A Modest Proposal:
The Rule 3(a) Waiver Agreement
by Stephen E. Kapnik and Alan S. Thompson
arly in a case, conversations between opposing counsel regularly involve concerns about the CRCP 16 front-loaded case management obligations and case acceleration pressures on the justice system and the case itself, stemming, in part, from Chief Justice Directive 08-05.1 This article suggests using a waiver agreement under CRCP 3(a) as a way to manage case deadlines and obligations outside of the court system, until court intervention becomes necessary. A Rule 3(a) waiver agreement frees the parties, at least initially, from rigid deadline-oriented case management and liberates courts from the often thankless and laborious administrative tasks imposed by a civil docket.
A Rule 3(a) waiver agreement takes advantage of a feature under CRCP 3(a)2 that authorizes plaintiffs to commence a case by service of process only and allows defendants to waive the 14-day filing requirement imposed on such previously served complaints.3 This method, sometimes called “hip pocket service,” allows a plaintiff to commence a case by serving the summons and complaint without filing anything in court at or near the time of service. If a defendant timely agrees to waive the 14-day filing requirement, the parties are free to litigate their civil action on their own timeline, unless and until one or both parties decide that judicial intervention is necessary. Each party retains a unilateral option to invoke the court’s assistance and authority by simply filing the complaint and other pleadings.
Commencing a Case
CRCP 3(a) provides two methods for commencement of civil cases: filing a complaint in court, and hip pocket service. A courtfiled complaint immediately becomes subject to the uniform case management system with its associated deadline-driven obligations.
These deadlines arise from rules such as CRCP 4(m), which requires service of process within 63 days of the filing of the complaint, and a panoply of judicial tools for managing cases to trial within a year, such as “delay reduction orders,” which set deadlines for trial and pre-trial conferences; pre-trial order deadlines that are in addition to and sometimes conflict with CRCP 16; and initial case management orders that impose deadlines and limitations on discovery and trial presentation, including the number and types of experts. These case management constructs and deadlines impose uniform but sometimes arbitrary and unnecessary structure on civil cases.
Alternatively, commencing a case by hip pocket service and using a Rule 3(a) waiver agreement potentially limits and could eliminate the need for active court administration of a case by allowing litigants and counsel to undertake many if not all pre-trial activities outside of the constraints discussed above. Like arbitration, hip pocket service and use of a Rule 3(a) waiver agreement allow parties to resolve privately all or part of their dispute and reduce the burden on the court system.
Allowing parties the discretion to work together to create novel solutions is inherent in the rules of procedure. For example, CRCP 7(d) allows parties to dispense with pleadings altogether in appropriate cases and file an agreed statement of facts, which then serves as “an action at issue” subject to the rules of procedure. CRCP 30(b)(4) allows parties nearly complete freedom in determining how to conduct a deposition. And under CRCP 29, parties may stipulate (unless otherwise directed by the court) to various alternative discovery methods and requirements, unless such agreements “would interfere with any time set for completion of discovery, for hearing of a motion, or for trial.”
Rule 3(a) waiver agreements do not interfere with the courts’ control over the majority of cases. While parties to a Rule 3(a) waiver agreement may limit application of the CRCP 16 case management system by setting different pre-trial tasks, obligations, and deadlines, the case remains subject to the potential jurisdiction of the court. Thus a Rule 3(a) waiver agreement cannot override the CRCP 16 case management protocol.
Before court intervention, however, the parties’ use of and compliance with CRCP 16 remains flexible. The rule is triggered when a case is deemed “at issue,” which is “when all parties have been served and all pleadings permitted by C.R.C.P. 7 have been filed… .”4 Thus while a case may be commenced by service of process, until the complaint and answer are filed in court it is not deemed “at issue,” and the case management system and discovery and disclosure under CRCP 26 and CRCP Chapter 4 do not apply.5 In a case appropriate for a Rule 3(a) waiver agreement, the parties’ ability to stipulate to alternative case management, discovery methods, deadlines, and requirements is limited only by the parties’ claims, circumstances, and the extent to which they can cooperate and agree.
Allowing litigants to create and enforce their own deadlines and procedures without becoming subject to the trial court case management system is neither unique nor novel, even in states that have implemented complex case management structures to control unmanageable dockets. For example, in New York parties and counsel can essentially litigate a civil action privately, at least in part. Under New York C.P.L.R. 306-a, plaintiffs may commence a case by filing a complaint, petition, or summons with notice, paying the requisite fees, and thereafter obtaining an index number from a court clerk. The indexed case is not entered into the court’s case management system, but issuance of the index number allows parties to exchange pleadings and undertake discovery and other pre-trial activities on their own terms, using applicable civil rules, until and unless either party actively seeks judicial intervention (such as by asking for a trial date or motions hearing). The system is collegial, but not based on blind trust; both parties retain the ability to seek court intervention at any time.
