, upon failure to comply with such order, the court may take such action as justice may require.

(i)  The signature of a person outside the State, acting as an officer legally empowered to take depositions or affidavits, with his or her seal affixed, where one is required, to the certificate of an oath administered by him or her in the taking of affidavits or depositions, will be prima facie evidence of his or her authority so to act.

(j)  The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

(k)  If any deponent refuses to answer any question propounded on deposition, or any party fails or refuses to answer any written interrogatory authorized by these rules, or fails to comply within 30 days after written request to comply, the party propounding the question may, upon notice to all persons affected thereby, apply by motion to the court for an order compelling an answer. If the motion is granted, and if the court finds that the refusal was without substantial justification or was frivolous or unreasonable, the court may, and ordinarily will, require the deponent or the party, attorney, or non-attorney representative advising the refusal, or both of them, to pay the examining or requesting party the reasonable expenses incurred in obtaining the order, including reasonable counsel fees.

If the motion is denied and if the court finds that the motion was made without substantial justification or was frivolous or unreasonable, the court may, and ordinarily will, require the examining party or the attorney advising the motion, or both of them, to pay to the witness the reasonable expenses incurred in opposing the motion, including reasonable counsel fees.

(l) Videotape Depositions.

(1)  A party may, at such party's expense, record a videotape deposition, provided the party indicates the intent to record the videotape deposition in the notice of deposition. At the commencement of the videotape deposition, counsel representing the deponent should state whose deposition it is, what case it is being taken for, where it is being taken, who the lawyers are that will be asking the questions, and the date and the time of the deposition.  Care should be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise.  Counsel and witnesses shall comport themselves at all times as if they were actually in the courtroom.

(2)  If any problem arises as to the admissibility or inadmissibility of evidence, this should be handled in the same manner as written depositions.

(3)  A party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the court at the Trial Management Conference with a transcript of the videotape proceedings that is sufficient to enable the court to act upon the objection before the trial of the case, or the objection shall be deemed waived.

(m)  Notice or Subpoena Directed to An Organization.  In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.  The named organization must then designate one or more officers, directors or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.  A subpoena must advise a nonparty organization of its duty to make this designation.  The persons designated must testify about information known or reasonably available to the organization.  This paragraph (m) does not preclude a deposition by any other procedure allowed by these rules.

|441|5631

Rule 3.27. Expert Witnesses

(a)  Within 30 days of a request by the opposing party, or in accordance with any order of the court issued pursuant to Rule 3.5, a party shall make a disclosure of expert witnesses (as defined in Evidence Rule 702), whom he or she expects to testify at trial.

(b)  Said disclosure shall conform with RSA 516:29-b, unless waived by agreement of the parties.

|441|5636

Rule 3.28. Requests for Admissions

(a) (i)  Any party, desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he or she believes not to be in dispute, may, after 30 days after the date the defendant is served with the Summons and Complaint, without leave of court, serve an original request therefor, accompanied by any documents involved, to the adverse party or his or her representative. Each of the matters of which an admission is requested shall be deemed admitted unless within 30 days after such service the party requested serves a copy thereof to the party requesting such admission, or his or her attorney or non-attorney representative, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.

(ii) Notwithstanding (i) above, signatures and endorsements of all written instruments declared on will be considered as admitted unless the party disputing the signature or endorsement shall serve notice on the opposing party that they are disputed within 30 days after the date the defendant files an Answer. See Rule 3.37(c).

(b)  If objection is made to part of a request, the remainder shall be answered within the time limit, and when good faith requires that a party qualify his or her answer or deny only part of a matter, he or she shall specify so much of it as is true and qualify or deny the remainder.

(c)  Any party, who without good reason or in bad faith, denies under this rule any signature or fact which has been requested and which is thereafter proved, or who without good reason or in bad faith requests such admission under this rule and thereafter fails to prove it, may, on motion of the other party, be ordered to pay the reasonable expense, including counsel fees, incurred by such other party in proving the signature or fact or in denying the request, as the case may be.

|441|5641

Rule 3.28A. Medical Injuries and Special Damages

(a) Medical Examinations. In actions to recover damages for personal injuries, the defendant shall have the right to a medical examination of the plaintiff prior to trial. The defendant shall seek and obtain the medical examination of the plaintiff within the expert disclosure deadlines set forth by statute, rule, or in the structuring order issued by the court.  The court may order a medical examination of the plaintiff to take place outside of the expert disclosure deadlines, including during trial, only for good cause shown.

(b) Medical Reports. Copies of all medical reports relating to the litigation, in the possession of the parties, will be furnished to opposing counsel on receipt of the same.

(c) Medical Records. Any party shall have the right to procure from opposing counsel an authorization to examine and obtain copies of hospital records and X-rays involved in the litigation.

(d) Special Damages. Any party claiming damages shall furnish to opposing counsel, within 6 months after entry of the action, a list specifying in detail all special damages claimed; copies of bills incurred thereafter shall be furnished on receipt. Any party claiming loss of income shall furnish opposing counsel, within six months after the entry of the action, as soon as each is available, copies of the party's Federal Income Tax Returns for the year of the incident giving rise to the loss of income, and for two years before, and one year after, that year, or, in the alternative, written authorization to procure such copies from the Internal Revenue Service.

|441|5646

Rule 3.29. Discovery Motions

(a)  Protective Orders.  Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:  (a) that the discovery not be had; (b) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (c) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (e) that discovery be conducted with no one present except persons designated by the court; (f) that a deposition after being sealed be opened only by order of the court; (g) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (h) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

(b)  Motions for a protective order relating to trade secrets, confidential research, development or commercial information, or other private or confidential information sought through discovery shall be filed within the time set by these rules to respond to the discovery request or within 30 days of the date of automatic disclosure required by Rule 3.22, including any extensions agreed to by the parties or ordered by the court, or within ten days of an order of production of records.  All protective orders, whether assented to or not, must be approved by the court.

(c)  If a 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.

(d)  Conditional Default.  If the party upon whom interrogatories or requests for production have been served, shall fail to answer said interrogatories or requests for production within 30 days, or any enlarged period, unless written objection to the answering of said interrogatories or requests is filed within that period, said failure will result in a conditional default being entered by the clerk upon motion being filed indicating such failure to answer.  The party failing to answer shall receive notice of the conditional default.  The conditional default shall be vacated if the defaulted party answers the interrogatories or requests within 10 days of receiving notice thereof and moves to strike the conditional default.  If the defaulted party fails to move to strike the conditional default within 10 days of receiving notice thereof, the adverse party may move to have a default judgment entered and damages assessed in connection therewith.  If, upon review of an affidavit of damages, the court determines that it does not provide a sufficient basis for determining damages, the court may, in its discretion, order a hearing thereon.

(e)  Motion to Compel.  Before any Motion to Compel discovery may be filed, counsel for the parties shall attempt in good faith to settle the dispute by agreement.  If a Motion to Compel regarding requested discovery is filed, the moving party shall be deemed to have certified to the court that the moving party has made a good faith effort to obtain concurrence in the relief sought.

(f)  Where a discovery dispute has been resolved by court order in favor of the party requesting discovery by court order, the requested discovery shall be provided within 10 days thereafter or within such time as the court may direct.

(g)  Motions for protective order or to compel responses to discovery requests shall include a statement summarizing the nature of the action and shall include the text of the requests and responses at issue.

(h)  If the court finds that a motion, which is made pursuant to this rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the court may order the offending party to pay the amount of reasonable expenses, including attorney’s fees, incurred by the other party in making or resisting the motion.

|441|5651

Rule 3.30. Mediation

(a)  Purpose.  The Circuit Court establishes these Civil Complaint mediation rules to increase access to justice; to increase parties’ satisfaction with the outcome; to reduce future litigation by the same parties; to make more efficient use of judicial resources; and to expand dispute resolution resources available to the parties.

(b)  Definitions.  For the purpose of this rule, the following definitions apply.

(1)  Mediation.  Mediation is a process in which a mediator facilitates settlement discussions between parties.

(A)  The mediator has no authority to make a decision or impose a settlement upon the parties.
(B)  The mediator attempts to focus the attention of the parties upon their needs and interests rather than upon their rights and positions.
(C)  Any settlement is entirely voluntary.
(D)  In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.

(2)  Mediation is based upon principles of communication, negotiation, facilitation and problem solving that emphasize:

(A)  The needs and interest of the parties
(B)  Fairness
(C)  Procedural flexibility
(D)  Privacy and confidentiality
(E)  Full disclosure
(F)  Self determination

(3)  Mediator.  An impartial person who facilitates discussions between the parties to a mediation.  The role of the mediator includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, and providing the parties an opportunity for each to be heard in a dignified and thoughtful manner. The mediator’s focus will be on encouraging and supporting the parties’ presentations to and reception from one another allowing them to find a resolution that is appropriate.

(4)  Party.  Any person whose name is designated on the record as plaintiff or defendant and their attorney or any other person who has filed an appearance.

(c)  Mediator Qualifications.  Mediators shall satisfy the qualifications and criteria specified by the Supreme Court.  Minimum qualifications include:  completion of a 20-hour mediation process training; two years experience as a mediator or equivalent experience, and an understanding of civil and landlord/tenant law is helpful.  All mediators serving as civil complaint mediators shall contract with the Administrative Office of the Courts for a term of one year.

(d)  Referral of cases to mediation.  The Civil Complaint mediation program is voluntary.  Cases may be referred to mediation at the case structuring conference or at any other time during the case.

(e) Continuances. If the court has set a specific date for mediation, and if a party files a Motion to Continue Mediation for good cause, the Court has discretion to continue the mediation and set a new mediation date if no prior Motions to Continue Mediation have been granted.   The Court will not grant multiple requests to continue mediation.

