Advisory Committee on the Rules of Civil Procedure Meeting March 6

VERMONT SUPREME COURT
ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE
AGENDA FOR MEETING OF MARCH 6, 2026
9:00 a.m. - 12:00 p.m.

1. Approval of draft minutes of January 7, 2026, meeting.
PROPOSED RULES OUT FOR COMMENT
2. #25-05 V.R.E.C.P. 5 - Requiring statement of questions be filed with notice of appeal/cross- appeal
Comment period closes April 13; for discussion in May.
3. #24-10 V.R.C.P. 80.12 and 81(a) - Post-Conviction Relief
Comment period closes April 13; for discussion in May.

AMENDMENTS FOR CONSIDERATION AS PROPOSED RULES
Assigned items for consideration in this meeting.
4. #26-01 Amendments to Rule 7(a)(7) of the 2020 Vermont Rules for Electronic Filing, and Rule 32(a)(1)(E) of the Vermont Rules of Appellate Procedure
Judge Shafritz and Mr. Rose to present potential amendment to e-filing rules and to V.R.A.P. 32(a) to address use of links and bookmarks to filed content.
5. #24-03 V.R.C.P. 55 - Citation of legal authority for out-of-state service (Judge Toor).
Judge Shafritz to report.
As with the federal rule, V.R.C.P. 4(e) authorizes two methods of out-of-state service:
• in the same manner as if such service were made within [Vermont]; or
• in any manner of service effected under the laws of the state in which the person is served.
The committee previously agreed that no rule change is necessary, subject to a polling of judges by Judge Hoar, who reported in January 2025 that most judges prefer a rule. The committee then decided that if it were to recommend adoption of this requirement, Rule 55 (Default Judgment) would be the proper placement.
Language proposed by Mr. Keyes and Judge Shafritz:
(a) Motion for Default Judgment. When a party against whom a judgment for affirmative relief is sought by complaint, cross-claim, counterclaim, or other pleading has failed to plead or otherwise defend, the party seeking the affirmative relief may file a motion for a default judgment. A motion that relies on service outside the state effected under the law of the place of service must specify the statute or rule of the place of service that authorizes the manner of service.

