On Wednesday, February 7, 2024, the FCBA held its third annual CLE on recent updates to the federal rules. Faculty presenters consisted of Chief United States District Judge Brenda K. Sannes, Career Law Clerk Michael Langan, Court Operations Manager Lori Welch, and former law clerk John Cook, of Barclay Damon, LLP. From noon to 1:15 p.m., the faculty discussed (1) the December 1, 2023, changes to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, and Federal Rules of Evidence; (2) the January 1, 2024, changes to the District’s Local Rules of Practice for Civil Cases and Local Rules of Practice for Criminal Cases; and (3) some proposed changes to the District’s 2025 Local Rules. Fifty-six FCBA members attended the CLE virtually, each receiving 1.5 credits in Law Practice Management. Other FCBA members may view the CLE for credit on the FCBA’s website. The CLE addresses a wide range of rule changes.
Changes to Federal Rules of Civil Procedure
A change to Fed. R. Civ. P. 15 substitutes “no later than” for “within” – when measuring the time allowed to amend once as a matter of course – because “no later than” makes it clear that the right to amend continues without interruption until 21 days after the earlier of the events described in Fed. R. Civ. P. 15(a)(1)(B).
A change to Fed. R. Civ. P. 72 permits the Clerk of Court to serve a copy of a Magistrate Judge’s recommended disposition by any of the means provided in Fed. R. Civ. P. 5(b), as long as the Clerk does so immediately.
Changes to Federal Rules of Bankruptcy Procedure
A change to Fed. R. Bankr. P. 3011 requires the Clerk of Court to provide searchable access on the Court’s website to information about unclaimed funds deposited pursuant to § 347(a) (such as by providing a link to the U.S. Bankruptcy Unclaimed Funds Locator).
Multiple changes have been made to Fed. R. Bankr. P. 8003. Subdivision (a)(3)(B) has been amended to avoid the misconception that it is necessary or appropriate to identify each and every order of the bankruptcy court that the appellant may wish to challenge on appeal. Subdivision (a)(4) now calls attention to the merger rule (which, generally, provides that an appeal from a final judgment or appealable order or decree permits review of all rulings that led up to the judgment, order, or decree). Subdivision (a)(5) has been added to reduce the unintended loss of appellate rights when a party who is aggrieved by a final judgment makes a motion in the bankruptcy court instead of immediately filing a notice of appeal. Subdivision (a)(6) has been added to enable deliberate limitations of the notice of appeal. Finally, Subdivision (a)(7) has been added to provide that an appeal must not be dismissed for failure to properly identify the judgment or appealable order or decree if the notice of appeal was filed after entry of the judgment or appealable order or decree and identifies an order that merged into the judgment, order, or decree from which the appeal is taken.
Changes to Multiple Federal Procedural Rules
Changes to Fed. R. Civ. P. 87, Fed. R. Crim. P. 62, Fed. R. App. P. 2, and Fed. R. Bankr. P. 9038 authorize emergency procedures that allow departures from a narrow range of rules that, in rare and extraordinary circumstances, may raise unreasonably high obstacles to effective performance of judicial functions in cases of emergencies (e.g., flooding, explosions, civil unrest, pandemics). Examples of changes made by Fed. R. Civ. P. 87 regard the completion of service of summonses on minors and incompetent persons, an extension of time to file certain motions, and the effect of those extensions on the time to file an appeal. Examples of changes made by Fed. R. Crim. P. 62 include departures from the rules regarding the public’s in-person attendance at public proceedings, a criminal defendant’s written consent or waiver, and the use of videoconferencing and teleconferencing for certain proceedings.
Changes to Fed. R. Civ. P. 6, Fed. R. Civ. P. 45, Fed. R. Crim. P. 56, Fed. R. App. P. 26, Fed. R. App. P. 45, Fed. R. Bankr. P. 9006 add Juneteenth National Independence Day to the list of legal holidays.
Changes to Federal Rules of Evidence
Changes to Fed. R. Evid. 106 provides that, if the existing fairness standard requires the completion of a statement, then that completing statement is admissible over a hearsay objection, and that the rule now covers all statements, including oral statements that have not been recorded.
Changes to Fed. R. Evid. 615 clarify that the Court, in entering an order under this rule, may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony, and that the exception from exclusion for entity representatives is limited to one designated representative per entity.
Changes to Fed. R. Evid. 702 emphasize that expert testimony may not be admitted unless the proponent demonstrates to the Court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule, and that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.
Changes to Local Rules of Practice for Civil Cases
A change to Local Rule 7.1(a)(1) clarifies that all motion papers must be filed and served upon pro se litigants (not simply non-dispositive motions as suggested by the prior rule).
A change to Local Rule 7.1(a)(2) clarifies that, when leave of Court is granted, a reply brief to a non-dispositive motion also may not exceed 10 pages in length. (In other words, if not simply a reply brief to a dispositive motion that may not exceed 10 pages in length.) A change to Local Rule 7.1(b)(5) removes the requirement that the Notice of Motion include the name of the person who plans to argue the case when requesting oral argument.
A change to Local Rule 10.1 requires that the telephone number of non-prisoner pro se litigants be displayed on the docket for purposes of scheduling Court proceedings.
A change to Local Rule 11.1 reflects that, when two attorneys from the same law firm represent a party, and one attorney leaves the firm, only a letter is required to be filed on the docket indicating the attorney has left the firm.
A change to Local Rule 72.1 removes a reference to Local Rule 7.1(a)(2) in order to clarify that reply briefs are permitted on an appeal from a magistrate’s order.
A change to Local Rule 72.3 reflects that any civil action commenced by a non-prisoner pro se litigant shall be referred to a Magistrate Judge for purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an application to proceed in forma pauperis is filed.
Changes to Local Rule 83.1 reflect that every member of the bar of this Court shall be required, upon the Court’s request, to accept a pro bono assignment, and exempt attorneys for not-for-profit organizations from the requirement.
A change to Local Rule 83.3 affords an attorney the opportunity to reapply for admission one year from the date of the denial of an application for reinstatement.
Changes to Local Rules of Practice for Criminal Cases
Changes to Local Criminal Rule 12.1(a) remove the distinction between dispositive and non-dispositive motions, and allow reply papers to be filed within seven (7) days after service of the response.
A change to Local Criminal Rule 12.1(h) clarifies that any motion for reconsideration of a criminal Court Order shall be filed within fourteen (14) days of the date of the decision.
Multiple changes have been made to Local Criminal Rule 44.2. Subsection (b) has been modified to clarify that an attorney who is granted permission to withdraw as counsel shall serve the order upon the defendant and file an affidavit of service. It has also been modified to reflect that, when a defendant consents to substitution of counsel, the incoming attorney shall file a consent to change attorney signed by the defendant, outgoing counsel and incoming counsel, and that the newly retained attorney shall serve a copy on the defendant and file an affidavit of service.
Proposed Changes to Local Rules for 2025
The comment period for proposed changes to the Local Rules for 2025 closed on March 31, 2024. Some of the proposed changes being considered regard the addition of a local rule regarding amicus briefs and the requirement of a memorandum of law to support a motion for default judgment. Proposed changes will be published in June and open for public comment in either July or August.