In Minnesota, litigants may similarly commence and litigate cases without ever officially engaging with the court system. Under Minn. R. Civ. P. 3.01, plaintiffs may commence a lawsuit by hippocket service and the parties may then voluntarily proceed to discovery and other litigation tasks without filing papers with the court. The parties file the lawsuit with the court only if they need judicial involvement.6 Some have attributed a reduction in civil lawsuits filed between 1994 and 2002 to Minnesota’s hip pocket service and its associated private litigation opportunity.7
When to Use a Rule 3(a) Waiver Agreement
While the Rule 3(a) waiver agreement technique appears versatile and potentially useful across many types of civil cases,8 it will not work in every case. For example, plaintiffs seeking a preliminary injunction, prejudgment attachment, or an order authorizing sale under CRCP 120, and defendants seeking a threshold ruling on a CRCP 12 issue,9 may require the court’s immediate attention. And some litigants may welcome the pressure and deadlines of the case management structure afforded by an active, involved judiciary. Death or incompetency of a party may mandate filing and court intervention.10 Class action litigation, depositions before an action is filed, foreign depositions under letters rogatory, and actions contesting an election under CRCP 100 are also unlikely candidates for a Rule 3(a) waiver agreement.
Until this practice becomes more common and is tested and proven to the satisfaction of the courts, it raises additional challenges for many litigants and many types of cases. For example:
• Whether a Rule 3(a) waiver agreement protects a plaintiff against a statute of limitations defense will undoubtedly cause concern to some plaintiffs and their counsel.11
• Because CRCP 38(b) provides that a jury demand (with concomitant payment of the jury fee) must be filed “not later than 14 days after service of the last pleading directed to such issue,” a Rule 3(a) waiver agreement may not preserve the right to a jury.
• Multiple defendants, third-party practice, the likelihood of intervenors, after-accruing claims and defenses, mandatory counterclaims, and uncooperative third- party deponents12 may also multiply the complexities of a Rule 3(a) waiver agreement, but not necessarily limit or eliminate their utility.
While it allows all who use it greater procedural flexibility, a Rule 3(a) waiver agreement may be particularly useful to litigants who want to stay out of court but whose claims are subject to a jurisdictional statute of repose,13 or to others who want to delay litigation while preserving claims. It may also be useful to parties who wish to keep their cases private, for at least some period of time.14
The Rule 3(a) waiver agreement practice suggested here allocates initial case management control to those in the best position to determine the needs of, and best practices appropriate to, specific cases. Although cases must be analyzed for potential complications, many litigants and overburdened judges may find the benefits of using a Rule 3(a) waiver agreement worthwhile.
The Rule 3(a) Waiver Agreement Process
Like New York’s CPLR 306-a and Minnesota’s Minn. R. Civ. P. 3.01, Colorado’s CRCP 3(a) allows litigants to commence a case using hip pocket service by serving the summons and complaint upon the defendant before filing the complaint in court. While Rule 3(a) requires that complaints be filed in court within 14 days after service, it also provides that “[t]he 14 day filing requirement may be expressly waived by a defendant and shall be deemed waived upon the filing of a responsive pleading or motion to the complaint without reserving the issue.”15 The parties thus have a window to exercise greater control over the pre-trial portion of their case. Rule 3(a) does not limit the period of the waiver available to the parties. Accordingly, as in Minnesota and New York, parties and their lawyers in Colorado appear to be free to litigate (or at least procedurally control) their case privately until and unless one party believes judicial intervention is indicated.
The following is an example of how a Rule 3(a) waiver agreement could operate.
Step 1. Without filing the complaint in court, the plaintiff serves the complaint and summons upon the defendant, or before service counsel discuss use of a Rule 3(a) waiver agreement.16 The parties then enter into an agreement17 providing, at a minimum, that:
• service of process commenced the case under CRCP 3(a)(2) on the date of service and satisfied any unexpired statutes of limitation;
• the defendant waives, in this and in any other later case concerning the plaintiff ’s claims, the defenses of improper venue and lack
of jurisdiction,18 and the Rule 3(a) 14-day filing requirement;
• no party will file a complaint in any other jurisdiction asserting
the same issues;
• the parties agree to exclusion of the case from CRCP 16.1;
• both parties agree to not seek default with respect to the other party and not to seek dismissal for failure to prosecute based on
compliance with the agreement; and
• either party can file the complaint and answer, and any other motion or pleading, at any time, to invoke judicial intervention.
