SCRCP 40

(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.