Iowa Civ Pro Blog

Stylistic Guidelines from the Bankruptcy Judge of the District of Minnesota

If a court prefers or requires that counsel furnish a proposed order, it is important to know the stylistic guidelines the court prefers. Judge Robert Kressel, the bankruptcy judge for the District of Minnesota, has created a set of order preparation guidelines. Some of the guidelines are instructive for the drafting of other documents as well.

Some highlights include:

- To create a pdf, do not scan in the document; instead create it directly from Word or WordPerfect.

My comment: Doing this creates a much cleaner pdf, one that is capable of being searched and copied. Of course, some documents -- ones in which an original electronic version is not available -- will still need to be scanned.

- "Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names."

- "Eliminate superfluous words" (i.e., avoid legalese). Judge Kressel's example: Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”

My comment: When I proofread, I now specifically look for words I can delete and find ways to shorten my sentences.

- Keep plurals and possessives straight and consistent. Know when to use debtors (plural), debtor’s (singular possessive), and debtors’ (plural possessive). Make sure the verb matches the subject of the sentence.

- Use the possessive noun “its” and the contraction “it’s” correctly.

Service by Certified Mail in Residential FED Actions Unconstitutional

Iowa residential landlords can no longer expect to evict a tenant by a FED action in which notice to the tenant is only provided by certified mail.

If a landlord wants to evict a tenant in Iowa, it can initiate a forcible entry and detainer action under chapter 648. Consistent with most actions, section 648.5 requires personal service on the defendant.

Yet Iowa’s version of the Uniform Residential Landlord and Tenant Law, chapter 562A, allows service of an FED action on a defendant, at least three days prior to the hearing, “by sending notice by certified or restricted certified mail … whether or not the tenant signs a receipt for the notice,” notwithstanding section 648.5. See Iowa Code § 562A.29A(2).

The Iowa Supreme Court ruled today that section 562A.29A(2) violates, on its face, the due process clause of the Iowa Constitution. That is because “section 562A.29A(2) does not require service which is reasonably calculated to reach the intended recipient at a meaningful time” (i.e., at a time sufficient to allow the defendant to contest the action).

In the case at issue, War Eagle Village Apartments v. Plummer, No. 07-1217 (Iowa Nov. 20, 2009), the defendant did not receive the notice until after the FED hearing had taken place. Importantly, however, the Court held that section 562A.29(2) was not just unconstitutional as applied, but on its face, given the “the statutory requirement that a hearing be held no later than seven days from the order scheduling the hearing.”

Given that the Court held that subsection 2 is unconstitutional on its face, it does not appear that there are any steps that a landlord could take to “cure” the service under subsection 2. For instance, it does not appear that adding USPS services such as signature confirmation and return receipt to the certified mail service would bring the procedure into compliance with due process requirements. That is because, in light of the short turnaround between entrance of the order setting the FED hearing and the hearing date, it is the mailing of notice itself that is offensive.

The only other service option under section 562A.29A is “personal service.”

Amended Subpoena Rules and Forms Take Effect October 9, 2009

On August 10, 2009, the Iowa Supreme Court amended a number of civil procedure rules, including rules related to civil subpoenas.

Rule 1.1701 is substantially rewritten. However, the changes are largely reformatting and rewording from the old rule, as opposed to significant substantive changes. The Court did prescribe new subpoena forms, which are provided below.

There is a substantive change in Rule 1.715, which pertains to deposition subpoenas. The old rule provided that a non-party witness could be subpoenaed for a deposition in the county in which he/she resides, works, or transacts business in person. The new rule substitutes “within 50 miles” in place of “in the county.”

Here are the new forms:

Form 13 – Subpoena Form to Testify at Deposition or Produce Documents

Form 14 – Subpoena Form to Testify at Hearing or Trial

Form 15 – Subpoena Form to Produce Documents or Permit Inspection

Iowa's 6th Judicial District Adopts New Local Rules

Six of Iowa's eight judicial districts have local rules to which attorneys need to adhere. The two holdouts have been the 4th (which includes Pottawattamie County) and 6th judicial districts.

On July 27, the 6th judicial district (covering Benton, Iowa, Johnson, Jones, Linn, and Tama counties) joined the majority and adopted its first local rules. There are four of them.

Rule 1 states that unresisted motions must (a) contain the word "unresisted" in the caption; (b) specifically name the attorneys who do not resist; and (c) be accompanied by a proposed order.

Rule 2 states: "All Motions for Continuance, Motions to Withdraw, Motions to Extend Deadlines and Motions to Exceed Fee Guidelines shall be accompanied by a proposed Order."

Rules 1 and 2 turn a good practice -- proposed orders on certain types of motions -- into a mandatory practice.

Rule 3 states that the certificate of service in motions to withdraw as counsel must certify a service copy was sent to the client, unless the client's written consent to the withdrawal is attached to the motion.

Rule 4 mandates the form for orders allowing counsel to withdraw in civil cases in which the withdrawing attorney has not yet been replaced by another attorney who has filed an appearance. (Download the form Order to Withdraw.)

Here is an unsigned copy of Supervisory Order 2009-7 adopting the rules. Signed and file-stamped copies of the order may be obtained from the Linn County Clerk's office. The rules become effective August 26.

Iowa Supreme Court Allows Clerks to Email Orders and Notices

On June 29, 2009, the Iowa Supreme Court entered a supervisory order authorizing the clerks of court to email -- rather than mail -- judgments, orders, decrees, and notices. The authorization occurs through an amendment to Rule 1.453. The amendment is effective immediately as a temporary amendment until it becomes permanent on August 28.

