By Taylor Skees, staff attorney, Memphis

Has your motion been denied on procedural grounds? Would you like to avoid that in the future? Then this blog is for you!

This article will outline common procedural pitfalls with motions in the Court of Workers’ Compensation Claims, looking mostly at the rules, but also statutes and case law.

And while we assume that mostly attorneys are reading this, remember that the rules apply to everyone. Stated another way, self-represented litigants, you’re expected to file motions, too (an email to the clerk won’t work). The motion template is on the Court’s webpage under “Downloadable templates.”

Dispositive Motions

A dispositive motion seeks to terminate the case before a hearing. This can be a motion to dismiss or a motion for summary judgment.

Before filing a dispositive motion, you must contact the judge’s staff to obtain a hearing date. Tenn. Comp. R. & Regs 0800-02-21-.18(1)(c). Additionally, when making any dispositive motion against a self-represented litigant, you must provide a copy of any rule (most often Rule 56) or statute on which your motion is based to the self-represented litigant, and you must also state any deadline or requirement to respond. Id. at (a).

Of the utmost practical importance, dispositive motions cannot be filed before a dispute certification notice has been issued. Tenn. Code Ann. § 50-6-239(b) (a judge may award or deny benefits “[f]ollowing the issuance of a dispute certification notice[.]”).

A few specific rules govern motions for summary judgment. A motion for summary judgment will not be entertained before a scheduling order is entered. Tenn. Comp. R. & Regs. 0800-02-21-.18(1)(b). Also, any written response to the motion must be filed five business days before the hearing date. Id. at (d).

The Court is seeing an overall increase in summary judgment motions, and as a result, the Appeals Board has weighed in on them occasionally. Of note, the Board stressed in Sadeekah v. Abdelaziz that you can’t support a summary judgment motion with medical records. Moreover, Love v. Love Management reminded that a motion for partial summary judgment is disfavored.

Non-Dispositive Motions

Non-dispositive motions will likely be heard on the pleadings only. Sometimes a judge may wish to have an in-person, phone, or TEAMS hearing on a particular matter. This is purely within the judge’s discretion. If you feel that your motion is complicated enough, be sure to ask for a hearing.

The non-moving party has five business days to file a written response, and that response must state with particularity why you are opposing the motion. Tenn. Comp. R. & Regs. 0800-02-21-.18(2)(b).

Discovery-Related Motions

The rules encourage cooperation: “Parties are encouraged to obtain any necessary discovery informally to avoid undue expense and delay.” When this informal process breaks down, however, the following rules come into play when making a discovery motion such as a motion to compel, quash, or for protective order.

Before you file your discovery motion, you must make a good-faith attempt to resolve the discovery dispute. Then, you must include in your motion evidence of the good-faith efforts you have made to resolve the dispute with the opposing party. Tenn. Comp. R. & Regs. 0800-02-21-.17(5)(c).

For example, attach the letters or emails documenting when discovery was sent and then the follow-up noting that the responses are overdue. Sometimes affidavits are helpful to support an argument. See Carter v. Ricoh America (trial court did not err by excluding an expert that was not timely disclosed, where the party “offered no affidavit or other evidence supporting its statements regarding the difficulty in finding an expert.”). Carter also emphasized that if you need a deadline extended, it’s better to ask before the deadline passes.

Additionally, the discovery motion must quote disputed content exactly, unless the entire set is disputed. So, if you’re seeking to compel the response to two interrogatories, those interrogatories must be quoted. Id. at (a). The same holds true for requests for production, subpoenas, etc. If the entire set of discovery is at issue, you aren’t required to include the whole set. If a judge needs to see the full set before ruling, she will be sure to ask.

That said, remember that the rules permit no more than twenty interrogatories, requests for production, and requests for admission, and any subpart is counted as its own request. So if you’ve filed a motion to compel, but your discovery exceeds these limits, the motion may be granted, but the other side will only have to answer the first twenty inquiries. (The rule allows you to exceed twenty with court permission. Tenn. Comp. R. & Regs. 0800-02-21-.17(2)(b)).

Motions to Withdraw

If you, the attorney, filed any document with the Court, Rule 0800-02-21-.04(2) clearly states you’ve entered an appearance. That includes sending information to a mediator. If you have made the slightest effort indicating you represent the client, you’re a part of the case and must comply with Rule 0800-02-21-.04(3) to withdraw.

The rule requires the following: Give your client notice of your withdrawal; include their last-known mailing address, email address, and telephone number in the motion; notify your client of the effects of your withdrawal; and notify them of any upcoming deadlines and scheduled proceedings. Id. Your motion should be accompanied by an affidavit reciting compliance with these requirements.

Conclusion

Hopefully this refresher will help you draft well-crafted motions and avoid any procedural pitfalls in the future.

If you have procedural questions, you’re always welcome to contact a staff attorney or a legal assistant. The contacts are below.

Judge Addington: Traci Haynes, traci.haynes@tn.gov

Judge Baker: Sarah Byrne, sarah.g.byrne@tn.gov

Judge Durham: Chris Hudson, chris.hudson@tn.gov

Judge Headrick/Judge Wyatt: Jodi Downs, jodi.downs@tn.gov

Judge Johnson/Judge Lowe: Kim Weaver, kimberly.d.weaver@tn.gov

Judge Luttrell/Judge Phillips: Tina Woods, tina.woods@tn.gov

Judge Marion: Taylor Skees, taylor.skees@tn.gov

Judge Switzer: Jane Salem, jane.f.salem@tn.gov

Judge Tipps: Patsy Bumbalough, patsy.bumbalough@tn.gov

Montgomery Bell State Park, Burns, Tennessee–Photo by Taylor Skees.