REQUEST FOR COMMENT PUBLIC COMMENT PERIOD MAY 10 - MAY 27, 2005ALL COMMENTS DUE BY CLOSE OF BUSINESS MAY 27, 2005

The United States District Court for the District of New Hampshire proposes the following amendment to the Local Rules to be effective 6/1/05. New matter is underlined; matter to be stricken is crossed out. The ***** denotes omitted text before and/or after the pertinent rule section.

Input from the public and the bar is encouraged. Any written comments, in letter form and keyed to the specific rule/subsection, should be directed to the Clerk, U.S. District Court, Warren B. Rudman U.S. Courthouse, 55 Pleasant Street, Room 110, Concord, NH 03301-3941. Comments may be forwarded by e-mail to daniel_lynch@nhd.uscourts.gov or by telephone (603-225-1477).

CIVIL RULES

9.4 Cases under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B).4 Cases under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B)

Unless otherwise ordered by the court, the following procedures shall govern all actions that include one or more claims under § 502(a)(1)(B), including removed cases in which an ERISA claim is pled and removed or diversity cases in which the court subsequently determines that ERISA preempts the state law claims.

(a) The Administrative Record.(a)The Administrative Record. The defendant shall serve and file a copy of the administrative record with its answer. In those cases in which the court determines ERISA preempts state law claims and orders the plaintiff to file an amended complaint setting forth an ERISA claim, the defendant shall serve and file the administrative record with its answer to the amended complaint. The administrative record shall consist of all relevant plan documents and any documents submitted, considered, or generated in the course of making the benefit determination. Any motion to modify the administrative record shall be served and filed within ten (10) days after the administrative record is served.

(b) Joint Statement of Material Facts.(b)Joint Statement of Material Facts. Within thirty (30) days after the filing of the administrative record or the court's ruling on any motion to modify the administrative record, whichever is later, the plaintiff shall serve on the defendant a proposed joint statement of material facts. This statement shall be in narrative form, contain record citations, summarize all procedural developments, and describe all facts pertinent to the resolution of the case. Within fifteen (15) days after the proposed joint statement of material facts is served, the defendant shall inform the plaintiff of any proposed additions or deletions to the joint statement. Within fifteen (15) days after service of the defendant's proposed additions and deletions, the plaintiff shall serve and file a joint statement of material facts containing all agreed-upon facts and record citations. If any material facts remain in dispute, the parties shall each file a list of disputed facts, including record citations, within fifteen (15) days after the joint statement of material facts is filed by the plaintiff.

(c) Decision Memoranda.(c)Decision Memoranda. Within thirty (30) days after the joint statement of material facts is filed, plaintiff shall serve and file a motion for judgment on the administrative record and a supporting memorandum. Within thirty (30) days after plaintiff's motion for judgment on the administrative record is filed, defendant shall serve and file its motion for judgment on the administrative record and a supporting memorandum. The defendant's motion and memorandum shall respond to the specific issues raised in the plaintiff's motion and memorandum. Plaintiff may file a reply memorandum pursuant to LR 7.1(e)(1). Neither party shall file an objection to the other party's motion.

(d) Discovery and Trial.(d)Discovery and Trial. Initial disclosure under Fed. R. Civ. P. 26(a) shall not be made, discovery shall not be permitted, and a trial date shall not be set prior to the court's ruling on the motions for judgment on the administrative record.

67.4 Form of Payment Accepted67.4Form of Payment Accepted

Fees, fines, assessments, money deposited into court pursuant to Fed. R. Civ. P. 67, or any other charge payable to the clerk shall be in cash, cashier's check, or money order. Payment by credit card is also accepted, but there may be restrictions on certain types of payments. After consulting with the clerk's financial administrator, and in accordance with the clerk's internal policies, payment may also be made by electronic funds transfer received through the Department of Treasury's Fedwire Deposit System. The clerk in his or her discretion may allow payment by other means in the following situations:

1.corporation or partnership checks may be accepted as payment for filing fee or deposits pursuant to Fed. R. Civ. P. 67; and

2.personal checks may be accepted as payment for fees for admission to the bar, from attorneys who are sole practitioners for any purpose, and for fines personally assessed against parties.

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