State Court Motion for Continuance

MOTION FOR CONTINUANCE

Alabama Circuit Court

CASE CAPTION

IN THE [________________________________] (CIRCUIT / DISTRICT) COURT OF [________________________________] COUNTY, ALABAMA

[________________________________],
Plaintiff,

v.

Case No.: [________________________________]

[________________________________],
Defendant.

Assigned Judge: Hon. [________________________________]

MOTION FOR CONTINUANCE OF [________________________________]

Currently Scheduled Date: [__/__/____]

Currently Scheduled Time: [____]

Courtroom: [________________________________]

Requested New Date: [__/__/____]

I. INTRODUCTION

COMES NOW [________________________________] ("Moving Party"), by and through undersigned counsel, and respectfully moves this Honorable Court pursuant to Rule 40(b) of the Alabama Rules of Civil Procedure and Ala. Code Section 6-6-490 for an order continuing the [________________________________] (trial / hearing / pretrial conference / motion hearing) currently scheduled for [__/__/____] to [__/__/____], or such other date as this Court may deem appropriate.

Good cause exists for this continuance as set forth in detail below. Undersigned counsel certifies that [he/she/they] contacted counsel for [________________________________] on [__/__/____] regarding this motion, and [________________________________] (opposing counsel consents to / opposes / has not responded regarding) the requested continuance.

II. GROUNDS FOR CONTINUANCE

The Moving Party seeks a continuance on the following ground(s) (check all that apply):

☐ Scheduling Conflict of Counsel -- Undersigned counsel has a previously scheduled [________________________________] (trial / hearing / deposition / mediation / arbitration) in [________________________________] (court name), Case No. [________________________________], set for [__/__/____]. This conflict arose because [________________________________]. The conflicting matter was set on [__/__/____], which was [________________________________] (before / after) the date in this case was calendared. Pursuant to Ala. Code Section 6-6-490, [________________________________] (state basis for priority of conflicting proceeding, if applicable).

☐ Illness or Medical Emergency -- [________________________________] (counsel / party / essential witness) is unable to attend due to [________________________________] (illness / medical condition / surgery / hospitalization). Supporting medical documentation is attached as Exhibit [____].

☐ Additional Discovery Needed -- Additional discovery is necessary before the scheduled [________________________________] (trial / hearing) can fairly proceed. The following discovery remains outstanding: [________________________________]. This discovery could not be completed within the current schedule because [________________________________].

☐ Settlement Negotiations Pending -- The parties are engaged in meaningful settlement negotiations and reasonably believe additional time will facilitate resolution. [________________________________] (Mediation is scheduled for [__/__/____] / Settlement discussions are ongoing / A settlement conference has been requested.)

☐ Witness Unavailability -- A material witness, [________________________________], is unavailable for the scheduled date because [________________________________]. Pursuant to Ala. Code Section 12-21-4 and Section 12-21-5, the Moving Party represents that: (a) the testimony of the witness is material to the Moving Party's case; (b) the Moving Party has used due diligence to obtain the attendance or deposition of the witness; (c) the witness can probably be had at the next term of court or at a time to which the cause may be continued; and (d) the facts which the Moving Party expects to prove by the absent witness are: [________________________________]. The Moving Party cannot prove the same facts by any other witness because [________________________________].

☐ Newly Retained Counsel -- [________________________________] (party) recently retained new counsel, who entered an appearance on [__/__/____]. New counsel requires adequate time to [________________________________] (review the case file / complete discovery / prepare for trial / familiarize with the issues). The case file consists of approximately [____] pages of documents and [____] depositions.

☐ Newly Disclosed or Discovered Evidence -- Material evidence was [________________________________] (disclosed / discovered) on [__/__/____], consisting of [________________________________]. Additional time is needed to [________________________________].

☐ Pending Dispositive Motion -- A [________________________________] (motion for summary judgment / motion to dismiss / motion for judgment on the pleadings) was filed on [__/__/____] and remains pending. Resolution of this motion may [________________________________] (dispose of the case / narrow the issues / eliminate the need for trial).

☐ Expert Witness Issues -- The Moving Party's expert, [________________________________], requires additional time to [________________________________] (complete analysis / finalize report / become available for testimony / respond to opposing expert's report).

☐ Court-Ordered Mediation Incomplete -- The Court ordered mediation on [__/__/____] and mediation has not yet been completed. The mediation is scheduled for [__/__/____], and the parties need additional time beyond the current trial date to complete this process.

