§ Rule 40 Trial setting

Rule 40. Trial setting

(a) Court Calendars or Calendar Review. [Rescinded effective November 1, 1987]

(b) Request for Trial Setting. In any action which is at issue, either party may request the court at any time to set the same for a pre-trial hearing or for trial, or the court on its own initiative may set such action for trial or pre-trial hearing. Such request shall be in such form and contain such information as prescribed by the administrative judge of the judicial district but shall include statements as to the nature of the case, whether a jury trial has been demanded, whether mediation would be beneficial to the resolution of the dispute, and estimate of the time required for the trial, the name of the attorney who will appear at trial, and the dates on which the attorney would not be available for trial of the action. The request shall be served upon all parties to the action. Within five (5) days after service of such request, the attorneys of record of all other parties to a pending action shall file written responses containing all of the information required in the request for trial setting and serve copies thereof upon all other parties to the action. Upon receipt of the request and the responses thereto, or upon a failure to file the response as required by this rule, the court may set the action for pre-trial hearing or trial without waiting for the next calendar call date.

(c) Dismissal of Inactive Cases. In the absence of a showing of good cause for retention, any action, appeal or proceeding, except for guardianships, conservatorships, and probate proceedings, in which no action has been taken or in which the summons has not been issued and served, for a period of six (6) months shall be dismissed. Dismissal pursuant to this rule in the case of appeals shall be with prejudice and as to all other matters such dismissal shall be without prejudice. At least 14 days prior to such dismissal, the clerk shall give notification of the pending dismissal to all attorneys of record, and to any party appearing on that party's own behalf, in the action or proceeding subject to dismissal under this rule.

(d)(1) Disqualification Without Cause. In all civil actions and petitions for judicial review, the parties shall each have the right to one (1) disqualification of the judge without cause, except as herein provided, under the following conditions and procedures:

(A) Motion to Disqualify. In any action in the district court or the magistrate's division thereof, any party may disqualify one (1) judge by filing a motion for disqualification, which shall not require the stating of any grounds therefor, and such motion for disqualification, if timely, shall be granted. A motion for disqualification shall not be made under this rule to hinder, delay or obstruct the administration of justice.

(B) Time for Filing. A motion for disqualification without cause must be filed not later than seven (7) days after service of a written notice or order setting the action for status conference, pretrial conference, trial or for hearing on the first contested motion, or not later than twenty-one (21) days after service or receipt of a complaint, summons, order or other pleading indicating or specifying who the presiding judge to the action will be, whichever occurs first; and such motion must be filed before the commencement of a status conference, a pretrial conference, a contested proceeding or trial before the judge sought to be disqualified.

(C) Multiple Parties. If there are multiple parties plaintiff, defendant or otherwise, the trial court shall determine whether such co-parties have sufficient interest in common in the action so as to be required to join in a disqualification without cause, or whether such parties have an adverse interest in the action such that each adverse co-party is entitled to file one (1) motion for disqualification without cause.

(D) New Parties. If a new party is joined in an action after the time for disqualification without cause of the presiding judge has passed, the new party shall have the right to file a motion for disqualification without cause within fourteen (14) days of the filing date of that party's first appearance or from the date when that party's first responsive pleading is due, whichever occurs first.

(E) New Judge. If at any time during the course of the proceedings, except under circumstances involving alternate judges as set forth below in subparagraph (G), a new judge is assigned to preside over the case, each party shall have the right to file one (1) motion for disqualification without cause as to the new judge, within the time limits set forth in subparagraph (B) of this Rule. Provided, if a party has previously exercised a disqualification under this Rule 40(d)(1), that party shall have no right of disqualification without cause of a new judge under this subparagraph.

(F) Disqualification on New Trial. After a trial has been held, if a new trial has been ordered by the trial court or by an appellate court, each party may file a motion for disqualification without cause of the presiding judge, within the time limits set forth in subparagraph (B) of this Rule.

(G) Alternate Judges. If the presiding judge intends to have a panel of judges as alternates to try the case set for trial, a notice or amended notice of trial setting shall include a list of judges who may alternatively be assigned to preside at the trial if the presiding judge is unavailable to try the case. Upon service of the notice as to the panel, each party shall have the right to file one (1) motion for disqualification without cause as to any alternate judge not later than ten (10) days after service of written notice listing the alternate judges who may preside at the trial of the case. Provided, if a party has previously exercised the right to disqualification without cause under this Rule 40(d)(1), that party shall have no right to disqualify an alternate judge under this subparagraph.

(H) Service on Judge. A party moving to disqualify a judge under this Rule 40(d)(1) shall mail a copy of the motion for disqualification to the presiding judge or magistrate at the judge's resident chambers.

