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LOCAL RULES
United States District Court for the Southern District of Florida
Revised April 2004
UNITED STATES DISTRICT JUDGES
Chief United States District Judge William J. Zloch (954) 769-5480 Fort Lauderdale Judge Federico A. Moreno (305) 523-5110 Miami Judge Donald L. Graham (305) 523-5130 Miami Judge K. Michael Moore (305) 523-5160 Miami Judge Ursula Ungaro-Benages (305) 523-5550 Miami Judge Daniel T. K. Hurley (561) 803-3450 West Palm Beach Judge Joan A. Lenard (305) 523-5500 Miami Judge Donald M. Middlebrooks (561) 514-3720 West Palm Beach Judge Alan S. Gold (305) 523-5580 Miami Judge William P. Dimitrouleas (954) 769-5650 Fort Lauderdale Judge Patricia A. Seitz (305) 523-5530 Miami Judge Adalberto Jordan (305) 523-5560 Miami Judge Paul C. Huck (305) 523-5520 Miami Judge Kenneth A. Marra (954) 769-5680 Fort Lauderdale
UNITED STATES DISTRICT JUDGES (cont’d)
Judge Jose E. Martinez (305) 523-5590 Miami Judge Cecilia M. Altonaga (305) 523-5510 Miami Judge James I. Cohn (954) 769-5490 Fort Lauderdale
SENIOR UNITED STATES DISTRICT JUDGES Senior Judge James Lawrence King (305) 523-5000 Miami
Senior Judge William M. Hoeveler (305) 523-5570 Miami
Senior Judge Jose A. Gonzalez, Jr. (954) 769-5560 Fort Lauderdale
Senior Judge James C. Paine (561) 803-3430 West Palm Beach
Senior Judge Kenneth L. Ryskamp (561) 803-3420 West Palm Beach
Senior Judge Shelby Highsmith (305) 523-5170 Miami
UNITED STATES MAGISTRATE JUDGES
Chief Magistrate Judge Ann E. Vitunac (561) 803-3440 West Palm Beach Magistrate Judge William C. Turnoff (305) 523-5710 Miami Magistrate Judge Lurana S. Snow (954) 769-5460 Fort Lauderdale Magistrate Judge Linnea R. Johnson (561) 803-3470 West Palm Beach Magistrate Judge Ted E. Bandstra (305) 523-5700 Miami Magistrate Judge Stephen T. Brown (305) 523-5740 Miami Magistrate Judge Barry S. Seltzer (954) 769-5450 Fort Lauderdale Magistrate Judge Barry L. Garber (305) 523-5730 Miami Magistrate Judge Frank J. Lynch, Jr. (772) 595-9312 Fort Pierce Magistrate Judge Robert L. Dubé (305) 523-5770 Miami Magistrate Judge Andrea M. Simonton (305) 523-5930 Miami Magistrate Judge John J. O’Sullivan (305) 523-5920 Miami Magistrate Judge Patrick A. White (305) 523-5780 Miami Magistrate Judge James M. Hopkins (561) 514-3710 West Palm Beach
UNITED STATES MAGISTRATE JUDGES (cont’d)
Magistrate Judge Theodore Klein (305) 523-5750 Miami Magistrate Judge Edwin G. Torres (954) 769-5670 Fort Lauderdale Magistrate Judge Chris M. McAliley (305) 523-5890 Miami Senior Magistrate Judge Peter R. Palermo (305) 523-5760 Miami Magistrate Judge Hugh J. Morgan (part-time) (305) 295-8110 Key West
OFFICE OF THE CLERK OF COURT http://www.flsd.uscourts.gov Clarence Maddox Court Administrator • Clerk of Court 301 North Miami Avenue, Room 150, Miami, Florida 33128-7788 (305) 523-5100 299 East Broward Boulevard, Room 108, Fort Lauderdale, Florida 33301 (954) 769-5400 701 Clematis Street, Room 402, West Palm Beach, Florida 33401 (561) 803-3400 300 S. 6th Street, Second Floor, Fort Pierce, Florida 34950 (772) 595-9691 301 Simonton Street, Room 130, Key West, Florida 33040 (305) 295-8100 AFTER HOURS EMERGENCIES - CLERK’S OFFICES Miami (305) 277-6939 Fort Lauderdale (954) 878-4224 West Palm Beach (561) 606-9376
UNITED STATES ATTORNEY Marcos Daniel Jimenez Miami (305) 961-9000 Fort Lauderdale (954) 356-7255 West Palm Beach (561) 820-8711 Fort Pierce (772) 466-0899
UNITED STATES MARSHAL Christina Pharo Miami (305) 536-5346 Fort Lauderdale (954) 356-7256 West Palm Beach (561) 655-1827 Fort Pierce (772) 467-1723 Key West (305) 296-3023
FEDERAL PUBLIC DEFENDER Kathleen M. Williams Miami (305) 536-6900/(305) 530-7000 Fort Lauderdale (954) 356-7436 West Palm Beach (561) 833-6288 Fort Pierce (772) 461-9435
LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Revised Effective April 15, 2004 ----Table of Rules GENERAL RULES Rule 1.1 Scope of the Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Title and Citation. B. Effective Date. C. Scope of Rules. D. Relationship to Prior Rules. E. Rules of Construction and Definitions. 3.1 Docketing and Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3.2 Separate Dockets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3.3 Civil Cover Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.4 Assignment of Actions and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.5 Responsibility for Actions and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3.6 Recusals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.7 Reassignment of Cases Due to Recusal, Temporary Assignment or Emergency . . . . . . . . . . 5 3.8 Duty Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.9 Transfer of Refiled and Similar Actions and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Refiled. B. Post-conviction Relief, Criminal. C. Similar. D. Notice to Court. 5.1 Filing and Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Form. B. Place and Time of Filing. C. Three–Judge Courts. D. Restriction on Courtesy Copies. E. Notices of Filing; Form and Content Form Following Rule 5.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.2 Proof of Service and Service by Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Certification of Service. B. Initial Process. C. Publication. D. Service of Pleadings and Papers Subsequent to Original Complaint. i
5.3 Files and Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Removal of Original Papers. B. Exhibits. C. Removal of Exhibits. D. Closed Files. 5.4 Filings Under Seal; Disposal of Sealed Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. General Policy. B. Procedure for Filings Under Seal. C. Court Ruling. D. Disposition of Sealed Matter. Form Following Rule 5.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5.5 Electronic Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 7.1 Motions, General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Filing. B. Hearings. C. Memorandum of Law. D. Orders Made Orally in Court. E. Emergency Motions. F. Applications Previously Refused. 7.2 Motions Pending on Removal or Transfer to This Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 7.3 Attorneys Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Upon Entry of Final Judgment or Order. B. Prior to Entry of Final Judgment. 7.5 Motions for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. Motions for Summary Judgment. B. Opposition Papers. C. Statement of Material Facts. D. Effect of Failure To Controvert Statement Of Undisputed Facts. E. Briefing Schedule. 7.6 Continuances of Trials and Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 7.7 Correspondence to the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 9.1 Request for Three–Judge Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11.1 Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 A. Roll of Attorneys. B. Contempt of Court. C. Professional Conduct. D. Appearance by Attorney. E. Relations With Jury. F. Relation to Other Rules. 12.1 Civil RICO Case Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 15.1 Form of a Motion to Amend and Its Supporting Documentation . . . . . . . . . . . . . . . . . . . . 29 16.1 Pretrial Procedure in Civil Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. Differentiated Case Management in Civil Actions. B. Scheduling Conference and Order. C. Pretrial Conference Mandatory.
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D. Pretrial Disclosures and Meeting of Counsel. E. Pretrial Stipulation Must Be Filed. F. Unilateral Filing of Pretrial Stipulation Where Counsel Do Not Agree. G. Record of Pretrial Conference Is Part of Trial Record. H. Discovery Proceedings. I. Newly Discovered Evidence or Witnesses. J. Memoranda of Law. K. Exchange Expert Witness Summaries/Reports. L. Proposed Jury Instructions or Proposed Findings of Facts and Conclusions of Law. M. Penalty for Failure to Comply. 16.2 Court Annexed Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 A. General Provisions. B. Certification; Qualification and Compensation of Mediators. C. Types of Cases Subject to Mediation. D. Procedures to Refer a Case or Claim to Mediation. E. Party Attendance Required. F. Mediation Report; Notice of Settlement; Judgment. G. Trial Upon Impasse. H. Forms for Use in Mediation. 16.3 Calendar Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 A. Priorities. B. Additional Circumstances. C. Notice and Agreement; Resolution by Judges. 23.1 Class Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 24.1 Constitutional Challenge to Act of Congress or State Statute . . . . . . . . . . . . . . . . . . . . . . . 46 A. Act of Congress. B. State Statute. C. No Waiver. 26.1 Discovery and Discovery Documents (Civil) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 A. Initial Disclosures. B. Service and Filing of Discovery Material. C. Discovery Material to Be Filed With Motions. D. Discovery Material to Be Filed at Outset of Trial or at Filing of Pre-trial or Post-trial Motions. E. Discovery Material to Be Filed on Appeal. F. Timing of Discovery. G. Interrogatories and Document Requests. H. Discovery Motions. I. Certificate of Counsel. J. Reasonable Notice of Taking Depositions. K. Length of Depositions. 30.1 Sanctions for Abusive Deposition Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 40.1 Notice That Action Is at Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 41.1 Dismissal for Want of Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 45.1 Subpoenas for Deposition and Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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47.1 Juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 A. Civil Cases. B. Taxation of Costs. 62.1 Appeal Bonds; Automatic Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 A. Appeal Bonds. B. Extension of Automatic Stay When Notice of Appeal Filed. 67.1 Authorized Depository Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 77.1 Photographing, Broadcasting, Televising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 77.2 Release of Information in Criminal and Civil Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 57 A. By Attorneys. B. By Courthouse Personnel. 87.1 Authority of Bankruptcy Judges to Make Local Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 87.2 Reference of Bankruptcy Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 87.3 Motions for Withdrawal of Reference of Case or Proceeding from the Bankruptcy Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 87.4 Bankruptcy Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 A. Assignment. B. Limited Authority of Bankruptcy Court to Dismiss Appeals Prior to Transmittal of Record to District Court. C. Motions for Stay and Other Intermediate Requests for Relief. D. Motions for Leave to Appeal. E. Briefs. F. Oral Argument. G. Judgment. H. Appeal. I. Notice. J. Court Discretion. 87.5 Designation of Bankruptcy Judges to Conduct Jury Trials . . . . . . . . . . . . . . . . . . . . . . . . . 64 88.1 Appointment of Counsel for Indigent Defendants in Criminal Proceedings . . . . . . . . . . . . 64 88.2 Petitions for Writs of Habeas Corpus, Motions Pursuant to 28 U.S.C. § 2241, Motions Pursuant to 28 U.S.C. § 2255 and Prisoner Complaints Pursuant to 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 88.3 Petty Offenses—Public Buildings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 A. Collateral and Mandatory Appearance. B. Forfeiture of Collateral. C. Failure to Post Collateral. D. Arrest. 88.4 Certain Offenses Pertaining to--National Parks, Preserves, Government Reservations, Historic Sites, Treaties and Wildlife Acts . . . . . . . . . . . . . . 67 A. Covered Offenses. B. Collateral and Mandatory Appearance. C. Forfeiture of Collateral. D. Failure to Post Collateral. E. Arrest.
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88.5 Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 A. Waiver of Sanctions. B. Speedy Trial Reports. 88.6 Dangerous Special Offender Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 88.7 Retained Criminal Defense Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 88.8 Presentence Investigations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 88.9 Motions in Criminal Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 88.10 Criminal Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Appendices Appendix A Discovery Practices Handbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 I. Discovery in General. II. Depositions. III. Production of Documents. IV. Interrogatories. V. Privilege. VI. Motions to Compel or for a Protective Order. Appendix B Standard Form Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Appendix C Form of Defendant’s Waiver of Statutory Right to Speedy Trial . . . . . . . . . . . . . 94 ADMIRALTY AND MARITIME RULES A. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 (1) Scope of the Local Admiralty and Maritime Rules. (2) Citation Format. (3) Application of Local Admiralty and Maritime Rules. (4) Designation of "In Admiralty" Proceedings. (5) Verification of Pleadings, Claims and Answers to Interrogatories. (6) Issuance of Process. (7) Publication of Notices. (8) Form and Return of Process in In Personam Actions. (9) Judicial Officer Defined. (10) Appendix of Forms. B. Attachment and Garnishment: Special Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 (1) Definition of "Not Found Within the District". (2) Verification of Complaint Required. (3) Pre-seizure Requirements. (4) Notification of Seizure to Defendant. (5) Post-attachment Review Proceedings. (6) Procedural Requirement for the Entry of Default. (7) Procedural Requirements for the Entry of Default Judgment. C. Action In Rem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (1) Verification Requirements. (2) Pre-seizure Requirements. (3) Special Requirements for Actions Involving Freight, Proceeds and/or Intangible Property.
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(4) Publishing Notice of the Arrest as Required by Supplemental Rule (C)(4). (5) Undertaking in Lieu of Arrest. (6) Time for Filing Claim or Answer. (7) Post-arrest Proceedings. (8) Procedural Requirements Prior to the Entry of Default. (9) Procedural Requirements for the Entry of Default Judgment. D. Possessory, Petitory and Partition Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 (1) Establishing Dates for the Return of Process. E. Actions In Rem and Quasi In Rem: General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 (1) Statement of Itemized Damages and Expenses Required. (2) Requirements and Procedures for Effecting Intervention. (3) Special Requirements for Salvage Actions. (4) Form of Stipulation or Bonds. (5) Deposit of Marshal's Fees and Expenses Required Prior to Effecting Arrest, Attachment and/or Garnishment. (6) Property in Possession of a United States Officer. (7) Process Held in Abeyance. (8) Release of Property in Accordance With Supplemental Rule (E)(5). (9) Application to Modify Security for Value and Interest. (10) Custody and Safekeeping. (11) Preservation, Humanitarian and Repatriation Expenses. (12) Property in Incidental Custody and Otherwise Not Subject to the Arrest or Attachment. (13) Dismissal. (14) Judgments. (15) Stay of Final Order. (16) Notice of Sale. (17) Sale of a Vessel or Property. (18) Post-sale Claim. F. Actions to Limit Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 (1) Publication of the Notice. (2) Proof of Publication. (3) Appraisals Pursuant to Supplemental Rule (F)(7). (4) Objections to the Appraisal. (5) Fees of the Appraiser. APPENDIX OF FORMS. ADMIRALTY AND MARITIME RULES Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 1. Order Directing the Issuance of the Process of Attachment and Garnishment. 2. Process of Attachment and Garnishment. 3. Order Directing the Issuance of the Warrant of Arrest.
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4. Warrant for Arrest In Rem. 5. Motion for Appointment of Substitute Custodian. 6. Consent and Indemnification Agreement for the Appointment of a Substitute Custodian. 7. Notice of Action In Rem and Arrest of Vessel. 8. Motion for Release of a Vessel or Property in Accordance With Supplemental Rule (E)(5). 9. Order Directing the Release of a Vessel or Property in Accordance With Supplemental Rule (E)(5). 10. Request for Confirmation of Sale. 11. Confirmation of Sale. 12. Summons and Process of Maritime Attachment and Garnishment. 13. Maritime Summons to Show Cause Respecting Intangible Property. 14. Affidavit—Foreign Attachment. MAGISTRATE JUDGE RULES 1. Authority of United States Magistrate Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 (a) Duties Under 28 U.S.C. § 636(a). (b) Disposition of Misdemeanor Cases—18 U.S.C. § 3401; Fed.R.Crim.P. 58. (c) Determination of Non–dispositive Pretrial Matters—28 U.S.C. § 636(b)(1)(A). (d) Recommendations Regarding Case–Dispositive Motions—28 U.S.C. § 636(b)(1)(B). (e) Prisoner Cases Under 28 U.S.C. §§ 2254 and 2255. (f) Prisoner Cases Under 42 U.S.C. § 1983. (g) Special Master References. (h) Conduct of Trials and Disposition of Civil Cases Upon Consent of the Parties— 28 U.S.C. § 636(c). (i) Other Duties. 2. Assignment of Matters to Magistrate Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 3. Procedures Before the Magistrate Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 (a) In General. (b) Special Provisions for the Disposition of Civil Cases by a Magistrate Judge on Consent of the Parties—28 U.S.C. § 636(c). 4. Review and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 (a) Appeal of Non-dispositive Matters—Government Appeal of Release Order. (b) Review of Case–Dispositive Motions and Prisoner Litigation—28 U.S.C. § 636(b)(1)(B). (c) Special Master Reports—28 U.S.C. § 636(b)(2). (d) Appeal From Judgments in Misdemeanor Cases—18 U.S.C. § 3402. (e) Appeal From Judgments in Civil Cases Disposed of on Consent of the Parties—28 U.S.C. § 636(c). FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Notice of Right to Consent to Disposition of a Civil Case by a United States Magistrate Judge. Consent to Proceed Before a United States Magistrate Judge.
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SPECIAL RULES GOVERNING THE ADMISSION AND PRACTICE OF ATTORNEYS 1. Qualifications for Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 2. Procedure for Applying for Admission and Proof of Qualifications . . . . . . . . . . . . . . . . . . . 153 3. Retention of Membership in the Bar of this Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 4. Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 A. Who May Appear Generally. B. Special or Limited Appearance. C. Government Attorneys. 5. Peer Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 A. Purpose. B. Duties and Responsibilities of the Committee. C. Referral to the Court. D. Obligation to Cooperate With Committee. E. Failure to Respond to Committee. F. Confidentiality. G. Separation From Disciplinary Proceedings. H. Committee Immunity. I. Report to the Court. 6. Student Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 A. Purpose. B. Student Requirements. C. Program Requirements. D. Supervisor Requirements. E. Certification of Student, Program and Supervising Attorneys. F. Activities. G. Court Administration. 7. Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance . . . . . . 160 A. Establishment and Function. B. Memberships. 8. Effective Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
RULES GOVERNING ATTORNEY DISCIPLINE Prefatory Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Rule I. Standards for Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 II. Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance . . . . . 163 A. Establishment and Membership. B. Purpose and Function. C. Jurisdiction and Powers.
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III. Disciplinary Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 IV. Attorneys Convicted of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 V. Discipline Imposed by Other Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 VI. Disbarment on Consent or Resignation in Other Courts . . . . . . . . . . . . . . . . . . . . . . . . . . 167 VII. Disbarment on Consent While Under Disciplinary Investigation or Prosecution . . . . . . 168 VIII. Incompetence and Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 IX. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 A. After Disbarment or Suspension. B. Time of Application Following Disbarment. C. Hearing on Application. D. Conditions of Reinstatement. E. Successive Petitions. F. Deposit for Costs of Proceeding. X. Attorneys Specially Admitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 XI. Appointment of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 XII. Service of Paper and Other Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 XIII. Duties of the Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
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LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
GENERAL RULES RULE 1.1 SCOPE OF THE RULES A. Title and Citation. These Rules shall be known as the Local Rules of the United States District Court for the Southern District of Florida. They may be cited as “S.D. Fla. L.R.” B. Effective Date. These rules become effective February 15, 1993, provided however, that the 1994 amendments shall take effect on December 1, 1994, the 1996 amendments shall take effect on April 15, 1996, the 1997 amendments shall take effect on April 15, 1997, the 1998 amendments shall take effect on April 15, 1998, the 1999 amendments shall take effect on April 15, 1999, the 2000 amendments shall take effect on April 15, 2000, the 2001 amendments shall take effect on April 15, 2001, the 2002 amendments shall take effect on April 15, 2002, the 2003 amendments shall take effect on April 15, 2003, and the 2004 amendments shall take effect on April 15, 2004, and shall govern all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending C. Scope of Rules. These rules shall apply in all proceedings in civil and criminal actions except where indicated otherwise. Additional rules governing procedures before Magistrate Judges and in admiralty may be found herein. D. Relationship to Prior Rules. These rules supersede all previous rules promulgated by this Court or any Judge of this court. E. Rules of Construction and Definitions. United States Code, Title 1, Sections 1 to 5, shall, as far as applicable, govern the construction of these rules. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 1998; April 15, 1999; April 15, 2000; April 15, 2001; April 15, 2002; April 15, 2003; April 15, 2004. Authority (1993) Model Rule 1.1 (All references to “Model Rules” refer to the Local Rules Project of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States.)
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Comment (1994) The following local rules were amended or adopted by Administrative Order 94-51, In Re Amendments To The Local Rules: Local General Rules 1.1.B., 5.1.A.9., 5.2.D., 7.3., 16.1.B., 16.1.B.K., 26.1, 88.2 and 88.9; Local Magistrate Rule 4(a)(1); and Rule 4F of the Special Rules Governing the Admission and Practice of Attorneys. RULE 3.1 DOCKETING AND TRIAL A. This court shall be in continuous session at Miami, Ft. Lauderdale and West Palm Beach, Florida, for transacting business on all business days throughout the year. B. Sessions of this Court shall be held at the places enumerated above as required by 28 U.S.C. § 89, and as ordered by the Court. C. Dade County actions and proceedings shall be tried at Miami, Florida. D. Monroe County actions and proceedings shall be tried at Key West, Florida. E. Broward County actions and proceedings shall be tried at Fort Lauderdale, Florida. F. Palm Beach County actions and proceedings shall be tried at West Palm Beach, Florida.
G. Highlands, Indian River, Martin, Okeechobee and St. Lucie County actions and proceedings shall be tried at Ft. Pierce, Florida. H. Notwithstanding the foregoing, any civil or criminal proceeding or trial may upon Order of Court, in the interest of justice, the status of the docket, or to assure compliance with requirements imposed under the Speedy Trial Act, be conducted at any jury division within the district. Effective Dec. 1, 1994. Authority (1993) Former Local Rules 1 and 2. Collier, Hendry and Glades Counties were transferred to the Middle District of Florida by P.L. 100-702. Comments (1993) Renumbered per Model Rules. RULE 3.2 SEPARATE DOCKETS A. Separate dockets for all actions and proceedings shall be maintained in the following categories:
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1. Civil. 2. Criminal. B. Within each docket all actions or proceedings shall be numbered consecutively upon the filing of the first document. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 3. Comments (1993) Renumbered per Model Rules. RULE 3.3 CIVIL COVER SHEET Every Complaint or other document initiating a civil action shall be accompanied by a completed civil cover sheet, on a form available from the clerk. This requirement is solely for administrative purposes, and matters appearing only on the civil cover sheet have no legal effect in the action. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 4. Model Rule 3.1; paragraph allowing for filing certain cover sheets to be added nunc pro tunc and pro se exemption omitted. RULE 3.4 ASSIGNMENT OF ACTIONS AND PROCEEDINGS A. All civil and criminal cases, including those within a weighted category, shall be assigned on a blind random basis so that the district workload is fairly and equally distributed among the active Judges irrespective of jury division; provided that, whenever necessary in the interest of justice and expediency, the Court may modify the assignments made to active or senior Judges. B. The Clerk shall not have any power or discretion in determining the judge to whom any action or proceeding is assigned, the Clerk’s duties being ministerial only. The method of assignment shall assure that the identity of the assigned Judge shall not be disclosed to the Clerk nor to any other person, until after filing. C. The assignment schedule shall be designed to prevent any litigant from choosing the Judge to whom an action or proceeding is to be assigned, and all attorneys shall conscientiously refrain from attempting to vary this rule.
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D. The District is divided into five Divisions: the Fort Pierce Division (Highlands, Indian River, Martin, Okeechobee and St. Lucie Counties); the West Palm Beach Division (Palm Beach County); the Fort Lauderdale Division (Broward County); the Miami Division (Miami-Dade County); and the Key West Division (Monroe County). Cases are assigned by the Automated Case Assignment System to provide for blind, random assignment of cases and to equitably distribute the District’s case load. Each Judge in the District has chambers in one of three Divisions (Miami, Fort Lauderdale or West Palm Beach). A Judge with chambers in one Division may be assigned a case with venue in another Division. Once the case has been assigned, all papers required to be served on a party shall be filed with the clerk where the assigned Judge is chambered (even if different from the Division in which venue is located) pursuant to Local General Rule 5.1.B. Effective Dec. 1, 1994; amended effective April 15, 2000. Authority (1993) Former Local Rule 4. Comments (1993) New Subsection D reflects actual practice and is informational. Renumbered per Model Rules. (2000) Clarifies the Divisions of the Court and the manner in which cases are assigned. RULE 3.5 RESPONSIBILITY FOR ACTIONS AND PROCEEDINGS Every application for an order, including those made in connection with appellate proceedings, shall be made to the Judge to whom the action or proceeding is assigned. The assigned Judge shall have full charge thereof and no changes in assignment shall be made except by order of the Judges affected; provided, that upon the failure or inability of any Judge to act by reason of death or disability, a change in assignment may be made by the Chief Judge. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 5.1. Comments (1993) Renumbered per Model Rules.
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RULE 3.6 RECUSALS In the event of recusal in any matter, the assigned Judge shall enter the fact of recusal on the record and refer the matter to the Clerk for permanent reassignment to another Judge in accordance with the blind random assignment system. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 5.2, minor language modification. Comments (1993) Renumbered per Model Rules. RULE 3.7 REASSIGNMENT OF CASES DUE TO RECUSAL, TEMPORARY ASSIGNMENT OR EMERGENCY A. The procedure for reassignment of cases due to recusal, temporary assignment or emergency shall be similar to the blind filing assignment for newly-filed cases and shall be administered in a manner approved by the Court so as to assure fair and equitable distribution of all such matters throughout the district. B. Any emergency matter arising in a case pending before a Judge who is physically absent from the Southern District of Florida or who is unavailable due to illness, or is on vacation, may, upon written certification as to each matter from the Judge’s office setting forth such grounds therefor, be referred to the Clerk for reassignment under a blind random assignment procedure. Such assignment, when effected, shall be of temporary duration, limited only to the immediate relief sought, and the case for all other purposes or proceedings shall remain on the docket of the Judge to whom it was originally assigned. C. Uncontested matters wherein the parties cannot be prejudiced through delay occasioned by the normal course of business shall not be deemed emergency matters for referral. D. The Clerk shall not have any discretion in determining the Judge to whom any such matter is assigned, nor shall the Clerk disclose the name of the Judge to attorneys or other persons until after the assignment has been made. Effective Dec. 1, 1994. Authority (1993) Former Local Rules 5.3 and 5.4.
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Comments (1993) Renumbered per Model Rules. RULE 3.8 DUTY JUDGE There shall be established for the Miami, Fort Lauderdale and West Palm Beach Divisions on a monthly rotating basis, to be determined by the Court, a schedule designating each active resident Judge as Duty Judge who shall be available to hear and preside over the following: 1. Grand jury matters, as provided by the Court in its administrative orders; 2. Emergency naturalization matters and naturalization ceremonies; 3. Matters arising from Magistrate Judge’s proceedings which are not assigned to a District Judge, including but not limited to application for review of bonds and competency examinations; 4. Transfer of probation from foreign districts; 5. Swearing in of attorneys to practice; 6. Wire tap applications in matters not assigned to any District Judge, as provided by the Court in its administrative orders; 7. Approval of issuance of warrants of arrest in admiralty cases when the District Judge assigned is unavailable; 8. Emergency petitions for writ of habeas corpus involving a petitioner’s claim to immediate release, where the assigned judge is in the district, but otherwise unavailable to rule on the petition. 9. Written and verbal requests for excuses from complying with grand jury and petit jury summonses. Effective Dec. 1, 1994; amended effective April 15, 2000; April 15, 2001. Authority (1994) Administrative Order No. 94-60. Comments (1993) Renumbered per Model Rules. Section B deleted as no longer accurate. “Reduction of bonds” changed to “review of bonds” to reflect actual practice. Added items 7 and 8 reflect actual practice.
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(2000) Clarifies the Divisions of the Court. (2001) Conforms to periodic administrative orders. RULE 3.9 TRANSFER OF REFILED AND SIMILAR ACTIONS AND PROCEDURES A. Refiled. Whenever an action or proceeding is terminated by entry of a notice or order of dismissal and is refiled without a substantial change in issue or parties, it shall be transferred to the Judge to whom the original was assigned. B. Post-conviction Relief, Criminal. Whenever a second or subsequent action seeking post-conviction or other relief petition for writ of habeas corpus is filed by the same applicant involving the same offense, the action shall be transferred to the Judge to whom the original proceeding was assigned. All motions under 28 U.S.C. § 2255 shall be assigned to the Judge who took the action from which review is sought, or any successor Judge. C. Similar. Whenever an action or proceeding is filed in the Court which involves subject matter which is a material part of the subject matter of another action or proceeding then pending before this Court, or for other reasons the disposition thereof would appear to entail the unnecessary duplication of judicial labor if heard by a different Judge, the Judges involved shall determine whether the newly filed action or proceeding shall be transferred to the Judge to whom the earlier filed action or proceeding is assigned. D. Notice to Court. It shall be the continuing duty of the Clerk and of the attorneys of record in every action or proceeding to bring promptly to the attention of the Court and opposing counsel the existence of other actions or proceedings as described in paragraphs A, B, and C hereof, as well as the existence of any similar actions or proceedings then pending before another court or administrative agency. Such notice shall be given by filing with the Court and serving on counsel a “Notice of Pendency of Other Actions,” containing a list and description thereof sufficient for identification. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 6. Comments (1993) Renumbered per Model Rules. Minor stylistic changes. Change to last sentence of B. RULE 5.1 FILING AND COPIES A. Form. All civil and criminal pleadings, motions, and other papers tendered for filing shall:
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1. Be bound only by easily-removable paper or spring-type binder clips, and not stapled or mechanically bound or fastened in any way. Voluminous pleadings, motions, or documents may be bound with a rubber band. Attachments may not be tabbed; reference characters should be printed or typed on a blank sheet of paper separating each attached document. 2. Be accompanied by one clear photo copy. The photo copy is not subject to the restrictions of section 1, supra. Although the photocopy must be in all other respects identical to the file copy, it should be bound or fastened, and tabbed, if appropriate, in a way that facilitates its use by the judge. When filing a civil complaint for which issuance of initial process is requested, three additional copies for each summons must be submitted. Exceptions: (a) Those litigants who have been allowed to proceed in forma pauperis shall not be required to submit duplicate copies. However, they are encouraged to do so. (b) Transcripts of state court hearings/trials; administrative records in Social Security cases, and extensive exhibits to motions for summary judgment, unless otherwise directed by court order. 3. Be on standard size 8-1/2” x 11” white, opaque paper, to the extent practicable with a standard two hole punch located at the top center (required for original only). 4. Be plainly typed or written on one side with 1” margins on each side, not less than one and one-half spaces between lines except for quoted material, and properly paginated at the bottom of each page. 5. Include a caption with: (a) The name of the court centered across the page; (b) The docket number, category (civil or criminal), and the last names of the assigned District Judge and Magistrate Judge, centered across the page; (c) The style of the action, which fills no more than the left side of the page, leaving sufficient space on the right side for the Clerk to affix a filing stamp; and (d) The title of the document, including the name and designation of the party (as plaintiff or defendant or the like) in whose behalf the document is submitted. Exception: The requirements of 3 and 4(a)-(d) do not apply to: (1) exhibits submitted for filing; and (2) papers filed in removed actions prior to removal from the state courts.
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6. Include a signature block with the name, address, telephone number, facsimile telephone number, e-mail address, and Florida Bar identification number of all counsel for the party. 7. Not be transmitted to the Clerk or any Judge by facsimile telecopier. 8. Be submitted with sufficient copies to be filed and docketed in each matter if styled in consolidated cases. B. Place and Time of Filing. All papers after the complaint required to be served upon a party shall be filed with the clerk where the assigned Judge is chambered either before service or within three business days, thereafter. Only in certified emergency situations where the statute of limitations is a factor, or the death of a prisoner is imminent, will pleadings be accepted in a clerk’s office other than where the assigned Judge is chambered. That office will then expedite a copy to the assigned Judge for review. Failure to comply with this rule is not grounds for denial of the motion or dismissal of the paper filed. C. Three-Judge Courts. See Rule 9.1 for filing requirements. D. Restriction on Courtesy Copies. Counsel shall not deliver extra courtesy copies to a Judge’s Chambers except when requested by a Judge’s office to deliver a courtesy copy to Chambers. E. Notices of Filing; Form and Content. The title of a notice of filing shall include (a) the name and designation of the party (as plaintiff or defendant or the like) on whose behalf the filing is submitted, and (b) a description of the document being filed. A notice of filing shall identify by title the pleading, motion or other paper to which the document filed pertains and the purpose of the filing, such as in support of or in opposition to a pending motion or the like. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1998; April 15, 1999; April 15, 2000; April 15, 2001; April 15, 2003. Authority (1993) Former Local Rule 7; Model Rule 5.1; Administrative Order 90-64 (A.9, B). Comments (1993) Telecopies not permitted to be filed. Adds reference to number of copies required for issuance of summonses, per Clerk’s Office. Adds restriction on courtesy copies. (1994) The addition of counsel’s facsimile phone number in A.9. is consistent with the local rule amendment to permit counsel to serve each other via facsimile transmission. The other changes are grammatical or designed to make the rule gender neutral. (1996) In recognition of the logistical problems posed by the requirement that papers must be filed with the clerk where the assigned Judge is chambered, the rule is amended to make clear that filing
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within three business days after service is reasonable under Fed.R.Civ.P. 5(d). The pre-1993 version of Local General Rule 7.B. required filing of papers either before service or within five days thereafter. (1999) Subsection A has been rewritten to conform to current practice and the format of most word processors. The Clerk’s Office prefers the new format because it reserves ample space for the filing stamp. Former subsections A.2, A.3 and A.4 are rewritten and renumbered, effecting changes in clarity, not substance. An updated sample form is appended to the rule, replacing the old form. Despite a stylistic change, subsection D continues to refer to both District Judges and Magistrate Judges. (2000) Amendment to subpart 4(a) dispenses with the need for reference to the Division of the Court to avoid confusion resulting from the requirement to file papers, in accordance with Local General Rule 5.1.B, in the Division where the assigned Judge is chambered, which is different from the Division in which the case is venued. A corresponding change is made to the sample form following the rule. (2001) The amendments to Subsection A are intended to facilitate the process of document imaging by reducing the time spent on disassembling documents in preparation for scanning and decreasing the frequency of equipment failure caused by undetected fastening material. (2003) The addition of Rule 5.1.E is intended to assist the Court in understanding the purpose for which materials are filed. ----SAMPLE FORM FOLLOWING RULE 5.1 (Two-hole punched at top of page) (1” from top of page, and centered, begin title of court) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name)
A.B.
Plaintiff
[Leave space for Clerk’s filing stamp]
vs.
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C.D.
Defendant. ________________________/
TITLE OF DOCUMENT
Effective Dec. 1, 1994; amended effective April 15, 1999; April 15, 2000. RULE 5.2 PROOF OF SERVICE AND SERVICE BY PUBLICATION A. Certification of Service. Each pleading or paper required by Rule 5, Federal Rules of Civil Procedure, to be served on the other parties shall include a certificate of service stating the persons or firms served, their relationship to the action or proceeding, the date, method and address of service. Signature by the party or its attorney on the original constitutes a representation that service has been made. B. Initial Process. Initial process shall be issued by the Clerk’s Office upon submission of an original and three copies. C. Publication. Publication required by law or rule of court shall be made in a newspaper of general circulation. The Daily Business Review and such other newspapers as the Court from time to time may indicate are designated as official newspapers for the publication of notices pertaining to proceedings in this Court; provided, however, that publication shall not be restricted to the aforesaid periodicals unless an order for publication specifically so provides. D. Service of Pleadings and Papers Subsequent to Original Complaint. See Local Rule 7.1.A.3(a) and Administrative Order 2001-72 In Re: Repeal of S.D.Fla.L.R.5.2.D. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 7; Model Rule 5.2 (does not require certificate of service); Clerk’s administrative rule on issuance of initial process. (1994) D. Rule 1.07(c), Local Rules, Middle District of Florida.
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RULE 5.3 FILES AND EXHIBITS A. Removal of Original Papers. No original papers in the custody of the Clerk shall be removed by anyone without order of the Court until final adjudication of the action or proceeding and disposition of the appeal, if one is filed, or expiration of the appeal period without appeal being filed, and then only with permission and on terms of the Clerk. However, official court reporters, special masters, or commissioners may remove original papers as may be necessary. B. Exhibits. All exhibits received or offered in evidence at any hearing shall be delivered to the Clerk, who shall keep them in the Clerk’s custody, except that any narcotics, cash, counterfeit notes, weapons, precious stones received, including but not limited to other exhibits which, because of size or nature, require special handling, shall remain in possession of the party introducing same during pendency of the proceeding and any appeal. Nothing contained in this rule shall prevent the Court from entering an order with respect to the handling, custody or storage of any exhibit. The Clerk shall permit United States Magistrate Judges and Official Court Reporters to have custody of exhibits as may be necessary. C. Removal of Exhibits. All models, diagrams, books, or other exhibits received in evidence or marked for identification in any action or proceeding shall be removed by the filing party within three months after final adjudication of the action or proceeding and disposition of any appeal. Otherwise, such exhibits may be destroyed or otherwise disposed of as the Clerk may deem proper. D. Closed Files. Upon order of the Chief Judge, the files in all actions or proceedings not pending nor on appeal may be forwarded to the Federal Records Center serving this District. Thereafter, persons desiring use of any such files may, upon payment of the appropriate fee and completion of a request form furnished by the Clerk, request that such files be returned for examination in the Clerk’s office. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 8, as amended by Administrative Order 91-54. Comments (1993) Corrects typographical error. Renumbered per Model Rules. Minor stylistic changes to A, B and C; deletion of reference to Magistrate Judges. RULE 5.4 FILINGS UNDER SEAL; DISPOSAL OF SEALED MATERIALS A. General Policy. Unless otherwise provided by law, Court rule or Court order, proceedings in the United States District Court are public and Court filings are matters of public record. Where not so provided, a party seeking to file matters under seal shall follow the procedures prescribed by this rule.
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B. Procedure for Filings Under Seal. A party seeking to make a filing under seal shall: 1. Deliver to the Clerk’s Office an original and one copy of the proposed filing, each contained in a separate plain envelope clearly marked as “sealed document” with the case number and style of the action noted on the outside. The Clerk’s Office shall note on each envelope the date of filing and docket entry number. 2. File an original and a copy of the motion to seal with self-addressed postage-paid envelopes, setting forth a reasonable basis for departing from the general policy of a public filing, and generally describing the matter contained in the envelope. The motion shall specifically state the period of time that the party seeks to have the matter maintained under seal by the Clerk’s Office. Unless permanent sealing is sought, the motion shall set forth how the matter is to be handled upon expiration of the time specified in the Court’s sealing order. Absent extraordinary circumstances, no matter sealed pursuant to this rule may remain sealed for longer than five (5) years from the date of filing. 3. File an “ORDER RE: SEALED FILING” in the form set forth at the end of this rule. The form is available at the Clerk’s Office. The bottom portion should be left blank for the Judge’s ruling. C. Court Ruling. If the Court grants the motion to seal, the Clerk’s Office shall maintain the matter under seal as specified in the Court order. If the Court denies the motion to seal, the original and copy of the proposed filing shall be returned to the party in its original envelope. D. Disposition of Sealed Matter. Unless the Court’s sealing order permits the matter to remain sealed permanently, the Clerk will dispose of the sealed matter upon expiration of the time specified in the Court’s sealing order by unsealing, destroying, or returning the matter to the filing party. Effective April 15, 2000; amended effective April 15, 2001. Comment (2000) The rule codifies existing procedure. By its terms, this rule does not apply to materials covered by specific statutes, rules or court orders authorizing, prescribing or requiring secrecy. However, the Clerk’s Office and litigants may find it helpful to complete a “Sealed Filing Cover Sheet” in the form set forth at the end of this rule for materials being filed under seal after the entry of, and pursuant to, a protective order governing the use and disclosure of confidential information. (2001) The current amendments are intended to reflect more accurately existing procedures, and to assist the court in the maintenance and ultimate disposition of sealed records by creating a form order which specifies how long the matter is to be kept under seal and how it is to be disposed of after the expiration of that time. By its terms, this rule does not apply to materials covered by specific statutes, rules or court orders authorizing, prescribing or requiring secrecy. However, litigants are required to complete an “Order Re: Sealed Filing” in the form set forth at the end of this
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rule for materials being filed under seal after the entry of, and pursuant to, a protective order governing the use and disclosure of confidential information.