☐ Other Good Cause -- [________________________________]

III. STATEMENT OF FACTS

1. This action was filed on [__/__/____] and involves claims for [________________________________].

2. The Court entered a scheduling / trial order on [__/__/____], establishing the following deadlines:
   - Discovery cutoff: [__/__/____]
   - Expert disclosures: [__/__/____]
   - Dispositive motion deadline: [__/__/____]
   - Mediation deadline: [__/__/____]
   - Pretrial filings (motions in limine, witness lists, exhibit lists): [__/__/____]
   - Pretrial conference: [__/__/____]
   - Trial date: [__/__/____]

3. Pursuant to Ala. R. Civ. P. 40(c), the trial was set at least sixty (60) days from the date of the trial order, in compliance with the rule's requirements. The trial order was entered on [__/__/____], and trial is set for [__/__/____], which is [____] days from the date of the trial order.

4. The currently scheduled [________________________________] was set on [__/__/____] by [________________________________] (court order / trial notice / scheduling conference).

5. [________________________________] (Provide detailed facts establishing the circumstances requiring a continuance. Include dates, timelines, efforts to avoid the need for a continuance, and supporting documentation.)

6. Prior Continuances: [________________________________] (Provide a complete history of all continuances in this case. If none: "No prior continuances have been requested or granted." If any: identify date, requesting party, reason, and length of each.)

7. Diligence: The Moving Party has diligently pursued this litigation, including: [________________________________] (describe discovery completed, depositions taken, disclosures served, experts retained, settlement efforts, etc.)

IV. GOOD CAUSE SHOWING

A. Legal Standard

Rule 40(b) of the Alabama Rules of Civil Procedure provides that the court may continue a case "for good cause shown." The granting or denial of a motion for continuance rests within the sound discretion of the trial court. See Ex parte Driver, 258 So. 3d 323, 330 (Ala. 2018); Ex parte Johnson, 184 So. 3d 380, 387 (Ala. 2015); Ott v. Ott, 101 So. 3d 260 (Ala. Civ. App. 2012).

In evaluating good cause, Alabama courts consider:

• Whether the moving party exercised due diligence in preparing the case;
• The reason for the continuance request;
• Whether denial would work a substantial injustice upon the moving party;
• The number and duration of any prior continuances;
• Prejudice to the opposing party;
• The impact on the Court's docket and the orderly administration of justice; and
• Whether the request is made in good faith and not for purposes of delay.

Rule 40(c) further provides that no trial shall be set for a date less than sixty (60) days from the date of the trial order, except in certain enumerated circumstances (domestic relations cases, habeas corpus proceedings, and de novo appeals from district court, where thirty days may suffice). Any rescheduled trial date must comply with this provision.

Additionally, Ala. Code Section 12-21-4 and Section 12-21-5 provide specific statutory requirements for continuances based on the absence of a material witness, including requirements for the content of the supporting affidavit and provisions allowing the opposing party to avoid the continuance by admitting the facts the absent witness would prove.

B. Application to This Case

1. Good Cause Exists Because: [________________________________]

2. Diligence: The Moving Party has demonstrated diligence by [________________________________].

3. Timeliness: This motion is filed [____] days before the scheduled [________________________________]. Counsel became aware of the need for a continuance on [__/__/____] and promptly filed this motion.

4. Reasonable Duration: The requested continuance of [____] days is the minimum necessary to [________________________________]. The proposed new trial date of [__/__/____] complies with Ala. R. Civ. P. 40(c).

5. Substantial Injustice: Denial of this motion would work a substantial injustice because [________________________________].

6. Prior Continuances: [________________________________] (Address the history, if any, and distinguish the current request.)

V. PROPOSED NEW DATES

The Moving Party respectfully proposes the following revised schedule:

The proposed new trial date of [__/__/____] is at least sixty (60) days from the date of this motion, in compliance with Ala. R. Civ. P. 40(c).

The Moving Party is available on the following alternative dates: [________________________________].

VI. POSITION OF OPPOSING PARTY

☐ Stipulated / Unopposed. Counsel for [________________________________] has been contacted and [________________________________] (consents to / does not oppose) the requested continuance and the proposed new dates.

☐ Opposed. Counsel for [________________________________] was contacted on [__/__/____] and opposes the requested continuance. Opposing counsel's stated grounds are: [________________________________]. The Moving Party responds: [________________________________].

☐ Unable to Ascertain Position. Despite diligent efforts, including [________________________________] (telephone calls on [dates], emails on [dates], correspondence on [dates]), the Moving Party has been unable to ascertain opposing counsel's position.

VII. IMPACT ON TRIAL SCHEDULE AND PREJUDICE

1. Granting this continuance will not unduly prejudice [________________________________] (opposing party) because [________________________________].

