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South Carolina
JUDICIAL DEPARTMENT
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RULE 40

RULE 40
GENERAL DOCKET, TRIAL ROSTERS, AND CALL OF CASES FOR TRIAL

(a) Dockets and Trial Rosters; Designation by Party.

(1) Clerk to Maintain Docket and Trial Rosters.  The Clerk of Court shall maintain:  (1) a General Docket of all cases filed in the Circuit Court;  (2) a Jury Trial Roster of all cases transferred from the General Docket wherein the case is, by agreement of counsel, scheduling order, or expiration of time, deemed ready for jury trial;  (3) a Nonjury Docket of all nonjury matters including all motions filed in the Circuit Court.

(2) Pleading or Motion to Designate Type of Matter.  At the time of filing of a complaint or responsive pleading thereto, the party shall inform the clerk, or the pleadings shall state in the caption, subject to Rule 38(b), whether the matter is to be heard by a jury or to be heard by the court as a nonjury matter.  In the absence of such statement the clerk shall file it as a nonjury matter, subject to a motion to transfer to the appropriate docket.  All motions relating to discovery matters, scheduling orders or emergency matters shall state in the caption:  Priority Matter.

(b) General Docket, Transfer of Cases to Jury Trial Roster; Call of Cases Only From Jury Trial Roster; Order of Call.  The clerk initially shall place all cases in which a jury has been requested on the General Docket.  A case may not be called for trial until it has been transferred to the Jury Trial Roster.  Trial shall be had no earlier than 30 days from the date the case first appears on the Jury Trial Roster.  Cases shall be called for trial in the order in which they are placed on the Jury Trial Roster, unless the court in a Scheduling Order has set a date certain for the trial, or, after the case has been set on the Jury Trial Roster, the court, upon motion, grants a continuance as provided in (i) below.  The first 20 cases on the Jury Trial Roster at the opening of court on the first day of a term, excluding those previously dismissed, continued or otherwise resolved before the opening of that term of court, may be called for trial.  For each additional judge sitting during that term of court an additional 20 cases are subject to call.  All other cases may be called for trial in that term only upon no less than 24 hours notice.  Notwithstanding the foregoing, no action may be called for trial until 180 days after service of the last pleading which adds a new party to the action, unless all parties consent in writing. 

(c) Transfer to Jury Trial Roster by Agreement.  A case may be moved from the General Docket to the Jury Trial Roster at any time by agreement of all counsel of record.  If agreement is reached, counsel shall notify the clerk in writing who shall immediately transfer the case to the Jury Trial Roster.

(d) Transfer to Jury Roster Within Six to Nine Months of Filing.

(1) Agreement or Objection.  No earlier than 180 days after the date the case was filed, any party may file and serve upon all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster.  Within 10 days of the service of the Request to Transfer all other parties shall file and serve either an Agreement to Transfer, or, an Objection to the Request to Transfer.  Absent a timely filing indicating a position, the same shall be waived.  If all parties have agreed to the transfer, the requesting party shall notify the clerk in writing of the agreement and the clerk shall place the case on the Jury Trial Roster, and it may be called for trial as provided in paragraph (b).  If any party files an Objection to Transfer, the case may not be transferred to the Jury Trial Roster within 9 months of filing of the complaint except by agreement or as provided in (d)(2) below.

(2) Objection Shall State Proposed Date of Transfer.  Any party who objects to the transfer to the Jury Trial Roster shall also state in its Objection to Transfer whether it will consent to the transfer of the case to the Jury Trial Roster within 9 months of the date of the filing of the complaint, and the date on which it will consent to the transfer.  Absent a timely filing indicating a position, the same shall be waived.  If all non-moving parties specify a date within 9 months of the filing of the action on which the case may be transferred, the requesting party shall notify the clerk in writing of the agreement to transfer the case to the Jury Trial Roster on the latest date specified by any party that is less than 9 months after filing.

(e) Transfer to Jury Roster Nine Months to Twelve Months After Filing.

(1) Request and Response.  No earlier than 9 months after the case was filed, any party in any case on the General Docket may file or re-file and serve upon all other parties a Request to Transfer to the Jury Trial Roster.  Within 10 days of the service of the Request to Transfer all non-moving parties shall file and serve either an Agreement to Transfer on the date requested, or a Request for a Scheduling Order as provided in (e)(2) below.  No other response is permitted.  Absent a timely filing indicating a position, the same shall be waived.  If all counsel of record have agreed to the transfer, the moving party shall notify the clerk in writing of the agreement, and the clerk shall place the case on the Jury Trial Roster and it may be called for trial as provided in (b).