(I) Exceptions. Notwithstanding the above provisions, the right to disqualification without cause shall not apply to:

(i) A judge when acting in an appellate capacity from another court, unless the appeal is a trial de novo;

(ii) A judge in a post-conviction proceeding, when that proceeding has been assigned to the judge who entered the judgment of conviction or sentence being challenged by the post-conviction proceeding.

(iii) A judge who has been appointed by the Supreme Court to preside over a specific civil action.

(2) Disqualification for Cause.

(A) Grounds. Any party to an action may disqualify a judge or magistrate for cause from presiding in any action upon any of the following grounds:

1. That the judge or magistrate is a party, or is interested, in the action or proceeding.

2. That the judge or magistrate is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law.

3. That the judge or magistrate has been attorney or counsel for any party in the action or proceeding.

4. That the judge or magistrate is biased or prejudiced for or against any party or the case in the action.

(B) Motion for Disqualification. Any such disqualification for cause shall be made by a motion to disqualify accompanied by an affidavit of the party or the party's attorney stating distinctly the grounds upon which disqualification is based and the facts relied upon in support of the motion. Such motion for disqualification for cause may be made at any time. The presiding judge or magistrate sought to be disqualified shall grant or deny the motion for disqualification upon notice and hearing in the manner prescribed by these rules for motions.

(3) Motion for Disqualification. [Rescinded effective November 1, 1987]

(4) Voluntary Disqualification. This rule shall not prevent any presiding judge in an action from making a voluntary
disqualification without stating any reason therefore.

(5) Disqualification and Assignment of New Judge. Upon the filing of a motion for disqualification, the presiding judge shall be without authority to act further in such action except to grant or deny such motion for disqualification. Upon disqualification of a judge for any reason, the administrative judge of the judicial district, or designee, shall appoint any other qualified judge in the judicial district to act or preside in the action. In lieu of such direct appointment procedure, the administrative district judge, or designee, may make application to the Supreme Court for appointment of a new judge from outside of the judicial district to act or preside in the action.

(e) Change of Venue.

(1) Judge or magistrate may grant a change of venue or change the place of trial to another county in any civil action as provided by statute, and the judge or magistrate must, on motion pursuant to Rule 12(b), change the venue of a trial when it appears by affidavit or other satisfactory proof:

(A) That the county designated in the complaint is not the proper county, which motion must be made no later than fourteen (14) days after the party files a responsive pleading, or

(B) That there is reason to believe that an impartial trial cannot be had therein, or

(2) In the event a trial judge grants a change of venue pursuant to this Rule to a court of proper venue within the same judicial district, the trial judge granting the change of venue shall order the case transferred to a specific court of proper venue within the judicial district and shall continue the assignment over the case, unless the administrative district judge shall reassign the case to another judge of the judicial district. In the event a trial judge desires to transfer a case to a court of proper venue outside of the judicial district in which the action is filed and desires to continue the assignment over the case, the trial judge may enter an order granting the change of venue and indicate therein a suggested court of proper venue in another judicial district and the trial judge's desire to preside over the case, and then refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue in another judicial district and assignment of a specific judge to preside in the proceeding. In the event a trial judge desires to transfer a case to a county outside of the judicial district in which the action is filed upon the grounds
that the county designated in the complaint is not the proper county, the trial judge shall enter an order transferring the case to the proper county and a trial judge of the receiving judicial district shall be assigned to preside over the case under the assignment procedures of that judicial district. In the event a trial judge desires to transfer a case to a court of proper venue outside of the judicial district in which the action is filed upon the grounds set forth in sub-paragraphs (1)(B) or (1)(C) of this rule, and the trial judge does not desire to continue the assignment over the case, the trial judge shall enter an order granting the change of venue, and then refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue in another judicial district and assignment of a specific judge to preside in the proceeding.

(3) In the event that a judge is disqualified from further handling of a proceeding in which a change of venue has been granted to a court of proper venue within the same judicial district, the administrative district judge shall reassign the case to another judge of the judicial district. In the event that a judge is disqualified from further handling of a proceeding in which a change of venue has been granted from an originating court outside of the judicial district, the administrative district judge of the judicial district to which venue has been removed shall refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue and assignment of a specific judge to preside in the proceeding.

(4) In ruling upon a motion for change of venue under subsection (1)(A) above, the court may consider an objection thereto based upon subsections (1)(B) or (1)(C), and the court may deny an otherwise proper motion for change of venue under section (1)(A) if it finds that the convenience of witnesses and the ends of justice would be promoted by retaining jurisdiction in the county where the action is filed.

(5) When a judge or magistrate grants a motion for change of venue, if the court finds that the action was filed in the county of improper venue without good cause, the court may, in its discretion, assess sanctions against the party, or the party's attorney, who filed the action.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.