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What’s The Difference? Civil Procedure in Kentucky vs. Federal Courts
Posted in Litigation
What’s The Difference? Civil Procedure in Kentucky vs. Federal Courts

While Kentucky’s Rules of Civil Procedure were patterned very closely upon the federal rules then in effect, the current versions are not identical and some of their modern differences can be significant. This article provides an overview of some of the most important current differences between those rules.

Where the rules are substantively the same, federal cases interpreting them will often be considered by Kentucky courts interpreting Kentucky’s state rules.

But it is the differences that can make us stumble. Here, in the order of their appearance (and by primary reference to Kentucky rules), are a few places where it is particularly important to ask: am I in federal court or state court?

CR 3 - Commencement of Action
While both the state and federal rules provide that a civil action is commenced with the filing of a complaint, Kentucky’s rule adds “and the issuance of a summons or warning order herein in good faith.” This can be crucial in cases involving statutes of limitations. While the filing of just a complaint in federal court might be enough to beat the limitations deadline, additional steps – issuance and service of a summons – can be critical under Kentucky law.

CR 4 – Getting the Parties Before the Court (Summons, Service, etc.)
The federal rule approves “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” FRCP 4(e)(1) (emphasis added). But the form of the summons, who prepares it (court or plaintiffs), alternative methods of service, provisions for waiver – all of those details are completely different. Practitioners should pay special attention to the appropriate Rule 4 and comply with the respective requirements of federal or state court.

CR 4 also contains many provision not found in FRCP concerning constructive service, court control over property or proceeds of persons constructively served (or a bond in lieu thereof), unknown defendants, and amendment of summons.

CR 5 – Serving and Filing Papers
The parts of CR 5 dealing with the service of papers on counsel or parties are generally similar to FRCP 5, with both sets now providing for electronic service. But important details are different (including state provisions for warning order attorneys), and the applicable rule should be consulted in each case. For example, CR 5.03 requires that the electronic address used for service be stated in the proof of service.

On a more substantive note, FRCP 5.1 (providing for notice to the United States Attorney General in cases involving federal constitutional challenges) has no counterpart in CR 5, but does contain a counterpart in CR 24.03 (requiring notice to the Kentucky Attorney General for constitutional challenges and state law). CR 24.03 refers specifically to CR 5 for service of a motion to intervene in such cases.

CR 5.06 provides that certain discovery documents “shall not be filed with the Court unless the Court orders otherwise.” Thus, while CR 5.06 is consistent with FRCP 5(d) (similarly forbidding the filing of certain discovery materials), this is an instance where the local rules must be consulted. The practice varies widely among circuit courts in Kentucky, and CR 5.06 allows this to be decided by each court as a matter of local practice.

CR 6 – Computation of Time
The federal and state rules differ slightly in the computation of certain filing deadlines. When it matters, it really matters. Count carefully every time under the set of rules that is applicable, never assuming you would reach the same date under the other rulebook.

CR 7 – Pleadings and Motions
The forms of pleadings recognized in both courts are the same, with Kentucky’s rule specifically forbidding demurrers in modern practice. CR 7.02(3). Federal court requires early disclosure statements by corporations to avoid the situation of a judge learning later in the case, perhaps, that a conflict of interest based on his or her indirect stock ownership might exist. FRCP 7.1.

CR 7.03 contains express protocols for protecting sensitive personal data in any filing and requires redaction of social security numbers and other information. Failure to comply may result in sanctions as set forth in CR 7.03(7).

CR 8 – General Rules of Pleadings
CR 8.01(1) and FRCP 8(a) remain substantively identical on the written page of the rule books. The development of federal case law, however, requiring a plausible claim to be stated under Iqbal and Twombley, is so important that a separate article is included in this issue devoted to pleading practice under rules 8 and 12.

CR 8.01(2) forbidding the pleading of a sum certain for unliquidated damages has no federal counterpart. Close attention should be paid to the obligation of a claimant to specify the amount by answer to interrogatories. While supplementation may be allowed where there is no prejudice, it could well be denied, especially in cases where the opposing party is indeed prejudiced by not knowing how to value the case for settlement or trial.

CR 9 – Pleading Special Matters
Kentucky’s rule remains substantially the same as the federal version. Both require pleading of fraud to be “with particularity.” FRCP 9(h) includes admiralty and maritime claims for which, of course, there is no state counterpart.

