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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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