AOH
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA May 26, 2023
23-SO-2
IN RE: )
AMENDMENTS TO )
THE LOCAL CIVIL, CRIMINAL, ) STANDING ORDER
AND ADMIRALTY RULES OF PRACTICE )
AND PROCEDURE )
Pursuant to 28 U.S.C. § 2017, Rule 83(a) of the Federal Rules of Civil Procedure, and Rule
57 of the Federal Rules of Criminal Procedure, the Court provided notice and an opportunity for
comment on proposed amendments to the Local Civil, Criminal, and Admiralty Rules ("Local
Rules"). The Court considered the public comments received and the recommendations of the
Local Rules Committees.
With the concurrence of the Court, it is ORDERED that the Local Civil, Criminal, and
Admiralty Rules are amended in accordance with Attachment A, B, and C.
It is further ordered that the amendments to the Local Rules shall take effect on May 31,
2023, and govern all proceedings commenced thereafter and all proceedings then pending unless
otherwise ordered by the Court.
so ORDERED this -Z S-
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day of May, 2023:~
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RICHARD E. MYERS II
Chief United States District Judge
ATTACHMENT A
United States District Court
Eastern District of North Carolina
Local Civil Rules
of
Practice and Procedure
May 2023
Local Civil Rules – U.S. District Court for the Eastern District of North Carolina Page 1
TABLE OF CONTENTS
Rule 1.1 Scope and Citation of Local Civil Rules............................................................... 13
Rule 1.2 Definitions............................................................................................................. 13
Rule 2.1 Reserved for Future Purposes ............................................................................... 14
Rule 3.1 Subsequent Litigation by Parties Proceeding In Forma Pauperis ........................ 14
Rule 3.2 Denial of In Forma Pauperis Applications .......................................................... 14
Rule 4.1 Reserved for Future Purposes ............................................................................... 14
Rule 5.1 Filing and Service of Papers ................................................................................. 15
(a) Electronic Filing. ............................................................................................................... 15
(b) Registered Users ................................................................................................................ 15
(c) Authorized User of CM/ECF Password. .......................................................................... 16
(d) Entry on Docket. ................................................................................................................ 16
(e) Service of Document. ........................................................................................................ 16
(f) Exceptions to Electronic Filing. ........................................................................................ 17
(g) Personal Identifiers. ........................................................................................................... 18
Rule 5.2 Appearances in Civil Cases .................................................................................. 18
(a) Notice of Appearance. ....................................................................................................... 18
(b) Notice of Self-Representation. .......................................................................................... 18
(c) Substitution of an Attorney................................................................................................ 19
(d) Notice of Withdrawal of a Governmental Attorney. ......................................................... 19
(e) Motion to Withdraw. ......................................................................................................... 19
Rule 5.3 Removal and Post-Removal Procedure ................................................................ 20
(a) Filing of State-Court Documents and Other Documents................................................... 20
(b) Notices of Appearance in Removed Cases. ....................................................................... 20
(c) Pending Motions at the Time of Removal. ........................................................................ 21
(d) Disclosure of Affiliations and Financial Interest. .............................................................. 22
(e) Cases Related to Bankruptcy Cases................................................................................... 22
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Rule 6.1 Motions for an Extension of Time to Perform Act ............................................... 22
Rule 7.1 Motion Practice ..................................................................................................... 22
(a) Time for Filing................................................................................................................... 22
(b) General Requirements. ...................................................................................................... 23
(c) Discovery Motions. ........................................................................................................... 23
(d) Motions for Attorney’s Fees in Certain Social Security Cases. ........................................ 24
(e) Supporting Memoranda. .................................................................................................... 24
(f) Responses to Motions. ....................................................................................................... 24
(g) Replies. .............................................................................................................................. 24
(h) Subsequently Decided Controlling Authority. .................................................................. 25
(i) Affidavits. .......................................................................................................................... 25
(j) Hearings on Motions. ........................................................................................................ 25
Rule 7.2 Memoranda ........................................................................................................... 26
(a) Form and Content. ............................................................................................................. 26
(b) Citation of Published Decisions. ....................................................................................... 26
(c) Citation of Authorities Not Appearing in Certain Sources................................................ 26
(d) Citation of Unpublished Decisions. ................................................................................... 27
(e) Provision of Authorities..................................................................................................... 27
(f) Length of Memoranda. ...................................................................................................... 27
Rule 7.3 Disclosure of Corporate Affiliations and Other Entities with a Direct Financial
Interest in Litigation.............................................................................................. 28
Rule 7.4 Ex Parte Motions .................................................................................................. 29
Rule 8.1 Reserved for Future Purposes ............................................................................... 29
Rule 9.1 Reserved for Future Purposes ............................................................................... 29
Rule 10.1 Forms of Pleadings, Motions, and Documents ..................................................... 30
Rule 10.2 Form of Exhibits to Motions ................................................................................. 32
Rule 10.3 Reserved for Future Purposes ............................................................................... 32
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Rule 11.1 Sanctions ............................................................................................................... 32
Rule 11.2 Disclosure Statements ........................................................................................... 32
Rule 12.1 Reserved for Future Purposes ............................................................................... 32
Rule 13.1 Reserved for Future Purposes ............................................................................... 32
Rule 14.1 Reserved for Future Purposes ............................................................................... 32
Rule 15.1 Amended Pleadings .............................................................................................. 32
Rule 16.1 Final Civil Pretrial Conference ............................................................................. 33
(a) Scheduling and Notice. ...................................................................................................... 33
(b) Preparation for Final Pretrial Conference. ......................................................................... 33
(c) Form of Pretrial Order. ...................................................................................................... 34
(d) Conduct of the Final Pretrial Conference. ......................................................................... 35
(e) Penalty for Noncompliance. .............................................................................................. 35
(f) Sample Pretrial Order. ....................................................................................................... 35
Rule 17.1 Minors or Incompetent Parties .............................................................................. 40
(a) Representation. .................................................................................................................. 40
(b) Settlement or Dismissal of Actions. .................................................................................. 40
(c) Approval of Attorney’s Fees and Payment of Judgments Minors.................................. 41
Rule 18.1 Reserved for Future Purposes ............................................................................... 41
Rule 19.1 Reserved for Future Purposes ............................................................................... 41
Rule 20.1 Reserved for Future Purposes ............................................................................... 41
Rule 21.1 Reserved for Future Purposes ............................................................................... 41
Rule 22.1 Reserved for Future Purposes ............................................................................... 41
Rule 23.1 Reserved for Future Purposes ............................................................................... 41
Rule 24.1 Reserved for Future Purposes ............................................................................... 42
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Rule 25.1 Reserved for Future Purposes ............................................................................... 42
Rule 26.1 Discovery .............................................................................................................. 42
(a) Discovery Materials Not to Be Filed Unless Ordered or Needed. .................................... 42
(b) Conducting Discovery. ...................................................................................................... 42
(c) Numbering Discovery Procedures. .................................................................................... 43
(d) Discovery Disputes Expedited Briefing Schedule.......................................................... 43
(e) Other Discovery Matters. .................................................................................................. 44
Rule 27.1 Reserved for Future Purposes ............................................................................... 46
Rule 28.1 Reserved for Future Purposes ............................................................................... 46
Rule 29.1 Reserved for Future Purposes ............................................................................... 46
Rule 30.1 Deposition Exhibits............................................................................................... 47
Rule 31.1 Reserved for Future Purposes ............................................................................... 47
Rule 32.1 Depositions for Use at Trial .................................................................................. 47
Rule 33.1 Form of Interrogatories, Responses, and Objections ............................................ 47
Rule 34.1 Requests for Production ........................................................................................ 47
Rule 35.1 Reserved for Future Purposes ............................................................................... 47
Rule 36.1 Requests for Admission ........................................................................................ 47
Rule 37.1 Reserved for Future Purposes ............................................................................... 47
Rule 38.1 Reserved for Future Purposes ............................................................................... 47
Rule 39.1 Preparations for Trial ............................................................................................ 48
(a) In General. ......................................................................................................................... 48
(b) Exhibits. ............................................................................................................................. 48
(c) Related Rules. .................................................................................................................... 49
Rule 39.2 Late Developments in the Case............................................................................. 49
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Rule 39.3 Opening Statements .............................................................................................. 49
Rule 39.4 Closing Arguments ............................................................................................... 49
Rule 40.1 Court Schedule and Conduct of Business ............................................................. 50
(a) Headquarters of the Clerk. ................................................................................................. 50
(b) Divisions of the District. .................................................................................................... 50
(c) Assignment of Cases to a Division. ................................................................................... 51
(d) Scheduling Trials. .............................................................................................................. 51
Rule 40.2 Electronic Designation of Judges.......................................................................... 52
Rule 40.3 Related Cases ........................................................................................................ 52
(a) Definition of Related Cases. .............................................................................................. 52
(b) Notice................................................................................................................................. 52
(c) Filing of Notice Does Not Constitute a General Appearance. .......................................... 52
Rule 41.1 Reserved for Future Purposes ............................................................................... 52
Rule 42.1 Reserved for Future Purposes ............................................................................... 53
Rule 43.1 Reserved for Future Purposes ............................................................................... 53
Rule 44.1 Reserved for Future Purposes ............................................................................... 53
Rule 45.1 Witnesses .............................................................................................................. 53
Rule 46.1 Reserved for Future Purposes ............................................................................... 53
Rule 47.1 Jurors ..................................................................................................................... 53
(a) Jury Lists............................................................................................................................ 53
(b) Examination of Jurors. ....................................................................................................... 53
(c) Contact with Trial Jurors. .................................................................................................. 54
Rule 48.1 Taking Verdicts and Polling the Jury.................................................................... 54
Rule 49.1 Reserved for Future Purposes ............................................................................... 54
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Rule 50.1 Reserved for Future Purposes ............................................................................... 54
Rule 51.1 Requests for Jury Instructions............................................................................... 54
Rule 52.1 Proposed Findings of Fact and Conclusions of Law ............................................ 55
Rule 53.1 Reserved for Future Purposes ............................................................................... 55
Rule 54.1 Application for Costs ............................................................................................ 55
(a) Filing Bill of Costs. ........................................................................................................... 55
(b) Objections to Bill of Costs................................................................................................. 55
(d) Taxable Costs. ................................................................................................................... 56
(e) Costs in Settlements........................................................................................................... 57
(f) Payment of Costs. .............................................................................................................. 57
Rule 54.2 Taxation of Juror Costs ......................................................................................... 57
(a) Settlement before Trial. ..................................................................................................... 57
(b) Settlement before Verdict. ................................................................................................. 57
Rule 55.1 Entry of Default and Default Judgment ................................................................ 57
(a) Entry of Default by Clerk. ................................................................................................. 57
(b) Default Judgment. .............................................................................................................. 58
Rule 56.1 Motions for Summary Judgment .......................................................................... 59
(a) Statement of Material Facts on Motion for Summary Judgment. ..................................... 59
(b) Exceptional Cases. ............................................................................................................. 60
(c) Cross-referencing............................................................................................................... 60
Rule 57.1 Reserved for Future Purposes ............................................................................... 60
Rule 58.1 Reserved for Future Purposes ............................................................................... 60
Rule 59.1 Reserved for Future Purposes ............................................................................... 60
Rule 60.1 Reserved for Future Purposes ............................................................................... 61
Rule 61.1 Reserved for Future Purposes ............................................................................... 61
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Rule 62.1 Reserved for Future Purposes ............................................................................... 61
Rule 63.1 Reserved for Future Purposes ............................................................................... 61
Rule 64.1 Seizure of Person or Property ............................................................................... 61
Rule 65.1 Sureties .................................................................................................................. 61
(a) Approval of Security. ........................................................................................................ 61
(b) Security. ............................................................................................................................. 61
(c) Use of Real Property as Security. ...................................................................................... 61
(d) Prohibited Sureties. ............................................................................................................ 62
Rule 66.1 Reserved for Future Purposes ............................................................................... 62
[Rule 67.1] [Deposit of Registry Funds in Interest Bearing Accounts] ................................... 62
Rule 68.1 Reserved for Future Purposes ............................................................................... 62
Rule 69.1 Reserved for Future Purposes ............................................................................... 62
Rule 70.1 Reserved for Future Purposes ............................................................................... 62
Rule 71.1 Reserved for Future Purposes ............................................................................... 62
Rule 72.1 Magistrate Judges: Standards of Performance ...................................................... 62
Rule 72.2 Magistrate Judges: Assignments of Matters ......................................................... 62
(a) General............................................................................................................................... 63
(b) Consent to Civil Trial Jurisdiction of Magistrate Judges. ................................................. 63
(c) Reserving and Changing Assignments. ............................................................................. 63
Rule 72.3 Authority of Magistrate Judge .............................................................................. 64
(a) Duties Under 28 U.S.C. § 636(a)....................................................................................... 64
(b) Determination of Non-Dispositive Pretrial Matters – 28 U.S.C. § 636(b)(1)(A). ............ 64
(c) Recommendations Regarding Case-Dispositive Motions – 28 U.S.C. § 636(b)(1)(B). .... 64
(d) Prisoner Cases Under 28 U.S.C. § 2254 and § 2255. ........................................................ 65
(e) Prisoner Civil Rights Actions. ........................................................................................... 65
(f) Special Master References................................................................................................. 65
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(g) Conduct of Trial and Disposition of Civil Cases upon Consent of the Parties – 28 U.S.C. §
636(c). ................................................................................................................................ 65
(h) Other Duties. ...................................................................................................................... 66
Rule 72.4 Review and Appeal ............................................................................................... 67
(a) Appeal of Non-Dispositive Matters – 28 U.S.C. § 636(b)(1)(A). ..................................... 67
(b) Review of Case-Dispositive Motions and Prisoner Litigation – 28 U.S.C. § 636(b)(1)(B).
67
(c) Special Master Reports – 28 U.S.C. § 636(b)(2). .............................................................. 68
(d) Appeal from Judgments in Civil Cases Disposed of on Consent of the Parties – 28 U.S.C.
§ 636(c). ............................................................................................................................. 68
(e) Appeals from Other Orders of a Magistrate Judge. ........................................................... 68
[Rule 73.1] [Consent of Parties to Civil Trial Jurisdiction of Magistrate Judges] ................... 68
Rule 74.1 Reserved for Future Purposes ............................................................................... 69
Rule 75.1 Reserved for Future Purposes ............................................................................... 69
Rule 76.1 Reserved for Future Purposes ............................................................................... 69
Rule 77.1 Court in Continuous Session................................................................................. 69
Rule 77.2 Orders and Judgments ........................................................................................... 69
Rule 78.1 Reserved for Future Purposes ............................................................................... 70
Rule 79.1 Exhibits ................................................................................................................. 70
Rule 79.2 Sealed Documents ................................................................................................. 70
(a) Filing Sealed Documents. .................................................................................................. 70
(b) Proposed Sealed Documents. ............................................................................................ 71
(c) Return of Sealed Documents. ............................................................................................ 71
(d) Procedures for Manual Filers. ........................................................................................... 72
Rule 80.1 Reserved for Future Purposes ............................................................................... 72
Rule 81.1 Civil Rights Actions by Prisoners ......................................................................... 72
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Rule 81.2 Habeas Corpus Actions ......................................................................................... 72
Rule 81.3 Naturalization ........................................................................................................ 73
Rule 82.3 Reserved for Future Purposes ............................................................................... 73
Rule 83.1 Attorneys ............................................................................................................... 73
(a) Roll of Attorneys. .............................................................................................................. 73
(b) Eligibility. .......................................................................................................................... 73
(c) Procedure for Admission. .................................................................................................. 73
(d) Representation by Local Attorneys Who Must Sign All Pleadings. ................................. 74
(e) Appearances by Attorneys Not Admitted in the District – Special Appearance. .............. 76
(f) Pleadings Service and Attendance by Local Counsel in Cases Where Out-of-State
Attorneys Appear by Special Appearance. ........................................................................ 77
(g) Courtroom Decorum. ......................................................................................................... 77
(h) Questioning of Witnesses. ................................................................................................. 77
(i) Professional Standards. ...................................................................................................... 78
(j) Admission of Attorneys Previously Admitted to the United States District Courts for the
Middle or Western Districts of North Carolina. ................................................................ 78
(k) Electronic Devices in Courtroom Facilities....................................................................... 78
Rule 83.2 Student Practice Rule ............................................................................................ 79
(a) Compliance with Rule. ...................................................................................................... 79
(b) Eligibility. .......................................................................................................................... 79
(c) Supervising Attorney. ........................................................................................................ 80
(d) Certification of Student and Supervisor. ........................................................................... 81
(e) Activities. ........................................................................................................................... 81
Rule 83.3 Change of Address ................................................................................................ 82
Rule 83.4 Release of Information to News Media ................................................................ 82
(a) Court Personnel. ................................................................................................................ 82
(b) Copies of Public Records. ................................................................................................. 83
Rule 83.5 Correspondence..................................................................................................... 83
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Rule 83.6 Photographing and Reproducing Court Proceedings ............................................ 83
Rule 83.7 Purpose of Disciplinary Rules .............................................................................. 83
Rule 83.7a Attorneys Convicted of Crimes ............................................................................ 83
(a) Filing of Judgment of Conviction. ..................................................................................... 83
(b) Definition of Serious Crime. ............................................................................................. 84
(c) Certified Copy of Judgment Conclusive Evidence. ........................................................... 84
(d) Suspension and Referral. ................................................................................................... 84
(e) Conviction of Non-Serious Crime. .................................................................................... 84
(f) Reinstatement. ................................................................................................................... 85
Rule 83.7b Discipline Imposed by Other Courts..................................................................... 85
(a) Duty to Inform This Court. ................................................................................................ 85
(b) Notice to Attorney. ............................................................................................................ 85
(c) Deferral of Action. ............................................................................................................. 86
(d) Imposition of Discipline. ................................................................................................... 86
(e) Effect of Final Adjudication. ............................................................................................. 86
(f) Appointment of an Attorney. ............................................................................................. 87
Rule 83.7c Disbarment on Consent or Resignation in Another Court or Before a State Bar . 87
Rule 83.7d Standards for Professional Conduct ...................................................................... 87
(a) Form of Discipline. ............................................................................................................ 87
(b) Grounds for Discipline. ..................................................................................................... 87
Rule 83.7e Disciplinary Proceeding ........................................................................................ 88
(a) Referral by the Court. ........................................................................................................ 88
(b) Recommendation for Disposition. ..................................................................................... 88
(c) Initiation of Disciplinary Proceedings. .............................................................................. 88
(d) Procedure for Hearing. ...................................................................................................... 88
Rule 83.7f Disbarment on Consent While Under Disciplinary Investigation or Prosecution 89
(a) Consent to Disbarment. ..................................................................................................... 89
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(b) Order of Disbarment. ......................................................................................................... 89
(c) Record. ............................................................................................................................... 89
Rule 83.7g Reinstatement ........................................................................................................ 90
(a) Automatic Reinstatement; Reinstatement by Order. ......................................................... 90
(b) Time for Petition. ............................................................................................................... 90
(c) Procedure. .......................................................................................................................... 90
(d) Costs. ................................................................................................................................. 90
(e) Order of Reinstatement. ..................................................................................................... 91
(f) Successive Petitions. .......................................................................................................... 91
Rule 83.7h Service of Papers and Other Notices .................................................................... 91
Rule 83.7i Appointment of Counsel ....................................................................................... 91
Rule 83.7j Duties of the Clerk ................................................................................................ 92
(a) To Secure Certificate of Conviction. ................................................................................. 92
(b) To Secure Disciplinary Judgment or Order. ...................................................................... 92
(c) Transmittal to Other Jurisdictions. .................................................................................... 92
(d) National Discipline Data Bank. ......................................................................................... 92
Rule 83.7k Publicity ................................................................................................................ 93
Rule 83.8 Bankruptcy Appeals .............................................................................................. 93
(a) General Provisions. ............................................................................................................ 93
(b) Courtesy Copies. ................................................................................................................ 94
(c) Appendices. ....................................................................................................................... 94
(d) Statement Regarding Oral Argument. ............................................................................... 94
Rule 83.9 Jurisdiction ............................................................................................................ 94
Rule 83.10 Courtroom Technology ......................................................................................... 95
Rule 100.1 Court Libraries ...................................................................................................... 95
Rule 100.2 Jurisdictional Agreements with Other Courts ....................................................... 95
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Rule 100.3 Civil Contempt ...................................................................................................... 96
(a) Rights of Contemnor. ........................................................................................................ 96
(b) Summary Contempt Proceedings. ..................................................................................... 96
(c) Plenary Contempt Proceedings. ......................................................................................... 96
Rule 100.4 Standing Orders .................................................................................................... 96
(a) Issuance. ............................................................................................................................ 96
(b) Subject Matter.................................................................................................................... 96
(c) Form................................................................................................................................... 97
(d) Posting and Retention. ....................................................................................................... 97
(e) Annual Review. ................................................................................................................. 97
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Rule 1.1 Scope and Citation of Local Civil Rules
These local civil rules shall govern civil actions and proceedings before the United
States District Court for the Eastern District of North Carolina except when federal
statutes and rules govern. In admiralty cases, where a local civil rule is inconsistent
with a local admiralty rule, the local admiralty rule shall apply. In patent cases,
where a local civil rule is inconsistent with a local patent rule, the local patent rule
shall apply. These local rules should be construed, administered, and employed by
the court and the parties to secure the just, speedy, and inexpensive determination of
every action and proceeding. A judge or magistrate judge, for good cause and in his
or her discretion, may alter these rules in any particular case. These rules shall be
cited as “Local Civil Rule ___.” The Local Civil Rules posted on the district’s
website, http://www.nced.uscourts.gov/rules/Default.aspx, shall be the court’s
official record of such rules.
Rule 1.2 Definitions
As used in these local rules:
(a) The term “person” refers to any human being or entity.
(b) The term “party” refers to a person who asserts a claim or who has a claim
asserted against him, her, or it. A represented party shall act through the party’s
attorney of record unless a particular rule specifically states otherwise.
(c) The term “nonparty” refers to any person other than a party, an attorney, a
judge, or a court staff member who is acting in that capacity. A represented
nonparty shall act through its attorney of record unless a particular rule
specifically states otherwise.
(d) The term “attorney” refers to an attorney of record for a person, unless the
context of a particular rule refers to attorneys more generally.
(e) The term “unrepresented person” refers to a person during any time when the
person is proceeding without an attorney.
(f) The term “incarcerated unrepresented person” refers broadly to an
unrepresented person who is currently imprisoned, jailed, civilly committed, or
otherwise detained.
(g) The term “movant” refers to a person who makes a motion.
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Rule 2.1 Reserved for Future Purposes
Rule 3.1 Subsequent Litigation by Parties Proceeding In Forma Pauperis
A party who has proceeded unsuccessfully in forma pauperis and had the costs of
that litigation taxed against him or her must demonstrate that he or she has paid or
made a reasonable effort to pay those costs prior to being authorized to proceed again
in forma pauperis.
Rule 3.2 Denial of In Forma Pauperis Applications
In all civil actions in which the court denies the plaintiff’s motion to proceed in
forma pauperis, the plaintiff shall be allowed 30 days to pay the requisite filing fee.
If the plaintiff fails to pay the filing fee, the clerk shall designate the action as a
miscellaneous case and close the matter without further order from the court.
Rule 4.1 Reserved for Future Purposes
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Rule 5.1 Filing and Service of Papers
(a) Electronic Filing.
(1) Documents Submitted for Filing. Unless otherwise permitted by
the Electronic Case Filing Administrative Policies and Procedures
Manual (Policy Manual) or otherwise authorized by the assigned
judge, all documents submitted for filing shall be filed electronically
in searchable text format using the Case Management/Electronic
Case Filing system (CM/ECF) and in accordance with the Policy
Manual. A system generated Notice of Electronic Filing (NEF) shall
be the official confirmation of electronic filing. Any document
electronically filed or converted by the clerk’s office to electronic
format shall be the official record of the court. As such, the clerk’s
office will not maintain a paper record of these documents. The
clerk’s office will not accept any e-mail or facsimile transmission for
filing unless ordered by the court.
(2) Court-Generated Documents. All orders, decrees, judgments, and
proceedings of the court will be filed in accordance with the Policy
Manual. That filing shall constitute entry of that document on the
docket kept by the clerk under Fed. R. Civ. P. 58 and 79. All signed
orders will be filed electronically by the court or court personnel.
Any order or other court-issued document filed electronically
without the original signature of a judge or clerk has the same force
and effect as if the judge or clerk had signed a paper copy of the order
or other court-issued document and as if it had been entered on the
docket in a conventional manner. Orders may be “text only” entries
on the docket, without an attached document. Such orders are official
and binding.
(b) Registered Users.
Registered users of CM/ECF include both filing users and receiving users
as defined in subsection (b)(1) and (2) of this rule.
(1) Filing Users.
Only an attorney who is registered in CM/ECF may file documents
electronically. Filing users are subject to service of documents under
Fed. R. Civ. P. 5(b)(2)(E).
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(2) Receiving Users.
An unrepresented party who is not incarcerated may register to be a
receiving user of CM/ECF. A receiving user receives notices of
filings by email instead of regular mail but may not file
electronically. Receiving users are subject to service of documents
under Fed. R. Civ. P. 5(b)(2)(E).
(c) Authorized User of CM/ECF Password.
No attorney shall knowingly permit or cause to permit the attorney’s
CM/ECF password to be used by anyone other than an authorized employee
of the attorney’s law firm. No person shall knowingly use or cause another
person to use the password of a registered attorney unless such person is an
authorized employee of the attorney’s law firm.
(d) Entry on Docket.
The electronic filing of a document in accordance with the Policy Manual
shall constitute entry of that document on the docket kept by the clerk under
Fed. R. Civ. P. 79. Except in the case of documents first filed in paper form,
a document filed electronically is deemed filed at the date and time stated on
the NEF that is automatically generated by CM/ECF.
(e) Service of Document.
(1) Documents Submitted for Filing.
Except as provided in Section VI.F of the Policy Manual and subsection (f)
of this rule, when a document is filed in CM/ECF, it is served electronically
on registered users in compliance with Fed. R. Civ. P. 5(b)(2)(E) and 77(d).
The time to respond shall be calculated from the NEF, regardless of whether
other means of service are used. Non-registered persons must be served with
a copy of any document filed electronically in accordance with the Federal
Rules of Civil Procedure. Service on any attorney currently appearing on
behalf of that person constitutes service on that person. CM/ECF may not be
used to serve documents that are not permitted to be filed, including
discovery as provided in Fed. R. Civ. P. 5(d) and Local Civil Rule 26.1(a).
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(2) Court-Generated Documents
When more than one attorney appears on behalf of a person in a case, and
not all of the attorneys for that person are registered filing users, service of
any court-generated document (e.g., orders, notices, etc.) will only be made
on the attorneys registered in CM/ECF. It is the responsibility of the non-
registered attorney to make arrangements with the registered attorney users
for that person to remain apprised of court-generated filings in the case.
Non-registered attorneys will not receive paper copies from the court.
(f) Exceptions to Electronic Filing.
(1) Documents Excluded from Electronic Filing
Unless otherwise ordered by the court, documents filed by an unrepresented
person and those documents listed in Section V.A of the Policy Manual, shall
be filed in paper form and are excluded from electronic filing. Any
document filed in paper form that is not exempt pursuant to this section must
be accompanied by a motion for leave to file the document and a proposed
order. When filed in paper form, the document must contain the original
signature of the attorney or each unrepresented person. A document filed in
paper form shall be deemed filed on the date it is received by the clerk except
that for incarcerated unrepresented persons a document filed in paper form
is deemed filed on the date that it is deposited in the institution’s mailing
system.
(2) Service of Documents Filed by an Unrepresented Person
Unless the document is listed in Section V.A. of the Policy Manual, the clerk
shall scan and electronically file a document submitted for filing by an
unrepresented person. Except as provided for in Section VI.F of the Policy
Manual, the electronic filing of the document by the clerk constitutes service
on registered users in compliance with Fed. R. Civ. P. 5(b)(2)(E) and 77(d),
and the deadline to respond to the document shall be calculated from the date
of NEF, regardless of whether other means of service are used. An
unrepresented person must separately serve any non-registered person as
provided in Fed. R. Civ. P. 5(b).
(3) Service of Documents Excluded from Electronic Filing
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Any document filed in paper form pursuant to Section V.A. of the Policy
Manual or with leave of court must be served on opposing parties and
nonparties as provided in Fed. R. Civ. P. 5(b). Service on any attorney
currently appearing on behalf of a person shall be service on that person.
(g) Personal Identifiers.
The responsibility for redacting personal identifiers rests solely with the filer.
The clerk will not review each filed document and any attachments for
compliance with Fed. R. Civ. P. 5.2.
Rule 5.2 Appearances in Civil Cases
(a) Notice of Appearance.
Each attorney shall file a notice of appearance with the clerk and serve all
parties. The signature block in the notice of appearance shall be in
compliance with the requirements of the signature block illustrated in Local
Civil Rule 10.1. The attorney shall also contemporaneously file a disclosure
statement in accordance with Fed. R. Civ. P. 7.1 and Local Civil Rule 7.3.
(b) Notice of Self-Representation.
(1) A non-incarcerated unrepresented person shall file a notice of self-
representation on a form available from the clerk. This notice shall
be filed when the unrepresented person initially appears in the action
or as required by subsection (e) of this rule. The unrepresented person
shall also contemporaneously file a disclosure statement in
accordance with Fed. R. Civ. P. 7.1 and Local Civil Rule 7.3.
(2) A corporation, a limited liability company, a partnership, a trust, an
association, or any other entity that is not a natural person cannot
appear as an unrepresented person and must be represented by an
attorney in accordance with Local Civil Rule 83.1(d). Except as
otherwise permitted by law, no unrepresented person may appear on
behalf of another unrepresented person.
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(c) Substitution of an Attorney.
Whenever an attorney of record in a case will be replaced by another attorney
who is an active member of the bar of this court, a notice of substitution of
attorney must be filed. The notice must (i) be signed by and contain a
signature block for both attorneys in compliance with Local Civil Rule 10.1;
(ii) identify the persons represented; (iii) verify that the attorney entering the
case is aware of and will comply with all pending deadlines in the case,
including proceeding with any scheduled trial or hearings; and (iv) be served
on all parties. Upon filing of the notice, the clerk’s office shall terminate the
withdrawing attorney from the case and add the new attorney as attorney of
record without order of the court. If the notice does not comply with this
rule, the clerk will issue a notice of deficiency and the withdrawing attorney
shall remain attorney of record.
(d) Notice of Withdrawal of a Governmental Attorney.
When a local, state, or federal governmental attorney has filed a notice of
appearance in a case but is no longer associated with it, and there is at least
one other active governmental attorney who has filed a notice of appearance
in the case, the active governmental attorney shall file a notice of withdrawal
of governmental attorney to withdraw the appearance of the governmental
attorney who is no longer associated with the case. The notice of withdrawal
must be signed and filed by the active governmental attorney, certify that the
withdrawing attorney is no longer associated with the case, and be served on
all parties. Upon the filing of the notice of withdrawal, the clerk’s office
shall terminate the withdrawing governmental attorney from the case without
order of the court. The attorneys to whom this subsection applies include
attorneys employed by the Office of the Federal Public Defender.
