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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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