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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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