(e) Motion to Withdraw.
In all other instances, any attorney shall by motion seek leave of court to
withdraw his or her notice of appearance. Any motion to withdraw shall (i)
contain the last known mailing, and if different, physical address of the
moving attorney’s client; (ii) contain a description of the procedural posture
of the case; (iii) state whether the client consents to the motion; and if
applicable (iv) include a certification by the moving attorney that the client
cannot be located or, for any other reason, cannot be notified regarding the
motion to withdraw. If withdrawal would leave a person without
representation, the motion to withdraw shall be accompanied by a proposed
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order granting the motion on a form available from the clerk stating that (i)
within 21 days after entry of the order, or within the time otherwise required
by the court, the unrepresented person shall file a notice of self-
representation or cause a new attorney to file a notice of appearance; (ii) no
corporation, limited liability company, partnership, trust, association, or
other entity that is not a natural person may appear as an unrepresented
person but must be represented by an attorney in accordance with Local Civil
Rule 83.1(d); and (iii) a party who fails to file a notice of self-representation
or cause a new attorney to file a notice of appearance may be subject to
sanctions, including but not limited to dismissal or default judgment.
Rule 5.3 Removal and Post-Removal Procedure
(a) Filing of State-Court Documents and Other Documents.
(1) Any party who files a notice of removal shall file with the notice a
civil cover sheet, a supplemental removal cover sheet (available from
the clerk), and true and legible copies of all process, pleadings,
orders, and other documents that have been served on the party in
state court, excluding discovery. The removing party shall file each
served state-court document as a separate and distinctly titled exhibit
to the notice of removal.
(2) No later than 7 days after the filing of the notice of removal, the
removing party shall file the notice that the party filed in state court
to comply with 28 U.S.C. § 1446(d).
(3) Except for the filing of a supplemental removal cover sheet,
subsection (a) of this rule shall not apply to removals pursuant to 28
U.S.C. § 1442(d)(1).
(b) Notices of Appearance in Removed Cases.
(1) The removal of a case to this court does not relieve attorneys who
appeared in the other court of their obligations to their clients.
(2) Within 14 days after removal, attorneys for all parties in the state-
court action shall file either a notice of appearance, a notice of
substitution of attorney, or a motion to withdraw in accordance with
Local Civil Rule 5.2. Any unrepresented person at the time of
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removal shall file a notice of self-representation in accordance with
Local Civil Rule 5.2(b)(1) within 14 days after removal.
(3) An attorney in a removed action who is eligible for admission to the
bar of this court but is not yet admitted may file an application for
admission to the bar of this court at or before the time of the
attorney’s notice of appearance. In that instance, the notice of
appearance shall state expressly that it is contingent on the attorney’s
application for admission being granted.
(4) If an attorney is not an electronic filer in this district, the attorney
may file the motion to withdraw or notice of appearance in paper
form, as long as a motion for leave to file in paper form accompanies
the motion to withdraw or notice of appearance.
(c) Pending Motions at the Time of Removal.
(1) A party filing a notice of removal shall list on the supplemental
removal cover sheet any motion filed in the state court that is pending
at the time of removal.
(2) If, at the time of removal, a motion is pending for which no
supporting memorandum of law has been submitted to the state court,
the movant on that motion shall file a supporting memorandum
within 14 days of the date of removal, unless the motion is of a type
covered by Local Civil Rule 77.2 or unless otherwise ordered by the
court. The Local Civil Rule 7.1(f) deadline for a response to the
motion runs from the date of the movant’s filing of a supporting
memorandum in this court.
(3) If, at the time of removal, a pending motion was supported by a
memorandum of law, any response to that motion shall be filed 21
days after the removal, unless otherwise ordered by the court.
(4) Subsection (c) of this rule shall not apply to proceedings removed
pursuant to 28 U.S.C. § 1442(d)(1) unless the pending motion relates
to the proceeding being removed.
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(d) Disclosure of Affiliations and Financial Interest.
Within 14 days after the filing of a notice of removal, all parties shall make
the disclosures required by Local Civil Rule 7.3, regardless of the provisions
of subsection (b) of this rule and Local Civil Rule 5.2(a).
(e) Cases Related to Bankruptcy Cases.
Removals under 28 U.S.C. § 1452 or 28 U.S.C. § 1441 in cases related to
bankruptcy cases shall be filed with the bankruptcy court.
Rule 6.1 Motions for an Extension of Time to Perform Act
(a) Each motion for an extension of time to perform an act required or allowed
to be done within a specified time must show good cause. The motion must
also show that the movant has in good faith conferred or attempted to confer
with all parties and nonparties whose interests are directly affected by the
motion, including unrepresented parties and nonparties but excluding
incarcerated unrepresented parties and nonparties. The motion must identify
the views of each party or nonparty consulted, as well as the efforts to consult
with any parties and nonparties who did not respond. The motion must be
accompanied by a separate proposed order granting the motion.
(b) Except as ordered by the court, designated secured leave under Rule 26
of the General Rules of Practice for the Superior and District Courts of the
State of North Carolina shall not be the sole basis for an extension of time
or continuance.
Rule 7.1 Motion Practice
(a) Time for Filing.
All motions in civil cases except those relating to the admissibility of
evidence at trial must be filed on or before 30 days following the conclusion
of the period of discovery. If an extension of the original period of discovery
is approved by the court, the time for filing motions is automatically
extended to 30 days after the new date unless otherwise ordered by the court.
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(b) General Requirements.
(1) All motions shall be concise and shall state precisely the relief
requested. Motions shall conform to the general motions
requirements, standards, and practices set forth in the applicable
Federal Rules of Civil Procedure and in Local Civil Rule 10.1.
(2) If a movant is aware that an opposing party or nonparty consents or
does not object to a motion, the motion shall so state. This subsection
does not require a movant to confer with any opposing person before
filing a motion, although other provisions of these rules may require
a movant to do so.
(3) If a movant seeking nondispositive relief is aware at the time of filing
the motion that it is consented to or not opposed, the movant shall
file with the motion a proposed order allowing the relief sought. If
the movant becomes aware after filing the motion that it is consented
to or not opposed, the movant shall file a proposed order allowing the
relief sought as soon as practicable after becoming aware.
(c) Discovery Motions.
(1) For purposes of these Local Civil Rules, a discovery motion is any
motion or other request to the court that seeks to enforce, use,
regulate, extend, modify, nullify, or limit any of the procedures
described in any of Rules 26 through 37 of the Federal Rules of Civil
Procedure or in any of Local Civil Rules 26.1, 30.1, 33.1, 34.1, or
36.1. A motion or other request to the court that seeks to enforce,
use, regulate, extend, modify, quash, or limit any pretrial civil
subpoena is likewise a discovery motion.
(2) No discovery motion will be considered by the court unless the
motion sets forth or has attached thereto, by item, the specific
question, interrogatory, etc., with respect to which the motion is filed
and any objection made along with the grounds supporting or in
opposition to the objection. The movant must also certify that there
has been a good faith effort to resolve discovery disputes prior to the
filing of any discovery motions.
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(d) Motions for Attorney’s Fees in Certain Social Security Cases.
Any motion for attorney’s fees under 42 U.S.C. §§ 406(b) or 1383(d)(2) shall
be filed within 65 days after the date of the last notice of award necessary to
accurately calculate the total amount of retroactive benefits, unless extended
by consent or order.
(e) Supporting Memoranda.
Except for motions the clerk may grant as specified in Local Civil Rule 77.2,
all motions made, other than in a hearing or trial, shall be filed with an
accompanying supporting memorandum in the manner prescribed by Local
Civil Rule 7.2(a). Where appropriate, motions shall be accompanied by
affidavits or other supporting documents.
(f) Responses to Motions.
Any party may file a written response to any motion. A response shall be in
the form of a memorandum in the manner prescribed by Local Civil Rule
7.2(a) and may be accompanied by, without limitation, affidavits and other
supporting documents.
(1) Nondiscovery Motions. Responses and accompanying documents
shall be filed within 21 days after service of the motion in question
unless otherwise ordered by the court or prescribed by the applicable
Federal Rules of Civil Procedure.
(2) Discovery Motions. Responses and accompanying documents
relating to discovery motions shall be filed within 14 days after
service of the motion in question unless otherwise ordered by the
court.
(g) Replies.
(1) Nondiscovery Motions. Replies to responses are discouraged.
However, except as provided in in subsection (g)(2) of this rule, a
party desiring to reply to matters initially raised in a response to a
motion shall file the reply within 14 days after service of the
response, unless otherwise ordered by the court.
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(2) Discovery Motions.
Replies are not permitted in discovery disputes. See Local Civil
Rule 26.1(d)(3).
(h) Subsequently Decided Controlling Authority.
A suggestion of subsequently decided controlling authority, without
argument, may be filed and served at any time prior to the court’s ruling and
shall contain only the citation to the case relied upon, if the case is published,
or a copy of the opinion if the case is unpublished.
(i) Affidavits.
Ordinarily, affidavits will be made by witnesses themselves and not by
attorneys. However, affidavits may be made by an attorney for a person if
the sworn facts are known to the attorney or the attorney can swear to them
upon information and belief, and
(1) the facts relate solely to an uncontested matter; or
(2) the facts relate solely to a matter of formality and there is no reason
to believe that substantial evidence will be offered in opposition to
the facts; or
(3) the facts relate solely to the nature and value of the legal services
rendered for the person by the attorney or the attorney’s law firm; or
(4) the refusal to accept the affidavit would work a substantial hardship
on the person and the court finds that its acceptance of the affidavit
would not be such as to require that the attorney or the attorney’s law
firm be disqualified from continuing to appear for the person.
(j) Hearings on Motions.
Hearings on motions may be ordered by the court in its discretion. Unless
so ordered, motions shall be determined without a hearing.
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Rule 7.2 Memoranda
(a) Form and Content.
A memorandum in support of or in opposition to a motion shall comply with
Local Civil Rule 10.1 and shall contain:
(1) a concise summary of the nature of the case;
(2) a concise statement of the facts that pertain to the matter before the
court for ruling;
(3) the argument (brevity is expected) relating to the matter before the
court for ruling with appropriate citations in accordance with
subsections (b), (c), and (d) of this rule; and
(4) copies of any decisions in cases cited as required by subsections (c)
and (d) of this rule.
(b) Citation of Published Decisions.
Published decisions cited should include parallel citations (except for United
States Supreme Court cases), the year of the decision, and the court deciding
the case. The following are illustrations:
(1) State Court Citation: Rawls v. Smith, 238 N.C. 162, 77 S.E.2d 701
(1953);
(2) District Court Citation: Smith v. Jones, 141 F. Supp. 248 (E.D.N.C.
1956);
(3) Court of Appeals Citation: Smith v. Jones, 237 F.2d 597 (4th Cir.
1956);
(4) United States Supreme Court Citation: Smith v. Jones, 325 U.S. 196
(1956). United States Supreme Court cases should be cited in
accordance with current Bluebook form.
(c) Citation of Authorities Not Appearing in Certain Sources.
Any authority (e.g., court decision, administrative decision, regulation) that
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is not available on LexisNexis or Westlaw may be cited if a copy of the
authority is filed as an exhibit to the motion or memorandum in which it is
cited.
(d) Citation of Unpublished Decisions.
A decision designated as “unpublished” by a United States District Court
may be considered by this court. A decision designated as “unpublished” by
a United States Court of Appeals will be given due consideration and weight
but will not bind this court. In accordance with subsection (c) of this rule, if
such an unpublished decision is not available on LexisNexis or Westlaw, a
copy of it shall be filed as an exhibit to the motion or memorandum in which
it is cited.
(e) Provision of Authorities.
If an authority is not reasonably available to an opposing party or nonparty,
the person citing that authority shall furnish the authority to the opposing
parties and nonparties upon request.
(f) Length of Memoranda.
Unless the court orders otherwise, memoranda must conform to either the
page limits or word limits below.
(1) Headings, footnotes, citations, and quotations in a memorandum
count toward the page and word limits. The case caption, the
signature block, any required certificates, any table of contents, any
table of authorities, and any attachments, exhibits, affidavits, and
other addenda to a memorandum do not count toward the page and
word limits.
(2) Page Limits.
(A) A memorandum in support of or in opposition to a motion
(other than a discovery motion) shall not exceed 30 pages in
length.
(B) A memorandum in support of or in opposition to a discovery
motion shall not exceed 10 pages in length.
(C) A reply or surreply memorandum (where allowed) shall not
exceed 10 pages in length.
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(3) Word Limits.
(A) A memorandum in support of or in opposition to a motion
(other than a discovery motion) shall not exceed 8400 words.
(B) A memorandum in support of or in opposition to a discovery
motion shall not exceed 2800 words.
(C) A reply or surreply memorandum (where allowed) shall not
exceed 2800 words.
A memorandum under this subsection (f)(3) must contain a
certificate, signed by the attorney or unrepresented party, attesting
that the memorandum complies with the applicable word limit. The
signer of the certificate may rely on the word count generated by
word processing software, as long as the software counts the
elements required by subsection (f)(1) of this rule. The certificate
must state the number of words in the memorandum.
Rule 7.3 Disclosure of Corporate Affiliations and Other Entities with a Direct
Financial Interest in Litigation
(a) All parties to a civil or bankruptcy case, whether or not they are covered by
the terms of Fed. R. Civ. P. 7.1, shall file a corporate affiliate/financial
interest disclosure statement. This rule does not apply to the United States
or to state and local governments in cases in which the opposing party is
proceeding as an unrepresented person.
(b) The statement shall set forth the information required by Fed. R. Civ. P. 7.1
and the following:
(1) A trade association shall identify in the disclosure statement all
members of the association, their parent corporations, and any
publicly held companies that own ten percent or more of a member’s
stock;
(2) All parties shall identify any publicly held corporation, whether or
not a party to the present litigation, that has a direct financial interest
in the outcome of this litigation by reason of a franchise, lease, other
profit-sharing agreement, insurance, or indemnity agreement;
(3) Whenever required by Fed. R. Civ. P. 7.1 or this rule to disclose
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information about a corporation that has issued shares to the public,
a party shall also disclose information about similarly situated master
limited partnerships, real estate investment trusts, or other legal
entities whose shares are publicly held or traded.
(c) The disclosure statement shall be on a form provided by the clerk. A
negative statement is required if a party has no disclosures to make.
(d) The disclosure statement shall be filed when the party makes an initial
appearance in the action. The parties are required to amend their disclosure
statements when necessary to maintain their current accuracy.
Rule 7.4 Ex Parte Motions
Unless the related case is already under seal, an ex parte motion shall only be sealed
upon specific order of the court. A motion requesting permission to file an ex parte
motion under seal shall include the ex parte motion as an attachment. The clerk shall
treat the motion to seal and attachment as sealed pending order of the court.
Rule 8.1 Reserved for Future Purposes
Rule 9.1 Reserved for Future Purposes
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Rule 10.1 Forms of Pleadings, Motions, and Documents
All pleadings, motions, discovery procedures, memoranda, and other papers filed
with the clerk of court shall:
(a) be double-spaced on single-sided, standard letter size (8½ x 11) paper, with
all typed matter appearing in at least 11 point font size with a one inch margin
on all sides;
(b) state the court and division in which the action is pending;
(c) except for the initial filing, bear the case number assigned by the clerk;
(d) contain the caption of the case;
(e) if applicable, state the title of the pleading, motion, discovery procedure, or
document and the federal statute or rule number under which the party is
proceeding;
(f) contain the individual name, firm name, address, telephone number, fax
number, e-mail address, and state bar identification, where applicable, of
all attorneys who appear for the filing person, including any attorney making
a special appearance pursuant to Local Civil Rule 83.1(e);.
(g) bear the date when it was signed;
(h) be signed by an attorney or unrepresented person;
(i) include below the filer’s signature, on the line immediately below, the typed
or printed name in the same form as the signature. In preparation of
documents for signature by a judge or magistrate judge, a blank space shall
be provided below the signature line in which the name may be typed or
printed;
(j) have each page numbered sequentially; and
(k) absent an order of the court upon a showing of good cause, be in the English
language unless translations are furnished. Any English translation shall
include a certification that the translation is accurate. Partial translations are
acceptable if the person filing a document believes that the portion translated
is sufficient to address the issues being litigated. Within 14 days of the filing
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of the translated document, any opposing party or nonparty may file
objections to the translation or to the partial nature of the translation or may
file additional partial or complete translations of the document as it believes
necessary.
The following forms are examples to be followed:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. __:____-CV-___-__
JANE T. SMITH, )
)
Plaintiff, )
) OFFER OF JUDGMENT
v. ) Fed. R. Civ. P. 68
)
AARON R. JONES et al., )
)
Defendants. )
This day of January 201 .
/s/ John B. Attorney
John B. Attorney
Abbott, Ball and Attorney
200 Main Street
Post Office Box 50
Raleigh, North Carolina 27602
(919) 878-8787
Fax (919) 878-8000
[email protected]
State Bar No. ____________________
Attorney for Defendant
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Rule 10.2 Form of Exhibits to Motions
Exhibits containing double-sided documents are not permitted and will not be
considered by the court. Condensed deposition transcripts are discouraged.
Rule 10.3 Reserved for Future Purposes
Rule 11.1 Sanctions
If an attorney or any party or nonparty fails to comply in good faith with any local
rule of this court, the court in its discretion may impose sanctions.
Rule 11.2 Disclosure Statements
(a) As part of making an appearance in every case, an attorney shall include the
attorney’s name and the name of the attorney’s law firm. The attorney also
shall file contemporaneously a client disclosure statement in accordance with
Fed. R. Civ. P. 7.1 and Local Civil Rule 7.3.
(b) As part of making an appearance in every case, all unrepresented persons
(other than incarcerated unrepresented persons) shall file contemporaneously
a disclosure statement in accordance with Fed. R. Civ. P. 7.1 and Local Civil
Rule 7.3.
Rule 12.1 Reserved for Future Purposes
Rule 13.1 Reserved for Future Purposes
Rule 14.1 Reserved for Future Purposes
Rule 15.1 Amended Pleadings
(a) A party moving to amend a pleading shall attach to the motion:
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(i) The proposed amended pleading, duly signed, and any exhibits
thereto; and
(ii) A form of the amended pleading that indicates in what respect it
differs from the pleading that it amends by bracketing or striking
through text to be deleted and underlining or highlighting text to be
added.
(b) If the motion to amend is granted, the clerk shall docket the amended
pleading, unless otherwise ordered by the court. The amended pleading shall
be deemed served on the date it is entered on the docket unless otherwise
ordered by the court.
(c) An incarcerated unrepresented person is exempted from complying with
subsection (a)(ii) of this rule.
Rule 16.1 Final Civil Pretrial Conference
(a) Scheduling and Notice.
A final pretrial conference shall be scheduled in every civil action after the
time for discovery has expired. In most actions, the clerk shall give at least
45 days’ notice of such conference. In the court’s discretion and upon
request of any party or on the court’s own initiative, a preliminary or
“working” pretrial conference may be scheduled.
(b) Preparation for Final Pretrial Conference.
(1) At least 28 days before the pretrial conference, all parties must
provide to all other parties the pretrial disclosures required under Fed.
R. Civ. P. 26(a)(3). Twenty-one days before the pretrial conference,
a party may designate and serve any objections listed in Fed. R. Civ.
P. 26(a)(3). The parties’ Rule 26(a)(3) disclosures, and objections
thereto, shall be incorporated into the final pretrial order, consistent
with subsection (c) of this rule. The pretrial order must be submitted
to the court 7 days prior to the pretrial conference.
(2) In preparing for the pretrial conference, the parties shall confer and
prepare a proposed pretrial order. It shall be the duty of the plaintiff
to arrange for the parties to confer for the purpose of preparing a
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proposed pretrial order. Where video depositions are to be used,
parties should endeavor to reach early agreement on editing; where
agreement cannot be reached, required rulings by the court should be
sought in sufficient time to allow for final edited versions of
depositions to be used at trial.
(c) Form of Pretrial Order.
The pretrial order shall be prepared in one sequential document without
reference to attached exhibits or schedules and shall contain the following in
5 separate sections, numbered by roman numerals as indicated:
(1) Stipulations. Stipulations covering jurisdiction, joinder, capacity of
the parties, relevant and material facts, legal issues, and factual
issues.
(2) Contentions. Contentions covering matters on which the parties
have been unable to stipulate, including jurisdiction, misjoinder,
capacity of the parties, relevant and material facts, legal issues, and
factual issues. Claims and defenses as to which no contentions are
listed in the pretrial order are deemed abandoned.
(3) Exhibits. A list of exhibits that each party may offer at trial,
including any map or diagram, numbered sequentially; exhibit
numbers shall remain the same throughout all further proceedings.
Copies of all exhibits shall be provided to the opposing party not later
than the conference provided for in subsection (b)(1) of this rule. The
court may excuse the copying of large maps or other exhibits. Except
as otherwise indicated in the pretrial order, it will be deemed that all
parties stipulate that all exhibits are authentic and may be admitted
into evidence without further identification or proof. Grounds for
objection as to authenticity or admissibility must be set forth in the
pretrial order. When practicable, trial exhibits should carry the same
number as in the depositions and references to exhibits in depositions
should be changed to refer to the trial exhibit number. It is not
necessary to designate exhibits that are to be used solely for
impeachment or cross-examination. Except as otherwise indicated in
the pretrial order or ordered by the court, a party may use any exhibit
in opening statements, provided that the exhibit has been listed in the
pretrial order, and (a) the opposing party has not objected to it, or (b)
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any such objection has been overruled prior to opening statement.
(4) Designation of Pleadings and Discovery Materials. The
designation of all portions of pleadings and discovery materials,
including depositions, interrogatories, and requests for admission
that each party may offer at trial, shall be noted by reference, where
applicable, to document volume, page number, and line. Objection
by the opposing party shall be noted by reference, where applicable,
to document volume, page number, and line, and the reasons for such
objection shall be stated. It is not necessary to designate any portion
of a pleading, deposition, or any other discovery material that is to be
used solely for impeachment or cross-examination.
(5) Witnesses. A list of the names and addresses of all witnesses each
party may offer at trial, together with a brief statement of what the
party proposes to establish by their testimony.
(d) Conduct of the Final Pretrial Conference.
(1) Purpose. To resolve any disputes concerning the contents of the
pretrial order.
(2) Preparation. The parties shall be fully prepared to present to the
court all information and documentation necessary for completion of
the final pretrial order. Failure to do so shall result in the sanctions
provided by this local rule.
(3) Pretrial Order. All parties shall be responsible for presenting the
final proposed pretrial order, properly signed by all parties, at a time
designated by the court.
(e) Penalty for Noncompliance.
A person’s failure to comply with the provisions of this local rule may
result in the imposition against that person of a monetary fine not to exceed
$250.00, any other sanction allowable by the Federal Rules of Civil
Procedure, or both.
(f) Sample Pretrial Order.
A pretrial order in the following form shall be sufficient to comply with
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subsection (c) of this rule:. [The case caption should be in the form provided
as an example in Local Civil Rule 10.1.]
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:94-CV-125-F
JOHN DOE, by his guardian )
ad litem, and JANE DOE, )
)
Plaintiffs, )
)
v. ) PRETRIAL ORDER
)
XYZ CORPORATION, )
)
Defendant. )
Date of Conference: August 12, 1998
Appearances: Jane Y. Lawyer, Raleigh, North Carolina for plaintiff;
Sam X. Attorney, Fayetteville, North Carolina for defendant.
I. STIPULATIONS.
A. all parties are properly before the court;
B. the court has jurisdiction of the parties and of the subject matter;
C. all parties have been correctly designated;
D. there is no question as to misjoinder or nonjoinder of parties;
E. plaintiff, a minor, appears through his or her guardian;
F. Facts:
1. Plaintiff is a citizen of Wake County, North Carolina.
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2. Defendant is a New York corporation, licensed to do business and doing business
in the State of North Carolina.
G. Legal Issues:
May a nine-year old minor be guilty of contributory negligence?
H. Factual Issues:
1. Was plaintiff injured and damaged by the negligence of defendant?
2. What amount, if any, is plaintiff entitled to receive of defendant as compensatory
damages?
II. CONTENTIONS.
A. Plaintiff
1. Facts:
(a) That Richard Roe was driving defendant’s truck as defendant’s agent.
(b) That Richard Roe was negligent in that he drove at an excessive speed and
while under the influence of intoxicating liquor.
2. Factual Issues:
What amount, if any, is plaintiff entitled to recover of defendant as punitive
damages?
B. Defendant
1. Facts:
That Richard Roe, a former employee, took defendant’s truck without authorization
and, at the time of the accident, was not the agent or employee of defendant.
2. Factual Issues:
Did plaintiff, by his or her own negligence, contribute to his or her injury and
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damage?
III. EXHIBITS.
A. Plaintiff
Number Title Objection
l Patrol Report Hearsay
2 Photo of Plaintiff
B. Defendant
Number Title Objection
l Photo of Scene
2 Scale Model
IV. DESIGNATION OF PLEADINGS AND DISCOVERY MATERIALS.
A. Plaintiff
Document Portion Objection Reason
Plaintiff’s Nos. 1, 8 and No. 8 Privilege
first set of 9
interrogatories
Deposition Vol. 1, line Line 6, p. 1 Hearsay
of Richard Roe 6, p. 1 thru thru line 2,
line 5, p. 6 p. 7
B. Defendant
None
V. WITNESSES.
A. Plaintiff
Name Address Proposed Testimony
John Jones 615 Rains Street Facts surrounding
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Raleigh, NC accident
Frank Flake Selma, NC Speed of defendant’s
vehicle, intoxication of driver
B. Defendant
All witnesses listed by plaintiff.
Name Address Proposed Testimony
Sam Smith 4 Appian Way Facts surrounding the
Rome, Italy theft by driver of the vehicle
TRIAL TIME ESTIMATE: days
/s/ Jane Y. Lawyer
JANE Y. LAWYER
Attorney for Plaintiff
/s/ Sam. S. Attorney
SAM X. ATTORNEY
Attorney for Defendant
APPROVED BY:
___________________________
BILL SMITH
U.S. MAGISTRATE JUDGE
, 201___.
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Rule 17.1 Minors or Incompetent Parties
(a) Representation.
Representation of a minor or incompetent person in a civil action shall be in
accordance with Fed. R. Civ. P. 17(c). Appointments of guardians ad litem
by any state court shall satisfy the requirements of the Federal Rules of Civil
Procedure unless the court finds that the interests of the person so represented
are not being adequately protected.
(b) Settlement or Dismissal of Actions.
No civil action to which a minor or incompetent person is a party shall be
compromised, settled, discontinued, or dismissed without an Order of
Approval entered by the court. It shall be the responsibility of the attorney
for the minor or incompetent person to prepare a proposed Order of Approval
for submission to the court. The Order of Approval shall bear the written
consent of (1) the attorneys for all the parties to the action, (2) the legal
representative of the minor or incompetent person, and (3) in the case of a
minor, at least one of the natural parents or persons standing in loco parentis.
Unless otherwise ordered by the court, the Order of Approval shall contain
statements as to the following:
(1) statement that all parties are properly represented and are properly
before the court, that no questions exist as to misjoinder or nonjoinder
of parties, and that the court has jurisdiction over the subject matter
and the parties;
(2) if the minor or incompetent person is the plaintiff, a summary of
contentions sufficient to show that the complaint states a claim upon
which relief can be granted; if the minor or incompetent person is the
defendant, a statement of contentions sufficient to show that no
affirmative defenses could clearly be raised in bar of recovery;
(3) a summary of services rendered by the attorney for the minor or
incompetent person, along with an opinion as to the fairness and
reasonableness of any settlement at issue; and
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(4) in cases involving claims for personal injuries asserted by a minor or
incompetent person, an estimate of actual and foreseeable medical,
hospital, and related expenses and a statement by an examining
physician setting forth the nature and extent of the plaintiff’s injuries,
extent of recovery, and prognosis.
(c) Approval of Attorney’s Fees and Payment of Judgments Minors.
In its Order of Approval, the court shall approve or fix the amount of the fee
to be paid to the attorneys for the minor or incompetent person and make
appropriate provision for the payment thereof. The Order of Approval shall
also provide the manner in which judgments, if any, are to be paid and may
make specific provisions for the payment of medical, hospital, and similar
expenses when allowed by applicable law.
In compliance with Fed. R. Civ. P. 5.2, and to promote electronic access to
case files while also protecting personal privacy and other legitimate
interests, all parties to any litigation in which a minor is a party, with the
exception of the paper administrative records in Social Security cases filed
with the court, shall redact the minor child’s name from all documents filed
with the court. If the name of the minor must be included in a document,
including the caption, only the initials of the child should be used.
Rule 18.1 Reserved for Future Purposes
Rule 19.1 Reserved for Future Purposes
Rule 20.1 Reserved for Future Purposes
Rule 21.1 Reserved for Future Purposes
Rule 22.1 Reserved for Future Purposes
Rule 23.1 Reserved for Future Purposes
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Rule 24.1 Reserved for Future Purposes
Rule 25.1 Reserved for Future Purposes
Rule 26.1 Discovery
(a) Discovery Materials Not to Be Filed Unless Ordered or Needed.
Discovery materials, including but not limited to disclosures and objections
required under Fed. R. Civ. P. 26, depositions upon oral examination and
interrogatories, requests for documents, notices to take a deposition, expert
witness designations, expert witness reports, requests for admissions, and
answers and responses thereto, are not to be filed unless by order of the court
or for use in the proceedings. All such papers must be served on the other
parties entitled to service of papers filed with the clerk. The party taking a
deposition or obtaining any material through discovery is responsible for its
preservation and delivery to the court if needed or so ordered.
(1) Medical Records. When filed in accordance with subsection (a),
copies of medical records shall not be open to inspection or copying
by any persons except the parties and their attorneys. Thus, any
medical records must be accompanied by a motion to seal as provided
in Local Civil Rule 79.2.
(2) Final Pretrial Disclosures. A party shall satisfy the requirement to
file disclosures and objections thereto under Fed. R. Civ. P. 26(a)(3)
solely by including the information required by Local Civil Rule
16.1(b)(1) in the proposed final pretrial order.
(b) Conducting Discovery.
In all civil actions, the parties shall schedule and conduct discovery in
accordance with the order entered pursuant to Fed. R. Civ. P. 16. All
discovery shall be served so as to allow the respondent sufficient time to
answer prior to the time when discovery is scheduled to be completed. To
shorten discovery time, it is expected that discovery procedures will proceed
concurrently. After the time for completing discovery has expired, further
discovery may proceed only by order of the court and shall not interfere with
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the conduct of either the final pretrial conference or the trial.
(c) Numbering Discovery Procedures.
Each time a particular discovery procedure is used, it shall be sequentially
numbered (e.g., “First Set,” “Second Set,” “First Request,” “Second
Request,” etc.) so that it will be distinguishable from any prior procedures.
(d) Discovery Disputes Expedited Briefing Schedule.
Any motion relating to a discovery dispute shall be handled on an
expedited basis:
(1) Memoranda in support of or in opposition to a discovery motion shall
not exceed the length limit stated in Local Civil Rules 7.2(f)(2)(B)
and 7.2(f)(3)(B) and shall otherwise comply with Local Civil Rules
7.1(c) and 7.2.
