Original Actions may proceed through three distinct stages before final resolution. The first is similar to the “petition stage” of a cert petition and the last is similar to the “merits stage.” The second, “interim” stage, is unique.
- Stage 1 is commenced by filing the Complaint.
The Complaint must be preceded by a Motion For Leave To File and may be accompanied by a Brief In Support of the motion. The combined word limit for the motion and brief is 9,000 words. There is no word limit for the complaint itself.
An Appendix is optional and has no required documents or order of documents, unlike the requirements for a cert petition. There can also be more than one appendix — one for the motion and another for the brief.
The defendant may file a Brief in Opposition, limited to 9,000 words. Reply and/or Supplemental Briefs, limited to 3,000 words, may also be filed. Due dates are based on the briefing schedule noted on the docket.
Amicus briefs filed at this stage follow the same requirements as filing at the cert petition stage. Word limit is 6,000 words. Consent from the parties or a Motion is required (unless the Amicus is a governmental entity). The 10-day notice to parties is also required. Amicus briefs are due at the same time as the Brief in Opposition.
After all filing deadlines have expired, the briefs will be distributed for conference, following the Court’s customary procedure. A decision whether to grant the Motion For Leave To File is usually announced on the next Orders List.
- Stage 2 is commenced after the Court grants the Motion For Leave To File.
This stage has no parallel to the cert petition process, except for requiring the booklet format.
Party filings at this stage have no word limit. Filings may include motions, briefs, or responses to motions. Recent examples are: Motion to Dismiss, Motion to Intervene, Brief in Response to Motion to Intervene, Reply Brief.
Amicus briefs are allowed at this stage — even from Amici who filed at the earlier stage. Amici should still follow cert petition stage requirements, although the word limit can now go to 7,500 words.
Due dates are based on the briefing schedule noted on the docket.
The original action interim stage lasts as long as needed for each case. There can be multiple rounds of filings, and one or more distribution dates and conferences. At some point, the Court may appoint a Special Master to step in.
The Special Master has the “authority to fix the pleadings and to direct subsequent proceedings [including the] authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and … as … may [be deemed] necessary to call for….” Costs for the Special Master are taxed to the parties per order of the Court.
The Special Master will file one or more Reports with the Court; there is no due date. In addition to being filed, the Report is also served on the parties.
- Stage 3 is commenced after the Special Master’s Report is filed.
This is the merits stage in an Original Action.
Parties may file Exceptions To The Report Of The Special Master, along with a Brief In Support (customary but not required). The word limit for the brief is 15,000 words. There is no word limit for the exceptions themselves.
An Appendix (attached to the brief) is optional. Unlike the merits stage of a cert filing, there is no Joint Appendix.
Reply and Sur-Reply Briefs may be filed pursuant to the briefing schedule on the docket.
Amicus briefs filed at this stage follow the same requirements as filing at the cert merits stage. Consent from the parties or a Motion is required (unless the Amicus is a governmental entity). The word limit is 9,000 words.
Due dates are based on the briefing schedule noted on the docket. Briefs are filed and served on the parties. The Merits Rule regarding electronic filing/service applies to briefs at this stage. Parties do not serve the Special Master.
The Court will schedule oral argument on the Exceptions and, later, issue its ruling. However, this by no means guarantees that the case is over. Stay tuned for a discussion of what can happen next.
For an in-depth look at Original Action litigation read our previous post, here.