CR 11 – Signing and Sanctions
The state and federal versions are procedurally very different, and particular attention should be given to these points:

  1. The federal rule provides for a “safe harbor” of 21 days after notice is given of an alleged violation. To facilitate this, a motion for sanctions may be served but not filed if the challenged action is withdrawn or corrected in the 21-day period.
  2. Kentucky’s rule directs that the trial court “shall postpone ruling on any Rule 11 motion” until after entry of a final judgment.

In substance, the rules remain similar, requiring the signature of an attorney of record (or by the party directly, if unrepresented) on every document filed with the court and mandatory provisions for striking unsigned papers. What that signature means, in terms of “certification” under CR 11 or “representations to the Court” under FRCP 11, is also similar, although the federal rule specifically allows for factual contentions that are “specifically identified” to be made with the belief that they “will likely have evidentiary support after a reasonable opportunity” for discovery and investigation. This allows the practice of good faith pleading “upon information and belief” to continue.

CR 12 – Pleading Defenses/Motion Practice
Although CR 12 and FRCP 12 remain similar in many ways, the development of federal practice post-Iqbal, supra, now mandates consideration of whether a federal pleading states a plausible claim. Whether Kentucky will follow this development under rules 8 and 12 has not yet been determined. Compare, for example, Data Key Partners v. Permira Advisers, LLC, in which Wisconsin adopted the plausibility standard, with Walsh v. US Bank, N.A., in which Minnesota rejected it.

The time for responsive pleadings is 20 days under CR 12, and 21 days under FRCP 12. The denial of a dispositive motion postpones the responsive pleading until 10 days after denial in state court and 14 days after denial in federal court.

CR 14 – Third-Party Practice
CR 14.01 requires a defendant in state court to move for leave to bring in a third-party defendant. By contrast, FRCP 14(a) allows a defendant to bring in a third party as a matter of right without the need to file any motion, so long as the third-party summons and complaint are filed within 14 days of the defendant’s answer. If more than 14 days have passed, leave must also be sought in federal court. Both rules permit a plaintiff who is defending a counterclaim to also make a third-party claim, but CR 14.02 appears, again, to contemplate leave of court whereas FRCP 14(b) specially allows the plaintiff to “bring in a third party.” CR 14.03 addresses bond issues, for which there is no federal counterpart; FRCP 14(c) addresses admiralty and maritime claims, for which there is no state counterpart. Both rules allow for an impleaded party to, in turn, engage in further third-party practice but, again, the state rule appears to contemplate that leave of court will be sought in every instance.

CR 15 – Amended and Supplemental Pleadings
With slight (but crucial) differences in the deadlines for doing so, both sets of rules allow for amended and supplemental pleadings. Both rules still frame the standard for allowing later amendments (if the time for amendment as a matter of right has passed) as “when justice so requires.” Both state and federal courts recognize a futility exception by case law.

CR 16 – Pretrial Case Management
FRCP 16 is lengthier and more detailed, but both versions deal essentially with case management. Kentucky law recognizes that a court has inherent authority to control and manage its docket. Thus, everything specified in the federal rule should be available for the state court’s consideration as well. Whether a Kentucky court may use its CR 37 sanction power under CR 16, which is authorized by FRCP 16(f)(1), has not been expressly decided in Kentucky. The inherent power of a court to control the proceedings before it is not unlimited. But the “law is well settled that the parties are bound by a pretrial order.” Thus, if an order follows and confirms the state court’s CR 16 scheduling conference, CR 37.02 relief would appear to be available in state court, just as it is in federal court, despite the difference in the language of these rules.

CR 17 – Capacity to Sue and Be Sued
Kentucky’s list of persons who may sue on behalf of another without joining the person for whose benefit the action is brought is broader than the federal rule, but that is partly because FRCP 17 expressly defers to state law on certain issues of capacity to sue or be sued. Careful attention should be paid to the applicable rule, and any state rules designated by FRCP 17, to ensure that the proper party is before the court.

CR 23 – Class Actions
While CR 23 remains similar to FRCP 23, any class action (or “mass action”) brought in either court is also potentially subject to the federal Class Action Fairness Act (“CAFA”), 28 U.S.C. §1332(d). Thus actions initially filed in state court under CR 23 may be subject to removal to federal court under CAFA where they would be governed by FRCP 23.