Step 2. The defendant subsequently serves but does not file, within an agreed time, an answer under CRCP 5 expressly waiving the Rule
3(a) 14-day filing requirement and any defense based on the timeliness of any eventual filing of pleadings in court. The defendant does not waive any defenses based on the date of commencement by service.19 The defendant also agrees to venue and jurisdiction.20
Step 3. The parties and counsel agree to expand the Rule 3(a) waiver agreement to cover case management or other issues. While time is clearly of the essence in completing the Rule 3(a) waiver agreement at least as to the 14-day filing requirement, once such an agreement is in place, the parties may adopt any schedule appropriate to their circumstances and on which they can agree.
Benefits and Risks
Plaintiffs risk little in offering a Rule 3(a) waiver agreement because a plaintiff can always file the complaint in court within 14 days after service if the defendant refuses or is reluctant to enter into an agreement. Defendants face even less risk while considering a Rule 3(a) waiver agreement because they have at least 21 days after service to file an answer. Moreover, any party contracting a case of buyer’s remorse or otherwise requiring judicial intervention after entering into a Rule 3(a) waiver agreement can simply file the case at any time, without penalty.21
A Rule 3(a) waiver agreement does not affect the courts’ control over the majority of cases, nor do the Colorado civil procedure rules necessarily impose mandatory conditions, tasks, or deadlines without the parties’ consent. Under CRCP 29, parties are always free, without court intervention or oversight, to stipulate to various alternative discovery methods and requirements, unless such requirements “would interfere with any time set for completion of discovery, for hearing of a motion, or for trial.” The CRCP 16 case management system, with its pre-trial tasks, obligations, and deadlines, is triggered only after a case is deemed at issue, which is “when all parties have been served and all pleadings permitted by C.R.C.P. 7 have been filed . . . .” (emphasis added). While a case may be commenced by service of process, until the complaint and all responsive pleadings are filed in court, the case will not be deemed “at issue” and the case management system and discovery and disclosure rules of CRCP Chapter 4 will not apply.
Accordingly, as stated above, the parties’ ability to stipulate to alternative case management, discovery methods, deadlines, and requirements becomes limited only by the parties’ claims, circumstances, and the extent to which they and counsel can cooperate and agree.22 While a simple, short-lived Rule 3(a) waiver agreement may effectively provide nothing more than an agreed enlargement of time for defendant to respond to the complaint, the parties may fashion a much broader agreement to, for example:
• agree about procedural matters, such as serving and amending pleadings to correctly reflect the real issues in dispute, conducting
formal or informal discovery under any schedule, and im posing deadlines on themselves to which they agree;
• place a case on hold awaiting fulfilment of a condition subsequent, such as completion of an accounting or a complex building
inspection, achievement of maximum medical improvement, or completion of scheduled payments extending over years;
• retain and examine such experts as they deem necessary and to provide such experts adequate time for comprehensive investigation; and
• engage in formal or informal alternative dispute resolution, including engagement of a special master for discovery or accounting
disputes, and engagement of a mediator to assist in structuring the Rule 3(a) waiver agreement itself or settlement of the dispute.
The beauty of the Rule 3(a) waiver agreement is that when either party believes the parties have reached an impasse, or judicial intervention becomes necessary, either party can file the complaint, answer, and joint documents, such as a stipulated case management order, thus placing before the court a well-developed “at issue” case. If, for example, a party wants a hearing because the opponent is not complying with discovery or disclosure obligations, or wants to file a Rule 56 motion, or believes the dispute is ready for trial, that party may unilaterally file the pleadings and stipulations completed to date and its own motions, thereby invoking court intervention
and adjudication from that point forward.
The authors have found no published case involving a Rule 3(a) waiver agreement in Colorado and have not yet had a test case or opposing counsel agreeable to testing the practice. Admittedly, the un tested novelty and built-in limitations of a Rule 3(a) waiver agreement present potential risks. First, the progress of the litigation may be delayed between the time judicial intervention is sought and obtained. Such delay could interfere with scheduling anticipated by the agreement. As opposed to parties with a pending filed case, parties using a Rule 3(a) waiver agreement could not call the judge during a deposition to obtain a quick evidentiary ruling, and filing the case after such a dispute arises could delay resolution of the issue.23
Second, it is unknown how courts will respond to Rule 3(a) waiver agreements. This practice requires an unconventional application of CRCP 3(a) and other rules, such as CRCP 12 and 121(c), § 1-10. While courts may disapprove of the novel use of rules as proposed herein, it seems unlikely that they would dismiss cases in which counsel cooperatively have moved a case forward while lessening the court’s burden. How a court would schedule a Rule 3(a) waiver agreement case for trial is unknown and of course depends on the court’s docket. And a trial court could, after the case is filed, reject the parties’ agreements concerning case management, thereby requiring duplication of efforts.