(f)  Failure to Attend Mediation.  If either party fails to attend a scheduled mediation without good cause and without providing sufficient notice to the other party(ies) and to the Court, the parties shall lose the opportunity to participate in the mediation program. Under those circumstances the matter shall not be rescheduled for mediation and the matter shall be returned to the trial docket.

(g)  Mediator Assignment.  The Administrative Judge of the Circuit Court, in consultation with the Office of Mediation and Arbitration, shall determine the mediation needs for each Circuit Court in the Civil Complaint program. Assignment of mediators shall be based on the mediator needs of each court.
Each Circuit Court shall schedule civil complaint cases and allocate mediator(s) in a manner that accommodates the case load of the Court.

(h)  Payment of mediator fees.  Civil complaint mediators shall be paid on a per case fee set by the Supreme Court. Payments shall be made out of the Office of Mediation and Arbitration (“OMA”) Fund established under RSA 490-E:4.  No additional fees or reimbursements shall be made.

(i)  Disclosure of Conflict.  Upon receipt of a notice of appointment in a case, the mediator shall disclose any circumstances likely to create a conflict of interest, the appearance of conflict of interest, a reasonable inference of bias or other matter that may prevent the process from proceeding as scheduled.

(1)  If the mediator withdraws, has a conflict of interest or is otherwise unavailable, another mediator shall be appointed by the Court.
(2)  The burden of disclosure rests on the mediator.  After appropriate disclosure, the mediator may serve if both parties so desire.  If the mediator believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.

(j)  Impartiality.  Impartiality shall be defined as freedom from favoritism or bias in word, action and appearance.

(1)  Impartiality implies a commitment to aid all parties, as opposed to an individual party, when moving toward an agreement.  A mediator shall be impartial and shall advise all parties of any circumstances bearing on possible bias, prejudice or impartiality.
(2)  A mediator shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of the proposed options for settlement.
(3)  A mediator shall withdraw from mediation if the mediator believes the mediator can no longer be impartial.
(4)  A mediator shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney or any other person involved and arising from the mediation process.

(k)  Prohibitions.  A mediator shall not provide counseling or therapy to any party during the mediation process nor shall a mediator who is an attorney represent either party, or give legal advice during or after the mediation.
The mediator shall not use the mediation process to solicit or encourage future professional services with either party.

(l)  Self determination.  A mediator shall assist the parties in reaching an informed and voluntary settlement.  Decisions are to be made voluntarily by the parties.

(1)  A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make a substantive decision for any party to a mediation process.

(2)  A mediator shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting a mediation.
(3)  A mediator shall promote consideration of the interest of persons affected by actual or potential agreements who are not present during a mediation.
(4)  The mediator shall promote mutual respect amongst the parties throughout the process.

(m)  Professional Advice.  A mediator shall only provide information the mediator is qualified by training or experience to provide.

(1)  When a mediator believes a non represented party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.
(2)  While a mediator may point out a possible outcome of the case, under no circumstances may a mediator offer a personal or professional opinion as to how the Court in which the case is filed will resolve the dispute.

(n)  Confidentiality.  A mediator shall preserve and maintain the confidentiality of all mediation proceedings.  Any communication made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential.

(1) A mediator shall keep confidential from the other parties any information obtained in an individual caucus unless the party to the caucus permits disclosure.
(2)  All memoranda, work products and other materials contained in the case file of a mediator are confidential. The mediator shall render anonymous all identifying information when materials are used for research, training or statistical compilations.
(3)  Confidential materials and communications are not subject to disclosure in any judicial or administrative proceedings except for any of the following:

(A)  Where the parties to the mediation agree in writing to waive the confidentially.
(B)  When a subsequent action between the mediator and a party to the mediation for damages arises out of the mediation.
(C) Where there are threats of imminent violence to self or others.
(D) Where reporting is required by state law.

(o)  Inadmissibility of Mediation Proceeding. Mediation proceedings under this rule are non-binding and shall not impair the right of the litigants to demand a trial. Any settlement reached at mediation shall be binding on the parties and entered as a judgment. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.

(1)  Statements made and documents prepared by a party, attorney, or other participant in the aid of such proceedings shall be privileged and shall not be disclosed to any Court or construed for any purpose as an admission against interest.
(2)  All mediation proceedings are deemed settlement conferences as prescribed by Court rule and the Rules of Evidence.  In addition, the parties shall not introduce into evidence in any subsequent proceeding the fact that there has been a mediation proceeding.
(3)  Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in a mediation proceeding under this rule.
(4)  A mediator shall not be called as a witness in any subsequent proceeding relating to the parties’ negotiation and participation except as set forth in Section n of this rule.

(p)  Concluding Mediation.  If an agreement is reached during the mediation process, the parties shall reduce their agreement to a written memorandum on the points on which agreement has been reached, and the memorandum shall be reviewed and signed by all parties before the mediation ends, unless the parties otherwise agree that additional time is necessary to ensure that the parties have time to consult with counsel about their agreement if unrepresented at the time of the mediation.  In that case, the parties shall submit the written agreement to the Court within thirty days of the mediation session.  Within 48 hours of the mediation session, the mediator shall submit an ADR report indicating the status of the agreement either attaching it to the ADR report, or, indicating that it will be filed with the Court within the next thirty days.
If an agreement is not reached during the mediation process, the mediator shall notify the Court via the ADR report that the mediation failed to resolve the issue in conflict or if the mediation successfully resolved part of the matter, the ADR report will so indicate.

(q) Immunity.  The mediator will not be acting as legal advisor or legal representative. The parties should recognize that, because the mediator is performing quasi-judicial functions and is performing under the auspices of the Circuit Court, each such mediator has immunity from suit, and shall not be called as a witness in any subsequent proceeding relating to the parties' negotiations and participation except as set forth in Section n of this rule.

(r)  Removal from list of Civil Complaint mediators. Appointment to the Civil Complaint roster in the Circuit Court confers no vested rights to the mediator, but is a conditional privilege that is revocable.

(1)  At any time during the one year rostering period, upon notice and opportunity to be heard, a civil complaint mediator who is found to have engaged in conduct that reflects adversely on his/her impartiality or in the performance of his/her duties as a mediator, or is found to have persistently failed to carry out the duties of a mediator, or is found to have engaged in conduct prejudicial to the proper administration of justice, shall be removed from the list of civil complaint mediators.
(2) All complaints regarding a mediator’s performance shall be forwarded to the NH Judicial Branch Director of the Office of Mediation and Arbitration and the Administrative Judge of the Circuit Court. The Director of the OMA will investigate the complaint and will make recommendations to address the complaint to the Administrative Judge of the Circuit Court.
(3)  All civil complaint mediators must inform the Director of the Judicial Branch Office of Mediation and Arbitration and the Administrative Judge of the Circuit Court within 30 days of a change in circumstances such as a conviction of a felony or loss of professional license.  Civil complaint mediators who are convicted of a felony or misdemeanor involving moral turpitude, or who have a professional license revoked, shall be denied certification.

|446|5656

Rule 3.31

Reserved for future use.

|446|5661

Rule 3.32

Reserved for future use.

|446|5666

Rule 3.33

Reserved for future use.

|446|5671

Rule 3.34

Reserved for future use.

|446|5676

Rule 3.35. Trial Management Conference

The court may direct the parties to attend a Trial Management Conference.  Written pretrial statements are not required unless ordered by the court.  Requests for findings of fact and rulings of law shall be submitted in writing in accordance with a schedule to be determined by the court.

|451|5681

Rule 3.36. Standing Trial Orders – Procedures

(a)  Addressing the Court.  Anyone addressing the court or examining a witness shall stand.  The rule may be waived if the person is physically unable to stand or for other good cause.  No one should approach the bench to address the court except by leave of the court.

(b)  Opening Statements and Closing Arguments.  Opening statements shall be at the discretion of the Court.  Closing arguments shall also be at the discretion of the Court. Before any person shall read any excerpt of testimony from a transcript prepared by the designated court transcriber, he or she shall furnish the opposing party with a copy thereof.

(c)  Copies of Documents for Court.  Counsel shall seasonably furnish for the convenience of the court, as it may require, copies of the specifications, contracts, letters or other papers offered in evidence.

(d)  Examination of Witnesses.

(1)  Only one counsel on each side will be permitted to examine a witness.
(2)  A witness cannot be re-examined by the party calling him or her, after his or her cross-examination, unless by leave of court, except so far as may be necessary to explain his or her answers on his or her cross-examination, and except as to new matter elicited by cross-examination, regarding which the witness has not been examined in chief.
(3)  After a witness has been dismissed from the stand, the witness cannot be recalled without permission of the court.
(4)  No person, who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made.

(e)  Objections.  When stating an objection, counsel will state only the basis of the objection (e.g., “leading,” “non-responsive,” or hearsay”), provided, however, that upon counsel’s request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection.

(f)  Submission of Case.  In all trials, the plaintiff shall put in his or her whole case before resting and shall not thereafter, except by permission of the court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his or her whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

|451|5686

Rule 3.37. Standing Trial Orders – Proof

(a)  Addressing the Court.  Anyone addressing the court or examining a witness shall stand.  The rule may be waived if the person is physically unable to stand or for other good cause.  No one should approach the bench to address the court except by leave of the court.

(b)  Opening Statements and Closing Arguments.  Opening statements shall be at the discretion of the Court.  Closing arguments shall also be at the discretion of the Court. Before any person shall read any excerpt of testimony from a transcript prepared by the designated court transcriber, he or she shall furnish the opposing party with a copy thereof.

(c)  Copies of Documents for Court.  Counsel shall seasonably furnish for the convenience of the court, as it may require, copies of the specifications, contracts, letters or other papers offered in evidence.