CR 25 – Substitution of Parties
Kentucky’s rule says substitution of a proper party for a deceased party must occur “within the period allowed by law.” CR 25.01. This implicates KRS 395.278, specifying a one-year period after death in which an application to revive an action may be filed. FRCP 25(a)(1) contains an express time limit of 90 days for filing a motion to substitute.

CR 26 – General Provisions for Discovery
FRCP 26 has been amended nearly beyond recognition, while a previous version remains essentially intact in the form of CR 26. For example, federal practice now provides for mandatory initial disclosures; specifies the timing of expert disclosures and the contents (both for witnesses who must prepare written reports and those who do not); expressly protects drafts of expert reports and disclosures; and expressly requires a privilege log. While some of the federal protocols are observed in state practice as a matter of choice or good practice, the actual governing rules are now very different.

CR 28 – Logistics of Depositions
Practice under CR 28, following the use of depositions taken out of state and the taking of depositions here for use in other states, is now also subject to KRS 421.360, the Uniform Interstate Depositions and Discovery Act. The federal rule is more directed toward foreign countries (and such circumstances may implicate The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters). The safest approach in any case is to consider first where the deposition will be used and make sure that those rules are satisfied, and then to consider where the deposition must be taken so that the evidence can actually be obtained. If the deposition is to be used in Kentucky and the witness is in Kentucky, CR 28 will not likely be implicated at all (except to make sure the deposition is taken before a person listed in CR 28.01). But if the deposition is to be taken in California for use in a Kentucky proceeding, careful attention to CR 28.02, KRS 421.360, and whatever California procedure requires must all be considered.

Only the federal rule expressly disqualifies a party’s relative or employee from taking depositions. FRCP 28 (c).

CR 29 – Stipulations Governing Discovery Procedures
Kentucky’s rule is more restrictive than FRCP 29 concerning what stipulations the parties may reach to modify discovery deadlines. CR 29 provides that court approval is needed even to extend deadlines for responses to interrogatories and requests for admissions and for production of documents. This rule is certainly more honored in the breach than in actual observance, as parties frequently cooperate in extending state-court deadlines, especially in complex cases. Waiver or estoppel principles presumably would prevent a cooperating party from reneging on such extensions. The federal rule limits such cooperation only if it would interfere with deadlines otherwise set by the court or delay other proceedings.

CR 30 – Depositions Upon Oral Examination
The major difference between CR 30 and FRCP 30 is that depositions can be taken almost immediately in state court (30 days after service of summons), whereas federal practice is controlled by a mandatory “meet and confer” scheduling conference at the beginning of the case. Once depositions are convened, the rules are very similar. For example, while Kentucky’s rule contains more detailed provisions on video depositions, both sets of rules allow for video depositions or stenographic recordings, or both.

Both rules also allow for organizations to be deposed so long as the entity receives a description “with reasonable particularity” in the areas of inquiry. Both allow a party or witness to suspend the deposition when necessary to seek an order to limit or terminate the deposition. But the rules differ in such details on when and how a request for the witness to sign is made, (in writing, CR 30.05; on request before the deposition is completed, FRCP 30(e)); how many can be taken (only 10 under FRCP 30 (a)(2)); and how long they can last (1 day of 7 hours under FRCP 30(d)(1)). Such details make deposition practice another key area in which the applicable rule should be studied carefully.

CR 31 – Depositions by Written Questions
While both sets of rules allow for depositions upon written questions (rarely used in actual practice), the deadlines for cross-questions are different. CR 31.10(3) allows 30 days for cross-questions, followed by 10 days for redirect; FRCP 31(a)(5) allows only 14 days for cross and 7 days for redirect, but does allow re-cross 7 days after that.

CR 32 – Use of Depositions in Court Proceedings
While both the state and federal rules allow the use of depositions at trial where the witness is distant or unavailable, Kentucky’s rule contains notable specific provisions for governors, postmasters, lawyers, bank tellers and quite a few others. This comes up perhaps most routinely with medical proof, because CR 45.05 provides that a physician (or any witness whose deposition can be used under 32.01(c)) cannot be compelled to appear in court unless that witness failed to appear when subpoenaed for deposition. The federal rule has no counterpart to this. A general provision in federal Rule 32(4)(E) allows for depositions to be used upon “motion and notice… in exceptional circumstances… with due regard to the importance of live testimony in open court…” This makes federal and state practice very different, with certain specified witnesses under Kentucky’s CR 32 not subject to a state court trial subpoena, while those same witnesses might not be allowed to testify by deposition in federal court in the absence of exceptional circumstances.