(2) Responses and accompanying documents relating to discovery
motions shall be filed within 14 days after service of the motion in
question, unless otherwise ordered by the court.
(3) Replies are not permitted in discovery disputes. See also Local Civil
Rule 7.1(g)(2).
(4) In any instance in which oral argument is scheduled, the parties may
be given the option of oral presentation by telephone in lieu of a live
appearance.
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(e) Other Discovery Matters.
(1) Through appropriate written discovery, a party may obtain discovery
of the existence and contents of any insurance agreement under
which any person carrying on an insurance business may be liable to
satisfy part or all of a judgment that may be entered in an action or to
indemnify or reimburse any party for payments made to satisfy the
judgment. The discovery permitted shall include inspection and
copying of any such agreements pursuant to Fed. R. Civ. P. 34.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
subparagraph, an application for insurance shall not be treated as part
of an insurance agreement.
(2) In accordance with Fed. R. Civ. P. 16(b), this court will routinely
issue an order for a discovery plan and will thereafter enter a
scheduling order. The planning meeting required by Fed. R. Civ. P.
26(f) and the report contemplated by said rule are a mandatory part
of the process of formulating a scheduling order. A report in
accordance with the following form shall be sufficient to comply with
Fed. R. Civ. P. 26(f), although the parties may include greater detail
or additional topics. If the parties cannot agree on a joint report, each
party shall file a separate Rule 26(f) report setting forth its position
on disputed matters. In cases in which mediation is not mandatory
pursuant to Local Civil Rule 101.1a, the parties may include in their
report an agreement to mediate and a proposed timetable for
conducting that mediation.
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
___________ DIVISION
No. __:_____-CV-___-__
JANE T. SMITH, )
)
Plaintiff, )
) REPORT OF THE PARTIES’
v. ) PLANNING MEETING
) Fed. R. Civ. P. 26(f)
AARON R. JONES et al., )
)
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Defendants. )
)
1. The following persons participated in a Rule 26(f) conference on <Date> by <State the
method of conferring>:
<Name>, representing the <plaintiff>
<Name>, representing the <defendant>
2. Initial Disclosures. The parties [have completed] [will complete by <Date>] the initial
disclosures required by Rule 26(a)(1).
3. Discovery Plan. The parties propose this discovery plan:
<Use separate paragraphs or subparagraphs if the parties disagree.>
(a) Discovery will be needed on these subjects: <Describe>.
(b) <Dates for commencing and completing discovery, including discovery to be
commenced or completed before other discovery.>
(c) <Maximum number of interrogatories by each party to another party, along with
the dates the answers are due.>
(d) <Maximum number of requests for admission, along with the dates responses are
due.>
(e) <Maximum number of depositions by each party.>
(f) <Limits on the length of depositions, in hours.>
(g) <Dates for exchanging reports of expert witnesses.>
(h) <Dates for supplementations under Rule 26(e).>
(i) <Any issues about disclosure, discovery, or preservation of electronically stored
information, including the form or forms in which it should be produced.>
(j) <Any issues about claims of privilege or of protection as trial-preparation
materials, including—if the parties agree on a procedure to assert these claims after
production—whether to ask the court to include their agreement in an order under
Federal Rule of Evidence 502.>
4. Other Items:
(a) <A date if the parties ask to meet with the court before a scheduling order.>
(b) <Requested dates for pretrial conferences.>
(c) <Final dates for the plaintiff to amend pleadings or to join parties.>
(d) <Final dates for the defendant to amend pleadings or to join parties.>
(e) <Final dates to file dispositive motions.>
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(f) <State the prospects for settlement.>
(g) <Identify any alternative dispute resolution procedure that may enhance settlement
prospects and the timing of such procedure.>
(h) <Final dates for submitting Rule 26(a)(3) witness lists, designations of witnesses
whose testimony will be presented by deposition, and exhibit lists.>
(i) <Final dates to file objections under Rule 26(a)(3).>
(j) <Suggested trial date and estimate of trial length.>
(k) <Other matters.>
Date: <Date> <Signature of the attorney or unrepresented
party>
________________________________________
<Printed name>
<Address>
<E-mail address>
<Telephone number>
Date: <Date> <Signature of the attorney or unrepresented
party>
________________________________________
<Printed name>
<Address>
<E-mail address>
<Telephone number>
Rule 27.1 Reserved for Future Purposes
Rule 28.1 Reserved for Future Purposes
Rule 29.1 Reserved for Future Purposes
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Rule 30.1 Deposition Exhibits
Persons participating in a deposition are encouraged to mark all deposition exhibits
consecutively during discovery without reference to the deposition taken or the
person using the exhibit.
Rule 31.1 Reserved for Future Purposes
Rule 32.1 Depositions for Use at Trial
Depositions de bene esse may be taken outside of the period of discovery.
Rule 33.1 Form of Interrogatories, Responses, and Objections
All interrogatories shall be served on all parties. Parties are encouraged to provide
interrogatories in electronic form to facilitate responses.
Rule 34.1 Requests for Production
All requests under Fed. R. Civ. P. 34 shall be served on all parties. Parties are
encouraged to provide such requests in electronic form to facilitate responses.
Rule 35.1 Reserved for Future Purposes
Rule 36.1 Requests for Admission
All requests for admission shall be served on all parties. Parties are encouraged to
provide such requests in electronic form to facilitate responses.
Rule 37.1 Reserved for Future Purposes
Rule 38.1 Reserved for Future Purposes
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Rule 39.1 Preparations for Trial
(a) In General.
Seven days preceding the first day of the session during which a civil action
is set for trial, all parties shall file with the clerk:
(1) A concise memorandum of authorities on all anticipated evidentiary
questions and on all contested issues of law, and
(2) Motions relating to the admissibility of evidence; however, no party
shall be required to file a written response to a motion relating to the
admissibility of evidence that is filed after the final pretrial
conference has taken place.
(b) Exhibits.
(1) All exhibits shall be pre-marked with stickers with the sequential
numbers listed in the pretrial order. Each exhibit at trial shall include
the case number of the action on the exhibit sticker and a party
designation where there are different plaintiffs and defendants
introducing exhibits.
(2) Copies of all exhibits, properly bound, shall be provided to the court
at the beginning of the trial.
(3) The original of each exhibit shall bear a sticker. After receipt into
evidence, each original exhibit shall remain in the custody of the
courtroom deputy, except when being used by a witness or viewed
by the jury.
(4) Each copy of any exhibit shall bear the photostatic image of the
sticker or a typed or printed reproduction thereof.
(5) The parties are encouraged to provide one or more copies of exhibits
for use by the jury.
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(6) Upon presentation of an exhibit to a witness, the party shall announce
to the court the exhibit number. The exhibit shall not be handed to
the opposing party. Should the opposing party contend that a copy
has not been provided or that the exhibit has been lost or misplaced,
the opposing party shall bring the issue to the attention of the court.
(c) Related Rules.
The parties shall comply, as provided therein, with Local Civil Rules 16.1,
47.1(b), and 51.1 (or Local Civil Rule 52.1 in non-jury cases).
Rule 39.2 Late Developments in the Case
Parties shall immediately inform the court, the opposing party, and parties in the
succeeding two calendared cases of any settlement or any other developments that
may necessitate a motion for continuance.
Rule 39.3 Opening Statements
At the beginning of the trial, each party (beginning with the party having the burden
of proof on the first issue) shall, without argument and in such reasonable time as
the court allows, state to the court and the jury the following:
(a) the substance of the claim, counterclaim, crossclaim, or defense; and
(b) what the party contends the evidence will show. Parties not having the
burden of proof on the first issue may elect to make an opening statement
immediately prior to presenting evidence rather than at the beginning of the
trial.
Rule 39.4 Closing Arguments
The court will set the times for closing arguments after consultation with the parties.
Unless otherwise ordered by the court, the party with the burden of proof shall open
and close the arguments.
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Rule 40.1 Court Schedule and Conduct of Business
(a) Headquarters of the Clerk.
The headquarters of the clerk of court shall be in Raleigh.
(b) Divisions of the District.
There shall be four divisions of the court. The headquarters of each
division and the counties comprising each division are as follows:
Name of Division Headquarters Counties
Northern Division Elizabeth City Bertie Hertford
Camden Northampton
Chowan Pasquotank
Currituck Perquimans
Dare Tyrrell
Gates Washington
Eastern Division Greenville Beaufort Hyde
Carteret Jones
Craven Lenoir
Edgecombe Martin
Greene Pamlico
Halifax Pitt
Western Division Raleigh Cumberland Vance
Franklin Wake
Granville Warren
Harnett Wayne
Johnston Wilson
Nash
Southern Division Wilmington Bladen Onslow
Brunswick Pender
Columbus Robeson
Duplin Sampson
New Hanover
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(c) Assignment of Cases to a Division.
(1) Civil Actions. The clerk shall assign all civil actions to a division
when the action is filed or removed. If one or more plaintiffs are
residents of this District, the clerk shall assign the case to the division
in which the first named such plaintiff resides. If no plaintiff resides
in the District and one or more defendants reside in the District, the
clerk shall assign the action to the division in which the first named
such defendant resides. In the event no party resides in the District
but the claim is alleged to have arisen in the District or to involve real
property in the District, the clerk shall assign the action to the
division in which such claim is alleged to have arisen or in which the
real property is situated. In all other instances, a case shall be
assigned to a division in the discretion of the clerk. In removed
actions, the matter will be assigned to the division that geographically
encompasses the state court from which the action was removed.
(2) Residence of Corporation. For the purposes of this local rule, a
corporate plaintiff shall be deemed to reside in the state in which it
was incorporated and in the district and division in which it has its
principal office, and a corporate defendant shall be deemed to reside
in the division in which the corporation is alleged (a) to be
incorporated and have its principal office, or (b) to be licensed to do
business, or (c) to be doing business.
(3) United States as Plaintiff. For the purposes of this local rule, in
cases where the United States or its agencies or officers acting in an
official capacity is the plaintiff, it shall be deemed that such plaintiff
does not reside in this district.
(d) Scheduling Trials.
Each judicial officer shall maintain an individual trial calendar with due
regard for the priorities and requirements of law. Selected cases may be
expedited by the judicial officer on his or her own motion or on the motion
of any party.
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Rule 40.2 Electronic Designation of Judges
An electronically generated designation of a district judge or magistrate judge does
not mean that the judge so designated is assigned to the case.
Rule 40.3 Related Cases
(a) Definition of Related Cases.
Cases may be related when:
(1) the cases concern substantially the same parties, transactions, or
events;
(2) the cases call for a determination of the same or substantially
related or similar questions of law and fact; or
(3) it appears likely that there will be an unduly burdensome
duplication of labor and expense or conflicting results if the cases
are conducted before different judges.
(b) Notice.
Whenever a party knows or learns that a case filed in or removed to this
district is (or the party believes that the case may be) related to a case that is
or was pending in this district as defined in subsection (a) of this rule, the
party must promptly file in the earliest-filed open case a notice identifying
all cases pending in this district that are related to the case. The notice must
contain (1) the title and case number of each case and (2) a brief statement
of the relationship of cases according to the criteria set forth in subsection
(a) of this rule.
(c) Filing of Notice Does Not Constitute a General Appearance.
A notice filed pursuant to this rule shall not constitute a general appearance
in the action.
Rule 41.1 Reserved for Future Purposes
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Rule 42.1 Reserved for Future Purposes
Rule 43.1 Reserved for Future Purposes
Rule 44.1 Reserved for Future Purposes
Rule 45.1 Witnesses
A party may not release a person from a subpoena without the consent of the other
parties or notice to the other parties and leave of court. A party objecting to the
release of a person shall bear all costs, incident to such person, that arise subsequent
to the request for release. The court may, in its discretion and in the interest of
justice, permit a party to call and examine a witness not listed in the final pretrial
order.
Rule 46.1 Reserved for Future Purposes
Rule 47.1 Jurors
(a) Jury Lists.
When the jury for a session of the court is drawn, the clerk shall furnish a
copy of the list of prospective jurors to the attorneys for the parties and to
any unrepresented party on a relevant trial roster, upon their request, unless
otherwise directed by the court. The clerk shall notify the presiding judge
and the opposing party of any such request by an unrepresented party prior
to providing the requested list. The list shall set out the name and county of
residence of each prospective juror. The jurors and their families shall not
be contacted, either directly or indirectly, in an effort to secure information
concerning the background of any member of the jury panel. When the
jurors are seated in the jury box, a chart or list showing the name and seating
assignment of each juror shall be furnished to the parties by the clerk.
(b) Examination of Jurors.
The court shall conduct the examination of prospective jurors. Seven days
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preceding the first day of the session during which a civil action is set for
trial, each party shall file a list of any voir dire questions the party desires
the court to ask the jury other than routine questions such as (1) the
occupations and addresses of jurors and their spouses; (2) the identity and
relation of jurors, the parties, attorneys, and witnesses; and (3) the knowledge
of the jurors concerning the case.
(c) Contact with Trial Jurors.
Following the discharge of a jury from further consideration of a case, no
attorney or party shall individually or through an investigator or any person
acting for such attorney or party ask questions of or make comments to a
member of that jury or members of the family of such a juror that are
calculated merely to harass or embarrass such a juror or member of such
juror’s family or to influence the actions of such a juror or a member of such
juror’s family in future jury service.
Rule 48.1 Taking Verdicts and Polling the Jury
The court may take the verdict of the jury in open court in the absence of any party
or attorney. Unless the contrary affirmatively appears on the record, it will be
presumed that the parties were present or by their voluntary absence waived their
presence. The jury will not be polled unless a party requests a poll at the time the
verdict is taken or a poll is ordered by the court.
Rule 49.1 Reserved for Future Purposes
Rule 50.1 Reserved for Future Purposes
Rule 51.1 Requests for Jury Instructions
Seven business days preceding the first day of the session during which a civil action
is set for trial, each party shall file requests for jury instructions. Requests using
Federal Jury Practice and Instructions (6th Ed.) by O’Malley, Grenig, and Lee,
Fifth Circuit Pattern Jury Instructions, and North Carolina Pattern Jury
Instructions shall include both the text of the proposed instruction and a citation
reference to the proposed instruction. All other requests shall include citations to
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supporting authorities.
Rule 52.1 Proposed Findings of Fact and Conclusions of Law
In non-jury cases, each party shall file proposed findings of fact and conclusions of
law 5 business days preceding the session during which a civil action is set for trial.
Rule 53.1 Reserved for Future Purposes
Rule 54.1 Application for Costs
(a) Filing Bill of Costs.
(1) A prevailing party may request that the clerk tax allowable costs,
other than attorney’s fees, in a civil action as part of a judgment or
decree by filing a bill of costs on AO Form 133(available on the
court’s internet website) within 30 days after:
(A) the expiration of time allowed for appeal of a final judgment or
decree; or
(B) receipt by the clerk of the mandate or other order terminating the
action on appeal.
(2) The original bill of costs shall be filed with the clerk, with copies
served on adverse parties.
(3) The failure of a prevailing party to timely file a bill of costs shall
constitute a waiver of any claim for costs.
(4) Guidelines for filing applications for costs may be found on the
court’s website.
(b) Objections to Bill of Costs.
(1) If an opposing party objects to the bill of costs or any item claimed
by a prevailing party, that party must file a response in opposition
within 14 days after the filing of the bill of costs. Within 7 days
thereafter, the prevailing party may file a reply. Unless a hearing is
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ordered by the clerk, a ruling will be made by the clerk on the record.
(c) Objections to the Ruling of the Clerk
A party may request review of the clerk’s ruling by filing a motion within
7days after the action of the clerk. The court’s review of the clerk’s action
will be made on the existing record unless otherwise ordered.
(d) Taxable Costs.
(1) Items normally taxed include, without limitation:
(a) those items specifically listed on the bill of costs form. The
costs incident to the taking of depositions (when allowable as
necessarily obtained for use in the litigation) normally
include only the reporter’s fee and charge for one transcript
of the deposition;
(b) premiums on required bonds;
(c) actual mileage, subsistence, and attendance allowances for
necessary witnesses at actual costs, not to exceed the
applicable statutory rates, whether the witnesses reside in or
out of the district;
(d) one copy of the trial transcript for each unrepresented person
and one copy for each party represented by a separate
attorney.
(2) Items normally not taxed include, without limitation:
(a) witness fees, subsistence, and mileage for individual parties,
real parties in interest, parties suing in representative
capacities, and the officers and directors of corporate parties;
(b) multiple copies of depositions;
(c) daily copies of trial transcripts, unless prior court approval
has been obtained.
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(e) Costs in Settlements.
The court will not tax costs in any action terminated by compromise or
settlement. Settlement agreements must resolve any issue relating to costs.
In the absence of specific agreement, each party will bear its own costs.
(f) Payment of Costs.
Costs are to be paid directly to the party entitled to reimbursement.
Rule 54.2 Taxation of Juror Costs
(a) Settlement before Trial.
If notice of settlement or other disposition of a civil action scheduled for jury
trial is not given to the court within one full business day prior to the
scheduled trial date, then, except for good cause shown, juror costs for one
day may be assessed against the parties, their attorneys, or both the parties
and their attorneys, as directed by the court after giving an opportunity to be
heard. Juror costs include attendance fees, per diem, mileage, and parking.
No juror costs will be assessed if circumstances make an award of expenses
unjust.
(b) Settlement before Verdict.
Except upon a showing of good cause and after providing an opportunity to
be heard, the court may assess the juror costs against the parties, their
attorneys, or both the parties and their attorneys, when a civil action
proceeding as a jury trial is settled at trial in advance of the verdict unless
circumstances make an award of expenses unjust.
Rule 55.1 Entry of Default and Default Judgment
(a) Entry of Default by Clerk.
To obtain an entry of default pursuant to Fed. R. Civ. P. 55(a), a party must
file a motion for entry of default and a proposed order. The movant shall
serve, in the manner provided in Fed. R. Civ. P. 5, any party who has failed
to appear and all other parties with the motion for entry of default and
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proposed order. Such service shall also be made on any attorney the movant
knows, or reasonably should know, represents the party against which
default is sought. The motion shall be supported by an affidavit that
describes with specificity how each allegedly defaulting party was served
with process in a manner authorized by Fed. R. Civ. P. 4 and provides the
date of such service. Following the 21-day response time provided under
Local Civil Rule 7.1(f)(1), the motion shall be submitted to the presiding
judge if it is opposed or if the allegedly defaulting party has filed a responsive
pleading. Otherwise, the motion shall be referred to the clerk and if the clerk
is satisfied that the movant has effected service of process, the clerk shall
enter a default.
(b) Default Judgment.
(1) General Requirements. Any motion for default judgment shall be
served on every party who has appeared in the action and be supported
by an affidavit stating that each party against which judgment is
sought is not an infant, an incompetent person, or in the military
service of the United States as defined in the Servicemembers Civil
Relief Act of 2003, as amended.
(2) By the Clerk. A motion seeking default judgment pursuant to Fed.
R. Civ. P. 55(b)(1) shall be accompanied by a proposed order and the
supporting affidavit. If a party files a motion for default judgment
prior to entry of default, the movant must also serve the party against
which default is sought pursuant to subsection (a) of this rule. The
supporting affidavit shall show:
(A) the facts that establish a failure to answer or otherwise defend
by the party against which judgment is sought;
(B) the principal amount due, giving credit for any payments and
showing the amounts and dates of payment;
(C) the information enabling the principal amount due to be
calculated as a sum certain, if it is not already a sum certain;
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(D) the information needed for the computation of the interest to
the date of judgment;
(E) the proposed post-judgment interest rate and the reasons for
using it if the movant claims that a post-judgment interest rate
other than that provided by 28 U.S.C. § 1961 applies; and
(F) the amount of any costs claimed.
Additionally, if the claim is based on a contract, the movant shall cite
the relevant contract provisions in the motion for default judgment or
supporting memorandum, if any, and file a copy of the contract as an
attachment to the motion for default judgment. The clerk may submit
any motion for default judgment to the presiding judge for review.
(3) By the Court. A motion seeking default judgment pursuant to Fed.
R. Civ. P. 55(b)(2) shall include the docket entry number of the
clerk’s entry of default.
Rule 56.1 Motions for Summary Judgment
(a) Statement of Material Facts on Motion for Summary Judgment.
(1) Movant’s Statement. Any motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56 shall be supported by a separate
statement, in numbered paragraphs, of the material facts as to which
the movant contends there is no genuine dispute.
(2) Opposing Statement. The memorandum opposing a motion for
summary judgment shall be supported by a separate statement that
includes a response to each numbered paragraph in the movant’s
statement in correspondingly numbered paragraphs and, if necessary,
additional paragraphs containing a statement of additional material
facts as to which the opposing party contends there is a genuine
dispute. Each numbered paragraph in the movant’s statement of
material facts will be deemed admitted for purposes of the motion
unless it is specifically controverted by a correspondingly numbered
paragraph in the opposing statement.
(3) Reply Statement. When a party opposing summary
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judgment submits a statement of additional material facts as to which
it contends there is a genuine dispute, the movant may submit a reply
statement of additional facts limited to the additional facts referenced
in the statement submitted by the party opposing summary judgment.
(4) Citations. Each statement by the movant or opponent pursuant to
this Local Civil Rule must be followed by citation to evidence that
would be admissible, as required by Federal Rule of Civil Procedure
56(c). Citations shall identify with specificity the relevant page and
paragraph or line number of the evidence cited.
(5) Appendix. All evidence cited in moving or opposing statements,
such as affidavits, relevant deposition testimony, responses to
discovery requests, or other documents, shall be filed as an appendix
to the statement of facts prescribed by subsections (a)(1) or (2) of this
rule and denominated “Plaintiff’s/Defendant’s Appendix to Local
Civil Rule 56.1 Statement of Material Facts.”
(b) Exceptional Cases.
Where a party believes that compliance with this Local Civil Rule will be
exceptionally burdensome or is otherwise inappropriate, the party may
include a request for modification of or exemption from its requirements as
part of the Rule 26(f) report to the court or by separate motion.
(c) Cross-referencing.
Memoranda in support of or in opposition to a motion for summary judgment
as required by Local Civil Rule 7.1 or 7.2 may cross-reference or cite to the
statement and appendix prescribed by this Local Civil Rule without repeating
the contents thereof.
Rule 57.1 Reserved for Future Purposes
Rule 58.1 Reserved for Future Purposes
Rule 59.1 Reserved for Future Purposes
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Rule 60.1 Reserved for Future Purposes
Rule 61.1 Reserved for Future Purposes
Rule 62.1 Reserved for Future Purposes
Rule 63.1 Reserved for Future Purposes
Rule 64.1 Seizure of Person or Property
All acts and duties pertaining to the seizure of person or property that are authorized
by North Carolina law to be done by a judge or the clerk of the state court may be
done in like cases by a judge of this court or the clerk of this court, respectively.
Rule 65.1 Sureties
(a) Approval of Security.
The clerk or deputy clerk is authorized to approve all recognizances,
stipulations, bonds, guaranties, or undertakings in the penal sum prescribed
by statute or order of the court, whether the security be property or personal
or corporate surety.
(b) Security.
Except as otherwise provided by law, every recognizance, stipulation, bond,
guaranty, or undertaking shall be with security that consists of either (1) cash
or negotiable government bonds or (2) one or more sureties, as provided by
law or the applicable Federal Rule of Civil Procedure. A judge may enter
pertinent orders restricting any bonding company or surety company from
being accepted as surety upon any bond in any case or matter in this district.
(c) Use of Real Property as Security.
Whenever a surety seeks to justify assets by demonstrating ownership of real
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property, a judge or magistrate judge shall determine by satisfactory
evidence that the property is of sufficient unencumbered value to protect the
interests of the adverse party.
(d) Prohibited Sureties.
Members of the bar, administrative officers and employees of this court, and
the marshal and deputies and assistants thereto shall not act as surety in any
matter pending in this court.
Rule 66.1 Reserved for Future Purposes
[Rule 67.1] [Deposit of Registry Funds in Interest Bearing Accounts]
(Abrogated eff. March 16, 2017)
See 17-SO-1.
Rule 68.1 Reserved for Future Purposes
Rule 69.1 Reserved for Future Purposes
Rule 70.1 Reserved for Future Purposes
Rule 71.1 Reserved for Future Purposes
Rule 72.1 Magistrate Judges: Standards of Performance
In performing duties for the court, a magistrate judge shall conform to all applicable
provisions of federal statutes and rules, to the Local Civil Rules and procedures of
this court, and to the requirements specified in any order of reference from a judge.
Rule 72.2 Magistrate Judges: Assignments of Matters
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(a) General.
Upon filing, all civil cases shall be assigned by the clerk to a magistrate judge
for the conduct of such discovery and pretrial conferences as are necessary
and for the hearing and determination of all pretrial procedural and discovery
motions, in accordance with Local Civil Rule 72.3(b). Where designated by
a judge, the magistrate judge may conduct additional pretrial conferences,
hear motions, and perform the duties set forth in Local Civil Rules 72.3(c),
72.3(d), 72.3(e), and 72.3(f).
(b) Consent to Civil Trial Jurisdiction of Magistrate Judges.
(1) Where the parties consent to trial and disposition of a civil case by a
magistrate judge, such case shall, with the approval of the assigned
judge, be reassigned to a specially designated magistrate judge for
the conduct of further proceedings and the entry of judgment
pursuant to 28 U.S.C. § 636(c). Except as provided in subsection (2)
of this rule, the magistrate judges of this court are specially
designated to exercise consent jurisdiction under 28 U.S.C. § 636 (c).
(2) A part-time magistrate judge not serving as a full-time judicial officer
may exercise jurisdiction under 28 U.S.C. § 636(c) only if the parties
consent to trial and disposition of the case by such magistrate judge,
pursuant to the parties’ specific written request; the magistrate judge
meets the bar membership requirements set forth in 28 U.S.C. §
631(b)(1); the chief district judge certifies that a full-time magistrate
judge is not reasonably available in accordance with guidelines
established by the Judicial Council of the Fourth Circuit; and the
judge assigned to the case approves of its reassignment to the
magistrate judge.
(c) Reserving and Changing Assignments.
Nothing in these local rules shall preclude a judge from reserving any
proceeding for conduct by a judge, rather than a magistrate judge. The judge,
moreover, may by order modify the method of assigning proceedings to a
magistrate judge as circumstances may warrant.
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Rule 72.3 Authority of Magistrate Judge
(a) Duties Under 28 U.S.C. § 636(a).
A magistrate judge is authorized to perform the duties prescribed by 28
U.S.C. § 636(a).
(b) Determination of Non-Dispositive Pretrial Matters – 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 case, other than the motions
specified in subsection (c)(1) of this rule.
(c) Recommendations Regarding Case-Dispositive Motions – 28 U.S.C.
§ 636(b)(1)(B).
(1) A magistrate judge may submit to a district judge a report containing
proposed findings of fact and recommendations for disposition by
the district judge of the following pretrial motions:
a. Motions for injunctive relief, including temporary restraining
orders and preliminary and permanent injunctions;
b. Motions for judgment on the pleadings;
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.
(2) A magistrate judge may determine any preliminary matters and
conduct any necessary evidentiary hearing or other proceeding
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arising in the exercise of the authority conferred by this rule.
(d) 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 28 U.S.C. § 2254 and § 2255. 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 shall be made only by a district judge.
(e) Prisoner Civil Rights Actions.
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 the disposition of petitions filed by prisoners
challenging the conditions of their confinement.
(f) Special Master References.
A magistrate judge may be designated by a district judge to serve as special
master in appropriate civil cases in accordance with 28 U.S.C. § 636(b)(2)
and Fed. R. Civ. P. 53. Upon the consent of the parties, a magistrate judge
may be designated by a district judge to serve as special master in any civil
case, notwithstanding the limitations of Fed. R. Civ. P. 53(b).
(g) Conduct of Trial and Disposition of Civil Cases upon Consent of the
Parties – 28 U.S.C. § 636(c).
Subject to the provisions of Local Civil Rule 72.2(c), a specially designated
magistrate judge may conduct any or all proceedings in any civil case that
is filed in this court and assigned to the magistrate judge, including the
conduct of a jury or non-jury 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, the magistrate judge may hear and determine
any and all pretrial and post-trial motions, including case-dispositive
motions.
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(h) Other Duties.
A magistrate judge is also authorized to:
(1) exercise general supervision of calendars, conduct calendar and
status calls, and determine motions to expedite or postpone the trial
of cases;
(2) conduct discovery conferences, pretrial conferences, settlement
conferences, omnibus hearings, and related pretrial proceedings;
(3) conduct voir dire and select petit juries for the court;
(4) accept petit jury verdicts in civil cases in the absence of a judge;
(5) 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;
(6) order the exoneration or forfeiture of bonds;
(7) conduct proceedings for the collection of civil penalties of not more
than $200.00 assessed under the Federal Boat Safety Act of 1971, in
accordance with 46 U.S.C. §§ 4311(e) and 12309(c);
(8) perform the duties specified by the Federal Debt Collection
Procedures Act of 1990, 28 U.S.C. § 3001 et seq.;
(9) exercise contempt authority in accordance with 28 U.S.C. § 636(e);
and
(10) perform any additional duty consistent with the Constitution and laws
of the United States.
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Rule 72.4 Review and Appeal
(a) Appeal of Non-Dispositive Matters – 28 U.S.C. § 636(b)(1)(A).
(1) Any aggrieved party or nonparty may appeal from a magistrate
judge’s order determining a motion or matter under Local Civil Rule
72.3(b) within 14 days after service of the magistrate judge’s order,
unless a different time is prescribed by the magistrate judge or a
judge. The appealing person shall file with the clerk, and serve on
the magistrate judge and all parties, a written statement of appeal that
shall specifically designate the order, or part thereof, appealed from
and the basis for any objection thereto. Any opposing party or
nonparty may respond to another person’s statement of appeal within
14 days after being served with a copy thereof, unless otherwise
ordered by the court.
(2) The statement of appeal must comply with the length limits in Local
Civil Rules 7.2(f)(2)(B) and 7.2(f)(3)(B). Any response to a
statement of appeal must comply with the same length limits.
(3) Replies are not permitted without leave of court.
(4) A 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 judge may also reconsider sua sponte any matters
determined by a magistrate judge under this local rule.
(b) Review of Case-Dispositive Motions and Prisoner Litigation – 28
U.S.C. § 636(b)(1)(B).
(1) Any party may object to a magistrate judge’s proposed findings,
recommendations, or report under 28 U.S.C. § 636(b)(1)(B) within
14 days after being served with a copy thereof. Such party shall file
with the clerk, and serve all parties, written objections that shall
specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis
for such objection. Any party may respond to another party’s
objections within 14 days after being served with a copy thereof,
unless otherwise ordered by the court.
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(2) Objections must comply with the length limits in Local Civil Rules
7.2(f)(2)(B) and 7.2(f)(3)(B). Any response to objections must
comply with the same length limits.
(3) Replies to responses are not permitted without leave of court.
(4) A 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 judge, however, needs to conduct a new hearing only in his or
her discretion or where required by law and may consider the record
developed before the magistrate judge, making his or her own
determination on the basis of that record. The 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 Fed. R. Civ. P. 53(e).
(d) Appeal from Judgments in Civil Cases Disposed of on Consent of the
Parties – 28 U.S.C. § 636(c).