(d)  Examination of Witnesses.

(1)  Only one counsel on each side will be permitted to examine a witness.
(2)  A witness cannot be re-examined by the party calling him or her, after his or her cross-examination, unless by leave of court, except so far as may be necessary to explain his or her answers on his or her cross-examination, and except as to new matter elicited by cross-examination, regarding which the witness has not been examined in chief.
(3)  After a witness has been dismissed from the stand, the witness cannot be recalled without permission of the court.
(4)  No person, who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made.
(a)  Bills.  If, after an action has been entered for 3 months, a party submits copies of bills incurred to the other party, and no objection has been made within 30 days, the bills may be introduced without formal proof.

(b)  Criminal Record.

(1)  If a party plans to use or refer to any prior criminal record, for the purpose of attacking or affecting the credibility of a party or witness, the party shall first furnish a copy of same to the opposing party, and then obtain a ruling from the court as to whether the opposing party or a witness may be questioned with regard to any conviction for credibility purposes.
(2)  Evidence of a conviction under this rule will not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the party or witness was represented by counsel at the time of the conviction unless counsel was waived.

(c)  Documents.  The signatures and endorsements of all written instruments declared on will be considered as admitted unless the defendant shall serve a notice that they are disputed within 30 days after the date the defendant files an Answer.

(d)  Expert Files.  All experts, including doctors and law enforcement personnel, who are to testify at a trial, will be advised by the party calling the expert to testify to bring their original records and notes to court with them.

(e)  Life Expectancy.  The life expectancy tables published by the United States Center for Disease Control and Prevention, National Center for Health Statistics and available at http://www.cdc.gov/nchs are admissible as evidence to prove life expectancy.

(f)  Medical Records.  X-rays and hospital records (which are certified as being complete records) if otherwise admissible and competent may be introduced without calling the custodian or technician.

(g)  Motor Vehicles.

(1)  Speed.  The issue of speed of a motor vehicle on a public highway, if material, will be submitted on the grounds of reasonableness without regard to statutory provisions relative to rates of speed that are prima facie reasonable, unless a party objects thereto at the Trial Management Conference, or files written objection thereto at least 7 days before the trial.
(2)  Licensing.  No claim is to be made at any trial that the operator of a motor vehicle involved in the case was not properly licensed, unless the claim has been made at the Trial Management Conference, or unless the claim was filed in writing at least 7 days before the trial.

(h)  Proof of Highway Waived Unless Demanded.  In any case in which a road or way is alleged to be a “way” as defined in RSA 259:125 or a public highway, a party shall notify the opposing party at least 10 days prior to trial if said “way” or public highway must be formally proved; otherwise, the need to formally prove said “way” or public highway will be deemed to be waived.

(i)  Stipulations.  Unless otherwise expressly provided by these rules, all stipulations affecting a civil action, except stipulations which are made in the presence of the court and entered on the record, or embodied in an order of the court, shall be in writing and shall be signed by attorneys of record, non-attorney representatives of record, or by parties if self-represented. The court may require handwritten stipulations to be replaced by fully executed, typewritten stipulations within 10 days.
(e)  Objections.  When stating an objection, counsel will state only the basis of the objection (e.g., “leading,” “non-responsive,” or hearsay”), provided, however, that upon counsel’s request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection.

(f)  Submission of Case.  In all trials, the plaintiff shall put in his or her whole case before resting and shall not thereafter, except by permission of the court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his or her whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

|451|5691

Rule 3.38

Reserved for future use.

|451|5696

Rule 3.39. Settlements

(a)  Whenever an attorney, non-attorney representative or self-represented party states orally or in writing to the court that a particular case has been settled and that agreements will be filed, the court shall forthwith notify by mail or through electronic delivery the parties of record or their representatives of such statement, and, if the agreements and/or docket markings are not filed within thirty days after the date of mailing or electronic delivery of such notice, the court shall take such action as justice may require.

(b)  In order that the court may seasonably make up and complete the court’s record, the parties shall seasonably file all papers and documents necessary to make up and enter the judgment and to complete the record of the case and no execution shall issue, or final order or decree be entered, until such papers are filed.

|456|5701

Rule 3.40. Approval of Settlements: Minors

(a)  All petitions for approval of settlement of actions on behalf of minors shall be signed by the parent, next friend or guardian of the minor.

(b)  Court approval is not required for the settlement of any suit or claim brought on behalf of a minor in which the net amount is equal to or less than $10,000.00. Any settlement of such suit or claim in which the net amount exceeds $10,000.00 shall require court approval.

(c)  In any suit or claim on behalf of a minor if the amount to be paid to the minor before the age of majority exceeds $10,000.00, the court shall require proof in the form of a certified statement from the Circuit Court-Probate Division that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19. In the event of a structured settlement where an amount will be paid to the minor both before and after the minor reaches the age of majority, no guardian of the estate of such minor is required if the amount to be paid to the minor before the age of majority is $10,000.00 or less. If the amount to be paid to the minor before the age of majority in such structured settlement exceeds $10,000.00, then a guardian of the estate of such minor is required. In determining whether the net amount of a settlement exceeds $10,000.00, all sums covering attorney’s fees, court costs and other expenses related to the claim including medical expenses are to be excluded.

(d)  The petition shall contain the following information where applicable:

(1)  A brief description of the accident and of all injuries sustained and the age of the minor.
(2)  An itemized statement of all medical expenses and special damages incurred by the minor.
(3)  The total amount of the settlement and whether any bills or expenses are to be paid out of the total settlement or are being paid in addition as part of the parent’s claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid to the parent and a specification of the items covered.
(4)  Whether the settlement was negotiated by counsel actually representing the minor.
(5)  A statement from the attorney or non-attorney representative for the minor as to whether there was medical payment insurance available to the minor and whether or not a claim has been made for said benefits or whether payment has been received.
(6)  A statement from the attorney for the minor as to whether any liens for medical providers have been asserted or are assertable and how the settlement would resolve those liens.
(7)  The net amount to be received on behalf of the minor.
(8)  A request that the settlement be approved.

(e)  The petition must be accompanied with the following material:

(1)  A photocopy of the minor’s birth certificate.
(2)  An itemized statement from counsel detailing the nature of the work performed and the time spent on the case. An attorney’s fee in excess of 25% of the settlement amount will not be ordinarily allowed unless upon good cause shown. In the event that counsel seeks an attorney’s fee in excess of 25%, counsel shall file a motion requesting such an approval which motion shall contain the reasons for the request. A copy of that motion shall be provided to the next friend at least 10 days prior to the hearing or conference relative to approval of the settlement.

(f)  The court will not authorize the next friend to settle the action or authorize the execution of releases and will not make any order respecting indemnity agreements, and the petition should make no such request.

(g)  The court, upon its own motion, may appoint a guardian ad litem to represent the interests of the minor child and/or to review the proposed settlement. The fees of the guardian ad litem shall be paid by defendant.

(h)  The attorney or non-attorney representative, minor, parent, guardian, or next friend, will ordinarily be required to appear in all cases in support of the petition unless attendance has been excused by the court upon prior motion of counsel or upon the court’s review of the file. In all cases where the minor has not actually been represented in the negotiation of the settlement, the minor, parent, and the next friend or guardian shall be required to appear with the attorney or non-attorney representative for the minor.

(i)  A full medical report, including a recent and detailed prognosis from the attending physician, will ordinarily be required. “Recent” shall mean a report dated not more than 6 months prior to the date of the filing of the petition for approval of a settlement.

(j)  (1)  Court approval of a net settlement of $10,000.00 or less is not required by statute; however, if a party desires court approval, the court’s order will ordinarily be in substantially the following form:
Settlement approved.  All bills listed in the petition are to be paid.  Counsel fees in the amount of $_____________ allowed (if settlement was actually negotiated by counsel representing the minor).  The balance, amounting to $_____________, shall be deposited in a savings account in the __________ Bank at ________________ in the name of ______________, as Trustee for ______________, no withdrawals to be made prior to the 18th birthday of said minor, except on written approval of the court.  Said savings institution is authorized to pay over the full amount remaining in said account to the said ________________ upon satisfactory proof that he/she has reached the age of 18 years.  Approval is conditional upon compliance with this order with respect to payment of bills and deposit.

(2)  If the net amount of a settlement exceeds $10,000.00, court approval is required, and the court’s order will ordinarily be in substantially the following form:
Settlement approved. All medical bills and other approved expenses listed in the petition are to be paid. Counsel fees in the amount of $______________ allowed (if settlement was actually negotiated by counsel representing the minor). The balance amounting to $_____________, shall be paid over to __________________, as guardian over the estate of the minor.
Said funds shall, upon payment, be under the jurisdiction of the appropriate Circuit Court-Probate Division and shall be administered in accordance with the requirements of the Circuit Court-Probate Division. Any requests for withdrawal shall be addressed to the Circuit Court-Probate Division for its consideration.
Approval is conditional upon compliance with this order with respect to payment of bills and deposit of funds in accordance with this order.
Counsel for the minor shall be responsible for the settlement funds until said funds shall have actually been deposited in the appropriate guardianship account pursuant to the terms of this order and pursuant to the terms of the guardianship.

