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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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