UNITED STATES DISTRICT COURTJ NOV 1 8 2013
SOUTHERN DISTRICT OF WEST VIRGI
TERESI\ L. DEPPNER, CLEHK
U.S. District Court
INRE: AMENDMENT TO THE LOCAL RULES OF PRO EDlJRE!thern District of west Virginia
DUE TO THE CLOSURE OF COURTHOUSE FACILITIES
AT THE PARKERSBURG DIVISION:
LOCAL RULE OF CIVIL PROCEDURE 77.2 AND
LOCAL RULE OF CRIMINAL PROCEDURE 18.1
Due to the closure of the courthouse facilities at the Parkersburg point of holding Court, it
is hereby ORDERED that the Local Rules of Procedure for the Southern District of West
Virginia are amended to reflect the move of the Wirt and Wood Counties from the Parkersburg
Division to the Charleston Division. Due to the realignment of Wirt County and Wood County,
the Local Rule of Civil Procedure 77 .2 and Local Rule of Criminal Procedure 18.1 shall read as
follows:
The Southern District of West Virginia is composed of 23
counties. Each of these counties is assigned to one of four
administrative divisions. Each division is given the name of the
city in the division where the court and offices of its clerk are
located. The divisions, addresses of division offices, and counties
comprising each division are as follows:
Division 1: Bluefield
Elizabeth Kee Federal Building
Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Counties Composing Division: Mercer, Monroe and McDowell
Division 2: Charleston
Robert C. Byrd United States Courthouse
Physical Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301
Mailing address: P.O. Box 2546, Charleston, West Virginia 25329
Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln,
Logan, Mingo, Nicholas, Roane, Wirt and Wood
Division 3: Huntington
Sidney L. Christie Federal Building
Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Counties Composing Division: Cabell, Mason, Putnam and Wayne
Division: 5: Beckley
Robert C. Byrd Federal Building and Courthouse,
Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801
Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming
The court will occasionally convene at Parkersburg to deal with
matters falling in the Huntington or Charleston Divisions, as
needed, and at Lewisburg to deal with matters falling within either
the Beckley or Bluefield Divisions, as needed.
This amendment shall take effect on January 1, 2014, and shall govern in cases thereafter
commenced. Proceedings in pending cases shall remain as they are currently assigned through
December 31, 2013. The Clerk is directed to post the corrected version of the Local Court Rules
attached to this Order to the Court's website on January 1, 2014.
A redline copy of the amended Local Rules and the revised version of the Local Rules is
appended to this Order.
The Clerk is directed to send a copy of this Order to the Judicial Council for the United
States Court of Appeals for the Fourth Circuit and to post the revised Local Rules on the Court's
Internet website at www.wvsd.uscourts.gov on January 1, 2014.
Dated this 18th day of November, 2013.
ENTER:
1/tl(;tlL-
ROBERT C. CHAMBERS
Chief Judge, U. S. District Court
United States District Judge
DAVID A. FABER
Senior United States District Judge
UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
LOCAL RULES OF PROCEDURE
effective December 1, 2009
amended February 1, 2011
amended June 30, 2011
amended November 18, 2013
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES DISTRICT JUDGES
Robert C. Chambers, Chief Judge, Huntington, West Virginia
John T. Copenhaver, Jr., Judge, Charleston, West Virginia
Joseph R. Goodwin, Judge, Charleston, West Virginia
Thomas E. Johnston, Judge, Charleston, West Virginia
Irene C. Berger, Judge, Beckley, West Virginia
UNITED STATES SENIOR DISTRICT JUDGES
David A. Faber, Senior Judge, Bluefield, West Virginia
UNITED STATES MAGISTRATE JUDGES
R. Clarke VanDervort, Beckley and Bluefield, West Virginia
Cheryl A. Eifert, Huntington, West Virginia
Dwane L. Tinsley, Charleston, West Virginia
CLERK OF U. S. DISTRICT COURT
Teresa L. Deppner, Charleston, West Virginia
TABLE OF CONTENTS
The numbering of local rules must conform to the uniform numbering system
established by the Judicial Conference. At its March 1996 session, the
Judicial Conference adopted a resolution prescribing a numbering system for
local rules that corresponds with the numbers used in the relevant Federal
Rules of Practice and Procedures. These local rules conform to that
numbering system.
I. LOCAL RULES OF CIVIL PROCEDURE ................................................................. 1
LR Civ P 3.1. Assignment of Cases ............................................................................. 1
LR Civ P 3.2. Reassignment, Referral and Intra-District Transfer of Cases ............... 1
LR Civ P 3.3. Assignment of Urgent Cases or Matters ............................................... 1
LR Civ P 3.4. Local Filing Requirements .................................................................... 1
(a) Civil Docket Cover Sheet. ................................................................... 1
(b) State Court Docket Sheet. ................................................................... 1
LR Civ P 3.5. Proceedings without Prepayment of Fees and Costs ............................ 2
LR Civ P 4.1. Waiver of Service ................................................................................. 2
LR Civ P 4.1.1. Initiation of Civil Contempt Proceedings ............................................. 2
LR Civ P 4.1.2. Issues; Trial by Jury .............................................................................. 3
LR Civ P 4.1.3. Order of the Court; Confinement of Contemnor................................... 3
LR Civ P 5.1. Filing Pleadings and Other Papers ........................................................ 4
(a) Filing of Papers. .................................................................................... 4
(b) Filing by Facsimile Transmission. ...................................................... 4
(c) Filing by Electronic Means. ................................................................ 4
LR Civ P 5.2.1. Privacy Protection for Filings Made with the Court ............................. 4
(a) Documents. ........................................................................................... 4
(b) Transcripts of Hearings. ...................................................................... 5
LR Civ P 6.1. Definitions............................................................................................. 5
LR Civ P 7.1. Motion Practice ..................................................................................... 6
(a) Motions and Supporting Memoranda. .............................................. 6
(1) General. .................................................................................... 6
(2) Length....................................................................................... 6
(3) Paper Size, Line Spacing and Margins. ................................ 6
i
(4) Typeface and Type Styles. ..................................................... 7
(5) Courtesy Copies of Memoranda. .......................................... 7
(6) Motions to Dismiss ................................................................ 7
(7) Filing Deadlines for Response and Reply Memoranda ..... 7
(8) Referral to Magistrate Judge .................................................. 7
(9) Action on Motions ................................................................. 7
(10) Courtroom Technology ......................................................... 8
LR Civ P 9.1. Scope and Assignment .......................................................................... 8
(a) Scope. ..................................................................................................... 8
(b) Appeals of Social Security Claims. ..................................................... 8
LR Civ P 9.2. Initiation of Action - Complaint ........................................................... 8
LR Civ P 9.3. Commissioner=s Response .................................................................... 9
(a) Filing and Service. ................................................................................ 9
(b) Privacy. ................................................................................................... 9
(c) Form. .................................................................................................... 10
(d) Discovery. ............................................................................................ 10
(e) Material Defect in Administrative Transcript. ............................... 10
LR Civ P 9.4. Briefs ................................................................................................... 10
(a) Time for Filing and Service............................................................... 10
(b) Form of Briefs. ................................................................................... 10
LR Civ P 9.5. Motions to Dismiss or Remand........................................................... 11
(a) Time for Filing by Commissioner. ................................................... 11
(b) Time for Filing by Plaintiff. .............................................................. 11
(c) Briefs. ................................................................................................... 11
LR Civ P 9.6. Petition or Motion for Attorney=s Fees ............................................... 11
LR Civ P 9.7. Electronic Filing.................................................................................. 12
LR Civ P 9.8. Oral Argument .................................................................................... 12
LR Civ P 9.9. Other Local Rules in Conflict ............................................................. 12
LR Civ P 11.1. Verification of Pleadings .................................................................... 12
LR Civ P 11.2. Stipulations ......................................................................................... 12
LR Civ P 12.1. Extensions of Answer Date................................................................. 12
LR Civ P 16.1. Scheduling Conferences...................................................................... 13
ii
(a) Convening of Scheduling Conferences; Removed and
Transferred Actions. .......................................................................... 13
(b) Obligation of the Parties to Meet. ................................................... 13
(c) Written Report on the Meeting of the Parties; Cancellation of
Scheduling Conference. ..................................................................... 14
(d) Conduct of Scheduling Conferences. .............................................. 14
(e) Scheduling Orders. ............................................................................. 15
(f) Modification of Scheduling Order. .................................................. 15
(g) Categories of Actions Exempted. .................................................... 16
LR Civ P 16.2. Case-Management Conferences in Complex Cases ........................... 17
(a) Conduct of Case-Management Conferences. ................................. 17
(b) Obligation of Counsel to Confer. .................................................... 18
(c) Number of Case-Management Conferences and Conference
Orders. ................................................................................................. 18
LR Civ P 16.3. Pretrial Conferences in Non-Complex Cases ..................................... 18
(a) Convening of Pretrial Conferences. ................................................ 18
(b) Pretrial Conference Orders. .............................................................. 19
LR Civ P 16.4. Authority Regarding Settlement, Stipulations and Admissions at
Conferences......................................................................................... 19
LR Civ P 16.5. Sanctions ............................................................................................. 19
LR Civ P 16.6. Mediation ............................................................................................ 19
(a) Cases to be Mediated. ........................................................................ 19
(b) Motion for Exception to Mandatory Mediation. ........................... 19
LR Civ P 16.6.1. Timing of Mediation ........................................................................... 20
LR Civ P 16.6.2. Selection of Mediator; Notice of Nomination .................................... 20
LR Civ P 16.6.3. Appointment of Mediator ................................................................... 20
LR Civ P 16.6.4. Attendance at Mediation ..................................................................... 20
LR Civ P 16.6.5. Mediation Statements; Confidentiality ............................................... 21
LR Civ P 16.6.6. Impartiality of Mediator ...................................................................... 21
LR Civ P 16.6.7. Compensation of Mediator ................................................................. 21
LR Civ P 16.6.8. Notification to Judicial Officer; Report of Mediator .......................... 21
LR Civ P 16.7. Final Pretrial and Settlement Conferences; Pretrial Order ................. 21
(a) Obligation of Counsel to Meet; Pretrial Disclosures Under FR
iii
Civ P 26(a)(3). ..................................................................................... 21
(b) Proposed Pretrial Order. ................................................................... 22
(c) Final Pretrial Conference. ................................................................. 23
(d) Final Pretrial Order. ........................................................................... 23
(e) Final Settlement Conference............................................................. 23
(f) Settlement Before Trial...................................................................... 23
LR Civ P 26.1. Control of Discovery........................................................................... 24
(a) Initial Disclosures Under FR Civ P 26(a)(1). ................................. 24
(b) Disclosures Under FR Civ P 26(a)(2) Regarding Experts. ........... 24
(c) Further Discovery. ............................................................................. 24
LR Civ P 26.2. Uniform Definitions in Discovery Requests ....................................... 25
(a) Incorporation by Reference and Limitations. ................................ 25
(b) Effect on Scope of Discovery. ......................................................... 25
(c) Definitions. .......................................................................................... 25
LR Civ P 26.3. Court Filings and Costs ....................................................................... 26
(a) Non-Filing of Discovery Materials Other than Certificates of
Service. ................................................................................................. 26
(b) Inspection of Documents and Copying Expense. ........................ 27
LR Civ P 26.4. Protective Orders and Sealed Documents ........................................... 27
(a) Protective Orders. .............................................................................. 27
(b) Sealed Documents. ............................................................................. 27
LR Civ P 33.1. Interrogatories ..................................................................................... 28
(a) Form of Response. ............................................................................. 28
(b) Reference to Records. ........................................................................ 28
(c) Answers to Interrogatories Following Objections. ....................... 29
LR Civ P 34.1. Document Production ......................................................................... 29
(a) Form of Response. ............................................................................. 29
(b) Objections to Document Requests.................................................. 29
(c) Answers to Document Requests Following Objections. ............. 29
LR Civ P 36.1. Admissions.......................................................................................... 29
(a) Form of Response. ............................................................................. 29
(b) Statements in Response to Requests for Admission Following
Objections. .......................................................................................... 29
iv
LR Civ P 37.1. Discovery Disputes ............................................................................. 30
(a) Objections to Disclosures or Discovery. ........................................ 30
(b) Duty to Confer. .................................................................................. 30
(c) Motions to Compel. ........................................................................... 30
(d) Telephonic Conferences During Discovery Events. .................... 30
LR Civ P 41.1. Dismissal of Actions ........................................................................... 31
LR Civ P 43.1. Addressing the Court; Examination of Witnesses .............................. 31
LR Civ P 47.1. Trial Juries ............................................................................................. 31
(a) Examination of Prospective Jurors.................................................. 31
(b) Jury Lists. ............................................................................................. 32
LR Civ P 48.1. Contact with Jurors ............................................................................. 32
LR Civ P 51.1. Cases to be Tried by Jury; Proposed Jury Instructions ....................... 32
LR Civ P 52.1. Cases to be Tried by the Court; Proposed Findings of Fact and
Conclusions of Law ............................................................................ 32
LR Civ P 54.1. Fees and Costs..................................................................................... 33
LR Civ P 58.1. Entry of Judgments and Orders ............................................................. 33
LR Civ P 65.1.1. Approval of Bonds by the Clerk ......................................................... 33
LR Civ P 67.1. Deposits Pursuant to FR Civ P 67....................................................... 34
LR Civ P 71.1. Land Condemnation Actions; Manner of Filing, Docketing, Recording,
and Reporting ...................................................................................... 34
LR Civ P 72.1. Authority of Magistrate Judges ........................................................... 34
(a) General. ................................................................................................ 34
(b) Statutory Duties. ................................................................................. 35
(c) Habeas Corpus and Collateral Relief. .............................................. 35
(d) Post-Conviction Habeas Corpus and Related Actions. ................ 35
(e) Miscellaneous Duties. ........................................................................ 35
(f) Method of Assignment of Matters to Magistrate Judges.............. 37
LR Civ P 72.2. Effect of Magistrate Judge Ruling Pending Objection ....................... 37
LR Civ P 73.1. Special Designation of Magistrate Judges .......................................... 37
(a) Consent of the Parties. ...................................................................... 37
(b) Notice of Consent Option. ............................................................... 37
(c) Execution of Consent. ....................................................................... 38
v
(d) Vacating a Reference.......................................................................... 38
LR Civ P 77.1. Principal Offices ................................................................................. 38
LR Civ P 77.2. Divisions ............................................................................................. 38
LR Civ P 77.3. Sessions ............................................................................................... 39
LR Civ P 77.4. Court Library ...................................................................................... 40
LR Civ P 78.1. Hearing on Motions ............................................................................ 40
LR Civ P 79.1. Custody and Disposition of Exhibits .................................................. 40
(a) During Trial or Hearing. ................................................................... 40
(b) After Trial or Hearing. ....................................................................... 41
(c) Alternative Procedures for Custody and Disposition of Exhibits.