(2) Mandatory Scheduling Order.  If any party requests a Scheduling Order, that party, and all other parties, within 10 days thereafter, shall file and serve a Response to the Request for a Scheduling Order which shall include:  (1) all matters deemed relevant by counsel that may be raised in a Pre-Trial Hearing under Rule 16 including all motions outstanding, and all dispositive motions to be filed; (2) all discovery remaining to be completed or other discovery matters governed by Rule 26(f) Discovery Conference; (3) any other matter affecting the trial date, including the disposition of all previous requests to transfer the case to the Jury Trial Docket; and (4) the date on which all pre-trial matters shall be completed and the case ready for trial.  The clerk shall promptly set the request for a Scheduling Order for a hearing before the Chief Judge for Administrative Purposes which shall take priority as provided in (h) below, at which time the Chief Judge for Administrative Purposes shall review the matter and, in its discretion, set a date on which the case is to be transferred to the Jury Trial Roster, and may set a date before which the case may not be called for trial or a date certain for trial.  The Scheduling Order may be amended by a subsequent Chief Judge for Administrative Purposes.

(f) Automatic Transfer.  The clerk shall review the General Docket and shall transfer to the Jury Trial Roster all cases which have remained on the General Docket for 12 months and in which the court has not entered a Scheduling Order setting the date when the case is to be transferred to the Jury Trial Roster or in which there is no pending motion for a Scheduling Order in the file.  The clerk shall notify counsel of record of the transfer, but publication of the Jury Trial Roster also shall be deemed notice of the automatic transfer.

(g) Motion to Strike From Jury Trial Roster.  A party may move to strike a case from the Jury Trial Roster if upon timely motion that party establishes that it did not consent to the transfer as represented to the clerk, or that at the time the case was automatically transferred under (f) above, there was in effect a scheduling order setting another date for the transfer, or a pending motion for such order.

(h) Nonjury Docket; Priority of Matters.  The clerk shall immediately transfer all matters designated as nonjury matters from the General Docket to the Nonjury Docket.  All motions on the Motions Calendar and motions filed in any case shall be immediately placed on the Nonjury Docket.  The Chief Judge for Administrative Purposes, in cooperation with the clerk, is responsible for setting all matters on the Nonjury Docket for disposition.  Motions may be scheduled for hearing at any time after the period for notice of the motion required by these rules.  Priority in scheduling hearings on nonjury matters and scheduling motions at any other time shall be given to all motions designated Priority Matter which includes emergency matters, discovery motions, and all requests for Scheduling Orders as specified in (a)(2) above.  Provided, however, that no contested nonjury action may be called for trial on the merits until 120 days after the filing of the summons and complaint, or the last pleading that adds a new party to the action, unless agreed to in writing by all parties.

(i) Continuance.

(1) For Cause.  As actions are called, counsel may request that the action be continued.  If good and sufficient cause for continuance is shown, the continuance may be granted by the court.  Ordinarily such continuances shall be only until the next term of court.  Each scheduled calendar week of circuit court shall constitute a separate term of court.

(2) For Absence of Witness.  No motion for continuance of trial shall be granted on account of the absence of a witness without the oath of the party, his counsel or agent, to the following effect, to wit:  That the testimony of the witness is material to the support of the action or defense of the party moving;  that the motion is not intended for delay;  but is made solely because the party cannot go safely to trial without such testimony;  that there has been due diligence to procure the testimony of the witness or of such other circumstances as will satisfy the court that the motion is not intended for delay.  In all such cases where a subpoena has been issued, the original shall be produced, with proof of service, or the reason why not served, endorsed thereon, or attached thereto;  or, if lost, the same proof shall be offered with additional proof of the loss of the original subpoena.  A party applying for such postponement on account of the absence of a witness shall set forth under oath in addition to the foregoing matters what fact or facts he believes the witness if present would testify to, and the grounds for such belief.

(j) Case Stricken From Docket by Agreement.  A party may strike its complaint, counterclaim, cross-claim or third party claim from any docket one time as a matter of right, provided that all parties adverse to that claim, counterclaim, cross-claim or third party claim agree in writing that it may be stricken, and all further agree that if the claim is restored upon motion made within 1 year of the date stricken, the statute of limitations shall be tolled as to all consenting parties during the time the case is stricken, and any unexpired portion of the statute of limitations on the date the case was stricken shall remain and begin to run on the date that the claim is restored.  A party moving to restore a case stricken from the docket shall provide all parties notice of the motion to restore at least 10 days before it is heard.  Upon being restored, the case shall be placed on the General Docket and proceed from that date as provided in this rule.

