Bar News - February 8, 2008
The 2008 Amendments to the U.S. District Court Local Rules
By: Gretchen Leah Witt
On January 1, 2008, the most recent amendments to the Local Rules of the U.S. District Court for the District of New Hampshire took effect. The court adopted these amendments following development by the Federal Court Advisory Committee and an opportunity for any interested person to comment upon the court’s draft proposals. A complete set of the U.S. District Court’s Local Rules, as well as a summary of the rule changes, may be downloaded from the Rules page on the court’s Web site, http://www.nhd.uscourts.gov/ or a copy may be purchased from the court.
Many of the 2008 amendments are technical, but some fill in gaps or bring the local rules into line with the Federal Rules of Civil Procedure. Still others reflect continuing refinement of the local rules in the age of electronic filing. In one instance, the FCAC proposed adoption of a rule permitting counsel to remove jury questionnaires from the courthouse, but the court determined against adopting it, leaving the court’s practices regarding the examination of jury questionnaires unchanged.
Rule 83.6 Appearances
The court has eliminated most of the provisions of Local Rule 83.6(a) regarding appearances of counsel. Previously, for efficiency and to avoid the need to send multiple copies of filings to a single firm, Local Rule 83.6(a) limited the number of attorneys who could appear for a party on the docket. With electronic filing, all such notifications are automatic and no longer tax the resources of the clerk’s office. Thus, Rule 83.6(a) now permits multiple attorneys from the same firm to appear and be entered on the docket.
Rule 7.1(e) Motions - Reply or Surreply Memorandum
The court has altered the practice by which counsel request to file either a reply memorandum in a nondispositive motion, or a surreply memorandum in all cases. Previously, practice in the district had been divided, with some counsel filing the motion for leave immediately with the memorandum to be filed once leave was granted by the court. Others filed the motion for leave and attached the proposed reply or surreply to the motion. In amendments to Local Rules 7(e)(2) and 7(e)(3), the court chose the latter method as the required method. Therefore, when seeking leave to reply to a non-dispositive motion or to surreply at all, counsel must prepare and file the proposed document with the motion for leave to file it. In all cases, non-dispositive motion replies and surreplies are now limited to five (5) pages in length.
New Rule 7.3 Hazardous Pleadings and Exhibits
In new Rule 7.3, the court has adopted a prohibition against the filing of hazardous pleadings or exhibits without prior leave of court. While many counsel might think that such a rule was unnecessary, unfortunately, in recent years, such material has been more frequently mailed or submitted to the court, causing a quandary about how to handle it. The new rule provides a non-exhaustive definition of materials qualifying as hazardous pleadings and exhibits under the rule, including firearms, narcotics, blood, human tissue, and others. Without prior leave of court, such materials may either be returned to the filer or destroyed without prior notice to the filer.
In addition, the court adopted a parallel provision in Local Rule 83.13, Exhibits. Pursuant to new Local Rule 83.13(a)(3), no hazardous exhibit should be presented for premarking, premarked, introduced into evidence or held by the court without prior leave having been granted by the court.
Rule 4.3 Pro Se Filings: Clarification of Service in Cases with Pro Se Incarcerated Plaintiffs
Pursuant to LR 4.3(d)(2), no civil complaint brought by an incarcerated individual may be served until after the U.S. Magistrate Judge has conducted a preliminary review as to the merits of the complaint. Somewhat frequently inmates misconstrue or are unaware of this requirement, incorrectly presume service has occurred, and prematurely move to default the defendant prior to the completion of preliminary review by the magistrate judge. Therefore, the court amended Local Rule 4.3(d)(2)(C) to clarify that, in pro se incarcerated plaintiff cases, there will be no service made, or deemed to have been made, until after the U.S. Magistrate Judge has issued a report and recommendation ordering service of the pending complaint.
Rule 5.1: Format and Size of Pleadings
Two changes have occurred in Local Rule 5.1. First, in recognition of changing practice under electronic filing, the court has eliminated the provision in Local Rule 5.1(a)(2) that permitted counsel to highlight portions of exhibits to which the counsel wished to direct the court’s attention. More importantly, however, the court has newly adopted subpart (h) of Local Rule 5.1, which requires that filers must include English language translations of any foreign language documents submitted to the court. If a party only submits partial translations, the opposing party may submit translations of additional portions of the document. In the absence of a submitted translation, the court will reject any non-English document.