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), an
aggrieved party may 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.
(e) Appeals from Other Orders of a Magistrate Judge.
Appeals from any other decisions and orders of a magistrate judge not
provided for in this rule should be taken as provided by governing statute,
rule, or decisional law.
[Rule 73.1] [Consent of Parties to Civil Trial Jurisdiction of Magistrate Judges]
(Vacated eff. December 1, 2015)
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Rule 74.1 Reserved for Future Purposes
Rule 75.1 Reserved for Future Purposes
Rule 76.1 Reserved for Future Purposes
Rule 77.1 Court in Continuous Session
This court shall be in continuous session in all divisions of the district on all business
days throughout the year. All matters not reached at the regular sessions of court
are deemed to be in an open status and subject to being called for disposition before
the next regular session of court upon reasonable notice to the interested parties.
Rule 77.2 Orders and Judgments
The clerk or deputy clerk is authorized to enter the orders and judgments listed below
without further direction of the court. However, such action may be suspended,
altered, or rescinded by the court for cause shown.
(a) Consent orders for substitution of attorneys.
(b) Orders enlarging time periods in civil actions authorized to be entered by the
court by Fed. R. Civ. P. 6(b).
(c) Orders extending for a reasonable amount of time the period within which
an act must be performed under the local rules of this court.
(d) Consent order dismissing an action, except in bankruptcy proceedings and
in cases to which Fed. R. Civ. P. 23(c) and Fed. R. Civ. P. 66 apply.
(e) Orders canceling liability on bonds.
(f) Orders changing the time of opening and adjourning court in the absence of
the judge.
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(g) Entries of default and judgments by default as provided for in Fed. R. Civ.
P. 55(a) and 55(b)(1).
(h) Orders authorizing service of process by a person other than a United States
Marshal pursuant to Fed. R. Civ. P. 4(c).
(i) Certification of law students and supervising attorneys pursuant to Local
Civil Rule 83.2
.
(j) Any other motion, rule, or order that may be granted of course or without
notice.
(k) Pursuant to the provisions of 28 U.S.C. § 956, when there is need to serve a
complaint and attachment upon a vessel or any other process incident to
admiralty and maritime claims, either in rem or in personam, the clerk or a
deputy clerk is empowered to grant and enter an order authorizing any sheriff
or any deputy sheriff or other suitable person to serve all such process.
Rule 78.1 Reserved for Future Purposes
Rule 79.1 Exhibits
The clerk shall be the custodian of all exhibits admitted into evidence. Upon 14
days’ notice to all parties, the clerk may, within 30 days after the entry of final
judgment, destroy or otherwise dispose of the exhibits.
Rule 79.2 Sealed Documents
(a) Filing Sealed Documents.
No cases or documents may be sealed without an order from the court. A
person desiring to file a document under seal must first file a motion seeking
leave in accordance with Section V.G of the CM/ECF Policy Manual. All
sealed and proposed documents shall be maintained electronically in
CM/ECF unless otherwise ordered by the court. First-time filers are strongly
encouraged to call the CM/ECF Help Desk at 866-855-8894.
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(b) Proposed Sealed Documents.
(1) Unless otherwise permitted by Section V.G of the CM/ECF Policy
Manual or order of the court, all proposed sealed documents must be
accompanied by a motion to seal. The motion to seal shall be a public
document and noted with a docket entry that gives the public notice
of the request to seal. The docket entry for the proposed sealed
document shall identify it as a “proposed” sealed document and
describe the type of document it is (e.g., affidavit, record) and the
substantive motion or other specific proceedings in the case to which
it relates (e.g., in support of defendant’s motion to compel at D.E.
____). The proposed sealed document is deemed to be provisionally
sealed until the court rules on the motion to seal.
(2) If the motion to seal is granted, the clerk will remove the word
“proposed” from the docket entry.
(3) If the motion to seal is denied, the document will remain sealed and
the word “proposed” will remain in the docket entry for the document
in order to preserve the record. The document will not be considered
by the court, except as provided herein or as otherwise ordered by the
court. A person desiring to remove a proposed sealed document or
docket entry therefor from the docket sheet must file a motion to
strike in accordance with Local Civil Rule 7.1. A person whose
motion to seal is denied but that desires the court to consider a
proposed sealed document as a publicly filed document shall file the
document as a public document within 3 days after entry of the order
denying the motion to seal or within such other period as the court
directs.
(c) Return of Sealed Documents.
(1) For those sealed documents not scanned into CM/ECF, upon 14 days’
notice to all parties, the clerk may destroy or dispose of the sealed
documents, unless the person who filed them retrieves them from the
clerk. This notice may occur no earlier than 30 days after final
disposition.
(2) If, during the 14-day period after the clerk has given notice of intent
to dispose of the sealed documents, any person files an objection to
such disposition, the presiding judge in the case shall resolve the
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dispute over the proposed disposition.
(d) Procedures for Manual Filers.
For those persons who are required to manually file all court documents (i.e.,
unrepresented persons), proposed sealed documents shall be delivered to the
clerk’s office in paper form in a sealed envelope. The proposed sealed
documents must be accompanied by a motion to seal in accordance with
Section V.G of the CM/ECF Policy Manual. Both the documents and the
envelope shall be prominently labeled “UNDER SEAL.” The envelope must
also have written on it the case caption; the case number; the title of the
document or, if the title contains proposed sealed information, the title
omitting the proposed sealed information; and the following notice, in all
capital letters and prominently displayed:
PROPOSED SEALED DOCUMENTS: SUBMITTED PURSUANT TO
MOTION TO SEAL.
Rule 80.1 Reserved for Future Purposes
Rule 81.1 Civil Rights Actions by Prisoners
All complaints on behalf of state prisoners or pretrial detainees seeking relief under
42 U.S.C. § 1983 and federal prisoners challenging conditions of confinement shall
be filed with the clerk in compliance with the instructions of the clerk and on the
appropriate form available without charge.
Rule 81.2 Habeas Corpus Actions
All petitions on behalf of prisoners seeking relief under 28 U.S.C. § 2241, 28 U.S.C.
§ 2254, or 28 U.S.C. § 2255 shall be filed with the clerk in compliance with the
instructions of the clerk and on the appropriate form available without charge. Such
proceedings shall be governed by the rules promulgated by the United States
Supreme Court. A respondent is not required to answer or otherwise respond to a
petition under §§ 2241, 2254, or 2255 or any other post-conviction motion for relief
in a criminal case, unless and until directed by the court. Local Civil Rules 7.1 and
7.2 shall govern motion practice in a proceeding seeking relief under §§ 2241, 2254,
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2255, or other similar post-conviction motion for relief. Where a respondent files
an answer or other pleading in response to a petition under §§ 2241, 2254, 2255, or
other similar post-conviction motion for relief, a petitioner may file a reply to the
same within 21 days after service of the answer or other pleading unless otherwise
ordered by the court.
Rule 81.3 Naturalization
Petitions for naturalization will be considered and acted upon, and appropriate
ceremonies conducted in connection therewith, on Friday of the first week of any
regular session of court at which naturalization hearings are set, beginning at 11:00
A.M., unless otherwise ordered by the court. The court may at other times, in its
discretion, for good cause shown and upon reasonable prior notice by the applicant
to the United States Citizenship and Immigration Services, consider and act upon
petitions for naturalization by members of the armed services, seamen on merchant
vessels registered under the laws of the United States, and members of the immediate
families and dependents of such personnel, and other exceptional cases.
Rule 82.3 Reserved for Future Purposes
Rule 83.1 Attorneys
(a) Roll of Attorneys.
The bar of this court consists of those previously admitted and those hereafter
admitted as prescribed by this Local Civil Rule 83.1.
(b) Eligibility.
A member in good standing of the bar of the Supreme Court of North
Carolina is eligible for admission to the bar of this court.
(c) Procedure for Admission.
Before being presented to the court to take the required oath, an applicant for
admission shall certify in a written application that such applicant:
(1) Is a member in good standing of the bar of the Supreme Court of
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North Carolina; and
(2) Has studied the Federal Rules of Civil and Criminal Procedure, the
Federal Rules of Evidence, and the local rules of this court.
In addition to these certifications, the written application shall contain the
certification of two attorneys who are members in good standing of the bar
of this court that the applicant is of good moral character and professional
reputation and meets the requirements for admission. An applicant may be
admitted to practice in this court by a district judge, bankruptcy judge, or
magistrate judge of this court or of the United States District Court for the
Middle District or Western District of North Carolina upon oral motion by a
member of the bar of this court. If the motion for admission is granted, the
applicant shall take the following oath or affirmation:
I do solemnly swear [affirm] that, to the best of my
knowledge and ability, I will support and defend the
Constitution of the United States against all enemies,
foreign and domestic, and that I will bear true faith
and allegiance to the same; that I take this obligation
freely, without any mental reservation or purpose of
evasion; and that I will conduct myself as an attorney
of this court, uprightly and according to law. So help
me God. [This is my solemn affirmation.]
Following the administration of the oath or affirmation, the application shall
be signed by the district judge, bankruptcy judge, or magistrate judge and the
applicant shall file with the clerk the application, accompanied by the filing
fee required by the Administrative Office of the United States Courts and
this court for admission to practice in this district. The clerk shall then issue
the applicant a certificate of admission to the bar of this court.
(3) Current law clerks to district judges, bankruptcy judges, and
magistrate judges within this District shall be admitted to the bar of
this court without payment of an admission fee.
(d) Representation by Local Attorneys Who Must Sign All Pleadings.
Persons appearing in civil actions in this court, except governmental
agencies and unrepresented parties, must be represented by at least one
member of the bar of this court who shall sign all documents filed in this
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court, including his or her state bar number and fax number in the signature
block on all pleadings. If an attorney appears solely to bring a person in
compliance with this local rule, he or she shall in each instance designate
himself or herself “Local Civil Rule 83.1(d) Attorney.” In signing the
pleading, motion, discovery request, or other document, the attorney certifies
that he or she is an authorized representative for communication with the
court about the litigation and that the document conforms to the practice and
procedure of this court. However, the attorney does not make the
certification required by Rule 11 of the Federal Rules of Civil Procedure.
Nevertheless, the requirements of Rule 11 must be complied with by any out-
of-state attorney. For failure to comply with the requirements of this rule,
the court may on motion or its own initiative disqualify individuals from
serving as local attorneys. Signatures in the following form shall be
sufficient to comply with this local rule. Local Civil Rule 83.1(d) Local
Attorneys must include the state bar number and fax number in the signature
block on all pleadings:
Jane M. Jones
Jones, Jones and Jones
P.O. Box 500
New York, NY 10050
(212) 555-1212
[email protected]
State Bar No.
Attorney for Defendant
John B. Attorney
Abbott, Ball and Attorney
P.O. Box 50
Raleigh, NC 27602
[email protected]
(919) 878-8787
Fax (919) 878-8000
State Bar No.
Local Civil Rule 83.1(d) Attorney for Defendant
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(e) Appearances by Attorneys Not Admitted in the District – Special
Appearance.
(1) Attorneys who are members in good standing of the bar of a United
States Court and the bar of the highest court of any state or the
District of Columbia may practice in this court for a particular case
in association with a member of the bar of this court. By filing a
Notice of Special Appearance (available on the district’s website),
completing an Electronic Filing Attorney Registration Form, and
complying with Section IV.D of the Policy Manual, an attorney
agrees that:
a. the special appearance attorney will be responsible for
ensuring the presence of an attorney who is familiar with the
case and has authority to control the litigation at all
conferences, hearings, trials, and other proceedings;
b. the attorney submits to the disciplinary jurisdiction of the
court for any misconduct in connection with the litigation in
which the attorney is specially appearing;
c. for purposes of Fed. R. Civ. P. 11, the Federal Rules of Civil
Procedure, and the Local Civil Rules of this court, the special
appearance attorney’s electronic signature shall carry the
same force and effect as an original signature; and
d. the special appearance attorney shall submit any document to
Local Civil Rule 83.1(d) counsel for review prior to filing the
document with this court.
(2) An attorney who is not a member of the bar of this court will not
receive electronic notification until the attorney becomes a registered
CM/ECF filer with this court and files a Notice of Special
Appearance.
(3) A member of the bar of this court who accepts employment in
association with a special appearance attorney is responsible to this
court for the conduct of the litigation of the proceeding, must be a
CM/ECF registrant, and shall review for submission by the special
appearance attorney all pleadings and papers electronically filed.
The responsibility of the member of the bar who accepts employment
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in association with a special appearance attorney and designates him
or herself as Local Civil Rule 83.1(d) local counsel shall be governed
by Local Civil Rule 83.1(d).
(4) Any document filed by a special appearance attorney that does not
comport with associated Local Civil Rule 83.1(d) attorney’s
standards may be objected to. Any such objection must be filed
within 7 days of the issuance of the NEF for the document.
(5) A special appearance is not a substitute for admission to the bar of
this court; it is intended only to facilitate occasional appearances.
Unless otherwise ordered for good cause shown, no attorney may be
admitted pursuant to Local Civil Rule 83.1 in more than three
unrelated cases in any twelve-month period, nor may any attorney be
admitted pursuant to Local Civil Rule 83.1 in more than three active
unrelated cases at any one time.
(f) Pleadings Service and Attendance by Local Counsel in Cases Where
Out-of-State Attorneys Appear by Special Appearance.
Pleadings and other documents filed in a case where an attorney appears who
is not admitted to the bar of this court shall contain the individual name, firm
name, address, and phone number of both the attorney making a special
appearance under this local rule and the associated local counsel. As part of
making an appearance in every case, an attorney also shall file
contemporaneously a client disclosure statement in accordance with Fed. R.
Civ. P. 7.1 and Local Civil Rule 7.3. The service of all pleadings and notices
as required shall be sufficient if served only upon the associated local
counsel. Local counsel shall attend all court proceedings unless excused by
the court.
(g) Courtroom Decorum.
Attorneys shall conduct themselves with dignity and propriety. Attorneys
shall rise when addressing the court, and all statements to the court shall be
made from a counsel table or from behind the lectern facing the court.
Attorneys shall not approach the bench unless requested to do so by the court
or unless permission is granted upon the request of the attorney.
(h) Questioning of Witnesses.
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Only one attorney for each party may question a particular witness unless the
court allows otherwise. Attorneys shall remain seated while questioning
witnesses.
(i) Professional Standards.
The ethical standard governing the practice of law in this court is the Revised
Rules of Professional Conduct, now in force and as hereafter modified by
the Supreme Court of North Carolina, except as may be otherwise provided
by specific rule of this court. Attorneys are directed to advise the clerk within
14 days of disciplinary action, taken against them, resulting in suspension or
disbarment. The disciplinary procedures of this court shall be on file with
the clerk and furnished to the attorney upon request.
(j) Admission of Attorneys Previously Admitted to the United States
District Courts for the Middle or Western Districts of North Carolina.
Attorneys already admitted to the bar of either the United States District
Court for the Middle District of North Carolina or the United States District
Court for the Western District of North Carolina may be admitted to the bar
of this court upon tendering the application and fees required by subsection
(c) of this rule, together with a copy of the order admitting the attorney to
practice in one of the other districts, without the necessity of taking the oath
that is otherwise required and without obtaining the character certification
by two members of the bar of this court.
(k) Electronic Devices in Courtroom Facilities.
(1) Attorneys are subject to the Standing Order on Prohibition of
Wireless Communication Devices in Courtroom Facilities dated
August 15, 2005, 05-PLR-7. To be exempted from the Order,
attorneys will be required to present a bar card to the court security
officer to retain a cellular phone, smartphone, laptop, tablet, or other
electronic device. If an attorney fails to present a bar card, the
attorney will be prohibited from bringing any such item into the
courthouse.
(2) By bringing an electronic device into the courthouse, an attorney
agrees to the following:
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(A) The electronic device will not be used to record, broadcast, or
transmit any video images or audio sounds.
(B) While in the courtroom, the attorney will ensure that no
sounds are emitted from the device.
(C) Upon entering the United States District Courthouse in the
Eastern District of North Carolina, the electronic device will
be screened by the court security officers using visual
observation, x-ray scanning, chemical detection devices, or
other screening methods.
(D) The attorney will maintain custody over the electronic device
and will not allow it to be used by anyone else unless the
attorney has been given Court permission.
(E) Failure to comply with these provisions may result in loss of
the attorney’s right to use an electronic device in the United
States District Courthouses in the Eastern District of North
Carolina, confiscation of the device, or other court sanctions,
including but not limited to contempt of court.
(3) Persons using wireless communication devices for evidence
presentation or for other similar purposes must notify the court prior
to the commencement of any proceeding that such a device is in
their possession.
(4) Judges may permit additional exceptions to or impose additional
limitations on the use of wireless electronic devices within
courtroom facilities at their discretion.
Rule 83.2 Student Practice Rule
(a) Compliance with Rule.
Students may participate as attorneys in civil and criminal cases in this court
subject to their compliance with all of the requirements of this rule.
(b) Eligibility.
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An eligible student must:
(1) be duly enrolled in a law school accredited or provisionally
accredited by the American Bar Association;
(2) have completed at least three semesters of legal studies;
(3) have knowledge of the Federal Rules of Civil and Criminal
Procedure, the Federal Rules of Evidence, the Code of Professional
Responsibility, and the local rules of this court;
(4) be supervised by a supervising attorney as defined in subsection (c)
of this rule;
(5) be certified by the Dean of the law school where the student is
enrolled, or the Dean’s designee, as being of good character and
sufficient legal ability and adequately trained to fulfill the
responsibilities of a legal intern to both the client and the court;
(6) be certified by the court to practice pursuant to subsection (d) of this
rule; and
(7) decline personal compensation for his or her legal services from a
client or any other source.
(c) Supervising Attorney.
A supervisor must:
(1) either (i) have faculty or adjunct faculty status at a law school at
which a portion of the supervisor’s duties includes supervision of
students in a clinical program; or (ii) be a member of the bar of this
court for at least two years, who in the determination of the court, is
competent to carry out the role of supervising attorney;
(2) be admitted to practice in this court;
(3) be certified by the court as a student supervisor;
(4) be present with the student at all times in court, and at other
proceedings in which testimony is taken;
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(5) co-sign all pleadings or other documents filed with the court;
(6) assume full personal and professional responsibility for a student’s
guidance and any work undertaken and for the quality of the
student’s work and be available for consultation with
represented clients;
(7) assist and counsel the student in activities mentioned in subsection
(e) of this rule, and review such activities with the student, to the
extent required for proper practical training of the student and the
protection of the client; and
(8) supplement oral or written work of the student as necessary to
ensure proper representation of the client.
(d) Certification of Student and Supervisor.
(1) Student. The court’s certification of a student to practice under this
rule shall be filed with the clerk and shall remain in effect for 18
months or until the student graduates from law school, whichever is
earlier. Certification to appear generally or 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.
(2) Supervising Attorney. Certification of the supervising attorney
shall be filed with the clerk, and shall remain in effect indefinitely
unless withdrawn by the court, in its discretion and without any
showing of cause.
(e) Activities.
A certified student may under the personal supervision of his or her
supervisor:
(1) represent any client, including federal, state, or local governmental
bodies, if the client on whose behalf the certified student is
appearing has consented in writing to that appearance and the
supervising attorney has given written approval of that appearance;
(2) represent a client in any criminal, civil, or administrative matter;
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however, the court retains the authority to limit a student’s
participation in any individual case;
(3) in connection with matters in this court, engage in other activities on
behalf of the client in all ways that a licensed attorney may, under
the general supervision of the supervising attorney; however, a
student shall make no binding commitments on behalf of a client
absent prior client and supervisor approval, and in any matters in
which testimony is taken, including depositions, the student must be
accompanied by the supervising attorney. Documents or papers filed
by the student shall be read, approved, and co-signed by the
supervising attorney. The court retains the authority to establish
exceptions to such activities; and
(4) prior to oral participation by a certified student in a hearing or trial,
the supervising attorney shall provide the court with a written
statement of the anticipated scope of the student’s participation.
Rule 83.3 Change of Address
All attorneys and unrepresented persons in a lawsuit must notify the court in writing
within 14 days of any change of address. Within the same time period, attorneys
must also maintain their user account in CM/ECF. Failure to notify the court in a
timely manner of an address change may result in dismissal of the action or the
imposition of such other relief that the court deems just and proper.
Rule 83.4 Release of Information to News Media
(a) Court Personnel.
All court personnel, including but not limited to the marshal and deputy
marshals and office personnel, the clerk and deputy clerks and office
personnel, probation officers and office personnel, bailiffs, court reporters,
and the judges’ and magistrate judges’ office personnel, are prohibited from
disclosing to any person, without authorization of the court, information
relating to any pending matter that has not been filed as a part of the public
records of the court. This proscription applies to the divulgence of any
information concerning arguments and hearings held in chambers or
otherwise outside the presence of the jury or the public.
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(b) Copies of Public Records.
Members of the news media and others may obtain copies of all public
records from the clerk upon payment of copying fees as prescribed by the
Judicial Conference of the United States.
Rule 83.5 Correspondence
Correspondence addressed to the court shall indicate that copies have been
transmitted to all other parties; failure to transmit the same to all other parties may
result in sanctions by the court. Such correspondence shall not become a part of the
record in the case.
Rule 83.6 Photographing and Reproducing Court Proceedings
The taking of photographs or broadcasting or recording (in any form) of proceedings
in the courtroom, court offices, or corridors immediately adjacent thereto during
judicial proceedings or during any recess of the court is prohibited except as set forth
below. The taking of photographs or broadcasting or recording of ceremonial
proceedings, such as naturalization proceedings, the administration of oaths of office
to officers of the court, presentation of portraits, and other ceremonial occasions,
may be allowed with the permission of the presiding judge and under the supervision
and control of the court.
Rule 83.7 Purpose of Disciplinary Rules
The court, in furtherance of its inherent power and responsibility to supervise
attorneys who practice or appear before it, adopts these rules of disciplinary
enforcement.
Rule 83.7a Attorneys Convicted of Crimes
(a) Filing of Judgment of Conviction.
Upon the filing with the clerk of a certified copy of a judgment of conviction
stating that an attorney admitted to practice before the court has been
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convicted in any court in the United States or the District of Columbia, or of
any state, territory, commonwealth, or possession of the United States, of a
serious crime as hereinafter defined, this court may enter an order
immediately suspending that attorney, whether the conviction resulted from
a plea of guilty or nolo contendere or from a verdict after trial or otherwise
and regardless of the pendency of any appeal, until final disposition of the
disciplinary proceeding to be commenced in accordance with the provisions
of Local Civil Rule 83.7e. A copy of such order shall immediately be 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) Definition of Serious Crime.
The term serious crime shall include any felony or other lesser crime a
necessary element of which, as determined by the statutory or common law
definition of such crime in the jurisdiction where the judgment was entered,
involves false swearing, misrepresentation, fraud, willful failure to file
income tax returns, deceit, bribery, extortion, misappropriation, theft, or an
attempt or conspiracy or solicitation of another to commit a serious crime.
(c) Certified Copy of Judgment Conclusive Evidence.
A certified copy of a judgment of conviction of an attorney for any crime
shall be conclusive evidence of the commission of that crime.
(d) Suspension and Referral.
Upon the filing with the clerk 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 Local Civil Rule 83.7d,
also refer the matter to a referee attorney in accordance with Local Civil Rule
83.7b(f) for the institution of a disciplinary proceeding before the court. The
sole issue to be determined in that proceeding 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 direct appeals from the conviction are concluded.
(e) Conviction of Non-Serious Crime.
Upon the filing with the clerk of a certified copy of a judgment of conviction
of an attorney for a crime not constituting a serious crime, the court may
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refer the matter to a referee attorney for whatever action the referee attorney
may deem warranted, including the institution of a disciplinary proceeding
before the court, provided that the court may in its discretion make no referral
with respect to convictions for minor offenses.
(f) Reinstatement.
An attorney suspended under the provisions of this rule will be reinstated
immediately upon the filing with the clerk of a certificate demonstrating that
the underlying conviction has been reversed. The reinstatement will not
terminate any disciplinary proceeding then pending against the attorney, the
disposition of which shall be determined by the court on the basis of all
available evidence pertaining to both guilt and the extent of the discipline to
be imposed.
Rule 83.7b Discipline Imposed by Other Courts
(a) Duty to Inform This Court.
Any attorney admitted to practice before this court shall, upon being
subjected to public discipline by any other court or administrative body of
the United States or the District of Columbia, or by a court or administrative
body (or state agency clothed with disciplinary authority) or any state,
territory, commonwealth, or possession of the United States, promptly
inform the clerk of this court of such action.
(b) Notice to Attorney.
Upon the filing with the clerk of a certified or exemplified copy of a
judgment or order demonstrating that an attorney admitted to practice before
this court has been disciplined by another court or administrative body (or
state agency clothed with disciplinary authority), this court shall forthwith
issue a notice directed to the attorney containing:
(i) a copy of the judgment or order from the other court or
administrative body (or state agency clothed with disciplinary
authority); and,
(ii) an order to show cause directing that the attorney inform this court
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within 30 days after service of that order upon the attorney,
personally or by mail, of any claim by the attorney predicated upon
the grounds set forth in subsection (d) of this rule that the
imposition of the identical discipline by the other court would be
unwarranted and the reasons therefor.
(c) Deferral of Action.
In the event the discipline imposed in the other jurisdiction has been stayed
there, any reciprocal discipline imposed in this court shall be deferred until
such stay expires.
(d) Imposition of Discipline.
Upon the expiration of 30 days from service of the notice issued pursuant to
subsection (b) of this rule, this court shall impose the identical discipline
imposed by the other court or administrative body, unless the respondent-
attorney demonstrates, or this court finds, that upon the face of the record
upon which the discipline in another jurisdiction is predicated it clearly
appears:
(i) that the procedure was so lacking in notice or opportunity to be
heard as to constitute a deprivation of due process; or
(ii) that there was such an infirmity of proof establishing the
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
(iii) that the imposition of the same discipline by this court would result
in grave injustice; or
(iv) that the misconduct established is deemed by this court to warrant
substantially different discipline.
Where this court determines that any of these elements exists, it shall enter
such order as it deems appropriate.
(e) Effect of Final Adjudication.
In all other respects, a final adjudication in another court or administrative
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body (or state agency clothed with disciplinary authority) that an attorney
has been guilty of misconduct shall establish conclusively the misconduct
for the purposes of a disciplinary proceeding in this court.
(f) Appointment of an Attorney.
This court may at any time appoint an attorney to prosecute the disciplinary
proceedings.
Rule 83.7c Disbarment on Consent or Resignation in Another Court or Before a State
Bar
Any attorney practicing before this court who shall be disbarred on consent or resign
from the bar of any court or state while an investigation into allegations of
misconduct is pending shall promptly inform the clerk and, upon the filing with this
court of a certified copy of the judgment or order accepting such disbarment on
consent or resignation, shall cease to be permitted to practice before this court.
Rule 83.7d Standards for Professional Conduct
(a) Form of Discipline.
For misconduct defined in these local rules and for good cause shown, and
after notice and opportunity to be heard, any attorney admitted to practice
before this court may be disbarred, suspended from practice before this court,
reprimanded, or subjected to such other disciplinary action as the
circumstances may warrant.
(b) Grounds for Discipline.
Acts or omissions by an attorney admitted to practice before this court,
individually or in concert with any other person or persons, that violate the
Rules of Professional Conduct adopted by this court 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. The Rules
of Professional Conduct adopted by this court are the North Carolina State
Bar Revised Rules of Professional Conduct adopted by the Supreme Court
of North Carolina, except as may be otherwise provided by specific rule of
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this court.
Rule 83.7e Disciplinary Proceeding
(a) Referral by the Court.
When misconduct or allegations of misconduct in any case or proceeding in
this court on the part of an attorney admitted to practice before this court that,
if substantiated, would warrant discipline of such attorney shall come to the
attention of a judge of this court, whether by complaint or otherwise, and the
applicable procedure is not otherwise mandated by these local rules, the
judge shall refer the matter to a referee attorney in accordance with Local
Civil Rule 83.7b(f) for investigation and, if warranted, the prosecution of a
formal disciplinary proceeding or the formulation of such other
recommendation as may be appropriate.
(b) Recommendation for Disposition.
Should the referee attorney conclude after investigation and review that a
formal disciplinary proceeding should not be initiated against the
respondent-attorney because sufficient evidence is not present or because
another proceeding is pending against the respondent-attorney, the
disposition of which in the judgment of the referee attorney should be
awaited before further action by this court is considered, or for any other
valid reason, the referee attorney shall file with the court a recommendation
for disposition of the matter, whether by dismissal, admonition, deferral, or
otherwise, setting forth the reasons therefor.
(c) Initiation of Disciplinary Proceedings.
To initiate formal disciplinary proceedings, the referee attorney shall obtain
an order of this court upon a showing of probable cause requiring the
respondent-attorney to show cause within 30 days after service of that order
upon that attorney, personally or by mail, why the attorney should not be
disciplined.
(d) Procedure for Hearing.
Upon the respondent-attorney’s answer to the order to show cause, if any
issue of fact is raised or the respondent-attorney wishes to be heard in
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mitigation, this court shall set the matter for prompt hearing before one or
more judges of this court, provided that, if the disciplinary proceeding is
predicated upon the complaint of a judge of this court, the hearing shall be
conducted before another judge of this court appointed by the Chief Judge,
or if the Chief Judge is the complainant, by the next senior judge of this court.
Rule 83.7f Disbarment on Consent While Under Disciplinary Investigation or
Prosecution
(a) Consent to Disbarment.
Any attorney practicing before this court who is the subject of an
investigation into, or a pending proceeding involving, allegations of
misconduct may consent to disbarment by delivering to this court an affidavit
stating that the attorney desires to consent to disbarment and that:
(i) the attorney’s consent is freely given,
(ii) the attorney is aware of the pending investigation or proceeding,
(iii) the attorney acknowledges the material facts of misconduct, and
(iv) the attorney consents because the attorney knows that he or she could
not defend successfully against charges of misconduct.
(b) Order of Disbarment.
Upon receipt of the required affidavit, this court shall enter an order
disbarring the attorney.
(c) Record.
The order disbarring the attorney on consent shall be a matter of public
record. However, the affidavit required under 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.
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Rule 83.7g Reinstatement
(a) Automatic Reinstatement; Reinstatement by Order.
An attorney suspended for three months or less shall be automatically
reinstated at the end of the period of suspension upon filing with the court an
affidavit of compliance with the provisions of the suspension order. An
attorney suspended for more than three months or disbarred may not resume
practice until reinstated by order of this court.
(b) Time for Petition.
An attorney who has been disbarred after hearing or by consent may not
petition for reinstatement until the expiration of at least three years from the
effective date of disbarment.
(c) Procedure.
Petitions for reinstatement by a disbarred or suspended attorney under this
rule shall be filed with the court. Upon receipt of the petition, the Chief
Judge may assign the matter for a prompt hearing before a judge (or judges)
of the court and may, in the Chief Judge’s discretion, refer the petition to
counsel for investigation in accordance with Local Civil Rule 83.7b(f). The
judge assigned to the matter shall schedule a hearing at which petitioner shall
have the burden of demonstrating by clear and convincing evidence that the
attorney has the moral qualifications, competency, and learning of the law
required for admission to practice law before this court, and that the
attorney’s 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. In all proceedings upon a petition for reinstatement,
cross-examination of the witnesses of the attorney and the submission of
evidence, if any, in opposition to the petition shall be conducted by the
referee attorney if the matter has been referred to that attorney by the court
in accordance with Local Civil Rule 83.7b(f).