............................................................................................................... 41
LR Civ P 79.2. Removal of Papers from Custody of Clerk ......................................... 41
LR Civ P 83.1. Admission of Attorneys ...................................................................... 42
(a) Admission as Member of Bar or Court........................................... 42
(b) Sponsorship of Visiting Attorneys by Members of Court. .......... 42
(c) Appearance by Assistant United States Attorneys and Assistant
Federal Public Defenders. ................................................................. 42
(d) Appearance by Federal Government Attorneys. ........................... 43
LR Civ P 83.2. Legal Assistance by Law Students ..................................................... 43
(a) Written Consent. ................................................................................ 43
(b) Responsibilities of Attorneys of Record. ........................................ 43
(c) Eligibility Requirements. ................................................................... 44
LR Civ P 83.3. Representation of Parties .................................................................... 44
LR Civ P 83.4. Termination of Representation ........................................................... 44
LR Civ P 83.5. Pro se Appearances............................................................................. 45
LR Civ P 83.6. Admission of Visiting Attorneys ........................................................ 45
(a) Procedure for Admission. ................................................................. 45
(b) Motion Not Required. ....................................................................... 45
(c) Payment of Visiting Attorney Fee. .................................................. 46
(d) Exceptions to Payment of Visiting Attorney Fee. ......................... 46
(e) Waiver of Payment of Visiting Attorney Fee. ................................ 47
(f) Revocation of Visiting Attorney Privilege. ..................................... 47
vi
LR Civ P 83.7. Codes of Professional Conduct ........................................................... 47
LR Civ P 83.8. Bias and Prejudice............................................................................... 47
LR Civ P 83.9. Opening Statements and Closing Arguments to Jury ......................... 48
(a) Opening Statements. .......................................................................... 48
(b) Closing Arguments. ............................................................................ 48
LR Civ P 83.10. Photography in and Broadcasting from the Courtroom ...................... 49
LR Civ P 83.11. Impoundment of Photography and Broadcasting Equipment ............. 49
LR Civ P 83.12. Scheduling Conflicts ........................................................................... 49
LR Civ P 83.13. Referral of Cases to Bankruptcy Court ............................................... 49
LR Civ P 83.14. Appeal of a Bankruptcy Court Judgment, Order, or Decree to the
District Court ...................................................................................... 50
LR Civ P 83.15. Courthouse Security ............................................................................ 50
(a) Entry of Federal Courthouse Buildings. ......................................... 50
(b) Persons Requiring Access. ................................................................ 50
(c) Weapons. ............................................................................................. 50
(d) Identification Card. ............................................................................ 51
(e) Wireless Communication Devices. .................................................. 51
II. LOCAL RULES OF CRIMINAL PROCEDURE ..................................................... 52
LR Cr P 5.1. Initial Appearance ............................................................................... 52
(a) Pretrial Services Interview. ................................................................ 52
(b) Disclosure of Pretrial Services Information. .................................. 52
(c) Standard Terms and Conditions for Release on Bond. ................ 52
(d) Modification of Conditions of Pretrial Release. ............................ 53
LR Cr P 7.1. Assignment of Cases ........................................................................... 53
LR Cr P 7.2. Reassignment, Referral and Intra-District Transfer of Cases ............. 53
LR Cr P 10.1. Arraignment and Plea ......................................................................... 53
(a) Notice of Date and Time. ................................................................. 53
(b) Notice of Motion to Dismiss............................................................ 54
(c) No Further Notice. ............................................................................ 54
LR Cr P 12.1. Pretrial Motions .................................................................................. 54
(a) Date for Filing Pretrial Motions in Lieu of Standard Request for
Discovery. ............................................................................................ 54
vii
(b) Date for Filing Pretrial Motions in Addition to Standard Request
for Discovery. ..................................................................................... 54
(c) Time for Response to Pretrial Motions. ......................................... 54
(d) Pretrial Hearing. .................................................................................. 54
(e) Courtroom Technology. .................................................................... 54
LR Cr P 16.1. Arraignment and Standard Discovery Requests ................................. 55
(a) Standard Discovery Request Form. ................................................. 55
(b) Reciprocal Discovery. ........................................................................ 55
(c) Time for Government Response. .................................................... 55
(d) Time for Reciprocal Discovery Response. ..................................... 55
(e) Defense Discovery Request Deemed Speedy Trial Motion......... 55
(f) Duty to Supplement. .......................................................................... 56
LR Cr P 18.1. Principal Offices ................................................................................. 56
LR Cr P 18.2. Divisions ............................................................................................. 56
LR Cr P 23.1. Opening Statements in Criminal Trials............................................... 57
LR Cr P 26.1. Addressing the Court; Examination of Witnesses .............................. 57
LR Cr P 30.1. Jury Instructions .................................................................................. 57
LR Cr P 31.1. Contact with Jurors ............................................................................. 58
LR Cr P 32.1. Presentence Interview ......................................................................... 58
LR Cr P 32.2. Disclosure of Presentence Reports, Statement of Reasons and Probation
Records ............................................................................................... 58
(a) Disclosure of Presentence Reports. ................................................. 58
(b) Statement of Reasons......................................................................... 59
(c) Disclosure of Probation Office Recommendation. ...................... 59
LR Cr P 32.3. Standard Conditions of Probation and Supervised Release in all
Criminal Cases .................................................................................... 59
LR Cr P 32.4. Standard and Optional Conditions of Probation and Supervised Release
in all Sex Offense Cases ..................................................................... 60
(a) Standard Conditions. ......................................................................... 60
(b) Optional Conditions. ......................................................................... 62
LR Cr P 32.1.1. Modification or Revocation of Probation or Supervised Release ....... 63
(a) Petition for Modification or Revocation......................................... 63
(b) Disclosure of Evidence. .................................................................... 64
viii
(c) Recommendation for Revocation of Probation or Supervised
Release.................................................................................................. 64
(d) Request for Modification of the Terms of Probation or
Supervised Release. ............................................................................ 64
LR Cr P 44.1. Admission of Attorneys ...................................................................... 64
(a) Admission as Member of Bar or Court........................................... 64
(b) Sponsorship of Visiting Attorneys by Members of Court. .......... 65
(c) Appearance by Assistant United States Attorneys and Assistant
Federal Public Defenders. ................................................................. 65
(d) Appearance by Federal Government Attorneys. ........................... 65
LR Cr P 44.2. Legal Assistance by Law Students ..................................................... 66
(a) Written Consent. ................................................................................ 66
(b) Responsibilities of Attorneys of Record. ........................................ 66
(c) Eligibility Requirements. ................................................................... 66
LR Cr P 44.3. Representation of Parties .................................................................... 67
LR Cr P 44.4. Termination of Representation ........................................................... 67
LR Cr P 44.5. Pro se Appearances............................................................................. 67
LR Cr P 44.6. Admission of Visiting Attorneys ........................................................ 67
(a) Procedure for Admission. ................................................................. 67
(b) Motion Not Required. ....................................................................... 68
(c) Payment of Visiting Attorney Fee. .................................................. 68
(d) Exceptions to Payment of Visiting Attorney Fee. ......................... 69
(e) Waiver of Payment of Visiting Attorney Fee. ................................ 69
(f) Revocation of Visiting Attorney Privilege. ..................................... 69
LR Cr P 44.7. Code of Professional Conduct ............................................................ 70
LR Cr P 44.8. Bias and Prejudice............................................................................... 70
LR Cr P 49.1. Filing Papers ....................................................................................... 70
LR Cr P 49.2. Filing by Facsimile or Electronic Means ............................................ 71
LR Cr P 49.1.1. Privacy Protection for Filings Made with the Court ........................... 71
(a) Documents. ......................................................................................... 71
(b) Transcripts of Hearings. .................................................................... 72
LR Cr P 53.1. Photography in and Broadcasting from Courtroom ............................ 72
LR Cr P 53.2. Impoundment of Photography and Broadcasting Equipment ............. 72
ix
LR Cr P 55.1. Custody and Disposition of Exhibits .................................................. 73
(a) During Trial or Hearing. ................................................................... 73
(b) After Trial or Hearing. ....................................................................... 73
(c) Alternative Procedures for Custody and Disposition of Exhibits.
............................................................................................................... 74
LR Cr P 55.2. Removal of Papers from Custody of Clerk ......................................... 74
LR Cr P 56.1. Sessions ............................................................................................... 75
LR Cr P 57.1. Courthouse Security ............................................................................ 75
(a) Entry of Federal Courthouse Buildings. ......................................... 75
(b) Persons Requiring Access. ................................................................ 75
(c) Weapons. ............................................................................................. 75
(d) Identification Card. ............................................................................ 75
(e) Wireless Communication Devices. .................................................. 76
LR Cr P 58.1. Authority of Magistrate Judges in Misdemeanor Cases ..................... 76
LR Cr P 58.2. Assignment of Misdemeanors and Petty Offenses ............................. 77
LR Cr P 58.3. Petty Offenses ..................................................................................... 77
(a) Schedule of Petty Offenses. .............................................................. 77
(b) Forfeiture of Collateral in Lieu of Appearance. ............................. 77
(c) Failure to Post Collateral. .................................................................. 77
(d) Certification of Convictions of Traffic Violations. ....................... 77
(e) Arrest. ................................................................................................... 78
LR Cr P 59.1. General Authority of Magistrate Judges ............................................. 78
LR Cr P 59.2. Statutory Duties .................................................................................. 78
LR Cr P 59.3. Duties Under the Federal Rules of Criminal Procedure ..................... 78
LR Cr P 59.4. Miscellaneous Duties .......................................................................... 78
LR Cr P 59.5. Assignment of Matters to Magistrate Judges by Division .................. 80
LR Cr P 59.6. Other Duties Assigned and Matters Referred ..................................... 80
x
I. LOCAL RULES OF CIVIL PROCEDURE
LR Civ P 3.1. Assignment of Cases
Cases filed shall be assigned by the clerk to a judge at the direction of the Chief Judge or
through the use of random electronic methods. The clerk shall not reveal the case
assignment allocation or sequence of the electronic method to anyone, unless ordered to
do so by a district judge. A record of all assignments made shall be kept by the clerk.
LR Civ P 3.2. Reassignment, Referral and Intra-District Transfer of Cases
The clerk is authorized to sign orders to effectuate the reassignment, referral or
intra-district transfer of cases when needed and as directed by a judge of this court.
LR Civ P 3.3. Assignment of Urgent Cases or Matters
In matters requiring urgent and immediate attention by a judge and for which a district
judge has not yet been assigned, such as a complaint and motion for temporary
restraining order or injunctive relief, the filing party shall contact the clerk after filing the
document(s). The clerk, after consulting with the Chief Judge, shall forthwith assign such
urgent case or matter to an available judge in the District.
LR Civ P 3.4. Local Filing Requirements
(a) Civil Docket Cover Sheet.
A civil docket cover sheet, in a form supplied by the clerk, must be completed and
submitted with any complaint commencing an action or any notice of removal
from state court. Each cover sheet must cite the title and section of the United
States Code or relevant statute pursuant to which the action or notice is filed.
(b) State Court Docket Sheet.
When any notice of removal from state court is filed, the filing party must also
attach to the notice of removal a copy of the docket sheet from the circuit court
from which the case is being removed in addition to any other documents required
by federal rule or statute.
Page 1 of 80
LR Civ P 3.5. Proceedings without Prepayment of Fees and Costs
Application to proceed without prepayment of fees and costs shall be made upon a form
available from the clerk and on the court=s web site.
In all cases initiated without payment of fees and costs, the affiant shall stipulate in his or
her affidavit that any recovery in the action shall be paid to the clerk, who shall pay
therefrom any remaining unpaid costs taxed against the plaintiff and remit the balance to
the plaintiff, if pro se, or, otherwise, to the plaintiff and his or her attorney jointly.
LR Civ P 4.1. Waiver of Service
A plaintiff who intends to obtain service of summons on a defendant under the provisions
of FR Civ P 4(d)(1) shall, within 14 days of the filing of the complaint, dispatch the
notice and request through first-class mail or other reliable means to the defendant and
file a copy thereof with the clerk. If a plaintiff fails to dispatch and file the notice and
request within the period specified, service of the summons shall be effectuated by means
other than by waiver of service unless otherwise ordered. A plaintiff who dispatches a
notice and request under the provisions of FR Civ P 4(d)(1) shall allow the defendant not
less than 30 days nor more than 45 days from the date on which the notice and request is
sent, or not less than 60 days nor more than 75 days from that date if the defendant is
addressed outside any judicial district of the United States, within which to return the
waiver of service. The plaintiff shall file the waiver of service with the clerk within 7
days after its return.
LR Civ P 4.1.1. Initiation of Civil Contempt Proceedings
A proceeding to adjudicate a person in civil contempt of court shall be commenced by the
service of a notice of motion or order to show cause. The affidavit upon which the notice
of motion or order to show cause is based shall state with particularity the misconduct
complained of, the claim, if any, for damages, and any evidence that is available to the
moving party as to the amount of damages. A reasonable attorney=s fee, necessitated by
the contempt proceeding, may be included as an item of damage. Where the alleged
contemnor has appeared by an attorney, the notice of motion or order to show cause and
the papers upon which it is based may be served upon his or her attorney; otherwise,
service shall be made personally in the manner provided for by the Federal Rules of Civil
Procedure for the service of a summons. If an order to show cause is sought, the order,
upon a showing of necessity, may include a direction to the United States Marshal to
arrest the alleged contemnor and hold him or her on bail in an amount fixed by the order,
conditioned for his or her appearance at the hearing, and further conditioned that the
Page 2 of 80
alleged contemnor will hold himself or herself thereafter amenable to all orders of the
court for his or her surrender.
LR Civ P 4.1.2. Issues; Trial by Jury
If the alleged contemnor puts in issue his or her alleged misconduct or the damages
sought, he or she shall, upon demand, be entitled to have evidence taken, either before the
court or before a master appointed by the court. When the alleged contemnor is entitled to
a trial by jury, he or she shall make written demand therefor at least 7 days before the
trial date; otherwise he or she will have waived a trial by jury.
LR Civ P 4.1.3. Order of the Court; Confinement of Contemnor
In the event the alleged contemnor is found to be in contempt of court, an order shall be
entered:
(a) reciting the verdict or findings of fact upon which the adjudication is based;
(b) setting forth the amount of the damages to which the complainant is entitled;
(c) fixing the fine, if any, imposed by the court (with the fine to include the damages)
and naming the person to whom the fine shall be payable;
(d) stating any other conditions necessary to purge the contempt; and
(e) directing the arrest of the contemnor by the United States Marshal and his or her
confinement until the performance of the conditions in the order and the payment
of the fine, or until the contemnor is otherwise lawfully discharged.
Unless the order specifies otherwise, the place of confinement shall be in a federally
approved jail facility in the area where the court is sitting. No party shall be required to
pay or to advance to the marshal any expenses for the upkeep of the prisoner. A certified
copy of the order committing the contemnor shall be sufficient warrant to the marshal for
the arrest and confinement of the contemnor. The aggrieved party shall also have the
same remedies against the property of the contemnor as if the order awarding the
judgment or fine were a final judgment.
In the event the alleged contemnor is found not guilty of the charges, he or she shall be
discharged from the proceeding and, at the discretion of the court, may have judgment
against the complainant for his or her costs and disbursements and a reasonable attorney=s
fee.
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LR Civ P 5.1. Filing Pleadings and Other Papers
(a) Filing of Papers.
Except as otherwise permitted or required by the Federal Rules, these local rules,
or order, the original of all papers, not electronically filed, that must be filed with
the court shall be filed at the clerk=s office at the point of holding court in which
the particular action or proceeding is docketed. In emergency situations, due to
travel conditions, time limitations or other factors, filings may be made at any of
the clerk=s offices, in which event the papers so filed shall be forwarded by the
receiving clerk=s office to the clerk=s office at the point of holding court in which
the particular action or proceeding is docketed.
(b) Filing by Facsimile Transmission.
The clerk=s office will not accept any facsimile transmission for filing unless
ordered by the court.
(c) Filing by Electronic Means.
AElectronic Filing@ means uploading a document directly from the filer=s computer
using the Court=s Case Management/Electronic Filing System (CM/ECF) onto the
case docket.
Pursuant to FR Civ P 5(d)(4), the clerk=s office will accept pleadings or
documents filed, signed or verified by electronic means that are consistent with
the technical standards, if any, that the Judicial Conference of the United States
establishes. A pleading or document filed by electronic means in compliance with
this Rule constitutes a written paper for the purpose of applying these Rules and
the Federal Rules of Civil Procedure. All electronic filings shall be governed by
the court=s Administrative Procedures for Electronic Case Filing, the provisions of
which are incorporated by reference, and which may be amended from time to
time by the court.
LR Civ P 5.2.1. Privacy Protection for Filings Made with the Court
(a) Documents.
In compliance with the policy of the Judicial Conference of the United States, and
the E-Government Act of 2002 and its amendments, and in order to promote
electronic access to case files while also protecting personal privacy and other
legitimate interests, parties shall refrain from including, or shall partially redact
where inclusion is necessary, the following personal data identifiers from all
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pleadings filed with the court, including exhibits thereto, whether filed,
electronically or in paper, unless otherwise ordered by the court.
(1) Social Security Numbers. If an individual's social security number must
be included in a pleading, only the last four digits of that number should
be used.
(2) Names of Minor Children. If the involvement of a minor child must be
mentioned, only the initials of that child should be used.
(3) Dates of Birth. If an individual's date of birth must be included in a
pleading, only the year should be used.
