Rule 4. Assignment of Case to the Commercial Court Docket
Effective July 1, 2024
(A) Applicability.
This Rule supersedes the case-assignment requirements of any applicable Rule.
(B) Request for Assignment.
(1) Parties that May Request Assignment.
Any party may request to have an eligible case assigned to the Commercial Court Docket.
(2) Identifying Notice.
A party requesting assignment to the Commercial Court Docket must file with the clerk of the court a “Notice Identifying Commercial Court Docket Case” (“Identifying Notice”).
a) Timing.
A party may file an Identifying Notice at any time before trial.
b) Effect of Filing an Identifying Notice.
A party that files an Identifying Notice waives:
i. Any right to apply for a change of judge or county under Trial Rule 76, except as provided in Trial Rule 76(A) or (C)(6); and
ii. Any right to contest, at any time during the proceedings or on appeal, the case’s eligibility for assignment to the Commercial Court Docket.
c) Withdrawal of an Identifying Notice.
A party’s election to file an Identifying Notice is binding and irrevocable. A party may not withdraw an Identifying Notice unless all parties consent to withdrawal of the Identifying Notice. If all other parties so consent, the clerk of the court must transfer and assign the case to a non-Commercial Court Docket in accordance with applicable Rules.
(C) Responses to Request for Assignment.
(1) Parties that May Object or Consent to Assignment.
When one party files an Identifying Notice, each other party may:
a) Object to the assignment of an eligible case to the Commercial Court Docket;
b) Consent to the assignment of an eligible case to the Commercial Court Docket; or
c) Waive objection to the assignment of an eligible case to the Commercial Court Docket.
(2) Objection to Assignment - Refusal Notice.
A party objecting to the assignment of an eligible case must file and serve on all other parties a Notice of Refusal (“Refusal Notice”)
a) Timing.
A party must file a Refusal Notice by the later of the following dates:
i. Thirty (30) days after service of the Identifying Notice; or
ii. Thirty (30) days after appearing in the case.
b) Effect of Filing a Timely Refusal Notice.
When any party files a timely Refusal Notice, the clerk of the court must transfer and assign the case to a non-Commercial Court Docket in accordance with applicable Rules, including a case that has been provisionally assigned to the Commercial Court Docket under Commercial Court Rule 5(D).
c) Withdrawal of Refusal Notice.
A party’s election to file a Refusal Notice is binding and irrevocable. A party may not withdraw a Refusal Notice unless all other parties consent to withdrawal of the Refusal Notice. If all other parties consent, the clerk of the court must transfer and assign the case to a Commercial Court Docket.
d) Failure of Filing a Timely Refusal Notice.
A party that fails to timely file a Refusal Notice waives:
i. Any right to apply for a change of judge or county under Trial Rule 76, except as provided in Trial Rule 76(A) or (C)(6); and
ii. Any right to contest, at any time during the proceedings or on appeal, the case’s eligibility for assignment to the Commercial Court Docket.
(3) Consent to Assignment; Waiver of Objection to Assignment.
a) Consent.
A party consents to the assignment of an eligible case to the Commercial Court Docket by filing and serving a “Notice Consenting to Assignment to the Commercial Court Docket” (“Consent Notice”).
b) Waiver.
A party waives objection to the assignment of an eligible case to the Commercial Court Docket by failing to file and serve a timely Refusal Notice.
c) Effect of Consent or Waiver.
i. When each party either consents to assignment or waives objection to assignment, the clerk of the court must transfer and assign the case to a Commercial Court Docket.
ii. A party that either consents to assignment or waives objection to assignment waives:
A. Any right to apply for a change of judge or county under Trial Rule 76, except as provided in Trial Rule 76(A) or (C)(6); and
B. Any right to contest, at any time during the proceedings or on appeal, the case’s eligibility for assignment to the Commercial Court Docket.
d) Withdrawal of Consent or Waiver.
A party’s consent to assignment or waiver of objection to assignment is binding and irrevocable unless all other parties agree to permit the party to file a Refusal Notice. When all other parties consent, the Refusal Notice will be deemed timely, and the clerk of the court must transfer and assign the case to the non-Commercial Court Docket of the Commercial Court Judge in accordance with applicable Rules.
(D) Provisional and Permanent Assignment; Notice to the Court.
(1) Assignment before Appearance.
If a plaintiff files an Identifying Notice before the appearance of any other party:
a) The Clerk of the Court must provisionally assign the case to the Commercial Court Docket;
b) If no Refusal Notice is timely filed by any party that appears in the case or all parties after appearance either consent to assignment or waive objection to assignment, the assignment of the case is deemed permanent; and
c) If a Refusal Notice is timely filed, the clerk must transfer the case to the non-commercial Court Docket of the Commercial Court Judge.
(2) Assignment after Appearance.
