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Federal Bar Update: Southern District proposes local rule changes

November 14, 2018

FedBarMaley-sigThe Southern District of Indiana Court has published for comment proposed changes to several local rules, with the full text available on the court’s website. Several of the proposals address practices and procedures that arise in many cases.

The comment period is open through Nov. 16. All the proposals were unanimously recommended by the Local Rules Advisory Committee.

Local Rule 6-1(a): Extensions of time are frequently requested, and often on the due date. This leaves the requesting party uncertain of status and adds to court business as calls are often made by counsel after the filing to find out status. Local Rule 6-1(a)’s proposed amendment adds subsection (5), which reads that a request for an extension of time must “(5) be filed at least three full business days prior to the deadline absent extraordinary circumstances, or summary denial may result.” This is a common-sense amendment that is common in other courts, such as a seven-day requirement for extension motions in Indiana appellate practice, per Ind. App. R. 35.

Local Rule 37-1: This rule addresses discovery disputes and currently requires: “Prior to involving the court in any discovery dispute, including disputes involving depositions, counsel must confer in a good faith attempt to resolve the dispute. If any such dispute cannot be resolved in this manner, counsel are encouraged to contact the chambers of the assigned Magistrate Judge to determine whether the Magistrate Judge is available to resolve the discovery dispute by way of a telephone conference or other proceeding prior to counsel filing a formal discovery motion.” The proposed amendment changes “counsel are encouraged to contact the chambers of the assigned Magistrate Judge... .” (emphasis added) to counsel shall contact the chambers of the assigned Magistrate Judge... .” (emphasis added), making such contact mandatory.

New Local Rule 81-2: Rule 81(c) of the Federal Rules of Civil Procedure speaks to the process for removed actions, but only as to the deadline for answering the complaint. By statute, upon removal a defendant “desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.”

The requirement of “all process, pleadings, and orders” being filed with removal has posed some challenges for the Court in terms of managing and processing the new case. These items are typically filed as a single pdf, making it challenging for the court to calendar deadlines, or to know if a motion is pending (e.g., motion for preliminary injunction).

Court staff and the Local Rules Committee spent significant time analyzing this topic, and ultimately recommended the new rule below, which requires the state court docket to be included, all filings to be in chronological order, the operative complaint to be a separate attachment, and a separate notice describing any pending motions, with the moving party required to refile the motion and any responses within seven days if that party wants the motion ruled upon. Here is the text of the proposed new rule:

“Local Rule 81-2 (a) Attachment of State Court Record. When removing an action from state court, the removing party must file a copy of the State Court Record as an attachment to the Notice of Removal. The State Court Record must include a copy of the state court docket sheet, all pleadings, motions, orders, and all other filings, organized in chronological order by the state court filing date.

(b) Format and Description of Electronic Attachment. Notwithstanding Local Rule 5-6, if the State Court Record is filed electronically, it should be created and filed as an attachment to the Notice of Removal as a single .pdf file. The filing party should describe the attachment as the State Court Record, listing each document filed. (E.g., “State Court Record (Complaint, Appearance, Summons, Motion for Temporary Restraining Order)”).

(c) Attachment of Operative Complaint. In addition to including the operative complaint in the State Court Record (as defined in paragraph (b) above), the removing party must file an additional copy of the operative complaint as a separate attachment to the Notice of Removal.

(d) Pending State Court Motions.

(1) Notice. At the time of removal, the removing party must file a separate notice listing any state court motions that remain pending at the time of removal.

(2) Obligation to Refile. If any motion remains pending in state court at the time of removal, and if the movant wishes the District Court to rule on the motion, the party that initially filed the motion must refile the motion in the District Court case, and attach any responses thereto, within seven (7) days of the filing party’s appearance.

Annual Federal Civil Practice Seminar: The Annual Federal Civil Practice Seminar will be Friday, Dec. 14, in Indianapolis. Speakers include Southern District Chief Judge Jane Magnus-Stinson; judges James Sweeney, II and J.P. Hanlon; magistrate judges Debra Lynch and Doris Pryor; and Clerk Laura Briggs. Register online at TheIndianaLawyer.com/events.•

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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