(4) Financial Account Numbers. If financial account numbers are relevant,
only the last four digits of these numbers should be used.
In compliance with the E-Government Act of 2002, a party wishing to file a
document containing the personal data identifiers listed above may file an
unredacted document under seal or may file a reference list under seal. This
document shall be retained by the court as part of the record. The court will
require the party to file a redacted copy for the public file.
The responsibility for redacting these personal identifiers rests solely with counsel
and the parties. The Clerk will not review each pleading for compliance with this
rule.
(b) Transcripts of Hearings.
If information listed in Section (a) of this Rule is elicited during testimony or
other court proceedings, it will become available to the public when the official
transcript is filed at the courthouse unless, and until, it is redacted. The better
practice is to avoid introducing this information into the record in the first place.
If a restricted item is mentioned in court, any party or attorney may ask to have it
stricken from the record or partially redacted to conform to the privacy policy, or
the court may do so on its own motion.
LR Civ P 6.1. Definitions
For the purpose of these Local Rules of Civil Procedure, Ajudicial officer@ means a
district judge or, when authorized by a district judge, a statute, the Federal Rules of Civil
Procedure, or these Local Rules of Civil Procedure, a magistrate judge.
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LR Civ P 7.1. Motion Practice
(a) Motions and Supporting Memoranda.
(1) General. All motions shall be concise, state the relief requested
precisely, and be filed timely but not prematurely. Copies of depositions
(or pertinent portions thereof), admissions, documents, affidavits, and
other such materials or exhibits upon which the motion relies shall be
attached to the motion, not the supporting memorandum.
(2) Length. A memorandum of not more than 20 pages in length must
accompany the following types of motions: (1) to intervene; (2) to
transfer; (3) to vacate; (4) to reconsider; (5) for rehearing; (6) for attorney
fees; (7) for clarification; (8) to realign parties; (9) to consolidate; (10) to
recuse; (11) to dismiss; (12) to remand; (13) for summary judgment; (14)
for sanctions; (15) for default judgment; (16) for declaratory judgment;
(17) to compel arbitration; (18) for injunctive relief or for a temporary
restraining order; (19) for a new trial, to reconsider or to alter or amend
judgment; (20) to reinstate or reopen a civil action; (21) to substitute a
party; (22) to stay; (23) to seal; or (24) to show cause.
In addition to these motions, the court has discretion to direct a movant to
submit a memorandum to accompany any other type of motion. If a
movant deems appropriate, a memorandum of not more than 20 pages in
length may accompany any other type of motion even if not required by
this rule or the court. Any response and reply memoranda shall adhere to
the same page limitation.
Motions to exceed the page limitation are disfavored and will be denied
absent a showing of good cause. Unless extraordinary circumstances exist,
a motion to exceed the page limitation for a supporting memorandum of
law, memorandum in response, and a memorandum in reply, must be
tendered to the presiding judge at least 3 days in advance of filing the
proposed oversized memorandum.
If a memorandum is not submitted as required by this rule or by the court,
the motion will be denied without prejudice.
(3) Paper Size, Line Spacing and Margins. All memoranda must be on 82
by 11 inch paper. The text must be double-spaced, but quotations more
than two lines long may be indented and single-spaced. Headings and
footnotes may be single-spaced. Margins must be at least one inch on all
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four sides. Page numbers may be placed in the margins, but no text may
appear there.
(4) Typeface and Type Styles. Either a proportionally spaced or monospaced
face may be used. A proportionally spaced face must be 12-point or larger.
A monospaced face may not contain more than 102 characters per inch.
The font must be either Times New Roman, Courier New, or Arial.
(5) Courtesy Copies of Memoranda. When electronically filing documents
with the clerk=s office, a paper courtesy copy to the assigned judicial
officer is not required except where any motion, memorandum, response,
or reply, together with documents in support thereof, is 50 pages or more
in length, or where any administrative record is 75 pages or more in
length.
(6) Motions to Dismiss. Motions to dismiss shall be given priority status
provided they are designated prominently as a motion to dismiss and filed
as a separate pleading.
(7) Filing Deadlines for Response and Reply Memoranda. Memoranda and
other materials in response to motions shall be filed and served on
opposing counsel and unrepresented parties within 14 days from the date
of service of the motion. Any reply memoranda shall be filed and served
on opposing counsel and unrepresented parties within 7 days from the date
of service of the memorandum in response to the motion. Surreply
memoranda shall not be filed except by leave of court. These times for
serving memoranda may be modified by the judicial officer to whom the
motion is addressed.
(8) Referral to Magistrate Judge. Non-dispositive discovery and pretrial
motions relating to discovery practice are referred to a magistrate judge
unless otherwise ordered by the district judge assigned to the case. All
other non-dispositive motions and any dispositive motion may be referred
to a magistrate judge by the district judge assigned to the case.
(9) Action on Motions. All motions shall be decided expeditiously to
facilitate compliance with the deadlines established by the scheduling
order. Failure of a judicial officer to rule on a dispositive motion may be
good cause for modification of a scheduling order upon motion of a party.
District judges may impose time limits on referred motions and monitor
those time limits.
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(10) Courtroom Technology: If any courtroom technology is required for a
hearing, counsel must request any such technology by filing a certification
that the court=s technology staff has been notified. The certification
regarding such notification shall be filed with the clerk no later than 7
days before the scheduled commencement of the hearing.
LR Civ P 9.1. Scope and Assignment
(a) Scope.
These rules apply to actions in which an individual seeks district court review of a
final decision of the Commissioner of Social Security (Commissioner), pursuant
to 42 U.S.C. ' 405(g).
(b) Appeals of Social Security Claims.
When an appeal of a Social Security claim is filed, it will be referred to the
magistrate judge. The clerk will provide to each party and/or attorney a AConsent
to Proceed Before U.S. Magistrate Judge@ form along with a notice to return the
completed consent form within 21 days. If the United States Attorney offers to
consent in all Social Security appeals by providing the clerk with a letter to that
effect, it will not be necessary for the Commissioner of Social Security to
complete the consent form; a copy of the letter will be placed in the file when the
plaintiff=s consent is filed. When the parties in a Social Security appeal consent to
proceed before a magistrate judge, it is not necessary for a district judge to sign an
order of reference.
LR Civ P 9.2. Initiation of Action - Complaint
A plaintiff shall file a complaint to initiate an action to seek review of a final decision of
the Commissioner pursuant to 42 U.S.C. ' 405(g) by:
(a) completing and filing the form AComplaint for Review of the Decision of the
Commissioner of Social Security@ appended to these Rules, or
(b) filing a complaint that contains the following information:
(1) the street address, city, county, and state of the plaintiff=s residence;
(2) the plaintiff=s Social Security number(s), date(s) of birth, names of minor
children (with cases involving children under age eighteen, both the parent
or guardian and the child claimant);
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(3) the date of the decision of the Appeals Council;
(4) an allegation that the decision of the Commissioner is not supported by
substantial evidence and/or a description of other error alleged by the
plaintiff;
(5) a demand for the specific relief claimed; and
(6) the address, telephone, facsimile number, and e-mail address of plaintiff=s
attorney.
If the plaintiff is not represented by an attorney, the plaintiff shall also provide the
plaintiff=s telephone number and facsimile number and e-mail address, if any.
LR Civ P 9.3. Commissioner=s Response
(a) Filing and Service.
No later than 60 days after the plaintiff serves the summons and complaint, the
Commissioner shall file and serve on the plaintiff either:
(1) a motion and memorandum in support as described in LR Civ P 9.5(a)(1),
or
(2) an answer alleging generally that the Commissioner=s decision is
supported by substantial evidence and a certified copy of the
administrative transcript.
The motion or answer shall include the name, telephone number, facsimile
number, and e-mail address of the Assistant United States Attorney who is
responsible for the case.
(b) Privacy.
In addition to the docket sheet, the public may view an opinion, order, judgment,
or other disposition of the court in Social Security cases via remote internet
access. However, the remainder of the Social Security case files, including the
Administrative records, will be available only to the court and to the parties
through their counsel via the court=s remote electronic filing system. Social
Security files are still available at the courthouse in their entirety to the general
public.
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(c) Form.
Social Security case documents are exempt from the court=s civil case redaction
requirements.
(d) Discovery.
Discovery is not permitted in these cases.
(e) Material Defect in Administrative Transcript.
If a party discovers an omission from, improper submission with, or other similar
defect in the administrative transcript, the party may notify the court and opposing
party by filing a motion to correct the transcript. Upon a finding that a defect in
the transcript is material, the court may enter an order requiring the defendant to
file a supplemental certified administrative transcript. Deadlines for filing briefs
will run from the date of filing of the certified administrative transcript or the
supplemental certified administrative transcript, whichever occurs last.
LR Civ P 9.4. Briefs
(a) Time for Filing and Service.
The plaintiff shall file and serve a brief in support of the complaint no later than
30 days after the date of service of the certified (or supplemental) administrative
transcript. The Commissioner shall file and serve a brief in support of the
defendant=s decision no later than 30 days after the date of service of the
plaintiff=s brief. The plaintiff may file and serve a reply brief no later than 14 days
after the date of service of the Commissioner=s brief.
(b) Form of Briefs.
The plaintiff=s brief shall contain a statement of issues, a statement of the facts,
and an argument on each issue asserted. The statement of facts shall cite by
transcript page number to the evidence on which the plaintiff relies. The argument
on each issue shall identify the findings which are alleged not to be supported by
substantial evidence, and other errors which are alleged to have been made, with
citations to the pertinent transcript pages and to relevant regulations, rulings, and
cases. The Commissioner=s brief shall contain a statement of facts and an
argument in response to each issue raised by the plaintiff. Opening and
responding briefs shall not exceed 20 double-spaced pages and the reply brief
shall not exceed 10 double-spaced pages, except with leave of court. Neither a
table of contents nor a table of authorities is required.
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LR Civ P 9.5. Motions to Dismiss or Remand
(a) Time for Filing by Commissioner.
No later than 60 days after the plaintiff serves the summons and complaint, the
Commissioner may file and serve either:
(1) a motion to dismiss pursuant to FR Civ P 12 and
memorandum in support, or
(2) a motion to remand to the Commissioner for further action pursuant to
either sentence four or sentence six of 42 U.S.C. ' 405(g).
(b) Time for Filing by Plaintiff.
After the Commissioner has filed and served an answer and certified
administrative transcript, the plaintiff may file and serve a motion to remand
under sentence six of 42 U.S.C. ' 405(g) and a memorandum in support of such
motion, based on presentation of new and material evidence.
(c) Briefs.
The time periods for filing and serving responses and replies to motions to
dismiss or to remand are the same as for briefs.
LR Civ P 9.6. Petition or Motion for Attorney=s Fees
The time limits set forth in FR Civ P 54(d) do not apply to petitions or motions for
attorney=s fees in Social Security cases. If the plaintiff seeks attorney=s fees pursuant to
the Equal Access to Justice Act, a motion for such fees shall be filed within 90 days of
the entry of final judgment, pursuant to 28 U.S.C. ' 2412(d) and served on the United
States Attorney. If the plaintiff seeks attorney=s fees pursuant to 42 U.S.C. ' 406(b), such
motion for fees shall be filed promptly after the plaintiff receives notice of the amount of
past-due benefits, shall be itemized, shall be limited to the time expended in the
representation of the plaintiff in federal court, and shall be served on the United States
Attorney.
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LR Civ P 9.7. Electronic Filing
Electronic filing of documents is required. In addition to the electronic filing, a paper
copy of the certified administrative transcript (and certified supplemental administrative
transcript, if any), however, shall be provided by the Commissioner to the chambers of
the magistrate judge assigned to the action when the answer is filed.
LR Civ P 9.8. Oral Argument
The court will generally decide Social Security appeals on the pleadings and briefs,
without oral argument. A judicial officer may hear oral argument, either sua sponte or at
the request of either party.
LR Civ P 9.9. Other Local Rules in Conflict
These Rules governing Social Security appeals take precedence over other Local Rules in
conflict with them.
LR Civ P 11.1. Verification of Pleadings
Attorneys for parties in proceedings in this court shall not verify pleadings or other
papers except where required by statute or rule. The court may grant exceptions to this
rule for good cause. Violations of this rule will not void or impair any pleading,
document or paper to the detriment of the parties.
LR Civ P 11.2. Stipulations
Unless otherwise ordered, stipulations under the Federal Rules of Civil Procedure and
these Local Rules of Civil Procedure must be in writing, signed by the parties making
them or their counsel, and promptly filed with the clerk.
LR Civ P 12.1. Extensions of Answer Date
Unless otherwise ordered, the time to answer or otherwise respond to a complaint may be
extended by stipulation. For purposes of LR Civ P 16.2 only, the stipulation shall
constitute an appearance by any defendant who is a party to it. An extension by
stipulation will not affect other deadlines established by the Federal Rules of Civil
Procedure, these Local Rules of Civil Procedure, or the court.
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LR Civ P 16.1. Scheduling Conferences
(a) Convening of Scheduling Conferences; Removed and Transferred Actions.
Except in actions exempted by paragraph (g) of this rule or as otherwise ordered,
a judicial officer shall convene a scheduling conference as soon as practicable, but
in any event within 80 days after the appearance of a defendant and within 110
days after the complaint has been served on a defendant.
By entry of an Order and Notice, a judicial officer shall establish the date, time,
and place of the scheduling conference, and inform the parties of their right to
consent to proceed before a magistrate judge under FR Civ P 73(b). As soon as
practicable, but in no event later than 7 days after the appearance of a defendant,
the clerk shall transmit a notice of the conference to all counsel then of record and
to each then unrepresented party for whom an address is available from the
record. The notice shall also establish the date by which a meeting of the parties
must be held pursuant to FR Civ P 26(f) and paragraph (b) of this rule, and the
date by which a written report on the meeting of the parties must be submitted to
the court pursuant to FR Civ P 26(f) and paragraph (c) of this rule.
In a case removed or transferred to this court, a judicial officer shall convene a
scheduling conference as soon as practicable, but in no event later than 60 days
after removal or transfer. The notice required under this paragraph shall be
transmitted to all parties or their attorneys no later than 7 days after the case is
removed or transferred.
(b) Obligation of the Parties to Meet.
The parties shall, as soon as practicable and in any event at least 21 days before
the date set for the scheduling conference, meet in person or by telephone to
discuss and report on all FR Civ P 16 and 26(f) matters, and to:
(1) consider, consistent with paragraph (d) of this rule, whether the case is
complex and appropriate for monitoring in an individualized and
case-specific manner through one or more case-management conferences,
and, if it is, to propose for the court=s consideration 3 alternative dates and
times for the first conference;
(2) agree, if they can, upon the disputed facts that have been alleged with
particularity in the pleadings;
(3) consider consenting to trial by a magistrate judge; and
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(4) consider alternative dispute resolution processes such as the one in LR Civ
P 16.6.
Counsel and all unrepresented parties who have appeared in the case are jointly
responsible for arranging and being present or represented at the meeting,
agreeing on matters to be considered at the scheduling conference, and
considering a prompt settlement or resolution of the case.
(c) Written Report on the Meeting of the Parties; Cancellation of Scheduling
Conference.
Counsel and all unrepresented parties who were present or represented at the
meeting are jointly responsible for submitting to the court, no later than 14 days
before the date set for the scheduling conference, a written report on their
meeting. The written report submitted by the parties shall follow a form available
from the clerk and on the court=s web site.
In the report on the meeting, any matters on which the parties differ shall be set
forth separately and explained. The parties= proposed pretrial schedule and plan of
discovery and disclosures shall advise the court of their best estimates of the time
needed to accomplish specified pretrial steps.
The parties= report on their meeting shall be considered by the judicial officer as
advisory only. If, after the date fixed for filing the written report, the judicial
officer determines that the scheduling conference is not necessary, it may be
cancelled and the scheduling order may be entered.
(d) Conduct of Scheduling Conferences.
Except in a case in which a scheduling conference has been cancelled pursuant to
paragraph (c) of this rule, a judicial officer shall convene a scheduling conference,
which may be held by telephone, within the mandatory time frame specified in
paragraph (a) of this rule regardless of whether the parties have met pursuant to
paragraph (b) of this rule or filed a written report pursuant to paragraph (c) of this
rule.