[Remainder of Page Intentionally Left Blank New Order Re: Sealed Filing Follows on Next Page]
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ___________________________________ _____________________ Plaintiff, vs. _____________________ Defendant. ________________________/
O RD ER RE: SEALED FILIN G Party Filing M atter U nder Seal N am e: Address: Telephone: O n behalf of (select one): ‘ Plaintiff ‘ D efendant
D ate sealed docum ent filed: If sealed pursuant to statute, cite statute: If sealed pursuant to previously entered protective order, date of order and docket entry: The m atter will rem ain sealed until: ‘ Conclusion of Trial ‘ Case Closing ‘ O ther ‘ Perm anently. Specify the authorizing law, rule, court order: ‘ Arrest of First D efendant ‘ Conclusion of D irect Appeal
The m oving party requests that when the sealing period expires, the filed m atter should be (select one): ‘ U nsealed and placed in the public portion of the court file ‘ D estroyed ‘ Returned to the party or counsel for the party, as identified above
It is OR DER ED and AD JUD GED that the proposed sealed docum ent is hereby: ‘ Sealed The m atter m ay be unsealed after: ‘ Conclusion of Trial ‘ Case Closing DONE and ORDERED at ‘ Arrest of First D efendant ‘ Conclusion of D irect Appeal ___________________________, ‘ Rem ain Sealed ‘ O ther_____________________ Florida this ________ day of
‘ N O T Sealed
‘ O ther_____________________
______________________, 20___.
______________________________________ U nited States D istrict Judge
This document has been disposed of in the following manner _______________________________ by ______________________________ on _________________________.
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RULE 5.5 ELECTRONIC FILING Pursuant to Fed.R.Civ.P.5(e), the Clerk will accept in certain actions documents filed, signed, and/or verified by electronic means. The types of actions in which electronic filing will be permitted, the practices and procedures governing the electronic filing process, and the standards with which electronic filers must comply will be established by Administrative Order. A document filed by electronic means pursuant to this Rule and in compliance with Court-established standards, processes, and procedures constitutes a written document for the purposes of applying these Rules and the Federal Rules of Civil and Criminal Procedure. Comments (2003) Federal Rule of Civil Procedure 5(e) gives the federal courts the authority to permit electronic filing. This Local Rule only authorizes the Clerk to accept electronic filings, leaving the processes, procedures, standards, etc., to be established by subsequent order of the Court. This was done in order to give the Court the flexibility to adapt, refine, and redefine the process as it grows in acceptance. Relevant Administrative Orders will be available on the Court’s Internet site (http//www.flsd.uscourts.gov) as they are issued. Upon payment of copying costs, copies also may be obtained at any courthouse or intake counter in the district or by mailing a written request to the following address: E-Filing Administrator, Office of the Clerk, U.S. District Court, 301 North Miami Avenue, Room 321, Miami, Florida 33128. RULE 7.1 MOTIONS, GENERAL A. Filing. 1. Every motion when filed shall include or be accompanied by a memorandum of law citing supporting authorities, except that the following motions need not be accompanied by a memorandum: (a) petition for writ of habeas corpus ad testificandum or ad prosequendum; (b) motion for out-of-state process; (c) motion for order of publication for process; (d) application for default; (e) motion for judgment upon default; (f) motion to withdraw or substitute counsel; (g) motion for continuance, provided the good cause supporting it is set forth in the motion and affidavit required by Rule 7.6;
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(h) motion for confirmation of sale; (i) motion to withdraw or substitute exhibits; (j) motion for extensions of time providing the good cause supporting it is set forth in the motion; (k) motion for refund of bond, provided cause for granting the motion is set forth in the motion; and (l) application for leave to proceed in forma pauperis. 2. Those motions listed in A.1 above shall be accompanied by a proposed order. 3. Pre-filing Conferences Required of Counsel. Prior to filing any motion in a civil case, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, or to involuntarily dismiss an action, counsel for the movant shall confer (orally or in writing), or make reasonable effort to confer (orally or in writing), with all parties or non-parties who may be affected by the relief sought in the motion in a good faith effort to resolve by agreement the issues to be raised in the motion. Counsel conferring with movant’s counsel shall cooperate and act in good faith in attempting to resolve the dispute. At the time of filing the motion, counsel for the moving party shall file with the Clerk a statement certifying either: (a) that counsel for the movant has conferred with all parties or non-parties who may be affected by the relief sought in the motion in a good faith effort to resolve the issues raised in the motion and has been unable to do so; or (b) that counsel for the movant has made reasonable efforts to confer with all parties or non-parties who may be affected by the relief sought in the motion, which efforts shall be identified with specificity in the statement, but has been unable to do so. If certain of the issues have been resolved by agreement, the statement shall specify the issues so resolved and the issues remaining unresolved. Failure to comply with the requirements of this rule may be cause for the court to grant or deny the motion and impose on counsel an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee. B. Hearings. No hearing will be held on motions unless set by the Court. Hearings shall be set by the Court under the following circumstances: 1. A party who desires oral argument or a hearing of any motion shall request it in writing by separate request accompanying the motion or opposing memorandum. The request shall set forth in detail the reasons why a hearing is desired and would be helpful to the Court and shall estimate the time required for argument. The Court in its discretion may grant or deny a hearing as requested, upon consideration of both the request and any response thereto by an opposing party.
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2. Discovery motions may be referred to and heard by a United States Magistrate Judge. 3. With respect to any motion or any matter which has been pending and fully briefed with no hearing set thereon for a period of 90 days, the Clerk of the Court shall send to the Court and to all parties a “Notification of 90 days Expiring and Ripeness for Hearing.” Any party may request the Clerk to do so, and in that event, the Clerk shall not file the request in the Court file nor indicate the identity of the party making the request. When the Court receives such notification, it shall set the matter for hearing within 10 days of receipt of the notification or shall issue an order resolving the motion or other matter during that same 10 day period. C. Memorandum of Law. Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure. Failure to do so may be deemed sufficient cause for granting the motion by default. The movant may, within five days after service of an opposing memorandum of law, serve a reply memorandum in support of the motion, which reply memorandum shall be strictly limited to rebuttal of matters raised in the memorandum in opposition without reargument of matters covered in the movant’s initial memorandum of law. No further or additional memoranda of law shall be filed without prior leave of Court. 1. Time. Time shall be computed under this Rule as follows: (a) If the motion or memorandum was served by mail, count three (3) days from the date the motion or memorandum to which one is responding was certified as having been mailed. Include Saturdays, Sundays or legal holidays. Beginning on the next business day, (i.e., not on Saturday, Sunday or a legal holiday) count ten (10) days (for an opposing memorandum) or five (5) days (for a reply) excluding Saturdays, Sundays and legal holidays. The tenth or fifth day is the due date for the opposing memorandum or reply, respectively; (b) If the motion or memorandum was served by hand delivery, start counting ten (10) or five (5) days on the business day after receipt of the motion or memorandum, excluding Saturdays, Sundays and legal holidays. The tenth or fifth day is the due date for the opposing memorandum or reply, respectively. 2. Length. Absent prior permission of the Court, no party shall file any legal memorandum exceeding twenty (20) pages in length, with the exception of a reply which shall not exceed ten (10) pages in length. The practice of filing multiple motions for partial summary judgment shall be prohibited, absent prior permission of the Court. D. Orders Made Orally in Court. Unless the Court directs otherwise, all orders orally announced in Court shall be prepared in writing by the attorney for the prevailing party and taken to the Judge within two days thereafter, with sufficient copies for all parties and the Court, and accompanied by stamped addressed envelopes for mailing to the parties.
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E. Emergency Motions. The Court may, upon written motion and good cause shown, waive the time requirements of this rule and grant an immediate hearing on any matter requiring such expedited procedure. The motion shall set forth in detail the necessity for such expedited procedure. F. Applications Previously Refused. Whenever any motion or application has been made to any Judge or Magistrate Judge and has been refused in whole or in part, or has been granted conditionally, and a subsequent motion or application is made to a different Judge or Magistrate Judge for the same relief in whole or in part, upon the same or any alleged different state of facts, it shall be the continuing duty of each party and attorney seeking such relief to present to the Judge or Magistrate Judge to whom the subsequent application is made an affidavit setting forth the material facts and circumstances surrounding each prior application, including: (1) when and to what Judge or Magistrate Judge the application was made; (2) what ruling was made thereon; and (3) what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon the prior application. For failure to comply with the requirements of this rule, any ruling made on the subsequent application may be set aside sua sponte or on ex parte motion. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 2000; April 15, 2004. Comments (1996) The contemporaneous service and filing requirements have been relaxed in recognition of the logistical problems posed by the requirement of Local General Rule 5.1.B. that papers must be filed with the clerk where the assigned Judge is chambered. Under amended Rules 5.1.B. and 7.1.C., opposing and reply memoranda must be filed within three business days after service of the memoranda. (1997) Addition of language to Rule 7.1.C.2. prohibiting the practice of filing multiple motions for summary judgment to evade page limitations. (2000) The addition of subsection 7.1.A.3.(a) is intended to eliminate unnecessary motions and is based on M.D.Fla. Local Rule 3.01(g) and S.D.Fla. Local General Rule 26.1.I. Subsection 7.1.A.3.(b) is intended merely to direct counsel to the pre-filing conference requirements of Local Rule 26.1.I for discovery motions. (2004) Local Rule 7.1.A.3 is amended in conjunction with deletion of Local Rule 26.1.I’s text to avoid confusion and clarify pre-filing conference obligations. Local Rule 7.1.A.4 is deleted in light of almost universal participation in the District’s automated noticing program (“FaxBack”). The last sentence in Local Rule 7.1.C.2 is amended to prohibit, absent prior permission from the Court, the filing of multiple motions for partial summary judgment. This amendment is made in conjunction with the amendment of Local Rule 16.1.B.2 to emphasize the need to discuss at the scheduling conference of parties and/or counsel the number and timing of motions for summary judgment or partial summary judgment, and have the Scheduling Order address these issues.
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RULE 7.2 MOTIONS PENDING ON REMOVAL OR TRANSFER TO THIS COURT When a court transfers or a party removes an action or proceeding to this Court and there is a pending motion for which the moving party has not submitted a memorandum, the moving party shall file a memorandum in support of its motion within ten days after the filing of the notice of removal or the entry of the order of transfer. Each party shall then comply with the briefing schedule provided in Rule 7.1.C. above. Effective Dec. 1, 1994; amended effective April 15, 2003. Authority (1993) Former Local Rule 10D. Comments (1993) Addition of language to define date of “removal”; amended to add transferred cases. (2003) Unifies the time within which a moving party must file a memorandum in support of a motion pending at the time of removal or transfer by eliminating the option of waiting until the Court denies a motion to remand. The moving party now has ten days from the date of the filing of the notice of removal or the entry of an order of transfer within which to file a supporting memorandum, irrespective of any motion to remand. RULE 7.3 ATTORNEYS FEES AND COSTS A. Upon Entry of Final Judgment or Order. Any motion for attorneys fees and/or to tax costs must specify: the judgment and the statute, rule, or other grounds entitling the moving party to the award; must state the amount or provide a fair estimate of the amount sought; shall disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made; shall be supported with particularity; shall be verified; and shall be filed and served within 30 days of entry of Final Judgment or other appealable order which gives rise to a right to attorneys fees or costs. Any such motion shall be accompanied by certification that counsel has fully reviewed the time records and supporting data and that the motion is well grounded in fact and justified. In addition, counsel filing the motion shall confer with counsel for the opposing party and shall file with the Court, within three (3) days of the motion, a statement certifying that counsel has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the motion, the results thereof and whether a hearing is requested. The prospects or pendency of supplemental review or appellate proceedings shall not toll or otherwise extend the time for filing of a motion for fees and/or costs with the district court. B. Prior to Entry of Final Judgment. Any motion for attorneys fees and/or to tax costs made before entry of final judgment or other appealable order must specify the statute, rule, or other grounds entitling the moving party to the award; must state the amount or provide a fair estimate
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of the amount sought; shall disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made; shall be supported with particularity; and shall be verified. Any such motion shall be accompanied by certification that counsel has fully reviewed the time records and supporting data and that the motion is well grounded in fact and justified. In addition, counsel filing the motion shall confer with counsel for the opposing party and shall file with the Court, within three (3) days of the motion, a statement certifying that counsel has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the motion, the results thereof and whether a hearing is requested. Effective Dec. 1, 1994; amended effective April 15, 1999; April 15, 2001. Authority (1993) Former Local Rule 10F, renumbered per Model Rules. Comments (1993) There are considerable modifications to the existing rule, including an attorney’s certification, plus a requirement to confer in 3 days. The authority of the Judges to regulate the mechanics of fee applications is clear. See White v. New Hampshire Dept. of Employment, 455 U.S. 445 (1982); Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980); Brown v. City of Palmetto, 681 F.2d 1325 (11th Cir.1982); Zaklama v. Mount Sinai Med. Center, 906 F.2d 645 (11th Cir.1990). (1994) The changes are designed to make certain portions of the local rule (but not the time period for filing) consistent with Fed.R.Civ.P. 54(d)(2)(B), as amended effective December 1, 1993, and to correct grammatical or typographical errors which appear in the current rule. Rule 54(d)(2)(B) as amended leaves the disclosure of the fee agreement to the discretion of the Court. This local rule directs disclosure in every case. (1999) The rule has been amended to clarify that a motion for fees and costs must only be filed when a judgment or appealable order has been entered in the matter. A motion for fees and costs may be made before such a judgment or order has been entered where appropriate, such as when sanctions have been awarded during the course of such proceeding. However, in no event may a motion for fees or costs be made later than the date provided for in this rule. (2001) Applicability to interim fee applications clarified. RULE 7.5 MOTIONS FOR SUMMARY JUDGMENT A. Motions for Summary Judgment: Motions for summary judgment shall be accompanied by a memorandum of law, necessary affidavits, and a concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.
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B. Opposition Papers: The papers opposing a motion for summary judgment shall include a memorandum of law, necessary affidavits, and a single concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. C. Statement of Material Facts: The statement of material facts submitted either in support of or in opposition to a motion for summary judgment shall: 1. Not exceed ten pages in length; and 2. Be supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court. D. Effect Of Failure To Controvert Statement Of Undisputed Facts: All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the opposing party’s statement, if and only to the extent supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court. E. Briefing Schedule: As oral argument is not always scheduled on motions for summary judgment, the briefing schedule in Local Rule 7.1 shall apply. Comments (2002) The rule is amended to require specific references to materials on file with the Court to support or controvert the movant’s statement of undisputed facts. The “on file with the Court” language will require litigants to file any materials on which they intend to rely or to which they refer. This is in accord with the practice contemplated by Fed.R.Civ.P. 5(d)(1), as amended effective December 1, 2000. The Advisory Committee Notes to the December 2000 amendments make clear that, with regard to voluminous materials, only those parts actually used need to be filed, with any other party free to file other pertinent portions of the materials that are so used. See Fed.R.Evid. 106; cf. Fed.R.Civ.P. 32(a)(4). Therefore, only the portions of deposition transcripts actually “used” need be filed. Effective Dec. 1, 1994; amended effective April 15, 1999; April 15, 2002. Authority (1993) Former Local Rule 10J. Comments (1993) Deletes specific briefing schedule and reference to submitting envelopes. These are covered by the general motion rule. (1999) Adds a page limit for the statement of material facts and makes clear that only one such statement shall be submitted with a motion for summary judgment.
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RULE 7.6 CONTINUANCES OF TRIALS AND HEARINGS A continuance of any trial, pretrial conference, or other hearing will be granted only on exceptional circumstances. No such continuance will be granted on stipulation of counsel alone. However, upon written notice served and filed at the earliest practical date prior to the trial, pretrial conference, or other hearing, and supported by affidavit setting forth a full showing of good cause, a continuance may be granted by the Court. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 11. Renumbered in accordance with Model Rules. RULE 7.7 CORRESPONDENCE TO THE COURT Unless invited or directed by the presiding judge, attorneys and any party represented by an attorney shall not: (a) address or present to the Court in the form of a letter or the like any application requesting relief in any form, citing authorities, or presenting arguments; and (b) shall not furnish the Court with copies of correspondence between or among counsel, or any party represented by an attorney, except when necessary as an exhibit when seeking relief from the Court. Rule 5.1.D. above governs the provision of “courtesy copies” to a judge. Effective Dec. 1, 1994; amended effective April 15, 2003. Authority (1993) Former Local Rule 10M. Comments (2003) Because correspondence between or among counsel may be relevant to a motion before the Court, e.g., compliance with the pre-filing conferences required of counsel, see S.D.Fla.L.R.7.1.A.3, 26.1.I, copies of such correspondence may be appended as exhibits to motions or memoranda. RULE 9.1 REQUEST FOR THREE-JUDGE COURT A. In any action or proceeding which a party believes is required to be heard by a three-judge district court, the words “Three-Judge District Court Requested” or the equivalent shall be included immediately following the title of the first pleading in which the cause of action requiring a three-judge court is pleaded. Unless the basis for the request is apparent from the pleading, it shall be set forth in the pleading or in a brief statement attached thereto. The words “Three-Judge District Court Requested” or the equivalent on a pleading is a sufficient request under 28 U.S.C. § 2284.
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B. In any action or proceeding in which a three-judge court is requested, parties shall file the original and three copies of every pleading, motion, notice or other document with the clerk until it is determined either that a three-judge court will not be convened or that the three-judge court has been convened and dissolved, and the case remanded to a single judge. The parties may be permitted to file fewer copies by order of the court. C. A failure to comply with this rule is not a ground for failing to convene or for dissolving a three-judge court. Effective Dec. 1, 1994. Authority (1993) Model Rule 9.2; Former Local Rule 7C. RULE 11.1 ATTORNEYS A. Roll of Attorneys. The Bar of this Court shall consist of those persons heretofore admitted and those who may hereafter be admitted in accordance with the Special Rules Governing the Admission and Practice of Attorneys in this District. B. Contempt of Court. Any person who before his or her admission to the Bar of this Court or during his or her disbarment or suspension exercises in this District in any action or proceeding pending in this Court any of the privileges of a member of the Bar, or who pretends to be entitled to do so, may be found guilty of contempt of Court. C. Professional Conduct. The standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating The Florida Bar. For a violation of any of these canons in connection with any matter pending before this Court, an attorney may be subjected to appropriate disciplinary action. D. Appearance by Attorney. 1. The filing of any pleading shall, unless otherwise specified, constitute an appearance by the person who signs such pleading. 2. An attorney representing a witness in any civil action or criminal proceeding, including a grand jury proceeding, or representing a defendant in a grand jury proceeding, shall file a notice of appearance, with consent of the client endorsed thereon, with the Clerk of the Court on a form to be prescribed and furnished by the Court, except that the notice need not be filed when such appearance has previously been evidenced by the filing of pleadings in the action or proceeding. The notice shall be filed by the attorney promptly upon undertaking the representation and prior to the attorney’s appearance on behalf of the attorney’s client at any hearing or grand jury session. When the appearance is in connection with a grand jury session,
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the notice of appearance shall be filed with the Clerk in such manner as to maintain the secrecy requirements of grand jury proceedings. 3. No attorney shall withdraw the attorney’s appearance in any action or proceeding except by leave of court after notice served on the attorney’s client and opposing counsel. 4. Whenever a party has appeared by attorney, the party cannot thereafter appear or act on the party’s own behalf in the action or proceeding, or take any step therein, unless an order of substitution shall first have been made by the Court, after notice to the attorney of such party, and to the opposite party; provided, that the Court may in its discretion hear a party in open court, notwithstanding the fact that the party has appeared or is represented by an attorney. 5. When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action or proceeding for whom the attorney was acting as counsel must, before any further proceedings are had in the action on the party’s behalf, appoint another attorney or appear in person, unless such party is already represented by another attorney. 6. No agreement between parties or their attorneys, the existence of which is not conceded, in relation to the proceedings or evidence in an action, will be considered by the Court unless the same is made before the Court and noted in the record or is reduced to writing and subscribed by the party or attorney against whom it is asserted. 7. Only one attorney on each side shall examine or cross-examine a witness, and not more than two attorneys on each side shall argue the merits of the action or proceeding unless the Court shall otherwise permit. E. Relations With Jury. All attempts to curry favor with juries by fawning flattery, or pretend solicitude for their personal comfort are unprofessional. Suggestions of counsel, looking to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the Court out of the jury’s hearing. Before, during, and after the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Provided, however, after the jury has been discharged, upon application in writing and for good cause shown, the Court may allow counsel to interview jurors to determine whether their verdict is subject to legal challenge. In this event, the Court shall enter an order limiting the time, place, and circumstances under which the interviews shall be conducted. The scope of the interviews should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing the juror’s action in any subsequent jury services. F. Relation to Other Rules. This General Rule governing Attorneys is supplemented by the Special Rules Governing the Admission and Practice of Attorneys, the Rules of the Grievance Committee and the Rules of Disciplinary Enforcement of this District. Effective Dec. 1, 1994; amended effective April 15, 2002.
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Authority (1993) Former Local Rule 16. Renumbered per Model Rules. Comments (1994) Changed to make rule gender neutral. (2002) Rule 11.1.D.7. deleted, as the issue addressed by this local rule deals with an ethical rule, see Rule 4-3.7 of the Rules of Professional Conduct of the Rules Regulating the Florida Bar, subject to exceptions and distinctions not encompassed by the local rule. RULE 12.1 CIVIL RICO CASE STATEMENT Except as otherwise ordered by a judge of this Court in a particular case or except pursuant to written stipulation of all affected parties, in all civil actions where a pleading contains a RICO cause of action pursuant to 18 U.S.C. §§ 1961-1968 or §§ 772.101-772.104, Fla.Stat., the party filing the RICO claim shall, within thirty (30) days of the filing (including filing upon removal or transfer), serve a RICO Case Statement. Consistent with counsel’s obligations under Fed.R.Civ.P. 11 to make a reasonable inquiry prior to filing a pleading, the RICO Case Statement shall include the facts relied upon to initiate the RICO claim. In particular, the statement shall be in a form which uses the numbers and letters set forth below, unless filed as part of an amended pleading (in which case the allegations of the amended pleading shall reasonably follow the organization set out below), and shall provide in detail and with specificity the following information: 1. State whether the alleged unlawful conduct is in violation of 18 U.S.C. §§ 1962(a),(b), (c), and/or (d) or §§ 772.101(1), (2), (3) and/or (4), Fla.Stat. If you allege violations of more than one subsection of § 1962 or § 772.103, each must be treated or should be pled as a separate RICO claim. 2. List each defendant, and separately state the misconduct and basis of liability of each defendant. 3. List the wrongdoers, other than the defendants listed above, and separately state the misconduct of each wrongdoer. 4. List the victims, and separately state when and how each victim was injured. 5. Describe in detail the pattern of racketeering/criminal activity or collection of an unlawful debt for each RICO claim. A description of the pattern of racketeering/criminal activity shall: a. separately list the predicate acts/incidents of criminal activity and the specific statutes violated by each predicate act/incident of criminal activity;
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b. separately state the dates of the predicate acts/incidents of criminal activity, the participants and a description of the facts surrounding each predicate act/incident of criminal activity; c. if the RICO claim is based on the predicate offenses of wire fraud, mail fraud, fraud in the sale of securities, fraud in connection with a case under U.S.C. Title 11, or fraud as defined under Chapter 817, Fla.Stat., the “circumstances constituting fraud or mistake shall be stated with particularity”, Fed.R.Civ.P. 9(b) (identify the time, place, and contents of the misrepresentation or omissions, and the identity of persons to whom and by whom the misrepresentations or omissions were made); d. state whether there has been a criminal conviction for any of the predicate acts/incidents of criminal activity; e. describe in detail the perceived relationship that the predicate acts/incidents of criminal activity bear to each other or to some external organizing principle that renders them “ordered” or “arranged” or “part of a common plan”; and f. explain how the predicate acts/incidents of criminal activity amount to or pose a threat of continued criminal activity. 6. Describe in detail the enterprise for each RICO claim. A description of the enterprise shall: a. state the names of the individuals, partnerships, corporations, associations, or other entities constituting the enterprise; b. c. d. describe the structure, purpose, roles, function, and course of conduct of the enterprise; state whether any defendants are employees, officers, or directors of the enterprise; state whether any defendants are associated with the enterprise, and if so, how;
e. explain how each separate defendant participated in the direction or conduct of the affairs of the enterprise; f. state whether you allege (i) that the defendants are individuals or entities separate from the enterprise, or (ii) that the defendants are the enterprise itself, or (iii) that the defendants are members of the enterprise; and g. if you allege any defendants to be the enterprise itself, or members of the enterprise, explain whether such defendants are perpetrators, passive instruments, or victims of the racketeering activity. 7. State whether you allege, and describe in detail, how the pattern of racketeering/criminal activity and the enterprise are separate or have they merged into one entity.
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8. Describe the relationship between the activities and the pattern of racketeering/criminal activity. Discuss how the racketeering/criminal activity differs from the usual and daily activities of the enterprise, if at all. 9. Describe what benefits, if any, the enterprise and each defendant received from the pattern of racketeering/criminal activity. 10. Describe the effect of the enterprise’s activities on interstate or foreign commerce. 11. If the complaint alleges a violation of 18 U.S.C. § 1962(a) or § 772.103(1), Fla.Stat., provide the following information: a. describe the amount of income/proceeds derived, directly or indirectly, from a pattern of racketeering/criminal activity, or through the collection of an unlawful debt; b. state who received the income/proceeds derived from the pattern of racketeering/criminal activity or through the collection of an unlawful debt and the date of that receipt; c. describe how and when such income/proceeds were invested or used in the acquisition of the establishment or operation of the enterprise; d. describe how you were directly injured by the investment or use; and
e. state whether the same entity is both the liable “person” and the “enterprise” under the § 1962(a)/§ 772.103(1) claim. 12. If the complaint alleges a violation of 18 U.S.C. § 1962(b) or § 772.103(2), Fla.Stat., provide the following information: a. describe in detail the acquisition or maintenance of any interest in or control of the enterprise; b. describe when the acquisition or maintenance of an interest in or control of the enterprise occurred; c. describe how you were directly injured by this acquisition or maintenance of an interest in or control of the enterprise; and d. state whether the same entity is both the liable “person” and the “enterprise” under the § 1962(b)/§ 772.103(2) claim. 13. If the complaint alleges a violation of 18 U.S.C. § 1962(c) or § 772.103(3), Fla.Stat., provide the following information:
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a. b.
state who is employed by or associated with the enterprise; describe what each such person did to conduct or participate in the enterprise’s affairs;
c. describe how you were directly injured by such person’s conducting or participating in the enterprise’s affairs; and d. state whether the same entity is both the liable “person” and the “enterprise” under the § 1962(c)/§ 772.103(3) claim. 14. If the complaint alleges a violation of 18 U.S.C. § 1962(d) or § 772.103(4), describe in detail the conspiracy, including the identity of the co-conspirators, the object of the conspiracy, and the date and substance of the conspiratorial agreement. 15. Describe the injury to business or property. 16. Describe the nature and extent of the relationship between the injury and each separate RICO violation. 17. For each claim under a subsection of § 1962 or § 772.103, list the damages sustained by reason of each violation, indicating the amount for which each defendants is liable. 18. Provide any additional information you feel would be helpful to the Court in processing your RICO claim. Effective April 15, 1998. Comments (1998) Rule 12.1, modeled on section 41.54 of the Manual for Complex Litigation, Third (1995), is designed to establish uniform and efficient procedure for handling civil RICO claims asserted under federal and Florida law. RULE 15.1 FORM OF A MOTION TO AMEND AND ITS SUPPORTING DOCUMENTATION A party who moves to amend a pleading shall attach the original of the amendment to the motion. Any amendment to a pleading, whether filed as a matter of course or upon a successful motion to amend, must, except by leave of court, reproduce the entire pleading as amended, and may not incorporate any prior pleading by reference. When a motion to amend is granted, the amended pleading shall be filed and served forthwith. A failure to comply with this rule is not grounds for denial of the motion. Effective Dec. 1, 1994.
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Authority (1993) Model Local Rule 15.1. Comments (1993) This rule has been circulated within the Clerk’s Office and the comments were favorable. The Clerk’s Office thinks this rule would be helpful. RULE 16.1 PRETRIAL PROCEDURE IN CIVIL ACTIONS A. Differentiated Case Management in Civil Actions. 1. Definition. “Differentiated Case Management” is a system for managing cases based on the complexity of each case and the requirement for judicial involvement. Civil cases having similar characteristics are identified, grouped and assigned to designated tracks. Each track employs a case management plan tailored to the general requirements of similarly situated cases. 2. Case Management Tracks. There shall be 3 case management tracks, as follows: (a) Expedited-a relatively non-complex case requiring only 1 to 3 days of trial may be assigned to an expedited track in which discovery shall be completed within the period of 90 to 179 days from the date of the Scheduling Order. (b) Standard Track-a case requiring 3 to 10 days of trial may be assigned to a standard track in which discovery shall be completed within 180 to 269 days of the Scheduling Order. (c) Complex Track-an unusually complex case requiring over 10 days of trial may be assigned to the complex track in which discovery shall be completed within 270 to 365 days from the date of the Scheduling Order. 3. Evaluation and Assignment of Cases. The following factors shall be considered in evaluating and assigning cases to a particular track: the complexity of the case, number of parties, number of expert witnesses, volume of evidence, problems locating or preserving evidence, time estimated by the parties for discovery and time reasonably required for trial, among other factors. The majority of civil cases will be assigned to a standard track. 4. The parties shall recommend to the Court in their proposed Scheduling Order filed pursuant to Local Rules 16.1.B. to which particular track the case should be assigned. B. Scheduling Conference and Order. 1. Party Conference. Except in categories of proceedings exempted from initial disclosures under Rule 26(a)(1)(E), Fed.R.Civ.P., or when otherwise ordered, counsel for the parties (or
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the party, if proceeding pro se), as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), Fed.R.Civ.P., must meet in person, by telephone, or by other comparable means, for the purposes prescribed by Rule 26(f), Fed.R.Civ.P. 2. Conference Report and Order. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for submitting to the Court, within fourteen (14) days of the conference, a written report outlining the discovery plan and discussing (a) the likelihood of settlement; (b) the likelihood of appearance in the action of additional parties; (c) proposed limits on the time: (i) to join other parties and to amend the pleadings; (ii) to file and hear motions; and (iii) to complete discovery. (d) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment; (e) the necessity or desirability of amendments to the pleadings; (f) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding authenticity of documents and the need for advance rulings from the Court on admissibility of evidence; (g) suggestions for the avoidance of unnecessary proof and of cumulative evidence; (h) suggestions on the advisability of referring matters to a magistrate judge or master; (i) a preliminary estimate of the time required for trial; (j) requested date or dates for conferences before trial, a final pretrial conference, and trial; and (k) any other information that might be helpful to the Court in setting the case for status or pretrial conference. The Report shall be accompanied by a Joint Proposed Scheduling Order which shall contain the following information:
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(a) Assignment of the case to a particular track pursuant to Local Rule 16.1.A.1 above; (b) The detailed discovery schedule agreed to by the parties; (c) A limitation of the time to join additional parties and to amend the pleadings; (d) A space for insertion of a date certain for filing all pretrial motions; (e) A space for insertion of a date certain for resolution of all pretrial motions by the Court; (f) Any proposed use of the Manual on Complex Litigation and any other need for rule variations, such as on deposition length or number of depositions; (g) A space for insertion of a date certain for the date of pretrial conference (if one is to be held); and (h) A space for insertion of the date certain for trial. In all civil cases (except those expressly exempted below) the Court shall enter a Scheduling Order as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. It is within the discretion of each judge to decide whether to hold a scheduling conference with the parties prior to entering the Scheduling Order. 3. Notice of Requirement. Counsel for plaintiff, or plaintiff if proceeding pro se, shall be responsible for giving notice of the requirements of this subsection to each defendant or counsel for each defendant as soon as possible after such defendant’s first appearance. 4. Exempt Actions. The categories of proceedings exempted from initial disclosures under Rule 26(a)(1)(E) are exempt from the requirements of this subsection. The Court shall have the discretion to enter a Scheduling Order or hold a Scheduling Conference in any case even if such case is within an exempt category. 5. Compliance With Pretrial Orders. Regardless of whether the action is exempt pursuant to Rule 26(a)(1)(E), Fed.R.Civ.P., the parties are required to comply with any pretrial orders by the Court and the requirements of this Rule including, but not limited to, orders setting pretrial conferences and establishing deadlines by which the parties’ counsel must meet, prepare and submit pretrial stipulations, complete discovery, exchange reports of expert witnesses, and submit memoranda of law and proposed jury instructions. C. Pretrial Conference Mandatory. A pretrial conference pursuant to Rule 16(a), Fed.R.Civ.P., shall be held in every civil action unless the Court specifically orders otherwise. Each party shall be represented at the pretrial conference and at meetings held pursuant to paragraph D hereof by the attorney who will conduct the trial, except for good cause shown a party may be represented by
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another attorney who has complete information about the action and is authorized to bind the party. D. Pretrial Disclosures and Meeting of Counsel. Unless otherwise directed by the Court, at least thirty (30) days before trial each party must provide to the other party and promptly file with the Court the information prescribed by Rule 26(a)(3), Fed.R.Civ.P. No later than ten days prior to the date of the pretrial conference, or if no pretrial conference is held, ten days prior to the call of the calendar, counsel shall meet at a mutually convenient time and place and: 1. Discuss settlement. 2. Prepare a pretrial stipulation in accordance with paragraph E of this rule. 3. Simplify the issues and stipulate to as many facts and issues as possible. 4. Examine all trial exhibits, except that impeachment exhibits need not be revealed. 5. Exchange any additional information as may expedite the trial. E. Pretrial Stipulation Must Be Filed. It shall be the duty of counsel to see that the pretrial stipulation is drawn, executed by counsel for all parties, and filed with the Court no later than five days prior to the pretrial conference, or if no pretrial conference is held, five days prior to the call of the calendar. The pretrial stipulation shall contain the following statements in separate numbered paragraphs as indicated: 1. A short concise statement of the case by each party in the action. 2. The basis of federal jurisdiction. 3. The pleadings raising the issues. 4. A list of all undisposed of motions or other matters requiring action by the Court. 5. A concise statement of uncontested facts which will require no proof at trial, with reservations, if any. 6. A statement in reasonable detail of issues of fact which remain to be litigated at trial. By way of example, reasonable details of issues of fact would include: (a) As to negligence or contributory negligence, the specific acts or omissions relied upon; (b) As to damages, the precise nature and extent of damages claimed; (c) As to unseaworthiness or unsafe condition of a vessel or its equipment, the material facts and circumstances relied upon; (d) As to breach of contract, the specific acts or omissions relied upon. 7. A concise statement of issues of law on which there is agreement. 8. A concise statement of issues of law which remain for determination by the Court.
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9. Each party’s numbered list of trial exhibits, other than impeachment exhibits, with objections, if any, to each exhibit, including the basis of all objections to each document. The list of exhibits shall be on separate schedules attached to the stipulation, should identify those which the party expects to offer and those which the party may offer if the need arises, and should identify concisely the basis for objection. In noting the basis for objections, the following codes should be used: A-Authenticity I-Contains inadmissible matter (mentions insurance, prior conviction, etc.) R-Relevancy H-Hearsay UP-Unduly prejudicial-probative value outweighed by undue prejudice P-Privileged Counsel may agree on any other abbreviations for objections, and shall identify such codes in the exhibit listing them. 10. Each party’s numbered list of trial witnesses, with their addresses, separately identifying those whom the party expects to present and those whom the party may call if the need arises. Witnesses whose testimony is expected to be presented by means of a deposition shall be so designated. Impeachment witnesses need not be listed. Expert witnesses shall be so designated. 11. Estimated trial time. 12. Where attorney’s fees may be awarded to the prevailing party, an estimate of each party as to the maximum amount properly allowable. F. Unilateral Filing of Pretrial Stipulation Where Counsel Do Not Agree. If for any reason the pretrial stipulation is not executed by all counsel, each counsel shall file and serve separate proposed pretrial stipulations not later than five days prior to the pretrial conference, or if no pretrial conference is held, five days prior to the call of the calendar, with a statement of reasons no agreement was reached thereon. G. Record of Pretrial Conference Is Part of Trial Record. Upon the conclusion of the final pretrial conference, the Court will enter further orders as may be appropriate. Thereafter the pretrial stipulation as so modified will control the course of the trial, and may be thereafter amended by the Court only to prevent manifest injustice. The record made upon the pretrial conference shall be deemed a part of the trial record. Provided, however, any statement made concerning possible compromise settlement of any claim shall not be a part of the trial record, unless consented to by all parties appearing.
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H. Discovery Proceedings. All discovery proceedings must be completed no later than ten days prior to the date of the pretrial conference, or if no pretrial conference is held, ten days prior to the call of the calendar, unless further time is allowed by order of the Court for good cause shown. I. Newly Discovered Evidence or Witnesses. If new evidence or witnesses be discovered after the pretrial conference, the party desiring their use shall immediately furnish complete details thereof and the reason for late discovery to the Court and to opposing counsel. Use may be allowed by the Court in furtherance of the ends of justice. J. Memoranda of Law. Counsel shall serve and file memoranda treating any unusual questions of law, including motions in limine, no later than five days prior to the pretrial conference, or if no pretrial conference is held, five days prior to the call of the calendar. K. Exchange Expert Witness Summaries/Reports. Where expert opinion evidence is to be offered at trial, summaries of the expert’s anticipated testimony or written expert reports (including lists of the expert’s qualifications to be offered at trial, publications and writings, style of case and name of court and judge in cases in which the expert has previously testified and the subject of that expert testimony, the substance of the facts and all opinions to which the expert is expected to testify, and a summary of the grounds for each opinion) shall be exchanged by the parties no later than 90 days prior to the pretrial conference, or if no pretrial conference is held, 90 days prior to the call of the calendar, provided, however, that if the expert opinion evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party’s expert, then the expert summary or report for such evidence shall be served no later than 30 days after the expert summary or report is served by the other party. L. Proposed Jury Instructions or Proposed Findings of Facts and Conclusions of Law. At the close of the evidence or at an earlier reasonable time that the Court directs, counsel may submit proposed jury instructions or, where appropriate, proposed findings of fact and conclusions of law to the Court, with copies to all other counsel. At the close of the evidence, a party may: file additional instructions covering matters occurring at the trial that could not reasonably be anticipated; and, with the Court’s permission, file untimely requests for instructions on any issue. M. Penalty for Failure to Comply. Failure to comply with the requirements of this rule will subject the party or counsel to appropriate penalties, including but not limited to dismissal of the cause, or the striking of defenses and entry of judgment. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 1998; April 15, 2001; April 15, 2004. Authority (1993) Former Local Rule 17. Changes have been made in recognition of the fact that the call of the calendar is a benchmark for deadlines if no final pretrial is held; the need for more specificity in expert resumes; and some modifications were needed to pretrial stipulation rule. All counsel now
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share responsibility to prepare a pretrial stipulation. Codes are provided for the customary objections to exhibits. Comments (1993) Sections A and B.7 added in accordance with recommendation of the Civil Justice Advisory Group. (1994) K. This rule is based in part on the disclosure requirements of Federal Rule 26(a)(2), as amended effective December 1, 1993, and in part on superseded Federal Rule 26(b)(4) concerning expert interrogatories. (1996)[B.1.] In order to avoid uncertainty as to which documents were produced at a scheduling conference, the rule is amended to require that a party producing documents at the conference either uniquely stamp the documents or provide a particularized list of what is being produced. (1996)[K.] The change is intended to make the timing of disclosing expert witness information consistent with that prescribed by Fed.R.Civ.P. 26(a)(2)(C), to delete the language referring to an expert “resume” as being superfluous, and to make clear the expert witness information to be disclosed may be either a summary prepared by counsel or a report prepared by the expert (both of which are required to provide the information specified). (1997)[B.] Letters rogatory and registrations of foreign judgment made exempt from scheduling requirements as unnecessary. (1998) Rule 16.1.B.6 is modified to make clear that, at the time of the scheduling conference, counsel should discuss whether there is a need to modify any standard procedure, not just whether the Manual for Complex Litigation should read. Rule 16.1.B.7(f) if modified to make clear that the Joint Proposed Scheduling Order should contain any joint or unilateral requests to exceed deposition limitations in length and number, as well as any other proposed variations from these rules or the Federal Rules of Civil Procedure that are not specifically addressed in other paragraphs of this rule. (2001) Rules 16.1.B, D and E amended to conform with the December 2000 amendments to Rule 26, Fed.R.Civ.P. (2004) Local Rule 16.1.B.2 is amended, in conjunction with the amendment of the last sentence in Local Rule 7.1.C.2, to emphasize the need to discuss at the scheduling conference of parties and/or counsel the number and timing of motions for summary judgment or partial summary judgment, and have the Scheduling Order address these issues. Local Rule 16.1.L is amended to conform to the December 2003 amendment to Fed.R.Civ.P. 51. RULE 16.2 COURT ANNEXED MEDIATION A. General Provisions. 1. Definitions. Mediation is a supervised settlement conference presided over by a qualified, certified and neutral mediator to promote conciliation, compromise and the ultimate settlement
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of a civil action. The mediator is an attorney, certified by the chief judge in accordance with these rules, who possesses the unique skills required to facilitate the mediation process including the ability to suggest alternatives, analyze issues, question perceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sides and keep order. The mediation process does not allow for testimony of witnesses. The mediator does not review or rule upon questions of fact or law, or render any final decision in the case. Absent a settlement, the mediator will report only to the presiding judge as to whether the case settled, was adjourned for further mediation (by agreement of the parties), or that the mediator declared an impasse. 2. Purpose. It is the purpose of the Court, through adoption and implementation of this rule, to provide an alternative mechanism for the resolution of civil disputes leading to disposition before trial of many civil cases with resultant savings in time and costs to litigants and to the Court, but without sacrificing the quality of justice to be rendered or the right of the litigants to a full trial in the event of an impasse following mediation. Mediation also enables litigants to take control of their dispute and encourages amicable resolution of disputes. B. Certification; Qualification and Compensation of Mediators. 1. Certification of Mediators. The chief judge shall certify those persons who are eligible and qualified to serve as mediators under this rule, in such numbers as the chief judge shall deem appropriate. Thereafter, the chief judge shall have complete discretion and authority to withdraw the certification of any mediator at any time. 2. Lists of Certified Mediators. Lists of certified mediators shall be maintained in the offices of the Clerk and shall be made available to counsel and the public upon request. 3. Qualifications of Mediators. An individual who has completed a minimum of 40 hours in the Florida Circuit Court Mediation Training Course certified by the Florida Supreme Court may be certified to serve as a mediator if: (a) He or she is a former state court judge who presided in a court of general jurisdiction and was also a member of the bar in the state in which he or she presided; or (b) He or she is a retired federal judicial officer; or (c) He or she has been admitted to a State Bar or the Bar of the District of Columbia for at least ten (10) years and is currently admitted to the Bar of this Court; or (d) The advisory committee shall have determined that for exceptional circumstances an individual who does not qualify under sections (1), (2), or (3) above should be certified as a mediator.