(k) Alternate Method of Transfer to Jury Roster.  Notwithstanding any other provision of this rule, any party may file and serve on all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster no earlier than 120 days after the case was filed.  The Request must certify that the party is ready to go to trial and must indicate any outstanding pre-trial matters.  Within 10 days after service of the Request to Transfer, any party may file a Response to the Request.  If the Response opposes the transfer, it shall indicate in what respect the case is not ready for trial.  Once the time to file Responses has expired, the clerk shall promptly set the Request for Transfer for a hearing before the Chief Judge for Administrative Purposes.  The hearing shall be given priority as provided by subdivision (h) of this rule.  After a hearing, the Chief Judge may, as a matter of discretion, transfer the case to the Jury Trial Roster.

Note:

This Rule 40 is substantially a compendium of present Circuit Court Rules governing preparation of trial rosters, setting the order of cases for trial, and granting postponement or continuance.  The Federal rule simply directs that the District Courts shall provide local rules on these matters.  See also Rule 79 as to clerks of court maintaining calendars (File Book).

Note to 1986 Amendment:

The amendment to Rule 40(b)(2) permits the clerk to place actions on the appropriate trial roster 120 days after filing, and assures that counsel will have at least 120 days from the date of filing of the original summons and complaint, or the last pleading which brings in a new party, before the case can be tried so that there will be adequate time to prepare the case.  Assertion of new claims between existing parties does not extend the time automatically.

Note to 1994 Amendment:

Rule 40 addresses problems in the scheduling of cases and substantially revises the way jury cases are called for trial.  Previously, under Rule 40(b)(2) a case could not be called for trial for 120 days after it was filed or the last party was joined.  This short period and the lack of specific procedures meant that attorneys could not predict accurately when a case would be called, and some were called without adequate notice or opportunity to complete discovery.  Former Rule 40(c)(3) often was used to dismiss and refile many of these cases causing confusion in the docket and the status of those cases.

This rule addresses these problems and provides counsel an adequate time to prepare for trial, yet prevents unnecessary delay by fixing a time when the case must be placed on the Jury Roster.  The rule has four parts.  First, the rule sets the procedure for placing a case on the Jury Roster and provides a minimum period within which it cannot be called without the consent of the parties, and also a time when it must be scheduled for trial.  Second, the rule establishes procedures for the call of cases on the Jury Roster during a term of court.  Third, the rule provides that Priority Motions, those involving emergency matters, motions for scheduling orders and discovery motions, must be given precedence when hearings are scheduled.  Prompt resolution of these motions speeds trial preparation.  Fourth, the procedure in former Rule 40(c)(3) used to dismiss a case has been revised and limited.

Rule 40(a) establishes the dockets and rosters and describes how cases are filed initially.  All cases are placed on the General Docket.  Rule 40(b).  Counsel must inform the clerk or the pleadings must state whether it is a jury or nonjury matter.  Rule 40(a)(2).  However, the time for demanding a jury remains governed by Rule 38.  Jury cases remain on the General Docket until transferred by consent, Scheduling Order or expiration of time.  Rule 40(b).  Nonjury cases are transferred immediately to the Nonjury Docket.  Rule 40(h).  In the absence of a designation as jury or nonjury, the matter is placed on the Nonjury Docket, subject to a motion to transfer.  Rule 40(a)(2).  At any time the case can be transferred to the Jury Trial Roster with the consent of all parties.

The first major section is paragraphs (c)-(h) which governs the transfer of a case from the General Docket to the Jury Trial Roster.  The rule divides the pre-trial period into three parts.  Rule 40(d) governs the first year after the case is filed.  During that period the case can be transferred only with the consent of all parties.  Rule 40(c) and (d)(1).  The rule, however, establishes a way to determine if the case may be transferred to the Jury Roster within a year of its being filed.  Six months after the filing of the case any party may file and serve a Request for Transfer.  A Response is mandatory within 10 days and a failure to do so is deemed consent to the transfer.  Rule 40(d)(1).  The Response to a Request to Transfer is either consent or an objection to the transfer.  If objecting, a party must also state whether it consents to a transfer within a year of the case's filing date.  Therefore within 10 days of the Request to Transfer, the parties will have determined if the case can be immediately transferred, or transferred within a year of filing.  If the parties consent but suggest different dates for transfer within the first year, the latest date controls.  Rule 40(d)(2).  The moving party notifies the clerk of court of the date of transfer.  Rule 40(d)(1).  A transfer made without consent or in violation of the rule may be challenged under Rule 40(g).  If any party objects to a transfer on any date within the first year it remains on the General Docket.  Rule 40(d)(1).

Rule 40(e) governs transfers between one year and eighteen months after the case is filed.  A Request to Transfer filed during this period results either in a transfer to the Jury Trial Roster or a Scheduling Order issued by the Chief Judge for Administrative Purposes.  In either event scheduling now comes under the control of the court.  Any party may file a Request to Transfer after one year.  Rule 40(e)(1).  Only two responses are permitted.  A consent to the transfer or a Request for a Scheduling Order.  A failure to respond is deemed consent.  If there is consent the moving party notifies the clerk and the case is transferred.  Rule 40(e)(1).  A transfer made without consent or in violation of the rule may be challenged by a motion to strike from the Jury Roster.  Rule 40(g).  If no party requests a transfer the case remains on the general docket and may not be transferred without the consent of all parties.