At the scheduling conference, the judicial officer shall consider any written report
submitted by the parties and discuss with them time limits and other matters they
were obligated to consider in their meeting and that may be addressed in the
scheduling order.
At or following the scheduling conference if one is held, or as soon as practicable
after the date fixed for filing the written report if the scheduling conference is
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cancelled, the judicial officer shall determine whether the case is complex or
otherwise appropriate for careful and deliberate monitoring in an individualized
and case-specific manner. The judicial officer shall consider assigning in the
scheduling order any case so categorized to a case-management conference or
series of conferences under LR Civ P 16.2. If the case is so assigned, the
scheduling order, notwithstanding paragraph (e) of this rule, may be limited to
establishing time limits and addressing other matters that should not await the first
case-management conference. The factors to be considered by the judicial officer
in determining whether the case is complex include:
(1) the complexity of the issues, the number of parties, the difficulty of the
legal questions and the uniqueness of proof problems;
(2) the amount of time reasonably needed by the parties and their attorneys to
prepare the case for trial;
(3) the judicial and other resources required and available for the preparation
and disposition of the case;
(4) whether the case belongs to those categories of cases that involve little or
no discovery,
(A) ordinarily require little or no additional judicial intervention, or
(B) generally fall into identifiable and easily managed patterns;
(5) the extent to which individualized and case-specific treatment will
promote the goal of reducing cost and delay; and
(6) whether the public interest requires that the case receive more intense
judicial attention.
(e) Scheduling Orders.
Following the scheduling conference, if one is held, or as soon as practicable after
the date fixed for filing the written report if the scheduling conference is
cancelled, but in any event within 90 days after the appearance of a defendant and
within 120 days after the complaint has been served on a defendant, the judicial
officer shall enter a scheduling order pursuant to FR Civ P 16(b).
(f) Modification of Scheduling Order.
(1) Time limits in the scheduling order for the joinder of other parties,
amendment of pleadings, filing of motions, and completion of discovery,
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and dates for conferences before trial, a final pretrial conference, and trial
may be modified for good cause by order.
(2) Subject to subparagraph (3), stipulations to modify disclosure or discovery
procedures or limitations will be valid and enforced if they are in writing,
signed by the parties making them or their counsel, filed promptly with the
clerk, and do not affect the trial date or other dates and deadlines specified
in subparagraph (1).
(3) A private agreement to extend discovery beyond the discovery completion
date in the scheduling order will be respected by the court if the extension
does not affect the trial date or other dates and deadlines specified in
subparagraph (1). A discovery dispute arising from a private agreement to
extend discovery beyond the discovery completion date need not,
however, be resolved by the court.
(g) Categories of Actions Exempted.
In addition to those actions and proceedings identified in FR Civ P 81 to which
the Federal Rules of Civil Procedure do not apply, the following categories of
actions are exempted from the requirements of FR Civ P 16(b), 26(a)(1)-(4) and
26(f), and of the Local Rules of Civil Procedure relating thereto unless otherwise
ordered:
(1) habeas corpus cases and motions attacking a federal sentence;
(2) procedures and hearings involving recalcitrant witnesses before federal
courts or grand juries pursuant to 28 U.S.C. ' 1826;
(3) actions for injunctive relief;
(4) review of administrative rulings;
(5) Social Security cases;
(6) prisoner petitions pursuant to 42 U.S.C. ' 1983 and ABivens-type@ actions
in which plaintiff is unrepresented by counsel;
(7) condemnation actions;
(8) bankruptcy proceedings appealed to this court;
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(9) collection and forfeiture cases in which the United States is plaintiff and
the defendant is unrepresented by counsel;
(10) Freedom of Information Act proceedings;
(11) certain cases involving the assertion of a right under the Constitution of
the United States or a federal statute, if good cause for exemption is
shown;
(12) post-judgment enforcement proceedings and debtor examinations;
(13) enforcement or vacation of arbitration awards;
(14) civil forfeiture actions;
(15) student loan collection cases;
(16) actions which present purely legal issues, require no resolution of factual
issues, and which may be submitted on the pleadings, motions and
memoranda of law; and
(17) actions filed pursuant to the Employment Retirement Income Security Act
(ERISA), 29 U.S.C. ' 1001 et seq.; and
(18) such other categories of actions as may be exempted by standing order.
LR Civ P 16.2. Case-Management Conferences in Complex Cases
(a) Conduct of Case-Management Conferences.
Case-management conferences shall be presided over by a judicial officer who, in
furtherance of the scheduling order required by LR Civ P 16.1, may:
(1) explore the possibility of settlement;
(2) identify the principal issues in contention;
(3) prepare a specific discovery schedule and plan that may
(A) identify and limit the discovery available to avoid unnecessary,
unduly burdensome or expensive discovery, and
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(B) sequence discovery into two or more stages, and include time
limits for the completion of discovery;
(4) establish deadlines for filing motions and a schedule for their disposition;
(5) consider the bifurcation of issues for trial as set forth in FR Civ P 42(b);
and
(6) explore any other matter appropriate for the management of the case.
(b) Obligation of Counsel to Confer.
The judicial officer may require counsel and unrepresented parties to confer
before a case-management conference and prepare a statement containing:
(1) an agenda of matters that any party believes should be addressed at the
case-management conference; and
(2) a report of whether the case is progressing within the allotted time limits
and in accord with specified pretrial steps.
This statement is to be filed no later than 7 days before the case-management
conference.
(c) Number of Case-Management Conferences and Conference Orders.
The judicial officer may convene as many case-management conferences as
appropriate. After a case-management conference, the judicial officer shall enter
an order reciting the action taken. The order shall control the subsequent course of
the action and may be modified in the same manner as a scheduling order under
LR Civ P 16.1(f).
LR Civ P 16.3. Pretrial Conferences in Non-Complex Cases
(a) Convening of Pretrial Conferences.
In addition to any scheduling conference and the final pretrial conference, the
judicial officer to whom the case is assigned for trial may convene as many
pretrial conferences as the judicial officer determines will reduce cost and delay in
the ultimate disposition of the case and may require the parties to meet or confer
in advance of a pretrial conference.
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(b) Pretrial Conference Orders.
After a pretrial conference, the judicial officer shall enter an order reciting the
action taken. The order shall control the subsequent course of the action and may
be modified in the same manner as a scheduling order under LR Civ P 16.1(f).
LR Civ P 16.4. Authority Regarding Settlement, Stipulations and Admissions at
Conferences
At least one of the attorneys for each party and all unrepresented parties participating in
any conference before trial shall have authority to make decisions as to settlement,
stipulations and admissions on all matters that the participants reasonably anticipate may
be discussed.
LR Civ P 16.5. Sanctions
Counsel and parties are subject to sanctions for failures and lack of preparation specified
in FR Civ P16(f) respecting pretrial conferences or orders and are subject to the payment
of reasonable expenses, including attorneys fees, as provided in FR Civ P 37(g) for
failure to participate in good faith in the development and submission of a proposed
discovery plan as required by FR Civ P 26(f) and LR Civ 16.1.
LR Civ P 16.6. Mediation
(a) Cases to be Mediated.
The judicial officer may order mediation sua sponte or at the request of any party.
When so ordered, the following provisions of this local rule shall control. The
Southern District of West Virginia also supports the voluntary use of alternative
dispute resolution and will endeavor to facilitate mediation or similar proceedings
when the presiding judicial officer finds a request to do so appropriate and timely.
The parties are free to engage in mediation without court involvement so long as
it does not interfere with court-ordered deadlines.
(b) Motion for Exception to Mandatory Mediation.
An attorney or a pro se party may file a motion for leave not to engage in
mediation. The presiding judicial officer may grant the motion for good cause
shown.
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LR Civ P 16.6.1. Timing of Mediation
Mediation shall take place at any time ordered by the court. The parties may consult with
each other and agree upon a mutually convenient date, time, and place for the mediation
and ask the court to approve such arrangements.
LR Civ P 16.6.2. Selection of Mediator; Notice of Nomination
The parties are expected to agree upon a mediator, the amount of the mediator=s fee, and
the responsibility for payment. Not later than 7 days before the date set for mediation, or
as otherwise directed by the court, the parties shall file a notice of nomination with the
clerk, setting forth the name, address, telephone number, facsimile number, and e-mail
address of the nominated mediator. The form ANotice of Nomination,@ available from the
clerk and on the court=s web site, shall be used. If the parties are unable to agree on a
mediator, then the parties shall promptly notify the presiding judicial officer, who shall
without delay appoint a mediator, set the amount of the mediator=s fee, and assign
responsibility for payment. The parties may request that a judicial officer (who is not the
presiding judicial officer) conduct the mediation. Such requests are particularly
appropriate in complex cases or in cases in which a party is financially unable to bear its
proportionate share of the mediation expense.
LR Civ P 16.6.3. Appointment of Mediator
Upon the filing of a Notice of Nomination, or upon selection of a mediator by the
presiding judicial officer, an Order Appointing Mediator will be entered, using the form
available from the clerk and on the court=s web site.
LR Civ P 16.6.4. Attendance at Mediation
Unless the court directs otherwise, the following persons shall attend the entire mediation
in person: (a) all lead trial counsel; and (b) any party who is prosecuting a claim (i.e., the
plaintiff(s) and any defendant who has made a counterclaim, cross-claim, or third-party
complaint). Unless the court directs otherwise, any other party or his/her/its
representative who is knowledgeable about the facts of the case, and who has full
authority to negotiate on behalf of the party and to approve or recommend a settlement,
shall attend the entire mediation in person or, with prior approval of the judicial officer,
by telephone or other electronic means such as video-conference.
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LR Civ P 16.6.5. Mediation Statements; Confidentiality
The mediator may require the submission of written mediation statements. If the mediator
does not require submission of written mediation statements, any party may submit a
written mediation statement. Mediation statements submitted in writing to the mediator
are confidential. Oral statements made during the mediation are confidential.
LR Civ P 16.6.6. Impartiality of Mediator
A mediator shall not serve in a case in which the mediator=s impartiality might reasonably
be questioned. Possible conflicts of interest shall be promptly disclosed by the mediator
to counsel and pro se parties.
LR Civ P 16.6.7. Compensation of Mediator
Mediators will be compensated at the rate established when the mediator was selected,
with payment as agreed by the parties or ordered by the presiding judicial officer.
LR Civ P 16.6.8. Notification to Judicial Officer; Report of Mediator
Immediately upon the completion of mediation resulting in the settlement of all or part of
a case, the parties shall notify the chambers of the presiding judicial officers. Within 7
days of the close of mediation, the mediator will file with the clerk a report which states
that all or part of the case was settled (specifying which part of the case settled) or that it
was not settled. If all or part of the case was settled, the parties shall, at the mediation,
place in writing the terms of the settlement, and all participants shall sign the terms of the
settlement, with the mediator retaining the original. Within 30 days of the mediation, the
parties shall submit to the chambers of the presiding judicial officer, an agreed order of
dismissal as to all or part of the case that was settled.
LR Civ P 16.7. Final Pretrial and Settlement Conferences; Pretrial Order
(a) Obligation of Counsel to Meet; Pretrial Disclosures Under FR Civ P 26(a)(3).
Unless otherwise ordered by the judicial officer to whom the case is assigned for
trial, counsel and unrepresented parties shall meet no later than 21 days before the
date of the final pretrial conference to conduct settlement negotiations. Lead
counsel for the plaintiff first named in the complaint shall take the initiative in
scheduling the meeting. If the action is not settled, and if there is no order or
stipulation to the contrary, counsel and unrepresented parties shall make all FR
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Civ P 26(a)(3) disclosures at the meeting. The parties shall prepare a proposed
pretrial order for submission to the judicial officer. Counsel and unrepresented
parties must be prepared at the final pretrial conference to certify that they tried in
their meeting to settle the case.
(b) Proposed Pretrial Order.
Unless otherwise ordered by the judicial officer to whom the case is assigned for
trial, counsel and unrepresented parties shall file, no later than 7 days prior to the
final pretrial conference, a proposed pretrial order setting forth:
(1) the pre-trial disclosures required by FR Civ P 26(a)(3) and any objections
thereto;
(2) contested issues of law requiring a ruling before trial;
(3) a realistic and brief statement by counsel for plaintiff(s) and third-party
plaintiff(s) of essential elements which must be proved to establish any
meritorious claim remaining for adjudication and the damages or relief
sought, accompanied by supporting legal authorities; and by counsel for
defendant(s) and third-party defendant(s) of essential elements which must
be proved to establish any meritorious defense(s), accompanied by
supporting legal authorities. Corresponding statements must also be
included for counterclaims and cross-claims;
(4) in all cases, for each party, a brief summary of the material facts and
theories of liability or defense;
(5) in all cases, for each party, a single listing of the contested issues of fact;
and a single listing of the contested issues of law, together with case and
statutory citations;
(6) stipulations;
(7) suggestions for the avoidance of unnecessary proof and cumulative
evidence;
(8) suggestions concerning any need for adopting special procedures for
managing potentially difficult or protracted aspects of the trial that may
involve complex issues, multiple parties, difficult legal questions or
unusual proof problems;
(9) a list of special voir dire questions, if any, that counsel request be asked of
the jury panel;
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(10) a statement setting forth a realistic estimate of the number of trial days
required;
(11) any courtroom technology requested for use at trial and a certification that
the court=s technology staff has been notified regarding such use no later
than 7 days before the scheduled commencement of trial; and
(12) any other matters relevant for pretrial discussion or disposition, including
those set forth in FR Civ P 16.
(c) Final Pretrial Conference.
The judicial officer to whom the case is assigned for trial shall preside at the final
pretrial conference. The final pretrial conference shall be attended by
unrepresented parties and by lead trial counsel for each represented party rather
than Aby at least one of the attorneys who will conduct the trial for each of the
parties@ as provided in FR Civ P 16(d). Individuals with full authority to settle the
case for each party shall be present in person or immediately available by
telephone. The agenda of the final pretrial conference shall include consideration
of those matters in the proposed pretrial order and any other appropriate matter,
including those set forth in FR Civ P 16(c) and (d).
(d) Final Pretrial Order.
Following the final pretrial conference, the judicial officer shall enter a final
pretrial order, which shall be modified only to prevent manifest injustice.
(e) Final Settlement Conference.
Unless otherwise ordered, a final settlement conference shall be held in each case.
The conference shall be conducted by the judicial officer and attended by
unrepresented parties and lead trial counsel for each represented party.
Individuals with full authority to settle the case for each party shall be present in
person or otherwise available as the court permits.
(f) Settlement Before Trial.
All fees and juror costs shall be imposed upon the parties unless counsel have
notified the court and the clerk=s office of any settlement not later than 3:00 p.m.
of the last business day before trial. The costs shall be assessed equally against the
parties and their counsel unless otherwise ordered.
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LR Civ P 26.1. Control of Discovery
(a) Initial Disclosures Under FR Civ P 26(a)(1).
Unless otherwise ordered or stipulated by the parties, the disclosures required
under FR Civ P 26(a)(1) shall be made no later than 30 days after the meeting
required under FR Civ P 26(f).
(b) Disclosures Under FR Civ P 26(a)(2) Regarding Experts.
Unless otherwise ordered or stipulated by the parties, the making, sequence, and
timing of disclosures under FR Civ P 26(a)(2) will be as follows:
(1) the party bearing the burden of proof on an issue shall make the
disclosures required by FR Civ P 26(a)(2)(A) and (B) for that issue to all
other parties or their counsel no later than 60 days prior to the discovery
completion date;
(2) the party not bearing the burden of proof on an issue shall make the
disclosures required by FR Civ P 26(a)(2)(A) and (B) for that issue to all
other parties or their counsel no later than 30 days prior to the discovery
completion date; and
(3) all parties shall provide no later than 14 days prior to the discovery
completion date the disclosures required by FR Civ P 26(a)(2)(A) and (B)
if the evidence is intended solely to contradict or rebut evidence on the
same issue identified by another party under FR Civ P 26(a)(2)(B).
The disclosures described in FR Civ P 26(a)(2)(B) shall not be required of
physicians and other medical providers who examined or treated a party or party=s
decedent unless the examination was for the sole purpose of providing expert
testimony in the case.