(d) Costs.
Petitions for reinstatement under this rule shall be accompanied by an
advanced cost deposit made payable to the Clerk, United States District
Court, in the amount of the current attorney admission fee. The court may
later impose costs related to the reinstatement proceeding.
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(e) Order of Reinstatement.
If the petitioner is found to be unfit to resume the practice of law, the petition
shall be dismissed. If the petitioner is found to be fit to resume the practice
of law, the judgment shall reinstate the petitioner, provided that the judgment
may make reinstatement conditional upon the payment of all or part of the
costs of the proceedings and partial or complete restitution to parties
harmed by the petitioner conduct that led to the suspension or disbarment.
(f) 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.
Rule 83.7h Service of Papers 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
respondent-attorney at the address shown in the most recent registration filed
pursuant to N.C.G.S. § 84-34, or, in the case of an attorney admitted to this court
pursuant to Local Civil Rule 83.1, at the address shown in papers filed with the 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 respondent-attorney at
the address determined as aforesaid, or to counsel or the attorney for the respondent-
attorney at the address indicated in the most recent pleading or other document filed
by the respondent.
Rule 83.7i Appointment of Counsel
Whenever counsel is to be appointed in accordance with Local Civil Rule 83.7b(f)
to investigate allegations of misconduct or to prosecute disciplinary proceedings or
in conjunction with a reinstatement petition, the court may appoint as counsel the
disciplinary agency of the Supreme Court of North Carolina or any other disciplinary
agency having jurisdiction. Alternatively, the court may appoint as counsel one or
more members of the Bar, provided, however, that the respondent-attorney may
move to disqualify this counsel for good cause shown. This counsel, once appointed,
may not resign unless permission to do so is given by the court. Nothing in this rule
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limits the court’s authority to refer any matter to the appropriate state bar for
investigation, prosecution of disciplinary proceedings, or reinstatement.
Rule 83.7j Duties of the Clerk
(a) To Secure Certificate of Conviction.
Upon being informed that an attorney admitted to practice before this court
has been convicted of any serious crime, the clerk shall determine whether
the clerk of the court (or the state agency clothed with disciplinary authority)
in which such conviction occurred has forwarded a certificate of such
conviction to the court. If a certificate has not been so forwarded, the clerk
shall promptly obtain a certificate and cause it to be filed in this court.
(b) To Secure Disciplinary Judgment or Order.
Upon being informed that an attorney admitted to practice before this court
has been subjected to discipline by another court, an administrative body, or
a state agency clothed with disciplinary authority, the clerk 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 cause
it to be filed in this court.
(c) Transmittal to Other Jurisdictions.
Whenever it appears that any person convicted of any serious crime,
disbarred, suspended, censured, or disbarred on consent by this court is
admitted to practice law in any other jurisdiction or before any other court,
the clerk shall, within 14 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 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 respondent-attorney.
(d) National Discipline Data Bank.
The clerk shall notify the National Discipline Data Bank operated by the
American Bar Association of any order of this court imposing public
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discipline upon any attorney admitted to practice before this court.
Rule 83.7k Publicity
All parties in a disciplinary proceeding shall conduct themselves in accord with the
provisions of Local Civil Rule 83.4.
Rule 83.8 Bankruptcy Appeals
(a) General Provisions.
The following Local Civil Rules apply to appeals from the bankruptcy courts
in this district:
1.1 (Scope and Citation of Local Civil Rules)
5.1 (Filing and Service of Papers)
5.2 (Appearance of Attorneys in Civil Cases)
6.1 (Motions for an Extension of Time to Perform Act)
7.1(h) (Subsequently Decided Controlling Authority)
7.2(b), (c), (d) (Provisions relating to citation of authorities in memoranda)
7.3 (Disclosure of Corporate Affiliations and Other Entities with a Direct
Financial Interest in Litigation)
10.1(b), (c), (d), (e), (f), (g), (h), (i), (j) (Forms of Pleadings, Motions, and
Documents)
11.1 (Sanctions)
11.2 (Disclosure Statements)
83.1 (Attorneys)
83.2 (Student Practice Rule)
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83.3 (Change of Address)
83.4 (Release of Information to News Media)
83.5 (Correspondence)
83.6 (Photographing and Reproducing Court Proceedings)
83.7-83.7k (Provisions relating to attorney discipline)
To the extent any Local Civil Rule or judicial practice preference conflicts
with the Federal Rules of Bankruptcy Procedure, the Federal Bankruptcy
Rule shall govern.
(b) Courtesy Copies.
Attorneys shall provide the assigned judge a courtesy copy of all documents
in conformance with his or her practice preferences. Any required courtesy
copies shall be mailed or delivered to the civil case manager for the assigned
judge as specified on the court’s website. See Fed. R. Bankr. P. 8013(f)(4).
(c) Appendices.
Unless ordered otherwise, appeals may proceed on the original record
without the need to file an appendix. See Fed. R. Bankr. P. 8018(e).
(d) Statement Regarding Oral Argument.
Parties must include in their briefs at the conclusion of the argument a
statement setting forth the reasons why, in their opinion, oral argument
should or need not be permitted. See Fed. R. Bankr. P. 8019(a).
Rule 83.9 Jurisdiction
Nothing contained in these rules shall be construed to deny to this court such powers
as are necessary for the court to maintain control over proceedings conducted before
it, such as proceedings for contempt under Title 18 of the United States Code or
other sanctions under the Federal Rules of Civil Procedure or these local rules.
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Rule 83.10 Courtroom Technology
(a) Video Teleconferencing.
If a party or nonparty needs to use video teleconference (“VTC”) technology
for a hearing or trial, the party or nonparty shall file a motion seeking leave
of court for use of the technology no later than 14 days prior to the scheduled
proceeding. If the court allows the motion, the party or nonparty shall submit
a VTC Request Form (available from the clerk) to the court no later than 7
days before the scheduled proceeding.
(b) Training.
If a party or nonparty needs any type of courtroom technology other than
VTC for a hearing or trial, including but not limited to any audio equipment,
video equipment, document presentation system, and jury evidentiary
recording system, the party or nonparty must notify the case manager and
request training from the court’s information technology staff for the person
or persons who will be operating the courtroom technology. Unless excepted
by the clerk, no later than 7 days before the scheduled proceeding, the party
or nonparty must file a certification provided by the court’s technology staff
that the required training has been completed.
Rule 100.1 Court Libraries
The clerk shall maintain the court libraries in the District. Use of the facilities is
limited to judicial officers, court staff, and members of the bar of this court. Books
shall not be removed from the library without the consent of the person responsible
for the maintenance of the particular library and shall not be removed from the
courthouse under any circumstances. A violation of this local rule shall be
punishable as contempt of court.
Rule 100.2 Jurisdictional Agreements with Other Courts
The clerk shall maintain all jurisdictional agreements entered into by the Chief Judge
of this court and the Chief Judge of any other United States District Court, and a
copy of such agreements shall be furnished to any person upon request.
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Rule 100.3 Civil Contempt
(a) Rights of Contemnor.
In all cases of civil contempt, the contemnor shall have due notice of the
contempt charges, opportunity to reply to the charges, and notice of the date
and place of hearing in open court from which the public shall not be
excluded.
(b) Summary Contempt Proceedings.
In contempt proceedings where the court may act summarily, the contemnor
shall have the right to defend against the charges and to offer evidence in the
form of affidavits. The movant shall have the right to offer similar evidence.
(c) Plenary Contempt Proceedings.
In contempt proceedings where the court may not act summarily, the
presentation of evidence is governed by Rule 1101 of the Federal Rules of
Evidence. In no case of civil contempt, however, shall the parties be entitled
to trial by jury; rather, the district judge before whom the matter is tried shall
find the facts and enter a judgment or order in accordance with the provisions
of the Federal Rules of Civil Procedure applicable to non-jury cases.
Rule 100.4 Standing Orders
(a) Issuance.
Standing orders shall be issued by the Chief Judge.
(b) Subject Matter.
Standing orders are used to address matters of court business, including court
policies and administrative matters, not adequately addressed by orders in
individual cases but not appropriate for inclusion in the local rules because
of improbability of recurrence, level of importance, or degree of interest to
the Bar or public, or for other reasons.
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(c) Form.
Each standing order shall bear a heading identifying it as such and specifying
the subject matter to which it relates. Standing orders shall be given such
additional identifiers, including docket numbers, as the clerk determines are
appropriate to facilitate orderly storage of and access to such orders.
(d) Posting and Retention.
Standing orders shall be posted for review by the public and court personnel
and, when appropriate, archived in such manner as the Chief Judge directs
in consultation with the clerk.
(e) Annual Review.
The Local Rules committee shall review the court’s standing orders each
year to determine whether any should be converted into Local Rules,
amended, or vacated. The committee shall report the results of its review,
including any recommendations, to the Chief Judge.
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ATTACHMENT B
United States District Court
Eastern District of North Carolina
Local Criminal Rules
of
Practice and Procedure
May 2023
Local Criminal Rules – U.S. District Court for the Eastern District of North Carolina Page 1
TABLE OF CONTENTS
Rule 1.1 Scope and Citation of Local Criminal Rules .......................................................... 8
Rule 1.2 Definitions .............................................................................................................. 8
Rule 2.1 Reserved for Future Purposes ................................................................................. 8
Rule 3.1 Reserved for Future Purposes ................................................................................. 8
Rule 4.1 Reserved for Future Purposes ................................................................................. 8
Rule 5.1 Magistrate Judges: Standards of Performance...................................................... 9
Rule 5.2 Magistrate Judges: Assignment of Matters .......................................................... 9
(a) Misdemeanor Cases. ............................................................................................................ 9
(b) Felony Cases. ....................................................................................................................... 9
Rule 5.3 Authority of Magistrate Judges............................................................................... 9
(a) Duties Under 28 U.S.C. § 636(a)......................................................................................... 9
(b) Determination of Non-Dispositive Pretrial Matters –28 U.S.C. § 636(b)(1)(A). ................ 9
(c) Recommendations Regarding Case-Dispositive Motions –28 U.S.C. § 636(b)(1)(B). ..... 10
(d) Prisoner Cases Under 28 U.S.C. § 2254 and § 2255. ........................................................ 10
(e) Other Duties. ...................................................................................................................... 10
Rule 5.4 Electronic Designation of Judges ......................................................................... 11
Rule 6.1 Reserved for Future Purposes ............................................................................... 11
Rule 7.1 Reserved for Future Purposes ............................................................................... 11
Rule 8.1 Reserved for Future Purposes ............................................................................... 12
Rule 9.1 Reserved for Future Purposes ............................................................................... 12
Rule 10.1 Reserved for Future Purposes ............................................................................... 12
Rule 10.2 Appearance Bonds ................................................................................................ 12
Rule 11.1 Disclosure of Pretrial Services Reports ................................................................ 12
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Rule 12.1 Time Period for Filing Pretrial Motions ............................................................... 12
Rule 12.2 Further Discovery and Inspection ......................................................................... 13
Rule 12.3 Disclosure of Corporate Affiliations and Other Entities with a Direct Financial
Interest in Litigation.............................................................................................. 13
Rule 13.1 Reserved for Future Purposes ............................................................................... 14
Rule 14.1 Reserved for Future Purposes ............................................................................... 14
Rule 15.1 Reserved for Future Purposes ............................................................................... 14
Rule 16.1 Motions Relating to Discovery and Inspection..................................................... 14
(a) In General. ......................................................................................................................... 14
(b) Criminal Pretrial Conference. ............................................................................................ 14
(c) Discovery from Defendant. ............................................................................................... 15
(d) Exchange of Discovery by Mail. ....................................................................................... 15
(e) Duty of Disclosure. ............................................................................................................ 15
Rule 17.1 Time of Issuance of Subpoenas in Criminal Cases............................................... 16
Rule 17.2 Reserved for Future Purposes ............................................................................... 16
Rule 18.1 Reserved for Future Purposes ............................................................................... 16
Rule 19.1 Reserved for Future Purposes ............................................................................... 16
Rule 20.1 Reserved for Future Purposes ............................................................................... 16
Rule 21.1 Reserved for Future Purposes ............................................................................... 16
Rule 22.1 Reserved for Future Purposes ............................................................................... 16
Rule 23.1 Reserved for Future Purposes ............................................................................... 16
Rule 24.1 Preparations for Criminal Trial ............................................................................. 16
Rule 24.2 Jurors ..................................................................................................................... 17
(a) Jury Lists............................................................................................................................ 17
(b) Examination of Jurors. ....................................................................................................... 17
(c) Contact with Trial Jurors. .................................................................................................. 17
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Rule 25.1 Reserved for Future Purposes ............................................................................... 18
Rule 26.1 Reserved for Future Purposes ............................................................................... 18
Rule 27.1 Reserved for Future Purposes ............................................................................... 18
Rule 28.1 Reserved for Future Purposes ............................................................................... 18
Rule 29.1 Reserved for Future Purposes ............................................................................... 18
Rule 30.1 Requests for Jury Instructions............................................................................... 18
Rule 31.1 Taking Verdicts and Polling the Jury ................................................................... 18
Rule 32.1 Petition for Disclosure of Presentence or Probation Records ............................... 18
Rule 32.2 Procedures Implementing Sentencing Guidelines ................................................ 19
(a) Scheduling of Sentencing. ................................................................................................. 19
(b) Time for Completion of Presentence Report. .................................................................... 19
(c) Time for Filing Objections to Presentence Report............................................................. 19
(d) Procedure for Resolving Objections to Presentence Report. ............................................. 19
(e) Time for Filing Revised Presentence Report. .................................................................... 20
(f) Expedited Procedures where Defendant Detained............................................................. 20
(g) Court Acceptance of Presentence Report. ......................................................................... 20
(h) Service of Presentence Report. .......................................................................................... 20
(i) Procedure at Sentencing..................................................................................................... 21
(j) Receipt of Presentence Report Under Seal. ....................................................................... 21
(k) Role of the Defendant’s Attorney in Presentence Investigation. ....................................... 21
(l) Disclosure of Presentence Report to Expert Witnesses and Agents. ................................. 21
Rule 33.1 Reserved for Future Purposes ............................................................................... 22
Rule 34.1 Reserved for Future Purposes ............................................................................... 22
Rule 35.1 Reserved for Future Purposes ............................................................................... 22
Rule 36.1 Reserved for Future Purposes ............................................................................... 22
Rule 37.1 Reserved for Future Purposes ............................................................................... 22
Rule 38.1 Reserved for Future Purposes ............................................................................... 22
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Rule 39.1 Reserved for Future Purposes ............................................................................... 22
Rule 40.1 Reserved for Future Purposes ............................................................................... 22
Rule 41.1 Reserved for Future Purposes ............................................................................... 22
Rule 42.1 Reserved for Future Purposes ............................................................................... 22
Rule 43.1 Waiver of Appearance in Misdemeanor Cases ..................................................... 22
Rule 44.1 Appearances of Attorneys in Criminal Cases ....................................................... 23
(a) Obligation to Notify the Court........................................................................................... 23
(b) Notice of Appearance. ....................................................................................................... 23
Rule 44.2 Disclosure Statements in Litigation By Unrepresented Persons .......................... 23
Rule 45.1 Reserved for Future Purposes ............................................................................... 24
Rule 46.1 Prohibited Sureties ................................................................................................ 24
Rule 47.1 Motion Practice ..................................................................................................... 24
(a) General Requirements. ...................................................................................................... 24
(b) Supporting Memoranda. .................................................................................................... 24
(c) Responses to Motions. ....................................................................................................... 24
(d) Subsequently Decided Controlling Authority. .................................................................. 24
(e) Affidavits. .......................................................................................................................... 25
(f) Hearings on Motions. ........................................................................................................ 25
(g) Frivolous or Delaying Motions.......................................................................................... 25
(h) Motions for an Extension of Time to Perform an Act. ...................................................... 25
(i) Motion Practice in Proceedings Seeking Relief Under 28 U.S.C. § 2255. ....................... 26
Rule 47.2 Supporting Memoranda ........................................................................................ 26
(a) Form and Content. ............................................................................................................. 26
(b) Citation of Published Decisions. ....................................................................................... 26
(c) Citation of Authorities Not Appearing in Certain Published Sources. .............................. 27
(d) Citation of Unpublished Decisions. ................................................................................... 27
(e) Provision of Authorities..................................................................................................... 27
(f) Length of Memoranda. ...................................................................................................... 27
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Rule 47.3 Form of Pleadings, Motions and Documents........................................................ 28
Rule 47.4 Form of Exhibits to Motions ................................................................................. 30
[Rule 47.5] [Implementing Requirements of the E-Government Act of 2002] ....................... 30
Rule 47.6 Ex Parte Motions .................................................................................................. 30
Rule 48.1 Reserved for Future Purposes ............................................................................... 30
Rule 49.1 Filing and Service of Papers ................................................................................. 31
(a) Electronic Filing. ............................................................................................................... 31
(b) Registered User.................................................................................................................. 31
(c) Authorized User of CM/ECF Password. ........................................................................... 31
(d) Entry on Docket. ................................................................................................................ 32
(e) Service of Document. ........................................................................................................ 32
(f) Exceptions to Electronic Filing. ........................................................................................ 32
Rule 50.1 Definition of Related Criminal Cases ................................................................... 34
Rule 50.2 Notice of Related Cases ........................................................................................ 34
(a) Notice by the government.................................................................................................. 34
(b) Notice by defendant. .......................................................................................................... 34
(c) Responses. ......................................................................................................................... 34
Rule 50.3 Criminal Transfers ................................................................................................ 35
(a) Indictment When Plea Pending. ........................................................................................ 35
(b) Transfers of Jurisdiction. ................................................................................................... 35
Rule 50.4 Indictment or Information Previously Dismissed ................................................. 35
Rule 51.1 Reserved for Future Purposes ............................................................................... 36
Rule 52.1 Reserved for Future Purposes ............................................................................... 36
Rule 53.1 Photographing and Reproducing Court Proceedings ............................................ 36
Rule 54.1 Reserved for Future Purposes ............................................................................... 36
Rule 55.1 Exhibits ................................................................................................................. 36
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Rule 55.2 Sealed Documents................................................................................................. 36
(a) Filing Sealed Documents. .................................................................................................. 36
(b) Proposed Sealed Documents. ............................................................................................ 36
(c) Return of Sealed Documents. ............................................................................................ 37
(d) Procedures for Manual Filers. ........................................................................................... 38
Rule 56.1 Courts and Clerks.................................................................................................. 38
(a) Court in Continuous Session. ............................................................................................ 38
(b) Assignment of Cases to a Division. ................................................................................... 38
(c) Orders and Judgments. ...................................................................................................... 39
Rule 57.1 Attorneys ............................................................................................................... 39
(a) Roll of Attorneys. .............................................................................................................. 39
(b) Eligibility. .......................................................................................................................... 39
(c) Procedure for Admission. .................................................................................................. 39
(d) Representation by Local Attorneys Who Must Sign All Pleadings. ................................. 40
(e) Appearances by Attorneys Not Admitted in the District – Special Appearance. .............. 41
(f) Pleadings, Service and Attendance by Local Attorneys in Cases Where Out-of-State
Attorneys Appear by Special Appearance. ........................................................................ 43
(g) Withdrawal of Appearance. ............................................................................................... 43
(h) Courtroom Decorum. ......................................................................................................... 43
(i) Questioning of Witnesses. ................................................................................................. 43
(j) Professional Standards. ...................................................................................................... 44
(k) Admission of Attorneys Previously Admitted to the United States District Courts for the
Middle or Western Districts of North Carolina. ................................................................ 44
(l) Electronic Devices in Courtroom Facilities....................................................................... 44
Rule 57.2 Student Practice Rule ............................................................................................ 45
(a) Compliance with Rule. ...................................................................................................... 45
(b) Eligibility. .......................................................................................................................... 45
(c) Supervising Attorney. ........................................................................................................ 46
(d) Certification of Student and Supervisor. ........................................................................... 47
(e) Activities. ........................................................................................................................... 47
Rule 57.3 Change of Address ................................................................................................ 48
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Rule 57.4 Correspondence .................................................................................................... 48
Rule 57.5 Disciplinary Rules................................................................................................. 48
Rule 57.6 Courtroom Technology ......................................................................................... 48
Rule 58.1 Magistrate Judges ................................................................................................. 48
(a) Disposition of Misdemeanor Cases -- 18 U.S.C. § 3401. .................................................. 48
(b) Appeal from Judgments in Misdemeanor Cases -- 18 U.S.C. § 3402. .............................. 49
Rule 58.2 Forfeiture of Collateral in Lieu of Appearance .................................................... 50
Rule 59.1 Reserved for Future Purposes ............................................................................... 50
Rule 60.1 Reserved for Future Purposes ............................................................................... 50
Rule 61.1 Publicity in Criminal Matters ............................................................................... 50
(a) In General. ......................................................................................................................... 50
(b) Statements by One Participating in or Associated with an Investigation. ......................... 51
(c) Statements After Filing Complaint, Information, or Indictment, ...................................... 51
(d) Statements That Can Be Made. ......................................................................................... 52
(e) Statements During Jury Selection or Trial. ....................................................................... 53
(f) Statements After Trial, Disposition without Trial, or Sentencing. .................................... 53
(g) Statements of Staff and Employees. .................................................................................. 53
Rule 100.1 Court Libraries ...................................................................................................... 53
Rule 100.2 Jurisdictional Agreements With Other Courts ...................................................... 54
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Rule 1.1 Scope and Citation of Local Criminal Rules
These local rules of criminal practice shall govern the conduct of the United States
District Court for the Eastern District of North Carolina except when the conduct
of this court is governed by federal statutes and rules. A district judge or
magistrate judge, for good cause and in his or her discretion, may alter these rules
in any particular case. These rules shall be cited as “Local Criminal Rule ____.”
The Local Criminal Rules posted on the district’s website,
http://www.nced.uscourts.gov/rules/Default.aspx, shall be the official record of the
court.
Rule 1.2 Definitions
As used in these local rules:
(a) The term “person” refers to any human being or entity.
(b) The term “party” refers to the United States or a defendant. A represented
party shall act through the party’s attorney of record unless a particular rule
specifically states otherwise.
(c) The term “nonparty” refers to any person other than a party, an attorney, a
judge, or a court staff member who is acting in that capacity. A represented
nonparty shall act through the nonparty’s attorney of record unless a
particular rule specifically states otherwise.
(d) The term “attorney” refers to an attorney of record for a person, unless the
context of a particular rule refers to attorneys more generally.
(e) The term “unrepresented person” refers to a person during any time when
the person is proceeding without an attorney.
(f) The term “incarcerated unrepresented person” broadly refers to an
unrepresented person who is currently imprisoned, jailed, civilly
committed, or otherwise detained.
(g) The term “movant” refers to a person who makes a motion.
Rule 2.1 Reserved for Future Purposes
Rule 3.1 Reserved for Future Purposes
Rule 4.1 Reserved for Future Purposes
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Rule 5.1 Magistrate Judges: Standards of Performance
In performing duties for the court, a magistrate judge shall conform to all applicable
provisions of federal statutes and rules, to the Local Criminal Rules and procedures
of this court, and to the requirements specified in any order of reference from a
district judge.
Rule 5.2 Magistrate Judges: Assignment of Matters
(a) Misdemeanor Cases.
Upon the filing of an information, complaint, or violation notice, or the
return of an indictment, all misdemeanor cases not assigned to a district
judge shall be assigned by the clerk to a magistrate judge, who shall proceed
in accordance with the provisions of 18 U.S.C. § 3401 and Fed. R. Crim. P.
58.
(b) Felony Cases.
Upon the return of an indictment or the filing of an information, all felony
cases shall be assigned by the clerk to a magistrate judge for the conduct of
an arraignment and such pretrial conferences as are necessary and for the
hearing and determination of all pretrial procedural and discovery motions,
in accordance with Local Criminal Rule 5.3.
Rule 5.3 Authority of Magistrate Judges
(a) Duties Under 28 U.S.C. § 636(a).
A magistrate judge is authorized to perform the duties prescribed by 28
U.S.C. § 636(a), and may conduct extradition proceedings, in accordance
with 18 U.S.C. § 3184.
(b) Determination of Non-Dispositive Pretrial Matters –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 criminal case, other than the motions
specified in subsection (c)(1) of this rule.
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(c) Recommendations Regarding Case-Dispositive Motions –28 U.S.C. §
636(b)(1)(B).
(1) A magistrate judge may submit to a district judge a report containing
proposed findings of fact and recommendations for disposition by
the district judge of the following pretrial motions:
a. Motions to dismiss or quash an indictment or information made
by a defendant; and
b. 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 rule.
(d) 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 28 U.S.C. § 2254 and § 2255. 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 shall be made only by a district judge.
(e) Other Duties.
A magistrate judge is also authorized to:
(1) exercise general supervision of calendars, conduct calendar and
status calls, and determine motions to expedite or postpone the trial
of misdemeanor and felony cases;
(2) conduct discovery conferences, pretrial conferences, settlement
conferences, omnibus hearings, and related pretrial proceedings;
(3) conduct arraignments and accept pleas pursuant to Fed. R. Crim. P.
11 in cases not triable by the magistrate judge;
(4) receive grand jury returns in accordance with Fed. R. Crim. P. 6(f);
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(5) accept waivers of indictment, pursuant to Fed. R. Crim. P. 7(b);
(6) conduct voir dire and select petit juries for the court;
(7) conduct necessary proceedings leading to the potential revocation of
probation;
(8) issue subpoenas, writs of habeas corpus ad testificandum or habeas
corpus ad prosequendum, or other orders necessary to obtain the
presence of persons or evidence needed for court proceedings;
(9) order the exoneration or forfeiture of bonds;
(10) conduct examinations of judgment debtors in accordance with
Fed. R. Crim. P. 69;
(11) conduct proceedings for initial commitment of narcotics addicts
under Title III of the Narcotic Addict Rehabilitation Act;
(12) 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
attorneys therein;
(13) exercise contempt authority in accordance with 28 U.S.C. § 636(e);
and
(14) perform any additional duty consistent with the Constitution and
laws of the United States.
Rule 5.4 Electronic Designation of Judges
An electronically generated designation of a district judge or magistrate judge does
not mean that the judge so designated is assigned to the case.
Rule 6.1 Reserved for Future Purposes
Rule 7.1 Reserved for Future Purposes
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Rule 8.1 Reserved for Future Purposes
Rule 9.1 Reserved for Future Purposes
Rule 10.1 Reserved for Future Purposes
Rule 10.2 Appearance Bonds
In the event a deed of trust is used to secure an appearance bond for a defendant,
the grantor of the deed of trust is responsible for preparing and supplying the clerk
with documentation necessary to cancel the deed of trust within 21 days of the date
that the conditions of the appearance bond and deed of trust are satisfied. The
grantor shall also be responsible for recording any documentation necessary to
cancel the deed of trust and for payment of any costs associated with such
cancellation. Failure of the grantor to comply with these requirements shall relieve
the clerk of any responsibility to cancel the deed of trust.
Rule 11.1 Disclosure of Pretrial Services Reports
Pursuant to 18 U.S.C. § 3153(c)(1), which governs the availability of the pretrial
services report to the attorney for the accused and for the government prior to any
detention hearing, the United States Probation Office for the Eastern District of
North Carolina is authorized to disclose pretrial services reports to the attorneys
for the accused and for the government. This disclosure shall be accomplished
by filing the pretrial services report for each case under seal in the CM/ECF filing
system. The attorneys for the accused and for the government may retain these
reports, but must not re-disclose the reports to other persons. When a copy of the
report is filed under seal, it will have a header on the first page advising the
attorneys that (a) the report is not to be copied, (b) the report is not a public
record, and (c) the content may not be disclosed to other persons. Other than the
disclosures laid out herein, the reports shall remain confidential, as provided in 18
U.S.C. § 3153(c)(1).
Rule 12.1 Time Period for Filing Pretrial Motions
All pretrial motions, including but not limited to motions to suppress and motions
under Rules 12, 14, 16, and 41 of the Federal Rules of Criminal Procedure shall be
filed no later than 30 days after indictment or initial appearance (whichever comes
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later) or within such other time as ordered by the court. Responses shall be filed
within 14 days after the service of such motions unless otherwise ordered by the
court. Untimely motions may be considered by the court if the party shows good
cause.
Rule 12.2 Further Discovery and Inspection
In the event that either party moves to compel compliance with Local Criminal Rule
16.1(a) or for additional discovery or inspection, such motion shall be filed within
the time period set by Local Criminal Rule 12.1. The motion shall contain:
(a) the statement that the prescribed conference was held;
(b) the date of said conference;
(c) the names of all parties and attorneys participating in the conference; and
(d) the statement that agreement could not be reached concerning the
discovery or inspection that is the subject of the motion and the reasons
given for the same.
Rule 12.3 Disclosure of Corporate Affiliations and Other Entities with a Direct
Financial Interest in Litigation
(a) All corporate defendants in a criminal case, whether or not they are
covered by the terms of Fed. R. Crim. P. 12.4, shall file a corporate
affiliate/financial interest disclosure statement.
(b) The statement shall set forth the information required by Fed. R. Crim. P.
12.4 and the following:
(1) A trade association shall identify in the disclosure statement all
members of the association, their parent corporations, and any
publicly held companies that own ten percent or more of a member’s
stock.
(2) All parties shall identify any publicly held corporation, whether or
not a party to the present litigation, that has a direct financial interest
in the outcome of the litigation by reason of a franchise, lease, other
profit sharing agreement, insurance, or indemnity agreement.
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(3) Whenever required by Fed. R. Crim. P. 12.4 or this rule to disclose
information about a corporation that has issued shares to the public,
a party shall also disclose information about similarly situated
master limited partnerships, real estate investment trusts, or other
legal entities whose shares are publicly held or traded.
(c) The disclosure statement shall be on a form provided by the clerk. A
negative statement is required if a party has no disclosures to make.
(d) The disclosure statement shall be filed within 28 days after the defendant
makes an initial appearance. The parties are required to amend their
disclosure statements when necessary to maintain their current accuracy.
Rule 13.1 Reserved for Future Purposes
Rule 14.1 Reserved for Future Purposes
Rule 15.1 Reserved for Future Purposes
Rule 16.1 Motions Relating to Discovery and Inspection
(a) In General.
A discovery motion in a criminal action (Fed. R. Crim. P. 16) shall state that
a request for discovery and inspection was made and denied. Parties must
also certify that they have conferred and made a good faith effort to resolve
discovery disputes prior to the filing of any discovery motions.
(b) Criminal Pretrial Conference.