A Request for a Scheduling Order requires that each party file and serve within 10 days a Response to a Request for a Scheduling Order which is a detailed statement describing the status of the case so the court has enough information to set an appropriate time to place the case on the Jury Trial Roster.  The Response to a Request for a Scheduling Order shall contain all matters that may be raised at a pre-trial hearing, all outstanding motions, the remaining discovery, all matters that affect the trial date, and the date on which the case will be ready for trial.  The Request for a Scheduling Order is a Priority Matter and must be so designated on the motion.  Rule 40(a)(2).  Priority Matters are given precedence whenever motions and non-jury matters are scheduled.  Rule 40(h).  At the hearing on the Scheduling Order the Chief Judge for Administrative Purposes can set a date for the case to be transferred to the Jury Roster, set a date certain for trial, or set a date before which it cannot be called for trial.  The Scheduling Order can be amended by any judge acting as Chief Administrative Judge to take into account subsequent developments.

After eighteen months every case is subject to the control of the court regardless of the actions of counsel.  Rule 40(f) requires automatic transfer of any case which is not subject to a Scheduling Order, or has a pending motion for a Scheduling Order.  The clerk should notify counsel of the transfer but publishing the Jury Trial Roster is deemed notice of the transfer.

Rule 40(b) is the second major section of the rule and governs the call of cases on the Jury Roster.  The principal features of this paragraph are provisions providing adequate notice of when the case may be called for trial.  Cases are called in the order in which they appear on the Jury Roster.  But a case must be on the Jury Roster for 30 days before it may be called for trial.  More importantly, the rule restricts the number of cases that are subject to trial on the first day of a term of court.  The Jury Roster at the opening of the first day of the term of court fixes the number that may be immediately called.  The first twenty cases on the Jury Trial Roster that, before the opening of that term of court, have not been dismissed, continued or otherwise resolved, may be called immediately.  All cases after the first twenty require at least 24 hours before they may be called for trial.  For each additional judge sitting in a term, another twenty cases are subject to immediate call.  Once called the court may in its discretion grant a continuance as provided in Rule 40(i) which is the same as former Rule 40(b)(1) and (2).  Or, a party may strike the case from the docket by agreement under Rule 40(j) which is more restrictive than the former Rule 40(c)(3).

The third major section of the Rule addresses motion practice to ensure that certain ones are promptly scheduled and resolved to prevent unnecessary delay in trial preparation.  Rule 40(h) designates certain motions as priority matters including emergency matters, discovery motions and Requests for a Scheduling Order.  Counsel must so designate those motions when filing them.  Rule 40(a)(2).  All motions are placed on the Nonjury Docket, and the Chief Judge and clerk of court must give the Priority Motions preference when scheduling the nonjury matters or setting motions for hearing at any other time.  Counsel generally must give 10 days notice to opposing counsel of any motion, as in Rule 6(d) and 56(c), and once that period has expired, motions may be called at any time.  Nonjury trials, however, may not be called for trial until 120 days after filing or the joinder of the last party to the action as is the current practice.

Rule 40(j) is the final section of the rule and substantially revises the procedure for dismissing a case previously found in Rule 40(c)(3).  Rule 40(j) now requires all adverse parties to consent to the dismissal in writing, but, the consent also operates to toll the statute of limitations for one year after the case is stricken from the docket as to each consenting party.  Any remaining portion of the statute of limitations begins to run one year after the case was stricken unless the case has previously been restored to the General Docket.  A party moving to restore a case must give 10 days notice of the motion, and upon being restored the case is placed on the General Docket where it proceeds as a newly filed action on the General Docket.  A case can also be dismissed voluntarily under Rule 41(a).

Note to 1998 Amendment:

This amendment added subsection (k) to the rule.  It provides an alternative procedure for transferring a case to the jury roster and is based on a March 14, 1995 order of the South Carolina Supreme Court.

Note to 2001 Amendments:

Rule 40(d), (e)(1), (f), and (k) are amended to shorten the time period before cases move to the Jury Trial Roster.

Note to 2007 Amendment:

The last sentence of Rule 40(b) establishes a minimum period of time following the joinder of a new party during which the action may not be called for trial without the consent of all parties.  The 2007 amendment extends this period from 120 days to 180 days, and measures this period from the date the newly joined party is served with process, rather than the filing date of the pleading adding the new party.  As before, the 180 day exclusion may be waived with the consent of all parties.