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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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