The attorney for the government shall arrange and conduct a pretrial
conference with the defendant’s attorney within 21 days after indictment or
initial appearance (whichever comes later) or within such other time as
ordered by the court. At the pretrial conference and upon the request of the
defendant’s attorney, the government shall permit the defendant’s attorney:
(1) to inspect and copy all discoverable evidence under Rule 16 of the
Federal Rules of Criminal Procedure;
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(2) to inspect, copy or photograph any relevant written or recorded
statements or confessions made by the defendant, or copies thereof,
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 attorney for the government;
(3) to inspect and copy or photograph any relevant results or reports of
physical or mental examinations, and of scientific tests or
experiments made in connection with the case, or copies thereof,
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 attorney for the government;
(4) to inspect and copy or photograph any relevant recorded testimony
of the defendant before a grand jury;
(5) to inspect and copy or photograph books, papers, documents,
tangible objects, buildings or places which are the property of the
defendant and which are within the possession, custody or control
of the government;
(6) to inspect and copy or photograph the Federal Bureau of
Investigation Identification Sheet indicating defendant’s prior
criminal record; and
(7) to inspect, copy or photograph any exculpatory evidence.
(c) Discovery from Defendant.
After discovery has been provided by the government, and upon request of
the government, the defendant shall permit the government to inspect any
copy of all discoverable evidence under Rule 16(b) of the Federal Rules of
Criminal Procedure.
(d) Exchange of Discovery by Mail.
The government and the defendant , in lieu of the conference, may agree to
exchange discovery material by mail without the conference referenced in
Local Criminal Rule 16.1(b).
(e) Duty of Disclosure.
Any duty of disclosure and discovery set forth in Local Criminal Rule 16.1
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is a continuing one, and the government and the defendant shall produce
voluntarily any additional relevant information gained by either of them.
Rule 17.1 Time of Issuance of Subpoenas in Criminal Cases
Subpoenas for witnesses in criminal cases shall be delivered to the United States
Marshal or other person qualified to make service at least 7 days prior to the
Monday of the week in which the case is set for trial. The failure of the Marshal
or other qualified person to serve a subpoena not delivered within this time period
shall not constitute sufficient cause for a continuance.
Rule 17.2 Reserved for Future Purposes
Rule 18.1 Reserved for Future Purposes
Rule 19.1 Reserved for Future Purposes
Rule 20.1 Reserved for Future Purposes
Rule 21.1 Reserved for Future Purposes
Rule 22.1 Reserved for Future Purposes
Rule 23.1 Reserved for Future Purposes
Rule 24.1 Preparations for Criminal Trial
(a) Unless the parties have previously entered into and executed a written plea
agreement, each party shall file with the clerk and the assigned judge, 7 days
preceding the first day of the session during which the criminal action is set
for trial:
(l) voir dire questions as required by Local Criminal Rule 24.2; and
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(2) requests for jury instructions.
(b) Before jury selection begins, each party shall file with the court a list of all
witnesses the party, in good faith, reasonably anticipates will be called in
its evidence-in-chief.
Rule 24.2 Jurors
(a) Jury Lists.
When the jury for a session of the court is drawn, the clerk shall furnish a
copy of the list of prospective jurors to the attorneys for the parties or to any
unrepresented defendant on a relevant trial roster, upon their request, unless
otherwise directed by the court. The clerk shall notify the presiding judge
and the government of any such request by an unrepresented defendant prior
to providing the requested list. The list shall set out the name and county
of residence of each prospective juror. The jurors and their families shall
not be contacted, either directly or indirectly, in an effort to secure
information concerning the background of any member of the jury panel.
When the jurors are seated in the jury box, a chart or list showing the name
and seating assignment of each juror unless otherwise directed by the court
shall be furnished to the parties by the clerk.
(b) Examination of Jurors.
The court shall conduct the examination of prospective jurors. Seven days
preceding the first day of the session at which an action is set for trial, each
party shall file a list of voir dire questions the party desires the court to ask
the jury other than routine questions such as (1) the occupations and
addresses of jurors and their spouses; (2) the identity and relation of jurors,
the parties, counsel and witnesses; and (3) the knowledge of the jurors
concerning the case.
(c) Contact with Trial Jurors.
Following the discharge of a jury from further consideration of a case, no
attorney or party shall individually or through an investigator or any person
acting for such attorney or party ask questions of or make comments to a
member of that jury or members of the family of such a juror that are
calculated merely to harass or embarrass such a juror or member of such
juror’s family or to influence the actions of such a juror or a member of such
juror’s family in future jury service.
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Rule 25.1 Reserved for Future Purposes
Rule 26.1 Reserved for Future Purposes
Rule 27.1 Reserved for Future Purposes
Rule 28.1 Reserved for Future Purposes
Rule 29.1 Reserved for Future Purposes
Rule 30.1 Requests for Jury Instructions
Requests for jury instructions using Federal Jury Practice and Instructions (6th
Ed.) by O’Malley, Grenig, and Lee, Fifth Circuit Pattern Jury Instructions, and
North Carolina Pattern Jury Instructions shall include both the text of the proposed
instruction and a citation reference to the proposed instruction. All other requests
shall include citations to supporting authorities.
Rule 31.1 Taking Verdicts and Polling the Jury
The court may take the verdict of the jury in open court. Unless a defendant has
fled or has been removed from the courtroom for misconduct, he or she must be in
the courtroom when the verdict is announced. Unless the contrary affirmatively
appears on the record, it will be presumed that the parties were present or by their
voluntary absence waived their presence. The jury will not be polled unless a
party requests a poll at the time the verdict is taken or a poll is ordered by the
court.
Rule 32.1 Petition for Disclosure of Presentence or Probation Records
No confidential records of this court maintained by the probation office, including
presentence and probation supervision records, shall be sought by any applicant
except by written petition to this court establishing with particularity the need for
specific information in the records. Whenever a probation officer is served with a
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subpoena or other judicial process seeking the production or disclosure of
presentence and probation records and reports, the probation officer shall petition
the Chief Judge of this court in writing for instructions with respect to responding
to such process. In no event shall production or disclosure be made except
pursuant to an order by a district judge or a magistrate judge unless specifically
authorized by procedures outlined in Local Criminal Rule 32.2(l).
Rule 32.2 Procedures Implementing Sentencing Guidelines
(a) Scheduling of Sentencing.
Sentencing proceedings shall be scheduled by the court at the time
of adjudication of guilt, to be heard not earlier than 60 days following
the adjudication of guilt.
(b) Time for Completion of Presentence Report.
No later than 35 days prior to sentencing, the probation officer shall
complete and disclose the presentence investigation report to the
defendant, the defendant’s attorney, and the attorney for the government.
(c) Time for Filing Objections to Presentence Report.
Within 14 days after disclosure of the presentence investigation report,
the parties shall file, in CM/ECF (access restricted to the court, the
probation office, attorneys of record for the government and for the
relevant defendant), objection(s) to the presentence report including
material information, sentencing classifications, guideline ranges, and
policy statements contained in or omitted from the report.
Alternatively, absent objections, the filed response shall affirmatively
state there no objections to the report. The court may conduct a show
cause hearing and/or disallow objections in any case where such
objections are not timely filed.
(d) Procedure for Resolving Objections to Presentence Report.
After receiving objections from the parties, the probation officer shall
conduct such further investigation as may be necessary. The probation
officer shall confer with the p a r t i e s to discuss and attempt to resolve
contested issues. Thereafter, the probation officer shall make such
revisions to the presentence investigation report as the probation officer
deems appropriate. Unresolved contested issues, including a summary
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of the grounds for the objections, and the probation officer’s comments
on them, shall be contained in an addendum to the presentence
investigation report. The defendant and the government may each file
a memorandum with the court explaining their respective positions on
the unresolved objections. Any such memorandum must be served
on t h e opposing party and the probation office.
(e) Time for Filing Revised Presentence Report.
The revised presentence investigation report and addendum shall be
disclosed to the judge, the defendant, the defendant’s attorney, and the
attorney for the government not later than 7 days prior to the sentencing
hearing. The probation officer’s sentencing recommendation shall be
disclosed only to the judge. In the case of a juvenile, a disposition
hearing must be held no later than 21 court days after the juvenile
delinquency hearing subject to enumerated exceptions (18 U.S.C. §
5037(a)); therefore, the Local Criminal Rules with respect to time periods
for disclosure of the presentence report do not apply.
(f) Expedited Procedures where Defendant Detained.
If it appears that a defendant may be detained pending trial and sentencing
for a period of time exceeding the sentence likely to be imposed under
the guidelines, the court, upon motion by the defendant at the time of
adjudication of guilt, may direct the probation office to expedite the
sentencing timetable.
(g) Court Acceptance of Presentence Report.
The revised presentence investigation report may be accepted by the court
as accurate except as to matters set forth in the addendum which shall
be resolved as provided in Section 6Al.3 of the United States Sentencing
Commission Guidelines Manual.
(h) Service of Presentence Report.
The presentence investigation report shall be deemed to have been
disclosed upon filing the report in CM/ECF, or service, personally or via
United States mail, on an unrepresented defendant. Disclosure of the
presentence investigation report (and any subsequent revisions and
addenda thereto) to the defendant’s attorney is deemed to be disclosed to the
defendant. The defendant’s attorney must review the report with the
defendant forthwith.
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(i) Procedure at Sentencing.
Before final judgment is entered in a case, the court shall disclose to the
defendant, the defendant’s attorney, and the attorney for the government,
the court’s tentative findings of fact and interpretation of applicable
guidelines and shall afford the parties an opportunity to object to said
tentative findings of fact and interpretation of the guidelines.
(j) Receipt of Presentence Report Under Seal.
The final presentence investigation report, addendum, and probation
officer’s recommendation shall be f i l e d i n C M / E C F under seal and
shall be otherwise disclosed only upon order. Defendants and their
attorneys may retain their copies of the presentence investigation report
and addendum. In the event of post- sentencing proceedings, including
appeal, habeas corpus application, or motion for modification or
revocation of probation or supervised release, attorneys of record may,
upon request, be provided a copy of the presentence report by the
probation office.
(k) Role of the Defendant’s Attorney in Presentence Investigation.
Upon adjudication of guilt, the probation officer will initiate the
presentence investigative process. The defendant’s attorney shall advise
the probation officer attending court whether or not the defendant will
submit to an interview with the officer and whether or not the attorney
desires to be present at the interview. The attorney, if attending, and
the defendant shall make themselves available for the interview within
14 calendar days of adjudication.
(l) Disclosure of Presentence Report to Expert Witnesses and Agents.
The parties may provide a copy of the presentence report to expert
witnesses and agents. The parties are responsible for recovering the
report at or prior to sentencing. In the case of a juvenile no
information, including the presentence report, may be released except
pursuant to a court order.
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Rule 33.1 Reserved for Future Purposes
Rule 34.1 Reserved for Future Purposes
Rule 35.1 Reserved for Future Purposes
Rule 36.1 Reserved for Future Purposes
Rule 37.1 Reserved for Future Purposes
Rule 38.1 Reserved for Future Purposes
Rule 39.1 Reserved for Future Purposes
Rule 40.1 Reserved for Future Purposes
Rule 41.1 Reserved for Future Purposes
Rule 42.1 Reserved for Future Purposes
Rule 43.1 Waiver of Appearance in Misdemeanor Cases
In accordance with Fed. R. Crim. P. 43(b)(2), a defendant in misdemeanor cases
may execute a written waiver of appearance which contains the following
statements:
(a) the designation of an attorney to appear in behalf of the defendant and the
granting to such attorney full authority to enter on behalf of the defendant a
plea of guilty, not guilty, or nolo contendere to the offense charged, or to a
lesser offense or offenses in lieu thereof;
(b) a consent to trial by the magistrate judge; and, a waiver of: (1) the right to
be tried and sentenced by a district judge, (2) the right to a jury trial, (3) the
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right to testify in person, and (4) the right to face his or her accusers;
(c) an agreement to be bound by the decisions of the court as in any other case
of adjudication and the entry of judgment subject to the right of appeal as
in any other case; and,
(d) the circumstances which justify the approval of the written waiver of
appearance by the court. The waiver of appearance must be (1) in writing,
(2) signed by the defendant and his or her attorney, (3) consented to by the
attorney for the government, and (4) approved by the court.
Rule 44.1 Appearances of Attorneys in Criminal Cases
(a) Obligation to Notify the Court.
A defendant who does not apply for representation at government expense,
or who is deemed ineligible after application, must inform the court of the
identity of any attorney retained by the defendant within 14 days of his or
her first appearance before a judicial officer in this district. Retention of
an attorney outside this period will not constitute grounds for a continuance
of pretrial proceedings or trial unless the defendant demonstrates due
diligence in attempting to retain an attorney.
(b) Notice of Appearance.
An attorney representing a defendant in a criminal action shall file a Notice
of Appearance with the clerk and serve the attorneys of record with a copy.
The Notice of Appearance shall contain the attorney’s name and the name
of the attorney’s law firm, phone number and state bar number, and shall
state whether the attorney is appointed, retained, or representing the
defendant pro bono. The attorney also shall file contemporaneously a
corporate affiliate/financial interest disclosure statement in accordance with
Fed. R. Crim. P. 12.4 and Local Criminal Rule 12.3.
Rule 44.2 Disclosure Statements in Litigation By Unrepresented Persons
As part of making an appearance in every case, all unrepresented persons not
incarcerated shall file contemporaneously a disclosure statement in accordance
with Fed. R. Crim. P. 12.4 and Local Criminal Rule 12.3.
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Rule 45.1 Reserved for Future Purposes
Rule 46.1 Prohibited Sureties
Members of the bar, administrative officers and employees of this court, and the
marshal and deputies and assistants thereto shall not act as surety in any matter
pending in this court.
Rule 47.1 Motion Practice
(a) General Requirements.
All motions shall be concise and shall state precisely the relief requested.
Motions shall conform to the general motions requirements, standards, and
practices set forth in the applicable Federal Rules of Criminal Procedure
and in Local Criminal Rule 47.3. Time for the filing of pretrial motions in
criminal cases is governed by Local Criminal Rule 12.1.
(b) Supporting Memoranda.
Except for motions which the clerk may grant as specified in Local Criminal
Rule 56.1, all motions made other than in a hearing or trial shall be filed
with an accompanying supporting memorandum in the manner prescribed
by Local Criminal Rule 47.2(a). Where appropriate, motions shall be
accompanied by affidavits or other supporting documents.
(c) Responses to Motions.
Any party may file a written response to any motion. A response shall be
in the form of a memorandum in the manner prescribed by Local Criminal
Rule 47.2(a), and may be accompanied by, without limitation, affidavits and
other supporting documents. Responses and accompanying documents
shall be filed within 14 days after service of the motion in question unless
otherwise ordered by the court or prescribed by the applicable Federal Rules
of Procedure.
(d) Subsequently Decided Controlling Authority.
A suggestion of subsequently decided controlling authority, without
argument, may be filed at any time prior to the court’s ruling and shall
contain only the citation to the case relied upon, if the case is published, or
a copy of the opinion if the case is unpublished.
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(e) Affidavits.
Ordinarily, affidavits will be made by witnesses themselves and not by
attorneys. However, affidavits may be made by an attorney for a person if
the sworn facts are known to the attorney or the attorney can swear to them
upon information and belief, and
(1) the facts relate solely to an uncontested matter; or
(2) the facts relate solely to a matter of formality and there is no reason
to believe that substantial evidence will be offered in opposition to
the facts; or
(3) the facts relate solely to the nature and value of the legal services
rendered for the person by the attorney or the attorney’s law firm; or
(4) the refusal to accept the affidavit would work a substantial hardship
on the person and the court finds that its acceptance of the affidavit
would not be such as to require that the attorney or the attorney’s
law firm be disqualified from continuing to appear for the person.
(f) Hearings on Motions.
Hearings on motions may be ordered by the court in its discretion. Unless
so ordered, motions shall be determined without hearing.
(g) Frivolous or Delaying Motions.
Where the court finds that a motion is frivolous or filed for delay, costs
may be assessed against the person filing such motion or the person’s
attorney.
(h) Motions for an Extension of Time to Perform an Act.
(1) Each motion for an extension of time to perform an act required or
allowed to be done within a specified time must show good cause.
The motion must also show that the movant has in good faith
conferred or attempted to confer with all parties and nonparties
whose interests are directly affected by the motion, including
unrepresented parties and nonparties but excluding incarcerated
unrepresented parties and nonparties. The motion must identify the
views of each party or nonparty consulted, as well as the efforts to
consult with any parties and nonparties who did not respond. The
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motion must be accompanied by a separate proposed order granting
the motion.
(2) Except as ordered by the court, designated secured leave under Rule
26 of the General Rules of Practice for the Superior and District
Courts of the State of North Carolina shall not be the sole basis for
an extension of time or continuance.
(i) Motion Practice in Proceedings Seeking Relief Under 28 U.S.C. §
2255.
Local Civil Rule 7.1 and 7.2 shall govern motion practice in a proceeding
seeking relief under 28 U.S.C. § 2255.
Rule 47.2 Supporting Memoranda
(a) Form and Content.
A memorandum shall comply with Local Criminal Rule 47.3 and shall
contain:
(1) a concise summary of the nature of the case;
(2) a concise statement of the facts that pertain to the matter before the
court for ruling;
(3) the argument (brevity is expected) relating to the matter before the
court for ruling with appropriate citations in accordance with
subsections (b), (c) and (d) of this rule;
(4) copies of any decisions in cases cited as required by subsections (c)
and (d) of this rule
(b) Citation of Published Decisions.
Published decisions cited should include parallel state court citations, the
year of the decision, and the court deciding the case. The following are
illustrations:
(1) State Court Citation: Rawls v. Smith, 238 N.C. 162, 77 S.E.2d 701
(1953).
(2) District Court Citation: Smith v. Jones, 141 F. Supp. 248 (E.D.N.C.
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1956).
(3) Court of Appeals Citation: Smith v. Jones, 237 F.2d 597 (4th Cir.
1956).
(4) United States Supreme Court Citation: Smith v. Jones, 325 U.S. 196
(1956). United States Supreme Court cases should be cited in
accordance with current Bluebook form.
(c) Citation of Authorities Not Appearing in Certain Published Sources.
Any authority (e.g., court decision, administrative decision, regulation) that
is not available on LexisNexis or Westlaw may be cited if a copy of the
authority is filed as an exhibit to the motion or memorandum in which it is
cited.
(d) Citation of Unpublished Decisions.
A decision designated as “unpublished” by a United States District Court
may be considered by this court. A decision designated as “unpublished”
by a United States Court of Appeals will be given due consideration and
weight but will not bind this court. In accordance with subsection (c) of
this rule, if such an “unpublished” decision is not available on LexisNexis
or Westlaw, a copy of it shall be filed as an exhibit to the motion or
memorandum in which it is cited.
(e) Provision of Authorities.
If an authority is not reasonably available to an opposing party or nonparty,
the moving person citing that authority shall furnish the authority to the
opposing party or nonparty upon request.
(f) Length of Memoranda.
Unless the court orders otherwise, memoranda must conform to either the
page limits or word limits below.
(1) Headings, footnotes, citations, and quotations in a memorandum
count toward the page and word limits. The case caption, the
signature block, any required certificates, any table of contents, any
table authorities, and any attachments, exhibits, affidavits, and other
addenda to a memorandum do not count toward the page and word
limits.
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(2) Page Limits.
(A) A memorandum in support of or in opposition to a motion
shall not exceed 30 pages in length.
(B) A reply or surreply memorandum (where allowed) shall not
exceed 10 pages in length.
(3) Word Limits.
(A) A memorandum in support of or in opposition to a motion
shall not exceed 8400 words.
(B) A reply or surreply memorandum (where allowed) shall not
exceed 2800 words.
A memorandum under this subsection (f)(3) must contain a
certificate, signed by the attorney or unrepresented party, attesting
that the memorandum complies with the applicable word limit.
The signer of the certificate may rely on the word count generated
by word processing software, as long as the software counts the
elements required by subsection (f)(1). The certificate must state
the number of the words in the memorandum.
Rule 47.3 Form of Pleadings, Motions and Documents
All pleadings, motions, discovery procedures, memoranda and other papers filed
with the clerk or the court shall:
(a) be double-spaced on single-sided, standard letter size (8 ½ x 11) paper, with
all typed matter appearing in at least 11 point font size with a one inch
margin on all sides;
(b) state the court and division in which the action is pending;
(c) except for the initial filing, bear the case number assigned by the clerk;
(d) contain the caption of the case;
(e) if applicable, state the title of the pleading, motion, discovery procedure or
document and the federal statute or rule number under which the party is
proceeding;
(f) contain the individual name, firm name, address, telephone number, fax
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number, e-mail address and state bar identification, where applicable, of all
attorneys who appear for the filing person, including any attorney making a
special appearance pursuant to Local Criminal Rule 57.1(e);
(g) bear the date when it was signed;
(h) be signed by an attorney or unrepresented person;
(i) include below the filer’s signature, on the line immediately below, the typed
or printed name in the same form as the signature. In preparation of
documents for signature by a judge or magistrate judge, a blank space shall
be provided below the signature line in which the name may be typed or
printed;
(j) have each page numbered sequentially; and
(k) absent an order of the court upon a showing of good cause, be in the English
language unless translations are furnished. Any English translation shall
include a certification that the translation is accurate. Partial translations
are acceptable if the person filing the document believes that the portion
translated is sufficient to address the issues being litigated. Within 14 days
of the filing of the translated document, any opposing party or nonparty may
file objections to the translation or to the partial nature of the translation, or
may file additional partial or complete translations of the document as it
believes necessary.
The following forms are examples to be followed:
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. __:____-___-__
UNITED STATES OF AMERICA )
)
v. ) MOTION TO TRANSFER
) PROCEEDING
) FED. R. CRIM. P. 21(a)
AARON T. JONES, )
Defendant. )
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(Closing)
This ____ day of January 202_.
__________________________
John B. Counselor
Abbot, Ball and Counselor
Attorneys at Law
200 Main Street
Post Office Box 50
Raleigh, North Carolina 27602
[email protected]
(919) 878-8787
Fax (919) 878-8000
State Bar No.
Attorney for Defendant
Rule 47.4 Form of Exhibits to Motions
Exhibits containing double-sided documents are not permitted and will not be
considered by the court. Condensed deposition transcripts are discouraged.
[Rule 47.5] [Implementing Requirements of the E-Government Act of 2002]
(Rescinded eff. December 1, 2007)
See Fed. R. Civ. P. 5.2
Rule 47.6 Ex Parte Motions
Unless the related case is already under seal, an ex parte motion shall only be sealed
upon specific order of the court. A motion requesting permission to file an ex parte
motion under seal shall include the ex parte motion as an attachment. The clerk
shall treat the motion to seal and attachment as sealed pending order of the court.
Rule 48.1 Reserved for Future Purposes
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Rule 49.1 Filing and Service of Papers
(a) Electronic Filing.
(1) Documents submitted for filing.
Unless otherwise permitted by the Electronic Case Filing
Administrative Policies and Procedures Manual (Policy Manual), or
otherwise authorized by the assigned judge, all documents
submitted for filing shall be filed electronically in searchable text
format using the Case Management/Electronic Case Filing
system(CM/ECF) and in accordance with the Policy Manual. A
system generated Notice of Electronic Filing (NEF) shall be the
official confirmation of electronic filing. Any document
electronically filed or converted by the clerk’s office to electronic
format shall be the official record of the court. As such, the clerk’s
office will not maintain a paper record of these documents. The
clerk’s office will not accept any e-mail or facsimile transmission
for filing unless ordered by the court.
(2) Court-Generated Documents
All orders, decrees, judgments, and records of criminal proceedings
will be filed in accordance with the Policy Manual, which shall
constitute entry of that document on the criminal docket kept by the
clerk in accordance with Fed. R. Crim. P. 55 and as contemplated
by Fed. R. App. 4(b). All signed orders will be filed electronically
by the court or court personnel. Any order or other court-issued
document filed electronically without the original signature of a
judge or clerk has the same force and effect as if the judge or clerk
had signed a paper copy of the order or other court-issued document
and it had been entered on the docket in a conventional manner.
Orders may be ‘text only’ entries on the docket, without an attached
document. Such orders are official and binding.
(b) Registered User.
Only an attorney who is registered in CM/ECF may file documents
electronically.
(c) Authorized User of CM/ECF Password.
No attorney shall knowingly permit or cause to permit the attorney’s
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CM/ECF password to be used by anyone other than an authorized employee
of the attorney’s law firm. No person shall knowingly use or cause another
person to use the password of a registered attorney unless such person is an
authorized employee of the attorney’s law firm.
(d) Entry on Docket.
The electronic filing of a document in accordance with the Policy Manual
shall constitute entry of that document on the docket kept by the clerk under
Fed. R. Crim. P. 55 Except in the case of documents first filed in paper, a
document filed electronically is deemed filed at the date and time stated on
the NEF that is automatically generated by CM/ECF.
(e) Service of Document.
(1) Documents Submitted for Filing
Except as provided in Section VI.F of the Policy Manual and
subsection (f) below of this rule, when a document is filed in
CM/ECF, it is served electronically on registered users in
compliance with Fed. R. Crim. P. 49(a)(3)(A), and the time to
respond shall be calculated from the date of the NEF, regardless of
whether other means of service are used.. Non-registered persons
must be served with a copy of any document filed electronically in
accordance with the Federal Rules of Criminal Procedure. Service
on any attorney currently appearing on behalf of a person shall be
service on that person.
(2) Court-Generated Documents.
When more than one attorney appears on behalf of a person in a
case, and not all of the attorneys for that person are registered filing
users, service of any court-generated document (e.g., orders,
notices) will only be made on the attorneys registered in CM/ECF.
It is the responsibility of the non-registered attorneys to make
arrangements with the attorney users for that person to remain
apprised of the court-generated filings in that case. Non-registered
attorneys will not receive paper copies from the court.
(f) Exceptions to Electronic Filing.
(1) Documents Excluded From Electronic Filing.
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Unless otherwise ordered by the court, documents filed by an
unrepresented person and those documents listed in Section V.A of
the Policy Manual, shall be filed in paper form and are excluded
from electronic filing. Any document filed in paper form that is not
exempt pursuant to this section must be accompanied by a motion
for leave to file the document and a proposed order. When filed in
paper form, the document must have an original signature of the
attorney or each unrepresented person A document filed in paper
form shall be deemed filed on the date that it is received by the clerk
except that for incarcerated unrepresented persons a document filed
in paper form is deemed filed on the date that it is deposited in the
institution’s mailing system.
(2) Service of Documents Filed by an Unrepresented Person.
Unless the document is listed in Section V.A. of the Policy Manual,
the clerk shall scan and electronically file a document submitted for
filing by an unrepresented person. Except as provided for in
Section VI.F of the Policy Manual, the electronic filing of the
document by the clerk constitutes service on registered users in
compliance with Fed. R. Crim. P. 49(a)(3)(A), and the deadline to
respond to the document shall be calculated from the date of the
NEF, regardless of whether other means of service are used. An
unrepresented person must separately serve any non-registered
person as provided in Fed. R. Crim. P. 49(a)(3)(B) or (a)(4).
(3) Service of Other Documents Excluded From Electronic Filing.
Any document filed in paper form pursuant to Section V.A of the
Policy Manual or with leave of court must be served on opposing
parties as provided in Fed. R. Crim. P. 49(a). Service on any
attorney currently appearing on behalf of a person shall be service
on that person.
(g) Privacy Protection for Filings Made with the Court
The responsibility for redacting personal identifiers rests solely with the
filer. The clerk will not review each filed document and any attachments
for compliance with Fed. R. Crim. P. 49.1.
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Rule 50.1 Definition of Related Criminal Cases
“Related cases” are matters which, by sharing common events or defendants, would
entail substantial duplication of labor in pretrial, trial, or sentencing proceedings if
heard by different judges, including prior cases that have been closed or dismissed.
Examples of related cases may include but are not limited to:
(a) matters arising out of the same conspiracy, common scheme, transaction,
series of transactions or events; or
(b) matters involving one or more defendants in common.
Rule 50.2 Notice of Related Cases
(a) Notice by the government.
Upon determining that a later filed case and an earlier filed case are related
cases as defined in Local Criminal Rule 50.1, the attorney for the
government shall as soon as reasonably practicable file and serve in the later
filed case a Notice of Related Criminal Case identifying the earlier field case
and setting forth the reason why the cases are related. Whenever
practicable , the government shall file the Notice with the indictment or
information and serve it on the defendant’s attorney promptly after that
attorney’s appearance in the case.
(b) Notice by defendant.
The defendant may file a Notice of Related Cases at such time as the
defendant becomes aware that a later filed case and an earlier filed case are
related cases. The Notice must identify the earlier filed case and set forth
the reasons why the cases are related.
(c) Responses.
Any party may file a response to another’s party Notice of Related Cases or
to the sua sponte reassignment of a case under this rule or Local Criminal
Rule 50.4 within 7 days after the Notice is served, or sua sponte
reassignment is made, or within such time as the court may set. Whenever
practicable, the court will resolve the assignment of the case within 14 days
thereafter.
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Rule 50.3 Criminal Transfers
(a) Indictment When Plea Pending.
Whenever an information or indictment originating in another district is
transferred to this court pursuant to Fed. R. Crim. P. 20 and involves a
defendant also proceeded against by indictment or information in this
district, the clerk shall directly assign the Rule 20 transferred matter to the
calendar of the judge to whom the matter arising in this district is assigned.
If an indictment is returned in this district against a defendant who has a
Rule 20 plea pending, the indictment shall be directly assigned to the judge
to whom the Rule 20 plea has been assigned.
(b) Transfers of Jurisdiction.
(1) Whenever supervision of a defendant is transferred to this court
from another district that is related to a pending or closed case in
this district, and that fact has been brought to the attention of this
court, then the incoming transfer of jurisdiction shall be directly
assigned to the judge to whom the related case is assigned.
(2) If an incoming transfer of jurisdiction is related to more than one
criminal case with more than one judge assigned, and this fact is
brought to the attention of the court, then the incoming transfer of
jurisdiction shall be directly assigned to the judge to whom the
earlier case is assigned, unless otherwise directed by the court.
(3) If the incoming transfer of jurisdiction is a return of case that
originated in this district, and this fact is brought to the attention of
the court, then the transfer of jurisdiction shall be filed in the
defendant’s case in this district instead of opening a new case, unless
otherwise directed by the court.
Rule 50.4 Indictment or Information Previously Dismissed
Whenever an indictment or information has been dismissed before trial, any new
indictment or information involving the same transaction or series of transactions
and at least a majority of the same defendants shall be directly assigned to the judge
to whom the first indictment or information was assigned.
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Rule 51.1 Reserved for Future Purposes
Rule 52.1 Reserved for Future Purposes
Rule 53.1 Photographing and Reproducing Court Proceedings
The taking of photographs or broadcasting or recording (in any form) of
proceedings in the courtroom, court offices, or corridors immediately adjacent
thereto during judicial proceedings or during any recess of the court is prohibited
except as set forth herein. The taking of photographs or broadcasting or recording
of ceremonial proceedings, such as naturalization proceedings, the administration
of oaths of office to officers of the court, presentation of portraits, and other
ceremonial occasions, may be allowed with the permission of the presiding judge
and under the supervision and control of the court.
Rule 54.1 Reserved for Future Purposes
Rule 55.1 Exhibits
The clerk shall be the custodian of all exhibits admitted into evidence. Upon 14
days’ notice by mail to all parties, the clerk may, within 30 days after the entry of
final judgment, destroy or otherwise dispose of the exhibits.
