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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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