New Proposed Amendments to the Tennessee Rules of Civil Procedure

By C. Daniel Lins

Last month, the Tennessee Advisory Commission on the Rules of Practice and Procedure finished its annual term and presented its recommendations to the Supreme Court of Tennessee for amending, among other things, the Tennessee Rules of Civil Procedure. The Court considered the amendments recommended by the Advisory Commission, and on August 26, 2011, published for public comment the Advisory Commission's proposed amendments. (The formal notice and complete listing of all proposed amendments are available on the Court's website available at this link.)

Although the Advisory Commission also proposed amendments to the Tennessee Rules of Evidence and Rules of Appellate, Criminal, and Juvenile Procedure, this article focuses on the proposed amendments to the Rules of Civil Procedure more frequently encountered by litigators, particularly those related to general denials (Rule 8.02), motions to strike (Rule 12.06), and subpoenas (Rule 45.01). As explained below, in my opinion, the proposed amendments for Rules 8.02 and 12.06 may just do more harm than good, however, the proposed amendment to Rule 45.01 seems like an appropriate and fair change to that rule.

A. Proposed Elimination of General Denials in Rule 8.02

First, the Advisory Commission proposes that the Court amend Rule 8.02 by deleting the text stricken below:¹

8.02. Defenses -- Form of Denials. -- A party shall state in short and plain terms his or her defenses to each claim asserted and shall admit or deny the averments 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 averment, he or she shall so state and this will have the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as he or she expressly admits; but, when the pleader does so intend to controvert all its averments, he or she may do so by general denial subject to the obligations set forth in Rule 11.

This proposed change by the Advisory Commission would eliminate a respondent's option to use a general denial to respond to allegations of a complaint. The Advisory Commission Comment to the proposed rule states that the change is designed to "eliminate[] the rarely used possibility of a responsive pleading that denies all averments, including denying the identities of the parties to a suit." I do not think the proposed amendment appropriately accomplishes this goal. First, just because a rule is perceived to be "rarely used," that does not mean it lacks merit. Second, the amendment seems too broad in that it would appear to eliminate "qualified" general denials in addition to the general denials alluded to in the comment.

In my experience, general denials are used quite frequently in responsive pleadings. Smart defendants often include general denials at the end of every answer or other responsive pleading, e.g., "The Defendant denies any allegations in the complaint not expressly admitted herein." These general denials, or "qualified" general denials, are particularly useful in light of the language of Rule 8.04, which sets out the effect of a party's failure to deny. Rule 8.04 states in pertinent part: "Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. . . ." In order to protect against inadvertent admissions under Rule 8.04, general denials under Rule 8.02 are frequently used by, and are frequently helpful to, litigants.

As such, I would recommend that Rule 8.02 be left as is. Alternatively, I would suggest that, instead of the general denial language being deleted altogether, it is modified to track the language of the corresponding Federal Rule. Rule 8(b)(3) of the Federal Rules of Civil Procedure states: "A party that intends in good faith to deny all the allegations of a pleading -- including the jurisdictional grounds -- may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted." A change like this would seem to address the Advisory Commission's concerns as well as preserve the qualified general denials so useful to litigants.

B. Proposed Extension of Time for Motions to Strike

Next, the Advisory Commission proposes that the Court amend Rule 12.06 as follows:

Rule 12.06. Motion to Strike. -- Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) ninety (90) days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading insufficient defense or any redundant, immaterial, impertinent or scandalous matter.

Clearly, the purpose of this proposed amendment is to give the parties 60 additional days to determine whether a motion to strike should be filed. The Advisory Commission Comment to the proposed rule provides the following justification for the proposed change: "The time period was extended to allow the parties additional time to explore the sufficiency of claims and defenses, including those defenses asserted under Rule 12.02, before filing a motion to strike the claim or defense for one or more of the reasons set forth in the Rule."

In the abstract, it's difficult to begrudge parties being given additional time to make reasoned tactical litigation decisions. In practice, however, increasing the time period from 30 to 90 days appears problematic at first glance. Motions to strike are generally disfavored by courts because they tend to delay litigation, often with little corresponding benefit. Increasing the relevant time period by 60 days only exacerbates this problem. Likewise, if litigants can seek to materially alter the pleadings 90 days into a case -- at which time, for example, discovery based on the pleadings is typically well underway -- that would inject unneeded uncertainty into the litigation process later in the game. With regard to the Advisory Commission's rationale for the change, motions to strike (like motions under Rule 12.02(6) for failure to state a claim) are typically decided on the face of the pleadings, so additional time for factual investigation into the merits of the motion seems unneeded. Last, the Federal Rules provide 21 days within which to file similar motions (see Fed. R. Civ. P. 12(f)), so one would think 30 days in state court would be sufficient.

C. Enhancing the Notice Requirements for Subpoenas

Next, the Advisory Commission proposes that the Court amend Rule 45.01 by adding the following language:

45.01 For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at the time and place and for the party therein specified. The subpoena also must state in prominently displayed, bold-faced text: "The failure to file a motion to quash or modify within fourteen days of service of the subpoena waives all objections to the subpoena, except the right to seek the reasonable cost for producing books, papers, documents, electronically stored information, or tangible things." The clerk shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.

The Advisory Commission Comment to the proposed rule states that "Rule 45.01 is amended to ensure that persons served with subpoenas receive adequate notice, simultaneously with service, that, as provided for in Rule 45.07, the failure to file a motion to quash or modify within fourteen days of service of the subpoena will result in the waiver of the right to seek relief from the subpoena (other than the right to seek the reasonable costs for producing books, papers, documents, electronically stored information, or tangible things)."

In my opinion, notifying persons served with a subpoena -- particularly in cases where the person is not represented by counsel -- that they have just 14 days to contest that subpoena is the right and fair thing to do. If not so informed, many persons simply would not know about the time constraints of Rule 45.07. The Advisory Commission's proposed change also tracks the procedure of Federal Rule of Civil Procedure 45(a), which requires federal subpoenas to set out the text of Rule 45(c) and (d), which contains the 14-day limitation. In my view, making it easier for persons served with a subpoena to know and assert their rights in this circumstance is appropriate.

^{1 As in the Court's August 26 Order, each of the Rules referenced below are presented as "blackline" versions of the proposed amendments: new text is indicated by underlining the text, and deleted text is indicated by striking through the text.}