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36.12.222    CONTINUANCES

(1) A motion for continuance of a hearing shall be made pursuant to the requirements of ARM 36.12.213.

(2) A motion for continuance filed not less than 10 days prior to the hearing may be granted upon showing of good cause.

(3) A motion for continuance filed less than 10 days prior to the hearing shall be denied unless good cause exists and the reason for the request could not have been ascertained earlier and cannot be avoided.

(4) "Good cause" for purposes of this rule includes but is not limited to:

(a) death or incapacitating illness of a party or member of a party's immediate family or attorney of a party or witness to an essential fact;

(b) a court order requiring a continuance;

(c) lack of proper notice of the hearing;

(d) a substitution of the attorney of a party if the substitution is shown to be required;

(e) unavailability of counsel due to engagement in court or another administrative proceeding provided counsel submits copies of documents requiring counsel's presence at said proceeding;

(f) a change in the parties or pleading requiring postponement;

(g) unavailability of a party or a witness to an essential fact for serious and compelling reasons where the conflict could not be anticipated and cannot be avoided; or

(h) agreement for a continuance by all parties upon a showing that:

(i) more time is clearly necessary to complete discovery authorized pursuant to ARM 36.12.215(3) or other mandatory preparation for the case, and the parties have agreed to a new hearing date; or

(ii) the parties have agreed to a settlement of the case; or

(iii) all the parties have agreed to a new hearing date and the agreed upon date is convenient for the hearing examiner.

(5) "Good cause" for purposes of this rule shall not include:

(a) intentional delay;

(b) unavailability of an expert witness if the witness' deposition could have been taken prior to the hearing;

(c) failure of a party or their counsel to properly utilize the notice period to prepare for the hearing;

(d) failure of a party to act with due diligence in acquiring counsel within the notice period.

(6) During a hearing, if it appears in the interest of justice that further testimony should be received, the hearing examiner may continue the hearing to a future date and oral notice of such continuance on the record shall be sufficient.

History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-611, MCA; NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

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