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Any individual who seeks certification as a mediator shall agree to accept at least two (2) mediation assignments per year in cases where at least one party lacks the ability to compensate the mediator, in which case the mediator’s fees shall be reduced accordingly or the mediator shall serve pro bono (if no litigant is able to contribute compensation). The chief judge shall constitute an advisory committee from lawyers who represent those categories of civil litigants who may utilize the mediation program and lay persons to assist in formulating policy and additional standards relating to the qualification of mediators and the operation of the mediation program and to review applications of prospective mediators and to recommend certification to the chief judge as appropriate. 4. Oath Required. Every mediator shall take the oath or affirmation prescribed by 28 U.S.C. § 453 upon qualifying as a mediator. 5. Disqualification of a Mediator. Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144, and shall be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455. 6. Compensation of Mediators. Mediators shall be compensated (a) at the rate provided by standing order of the Court, as amended from time to time by the chief judge, if the mediator is appointed by the Court without input or at the request of the parties; or (b) at such rate as may be agreed to in writing by the parties and the mediator, if the mediator is selected by the parties. Absent agreement of the parties to the contrary, the cost of the mediator’s services shall be borne equally by the parties to the mediation conference. C. Types of Cases Subject to Mediation. The following types of cases shall not be subject to mediation pursuant to these rules: 1. Habeas corpus cases; 2. Motion to vacate sentence under 28 U.S.C. § 2255; 3. Social Security cases; 4. Foreclosure matters; 5. Civil forfeiture matters; 6. IRS summons enforcement actions; 7. Bankruptcy proceedings, including appeals and adversary proceedings; 8. Land condemnation cases;
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9. Default proceedings; 10. Student loan cases; 11. VA loan overpayment cases; 12. Naturalization proceedings filed as civil actions; 13. Cases seeking review of administrative agency action; 14. Statutory interpleader actions; 15. Truth-in-Lending Act cases not brought as class actions; 16. Interstate Commerce Act cases (freight charges, railway freight claims, etc.); 17. Labor Management Relations Act and ERISA actions seeking recovery for unpaid employee welfare benefit and pension funds; 18. Civil penalty cases; 19. Letters rogatory; 20. Registration of foreign judgments; and 21. Any other case expressly exempted by Court order. D. Procedures to Refer a Case or Claim to Mediation. 1. Order of Referral. In every civil case excepting those listed in Rule 16.2.C., the Court shall enter an order of referral similar in form to the proposed order attached hereto which shall: (a) Direct mediation be conducted not later than sixty (60) days before the scheduled trial date which shall be established no later than the date of the issuance of the order of referral. (b) Direct within 15 days of the date of the order of referral, to agree upon a mediator. The parties are encouraged to utilize the list of certified mediators established in connection with Rule 16.2.B. but may by mutual agreement select any individual as mediator. The parties shall advise the Clerk’s office as to such choice within that period of time, failing which the Clerk will designate a mediator from the aforementioned list of certified mediators on a blind random basis. 2. Coordination of Mediation Conference. Plaintiff’s counsel (or another attorney agreed upon by all counsel of record) shall be responsible for coordinating the mediation conference date and location agreeable to the mediator and all counsel of record.
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3. Stipulation of Counsel. Any action or claim may be referred to mediation upon stipulation of the parties. 4. Withdrawal From Mediation. Any civil action or claim referred to mediation pursuant to this rule may be exempt or withdrawn from mediation by the presiding judge at any time, before or after reference, upon application of a party and/or determination for any reason that the case is not suitable for mediation. E. Party Attendance Required. Unless otherwise excused by the presiding judge in writing, all parties, corporate representative, and any other required claims professionals (insurance adjusters, etc.), shall be present at the mediation conference with full authority to negotiate a settlement. If a party to a mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, and is a defendant or counterclaim defendant in the underlying litigation, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. The mediator shall report non-attendance and may recommend that the Court enter sanctions for non-attendance. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. F. Mediation Report; Notice of Settlement; Judgment. 1. Mediation Report. Within five (5) days following the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present. The report shall also indicate whether the case settled, was continued with the consent of the parties, or whether the mediator declared an impasse. 2. Notice of Settlement. In the event that the parties reach an agreement to settle the case or claim, counsel shall promptly notify the Court of the settlement by the filing of a notice of settlement signed by counsel of record within ten (10) days of the mediation conference. Thereafter the parties shall forthwith submit an appropriate pleading concluding the case. G. Trial Upon Impasse. 1. Trial Upon Impasse. If the mediation conference ends in an impasse, the case will be tried as originally scheduled. 2. Restrictions on the Use of Information Derived During the Mediation Conference. All proceedings of the mediation conference, including statements made by any party, attorney, or other participant, are privileged in all respects. The proceedings may not be reported, recorded, placed into evidence, made known to the trial court or jury, or construed for any purpose as an admission against interest. A party is not bound by anything said or done at the conference, unless a written settlement is reached, in which case only the terms of the settlement are binding.
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H. Forms for Use in Mediation. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
________________________ : : : : CAPTION : : : : ________________________: Civil Action No. _______
Trial having been set in this matter for __________, 20 ___, pursuant to Federal Rule of Civil Procedure 16 and Southern District Local Rule 16.2, it is hereby ORDERED AND ADJUDGED as follows: 1. All parties are required to participate in mediation. The mediation shall be completed no later than 60 days before the scheduled trial date. 2. Plaintiff’s counsel, or another attorney agreed upon by all counsel of record and any unrepresented parties, shall be responsible for scheduling the mediation conference. The parties are encouraged to avail themselves of the services of any mediator on the List of Certified Mediators, maintained in the office of the Clerk of this Court, but may select any other mediator. The parties shall agree upon a mediator within fifteen (15) days from the date hereof. If there is no agreement, lead counsel shall promptly notify the Clerk in writing and the Clerk shall designate a mediator from the List of Certified Mediators, which designation shall be made on a blind rotation basis. 3. A place, date and time for mediation convenient to the mediator, counsel of record, and unrepresented parties shall be established. The lead attorney shall complete the form order attached and submit it to the Court. 4. The appearance of counsel and each party or representatives of each party with full authority to enter into a full and complete compromise and settlement is mandatory. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the mediation conference shall be confidential and privileged.
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6. At least ten days prior to the mediation date, all parties shall present to the mediator a brief written summary of the case identifying issues to be resolved. Copies of these summaries shall be served on all other parties. 7. The Court may impose sanctions against parties and/or counsel who do not comply with the attendance or settlement authority requirements herein who otherwise violate the terms of this Order. The mediator shall report non-attendance and may recommend imposition of sanctions by the Court for non-attendance. 8. The mediator shall be compensated in accordance with the standing order of the Court entered pursuant to Rule 16.2.B.6, or on such basis as may be agreed to in writing by the parties and the mediator selected by the parties. The cost of mediation shall be shared equally by the parties unless otherwise ordered by the Court. All payments shall be remitted to the mediator within 30 days of the date of the bill. Notice to the mediator of cancellation or settlement prior to the scheduled mediation conference must be given at least two (2) full business days in advance. Failure to do so will result in imposition of a fee for one hour. 9. If a full or partial settlement is reached in this case, counsel shall promptly notify the Court of the settlement in accordance with Local Rule 16.2.F., by the filing of a notice of settlement signed by counsel of record within ten (10) days of the mediation conference. Thereafter the parties shall forthwith submit an appropriate pleading concluding the case. 10. Within five (5) days following the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present. The report shall also indicate whether the case settled (in full or in part), was continued with the consent of the parties, or whether the mediator declared an impasse. 11. If mediation is not conducted, the case may be stricken from the trial calendar, and other sanctions may be imposed. DONE AND ORDERED this _____ day of _______, 20___. ________________________ U.S. District Judge Copies furnished: All counsel of record -----
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
________________________: : : CAPTION : : : : ________________________: ORDER SCHEDULING MEDIATION
Civil Action No. _______
The mediation conference in this matter shall be held with __________ __________ on _______, 20___, at _____(am/pm) at __________ _______, Florida. ENTERED this _____ day of _____, 20___.
___________________________ U.S. District Judge Copies furnished: All counsel of record Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 1999; April 15, 2004. Comments (1996)[B.3(c).] Deletion of reference to Trial Bar to conform to new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996. (1997)[C.] Letters rogatory and registrations of foreign judgment made exempt from mediation requirements as unnecessary. (1997)[E.] Florida’s “Government in the Sunshine” Law, Florida Statutes § 286.011, as incorporated into the Florida Government Cooperation Act, Florida Statutes § 164.106, does not permit public entities to settle litigation against them without a public hearing preceded by due public notice. Public entities have therefore at times found themselves unable to comply with Local Rule 16.2.E. and have had to seek an exception from the rule in order to permit mediation. This amendment relaxes the requirement that parties be present with full authority to consummate a settlement where a public entity is a defendant, and provides instead that a representative be present who can negotiate settlement on the entity’s behalf and recommend settlement to the entity.
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(1999) [B.6] Language is added to clarify that mediators appointed by the Court without input by the parties are compensated at the rate set by the standing administrative order. RULE 16.3 CALENDAR CONFLICTS A. Priorities. In resolving calendar conflicts between the federal courts or between this Court and the courts of the State of Florida, the following case priorities must be considered: 1. Criminal cases should prevail over civil cases. 2. Jury trials should prevail over non-jury trials. 3. Appellate arguments, hearings, and conferences should prevail over trial court proceedings. 4. The case in which the trial date has been first set by written order should take precedence. B. Additional Circumstances. Factors such as cost, numbers of witnesses and attorneys involved, travel, length of trial, age of case, and other relevant matters may warrant deviation from these case priorities. C. Notice and Agreement; Resolution by Judges. When an attorney is scheduled to appear in two courts at the same time and cannot arrange for other counsel to represent the clients’ interests, the attorney shall give prompt written notice of the conflict to opposing counsel, the clerk of each court, and the presiding judge of each case, if known. If the presiding judge of the case cannot be identified, written notice of the conflict shall be given to the chief judge of the court having jurisdiction over the case, or to the chief judge’s designee. The judges or their designees shall confer and undertake to avoid the conflict by agreement among themselves. Absent agreement, conflicts should be promptly resolved by the judges or their designees in accordance with the above case priorities. Effective April 15, 2000. Authority (2000) Resolution of the Florida State-Federal Council Regarding Calendar Conflicts Between State and Federal Courts. See also Fla.R.Judim.Admin. 2.052. Comments (2000) The adoption of this rule was prompted by the Resolution of the Florida State-Federal Judicial Council Regarding Calendar Conflicts Between State and Federal Courts.
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RULE 23.1 CLASS ACTIONS In any case sought to be maintained as a class action: 1. The complaint shall bear next to its caption the legend “Complaint-Class Action.” 2. The complaint shall contain under a separate heading, styled “Class Action Allegations:” (a) A reference to the portion or portions of Rule 23, Fed.R.Civ.P., under which it is claimed that the suit is properly maintainable as a class action. (b) Appropriate allegations thought to justify such claim, including, but not necessarily limited to: (i) the size (or approximate size) and definition of the alleged class (ii) the basis upon which the plaintiff (or plaintiffs) claims (A) to be an adequate representative of the class, or (B) if the class is composed of defendants, that those named as parties are adequate representatives of the class (iii) the alleged questions of law and fact claimed to be common to the class, and (iv) in actions claimed to be maintainable as class actions under subdivision (b)(3) of Rule 23, Fed.R.Civ.P., allegations thought to support the findings required by that subdivision. 3. In ruling on any motion by a putative class action plaintiff for a determination under subdivision (c)(1) of Fed.R.Civ.P. 23 as to whether an action is to be maintained as a class action, the Court may allow the action to be so maintained, may disallow and strike the class action allegations, or may order postponement of the determination pending discovery or such other preliminary procedures as appear to be appropriate and necessary in the circumstances. Whenever possible, where it is held that the determination should be postponed, a date will be fixed by the Court for renewal of the motion. 4. The foregoing provisions shall apply, with appropriate adaptations, to any counterclaim or crossclaim alleged to be brought for or against a class. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 2001; April 15, 2004. Authority (1993) Former Local Rule 19. Renumbered per Model Rules. In accordance with Model Rule 23.1.
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Comments (1996) Rule 23.1 of the Local Rules of the United States District Court for the Southern District of Florida has been amended to delete Sections B and C in their entirety. Sections B and C of Local Rule 23.1 had been modeled verbatim from the Manual for Complex Litigation App. Sec. 1.41. Section B barred counsel for parties in class actions to communicate directly or indirectly with potential or actual class members without advance approval from the Court. Section C created exceptions for attorney-client communications initiated by a client or a prospective client, and communications by public officials in the regular course of business or in the performance of their duties. Section B has been deleted to conform to the United States Supreme Court’s ruling in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). In that case the Supreme Court found that a district court order using language identical to Sections B and C was inconsistent with the general policies embodied in Rule 23, Fed.R.Civ.P. The Court held that any order limiting communications between parties and potential class members “should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Id. at 101. Because Gulf Oil requires that such orders be issued on a case-by-case basis, the general prohibition of Section B is unacceptable. In light of the deletion of Section B, the exceptions to that section created by Section C have also been deleted. (2001) Corrects typographical error. (2004) Local Rule 23.1.3 is amended to delete the requirement that a class action plaintiff move, within 90 days after the filing of the complaint, for a determination under Fed.R.Civ.P. 23(c)(1) as to whether the action should be maintained as a class action, to conform to the December 2003 amendment to Fed.R.Civ.P. 23(c)(1)(A), which clarifies that a Court may defer the decision on whether to certify a class if it is prudent to do so. RULE 24.1 CONSTITUTIONAL CHALLENGE TO ACT OF CONGRESS OR STATE STATUTE A. Act of Congress. Upon the filing of any action in which the constitutionality of an Act of Congress affecting the public interest is challenged, and to which action the United States or an agency, officer, or employee thereof is not a party in its or their official capacity, counsel representing the party who challenges the Act shall forthwith notify the Court of the existence of the constitutional question. The notice shall contain the full title and number of the action and shall designate the statute assailed and the grounds upon which it is assailed, so that the Court may comply with its statutory duty to certify the fact to the Attorney General of the United States as required by 28 U.S.C. § 2403. The party challenging constitutionality shall also so indicate on the pleading or paper which first does so by stating, immediately following the title of the pleading or paper, Claim of Unconstitutionality.”
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B. State Statute. Upon the filing of any action in which the constitutionality of a state statute, charter, ordinance, or franchise is challenged, counsel shall comply with the notice provisions of Section 86.091, Florida Statutes. C. No Waiver. Failure to comply with this Rule will not be grounds for waiving the constitutional issue or for waiving any other right the party may have. Any notice provided under this rule, or lack of notice, will not serve as a substitute for, or as a waiver of, any pleading requirements set forth in the Federal Rules or statutes. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 9; Model Rule 24.1.
RULE 26.1 DISCOVERY AND DISCOVERY DOCUMENTS (CIVIL) A. Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), Fed.R.Civ.P., or to the extent otherwise stipulated or directed by order, a party must comply with the disclosure obligations imposed under Rule 26(a)(1), Fed.R.Civ.P., in the form prescribed by Rule 26(a)(4), Fed.R.Civ.P. B. Service and Filing of Discovery Material. In accordance with Rule 5(d), Fed.R.Civ.P., disclosures under Rule 26(a)(1) or (2), Fed.R.Civ.P., and the following discovery requests and responses must not be filed with the Court or the Clerk, nor proof of service thereof, until they are used in the proceeding or the court orders filing: (i) depositions; (ii) interrogatories, (iii) requests for documents or to permit entry upon land, and (iv) requests for admission. C. Discovery Material to Be Filed With Motions. If relief is sought under any of the Federal Rules of Civil Procedure, copies of the discovery matters in dispute shall be filed with the Court contemporaneously with any motion filed under these rules by the party seeking to invoke the Court’s relief. D. Discovery Material to Be Filed at Outset of Trial or at Filing of Pre-trial or Post-trial Motions. If depositions, interrogatories, requests for documents, requests for admission, answers or responses are to be used at trial or are necessary to a pre-trial or post-trial motion, the portions to be used shall be filed with the Clerk at the outset of the trial or at the filing of the motion insofar as their use can be reasonably anticipated by the parties having custody thereof. E. Discovery Material to Be Filed on Appeal. When documentation of discovery not previously in the record is needed for appeal purposes, upon an application and order of the Court, or by stipulation of counsel, the necessary discovery papers shall be filed with the Clerk.
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F.
Timing of Discovery. 1. When Discovery May Be Taken. In accordance with Rule 26(d), Fed.R.Civ.P., except in categories of proceedings exempted from initial disclosures under Rule 26(a)(1)(E), Fed.R.Civ.P., or when authorized under the Federal Rules of Civil Procedure or by order or agreement of the parties, a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), Fed.R.Civ.P. a. Leave of Court is not required under Rule 30(a)(2)(C), Fed.R.Civ.P., if a party seeks to take a deposition before the time specified in Rule 26(d), Fed.R.Civ.P., if the notice contains a certification, with supporting facts, that the person to be examined is expected to leave the United States and be unavailable for examination in this country unless deposed before that time. b. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. The deposition shall not be conducted until after the expert summary or report required by Local Rule 16.1.K. is provided.
G. Interrogatories and Document Requests. 1. The presumptive limitation on the number of interrogatories (25 questions including all discrete subparts) which may be served without leave of court or written stipulation, as prescribed by Rule 33(a), Fed.R.Civ.P., shall apply to actions in this Court. Interrogatories propounded in the form set forth in Appendix B to these rules shall be deemed to comply with the numerical limitations of Rule 33(a). 2. No part of an interrogatory shall be left unanswered merely because an objection is interposed to another part of the interrogatory. 3. (a) Where an objection is made to any interrogatory or sub-part thereof or to any document request under Fed.R.Civ.P. 34, the objection shall state with specificity all grounds. Any ground not stated in an objection within the time provided by the Federal Rules of Civil Procedure, or any extensions thereof, shall be waived. (b) Where a claim of privilege is asserted in objecting to any interrogatory or document demand, or sub-part thereof, and an answer is not provided on the basis of such assertion: (i) The attorney asserting the privilege shall in the objection to the interrogatory or document demand, or sub-part thereof, identify the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state’s privilege rule being invoked; and (ii) The following information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information:
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(A) For documents: (1) the type of document; (2) general subject matter of the document; (3) the date of the document; (4) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author of the document, the addressee of the document, and, where not apparent, the relationship of the author and addressee to each other; (B) For oral communications: (1) the name of the person making the communication and the names of persons present while the communication was made and, where not apparent, the relationship of the persons present to the person making the communication; (2) the date and the place of communication; (3) the general subject matter of the communication. (c) This rule requires preparation of a privilege log with respect to all documents and oral communications withheld on the basis of a claim of privilege or work product protection except the following: written and oral communications between a party and its counsel after commencement of the action and work product material created after commencement of the action. 4. Interrogatories shall be so arranged that following each question there shall be provided sufficient blank space for inserting a typed response. If the space allotted is insufficient, the responding party shall retype the pages repeating each question in full followed by the answer or objection thereto. 5. Whenever a party answers any interrogatory by reference to records from which the answer may be derived or ascertained, as permitted in Fed.R.Civ.P. 33(c): (a) The specification of documents to be produced shall be in sufficient detail to permit the interrogating party to locate and identify the records and to ascertain the answer as readily as could the party from whom discovery is sought. (b) The producing party shall make available any computerized information or summaries thereof that it either has or can adduce by a relatively simple procedure, unless these materials are privileged or otherwise immune from discovery. (c) The producing party shall provide any relevant compilations, abstracts or summaries in its custody or readily obtainable by it, unless these materials are privileged or otherwise immune from discovery. (d) The documents shall be made available for inspection and copying within ten days after service of the answers to interrogatories or at a date agreed upon by the parties. H. Discovery Motions. 1. Time for Filing. All motions related to discovery, including but not limited to motions to compel discovery and motions for protective order, shall be filed within thirty (30) days of the
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occurrence of grounds for the motion. Failure to file discovery motion within thirty (30) days, absent a showing of reasonable cause for a later filing, may constitute a waiver of the relief sought. 2. Motions to Compel. Except for motions grounded upon complete failure to respond to the discovery sought to be compelled or upon assertion of general or blanket objections to discovery, motions to compel discovery in accordance with Rules 33, 34, 36 and 37, Fed.R.Civ.P., shall quote verbatim each interrogatory, request for admission or request for production and the response to which objections is taken followed by (a) the specific objections, (b) the grounds assigned for the objection (if not apparent from the objection), and (c) the reasons assigned as supporting the motion, all of which shall be written in immediate succession to one another. Such objections and grounds shall be addressed to the specific interrogatory or request and may not be made generally. I. Certificate of Counsel. See Local Rule 7.1.A.3 and Fed.R.Civ.P. 37(a)(2).
J. Reasonable Notice of Taking Depositions. Unless otherwise stipulated by all interested parties, pursuant to Rule 29, Fed.R.Civ.P., and excepting the circumstances governed by Rule 30(a), Fed.R.Civ.P., a party desiring to take the deposition within this State of any person upon oral examination shall give at least five (5) working days’ notice in writing to every other party to the action and to the deponent (if the deposition is not of a party), and a party desiring to take the deposition in another State of any person upon oral examination shall give at least ten (10) working days’ notice in writing to every other party to the action and the deponent (if the deposition is not of a party). Failure by the party taking the oral deposition to comply with this rule obviates the need for protective order. Notwithstanding the foregoing, in accordance with Rule 32(a)(3), Fed.R.Civ.P., no deposition shall be used against a party who, having received less than eleven (11) calendar days’ notice of a deposition as computed under Rule 6(a), Fed.R.Civ.P., has promptly upon receiving such notice filed a motion for protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held. K. Length of Depositions. Unless otherwise authorized by the Court or stipulated by the parties, a deposition is limited, under Rule 30(d), Fed.R.Civ.P., to one day of seven hours. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1998; April 15, 2001; April 15, 2003; April 15, 2004. Authority (1993) Former Local Rule 10I. New portions of Section E [1994, now Subsections G.2-8] are based on S.D.N.Y. local rule.
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Comments (1993) Section G [1994, now Section I] was modified to include all discovery motions at the recommendation of the Civil Justice Advisory Group. (1994) A., F., G.1., J. (third paragraph). The amendments are necessary in light of the December 1, 1993 amendment to Fed.R.Civ.P. 26, 32(a)(3), and 33(a). (1996)[F.1.] Rule 26.1.F.1. was added to make the timing of expert witness depositions consistent with that prescribed by Fed.R.Civ.P. 26(b)(4)(A). (1996)[I.] The “attempt to confer” language is added to mirror the obligations imposed by Fed.R.Civ.P. 37(a)(2)(A) and (B) and in recognition of the circumstance in which counsel for the moving party has attempted to confer with counsel for the opposing party, who fails or refuses to communicate. Violations of the rule, whether by counsel for the moving or opposing party, may be cause to grant or deny the discovery motion on that basis alone, irrespective of the merits of the motion, and may justify the imposition of sanctions. The sanctions language is modeled after Fed.R.Civ.P. 26(g)(3) and 37(a)(4). (1998) Rule 26.1.G.2 is amended to reflect the Court’s approval of “form” interrogatories which comply with the subject limitations of the rule. Prior Rule 26.1.H, regarding motions to compel, is renumbered Rule 26.1H.2. Rule 26.2.H.1 is added to ensure that discovery motions are filed when ripe and not held until shortly before the close of discovery or the eve of trial. Rule 26.1.K is added to limit depositions to six hours absent court order or agreement of the parties and any affected non-party witness. The rule is adopted after an eighteen month pilot program was implemented pursuant to Administrative Order 96-26. (2001) Rules 26.1.A., B, F, G and K are amended to conform with the December 2000 amendments to Rules 5, 26 and 30, Fed.R.Civ.P. Rule 26.1.I is amended to make clear that the obligation to confer in advance of moving to compel production of documents sought from a non-party by subpoena includes consultation with all parties who may be affected by the relief sought and with the non-party recipient of the subpoena. (2003) The amendment to Rule 26.1.G.3 is based on N.D. Okla. Local Rule 26.4(b) and eliminates the requirement to include on a privilege log (1) communications between a party and its counsel after commencement of the action, and (2) work product material created after commencement of the action. (2004) Local Rule 26.1.I is amended in conjunction with the amendment of Local Rule 7.1.A.3 to avoid confusion and clarify pre-filing conference obligations. RULE 30.1 SANCTIONS FOR ABUSIVE DEPOSITION CONDUCT A. The following abusive deposition conduct is prohibited: 1. Objections or statements which have the effect of coaching the witness, instructing the
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witness concerning the way in which he or she should frame a response, or suggesting an answer to the witness. 2. Interrupting examination for an off-the-record conference between counsel and the witness, except for the purpose of determining whether to assert a privilege. 3. Instructing a deponent not to answer a question except when to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under Fed.R.Civ.P. 30(d)(4). 4. Filing a motion for protective order or to limit examination without a substantial basis in law. 5. Questioning that unfairly embarrasses, humiliates, intimidates, or harasses the deponent, or invades his or her privacy absent a clear statement on the record explaining how the answers to such questions will constitute, or lead to, competent evidence admissible at trial. B. Whenever it comes to the attention of the court that an attorney or party has engaged in abusive deposition conduct, the court may appoint a special master under Fed.R.Civ.P. 53, at the expense of the attorney or person engaging in such conduct (or of both sides), to attend future depositions, exercise such authority, and prepare such reports as the court shall direct. C. The court, if it anticipates deposition abuse, may order that any deposition be taken at the courthouse or special master’s office so that, at the request of any party, witness, or counsel, any dispute may be heard and decided immediately by the court or special master. D. Whenever a judge or magistrate judge shall determine that any party or counsel unreasonably has interrupted, delayed, or prolonged any deposition, whether by excessive questioning, objecting, or other conduct, the party or its counsel, or both, may be ordered to pay each other party’s expenses, including without limitation, reasonably necessary travel, lodging, reporter’s fees, attorneys’ fees, and videotaping expenses, for that portion of the deposition determined to be excessive. In addition, that party or its counsel, or both, may be required to pay all such costs and expenses for any additional depositions or hearings made necessary by its misconduct. Adopted effective April 15, 1996; amended effective April 15, 2001. Authority (1996) Local Rule 30.1.C, District of Colorado, with minor modification to § 2. Comments (1996) The purpose of this rule is to curb unprofessional conduct at depositions. (2001) Rule 30.1.A.3 is amended to conform to the December 2000 amendment of Rule 30, Fed.R.Civ.P.
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RULE 40.1 NOTICE THAT ACTION IS AT ISSUE A. An action is at issue after any motions directed to the last pleadings served have been resolved, or if no such motions are served, 20 days after service of the last pleading. The party entitled to serve notices directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of cross-claims among the parties shall not prevent the Court from setting the action for trial on the issues raised by the complaint, answer and any counterclaim. B. All counsel shall have a continuing duty to notify the Court promptly upon an action or proceeding becoming at issue. The notice shall include a statement as to whether a jury trial has been demanded. C. This duty is in addition to the requirements set forth in Local Rule 16.1. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 10E; Fla.R.Civ.P. 1.440. RULE 41.1 DISMISSAL FOR WANT OF PROSECUTION Civil actions not at issue which have been pending without any proceedings having been taken therein for more than three months may be dismissed for want of prosecution by the Court on its own motion after notice to counsel of record. Such actions may also be dismissed for want of prosecution at any time on motion by any party upon notice to the other parties. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 13. Renumbered per Model Rules. RULE 45.1 SUBPOENAS FOR DEPOSITION AND TRIAL Subpoenas for deposition and trial shall be prepared and issued as follows: A. Counsel shall prepare all subpoenas for deposition and trial in civil cases. At the option of counsel, counsel may present them to the Clerk for issuance. Alternatively, Counsel may issue subpoenas pursuant to Rule 45, Fed.R.Civ.P., as amended effective December 1, 1991. B. Subpoenas for deposition in criminal cases may be issued only by order of court. Effective Dec. 1, 1994.
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Authority (1993) So. District Clerk’s Office; Fed.R.Civ.P. 17; Rule 45, Fed.R.Civ.P. Comments (1993) Requirement of file-stamped copy added at Clerk’s request; reflects current practice. RULE 47.1 JURIES A. Civil Cases. A jury for the trial of civil cases shall consist of at least six persons. B. Taxation of Costs. Whenever a civil case that has been set for jury trial is settled or otherwise disposed of, counsel shall so inform the office of the Judge in whose division the case is pending at least one full business day prior to the day the jury is scheduled to be selected or the trial is scheduled to commence, in order that the jurors may be notified not to attend. If such notice is not given to the Clerk’s Office, then except for good cause shown, juror costs, including attendance fees, mileage, and subsistence, may be assessed equally against the parties and their counsel, or otherwise assessed as directed by the Court. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 15. Comments (1993) Renumbered per Model Rules. RULE 62.1 APPEAL BONDS; AUTOMATIC STAY A. Appeal Bond. A supersedeas bond staying execution of a money judgment shall be in the amount of 110% of the judgment, to provide security for interest, costs, and any award of damages for delay. Upon its own motion or upon application of a party the court may direct otherwise. B. Extension of Automatic Stay When Notice of Appeal Filed. If within the ten (10) day period established by Fed.R.Civ.P. 62(a), a party files any of the motions contemplated in Fed.R.Civ.P. 62(b), or a notice of appeal, then unless otherwise ordered by the Court, a further stay shall exist for a period not to exceed thirty (30) days from the entry of the judgment or order. The purpose of this additional stay is to permit the filing of a supersedeas bond, which shall be filed by the end of the thirty (30) day period provided herein. Effective April 15, 2000.
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Comments (2000) Added to eliminate the necessity for court approval of supersedeas bonds in every case in which a money judgment has been entered by fixing a standard amount, and to specify the time by which the bond must be filed in order to stay execution. Extension of the automatic stay is modeled after W.D.Okla. Local Rule 62.1, N.D.Okla. Local Rule 62.1 and E.D.N.C. Local Rule 97.00. RULE 67.1 AUTHORIZED DEPOSITORY BANKS A. Whenever members of the Bar, litigants or any other persons or entities are directed to deposit funds within the interest-bearing Court registry, such funds shall be placed by the Clerk with the Court-designated depository bank. B. The Court-designated depository banks shall comply with all applicable statutes, orders, rules and requirements of the Court. C. All funds placed by the Clerk in the Court-designated depository bank shall earn interest at a competitive market rate negotiated by the Clerk for similar deposits. However, the Chief Judge may determine from time to time a minimum amount below which funds need not be deposited in an interest-bearing account. Deposits for attorney’s fees, costs and expenses required before the issuance of any writs of garnishment are exempt from this requirement and will be placed in a non-interest bearing U.S. Treasury account. At the time of disbursement of funds from the registry, the litigant shall advise the Court as to the proper recipient of any earned interest and prior to the release of funds shall provide the Clerk’s Financial Administrator or other designated deputy clerk with the proper tax number or tax status of the recipient for subsequent reporting to the Internal Revenue Service. D. Upon the issuance of any Order of Disbursement on the Court registry, the concerned party shall provide a copy of such Order to the Clerk’s Financial Administrator or other designated deputy. E. The Clerk shall assess a user’s fee as promulgated by the Judicial Conference of the United States on deposits in the interest-bearing Court Registry. Such fees shall be deducted at disbursement and be deposited into a special fund established to reimburse the Judiciary for maintaining registry accounts. F. Nothing in this rule shall prevent the Court from granting the motion of interested parties for special arrangements for investment of funds. If such investments are in the name of or assigned to the Clerk, the account will be subject to the collateral provisions of Treasury Circular 176 (31 C.F.R. § 202) and the requirements of Local Rule 67.1.B. as well as other applicable statutes, orders, rules and requirements of the Court. G. In any case where an Order of Court directs the Clerk to handle a specific investment in a different manner than Section C of this Rule, the interested party shall serve a copy of the Order
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upon the Clerk personally or a deputy clerk specifically designated in accordance with the wording of Federal Rule of Civil Procedure Rule 67, to-wit: “The party making the deposit shall serve the Order permitting deposit on the Clerk of this Court.” H. A party applying for the issuance of a writ of garnishment shall deposit the amount prescribed by applicable Florida law in the non-interest bearing registry of the Court. The deposit is for the attorneys’ fees of the garnishee. Once deposited, those monies shall be disbursed as follows: 1. The Clerk of Court shall pay such deposit to the garnishee (or garnishee’s counsel, if so requested) for the payment or partial payment of attorney’s fees which the garnishee expends or agrees to expend in obtaining representation in response to the writ. Such payment shall be made upon the garnishee’s demand, in writing, at any time after the service of the writ, unless otherwise directed by the Court. 2. In cases of a pre-judgment writ of garnishment, if the garnishee fails to make written demand within sixty (60) days of the conclusion of the case, including all appeals, the Clerk of Court shall return such deposit to the depositing party (or their counsel) without further order or request, unless otherwise directed by the Court. 3. In cases of a post-judgment writ of attachment, if the garnishee fails to make written demand within sixty (60) days after post-judgment proceedings on the writ have concluded, including all appeals concerning the writ, the Clerk of Court shall return such deposit to the depositing party (or their counsel) without further order or request, unless otherwise directed by the Court. 4. If garnishment cost deposit monies remain on deposit with the Clerk more than five (5) years after the conclusion of a case or post-judgment proceedings, including all appeals, and if the Clerk has made reasonable attempts to provide notice to the depositing party or to distribute those monies without success, those unclaimed monies shall be moved into the appropriate U.S. Treasury Unclaimed Funds account pursuant to 28 U.S.C. § 2042, without further order of Court. Any monies deposited with the U.S. Treasury under these provisions as unclaimed are available for immediate disbursement to any party by the Clerk upon application and further Court order. Effective Dec. 1, 1994; amended effective April 15, 2002. Authority (1993) Former Local Rule 24. Renumbered per Model Rules project. (2002) Fed..R.Civ.P. 69, Fla. Stat. §77.28, and Administrative Orders 90-104, 98-51 and 2001-69. Comments (1993) Allows Chief Judge to establish minimum amount to be interest bearing. Revised per Clerk’s Office.
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(2002) Subparagraph H. added at the request of the Clerk of the Court to clarify responsibilities and procedures for obtaining distribution of garnishment deposits. RULE 77.1 PHOTOGRAPHING, BROADCASTING, TELEVISING Other than required by authorized personnel in the discharge of official duties, all forms of equipment or means of photographing, tape-recording, broadcasting or televising within the environs of any place of holding court in the District, including courtrooms, chambers, adjacent rooms, hallways, doorways, stairways, elevators or offices of supporting personnel, whether the Court is in session or at recess, is prohibited; provided that photographing in connection with naturalization hearings or other special proceedings, as approved by a Judge of this Court, will be permitted. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 20. Renumbered per Model Rules. recommended that a rule be included in Fed.R.Civ.P. Model Rules Project has
RULE 77.2 RELEASE OF INFORMATION IN CRIMINAL AND CIVIL PROCEEDINGS A. By Attorneys. 1. It is the duty of the lawyer or law firm not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which the lawyer or the firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. 2. With respect to a grand jury or other pending investigation of any criminal matter, a lawyer participating in or associated with the investigation shall refrain from making any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, that goes beyond the public record or that is not necessary to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, or otherwise to aid in the investigation. 3. From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information, or indictment in any criminal matter until the commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:
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(a) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused’s name, age, residence, occupation, and family status, and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid apprehension or to warn the public of any dangers the accused may present. (b) The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement. (c) The performance of any examinations or tests or the accused’s refusal or failure to submit to an examination or test. (d) The identity, testimony, or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law. (e) The possibility of a plea of guilty to the offense charged or a lesser offense. (f) Any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case. The foregoing shall not be construed to preclude the lawyer or law firm during this period, in the proper discharge of the lawyer’s or its official or professional obligations, from announcing the fact and circumstances of arrest (including time and place of arrest, resistance, pursuit, and use of weapons), the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission, or statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charged; from quoting or referring without comment to public records of the Court in the case; from announcing the scheduling or result of any stage in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against the accused. 4. During the trial of any criminal matter, including the period of selection of the jury, no lawyer or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial which a reasonable person would expect to be disseminated by means of public communication, except that the lawyer or law firm may quote from or refer without comment to public records of the Court in the case. 5. After the completion of a trial or disposition without trial of any criminal matter, and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall refrain from making or authorizing any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will affect the imposition of sentence.
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6. Nothing in this rule is intended to preclude the formulation or application of more restrictive rules relating to the release of information about juvenile or other offenders, to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies, or to preclude any lawyers from replying to charges of misconduct that are publicly made against the lawyer or law firm. 7. A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates (a) Evidence regarding the occurrence or transaction involved. (b) The character, credibility, or criminal record of a party, witness, or prospective witness. (c) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (d) The lawyer’s opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule. (e) Any other matter reasonably likely to interfere with a fair trial of the action. B. By Courthouse Personnel. All courthouse personnel, including the marshal, deputy marshals, the court clerk, deputy court clerks, probation officers, and court reporters, law clerks, and secretaries, among others, are prohibited from disclosing to any person, without authorization by the Court, information relating to a pending criminal proceeding that is not part of the public records of the Court. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 21. Rule 4-3.6 of the Rules Regulating The Florida Bar. Comments (1993) Renumbered per Model Rules. Model Rules Project recommends statement at 87 F.R.D. 519, 525-27 (1980). Changed gender specific language. RULE 87.1 AUTHORITY OF BANKRUPTCY JUDGES TO MAKE LOCAL RULES The bankruptcy judges of the United States Bankruptcy Court in this district may, by action of a majority of the bankruptcy judges, make local rules of practice and procedure to govern all cases,
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proceedings and other matters in the bankruptcy court. Effective Dec. 1, 1994. Comments (1993; minor stylistic revisions 1996) Rule 9029 of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bankr.P.”) provides that the District Court may promulgate local rules governing bankruptcy practice, or may authorize the bankruptcy judges to promulgate such rules. Rule 9029 does not suggest that such a delegation of authority to the bankruptcy judges requires a local District Court rule, but might assist readers of the District Court local rules if this rule were included. At the least, a general order signed by a majority of the District Court judges is necessary. The recognized limitations on the scope of local bankruptcy court rules, and the procedural mechanism for promulgating those rules, need not be repeated in this rule or order. They are provided in Rule 9029, Fed.R.Bankr.P., adopting Rule 83, Fed.R.Civ.P. The one area of bankruptcy practice which is governed throughout the country by local rule is bankruptcy appellate procedure, as to which district court local rules are authorized by Rule 8018, Fed.R.Bankr.P. RULE 87.2 REFERENCE OF BANKRUPTCY MATTERS Pursuant to 28 U.S.C. § 157(a) and the General Order of Reference entered July 11, 1984, all cases arising under Title 11 of the United States Code, and proceedings arising in or related to cases under Title 11, United States Code, have been referred to the bankruptcy judges for this district and shall be commenced in the bankruptcy court pursuant to the local bankruptcy rules. The General Order of Reference also applies to notices of removal pursuant to 28 U.S.C. § 1452(a) which shall be filed with the clerk of the bankruptcy court for the division of the district where such civil action is pending. The removed claim or cause of action shall be assigned as an adversary proceeding in the bankruptcy court. Former Rule 87.2 amended and renumbered as Rule 87.4, and new Rule 87.2 adopted effective April 15, 1996. Comments (1996) This new rule codifies the General Order of Reference, and explains the filing procedure for referred cases. RULE 87.3 MOTIONS FOR WITHDRAWAL OF REFERENCE OF CASE OR PROCEEDING FROM THE BANKRUPTCY COURT A motion to withdraw the reference pursuant to 28 U.S.C. § 157(d) shall be filed with the clerk of the bankruptcy court in accordance with the requirements of local bankruptcy rule 5011-1.