Rule 55.2 Sealed Documents
(a) Filing Sealed Documents.
No cases or documents may be sealed without an order from the court. A
person desiring to file a document under seal must first file a motion seeking
leave in accordance with Section V.G of the CM/ECF Policy Manual. All
sealed and proposed documents shall be maintained electronically in
CM/ECF unless otherwise ordered by the court. First-time filers are
strongly encouraged to call the CM/ECF Help Desk at 866-855-8894.
(b) Proposed Sealed Documents.
(1) Unless otherwise permitted by Section V.G of the CM/ECF Policy
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Manual or order of the court, all proposed sealed documents must
be accompanied by a motion to seal. The motion to seal shall be a
public document and noted with a docket entry that gives the public
notice of the request to seal. The docket entry for the proposed
sealed document shall identify it as a “proposed” sealed document
and describe the type of document it is (e.g., affidavit, record) and
the substantive motion or other specific proceedings in the case to
which it relates (e.g., in support of defendant’s motion to compel at
D.E. ____). The proposed sealed document is deemed to be
provisionally sealed until the court rules on the motion to seal.
(2) If the motion to seal is granted, the clerk will remove the word
“proposed” from the docket entry.
(3) If the motion to seal is denied, the document will remain sealed and
the word “proposed” will remain in the docket entry for the
document in order to preserve the record. The document will not
be considered by the court, except as provided herein or as otherwise
ordered by the court. A person desiring to remove a proposed
sealed document or docket entry therefor from the docket sheet must
file a motion to strike in accordance with Local Criminal Rule 47.1.
A person whose motion to seal is denied but that desires the court to
consider a proposed sealed document as a publicly filed document
shall file the document as a public document within 3 days after
entry of the order denying the motion to seal or within such other
period as the court directs.
(c) Return of Sealed Documents.
(1) For those sealed documents not scanned into CM/ECF, upon 14
days’ notice to all parties, the clerk may destroy or dispose of the
sealed documents, unless the person who filed them retrieves them
from the clerk. This notice may occur no earlier than 30 days after
the judgment of conviction has become final and the one-year period
of limitation within which to file a motion under 28 U.S.C. § 2255
has expired, and in the event a § 2255 motion is filed, then after the
conclusion of the litigation. If the trial results in an acquittal or
dismissal as to all counts and all defendants, then the 30-day period
would begin to run from the date of the jury verdict or the court’s
order of acquittal or dismissal, unless the government appeals, in
which case the period would begin to run after that appellate
litigation has been completed and any proceedings on remand have
become final.
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.
(2) If, during the fourteen-day period after the clerk has given notice of
intent to dispose of the sealed documents, any person files an
objection to such disposition, the presiding judge in the case shall
resolve the dispute over the proposed disposition.
(d) Procedures for Manual Filers.
For those persons who are required to manually file all court documents
(i.e., unrepresented persons), proposed sealed documents shall be delivered
to the clerk’s office in paper form in a sealed envelope. The proposed
sealed documents must be accompanied by a motion to seal in accordance
with Section V.G of the CM/ECF Policy Manual. Both the documents and
the envelope shall be prominently labeled “UNDER SEAL.” The envelope
must also have written on it: the case caption; the case number; the title of
the document or, if the title contains proposed sealed information, the title
omitting the proposed sealed information; and the following notice in all
capital letters and prominently displayed:
PROPOSED SEALED DOCUMENTS: SUBMITTED PURSUANT TO
MOTION TO SEAL.
Rule 56.1 Courts and Clerks
(a) Court in Continuous Session.
This court shall be in continuous session in all divisions of the district on all
business days throughout the year. All matters not reached at the regular
sessions of court are deemed to be in an open status and subject to being
called for disposition before the next regular session of court upon
reasonable notice to the interested parties.
(b) Assignment of Cases to a Division.
The clerk shall assign all criminal indictments to a division when an
indictment is filed or transferred. If the indictment alleges the crime
occurred within the district, the clerk shall assign the action to the division
in which the crime is alleged to have occurred. In cases where it is not
alleged that the crime occurred in the district or in cases in which it is unclear
in which division the alleged crime occurred, the clerk shall assign the
indictment to the division in which the first named defendant who resides
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within this district resides. In all other instances, an indictment shall be
assigned to a division in the discretion of the clerk.
(c) Orders and Judgments.
The clerk or deputy clerk is authorized to enter the orders and judgments
listed below without further direction of the court. However, such action
may be suspended, altered, or rescinded by the court for cause shown.
(1) Consent orders for substitution of attorneys.
(2) Orders extending for a reasonable amount of time the period within
which an act must be performed under the local rules of this court.
(3) Orders canceling liability on bonds.
(4) Orders changing the time of opening and adjourning court in the
absence of the judge.
(5) Certification of law students and supervising attorneys pursuant to
Local Civil Rule 83.2.
(6) Any other motion, rule or order which may be granted of course or
without notice.
Rule 57.1 Attorneys
(a) Roll of Attorneys.
The bar of this court consists of those previously admitted and those
hereafter admitted as prescribed by this Local Criminal Rule 57.1.
(b) Eligibility.
A member in good standing of the bar of the Supreme Court of North
Carolina is eligible for admission to the bar of this court.
(c) Procedure for Admission.
Before being presented to the court to take the required oath, an applicant
for admission shall certify in a written application that such applicant:
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(1) Is a member in good standing of the bar of the Supreme Court of
North Carolina; and
(2) Has studied the Federal Rules of Civil and Criminal Procedure, the
Federal Rules of Evidence, and the local rules of this court.
In addition to these certifications, the written application shall contain the
certification of two attorneys who are members in good standing of the bar
of this court that the applicant is of good moral character and professional
reputation and meets the requirements for admission. An applicant may be
admitted to practice in this court by a district judge, bankruptcy judge, or
magistrate judge of this court or of the United States District Court for the
Middle District or Western District of North Carolina upon oral motion by
a member of the bar of this court. If the motion for admission is granted, the
applicant shall take the following oath or affirmation:
I do solemnly swear [affirm] that, to the best of my knowledge and
ability, I will support and defend the Constitution of the United
States against all enemies, foreign and domestic, and that I will bear
true faith and allegiance to the same; that I take this obligation
freely, without any mental reservation or purpose of evasion; and
that I will conduct myself as an attorney of this court, uprightly and
according to law. So help me God. [This is my solemn affirmation.]
Following the administration of the oath or affirmation, the application shall
be signed by the district judge, bankruptcy judge, or magistrate judge and
the applicant shall file with the clerk the application, accompanied by the
filing fee required by the Administrative Office of the United States Courts
and this court for admission to practice in this district. The clerk shall then
issue the applicant a certificate of admission to the bar of this court.
(3) Current law clerks to district judges, magistrate judges, and
bankruptcy judges within this District shall be admitted to the bar of
this court without payment of an admission fee.
(d) Representation by Local Attorneys Who Must Sign All Pleadings.
Persons appearing in criminal actions in this court, except governmental
agencies and unrepresented parties, must be represented by at least one
member of the bar of this court who shall sign all documents filed in this
court, including his or her state bar number and fax number in the signature
block on all pleadings. If an attorney appears solely to bring a person in
compliance with this local rule, he or she shall in each instance designate
himself or herself “Local Criminal Rule 57.1(d) Attorney.” In signing the
pleading, motion, discovery request, or other document, the attorney
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certifies that he or she is an authorized representative for communication
with the court about the litigation and that the document conforms to the
practice and procedure of this court. For failure to comply with the
requirements of this rule, the court may on motion or its own initiative
disqualify individuals from serving as local attorneys. Signatures in the
following form shall be sufficient to comply with this local rule. Local
Criminal Rule 57.1(d) Local Attorneys must include the state bar number
and fax number in the signature block on all pleadings:
______________________________
Jane M. Jones
Jones, Jones and Jones
P.O. Box 500
New York, NY 10050
(212) 555-1212
[email protected]
State Bar No.
Attorney for Defendant
______________________________
John B. Counselor
Abbott, Ball and Counselor
P.O. Box 50
Raleigh, NC 27602
[email protected]
(919) 878-8787
Fax (919) 878-8000
State Bar No.
Local Criminal Rule 57.1(d) Attorney for
Defendant
(e) Appearances by Attorneys Not Admitted in the District – Special
Appearance.
(1) Attorneys who are members in good standing of the bar of a United
States Court and the bar of the highest court of any state or the
District of Columbia may practice in this court for a particular case
in association with a member of the bar of this court. By filing a
Notice of Special Appearance (available on the district’s website),
completing an Electronic Filing Attorney Registration Form, and
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complying with Section IV.D of the Policy Manual, an attorney
agrees that:
(a) the special appearance attorney will be responsible for
ensuring the presence of an attorney who is familiar with the
case and has authority to control the litigation at all
conferences, hearings, trials and other proceedings;
(b) the attorney submits to the disciplinary jurisdiction of the
court for any misconduct in connection with the litigation in
which the attorney is specially appearing;
(c) for purposes of Fed. R. Civ. P. 11, the Federal Rules of Civil
and Criminal Procedure and the Local Criminal Rules of this
court, the special appearance attorney’s electronic signature
shall carry the same force and effect as an original signature;
and
(d) the special appearance attorney shall submit any document
to Local Criminal Rule 57.1(d) counsel for review prior to
filing the document with this court.
(2) An attorney who is not a member of the bar of this court will not
receive electronic notification until the attorney becomes a
registered CM/ECF filer with this court and files a Notice of Special
Appearance.
(3) A member of the bar of this court who accepts employment in
association with a special appearance attorney is responsible to this
court for the conduct of the litigation of the proceeding, must be a
CM/ECF registrant, and shall review for submission by the special
appearance attorney all pleadings and papers electronically filed.
The responsibility of the member of the bar who accepts
employment in association with a special appearance attorney and
designates him or herself as Local Criminal Rule 57.1(d) local
counsel shall be governed by Local Criminal Rule 57.1(d).
(4) Any document filed by a special appearance attorney that does not
comport with associated Local Criminal Rule 57.1(d) attorney’s
standards may be objected to. Any such objection must be filed
within 7 days of the issuance of the NEF for the document.
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(5) A special appearance is not a substitute for admission to the bar of
this court;it is intended only to facilitate occasional appearances.
Unless otherwise ordered for good cause shown, no attorney may be
admitted pursuant to Local Criminal Rule 57.1 in more than three
unrelated cases in any twelve-month period, nor may any attorney
be admitted pursuant to Local Criminal Rule 57.1 in more than three
active unrelated cases at any one time.
(f) Pleadings, Service and Attendance by Local Attorneys in Cases
Where Out-of-State Attorneys Appear by Special Appearance.
Pleadings and other documents filed in a case where an attorney appears
who is not admitted to the bar of this court shall contain the individual name,
firm name, address, and phone number of both the attorney making a special
appearance under this local rule and the associated local attorney. As part
of making an appearance in every case, an attorney also shall file
contemporaneously a corporate affiliate/financial interest disclosure
statement in accordance with Fed. R. Crim. P. 12.4 and Local Criminal Rule
12.3. The service of all pleadings and notices as required shall be sufficient
if served only upon the associated local attorney. The local attorney shall
attend all court proceedings unless excused by the court.
(g) Withdrawal of Appearance.
No attorney or law firm whose appearance has been entered shall withdraw
his or her appearance or have it stricken from the record except with leave
of the court. However, if an attorney within the same firm replaces counsel
for a party, the new attorney may file a notice of substitution of counsel and
the court will substitute the attorneys without order of the court.
(h) Courtroom Decorum.
Attorneys shall conduct themselves with dignity and propriety. Attorneys
shall rise when addressing the court, and all statements to the court shall be
made from a counsel table or from behind the lectern facing the court.
Attorneys shall not approach the bench unless requested to do so by the
court or unless permission is granted upon the request of the attorney.
(i) Questioning of Witnesses.
Only one attorney for each party may question a particular witness unless
the court allows otherwise. Attorneys shall remain seated while questioning
witnesses.
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(j) Professional Standards.
The ethical standard governing the practice of law in this court is the
Revised Rules of Professional Conduct, now in force and as hereafter
modified by the Supreme Court of North Carolina, except as may be
otherwise provided by specific rule of this court. Attorneys are directed to
advise the clerk within 14 days of disciplinary action taken against them
resulting in suspension or disbarment. The disciplinary procedures of this
court shall be on file with the clerk and furnished to the attorney upon
request.
(k) Admission of Attorneys Previously Admitted to the United States
District Courts for the Middle or Western Districts of North Carolina.
Attorneys already admitted to the bar of either the United States District
Court for the Middle District of North Carolina or the United States
District Court for the Western District of North Carolina may be admitted
to the bar of this court upon tendering the application and fees required by
subsection (c) of this rule, together with a copy of the order admitting the
attorney to practice in one of the other districts, without the necessity of
taking the oath that is otherwise required and without obtaining the
character certification by two members of the bar of this court.
(l) Electronic Devices in Courtroom Facilities.
(1) Attorneys are subject to the Standing Order on Prohibition of
Wireless Communication Devices in Courtroom Facilities dated
August 15, 2005, 05-PLR-7. To be exempted from the Order,
attorneys will be required to present a bar card to the court security
officer to retain a cellular phone, smartphone, laptop, tablet, or other
electronic device. If an attorney fails to present a bar card, the
attorney will be prohibited from bringing any such item into the
courthouse.
(2) By bringing an electronic device into the courthouse, an attorney
agrees to the following:
(A) The electronic device will not be used to record, broadcast,
or transmit any video images or audio sounds.
(B) While in the courtroom, the attorney will ensure that no
sounds are emitted from the device.
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(C) Upon entering the United States District Courthouse in the
Eastern District of North Carolina, the electronic device will
be screened by the Court Security Officers using visual
observation, x-ray scanning, chemical detection devices or
other screening methods.
(D) The attorney will maintain custody over the electronic
device and will not allow it to be used by anyone else unless
the attorney has been given Court permission.
(E) Failure to comply with these provisions may result in loss of
the attorney’s right to use an electronic device in the United
States District Courthouses in the Eastern District of North
Carolina, confiscation of the device, or other court sanctions,
including but not limited to contempt of court.
(3) Persons using wireless communication devices for evidence
presentation or for other similar purposes must notify the court prior
to the commencement of any proceeding that such a device is in their
possession.
(4) Judges may permit additional exceptions to or impose additional
limitations on the use of wireless electronic devices within
courtroom facilities at their discretion.
Rule 57.2 Student Practice Rule
(a) Compliance with Rule.
Students may participate as attorneys in civil and criminal cases in this court
subject to their compliance with all of the requirements of this rule.
(b) Eligibility.
An eligible student must:
(1) be duly enrolled in a law school accredited or provisionally
accredited by the American Bar Association;
(2) have completed at least three semesters of legal studies;
(3) have knowledge of the Federal Rules of Civil and Criminal
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Procedure, the Federal Rules of Evidence, the Code of Professional
Responsibility, and the local rules of this court;
(4) be supervised by a supervising attorney as defined in subsection (c)
of this rule
(5) be certified by the Dean of the Law School where the student is
enrolled, or the Dean’s designee, as being of good character and
sufficient legal ability and adequately trained to fulfill the
responsibilities of a legal intern to both the client and the court;
(6) be certified by the court to practice pursuant to subsection (d) of
this rule; and
(7) decline personal compensation for his or her legal services from a
client or any other source.
(c) Supervising Attorney.
A supervisor must:
(1) either (i) have faculty or adjunct faculty status at a law school at
which a portion of the supervisor’s duties includes supervision of
students in a clinical program; or (ii) be a member of the bar of this
court for at least two years, who in the determination of the court, is
competent to carry out the role of supervising attorney;
(2) be admitted to practice in this court;
(3) be certified by the court as a student supervisor;
(4) be present with the student at all times in court, and at other
proceedings in which testimony is taken;
(5) co-sign all pleadings or other documents filed with the court;
(6) assume full personal and professional responsibility for a student’s
guidance and any work undertaken and for the quality of the
student’s work, and to be available for consultation with represented
clients;
(7) assist and counsel the student in activities mentioned in subsection
(e) of this rule, and review such activities with the student, to the
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extent required for proper practical training of the student and the
protection of the client; and
(8) supplement oral or written work of the student as necessary to ensure
proper representation of the client.
(d) Certification of Student and Supervisor.
(1) Student. The court’s certification of a student to practice under
this rule shall be filed with the clerk and shall remain in effect for
18 months or until the student graduates from law school, whichever
is earlier. Certification to appear generally or 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.
(2) Supervising Attorney. Certification of the supervising attorney
shall be filed with the clerk, and shall remain in effect indefinitely
unless withdrawn by the court, in its discretion, and without any
showing of cause.
(e) Activities.
A certified student may under the personal supervision of his or her
supervisor:
(1) represent any client including federal, state or local governmental
bodies, if the client on whose behalf the certified student is
appearing has consented in writing to that appearance and the
supervising attorney has given written approval of that appearance;
(2) represent a client in any criminal, civil or administrative matter;
however, the court retains the authority to limit a student’s
participation in any individual case;
(3) in connection with matters in this court, engage in other activities on
behalf of the client in all ways that a licensed attorney may, under
the general supervision of the supervising attorney; however, a
student shall make no binding commitments on behalf of a client
absent prior client and supervisor approval, and in any matters,
including depositions, in which testimony is taken the student must
be accompanied by the supervising attorney. Documents or papers
filed by the student shall be read, approved, and co-signed by the
supervising attorney. The court retains the authority to establish
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exceptions to such activities; and
(4) prior to oral participation by a certified student in a hearing or trial,
the supervising attorney shall provide the court with a written
statement of the anticipated scope of the student’s participation.
Rule 57.3 Change of Address
All attorneys and unrepresented persons in a criminal action must notify the court
in writing within 14 days of any change of address. Failure to notify the court in
a timely manner of an address change may result in dismissal of the action or the
imposition of such other relief that the court deems just and proper.
Rule 57.4 Correspondence
Correspondence addressed to the court shall indicate that copies have been
transmitted to all other parties; failure to transmit the same to all other parties may
result in sanctions by the court. Such correspondence shall not become a part of
the record in the case.
Rule 57.5 Disciplinary Rules
The rules governing the discipline of attorneys set forth in Local Civil Rule 83.7a -
83.7k are also applicable to attorneys practicing in criminal cases.
Rule 57.6 Courtroom Technology
If a party or nonparty needs to use any type of courtroom technology for a hearing
or trial, including but not limited to any audio equipment, video equipment,
document presentation system, and jury evidentiary recording system, the party or
nonparty must notify the case manager and request training from the court’s
information technology staff for the person or persons who will be operating the
courtroom technology. Unless excepted by the clerk, no later than 7 days before
the scheduled proceeding, the party or nonparty must file a certification provided
by the court’s technology staff that training has been completed.
Rule 58.1 Magistrate Judges
(a) Disposition of Misdemeanor Cases -- 18 U.S.C. § 3401.
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A magistrate judge may:
(1) try persons accused of, and sentence persons convicted of,
misdemeanors committed within this District in accordance with 18
U.S.C. § 3401;
(2) direct the probation service 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.
(b) Appeal from Judgments in Misdemeanor Cases -- 18 U.S.C. § 3402.
A defendant may appeal a judgment of conviction by a magistrate judge in
a misdemeanor case by filing a notice of appeal and paying the filing fee as
set out in the District Court Miscellaneous Fee Schedule within 14 days
after entry of the judgment, and by serving a copy of the notice upon the
attorney for the government. The scope of appeal shall be the same as on an
appeal from a judgment of the district court to the court of appeals.
(1) Upon receipt of the notice of appeal, the clerk shall docket the appeal
and assign the case to a district judge.
(2) The record on appeal shall consist of the original papers and exhibits
filed in the proceedings before the magistrate judge and the record
of proceedings.
(3) Unless excused by order of the district judge, every appellant shall
be responsible for preparation of a typewritten transcript of the
proceedings before the magistrate judge from which an appeal has
been taken. Preparation of the transcript should be coordinated
with the clerk of court. A copy of the record of such proceedings
shall be made available at the expense of the court to a person who
establishes by affidavit the inability to pay or give security therefore.
(4) Within 21 days of the date on which the transcript is filed in the
clerk’s office, or if there is to be no transcript, within 21 days of the
filing of the notice of appeal, the appellant shall serve and file a
memorandum which shall enumerate each reversible error claimed
to have occurred in the proceedings before the magistrate judge and
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shall explain the factual and legal basis for each claimed error, with
citations to the record and to pertinent legal authorities, and any
objections to the transcript. Within 21 days of service of the
appellant’s memorandum, the appellee shall serve and file a
memorandum that responds to each claim of error, and any
objections to the transcript. The appellant may serve and file a
reply brief within 7 days of service of the appellee’s brief. All
memoranda shall conform to the requirements and length
restrictions of Local Criminal Rules 47.2 and 47.3. Reply briefs
shall be limited to 10 pages.
(5) The district judge to whom the appeal is assigned may hear oral
argument or may decide the appeal on the briefs. Requests for oral
argument shall be made at the time briefs are filed and shall be
granted at the discretion of the district judge.
Rule 58.2 Forfeiture of Collateral in Lieu of Appearance
As provided in Fed. R. Crim. P. 58(d)(1), a person who is charged with a petty
offense or other misdemeanor, whether it is a violation of a federal statute or
regulation, or a violation of an assimilated state law, may be permitted, in lieu of
appearance, to post collateral for the offense, waive appearance before the court,
and consent to forfeiture of the collateral. The offenses for which collateral may
be posted and forfeited in lieu of appearance and the amount of collateral to be
posted are set out in written schedules approved by the court, on file with the clerk,
and posted on the court’s website. Collateral may not be forfeited in lieu of
appearance with respect to any offense for which appearance is specified as
mandatory in a schedule or any offense the citation for which specifies that
appearance is required.
Rule 59.1 Reserved for Future Purposes
Rule 60.1 Reserved for Future Purposes
Rule 61.1 Publicity in Criminal Matters
(a) In General.
All court personnel, including but not limited to the marshal and deputy
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marshals and office personnel, the clerk and deputy clerks and office
personnel, probation officers and office personnel, bailiffs, court reporters,
and the district judges’ and magistrate judges’ office personnel, are
prohibited from disclosing to any person, without authorization of the
court, information relating to any pending matter that has not been filed as
a part of the public records of the court. This proscription applies to the
divulgence of any information concerning arguments and hearings held in
chambers or otherwise outside the presence of the jury or the public.
(b) Statements by One Participating in or Associated with an Investigation.
An attorney participating in or associated with the investigation of a
criminal matter shall not make or participate in making any extra-judicial
statement that a reasonable person would expect to be disseminated by
means of public communication and that does more than state without
elaboration:
(1) information contained in a public record;
(2) that the investigation is in progress;
(3) the general scope of the investigation including a description of the
offense and, if permitted by law, the identity of the victim;
(4) a request for assistance in apprehending a suspect or assistance in
other matters and the information necessary thereto; and
(5) a warning to the public of any dangers.
(c) Statements After Filing Complaint, Information, or Indictment,
Issuance of Warrant or Arrest.
An attorney or law firm associated with the prosecution or defense of a
criminal matter shall not, from the time of the filing of a complaint,
information, or indictment, the issuance of an arrest warrant, or arrest until
the commencement of the trial or disposition without trial, make or
participate in making an extra-judicial statement that a reasonable person
would expect to be disseminated by means of public communication that
relates to:
(1) the character, reputation, or prior criminal record (including arrests,
indictments, or other charges of crime) of the accused;
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(2) the possibility of a plea of guilty to the offense charged or to a lesser
offense;
(3) the existence or contents of any confession, admission, or statement
given by the accused or the refusal or failure of the accused to make
a statement;
(4) the performance or results of any examinations or tests or the refusal
or failure of the accused to submit to examination or tests;
(5) the identity, testimony, or credibility of a prospective witness; or
(6) any opinion as to the guilt or innocence of the accused, the evidence,
or the merits of the case.
(d) Statements That Can Be Made.
This local rule does not preclude an attorney during such period from
announcing:
(1) the name, age, residence, occupation, and family status of the
accused;
(2) if the accused has not been apprehended, any information necessary
to aid in apprehension of the accused or to warn the public of any
dangers the accused may present;
(3) a request for assistance in obtaining evidence;
(4) the identity of the victim of the crime;
(5) the fact, time, and place of arrest, resistance, pursuit, and use of
weapons;
(6) the identity of investigating and arresting officers or agencies and
the length of the investigation;
(7) at the time of seizure, a description of the physical evidence seized,
other than a confession, admission or statement;
(8) the nature, substance, or text of the charge;
(9) quotations from or references to public records of the court in the
case;
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(10) the scheduling or result of any step in the judicial proceedings; or
(11) that the accused denies the charges made against him.
(e) Statements During Jury Selection or Trial.
During the selection of a jury or the trial of a criminal matter, an attorney
or a law firm associated with the prosecution or defense of a criminal matter
shall not make or participate in making any extra-judicial statement that a
reasonable person would expect to be disseminated by means of public
communication and that relates to the trial, parties, or issues in the trial or
other matters that are reasonably likely to interfere with a fair trial, except
that the attorney may quote from or refer without comment to public records
of the court in the case.
(f) Statements After Trial, Disposition without Trial, or Sentencing.
After the completion of a trial or disposition without trial of a criminal
matter and prior to the imposition of sentence, an attorney or a law firm
associated with the prosecution or defense shall not make or participate in
making an extra-judicial statement that a reasonable person would expect
to be disseminated by public communication and that is reasonably likely
to affect the sentence.
(g) Statements of Staff and Employees.
An attorney shall exercise reasonable care to prevent employees and
associates from making an extra-judicial statement that the attorney would
be prohibited from making under this rule.
Rule 100.1 Court Libraries
The clerk shall maintain the court libraries in the district. Use of the facilities is
limited to judicial officers, court staff, and members of the bar of this court. Books
shall not be removed from the library without the consent of the person responsible
for the maintenance of the particular library and shall not be removed from the
courthouse under any circumstances. A violation of this local rule shall be
punishable as contempt of court.
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Rule 100.2 Jurisdictional Agreements With Other Courts
The clerk shall maintain all jurisdictional agreements entered into by the Chief
District Judge of this court and the Chief District Judge of any other United States
District Court and a copy of such agreements shall be furnished to any person upon
request.
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ATTACHMENT C
United States District Court
Eastern District of North Carolina
Local Admiralty and Maritime Claims Rules
of
Practice and Procedure
May 2023
Page 1
Local Admiralty Rules – U.S. District Court for the Eastern District of North Carolina
TABLE OF CONTENTS
Rule A.1 Citation.................................................................................................................... 4
Rule A.2 Scope ....................................................................................................................... 4
Rule A.3 Definitions............................................................................................................... 4
Rule A.4 Pleadings and Parties .............................................................................................. 5
Rule B.1 Definition of “Not Found Within the District” ....................................................... 7
Rule B.2 Affidavit that Defendant is Not Found Within the District .................................... 7
Rule B.3 Use of State Procedures .......................................................................................... 7
Rule C.1 Issuance of Process: Intangible Property .............................................................. 8
(a) Issuance and Effect of Summons......................................................................................... 8
(b) Payment to Marshal. ............................................................................................................ 8
(c) Manner of Showing Cause. ................................................................................................. 8
(d) Effect of Failure to Show Cause. ......................................................................................... 8
Rule C.2 Publication .............................................................................................................. 8
Rule C.3 Default In Action In Rem ..................................................................................... 10
(a) Notice Required. ................................................................................................................ 10
(b) Persons with Recorded Interests. ....................................................................................... 10
(c) Manner of Giving Notice. .................................................................................................. 11
Rule C.4 Entry Of Default ................................................................................................... 11
Rule D.1 Return Date in Possessory, Petitory, and Partition Actions .................................. 13
Rule E.1 Verification of Pleadings And Answers to Interrogatories ................................... 14
Rule E.2 Process .................................................................................................................. 14
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(a) Order Authorizing the Clerk to Issue Process of Arrest, Attachment or Garnishment. .... 14
(b) Exigent circumstances ....................................................................................................... 15
(c) Return of Process -- Supplemental Rules C and D. ........................................................... 15
Rule E.3 Seizure Of Property Already In Custody Of An Officer Of The United States ... 15
Rule E.4 Post Arrest Procedure ........................................................................................... 16
Rule E.5 Release Of Seizures; Custodial Costs; General Bonds ......................................... 16
Rule E.6 Appraisal ............................................................................................................... 18
(a) Order for Appraisal. ........................................................................................................... 18
(b) Appraiser's Oath. ............................................................................................................... 18
(c) Appraisal. ........................................................................................................................... 18
(d) Cost of Appraisal. .............................................................................................................. 18
Rule E.7 Security Deposits for Seizure of Vehicles ............................................................ 18
(a) Deposit Required Before Seizure. ..................................................................................... 18
(b) Additional Deposits Required After Seizure. .................................................................... 19
(c) Sanction for Failure to Make Deposit................................................................................ 19
Rule E.8 Stipulations And Undertakings ............................................................................. 19
Rule E.9 Intervention ........................................................................................................... 20
(a) Presentation of Claim. ....................................................................................................... 20
(b) Intervention When Sale Has Been Scheduled. .................................................................. 20
(c) Compliance with Rules. ..................................................................................................... 20
(d) Sharing of Marshal's Fees and Expenses. .......................................................................... 20
(e) Intervenors' Obligations upon Vacation of the Arrest, Attachment or Garnishment. ....... 21
(f) Service and Responsive Pleadings. ................................................................................... 21
Rule E.10 Custody of Property .............................................................................................. 21
(a) Safekeeping of Property When Seized. ............................................................................. 22
(b) Cargo Handling, Repairs and Movement of the Vessel. ................................................... 22
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Local Admiralty Rules – U.S. District Court for the Eastern District of North Carolina
(c) Motion for Change in Arrangements. ................................................................................ 22
(d) Insurance. ........................................................................................................................... 22
Rule E.11 Sale of Property..................................................................................................... 23
(a) Publication of Notice of Sale. ............................................................................................ 23
(b) Place of Sale. ..................................................................................................................... 23
(c) Payment of Bid. ................................................................................................................. 23
(d) Penalty for Late Payment of Balance. ............................................................................... 24
(e) Penalty for Default in Payment of Balance. ...................................................................... 24
(f) Report of Sale by the Marshal. .......................................................................................... 24
(g) Time and Procedure for Objection to Sale. ....................................................................... 24
(h) Confirmation of Sale Without Motion............................................................................... 25
(i) Confirmation of the Sale on Motion. ................................................................................. 25
(j) Disposition of Deposits. .................................................................................................... 25
(k) Title to Property. ................................................................................................................ 26
Rule E.12 Taxation Of Costs ................................................................................................. 26
Rule E.13 Stay Of Execution Or Of Release Of Property After Judgment Or Dismissal ..... 26
Rule E.14 Claims After Sale How Limited ........................................................................... 26
Rule F.1 Security For Costs. ................................................................................................ 27
Rule F.2 Notice .................................................................................................................... 27
Rule F.3 Order Of Proof At Trial ........................................................................................ 27
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LOCAL ADMIRALTY RULE A
GENERAL PROVISIONS
Rule A.1 Citation
These local admiralty rules apply to the admiralty and maritime proceedings as
defined in Supplemental Rule A of the Federal Rules of Civil Procedure and shall
be cited as “Local Admiralty Rule____.”