2. The continuance will not significantly disrupt the Court's docket because [________________________________].

3. Denial of this motion would cause substantial injustice to the Moving Party because [________________________________].

4. No applicable statute of limitations or other statutory deadlines will be affected because [________________________________].

5. The interests of justice support granting this continuance because [________________________________].

VIII. CONCLUSION

WHEREFORE, [________________________________] (Moving Party) respectfully requests that this Honorable Court:

1. Grant this Motion for Continuance;
2. Continue the [________________________________] (trial / hearing) currently scheduled for [__/__/____] to [__/__/____], or such other date as the Court deems appropriate;
3. Adjust all related scheduling order deadlines as set forth in Section V above; and
4. Grant such other and further relief as this Court deems just and proper.

Respectfully submitted,

[________________________________]
(Law Firm Name)

By: ________________________________________
[________________________________]
ASB-[________________________________]
Counsel for [________________________________]
[________________________________] (Address)
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

DATED: [__/__/____]

IX. AFFIDAVIT IN SUPPORT OF MOTION FOR CONTINUANCE

STATE OF ALABAMA
COUNTY OF [________________________________]

Before me, the undersigned authority, personally appeared [________________________________], who being first duly sworn, deposes and states:

1. I am [________________________________] (counsel of record for [party] / the [party]) in the above-styled matter and am competent to testify to the facts set forth herein.

2. The [________________________________] (trial / hearing / pretrial conference) is currently scheduled for [__/__/____] in Courtroom [________________________________].

3. A continuance is necessary because: [________________________________]

4. I became aware of the need for a continuance on [__/__/____], and I promptly [________________________________].

5. I have diligently pursued this matter, including: [________________________________]

6. The complete continuance history in this case is: [________________________________]

7. I consulted with counsel for [________________________________] on [__/__/____], and [he/she/they] [________________________________] (consent to / oppose) the requested continuance.

8. ☐ If based on absence of a material witness, pursuant to Ala. Code Section 12-21-4 and Section 12-21-5:
   a. The testimony of [________________________________] is material because [________________________________].
   b. I have exercised due diligence to procure the witness's attendance by [________________________________].
   c. I reasonably believe the witness can be obtained by [__/__/____] because [________________________________].
   d. The facts the absent witness would prove are: [________________________________].
   e. I cannot prove these facts by any other witness because [________________________________].

9. This request is made in good faith, not for purposes of delay, and granting the continuance will not unduly prejudice any party.

10. Supporting documents attached:
    - ☐ Exhibit A: [________________________________]
    - ☐ Exhibit B: [________________________________]
    - ☐ Exhibit C: [________________________________]

Further Affiant saith not.

________________________________________
[________________________________]
(Affiant)

Sworn to and subscribed before me on this _______ day of ________________________, 20____, by [________________________________], who is personally known to me / has produced [________________________________] as identification.

________________________________________
Notary Public, State of Alabama at Large
My Commission Expires: [__/__/____]

[NOTARY SEAL]

X. PROPOSED ORDER GRANTING CONTINUANCE

IN THE [________________________________] (CIRCUIT / DISTRICT) COURT OF [________________________________] COUNTY, ALABAMA

[________________________________],
Plaintiff,

v.

Case No.: [________________________________]

[________________________________],
Defendant.

ORDER GRANTING MOTION FOR CONTINUANCE

This matter comes before the Court on [________________________________]'s (Moving Party) Motion for Continuance, the supporting affidavit, [________________________________] (any opposition / the stipulation of the parties), and the record herein. The Court, having considered the motion and finding good cause pursuant to Rule 40(b), Alabama Rules of Civil Procedure,

IT IS ORDERED:

1. The [________________________________] (trial / hearing / pretrial conference) scheduled for [__/__/____] is hereby CONTINUED to [__/__/____] at [____] (time) in Courtroom [________________________________].

2. The pretrial deadlines are amended as follows:

a. Discovery cutoff: [__/__/____]

b. Expert disclosures: [__/__/____]

c. Dispositive motion deadline: [__/__/____]

d. Mediation deadline: [__/__/____]

e. Pretrial filings (motions in limine, witness lists, exhibit lists): [__/__/____]

f. Pretrial conference: [__/__/____]

3. All other provisions of the scheduling / trial order dated [__/__/____] remain in full force and effect.

4. All parties shall promptly notify witnesses and update the Court regarding any further scheduling issues.

5. [________________________________] (Additional conditions or restrictions, if any.)

