Rule 40 - Assignment of Cases for Trial; Continuances(a)Definitions.(1) "Continuance Order" is defined as an order entered by a judge that effectively removes a case from a trial list or date certain court event in response to a written motion. Absent the entry of a continuance order, a case is subject to being called for trial throughout the trial list period or for a court event on the designated date certain. (2) "Effectively removes a case from a trial list" includes the unavailability for essential dates or when the number of days necessary for trial of the case, based on the parties' good faith estimate of the time for trial, is more than the difference between (i) the number of days remaining on a trial list at the time a motion for a continuance or a request for protection is made, and (ii) the number of days sought in the motion for a continuance or the request for protection. (3) "Essential Dates" include jury selection days, case management days, and other dates essential to the completion of trial on the list at issue. (4) "Request for Protection" is defined as an informal, non-docketed written request that a case not be called for trial on one or more specified days of a trial list and which, if allowed, would not effectively remove a case from a trial list. A request for protection shall only be acted upon by a judge and shall not take the place of or be treated as a motion for continuance.(5) "Scheduled" is defined as follows: (i) For trial list cases, "scheduled" means a case has been assigned to a trial list as that term is defined in this rule; (ii) for all other cases, "scheduled" means that a date certain has been identified for a hearing or trial.(6)"Trial list" means the list of a group of cases assigned to an actual, discrete period of time. A trial list is not simply a list of cases ready for trial. Rather, it is a list for a trial session that has beginning and ending dates, consists primarily of consecutive court days, and realistically exposes all of the assigned cases to trial. (b) Assignment for Trial.(1)Jury Trial List. In those actions in which a jury trial has been properly demanded, the clerk of the Superior Court shall maintain a Jury Trial List and a Nonjury Trial List of actions in the chronological order in which they are transferred from the Pre-Trial List by direction of the court under Rule 16. Scheduling of actions for trial from the lists shall be at the direction of the court. (2)Nonjury Trial List. The court may by order provide for the setting of cases for trial upon the calendar, the order in which they shall be heard and the resetting thereof. All actions, except those otherwise governed by statute or court orders shall be in order for trial at a time set by the court on such notice as it deems reasonable, but not less than 10 days after service of the last required pleading. (c) Continuances. A motion for continuance order shall be made immediately after the cause or ground becomes known. The motion must specify (1) the cause or ground for the request, (2) when the cause or ground for the request became known, and (3) whether the motion is opposed. If the position of the other party or parties cannot be ascertained, notwithstanding reasonable efforts, that shall be explained. Telephonic or other oral notice of the motion shall be given immediately to all other parties. The fact that a motion is unopposed does not assure that the requested relief will be granted. Continuances should only be granted for substantial reasons. (d) Unavailable Witness or Evidence. The court need not entertain any motion for a continuance based on the absence of a material witness unless supported by an affidavit which shall state the name of the witness, and, if known, that witness' residence, a statement of that witness' expected testimony and the basis of such expectation, and the efforts which have been made to procure that witness' attendance or deposition. The party objecting to the continuance shall not be allowed to contradict the statement of what the absent witness is expected to testify but may disprove any other statement in such affidavit. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree in writing, signed by that party or that party's attorney, that the same shall be received and considered as evidence at the trial as though the witness were present and so testified. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, thing or other evidence. In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not. (e) Protections. A request for a protection from a trial list shall be made immediately after the cause or ground becomes known, and shall be submitted in a written Uniform Request for Protection Form or in a writing containing substantially the same information. Advisory Committee's Notes
May 1, 2000
The only change involves a change in the title, but not the text, of subdivision (c). The new title, replacing "Affidavit in Support of Motion" with "Unavailable Witness or Evidence" more accurately reflects the substance of the subdivision.
Advisory Committee's Note
January 1, 2001
P. L. 1999, Chapter 731, § § II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERSZ-2 et seq. unified the Superior Court and the District Court civil jurisdiction, with certain stated exceptions. The amendments to Rule 40 reflect that jury trials shall continue to be tried in the Superior Court, while nonjury trials may be tried in either court.
Annotations:
Rule 40(b): Wright & Mills v. Bispham, 2002 ME 123, 13.