(k)  In the event that the parties desire to enter into a structured settlement, which is defined as a settlement wherein payments are made on a periodic basis, the following rules shall also apply:

(1)  Counsel for the defendants shall provide the court with an affidavit from an independent certified public accountant, or an equivalent professional, specifying the present value of the settlement and the method of calculation of that value.
(2)  If the settlement is to be funded by an annuity, the annuity shall be provided by an annuity carrier meeting at least the following criteria:

(A)  The annuity carrier must be licensed to write annuities in New Hampshire and, if affiliated with the liability carrier or the person or entity paying the settlement, must be separately capitalized, licensed and regulated and must have a separate financial rating;
(B)  The annuity carrier must have a minimum of $100,000,000.00 of capital and surplus, exclusive of any mandatory security valuation reserve;
(C)  The petition shall contain the following information about the annuity and the annuity carrier:

(i)  a description of the structure of the annuity arrangement;
(ii)  a description of the history and size of the annuity carrier and its experience in issuing annuities;
(iii)  a certificate from the New Hampshire Insurance Department stating that the annuity carrier is in good standing in New Hampshire;
(iv)  whether the annuity carrier is domiciled or licensed in a state accredited by the National Association of Insurance Commissioners under that organization’s Financial Regulation Standards program; and
(v)  the annuity carrier’s most recent ratings from at least two of the commercial rating services listed in subparagraph (D);

(D)  The annuity carrier must have one of the following ratings from at least two of the following rating organizations:

(i)  A.M. Best Company: A++, A+, A, or A-;
(ii)  Moody’s Insurance Financial Strength Rating: Aaa or Aa;
(iii)  Standard & Poor’s Corporation Insurer Claims-Paying Ability Rating: AAA, AA+, AA, or AA-;
(iv)  Duff & Phelps Credit Rating Company Insurance Company Claims Paying Ability Rating: AAA, AA+, AA, or AA-;

(E)  The annuity carrier must meet any other requirement the court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained;
(F)  The annuity carrier issuing an annuity contract pursuant to a qualified funding plan under these rules may not enter into an assumption reinsurance agreement for the annuity contract without the prior approval of the court and the owner of the annuity contract and the claimant having the beneficial interest in the annuity contract. The court shall not approve assumption reinsurance unless the reinsurer is also qualified under these rules;
(G)  The annuity carrier and the broker procuring the policy shall each furnish the court with an affidavit certifying that the carrier meets the criteria set forth in subsection (D) above as of the date of the settlement and that the qualification is not likely to change in the immediate future. The broker’s affidavit shall also contain the following certification: “This determination was made with due diligence by the undersigned based on rating information which was available or should have been available to an insurance broker in the structured settlement trade”;
(H)  In the event that the parties to the action desire to place the annuity with an annuity carrier licensed in New Hampshire which does not meet the above criteria, the court may consider approving the same, but only if the annuity obligation is bonded by an independent insurance or bonding company, licensed in New Hampshire, in the full amount of the annuity obligation; and
(I)  The court reserves the right to require other reasonable security in any structured settlement if the circumstances should so require.

(3)  The court may, for good cause shown, approve a structured settlement that does not comply with the provisions of paragraph (k). If the Court approves a settlement that does not comply with the provisions of paragraph (k), the court shall make specific findings on the record explaining the reason(s) for approving the settlement.

|456|5706

Rule 3.41

Reserved for future use.

|456|5711

Rule 3.42. Default

(a)  When a party against whom a Complaint or other pleading (see Rule 3.6) requiring a response has been filed fails to timely Answer or otherwise defend, the party shall be defaulted.  No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require. The court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

(b)  Final default may be entered by the court, sua sponte, where appropriate, or by motion of a party, a copy of which shall be sent to all parties defaulted or otherwise.

(c)  In all cases in which final default is entered, whether due to failure to file an Answer or otherwise, the case shall be marked “final default entered, continued for entry of judgment or decree upon compliance with Rule 3.42.”  A copy of the court’s order and any subsequent orders shall be mailed or electronically delivered to all parties, defaulted or otherwise.

(d)  The non-defaulting party may then request entry of final judgment or decree, by filing a motion, together with an affidavit of damages.  Where the default is based on a failure to file an Answer, the motion shall include a military service statement. The moving party shall certify to the court that a copy of all pleadings has been mailed to the defaulting party and shall include a notice that entry of final judgment or decree is being sought. Any party may request a hearing as to final judgment or decree.  All notices under this rule shall be sufficient if mailed to the last known address of the defaulting party.

(e)  A hearing as to final judgment or decree shall be scheduled upon the request of any party.  Otherwise, the court may enter final judgment or decree based on the pleadings submitted or exercise its discretion to hold a hearing depending on the circumstances of the default, the sufficiency of the pleadings and the nature of the damages sought or relief requested.

(f)  If the court schedules a hearing, all parties, defaulted or otherwise, shall receive notice and an opportunity to be heard.

|456|5716

Rule 3.43. Procedure After Trial

A motion to set aside verdict or decree shall be filed within 10 days from the date on the court’s written notice with respect to same, which shall be mailed by the court on the date of the notice.  In each case, the motion shall fully state all reasons and arguments relied on.

|456|5721

Rule 3.44. Verdict upon Negotiable Instrument

When a verdict is rendered upon a negotiable instrument, or similar evidence of indebtedness, the original shall be filed with the clerk before judgment or execution is issued, unless the court otherwise orders.

|456|5726

Rule 3.45. Taxation of Costs

(a)  Costs. Costs shall be allowed as of course to the prevailing party as provided by these rules, unless the court otherwise directs.

(1)  Taxation of Costs.  Upon written request, the clerk shall tax costs in any case, which shall include the fees of the court and fees for service of process which are documented in the court file.
(2)  Any party claiming other allowable costs shall file a motion to allow costs together with an itemized, verified bill of all costs requested, to be ruled upon by the court.  Any party aggrieved by the court’s order concerning costs may appeal therefrom within 30 days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

(b)  Allowable Costs. The following costs shall be allowed to the prevailing party: Fees of the court, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

|456|5731

Rule 3.46. Appeals and Transfers to Supreme Court

(a) Interlocutory Appeals. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the trial court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the clerk thereof.

(b)  Denial of Motion to Dismiss Challenging Personal Jurisdiction, Process and/or Service of Process.  When, pursuant to Rule 3.9(e), a party files a timely Motion to Dismiss challenging the court’s personal jurisdiction, sufficiency of process and/or sufficiency of service of process and the motion is denied, the order denying the motion may be appealed pursuant to Supreme Court Rule 7.  See Rule 3.9(e) (a party will be deemed to have waived a challenge to personal jurisdiction, sufficiency of process and/or sufficiency of service if the party does not seek review by the supreme court of the denial of the Motion to Dismiss within 30 days; the supreme court’s declining to accept the appeal will not preclude the party from challenging the trial court’s ruling on personal jurisdiction, sufficiency of process and/or sufficiency of service of process in an appeal from a final judgment of the trial court). 

(c)  Judgment on Multiple Claims or Involving Multiple Parties.

(1) When, in a civil action that presents more than one claim for relief – whether as a claim, counterclaim, cross-claim, or third party claim – or where multiple parties are involved, the court enters an order that finally resolves the case as to one or more, but fewer than all, claims or parties, the court may direct that its order, or a portion of its order, be treated as a final decision on the merits as to those claims or parties if the court:

(A) explicitly refers to this rule;
(B) identifies the specific order or part thereof that is to be treated as a final decision on the merits;
(C) articulates the reasons and factors warranting such treatment; and
(D) finds that there is an absence of any just reason for delay as to the party or claim that is to be severed from the remainder of the case. An order bifurcating or otherwise severing a civil action shall not, by itself, result in any order being treated as an appealable final decision on the merits unless all of the requirements of Rule 3.46(c)(1) are met. 

(2)  Procedure on Appeal.

(A) Any appeal from such an order shall be considered a mandatory appeal for purposes of Supreme Court Rule 7 if a final decision on the merits of the entire case would be a mandatory appeal, and shall be filed in accordance with Supreme Court Rules.
(B)  Prior to accepting an appeal from an order that the Circuit Court directed be treated as a final decision on the merits pursuant to Rule 3.46(c)(1), the Supreme Court may review the trial court’s reasons and factors warranting treating the order as a final decision on the merits.  If the Supreme Court determines, after notice to the parties and an opportunity for the filing of brief memoranda, that the Circuit Court clearly erred by directing that the order be treated as a final decision on the merits, the Supreme Court shall vacate the portion of the order directing that it be treated as a final decision on the merits, and otherwise dismiss the appeal without prejudice.

(d) Final Judgment. In all actions in which a verdict is entered, or in which a motion for a nonsuit or directed verdict is granted, or in which any motion is acted upon after verdict, all appeals relating to the action shall be deemed waived and final judgment shall be entered as follows, unless the court has otherwise ordered, or unless a Notice of Appeal has then been filed with the Supreme Court pursuant to its Rule 7:

(1)  Where no motion, or an untimely filed motion, has been filed after verdict, on the 31st day from the date on the court’s written notice that the court has made the aforementioned entry, grant or dismissal; or
(2)  Where a timely filed motion has been filed after verdict, on the 31st day from the date on the court’s written notice that the court has taken action on the motion.

(e)  The court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court.  See Supreme Court Rule 21(6).

(f)  In civil actions in which a mistrial is declared, appeals from the denial of motions for nonsuit or directed verdict shall not be transferred to the Supreme Court before verdict following further trial unless the court shall approve an interlocutory appeal pursuant to Supreme Court Rule 8.

(g)  The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.

Comment

Rule 3.46(b), consistent with Rule 9(e) and Mosier v. Kinley, 142 N.H. 415, 423-24 (1997), provides that an order denying a timely-filed Motion to Dismiss challenging personal jurisdiction, sufficiency of process and/or sufficiency of service shall be appealable under Supreme Court Rule 7 without the need for the Circuit Court to take the actions set forth in Rule 3.46(c)(1).

