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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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