Comments on the Adopted Revisions to the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York
Federal Courts Committee
New York County Lawyers’ Association
May 2, 2011
The Federal Courts Committee of the New York County Lawyers’ Association appreciates the opportunity to comment on the revisions to the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (the “Revisions”). The Revisions were adopted at the recommendation of the Joint Committee on Local Rules of the Southern and Eastern Districts of New York. We recognize and appreciate the thought and effort by the District Courts and the Joint Committee that have gone into the Revisions, and we generally agree with the Revisions. We do, however, find certain Revisions unnecessary or problematic and, accordingly, address our concerns below.
Local Civil Rule 1.2. Clerk’s Office
The Revisions eliminate Local Rule 1.2 in its entirety. Local Rule 1.2 sets forth the hours the clerks’ offices are open and provides for a night depository for each court for filing papers after-hours. We respectfully submit that Local Rule 1.2 should be retained for the following reasons.
We presume that the elimination of Local Rule 1.2 is not intended to affect the continuing operation of the Courts’ night depositories. Our experience is that the night depository is used regularly for filing time-sensitive interlocutory and jurisdictional papers. Although electronic case filing (“ECF”) has eliminated the bulk of civil/criminal filings, the fact remains that commencing a civil case in the Southern and Eastern Districts requires a trip to the courthouse to file the complaint in paper form. In situations where an action must be commenced to satisfy a statute of limitations, or the court has directed a filing of a document in paper form by a particular date, the night depository may at certain hours be the only means available. See Greenwood v. State of N.Y., Office of Mental Health. 842 F.2d 636 (2d Cir. 1988)(noting that placing complaint in SDNY night depository satisfied filing requirement and action timely commenced). Maintaining a night depository is also in keeping with the Federal Rules of Civil Procedure, which provide that “[e]very district court is considered always open for filing any papers…” Fed. R. Civ. P. 77.
The Joint Committee, in its Comments to the elimination of the rule, suggests that procedures for after-hour filing are “best set forth in the websites of the respective Courts.” While the Courts’ websites arguably disseminate information at least as well as the Local Rules, we respectfully submit that a statement about the night depository on the Courts’ websites is not an adequate replacement for Local Rule 1.2 because filing a paper in the night depository after the Clerk’s office closes, but before midnight on the day of a deadline to file the paper, arguably would not satisfy the deadline absent Local Rule 1.2. Federal Rule of Civil Procedure 6(a)(4), as amended in 2009, provides that the “last day” of a period stated in days ends at midnight only for electronic filing; for filing in traditional paper format, the last day ends “when the clerk’s office is scheduled to close.” Fed. R. Civ. P. 6(a)(4). The advisory committee’s notes to the 2009 Amendments to Rule 6(a)(4) state that “[a] local rule may . . . provide that papers filed in a drop box after the normal hours of the clerk’s office are filed as of the day that is date-stamped on the papers by a device in the drop box.” Local Rule 1.2 includes such a provision in its last sentence (although that sentence’s reference to “as of the time and date stamped thereon” is problematic; just “date” would be preferable in light of Fed. R. Civ. P. 6(a)(4)). Absent Local Rule 1.2, a statement about the night depository on the Courts’ websites will not have the force of a local rule. We therefore respectfully submit that the Courts should retain Local Rule 1.2, preferably deleting the words “time and” from its last sentence.
Local Civil Rule 1.4. Withdrawal or Displacement of Attorney of Record
The Revisions require an application, served on both the client and all parties, for an order allowing an attorney to withdraw as the attorney of record. In addition to stating the reasons for withdrawal and the posture of the case, the application would require a representation whether or not a charging or retaining lien was being asserted. The Joint Committee offers no explanation for this Revision. We believe this Revision unnecessarily interferes with the attorney-client relationship, requires unnecessary motion practice, and could prejudice a party in the eyes of the Court. Accordingly, we believe that the present rule should remain.
The present rule and current practice require the outgoing attorney and client to sign a consent that is accompanied by an affidavit explaining the reason for the change of attorney and indicating the procedural posture of the case. After the Court has reviewed the consent and if it is found acceptable, it is “so ordered.” The incoming attorney then serves the consent on the other parties alerting them to the change of counsel. We believe this procedure is appropriate in balancing the interest of the client to have an attorney of his/her choosing and the Court’s responsibility in assuring that the change of counsel will not interfere with the progress of the case. If the Court believes that additional notice should be given to the other party(ies) with an opportunity to be heard, it certainly is within its powers to require that by separate order. By contrast, this Revision would require the attorney to make an application on notice to both the client and opposing parties. Because it is denominated as an “application” in this Revision (the Committee Note, in contrast, refers to it as a “motion”), Local Rule 6.1 arguably would apply requiring a notice of motion and a memorandum of law and affording other parties an opportunity to submit opposition papers. Having to make an application, with the opportunity for an adversary to submit opposing papers, is unfair to a party seeking to change his/her counsel and would, invariably, lead to higher attorney’s fees and the delay in retaining new counsel.
