Federal Local Rule Changes

The district court judges have apparently considered the motion requirements in light of electronic filing.  There was the view that some attorneys may try to get around the page limit in the brief by adding argument in the motion.  (No way.) The judges even considered one filing that joined the motion and the memorandum.  Instead, they settled on the following amendment to Rule 7

Rule 7.  Motions and Other Papers

(b) Motion Practice. . . . .
. . . .
(2) Filing, Deadlines, Proposed Orders. . . . .
. . . .
(B) Other than discovery motions under Rule 37, a motion may not exceed four pages, excluding exhibits, may contain only the grounds for the request and may not contain legal argument or citations to case law or other secondary authority.

My initial thought was that this appears to be overly restrictive.  After thinking about it, I can see that most motions will be much shorter if there was such a limitation.  This will be interesting.  I guess you can always file a 4 page motion for permission to exceed page limitation. Quite frankly, most motions filed could be shorter.

Comments are due in July.

Federal Rules of Civil Procedure Changes (part 2)

How about this one.  Proposed Rule 4(m) decreases the time period for serving a defendant from 120 days to 60 days. If service has not occurred at that point, the judge may dismiss the action.  Judge Ball said the early amendment was to shorten it to 60 days.  Wow, that would have serious impact on plaintiff’s attorneys.

Current Rule 4(m):

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed,  the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

Proposed Rule 4(m):

Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

MRCP 4(h):

(h) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Federal Rules of Civil Procedure Changes

I attended the Federal Bar Association meeting on Tuesday to hear Magistrate Judge Keith Ball talk about the upcoming Rules changes.

Judge Ball went in depth about the changes to the Local Rules.  Of interest was the removal of the word “shall”.  The reason was that at least one federal judge believes its use is archaic.  I tend to agree.  When we speak, we rarely say “I shall take a walk.”

I was interested in the changes to FRCP 26.  The federal courts are trying to make rule changes to address the increasing costs of litigation.  These are referred to at s the “proportionality changes.” For example,

The current Rule 26(b)(1) reads:

Rule 26(b)(1)—Scope of Discovery

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (Emphasis added)

The proposed Rule 26(b)(1) reads:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.  (Emphasis added).

I’m interested in your thoughts and comments about this Rule change and whether this should be considered for the Mississippi Rules of Civil Procedure.

Supreme Court Oral Argument Schedule

Wednesday, May 27, 2015 – 1:30 p.m.
2013-KA-01973-SCT Thomas Glynn Flynt a/k/a Thomas Flynt a/k/a Thomas G. Flynt v. State of Mississippi

Monday, June 15, 2015 – 1:30 p.m.
2014-CA-00582-SCT Randy Braswell d/b/a Worldwide Companies v. Ergon Oil Purchasing, Inc.

Monday, June 22, 2015 – 1:30 p.m.
2014-KA-00311-SCT Samuel Allen Nuckolls a/k/a Sammy Nuckolls a/k/a Sam Allen Nuckolls a/k/a Sam Nuckolls a/k/a Samuel Nuckolls a/k/a Samuel A. Nuckolls v. State of Mississippi

Tuesday, June 23, 2015 – 10:30 a.m.
2014-DR-01305-SCT Eddie Lee Howard, Jr. v. State of Mississippi

Monday, June 29, 2015 – 10:30 a.m.
2012-CA-01610-SCT In the Matter of Mississippi Medicaid Pharmaceutical Average Wholesale Price Litigation: Sandoz, Inc. v. State of Mississippi

Bad day

(Disclaimer – I don’t know if this is true)

If you are having a bad day, just remember that in 1976, Ronald Wayne sold his 10% state in Apple for $800.  Now, it’s worth $58,065,210,000.  Now that’s a bad day.