POTENTIAL AMENDMENTS IN PROGRESS OR FOR FURTHER REVIEW
Assigned and unassigned items for potential discussion or for assignment and consideration in future meetings.
6. #24-14 V.R.C.P. 5(h), 2020 V.R.E.F. 11(g) - Electronic certificate of service (Judge Toor)
Mr. Rose to update.
Suggestion to abandon the electronic certificate of service and require an individually created certificate of service with each electronic filing. Under VRCP 5(h) every document filed with the court after the complaint and required by this rule to be served upon a party, must be accompanied by a certificate of service -- "except as provided in any applicable provision of the 2020 Vermont Rules for Electronic Filing." The Efiling Committee at its December 2024 meeting denied Judge Toor's request to amend the electronic certificate of service proviso of 2020 V.R.E.F. 11(g).
7. #26-02 Possible Revision to Service-First Filing under V.R.C.P. 3
Request from Judge Richardson and CDOC: In my capacity as Chair of the CDOC, I have been asked by the Committee to recommend that the Civil Rules Advisory Committee consider revisiting the service-first method of initiating a lawsuit under Rule 3(a). Our Committee has been reviewing this issue based on feedback from court staff and practitioners, and we believe that the efficacy and purpose of service-first filing method may have shifted and would be worthy of review by your Committee.
In support of this recommendation to examine the Rule, we would note the following issues that have come up during our review from a Civil Oversight perspective:
1) The Enterprise Justice System makes processing answers filed before the complaint more difficult. It requires additional staff time and coordination to ensure that an answer filed before a complaint is eventually filed and linked to the electronic docket generated after the complaint is filed. While we have sought to increase training and awareness, it is an inherent issue in the system against which there are limited safeguards.
2) The service-first method appears to be primarily used at present in collections and landlord/tenant cases where there has historically been an imbalance in resources between plaintiffs and defendants to access legal counsel. This process can add a level of confusion for defendants already with access to justice issues.
3) The Vermont rule is inconsistent with federal practice and what we understand to be the majority of state courts that require a complaint to be filed prior to service. See S.Glover, 35 Will. Mitchell L.Rev. 1115, 1119 (2009) (noting that 41 states and the federal courts require a complaint to be filed before service may be made on a defendant).
4) Court staff are receiving questions from Defendants seeking information about complaints and summons and are hearing concerns that such documents may be a scam or fraud due to the absence of case information in the public portals or available from court staff. As with point 2, such fears may undermine a defendant's participation in the process or create unnecessary doubt in the system.
In an effort to address some of these concerns, our Committee has elected to make changes to the summons form to incorporate some awareness of service-first commencement (please copy), but we also believe that the issue warrants more substantial review.
Thank you and the Committee for your consideration of this matter, and please let me know if you need any more information from myself or the Civil Division Oversight Committee.
8. #26-03 Potential Review of Pro Hac Rule to Require Contact Information for Attorney
See emails from Lynn Wdodwiak and Attorney Licensing.
9. #23-01 V.R.C.P. 28(a)(1) and (2) - Deposition oaths
Ms. Bent to update in March or May.
10. #25-06 V.R.C.P. 79(a) - Records kept by clerks (Trial Court Operations).
Update from chair
11. #25-01 V.R.C.P. 79.1(f) - Automatic withdrawal upon the entry of final judgment;
expiration of time for appeal.
#23-05 and #24-09 V.R.C.P. 79.1 - Client contact information with motion to withdraw and substitution of counsel without notice and motion
Mr. Rose to update in March or May.
12. #24-12 V.R.C.P. 5(a), 77(d), and 55 - Service and notification of parties who have not appeared (Judge Spero).
Ms. Murray to update.
Under Rules 5(a) and 77(d) a party need not serve - and the clerk need not notify - "any party in default for failure to appear." Yet under Small Claims Rule 3(e)(1) "The plaintiff must mail a copy of the motion [for default judgment] and affidavit to the defendant's last known address." Rule no longer includes the entry of default step that exists in the federal rule. See V.R.C.P. 55(a).
Judge Spero has observed some plaintiffs misinterpreting Rule 5's service requirement for defendants who have not appeared. Should Rule 5 be amended to clarify that this exception refers to "parties against whom default judgment has been entered"?
13. #25-04 V.R.C.P. 15(a) - Reword leave to amend provision for clarity (Attorney Alexander Dean). Mark Werle to report in March or May.
Existing: "Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."
Proposed: "Otherwise, a party may amend the party's pleading only by leave of court, with leave to be freely given when justice so requires; or by written consent of the adverse party."
14. #25-07 V.R.C.P. 26(c)(5), V.R.C.P. 30(c) - Protective Orders in Discovery
(Rules of Evidence Committee) Chair to report.
Whether the VRE Committee's proposed amendments to V.R.E. 615 (Exclusion of Witnesses) to conform with newly amended FRE 615 will impact Rule 26(c)(5) (Protective orders in Discovery) or Rule 30(c) (Depositions on Oral Examination)
15. #25-03 V.R.C.P. 4.1(c) and (d) - proposed amendments to the attachment process
(Attorney Robbason). Ms. Bent to report in March or May.
Proposed language:
(c) Same: Form. The writ of attachment shall be dated and signed by the clerk. It shall contain the name of the court, the names and residences of the parties, the date of the complaint, and the order of approval issued under subdivision (b) of this rule; . . . .
(d) Same: Execution; Service.
(1) Execution. The plaintiff's attorney shall deliver to an officer or to a person specially appointed to make the attachment two copies of the writ as issued by the Clerk the original or a certified copy of the writ, a copy thereof, and a list of property exempt from attachment by statute. . . .
(2) Proof of Execution. The officer or other person making an attachment shall make proof of its execution by setting forth on one the original or a certified copy of the writ, or on a paper attached to it for that purpose, . . . .
. . .
(4) Filing. The plaintiff's attorney shall file the writ in the form it was served and with notations (if any) of the serving officer or other person thereon, and all proofs of execution with the court as provided in Rule 4(i) or 5(d) and (e).
16. #24-11 V.R.C.P. 4(d)(1)(ii) Service on incompetent persons (Probate Rules Committee).
Chair to report.
The Probate Rules Committee seeks feedback on possible amendments under consideration to V.R.P.P. 4.4 (6) (service on incompetent person), which allows service on a guardian, to possibly be restricted to a "court-appointed" guardian and to add as an alternative "an agent under a power of attorney." Current Civil and Probate rules are now substantially identical.
17. #23-07 V.R.C.P. 54(e), V.R.C.P. 58(b), (d) - Taxation of costs and preparation of form of judgment by the court, instead of the clerk (Judge Hoar). Assigned to Reporter for drafting.
The subcommittee of Chair Asay, Mr. Dumont, and Judge Hoar met to reach a consensus on the following issues. In the May meeting, the Committee adopted the subcommittee's proposed approach and referred to the Reporter for drafting.
1. Shift responsibility from clerk to court in two areas: taxation of costs (V.R.C.P. 54(e)), and preparation of judgment order (V.R.C.P. 58(b)).
2. Delete statement in Rule 54(a) that costs shall be included in every judgment awarding monetary relief.
3. Amend Rule 54(d)-(g) so that the default is that all requests for costs shall be verified and filed within 14 days of entry of judgment. Other parties to have 14 days from service in which to respond.
4. Amend Rules 58(b) & (d) so that the default procedure is that the court (not the clerk) prepares the form of judgment in all cases but in all cases the court has the discretion to order the parties to do so. Existing rule gives 7 days to respond when a party submits them. Subcommittee did not consider making this 14 in conforming with cost process above.
5. Amend rules (Rule 58(c)?) to state that entry of judgment not be delayed for taxing of costs or award of attorney's fees; add that in all cases the court has the discretion to delay entry of judgment for taxing of costs and/or award of attorney's fees.

TRAILING ITEMS
18. #20-13. Service of Default Judgments: Proposed Order Amending Rules 55, 62(b), and 80.1(f). See Proposed rule for comment. Tabled at the March 2024 meeting.

NEWS
19. News from Efiling Committee
Mr. Rose and Judge Shafritz to report.
20. News from Civil Division Oversight Committee
Ms. Damone to report.

NEW BUSINESS
21. New business for the May meeting.