(c) Further Discovery.
After the opportunities for discovery pursuant to the Federal Rules of Civil
Procedure, stipulation of the parties, or order have been exhausted, any requests
that the parties may make for additional depositions, interrogatories, or requests
for admissions shall be by discovery motion.
The judicial officer shall not consider any discovery motion under this rule unless
it is accompanied by a certification that the moving party has made a reasonable
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and good-faith effort to reach agreement with counsel or unrepresented parties
opposing the further discovery sought by the motion.
LR Civ P 26.2. Uniform Definitions in Discovery Requests
(a) Incorporation by Reference and Limitations.
The full text of the definitions set forth in paragraph (c) of this rule is
incorporated by reference into all discovery request, but shall not preclude:
(1) the definition of other terms specific to the particular case;
(2) the use of abbreviations; or
(3) a narrower definition of a term defined in paragraph (c).
(b) Effect on Scope of Discovery.
This rule does not broaden or narrow the scope of discovery permitted by the
Federal Rules of Civil Procedure or these Local Rules.
(c) Definitions.
The following definitions apply to all discovery requests:
(1) Acommunication@ means the transmittal of information (in the form of
facts, ideas, inquiries, or otherwise);
(2) Adocument@ is synonymous in meaning and equal in scope to the usage of
this term in FR Civ P 34(a). A draft or non-identical copy is a separate
document;
(3) Aidentify@ when referring to a person means to give, to the extent known,
the person=s full name and present or last known address. Once a person
has been identified in accordance with this subparagraph, only the name of
that person need be listed in response to subsequent discovery requesting
the identification of that person;
(4) Aidentify@ when referring to documents means to give, to the extent
known, the
(A) type of document,
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(B) general subject matter,
(C) author(s), addressee(s), and recipient(s), and
(D) date the document was prepared;
(5) Aplaintiff,@ Adefendant,@ a party=s full or abbreviated name, or a pronoun
referring to a party, mean the party, and, where applicable, its officers,
directors, employees, and partners. This definition does not impose a
discovery obligation on any person who is not a party to the case;
(6) Aperson@ means any natural person or any business, legal or governmental
entity or association; and
(7) Aconcerning@ means referring to, describing, evidencing, or constituting.
LR Civ P 26.3. Court Filings and Costs
(a) Non-Filing of Discovery Materials Other than Certificates of Service.
Disclosures pursuant to FR Civ P 26(a)(1), (2) and (3), depositions upon oral
examination or written questions, notices of receipt of depositions, interrogatories,
requests pursuant to FR Civ P 34, requests for admissions, and answers and
responses thereto shall not be filed unless ordered or required under these Local
Rules of Civil Procedure. Certificates of service of discovery materials shall be
filed. Unless otherwise stipulated or ordered, the party taking a deposition or
obtaining any material through discovery is responsible for its custody,
preservation and delivery to the court if needed or ordered, and the responsibility
shall not terminate upon dismissal of any party while the action is still pending.
The custodial responsibility of the dismissed party may be discharged by
stipulation of the parties to transfer the custody of the discovered material to one
or more of the remaining parties. If for any reason a party or concerned citizen
believes that any of the named documents should be filed, an ex parte request
may be made that the document be filed, stating the reasons therefor. The court
may also order filing sua sponte. If relief is sought under FR Civ P 26(c) or 37,
copies of the relevant portions of disputed documents shall be filed with any
motion. If the moving party under FR Civ P 56 or the opponent relies on
discovery documents, copies of the pertinent parts shall be filed with the motion
or opposition.
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(b) Inspection of Documents and Copying Expense.
(1) Inspection of Documents. Except as otherwise provided in an order
pursuant to FR Civ P 26(c), all parties to an action shall be entitled to
inspect documents produced by another party pursuant to FR Civ P 33(d)
or 34 at the location where they are produced.
(2) Copies of Documents. Except as otherwise provided in an order pursuant
to FR Civ P 26(c), upon request of any party, and upon that party=s
agreement to pay the reasonable copying costs at the time of delivery, a
party who produces documents pursuant to FR Civ P 33(d) or 34 shall
provide copies of all or any specified part of the documents. No party shall
be entitled to obtain copies of documents produced by another party
pursuant to FR Civ P 33(d) or 34 without paying the reasonable copying
costs. Parties are encouraged, but not required, to provide copies of
documents in electronic format.
LR Civ P 26.4. Protective Orders and Sealed Documents
(a) Protective Orders.
If a party, or parties jointly, seek entry of a protective order to shield information
from dissemination, the movant or movants must demonstrate with specificity that
(1) the information qualifies for protection under FR Civ P 26(c), and (2) good
cause exists for restricting dissemination on the ground that harm would result
from its disclosure.
(b) Sealed Documents.
(1) General. The rule requiring public inspection of court documents is
necessary to allow interested parties to judge the court=s work product in
the cases assigned to it. The rule may be abrogated only in exceptional
circumstances.
(2) Submission. Unless otherwise authorized by law, a motion to seal shall
be filed electronically pursuant to the Administrative Procedures for
Electronic Case Filing and accompanied by a memorandum of law which
contains:
(A) the reasons why sealing is necessary, including the reasons why
alternatives to sealing, such as redaction, are inadequate;
(B) the requested duration of the proposed seal; and
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(C) a discussion of the propriety of sealing, giving due regard to the
parameters of the common law and First Amendment rights of
access as interpreted by the Supreme Court and our Court of
Appeals.
LR Civ P 33.1. Interrogatories
(a) Form of Response.
Each answer, statement or objection shall be preceded by the interrogatory to
which it responds.
(b) Reference to Records.
Whenever a party answers any interrogatory by reference to records from which
the answer may be derived or ascertained, as permitted in FR Civ P 33(d):
(1) the producing party shall make available any computerized information or
summaries thereof that it either has or can adduce by a relatively simple
procedure, unless these materials are privileged or otherwise not subject to
discovery;
(2) the producing party shall provide any relevant compilations, abstracts, or
summaries in its custody or readily obtainable by it, unless these materials
are privileged or otherwise not subject to discovery;
(3) the documents shall be made available for inspection and copying within
14 days after service of the answers to interrogatories or at a date agreed
upon by the parties; and
(4) If a party answers an interrogatory by reference to a deposition in the
action, the party shall identify the deponent and the pages of specific
transcripts where the answer may be found. If a party answers an
interrogatory by reference to a deposition in another action, the party shall
identify the deponent, the date of deposition, the style of the action, the
pages of a specific transcript where the answer may be found and shall
make the deposition available for inspection and copying.
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(c) Answers to Interrogatories Following Objections.
When it is ordered that interrogatories to which objections were made must be
answered, the answers shall be served within 14 days of the order, unless the court
directs or the parties stipulate otherwise.
LR Civ P 34.1. Document Production
(a) Form of Response.
Each answer, statement, or objection shall be preceded by the request to which it
responds.
(b) Objections to Document Requests.
(1) When an objection is made to any document request or sub-part, it shall
state with specificity all grounds for the objection. Any ground not stated
in an objection within the time provided by the FR Civ P 34, or within any
extensions of time, is waived.
(2) No part of a document request shall be left unanswered because an
objection was interposed to another part of the document request.
(c) Answers to Document Requests Following Objections.
When it is ordered that document requests to which objections were made must be
answered, the answers shall be served within 14 days of the order, unless the court
directs or the parties stipulate otherwise.
LR Civ P 36.1. Admissions
(a) Form of Response.
Each answer, statement or objection shall be preceded by the request for
admission to which it responds.
(b) Statements in Response to Requests for Admission Following Objections.
When it is ordered that a request for admission to which objections were made is
proper, the matter shall be deemed admitted unless within 14 days of the order the
party to whom the request was directed serves a statement denying the matter or
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setting forth the reasons why that party cannot admit or deny the matter, as
provided in FR Civ P 36.
LR Civ P 37.1. Discovery Disputes
(a) Objections to Disclosures or Discovery.
Objections to disclosures or discovery that are not filed within the response time
allowed by the Federal Rules of Civil Procedure, the scheduling order(s), or
stipulation of the parties pursuant to FR Civ P 29, whichever governs, are waived
unless otherwise ordered for good cause shown. Objections shall comply with FR
Civ P 26(g) and any claim of privilege or objection shall comply with
FR Civ P 26(b)(5).
(b) Duty to Confer.
Before filing any discovery motion, including any motion for sanctions or for a
protective order, counsel for each party shall make a good faith effort to confer in
person or by telephone to narrow the areas of disagreement to the greatest
possible extent. It shall be the responsibility of counsel for the moving party to
arrange for the meeting.
(c) Motions to Compel.
A motion to compel disclosure or discovery must be accompanied by a statement
setting forth verbatim each discovery request or disclosure requirement and any
response thereto to which an exception is taken. In addition, the movant may
include a statement of the grounds and pertinent authorities relied upon and shall
file such a statement if requested by the court. If the discovery request or
disclosure requirement is ignored, the movant need only file a motion to compel
without setting forth verbatim the discovery request or disclosure requirement.
Motions to compel or other motions in aid of discovery not filed within 30 days
after the discovery response or disclosure requirement was due are waived, and in
no event provide an excuse, good cause or reason to delay trial or modify the
scheduling order.
(d) Telephonic Conferences During Discovery Events.
If a dispute arises during a discovery event, the parties must attempt in good faith
to resolve the matter without judicial intervention. If a good faith conferral fails to
resolve the dispute and if its disposition during the discovery event is likely to
result in savings of substantial time and expense, a party or counsel may contact
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the chambers= staff of the magistrate judge to whom the case is assigned to
request a telephone conference during the discovery event.
LR Civ P 41.1. Dismissal of Actions
When it appears in any pending civil action that the principal issues have been
adjudicated or have become moot, or that the parties have shown no interest in further
prosecution, the judicial officer may give notice to all counsel and unrepresented parties
that the action will be dismissed 30 days after the date of the notice unless good cause for
its retention on the docket is shown. In the absence of good cause shown within that
period of time, the judicial officer may dismiss the action. The clerk shall transmit a copy
of any order of dismissal to all counsel and unrepresented parties. This rule does not
modify or affect provisions for dismissal of actions under FR Civ P 41 or any other
authority.
LR Civ P 43.1. Addressing the Court; Examination of Witnesses
Attorneys and pro se litigants must stand and speak clearly when addressing the court.
Only one attorney for each party may participate in examination and cross-examination
of a witness. With the court=s permission, the attorney may approach a witness to present
or inquire about an exhibit.
LR Civ P 47.1. Trial Juries
(a) Examination of Prospective Jurors.
The judicial officer shall conduct the examination of prospective jurors called to
serve in civil actions. In conducting the examination, the judicial officer shall
identify the parties and their respective counsel and briefly outline the nature of
the action. The judicial officer shall interrogate the jurors to elicit from them
whether they have any prior knowledge of the case and what connections they
may have, if any, with the parties or their attorneys. Inquiries directed to the
jurors shall embrace areas and matters designed to discover basis for challenge for
cause, to gain knowledge enabling an intelligent exercise of peremptory
challenges, and to ascertain whether the jurors are qualified to serve in the case on
trial. The judicial officer may consult with the attorneys, who may request or
suggest other areas of juror interrogation. To the extent deemed proper, the
judicial officer may then supplement or conclude his or her examination of the
jurors.
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(b) Jury Lists.
Names of jurors drawn for jury service from the court=s qualified jury wheel may
be disclosed only in accordance with the court=s Jury Selection Plan, approved
and made effective February 25, 2009, and as it may be modified. Jury lists
prepared by the clerk shall be made available to counsel and unrepresented parties
as provided in the Jury Selection Plan.
LR Civ P 48.1. Contact with Jurors
After conclusion of a trial, no party, nor his or her agent or attorney, shall communicate
or attempt to communicate with any member of the jury, including alternate jurors who
were dismissed prior to deliberations, about the jury=s deliberations or verdict without
first applying for (with notice to all other parties) and obtaining for good cause an order
allowing such communication.
LR Civ P 51.1. Cases to be Tried by Jury; Proposed Jury Instructions
Not less than 7 days prior to the trial date, counsel and unrepresented parties shall, in jury
cases, submit to the judicial officer proposed jury instructions with supporting statutory
and case authority, special interrogatories, and a verdict form. Counsel and unrepresented
parties shall exchange copies of the proposed instructions, special interrogatories and
verdict form prior to their submission to the judicial officer. Submissions pursuant to this
local rule shall not be filed and made a part of the record unless ordered by the judicial
officer.
LR Civ P 52.1. Cases to be Tried by the Court; Proposed Findings of Fact and
Conclusions of Law
Counsel and unrepresented parties shall submit to the judicial officer 14 days prior to trial
proposed findings of fact and conclusions of law for cases to be tried to the court.
Counsel and unrepresented parties shall exchange copies of the proposals prior to
submission to the judicial officer. The suggested findings of fact should contain a detailed
listing of the relevant and material facts that the party intends to prove. They should not
be in formal language, but should be in simple narrative form. The proposed conclusions
of law should contain a full discussion of the principles of law relied upon, with statutory
and case citations.
Submissions pursuant to this local rule shall not be filed and made a part of the record
unless ordered by the judicial officer.
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LR Civ P 54.1. Fees and Costs
Fees and costs shall be taxed and paid in accordance with the provisions of 28 U.S.C. ''
1911-1929, and other controlling statutes and rules. If costs are awarded, the reasonable
premiums or expenses paid on any bond or other security given by the prevailing party
shall be taxed as part of the costs.
The prevailing party shall prepare a bill of costs within 30 days after entry of the final
judgment on the form supplied by the clerk. The bill of costs shall contain an itemized
schedule of the costs and a statement signed by counsel for the prevailing party that the
schedule is correct and the charges were actually and necessarily incurred. The original of
the bill of costs shall be filed with the clerk and a copy served on counsel for the adverse
party or on the unrepresented adverse party.
If an adverse party makes specific objections to any item of costs filed by the prevailing
party, within 14 days after service of a bill of costs, the clerk shall set the matter for
hearing or may assess costs based on the papers submitted.
LR Civ P 58.1. Entry of Judgments and Orders
Except for good cause, no judgment or order may be presented for entry unless it bears
the signature of all counsel and unrepresented parties. This rule does not apply to
judgments or orders drawn or prepared by the court. When counsel or an unrepresented
party responsible for the preparation and presentation of a judgment or order
unreasonably delays or withholds its presentation, the court may proceed to enter such
judgment or order.
LR Civ P 65.1.1. Approval of Bonds by the Clerk
Except in criminal cases or for supersedeas bonds pursuant to FR Civ P 62, or where
another procedure is prescribed by law, the clerk may approve bonds without an order if:
(a) the amount of the bond has been fixed by prior order, local rule, or statute; and
(b) the bond is secured by
(1) the deposit of cash or obligations of the United States,
(2) the guaranty of a corporate surety holding a certificate of authority from
the Secretary of the Treasury, or
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(3) the guaranty of a qualified property owner when the guaranty is
accompanied by an acceptable certificate of justification.
LR Civ P 67.1. Deposits Pursuant to FR Civ P 67
In accordance with FR Civ P 67, funds paid to the clerk for deposit into the court=s
registry shall be placed in an interest-bearing account or instrument as ordered, and shall
remain so deposited pending disposition by subsequent court order. Any order obtained
by a party that directs the clerk to invest funds pursuant to 28 U.S.C. ' 2041 shall provide
for payment by check made payable to the Clerk, United States District Court, for deposit
in a renewable time certificate, treasury bill, passbook savings account, or other secure
instrument. Any order authorizing disbursement of funds on deposit shall provide for
payment of the statutory administrative registry fee from the income earnings prior to any
other distribution of the account. If any individual or entity receives payment of earned
interest in excess of $10.00 per annum, parties shall provide identification by name,
address and social security or tax identification number in compliance with Title 26 of the
United States Code, and Internal Revenue Service regulations, as a condition of the
release of said funds. A copy of any order affecting the deposit, investment or
disbursement of funds in the court=s registry shall be served on the clerk.