Third, a defendant could disavow the Rule 3(a) waiver agreement and seek dismissal by motion for failure to comply with the 14-day filing requirement, or a plaintiff could seek default of a Rule3(a) waiver agreement defendant for filing no answer. Disregarding the contractual and ethical problems raised by such conduct,24 a properly drafted Rule 3(a) waiver agreement could include a mechanism such as fixed damages based on the complaint or a confession of liability that encourages the parties to not disavow or seek to challenge the agreement.
Colorado practitioners and courts are encouraged to consider the value of Rule 3(a) waiver agreements to allow essentially private litigation within the parameters of the Colorado Rules of Civil Procedure and the judicial system. Such agreements could improve judicial economy and enhance access to justice.
The authors thank Benjamin I. Kapnik, an associate at Wheeler Trigg O’Donnell LLP, for his suggestions to the article.
1. See“Chief Justice Directive 08-05, Directive Concerning Colorado Standards for Case Management in the Trial Courts,” 37 The Colorado
Lawyer 127 (Sept. 2008). Chief Justice Directive (CJD) 08-05 encourages district courts, as an organizational goal, to leave open no more
than 10% of cases more than one year, and as a District Court Benchmark for Individual Judges, to have no more than 20% of civil cases
open for more than 18 months. Similar standards were adopted for county court civil matters.
2. CRCP 3(a) states:
How Commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons and complaint. If the action is commenced by the service of a summons and complaint, the complaint must be filed within 14 days after service. If the complaint is not filed within 14 days, the service of summons shall be deemed to be ineffective and void without notice. In such case the court may, in its discretion, tax a reasonable sum in favor of the defendant to compensate the defendant for expense and inconvenience, including attorney’s fees, to be paid by the plaintiff or his attorney. The 14 day filing requirement may be expressly waived by a defendant and shall be deemed waived upon the filing of a responsive pleading or motion to the complaint without reserving the issue.
3. As originally promulgated, CRCP 3(a) allowed the court in its discretion to dismiss a case if the complaint was not filed within the time limits of the rule (originally 10 days) after hip pocket service. Over time, this provision was deleted and the waiver provision of the last sentence added. Colo. R. County Court Civ. Pro. 303(a) contains a similar waiver of filing a hip pocket served complaint, thus allowing a comparable Rule 303(a) waiver agreement to be used in county court cases.
4. CRCP 16(b)(1).
5. Filing an election for exclusion from CRCP 16.1 likewise is linked to the at issue date. CRCP 16.1(d).
6. The Minnesota rule allows parties one year to perform these functions without trial court intervention, or suffer dismissal with prejudice, unless the parties agree to an enlargement of this period while they continue their private efforts. This feature parallels CRCP 121 § 1-10(3), which allows the court to dismiss for failure to prosecute any case in which no activity has occurred for a period of 12 continuous months.
7. In response to a survey taken in 1996–97, Minnesota practitioners estimated that “most or some of their civil (non-family) cases typically settle without a court filing.” McAdoo, “A Report to the Minnesota Supreme Court: The Impact of Rule 114 on Civil Litigation Practice in Minnesota,” 25 Hamline L.Rev. 401, 421–22 (2002).
8. A Rule 3(a) waiver agreement might also be helpful in some domestic cases. CRS § 14-10-107 specifies that a domestic case is “commenced in the manner provided by the Colorado rules of civil procedure,” and CRCP 16.2(a) specifies that “service of process referenced in this Rule shall be governed by the Colorado Rules of Civil Procedure.” While certain disclosure documents must be filed, such as the Sworn Financial Statement, CRCP 16.2(e)(6), and the Certificate of Compliance, CRCP
16.2(e)7), the rule does not specify when they must be filed, thus Rule (3)(a) waiver litigants need not file them before seeking court intervention (which would inevitably become necessary, at the latest, when the parties are ready to obtain a dissolution decree). Most domestic case deadlines, like the CRCP 16.2(b) directive that courts provide “active case management” and the deadline for setting the initial status conference under CRCP 16.2(c)(1)(E), are activated by the filing of the petition. However, a Rule 3(a) waiver agreement is not likely suitable in cases requiring the protection of the automatic injunction under CRS § 14-10-107(4)(b)(1).
