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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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