LR Civ P 71.1. Land Condemnation Actions; Manner of Filing, Docketing, Recording,
and Reporting
The guidelines for filing, docketing, recording and reporting land condemnation
proceedings approved by the Judicial Conference of the United States are adopted for use
in this jurisdiction. Copies of the guidelines are available on the court=s web site.
LR Civ P 72.1. Authority of Magistrate Judges
(a) General.
A magistrate judge is a judicial officer of the district court. A magistrate judge of
this district is designated to perform, and may be assigned, any duty allowed by
law to be performed by a magistrate judge. Performance of a duty by a magistrate
judge will be governed by the applicable provisions of federal statutes and rules,
the general procedural rules of this court, and the requirements specified in any
order or reference from a district judge. In performing a duty, a magistrate judge
may determine preliminary matters; require parties, attorneys, and witnesses to
appear; require briefs, proofs, and argument; and conduct any hearing,
conference, or other proceeding the magistrate judge deems appropriate.
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(b) Statutory Duties.
Magistrate judges are authorized or specially designated to perform the duties
prescribed by 28 U.S.C. ' 636, and such other duties as may be assigned by the
court or a district judge which are not inconsistent with the Constitution and laws
of the United States.
(c) Habeas Corpus and Collateral Relief.
Magistrate judges are authorized to perform the duties imposed upon district
judges by Rules for Proceedings Under 28 U.S.C. ' 2254 and Rules for
Proceedings Under 28 U.S.C. ' 2255, in accordance with Rule 10 of those Rules
and 28 U.S.C. ' 636.
(d) Post-Conviction Habeas Corpus and Related Actions.
The following matters are referred to magistrate judges:
(1) Post-conviction habeas corpus, filed pursuant to 28 U.S.C. '' 2241, 2254,
2255, and 18 U.S.C. ' 3582(c), and related actions;
(2) Prisoner challenges to conditions of confinement, filed pursuant to 42
U.S.C. ' 1983, and Bivens, and related actions;
(3) Appeals of administrative decisions under the Social Security Act, and
related actions, including motions or petitions for attorney=s fees arising
out of such appeals;
(4) Discovery disputes and pretrial motions relating to discovery practice;
(5) Applications to proceed without prepayment of fees and costs; and
(6) Actions filed by persons who are proceeding pro se, whether or not they
are in custody, until such person is represented by retained counsel.
(e) Miscellaneous Duties.
Magistrate judges are authorized to:
(1) exercise general supervision of civil calendars, conduct calendar and status
calls, conduct hearings to resolve discovery disputes, and determine
motions to expedite or postpone the trial of cases for the district judges;
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(2) analyze civil cases to determine an appropriate schedule; report findings to
the assigned district judge; and, in complex and other selected cases,
conduct conferences at which a schedule for the completion of various
stages of the litigation will be established, the possibility of early
settlement will be evaluated, and alternative dispute resolution
mechanisms will be considered;
(3) conduct pretrial conferences, scheduling conferences, mediations,
settlement conferences, omnibus hearings, and related pretrial
proceedings;
(4) with the consent of the parties, conduct voir dire and preside over the
selection of petit juries;
(5) accept petit jury verdicts in the absence of the district judge;
(6) issue subpoenas, writs of habeas corpus ad testificandum, or other orders
necessary to obtain the presence of parties, witnesses, or evidence for
court proceedings;
(7) rule on applications for disclosure of tax returns and tax return
information, pursuant to 26 U.S.C. ' 6103(i)(1);
(8) order the exoneration or forfeiture of bonds;
(9) conduct proceedings for the collection of civil penalties of not more than
$200 assessed under the Federal Boat Safety Act of 1971, pursuant to 46
U.S.C. '' 4311(d) and 12309(c);
(10) determine post-judgment discovery motions and conduct examinations of
judgment debtors pursuant to FR Civ P 69;
(11) supervise proceedings conducted pursuant to letters rogatory as set forth in
28 U.S.C. ' 1782(a);
(12) issue orders of withdrawal of funds from the court registry pursuant to 28
U.S.C. ' 2042;
(13) issue orders or warrants authorizing acts necessary in the performance of
the duties of administrative and regulatory agencies and departments of
the United States; and
(14) conduct extradition proceedings in accordance with 18 U.S.C.' 3184; and
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(15) serve with designated committees or other judicial officers, participate in
promulgation of local rules and procedures, administration of the
forfeiture of collateral system, and other functions of court governance as
approved by the Chief Judge.
(f) Method of Assignment of Matters to Magistrate Judges.
The method for assignment of duties to a magistrate judge shall be by Standing
Order or case-specific order unless otherwise provided for in these Local Rules,
the Federal Rules of Civil Procedure, the Rules for Proceedings Under 28 U.S.C.
' 2254, and the Rules for Proceedings Under 28 U.S.C. ' 2255. Individual district
judges may, in their discretion, assign or request magistrate judges to perform
such other duties as are not inconsistent with the Constitution and the laws of the
United States.
LR Civ P 72.2. Effect of Magistrate Judge Ruling Pending Objection
When an objection to a magistrate judge=s ruling on a non-dispositive pretrial motion is
filed pursuant to FR Civ P 72(a), the ruling remains in full force and effect unless and
until it is stayed by the magistrate judge or by a district judge.
LR Civ P 73.1. Special Designation of Magistrate Judges
(a) Consent of the Parties.
Upon consent of the parties, magistrate judges are specially designated by the
district judges to exercise civil jurisdiction pursuant to 28 U.S.C. ' 636(c)(1), and
to conduct any or all proceedings in a jury or nonjury civil matter and order the
entry of judgment in the case.
(b) Notice of Consent Option.
The Order and Notice entered by a judicial officer under LR Civ P 16.1(a) shall
inform the parties of their right to consent to proceed before a magistrate judge.
Parties added to an action after reference to a magistrate judge shall be notified by
the clerk of their right to consent to the exercise of jurisdiction by a magistrate
judge. In the event an added party does not consent to the magistrate judge=s
jurisdiction, the action shall be returned to the district judge for further
proceedings. Additional notices may be furnished by the clerk to the parties at
later stages of the proceeding, and may be included with pretrial notices and
instructions. The consent form may be filed at any time prior to trial; however, no
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civil action shall be referred to a magistrate judge unless a district judge has
signed an order of reference.
(c) Execution of Consent.
Any party may deliver a consent form to the clerk. An alternative and acceptable
consent form is a FR Civ P 26(f) Parties= Report of Planning Meeting, signed by
all parties or their counsel, which states that all parties consent to the exercise of
jurisdiction by a magistrate judge. No consent form shall be made available, nor
will its contents be made known to any district judge or magistrate judge, unless
all parties have consented to the reference to the magistrate judge. No magistrate
judge, district judge or other court official may attempt to persuade or induce any
party to consent to the reference of any matter to a magistrate judge. This rule,
however, shall not preclude a district judge or magistrate judge from informing
the parties that they may have the option of referring the case, or one or more
case-dispositive motions, to a magistrate judge.
(d) Vacating a Reference.
A district judge may, on his or her own motion, or under extraordinary
circumstances shown by any party, vacate the reference to a magistrate judge of a
case in which the parties have filed consents.
LR Civ P 77.1. Principal Offices
The headquarters of the United States District Court for the Southern District of West
Virginia and of its Clerk is located in the Robert C. Byrd United States Courthouse,
Room 2400, 300 Virginia Street East, Charleston, West Virginia. The mailing address is
P.O. Box 2546, Charleston, West Virginia 25329.
LR Civ P 77.2. Divisions
The Southern District of West Virginia is composed of 23 counties. Each of these
counties is assigned to one of 5four administrative divisions. Each division is given the
name of the city in the division where the court and offices of its clerk are located. The
divisions, addresses of division offices, and counties comprising each division are as
follows:
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Division 1: Bluefield
Elizabeth Kee Federal Building
Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Mailing Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Counties Composing Division: Mercer, Monroe and McDowell
Division 2: Charleston
Robert C. Byrd United States Courthouse
Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301
Mailing address: P.O. Box 2546, Charleston, West Virginia 25329
Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln, Logan,
Mingo, Nicholas and Roane, Wirt and Wood
Division 3: Huntington
Sidney L. Christie Federal Building
Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Mailing address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Counties Composing Division: Cabell, Mason, Putnam and Wayne
Division: 5: Beckley
Robert C. Byrd Federal Building and Courthouse
Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801
Mailing address: P.O. Drawer 5009, Beckley, West Virginia 25801
Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming
Division 6: Parkersburg
Federal Office Building
Address: Room 5102, 425 Juliana Street, Parkersburg, West Virginia 26102
Mailing address: Room 5102, 425 Juliana Street, Parkersburg, West Virginia 26102
Counties Composing Division: Wirt and Wood
The court will occasionally convene at Parkersburg to deal with matters falling in the
Huntington or Charleston Divisions, as needed, and atin Lewisburg to deal with matters
falling within either the Beckley or Bluefield Division, as needed.
LR Civ P 77.3. Sessions
The court is considered open and in continuous session in all divisions of the district on
all business days throughout the year in accordance with the provisions of 28 U.S.C.
' 139, FR Civ P 77(c), and other controlling statutes and rules.
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LR Civ P 77.4. Court Library
Attorneys and other persons authorized by the court may use the court=s library. Library
books may not be removed from the court=s premises. Persons using library books shall
be responsible for their care and preservation and shall return them to their proper places
in the library.
LR Civ P 78.1. Hearing on Motions
The judicial officer may require or permit hearings on motions, and the hearings may be
by telephone.
LR Civ P 79.1. Custody and Disposition of Exhibits
(a) During Trial or Hearing.
(1) Custody of the Clerk. Unless the court otherwise orders, all marked and
identified exhibits of a documentary nature that are admitted into evidence
during trial or hearing, and that are suitable for filing and transmission to
the court of appeals as a part of the record on appeal, must be placed in the
custody of the clerk of court.
(2) Custody of the Parties. Unless the court otherwise orders, all marked and
identified exhibits, models and materials of unusual bulk or weight
admitted into evidence during trial that cannot be conveniently stored in
the clerk=s facilities will be retained in the custody of the party offering
them. The party will execute a receipt for the exhibits and will grant the
reasonable request of any party to examine or reproduce the exhibit for use
in the proceeding. With approval of the court, photographs may be
substituted for said exhibits once they have been introduced into evidence.
(3) Custody of the United States Marshal. Unless the court otherwise orders,
all marked and identified exhibits admitted into evidence that are sensitive
in nature will be retained in the custody of the United States Marshal.
Such exhibits will include, but not be limited to, the following types of
sensitive exhibits or evidence: controlled substances, firearms,
ammunition, explosive devices, pornographic materials, jewelry,
poisonous or dangerous chemicals, intoxicating liquors, money or articles
of high monetary value, and counterfeit money. With approval of the
court, photographs may be substituted for said exhibits once they have
been introduced into evidence.
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(b) After Trial or Hearing.
(1) Custody of the Clerk. Where the clerk of court does take custody of
exhibits that are documentary in nature under subsection 79.1.a.1 of this
rule, such exhibits may not be taken from the custody of the clerk until
final disposition of the matter, except upon order of the court and
execution of a receipt that identifies the exhibits taken, which receipt will
be filed in the case. Copies approved by counsel and unrepresented parties
must be filed in place of the original exhibits.
After final judgment and one year after the time for motion for new trial
and appeal has passed, or upon the filing of a stipulation waiving and
abandoning the right to appeal and to move for a new trial, the clerk is
authorized, without further court order, to return all exhibits to the parties
or their counsel.
(2) Custody of the Parties. Unless the court orders otherwise, the party
offering exhibits of the kind described in subsection 79.1.a.2 of this rule
will retain custody of them and be responsible for preserving them in their
condition as of the time admitted.
(3) Custody of the United States Marshal. Where the United States Marshal
does take custody of exhibits under subsection 79.1.a.3 of this rule, such
exhibits will be returned to the offering party following the trial or hearing
for preservation in their condition as of the time admitted.
(4) Retention of and Access to Exhibits by the Parties. Upon reasonable
request, parties are to make available any and all exhibits in their custody
for use by this court or by any appellate court for a period of two years
after the conclusion of the case and any direct appeal.
(c) Alternative Procedures for Custody and Disposition of Exhibits.
In its discretion, on a case-by-case basis, the court may provide the Clerk with
alternative procedures for custody and instruction for disposition of specific
exhibits.
LR Civ P 79.2. Removal of Papers from Custody of Clerk
Papers on file in the office of the clerk shall be produced pursuant to subpoena from a
court of competent jurisdiction directing their production.
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Papers may be removed from the files of the clerk only upon order except that the clerk
may permit temporary removal of papers by a district judge, a bankruptcy judge, a
magistrate judge, or a master in matters relating to their official duties.
The person receiving the papers shall provide to the clerk a signed receipt identifying the
papers removed.
LR Civ P 83.1. Admission of Attorneys
(a) Admission as Member of Bar or Court.
Any person who is admitted to practice before the Supreme Court of Appeals of
West Virginia and who is in good standing as a member of its bar, is eligible for
admission as a member of the bar of this court. An eligible attorney may be
admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
admitted. If the motion for admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorneys= register, and pay the
clerk the admission fee.
Any person who has been subject to disciplinary suspension or disbarment by the
West Virginia Supreme Court of Appeals but has been readmitted to practice by
the Supreme Court and is in good standing as a member of its bar, is eligible for
re-admission as a member of the bar of this court. The attorney may be
re-admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
re-admitted. If the motion for re-admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorney=s register, and pay the
clerk the admission fee.
(b) Sponsorship of Visiting Attorneys by Members of Court.
The Sponsoring Attorney must be a member of the bar of this court, have an
office for the practice of law in West Virginia, and practice law primarily in West
Virginia.
(c) Appearance by Assistant United States Attorneys and Assistant Federal Public
Defenders.
Any attorney employed by the United States Attorney or the Federal Public
Defender for this judicial district must qualify as a member of the bar of this court
within one year of his or her employment. Until so qualified, the attorney may
appear and practice under the sponsorship of the appointing officer.
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(d) Appearance by Federal Government Attorneys.
Federal government attorneys who are not members of the bar of this court need
not complete the Statement of Visiting Attorney. In cases where the United States
Attorney is associated with other government attorneys in proceedings involving
the Federal government, the United States Attorney (except in student loan
collection cases), in addition to other Federal government attorneys, shall sign all
pleadings, notices, and other papers filed and served by the United States. All
pleadings, notices, and other papers involving the Federal government may be
served on the United States Attorney in accordance with the service requirements
of the Federal Rules of Civil Procedure and the Federal Rules of Criminal
Procedure.
LR Civ P 83.2. Legal Assistance by Law Students
(a) Written Consent.
With the written consent of an indigent and his or her attorney of record, an
eligible law student may appear on behalf of that indigent. With the written
consent of the United States Attorney or his or her representative, an eligible law
student may also appear on behalf of the United States. With the written consent
of the Federal Public Defender, an eligible law student may appear on behalf of
the Federal Public Defender. With the written consent of the Attorney General of
the State of West Virginia or his or her representative, an eligible law student may
also appear on behalf of the State of West Virginia. In each case in which an
eligible law student appears, the consent shall be filed with the clerk.
(b) Responsibilities of Attorneys of Record.
An eligible law student may assist in the preparation of pleadings, briefs, and
other documents to be filed in this court, but such pleadings, briefs, or documents
must be signed by the attorney of record. An eligible law student may also
participate in hearings, trials, and other proceedings with leave of court, but only
in the presence of the attorney of record. The attorney of record shall assume
personal professional responsibility for the law student=s work. The attorney of
record shall be familiar with the case and be prepared to supplement or correct
any written or oral statement made by the law student.
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(c) Eligibility Requirements.
To be eligible to appear pursuant to this rule, the law student must:
(1) be enrolled in a law school approved by the American Bar Association;
(2) have successfully completed legal studies for at least 4 semesters, or the
equivalent if the school is on some basis other than a semester basis;
(3) be certified by the dean of his or her law school as being of good character
and competent legal ability. The dean=s certification shall be filed with the
clerk. This certification may be withdrawn by the dean at any time without
notice or hearing and without any showing of cause by notifying the clerk
in writing, or it may be terminated by the court at any time without notice
of hearing and without any showing of cause. Unless withdrawn or
terminated, the certification shall remain in effect for 18 months after it
has been filed with the clerk or until the law student has been admitted as
a permanent member of the bar of this court, whichever is earlier;
(4) certify in writing to the clerk that he or she has read the Code of
Professional Conduct of the American Bar Association;
(5) be introduced to the court by a permanent member of the bar of this court;
and
(6) neither ask for nor receive any compensation or remuneration of any kind
for services from the party assisted, but this shall not prevent an attorney,
legal services program, law school, public defender agency, the State of
West Virginia, or the United States from paying compensation to the law
student, nor from making appropriate charges for such services.
