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Bar News - February 19, 2010


A Practitioner’s Guide: 2009 Amendments to the U.S. District Court Local Rules

By:

On December 1, 2009, the most recent amendments to the Local Rules of the US District Court took effect. The court adopted these amendments following recommendations by the Federal Court Advisory Committee and after any interested person had an opportunity to comment upon the court’s draft proposals. A complete set of the local rules may be downloaded from the Rules page on the court’s website, nhd.uscourts.gov, or a copy may be purchased from the courts.

Although the most significant amendments relate to many deadlines in the Federal Rules of Criminal and Civil Procedure, the court changed other aspects of the local rules. This article covers the major amendments, but counsel should review the local rules independently because not all amendments are identified here.

Time Computation

The Federal Rules of Criminal and Civil Procedure amendments, effective December 1, 2009, standardized all rule-based periods for action to multiples of seven days. For example, rule-established deadlines that previously were five days are now seven calendar days, 10-day periods are now 14, and 20-day or 30-day deadlines are now 21 or 28 days, respectively. The amendments are intended to enhance clarity and ease of calculation by, among other things, eliminating existing different treatment of deadlines of 11 days or less (counted in business days), and deadlines exceeding 11 days (counted in calendar days).

The Federal Rules did not dispense with Fed.R.Civ.P. 6(d)’s extension of deadlines by three calendar days when the responded-to document is served, rather than filed. A deadline for responding to a served document, although now calculated in calendar days, will still include three calendar days tacked onto the rule-based deadline. If the calculated deadline falls on a weekend or holiday, the deadline automatically extends to the next business day.

Because local rules must largely be consistent with the Federal Rules, amendments to many local rule deadlines also took effect on December 1, 2009. Timing amendments were made to Local Rules 4.2(d); 7.1(b); 7.1(e)(1), (2), and (3); 7.2(c) and (e); 7.5(d), 9.1(c); 9.3; 9.4; 37.1(b); 45.2(a); 54.1(a), (c) and (f); 72.2; 73.1(b)(2)(B); 77.4(c)(1) and (d); 81.1(a) and (c); 83.5 DR-10(c); and 83.13(d). Timing amendments also took effect in Local Criminal Rules 10.3, 12.1(e) and 16.1(d).

Certain of these amendments warrant specific illumination. Importantly, the court did not change LR 7.1(b)’s summary judgment objection deadline of 30 days. Although amended Fed.R.Civ.P. 56(c)(1)(B) contains a proposed default deadline of 21 days for summary judgment response, the court declined to alter the long-standing New Hampshire practice of allowing 30 days for response.

Other frequently-used local rules did change. For example, under LR 7.1(b), non-dispositive motion objections are now due in 14 days, rather than 10 days. The reply deadline for dispositive motions is now 14 calendar days, as is the deadline for filing a motion for leave to file a reply to a non-dispositive motion under LR 7.1(e). In both cases, counsel still must inform the court, within 3 calendar days of service of the document to which counsel intends to respond, of the intent either to reply or to seek leave to reply.

Prudence dictates checking each local rule for timing changes. In many situations, the deadline may not be much different than the deadline under the old rule, despite the different method of calculation. The important thing to remember is that there are no longer any deadlines calculated by business days.

Rule 4.3 - Pro Se Filings

The court made several amendments to LR 4.3, which addresses pro se filings. First, the court clarified that, under LR 4.3(d)(1), cases removed by a pro se defendant are subject to preliminary review by the U.S. Magistrate Judge. Second, the court added subsection (e) to address the issue of represented parties filing pleadings on their own, rather than through their attorneys. Under new LR 4.3(e), no represented party may file a pro se filing without prior leave of court unless it relates to the status of counsel. All filings in violation of this rule will be returned to the filer, without being docketed. By amendment to Local Criminal Rule 1.1(d), this provision applies to criminal proceedings.

Rule 7.5(c) - Disclosure Statements

The court amended LR 7.5(c) to make clear that disclosure statements must be filed when a party is a Limited Liability Corporation or LLC. Previously, LR 7.5(c) required filing of a Fed.R.Civ.P. 7.1 disclosure statement by a nongovernmental corporation or partnership party. Now, LLCs also must identify any parent corporation or publicly held corporation that holds an interest of 10 percent or more in the LLC. Similarly, Local Criminal Rule 12.4 also now requires disclosure statements from LLCs.
 