If a party files an Identifying Notice after the appearance of at least one other party:
a) The Clerk of the Court must notify the court in which the case is pending that an Identifying Notice has been filed and the case is subject to transfer and assignment to the Commercial Court Docket if no Refusal Notice is timely filed;
b) If no Refusal Notice is timely filed, all parties consent to assignment, or all parties waive objection to assignment, the Clerk must notify the court in which the case is pending that the transfer and assignment of the case to the Commercial Court Docket is permanent; and
c) If a Refusal Notice is timely filed, the Clerk must notify the court in which the case is pending that a Refusal Notice has been filed and the case will not be transferred to the Commercial Court Docket.
(3) Exception to Notice.
Notice by the Clerk of receipt of an Identifying Notice, Refusal Notice, or Notice of Assignment is not necessary if the case is already pending before a Commercial Court Judge.
(E) Termination of Assignment.
If a Commercial Court Judge determines at any time that a case is ineligible for assignment to a Commercial Court Docket, the judge must order the Clerk of the Court to transfer and assign the case to a non-Commercial Court Docket in accordance with applicable Rules. The judge’s determination is not subject to appeal.
(F) Retention of Jurisdiction for Emergency Matters.
The court to which an eligible case was originally assigned retains jurisdiction to hear and determine requests for temporary restraining orders and other emergency matters until the Commercial Court has assumed jurisdiction over the case.
(G) Addition of Parties after Assignment.
(1) Rights of New Parties.
A party that first appears in the case—whether as a result of a cross-claim, a counterclaim, a third-party complaint, an amendment, or otherwise—after the case is permanently assigned to the Commercial Court Docket may file a Refusal Notice.
(2) Timing.
a) The new party must file the Refusal Notice within thirty (30) days of appearance.
b) If a new party does not file a Refusal Notice within thirty (30) days of appearance, the case remains on the Commercial Court Docket.
(3) Effect of Filing a Refusal Notice.
When a Refusal Notice is timely filed, the Clerk must transfer and assign the case to a non-Commercial Court Docket in accordance with applicable Rules.
(H) Effect of Appeal.
(1) Assignment after Remand.
If a party appeals a case assigned to the Commercial Court Docket and a court on appeal either orders a new trial or otherwise remands the case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial, the Clerk of the Court must provisionally assign the case on remand to the Commercial Court Docket.
(2) Filing Refusal Notice after Remand.
Any party may file a Refusal Notice within thirty (30) days of the Clerk’s assignment of the case to the Commercial Court Docket.
(3) Effect of Filing Refusal Notice.
If a party files a timely Refusal Notice after remand, the Clerk of the Court must transfer and assign the case to a non-Commercial Court Docket in accordance with applicable Rules.
(4) Effect of Not Filing Refusal Notice.
If no party files a timely Refusal Notice after remand, the case’s assignment to the Commercial Court Docket becomes permanent.
Commentary
1. A crucial feature of Rule 4 is that any party can seek to have a case placed on the Commercial Court Docket at any time, even after the case has been pending on a non-Commercial Court Docket for an extended period of time. Commercial Court Rule 4(B) is an “opt-out” provision. The default is that a case identified by one party as a Commercial Court Docket case is assigned to the Commercial Court Docket unless another party timely objects to the assignment or the judge determines that the case is not eligible for the Commercial Court Docket. However, transfer of a well-underway proceeding is normally not contemplated.
2. Permitting any party to seek to have the case placed on the Commercial Court Docket at any time accommodates the case that is not initially eligible for assignment to the Commercial Court Docket but subsequently becomes eligible as a result of a cross-claim, counterclaim, third-party complaint, amendment, or otherwise.
3. Commercial Court Rules 4(B)(2)(B)(1) and 4(C)(3)(C)(2)(A) reference Trial Rules 76(A)—(C)(6), which provide a limited change of venue and judge right for cause.
4. The provisions of Commercial Court Rule 4(F) concerning emergency matters are intended to operate in the same way as Trial Rule 79(O), which provides: “Emergencies. Nothing in this rule shall divest the original court and judge of jurisdiction to hear and determine emergency matters between the time a motion for change of judge is filed and the appointed special judge accepts jurisdiction.”
5. Commercial Court Rule 4(G) accommodates a new party who is added to the litigation later as a result of a cross-claim, counterclaim, third-party complaint, amendment, or otherwise.
6. The language of Commercial Court Rule 4(G)(1) “first appears in the case” is the same as used in Trial Rule 3.1(B) governing the filing of the appearance form by responding parties.
7. The provisions of Commercial Court Rule 4(H)(1) concerning assignment to the Commercial Court Docket after remand are intended to operate in the same way as Trial Rule 76(C)(3), which provides: “[I]f the trial court or a court on appeal orders a new trial, or if a court on appeal otherwise remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial, the parties thereto shall have ten days from the date the order of the trial court is entered or the order of the court on appeal is certified.”