Rule 3.46(c)(1) alters the rule announced in Germain v. Germain, 137 N.H. 83, 85 (1993), that “when a trial court issues an order that does not conclude the proceedings before it, for example, by deciding some but not all issues in the proceedings or by entering judgment with respect to some but not all parties to the action, we consider any appeal from such an order to be interlocutory.”  Rule 3.46(c)(1) authorizes the Circuit Court to designate certain orders that do not conclude the proceedings before it as final decisions on the merits that can be immediately appealed to the Supreme Court.  In Germain, the Supreme Court indicated that under some circumstances, an order bifurcating a case might suffice to convert otherwise interlocutory orders into final decisions on the merits.  Rule 3.46(c)(1), however, explicitly provides that a bifurcation order alone will no longer suffice; rather, the Circuit Court must comply with the requirements of Rule 3.46(c)(1)(A) through (D) if the court intends for an order that finally resolves the case as to one or more, but fewer than all, claims or parties to be treated as a final decision on the merits as to those claims or parties.

Rule 3.46(c)(2) provides that, prior to accepting the appeal, the Supreme Court may review the Circuit Court’s findings under Rule 3.46(c)(1)(C) and (D).  If, after providing the parties with the opportunity to file brief memoranda, the Supreme Court concludes that the Circuit Court clearly erred in its conclusion that the order should be treated as a final decision on the merits, the Supreme Court shall vacate that part of the order and otherwise dismiss the appeal.  The dismissal of the appeal is without prejudice to any party’s ability to file an appeal after the entire action is concluded in the Superior Court.

|456|5736

Rule 3.47. Attachments

(a)  Attachments with Notice.  The following procedure is to be used where the plaintiff requests that the court authorize an attachment of the defendant’s property, using the method requiring notice to the defendant and an opportunity for the defendant to be heard before the court renders its decision.

(1)  The Motion to Attach shall be executed under oath, and accompanied by the Notice to defendant as well as a copy of the Order form.
(2) The Motion to Attach shall be fastened to the Complaint, unless the case is electronically filed.
(3)  Copies of the Complaint and Summons are then to be given to the sheriff or his or her deputy for service on the defendant; immediately after such service, that Complaint, together with the sheriff’s Return of Service, is to be entered with the court.
(4)  If the Motion to Attach is granted, the plaintiff’s attorney, non-attorney representative or self-represented plaintiff is authorized to fill out a Writ of Attachment in accordance with the Order granting the motion.  If permission is granted to make a real estate attachment, the attachment Writ together with the court’s Order thereon may be served on the Registry of Deeds by the sheriff, or his or her deputy, the plaintiff, his or her attorney or any other person to effect the real estate attachment. To effect all other attachments, the Attachment Writ together with the court’s Order thereon must be served by the sheriff, or his or her deputy. The Return of Service is to be filed with the court immediately on completion of the attachment. No additional service upon the defendant is required to perfect an attachment, provided that a Notice of Intent has been served upon the defendant as provided in RSA 511-A:2.

(b)  Attachments without Notice (Ex Parte). The following procedure is to be used where the plaintiff requests permission to attach using the method that does not require notice to the defendant prior to the attachment:

(1)  The Motion for Attachment shall be executed under oath, and accompanied with the Notice to defendant and Order form;
(2)  The motion, and copies, along with the Complaint, are to be filed in court, and an entry fee paid;
(3)  If the motion is denied, the plaintiff may move for attachment under the provisions of RSA 511-A:3.
(4)  If the motion is granted, the plaintiff or his or her representative is authorized to prepare a Writ of Attachment in accordance with the Order granting the request.
(5)  A certified copy of the Motion, the Notice to the defendant, and the court’s order thereon shall be fastened to the face of the Writ of Attachment.
(6)  The Writ of Attachment, Complaint, and Summons, together with copies, shall be delivered to the sheriff with directions to serve them within the time directed by the court’s order. In those cases where permission is granted to make a real estate attachment, the Attachment Writ together with the court’s Order thereon may be served on the Registry of Deeds by the sheriff, or his or her deputy, the plaintiff, his or her attorney or any other person to effect the real estate attachment before the Writs of Attachment and Summons, together with copies, are delivered to the sheriff.  The Returns of Service are to be filed immediately after service has been completed.

|461|5741

Rule 3.48

Reserved for future use.

|461|5746

Rule 3.49. Security

When the plaintiff is a non-resident, he or she shall furnish security for costs in such amount and within such time as the court may order.

|461|5751

Rule 3.50. Deposit in Court

(a)  In proper cases, the defendant may pay into court any sum of money which he or she admits to be due, accompanied by the general issue as to the balance; and, if the plaintiff shall refuse to accept the same with his or her costs, in full satisfaction of his or her claim, such sum shall be struck out of the Complaint; and unless the plaintiff shall prove that a larger sum be due him or her, he or she shall have no costs, but the defendant shall be allowed costs from the time of such payment.

(b)  When a set-off, counterclaim or recoupment shall be filed and a sum of money paid into court as the balance due the plaintiff, the costs of the plaintiff up to that time shall also be paid into court; and the defendant, if he or she prevails, shall be allowed only his or her subsequent costs.

|461|5756

Rule 3.51 Periodic Payments

See Rule 1.21.

|461|5761

Rule 3.52

Reserved for future use.

|461|5766

SMALL CLAIMS ACTIONS

SMALL CLAIMS ACTIONS

5771

Rule 4.1. Filing Small Claim Complaint

(a) The Claim

(1)  Small claim cases shall be filed electronically as required under the New Hampshire Circuit Court Electronic Filing Pilot Rules unless an exemption to electronic filing as allowed under the Rules is requested and granted.

(2)  A small claim shall be set forth on a court generated Small Claim Complaint form. It shall not be considered filed until the fee has been paid or a properly supported motion to waive filing fee has been submitted. (See District Division Rule 3.3 for filing fees.)

(3)  The small claims filing fee shall not be waived except upon presentation of facts which demonstrate extraordinary circumstances.

(4)  The claim must include:

(A) The business or other relationship between the plaintiff and defendant and a description setting forth with specificity the reason(s) the plaintiff believes that the defendant owes money to the plaintiff;

(B) The amount that the plaintiff claims that the defendant owes. NOTE: If the plaintiff claims to be owed more than $10,000, the filing of the small claim complaint will waive any amount due beyond the small claims limit of $10,000. If the plaintiff does not want to waive the amount over $10,000, a civil writ must be filed instead of a small claim;

(C) If the basis for recovery asserted in the small claim complaint is the extension of consumer credit, the plaintiff shall file a Statement of Consumer Debt which provides the following:

(i)  If the plaintiff is a person or entity other than the original creditor, a statement that the plaintiff has a right to assert the claim and a listing of all prior owners of the claim commencing with the original creditor;

(ii) The account number/account identifier, if any, assigned to the obligation. The account number/account identifier shall be redacted to show only the last four digits;

(iii) The date of the last payment made, if any;

(iv) A designation of principal, interest, charges and fees calculated either in accordance with the laws applicable to the obligation or in accordance with the practice in credit card cases of treating the charge off balance as principal and itemizing any additional interest or fees after that date.

(b) The Parties

(1) The following information shall be included in the small claim filing:

(A) Name, address (residence and mailing) and date of birth of the plaintiff(s). The date of birth shall be submitted on the Small Claim Confidential Information Sheet and shall be confidential as to non-parties to comply with the New Hampshire Circuit Court Electronic Filing Pilot Rules. Access to these documents shall be pursuant to District Division Rule 1.26;

(B) Name, address (residence and mailing) of the defendant(s);

(C) If the plaintiff is a business entity, the nature of the business entity;

(D) If the defendant is a business entity:

(i)  The nature of the business entity; and

(ii) The individual who is to be served with the small claim and the capacity in which that individual is to be served (e.g. agent for service, corporate officer, member, manager, owner) and that individual's address (physical and mailing) if different from that of the business entity.

(2) A person who files or responds to a small claim on behalf of another individual or entity must file the statement required by District Division Rule 1.3(D). In addition, one of the following authorizations must be filed with the court:

(A) For an individual acting on behalf of another, a power of attorney or other valid authorizing document authorizing the filing of legal actions; or

(B) For an individual acting on behalf of an entity:

(i) For a corporation, a resolution adopted by the board of directors;

(ii) For a partnership, an authorization signed by a general partner;

(iii) For a trust, an authorization signed by a trustee;

(iv) For a limited liability company, an authorization signed by a member with management authority. (See also RSA 503:11.)

(C)The requirements of this paragraph (2) do not apply to attorneys who are licensed to practice law in the State of New Hampshire

5776

Rule 4.3. Responding to Small Claim Complaint or Counterclaim

(a)  Response

(1) The defendant shall file a court generated Response to Small Claim form electronically, as required under the New Hampshire Circuit Court Electronic Filing Pilot Rules. When the defendant is served by first class mail, the response shall be filed by the date indicated on the notice which shall be thirty (30) days from the date the court mails the notice, or if the defendant is served as in all other actions at law the response shall be filed by the return date selected by the court which shall be not less than 45 days from the date the court forwards the notice to the plaintiff for service.

(2)  The response shall include the name, address (residence and mailing) and date of birth of the defendant(s). The date of birth shall be submitted on the Small Claim Confidential Information Sheet and shall be confidential as to non-parties to comply with the New Hampshire Circuit Court Electronic Filing Pilot Rules. Access to these documents shall be pursuant to District Division Rule 1.26. If the response includes a request for a hearing, the defendant shall indicate the amount of the claim which is not in dispute and provide a brief explanation of the basis for the amount in dispute.

(3)  If the defendant is filing a response on behalf of another individual or entity, the defendant must comply with Rule 4.1(b)(2).