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Subsequently filed motions for withdrawal of reference in the same case or proceeding shall be regarded as similar actions and proceedings under Rule 3.9 and the attorneys of record shall notify the District Court of all such pending actions and proceedings in compliance with Rule 3.9.D. and, if applicable, provide the notice required by Rule 7.1.F. Upon disposition of a motion for withdrawal of reference the District Court Clerk shall transmit a copy of the order to the clerk of the bankruptcy court. Adopted effective April 15, 1996; amended effective April 15, 1999. Comments (1996) This new rule specifies the proper court for filing motions for withdrawal of reference. By stating all motions to withdraw reference in the same case or proceeding are “similar” and, therefore, require the parties to comply with Rule 3.9.D, the District Court can consolidate these related motions to eliminate the possibility of conflicting orders from different judges addressing the same issue. The second paragraph has been added because it is critical that the bankruptcy court be promptly advised of whether the reference has been withdrawn in whole or in part, since adversary proceedings and cases are not stayed by the filing of a motion to withdraw the reference. (1999) Amended to reflect renumbered local bankruptcy rules effective December 1, 1998. RULE 87.4 BANKRUPTCY APPEALS Bankruptcy appeals to the District Court are governed by the Federal Rules of Bankruptcy Procedure, particularly Rules 8001 through 8020, and the local rules of the bankruptcy court. As is authorized by Rule 8018, those rules are supplemented as follows: A. Assignment. Appeals from orders or judgments entered by the bankruptcy court shall generally be assigned in accordance with Rule 3.4. Appeals from orders in a bankruptcy case or proceeding in which appeals have been taken from prior orders in the same case or proceeding shall be regarded as similar actions and proceedings under Rule 3.9 and it will be the continuing obligation of the District Court Clerk and the attorneys of record to comply with Rule 3.9.D. B. Limited Authority of Bankruptcy Court to Dismiss Appeals Prior to Transmittal of Record to District Court. The bankruptcy court is authorized and directed to dismiss an appeal for (1) appellant’s failure to pay the prescribed filing fees; (2) failure to comply with the time limitations specified in Rule 8002, Fed.R.Bankr.P.; and (3) appellant’s failure to file a designation of the items for the record or copies thereof or a statement of the issues as required by Rule 8006, Fed.R.Bankr.P. and local bankruptcy rule 8006-1. The bankruptcy court is further authorized and directed to hear, under Rule 9006(b), Fed.R.Bankr.P., motions to extend the foregoing deadlines and to consolidate appeals which present similar issues from a common record. Bankruptcy court orders entered under this subsection may be reviewed by the District Court on motion filed in the District Court within 10 days after entry of the order sought to be reviewed pursuant to subsection C of this rule.
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C. Motions for Stay and Other Intermediate Requests for Relief. Motions for stay pending appeal pursuant to Rule 8005, Fed.R.Bankr.P., motions to review bankruptcy court orders entered under Rule 9006(b), Fed.R.Bankr.P., and other motions requesting intermediate relief as set forth in FRBP 8007(c), shall be accepted for filing in the District Court and shall be assigned a miscellaneous memo case number which will apply only to the motion. No filing fee shall be charged in the District Court. The District Court Clerk shall immediately notify the clerk of the bankruptcy court of the assigned case number and judge. When the record on appeal is transmitted it will be assigned a new case number but will be assigned to the same judge who considered the motion. The movant shall provide copies of any relevant portions of the bankruptcy court record necessary for the District Court to rule on the motion. It shall be the duty of the District Court Clerk to immediately transmit a copy of the order ruling on said motion to the clerk of the bankruptcy court. Rule 7.1 shall apply to motions for stay and other motions seeking intermediate appellate relief from this Court. D. Motions for Leave to Appeal. A motion for leave to appeal shall be filed in the bankruptcy court pursuant to local bankruptcy rule 8003-1. Upon transmittal of the motion and related documents to the District Court the matter shall be assigned in the same manner as other miscellaneous motions described in subsection C above. Upon disposition of the motion, the District Court Clerk shall immediately transmit a copy of the District Court order to the clerk of the bankruptcy court. If the motion is granted the clerk of the bankruptcy court will proceed to prepare and transmit the record on appeal. A new District Court case number will be assigned to the appeal but it will be assigned to the same judge who granted the motion for leave to appeal. E. Briefs. 1. Briefing Schedule. The briefing schedule specified by Rule 8009, Fed.R.Bankr.P. may be altered only by order of the District Court. If the Clerk of the District Court does not receive appellant’s brief within the time specified by Rule 8009, Fed.R.Bankr.P., and there is no motion for extension of time pending, the Clerk shall furnish to the judge to whom the appeal is assigned a proposed order for dismissal of the appeal. 2. Length of Briefs. Absent prior permission from this Court, the Appellant’s initial or principal briefs and the Appellee’s response or principal brief shall not exceed 25 pages in length, and Appellant’s reply briefs, if any, shall not exceed 15 pages. F. Oral Argument. Any party requesting oral argument shall make the request within the body of the principal or reply brief, not by separate motion. The setting of oral argument is within the discretion of the District Court. G. Judgment. Upon receipt of the District Court’s opinion, the District Court Clerk shall enter judgment in accordance with Rule 8016(a), Fed.R.Bankr.P. and in accordance with Rule 8016(b),
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Fed.R.Bankr.P., shall immediately transmit to each party and to the clerk of the bankruptcy court a notice of entry together with a copy of the District Court’s opinion. H. Appeal. If an appeal remains pending three months after its entry on the District Court docket, the Clerk of the District Court shall advise the Judge of the status of the appeal. I. Notice. The bankruptcy court clerk is directed to enclose a copy of this rule with the notice of appeal provided to each party in accordance with Rule 8004, Fed.R.Bankr.P. Failure to receive such a copy will not excuse compliance with all provisions of this rule. J. Court Discretion. This rule is not intended to exhaust or restrict the District Court’s discretion as to any aspect of any appeal. Former Rule 87.2 amended and renumbered as new Rule 87.4, effective April 15, 1996; amended effective April 15, 1999. Authority Former Local Rule 27; (1996) renumbered from 87.2 (1993). Comments (1996)A. This revision clarifies the procedure for assignment of appeals from subsequent orders in a bankruptcy case or proceeding in which there have been appeals of prior orders. The appeals of subsequent orders will be randomly assigned but treated as “similar actions” under Rule 3.9.C and 3.9.D. B. This rule has been amended to expand the bankruptcy court’s authority to dismiss an appeal for the appellant’s failure to pay the filing fee required for a notice of appeal and failure to provide copies of every item designated as required by Rule 8006, Fed.R.Bankr.P. It also clarifies the means for review of orders entered under Rule 9006(b), Fed.R.Bankr.P., by referencing new subsection C below. C. This procedure provides a means for litigants to request intermediate relief from the District Court after the notice of appeal has been filed but before the record on appeal is transmitted to the District Court. It also clarifies that no fee will be charged in the District Court for these intermediate requests for relief. This rule further provides for the subsequent assignment of the appeal to the same judge. This should conserve judicial resources since, for example, the disposition of a motion for stay pending appeal will usually require the judge to become familiar with the issues on appeal. D. Adds reference to the local bankruptcy rule for filing motions for leave to appeal, provides for assignment in the District Court and clarifies that a new case number will be assigned for the appeal.
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This rule further provides for the subsequent assignment of the appeal to the same judge. This should conserve judicial resources since the disposition of a motion for leave to appeal will usually require the judge to become familiar with the issues on appeal. E. Replaces old 87.2.C. Rule 8010(c), Fed.R.Bankr.P., provides authority to the District Court to specify different page limits for briefs. This rule supersedes the page limit specified in Rule 8010, Fed.R.Bankr.P. This rule also distinguishes the page limitations for bankruptcy appellate briefs from memoranda of law as provided in Rule 7.1.C.2. Also, minor stylistic revisions to entire rule. (1999) Amended to reflect renumbered local bankruptcy rules effective December 1, 1998. RULE 87.5 DESIGNATION OF BANKRUPTCY JUDGES TO CONDUCT JURY TRIALS The Bankruptcy Judges of this District are specially designated to conduct jury trials, with the express consent of all parties, in all proceedings under 28 U.S.C. § 157 in which the right to a jury trial applies. Pleading and responding to a jury trial demand in bankruptcy cases is governed by local bankruptcy rule 9015-1. Local Rule 47.1 shall apply to jury trials conducted by Bankruptcy Judges under this rule. Effective April 15, 1999. Comments (1999) Incorporates the provisions of Administrative Order 96-03 “In re: Bankruptcy Judges to Conduct Jury Trials.” Designation of
RULE 88.1 APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN CRIMINAL PROCEEDINGS The appointment of counsel and counsel’s obligations in the representation of indigent defendants in criminal proceedings pursuant to Rule 44, Fed.R.Crim.P., shall be in accordance with the “Plan of the United States District Court for the Southern District of Florida Pursuant to the Criminal Justice Act of 1964, as Amended.” Copies of the current plan are available in the office of the Clerk of the Court. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 17, updated. Comments (1993) Changes person charged with maintaining copies to Clerk.
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RULE 88.2 PETITIONS FOR WRITS OF HABEAS CORPUS, MOTIONS PURSUANT TO 28 U.S.C. § 2241, MOTIONS PURSUANT TO 28 U.S.C. § 2255 AND PRISONER COMPLAINTS PURSUANT TO 42 U.S.C. § 1983 1. The following kinds of petitions and complaints shall be on forms prescribed by the Court and obtained from the Clerk upon request: A. Petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2241 (common law habeas corpus) B. Petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254 (state prisoner attacking conviction) C. Motions to Vacate pursuant to 28 U.S.C. § 2255 (federal prisoner attacking conviction) D. Civil rights complaint pursuant to 42 U.S.C. § 1983 (Constitutional deprivation under color of state law) E. Civil rights complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (Constitutional deprivation under color of federal law) An original and one copy of the petition, motion, or complaint, fully completed, signed and, with respect to those petitions and motions set forth in 1-3 above, verified, together with the filing fee, if any, shall be addressed to the appropriate division of the Clerk’s office. 2. When a petition, motion to vacate, or complaint is submitted in forma pauperis the petitioner/plaintiff shall complete the forma pauperis affidavit attached to the forms and shall, under oath, set forth information which establishes that he or she is unable to pay the fees and costs of the proceedings referenced above. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 18. Comments (1994) Revised to add Bivens actions, delete implication that federal prisoners can attack prison conditions in a § 2241 petition, and requiring verification of certain petitions.
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RULE 88.3 PETTY OFFENSES-PUBLIC BUILDINGS A. Collateral and Mandatory Appearance. 1. Petty offenses, as defined in 18 U.S.C. § 1, which are committed on or within the perimeter of Federally-owned or controlled buildings, for which collateral may be posted and forfeited in lieu of appearance by the person charged, together with the amount of collateral to be posted and offenses for which a mandatory appearance is required shall be in accordance with schedules which may from time to time be approved by the Court and filed with the Clerk. 2. Collateral may not be posted for any designated offense if the alleged violator has previously been convicted of any such offense. B. Forfeiture of Collateral. 1. Any person issued a violation notice for a petty offense for which collateral can be posted may, upon request of the issuing officer, post the required amount by placing cash, personal check or money order in the official violation notice envelope and, after sealing same, delivering it to authorized personnel at a designated office where a receipt will be given. All such envelopes received will be forwarded via mail each day, except for those containing cash which shall be personally delivered to the Clerk of this Court. 2. The posting of collateral shall signify that the offender does not wish to contest the charge nor request a hearing before the Judge. Collateral so posted shall be forfeited to the United States of America and such forfeiture will be tantamount to a finding of guilt. C. Failure to Post Collateral. 1. If a person charged with an offense for which collateral is required fails to post and forfeit collateral any punishment, including fine, imprisonment or probation may be imposed within the limits established by law upon conviction by plea or after trial. 2. No person shall be detained for failure to post collateral for a petty offense for which collateral may be posted unless he or she is placed under arrest. D. Arrest. Nothing contained in these Rules shall prohibit a law enforcement officer from arresting an alleged violator for the commission of any offense, including those for which collateral may be posted or mandatory appearance required, and forthwith notifying a Magistrate Judge for the purpose of appearance or setting bail. (Schedule of fines and mandatory appearance, on file with office of Clerk and agencies charged with enforcement thereof.) Effective Dec. 1, 1994.
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Authority (1993) Former Local Rule 22. Effective date of schedule updated. Comments (1993) Cash to be delivered to Clerk rather than Magistrate Judge. RULE 88.4 CERTAIN OFFENSES PERTAINING TO--NATIONAL PARKS, PRESERVES, GOVERNMENT RESERVATIONS, HISTORIC SITES, TREATIES AND WILDLIFE ACTS A. Covered Offenses. This Rule shall apply to petty offenses, as defined in 18 U.S.C. § 1, and to certain misdemeanors as shall be identified from time to time by the Court in collateral schedules. Collectively, these petty offenses and identified misdemeanors shall be referred to for purposes of the Rule as “covered offenses”. B. Collateral and Mandatory Appearance. 1. Covered offenses which are committed within the boundaries of National Parks, Preserves, Historic Sites, or Government Reservations, including but not limited to military installations and violations under the various Treaties and Wildlife Acts, for which collateral may be posted and forfeited in lieu of appearance by the person charged, together with amounts of collateral to be posted and offenses for which a mandatory appearance is required, shall be in accordance with schedules which may from time to time be approved by the Court and filed with the Clerk. 2. Collateral may not be posted for any covered offense if the alleged violator has previously been convicted of any such offense. C. Forfeiture of Collateral. 1. Any person issued a violation notice for a covered offense for which collateral can be posted may, upon request of the issuing officer, post the required amount by placing cash, personal check or money order in the official violation notice envelope and, after sealing same, delivering it to authorized personnel at a designated office where a receipt will be given. All such envelopes received will be forwarded via mail each day, except for those containing cash which shall be personally delivered to the Clerk of this Court. 2. The posting of collateral shall signify that the offender does not wish to appear nor request a hearing before the Judge. Collateral so posted shall be forfeited to the United States of America and the proceedings shall be terminated. D. Failure to Post Collateral. 1. If a person charged with a covered offense for which collateral is required fails to post and forfeit collateral any punishment, including fine, imprisonment or probation may be imposed within the limits established by law upon conviction by plea or after trial.
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2. No person shall be detained for failure to post collateral for a covered offense for which collateral may be posted unless the person is placed under arrest. E. Arrest. Nothing contained in these Rules shall prohibit a law enforcement officer from arresting an alleged violator for the commission of any offense, including those for which collateral may be posted or mandatory appearance required, and forthwith notifying a Magistrate Judge for the purpose of appearance or setting bail. (Schedule of fines and mandatory appearance on file with office of Clerk and agencies charged with enforcement thereof.) Effective Dec. 1, 1994; amended effective April 15, 2000. Authority (1993) Former Local Rule 23. Comments (1993) Cash to be delivered to Clerk rather than Magistrate Judge. (2000) Encompasses certain misdemeanors as well as petty offenses. RULE 88.5 SPEEDY TRIAL A. Waiver of Sanctions. A court may accept a defendant’s waiver of the provisions of the Speedy Trial Act if made either in writing or orally, in open court, on the record. A form written rights waiver is set forth in Appendix C to these rules. B. Speedy Trial Reports. Counsel for the Government and counsel for each defendant shall, within twenty (20) days after arraignment and every twenty (20) days thereafter until trial or plea of guilty or nolo contendere, file with the Court a status report as to each defendant which shall include a concise statement of: 1. All excludable time as recorded on the docket on which there is agreement, including the applicable statutes. Such agreement shall be conclusive as between the parties, unless it has no basis in fact or law. 2. All excludable time as recorded on the docket on which there is conflict, including the applicable statutes or law. 3. Computation of the gross time, excludable time, net time remaining, and the final date upon which the defendant can be tried in compliance with the Speedy Trial Plan of this Court.
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4. Any agreement by the parties as to excludable time which exceeds the amount recorded on the docket shall have no effect unless approved by the Court. Effective Dec. 1, 1994; amended effective April 15, 1998; April 15, 1999. Authority (1993) Former Local Rule 25. 18 U.S.C. § 3161. Comments (1993) Renumbered per Model Rules. (1998) Rule 88.5.A is amended to correct a scrivener’s error. The Advisory Committee on Rules and Procedure recommends, but the rule does not require, that an oral waiver of right be accompanied by the execution of a form rights waiver. Such form rights waivers may be made available in courtrooms in this district by the clerk of the court. (1999) A form rights waiver is included. Use of the form may require individualization, or time limits, on a case-by-case basis. RULE 88.6 DANGEROUS SPECIAL OFFENDER NOTICE In any case within the District wherein a notice is to be filed under 18 U.S.C. § 3575 or 21 U.S.C. § 849 which alleges the existence of a defendant who is a dangerous special offender, such notice shall be filed with the Clerk of the Court in a sealed envelope, the outside of which states the regularly assigned case number and Assistant United States Attorney. In addition to the statutory notice, the envelope shall contain an affidavit from the Assistant United States Attorney stating the information contained in the notice has been disclosed to the defendant and defendant’s counsel, date of disclosure, and any other facts relevant to the disclosure. The Clerk of the Court shall retain the sealed envelope in a file which is separate from the regular criminal files and docket sheets. This file shall not be subject to subpoena or public inspection during the pendency of the criminal matter. Applications for modification of this procedure should be directed to the Chief Judge of the District or designated substitute. This rule shall not affect the statutory right of the interested parties to consent to early disclosure of the notice. Effective Dec. 1, 1994. Authority (1993) Former Local Rule 26. Comments (1993) Renumbered per Model Rules. 21 U.S.C. § 849 was repealed by Pub.L. 98-473, effective
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October 1, 1987. The Sentencing Reform Act requires the Sentencing Commission to specify sentences at or near the maximum term for offenders with prior convictions. RULE 88.7 RETAINED CRIMINAL DEFENSE ATTORNEYS Retained criminal defense attorneys are expected to make financial arrangements satisfactory to themselves and sufficient to provide for representation of each defendant until the conclusion of the defendant’s case at the trial level. Failure of a defendant to pay sums owed for attorney’s fees, or failure of counsel to collect a sum sufficient to compensate him for all the services usually required of defense counsel, will not constitute good cause for withdrawal after arraignment. Every defendant, of course, has a right to appeal from any conviction. All notices of permanent appearance in the District Court, and motions for substitution of counsel, shall state whether the appearance of counsel is for trial only or for trial and appeal. At arraignment, the Magistrate Judge will inquire of each defendant and counsel whether counsel has been retained for trial only or for trial and appeal. Where counsel indicates that he or she has been retained only for trial, the defendant will be notified that it is the defendant’s responsibility to arrange for counsel for any necessary appeals. In cases where the defendant moves the court to proceed in forma pauperis on appeal, or for appointment of Criminal Justice Act appellate counsel, the Court will consider, in passing upon such applications, factors such as (1) the defendant’s qualified Sixth Amendment right to counsel of choice, recognizing the distinction between choosing a trial lawyer and choosing an appellate lawyer; (2) the contract between the defendant and trial counsel; (3) the defendant’s present financial condition and ability to have retained only trial counsel; (4) retained counsel’s appellate experience; (5) the financial burden that prosecuting the appeal would impose upon trial counsel, in view of the fee received and the professional services rendered; and (6) all other relevant factors, including any constitutional guarantees of the defendant. In assessing whether the legal fees previously paid to defense counsel should reasonably encompass appellate representation, the Court is to apply the provisions of Rule 4-1.5 of the Rules Regulating The Florida Bar. The Court is to consider the following factors as guides in determining the reasonableness of the fee: (1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service proffered; (2) the likelihood that the acceptance of the particular employment precluded other employment by the lawyer; (3) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; (4) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; (5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (6) the nature and length of the professional relationship of the client; and (7) the experience, reputation, diligence and ability of the lawyer or lawyers performing the service and the skill, expertise or efficiency of efforts reflected in the actual providing of such services.
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In determining a reasonable fee, the time devoted to the representation and the customary rate of fee are not the sole or controlling factors; nor should the determination be governed by fees or rates of fee provided under the Criminal Justice Act. All factors set out in this Rule and in the Rules Regulating The Florida Bar should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors. All proceedings undertaken, and determinations made, pursuant to this Rule, shall be in camera, ex-parte and under seal. All such proceedings and determinations shall be strictly confidential, and not subject to disclosure by subpoena or otherwise. Effective Dec. 1, 1994. Authority (1993) This rule is new in its entirety. Added at the request of the Eleventh Circuit. RULE 88.8 PRESENTENCE INVESTIGATIONS 1. The sentencing proceedings shall be scheduled by each District Judge no earlier than seventy (70) days following entry of a guilty plea or a verdict of guilty. 2. The PSI, including guideline computations, shall be completed and made available for disclosure to the attorneys for the parties at least thirty-five (35) days prior to the scheduled sentencing proceedings, unless the defendant waives this minimum period. 3. Within five (5) days following entry of a guilty plea or a verdict of guilty, counsel for the defendant and the probation officer will have made arrangements for the initial interview of the defendant for the PSI. 4. Within fourteen (14) days of receipt of the report, counsel for the defendant and the government must communicate any objections, in writing, to each other and to the probation officer. The probation officer may meet with counsel and the defendant to discuss the objections and may conduct a further investigation and revise the report as appropriate. 5. Seven (7) days prior to the sentencing proceeding, the probation officer must submit to the court the final report and an addendum containing unresolved issues. The PSI, if revised, and the addendum will also be made available to all counsel. 6. Counsel for the parties shall confer no later than seven (7) days prior to the scheduled sentencing hearing proceeding with respect to the anticipated length of the sentencing and the number of witnesses to be called. If either party reasonably anticipates that the sentencing proceeding will exceed one (1) hour, the party shall file a notice with the Clerk of Court and shall hand deliver a courtesy copy to the United States Probation Office no later than five (5) days prior to the sentencing proceeding. The notice shall advise the Court of the number of witnesses to be called and the estimated time required for the sentencing proceeding. Additionally, counsel for the parties shall file within the same time period any notice for enhancement of sentence or requests for departure.
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7. The recommendation as to sentencing made to the Court by the United States Probation Office shall remain confidential. 8. Counsel for the parties may retain the PSI in their custody, and counsel for the defendant shall provide a copy to the defendant. However, the PSI is a confidential document and neither the parties nor their counsel are authorized to duplicate or disseminate it to third parties without prior permission of the Court. Effective Dec. 1, 1994. Authority Administrative Order 95-02. RULE 88.9 MOTIONS IN CRIMINAL CASES A. Motions in criminal cases are subject to the requirements of, and shall comply with, Local Rule 7.1. with the following exceptions: Section 7.1A(3). which is superseded by this Rule. Section 7.1B. which pertains to hearings. Hearings on criminal motions may be set by the Court upon appropriate request or as required by the Federal Rules of Criminal Procedure and/or Constitutional Law. In addition, at the time of filing motions in criminal cases, counsel for the moving party shall file with the Clerk a statement certifying either: (a) that counsel have conferred in a good faith effort to resolve the issues raised in the motion and have been unable to do so; or (b) that counsel for the moving party has made reasonable effort (which shall be identified with specificity in the statement) to confer with the opposing party but has been unable to do so. B. Motions in criminal cases which require evidentiary support shall be accompanied by a concise statement of the material facts upon which the motion is based. C. Motions in criminal cases shall be filed within 28 days from the arraignment of the defendant to whom the motion applies, except that motions arising from a post-arraignment event shall be filed within a reasonable time after the event. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 1998; April 15, 2003. Authority (1994) Formerly Local Rule 10G; inadvertently omitted in 1993 revision.
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(1996) B. From Local Rule 7.5 and former Local Rule 10.H. Comments (1996) A. Removes any explicit requirement for consultation directly between government attorney and self-represented defendant. B. Reinstates requirement of a statement of facts for certain criminal motions. (1997) [A.] Explicitly incorporates into Rule 88.9 applicable portions of Rule 7.1. (1998) Rule 88.9 C is added to reflect the filing time previously prescribed by the Standing Order on Criminal Discovery of the Southern District, with additional flexibility for motions arising from later events. (2003) Subsection A amended for clarification and to harmonize with Rule 7.1.A.3. RULE 88.10 CRIMINAL DISCOVERY A. The government shall permit the defendant to inspect and copy the following items or copies thereof, or supply copies thereof, which are within the possession, custody or control of the government, the existence of which is known or by the exercise of due diligence may become known to the government: 1. Written or recorded statements made by the defendant. 2. The substance of any oral statement made by the defendant before or after his arrest in response to interrogation by a then known-to-be government agent which the government intends to offer in evidence at trial. 3. Recorded grand jury testimony of the defendant relating to the offenses charged. 4. The defendant’s arrest and conviction record. 5. Books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are material to the preparation of the defendant’s defense, or which the government intends to use as evidence at trial to prove its case in chief, or which were obtained from or belonging to the defendant. 6. Results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with this case. B. The defendant shall permit the government to inspect and copy the following items, or copies thereof, or supply copies thereof, which are within the possession, custody or control of the defendant, the existence of which is known or by the exercise of due diligence may become known to the defendant:
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1. Books, papers, documents, photographs or tangible objects which the defendant intends to introduce as evidence in chief at trial. 2. Any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case which the defendant intends to introduce as evidence in chief at trial, or which were prepared by a defense witness who will testify concerning the contents thereof. 3. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, or intends to introduce expert testimony relating to a mental disease, or defect or other mental condition bearing on guilt or, in a capital case, punishment, he shall give written notice thereof to the government. C. The government shall reveal to the defendant and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976). D. The government shall disclose to the defendant the existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective government witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972) and Napue v. Illinois, 360 U.S. 264 (1959). E. The government shall supply the defendant with a record of prior convictions of any alleged informant who will testify for the government at trial. F. The government shall state whether defendant was identified in any lineup, showup, photospread or similar identification proceeding, and produce any pictures utilized or resulting therefrom. G. The government shall advise its agents and officers involved in this case to preserve all rough notes. H. The government shall advise the defendant of its intention to introduce during case in chief proof of evidence, pursuant to Rule 404(b), Federal Rules of Evidence. I. The government shall state whether the defendant was an aggrieved person, as defined in Title 18, United States Code, Section 2510(11), of any electronic surveillance, and if so, shall set forth in detail the circumstances thereof. J. The government shall have transcribed the grand jury testimony of all witnesses who will testify for the government at the trial of this cause, preparatory to a timely motion for discovery. K. The government shall, upon request, deliver to any chemist selected by the defense, who is presently registered with the Attorney General in compliance with Title 21, United States Code,
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Sections 822 and 823, and 21 C.F.R. Section 101.22(8), a sufficient representative sample of any alleged contraband which is the subject of this indictment, to allow independent chemical analysis of such sample. L. The government shall permit the defendant, his counsel and any experts selected by the defense to inspect any automobile, vessel, or aircraft allegedly utilized in the commission of any offenses charged. Government counsel shall, if necessary, assist defense counsel in arranging such inspection at a reasonable time and place, by advising the government authority having custody of the thing to be inspected that such inspection has been ordered by the court. M. The government shall provide the defense, for independent expert examination, copies of all latent fingerprints or palm prints which have been identified by a government expert as those of the defendant. N. The government shall, upon request of the defendant, disclose to the defendant a written summary of testimony the government reasonably expects to offer at trial under Rules 702, 703, or 705 of the Federal Rules of Evidence. This summary must describe the witnesses’ opinions, the bases and the reasons therefor, and the witnesses’ qualifications. If the defendant seeks and obtains discovery under this paragraph, or if the defendant has given notice under Rule 12.2(b) of the Federal Rules of Criminal Procedure, of an intent to present expert testimony on the defendant’s mental condition, the defendant shall, upon request by the government, disclose to the government a written summary of testimony the defendant reasonably expects to offer at trial under Rules 702, 703, 705 or 12.2(b), describing the witnesses’ opinions, the bases and the reasons for these opinions, and the witnesses’ qualifications. O. The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth and existence of which is not contested and the early resolution of which will expedite the trial. P. The parties shall collaborate in preparation of a written statement to be signed by counsel for each side, generally describing all discovery material exchanged, and setting forth all stipulations entered into at the conference. No stipulations made by defense counsel at the conference shall be used against the defendant unless the stipulations are reduced to writing and signed by the defendant and his counsel. This statement, including any stipulations signed by the defendant and his counsel, shall be filed with the Court within five (5) days following the conference. Q. Schedule of Discovery. 1. Discovery which is to be made in connection with a pre-trial hearing other than a bail or pre-trial detention hearing shall be made not later than 48 hours prior to the hearing. Discovery which is to be made in connection with a bail or pre-trial detention hearing shall be made not later than the commencement of the hearing. 2. Discovery which is to be made in connection with trial shall be made not later than fourteen (14) days after the arraignment, or such other time as ordered by the court.
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3. Discovery which is to be made in connection with post-trial hearings (including, by way of example only, sentencing hearings) shall be made not later than seven (7) days prior to the hearing. This discovery rule shall not affect the provisions of S.D.Fla.L.R. 88.8 regarding pre-sentence investigation reports. It shall be the continuing duty of counsel for both sides to immediately reveal to opposing counsel all newly discovered information or other material within the scope of this Rule. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1998; April 15, 2000; April 15, 2003. Authority (1994) Former Standing Order on Criminal Discovery of the Southern District, as amended after public hearing in 1994. (1996) A.5. revised to include provisions of Rule 16(a)(1)(C), Fed.R.Crim.P. (1998) Section N is revised to conform to amendments to Rule 16(a)(1)(E) and (b)(1)(C)(ii), Fed.R.Crim.P. Section Q.2 is amended to effectuate discovery within 14 days or arraignment, without the entry of a Court order, or within such other time period as the Court may order. Comments (2000) With regard to discovery practices related to search warrants in criminal cases see September 7, 1999 letter from the then United States Attorney for the Southern District of Florida which has been posted at the U.S. Attorney’s web site at http://www.usdoj.gov/usao/fls/Discovery_Practices.html. (2003) B.3 amended to conform to 2002 amendment of Fed.R.Crim.P.12.2.
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APPENDICES APPENDIX A. DISCOVERY PRACTICES HANDBOOK ADMINISTRATIVE ORDER 96-36. ADOPTION OF DISCOVERY PRACTICES HANDBOOK AS APPENDIX TO LOCAL RULES The attached Discovery Practices Handbook was prepared by the Federal Courts Committee of the Dade County Bar Association for the guidance of the members of the Bar. The Court’s Advisory Committee on Rules and Procedures has recommended that the Discovery Practices Handbook be adopted as a published appendix to the Local General Rules. Upon consideration of this recommendation, it is hereby ORDERED as follows: 1. This Order and the Discovery Practices Handbook, in the form attached to this Order, shall be published as an appendix to the Local General Rules. 2. The practices set forth in the Discovery Practices Handbook shall not have the force of law, but may be looked to by practitioners for guidance in conducting discovery in this District. 3. In the event of any conflict between the provisions of the Discovery Practices Handbook and applicable case, rule, or statutory law, counsel should look first to the applicable authority to determine proper discovery practice. 4. No provision of the Discovery Practices Handbook shall limit the discretion of a District or Magistrate Judge to provide for different practices in cases before that Judge. DONE AND ORDERED in Chambers at the United States Federal Building and Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida this 27th day of June, 1996. Dated June 27, 1996. I. DISCOVERY IN GENERAL A. Courtesy and Cooperation Among Counsel. (1) Courtesy. Discovery in this District is normally practiced with a spirit of cooperation and civility. Local lawyers and the Court are proud of the courteous practice that has been traditional in the Southern District. Courtesy suggests that a telephone call is appropriate before taking action that might be avoided by agreement of counsel. (2) Scheduling. A lawyer shall normally attempt to accommodate the calendars of opposing lawyers in scheduling discovery.
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(3) Stipulations. The parties may stipulate in writing to modify any practice or procedure governing discovery, except that the parties may not make stipulations extending the time to answer interrogatories, extending the time to produce documents, and extending the time by a request for admissions must be answered where the stipulation would interfere with any time set for completion of discovery, for hearing a motion, or for trial. Stipulations that would so interfere may be made only with court approval. See Fed.R.Civ.P. 29. (4) Withdrawal of Motions. If counsel are able to resolve their differences after a discovery motion or response is filed, the moving party should file a notice of withdrawal of the motion to avoid unnecessary judicial labor. (5) Mandatory Disclosure. The disclosure requirements imposed by Fed.R.Civ.P. 26(a)(1)(4), and the early discovery moratorium imposed by Fed.R.Civ.P. 26(d), are applicable to civil proceedings in the Southern District of Florida. B. Filing of Discovery Materials. (1) General Rule. In accordance with Rule 5(d), Fed.R.Civ.P., and Local General Rule 26.1.B, Southern District of Florida, disclosures under Rule 26(a)(1) or (2), Fed.R.Civ.P., and discovery materials shall not be filed with the Court as a matter of course. Disclosures and discovery documents may later be filed if necessary in presentation and consideration of a motion to compel, a motion for protective order, a motion for summary judgment, a motion for injunctive relief, or other similar proceedings. (2) Court-Ordered Filing of Discovery Materials. In circumstances involving trade secret information or other categories of information, the Court may order that discovery be filed with the Court in order to preserve the integrity of the information. However, such practice is only permitted after the Court has determined, upon timely motion, that filing with the Court is necessary to safeguard the interests jeopardized by the normal discovery process. When such situations arise, counsel are encouraged to formulate agreements governing discovery that minimize the judicial role in administering routine discovery matters. (3) Filings Under Seal. Documents and things may be filed under seal in accordance with the procedures set forth in Local General Rule 5.4. C. Supplementing Answers. The Federal Rules of Civil Procedure expressly provide that in many instances a party is under a duty to supplement or correct a prior disclosure or response to include information thereafter acquired. See Rule 26(e). A party may not, by placing supplementation language at the beginning of its discovery request, expand the obligations of another under the Federal Rules of Civil Procedure. D. Timeliness and Sanctions. (1) Timeliness of Discovery Responses. The Federal Rules of Civil Procedure set forth explicit time limits for responses to discovery requests. Those are the dates by which a lawyer
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should respond; counsel should not await a Court order. If a lawyer cannot answer on time, an extension of time should first be sought from opposing counsel. If unable to resolve the matter informally, counsel should move for an extension of time in which to respond, and inform opposing counsel so that, in the meantime, no unnecessary motion to compel a response will be filed. See Local General Rule 26.1.I, Southern District of Florida, requiring a certificate that counsel have conferred before seeking judicial relief. (2) Extensions of Time. Motions for extension of time within which to respond to discovery should be filed sparingly and only when counsel are unable informally to resolve the matter with opposing counsel. Counsel should be aware that the mere filing of a motion for an extension of time in which to respond does not, absent an order of the Court, extend the deadline for responding to discovery requests. See Local General Rule 7.1.A.3, Southern District of Florida. (3) Objections. When objections are made to discovery requests, all grounds for the objections must be specifically stated. When objections are untimely made, they are waived. See Local General Rule 26.1.G.6.a. (4) Sanctions. Because lawyers are expected to respond when the Federal Rules of Civil Procedure require, Rule 37 provides that if an opposing lawyer must go to court to make the recalcitrant party answer, the moving party may be awarded counsel fees incurred in compelling the discovery. Rule 37 is enforced in this District. Further, if a Court order is obtained compelling discovery, unexcused failure to provide a timely response is treated by the Court with the gravity it deserves; willful violation of a Court order is always serious and may be treated as contempt. (5) Stays or Limitation of Discovery. Normally, the pendency of a motion to dismiss or motion for summary judgment will not justify a unilateral motion to stay discovery pending a ruling on the dispositive motion. Such motions for stay are generally denied except where a specific showing of prejudice or burdensomeness is made, or where a statute dictates that a stay is appropriate or mandatory. See, e.g. 15 U.S.C. § 77z-1(b)(1), the Private Securities Litigation Reform Act of 1995. This policy also applies when a case is referred to court annexed mediation under Local General Rule 16.2. Where a motion to dismiss for lack of personal jurisdiction has been filed pursuant to Rule 12(b)(2), discovery may be limited to jurisdictional facts by court order. E. Completion of Discovery. (1) Discovery Completion. Local General Rule 16.1.A sets discovery completion dates for differentiated case management tracks. The judges may have individual methods extending the deadline, however, each judge follows the rule that the completion date means that all discovery must be completed by that date. For example, interrogatories must be served more than thirty days prior to the completion date to permit the opposing party to respond. Untimely discovery requests are subject to objection on that basis. Counsel may, by agreement, conduct discovery after the formal completion date but should not rely upon the Court to resolve discovery
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disputes arising after the discovery completion date. Likewise, counsel should not rely upon the Court to permit use of untimely discovery materials at trial. (2) Extension of Time for Discovery Completion. Occasionally, the Court will allow additional discovery upon motion, but counsel should not rely on obtaining an extension. When allowed, an extension is normally made only upon written motion showing good cause for the extension of discovery (including due diligence in the pursuit of discovery prior to completion date) and specifying the additional discovery needed and its purposes. Motions for extension of discovery time are treated with special disfavor if filed after the discovery completion date and will normally be granted only if it clearly appears that any scheduled trial will not have to be continued as a result of the extension. II. DEPOSITIONS A. General Policy and Practice. (1) Scheduling. A courteous lawyer is normally expected to accommodate the schedules of opposing lawyers. In doing so, the attorney can either pre-arrange a deposition, or notice the deposition while at the same time indicating a willingness to be reasonable about any necessary rescheduling. Local General Rule 26.1.J. requires at least five (5) working days’ notice in writing to every other party and to the deponent (if a non-party) for a deposition in this State, and ten (10) working days’ notice for an out-of-state deposition. Noncompliance obviates the need for protective Order. Notwithstanding the foregoing, in accordance with Rule Fed.R.Civ.P. 32(a)(3), no deposition shall be used against a party who, having received less than eleven (11) calendar days’ notice of a deposition as computed under Fed.R.Civ.P. Rule 6(a), has promptly upon receiving such notice filed a motion for protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held. (2) Persons Who May Attend Depositions. As a general proposition, pretrial discovery in civil matters must take place in public unless compelling reasons exist for denying the public access to the proceedings. Each lawyer may ordinarily be accompanied at the deposition by one representative of each client and one or more experts. If witness sequestration is desired, a court order entered prior to the deposition is required. Lawyers may also be accompanied by records custodians, paralegals, secretaries, and the like, even though they may be called as technical witnesses on such questions as chain of custody or the foundation for the business record rule, or other technical matters. While more than one lawyer for each party may attend, only one should question the witness or make objections, absent contrary agreement. (3) Persons Designated and Produced in Response to Rule 30(b)(6) Notice. In responding to a properly drawn notice for the taking of a deposition pursuant to Fed.R.Civ.P. 30(b)(6), it is the duty and responsibility of the organization to whom such notice is given, and its counsel, to designate and produce at the deposition those witnesses who shall testify, concerning
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subjects or matters known or reasonably available to the organization as described in the notice. It is inappropriate and improper in such circumstances to produce a single witness who only has knowledge concerning one or more of the topics specified in the notice but not all of them. (4) Length and Number of Depositions. Rule 30(d)(2), Fed.R.Civ.P., unless otherwise authorized by the Court or stipulated by the parties, a deposition is limited to one day of seven hours. Under Fed.R.Civ.P. 30(a)(2)(A), absent written stipulation of the parties or leave of Court, the number of depositions being taken by each party is limited to ten. B. Objections. (1) Objections to the Form of Questions. Fed.R.Civ.P. 32(d)(3)(B) provides that an objection to the form of a question is waived unless made during the deposition. Many lawyers make such objections simply by stating “I object to the form of the question.” This normally suffices because it is usually apparent that the objection is directed to “leading” or to an insufficient or inaccurate foundation. The interrogating lawyer has a right to ask the objecting party to be more specific in his objection, however, so that the problem with the question, if any, can be understood and, if possible, cured, as the rule contemplates. (2) Instruction That a Witness Not Answer. Instructing a witness not to answer is greatly disfavored by the Court, and is a practice which one should use only in an appropriate extraordinary situation, usually involving privilege (see the section of this Handbook concerning the invocation of privilege below). Rule 30(d)(1) of the Federal Rules of Civil Procedure set forth the permissible circumstances for such an instruction. In most circumstances, if a question is objectionable, a lawyer should simply object in the proper manner and allow the answer to be given subject to the objection. A lawyer who improperly instructs a witness not to answer runs a serious risk that the lawyer and/or the client may be subject to substantial monetary sanctions, including the cost of reconvening the deposition (travel expenses, attorneys’ fees, court reporter fees, witness fees, and the like) in order to obtain the answers to such questions. See also Local General Rule 30.1. (3) Other Restrictions on Deposition Conduct. Fed.R.Civ.P. 30(d)(1) and Local General Rule 30.1, particularly the local rule, focus on proper and improper conduct by counsel at depositions. Counsel should not attempt to prompt answers by the use of “suggestive”, “argumentative,” or “speaking” objections; off the record conferences between counsel and witness are inappropriate; instructions not to answer are limited; and witnesses should be treated with courtesy. Those conducting depositions under the rules of this district should take careful note of the provisions of Local General Rule 30.1, entitled “Sanctions for Abusive Deposition Conduct.” C. Production of Documents at Depositions. (1) Scheduling. Consistent with the requirements of Federal Rules of Civil Procedure 30 and 34, a party seeking production of documents of another party in connection with a deposition should schedule the deposition to allow for the production of the documents in advance of the deposition.