This same preference for live testimony in federal proceedings shows up in Rule 43, discussed below. Among the vast differences between CR 43 and FRCP 43 is the provision of CR 43.04(1) that testimony in certain cases “shall be taken by deposition” unless otherwise ordered. While some of the proceedings listed in CR 43.04(1) have no federal counterpart (divorce, for example), FRCP 43 does not list any type of proceeding for which deposition testimony is to be preferred over the appearance of a live witness.

CR 33 – Interrogatories
Federal practice is limited to 25 written interrogatories (unless otherwise stipulated or ordered by the court), while Kentucky allows a maximum of 30. Federal practice prohibits any kind of discovery before the scheduling conference, discussed above, but interrogatories under CR 33 can be served hand-in-hand with the complaint in state court. In such cases, the time for response is extended from the usual 30 days to 45 days. CR 33.01(2).

CR 34 – Document Requests
As in the case of interrogatories, Kentucky allows document requests to be served with the complaint, but allows 45 days (instead of 30) for a response in such cases. This is very different from modern federal practice, where mandatory initial disclosures and scheduling conferences must come first.

CR 35 – Physical and Mental Examinations
FRCP 35 provides expressly that the party ordered to be examined waives any privilege he or she may have concerning testimony about all other “examinations of the same condition” if the examined party asks for the court order and examiner’s report or deposes the court-ordered examiner.

CR 37 – Failure to Make Discovery; Sanctions
FRCP 37 requires a party who moves to compel discovery to certify that the movant has conferred in good faith with the party failing to make the discovery before asking the court to get involved. While CR 37 does not contain this requirement, local rules should be consulted because many Kentucky circuits do follow federal practice on this point. A movant’s failure to make the good faith attempt under the federal rule precludes the federal court from awarding expenses to the moving party, even if the motion is ultimately granted. FRCP 37(a)(5)(A)(i).

FRCP 37(e) expressly protects parties from sanctions where electronically stored information has been lost in the good faith, routine operation of a system. While Kentucky’s rule does not contain this express provision, CR 37(d) in general allows a court to refuse an award of expenses in any circumstances where the award would be “unjust.”

The federal rule also authorizes sanctions against a party who refuses to cooperate in framing a joint discovery plan as required by FRCP 26(f), for which there is no state counterpart. FRCP 37(f).

CR 38 – Jury Trials
When a jury demand is made in state court by one party for only some of the issues, the opposing party has 10 days in which to serve a demand for trial by jury on other or all issues. CR 38.03. The federal rule allows 14 days. FRCP 38(c).

CR 40 – Scheduling Trials
CR 40 requires “reasonable notice” of the trial date to all parties not in default. While not explicitly stated in the federal rules, this would seem also implicit in fundamental due process requirements. FRCP 40 does require each court “to provide by rule” for such scheduling and to give priority to scheduling trials in accordance with any federal statutory preferences.

CR 42 – Consolidation; Separate Trials
The state rule provides that a court “shall order” separate trials of claims or issues if it determines that separate trials would further convenience or avoid prejudice. The federal rule says “may,” and specifically adds that “the Court must preserve any federal right to a jury trial.”

CR 43 – Evidence at Trial
The state and federal rules are almost completely different, similar only in their requirement that most evidence should be taken in open court. CR 43.04(1); FRCP 43(a). Attorneys who generally practice in federal court should study CR 43 to prepare carefully for any state proceedings, as it governs the order of proof, burden of proof and many other details not addressed by the federal rule. And as discussed under CR 32 above, it may not even be possible to subpoena a witness for live testimony in state court unless that witness failed to appear at a deposition.

CR 44 – Proof of Official Records
The federal version provides for “Final Certification of Genuiness” of a foreign record, and other means of proof under certain circumstances. The federal version also specifically allows proof regarding lack of a record, after diligent search, which provision has been deleted from Kentucky’s rules. The Kentucky Rules of Evidence now govern some of this proof and should, of course, be considered in addition to these rules of civil procedure.

