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Federal Bar Update: Rules change in Northern, Southern district courts

July 25, 2018

FedBarMaley-sigFRCP 15 v. Local Rules 7-1: Since the 2009 amendment to Rule 15 of the Federal Rules of Civil Procedure, potential timing conflicts have existed in Indiana federal courts regarding the timing to respond to certain dismissal motions or amend the pleading as a matter of course. Specifically, FRCP 15 allows 21 days to amend a pleading as a matter of course after service of a Rule 12(b), (e) or (f) motion. Local Rules 7-1 in the Northern and Southern Districts of Indiana, however, have provided a shorter 14-day period to respond to such motions. The Southern District recently modified its Local Rule 7-1 to 21 days for a response, and the Northern District Local Rules Advisory Committee has been considering this.

History in N.D. of Indiana: The issue was first addressed in the Northern District’s Local Rules Committee in 2015. It was noted that in Scholastic Services, Inc. v. First Midwest Bancorp, Inc., No. 2:15-cv-00211 (N.D. Ind.), a plaintiff faced with a Rule 12(b)(6) motion asked the court for 21 days to respond to a dismissal motion, noting the Rule 15 period of 21 days to amend. The court granted the extension. See ECF 18 (motion); ECF 26 (Minute Order granting extension).

The Committee also noted Tate v. SCR Medical Transportation, 809 F.3d 343 (7th Cir. 2015), in which the 7th Circuit reversed a dismissal before the 21-day amendment period. The court wrote: “Furthermore, the district court dismissed the suit before the expiration of the 21-day period (after the filing by the defendant of a responsive pleading or a motion to dismiss) during which a plaintiff may file an amended complaint without the court’s approval. Fed.R.Civ.P.15(a)(1). This was a serious mistake given the inadequacy of the plaintiff’s allegation of disability discrimination.”

Somewhat similarly, in United States v. Acacia Mental Health Clinic, LLC, 836 F.3d 770 (7th Cir. 2016), the court reversed a district court, with Judge David Hamilton writing in a concurring and dissenting opinion: “When the defense filed its original motion to dismiss, the district judge told the relator that she would have only one chance to amend her complaint. Such a rigid ruling at the outset of most cases would be an abuse of discretion ... In this case, the ‘one-and-done’ ruling was an abuse of discretion since it was based on the judge’s own clear legal mistake”

Finally, the 7th Circuit has noted the purpose behind the 2009 amendments to Rule 15(a)(1), writing: “The advisory committee notes explain that the 2009 amendment will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.” Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 522 (7th Cir. 2015)

The Northern District’s committee appointed a subcommittee to study this issue, and the subcommittee recommended that N.D. Indiana Local Rule 7-1(d) be amended to provide a 21-day response period to respond to motions under Rules 12(b), (e) and (f). The issue will be before the Northern District’s Rules Committee at an upcoming meeting.

S.D. of Indiana History: Meanwhile, the Southern District’s Rules Committee, benefitting from the Northern District’s work, studied the issue and recommended that S.D. Ind. Local Rule 7-1(c) be amended likewise. The district judges of the Southern District recently approved the amendment after the public comment period.

Effective June 19, amended S.D. Indiana Local Rule 7-1(c) now provides: “Rule 12(b), (e), or (f) Motions. A party must file any response brief to a motion based on Rule 12(b), (e), or (f) within 21 days after the motion is served unless that party is entitled to and first files an amended pleading as a matter of course under Rule 15(a)(1). If a response to a motion to dismiss is filed, any reply is due within 7 days after service of the response.”

The Court included an explanatory Committee Comment: “A 2009 change to Fed. R. Civ. P. 15(a) permits 21 days to amend a pleading in response to 12(b), (e), and (f) motions in cases where a required responsive pleading has not yet been served. The change to Rule 15(a) encourages parties to amend the initial pleading in light of the motion, thereby mooting the Rule 12 motion. The amendment to Local Rule 7-1(c) provides consistency with Fed. R. Civ. P. 15(a) by allowing 21 days to respond to Rule 12(b), (e), and (f) motions.”

Save the date: The annual Federal Civil Practice Seminar will be held Friday, Dec. 14, in Indianapolis. Mark your calendars and plan to attend. •

John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters and appeals. He clerked for Judge Larry McKinney from 1988-90.

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