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Federal Bar Update: Rule changes, 7th Circuit procedural decisions

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Federal Bar UpdateAs federal practitioners know, each Dec. 1 new federal rule amendments take effect. In most recent years there have been significant changes to Federal Rules of Civil Procedure each December. This year, however, there are no amendments that took effect to the Federal Rules of Civil Procedure, the Federal Rules of Evidence or the Federal Rules of Appellate Procedure. The only federal rule changes that took effect Dec. 1 were to Bankruptcy Rules 1007, 2015, 3001, 7054 and 7056, Criminal Rules 5 and 15, and new Rule 37.

As for Local Rules, as noted in my last column, the Northern District of Indiana has passed modest Local Rule amendments that take effect Jan. 1. The Southern District’s proposed Local Rule amendments are likewise modest, and if approved by the court as anticipated would take effect Jan. 1. Those amendments are largely stylistic and in the nature of housekeeping cleanups, but Local Rule 83-5 and 83-6 on court admission and pro hac vice admission are significantly rewritten.

7th Circuit developments

The 7th Circuit Court of Appeals has issued a number of significant procedural decisions addressing key appellate issues, including the following:

• In Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012), the court ordered defendant to amend its jurisdictional allegations in its notice of removal, noting, “When we raised this issue at oral argument, counsel for both sides were surprised to learn that ‘citizenship’ for the purpose of 28 U.S.C. § 1332 depends on domicile rather than residence.” The court added, “Lawyers have a professional obligation to analyze subject-matter jurisdiction before judges need to question the allegations.”

• In Feldman v. Olin Corp., 673 F.3d 515, 516 (7th Cir. 2012), the court held that if the District Court orders the party’s attorney (not the party itself) to pay sanctions, the appeal must be made in the attorney’s own name.

• In Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 536 (7th Cir. 2012), the court addressed a discretionary interlocutory appeal, which are not frequently accepted in the 7th Circuit. Although the court did accept this particular interlocutory appeal, it wrote, “Interlocutory appeals are frowned on in the federal judicial system. They interrupt litigation and by interrupting delay its conclusion; and often the issue presented by such an appeal would have become academic by the end of the litigation in the district court, making an interlocutory appeal a gratuitous burden on the court of appeals and the parties, as well as a gratuitous interruption and retardant of the district court proceedings.”

• In Dynegy Marketing & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011), the court noted that in an earlier appeal, it had dismissed the appeal for lack of finality because prejudgment interest had not been determined. The court wrote, “We dismissed the appeal for lack of jurisdiction, however, because the district court’s judgment did not specify the amount of pre-judgment interest the defendants owed and was therefore not final. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 175-76 (1989).”

Finally, the Seventh Circuit Practitioner’s Handbook has been updated this year. The 145-page reference is online at www.ca7.uscourts.gov, and is an invaluable reference for all appellate practitioners.

Mark Your Calendars – The 7th Circuit Judicial Conference is set for May 5-7 in Indianapolis.•

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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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