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Federal Bar Update: No changes to federal rules this year

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Federal Bar UpdateFederal rule amendments take affect Dec. 1 of each year after a lengthy, time-consuming process of transmittal from the Judicial Conference to the Supreme Court and then to Congress. This coming December, for the first time in many years, there are no amendments on the horizon for the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, or Federal Rules of Evidence. Instead, there are only proposed amendments to five Bankruptcy Rules and three Criminal Rules. If Congress does not act on these proposals (which it rarely does), these will become law Dec. 1.

On the local rules fronts, no extraordinary changes are anticipated at present in the Southern or Northern Districts of Indiana.

N.D. Indiana admission – Pursuant to N.D. Ind. Local Rule 83.5, attorneys may represent parties before the court if the attorneys are members of the court’s bar, or if they obtain pro hac vice admission. This is nothing new. What is new is that to join the court’s bar or obtain pro hac vice admission, the process occurs online. Full registration costs $186, and pro hac vice admission $93. The link is on the court’s website under Admission to Practice: http://www.innd.uscourts.gov/admissionpractice.shtml.

In the Southern District, the forms for bar or pro hac vice admission are available on the court’s website at http://www.insd.uscourts.gov/. Bar admission is likewise $186, and pro hac vice admission is $30.

Searching Southern District opinions – Unknown to many practitioners, there is a tool on the Southern District’s website for searching opinions designated by the authoring judge as containing – in the words of the E-Government Act of 2002 – “a reasoned explanation for a court’s decision.” This search tool is found by going to the court’s website, hitting the Case Information menu bar, then clicking the Search Court Opinions button.

The search tool allows a search by authoring judge and date range, and can then be further filtered by a search term. Thus, if one wanted to research removal opinions in 2012, this could be easily done.

Using this tool, for instance, a decision from Judge William Lawrence authored July 24th remanding a removed action was located. The brief opinion in Ege v. Menard, Inc., 1:12-CV-276 –WTL/TAB (S.D. Ind. July 24, 2012), remanded the matter to state court due to the amount in controversy. The opinion provides a helpful summary of applicable principles and the scrutiny the court gives to jurisdiction, as follows:

“Upon discussion with the parties at an initial pretrial conference, the Magistrate Judge … learned that the Plaintiff’s medical expenses arising out of the incident at issue were less than $6,000. While the Plaintiff has filed an amended complaint in which she asserts that the amount in controversy in this case exceeds $75,000.00, the Magistrate Judge was doubtful that this was the case and ordered the Defendant to show cause why the case should not be remanded. The Defendant’s response to the order to show cause supports the Magistrate Judge’s suspicion. The Plaintiff’s allegation that she has sustained more than $75,000.00 in damages is based on the fact that she might need to have surgery in the future; however, the Plaintiff has been released from treatment by her physician and ‘Plaintiff’s counsel has acknowledged that Plaintiff’s treating health care providers have never indicated that surgery will actually be necessary, and there is nothing within Plaintiff’s medical records that would otherwise support the claim for a possible future surgery.’”

Judge Lawrence continued: “‘When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appears to a legal certainty that the claim is really for less than the jurisdictional amount.’ McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009). Here the only basis for the assertion of more than $75,000.00 in damages is the alleged possibility of future surgery, a possibility that has no basis in the Plaintiff’s medical records and therefore is purely theoretical. A plaintiff may not recover for purely theoretical damages at trial. Accordingly, the Court finds it to be a legal certainly that the Plaintiff’s claim in this case does not satisfy the jurisdictional threshold and, therefore, this Court lacks subject matter jurisdiction over this case.”

Thus, beyond the usual legal research providers, practitioners should consider turning to the court’s website for searching instructive opinions. Many of these never appear in Lexis or Westlaw. When citing these opinions, Local Rules should be considered, of course.

In the Southern District, for instance, Local Rule 7.1(d) provides, “Ordinarily, copies of cited authorities should not be appended to court filings. However, a party citing a decision, statute, or regulation that is not available on Westlaw or Lexis/Nexis must attach a copy to the document filed with the court. In addition, if a party cites a decision, statute, or regulation that is only available through electronic means (e.g. Lexis/Nexis, Westlaw or from the issuing court’s website), upon request that party must furnish a copy to the court and other parties.” In the Northern District, Local Rule 7.1(f) similarly provides, “A copy of any decision, statute, or regulation cited in a motion or brief must be attached to the paper if – and only if – it is not available on Westlaw or Lexis. But if a copy of a decision, statute, or regulation is only available electronically, a party must provide it to the court or another party upon request.”

Save the Date – The annual Federal Civil Practice Seminar will be Thursday, Dec. 20, from 1:30 p.m. – 4:45 p.m. in Indianapolis. Mark your calendars and watch for registration information at www.theindianalawyer.com.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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