CR 45 – Subpoenas
Both rules allow a subpoenaed party to make written objection to the inspection or copying of documents and to rest on that objection unless the party serving the subpoena obtains a court order. But the deadlines for doing so are different (10 days after service in state court, 14 days after service in federal court). Note that written objections only protect against producing documents. If a witness has been validly subpoenaed to appear to give testimony, failure to appear can be punished in both systems as contempt. CR 45.02; FRCP 45(g). A witness who does not want to appear must move to quash the subpoena, in state court on the grounds that “it is unreasonable or oppressive” (CR 45.02), or in federal court on the more specific grounds listed in FRCP 45(d)(3) (too little time to comply, exceeds the geographical limits, would require disclosure of privileged or other protected materials, etc.)

The state rule also provides residents with greater protection against forced travel for discovery (need only appear in the county where he resides or works, unless otherwise ordered by the court). The federal rule uses a 100-mile radius or, for parties’ and their officers, the geographical boundary of the state (instead of county) where the person works or resides.

CR 47, 48 and 49 – Jurors and Verdicts
These rules are not only very different in the rulebooks; much of the substance is covered by statutes, the state constitution and case law. It takes nine out of 12 jurors voting in agreement to make a civil verdict in Kentucky, and the same nine need not agree to every answer in a special verdict. A federal jury can be made up of just six, but their verdict must be unanimous. The federal court must poll the jury at the request of any party to confirm that the verdict really was unanimous. Jury selection, voir dire, the exercise of challenges, and other trial logistics vary so much between federal and state courts, and even among courts in the same system, that pretrial preparation must include confirming the specific practice followed in the specific court where the case will be tried.

CR 50 – Motions Following Proof
Kentucky’s rules are still phrased in terms of asking a court to take a case away from a jury by asking the court to “direct a verdict” on legal grounds, instead of letting the jury decide the outcome by resolving factual disputes. The federal rule now spells this out as moving “for judgment as a matter of law.” FRCP 50(a). Both systems require a movant to raise the legal issue before the case is submitted to a jury in order to move for relief after a verdict is returned. In state court, the post-judgment motion must be made within 10 days after entry of judgment (or discharge of the jury if they reached no verdict). In federal court, the deadline is 28 days.

CR 51 – Instructions to Jury
CR 51(2) specifically requires a Kentucky court to give written instructions before closing argument is made to the jury, whereas FRCP 51(b)(3) allows instructions “at any time before the jury is discharged.”

CR 52 – Findings of the Court
Kentucky’s deadline for asking a court to amend its findings or to make additional findings is 10 days after entry of judgment; the federal rules allow 28 days.

CR 53 – Master Commissioners
The office of Master Commission under CR 53 is substantially different from the special master contemplated by FRCP 53. The appointment of a master in the federal system is unusual and case-specific; CR 53.02(3) provides for similar references “in special cases,” but most of CR 53 addresses the routine work of a regular Master Commissioner (judicial sales, settlement of accounts of estates, etc.). The manner and limits of compensation also differ.

CR 54 – Judgment and Costs
In addition to the express provisions of CR 54 and FRCP 54 allowing for entry of a final and appealable judgment on fewer than all of the claims in a case, federal litigants may turn to 28 U.S.C. §1292 for interlocutory appeals in certain cases, not available in state practice.

For default judgments, CR 54.03 requires proof of unliquidated damages to accompany the demand for default (because those damages are unspecified in the pleadings under CR 8.02(2), as described earlier). The federal rule does not contain this provision because federal practice does not forbid the estimate of unliquidated damages to appear in the initial pleading. FRCP 54(d)(2) governs requests for attorney fees, which must be made within 14 days of entry of judgment. Kentucky’s rules have no counterpart to this, but good practice would be to file such a motion (if attorneys’ fees are recoverable by statute, contract, or otherwise) within the 10-day deadline for amending the judgment.

CR 55 – Default
Other than the different provisions for notice to parties who have appeared, but are still in default (three days in state court, seven days in federal), the default rules are substantially the same (but with the state court requiring proof of damages under CR 54.03(1), above). This is another area, however, where local rules should be consulted because they may impose additional requirements in a specific circuit.

CR 56 – Summary Judgment
Fifteen years ago, state court practice appeared to veer completely away from federal practice, even under the identical rule 56, with the Kentucky Supreme Court’s decision in Steelvest, Inc. v. Scansteel Serv. Ctr. Inc. Subsequent case law has clarified and reaffirmed, however, that CR 56 is alive and well in Kentucky.