DONE and ORDERED this _______ day of ________________________, 20____.

________________________________________
Hon. [________________________________]
[________________________________] (Circuit / District) Judge

XI. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing MOTION FOR CONTINUANCE, AFFIDAVIT IN SUPPORT, and [PROPOSED] ORDER upon the following by the method(s) indicated, consistent with Ala. R. Civ. P. 5(b):

________________________________________
[________________________________]
(Name of Person Effecting Service)

PRACTICE NOTES

Good Cause Standard in Alabama

1. Abuse of Discretion Standard. Alabama appellate courts review continuance rulings under an abuse of discretion standard. Reversal requires a showing that the trial court's decision was "palpably wrong" or resulted in manifest injustice. See Ex parte Driver, 258 So. 3d 323 (Ala. 2018).

2. Substantial Injustice Test. Continuances should be granted when denial would work a substantial injustice. The courts focus on whether the moving party will be deprived of a fair opportunity to present its case. See Ex parte Johnson, 184 So. 3d 380 (Ala. 2015).

3. Absent Witness Affidavit. Under Ala. Code Section 12-21-5, an affidavit supporting a continuance for an absent witness must state: (a) the name and residence of the witness; (b) the facts the witness would prove; (c) due diligence used to procure the witness; (d) grounds for belief the witness will be available; and (e) that the facts cannot be proved by any other witness. The opposing party may avoid the continuance by admitting that the absent witness would testify as stated.

4. Rule 40(c) Sixty-Day Rule. No trial may be set for a date less than sixty (60) days from the date of the trial order, except in domestic relations cases, habeas corpus proceedings, and de novo appeals from district court (thirty days). Any proposed rescheduled trial date must comply with this requirement.

5. Ala. Code Section 6-6-490 (Attorney Conflicts). This statute addresses continuances when an attorney is engaged in another court. If counsel is actually engaged in a trial in another court, this may constitute good cause. Check whether the conflicting matter takes priority under local practice.

Number of Prior Continuances

• Alabama courts closely scrutinize the number of prior continuances when evaluating a new request.
• Provide a complete and honest history. Omitting prior continuances can severely damage credibility.
• If the opposing party previously received continuances, note this fact to demonstrate balance.

County-Specific Local Rules

• Jefferson County: Maintains specific case management procedures and local rules. Check the Birmingham and Bessemer Division local rules for continuance requirements.
• Mobile County: Has local pretrial orders and specific docketing practices. Review the county's local rules and any standing orders.
• Madison County: Check for any specific continuance forms or procedures used in Huntsville.
• Montgomery County: Review local rules and any administrative orders specific to the circuit.
• Smaller Counties: May have less formal procedures but still require compliance with Rule 40(b). Contact the circuit clerk's office for guidance.

Electronic Filing via AlaFile

• Alabama uses the AlaFile electronic filing system statewide.
• File the motion, affidavit, and proposed order through AlaFile.
• AlaFile will generate electronic notice to all registered counsel of record.
• For parties not registered with AlaFile, serve by traditional methods and document service in the certificate.
• Submit the proposed order as a separate filing.

Timing Considerations

• File the motion as early as possible upon learning of the need for a continuance.
• Last-minute requests face heightened scrutiny and require stronger justification.
• If the matter is urgent, contact the judge's office to request expedited consideration.
• Some judges prefer to rule on unopposed continuance motions without oral argument; confirm with the judicial assistant.
• Consider whether the proposed new date allows adequate time within the requirements of Rule 40(c).

SOURCES AND REFERENCES

• Alabama Rules of Civil Procedure, Rule 40(b) -- Continuances
• Alabama Rules of Civil Procedure, Rule 40(c) -- Trial Setting Requirements
• Alabama Rules of Civil Procedure, Rule 7(b) -- Motions and Other Papers
• Alabama Rules of Civil Procedure, Rule 6(b) -- Enlargement of Time
• Alabama Rules of Civil Procedure, Rule 5(b) -- Service of Papers
• Ala. Code Section 6-6-490 -- Continuances at Request of Attorney
• Ala. Code Section 12-21-4 -- Continuance for Absence of Witness
• Ala. Code Section 12-21-5 -- Requisites of Application for Absent Witness Continuance
• Ex parte Driver, 258 So. 3d 323 (Ala. 2018)
• Ex parte Johnson, 184 So. 3d 380 (Ala. 2015)
• Ott v. Ott, 101 So. 3d 260 (Ala. Civ. App. 2012)
• Alabama Judicial System: https://judicial.alabama.gov/
• AlaFile E-Filing System: https://efile.alacourt.gov/