Every state has its own peculiarities regarding motions practice in State Court. South Carolina is no exception. Here are some things to keep in mind for your civil cases filed in South Carolina:
What needs to be included in a motion?
Rule 7(d) of the South Carolina Rules of Civil Procedure provides that any motion shall state with particularity the grounds of the motion and shall set forth the relief or order sought. For example, it is not sufficient to simply state that a party is entitled to summary judgment. The specific grounds for the motion must be identified to provide the opposing party the basis for the motion.
Is a memorandum required?
Generally, a supporting or opposing memorandum is not required under the South Carolina Rules of Civil Procedure. After the motion is set for a hearing, you will know which judge will hear the motion. (Remember, cases are not assigned to a specific judge in South Carolina unless they have been designated complex or assigned to business court). Most judges have preferences about when memoranda must be submitted prior to the hearing.
The Third and Fifteenth Circuits are currently participating in a pilot program relating to motions practice that envisions that motions can be decided without a hearing. That program is similar to motions practice in federal court where supporting memoranda are submitted with the motion and opposing memoranda are due thereafter. If you have a case in either of those circuits, that order is here:
What about affidavits?
Rule 6(d) requires that when a motion is supported by an affidavit, the affidavit shall be served with the motion. Additional or opposing affidavits may be served no later than two days before the hearing unless the court permits them to be served at another time. In addition, Rule 6(d) permits a moving party to serve reply affidavits at any time before the hearing commences.
Rule 56 governing motions for summary judgment also requires that any affidavits supporting that motion be filed with the motion. Affidavits opposing a motion for summary judgment must be filed two days prior to the hearing on the motion. Rule 56(e) sets for the requirements for affidavits supporting or opposing a motion for summary judgment.
Do I have to consult with opposing counsel before filing the motion?
Yes! Rule 11(a) imposes a duty to consult with opposing counsel before filing motions and requires that “all motions filed shall contain an affirmation that the movant’s counsel prior to filing the motion has communicated, orally or in writing, with opposing counsel” in an attempt to resolve the matter contained in the motion. However, consultation is not required for motions to dismiss, summary judgment, new trial, JNOV, foreclosure cases or with a pro se litigant.
Keep in mind that an attorney admitted to the South Carolina Bar must sign and file the motion, including the affirmation about consultation. Therefore, that attorney needs to conduct the consultation or be copied on all consultation correspondence to verify that the consultation occurred.
How is the motion to be filed?
If the County where the case is pending is an efiling county, the motion must be filed electronically by counsel admitted to the South Carolina Bar. If the County has not yet adopted efiling, counsel admitted to the South Carolina Bar must sign and file the motion with the Clerk of Court and include a civil coversheet. The motion must be served on all opposing parties and a certificate of service filed with the Clerk of Court.
How soon will the motion be heard?
It depends. Each circuit has a calendar that sets forth the weeks assigned for criminal trial, civil trials and non-jury matters. In some counties, it can take several months to have a motion heard.
If you have a hearing set for another motion and you want to have a new motions heard, keep in mind that Rule 6(d) requires that a written motion and notice of the hearing “shall be served no later than ten days before the time specified for the hearing,” unless a different time period is fixed by the rules or court order.
When will the Court rule on the motion?
It depends. Some state court judges rules from the bench on most motions. Others rarely rule from the bench and take all motions under advisement. The time that a motion may be under advisement varies by judge, but it can take several months to get a ruling.
Who will write the order?
Some judges typically issue a form 4 order (standard order form in South Carolina). Other judges will write their own more formal order. Still other judges will ask counsel for the prevailing party to draft a proposed order.