Rule 9.4 - ERISA Cases

The precedent regarding discovery in ERISA changed recently, as a result of the decision in Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343 (2008), and the First Circuit’s interpretation of Glenn in Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1 (1st Cir. 2009). Normally, these cases involve judicial review of an administrative decision, based upon an administrative record, without discovery. In Glenn, the Supreme Court recognized there was a dual role when an insurance company both evaluates and pays benefits, and that this was a conflict of interest that should be weighed in a court’s judicial review. In Denmark, the First Circuit recognized that, in certain cases, there may be a need for limited discovery on this issue. The court thus amended LR 9.4’s previous flat prohibition against discovery to permit parties to seek court permission to conduct limited discovery on issues of conflict of interest.

Rule 67.3 - Disbursement of Funds from Court Registry

Local Rule 67.3 addresses disbursement of court registry funds. Previously, LR 67.3 directed that registry funds "shall be" disbursed upon the conclusion of a case. The court’s long-standing practice was to disburse such funds quickly, often prior to Fed.R.Civ.P. 62(a)’s automatic 14-day stay of execution of judgments. Because this practice could potentially result in a party’s loss of the right to seek a Fed.R.Civ.P. 62(b) discretionary stay pending appeal or even moot the losing party’s appeal, the court clarified that the clerk’s office will not disburse registry funds prior to the expiration of Fed.R.Civ.P. 62(b)’s 14-day automatic stay.

Rule 77.4 - Bankruptcy

In LR 77.4, the court delegates bankruptcy cases to the U.S. Bankruptcy Court, and, in subsection (c), establishes attendant appeal procedures. The court amended LR 77.4(c)(2) to eliminate the required district court clerk’s office issuance of briefing deadlines with the appeal docketing notice. Because Bankruptcy Rule 8009 ties the briefing deadlines to the date the appeal was docketed, parties can calculate those deadlines from the rule.

In addition, LR 77.4(c)(3) previously mandated dismissal of any bankruptcy appeal in which the appellant’s brief was not timely received under Bankruptcy Rule 8009. To enhance flexibility, the court revised LR 77.4(c)(3) to permit, but not require, dismissal as a sanction for failing to file a timely brief.

Rule 83.1 - Bar of District Court

The court amended two subsections of LR 83.1, which addresses the requirements and procedure for becoming and remaining a member of the court’s bar. First, the court amended LR 83.1(b) to clarify that applicants for admission need not attend the periodic formal ceremonies to be admitted, but that they do need to be sworn in within a year of the application’s approval. Second, the court amended LR 83.1(e) to specify that a member of the court’s bar must maintain active membership in good standing in the bar of the highest court of a state, the District of Columbia or one of the United States’ commonwealths or territories.

Rule 83.11 - Sealed Documents

LR 83.11 sets forth the procedure for filing sealed documents. Previously, LR 83.11(c) required all persons seeking to file sealed documents to explain the basis for sealing, set forth the seal duration, and designate the seal level. Subsection (c) now excuses departure motions based on substantial assistance from identifying a proposed duration for the seal. Instead, such motions will now remain sealed for either five years or the completion of any term of imprisonment, whichever is longer. The court also now permits a motion to extend the seal in such departure motions for good cause.

Rule 83.13 - Exhibits

The court’s long-standing practice has been to return exhibits to the submitting party at the end of the district court case, even prior to the expiration of the appeal period. Now, under amended LR 83.13(c), the clerk will retain possession of exhibits until the conclusion of the appeal period or any appeal. Thereafter, the clerk will notify the parties to remove the exhibits within the time allowed, "the exhibits may be destroyed or otherwise disposed of without further notice."

Civil Form 2 - Sample Discovery Plan

Although not specifically addressed by local rule, the court amended its Sample Discovery Plan (Civil Form 2) to require that parties establish a deadline for identifying unnamed parties whom the defendant claims are at fault on a state law claim pursuant to DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006). That deadline should be no later than 30 days prior to the deadline for Joinder of Additional Parties and 45 days prior to the Plaintiff’s Expert Disclosure deadline.

Criminal Rule 16.1 - Routine Discovery

Local Criminal Rule 16.1 addresses routine criminal discovery. The court added a new subsection (a) and re-lettered the remaining rule subsections accordingly. New subsection (a) establishes that the Probation and Pretrial Services Office will provide two copies of the defendant’s criminal history report to the government, which will then provide one of those copies to defense counsel.


Gretchen Leah Witt



Gretchen Witt is the Chief of the Civil Division at the United States Attorney’s Office for the District of New Hampshire and the co-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.

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