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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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