9. Under CRCP 12(b) a party may, but need not, assert certain defenses by filing a motion.
10. See CRCP 25(a) and (b).
11. Similarly, the Rule 12 mandate that responses and replies must be filed timely may likewise cause defendants facing a statute of limitation to pause. On the other hand, while Rule 12 requires that answers and replies be filed, it contains no self-actuating penalty for non-filing or late filing. Under CRCP 55(a), the court may enter a default for failure to file a timely response only after an opposing party (or, in theory, some other third party) takes action by bringing “that fact [to the court’s attention] by affidavit or otherwise.” A well-drafted Rule 3(a) waiver agreement should provide that after a party serves without filing its responsive pleading (e.g., answer or reply to counterclaim), the complaining party may not seek a default or default judgment.
12. See CRCP 45(a)(1)(A)(II), requiring subpoenas to contain a case number.
13. A claimant subject to a jurisdictional statute of repose may only avoid the effect of the deadline by commencing suit timely; such a statute of repose cannot be tolled by agreement. Under a timely Rule 3(a) waiver agreement, the initial service of process acts to commence the case, thereby meeting any deadlines imposed by applicable statutes of limitation or repose.
14. In a recent federal case, both parties asked the district court to seal certain discovery material. See Mitchell, “Taylor Swift asks judge to seal photos of alleged groping by Denver DJ to avoid ‘scandalous’ dissemination,” The Denver Post (Oct. 20, 2016), www.denverpost.com/2016/10/19/ taylor-swift-requests-judge-seal- photographs-alleged-groping. Such parties would have greater control over dissemination of such materials by using a Rule 3(a) waiver agreement.
15. CRCP 5(d) also requires filing certain other papers in court “within a reasonable time” after service. The authors have found no case defining such a “reasonable time,” and postulate that parties to a Rule 3(a) waiver agreement who file all such papers simultaneously with the complaint comply with the rule, especially in the absence of an objection.
16. This technique may be particularly effective when the parties’ counsel are communicating before the case is commenced, making this practice another topic of discussion before case commencement. Voluntary entry into a Rule 3(a) waiver agreement may also be an appropriate subject of a pre-litigation demand letter sent before commencement of a case.
17. Obviously, if not agreed to before service of process, discussions concerning use of a Rule 3(a) waiver agreement must take place very soon thereafter. A proposed form letter to be served with process proposing use of a Rule 3(a) waiver agreement, and a suggested form of agreement, are appended to this article.
18. Because Rule 3(b) states that the court does not obtain jurisdiction by virtue of a later than 14-day filing of the complaint, it is important that the defendant agree to jurisdiction by virtue of the service-commenced civil action.
19. This allows the defendant to preserve any time-based defense that arose prior to service.
20. The defendant’s confession of jurisdiction may be necessary, particularly with a foreign defendant, in view of the limitation in CRCP 3(b) that the court has jurisdiction from filing or service, “provided, however, if more than 14 days elapses [sic] after service upon any defendant before the filing of the complaint, jurisdiction as to that defendant shall not attach by virtue of the service.”
21. A plaintiff always has the option to file the complaint and open a case in the regular course. For a defendant wishing to involve the court after entry into a Rule 3(a) waiver agreement, the procedure is likely a little more complicated. Presumably the process would be similar to a defendant filing a motion to dismiss a hip pocket service case when the complaint was not filed within 14 days after service. Because there is no active case in the Colorado Courts E-Filing system, such a defendant must file a motion to dismiss (for failure to file the complaint) as a “general” motion. (See JDF 76 and form of general order JDF 77.) Because there is not yet a specific Colorado form for filing a Rule 3(a) waiver agreement case, a defendant would presumably file the complaint, answer, and other papers under a general heading.
22. CRCP 16(d)(3) seems to suggest that when counsel work together collegially, district courts should limit court oversight over administrative minutiae.
23. The parties’ appointment of a discovery master could alleviate this problem, and the parties can incorporate into their agreement a provision establishing an early “at issue” date that may minimize, in part, any auto- matic delay arising in an ordinary filing.
24. Reneging on a Rule 3(a) waiver agreement should be considered akin to reneging on a tolling agreement. See Lewis v. Taylor, 375 P.3d 1205, n. 3 (Colo. 2016), in which the Colorado Supreme Court cited In reLehman Bros. Secs. & ERISA Litig., No. 09 MD 2017 (LAK), 2012 WL
6584524, at *2 (S.D.N.Y. Dec. 18, 2012) (calling defendant’s argument that plaintiff ’s claim was time-barred, notwithstanding a tolling agreement, “a notable bit of ‘chutzpah’” and “ridiculous” (citation omitted)).