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(2) Option to Adjourn or Proceed. If requested documents which are discoverable are not produced prior to the deposition, the party noticing the deposition may either adjourn the deposition until after such documents are produced or may proceed without waiving the right to have access to the documents before finally concluding the deposition. (3) Subpoena for Deposition Duces Tecum. A non-party can be compelled to make discovery in an action only by means of a Rule 45 subpoena. Parties to litigation open themselves to broad discovery practices encompassed in Fed.R.Civ.P. 30(b)(5) and 34. Fed.R.Civ.P. 45(a) states in relevant part that: (1) Every subpoena shall (A) state the name of the court from which it is issued; and (B) state the title of the action, the name of the court in which it is pending, and its civil action number; and ... (2) ... A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken. Consequently, a subpoena for the deposition of a non-party, in a lawsuit pending in the Southern District of Florida, that is scheduled to take place in the Northern District of Florida, should be headed with a Northern District of Florida caption. Additionally, if the non-party recipient of a Rule 45(a)(2) subpoena for deposition or production of documents, seeks relief from court pertaining to the subpoena, the motion seeking such relief must be filed in the district in which the deposition is to take place. Leaving no doubt about the drafter’s intentions when revising the rule, the Commentary to Rule 45(a)(2), states as follows: Pursuant to Paragraph (a)(2), a subpoena for a deposition must still issue from the court in which the deposition or production would be compelled. Accordingly, a motion to quash such a subpoena if it overbears the limits of the subpoena power must, as under the previous rule, be presented to the court for the district in which the deposition would occur. Commentary to 1991 Amendment to Fed.R.Civ.P. 45. D. Non-stenographic Recording of Depositions. (1) Videotape Depositions. Videotape depositions and recordation by other non-stenographic means may be taken by parties without first having to obtain permission from the Court or agreement from counsel. Fed.R.Civ.P. 30(b)(2). With prior notice to the deponent and other parties, any party may designate another method to record the deponent’s testimony in addition to the method specified by the person taking the deposition and the notice or cross-notice of deposition shall state the method by which the testimony shall be recorded. Fed.R.Civ.P. 30(b)(3). The following procedures are commonly followed when the deposition is recorded by a non-stenographic means:
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a. If the deposition of the witness is recorded on videotape or other non-stenographic means, the testimony of the witness does not have to be recorded by a certified stenographic reporter and transcribed in the usual manner, unless such transcripts are to be offered to the Court. See Fed.R.Civ.P. 30(b) and 32(c). b. Prior to the taking of any deposition, the witness shall be first duly sworn by an officer authorized to administer oaths, before whom the deposition is being taken. If the deposition is recorded other than stenographically, the officer designated by Fed.R.Civ.P. 28, shall state on the record (a) the officer’s name and business address, (b) the date, time and place of the deposition, (c) the deponent’s name, (d) administer the oath, and (e) identify all parties present. Items (a) through (c) must be repeated at the beginning of each unit of recorded tape or other recording medium. See Fed.R.Civ.P. 30(b)(4). c. If any objections are made, the objections shall be ruled upon by the Court on the basis of the stenographic transcript, and if any questions or answers are stricken by the Court, the videotape and sound recording must be edited to reflect the deletions so that it will conform in all respects to the Court’s rulings. d. The videographer shall certify the correctness and completeness of the recording, orally and visually at the conclusion of the deposition, just as would the stenographic reporter certifying a typed record of a deposition. e. Copies of the videotape recording shall be made at the expense of any parties requesting them. f. The original of the videotape recording shall be kept by the party requesting the videotape deposition and shall be preserved intact. Therefore, any editing to conform with Court rulings shall be effected through use of a copy of the original videotape recording, which shall be retained by the videographer/court reporter. g. The party presenting the videotape deposition at trial is responsible for the expeditious and efficient presentation of the testimony and is expected to see that it conforms in every respect possible to the usual procedure for the presentation of witnesses. See Fed.R.Civ.P. 32(a)(3). h. A transcript of the deposition (if any) as filed or modified (as the case may be) shall constitute the official record of the deposition for purposes of trial and appeal. i. Any other party may, if it so desires, arrange for its own private stenographic transcription or electronic recording at its own expense, which expense will not be taxed as court costs except upon showing of some extraordinary reason. j. Some of the procedures described herein are in addition to, not in lieu of, the portions of the Federal Rules of Civil Procedure pertaining to the recordation, transcription, signing,
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certification, and filing of written depositions. (2) Telephone Depositions. Telephone depositions or depositions by other remote electronic means may be taken either by stipulation or on motion and order. A deposition is deemed taken in the district and at the place where the deponent is to answer. Fed.R.Civ.P. 30(b)(7). a. The deponent must swear or affirm an oath before a person authorized to administer oaths in that district and at the place where the deposition is taken, i.e. the witness may not be sworn telephonically. b. Speakers must identify themselves whenever necessary for clarity of the record. c. The court reporter should be at the deponent’s location. E. Depositions of Experts. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Fed.R.Civ.P. 26(b)(4)(A). However, Local General Rule 26.1.F.(1)(c) provides that an expert’s deposition may not be conducted until after the expert summary or report required by Local General Rule 16.1.K. is provided. F. Sanctions. Local General Rule 30.1 prohibits abusive conduct during deposition and provides both monetary and procedural sanctions for such conduct. Prohibited conduct includes “coaching” of witness, improper instructions not to answer, and off-the-record conferences except for the purpose of determining whether to assert a privilege. III. PRODUCTION OF DOCUMENTS A. Preparation and Interpretation of Requests for Documents. (1) Formulating Requests for Documents. A request for documents, whether a request for production or a subpoena duces tecum, should be clear, concise and reasonably particularized. For example, a request for “each and every document supporting your claim” is objectionably broad in most cases. (2) Use of Form Requests. Attorneys requesting documents shall review any form request or subpoena to ascertain that it is applicable to the facts and contentions of the particular case. A “boilerplate” request or subpoena not directed to the facts of the particular case should not be used. (3) Reading and Interpreting Requests for Documents. A request for documents or subpoena duces tecum shall be read or interpreted reasonably in the recognition that the attorney serving it generally does not have knowledge of the documents being sought and the attorney receiving the request or subpoena generally does have such knowledge or can obtain it from the client. Counsel should be mindful in producing documents that such things as notes, clips, and other attachments to documents as kept in the normal course of business should also be produced.
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(4) Oral Requests for Production of Documents. As a practical matter, many lawyers produce or exchange documents upon informal request, often confirmed by letter. Naturally, a lawyer’s word once given, that a document will be produced, is the lawyer’s bond and should be timely kept. Requests for production of documents may be made on the record at depositions. Depending upon the form in which they are made, however, informal requests may not support a motion to compel. (5) Objections. Absent compelling circumstances, failure to assert objections to a request for production within the time period for a response constitutes a waiver of grounds for objection, and will preclude a party from asserting the objection in a response to a motion to compel. Objections should be specific, not generalized. See Local General Rule 26.1.G.6.a. B. Procedures Governing Manner of Production. (1) Production of Documents. When documents are being produced (unless the case is a massive one) the following general guidelines, which may be varied to suit the needs of each case, are normally followed: a. Place. The request may as a matter of convenience suggest production at the office of either counsel. The Court expects the lawyers to reasonably accommodate one another with respect to the place of production of documents. b. Manner of Production. All of the documents should be made available simultaneously, and the inspecting attorney or paralegal can determine the order in which to look at the documents. While the inspection is in progress, the inspecting person shall also have the right to review again any documents which have already been examined during the inspection. The producing party has an obligation to explain the general scheme of record-keeping to the inspecting party. The objective is to acquaint the inspecting party generally with how and where the documents are maintained. The documents should be identified with specific paragraphs of a request for production where practicable, unless the producing party exercises its option under Fed.R.Civ.P. 34(b) to produce documents as they are kept in the usual course of business. Generally, when documents are produced individually, each specific document should be identified with a paragraph of the request. When documents are produced in categories or in bulk, some reasonable effort should be made to identify certain groups of the produced documents with particular paragraphs of the request or to provide some meaningful description of the documents produced. The producing party is not obligated to rearrange or reorganize the documents. Obviously, whatever comfort and normal trappings of civilization that are reasonably available should be offered to the inspecting party. c. Listing or Marking. Rule 26(a)(1)(B), Fed.R.Civ.P., requires a party, without awaiting a discovery request, to provide the other parties with a copy of, or a description by category
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and location, of all documents, data compilations, and tangible things that are in possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment. The parties also may want to use some means of listing or marking all documents produced in the litigation so that produced documents can later be differentiated from those which have not been produced. For a relatively few documents, a listing prepared by the inspecting attorney (which should be exchanged with opposing counsel) may be appropriate; when more documents are involved, the inspecting attorney may want to stamp or mark each document with a sequential number. The producing party should allow such stamping to be done so long as marking the document does not materially interfere with the intended use of the document. Such documents which would be materially altered by stamping (e.g., promissory notes) should be listed rather than marked. d. Copying. “Copies” includes photocopies and electronic imaging. While copies are often prepared by the producing party for the inspecting party as a matter of convenience or accommodation, the inspecting party has the right to insist on seeing originals and the right to make direct photocopies or images from the originals. The copying of documents will generally be the responsibility of the inspecting party, but the producing party must render reasonable assistance and cooperation. In the routine case with a manageable number of documents the producing party should allow its personnel and its copying or imaging equipment to be used with the understanding that the inspecting party will pay reasonable charges. The best procedure is for documents to be delivered to an independent copying service, which can number and, if desired by a party, image the documents at the time photocopies are made. The cost of this procedure shall be borne by the party seeking the discovery, but if an extra copy is made for the party producing the documents, that party shall bear that portion of the cost. e. Later Inspection. Whether the inspecting party may inspect the documents again at a later date (after having completed the entire initial inspection) must be determined on a case-by-case basis. f. Privilege. Objections to the production of documents based on generalized claims of privilege will be rejected. A claim of privilege must be supported by a statement of particulars sufficient to enable the Court to assess its validity. For a more detailed discussion of the invocation of privilege see the section of this handbook dealing with privilege. g. General. In most situations the lawyers should be able to reach agreement based upon considerations of reasonableness, convenience and common sense. Since the Discovery Rules contemplate that the lawyers and parties will act reasonably in carrying out the objectives of the Rules, the Court can be expected to deal sternly with a lawyer or party who acts unreasonably to thwart these objectives.
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IV. INTERROGATORIES A. Preparing and Answering Interrogatories. (1) Informal Requests. Whenever possible, counsel should try to exchange information informally. The results of such exchanges, to the extent relevant, may then be made of record by requests for admissions. (2) Scope of Interrogatories. The Court will be guided in each case by the limitations stated in Fed.R.Civ.P. 26(b) and 33(a). Counsel’s signature on interrogatories constitutes a certification of compliance with those limitations. See Fed.R.Civ.P. 26(g)(2). Interrogatories should be brief, simple, particularized and capable of being understood by jurors when read in conjunction with the answer. Interrogatories propounded in the form set forth in Appendix B to the Local Rules comply with the limitations of Fed.R.Civ.P. 26(b) and 33(a). (3) Responses. Fed.R.Civ.P. 33(a) requires the respondent to furnish whatever information is available, even if other requested information is lacking. When in doubt about the meaning of an interrogatory, the responding party should give it a reasonable interpretation (which may be specified in the response) and answer it so as to disclose rather than deny information. If an answer is made by reference to a document, it should be attached or identified and made available for inspection. See Fed.R.Civ.P. 33(d). (4) Objections. Absent compelling circumstances, failure to assert objections to an interrogatory within the time period for answers constitutes a waiver and will preclude a party from asserting the objection in a response to a motion to compel. Objections should be specific, not generalized. (5) Objections Based on Privilege. Objections based on generalized claims of privilege will be rejected. A claim of privilege must be supported by a statement of particulars sufficient to enable the Court to assess its validity. For a more detailed discussion of the invocation of privilege, see the section of this handbook dealing with privilege. (6) Number of Interrogatories. Under Rule 33(a), Fed.R.Civ.P., without leave of Court or written stipulation of the parties, interrogatories are limited to 25 in number including all discrete subparts. (7) Form Interrogatories. There are certain kinds of cases which lend themselves to interrogatories which may be markedly similar from case to case, such as employment discrimination and maritime cargo damage suits, for example, or diversity actions in which form interrogatories have been approved by state law. Except for the standard form interrogatories set forth in Appendix B to the Local Rules, interrogatories which parties seek to propound under Local Rules 26.1.G.3 and 26.1.G.4 should be carefully reviewed to make certain that they are tailored to the individual case.
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(8) Reference to Deposition or Document. Since a party is entitled to discovery both by deposition and interrogatories, it is ordinarily insufficient to answer an interrogatory by saying something such as “see deposition of Jane Smith,” or “see insurance claim.” There are a number of reasons for this. For example, a corporation may be required to give its official corporate response even though one of its high-ranking officers has been deposed, since the testimony of an officer may not necessarily represent the full corporate answer. Similarly, a reference to a single document is not necessarily a full answer, and the information in the document-unlike the interrogatory answer-is not ordinarily set forth under oath. In some circumstances, it may be appropriate for a party to answer a complex interrogatory by saying something such as “Acme Roofing Company adopts as its answer to this interrogatory the deposition testimony of Jane Smith, its President, shown on pages 127-135 of the deposition transcript.” When a party has already fully answered an interrogatory question in the course of a previous deposition, the deposition may be used carefully and in good faith. However, counsel are reminded that for purposes of discovery sanctions, “an evasive or incomplete answer is to be treated as a failure to answer.” See Fed.R.Civ.P. 37(a)(3). (9) "List All Documents." Interrogatories should be reasonably particularized. For example, an interrogatory such as “Identify each and every document upon which you rely in support of your claim in Count Two” may well be objectionably broad in an antitrust case, though it may be appropriate in a suit upon a note or under the Truth-in-Lending Act. While there is no bright-line test, common sense and good faith usually suggest whether such a question is proper. (10) Federal Rule of Civil Procedure 33(d). Fed.R.Civ.P. 33(d) allows a party in very limited circumstances to produce documents in lieu of answering interrogatories. To avoid abuses of Rule 33(d), the party wishing to respond to interrogatories in the manner contemplated by Rule 33(d) should observe the following practice: 1. Specify the documents to be produced in sufficient detail to permit the interrogating party to locate and identify the records and to ascertain the answer as readily as could the party from whom discovery is sought. 2. Make its records available in a reasonable manner (i.e., with tables, chairs, lighting, air conditioning or heat if possible, and the like) during normal business hours, or, in lieu of agreement on that, from 9:00 a.m. to 5:00 p.m., Monday through Friday. 3. Make available any computerized information or summaries thereof which it has. 4. Provide any relevant compilations, abstracts or summaries either in its custody or reasonably obtainable by it, not prepared in anticipation of litigation. If it has any documents even arguably subject to this clause but which it declines to produce for some reason, it shall call the circumstances to the attention of the parties who may move to compel.
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5. All of the actual clerical data extraction work should be done by the interrogating party unless agreed to the contrary, or unless, after actually beginning the effort, it appears that the task could be performed more efficiently by the producing party. In that event, the interrogating party may ask the Court to review the propriety of Rule 33(d) election. In other words, it behooves the producing party to make the document search as simple as possible, or the producing party may be required to answer the interrogatory in full. (11) Answers to Expert Interrogatories. The Southern District of Florida has adopted a formal procedure by which expert witness reports and summaries are exchanged 90 days before the pretrial conference (or the calendar call, if no pretrial conference is to be held.) See Local General Rule 16.1.K. No deposition of an expert may be taken until the expert summary or report has been provided. See Local General Rule 26.1.F.1.b. However, initial interrogatories seeking the names of expert witnesses and the substance of their opinions may still be served. See Local General Rule 26.1.G.1. V. PRIVILEGE A. Invocation of Privilege During Deposition. (1) Procedure for Invocation of Privilege. Where a claim of privilege is asserted during a deposition and information is not provided on the basis of such assertion: (a) The attorney asserting the privilege shall identify during the deposition the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state privilege rule being invoked; and (b) The following information shall be provided during the deposition at the time the privilege is asserted, if sought, unless divulgence of such information would cause disclosure of privileged information: (i) For documents, to the extent the information is readily obtainable from the witness being deposed or otherwise: (1) (2) (3) the type of document, e.g., letter or memorandum; general subject matter of the document; the date of the document;
(4) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author, addressee, and any other recipient of the document, and, where not apparent, the relationship of the author, addressee, and any other recipient to each other;
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(ii)
For oral communications:
(1) the name of the person making the communication and the names of persons present while the communication was made and, where not apparent, the relationship of the persons present making the communication; (2) (3) the date and place of communication; the general subject matter of the communication.
(iii) Objection on the ground of privilege asserted during a deposition may be amplified by the objecting party subsequent to the objection. (c) After a claim of privilege has been asserted, the attorney seeking disclosure shall have reasonable latitude during the deposition to question the witness to establish other relevant information concerning the assertion of the privilege, unless divulgence of such information would cause disclosure of privileged information, including (i) (ii) (iii) (iv) the applicability of the particular privilege being asserted, circumstances which may constitute an exception to the assertion of the privilege, circumstances which may result in the privilege having been waived, and circumstances which may overcome a claim of qualified privilege.
B. Invocation of Privilege in Other Discovery. Where a claim of privilege is asserted in responding or objecting to other discovery devices, including interrogatories, requests for documents and requests for admissions, and information is not provided on the basis of such assertion, the ground rules set forth above shall also apply. Local General Rule 26.1.G.6(b), Southern District of Florida. The attorney seeking disclosure of the information withheld may, for the purpose of determining whether to move to compel disclosure, serve interrogatories or notice the depositions of appropriate witnesses to establish other relevant information concerning the assertion of the privilege, including (a) the applicability of the privilege being asserted, (b) circumstances which may constitute an exception to the assertion of the privilege, (c) circumstances which may result in the privilege having been waived, and (d) circumstances which may overcome a claim of qualified privilege. C. Exception for Fifth Amendment Privileges. Nothing in this section is intended to urge or suggest that a party or witness should provide information that might waive the constitutional privilege against self-incrimination. Failure to follow the procedures set forth in this section shall not be deemed to effect a waiver of any such privilege.
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VI. MOTIONS TO COMPEL OR FOR A PROTECTIVE ORDER A. Reference to Local General Rules 26.1.H and 26.1.I. The procedures and guidelines governing the filing of motions to compel or for protective order are set forth in Local General Rule 26.1, Southern District of Florida. Prior to filing such a motion, counsel is required to confer with opposing counsel and both must make a good faith effort to resolve the dispute by agreement. If no conference occurs, counsel for movant must specify in the required certificate what reasonable efforts were made to contact opposing counsel. B. Effect of Filing a Motion for a Protective Order. In addition to the procedures and guidelines governing the procedures and guidelines governing the filing of motions for a protective order, counsel should be aware that the mere filing of a motion for a protective order does not, absent an order of the Court granting the motion, excuse the moving party from complying with the discovery requested or scheduled. For example, a motion for protective order will not prevent a deposition from occurring; only a court order granting the motion will accomplish this. C. Time for Filing. Local General Rule 26.1.H(1) requires that all motions related to discovery, including but not limited to motions to compel discovery and motions for protective order, be filed within thirty (30) days of the occurrence of grounds for the motion. Failure to file a discovery motion within thirty (30) days, absent a showing of reasonable cause for a later filing, may constitute a waiver of the relief sought. Amended effective April 15, 1999; April 15, 2001.
APPENDIX B. STANDARD FORM INTERROGATORIES UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA ________ DIVISION
PLAINTIFF X Plaintiff, vs. DEFENDANT Y Defendant, ___________________
Case No.__________ Magistrate Judge __________
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FIRST SET OF RULE 26.1.G INTERROGATORIES [Plaintiff X or Defendant Y] propounds the following interrogatories upon [Plaintiff X or Defendant Y] and requests that they be answered separately, fully and under oath within thirty (30) days of service pursuant to Fed.R.Civ.P. 33 and S.D. Fla. L.R. 26.1.G. DEFINITIONS (a) The words “you,” “yours” and/or “yourselves” means [Plaintiff X or Defendant Y] and any directors, officers, employees, agents, representatives or other persons acting, or purporting to act, on behalf of [Plaintiff X or Defendant Y]. (b) The singular shall include the plural and vice versa; the terms “and” or “or” shall be both conjunctive and disjunctive; and the term “including” mean “including without limitation”. (c) “Date” shall mean the exact date, month and year, if ascertainable or, if not, the best approximation of the date (based upon relationship with other events). (d) The word “document” shall mean any writing, recording or photograph in your actual or constructive possession, custody, care or control, which pertain directly or indirectly, in whole or in part, either to any of the subjects listed below or to any other matter relevant to the issues in this action, or which are themselves listed below as specific documents, including, but not limited to: correspondence, memoranda, notes, messages, diaries, minutes, books, reports, charts, ledgers, invoices, computer printouts, microfilms, video tapes or tape recordings. (e) “Agent” shall mean: any agent, employee, officer, director, attorney, independent contractor or any other person acting at the direction of or on behalf of another. (f) “Person” shall mean any individual, corporation, proprietorship, partnership, trust, association or any other entity. (g) The words “pertain to” or “pertaining to” mean: relates to, refers to, contains, concerns, describes, embodies, mentions, constitutes, constituting, supports, corroborates, demonstrates, proves, evidences, shows, refutes, disputes, rebuts, controverts or contradicts. (h) The term “third party” or “third parties” refers to individuals or entities that are not a party to this action. (i) The term “action” shall mean the case entitled Plaintiff X v. Defendant Y, Case No. _____, pending in the Unites States District Court for the Southern District of Florida. (j) The word “identify”, when used in reference to a document, means and includes the name and address of the custodian of the document, the location of the document, and a
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general description of the document, including (1) the type of document (i.e., correspondence, memorandum, facsimile etc.); (2) the general subject matter of the document; (3) the date of the document; (4) the author of the document; (5) the addressee of the document; and (6) the relationship of the author and addressee to each other. INSTRUCTIONS If you object to fully identifying a document or oral communication because of a privilege, you must nevertheless provide the following information pursuant to S.D. Fla. L.R. 26.1.G.6.(b), unless divulging the information would disclose the privileged information: (1) the nature of the privilege claimed (including work product); (2) if the privilege is being asserted in connection with a claim or defense governed by state law, the state privilege rule being invoked; (3) the date of the document or oral communication; (4) if a document: its type (correspondence, memorandum, facsimile etc.), custodian, location, and such other information sufficient to identify the document for a subpoena duces tecum or a document request, including where appropriate the author, the addressee, and, if not apparent, the relationship between the author and addressee; (5) if an oral communication: the place where it was made, the names of the persons present while it was made, and, if not apparent, the relationship of the persons present to the declarant; and (6) the general subject matter of the document or oral communication. You are under a continuous obligation to supplement your answers to these interrogatories under the circumstances specified in Fed.R.Civ.P. 26(e). INTERROGATORIES 1. Please provide the name, address, telephone number, place of employment and job title of any person who has, claims to have or whom you believe may have knowledge or information pertaining to any fact alleged in the pleadings (as defined in Fed.R.Civ.P. 7(a)) filed in this action, or any fact underlying the subject matter of this action. 2. Please state the specific nature and substance of the knowledge that you believe the person(s) identified in your response to interrogatory no. 1 may have. 3. Please provide the name of each person whom you may use as an expert witness at trial.
4. Please state in detail the substance of the opinions to be provided by each person whom you may use as an expert witness at trial.
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5. Please state each item of damage that you claim, whether as an affirmative claim or as a setoff, and include in your answer: the count or defense to which the item of damages relates; the category into which each item of damages falls, i.e. general damages, special or consequential damages (such as lost profits), interest, and any other relevant categories; the factual basis for each item of damages; and an explanation of how you computed each item of damages, including any mathematical formula used. 6. Please identify each document pertaining to each item of damages stated in your response to interrogatory no. 5 above. 7. Please identify each document (including pertinent insurance agreements) pertaining to any fact alleged in any pleading (as defined in Fed.R.Civ.P. 7(a) filed in this action. Effective April 15, 1998.
APPENDIX C. FORM OF DEFENDANT’S WAIVER OF STATUTORY RIGHT TO SPEEDY TRIAL
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA _______ DIVISION Case No. ____-Cr-(USDJ’s last name/USMJ’s last name)
UNITED STATES OF AMERICA, Plaintiff, vs.
John Doe and Jane Doe, Defendants. _______________________________/
DEFENDANT’S WAIVER OF STATUTORY RIGHT TO SPEEDY TRIAL I am the defendant named above. I have been advised of my statutory right to a speedy trial under Title 18 United States Code, sections 3161-3174. I understand my right to a speedy trial
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under the federal statutes, yet I waive that right as permitted by the statute and Southern District of Florida Local Rule 88.5. I waive this right freely and voluntarily. ______________________________ Defendant
EXECUTED in Open Court in the Southern District of Florida, this ____ day of _______, 199____/20____. Respectfully submitted, ______________________________ Counsel for the Defendant Effective April 15, 1999.
[Remainder of Page Intentionally Left Blank]
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ADMIRALTY AND MARITIME RULES
RULE A. GENERAL PROVISIONS (1) Scope of the Local Admiralty and Maritime Rules. The local admiralty and maritime rules apply to the procedures in admiralty and maritime claims within the meaning of Fed.R.Civ.P. 9(h), which in turn are governed by the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. (2) Citation Format.
(a) The Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure shall be cited as “Supplemental Rule (_____)”. (b) The Local Admiralty and Maritime Rules shall be cited as “Local Admiralty Rule (_____)”. (3) Application of Local Admiralty and Maritime Rules. The Local Admiralty Rules shall apply to all actions governed by Local Admiralty Rule A(1), and to the extent possible should be construed to be consistent with the other local rules of this Court. To the extent that a Local Admiralty Rule conflicts with another local rule of this Court, the Local Admiralty Rule shall control. (4) Designation of “In Admiralty” Proceedings. Every complaint filed as a Fed.R.Civ.P. 9(h) action shall boldly set forth the words “IN ADMIRALTY” following the designation of the Court. This requirement is in addition to any statements which may be contained in the body of the complaint. (5) Verification of Pleadings, Claims and Answers to Interrogatories. Every complaint and claim filed pursuant to Supplemental Rules (B), (C) and/or (D) shall be verified on oath or solemn affirmation by a party, or an officer of a corporate party. If a party or corporate officer is not within the district, verification of a complaint, claim and/or answers to interrogatories may be made by an agent, an attorney-in-fact, or the attorney of record. Such person shall state briefly the source of his or her knowledge, or information and belief, and shall declare that the document affirmed is true to the best of his or her knowledge, and/or information and belief. Additionally, such person shall state that he or she is authorized to make this representation on behalf of the party or corporate officer, and shall indicate why verification is not made by a party or a corporate officer. Such verification will be deemed to have been made by the party to whom the document might apply as if verified personally. Any interested party may move the Court, with or without a request for stay, for the personal oath or affirmation of a party or all parties, or that of a corporate officer. If required by the Court, such verification may be obtained by commission, or as otherwise provided by Court order.
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(6) Issuance of Process. Except as limited by the provisions of Supplemental Rule (B)(1) and Local Admiralty Rule B(3) or Supplemental Rule (C)(3) and Local Admiralty Rule C(2); or in suits prosecuted in forma pauperis and sought to be filed without prepayment of fees or costs, or without security; all process shall be issued by the Court without further notice of Court. (7) Publication of Notices. Unless otherwise required by the Court, or applicable Local Admiralty or Supplemental Rule, whenever a notice is required to be published by any statute of the United States, or by any Supplemental Rule or Local Admiralty Rule, such notice shall be published at least once, without further order of Court, in an approved newspaper in the county or counties where the vessel or property was located at the time of arrest, attachment, or seizure, and if different, in the county within the Southern District of Florida where the lawsuit is pending. For purposes of this subsection, an approved newspaper shall be a newspaper of general circulation, designated from time to time by the Court. A listing of these approved newspapers will be made available in the Clerk’s Office during normal business hours. (8) Form and Return of Process in In Personam Actions. Unless otherwise ordered by the Court, Fed.R.Civ.P. 9(h) process shall be by civil summons, and shall be returnable twenty (20) days after service of process; except that process issued in accordance with Supplemental Rule (B) shall conform to the requirements of that rule. (9) Judicial Officer Defined. As used in these Local Admiralty Rules, the term “judicial officer” or “Court” shall mean either a United States District Judge or a United States Magistrate Judge. (10) Appendix of Forms. The forms presented in the Appendix provide an illustration of the format and content of papers filed in admiralty and maritime actions within the Southern District of Florida. While the forms are sufficient, they are neither mandatory nor exhaustive. Effective Dec. 1, 1994. Advisory Notes (1994) These rules were amended in 1994 to make them gender neutral. (1993) (a) General Comments. These Rules were prepared and submitted to the Court through the Rules Committee of the Southern District of Florida, at the request of a Subcommittee of the Admiralty Law Committee of The Florida Bar. The Local Admiralty and Maritime Rules are promulgated pursuant to this Court’s rule making authority under Fed.R.Civ.P. 83, and have been drafted to complement the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure.
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The Committee has arranged these Local Admiralty Rules to correspond generally with the ordering of the Supplemental Rules, e.g., Local Admiralty Rule A corresponds generally with Supplemental Rule A, and each sequentially lettered Local Admiralty Rule addresses the subject matter of the corresponding next-in-order Supplemental Rule. Reference to the former local admiralty rules refers to the former Local Rules of the Southern District of Florida. (b) Comments on Specific Sections. These Rules are substantially similar to the Local Rules for the Middle District and therefore provide for consistency and uniformity in admiralty and maritime claims in the state. A(1) and A(3) continue in substance former Local Admiralty Rule 1(a). A(4) continues the “IN ADMIRALTY” designation requirements of former Local Admiralty Rule 7(a). Under the revised rule, the “IN ADMIRALTY” designation is required to be posted to all complaints even if the complaint is filed as a Fed.R.Civ.P. 9(h) action and jurisdiction would exist on another basis, e.g., federal question or diversity jurisdiction. A(5) continues the requirements of former Local Admiralty Rule 8. A(6) continues the requirements of former Local Admiralty Rule 2(a). A(7) enlarges upon former Local Admiralty Rule 3(a) which addressed notice by publication only in cases filed pursuant to Supplemental Rule (C)(4). The revised rule extends the publication provisions to all Fed.R.Civ.P. 9(h) actions for which notice by publication is required. In addition, the existing provisions have been altered to require that the publication shall be made both in the county where the vessel, or other property, was located at the time of arrest, attachment or seizure; and if different, in the county within the division of this Court in which the suit is pending. A(8) continues the requirements of former Local Admiralty Rule 2(c). A(9) adopts the definition of “Court” provided in the Advisory Notes to the August 1, 1985, amendments to the Supplemental Rules. As defined in these Local Admiralty Rules, the terms “Court” or “judicial officer” shall extend to United States Magistrates assigned to the Southern District of Florida. The committee notes that the delegation of the duties contemplated by this definition are consistent with the jurisdictional grant to the United States Magistrate Judges as set forth in 28 U.S.C. § 636(a). Where the terms “Court” and “judicial officer” are not used, these rules contemplate that without further order of Court, the responsibility of taking the specific action shall be vested with a district judge.
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A(10) provides for an Appendix of Forms to the Local Admiralty Rules. The former rules incorporated the text of some forms within the specific local rules and included some forms in an Appendix. The Appendix of Forms provides an alternate method of presenting the format and content of necessary admiralty forms. As noted in the revised rule, these forms are provided as examples, and are not intended to be mandatory. In addition to the specific forms referred to in the Local Admiralty Rules, the Appendix also includes other commonly used admiralty forms for the use and convenience of counsel. (1998) These rules are amended in 1998 to correct scrivener’s errors and to require the custodian or substitute custodian to comply with orders of the Captain of the Port, United States Coast Guard. RULE B. ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS (1) Definition of “Not Found Within the District”. In an action in personam filed pursuant to Supplemental Rule (B), a defendant shall be considered “not found within the district” if the defendant cannot be served within the Southern District of Florida with the summons and complaint as provided by Fed.R.Civ.P. 4(d)(1), (2), (3), or (6). (2) Verification of Complaint Required. In addition to the specific requirements of Local Admiralty Rule A(5), whenever verification is made by the plaintiff’s attorney or agent, and that person does not have personal knowledge, or knowledge acquired in the ordinary course of business of the facts alleged in the complaint, the attorney or agent shall also state the circumstances which make it necessary for that person to make the verification, and shall indicate the source of the attorney’s or agent’s information. (3) Pre-seizure Requirements. In accordance with Supplemental Rule (B)(1), the process of attachment and garnishment shall issue only after one of the following conditions has been met: (a) Judicial Review Prior to Issuance. Except as provided in Local Admiralty Rule B(3)(b), a judicial officer shall first review the verified complaint, and any other relevant case papers, prior to the Clerk issuing the requested process of attachment and garnishment. No notice of this pre-arrest judicial review is required to be given to any person or prospective party. If the court finds that probable cause exists to issue the process of attachment and garnishment, plaintiff shall prepare an order for the Court’s signature directing the Clerk to issue the process. This order shall substantially conform in format and content to the form identified as SDF 1 in the Appendix of these Local Admiralty Rules. Upon receipt of the signed order, the Clerk shall file the order and, in accordance with Local Admiralty Rule B(3)(c), issue the summons and process of attachment and garnishment. Thereafter the Clerk may issue supplemental process without further order of Court.
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(b) Certification of Exigent Circumstances. If the plaintiff files a written certification that exigent circumstances make review by the Court impracticable, the Clerk shall, in accordance with Local Admiralty Rule B(3)(c), issue a summons and the process of attachment and garnishment. Thereafter at any post-attachment proceedings under Supplemental Rule (E)(4)(f) and Local Admiralty Rule B(5), plaintiff shall have the burden of showing that probable cause existed for the issuance of process, and that exigent circumstances existed which precluded judicial review in accordance with Local Admiralty Rule B(3)(a). (c) Preparation and Issuance of the Process of Attachment and Garnishment. Plaintiff shall prepare the summons and the process of attachment and garnishment, and deliver the documents to the Clerk for filing and issuance. The process of attachment and garnishment shall substantially conform in format and content to the form identified as SDF 2 in the Appendix to these Local Admiralty Rules, and shall in all cases give adequate notice of the postseizure provisions of Local Admiralty Rule B(5). (d) Marshal’s Return of Service. The Marshal shall file a return of service indicating the date and manner in which service was perfected and, if service was perfected upon a garnishee, the Marshal shall indicate in the return the name, address, and telephone number of the garnishee. (4) Notification of Seizure to Defendant. In an in personam action under Supplemental Rule (B), it is expected that plaintiff and/or garnishee will initially attempt to perfect service of the notice in accordance with Supplemental Rule (B)(2)(a) or (b). However, when service of the notice cannot be perfected in accordance with Supplemental Rule (B)(2)(a) or (b), plaintiff and/or garnishee should then attempt to perfect service in accordance with Supplemental Rule (B)(2)(c). In this regard, service of process shall be sufficiently served by leaving a copy of the process of attachment and garnishment with the defendant or garnishee at his or her usual place of business. (5) Post-attachment Review Proceedings.
(a) Filing a Required Answer. In accordance with Supplemental Rule (E)(4)(f), any person who claims an interest in property seized pursuant to Supplemental Rule (B) must file an answer and claim against the property. The answer and claim shall describe the nature of the claimant’s interest in the property, and shall articulate reasons why the seizure should be vacated. The claimant shall serve a copy of the answer and claim upon plaintiff’s counsel, the Marshal, and any other party to the litigation. The claimant shall also file a Certificate of Service indicating the date and manner in which service was perfected.
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(b) Hearing on the Answer and Claim. The claimant may be heard before a judicial officer not less than three (3) days after the answer and claim has been filed and service has been perfected upon the plaintiff. If the Court orders that the seizure be vacated, the judicial officer shall also award attorney’s fees, costs and other expenses incurred by any party as a result of the seizure. If the seizure was predicated upon a showing of “exigent circumstances” under Local Admiralty Rule B(3)(b), and the Court finds that such exigent circumstances did not exist, the judicial officer shall award attorney’s fees, costs, and other expenses incurred by any party as a result of the seizure. (6) Procedural Requirement for the Entry of Default. In accordance with Rule 55, Fed.R.Civ.P., a party seeking the entry of default in a Supplemental Rule (B) action shall file a motion and supporting legal memorandum and shall offer other proof sufficient to demonstrate that due notice of the action and seizure have been given in accordance with Local Admiralty Rule B(4). Upon review of the motion, memorandum, and other proof, the Clerk shall, where appropriate, enter default in accordance with Rule 55(a), Fed.R.Civ.P. Thereafter, the Clerk shall serve notice of the entry of default upon all parties represented in the action. (7) Procedural Requirements for the Entry of Default Judgment. Not later than thirty (30) days following notice of the entry of default, the party seeking the entry of default judgment shall file a motion and supporting legal memorandum, along with other appropriate exhibits to the motion sufficient to support the entry of default judgment. The moving party shall serve these papers upon every other party to the action and file a Certificate of Service indicating the date and manner in which service was perfected. A party opposing the entry of default judgment shall have five (5) days from the receipt of the motion to file written opposition with the Court. Thereafter, unless otherwise ordered by the Court, the motion for the entry of default judgment will be heard without oral argument. If the Court grants the motion and enters the default judgment, such judgment shall establish a right on the part of the party or parties in which favor it is entered. The judgment shall be considered prior to any claims of the owner of the defendant property against which it is entered, and to the remnants and surpluses thereof; providing, however, that such a judgment shall not establish any entitlement to the defendant property having priority over non-possessory lien claimants. Obtaining a judgment by default shall not preclude the party in whose favor it is entered from contending and proving that all, or any portion, of the claim or claims encompassed within the judgment are prior to any such non-possessory lien claims. Effective Dec. 1, 1994; amended effective April 15, 1998; April 15, 2000.