LR Civ P 83.3. Representation of Parties
Every party to proceedings in this court, except parties appearing pro se, shall be
represented by a member of the bar of this court and may be represented by a Visiting
Attorney and Sponsoring Attorney as provided in LR Civ P 83.1(a), 83.1(b), and 83.6.
A corporation or unincorporated association cannot appear pro se.
LR Civ P 83.4. Termination of Representation
No attorney who has entered an appearance in any civil action shall withdraw the
appearance or have it stricken from the record, except by order.
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LR Civ P 83.5. Pro se Appearances
A party who represents himself or herself shall file with the clerk his or her complete
name and address where pleadings, notices, orders, and other papers may be served on
him or her, and his/her telephone number. A pro se party must advise the clerk promptly
of any changes in name, address, and telephone number.
LR Civ P 83.6. Admission of Visiting Attorneys
(a) Procedure for Admission.
Any person who has not been admitted to practice before the Supreme Court of
Appeals of West Virginia, but who is a member in good standing of the bar of the
Supreme Court of the United States, the bar of the highest court of any other state
in the United States, or the bar of the District of Columbia, shall be permitted to
appear as a Visiting Attorney in a particular case in association with a Sponsoring
Attorney as herein provided. The Sponsoring Attorney must be a member of the
bar of this court, have an office for the practice of law in West Virginia, and
practice law primarily in West Virginia. The Visiting Attorney shall file with
the clerk, at or before his or her initial appearance (including signing a pleading),
the Statement of Visiting Attorney adopted by order of this court, which is
available from the clerk and on the court=s web site, and shall pay the Visiting
Attorney fee. The Statement shall designate a Sponsoring Attorney, upon whom
pleadings, notices, and other papers may be served. The Sponsoring Attorney
shall consent to the designation and shall thereafter sign all papers that require the
signature of an attorney. Any paper filed by a Visiting Attorney not in compliance
with this rule may be stricken from the record after 14 days written notice
transmitted to the Visiting Attorney at his or her address as known to the clerk.
Upon compliance with this rule and introduction of the Visiting Attorney to the
court by the Sponsoring Attorney, the Sponsoring Attorney, with the consent of
the court, may be excused from further attendance during the proceedings and the
Visiting Attorney may continue to appear in that particular case.
(b) Motion Not Required.
Filing a properly completed Statement of Visiting Attorney and paying the
Visiting Attorney fee constitute all steps necessary to qualifying as a Visiting
Attorney for a particular case and no motion to appear as a Visiting Attorney is
required.
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(c) Payment of Visiting Attorney Fee.
(1) Fee Payable to Clerk. The court will charge a Visiting Attorney fee,
payable to the Clerk, United States District Court, in an amount to be set
by order. Pursuant to Judicial Conference policy, the fees will be used
only for Apurposes which inure to the benefit of the members of the bench
and the bar in the administration of justice.@ Other than library materials,
the fees will not be used to supplement appropriated funds and will not be
used to pay for materials or supplies available from statutory
appropriations. The fees will be placed in a fund administered by the clerk
as custodian of the fund. Disbursements will be made only at the direction
of a committee, the members of which will be appointed by the Chief
Judge, in accordance with a written plan.
(2) West Virginia State Bar Pro Hac Vice Fee. The pro hac vice fee
imposed by the Supreme Court of Appeals of West Virginia applicable to
Visiting Attorneys shall be paid to The West Virginia State Bar and is not
payable to the clerk of the district court.
(d) Exceptions to Payment of Visiting Attorney Fee.
(1) Bankruptcy Cases. The Visiting Attorney fee will apply in every
bankruptcy case in which the reference to the Bankruptcy Court has been
withdrawn, and in every appeal of a bankruptcy case to the District Court.
Otherwise, the imposition of a Visiting Attorney fee in a bankruptcy case
will be governed by the Local Rules for Bankruptcy Court.
(2) Multidistrict Litigation Cases. Pursuant to the Rules of Procedure of the
Judicial Panel on Multidistrict Litigation, a Visiting Attorney fee will not
be charged in any case which is filed in this court pursuant to a transfer
under said Rules.
(3) Miscellaneous Cases. A Visiting Attorney who files a miscellaneous
case which does not require judicial action (e.g., one filed in order to
obtain a subpoena) is exempt from paying the Visiting Attorney fee, from
associating with a Sponsoring Attorney, and from filing the Statement of
Visiting Attorney. A Visiting Attorney who files a miscellaneous case
which does require judicial action (e.g., motion to compel testimony at a
deposition) must comply with LR Civ P 83.6(a).
(4) Federal Government Attorneys. Attorneys employed by the United
States Department of Justice or any other Federal department or agency
will not be required to pay the Visiting Attorney fee.
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(5) Law Students. Law students who participate in a case in accordance with
these Rules will not be charged a Visiting Attorney fee.
(e) Waiver of Payment of Visiting Attorney Fee.
A Visiting Attorney and his/her Sponsoring Attorney may file a motion
requesting a waiver of the Visiting Attorney fee in a particular case or cases, for
good cause shown. The motion will be decided by the judge assigned to the case;
the motion should be filed within 21 days of the assignment of the case to the
judge. Examples of cases in which waiver may be appropriate are: numerous
collection actions filed by one plaintiff; numerous negligence actions filed by one
firm representing many plaintiffs against one defendant or group of defendants
arising out of a single incident or related incidents (e.g., a catastrophic fire, or
exposure to a toxic substance). If a waiver is granted, the Visiting Attorney will
pay such Visiting Attorney fee in an amount as ordered by the presiding district
judge.
(f) Revocation of Visiting Attorney Privilege.
For good cause, the presiding district judge may revoke the privilege of an
attorney to be a Visiting Attorney in one or more specified cases.
LR Civ P 83.7. Codes of Professional Conduct
In all appearances, actions and proceedings within the jurisdiction of this court, attorneys
shall conduct themselves in accordance with the Rules of Professional Conduct and the
Standards of Professional Conduct promulgated and adopted by the Supreme Court of
Appeals of West Virginia, and the Model Rules of Professional Conduct published by the
American Bar Association. Judicial officers of this court must comply with the Code of
Conduct for United States Judges adopted by the Judicial Conference of the United
States; judiciary employees of this court must comply with the Code of Conduct for
Judicial Employees, also adopted by the Judicial Conference.
LR Civ P 83.8. Bias and Prejudice
The United States District Court for the Southern District of West Virginia aspires to
achieve absolute fairness in the determination of cases and matters before it and expects
the highest standards of professionalism, human decency, and considerate behavior
toward others from its judicial officers, lawyers, and court personnel, as well as from all
witnesses, litigants, and other persons who come before it. As to matters in issue before
the court, conduct and statements toward one another must be without bias with regard to
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such factors as gender, race, ethnicity, religion, handicap, age, and sexual orientation
when such conduct or statements bear no reasonable relationship to a good faith effort to
argue or present a position on the merits. Judicial officers must ensure that appropriate
action is taken to preserve a neutral and fair forum for all persons. Nothing in this local
rule, however, is intended to infringe unnecessarily or improperly upon the otherwise
legitimate rights, including the right of freedom of speech, of any person, nor to impede
or interfere with the aggressive advocacy of causes and positions by lawyers and litigants.
LR Civ P 83.9. Opening Statements and Closing Arguments to Jury
(a) Opening Statements.
At the commencement of the trial, the party upon whom rests the burden of proof
may state, without argument, its claim and the evidence expected to support it.
The adverse party may then state, without argument, its defense and the evidence
expected to sustain it. If the trial is to the jury, the opening statements shall be
made immediately after the jury is impaneled. If the trial is to the court, the
opening statements shall be made immediately after the case is called for trial.
Opening statements shall be subject to time limitations imposed by the assigned
judicial officer. In actions involving several parties and unusual procedures, the
judicial officer, after conferring with attorneys and unrepresented parties, shall
direct the order and time of the opening statements in a manner appearing just and
proper.
(b) Closing Arguments.
The right to open and close the arguments shall belong to the party who has the
burden of proof, without regard to whether the defendant offers evidence. Where
each of the parties has the burden of proof on one or more issues, the judicial
officer shall determine the order of arguments. In actions involving several parties
and unusual procedures, the judicial officer, after conferring with attorneys for the
parties, shall determine the order of arguments in a manner appearing just and
proper. Arguments shall be subject to time limitations imposed by the judicial
officer, giving due consideration to the length of the trial, the number of witnesses
and exhibits, the complexity of issues, and the nature of the case.
The opening argument of plaintiff before the jury shall be a fair statement of
plaintiff=s case and shall consume at least one-half of the entire time allotted to
plaintiff=s counsel for opening argument. In the event that one-half of the allotted
time is not used, one-half shall nevertheless be charged by the judicial officer to
plaintiff=s opening argument.
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After plaintiff=s opening argument, counsel for defendant may elect to argue the
case or may decline. If counsel for defendant declines to present argument, the
case will be submitted without further argument by plaintiff and defendant.
LR Civ P 83.10. Photography in and Broadcasting from the Courtroom
The taking of photographs in the courtroom, or in the corridors immediately adjacent,
during judicial proceedings or during any recess, and the transmitting or sound recording
of proceedings for broadcast by radio or television, is not permitted. Upon approval of the
court and under its supervision, proceedings, other than judicial proceedings, designed
and conducted as ceremonies, such as administering oaths of office to appointed officials
of the court, presentation of portraits, naturalization proceedings, and similar ceremonial
occasions, may be photographed in or broadcast from the courtroom.
LR Civ P 83.11. Impoundment of Photography and Broadcasting Equipment
The United States Marshal may impound any camera, recording, broadcasting and other
related equipment brought into the courtroom or the adjacent corridors in violation of LR
Civ P 83.10. The impounded equipment shall be returned to its owner or its custodian
after the proceedings have concluded.
LR Civ P 83.12. Scheduling Conflicts
All scheduling conflicts with West Virginia state courts will be resolved pursuant to the
provisions of West Virginia Trial Court 5.
LR Civ P 83.13. Referral of Cases to Bankruptcy Court
Pursuant to 28 U.S.C. ' 157(a), all cases under Title 11, and all proceedings arising under
Title 11 or arising in or related to a case under Title 11, are referred to the Bankruptcy
Court for disposition. Filings in bankruptcy actions shall be made directly with the Clerk
of the Bankruptcy Court. Requests to withdraw this reference shall be filed with the Clerk
of the Bankruptcy Court, who will transmit the motion to withdraw reference to the Clerk
of the District Court. See FR Br P 5011, Advisory Committee Note (1987).
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LR Civ P 83.14. Appeal of a Bankruptcy Court Judgment, Order, or Decree to the
District Court
A notice of appeal from a judgment, order, or decree of a bankruptcy judge to the district
court shall be filed with the Clerk of the Bankruptcy Court pursuant to Part VIII of the
Federal Rules of Bankruptcy Procedure. The Clerk of the Bankruptcy Court shall
transmit to the Clerk of the District Court the notice of appeal, the record designation and
statement of issues, and the record. On receipt of the transmission, the Clerk of the
District Court shall enter the appeal on the docket, establish a briefing schedule, and
notice the parties of the date on which the appeal was docketed and of the time for filing
supporting memoranda.
LR Civ P 83.15. Courthouse Security
(a) Entry of Federal Courthouse Buildings.
All persons wishing to enter a federal building housing a United States Court
within the Southern District of West Virginia (the building) must first properly
clear the security screening post located in the main lobby at each facility. Court
security officers staff the security screening post during normal business hours.
The purpose for the security screening post is to ensure that no weapons,
including guns, knives, explosives or other items that are deemed to be a possible
weapon, are brought into the building. Any person refusing to submit to such
inspection, including inspection of all carried items, shall be denied entrance to
the building.
(b) Persons Requiring Access.
All persons, other than those who are stationed in the building, having business in
the building (i.e. contractors, work crews, repair persons) shall enter and leave the
court facilities through the designated screening posts. Persons needing to use
other entrances must make arrangements with court security prior to bypassing the
screening posts. Workers seeking to work after hours must obtain prior approval
from the appropriate officials. The court security officers are charged with the
enforcement of these regulations.
(c) Weapons.
The United States Marshal and Deputy United States Marshals may possess and
oversee possession of firearms or other weapons in the building. Only members of
the United States Marshals Service and those specifically designated by that
service may possess firearms and other weapons in the space occupied and
controlled by this court.
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(d) Identification Card.
All employees will use an identification card issued by the employee=s agency.
Employees will be required to display or show the identification card to the court
security officers to pass through the security screening post. If an employee fails
to present their issued identification card, he or she must successfully pass
through the security screening post.
(e) Wireless Communication Devices.
Only attorneys, court reporters and court interpreters conducting official business
at a federal courthouse in a federal courthouse in this District are permitted
limited use of wireless communication devices, such as cellular telephones,
pagers, personal data assistants (PDAs), BlackBerrys, and laptop computers.
Audio or video recording or the taking of any photographs with such devices
while in the courthouse is prohibited. Cellular telephones and pagers must be
programmed so they will not emit any audible noise while in a courtroom.
PDAs, BlackBerrys and laptop computers may be used to assist attorneys in their
cases. The use of wireless communication devices for purposes of transmitting
and/or receiving data while in a courtroom is prohibited. The use of wireless
communication devices shall not be disruptive to court proceedings. Wireless
communication devices are not permitted in a grand jury room while the grand
jury is in session unless utilized by an agent or representative of the United Sates
Attorney=s Office for evidence presentation. Each judicial officer may modify this
rule as circumstances warrant.
Any other individual who brings a wireless communication device into a federal
courthouse in this District, excepting federal employees, elevator response
personnel and PBX telephone technicians, will be required by the court security
officers to deposit such device in storage facilities as provided at the front entry of
the building, to be retrieved upon leaving the courthouse.
Appropriate signage will be posted outside the courthouse and at the security
posts, published on the court=s external web site and in notices provided to jurors.
The court authorizes the United States Marshal to allow wireless communication
devices for emergency situations as deemed appropriate.
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II. LOCAL RULES OF CRIMINAL PROCEDURE
LR Cr P 5.1. Initial Appearance
(a) Pretrial Services Interview.
Pretrial services officers (or probation officers acting in the capacity of pretrial
services officers), to the extent practicable, shall attempt notification of counsel
prior to conducting pretrial services interviews. If counsel cannot attend an
interview, the information provided by the defendant shall be made available to
counsel upon request, in accordance with LR Cr P 5.1.(b).
(b) Disclosure of Pretrial Services Information.
A written pretrial services report will, if possible, be provided to counsel in the
courtroom when a defendant makes an initial appearance, and will be provided to
counsel in the courtroom when a defendant appears for a detention hearing.
Pretrial services information is confidential, pursuant to the provisions of 18
U.S.C. ' 3153(c) and regulations promulgated by the Administrative Office of the
United States Courts. Judicial officers may disclose pretrial services information,
in whole or in part, upon a showing of good cause. When a demand for disclosure
of pretrial services information regarding a defendant is made by service of a
subpoena or other judicial process upon a probation officer, the probation officer
may petition in writing seeking instructions from the court regarding a response to
the subpoena.
(c) Standard Terms and Conditions for Release on Bond.
(1) The defendant shall not violate any local, state or federal laws;
(2) The defendant shall not possess a firearm, destructive device or other
dangerous weapon (felony offense only);
(3) The defendant=s travel is restricted to the Southern District of West
Virginia unless otherwise permitted by the court;
(4) The defendant shall submit to random urine screens, as directed by the
probation department or the court, for detection of use of controlled
substances; and
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(5) The defendant shall not contact, either directly or indirectly, any victim or
potential witnesses in the case, except through counsel (for witness/victim
protection where needed).