(b)  Demand for Jury Trial. When the debt or damages claimed exceed $1,500.00, the defendant may claim trial by jury pursuant to RSA 503:1 III within the time allowed by statute or at the same time as the filing of a timely response. The small claims transfer fee shall be paid by the defendant at the time the request is made.

(c) Failure to Respond. If the defendant fails to file a timely response, upon the filing by the plaintiff of a Military Statement and any other documents required by the court, a default judgment may be issued for the plaintiff.

(d) Counterclaim

(1)  Any claim that the defendant wishes to file against the plaintiff that is related to the plaintiff's claim is known as a counterclaim and may be filed with the defendant's response, but shall be filed no later than the return date indicated on the original notice. If the defendant fails to file a counterclaim with the response or before the return date selected by the court, the defendant may file a request with the court to allow a late counterclaim, which may be granted only upon good cause shown.

(2)  A counterclaim shall not be considered filed until the filing fee has been paid or a properly supported motion to waive filing fee has been submitted. (See District Division Rule 3.3 for filing fees.)

(e) Response to Counterclaim. The plaintiff is not required to respond to a counterclaim. When the debt or damages claimed in the counterclaim exceeds $1500.00, the plaintiff may claim trial by jury pursuant to RSA 503:1, III within the time allowed by statute but in no event later than 14 days from the date that the counterclaim is filed with the court. For good cause shown, the court may permit a request for transfer to Superior Court to be filed after the 14 day limitation. The small claim transfer fee shall be paid by the plaintiff at the time the request is made.

5786

Rule 4.4. Pre-trial hearing

(a)  In every small claim case in which the defendant has filed a timely response requesting a hearing, the court may schedule a pre-trial hearing.

(b)  Attendance at the pre-trial hearing shall be mandatory. Anyone appearing on behalf of another, including an attorney, will be expected to have settlement authority or telephonic access to the represented party. Failure by either party to attend the pre-trial hearing shall result in a judgment in favor of the other party. If neither party appears at the pre-trial hearing, the case shall be dismissed. A default judgment shall not be stricken except upon a finding of good cause by the court.

(c)  The court will provide the opportunity for parties to mediate on the day of the pre-trial hearing. The court may require parties in cases subject to mandatory mediation to mediate on the day of the pre-trial hearing or on a later date. If the parties reach an agreement, the agreement shall contain an acknowledgement that they understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(d)  As a result of the pre-trial hearing, the court will make pre-trial orders on all issues deemed appropriate and schedule the trial.

(e)  Parties are not required to bring witnesses or evidence to the pre-trial hearing. Parties may bring evidence which would be helpful during any discussion between the parties, including mediation.

5791

Rule 4.5. Discovery and Rules of Evidence

Formal discovery, such as interrogatories, depositions, requests to produce documents, requests for admissions and other forms of discovery are not permitted in small claims cases unless ordered at the pre-trial hearing. The Rules of Evidence shall not apply in small claims cases.

5796

Rule 4.6. Trial

(a)  The trial in small claims cases shall be informal. All parties shall be required to take an oath or affirmation but may be permitted to testify informally. The court may hear the case by offers from each of the parties as to what their evidence would prove if the court were to hear all witnesses and documents submitted. However, either party has the right to object to this procedure.

(b)  Parties shall bring to the trial all witnesses, documents or other evidence upon which they intend to rely to prove or defend their case. The court will not make contact with persons not in attendance or accept evidence not presented during the trial.

(c)  If the plaintiff fails to appear, the judgment shall be issued in favor of the defendant. If the defendant fails to appear, a judgment shall be issued in favor of the plaintiff. If neither party appears, the case shall be dismissed.

5801

Rule 4.7. Judgment

(a)  At the conclusion of the trial, the court may render its decision immediately. In no event shall the court issue a written decision more than thirty (30) days from the date of the trial.

(b)  If the court issues judgment for the plaintiff immediately after the presentation of the case during a trial at which both parties are present, the court shall inquire into the defendant's ability to pay the judgment from non-exempt assets and may require the defendant to complete a Statement of Assets and Liabilities from which the defendant's ability to pay the judgment from non-exempt assets in full or in installment payments may be determined. The court may then issue an order regarding the defendant's ability to pay the judgment, including any payment over time. The Statement of Assets and Liabilities shall be confidential as to non-parties. Access to these documents shall be pursuant to District Division Rule 1.26. The court may, in its discretion upon request of the defendant, continue the hearing to a future date to allow the defendant additional time to complete the Statement of Assets and Liabilities. In this circumstance, the plaintiff shall not be required to file a Motion for Periodic Payments.

(c)  If the court does not issue its decision immediately and address payment issues as set forth immediately above, and the judgment is for the plaintiff, the plaintiff will be required to file a Motion for Periodic Payments (Rule 4.10) if the plaintiff wishes to have a hearing to determine the defendant's ability to pay the judgment.

(d)  If the defendant confesses judgment at any time, the court shall immediately schedule a payment hearing or the plaintiff may file a Motion for Periodic Payments (Rule 4.10) upon receipt of written notice of the confession of judgment. If the defendant fails to appear at the hearing after notice is given, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued. In all other respects the process outlined in Rule 4.10 below shall be followed.

(e)  The plaintiff may be required to file a separate statement referred to as a Statement of Damages/Taxation of Costs.

5806

Rule 4.8. Motion for Reconsideration

(a)  A motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the clerk's written notice of the order or decision. The motion shall state the particular points of law or fact that the court has overlooked or misapprehended and shall contain the arguments in support of the motion as the filing party decides to present. A hearing on the motion shall not be permitted except by order of the court.

(b)  No response to a motion for reconsideration or other post-decision relief shall be required unless ordered by the court, but any answer or objection must be filed within ten (10) days of the filing of the motion.

(c)  If a motion for reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without re-hearing or may schedule a further hearing.

(d)  The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

5811

Rule 4.9. Appeal

The party against whom a judgment has been issued may appeal the decision to the New Hampshire Supreme Court according to its Rules. The appeal must be filed with the Supreme Court within thirty (30) days of the rendition of judgment or of the clerk's notice of the judgment, whichever is later.

5816

Rule 4.10. Periodic Payments

(a)  A Motion for Periodic Payments may be made at the time judgment is issued or electronically thereafter. This motion may be made orally in the courtroom if the defendant is present when the verdict or judgment is awarded, in which case the court shall conduct a payment hearing. If the Motion for Periodic Payments is filed electronically, the court shall issue orders of notice, subject to paragraph B below, requiring the defendant to appear for a court hearing. The court may require the plaintiff to file a Statement of Damages/Taxation of Costs prior to the issuance of orders of notice or prior to a hearing on the motion.

(b)  Upon receipt of the notice of filing from the court or upon receipt of the copy forwarded by the plaintiff, the defendant may waive formal service of process of any notices related to the Motion for Periodic Payments.

(c)  If the defendant does not elect to waive formal service, the court shall forward the orders of notice to the plaintiff. The plaintiff shall cause the orders of notice to be served upon the defendant either in-hand or by certified mail, restricted delivery, return receipt requested. If the plaintiff elects to serve the orders of notice by certified mail, restricted delivery, return receipt requested, and if the return receipt is not signed by the defendant, then in-hand service shall be required.

(d)  At the hearing on the Motion for Periodic Payments, it shall be the burden of the plaintiff to establish that the defendant has the ability to pay the judgment from non-exempt assets either in full or in installments. The defendant may be required to submit a Statement of Assets and Liabilities which shall be confidential as to non-parties. The defendant may be questioned under oath as to his/her property and ability to pay the judgment. Either party may introduce oral and written evidence as the court deems relevant. If the parties reach an agreement for payment, the agreement shall include an acknowledgement that the parties understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(e) If the defendant fails to appear at the hearing and proof of service has been provided by the plaintiff, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued.

(f)  If a Motion for Periodic Payments is denied, the plaintiff shall not file another motion against the same defendant upon the same judgment within three (3) months unless the court otherwise allows for good cause.

(g)  Reasonable costs and fees incurred by the plaintiff in carrying out the provisions of this rule, in addition to statutory interest, shall be paid by the defendant.

5821

Rule 4.11. Contempt (Following Payment Order)

(a)  Contempt proceedings for failure to comply with a payment order may be initiated by the plaintiff by Motion for Contempt for Non-Compliance with Payment Order and will result in the issuance of an order of notice to the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The court may require the plaintiff to file a Statement of Damages/Taxation of Costs prior to the issuance of orders of notice or prior to a hearing on the motion.

(b)  Upon receipt of the notice of filing from the court or upon receipt of the copy forwarded by the plaintiff, the defendant may waive formal service of process of any notices related to the contempt proceeding.

(c)  If the defendant does not elect to waive formal service, the court shall forward the orders of notice to the plaintiff. The plaintiff shall cause the orders of notice to be served upon the defendant either in-hand or by certified mail, restricted delivery, return receipt requested. If the plaintiff elects to serve the notice of hearing by certified mail, restricted delivery, return receipt requested, and if the return receipt is not signed by the defendant, then in-hand service shall be required.

(d)  At the contempt hearing, it shall be the burden of the plaintiff to establish that the defendant has failed to comply with the court's order. The defendant will then be required to show cause why the defendant should not be held in contempt for failure to comply with the court's order.

(e)  If the defendant fails to appear at the hearing and proof of service has been provided by the plaintiff, the court may proceed, and orders may be made in the defendant's absence or an order for arrest may be issued.

(f)  As a result of the hearing, the court may find the defendant in contempt and may make such orders as are appropriate, including a commitment to the house of corrections until the contempt is discharged. A contempt finding shall not end the proceedings nor satisfy any order for periodic payments. Future violations of the court's order for payments may also be dealt with as contempt.