The change is undoubtedly part of the Court's cost savings measures.

Problems for attorneys and their clients may arise if overzealous spam filters block a clerk's email attaching a court order or notice. Attorneys should make sure their email system allows emails from the iowacourts.gov address to pass through.

Iowa Supreme Court Upholds Sanctions Against Attorney for Filing Frivolous Claims

A 3-2 majority of the Iowa Supreme Court (with 2 justices not taking part) delivered a $25,000 reminder to Iowa attorneys on May 1 to not file frivolous claims.

The offending attorney had filed several claims against a shingles manufacturer and its president, claiming defective shingles. All of the claims against the individual president were eventually dismissed on summary judgment. The district court, the court of appeals, and then the supreme court all agreed that there was no basis in law or fact for the claims against the individual president.

Iowa Rule of Civil Procedure 1.413 is Iowa's equivalent to Rule 11 of the Federal Civil Procedure Rules. The substance of Rule 1.413 also exists in section 619.19 of the Iowa Code. It provides that an attorney's signature on a pleading is a certificate that--among other things--the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." If the attorney violates the rule, the court "shall" impose an "appropriate sanction."

The two dissenting justices did not disagree with the decision to sanction the attorney, but disagreed with the method for determining the amount of the sanction.

The case was Barnhill v. Iowa Dist. Ct. of Polk County, No. 06-0163 (Iowa Ct. App. May 1, 2009).

An Affidavit May Serve as a Substitute for a Statement of Disputed Facts

The Iowa Court of Appeals has determined that an affidavit may serve the purpose and as an effective substitute for a statement of disputed facts in resistance to a summary judgment motion.

Iowa Rule of Civil Procedure 1.981(3) requires parties resisting summary judgment motions to file a statement of disputed facts. In Ishman v. Featherlite, Inc., No. 8-927 / 08-0372 (Iowa Ct. App. March 11, 2007), the plaintiff failed to file a document designated as a "statement of disputed facts." However, the plaintiff did file an affidavit contesting many of the factual statements made by the defendant.

The defendant argued that the failure to file a statement of disputed facts meant that the facts the defendant stated were deemed admitted. The Court of Appeals held that the “affidavit was the equivalent of a statement of disputed facts.”

Rule 1.981(3) does not specify the form that a statement of disputed facts should take. An affidavit is certainly a “statement.” As a result, the Court of Appeals’ decision, while contrary to the normal practice of submitting a separate statement supported by an affidavit, does comport with the text of the rule.

Use the Right Font Size in Your Appeal Briefs

In a postscript to one of its opinions issued February 4 (Hilsman v. Phillips, No. 9-1031 / 08-0289), the Iowa Court of Appeals scolded the plaintiffs’ attorney for using too small of a font in her briefs:

Upon reading the plaintiffs’ brief and reply brief, this court’s weary eyes suspected the typeface was a wee bit small. Upon investigation, it was determined the briefs utilized a 12 point Times New Roman typeface, not 13 point as required by Iowa Rule of Appellate Procedure 6.16(1) (2008) when using Times New Roman typeface.

Rule 6.903(1) became effective January 1, 2009 and replaced Rule 6.16. Rule 6.903(1)(e) now mandates that “a proportionally spaced typeface must be 14 point or larger.”

The Court also criticized the plaintiffs’ appeal brief for using one space between sentences instead of what the Court called the “customary two spaces.” Using two spaces is not required by the rules and one space when using a proportionally spaced font is advocated by all typography resources of which I am aware.

Interestingly, new Rule 6.903 also now mandates that “a proportionally spaced typeface must include serifs, but sans-serif type may be used in headings and captions.” The Iowa Court of Appeals has been issuing its opinions in a sans-serif font, Arial, and it issued the Hilsman opinion in that font.

The Court Does Not Have to Set a Date for Hearing or Nonoral Submission of a Summary Judgment Motion

Iowa Rule of Civil Procedure 1.981(3), part of the summary judgment rules, states in part: “[T]he time fixed for hearing or nonoral submission shall be not less than 20 days after the filing of the motion, unless a shorter time is ordered by the court.”

Does this sentence mean that the court has to fix a time for hearing or nonoral submission?

Iowa appellate courts had not answered that question until the Iowa Court of Appeals did so on January 22, 2009, in Rector v. Sheldon Comm. Sch.

The Court of Appeals’ answer was no, “a plain reading of the rule does not require a tribunal to provide the parties with notice of a date for nonoral submission. A tribunal need not inform the parties of the date it fixes for nonoral submission ‘unless a shorter time [than twenty days] is ordered.’”

The consequence of this is that parties cannot count on more time to submit additional evidence or briefing in support of, or in opposition to, a summary judgment motion just because the court has not set a hearing or nonoral submission date.

Follow the Appellate Rules on Form of Briefs or Have Your Appeal Issues Ignored

In Schmidt v. Seaba, decided January 22, 2009, the Iowa Court of Appeals in essence ignored the appeal issues presented by the appellant because “he failed to follow the Iowa Rules of Appellate Procedure that govern the form and manner of briefs and appendices.” His brief violated Rules 6.14(1)(c), (d), (e), (f), and (g). Most fatal, he failed to provide a trial transcript. The fact that the appellant was acting pro se had no effect on the decision. Schmidt provides further evidence that procedure can dictate substance.