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Maley: Northern District proposes venue, other rule amendments

March 20, 2019

FedBarMaley-sigThe Northern District of Indiana has published proposed Local Rules amendments, with the comment period open through March 31. The Local Rules Advisory Committee has recommended, and the Court has approved for public comment, amendments to Local Rules 1-1, 3-1, 5-1, 5-2 and 7-1.

The most notable change would be the addition of new Local Rule 3-1 addressing Divisional Venue among the Fort Wayne, Hammond, Lafayette and South Bend divisions. The proposed new rule reads:

N.D. Ind. L.R. 3-1 Divisional Venue

(a) Proper Venue. Divisional venue is determined by applying the district venue provisions of 28 U.S.C. §§ 1391-1413 to the divisions of the Northern District of Indiana as defined in 28 U.S.C. § 94(a).

(b) Improper Venue. On its own motion or the motion of a party, if the court determines a case is filed in a division without proper venue, the court may, pursuant to 28 U.S.C. § 1406:

(1) dismiss the case; or

(2) in the interest of justice, transfer the case by issuing an order directing the clerk to reopen the case in a proper division.

(c) Waiver. If a party does not interpose a timely and sufficient objection to divisional venue, the objection is waived.

Another significant change would be the deletion of Local Rule 5-2 on electronic service. With the ECF filing and service system now firmly entrenched ,and with the amendments last year to Fed. R. Civ. P. 5(d)(B) providing that, “No certificate of service is required when a paper is served by filing it with the court’s electronic-filing system,” Local Rule 5-2 is unnecessary.

Finally, Local Rule 7-1(d) would be amended with this new subdivision (2): “Fed. R. Civ. P. 12(b), (e), or (f) Motions. A party must file any response brief to a motion under Fed. R. Civ. P. 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 Fed. R. Civ. P. 15(a)(1).” The Local Rules Advisory Committee Comments to this proposed amendment explain the reason for this proposal, stating: “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(d) (2) provides consistency with Fed. R. Civ. P. 15(a) by allowing 21 days to respond to Rule 12(b), (e), and (f) motions.”

Notably, after the Northern District’s Local Rules Advisory Committee began studying this issue through a subcommittee, the Southern District Local Rules Advisory Committee recommended this change, and the Southern District adopted this amendment in 2018. The Rules Committees of both Courts endeavor to have the same local rules whenever possible, with a representative of each committee serving on the other court’s committee.

Supreme Court addresses class certification appeals clock

In Nutraceutical Corp. v. Lambert, the U.S. Supreme Court ruled last month that parties have 14 days to seek permission to appeal from a class certification grant or denial. The 9-0 opinion’s opening paragraph provides a succinct summary of the holding: “To take an immediate appeal from a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of appeals ‘within 14 days after the order is entered.’ Fed. Rule Civ. Proc. 23(f). This case poses the question whether a court of appeals may forgive on equitable tolling grounds a failure to adhere to that deadline when the opposing party objects that the appeal was untimely. The applicable rules of procedure make clear that the answer is no.”•

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. Opinions expressed are those of the author.

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