(g)  Reasonable costs and fees incurred by the plaintiff in carrying out the provisions of this rule, in addition to statutory interest, shall be paid by the defendant.

5826

Rule 4.12. Mediation and Agreements

(a)  Mediation is voluntary in small claims cases if the claim is $5,000.00 or less. Mediation in these cases will be scheduled and may be held on the day of the pre-trial hearing and with the agreement of all parties to a case.

(b)  Mediation is mandatory in small claims cases if the claim is more than $5,000.00. Mediation in these cases will be scheduled and may be held on the day of the pre-trial hearing. If the case is scheduled for mandatory mediation in accordance with RSA 503:1, whether at the pre-trial hearing or on another date, and a party fails to appear, judgment may be rendered in favor of the other party. If neither party appears for a mandatory mediation session, the case shall be dismissed.

(c)  Agreements reached through mediation or otherwise must include a judgment amount. The parties to any agreement, whether mediated or by agreement of the parties without mediation, shall submit an acknowledgement that they understand that exempt income and assets may not be used in the enforcement of any judgment or agreement, and that failure to comply with the terms of the agreement may result in the matter being returned to the court's docket for a hearing as may be necessary.

(d)  Any communication made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.

(e)  The Administrative Judge of the Circuit Court, in consultation with the ADR Coordinator, shall determine the mediation needs for each Circuit Court location. Assignment of mediators shall be based on the mediation needs of each court.

5831

Rule 4.13. Securing Judgment

(a)  Post-Judgment

(1)  A party who has received a judgment may file a motion to request a writ of attachment to secure payment of a final judgment for money damages by filing a motion with the court. Attachments made pursuant to this rule shall remain in effect until the judgment is satisfied or until the attachment expires by law. Attachments may only be made using the Writ of Attachment form to be obtained from the Clerk's office upon the granting of an attachment.

(2)  A small claims judgment may also be secured by real estate by recording or re-recording, at any time during the duration of the judgment, a certified copy of the judgment with the registry of deeds of the county in which the real estate is located.

(b)  Discharge of Attachments

(1)  When a small claims judgment secured by real estate is satisfied, the plaintiff shall deliver a discharge directly to the defendant within thirty (30) days. It shall be the responsibility of the defendant to record the discharge.

(2)  If the plaintiff fails to deliver a discharge within the thirty (30) days, or if exigent circumstances require an immediate discharge, the defendant may petition the court in which the judgment was issued for a court ordered discharge. The burden shall be on the defendant to establish that the judgment has been satisfied pursuant to RSA 503:12.

(3)  This rule shall apply to cases in which the court has granted an attachment and to cases in which the plaintiff has recorded a certified copy of a judgment in accordance with RSA 503:12.

5836

LANDLORD AND TENANT ACTIONS

LANDLORD AND TENANT ACTIONS

5841

Rule 5.1. Landlord and Tenant Writ.

The Clerk shall deliver blank writs for landlord and tenant actions to no one except attorneys who have been admitted to the Supreme Court or to individuals who shall elect to prosecute their own suit or to have a citizen of good character who is not an attorney of the Court prosecute their suit for them.  Blank writs delivered to individuals not attorneys of the Court shall be entitled by the Clerk.

    No attorney who has been admitted by the New Hampshire Supreme Court shall cause any blank writ to be used by any other person than himself or some attorney of the Court.

5846

Rule 5.2. Return Day.

Return day for writs brought pursuant to RSA 540 shall be only on such days that the Court is open for business. There shall be no trial on the return day.

5851

Rule 5.3. Entry of Actions.

A. Landlord and Tenant Writs shall be entered with the Court prior to service of process on the defendant. At the time of entry, the entry fee is payable to the Clerk of Court and the case shall be docketed. At the time of entry, the writ shall be accompanied by proof of service of the eviction notice. Proof of service must be shown by a true and attested copy of the notice accompanied by an affidavit of service, but the affidavit need not be sworn under oath. See RSA 540:5.

    B. Writs may be accepted by the Court where a mailing address has been listed by the landlord, provided that the landlord also signs a statement on the writ attesting that the Court has jurisdiction over the action.

    C. The return of service of process upon the defendant shall be filed by the plaintiff with the Court on or before the earlier of the following: (1) the day following the return day named in the writ; or (2) the time at which the hearing scheduled pursuant to RSA 540:13, V is scheduled to begin.

    D. The clerk may refuse to accept, by notification in writing, any filing that the clerk determines does not comply with these rules. In the event an objection is made to such determination, a written motion may be made to the court to rule on such determination. The written notification shall state: (1) all the reasons why the filing is not being accepted; and (2) that in the event the filing party objects to such determination, a written motion shall be made to the court to rule on such determination within 15 days of the date of the notification.

5856

Rule 5.4. Failure to Answer.

A. If the defendant does not file an appearance on or before the return day, a notice of default shall be issued that the plaintiff may recover possession of the demanded premises and costs; and, if the writ includes a claim for unpaid rent the notice of default may include the amount of unpaid rent claimed, not to exceed fifteen hundred dollars ($1,500.00) in addition to the costs. A writ of possession and notice of judgment shall also issue, but not until the expiration of at least five business days after the Clerk's notice of default and upon the filing of a military affidavit and, if the writ includes a claim for unpaid rent, an affidavit of damages.

B. No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require, upon motion. A motion to strike the default shall: (1) set forth all the facts and circumstances explaining why the tenant defaulted and all the reasons why the court should strike the default; (2) specifically set forth the defendant’s defense to the landlord-tenant writ filed by the plaintiff and all the facts upon which the defense is based; and (3) state that the defendant understands that making a false statement in the pleading may subject the defendant to criminal penalties.

C. If the defendant files a motion to strike the default prior to the issuance of a writ of possession and notice of judgment, no writ of possession shall issue prior to the Court’s ruling upon the motion. If the motion to strike the default is denied, then a notice of judgment shall be issued, and the writ of possession shall not issue until the expiration of the seven day period for filing a Notice of Intent to Appeal set forth in RSA 540:20. If the defendant files a timely Notice of Intent to Appeal, then the writ of possession shall not issue until the expiration of the appeal period set forth in Supreme Court Rule 7, except as otherwise provided in RSA 540:25, I, or following an order from the Supreme Court dismissing the defendant’s possessory appeal or deeming the defendant’s possessory appeal waived for failure to comply with RSA 540:25, II. If the possessory action was instituted for nonpayment of rent, the Court shall determine and set forth in its order denying the motion to strike the default the amount which must be paid into Court on a weekly basis in the event the defendant appeals. This amount is equal to the actual weekly rent or the periodic rent converted into a weekly sum, adjusted for housing assistance, if applicable.

5861

Rule 5.5. Appearance, Setoff and Counterclaims.

A. If the defendant files an appearance in an action which has been docketed prior to service of process in accordance with Rule 5.3(A), the matter will be set for trial to occur within ten days following the date of the filing of the appearance. If (1) service of process occurs prior to the action being docketed, (2) the Court waives the violation of Rule 5.3(A) and allows the action to be docketed, and (3) the defendant files an appearance prior to the action being docketed, then trial will be scheduled to occur within ten days following the date of the docketing of the action.

    B. If the plaintiff claims unpaid rent, and if the defendant files any claim or counterclaim which offsets or reduces the amount owed to the plaintiff, then any such claim or counterclaim must be filed on or before the RETURN DAY set forth in the Landlord and Tenant Writ and a copy thereof shall be mailed or delivered to the plaintiff or plaintiff's attorney. No such claim or counterclaim shall be afterwards received except upon leave of Court for good cause shown and upon such terms as justice may require.

    C. The Court may in all cases order either party to plead and also to file a statement in sufficient detail to give to the adverse party and to the Court, reasonable knowledge of the nature and grounds of the action or defense. Upon failure to comply with such order, the Court may take such action as justice may require.

5866

Rule 5.6. Discovery and Continuances.

A. Both parties to a landlord and tenant action shall have a right to engage in discovery prior to the hearing on the merits, subject to the time frames set forth below:

        1. All requests for discovery shall be made within five (5) days of the RETURN DAY.

        2. Written interrogatories shall be governed by Rule 3.23 with the exception of the following: responses to interrogatories shall be made within 14 days after receipt of the interrogatories. Requests for admissions and production of documents shall be made within fourteen (14) days after receipt of said requests.

        3. Depositions shall be taken no less than three (3) days from the date of the notice of deposition and within no less than seven (7) days of the scheduled trial date. Depositions shall otherwise be governed by Rule 3.26.

    B. Upon the request of any party, the Court may grant a continuance of the scheduled trial date to allow time to complete discovery. Landlord and tenant actions shall be given priority on the Court's docket and, whenever possible, rescheduled within thirty (30) days.

5871

Rule 5.7. Writ of Possession and Judgment.

A. If the defendant fails to appear for trial, or if upon trial it is considered by the Court that the plaintiff has sustained the complaint, judgment shall be rendered that the plaintiff recover possession of the demanded premises and costs, and a writ of possession shall issue.

        1. If the defendant failed to appear for trial, then the writ of possession and notice of judgment shall not issue until the expiration of at least five business days after the Clerk's notice of default and, if the writ includes a claim for unpaid rent, upon the filing of an affidavit of damages. No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require, upon motion.  A motion to strike the default shall: (1) set forth all the facts and circumstances explaining why the tenant defaulted and all the reasons why the court should strike the default; (2) specifically set forth the defendant’s defense to the landlord-tenant writ filed by the plaintiff and all the facts upon which the defense is based; and (3) state that the defendant understands that making a false statement in the pleading may subject the defendant to criminal penalties.