Furthermore, requiring an attorney (presumably the “outgoing attorney”) to state whether or not a charging or retaining lien is being asserted, goes beyond what New York law requires. See N.Y. Jud. L. § 475 (McKinney 2005). The subject of attorney liens is between the attorney and the client, and the Court should not become involved until such time as a petition is made to a court to determine or enforce the lien. Certainly, at the time of withdrawal, opposing counsel has no need to know if, in fact, a charging or retaining lien is being asserted.
We believe that the rule, as it stands today, is appropriate and correctly balances the competing needs of the Court, client, attorneys and other parties.
Local Civil Rule 7.1. Motion Papers
The Revisions specify the types of papers that are required in making and opposing a motion. We agree with the Revisions, but with respect to revised Local Rule 7.1(b), we urge that the section be further modified to add clarity.
Revised Local Rule 7.1(b) would prohibit a responding party from seeking relief beyond the denial of the motion unless that party complied with the requirements of Local Rule 7.1(a)(1) — a notice of motion or order to show cause. Apparently, this Revision is meant to curtail a party opposing a motion from asking for affirmative relief, i.e.. “cross motion” in its answering papers by requiring that party to file a separate “notice of motion.” However, because there is no requirement in the Revisions for the opposing party to file separate papers in support of this “notice of motion,” the original movant may be at loss to put in papers in opposition to the “notice of motion.” We believe that this Revision should require parties seeking relief in their opposition papers beyond the denial of the motion to be required to include a memorandum of law, and, when necessary, affidavits. We recommend that Revised Local Rule 7.1(b) should read as follows:
(b) Except as otherwise permitted by the Court, all oppositions and replies with respect to motions shall comply with Local Civil Rule 7.1(a)(‘2) and (3) above. An opposing party who seeks relief that goes beyond the denial of the motion shall comply with Local Civil Rule 7.1(a)(1). (2) and (3) above.
Local Civil Rule 77.1. Submission of Orders, Judgments and Decrees
The Revisions eliminate Local Rule 77.1 in its entirety because it has “been overtaken by the age of electronic filing.” See Joint Committee Comments. While this may be true with regards to part (b) of the Rule –“[t]he party who obtains entry of an order or judgment shall append to or endorse upon it a list of the names of the parties entitled to be notified of the entry thereof and the names and addresses of their respective attorneys,” part (a) remains necessary in those instances where the Court directs the settlement of an order or judgment.
To eliminate the procedures for settling an order in Rule 77.1 would be inconsistent with the directive found in Rule 6.2, which provides:
A memorandum signed by the Court of the decision on a motion that does not finally determine all claims for relief, or an oral decision on such motion, shall constitute the order unless the memorandum or oral decision directs the submission or settlement of an order in more extended form, (emphasis added).
Local Civil Rule 83.1. Transfer of Cases to Another District
The Revisions would eliminate Local Rule 83.1 in its entirety. That rule provides that if a case is ordered transferred out of the District, the clerk must wait until the expiration of seven days before mailing the case file to the court where the case is transferred. The Joint Committee believes that this “stay” is no longer necessary because the transfer of cases is now accomplished electronically. We believe, however, that is precisely why this short, automatic stay should remain in effect. The Joint Committee recognizes that the elimination of this rule will require parties to move expeditiously for a stay if they wish to seek review of a transfer. See Joint Committee Note. But when a transfer can now be accomplished by the push of a button moments after an order has been entered, no amount of time will ever be available to a litigant to seek a stay of transfer. We believe that the short seven-day stay is not unreasonable. The language in the rule should reflect the reality of electronic filing but should maintain the seven-day stay.
Local Civil Rule 83.4. Proceedings to Stay the Deportation of Aliens in Deportation and Exclusion Cases
The Revisions eliminate Local Rule 83.4 in its entirety. We believe, in the interest of fairness, this rule should remain.
The Joint Committee admits that “there are still some cases in which the District Courts retain jurisdiction to stay removal orders” but nonetheless believes the infrequency of these cases “do[es] not justify the retention of a detailed local rule dealing with this subject.” We disagree. If all petitioners who needed a stay of the order of removal were represented by competent counsel, the elimination of this rule might be appropriate. However, since many petitioners in these proceedings will be appearing pro se or will be given advice by “non lawyers,” having a rule setting forth the procedures is important in protecting petitioners’ rights.
The Committee on Federal Courts appreciates the opportunity to provide these comments to the revisions to the Local Rules.
New York County Lawyers’ Association
Committee on the Federal Courts
Gregg Kanter, Chair
District Court Local Rules Subcommittee
Henry J. Kennedy, Chair