Elimination of Local Rules 8.1 and 24.1
Similarly, Local Rule 24.1 set forth the procedure for notifying the court of a claim in which the constitutionality of any federal law was called into question in a case in which the United States, or one of its agencies or officials, was not a party. As of December 1, 2006, new Federal Rule of Civil Procedure 5.1 established a procedure for notifying the court if either a state or a federal statute’s constitutionality is called into question. In addition, new Federal Rule 5.1 provides that a party must give notice to the appropriate attorney general if a statute is called into question. Once the court has certified to the appropriate attorney general that a constitutional challenge has been brought, that entity will have 60 days in which to intervene in the suit. As a result of the comprehensive new Federal Rule 5.1, this district’s local rule was eliminated by the court.
Local Rule 9.3: Individuals with Disabilities Education Act (IDEA) Cases
As a result of ongoing questions by practitioners, the court has clarified the filing of the administrative record in IDEA cases. There was a gap in the existing local rule regarding instances in which the defendant disagreed with plaintiff’s assessment that the administrative record was complete. Although the prior rule permitted defense counsel to identify additional portions of the administrative hearing for inclusion in the record, it was silent regarding additional documents. Local Rule 9.3 was thus amended to clarify that defense counsel can identify additional documents and shall file them with the court.
Local Rule 77.5 Agreement with Districts of Rhode Island and Maine
This district has long had an agreement with the Districts of Rhode Island and Maine on the handling of cases from which the judges in this District are recused. Usually, a district judge for one of those districts is designated to preside over the case. Previously, under Local Rule 77.5, parties in such cases needed to file pleadings in both districts, with the original being filed here and copies in the sitting judge’s home district. With the advent of electronic filing, however, this became unnecessary. Thus, LR 77.5 was amended to provide that all pleadings shall continue to be filed electronically here and no courtesy copies need be filed in the referral court. Additionally, the amended rule no longer requires counsel notify the referral court of any outstanding motions and objections in the case that they wish to renew.
Local Rule 83.11 Sealed Documents
The court has clarified in Local Rule 83.11(d) that material filed under seal or requested to be filed under seal must not only be in compliance with Local Rule 83.11, but also with Administrative Procedure for Electronic Case Filing 3.3. That Administrative Procedure establishes the steps to take in filing sealed matters in electronic cases, including what documents must be filed conventionally, and what needs to be submitted on a 3.5 floppy or compact disk. Therefore, filers must comply with both the Local Rule and the Administrative Procedure to file sealed material.
Local Criminal Rule 12.1(c) Motions in Limine
When filing an in limine motion relating to the qualifications of an expert that might require an evidentiary hearing, counsel frequently questioned whether such a motion was governed by LCrR 12.1(b), which requires that “evidentiary motions” be filed no later than 21 days before trial, or LCrR 26.1, which applied generally to “in limine” motions and required such motions be filed no later than 7 days before trial. To clarify this question, the court revised LCrR 12.1(b) to make clear it did not include in limine motions, eliminated LCrR 26.1 but incorporated those provisions into new subsection (c) of LCrR 12.1
Local Rule Criminal 32.1(i) Guideline Sentencing: Deviations
Previously, in Local Criminal Rule 32.1(i), the court addressed the procedure by which parties were to request a departure from the then-mandatory Sentencing Guidelines. Subsequent to the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the court adopted a Standing Order reflecting the change in the Guidelines to advisory, rather than mandatory. This Standing Order established a procedure for parties to give notice to the court and the opposing party of the grounds upon which the moving party would seek a sentence above or below the advisory Guidelines sentence. Rather than continue with the Standing Order, the court has amended Local Criminal Rule 32.1(i) to incorporate the provisions of the Standing Order, although it has eliminated any requirement of identifying a specific requested sentence.
Gretchen Witt is the Chief of the Civil Division at the United States Attorney’s Office for the District of New Hampshire and the Chair of the Local Rules Subcommittee of the Federal Court Advisory Committee. Any views expressed in this article are those of the author, and not of the United States Attorney’s Office or the U.S. Department of Justice.