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Advisory Notes (1993) (a) General Comments. Local Rule B is intended to enhance and codify the local procedural requirements uniquely applicable to actions of maritime attachment and garnishment under Supplemental Rule (B). Other local procedural requirements involving actions in rem and quasi in rem proceedings can be found in Local Admiralty Rule E. When read in conjunction with Supplemental Rule (B) and (E), Local Admiralty Rules B and E are intended to provide a uniform and comprehensive method for constitutionally implementing the long-standing and peculiar maritime rights of attachment and garnishment. The committee believes that Local Admiralty Rules B and E correct the deficiencies perceived by some courts to exist in the implementation of this unique maritime provision. Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 552 F.Supp. 771 (S.D.Ga.1982); Cooper Shipping Company v. Century 21, 1983 A.M.C. 244 (M.D.Fla.1982); Crysen Shipping Co. v. Bona Shipping Co., Ltd., 553 F.Supp. 139 (N.D.Fla.1982); and Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F.Supp. 447 (W.D.Wa.1978), discussing Supplemental Rule (B) proceedings in light of Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969). Although the Committee is aware of the Eleventh Circuit’s decision in Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 732 F.2d 1543 (1984), the Committee believes that from both a commercial and legal viewpoint, the better practice is to incorporate the pre-seizure scrutiny and post-attachment review provisions provided by this rule. These provisions protect the rights of any person claiming an interest in the seized property by permitting such persons to file a claim against the property, and thereafter permitting a judicial determination of the propriety of the seizure. (b) Comments on Specific Sections. B(1) codifies the governing law of this circuit as set forth in LaBanca v. Ostermunchner, 664 F.2d 65 (5th Cir., Unit B, 1981). B(2) codifies the verification requirements of Supplemental Rule (B)(1) and former Local Admiralty Rule S. B(3) incorporates the “pre-seizure” and “exigent circumstances” provisions of the August 1, 1985, revision to Supplemental Rule (B)(1). In the routine case, the rule contemplates that issuance of the process of attachment and garnishment be preconditioned upon the exercise of judicial review. This ensures that plaintiff can make an appropriate maritime claim, and present proof that the defendant cannot be found within the district. The rule also contemplates that upon a finding of probable cause, a simple order directing the Clerk to issue the process shall be entered by the Court. This rule also incorporates the “exigent circumstances” provision of Supplemental Rule (B)(1). Read in conjunction with Local Admiralty Rule B(5)(b), this rule requires that the plaintiff carry the burden of proof at any post-attachment proceedings to establish not only the prima facie conditions of a maritime attachment and garnishment action under Supplemental Rule (B), but also that “exigent circumstances” precluded judicial review under Local Admiralty Rule B(3)(a). The
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Committee believes that this additional requirement will place upon plaintiff’s counsel a burden of extra caution before invoking the “exigent circumstance” provision of the rule. B(5) establishes the post-attachment review provisions potentially applicable to maritime attachment and garnishment proceedings. These proceedings may be invoked by any person claiming an interest in the seized property. (2000) Local Rule B7 is amended to give the party seeking entry of a default judgment up to 30 days, rather than 5 days, to file a motion and supporting legal memorandum. RULE C. ACTION IN REM (1) Verification Requirements. Every complaint and claim filed in an in rem proceeding pursuant to Supplemental Rule (C) shall be verified in accordance with Local Admiralty Rules A(5) and B(2). (2) Pre-seizure Requirements. In accordance with Supplemental Rule (C)(3), the process of arrest in rem shall issue only after one of the following conditions has been met: (a) Judicial Review Prior to Issuance. Except as provided in Local Admiralty Rule C(2)(b), a judicial officer shall first review the verified complaint, and any other relevant case papers, prior to the Clerk issuing the warrant of arrest and/or summons in rem. No notice of this pre-seizure judicial review is required to be given to any person or prospective party. If the Court finds that probable cause exists for an action in rem, plaintiff shall prepare an order for the Court’s signature directing the Clerk to issue a warrant of arrest and/or summons. This order shall substantially conform in format and content to the form identified as SDF 2 in the Appendix to these Local Admiralty Rules. Upon receipt of the signed order, the Clerk shall file the order and, in accordance with Local Admiralty Rule C(2)(c), issue the warrant of arrest and/or summons. Thereafter the Clerk may issue supplemental process without further order of the Court. (b) Certification of Exigent Circumstances. If the plaintiff files a written certification that exigent circumstances make review by the Court impracticable, the Clerk shall, in accordance with Local Admiralty Rule B(3)(b), issue a warrant of arrest and/or summons. Thereafter at any post-arrest proceedings under Supplemental Rule (E)(4)(f) and Local Admiralty Rule C(7), plaintiff shall have the burden of showing that probable cause existed for the issuance of process, and that exigent circumstances existed which precluded judicial review in accordance with Local Admiralty Rule C(2)(a). (c) Preparation and Issuance of the Warrant of Arrest and/or Summons. Plaintiff shall prepare the warrant of arrest and/or summons, and deliver them to the Clerk for filing and issuance.
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The warrant of arrest shall substantially conform in format and content to the form identified as SDF 4 in the Appendix to these Local Admiralty Rules, and shall in all cases give adequate notice of the post-arrest provisions of Local Admiralty Rule C(7). (3) Special Requirements for Actions Involving Freight, Proceeds and/or Intangible Property. (a) Instructions to Be Contained in the Summons. Unless otherwise ordered by the Court, the summons shall order the person having control of the freight, proceeds and/or intangible property to either: (1) File a claim within ten (10) days after service of the summons in accordance with Local Admiralty Rule C(6)(a); or (2) Deliver or pay over to the Marshal, the freight, proceeds, and/or intangible property, or a part thereof, sufficient to satisfy plaintiff’s claim. The summons shall also inform the person having control of the freight, proceeds, and/or intangible property that service of the summons has the effect of arresting the property, thereby preventing the release, disposal or other distribution of the property without prior order of the Court. (b) Requirements for Claims to Prevent the Delivery of Property to the Marshal. Any claim filed in accordance with Supplemental Rule (E)(4) and Local Admiralty Rule C(6)(a) shall describe the nature of claimant’s interest in the property, and shall articulate reasons why the seizure should be vacated. The claim shall be served upon the plaintiff, the Marshal, and all other parties to the litigation. Additionally, the claimant shall file a Certificate of Service indicating the date and manner in which service was perfected. (c) Delivery or Payment of the Freight, Proceeds, and/or Intangible Property to the U.S. Marshal. Unless a claim is filed in accordance with Supplemental Rule (E)(4)(f), and Local Admiralty Rule C(6)(a), any person served with a summons issued pursuant to Local Admiralty Rule C(2)(a) or (b), shall within ten (10) days after execution of service, deliver or pay over to the Marshal all, or part of, the freight, proceeds, and/or intangible property sufficient to satisfy plaintiff’s claim. Unless otherwise ordered by the Court, the person tendering control of the freight, proceeds, and/or intangible property shall be excused from any further duty with respect to the property in question.
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(4)
Publishing Notice of the Arrest as Required by Supplemental Rule (C)(4).
(a) Time for Publication. If the property is not released within ten (10) days after the execution of process, the notice required by Supplemental Rule (C)(4) shall be published by the plaintiff in accordance with Local Admiralty Rule A(7). Such notice shall be published within seventeen (17) days after execution of process. The notice shall substantially conform to the form identified as SDF 7 in the Appendix to these Local Admiralty Rules. (b) Proof of Publication. Plaintiff shall file with the Clerk, proof of publication not later than ten (10) days following the last day of publication. It shall be sufficient proof for the plaintiff to file the sworn statement by, or on behalf of, the publisher or editor, indicating the dates of publication, along with a copy or reproduction of the actual publication. (5) Undertaking in Lieu of Arrest. If, before or after the commencement of an action, a party accepts any written undertaking to respond on behalf of the vessel and/or other property in return for foregoing the arrest, the undertaking shall only respond to orders or judgments in favor of the party accepting the undertaking, and any parties expressly named therein, to the extent of the benefit thereby conferred. (6) Time for Filing Claim or Answer. Unless otherwise ordered by the court, any claimant of property subject to an action in rem shall: (a) (b) File the claim within ten (10) days after process has been executed; and Serve an answer within twenty (20) days after the filing of the claim.
(7) Post-arrest Proceedings. Coincident with the filing of a claim pursuant to Supplemental Rule (E)(4)(f), and Local Admiralty Rule C(6)(a), the claimant may also file a motion and proposed order directing plaintiff to show cause why the arrest should not be vacated. If the Court grants the order, the Court shall set a date and time for a show cause hearing. Thereafter, if the Court orders the arrest to be vacated, the Court shall award attorney’s fees, costs, and other expenses incurred by any party as a result of the arrest. Additionally, if the seizure was predicated upon a showing of “exigent circumstances” under Local Admiralty Rule C(6)(b), and the Court finds that such exigent circumstances did not exist, the Court shall award attorneys’ fees, costs and other expenses incurred by any party as a result of the seizure. (8) Procedural Requirements Prior to the Entry of Default. In accordance with Rule 55, Fed.R.Civ.P., a party seeking the entry of default judgment in rem shall first file a motion and supporting legal memorandum. The party seeking the entry of default shall also file such other proof sufficient to demonstrate that due notice of the action and arrest have been given by:
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(a)
Service upon the master or other person having custody of the property; and
(b) Delivery, or by certified mail, return receipt requested (or international effective equivalent), to every other person, including any known owner, who has not appeared or intervened in the action, and who is known to have, or claims to have, a possessory interest in the property. The party seeking entry of default judgment under Local Rule C(8) may be excused for failing to give notice to such “other person” upon a satisfactory showing that diligent effort was made to give notice without success; and (c) Publication as required by Supplemental Rule (C)(4) and Local Admiralty Rule C(4).
Upon review of the motion, memorandum, and other proof, the Clerk may, where appropriate, enter default in accordance with Rule 55, Fed.R.Civ.P. Thereafter, the Clerk shall serve notice of the entry of default upon all parties represented in the action. (9) Procedural Requirements for the Entry of Default Judgment. Not later than thirty (30) days following notice of the entry of default, the moving party shall file a motion, and supporting legal documents, for the entry of default judgment pursuant to Rule 55(b), Fed.R.Civ.P. The moving party may also file as exhibits for the motion such other documentation as may be required to support the entry of default judgment. Thereafter the court will consider the motion as indicated below: (a) When No Person Has Filed a Claim or Answer. Unless otherwise ordered by the court, the motion for default judgment will be considered by the court without oral argument. (b) When Any Person Has Filed an Appearance, But Does Not Join in the Motion for Entry of Default Judgment. If any person has filed an appearance in accordance with Local Admiralty Rule C(6), but does not join in the motion for entry of default judgment, the party seeking the entry of default judgment shall serve notice of the motion upon the party not joining in the motion, and thereafter the opposing party shall have five (5) days from receipt of the notice to file written opposition with the court. If the court grants the motion and enters the default judgment, such judgment shall establish a right on the part of the party or parties in whose favor it is entered. The judgment shall be considered prior to any claims of the owner of the defendant property against which it is entered, and to the remnants and surpluses thereof; providing, however, that such a judgment shall not establish any entitlement to the defendant property having priority over non-possessory lien claimants. Obtaining a judgment by default shall not preclude the party in whose favor it is entered from contending and proving that all, or any portion, of the claim or claims encompassed within the judgment are prior to any such non-possessory lien claims. Effective Dec. 1, 1994; amended effective April 15, 1998; April 15, 2000; April 15, 2001.
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Advisory Notes (1993) C(2). Well reasoned authority has upheld Supplemental Rule (C), specifically holding that a pre-seizure judicial hearing is not required where a vessel, freight, or intangible property is proceeded against to enforce a maritime lien. Amstar Corporation v. S S Alexandros T, 664 F.2d 904 (4th Cir.1981); Merchants Nat’l Bank v. Dredge Gen. G.L. Gillespie, 663 F.2d 1338 (5th Cir., Unit A, 1981); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 732 F.2d 1543 (11th Cir.1984). The desirability of providing by local admiralty rule an available avenue for reasonably prompt and effective post-arrest judicial relief is indicated. See, Merchants Nat’l Bank v. Dredge Gen. G.L. Gillespie, supra, at 1334, 1350. This provision is incorporated in Local Admiralty Rule C(7). This procedure made available through this rule has proven effective. Maryland Ship Building & Dry-Dock Co. v. Pacific Ruler Corp., 201 F.Supp. 858 (SDNY 1962). In fact, the procedure established by this local rule goes beyond that encountered in Merchants Nat’l Bank v. Dredge Gen. G.L. Gillespie, supra, or Maryland Ship Building & Dry-Dock Co. v. Pacific Ruler Corp., supra. Under this rule, the claimant or intervenor may petition the Court to order the plaintiff to establish probable cause for the arrest of the property. Therefore at an early stage of the litigation, plaintiff can be required to establish a prima facie case that he is asserting a claim which is entitled to the dignity and status of a maritime lien against the arrested property. This rule contemplates the entry of an order with conclusory findings following the post-arrest proceedings. More detailed findings may be requested by any party. The rule is not intended to provide a method for contesting the amount of security to be posted for the release of the vessel. Once a prima facie case for the maritime lien has been established, or the question of lien status remains uncontested, the matter of security is left to the provisions of Local Admiralty Rule E. C(3). Supplemental Rule (C)(3) also addresses the less commonly encountered action in rem to enforce a maritime lien against freights, proceeds or other intangible property. The revision to this rule designates the U.S. Marshal to take custody of all tangible and intangible properties arrested in accordance with this rule, and to bring these properties under the control of the Court. This is the practice in many other districts, and when implemented will provide the greatest uniformity in the treatment of tangible and intangible property. C(4). The substance of former Local Rule 3(c) is continued. C(5). Although this section is new to the local rules, it reflects the current local practice with respect to undertakings and stipulations in lieu of arrest. Such undertakings and stipulations have been held effective to permit a Court to exercise its in rem admiralty jurisdiction so long as either at the time the undertaking or stipulation is given, or at any subsequent time prior to the filing of the action, the vessel or other property is, or will be, present within the district.
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C(6). The substance of former Local Rule 2(b) is continued. C(7). See the comments for Local Admiralty Rule C(2). C(8) and (9). These sections are designed to mesh Supplemental Rule (C) with Fed.R.Civ.P. 55. For purpose of default and default judgments, the rule recognizes two distinct groups of in rem claimants. The first category of claimants include those who by ownership or otherwise, would, but for the arrest of the property, be entitled to its possession. Pursuant to Supplemental Rule (C)(6), these claimants must file a claim setting forth their interest in the property, demand their right to receive possession, and to appear and defend the action. In the case of such claimants, the operation of standard default procedures foreclose their rights to contest positions of the party in whose favor the default is rendered, and the entry of default judgment is both fair and appropriate. The second category of claimants embodies a potentially numerous and varying class of claimants. The claims of these other claimants do not give rise to a right of possession of the vessel from the marshal or other appropriate custodian, but rather invoke the power of the Court in admiralty to foreclose against the property by the ultimate rendering of a judgment in rem against property entitlements. Such judgments would be predicated upon non-possessory liens. The time in which the second category of claimants may intervene is governed by the provisions of Local Admiralty Rule E. Such lien claimants are not obligated, and indeed are probably not entitled to file a claim of possession to the vessel, or to answer and defend in the name of the vessel. As to them, in accordance with Fed.R.Civ.P. 8, the essential averments of all the complaints are taken as automatically denied. No default judgments entered pursuant to this rule will operate to adjudicate priorities among competing non-possessory lien claimants. In attempting to reconcile the traditional notions of default and default judgments with the concept of in rem proceedings, the final language has been formulated to maintain the efficacy of the default procedure without resulting in premature adjudication effecting priorities and distributions. The default procedure establishes in favor of the holder of such a default judgment, a lien position against the proceeds of the property, resulting from any sale or disposition, or, if currency is involved, the ultimate adjudication, inferior to all other competing priorities, except the otherwise escheating right of the property owner to the remnants and surpluses after all full-claims satisfactions. At the same time, the right of a person obtaining a default judgment to contend and compete with other claimants for priority distribution remains unaffected. (2000) Local Rule C9 is amended to give the party seeking entry of a default judgment up to 30 days, rather than 5 days, to file a motion and supporting legal memorandum. (2001) Corrections to rule number references.
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RULE D. POSSESSORY, PETITORY AND PARTITION ACTIONS (1) Establishing Dates for the Return of Process. In possessory actions filed pursuant to Supplemental Rule (D), the Court may order that process be returnable at a time shorter than that prescribed by Rule 12(a), Fed.R.Civ.P. If the Court shortens the time, the Court shall specify the date upon which the answer must be filed, and may also set a hearing date to expedite the disposition of the possessory action. When possible, possessory actions shall be given preference on a judicial officer’s calendar. Effective Dec. 1, 1994. Advisory Notes (1993) This rule continues in substance the provisions of former Local Admiralty Rule 15. The rule recognizes the equity in allowing for a prompt resolution in possessory actions. Since a possessory action is brought to reinstate an owner of a vessel alleging wrongful deprivation of property, rather than to allow original possession, the rule permits the Court to expedite these actions, thereby providing a quick remedy for the one wrongfully deprived of his rightful property, Silver v. Sloop Silver Cloud, 259 F.Supp. 187 (SDNY 1966). Since a petitory and possessory action can be joined to obtain original possession, The Friendship, Fed.Cas. No. 5,123 (CCD Maine, 1855), this rule contemplates that an expedited hearing will only occur in purely possessory actions. RULE E. ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS (1) Statement of Itemized Damages and Expenses Required. Every complaint in a Supplemental Rule (B) and (C) action shall state the amount of the debt, damages, or salvage for which the action is brought. In addition, the statement shall also specify the amount of any unliquidated claims, including attorneys’ fees. (2) Requirements and Procedures for Effecting Intervention. Whenever a vessel or other property is arrested or attached in accordance with any Supplemental Rule, and the vessel or property is in the custody of the U.S. Marshal, or duly authorized substitute custodian, any other person having a claim against the vessel or property shall be required to present their claim as indicated below: (a) Intervention of Right When No Sale of the Vessel or Property Is Pending. Except as limited by Local Admiralty Rule E(2)(b), any person having a claim against a vessel or property previously arrested or attached by the Marshal may, as a matter of right, file an intervening complaint at any time before an order is entered by the Court scheduling the vessel or property for sale.
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Coincident with the filing of an intervening complaint, the offering party shall prepare and file a supplemental warrant of arrest and/or a supplemental process of attachment and garnishment. Upon receipt of the intervening complaint and supplemental process, the Clerk shall conform a copy of the intervening complaint and shall issue the supplemental process. Thereafter, the offering party shall deliver the conformed copy of the intervening complaint and supplemental process to the Marshal for execution. Upon receipt of the intervening complaint and supplemental process, the Marshal shall re-arrest or re-attach the vessel or property in the name of the intervening plaintiff. Counsel for the intervening party shall serve a copy of the intervening complaint, and copies of all process and exhibits upon all other counsel of record, and shall thereafter file a certificate of service with the Clerk indicating the manner and date of service. (b) Permissive Intervention When the Vessel or Property Has Been Scheduled for Sale by the Court. Except as indicated below, and subject to any other rule or order of this Court, no person shall have an automatic right to intervene in an action where the Court has ordered the sale of the vessel or property, and the date of the sale is set within fifteen (15) days from the date the party moves for permission to intervene in accordance with this subsection. In such cases, the person seeking permission to intervene must: (1) File a motion to intervene and indicate in the caption of the motion a request for expedited hearing when appropriate. (2) Include a copy of the anticipated intervening complaint as an exhibit to the motion to intervene. (3) Prepare and offer for filing a supplemental warrant of arrest and/or a supplemental process of attachment and garnishment. (4) Serve copies of the motion to intervene, with exhibits and proposed supplemental process upon every other party to the litigation. (5) File a certificate of service indicating the date and manner of service.
Thereafter, the Court may permit intervention under such conditions and terms as are equitable to the interests of all parties; and if intervention is permitted, shall also direct the Clerk to issue the supplemental process. Upon receipt of the order permitting intervention, the Clerk shall file the originally signed intervening complaint, conform a copy of the intervening complaint and issue the supplemental process. Thereafter, the offering party shall deliver the conformed copy of the intervening complaint and supplemental process to the Marshal for execution. Upon receipt of the intervening
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complaint and supplemental process, the Marshal shall re-arrest or re-attach the vessel or property in the name of the intervening plaintiff. Counsel for the intervening party shall also serve a copy of the intervening complaint, exhibits, and supplemental process upon every other party of record and shall thereafter file a Certificate of Service with the Clerk indicating the manner and date of service. (3) Special Requirements for Salvage Actions. In cases of salvage, the complaint shall also state to the extent known, the value of the hull, cargo, freight, and other property salvaged, the amount claimed, the names of the principal salvors, and that the suit is instituted in their behalf and in behalf of all other persons associated with them. In addition to these special pleading requirements, plaintiff shall attach as an exhibit to the complaint a list of all known salvors, and all persons believed entitled to share in the salvage. Plaintiff shall also attach a copy of any agreement of consortship available and known to exist among them collegially or individually. (4) Form of Stipulation or Bonds. Except in cases instituted by the United States through information, or complaint of information upon seizures for any breach of the revenues, navigation, or other laws of the United States, stipulations or bonds in admiralty and maritime actions need not be under seal and may be executed by the agent or attorney of the stipulator or obligor. (5) Deposit of Marshal’s Fees and Expenses Required Prior to Effecting Arrest, Attachment and/or Garnishment. (a) Deposit Required Before Seizure. Any party seeking the arrest or attachment of property in accordance with Supplemental Rule (E) shall deposit a sum with the Marshal sufficient to cover the Marshal’s estimated fees and expenses of arresting and keeping the property for at least ten (10) days. The Marshal is not required to execute process until the deposit is made. (b) Proration of Marshal’s Fees and Expenses Upon Intervention. When one or more parties intervene pursuant to Local Admiralty Rule E(2)(a) or (b), the burden of advancing sums to the Marshal sufficient to cover the Marshal’s fees and expenses shall be allocated equitably between the original plaintiff, and the intervening party or parties as indicated below: (1) Stipulation for the Allocation and Payment of the Marshal’s Fees and Expenses. Immediately upon the filing of the intervening complaint, counsel for the intervening plaintiff shall arrange for a conference between all other parties to the action, at which time a good faith effort shall be made to allocate fees and expenses among the parties. Any resulting stipulation between the parties shall be codified and filed with the Court and a copy served upon the Marshal.
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(2) Allocation of Costs and Expenses in the Event That Counsel Cannot Stipulate. The Court expects that counsel will resolve the allocation of costs and expenses in accordance with the preceding paragraph. In the event that such an arrangement cannot be made, the parties shall share in the fees and expenses of the Marshal in proportion to their claims as stated in the original and intervening complaints. In order to determine the proportionate shares of each party, counsel for the last intervening plaintiff shall determine the total amounts claimed by each party. The individual claims shall be determined from the original and amended complaint, and all other intervening complaints subsequently accepted and processed by the Marshal in accordance with Local Admiralty Rule E(2)(a) or (b). Thereafter, counsel for the last intervening plaintiff shall deliver to the Marshal a list which summarizes each party’s claim, and the proportion which each party’s claim bears to the aggregate claims asserted in the litigation, determined to the nearest one-tenth of one percentage point. Upon receipt of this listing, the Marshal shall determine the total expenses incurred to date and shall estimate the expenses to be incurred during the next ten (10) days. For the purpose of making this calculation, the total fees and expenses shall be calculated from the date when continuous and uninterrupted arrest or attachment of the property began, and not prorated from the date a particular party’s intervening complaint was filed. The Marshal shall then apply the percentages determined in the listing, and shall compute the amount of the intervening party’s initial deposit requirements. The Marshal shall also utilize this listing to compute any additional deposit requirements which may be necessary pursuant to Local Admiralty Rule E(5)(c). The Marshal need not re-arrest or re-attach the vessel and/or property until the deposit is received from the intervening plaintiff. (c) Additional Deposit Requirements. Until the property arrested or attached and garnished has been released or otherwise disposed of in accordance with Supplemental Rule (E), the Marshal may require from any original and intervening party who has caused the arrest or attachment and garnishment of a vessel or property, to post such additional deposits as the Marshal determines necessary to cover any additional estimated fees or expenses. (d) Judicial Relief From Deposit Requirements. Any party aggrieved by the deposit requirements of Local Admiralty Rule E(5)(b) may apply to the Court for relief. Such application shall be predicated upon a showing that owing to the relative priorities of the claims asserted against the vessel or other property, the deposit requirements operate to impose a burden disproportionate to the aggrieved party’s recovery potential. The judicial officer may adjust the deposit requirements, but in no event shall the proportion required of an aggrieved party be reduced to a percentage less than that imposed upon the
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claimant whose claim is the smallest among that of claims which the aggrieved party stipulates as having priority over its claim; or, in the absence of such stipulation, the greatest percentage imposed upon any claimant participating in the deposit requirements. (e) Consequence of Failing to Comply With Additional Deposit Requirements. Any party who fails to make the additional deposit as requested by the Marshal may not participate further in the proceeding, except for the purpose of seeking relief from this rule. Additionally, the Marshal shall notify the Court in writing whenever any party fails to make additional deposits as required by Local Admiralty Rule E(5)(c). In the event that a party questions its obligations to advance monies required by this rule, the Marshal may apply to the Court for instructions concerning that party’s obligation under the rule. (6) Property in Possession of a United States Officer. Whenever the property to be arrested or attached is in custody of a U.S. officer, the Marshal shall serve the appropriate process upon the officer or employee; or, if the officer or employee is not found within the district, then to the custodian of the property within the district. The Marshal shall direct the officer, employee or custodian not to relinquish custody of the property until ordered to do so by the Court. (7) Process Held in Abeyance.
(a) When Permitted. In accordance with Supplemental Rule (E)(3)(b), a plaintiff may ask the Clerk not to issue process, but rather to hold the process in abeyance. The Clerk shall docket this request, and thereafter shall not be responsible for ensuring that process is issued at a later date. (b) When Intervention Is Subsequently Required. It is the intention of these rules that a vessel or other property should be arrested or attached pursuant to process issued and effected in only one civil action. Therefore, if while process is held in abeyance on one action, the vessel or property is arrested or attached in another action, it shall be the responsibility of the plaintiff who originally requested process be held in abeyance in the first action to voluntarily dismiss without prejudice the first action, insofar as that action seeks to proceed against the property arrested or attached in the second action, and promptly intervene in the second action pursuant to Local Admiralty Rule E(2)(a) or (b). In order to prevent undue hardship or manifest injustice, motions to consolidate in rem actions against the same vessel or property will be granted only in exceptional circumstances. (8) Release of Property in Accordance With Supplemental Rule (E)(5).
(a) Release by Consent or Stipulation. Subject to the limitations imposed by Supplemental Rule (E)(5)(c), the Marshal may release any vessel, cargo or property in the Marshal’s
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possession to the party on whose behalf the property is detained. However, as a precondition to release, the Marshal shall require a stipulation, bond, or other security, expressly authorizing the release. The authorizing instrument shall be signed by the party, or the party’s attorney, on whose behalf the property is detained. The stipulation, bond, or other security shall be posted in an amount equal to, or greater than, the amount required for the following types of action: (1) Actions Entirely for a Sum Certain. The amount alleged to be due in the complaint, with interest at six percent (6%) per annum from the date claimed to be due to a date twenty-four (24) months after the date the claim was filed, or by filing an approved stipulation, or bond for the amount alleged plus interest as computed in this subsection. The stipulation or bond shall be conditioned to abide by all orders of the Court, and to pay the amount of any final judgment entered by this Court or any appellate Court, with interest. (2) Actions Other Than Possessory, Petitory or Partition. Unless otherwise ordered by the Court, the amount of the appraised or agreed value of the property seized, with interest. If an appraised value cannot be agreed upon by the parties, the Court shall order an appraisal in accordance with Local Admiralty Rule F(3). The stipulation or bond shall be conditioned to abide by all orders of the Court, and to pay the amount of any final judgment entered by this Court or any appellate Court, with interest. The person consenting or stipulating to the release shall also file a claim in accordance with Local Admiralty Rule E(2)(a) or (b). (3) Possessory, Petitory or Partition Actions. The Marshal may release property in these actions only upon order of Court, and upon the subsequent deposit of security and compliance with such terms and/or conditions as the Court deems appropriate. (b) Release Pursuant to Court Order. In accordance with Supplemental Rule (E)(5)(c), a party may petition to release the vessel pursuant to Court order. A party making such application shall file a Request for Release which shall substantially conform in format and content to the form identified as SDF 8 in the Appendix to these Local Admiralty Rules. Additionally, the party shall prepare, and offer for filing, a proposed order directing the release. This order shall substantially conform in format and content to the form identified as SDF 9 in the Appendix to these Local Admiralty Rules. However, as a precondition to the release, the Marshal shall require a stipulation, bond, or other security, as specified in Local Admiralty Rule E(8)(a)(1), (2) or (3), as appropriate.
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(c) Upon the Dismissal or Discontinuance of an Action. By coordinating with the Marshal to ensure that all costs and charges of the Court and its officers have first been paid. (d) Release Subsequent to the Posting of a General Bond. (1) Requirements of a General Bond. General bonds filed pursuant to Supplemental Rule (E)(5)(b) shall identify the vessel by name, nationality, dimensions, official number or registration number, hailing port and port of documentation. (2) Responsibility for Maintaining a Current Listing of General Bonds. The Clerk shall maintain a current listing of all general bonds. This listing should be maintained in alphabetical order by name of the vessel. The listing will be available for inspection during normal business hours. (3) Execution of Process. The arrest of a vessel covered by a general bond shall be stayed in accordance with Supplemental Rule (E)(5)(b), however, the Marshal shall serve a copy of the complaint upon the master or other person in whose charge or custody the vessel is found. If neither the master nor another person in charge of custody is found aboard the vessel, the Marshal shall make the return accordingly. Thereafter, it shall be plaintiff’s responsibility to advise the owner or designated agent, at the address furnished in the general bond, of (1) the case number, (2) nature of the action and the amount claimed; (3) the plaintiff and name and address of plaintiff’s attorney; and (4) the return date for filing a claim. (9) Application to Modify Security for Value and Interest. At any time, any party having an interest in the subject matter of the action may move the Court, on due notice and for cause, for greater, better or lesser security, and any such order may be enforced by attachment or as otherwise provided by law. (10) Custody and Safekeeping. (a) Initial Responsibility. The Marshal shall initially take custody of any vessel, cargo and/or other property arrested, or attached in accordance with these rules. Thereafter, and until such time as substitute custodians may be authorized in accordance with Local Admiralty Rule E(10)(c), the Marshal shall be responsible for providing adequate and necessary security for the safekeeping of the vessel or property. In the discretion of the Marshal, adequate and necessary security may include the placing of keepers on or near the vessel and/or the appointment of a facility or person to serve as a custodian of the vessel or property. (b) Limitations on the Handling, Repairing and Subsequent Movement of Vessels or Property. Subsequent to the arrest or attachment of a vessel or property, and except as provided in Local Admiralty Rule E(10)(a), no person may handle cargo, conduct repairs, or move a vessel without prior order of Court. Notwithstanding the foregoing, the custodian
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or substitute custodian is obligated to comply with any orders issued by the Captain of the Port, United States Coast Guard, including an order to move the vessel; and to comply with any applicable federal, state, or local laws or regulations pertaining to vessel and port safety. Any movement of a vessel pursuant to such requirements must not remove the vessel from the Southern District of Florida and shall be reported to the Court within twenty-four (24) hours of the vessel’s movement. (c) Procedures for Changing Custody Arrangements. Any party may petition the Court to dispense with keepers, remove or place the vessel, cargo and/or other property at a specified facility, designate a substitute custodian for the vessel or cargo, or for other similar relief. The motion shall substantially conform in format and content to the form identified as SDF 5 in the Appendix of these Local Admiralty Rules. (1) Notification of the Marshal Required. When an application for change in custody arrangements is filed, either before or after the Marshal has taken custody of the vessel or property, the filing party shall serve notice of the application on the Marshal in sufficient time to permit the Marshal to review the indemnification and insurance arrangements of the filing party and substitute custodian. The application shall also be served upon all other parties to the litigation. (2) Indemnification Requirements. Any motion for the appointment of a substitute custodian or facility shall include as an exhibit to the motion, a consent and indemnification agreement signed by both the filing party, or the filing party’s attorney, and the proposed substitute custodian. The consent and indemnification agreement shall expressly release the Marshal from any and all liability and responsibility for the care and custody of the property while in the hands of the substitute custodian; and shall expressly hold the Marshal harmless from any and all claims whatsoever arising from the substitute custodianship. The agreement shall substantially conform in format and content to the form identified as SDF 6 in the Appendix to these Local Admiralty Rules. (3) Court Approval Required. The motion to change custody arrangements, and indemnification and consent agreement shall be referred to a judicial officer who shall determine whether the facility or substitute custodian is capable of safely keeping the vessel, cargo and/or property. (d) Insurance Requirements. (1) Responsibility for Initially Obtaining Insurance. Concurrent with the arrest or attachment of a vessel or property, the Marshal shall obtain insurance to protect the Marshal, the Marshal’s deputies, keepers, and custodians from liability arising from the arrest or attachment. The insurance shall also protect the Marshal and the Marshal’s deputies or agents from any liability arising from performing services undertaken to protect the vessel, cargo
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and/or property while that property is in the custody of the Court. (2) Payment of Insurance Premiums. It shall be the responsibility of the party applying for the arrest or attachment of a vessel, cargo and/or property to promptly reimburse the Marshal for premiums paid to effect the necessary insurance. The party applying for change in custody arrangements shall be responsible for paying the Marshal for any additional premium associated with the change. (3) Taxation of Insurance Premiums. The premiums charged for the liability insurance will be taxed as an expense of custody while the vessel, cargo and/or property is in custodia legis. (11) Preservation, Humanitarian and Repatriation Expenses. (a) Limitations on Reimbursement for Services and/or Supplies Provided to a Vessel or Property in Custody. Except in cases of emergency or undue hardship, no person will be entitled to claim as an expense of administration the costs of services or supplies furnished to a vessel, cargo and/or property unless such services or supplies have been furnished to the Marshal upon the Marshal’s order, or pursuant to an order of this Court. Any order issued pursuant to this subsection shall require the person furnishing the services or supplies to file a weekly invoice. This invoice shall be set forth in the format prescribed in Local Admiralty Rule E(11)(e). (b) Preservation Expenses for the Vessel and Cargo. The Marshal, or substitute custodian, is authorized to incur expenses reasonably deemed necessary in maintaining the vessel, cargo and/or property in custody for the purpose of preventing the vessel, cargo and/or property from suffering loss or undue deterioration. (c) Expenses for Care and Maintenance of a Crew. Except in an emergency, or upon the authorization of a judicial officer, neither the Marshal nor substitute custodian shall incur expenses for feeding or otherwise maintaining the crew. Applications for providing food, water and necessary medical services for the maintenance of the crew may be submitted, and decided ex parte by a judicial officer, providing such an application is made by some person other than the owner, manager or general agent of the vessel. Such applications must be filed within thirty (30) days from the date of the vessel’s initial seizure. Otherwise, except in the case of an emergency, such applications shall be filed and served upon all parties, who in turn shall have ten (10) days from receipt of the application to file a written response. Expenses for feeding or otherwise maintaining the crew, when incurred in accordance with this subsection, shall be taxed as an expense of administration and not as an expense of custody.
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(d) Repatriation Expenses. Absent an order of Court expressly ordering the repatriation of the crew and/or passengers, and directing that the expenses be taxed as a cost of administration, no person shall be entitled to claim these expenses as expenses of administration. (e) Claim by a Supplier for Payment of Charges. Any person who claims payment for furnishing services or supplies in compliance with Local Admiralty Rule E(11), shall submit an invoice to the Marshal’s office for review and approval. The claim shall be presented in the form of a verified claim, and shall be submitted within a reasonable time after furnishing the services or supplies, but in no event shall a claim be accepted after the vessel, or property has been released. The claimant shall file a copy of the verified claim with the Marshal, and also serve the substitute custodian and all other parties to the litigation. The Marshal shall review the claim, make adjustments or recommendations to the claim as are appropriate, and shall thereafter forward the claim to the Court for approval. The Court may postpone the hearing on an individual claim until a hearing can be set to consolidate other claims against the property. (12) Property in Incidental Custody and Otherwise Not Subject to the Arrest or Attachment. (a) Authority to Preserve Cargo in Incidental Custody. The Marshal, or an authorized substitute custodian, shall be responsible for securing, maintaining and preserving all property incidentally taken into custody as a result of the arrest or attachment of a vessel or property. Incidental property may include, but shall not be limited to, laden cargo not itself the subject of the arrest or attachment. The Marshal or other custodian shall maintain a separate account of all costs and expenses associated with the care and maintenance of property incidentally taken into custody. Any person claiming entitlement to possession of property incidentally taken into custody shall be required, as a precondition of receiving possession, to reimburse the Marshal for such separately accounted expenses. Monies received by the Marshal will be credited against both the expense of custody and administration. (b) Separation, Storage and Preservation of Property in Incidental Custody. Any party, or the Marshal, may petition the Court to permit the separation and storage of property in incidental custody from the property actually arrested or attached. When separation of the property is ordered to protect the incidentally seized property from undue deterioration; provide for safer storage; meet an emergency; reduce the expenses of custody; or to facilitate a sale of the vessel or other property pursuant to Local Admiralty Rule E(16); the costs of such separation shall be treated as an expense of preservation and taxed as a cost of custody.
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(c) Disposal of Unclaimed Property. Property incidentally in custody and not subsequently claimed by any person entitled to possession, shall be disposed of in accordance with the laws governing the disposition of property abandoned to the United States of America. Except when prohibited by prevailing federal statute, the resulting net proceeds associated with the disposition of abandoned property shall be applied to offset the expense of administration, with the remainder escheating to the United States of America as provided by law. (13) Dismissal. (1) By Consent. No action may be dismissed pursuant to Fed.R.Civ.P. 41(a) unless all costs and expenses of the Court and its officials have first been paid. Additionally, if there is more than one plaintiff or intervening plaintiff, no dismissal may be taken by a plaintiff unless that party’s proportionate share of costs and expenses has been paid in accordance with Local Admiralty Rule E(6). (2) Involuntary Dismissal. If the Court enters a dismissal pursuant to Fed.R.Civ.P. 41(b), the Court shall also designate the costs and expenses to be paid by the party or parties so dismissed. (14) Judgments. (1) Expenses of Sureties as Costs. If costs are awarded to any party, then all reasonable premiums or expenses paid by the prevailing party on bonds, stipulations and/or other security shall be taxed as costs in the case. (2) Costs of Arrest or Attachment. If costs are awarded to any party, then all reasonable expenses paid by the prevailing party incidental to, or arising from the arrest or attachment of any vessel, property and/or cargo shall be taxed as costs in the case. (15) Stay of Final Order. (a) Automatic Stay for Ten (10) Days. In accordance with Fed.R.Civ.P. 62(a), no execution shall issue upon a judgment, nor shall seized property be released pursuant to a judgment or dismissal, until ten (10) days after the entry of the judgment or order of dismissal. (b) Stays Beyond the Ten (10) Day Period. If within the ten (10) day period established by Fed.R.Civ.P. 62(a), a party files any of the motions contemplated in Fed.R.Civ.P. 62(b), or a notice of appeal, then unless otherwise ordered by the Court, a further stay shall exist for a period not to exceed thirty (30) days from the entry of the judgment or order. The
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purpose of this additional stay is to permit the Court to consider an application for the establishment of a supersedeas bond, and to order the date upon which the bond shall be filed with the Court. (16) Notice of Sale. (1) Publication of Notice. In an action in rem or quasi in rem, and except in suits on behalf of the United States of America where other notice is prescribed by statute, the Marshal shall publish notice in any of the newspapers approved pursuant to Local Admiralty Rule A(7). (2) Duration of Publication. Unless otherwise ordered by the Court, applicable Supplemental Rule, or Local Admiralty Rule, publication of the notice of sale shall be made at least twice; the first publication shall be at least one (1) calendar week prior to the date of the sale, and the second at least three (3) calendar days prior to the date of the sale. (17) Sale of a Vessel or Property. (a) Payment of the Purchase Price. Unless otherwise provided in the order of sale, the person whose bid is accepted shall pay the Marshal the purchase price in the manner provided below; (1) If the Bid Is Not More Than $500.00. The successful bidder shall immediately pay the full purchase price. (2) If the Bid Is More Than $500.00. The bidder shall immediately deposit with the Marshal $500.00, or 10% of the bid, whichever sum is greater. Thereafter the bidder shall pay the remaining purchase price within three (3) working days. If an objection to the sale is filed within the time permitted by Local Admiralty Rule E(17)(g), the successful bidder is excused from paying the remaining purchase price until three (3) working days after the Court confirms the sale. (b) Method of Payment. Unless otherwise ordered by the Court, payments to the Marshal shall be made in cash, certified check or cashier’s check. (c) Custodial Costs Pending Payment. When a successful bidder fails to pay the balance of the bid within the time allowed by Local Admiralty Rule E (17)(a)(2), or within the time permitted by order of the Court, the Marshal shall charge the successful bidder for the cost of keeping the property from the date payment of the balance was due, to the date the bidder takes delivery of the property. The Marshal may refuse to release the property until these additional charges have been paid.
