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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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