If the defendant files a motion to strike the default prior to the issuance of a writ of possession and notice of judgment, no writ of possession shall issue prior to the Court’s ruling upon the motion.  If the motion to strike the default is denied, then a notice of judgment shall be issued, and the writ of possession shall not issue until the expiration of the seven day period for filing a Notice of Intent to Appeal set forth in RSA 540:20.  If the defendant files a timely Notice of Intent to Appeal, then the writ of possession shall not issue until the expiration of the appeal period set forth in Supreme Court Rule 7, except as otherwise provided in RSA 540:25, I, or following an order from the Supreme Court dismissing the defendant’s possessory appeal or deeming the defendant’s possessory appeal waived for failure to comply with RSA 540:25, II.  If the possessory action was instituted for nonpayment of rent, the Court shall determine and set forth in its order denying the motion to strike the default the amount which must be paid into Court on a weekly basis in the event the defendant appeals.   This amount is equal to the actual weekly rent or the periodic rent converted into a weekly sum, adjusted for housing assistance, if applicable.

2. If upon trial the plaintiff sustained the complaint, then the writ of possession shall not issue until the expiration of the seven day period for filing a Notice of Intent to Appeal set forth in RSA 540:20. If the defendant files a timely Notice of Intent to Appeal, then the writ of possession shall not issue until the expiration of the appeal period set forth in Supreme Court Rule 7, except as otherwise provided in RSA 540:25, I, or following an order from the Supreme Court dismissing the defendant's possessory appeal or deeming the defendant's possessory appeal waived for failure to comply with RSA 540:25, II.

    B. In all cases in which a judgment for plaintiff is rendered where the action is based upon nonpayment of rent, the Court shall determine and set forth in its order the amount which must be paid into Court on a weekly basis in the event defendant appeals. This amount is equal to the actual weekly rent or the periodic rent converted into a weekly sum, adjusted for housing assistance, if applicable.

    C. In all cases which include a claim for unpaid rent the Court's judgment shall include a money judgment on the plaintiff's claim and any setoff or counterclaim by defendant.

5876

Rule 5.8. Damages.

A. The Landlord and Tenant Writ shall contain a space for the plaintiff to claim damages for nonpayment of rent and require a statement of the amount thereof.

B. In rendering judgment the Court is limited to a judgment of not more than fifteen hundred dollars ($1,500.00).

5881

Rule 5.9. Notice Form.

A. The Landlord and Tenant Writ shall incorporate or have attached to it the following notice:

If you desire to be heard on the matters raised in these papers, you must notify the Court by filing an appearance form with the Clerk of Court on or before the date specified on this writ next to the words "RETURN DAY".  (These forms are available at the Clerk's Office.)  Once you have filed your appearance, a date for a hearing will be set by the court and you will be notified by mail.  You do not have to physically appear in court on the RETURN DAY since there will be no hearing on that day.  If the landlord claims unpaid rent and if you file a claim or counterclaim which offsets or reduces the amount owed to the landlord, you must file the claim or counterclaim on or before the RETURN DAY shown on this Landlord and Tenant Writ.  Space is provided on the appearance form for making the claim or counterclaim.  IF YOU DO NOT FILE AN APPEARANCE FORM, IT WILL BE ASSUMED YOU DO NOT WISH TO CONTEST THE ACTION, A DEFAULT JUDGMENT WILL BE ENTERED AGAINST YOU, WHICH MAY INCLUDE ANY UNPAID RENT CLAIMED BY THE LANDLORD, AND A WRIT OF POSSESSION MAY ISSUE.

B. Whenever the defendant does not file an appearance on or before the return day, the Clerk’s notice of default shall include the language set forth in Rule 5.4. Whenever the defendant fails to appear for trial, the Clerk’s notice of default shall include the language set forth in Rule 5.7(A)(1).

5886

Rule 5.10. Post Trial Motions and Appeals.

A. Post trial motions in all cases shall be filed within seven days after the date of the Clerk's Notice of Judgment.

    B. Appeals are initiated by filing a Notice of Intent to Appeal with the Clerk within seven days after the date of the Clerk's Notice of Judgment. If the possessory action was based on nonpayment of rent and the defendant files a Notice of Intent to Appeal, the defendant must, at the time the defendant files the Notice of Intent to Appeal, pay into Court one week's rent as determined by the Court. The appeal shall otherwise be filed in accordance with Supreme Court rules.

    C.   At any time during the pendency of the appeal, the landlord may file a motion to the district court for recovery of the rent money that has been paid into court pursuant to RSA 540:25, I. The court may grant such motion unless the tenant objects and the court rules that the landlord is not lawfully entitled to the full amount of rent. If the court rules that the landlord is not entitled to the full amount of the rent, it shall release such portion of the rent to which the court deems the landlord is lawfully entitled, if any, and make specific findings in support of its decision to deny or partially deny the landlord's motion. The rent money retained by the court shall be apportioned between the landlord and the tenant upon final disposition of the appeal.

    D.   The filing of a post trial motion does not stay the running of the seven day period for filing a Notice of Intent to Appeal.

5891

Rule 5.11. Dismissal of Appeals.

A. Possessory Action Instituted for Nonpayment of Rent

    If the possessory action was instituted on the basis of nonpayment of rent, during pendency of the appeal, rent is payable to the Court on a weekly basis and is due on the same day of the week on which the Notice of Intent to Appeal was filed. If rent is not paid by the due date, the Court shall immediately mail a notice of default to the tenant and issue a writ of possession to the landlord. If, however, the tenant pays the Clerk the entire amount of rent due since the filing of the Notice of Intent to Appeal prior to the service of the writ by the sheriff, the writ of possession shall be recalled and the appeal shall be reinstated. Unless the appeal is reinstated, the District Court shall vacate the appeal and award the plaintiff the rent money that has been paid into Court. The District Court shall notify the Supreme Court of any such action.

    B. Possessory Action Instituted for Reason Other than Nonpayment of Rent

    If the possessory action was instituted for a reason other than nonpayment of rent, the defendant shall pay into the Court or to the plaintiff, as the Court directs, all rents or portions thereof becoming due from the date the Notice of Intent to Appeal is filed with the District Court. In any case in which the duty to pay rent or a portion thereof is in dispute, the defendant shall be required to pay such portions of the rents becoming due after the notice of intent is filed into Court, as the Court may direct, which amounts shall be held in escrow until a final decision is rendered. If the defendant fails to make a rental payment as it comes due, the plaintiff shall file an affidavit setting forth the defendant's failure to make timely payment along with a motion to dismiss defendant's appeal. A copy of the motion and affidavit shall be filed with the Supreme Court. The District Court shall file a written recommendation to the Supreme Court that the motion be granted unless, within five (5) days of the filing of plaintiff's motion, defendant files an affidavit setting forth that timely tender of payment was made or that defendant had a lawful reason for failing to tender payment. If defendant files such an affidavit in a timely manner, a hearing shall be scheduled on the motion within ten (10) days of the filing of defendant's affidavit. Following hearing, the District Court shall recommend in writing to the Supreme Court what action should be taken on the motion.

5896

Rule 5.12. Dismissal of Writs After Sixty Days.

Whenever a Landlord and Tenant Writ has been entered with the Court, and neither an appearance nor the return of service of process has been filed with the Court within sixty days following the date of said entry, such action may upon motion or upon the Court's own motion be dismissed. The order of dismissal may be vacated upon motion after notice for cause shown upon such terms and conditions as the Court may impose. Any motion to vacate shall be filed within seven days after the date of the Clerk's Notice of the order of dismissal.

5901

TOWN ORDINANCE VIOLATION RULES

TOWN ORDINANCE VIOLATION RULES

5906

Rule 6.1.

A local official with authority to prosecute an offense under any municipal code, ordinance, bylaw, or regulation, if such offense is classified as a violation under applicable law, may issue and serve upon the defendant a Local Ordinance Citation and Summons.  The form to be used shall be provided by the court.

5911

Rule 6.2.

A Local Ordinance Citation and Summons may be served upon the defendant by postpaid certified mail, return receipt requested. Return receipt showing that the defendant has received the citation and summons shall constitute an essential part of the service and shall be filed with the court prior to the arraignment. If service cannot be effected by certified mail, then the Court may direct that service on the defendant be completed as in other violation complaints.

5916

Rule 6.3.

The Local Ordinance Citation and Summons shall be filed with the court no less than five days prior to the date of arraignment.  Absent a showing of accident, mistake or misfortune a complaint filed less than five days prior to the date of arraignment may be summarily dismissed by the Court.

5921

Rule 6.4.

Defendants who are issued a summons and local ordinance citation and who wish to plead guilty or nolo contendere shall enter their plea on the summons and return it with payment of the civil penalty, as set forth in the citation, to the Clerk of the Court prior to the arraignment date, or shall appear in court on the date of arraignment.  A defendant who enters a plea of guilty or nolo contendere but who does not include payment of the civil penalty shall appear in court on the date of arraignment.
 

5926

Rule 6.5.

For cause, the Court in its discretion may refuse to accept a plea by mail and may impose a fine or penalty other than that stated in the local ordinance citation. The Court may order the defendant to appear personally in court for the disposition of the defendant’s case.

5931

Rule 6.6.

The prosecuting official may serve additional local ordinance citations, without giving additional written notice, if the facts or circumstances constituting the violation continue beyond the date or dates of any prior citation. A plea of guilty or nolo contendere to the prior citation shall not affect the rights of the defendant with respect to a subsequent citation.

5936

Rule 6.7.

These rules shall not apply to offenses that are subject to enforcement under RSA 676, or to motor vehicle offenses under title XXI or any local law enacted thereunder.  These rules are not intended in any way to abrogate other enforcement actions or remedies in the district or superior court, nor to require written notice as a prerequisite to other types of actions or remedies for violations of local codes, ordinances, bylaws, or regulations.

5941