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(d) Default for Failure to Pay the Balance. The person who fails to pay the balance of the bid within the time allowed shall be deemed to be in default. Thereafter a judicial officer may order that the sale be awarded to the second highest bidder, or may order a new sale as appropriate. Any sum deposited by the bidder in default shall be forfeited, and the amount shall be applied by the Marshal to any additional costs incurred because of the forfeiture and default, including costs incident to resale. The balance of the deposit, if any, shall be retained in the registry and subject to further order of the Court. (e) Marshal’s Report of Sale. At the conclusion of the sale, the Marshal shall file a written report of the sale to include the date of the sale, the price obtained, and the name and address of the buyer. (f) Confirmation of Sale. Unless an objection is timely filed in accordance with this rule, or the purchaser is in default for failing to pay the balance of the purchase price, plaintiff shall proceed to have the sale confirmed on the day following the last day for filing objections. In order to confirm the sale, plaintiff’s counsel shall file a “Request for Confirmation of Sale” on the day following the last day for filing an objection. The “Request for Confirmation of Sale” shall substantially conform in format and content to the form identified as SDF 10 in the Appendix to these Local Admiralty Rules. Plaintiff’s counsel shall also prepare and offer for filing a “Confirmation of the Sale”. The “Confirmation of Sale” shall substantially conform in format and content to the form identified as SDF 11 in the Appendix to these Local Admiralty Rules. Thereafter the Clerk shall file and docket the confirmation and shall promptly transmit a certified copy of the “Confirmation of Sale” to the Marshal’s office. Unless otherwise ordered by the Court, if the plaintiff fails to timely file the “Request for Confirmation of Sale” and proposed “Confirmation of Sale”, the Marshal shall assess any continuing costs or expenses for custody of the vessel or property against the plaintiff. (g) Objections to Confirmation. (1) Time for Filing Objections. Unless otherwise permitted by the Court, an objection must be filed within three (3) working days following the sale. The party or person filing an objection shall serve a copy of the objection upon the Marshal and all other parties to the action, and shall also file a Certificate of Service indicating the date and manner of service. Opposition to the objection must be filed within five (5) days after receipt of the objection of the sale. The Court shall consider the objection, and any opposition to the objection, and shall confirm the sale, order a new sale, or grant other relief as appropriate.
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(2) Deposit of Preservation or Maintenance Costs. In addition to filing written objections, any person objecting to the sale shall also deposit with the Marshal the cost of keeping the property for at least seven (7) days. Proof of the deposit with the Marshal’s office shall be delivered to the Clerk’s office by the moving party. The Court will not consider the objection without proof of this deposit. If the objection is sustained, the objector will be reimbursed for the expense of keeping the property from the proceeds of any subsequent sale, and any remaining deposit will be returned to the objector upon Court order. If the objection is denied, the sum deposited by the objector will be applied to pay the fees and expenses incurred by the Marshal in keeping the property from the date the objection was filed until the sale is confirmed. Any remaining deposit will be returned to the objector upon order of Court. (h) Confirmation of Title. Failure of a party to give the required notice of an action and arrest of a vessel, property and/or cargo, or failure to give required notice of a sale, may afford grounds for objecting to the sale, but such failure does not affect the title of a good faith purchaser of the property. (18) Post-sale Claim. Claims against the proceeds of a sale authorized by these rules, except for seamen’s wages, will not be admitted on behalf of lienors who file their claims after the sale. Unless otherwise ordered by the Court, any claims filed after the date of the sale shall be limited to the remnants and surplus arising from the sale. Effective Dec. 1, 1994; amended effective April 15, 1998. Advisory Notes (1993) E(1). This section continues the provisions of former Local Rule 7(c). E(2). This section is new. The rules do not require an intervening plaintiff to undertake the formal steps required to issue the original process of arrest or attachment pursuant to Local Admiralty Rule B(3) or C(2); rather the Committee believes that intervening parties need only apply for supplemental process, which in accordance with the August 1, 1985, amendments to Supplemental Rule (B) and (C), may be issued by the clerk without further order of the Court. The Committee recommends the re-arrest or re-attachment provisions of this rule in order to accommodate the administrative and records keeping requirements of the marshal’s office. The revision also reflects the elimination of the initial security deposit formerly required by Local Admiralty Rule 5(e). The Marshal shall, however, assess custodial costs against the intervening plaintiff in accordance with Local Admiralty Rule E(5)(b).
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E(3). This section continues the provisions of former Local Rule 7(e). E(4). This section continues the provisions of former Local Rule 6. E(5). The Marshal, as an officer of the Court whose fiscal affairs are regulated by statute and order, is precluded by law from expending funds of the United States to maintain custody of vessels or other property pursuant to claims being asserted by the several states, any foreign sovereigns, or any private parties. This prohibition extends to incurring obligations which, if not satisfied, otherwise might be asserted as a claim against the United States. Consequently, before undertaking to arrest or attach property, the Marshal must receive funds in advance of incurring such obligations sufficient to satisfy them. Past experience indicates that not infrequently vessels or other properties arrested for nonpayment of incurred obligations will be ultimately sold for satisfaction, to the extent possible, of pending claims. In such cases, substitute security is never given, and the property must be retained in custody for a sufficient period of time to permit the Court to determine the status of the situation and to order appropriate procedures. In such instances, custodial costs tend to be substantial and, by the very nature of the circumstances, the claimants and potential claimants can be both large in number and will vary markedly in the amounts of their respective individual claims. Apportioning the obligation to make advances against custodial costs over this range of claims and claimants has resulted in frequent calls for judicial intervention. It was the Committee’s view that a system initially self-executing and ministerial would minimize situations calling for judicial intervention while affording the Marshal the protection of assured and certain procedures. At the same time, the Committee was strongly of the opinion that the rules should do substantial equity as between claims showing wide variation in amounts and potential priorities and, at the same time, should be so structured as to require all potential claimants to come forward and share in the cost of custody, discouraging the sometime practice of claimants’ waiting to intervene until the last moment in order to allow other parties to bear the burdens of making such advances. A concern was expressed about the position of parties having large, but clearly inferior claims, who, in equity should not be required to share on a prorated value-of-the-claim-asserted basis with claimants who have obvious priority. A typical example of such a situation would involve a mortgagee of a foreign-flag vessel appearing as a claimant in an action along with lien claimants alleging to have supplied necessaries to a vessel in ports of the United States, the mortgagee’s position being subordinated by virtue of 46 U.S.C. 951. After considering all possible alternatives, it was obvious that this limited range of situations could not be addressed through a mechanism for automatic administration and, consequently, the provision providing for judicial relief in the event of hardship or inequity was included. E(6). Section (6) is new. It reflects the approach embodied in the local rules of those districts which have addressed the question of properties subject to arrest but already in the possession of an officer of the United States.
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E(7). The provisions of section (7) are new. Paragraph (a), following rules promulgated in other districts, states what is understood by the advisory committee to have been the practice in this district. Paragraph (b) is designed to mesh the concept of process held in abeyance with the requirements of Local Rule E(2) regarding intervening claims, and is designed to foreclose the possibility of a vessel or other property being arrested or attached in the district as a result of more than one civil action. Since under Local Rule 5(b), the automatic, permissive intervention is not triggered until the vessel or other property has been arrested, attached or seized, a suit in rem in which process is held in abeyance will not form the basis for such an intervention. On the other hand, once the property is arrested, attached or seized, the issuance of process in the earlier suit would be destructive of the “only one civil action” concept, and, consequently paragraph (b) requires a party whose process was held in abeyance to refile as an intervenor pursuant to E(2), making provision for the proper disposition of the earlier action. E(8). Section (8) continues the provisions of Local Rule 11. E(9). Section (9) is new. The provisions of Section (j) are expressly authorized by Supplemental Rule (E)(6) and offer some potential relief from the automatic operations and other provisions of Supplemental Rule (E) regarding security for value and interest. The decision in Industria Nacional del Papel, C.A. M V Albert F., 730 F.2d 622 (11th Cir. 1984) indicates that such an application must be made prior to the entry of judgment. E(10). Section (10) is new. It is designed to reflect the actual practice in the district, and follows the rules promulgated in several other districts. In formulating this rule, the Committee studied Section 6.3 of the “Marshal’s Manual”, the internal operating guide for the United States Marshal’s Service. Section 10(b) was amended in 1998 to permit substitute custodians to move arrested vessels, pursuant to an order of the United State Coast Guard Captain of the Port (“COTP”), without first obtaining permission from the Court. The change was prompted by instances where substitute custodians declined to obey a COTP order to move an arrested vessel, citing Local Admiralty Rule E(10)(b) and its requirement that Court permission be first obtained. Any movement of a vessel pursuant to a COTP order must not take the vessel out of the Southern District of Florida. A corresponding change was made in Form 5, paragraph (5). E(11). Section (11) is new. It addresses areas which in recent litigation in the district have called excessively for interim judicial administration. While the subject matter is covered in the rules promulgated in other districts, section (11) differs from the approach of other districts in providing for a more positive control of expenses being incurred in connection with vessels or other property in the custody of the Court, and is designed to avoid accumulated costs being advanced for the first time well after having been incurred. E(12). Section (12) is new. It addresses a situation which has arisen in the district in the past and which can be foreseen as possibly arising in the future. While the subject is not addressed in other local rules studied by any oft-cited leading cases, it was the opinion of the Committee that the area should be addressed by local rule and that the provisions of Section (12) are both consistent with the general maritime laws of the United States and designed to permit efficient administration without the necessity for undue judicial intervention. As with the claims of intervenors and the allocation
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of deposits against custodial costs, the provisions of Section (12), in keeping with the design of these local rules, are intended to be essentially self-executing, with the emphasis on the ministerial role of Court officers and services. E(13). Section (13) continues the provisions of former Local Rule 17(a). It follows Rule 41, Fed.R.Civ.P., and addresses the necessarily greater concern for costs and expenses inherent in the in rem admiralty procedure. E(14). Section (14) continues the provisions of former Local Rule 13. E(15). Section (15) incorporates the provisions of former Local Rule 14. E(16) and (17). The provisions of former Local Rule 4 have been expanded to provide a standardized procedure governing sales of property, which procedure the Court, at its option, may utilize, in whole or in part, thus shortening and simplifying orders related to sales and accompanying procedures. E(18). Consistent with the provision of Local Rule E(2), this section gives express notice of the distinct positions of claims pre-sale and post-sale. RULE F. ACTIONS TO LIMIT LIABILITY (1) Publication of the Notice. Immediately upon the commencement of an action to limit liability pursuant to Supplemental Rule (F), plaintiff shall, without further order of Court, effect publication of the notice in accordance with the provisions set forth in Supplemental Rule (F)(4) and Local Admiralty Rule A(7). (2) Proof of Publication. Plaintiff shall file proof of publication not later than the return date. It shall be sufficient proof for plaintiff to file the sworn statement by, or on behalf of, the publisher or editor, indicating the dates of publication, along with a copy or reproduction of the actual publication. (3) Appraisals Pursuant to Supplemental Rule (F)(7). Upon the filing of a claimant’s motion pursuant to Supplemental Rule (F)(7), demanding an increase in the funds deposited in Court or the security given by plaintiff, the Court shall order an appraisement of the value of the plaintiff’s interest in the vessel and pending cargo. Upon receipt of the order directing the appraisal, the parties shall have three (3) working days to file a written stipulation to an appraiser. In the event that the parties do not file a stipulation, the Court shall appoint the appraiser. The appraiser shall promptly conduct an appraisal and thereafter file the appraisal with the Clerk and serve a copy of the appraisal upon the moving party and the plaintiff. The appraiser shall also file a Certificate of Service indicating the date and manner in which service was perfected.
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(4) Objections to the Appraisal. Any party may move to set aside the appraisal within ten (10) days following the filing of the appraisal with the Clerk. (5) Fees of the Appraiser. The Court shall establish the fee to be paid the appraiser. Unless otherwise ordered by the Court, the fee shall be taxed against the party seeking relief under Supplemental Rule (F)(7). Effective Dec. 1, 1994. Advisory Notes (1993) F(1). This section incorporates the publication provisions of Local Admiralty Rule A(7), and applies them to limitation of liability actions. The rule provides for the publication of the notice required by Supplemental Rule (F)(4) without further order of the Court. The Committee believes that this self-executing aspect of the rule will save judicial time and at the same time will not impair the rights of any party or claimant. F(2). The Committee determined that filing proof of publication with the clerk was essential in order to establish an adequate record of the publication. F(3). This section continues in substance the provisions of former Local Admiralty Rule 10.
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APPENDIX OF FORMS. ADMIRALTY AND MARITIME RULES FORM 1. ORDER DIRECTING THE ISSUANCE OF THE PROCESS OF ATTACHMENT AND GARNISHMENT
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________
Pursuant to Supplemental Rule (B)(1) and Local Admiralty Rule B(3)(a), the Clerk is directed to issue the summons and process of attachment and garnishment in the above-styled action. DONE AND ORDERED at ____________, Florida, this ______ day of ____________, ________. ______________________________ United States District Judge
Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 2. PROCESS OF ATTACHMENT AND GARNISHMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
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Plaintiff, v.
Defendant. _________________________
PROCESS OF ATTACHMENT AND GARNISHMENT The complaint in the above-styled case was filed in the __________ Division of this Court on ____________, ______. In accordance with Supplemental Rule (B) of Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure and Local Admiralty Rule B, you are directed to attach and garnish the property indicated below: DESCRIPTION (Describe the property to be attached and garnished in sufficient detail, including location the property, to permit the U.S. Marshal to effect the seizure.)
of
You shall also give notice of the attachment and garnishment to every person required by appropriate Supplemental Rule, Local Admiralty Rule, and the practices of your office. DATED at ____________, Florida, this ______ day of ____________, ______. CLERK By:___________________ Deputy Clerk (Name of Plaintiff’s Attorney) (Florida Bar Number, if admitted in Fla.) (Firm Name, if applicable) (Mailing Address) (City, State & Zip Code) (Telephone Number) (Facsimile Number) (E-Mail Address)
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SPECIAL NOTICE Any person claiming an interest in property seized pursuant to this process of attachment and garnishment must file a claim in accordance with the post-seizure review provisions of Local Admiralty Rule B(5). Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 3. ORDER DIRECTING THE ISSUANCE OF THE WARRANT OF ARREST UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ ORDER DIRECTING THE ISSUANCE OF THE WARRANT OF ARREST AND/OR SUMMONS Pursuant to Supplemental Rule (C)(1) and Local Admiralty Rule C(2)(a), the Clerk is directed to issue a warrant of arrest and/or summons in the above-styled action. DONE AND ORDERED at ____________, Florida, this ______ day of ____________, ________.
_____________________________________ United States District Judge Effective Dec. 1, 1994; amended effective April 15, 2001.
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FORM 4. WARRANT FOR ARREST IN REM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff,
v.
Defendant. _________________________ WARRANT FOR ARREST IN REM TO THE UNITED STATES MARSHAL FOR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA The complaint in the above-styled in rem proceeding was filed in the __________ Division of this Court on ____________, _____. In accordance with Supplemental Rule (C) for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure and Local Admiralty Rule C, you are directed to arrest the Defendant vessel, her boats, tackle, apparel and furniture, engines and appurtenances, and to detain the same in your custody pending further order of the Court. You shall also give notice of the arrest to all persons required by appropriate Supplemental Rule, Local Admiralty Rule, and the practices of your office. ORDERED at ____________, Florida, this ______ day of ____________, _____. CLERK By: ______________________ Deputy Clerk (Name of Plaintiff’s Attorney) (Florida Bar Number, if admitted in Fla.) (Firm Name, if applicable)
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(Mailing Address) (City, State & Zip Code) (Telephone Number) (Facsimile Number) (E-Mail Address) cc: Counsel of Record SPECIAL NOTICE In accordance with Local Admiralty Rule C(6), any person claiming an interest in the vessel and/or property shall be required to file a claim within ten (10) days after process has been executed, and shall also be required to file an answer within twenty (20) days after the filing of his claim. Any persons claiming an interest in the vessel and/or property may also pursue the post-arrest remedies set forth in Local Admiralty Rule C(7). Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 5. MOTION FOR APPOINTMENT OF SUBSTITUTE CUSTODIAN UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ MOTION FOR APPOINTMENT OF SUBSTITUTE CUSTODIAN Pursuant to Local Admiralty Rule E(10)(c), Plaintiff ____________________, by and through the undersigned attorney, represents the following:
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(1) On ____________, _____, Plaintiff initiated the above-styled action against the vessel ____________________________, her boats, tackle, apparel, furniture and furnishings, equipment, engines and appurtenances. (2) On ____________, _____, the Clerk of the District Court issued a Warrant of Arrest against the vessel ______________________, directing the U.S. Marshal to take custody of the vessel, and to retain custody of the vessel pending further order of this Court. (3)(a) Subsequent to the issuance of the Warrant of Arrest, the marshal will take steps to immediately seize the vessel. Thereafter, continual custody by the marshal will require the services of at least one custodian at a cost of at least $____________ per day. (This paragraph would be applicable only when the motion for appointment is filed concurrent with the complaint and application for the warrant of arrest.) -or(3)(b) Pursuant to the previously issued Warrant of Arrest, the Marshal has already arrested the vessel. Continued custody by the Marshal requires the services of ____________ custodians at a cost of at least $____________ per day. (This paragraph would be applicable in all cases where the Marshal has previously arrested the vessel.) (4) The vessel is currently berthed at ____________, and subject to the approval of the Court, the substitute custodian is prepared to provide security, wharfage, and routine services for the safekeeping of the vessel at a cost substantially less than that presently required by the Marshal. The substitute custodian has also agreed to continue to provide these services pending further order of this Court. (5) The substitute custodian has adequate facilities for the care, maintenance and security of the vessel. In discharging its obligation to care for, maintain and secure the vessel, the Substitute Custodian shall comply with all orders of the Captain of the Port, United States Coast Guard, including but not limited to, an order to move the vessel; and any applicable federal, state, and local laws, regulations and requirements pertaining to vessel and port safety. The Substitute Custodian shall advise the Court, the parties to the action, and the United States Marshal, of any movement of the vessel pursuant to an order of the Captain of the Port, within twenty-four (24) hours of such vessel movement. (6) Concurrent with the Court’s approval of the Motion for Appointment of the Substitute Custodian, Plaintiff and the Substitute Custodian will file a Consent and Indemnification Agreement in accordance with Local Admiralty Rule E(10)(c)(2). THEREFORE, in accordance with the representations set forth in this instrument, and subject to the filing of the indemnification agreement noted in paragraph (6) above, Plaintiff requests this Court to enter an order appointing ____________ as the Substitute Custodian for the vessel ______________________.
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DATED at ____________, Florida, this ______ day of ____________, _____.
____________________________________ SIGNATURE OF COUNSEL OF RECORD Typed Name of Counsel Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address cc: Counsel of Record Substitute Custodian SPECIAL NOTE Plaintiff’s attorney shall also prepare for the Court’s signature and subsequent filing, a proposed order for the Appointment of Substitute Custodian. Effective Dec. 1, 1994; amended effective April 15, 1998; April 15, 2001.
FORM 6. CONSENT AND INDEMNIFICATION AGREEMENT FOR THE APPOINTMENT OF A SUBSTITUTE CUSTODIAN UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. ________________________
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CONSENT AND INDEMNIFICATION AGREEMENT FOR THE APPOINTMENT OF A SUBSTITUTE CUSTODIAN
Plaintiff ____________________, (by the undersigned attorney) and ____________________, the proposed Substitute Custodian, hereby expressly release the U.S. Marshal for this district, and the U.S. Marshal’s Service, from any and all liability and responsibility for the care and custody of ____________________ (describe the property) while in the hands of ____________________ (substitute custodian). Plaintiff and ____________________ (substitute custodian) also expressly agree to hold the U.S. Marshal for this district, and the U.S. Marshal’s Service, harmless from any and all claims whatsoever arising during the period of the substitute custodianship. As counsel of record in this action, the undersigned attorney represents that he has been expressly authorized by the Plaintiff to sign this Consent and Indemnification Agreement for, and on behalf of the Plaintiff. SIGNED this ______ day of ____________, _______, at ____________, Florida.
_______________________ PLAINTIFF’S ATTORNEY Typed Name Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address cc: Counsel of Record Effective Dec. 1, 1994; amended effective April 15, 2001.
_________________________ SUBSTITUTE CUSTODIAN Typed Name Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address
FORM 7. NOTICE OF ACTION IN REM AND ARREST OF VESSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name)
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“IN ADMIRALTY”
Plaintiff,
v.
Defendant. _________________________ NOTICE OF ACTION IN REM AND ARREST OF VESSEL In accordance with Supplemental Rule (C)(4) for Certain Admiralty and Maritime Action of the Federal Rules of Civil Procedure, and Local Admiralty Rule C(4), notice is hereby given of the arrest of ____________________, in accordance with a Warrant of Arrest issued on ____________, ________. Pursuant to Supplemental Rule (C)(6), and Local Admiralty Rule C(6), any person having a claim against the vessel and/or property shall file a claim with the Court not later than ten (10) days after process has been effected, and shall file an answer within twenty (20) days from the date of filing their claim. DATED at ____________, Florida, this ______ day of ____________, ______.
_________________________________________ SIGNED NAME OF PLAINTIFF’S ATTORNEY Typed Name of Counsel Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address cc: Counsel of Record Effective Dec. 1, 1994; amended effective April 15, 2001.
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FORM 8. MOTION FOR RELEASE OF A VESSEL OR PROPERTY IN ACCORDANCE WITH SUPPLEMENTAL RULE (E)(5) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ MOTION FOR RELEASE OF A VESSEL OR PROPERTY IN ACCORDANCE WITH SUPPLEMENTAL RULE (E)(5) In accordance with Supplemental Rule (E)(5) and Local Admiralty Rule E(8)(b), plaintiff, on whose behalf property has been seized, requests the Court to enter an Order directing the United States Marshal for the Southern District of Florida to release the property. This request is made for the following reasons: (Describe the reasons in sufficient detail to permit the Court to enter an appropriate order.) DATED at ____________, Florida, this ______ day of ____________, ______.
_________________________________________ SIGNED NAME OF PLAINTIFF’S ATTORNEY Typed Name of Counsel Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address cc: Counsel of Record
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Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 9. ORDER DIRECTING THE RELEASE OF A VESSEL OR PROPERTY IN ACCORDANCE WITH SUPPLEMENTAL RULE (E)(5) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ ORDER DIRECTING THE RELEASE OF A VESSEL OR PROPERTY IN ACCORDANCE WITH SUPPLEMENTAL RULE (E)(5) In accordance with Supplemental Rule (E)(5) and Local Admiralty Rule E(8)(a), and pursuant to the Request for Release filed on ____________, ______, the United States Marshal is directed to release the vessel and/or property currently being held in his custody in the above-styled action. ORDERED at ____________, Florida, this ______ day of ____________, ______.
_____________________________________ United States District Judge cc: Counsel of Record Effective Dec. 1, 1994; amended effective April 15, 2001.
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FORM 10. REQUEST FOR CONFIRMATION OF SALE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ REQUEST FOR CONFIRMATION OF SALE Plaintiff, by and through its undersigned attorney certifies the following: (1) Date of Sale: In accordance with the Court’s previous Order of Sale, plaintiff represents that the sale of ____________________ (describe the property) was conducted by the Marshal on ____________, ______. (2) Last Day for Filing Objections: Pursuant to Local Admiralty Rule E(17)(g)(1), the last day for filing objections to the sale was ____________, _____. (3) Survey of Court Records: Plaintiff has surveyed the docket and records of this case, and has confirmed that as of ____________, ______, there were no objections to the sale on file with the Clerk of Court. THEREFORE, in light of the facts presented above, plaintiff requests the Clerk to enter a Confirmation of Sale and to transmit the confirmation to the Marshal for processing. DATED at ____________, Florida, this ______ day of ____________, ______.
_________________________________________ SIGNED NAME OF PLAINTIFF’S ATTORNEY Typed Name of Counsel Fla. Bar ID No. (if admitted in Fla.) Firm or Business Name
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Mailing Address City, State, Zip Code Telephone Number Facsimile Number E-Mail Address cc: Counsel of Record Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 11. CONFIRMATION OF SALE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name) “IN ADMIRALTY”
Plaintiff, v.
Defendant. _________________________ CONFIRMATION OF SALE The records in this action indicate that no objection has been filed to the sale of property conducted by the U.S. Marshal on ____________, ______. THEREFORE, in accordance with Local Admiralty Rule E(17)(f), the sale shall stand confirmed as of ____________, ______. DONE at ____________, Florida, this ______ day of ____________, ______.
CLERK By: _____________________ Deputy Clerk
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cc: U.S. Marshal Counsel of Record Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 12. SUMMONS AND PROCESS OF MARITIME ATTACHMENT AND GARNISHMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name)
SUMMONS AND PROCESS OF MARITIME ATTACHMENT AND GARNISHMENT THE PRESIDENT OF THE UNITED STATES OF AMERICA TO: THE UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF FLORIDA. GREETING: WHEREAS, on the ______ day of ____________, ______, ____________________ filed a complaint against ________________________________________________________________ for reasons in said complaint mentioned for the sum of and praying for process of marine attachment and garnishment against the said defendant and __________ ____________________________, WHEREAS, this process is issued pursuant to such prayer and requires that a garnishee shall serve his answer within twenty (20) days after service of process upon him and requires that a defendant shall serve his answer within thirty (30) days after process has been executed, whether by attachment of property or service on the garnishee, NOW, THEREFORE, you are hereby commanded that if the said defendant cannot be found within the District you attach goods, chattels, credits and effects located and to be found at ______ and described as follows: ___________________________________________, or in the hands of ____________________________, the garnishee, up to the amount sued for, to-wit: and how you shall have executed this process, make known to this Court with your certificate of execution thereof written. WITNESS THE HONORABLE __________________________________________ Judge of said Court at __________, Florida, in said District, this ________ day of
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__________, ______. ________________________________, CLERK BY: ______________________ Deputy Clerk NOTE: This process is issued pursuant to Rule B(1) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 13. MARITIME SUMMONS TO SHOW CAUSE RESPECTING INTANGIBLE PROPERTY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name)
MARITIME SUMMONS TO SHOW CAUSE RESPECTING INTANGIBLE PROPERTY
Plaintiff, vs.
Defendant(s).
TO ALL PERSONS having control of the freight of the vessel ____________ or control of the proceeds of the sale of said vessel or control of the proceeds of the sale of any property appurtenant thereto or control of any other intangible property appurtenant thereto. You are hereby summoned to interpose in writing a claim, by attorney or in proper person, at the Clerk’s Office in said District within ten (10) days after the service, and therewith or thereafter within twenty (20) days following such claim or thirty (30) days after the service, whichever is less, a responsive pleading to the complaint herewith served upon you and to show cause why said property under your control should not be paid into court to abide the judgment; and you are required so also to serve copy thereof upon ____________, plaintiff’s attorney(s) whose address is ____________________; or if you do not claim said property then to so serve and show cause why said property under your control should not be paid into court to abide the judgment. The service of this summons upon you brings said property within the control of the Court.
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Service of this summons is ineffective unless made in time to give notice of the required appearance or such shorter period as the Court may fix by making and signing the form of order provided below: WITNESS THE HONORABLE __________________________________________ Judge of said Court at __________, Florida, in said District, this ________ day of ______________, ______. ______________________________, CLERK BY: ____________________________ Deputy Clerk Date: Good cause for shortening the periods required by the foregoing summons having been shown by affidavit of ____________, verified the ______ day of ____________, ______, the period of notice of the appearance in all respects required by the foregoing summons is hereby fixed as ______ days. Dated at ______, Florida, the _______ day of ____________, ______.
______________________________________ UNITED STATES DISTRICT JUDGE NOTE: This summons is issued pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty Maritime Claims of the Federal Rules of Civil Procedure. Effective Dec. 1, 1994; amended effective April 15, 2001.
FORM 14. AFFIDAVIT-FOREIGN ATTACHMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. ____-Civ or Cr-(USDJ’s last name/USMJ’s last name)
Plaintiff, v.
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Defendant(s).
AFFIDAVIT (Foreign Attachment) This affidavit is executed by the undersigned in order to secure the issuance and execution of a Writ of Foreign Attachment in the above-styled in personam cause in admiralty. As attorney for the above-styled plaintiff, the undersigned does hereby certify to the Court, the Clerk and the Marshal that the undersigned has made a diligent search and inquiry to ascertain the name and address of a person or party upon whom can be served process in personam which will bind the above-styled defendant. That based upon such diligent search and inquiry the undersigned has been unable to ascertain the name and address of any person or party within the Southern District of Florida upon whom service of process would bind said defendant. The Clerk of this Court is hereby requested to issue a Writ of Foreign Attachment and deliver the same to the Marshal. The Marshal is hereby directed to promptly serve said Writ of Foreign Attachment upon ____________________ (name of vessel) which vessel is presently located at ____________________. _______________________ Attorney for Plaintiff Sworn and subscribed to this ______ day of ____________, ______. Clerk, U.S. District Court Southern District of Florida By: ___________________ Deputy Clerk
Effective Dec. 1, 1994; amended effective April 15, 2001.
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MAGISTRATE JUDGE RULES
RULE 1. AUTHORITY OF UNITED STATES MAGISTRATE JUDGES (a) Duties Under 28 U.S.C. § 636(a). Each United States Magistrate Judge of this Court is authorized to perform the duties prescribed by 28 U.S.C. § 636(a), and may(1) Exercise all the powers and duties conferred or imposed upon United States Commissioners by law and the Federal Rules of Criminal Procedure; (2) Administer oaths and affirmations, impose conditions of release under 18 U.S.C. § 3146, and take acknowledgements, affidavits, and depositions; and (3) Conduct extraditions proceedings, in accordance with 18 U.S.C. § 3184.
(b) Disposition of Misdemeanor Cases-18 U.S.C. § 3401; Fed.R.Crim.P. 58. A Magistrate Judge may(1) Arraign and try persons accused of, and sentence persons convicted of, misdemeanors committed within this District in accordance with 18 U.S.C. § 3401 and Fed.R.Crim.P. 58; (2) Direct the Probation Office of the Court to conduct a presentence investigation in any misdemeanor case; and (3) Conduct a jury trial in any misdemeanor case where the defendant so requests and is entitled to trial by jury under the Constitution and laws of the United States. (c) Determination of Non-dispositive Pretrial Matter-28 U.S.C. § 636(b)(1)(A). A Magistrate Judge may hear and determine any procedural or discovery motion or other pretrial matter in a civil or criminal case, other than the motions which are specified in subsection 1(d), infra, of these rules. (d) Recommendations Regarding Case-Dispositive Motions-28 U.S.C. § 636(b)(1)(B). (1) A Magistrate Judge may submit to a District Judge of the Court a report containing proposed findings of fact and recommendations for disposition by the District Judge of the following pretrial motions in civil and criminal cases: A. Motions for injunctive relief, including temporary restraining orders and preliminary and permanent injunctions; B. Motions for judgment on the pleadings;
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C. Motions for summary judgment; D. Motions to dismiss or permit the maintenance of a class action; E. Motions to dismiss for failure to state a claim upon which relief may be granted; F. Motions to involuntarily dismiss an action; G. Motions for review of default judgments; H. Motions to dismiss or quash an indictment or information made by a defendant; and I. Motions to suppress evidence in a criminal case. (2) A Magistrate Judge may determine any preliminary matters and conduct any necessary evidentiary hearing or other proceeding arising in the exercise of the authority conferred by this subsection. (e) Prisoner Cases Under 28 U.S.C. §§ 2254 and 2255. A Magistrate Judge may perform any or all of the duties imposed upon a District Judge by the rules governing proceedings in the United States District Courts under §§ 2254 and 2255 of Title 28, United States Code. In so doing, a Magistrate Judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a report containing proposed findings of fact and recommendations for disposition of the petition by the District Judge. Any order disposing of the petition may only be made by a District Judge. (f) Prisoner Cases Under 42 U.S.C. § 1983. A Magistrate Judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a report containing proposed findings of fact and recommendation for the disposition of petitions filed by prisoners challenging the conditions of their confinement. (g) Special Master References. A Magistrate Judge may be designated by a District Judge to serve as a special master in appropriate civil cases in accordance with 28 U.S.C. § 636(b)(2) and Rule 53 of the Federal Rules of Civil Procedure. Upon the consent of the parties, a Magistrate Judge may be designated by a District Judge to serve as a special master in any civil case, notwithstanding the limitations of Rule 53(b) of the Federal Rules of Civil Procedure. (h) Conduct of Trials and Disposition of Civil Cases Upon Consent of the Parties-28 U.S.C. § 636(c). Upon the consent of the parties, a full-time Magistrate Judge may conduct any or all proceedings in any civil case which is filed in this Court, including the conduct of a jury or nonjury trial, and may order the entry of a final judgment, in accordance with 28 U.S.C. § 636(c). In the course of conducting such proceedings upon consent of the parties, a Magistrate Judge may hear and determine any and all pre-trial and post-trial motions which are filed by the parties, including case-dispositive motions.
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(i)
Other Duties. A Magistrate Judge is also authorized to(1) Exercise general supervision of civil and criminal calendars, conduct calendar and status calls, and determine motions to expedite or postpone the trial of cases for the District Judges; (2) Conduct pretrial conferences, settlement conferences, omnibus hearings, and related pretrial proceedings in civil and criminal cases; (3) Conduct arraignments in criminal cases not triable by the Magistrate and take not guilty pleas in such cases; (4) Receive grand jury returns in accordance with Rule 6(f) of the Federal Rules of Criminal Procedure; (5) Accept waivers of indictment, pursuant to Rule 7(b) of the Federal Rules of Criminal Procedure; (6) (7) (8) Conduct voir dire and select petit juries for the Court; Accept petit jury verdicts in civil cases in the absence of a District Judge; Conduct necessary proceedings leading to the potential revocation of probation;
(9) Issue subpoenas, writs of habeas corpus ad testificandum or habeas corpus ad prosequendum, or other orders necessary to obtain the presence of parties, witnesses or evidence needed for court proceedings; (10) Order the exoneration or forfeiture of bonds; (11) Conduct proceedings for the collection of civil penalties of not more than $200 assessed under the Federal Boat Safety Act of 1971, in accordance with 46 U.S.C. § 1484(d); (12) Conduct examinations of judgment debtors in accordance with Rule 69 of the Federal Rules of Civil Procedure; (13) Conduct proceedings for initial commitment of narcotics addicts under title III of the Narcotic Addict Rehabilitation Act; (14) Perform the functions specified in 18 U.S.C. §§ 4107, 4108 and 4109, regarding proceedings for verification of consent by offenders to transfer to or from the United States and the appointment of counsel therein; (15) Preside at naturalization hearings and ceremonies; and (16) Perform any additional duty as is not inconsistent with the Constitution and laws of the United States.
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Effective Dec. 1, 1994; amended effective April 15, 1998. Comment (1998) Conforms Rule 1(b)(1) to 1997 amendments to Fed.R.Crim.P. 58. RULE 2. ASSIGNMENT OF MATTERS TO MAGISTRATE JUDGES All civil and criminal cases in this District shall be filed with the Clerk and assigned to a United States District Judge in accordance with Rules 1 through 7 of the General Rules of these Local Rules. Responsibility for the case remains with the District Judge throughout its duration, except that the Judge may refer to a United States Magistrate Judge any matter within the scope of these Magistrate Judge Rules. No specific order of reference shall be required except as otherwise provided in these Magistrate Judge Rules. Nothing in these rules shall preclude a District Judge from reserving any proceeding for conduct by a District Judge rather than a Magistrate Judge. Effective Dec. 1, 1994. RULE 3. PROCEDURES BEFORE THE MAGISTRATE JUDGE (a) In General. In performing duties for the Court, a Magistrate Judge shall conform to all applicable provisions of federal statutes and rules, to the general procedural rules of this Court, and to the requirements specified in any order of reference from a District Judge. (b) Special Provisions for the Disposition of Civil Cases by a Magistrate Judge on Consent of the Parties-28 U.S.C. § 636(c). (1) Notice. The Clerk of Court shall notify the parties in all civil cases that they may consent to have a Magistrate Judge conduct any or all proceedings in the case and order the entry of a final judgment. Such notices shall be handed or mailed to the plaintiff or his representative at the time an action is filed and to other parties as attachments to copies of the complaint and summons, when served. Additional notices may be furnished to the parties at later stages of the proceedings, and may be included with pretrial notices and instructions. (2) Execution of Consent. The Clerk shall not accept a consent form unless it has been signed by all the parties in a case. The plaintiff shall be responsible for securing the execution of a consent form by the parties and for filing such form with the Clerk of Court. No consent form will be made available, nor will its contents be made known, to any District Judge or Magistrate Judge, unless all parties have consented to the reference to a Magistrate Judge. No Magistrate Judge, District Judge, or other Court official may attempt to persuade or induce any
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party to consent to the reference of any matter to a Magistrate Judge. This rule, however, shall not preclude a District Judge or Magistrate Judge from informing the parties that they may have the option of referring a case to a Magistrate Judge. (3) References. After the consent form has been executed and filed, the Clerk shall transmit it to the District Judge to whom the case has been assigned for consideration of approval and possible referral of the case to a Magistrate Judge, by specific order of reference. Once the case has been assigned to a Magistrate Judge, the Magistrate Judge shall have the authority to conduct any and all proceedings to which the parties have consented and to direct the Clerk of Court to enter a final judgment in the same manner as if a District Judge had presided. Effective Dec. 1, 1994. RULE 4. REVIEW AND APPEAL (a) Appeal of Non-dispositive Matters-Government Appeal of Release Order. (1) Appeal of Non-dispositive Matters-28 U.S.C. § 636(b)(1)(A). Any party may appeal from a Magistrate Judge’s order determining a motion or matter under subsection 1(c) of these rules, supra, within ten (10) days after being served with the Magistrate Judge’s order, unless a different time is prescribed by the Magistrate Judge or District Judge. Such party shall file with the Clerk of Court, and serve on all parties, written objections which shall specifically set forth the order, or part thereof, appealed from a concise statement of the alleged error in the Magistrate Judge’s ruling, and statutory, rule, or case authority, in support of the moving party’s position. Any party may respond to another party’s objections within 10 days after being served with a copy thereof, or within such other time as may be allowed by the Magistrate Judge or District Judge. Absent prior permission from the Court, no party shall file any objections or responses to another party’s objections exceeding twenty (20) pages in length. The District Judge shall consider the appeal and shall set aside any portion of the Magistrate Judge’s order found to be clearly erroneous or contrary to law. The District Judge may also reconsider sua sponte any matter determined by a Magistrate Judge under this rule. (2) Government Appeal of Release Order. At the conclusion of a hearing pursuant to 18 U.S.C.§ 3142 in which a Magistrate Judge has entered an order granting pretrial release, the government may make an ore tenus motion that the Magistrate Judge exercise discretion to stay the release order for a reasonable time, to allow the government to pursue review or appeal of the release order, in accordance with 18 U.S.C. § 3145. If a stay is ordered pursuant to this rule, the Clerk/Court Administrator is directed to obtain the tape recording or cassette immediately after the hearing and deliver the cassettes or tapes promptly to the appropriate court reporter so that an expedited transcript can be delivered to the District Judge within forty-eight (48) hours of the hearing at which the release order is entered. The United States Attorney’s Office is to pay the court reporter’s charges. (b) Review of Case-Dispositive Motions and Prisoner Litigation-28 U.S.C. § 636(b)(1)(B). Any party may object to a Magistrate Judge’s proposed findings, recommendations or report under
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subsections 1(d), (e), and (f) of these rules, supra, within 10 days after being served with a copy thereof, or within such other time as may be allowed by the Magistrate Judge or District Judge. Such party shall file with the Clerk of Court, and serve on all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made, the specific basis for such objections, and supporting legal authority. Any party may respond to another party’s objections within 10 days after being served with a copy thereof, or within such other time as may be allowed by the Magistrate Judge or District Judge. Absent prior permission from the Court, no party shall file any objections or responses to another party’s objections exceeding twenty (20) pages in length. A District Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge, however, need conduct a new hearing only in his discretion or where required by law, and may consider the record developed before the Magistrate Judge, making his own determination on the basis of that record. The District Judge may also receive further evidence, recall witnesses, or recommit the matter to the Magistrate Judge with instructions. (c) Special Master Reports-28 U.S.C. § 636(b)(2). Any party may seek review of, or action on, a special master report filed by a Magistrate Judge in accordance with the provisions of Rule 53(e) of the Federal Rules of Civil Procedure. (d) Appeal From Judgments in Misdemeanor Cases-18 U.S.C. § 3402 [Deleted]. Replaced by Fed.R.Crim.P. 58. (e) Appeal From Judgments in Civil Cases Disposed of on Consent of the Parties-28 U.S.C. § 636(c). (1) Appeal to the Court of Appeals. Upon the entry of judgment in any civil case disposed of by a Magistrate Judge on consent of the parties under authority of 28 U.S.C. § 636(c) and subsection 1(h) of these rules, supra, an aggrieved party shall appeal directly to the United States Court of Appeals for this Circuit in the same manner as an appeal from any other judgment of this Court. (2) Appeal to a District Judge [Deleted]. See Pub.L. No. 104-317 § 207, 110 Stat. 3847 (Oct. 19, 1996) (repealing 28 U.S.C. § 636(c)(4) and (5). Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 1997; April 15, 1998; April 15, 1999. Comments (1994) Rule 4(a) now conforms to language of 28 U.S.C. § 636(b)(1)(A) and Federal Rule 72. (1996)[(a)(1)] Prescribes a time within which a party may respond to another party’s objections to a Magistrate Judge’s order on a non-dispositive motion determined under 28 U.S.C. § 636(b)(1)(A).