Rule A.2 Scope
The Local Civil Rules of the United States District Court for the Eastern District of
North Carolina apply to all civil cases, including admiralty and maritime
proceedings, but if a local rule is inconsistent with a local admiralty rule, the local
admiralty rule shall control. Alternative dispute resolution in admiralty and maritime
cases shall be governed by the provisions of Local Civil Rules 101-101.3.
Rule A.3 Definitions
As used in these local rules,
(a) The term “court” means a United States District Judge or a United States
Magistrate Judge.
(b) The term “person” refers to any human being, entity, or vessel.
(c) The term “party” refers to a person who assert a claim or has a claim asserted
against him, her, or it. A represented party shall act through the party’s
attorney of record unless a particular rule states otherwise.
(d) The term “nonparty” refers to any person other than a party, an attorney, a
judge, or court staff member who is acting in that capacity. A represented
party nonparty shall act through the nonparty’s attorney of record unless a
particular rule states otherwise.
(e) The term “attorney” refers to an attorney of record for a person, unless the
context of a particular rule refers to attorneys more generally.
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(f) The term “unrepresented person” refers to a person during any time when
the person is proceeding without an attorney.
(g) The term “movant” refers to a person makes a motion.
(h) The term “keeper” means any person or entity appointed by the marshal to
take physical custody of and maintain the vessel or other property under
arrest or attachment.
(i) The term “marshal” means the United States Marshal and includes deputy
marshals.
(j) The term “substitute custodian” means the individual who or entity that,
upon motion and order of the court, assumes the duties of the marshal or
keeper with respect to the vessel or other property that is arrested or attached.
(k) The term “Supplemental Rule” followed by a capital letter, e.g.,
“Supplemental Rule C,” refers to the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions.
Rule A.4 Pleadings and Parties
(a) Every complaint filed as a Fed. R. Civ. P. 9(h) action shall set forth:
(1) “In Admiralty” following the designation of the court, in addition to
the statement, if any, contained in the body of the complaint
pursuant to such rule; and
(2) The individual name, firm name, address, telephone number, fax
number, email address and State Bar number where applicable, of
all attorneys who appear for the filing party, including an attorney
making a special appearance pursuant to Local Civil Rule 83.1(e) or
the telephone number and address of the plaintiff, if plaintiff
appears pro se.
(b) Every complaint in Supplemental Rule B and C actions shall state the amount
of the debt, damages, or salvage for which the action is brought, and shall
include in addition thereto the amounts of unliquidated claims, including a
good faith estimate of attorney’s fees to be supplemented seasonably. The
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defendant or claimant may post bond pursuant to Supplemental Rule E(5)
based on such allegations. When a bond is posted under the Local Admiralty
Rules for any reason, notice of the posting with a copy of the bond attached
shall be electronically filed in the case by the posting party. The paper
original of the bond shall be retained by the posting party unless otherwise
directed by the court.
(c) In cases of salvage, the complaint shall also state to the extent known or
estimated 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 the behalf of all other persons interested or
associated with them. There shall also be attached to the complaint a list of
all known salvors and all persons believed entitled to share in the salvage,
and also any agreement of consortship available and known to exist among
them or any of them, including a copy of any such agreement.
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LOCAL ADMIRALTY RULE B
IN PERSONAM ACTIONS: ATTACHMENT AND GARNISHMENT
Rule B.1 Definition of “Not Found Within the District”
A defendant is considered to be “not found within the district” if, in an action in
personam, service upon the defendant cannot be effected in person or upon an
authorized officer or agent within the State of North Carolina or if the only effective
service is through the Secretary of State, the North Carolina Long Arm Statute, or
through any method of substituted service.
Rule B.2 Affidavit that Defendant is Not Found Within the District
The affidavit required by Supplemental Rule B(1)(b) to accompany the complaint
shall specify with particularity the efforts made by and on behalf of the plaintiff to
find and serve the defendant.
Rule B.3 Use of State Procedures
When the plaintiff invokes a state procedure to attach or garnish property under
Fed. R. Civ. P. 4(n), the process of attachment and garnishment shall include a
citation to the applicable state law.
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LOCAL ADMIRALTY RULE C
IN REM ACTIONS: SPECIAL PROVISIONS
Rule C.1 Issuance of Process: Intangible Property
(a) Issuance and Effect of Summons.
The summons issued pursuant to Supplemental Rule C(3) shall direct the
person having control of the funds or other intangible property to show cause
no later than 14 days after service why the funds or other property should not
be delivered to the court to abide the judgment. The court, for good cause
shown, may shorten or lengthen the time. Service of the summons has the
effect of an arrest of the property and brings it within the control of the court.
(b) Payment to Marshal.
The person who is served may deliver or pay over to the marshal the property
or funds proceeded against, or a part thereof, sufficient to satisfy the claim.
If such payment is made, the person served is excused from any duty to show
cause.
(c) Manner of Showing Cause.
The claimant of the property may show cause why the property should not
be delivered to the court by serving and filing a claim as provided in
Supplemental Rule C(6) within the time allowed to show cause, and by
serving and filing an answer to the complaint within 21 days thereafter.
(d) Effect of Failure to Show Cause.
If a claim is not filed within the time stated in the summons, or an answer is
not filed within the time allowed under this Rule, the person who was served
shall deliver or pay to the marshal the property or funds proceeded against,
or a part thereof, sufficient to satisfy plaintiff's claim.
Rule C.2 Publication
(a) Publication required by Supplemental Rule C(4) shall be made once, without
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further court order, in any one of the following newspapers:
Northern Division: The Virginian-Pilot (Norfolk, Virginia); The News
and Observer (Raleigh, North Carolina)
Southern Division: Star News (Wilmington, North Carolina); The News
and Observer (Raleigh, North Carolina)
All Other Divisions: The News and Observer (Raleigh, North Carolina)
(b) If the property arrested is not released within 14 days after execution of
process, publication hereunder shall, unless otherwise ordered, be caused by
the plaintiff or intervenor to be made within 21 days after execution of
process.
(c) Such notice shall be substantially as follows, except and unless otherwise
provided in actions for the enforcement of forfeitures for violation of any
federal statute:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
______________Division
In Admiralty
No.
Caption of Case
NOTICE: The United States Marshal, Eastern District of North Carolina, has on
(date) arrested the (Vessel and appurtenances) (Property) in the above causes, civil
and maritime for (nature of claim, i.e. contract, salvage, damage, collision,
foreclosure of preferred mortgage, etc.) amounting to ($ (and nature of unliquidated
items)). Any person who has not been previously served with process and who is
entitled to possession or who claims an interest in the (Vessel or Property), must file
a claim and serve an answer no later than (date 21 days after publication); otherwise,
default may be entered and condemnation ordered.
DATED at (city of publication), (state), (month, day and year of publication).
(Name)
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(Firm Name)
(Address)
(Telephone Number)
(Fax Number)
(N.C. Bar Number)
(Attorney(s)) for (Plaintiff)(Intervenor)
(d) Whenever publication is required, the person or party causing the publication
shall file with the clerk, no later than 30 days after the date of publication,
sworn proof of publication (1) by a person duly authorized by the newspaper
to execute affidavits of legal notices, together with a copy of the publication
or (2) through an affidavit executed by the person, party, or attorney of
record. The affidavit shall include as an exhibit a copy of the required
publication.
Rule C.3 Default In Action In Rem
(a) Notice Required.
Except in actions by the United States for forfeitures, a party seeking a
default judgment in an action in rem must show that due notice of the action
and arrest of the property has been given:
(1) By publication, as required in Local Admiralty Rule C.2;
(2) By service on the master or other person having custody of the
property;
(3) By service on every other person who has not appeared in the action
and is known to have an interest in the property; and
(4) By service in accordance with the Foreign Sovereign Immunities
Act, 28 U.S.C. §§ 1602 et seq., if the property is subject to that Act.
(b) Persons with Recorded Interests.
(1) If the defendant property is a vessel documented under the laws of
the United States, a party seeking default judgment must obtain a
current certificate of ownership or abstract of title from the United
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States Coast Guard and attempt to serve persons named in the
certificate or abstract who appear to have an interest in the property.
(2) If the defendant property is a vessel numbered as provided in the
Federal Boat Safety Act, 46 U.S.C. §§ 4301 et seq., a party seeking
default judgment must attempt to serve persons named in the records
of the issuing authority who appear to have an interest in the property.
(3) If the defendant property is of such character that there exists a
governmental registry of recorded property interests or security
interests in the property, a party seeking default judgment must
attempt to notify all persons named in the records of each such
registry who appear to have an interest in the property.
(c) Manner of Giving Notice.
A required notice, other than by publication, of the action and arrest of the
property shall be given by delivery under Fed. R. Civ. P. 5(b).
Rule C.4 Entry Of Default
After the time for filing a claim or answer has expired, the plaintiff may request an
entry of default under Fed. R. Civ. P. 55(a). Default will be entered upon the filing
of an affidavit showing that:
(a) Notice has been given as required in Local Admiralty Rule C.3 or, in the case
of forfeiture actions in rem arising from a federal statute, as required by
Supplemental Rule G(4);
(b) Where available, a copy of any of the following is attached: the United States
Coast Guard certificate of ownership or abstract of title; any numbering
identification obtained from any issuing authority; and/or the information
obtained from the private and/or governmental registries; and if not
available, an explanation or description of the attempts to obtain the same;
(c) Where appropriate, notice has been attempted as required by Rule C.3(b);
and
(d) No claim has been served or filed within the prescribed time or no answer
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has been served or filed within the prescribed time.
The plaintiff may move for judgment under Fed. R. Civ. P. 55(b) at any time after
default has been entered.
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LOCAL ADMIRALTY RULE D
POSSESSORY, PETITORY, AND PARTITION ACTIONS
Rule D.1 Return Date in Possessory, Petitory, and Partition Actions
In an action under Supplemental Rule D, the court may order that the claim and
answer be filed on a date earlier than 21 days after the arrest, and may by order set
a date for expedited hearing of the action.
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LOCAL ADMIRALTY RULE E
GENERAL PROVISIONS IN ACTIONS IN REM AND QUASI IN REM
Rule E.1 Verification of Pleadings And Answers to Interrogatories
Every complaint and claim in an action filed under the Supplemental Rules shall be
verified on oath or solemn affirmation by a party, or an officer of a corporate party.
If no party or corporate officer is within the district, verification of a complaint,
claim or answers to interrogatories may be made by an agent, attorney-in-fact or
attorney of record, who shall state briefly the sources of his or her knowledge,
information and belief, declare that the document affirmed is true to the best of his
or her knowledge, information and belief, state the reason why verification is not
made by the party or a corporate officer, and that he or she is so authorized to act.
Any such verification will be deemed to have been made by the party to whom a
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 of any party or of a
corporate party's officer. If required by the court, such verification shall be procured
by commission or as otherwise ordered.
Rule E.2 Process
(a) Order Authorizing the Clerk to Issue Process of Arrest, Attachment or
Garnishment.
Except in actions by the United States for forfeitures or where exigent
circumstances make court review impracticable, the pleadings, the affidavit
required by Supplemental Rule B, and accompanying supporting papers
must be reviewed by the court pursuant to Supplemental Rules B and C
before the clerk will issue a summons and process of arrest, attachment or
garnishment to any party, including intervenors. The clerk may refer a
motion under this provision to any district or magistrate judge. The motion
may be heard and the decision thereon communicated to the clerk by
telephone or other electronic communication. If the court finds the
conditions set forth in Supplemental Rules B or C appear to exist, as
appropriate, the court shall authorize the clerk to issue process. Supplemental
process may thereafter be issued by the clerk upon application without
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further order of the court.
(1) Order
Upon approving the application for arrest, attachment or
garnishment, the court will issue an order to the clerk to issue such
process. The proposed form of order authorizing the issuance of such
process and the proposed process itself shall be submitted to the court
or the clerk before the court's review.
(b) Exigent circumstances
If the plaintiff or the attorney of record certifies by affidavit submitted to the
clerk that exigent circumstances make review by the court impracticable, the
clerk shall issue a summons and warrant of arrest or process of attachment
and garnishment. In actions by the United States for forfeitures for federal
statutory violations, the clerk, upon filing of the complaint, shall
immediately issue a summons and warrant for arrest of the vessel or other
property without requiring a certification of exigent circumstances.
(c) Return of Process -- Supplemental Rules C and D.
Unless otherwise ordered by the court, all process from this court within the
scope of Supplemental Rules C and D shall be returnable by claim no later
than 14 days after execution of the process and by answer within 21 days
following filing of a claim or, in the event the property is not released within
14 days after execution of process, by filing a claim and serving an answer
within 21 days of publication as required by Supplemental Rule C(4).
Rule E.3 Seizure Of Property Already In Custody Of An Officer Of The United States
In addition to the requirements of Supplemental Rule C(3), where property in the
custody of an officer or employee of the United States is to be arrested or attached,
the marshal shall deliver a copy of the complaint and warrant for arrest, or summons
and process of attachment, to such 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 notify such officer, employee or custodian not to
relinquish such property from custody until ordered to do so by the court.
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Rule E.4 Post Arrest Procedure
(a) Whenever property is arrested, attached or garnished, any person claiming
an interest in the property shall be entitled to a prompt hearing before the
court on notice to the party bringing the arrest, attachment or garnishment
and to all other parties who have appeared in the action. The hearing shall be
noticed and scheduled as is a hearing on a request for temporary restraining
order. At the hearing, the party that obtained the arrest, attachment or
garnishment shall show cause why the arrest, attachment or garnishment
order should not immediately be vacated or other appropriate relief granted.
(b) If the arrest, attachment or garnishment was obtained under a certification of
exigent circumstances, the party obtaining the arrest, attachment or
garnishment shall have the burden to show that exigent circumstances
existed.
(c) This Rule shall have no application to suits for seamen's wages when process
is issued upon a certification of sufficient cause filed pursuant to 46 U.S.C.
§§ 603 and 604 or to actions by the United States for forfeitures.
Rule E.5 Release Of Seizures; Custodial Costs; General Bonds
(a) Property seized by the marshal may be released as follows:
(1) By the marshal upon the receipt of security by the marshal,
accompanied by the endorsed express authorization for release
signed by the party or counsel for the party as provided by
Supplemental Rule E(5)(c) if all costs and charges of the court and
its officers shall have first been paid. Monies received as part of any
cash stipulation shall be delivered by the marshal to the clerk for
deposit in the registry of the court.
(2) In an action entirely for a sum certain, by paying into the court the
amount alleged in the complaint to be due, plus interest at the rate of
10% per annum from the date claimed to be due to a date 24 months
after the date the claim was filed, or by filing an approved stipulation
for such alleged amount and interest. In either event, claim of the
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property shall be filed.
(3) In actions other than possessory, petitory, and partition, by filing, in
addition to a claim of the property, an approved stipulation for the
amount of the appraised or agreed value of the property seized, with
interest (unless otherwise ordered by the court), interlocutory or final,
and to pay the amount awarded by the final decree rendered by this
court or by any appellate court, with interest.
(4) In possessory, petitory, and partition actions, only upon the order of
the court, and on such security and terms as ordered.
(5) Upon the dismissal or discontinuance of the action or upon the
written consent of the attorney for the party on whose behalf the
property is detained, if all costs and charges of the court and its
officers shall have first been paid.
(b) The marshal shall not deliver any property so released until costs and charges
of the marshal shall first have been paid.
(c) In any general bond as provided for by Supplemental Rule E(5)(b) the vessel
will be identified by name, nationality, dimension, official number or
registration number, hailing port and port of documentation, to the extent
applicable. The owner of such vessel shall also file complete designated
United States address and email address, if available, for communications to
the owner or designated agent, which shall be by mail or email. Execution
of process against the vessel so stayed under Supplemental Rule E(5)(b) shall
be endorsed to the marshal as stayed pursuant to the rule. Such process shall
be served by the marshal together with a copy of the complaint on the master
or other person in whose charge or custody the vessel is found and the
marshal shall make his or her return thereof. If no master or other person in
charge of custody is found aboard the vessel, the marshal shall so make his
or her return accordingly, and the clerk shall advise by mail or email the
owner or designated agent, at the address furnished pursuant to this rule, of
the nature of the action, any amount claimed, the plaintiff, the name and
address of plaintiff's attorney, the case number, and the return day 30 days
from the date of the marshal's attempt. The clerk will maintain a current list
of vessels subject to a general bond and file said bonds alphabetically by
name of vessel and endorsed as provided by Supplemental Rule E(5)(b).
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Rule E.6 Appraisal
(a) Order for Appraisal.
An order for appraisal of property so that security may be given or altered
will be entered by the clerk at the written request of any interested party. If
the parties do not agree in writing on the selection of the appraiser, the court
will appoint the appraiser.
(b) Appraiser's Oath.
The appraiser shall be sworn to the faithful and impartial discharge of duties
before any federal or state officer authorized by law to administer oaths, and
a copy of the oath shall be filed with the clerk.
(c) Appraisal.
The appraiser shall give one day's notice of the time and place of making the
appraisal to the parties who have appeared in the action. The appraiser shall
file the appraisal in writing with the clerk as soon as it is completed and shall
serve it on all parties.
(d) Cost of Appraisal.
Absent stipulation of the parties or order of the court to the contrary, the
appraiser shall be paid by the party requesting the appraisal. Appraiser's fees
shall thereafter be taxed as the court orders.
Rule E.7 Security Deposits for Seizure of Vehicles
(a) Deposit Required Before Seizure.
Any party, including any intervenor, who seeks arrest, attachment or
garnishment of property in an action governed by Supplemental Rule E and
Fed. R. Civ. P. 4(n) shall deposit with the marshal the sum estimated by the
marshal to be sufficient to pay the fees and expenses of arresting, attaching,
or garnishing and keeping the property for at least 14 days, or such lesser
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amount as the marshal deems sufficient. The marshal is not required to
execute process of arrest, attachment or garnishment until such deposit is
made.
(b) Additional Deposits Required After Seizure.
Any party who has caused the marshal to arrest, attach or garnish property
shall advance additional sums from time to time as required by the marshal
to pay the fees and expenses of the marshal until the property is released or
disposed of as provided in Supplemental Rule E.
(c) Sanction for Failure to Make Deposit.
Any party who fails to make a deposit when required by the marshal may be
subject to sanctions including the release of the vessel.
Rule E.8 Stipulations And Undertakings
(a) Except in cases instituted by the United States by information, or complaint
of information upon seizures for any breach of the revenue, 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 on behalf of
the stipulator or obligor by his/her/its agent or counsel. Stipulations for costs
with corporate surety need not be signed or executed by the party, but may
be signed on the party's behalf by the party's agent or counsel, and shall be
sufficient in any event if executed only by the surety approved by the court.
(b) If, before or after commencement of suit, the arresting, attaching or
garnishing party accepts any written undertaking to respond on behalf of the
vessel or other property sued in return for foregoing its arrest or for
stipulating to the release of such vessel or other property, the undertaking
shall be filed, shall become the res in place of the vessel or other property
sued and shall be deemed the subject referred to when any pleading, order or
judgment in the action refers to the vessel or other property. The preceding
shall apply to any such undertaking, subject to its own terms, whether or not
it has been approved by a judge or the clerk.
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Rule E.9 Intervention
(a) Presentation of Claim.
When a vessel or other property has been arrested, attached or garnished, and
is in the custody of the marshal or substitute custodian, anyone seeking to
enforce a claim against the vessel or property shall file a complaint in
intervention in the in rem action, unless otherwise ordered by the court. The
clerk shall promptly provide a copy of the complaint in intervention and the
intervenor's warrant of arrest or process of attachment or garnishment as filed
to the marshal, who shall deliver the same to the vessel and custodian of the
property. Intervenors shall thereafter be subject to the rights and obligations
of a party originally arresting, attaching or garnishing the vessel or property
unless otherwise provided herein, and the vessel or property shall stand
arrested, attached or garnished by the intervenor. An intervenor shall not be
required to advance a security deposit to the marshal until ordered by the
court.
(b) Intervention When Sale Has Been Scheduled.
No party may intervene without first obtaining leave of court if intervention
is sought less than 21 days prior to the date for which a sale of the vessel or
property has been set by the court.
(c) Compliance with Rules.
An intervenor must comply with the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions, the Federal Rules of Civil
Procedure and these Local Admiralty Rules in accomplishing and perfecting
the arrest, attachment or garnishment unless otherwise provided in this Rule
E.10 or by order of the court.
(d) Sharing of Marshal's Fees and Expenses.
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At any time after the filing of a complaint in intervention, any party to the
action or the marshal may move the court for an order directing that the
intervenor pay a fair share, as determined by the court, of the marshal's fees
and expenses incurred and to be incurred for the arrest, attachment,
garnishment, keeping, maintenance and security of the vessel or other
property. A hearing on such motion may be held upon three days' notice.
(e) Intervenors' Obligations upon Vacation of the Arrest, Attachment or
Garnishment.
If an original arrest, attachment or garnishment is vacated, a party who has
filed a complaint in intervention in the in rem action which was presented in
accordance with Local Admiralty Rule E.10(a) shall bear responsibility for
the marshal's fees and expenses and shall deposit the sum required by the
marshal for fees and expenses within 48 hours after receiving written notice
from the marshal requiring such deposit. Such notice may be given as soon
as the marshal learns that the original arrest, attachment or garnishment is to
be vacated. If more than one complaint in intervention has been delivered to
the marshal, the intervenors shall step into the position of the originally
arresting, attaching or garnishing party as provided herein in order of the
delivery of their complaints in intervention to the marshal.
(f) Service and Responsive Pleadings.
The intervenor shall serve a copy of (1) the complaint in intervention, (2) the
order authorizing arrest, attachment or garnishment in intervention, and (3)
the warrant, writ and/or summons in intervention on all parties who have
appeared in the action pursuant to Fed. R. Civ. P. 5 and any order of the
court. Within 21 days of such service, each party to the action shall serve an
answer, motion or other responsive pleading to the complaint in intervention
consistent with Fed. R. Civ. P. 12. The intervenor shall have 21 days from
the filing of the complaint in intervention to file and serve an answer, motion
or other responsive pleading to the complaints and claims previously filed in
the action.
Rule E.10 Custody of Property
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(a) Safekeeping of Property When Seized.
When a vessel, cargo or other property is seized, the marshal shall take
custody and arrange for adequate and necessary security for its safekeeping
which may include, in the marshal's discretion, the placing of keepers on or
near the vessel, or the appointment of a facility or person as custodian of the
property in lieu of the marshal. When a vessel with crew aboard is seized,
the removal of such crew shall fall within the discretion of the marshal.
(b) Cargo Handling, Repairs and Movement of the Vessel.
Upon arrest or attachment of the vessel, no cargo handling, repairs or
movement of the vessel may be made without a court order except in an
emergency situation in the discretion of the marshal. Written notice shall be
given to the marshal and to all parties who have appeared prior to the
application for such order, and the certificate of service of such notice shall
be filed with the clerk before application is made to the court. For good cause
shown, the court may direct the marshal to allow the conduct of cargo
handling, repairs, movement of the vessel or other operations on a vessel
under arrest or attachment. Neither the United States nor the marshal shall
be liable for the consequence of the undertaking or continuation of any such
activities during the arrest or attachment.
(c) Motion for Change in Arrangements.
Prior to or after a vessel, cargo or property has been taken into custody by
the marshal, any party then appearing may move the court to dispense with
keepers or to remove or place the vessel, cargo or other property at a
specified facility, to designate a substitute custodian, or for similar relief.
Notice of the motion shall be given to the marshal and to all parties who have
appeared.
(d) Insurance.
The marshal may order insurance to protect the marshal, his or her deputies,
keepers and substitute custodians from liability assumed in arresting and
holding the vessel, cargo or other property and performing whatever services
are undertaken to protect the vessel, cargo or other property and maintain the
court's custody. The party applying for arrest of the vessel, cargo or other
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property shall reimburse the marshal for premiums paid for the insurance.
The party applying for removal of the vessel, cargo or other property to
another location, for designation of a substitute custodian, or for other relief
that will require an additional premium shall reimburse the marshal therefor.
The premiums charged for the liability insurance are taxable as
administrative costs while the vessel, cargo or other property is in custodia
legis.
(e) A person who furnishes supplies or services to a vessel, cargo, or other
property in custody of the court who has not been paid and claims the right
to payment as an expense of administration shall file a verified claim with
the court at any time before the vessel, cargo, or other property is released or
sold. The supplier must serve copies of the claim pursuant to Fed. R. Civ. P.
5(b), on the marshal, substitute custodian (if one has been appointed), and all
parties of record. The court may consider the claims individually or schedule
a single hearing for all claims.
Rule E.11 Sale of Property
(a) Publication of Notice of Sale.
Unless otherwise ordered upon a showing of urgency, impracticality or other
good cause, or as provided by law, notice of the sale of property shall be
published daily, at least twice, the first publication to be a least one calendar
week prior to the date of sale and the second publication to be at least three
calendar days prior to the date of sale, unless otherwise ordered by the court.
(b) Place of Sale.
The place of sale will occur at a federal courthouse in the division in which
the property is located unless the court otherwise directs.
(c) Payment of Bid.
The person whose bid is accepted shall immediately pay the marshal either
the full purchase price if the bid is no more than $500 or a deposit of $500
or ten percent of the bid, whichever is greater, if the bid exceeds $500. The
bidder shall pay the balance of the purchase price within three days following
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the sale. If an objection to the sale is filed within that time, the bidder is
excused from paying the balance of the purchase price until three days after
the sale is confirmed. Payments to the marshal shall be in cash, certified
check or cashier's check. The court may specify different terms in any order
of sale.
(d) Penalty for Late Payment of Balance.
A successful bidder who fails to pay the balance of the bid within the time
allowed under these rules or a different time specified by the court shall also
pay the marshal the costs of keeping the property from the date payment of
the balance was due to the date the bidder pays the balance and takes delivery
of the property. Unless otherwise ordered by the court, the marshal shall
refuse to release the property until this additional charge is paid.
(e) Penalty for Default in Payment of Balance.
A successful bidder who fails to pay the balance of the bid within the time
allowed is in default and the court may at any time thereafter order a sale to
the second highest bidder or order a new sale as appropriate. Any sum
deposited by the bidder in default shall be forfeited and applied to pay any
additional costs incurred by the marshal by reason of the forfeiture and
default, including costs incident to resale. The balance of the deposit, if any,
shall be retained in the registry subject to further order of the court.
(f) Report of Sale by the Marshal.
At the conclusion of the sale, the marshal shall immediately file a written
report with the court of the fact of sale, the date thereof, the price obtained,
the name and address of the successful bidder, and any other pertinent
information.
(g) Time and Procedure for Objection to Sale.
An interested person may object to the sale by filing a written objection with
the clerk within three days following the sale, serving the objection on all
parties, the successful bidder and the marshal, and depositing a sum with the
marshal that is sufficient to pay the expense of keeping the property for at
least 7 days. Payment to the marshal shall be in cash, certified check, or
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cashier's check. The written objection must be endorsed by the marshal with
an acknowledgment of receipt of the deposit prior to filing with the clerk.
(h) Confirmation of Sale Without Motion.
A sale shall stand confirmed as of course without any affirmative action by
the court unless (1) written objection is filed with the court within the time
allowed under these rules, or (2) the purchaser is in default for failure to pay
the balance due to the marshal. The purchaser in a sale so confirmed as of
course shall present a proposed order reflecting the confirmation of the sale
for entry by the clerk no earlier than the fourth day following the sale. The
marshal shall transfer title to the purchaser upon issuance of such order by
the clerk.
(i) Confirmation of the Sale on Motion.
If an objection has been filed or if the successful bidder is in default, the
marshal, the objector, the successful bidder, or a party may move the court
for relief. Any person seeking a hearing on such motion may apply to the
court for an order fixing the date and time of a hearing and directing the
manner of giving notice and shall give written notice of the motion to the
marshal, all parties, the successful bidder and the objector. The motion will
be determined promptly by the court. The court may confirm the sale, order
a new sale, or grant such other relief as justice requires.
(j) Disposition of Deposits.
(1) Objection Sustained.
If an objection is sustained, sums deposited by the successful bidder
will be returned to the bidder immediately. The sum deposited by the
objector will be applied to pay the fees and expenses incurred by the
marshal in keeping the property until it is resold, and any balance
remaining shall be returned to the objector. The objector will be
reimbursed for the expense of keeping the property from the proceeds
of a subsequent sale.
(2) Objection Overruled.
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If the objection is overruled, the sum deposited by the objector will
be applied to pay the expense of keeping the property from the day
the objection was filed until the day the sale is confirmed, and any
balance remaining will be returned to the objector immediately.
(k) Title to Property.
Failure of a party to give the required notice of the action and arrest of the
vessel, cargo or other property or required notice of the sale may afford
grounds for objecting to the sale but does not affect the title of a bona fide
purchaser of the property without notice of the failure.
Rule E.12 Taxation Of Costs
All applications for costs shall be made in accordance with Local Civil Rule 54.1 If
costs shall be awarded to any party, then the reasonable premium or expenses paid
on all bonds or stipulations or other security by the party in whose favor such costs
are allowed shall be taxed as a part of the costs of the case. In addition, if costs shall
be awarded to any party, then the reasonable expenses paid by a party incidental to
or arising out of the attachment or arrest of any property in the proceedings or while
said property is in custodia legis shall be taxed as a part of the costs of the case.
Rule E.13 Stay Of Execution Or Of Release Of Property After Judgment Or Dismissal
No execution of judgment shall issue nor shall seized property be released pursuant
to judgment or order of dismissal, until 14 days after its entry. Upon the filing of a
motion for new trial or notice of appeal or motion to set aside default within said 14
day period, a further stay shall exist for a period not to exceed 30 days from the entry
of judgment or dismissal to permit the entry of an order fixing the amount of a
supersedeas bond and the filing of same.
Rule E.14 Claims After Sale How Limited
Claims upon the proceeds of sale of property under a final decree, except for
seamen's wages, shall not be admitted in behalf of lienors who file their claims after
the sale, to the prejudice of lienors who filed their claims before the sale, but shall
be limited to remnants and surplus, unless for cause shown it shall be otherwise
ordered.
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LOCAL ADMIRALTY RULE F
LIMITATION OF LIABILITY
Rule F.1 Security For Costs.
In complying with the provisions of Supplemental Rule F(1) concerning security for
costs, if plaintiff elects to post cash, that sum shall be $500.00; if the plaintiff elects
to post a bond, the amount of the bond shall be $500.00 plus interest at the rate of
6% per annum from the date of the security.
Rule F.2 Notice
Plaintiff shall effect publication required by Supplemental Rule F(4) without further
court order, in any one of the following newspapers:
Northern Division: The Virginian-Pilot (Norfolk, Virginia); The News
and Observer (Raleigh, North Carolina)
Southern Division: Star News (Wilmington, North Carolina);The News
and Observer (Raleigh, North Carolina)
All Other Divisions: The News and Observer (Raleigh, North Carolina)
Rule F.3 Order Of Proof At Trial
In an action where a party seeks to limit liability under Supplemental Rule F,
whether the right to limit arises as a claim or defense, the damage claimants shall
offer their proof first.
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