A jury trial without the requisite proof is a futile exercise, wasteful of judicial time, jurors’ time, and the litigants’ time and resources. CR 56 is intended to avoid such unnecessary proceedings.

A comparison of state and federal summary judgment practice is provided by a separate article in this issue.

CR 57 – Declaratory Judgments
While the rules are similar in state and federal court, both courts also have declaratory judgment statutes that should be consulted.

CR 58 – Entry of Judgments
Every judgment or order entered in a state court proceeding must be signed by the judge. FRCP 58 directs the clerk of the court to enter judgment “without awaiting the court’s direction” when the jury returns a general verdict, or the court awards only costs or a sum certain, or when the court denies all relief.

CR 59 – Post-judgment Motions
Kentucky’s rule lists specific grounds for a new trial, and a motion seeking one must be made within 10 days of entry of the judgment. The federal rule allows 28 days, and as grounds refers to “any reason for which a new trial has been heretofore granted in an action at law in federal court.” FRCP 59(a)(1)(A). Both courts allow a court to grant a new trial on its own initiative or for grounds not stated in a motion, and both allow a court to take additional evidence and other action if the case was not tried by a jury.

CR 62 – Stay
The Kentucky rule does not contain the provision of FRCP 62 forbidding execution on a judgment “until 14 days have passed after its entry.” CR 69.03 provides, instead, that Kentucky’s statutes control. KRS 426.030 forbids any execution to issue until 10 days after entry of judgment.

If a party moves for post-judgment relief in state court under CR 50, 52.02, or 59, the motion serves as an automatic stay of the judgment in Kentucky (and the Kentucky court has discretion to stay proceedings while a CR 60 motion is pending). Under FRCP 62(b), a stay pending resolution of a motion made under any of the parallel rules (FRCP 50, 52(b), 59, or 60) is discretionary. This means a movant in federal court must affirmatively seek a stay when filing such a motion and should do so within 14 days (instead of waiting 28 days).

Both versions of Rule 62 allow for a stay pending appeal to be obtained by posting a bond. Injunction cases, however, are treated differently; CR 62.02 and CR 65.08 allow the circuit court to maintain the status quo long enough for the movant to seek further relief from the appellate court, while FRCP 62(c) allows the district court to stay the case pending appeal. If a federal appeal has already been docketed, however, FRCP 62.1 may constrain the district court’s authority to act.

CR 63 – Disability of Judge
Kentucky’s rule allows a successor judge to grant a new trial if disability occurs after a trial and the successor cannot perform the post-trial duties. This is different from FRCP 62 which allows the successor to proceed upon certifying familiarity with the record and lack of prejudice. In such a case, however, if there was no jury, the federal judge “must recall any witness whose testimony is material and disputed” if a party makes that request and the witness is available.

CR 65 – Injunctions
While injunction practice is conceptually the same in both courts (seeking urgent relief, needed immediately) the language and procedure are different and care should be taken to follow the applicable rules and case law for the specific court. For example, CR 65 talks about a “restraining order” and a “temporary injunction” whereas FRCP 65 refers to a “preliminary injunction” and a “temporary restraining order.” The duration of temporary relief is also different under CR 65.03 and FRCP 65. The federal rule also expressly contemplates advancing a trial on the merits of the case so that evidence taken on the motion for injunctive relief becomes the actual trial.

Because of the immediacy and urgency inherent in injunction practice, this is one place where litigants must go straight to the applicable rule and stay focused on what that rule requires. While federal case law might be persuasive by analogy in assessing irreparable harm, for example, confusion in practice and standards could easily lead to reversible error by the next higher court.

CR 67 – Deposits Into Court
Kentucky’s rule provides for court-ordered deposits into court, for which there is no federal counterpart in FRCP 67. If a party seeks to be dismissed from an action by making a deposit into court and relinquishing any claim to those funds, interpleader is also provided for by rule 22 in both systems, and by federal statute.

CR 68 – Offers of Judgment
Kentucky’s rule on making an offer of judgment contains a provision that is not found in FRCP 68 nor explained by case law: “The offer may be conditioned upon the party’s failure in his defense.” Because the state rule contemplates that an offer of judgment must be accepted within 10 days after it is served, and that it must be made “more than 10 days before the trial begins,” this condition (which may be a remnant of code practice predating the civil rules) would not seem applicable to a failure of defense at trial and it is unclear how, if ever, it could apply in modern practice.