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(1997)[(a)(2)] Repeals automatic stay provision of government appeal of bond order and recognizes Magistrate Judge’s authority to exercise discretion to stay release order. (1998) Rule 4(d) is deleted in favor of Fed.R.Crim.P. 58, but retains a modified title and a cross-reference to Rule 58 to avoid confusion about the proper procedure for misdemeanor appeals. Rule 4(e)(2) is deleted to conform to the 1997 amendments to Fed.R.Civ.P. 73(d), 74, 75 and 76, which abrogated the optional appeal route from a Magistrate Judge to a District Judge. (1999) Rules 4(a)(1) and (b) amended to impose page limitations on objections, and responses to objections, to Magistrate Judges’ non-dispositive orders under 28 U.S.C. § 636(b)(1)(A) and reports and recommendations under 28 U.S.C. § (b)(1)(B).
FORMS
NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF A CIVIL CASE BY A UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA In Accordance with the provisions of 28 U.S.C. § 636(c), you are hereby notified that the full-time United States Magistrate Judges of this District Court, in addition to their other duties, may, upon the consent of all the parties in a civil case, conduct any or all proceedings in a civil case, including a jury or non-jury trial, and order the entry of a final judgment. Copies of appropriate consent forms for this purpose are available from the Clerk of the Court. You should be aware that your decision to consent, or not to consent, to the referral of your case to a United States Magistrate Judge for disposition is entirely voluntary and should be communicated solely to the Clerk of the District Court. Only if all the parties to the case consent to the reference to a Magistrate Judge will either a District Judge or Magistrate Judge be informed of your decision. Your opportunity to have your case disposed of by a Magistrate Judge is subject to the discretion of the Court. Accordingly, the District Judge to whom your case is assigned must approve the reference of the case to a Magistrate Judge for disposition, by Order of Reference. Effective Dec. 1, 1994. -----
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CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. ____________
________________________) Plaintiff, ) ) ) vs. ) ) ) ________________________) Defendant. ) ________________________)
CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. § 636(c), the parties to the above-captioned civil matter hereby waive their right to proceed before a District Judge of this Court and consent to have a United States Magistrate Judge conduct any and all further proceedings in the case (including the trial) and order the entry of judgment. _________________________ _________________________ _________________________ _________________________
Any appeal shall be taken to the United States Court of Appeals for this Judicial Circuit, in accordance with 28 U.S.C. § 636(c)(3), unless all parties further consent, by signing below, to take any appeal to a District Judge of this Court, in accordance with 28 U.S.C. § 636(c)(4). _________________________ _________________________ _________________________ _________________________
NOTE: Return this form to the Clerk of Court only if it has been executed by all parties to the case. _____________________________________________________________________________
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ORDER OF REFERENCE IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate Judge ___________ for the conduct of all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c) and the foregoing consent of the parties. ______________ Date Effective Dec. 1, 1994. ___________________________ United States Magistrate Judge
[Remainder of Page Intentionally Left Blank]
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SPECIAL RULES GOVERNING THE ADMISSION AND PRACTICE OF ATTORNEYS
RULE 1. QUALIFICATIONS FOR ADMISSION An attorney is qualified for admission to the bar of this district if the attorney is (1) currently a member in good standing of The Florida Bar; and (2) has received a passing score on the Uniform Examination, approved and adopted by the District Examination Committee of the Northern District of Florida, the Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance of the Southern District of Florida, and by the respective Courts, testing knowledge of the Federal Rules of Criminal and Civil Procedure, the Federal Rules of Evidence, and the law of federal jurisdiction and venue. The Examination shall also contain sections testing knowledge of the local rules of the Southern and Northern Districts. Admission to the Southern and Northern Districts requires successful completion of the applicable local rules section either at the time the Uniform Examination is given or at such subsequent time that the applicant takes the applicable local rules section(s). An applicant may take the Examination three times in any calendar year. However, if the applicant fails to pass the Examination after three attempts, he or she must wait a full calendar year before reapplying. Effective Dec. 1, 1994; amended effective Jan. 1, 1996; April 15, 2002. RULE 2. PROCEDURE FOR APPLYING FOR ADMISSION AND PROOF OF QUALIFICATIONS Each applicant for admission shall submit a verified petition setting forth the information specified on the form provided by the Clerk of this Court, together with an application fee in the amount set by the court and payable to “U.S. Courts”. A showing of good standing shall be made by The Florida Bar. The Clerk shall examine such petition to determine that the applicant is qualified for admission and upon successful completion of the Uniform Examination together with the local rule section for the Southern District, the Clerk shall require the applicant to sign the oath of admission, receive the admission fee for the Southern District and shall place such applicant on the roll of attorneys of the bar of this District. If such applicant has successfully completed the local rules sections for the Northern District, the Clerk shall provide a sealed copy of the petition for admission as completed by the applicant with the signed oath, which the applicant may then forward to the Clerk of the Northern District, together with the appropriate admission fee for admission to the Northern District. Effective Dec. 1, 1994; amended effective Jan. 1, 1996. RULE 3. RETENTION OF MEMBERSHIP IN THE BAR OF THIS COURT To remain an attorney in good standing of the bar of this Court, each member must remain an active attorney in good standing of the Florida Bar, specifically including compliance with all requirements of the Rules Regulating the Florida Bar, as promulgated by the Supreme Court of Florida.
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Effective Dec. 1, 1994; amended effective Jan. 1, 1996. RULE 4. APPEARANCES A. Who May Appear Generally. Except when pro hac vice appearance is permitted by the Court, only members of the Bar of this District may appear as attorneys in the Courts of this District. Attorneys residing and practicing within this District are expected to be members of the bar of this Court. B. Special or Limited Appearance. Any attorney who is a member in good standing of the bar of any United States Court, or of the highest Court of any State or Territory or Insular Possession of the United States, but is not admitted to practice in the Southern District of Florida may, upon written application, be permitted to appear and participate in a particular case. A certification that the applicant has studied the local rules shall accompany application together with such appearance fee as may be required by administrative order. If granted, such limited appearance shall not constitute formal admission. The application shall designate a member of the bar of this Court who maintains an office in this District for the practice of law with whom the Court and opposing counsel may readily communicate regarding the conduct of the case and upon whom papers shall be served. The application must be accompanied by a written statement consenting to the designation, and the address and telephone number of the named designee. Provided, however, that upon written motion and for good cause shown the Court may waive or modify the requirements of such designation. C. Government Attorneys. Any full-time U.S. Attorney, Assistant U.S. Attorney, Federal Public Defender and Assistant Federal Public Defender and attorney employed full time by and representing the United States government, or any agency thereof, and any Attorney General and Assistant Attorney General of the State of Florida may appear and participate in particular actions or proceedings on behalf of the attorney’s employer in the attorney’s official capacity without petition for admission. Any attorney so appearing is subject to all rules of this Court. Effective Dec. 1, 1994; amended effective Jan. 1, 1996. Comments (1994) Expands right to practice to additional government lawyers. RULE 5. PEER REVIEW A. Purpose. It is recognized that the Court and the bar have a joint obligation to improve the level of professional performance in the courtroom. To this end, the purposes to be accomplished through the Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance (the “Committee”) are to determine whether individual attorneys are failing to perform to an adequate level of competence necessary to protect the interests of their clients, to establish and administer a remedial program designed to raise the competence of an attorney who is not performing adequately, to refer such attorneys to appropriate institutions and professional personnel for assistance in raising his or her level of competency, to determine through evaluation, testing or other appropriate means
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whether an attorney who has been referred for assistance has attained an adequate level of competency, and to report to the Court any attorney who refuses to cooperate by participating in a remedial program to raise his or her level of competence, or fails to achieve an adequate level of competence within a reasonable time. B. Duties and Responsibilities of the Committee. 1. Referral. Any District Judge, Magistrate Judge, or Bankruptcy Judge shall refer in writing to the Committee the name of any attorney he or she has observed practicing law in a manner which raises a significant question as to the adequacy of such attorney’s ability to represent clients in a competent manner. The referral shall be accompanied by a statement of the reasons why such question is raised. 2. Initial Screening. Promptly after receipt of such a reference the Chairman of the Committee shall advise the attorney that it has been made. Thereafter an Initial Screening Committee shall be selected consisting of three members of the Committee. The Initial Screening Committee may request that the attorney meet with it informally to explain the circumstances which gave rise to the reference and may conduct such preliminary inquiries as it deems advisable. If after such preliminary inquiry the Initial Screening Committee determines that further attention is not needed it shall mark the matter “closed” with notation explaining its determination. Upon closing a matter the Chairman shall notify the referring judge and the attorney. 3. Remedial Action. If the Initial Screening Committee deems that the matter warrants further action, it shall so advise the Chairman who shall then cause a Review Committee to be selected consisting of three members (other than those who served on the Initial Screening Committee). The Review Committee may pursue such inquiries as it deems appropriate and may recommend to the attorney that the attorney take steps to improve the quality of the attorney’s professional performance and if so the nature of the recommended action designed to effect such improvement. The attorney shall be advised of any such recommendation in writing and be given the opportunity to respond thereto, to seek revision or revocation of the recommendation or to suggest alternatives thereto. The Review Committee after receiving such response may modify, amend, revoke or adhere to its original recommendation and shall notify the attorney of its final recommendation. Any attorney who takes exception to the proposed Review Committee’s final recommendation shall have the right to have it considered by the full Committee. Any recommendation finally promulgated shall be entered in the records of the Committee. The Committee may develop an appropriate remedial program, including, but not limited to, mandatory participation in continuing legal education programs and participation in group and individual study programs. The Committee may monitor the attorney’s progress in following the remedial program developed for him or her. If the attorney's lack of competency relates to drug or alcohol abuse, the Committee may require the attorney to seek treatment for that condition and require the attorney to submit periodic reports from the individuals responsible for such treatment.
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C. Referral to the Court. If the Committee finds that there is a substantial likelihood that the attorney’s continued practice of law may result in serious harm to the attorney’s clients pending completion of a remedial program, it may recommend that the Court consider limiting or otherwise imposing appropriate restrictions on the attorney’s continued practice in the district court. D. Obligation to Cooperate With Committee. It shall be the obligation of all members of the bar of this district to cooperate with the Committee so that it may effectively assist members of the bar to improve the quality of their professional performance. Any member of the bar of this Court, who is the subject of a reference under Rule 5 or who is asked by the Committee to furnish it with relevant information concerning such a reference shall regard it to be an obligation as an officer of this Court to cooperate fully with the Committee which constitutes an official arm of the Court. E. Failure to Respond to Committee. If an attorney shall refuse to meet with the Committee, furnish it with an explanation of the circumstances which gave rise to the referral, or otherwise cooperate with the Committee, the Court shall be so advised and the attorney’s failure to cooperate shall be recorded in the records of the Committee. The Committee shall refer to the Court for appropriate action any attorney who refuses to cooperate in participating in a remedial program, or who fails to achieve an adequate level of competence within a reasonable time. F. Confidentiality. All matters referred to the Committee, all information in the possession of the Committee and all recommendations or other actions taken by the Committee are matters relating to the administration of the Court and shall be confidential, and shall be disclosed only by order of the Court. Correspondence, records and all written material coming to the Committee shall be retained in an office designated by the Court and are documents of the Court and shall be kept confidential unless the Court directs otherwise. No statement made by the attorney to the Committee shall be admissible in any action for malpractice against the attorney, nor shall any part of the Committee’s investigative files be admissible in such proceedings. No statement made by the attorney to the Committee shall be admissible in any action under 28 U.S.C. § 2255 collateral attack for incompetency of counsel in a criminal case, nor shall any part of the Committee’s investigative files be admissible in proceedings under 28 U.S.C. § 2255. Likewise, any information given by a client of the attorney to the Committee shall be privileged to the same extent as if the statements were made by the client to the attorney. G. Separation From Disciplinary Proceedings. Nothing contained herein and no action hereunder shall be construed to interfere with or substitute for any procedure relating to the discipline of any attorney. Any disciplinary actions relating to the inadequacy of an attorney’s performance shall occur apart from the proceedings of the Committee in accordance with law and as directed by the Court. H. Committee Immunity. Any Committee determination that a referred attorney is adequately competent does not render the Committee potentially liable as a guarantor of the validity of that determination. The Committee is not liable for the misconduct or nonconduct of any referred attorney. Committee members are immune from prosecution for actions taken within the scope of the duties and responsibilities of the Committee as prescribed by the Court. Unauthorized disclosure of confidential information is outside the scope of the Committee’s responsibilities.
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I. Report to the Court. Upon completion of the Committee’s activities in respect to each attorney referred by the Court, the Committee shall make a report to the Court. The Committee shall make such interim reports or periodic reports relative to its activities as may be requested by the Court. Effective Dec. 1, 1994; amended effective April 15, 2000; April 15, 2002. Comments (2000) Clarification of the authority and responsibilities of District Judges, Magistrate Judges and Bankruptcy Judges. RULE 6. STUDENT PRACTICE A. Purpose. The following Rule for Student Practice is designed to encourage law schools to provide clinical instructions in litigation of varying kinds, and thereby enhance the competence of lawyers in practice before the United States courts. B. 1. 2. Student Requirements. An eligible student must: be duly enrolled in a law school; have completed at least four semesters of legal studies or the equivalent;
3. have knowledge of the Federal Rules of Civil and Criminal Procedure and of Evidence, and the Code of Professional Responsibility; 4. be enrolled for credit in a law school clinical program which has been certified by the court; 5. be certified by the dean of the law school, or the dean’s designee, as being of good character and sufficient legal ability, and as being adequately trained, in accordance with paragraphs 1-4 above, to fulfill his responsibilities as a legal intern to both his client and the court; 6. be certified by the Court to practice pursuant to this Rule;
7. neither ask for nor receive any compensation or remuneration of any kind for his services from the person on whose behalf he renders services, but this shall not prevent a lawyer, legal aid bureau, law school, public defender agency, or the state from paying compensation to the eligible law student (nor shall it prevent any agency from making such charges for its services as it may otherwise properly require).
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C.
Program Requirements. The program: 1. must be a law school clinical practice program for credit, in which a law student obtains academic and practice advocacy training, under supervision of qualified attorneys including federal or state government attorneys or private petitioners; 2. 3. must be certified by the Court; must be conducted in such a manner as not to conflict with normal court schedules;
4. must be under the direction of a member or members of the regular or adjunct faculty of the law school; 5. must arrange for the designation and maintenance of an office in this District to which may be sent all notices which the Court may from time to time have occasion or need to send in connection with this Rule or any legal representation provided pursuant to this Rule. D. Supervisor Requirements. A supervising attorney must: 1. be a lawyer whose service as a supervising attorney for this program is approved by the dean of the law school in which the law student is enrolled and who is a member of The Florida Bar in good standing; 2. 3. 4. 5. be a member of the Bar of this Court; be certified by the Court as a student supervisor; be present with the student when required by the Court; co-sign all pleadings or other documents filed with this Court;
6. assume full personal professional responsibility for a student’s guidance in any work undertaken and for the quality of a student’s work, and be available for consultation with represented clients; 7. assist the student in his preparation to the extent the supervising attorney considers it necessary. E. 1. Certification of Student, Program and Supervising Attorneys. Students. (a) Certification by the law school dean or his designee, if said certification is approved by the Court, shall be filed with the Clerk of Court, and unless it is sooner withdrawn, shall remain in effect until the expiration of 18 months;
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(b) Certification to appear in a particular case may be withdrawn by the Court at any time, in the discretion of the Court, and without any showing of cause. Notice of termination may be filed with the Clerk of the Court. 2. Program. (a) Certification of a program by the Court shall be filed with the Clerk of Court and shall remain in effect indefinitely unless withdrawn by the Court; (b) Certification of a program may be withdrawn by the Court at the end of any academic year without cause, or at any time, provided notice stating the cause for such withdrawal is furnished to the law school dean. 3. Supervising Attorney. (a) Certification of a supervising attorney by the law school dean, if said certification is approved by the Court, shall be filed with the Clerk of Court, and shall remain in effect indefinitely unless withdrawn by the dean or by the Court; (b) Certification of a supervising attorney may be withdrawn by the Court at the end of any academic year without cause, or at any time upon notice and a showing of cause; (c) Certification of a supervising attorney may be withdrawn by the dean at any time by mailing of notice to that effect to the Clerk of Court; (d) Any judge of this Court retains the authority to withdraw or limit a supervising attorney’s participation in any individual case before the judge. F. Activities. 1. An eligible law student may appear in this Court on behalf of any indigent person if the person on whose behalf he is appearing has indicated in writing his consent to that appearance and the supervising attorney has also indicated in writing approval of that appearance. 2. An eligible law student may also appear in any criminal matter on behalf of the government with the written approval of the prosecuting attorney or his authorized representative and of the supervising attorney. 3. An eligible law student may also appear in this court in any civil matter on behalf of the government, with the written approval of the attorney representing that entity. 4. In each case, the written consent and approval referred to above shall be filed in the record of the case and shall be brought to the attention of the judge.
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5. The Board of Governors of the Florida Bar shall fix the standards by which indigency is determined under this rule upon the recommendation of the largest voluntary bar association located in the state judicial circuit in which this program is implemented. 6. In addition, an eligible law student may engage in other activities, under the general supervision of a member of the Bar of this Court, but outside the personal presence of that lawyer, including: (a) preparation of pleadings and other documents to be filed in any matter in which the student is eligible to appear, but such pleadings or documents must be signed by the supervising attorney; (b) preparation of briefs, abstracts and other documents to be filed in appellate courts, but such documents must be signed by the supervising attorney; (c) except when the assignment of counsel in the matter is required by any constitutional provision, statute or rule of this court, assistance to indigent inmates of correctional institutions or other persons who request such assistance in preparing applications for and supporting documents for post-conviction relief. If there is an attorney of record in the matter, all such assistance must be supervised by the attorney of record, and all documents submitted to the court on behalf of such a client must be signed by the attorney of record; (d) each document or pleading must contain the name of the eligible law student who has participated in drafting it. If he participated in drafting only a portion of it, that fact may be mentioned. G. Court Administration. The Chief Judge, or one or more members of the Court appointed by the Chief Judge, shall act on behalf of the Court in connection with any function of this Court under this Rule. The Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance shall assist the Court to administer this Rule including the review of applications and continuing eligibility for certification of programs, supervising attorneys, and students. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 2002. Comments (1996)[D.2.] Deletion of reference to Trial Bar to conform to new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996. RULE 7. AD HOC COMMITTEE ON ATTORNEY ADMISSIONS, PEER REVIEW AND ATTORNEY GRIEVANCE A. Establishment and Function. There shall be an Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance (the “Committee”). Subject to the direction of the Court, the Committee shall have the authority and perform the functions assigned by these Rules and shall otherwise assist the Court in the implementation and evaluation of these Rules.
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B. Memberships. The Committee shall consist of a group of law school professors and attorneys practicing within this district. The Chief Judge, or one or more members of the Court appointed by the Chief Judge, shall appoint the members of the Committee. The Chief Judge shall select the Committee Chair. Selections shall be made by Administrative Order entered by the Chief Judge. All persons appointed to the Committee shall serve at the pleasure of the Court. Effective Dec. 1, 1994; amended effective April 15, 1996; April 15, 2002. Comments (1996)[A. and B.2.] Deletion of references to District Trial Experience Committee to conform to new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996. RULE 8. EFFECTIVE DATES These Rules shall become effective and shall apply to all members of and applicants for admission to the bar as of January 1, 1996. Effective Dec. 1, 1994; amended effective April 15, 1996. Comments (1996) Deletion of reference to Trial Bar to conform to new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996, and to prescribe uniform effective date for amendments to Special Rules Governing the Admission and Practice of Attorneys other than Rules 1 through 4, as approved effective April 15, 1996. FORMS [DELETED] Comments (1996) Deletion of Forms 2.I, 2.II, 2.III and 2.IV, dealing with applications for admission to Trial Bar, in light of Trial Bar’s abolition by adoption of new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996.
RULES GOVERNING ATTORNEY DISCIPLINE
PREFATORY STATEMENT Nothing contained in these rules shall be construed to deny the Court its inherent power to maintain control over the proceedings conducted before it nor to deny the Court those powers derived from
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statute, rule or procedure, or other rules of court. When alleged attorney misconduct is brought to the attention of the Court, whether by a Judge of the Court, any lawyer admitted to practice before the Court, any officer or employee of the Court, or otherwise, the Court may, in its discretion, dispose of the matter through the use of its inherent, statutory, or other powers; refer the matter to an appropriate state bar agency for investigation and disposition; refer the matter to the Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance as hereinafter defined; or take any other action the court deems appropriate. These procedures are not mutually exclusive. Effective Dec. 1, 1994; amended effective April 15, 2002. Source (1993) Ad Hoc Committee on Attorney Discipline. Comments (1993) The new rules are intended to substitute for the existing Rules of Disciplinary Enforcement and Rules of Grievance Committee in their entirety. (1996) These rules have been amended to delete references to the Code of Professional Responsibility, and to correctly identify the Rules of Professional Conduct, Chapter 4 of the Rules Regulating The Florida Bar.
RULE I. STANDARDS FOR PROFESSIONAL CONDUCT A. Acts and omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct, Chapter 4 of the Rules Regulating The Florida Bar shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney/client relationship. Attorneys practicing before this Court shall be governed by this Court’s Local Rules, by the Rules of Professional Conduct, as amended from time to time, and, to the extent not inconsistent with the preceding, the American Bar Association Model Rules of Professional Conduct, except as otherwise provided by specific Rule of this Court. [Attorneys practicing before the Court of Appeals shall be governed by that Court’s Local Rules and the American Bar Association Model Rules of Professional Conduct, except as otherwise provided by Rule of the Court]. Discipline for misconduct defined in these rules may consist of (a) disbarment, (b) B. suspension, (c) reprimand, (d) monetary sanctions, (e) removal from this Court’s roster of attorneys eligible for practice before this Court, or (f) any other sanction the Court may deem appropriate. Effective Dec. 1, 1994; amended effective April 15, 1996.
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RULE II. AD HOC COMMITTEE ON ATTORNEY ADMISSIONS, PEER REVIEW AND ATTORNEY GRIEVANCE A. Establishment and Membership. There shall be an Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance (the “Committee”), as established under Rule 7 of the Special Rules Governing the Admission and Practice of Attorneys. B. Purpose and Function. The purpose and function of the Committee is to conduct, upon referral by the Court, a District Judge, Magistrate Judge or Bankruptcy Judge of the Court, investigations of alleged misconduct of any member of the Bar of this Court, or any attorney appearing and participating in any proceeding before the Court; to conduct, upon referral by the Court, a District Judge, Magistrate Judge or Bankruptcy Judge of the Court, inquiries and investigations into allegations of inadequate performance by an attorney practicing before the Court, as hereinafter provided; to conduct and preside over disciplinary hearings when appropriate and as hereinafter provided; and to submit written findings and recommendations to the Court or referring District Judge, Magistrate Judge or Bankruptcy Judge for appropriate action by the Court, except as otherwise described herein. The members of the Committee, while serving in their official capacities, shall be considered to be representatives of and acting under the powers and immunities of the Court, and shall enjoy all such immunities while acting in good faith and in their official capacities. C. Jurisdiction and Powers. (1) The Court may, in its discretion, refer to the Committee any accusation or evidence of misconduct by way of violation of the disciplinary rules on the part of any member of the bar with respect to any professional matter before this Court for such investigation, hearing, and report as the Court deems advisable. [The Court of Appeals may, in addition to or instead of referring a disciplinary matter to its own Grievance Committee, refer a complaint to the Chief Judge of a District Court for referral to the District Court's Committee.] The Committee may, in its discretion, refer such matters to an appropriate State Bar for preliminary investigation, or may request the Court to appoint special counsel to assist in or exclusively conduct such proceedings, as hereinafter provided in these rules. (See Rule XI, infra.) The Court may also, in its discretion, refer to the Committee any matter concerning an attorney's failure to maintain an adequate level of competency in his or her practice before this Court, as hereinafter provided. (See Rule VIII, infra.) The Committee may under no circumstances initiate and investigate such matters without prior referral by the Court. (2) The Committee shall be vested with such powers as are necessary to conduct the proper and expeditious disposition of any matter referred by the Court, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of any witnesses, and to order the production of books, records, or other documentary evidence, and those powers described elsewhere in these rules. The Chairman, or in his or her absence each member of the Committee, has the power to administer oaths and affirmations to witnesses. Effective Dec. 1, 1994; amended effective April 15, 2000; April 15, 2002.
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Comments (2000) Clarification of the authority and responsibilities of District Judges, Magistrate Judges and Bankruptcy Judges. RULE III. DISCIPLINARY PROCEEDINGS A. When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a District Judge, Magistrate Judge or Bankruptcy Judge of this Court, whether by complaint or otherwise, the District Judge, Magistrate Judge or Bankruptcy Judge may, in his or her discretion, refer the matter to the Committee for investigation and, if warranted, the prosecution of formal disciplinary proceedings or the formulation of such other recommendation as may be appropriate. [The Court of Appeals may, in addition to or instead of referring a disciplinary matter to its own Grievance Committee, refer a complaint to the Chief Judge of a District Court for consideration.] B. Should the Committee conclude, after investigation and review, that a formal disciplinary proceeding should not be initiated against an attorney because sufficient evidence is not present or for any other valid reason, the Committee shall file with the Court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or any other action. In cases of dismissal, the attorney who is the subject of the investigation need not be notified that a complaint has been submitted or of its ultimate disposition. All investigative reports, records, and recommendations generated by or on behalf of the Committee under such circumstances shall remain strictly confidential. C. If the Committee concludes from preliminary investigation, or otherwise, that probable cause exists, the Committee shall file with the Court a written report of its investigation, stating with specificity the facts supporting its conclusion, and shall apply to the Court for the issuance of an order requiring the attorney to show cause within 30 days after service of that order why the attorney should not be disciplined. The order to show cause shall set forth the particular act or acts of conduct for which he or she is sought to be disciplined. A copy of the Committee’s written report should be provided to the attorney along with the show cause order. The accused attorney may file with the Committee within ten days of service of the order a written response to the order to show cause. After receipt of the attorney’s response, if any, the Committee may request that the Court rescind its previously issued order to show cause. If the show cause order is not rescinded, and upon at least ten days notice, the cause shall be set for hearing before the Committee. A record of all proceedings before the Committee shall be made, and shall be made available to the attorney. That record, and all other materials generated by or on behalf of the Committee or in relation to any disciplinary proceedings before the Committee, shall in all other respects remain strictly confidential unless and until otherwise ordered by the Court. In the event the attorney does not appear, the Committee may recommend summary action and shall report its recommendation forthwith to the Court. In the event that the attorney does appear, he or she shall be entitled to be represented by counsel, to present witnesses and other evidence on his or her behalf, and to confront and cross examine witnesses against him. Except as otherwise ordered by the Court or provided in these
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Rules, the disciplinary proceedings before the Committee shall be guided by the spirit of the Federal Rules of Evidence. Unless he or she asserts a privilege or right properly available to him under applicable federal or state law, the accused attorney may be called as a witness by the Committee to make specific and complete disclosure of all matters material to the charge of misconduct. D. Upon completion of a disciplinary proceeding, the Committee shall make a full written report to the Court. The Committee shall include its findings of fact as to the charges of misconduct, recommendations as to whether or not the accused attorney should be found guilty of misconduct justifying disciplinary actions by the Court, and recommendations as to the disciplinary measures to be applied by the Court. The report shall be accompanied by a transcript of the proceedings before the Committee, all pleadings, and all evidentiary exhibits. A copy of the report and recommendation shall also be furnished the attorney. The Committee’s written report, transcripts of the proceedings, and all related materials shall remain confidential unless and until otherwise ordered by the Court. E. Upon receipt of the Committee’s finding that misconduct occurred, the Court shall issue an order requiring the attorney to show cause why the Committee's recommendation should not be adopted by the Court. The Court may, after considering the attorney’s response, by majority vote of the active District Judges thereof, adopt, modify, or reject the Committee’s findings that misconduct occurred, and may either impose those sanctions recommended by the Committee or fashion whatever penalties provided by the rules which it deems appropriate. Effective Dec. 1, 1994; amended effective April 15, 2000; April 15, 2002. Comments (2000) Clarification of the authority and responsibilities of District Judges, Magistrate Judges and Bankruptcy Judges. RULE IV. ATTORNEYS CONVICTED OF CRIMES Upon the filing with this Court of a certified copy of a judgment of conviction demonstrating A. that any attorney admitted to practice before the Court has been convicted in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth, or possession of the United States of any serious crime as herein defined, the Court shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty, nolo contendere, verdict after trial, or otherwise, and regardless of the pendency of any appeal. The suspension so ordered shall remain in effect until final disposition of the disciplinary proceedings to be commenced upon such conviction. A copy of such order shall be immediately served upon the attorney. Upon good cause shown, the Court may set aside such order when it appears in the interest of justice to do so. B. The term “serious” crime shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction in which it was entered, involves false swearing, misrepresentation, fraud, deceit, bribery, extortion,
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misappropriation, theft, or the use of dishonesty, or an attempt, conspiracy, or solicitation of another to commit a “serious crime.” C. A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based on the conviction. D. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the Court may, in addition to suspending that attorney in accordance with the provisions of this rule, also refer the matter to the Committee for institution of disciplinary proceedings in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded. E. An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney, the disposition of which shall be determined by the Committee on the basis of all available evidence pertaining to both guilt and the extent of the discipline to be imposed. Effective Dec. 1, 1994; amended effective April 15, 2002. RULE V. DISCIPLINE IMPOSED BY OTHER COURTS A. An attorney admitted to practice before this Court shall, upon being subjected to suspension or disbarment by a court of any state, territory, commonwealth, or possession of the United States, or upon being subject to any form of public discipline, including but not limited to suspension or disbarment, by any other court of the United States or the District of Columbia, promptly inform the Clerk of this Court of such action. Upon the filing of a certified copy of a judgment or order demonstrating that an attorney B. admitted to practice before this Court has been disciplined by another court as described above, this Court may refer the matter to the Committee for a recommendation for appropriate action, or may issue a notice directed to the attorney containing: 1. A copy of the judgment or order from the other court, and
2. An order to show cause directing that the attorney inform this Court, within thirty days after service of that order upon the attorney, of any claim by the attorney predicated upon the grounds set forth in subsection E, supra, that the imposition of identical discipline by the Court would be unwarranted and the reasons therefor. C. In the event that the discipline imposed in the other jurisdiction has been stayed there, any reciprocal disciplinary proceedings instituted or discipline imposed in this Court shall be deferred until such stay expires.
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D. After consideration of the response called for by the order issued pursuant to subsection B, supra, or after expiration of the time specified in that order, the Court may impose the identical discipline or may impose any other sanction the Court may deem appropriate. E. A final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purpose of a disciplinary proceeding in this Court, unless the attorney demonstrates and the Court is satisfied that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears that: 1. the procedure in that other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or 2. there was such an infirmity of proof establishing misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or 3. the imposition of the same discipline by this Court would result in grave injustice; or
4. the misconduct established is deemed by this Court to warrant substantially different discipline. F. This Court may at any stage ask the Committee to conduct disciplinary proceedings or to make recommendations to the Court for appropriate action in light of the imposition of professional discipline by another court. Effective Dec. 1, 1994; amended effective April 15, 2002. RULE VI. DISBARMENT ON CONSENT OR RESIGNATION IN OTHER COURTS A. Any attorney admitted to practice before this Court shall, upon being disbarred on consent or resigning from any other bar while an investigation into allegations of misconduct is pending, promptly inform the clerk of this Court of such disbarment on consent or resignation. B. An attorney admitted to practice before this Court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending shall, upon the filing with this Court of a certified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court. Effective Dec. 1, 1994.
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RULE VII. DISBARMENT ON CONSENT INVESTIGATION OR PROSECUTION
WHILE
UNDER
DISCIPLINARY
A. Any attorney admitted to practice before this Court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment and that: 1. the attorney’s consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting; 2. the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney’s discipline the nature of which the attorney shall specifically set forth; 3. the attorney acknowledges that the material facts so alleged are true; and
4. the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself. B. Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.
C. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required pursuant to the provisions of this rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court. Effective Dec. 1, 1994. RULE VIII. INCOMPETENCE AND INCAPACITY When it appears that an attorney for whatever reason is failing to perform to an adequate A. level of competence necessary to protect his or her client’s interests, the Court may take any remedial action which it deems appropriate, including but not limited to referral of the affected attorney to appropriate institutions and professional personnel for assistance in raising the affected attorney’s level of competency. The Court may also, in its discretion, refer the matter to the Committee for further investigation and recommendation. A referral to the Committee of any matter concerning an attorney’s failure to maintain an B. adequate level of competency in his or her practice before this Court is not a disciplinary matter and does not implicate the formal procedures previously described in these Rules. Upon a referral of this sort, the Committee may request that the attorney meet with it informally and explain the circumstances which gave rise to the referral and may conduct such preliminary inquiries as it deems advisable. If after meeting with the attorney and conducting its preliminary inquiries the Committee
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determines that further attention is not needed, the Committee shall so notify the referring Judge and consider all inquiries terminated. C. If after meeting with the attorney and conducting its preliminary inquiries the Committee deems the matter warrants further action, it may recommend to the attorney that the attorney take steps to improve the quality of his or her professional performance and shall specify the nature of the recommended action designed to effect such improvement. The attorney shall be advised of any such recommendation in writing and be given the opportunity to respond thereto, to seek review or revocation of the recommendation, or to suggest alternatives thereto. The Committee may, after receiving such response, modify, amend, revoke, or adhere to its original recommendation. If the attorney agrees to comply with the Committee’s final recommendation, the Committee shall report to the referring Judge that the matter has been resolved by the consent of the affected attorney. The Committee may monitor the affected attorney’s compliance with its recommendation and may request the assistance of the Court in ensuring that the attorney is complying with the final recommendation. D. If the Committee finds that there is a substantial likelihood that the affected attorney’s continued practice of law may result in serious harm to the attorney’s clients pending completion of the remedial program, it may recommend that the Court consider limiting or otherwise imposing appropriate restrictions on the attorney’s continuing practice before the Court. The Court may take any action which it deems appropriate to effectuate the Committee’s recommendation. E. Any attorney who takes exception with the Committee’s final recommendation shall have the right to have the Court, consisting of the active Judges thereof, consider the recommendation and the response of the affected attorney. The Court may, after considering the attorney’s response, by majority vote of the active Judges thereof, adopt, modify, or reject the Committee’s recommendations as to the necessary remedial actions and may take whatever actions it deems appropriate to ensure the attorney’s compliance. F. All information, reports, records, and recommendations gathered, possessed, or generated by or on behalf of the Committee in relation to the referral of a matter concerning an attorney’s failure to maintain an adequate level of competency in his or her practice before this Court shall be confidential unless and until otherwise ordered by the Court. G. Nothing contained herein and no action taken hereunder shall be construed to interfere with or substitute for any procedure relating to the discipline of any attorney as elsewhere provided in these rules. Any disciplinary actions relating to the inadequacy of an attorney’s performance shall occur apart from the proceedings of the Committee in accordance with law and as directed by the Court. Effective Dec. 1, 1994; amended effective April 15, 2002.
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RULE IX. REINSTATEMENT A. After Disbarment or Suspension. An attorney suspended for three months or less shall be automatically reinstated at the end of the period of suspension upon the filing with this Court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than three months or disbarred may not resume the practice of law before this Court until reinstated by order of the Court. B. Time of Application Following Disbarment. An attorney who has been disbarred after hearing or consent may not apply for reinstatement until the expiration of at least five years from the effective date of disbarment. C. Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under this Rule shall be filed with the Chief Judge of this Court. The Chief Judge may submit the petition to the Court or may, in his or her discretion, refer the petition to the Committee which shall within thirty days of the referral schedule a hearing at which the petitioner shall have the burden of establishing by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice before this Court and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest. Upon completion of the hearing the Committee shall make a full report to the Court. The Committee shall include its findings of fact as to the petitioner’s fitness to resume the practice of law and its recommendations as to whether or not the petitioner should be reinstated. D. Conditions of Reinstatement. If after consideration of the Committee’s report and recommendation the Court finds that the petitioner is unfit to resume the practice of law, the petition shall be dismissed. If after consideration of the Committee’s report and recommendation the Court finds that the petitioner is fit to resume the practice of law, the Court shall reinstate him, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and on the making of partial or complete restitution to all parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five years or more, reinstatement may be conditioned, in the discretion of the Court, upon the furnishing of proof of competency and learning in the law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney’s successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment. Provided further that any reinstatement may be subject to any conditions which the Court in its discretion deems appropriate. E. Successive Petitions. No petition for reinstatement under this Rule shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person. F. Deposit for Costs of Proceeding. Petitions for reinstatement under this Rule shall be accompanied by a deposit in an amount to be set from time to time by the Court in consultation with the Committee to cover anticipated costs of the reinstatement proceeding.
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Effective Dec. 1, 1994; amended effective April 15, 2002. RULE X. ATTORNEYS SPECIALLY ADMITTED Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct arising in the course of or in the preparation for such a proceeding which is a violation of this Court’s Local Rules and/or the Rules of Professional Conduct adopted by this Court as provided in these Rules. Effective Dec. 1, 1994. RULE XI. APPOINTMENT OF COUNSEL Whenever, at the direction of the Court or upon request of the Committee, counsel is to be appointed pursuant to these rules to investigate or assist in the investigation of misconduct, to prosecute or assist in the prosecution of disciplinary proceedings, or to assist in the disposition of a reinstatement petition filed by a disciplined attorney, this Court, by a majority vote of the active Judges thereof, may appoint as counsel any active member of the bar of this Court, or may, in its discretion, appoint the disciplinary agency of the highest court of the state wherein the Court sits, or other disciplinary agency having jurisdiction. Effective Dec. 1, 1994; amended effective April 15, 2002. RULE XII. SERVICE OF PAPER AND OTHER NOTICES Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the affected attorney at the address shown on the roll of attorneys admitted to practice before this Court. Service of any other papers or notices required by these rules shall be deemed to have been made if such paper or notice is addressed to the attorney at the address shown on the roll of attorneys admitted to practice before the Court; or to counsel or the respondent’s attorney at the address indicated in the most recent pleading or document filed by them in the course of any proceeding. Effective Dec. 1, 1994. RULE XIII. DUTIES OF THE CLERK Upon being informed that an attorney admitted to practice before this Court has been A. convicted of any crime, the Clerk of this Court shall determine whether the court in which such conviction occurred has forwarded a certificate of such conviction to this Court. If a certificate has not been so forwarded, the Clerk of this Court shall promptly obtain a certificate and file it with this Court.
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B. Upon being informed that an attorney admitted to practice before this Court has been subjected to discipline by another court, the Clerk of this Court shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this Court, and, if not, the Clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this Court. C. Whenever it appears that any person who has been convicted of any crime or disbarred or suspended or censured or disbarred on consent by this Court is admitted to practice law in any other jurisdiction or before any other court, this Court shall, within ten days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certificate of the conviction or a certified or exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence addresses of the disciplined attorney. D. The Clerk of this Court shall, likewise, promptly notify the National Discipline Bank operated by the American Bar Association of any order imposing public discipline on any attorney admitted to practice before this Court. Effective Dec. 1, 1994.
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