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Federal Bar Update: Comments accepted on Rule 45 amendments

John Maley
September 14, 2011
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Federal Bar Update2011 amendments – For December 2011, there are no amendments in process for the Federal Rules of Civil Procedure. In April, the Supreme Court approved various amendments to the appellate rules, criminal rules, bankruptcy rules, and evidence rules. Absent action by Congress, which is not anticipated, these rule amendments will take effect Dec. 1, 2011.

2013 proposals: Rule 45 – Looking further down the road, for 2013 proposed amendments are currently published for comment through Feb. 15, 2012. The key proposal would revise Rule 45 significantly. As subpoenas are so frequently used, practitioners should review and provide comment on the proposal. Visit www.uscourts.gov and select Rules & Policies, followed by Federal Rulemaking, for the draft proposals. The committee’s proposals would simplify various provisions, particularly those dealing with where subpoenas can command compliance. The committee explains, “In particular, the amendments direct that the court where the action is pending is the ‘issuing court’ no matter where compliance is required, and they collect in one new subsection all provisions about where compliance can be required. As at present, however, they provide that court enforcement of a subpoena should be sought in the compliance district.”

Further, the proposed amendments “reject a line of cases that found authority in the current rule to compel parties or party officers to travel more than 100 miles from outside the state to testify at trial, and introduce limited authority for a court asked to enforce another court’s subpoena to transfer a subpoena-related motion to the court that issued the subpoena. Finally, they relocate and somewhat broaden the existing requirement for notice to the other parties before a subpoena is served.”

Removal/remand/amount-in-controversy – As most practitioners know, removal of personal injury diversity cases can be challenging when no dollar claim is pleaded in state court (such prayers are precluded by Indiana Trial Rule 8 in personal injury, wrongful death, and punitive damage claims). Other types of cases often lack a dollar-certain prayer as well.

In Family Express Corp. v. Creative Risk Solutions, Inc., 2011 U.S. Dist. LEXIS 65351 (N.D. Ind. June 16, 2011) (DeGuilio, J.), the court remanded a removed diversity action based on the defendants’ pre-suit receipt of settlement correspondence indicating more than $75,000 was at issue. The court noted that the 7th Circuit has held that settlement letters can be used to establish the amount in controversy. Accordingly, the court held that removal was required within 30 days of receipt of the complaint (and not within 30 days of when this defendant learned from discovery that the amount in controversy exceeded $75,000).

Study on 12(b)(6) motions – The Administrative Office of the U.S. Courts has released a study on 12(b)(6) dismissal motions filed, granted, and denied before and after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). That 52-page study can be located at http://www.fjc.gov/public/pdf.nsf/lookup/motioniqbal.pdf/$file/motioniqbal.pdf, or go to www.uscourts.gov and drill through Rules & Policies, Overview, What’s New.

Mark your calendars – The Annual Federal Civil Practice Seminar will be held Friday, Dec. 16, in Indianapolis, starting at 1:30 p.m. Three hours CLE will be provided. See www.theindianalawyer.com for information.•

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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.

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  1. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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