The federal rule allows 14 days for acceptance.

CR 71 – Enforcement For and Against Non-parties
These rules are substantively the same, except the federal rule contains an entire subpart, FRCP 71.1, on condemnation of property. Kentucky’s procedure is governed by the Eminent Domain Act, KRS Chapter 416.

CR 72-76 – Appellate Practice
A comparison of appellate practice is beyond the scope of this article, as federal practice is governed not by the civil rules of procedure, but rather by the Federal Rules of Appellate Procedure (and, for Kentucky practitioners, by the Sixth Circuit’s own rules and internal operating procedures). FRCP 72-73, dealing with magistrate judges, have no state counterpart and FRCP 74-76 have been abrogated.

CR 77 – Courts and Clerks
CR 77.02(2) provides for annual “show cause” review of court dockets, by which notice “shall be given” to parties in cases where no pretrial steps have been taken in the past year to show “good cause” why the case should not be dismissed. There is no federal counterpart.

FRCP 77(c)(2) gives the federal court clerk more power to enter some orders or even a default judgment than is permitted under Kentucky’s CR 77.03, but both are subject to a court’s suspension or rescission.

CR 77.04(2) provides for the clerk’s notation on the docket, which is a trigger for the running of the deadline for appeal. The federal rule instructs the clerk to record on the docket service of notice of entry of judgment, but it does not equate that act by the clerk with entry of the judgment.

CR 79 – Records of the Clerk
The state rule is considerably longer and more inclusive, as it provides for the recording of wills and other papers not applicable to federal practice. CR 79.02 also governs how satisfaction of a judgment is reflected on the record of a particular case. Federal practice is governed by separate administrative rules. CR 79.06 governs appellate records, again making comparison between the federal and state court civil rules not meaningful on this point.

CR 81 – General Application of Civil Rules
Both sets of rules use rule 81 to describe their applicability, but of course they apply to completely different proceedings. The most important rule in the context discussed here is FRCP 81(c), which provides that the federal rules apply to a state court action that is removed to federal court. This can extend considerably the deadline for responsive pleading that would otherwise have been due in state court.

CR 87-98 – No Federal Rules for “Rocket Docket”
The federal set ends with FRCP 86, while Kentucky’s set of civil rules continues through CR 98. The difference (other than CR 87 on amendments and CR 98 on appeals from video records) is the set of Special Rules of the Circuit Court for the Economical Litigation Docket. These apply only to particular circuits and divisions, sometimes called the “rocket dockets,” with the goal of streamlining proceedings in the types of cases described in CR 89 (contracts, personal inquiry, property, and termination of parental rights).

With the style revisions of the federal rules in 2007, very little identical wording remains in Kentucky’s less-amended version. Nevertheless, Kentucky lawyers practicing in both federal and state courts will continue to find comfort and familiarity in the general arrangement and substance of both sets, which remain very similar. What is perhaps most surprising about the comparison is that the very places where the closest or even identical language does remain (CR 8, 12, and 56, for example) are also the very places where case law has taken federal and state courts in different directions. Whether Kentucky courts will follow federal pleading practice under CR 8 and 12, and whether it is returning to federal summary judgment practice under CR 56, will remain of great interest to attorneys trying to navigate, and sometimes trying to choose between, both systems.

Reprinted with permission of the Kentucky Bar Association.

Anne A. Chesnut is of counsel with the firm of Bingham Greenebaum Doll LLP Greenebaum Doll, LLP, where she has practiced most of the past 36 years. She focuses on complex litigation in both federal and state courts. Chesnut received her B.A., magna cum laude, from Western Kentucky University and her J.D. from the University of Kentucky College of Law. She first became familiar with the civil rules while clerking for the Honorable Eugene E. Siler, Jr., then U.S. District Judge for the Eastern and Western Districts of Kentucky. She served as managing editor of the Kentucky Law Journal. Special thanks to University of Kentucky College of Law Professor Bill Fortune, whose contributions helped maximize the value of this article as a helpful tool for day-to-day practice. To learn more about her practice, please visit her profile.

  • Of Counsel

    Anne concentrates her practice in civil litigation such as complex commercial and real estate disputes, and toxic torts. This practice includes injunctions, appeals, and class action defense. Anne is also a trained mediator ...



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