(d) Modification of Conditions of Pretrial Release.
The pretrial services or probation officer may, in the exercise of his/her discretion,
meet with the defendant and defense counsel and modify conditions of release.
Following such meeting, if any, a Consent to Modify Conditions of Release (PS
42) shall be completed and submitted to the judicial officer for signature and
filing.
LR Cr P 7.1. Assignment of Cases
Cases filed shall be assigned by the clerk to a judge at the direction of the Chief Judge or
through the use of random electronic methods. The clerk shall not reveal the case
assignment allocation or sequence of the electronic method to anyone, unless ordered to
do so by a district judge. A record of all assignments made shall be kept by the clerk.
LR Cr P 7.2. Reassignment, Referral and Intra-District Transfer of Cases
The clerk is authorized to sign orders to effectuate the reassignment, referral or
intra-district transfer of cases when needed and as directed by a judge of this court.
LR Cr P 10.1. Arraignment and Plea
(a) Notice of Date and Time.
The attorney for the government shall timely notify the defendant of the date and
time of defendant=s arraignment and plea to an indictment. The government
attorney shall furnish a copy of the notice concurrently to defendant=s counsel if
counsel=s name and address are shown on the docket or known to the government.
When the indictment is based on substantially similar allegations that form the
basis of an earlier complaint before a magistrate judge, the government attorney
shall notify counsel who appeared for defendant before the magistrate judge of the
date and time of the arraignment. If a defendant is without counsel, the
government attorney shall promptly notify the appropriate judicial officer of that
fact, so early provision of counsel may be considered.
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(b) Notice of Motion to Dismiss.
The government attorney shall serve on the defendant=s counsel or on an
unrepresented defendant a notice of a motion to dismiss a complaint pending
before a judicial officer.
(c) No Further Notice.
No other or further notice of arraignment and plea or motion to dismiss need be
given by the clerk except on order of the court.
LR Cr P 12.1. Pretrial Motions
(a) Date for Filing Pretrial Motions in Lieu of Standard Request for Discovery.
If a defendant does not elect to use the standard request for discovery, the
magistrate judge shall, at arraignment, set a date 14 days prior to the pretrial
motions hearing date for filing defendant=s pretrial motions.
(b) Date for Filing Pretrial Motions in Addition to Standard Request for Discovery.
If defendant elects to use the standard request for discovery, defendant must file
any additional pretrial motions (i.e., non-discovery) by the date established in the
Arraignment Order and Standard Discovery Request Form available from the
clerk and on the court=s website.
(c) Time for Response to Pretrial Motions.
The government has 7 days to respond to motions filed by defendant under
paragraphs (a) and (b) of this rule.
(d) Pretrial Hearing.
The pretrial hearing will be held at least 14 days prior to trial, unless otherwise
ordered by the court sua sponte or on motion for good cause. If the parties agree a
hearing is not necessary, they must inform the district judge immediately. If the
pretrial hearing requires the taking of evidence, the parties must notify the district
judge in advance.
(e) Courtroom Technology.
If any courtroom technology is required, counsel must request any such
technology for use at trial or other proceeding and make a certification that the
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court=s technology staff has been notified. The certification regarding such
notification shall be filed with the clerk no later than 7 days before the scheduled
commencement of the trial or other proceeding.
LR Cr P 16.1. Arraignment and Standard Discovery Requests
(a) Standard Discovery Request Form.
At arraignment on an indictment, or on an information or complaint in a
misdemeanor case, counsel for the defendant and the government may make
standard requests for discovery as contained in the Arraignment Order and
Standard Discovery Request form available from the clerk and on the court=s
website. The form shall be signed by counsel for the defendant and the
government and entered by the magistrate judge.
(b) Reciprocal Discovery.
If counsel for the defendant requests discovery under FR Cr P 16(a)(1)(E), (F) or
(G), in an Arraignment Order and Discovery Request form, the defendant is
obligated to provide any reciprocal discovery that may be available to the
government under FR Cr P 16(b)(1)(A), (B) or (C).
(c) Time for Government Response.
Unless the parties agree otherwise, or the court so orders, within 14 days of the
Standard Discovery Request, the government must provide the requested material
to counsel for the defendant and file with the clerk a written response to each of
defendant's requests.
(d) Time for Reciprocal Discovery Response.
Defendant must provide all reciprocal discovery due the government within 14
days of receiving the materials and the filing and serving of responses in
paragraph (c).
(e) Defense Discovery Request Deemed Speedy Trial Motion.
Any request made by the defendant pursuant to this rule will be deemed a motion
under the provisions of the Speedy Trial Act, 18 U.S.C. ' 3161.
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(f) Duty to Supplement.
All duties of disclosure and discovery in this rule are continuing. The parties must
produce any additional discovery as soon as they receive it, and in no event later
than the time for such disclosure as required by law, rule of criminal procedure, or
order of the court, and without the necessity of further request by the opposing
party.
LR Cr P 18.1. Principal Offices
The headquarters of the United States District Court for the Southern District of West
Virginia and its Clerk is located in the Robert C. Byrd United States Courthouse, Room
2400, 300 Virginia Street East, Charleston, West Virginia. The mailing address is P.O.
Box 2546, Charleston, West Virginia 25329.
LR Cr P 18.2. Divisions
The Southern District of West Virginia is composed of 23 counties. Each of these
counties is assigned to 1 of 5 administrative divisions. Each division is given the name of
the city in the division where the court and offices of its clerk are located. The divisions,
addresses of division offices, and counties comprising each division are as follows:
Division 1: Bluefield
Elizabeth Kee Federal Building
Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Mailing Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Counties Composing Division: Mercer, Monroe and McDowell
Division 2: Charleston
Robert C. Byrd United States Courthouse
Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301
Mailing address: P.O. Box 2546, Charleston, West Virginia 25329
Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln, Logan,
Mingo, Nicholas and Roane, Wirt and Wood
Division 3: Huntington
Sidney L. Christie Federal Building
Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Mailing address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Counties Composing Division: Cabell, Mason, Putnam and Wayne
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Division: 5: Beckley
Robert C. Byrd Federal Building and Courthouse
Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801
Mailing address: P.O. Drawer 5009, Beckley, West Virginia 25801
Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming
Division 6: Parkersburg
Federal Office Building
Address: Room 5102, 425 Juliana Street, Parkersburg, West Virginia 26102
Mailing address: Room 5102, 425 Juliana Street, Parkersburg, West Virginia 26102
Counties Composing Division: Wirt and Wood
The court will occasionally convene at Parkersburg to deal with matters falling in the
Huntington or Charleston Divisions, as needed, and at in Lewisburg to deal with matters
falling within either the Beckley or Bluefield Division, as needed.
LR Cr P 23.1. Opening Statements in Criminal Trials
At the commencement of trial in a criminal action, the government and the defendant
may make non-argumentative opening statements as to their theories of the case and the
manner in which they expect to offer their evidence. If the trial is to a jury, the opening
statements shall be made immediately after the jury is empaneled, and, if the trial is to the
court, the opening statements shall be made immediately after the case is called for trial;
but, for good cause shown, the court, on request of the defendant, may defer the opening
statement for a defendant until the time for commencing presentation of that defendant's
direct evidence. Opening statements shall be subject to time limitations imposed by the
court. If the action involves more than one defendant, the court, after conferring with
the parties to the action, shall determine the order and time of the opening statements.
LR Cr P 26.1. Addressing the Court; Examination of Witnesses
Attorneys and pro se litigants must stand and speak clearly when addressing the court.
Only one attorney for each party may participate in examination and cross-examination
of a witness. With the court's permission, the attorney may approach a witness to present
or inquire about an exhibit.
LR Cr P 30.1. Jury Instructions
In all criminal cases, counsel for the defendant and for the government shall submit jury
instructions to the court prior to the commencement of a jury trial, or earlier if ordered by
the court. When it is necessary for counsel for the defendant to submit one or more jury
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instructions on an ex parte basis, those instructions must be disclosed to the government
no later than the charge conference or when specified by the court. Subject to court
approval, counsel may amend or supplement jury instructions after commencement of
trial.
LR Cr P 31.1. Contact with Jurors
After conclusion of a trial, no party, nor his or her agent or attorney, shall communicate
or attempt to communicate with any member of the jury, including alternate jurors who
were dismissed prior to deliberations, about the jury's deliberations or verdict without
first applying for (with notice to all other parties) and obtaining, for good cause, an order
allowing such communication.
LR Cr P 32.1. Presentence Interview
Probation officers shall notify counsel, prior to conducting the presentence interview of
the defendant, of the date, time and place of the interview. If counsel cannot attend an
interview, the information provided by the defendant shall be made available to counsel
upon request in accordance with LR Cr P 32.2.
LR Cr P 32.2. Disclosure of Presentence Reports, Statement of Reasons and Probation
Records
(a) Disclosure of Presentence Reports.
Disclosure of presentence reports is governed by 18 U.S.C. ' 3552(d) and FR Cr
P 32. Except as specifically provided by statute, rule, regulation, or guideline
promulgated by the Administrative Office of the United States Courts, or LR Cr P
32.3, no confidential records of the court maintained by the probation office,
including presentence reports and probation or supervised release records, shall be
producible except as set forth below or by written petition to the court,
particularizing the need for specific information. When a demand for disclosure of
presentence and probation records is made by way of subpoena or other judicial
process to a probation officer, the probation officer may petition in writing
seeking instructions from the court regarding a response to the subpoena. No
disclosure shall be made except upon order of the court.
Presentence reports prepared by the probation office, as well as objections to the
report filed by counsel, shall be filed electronically under seal via the Case
Management/Electronic Case Filing System (CM/ECF). These documents will be
made part of the case record for the purposes of appeal. The probation officer is
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authorized to provide a copy of the presentence report, without the officer=s
recommendation as to the sentence, to the defendant=s appellate counsel. In
addition, the probation officer is authorized to forward a copy of the presentence
report, without the officer=s recommendation as to the sentence, to counsel in
revocation proceedings upon request without further order of the court. The copy
of the presentence report shall be used by counsel for the purpose of the
revocation proceeding only. Further, the probation officer, upon request, is
authorized to provide a copy of the presentence report to another federal probation
officer without further order of the court.
(b) Statement of Reasons.
The Clerk is directed to SEAL the Statement of Reasons in all criminal cases
before this court and shall forward a SEALED copy to counsel of record and to
the probation office in this District. The probation office shall forward the
Statement of Reasons to the United States Sentencing Commission and the
Bureau of Prisons. The probation office is further directed to make the sealed
Statement of Reasons an attachment to, and part of, any copy of the presentence
report made available to the Bureau of Prisons, the Fourth Circuit Court of
Appeals and appellate counsel for the defendant. In addition, the probation
office is authorized to forward a copy of the Statement of Reasons to counsel in
revocation proceedings upon request and without further order of the court. The
copy of the Statement of Reasons shall be used by counsel for the purpose of the
revocation proceeding only.
(c) Disclosure of Probation Office Recommendation.
The probation officer shall not disclose to anyone other than the court the officer=s
recommendation as to the sentence.
LR Cr P 32.3. Standard Conditions of Probation and Supervised Release in all
Criminal Cases
In addition to the Standard Conditions of Supervised Release and Probation
promulgated by the Administrative Office of the United States Courts (National
Form AO 245B), the following five conditions are forthwith adopted as standard
conditions of probation and supervised release for all defendants sentenced in
criminal cases in the District.
(1) If the offender is unemployed, the probation officer may direct the
offender to register and remain active with Workforce West Virginia.
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(2) Offenders shall submit to random urinalysis or any drug screening method
whenever the same is deemed appropriate by the probation officer and
shall participate in a substance abuse program as directed by the probation
officer. Offenders shall not use any method or device to evade a drug
screen.
(3) As directed by the probation officer, the defendant will make co-payments
for drug testing and drug treatment services at rates determined by the
probation officer in accordance with a court-approved schedule based on
ability to pay and availability of third-party payments.
(4) A term of community service is imposed on every offender on supervised
release or probation. Fifty hours of community service is imposed on
every offender for each year the offender is on supervised release or
probation. The obligation for community service is waived if the offender
remains fully employed or actively seeks such employment throughout the
year.
(5) The defendant shall not possess a firearm, ammunition, destructive device,
or any other dangerous weapon.
LR Cr P 32.4. Standard and Optional Conditions of Probation and Supervised
Release in all Sex Offense Cases
The following standard and optional conditions of probation or supervised release shall
be included in the Judgment as appropriate in all cases where the offense of conviction,
or a defendant=s prior state or federal conviction, would qualify as a Asex offense@ as
defined in the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.
' 16911(5) or otherwise result in a reporting obligation by the defendant to any state or
federal sex offender registry. Within those conditions requiring an offender to obtain
approval by the probation officer for certain actions, the court retains the ultimate
authority to grant the approval requested, along with the right to review the probation
officer=s decision upon the offender=s written request.
(a) Standard Conditions.
(1) The defendant shall have no direct or indirect contact, at any time, for any
reason, with the victim(s) identified in the presentence report or the
victim's family.
(2) The defendant shall submit to an evaluation by a qualified mental health
professional, approved by the probation officer, who is experienced in
treatment of sexual offenders. The defendant shall take all medications
reasonably related to treatment of his or her condition, complete all
treatment recommendations and abide by all rules, requirements and
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conditions imposed by the professional. The defendant must do so until
discharged from treatment by the professional. Prior to being required to
submit any proposed course of treatment, the defendant or the United
States may seek review by the presiding district judge of any facet of the
prescribed course of treatment. The United States and the defendant shall
also have the right to seek review by the presiding district judge of any
continuation or discontinuation of such treatment.
(3) The defendant shall submit to risk assessments, psychological and
physiological testing, which may include, but is not limited to, a polygraph
examination or other specific tests to monitor the defendant's compliance
with probation or supervised release treatment conditions, at the direction
of the probation officer.
(4) The defendant's residence and employment shall be approved by the
probation officer. Any proposed change in residence or employment must
be provided to the probation officer at least 10 days1 prior to the change
and pre-approved before the change may take place.
(5) The defendant shall not possess any materials depicting and/or describing
"child pornography" as defined in 18 U.S.C. ' 2256, nor shall the
defendant knowingly enter, or knowingly remain in, any location, without
the prior approval of the probation officer, where such materials can be
accessed, obtained or viewed, including pictures, photographs, books,
writings, drawings, videos or video games.
(6) The defendant shall not use, purchase, possess, procure or otherwise
obtain any computer or electronic device that can be linked to any
computer networks, bulletin boards, Internet, Internet service providers or
exchange formats involving computers unless approved by the probation
officer for such purposes as defendant's lawful gainful employment by a
business entity or use by an immediate family member living in
defendant's same household or for other legitimate purposes. Such
computers, computer hardware or software possessed solely by the
defendant is subject to searches and/or seizures by the probation office.
(7) The defendant shall register with any local and/or State Sex Offender
Registration agency in any state where the defendant resides, is employed,
carries on a vocation, or is a student, pursuant to state law.
1
Pursuant to WV Code ' 55-12-3
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(8) The defendant shall provide the probation officer access to any requested
financial records.
(b) Optional Conditions.
(1) The term "minor" with respect to any condition of supervised release
refers to one who is under the age of eighteen (18) years.
(2) The defendant shall not associate or have verbal, written, telephonic or
electronic communications with any minor except: 1) in the presence of
the parent or legal guardian of said minor; 2) on the condition that the
defendant notifies the parent or legal guardian of the defendant's sex
offender conviction(s); and 3) with written approval from the probation
officer. This provision does not encompass minors working as waiters,
cashiers, ticket vendors, and similar service personnel with whom the
defendant must deal in order to obtain ordinary and usual commercial
services.
(3) The defendant shall not loiter within 100 feet of any parks, school
property, playgrounds, arcades, amusement parks, daycare centers,
swimming pools, community recreation fields, zoos, youth centers, video
arcades, carnivals, circuses or other places that are primarily used or can
reasonably be expected to be used by minors without prior written
permission of the probation officer.
(4) The defendant shall not frequent any businesses whose primary function is
to serve alcoholic beverages.
(5) The defendant shall not purchase, possess or control cameras, camcorders,
or movie cameras without prior approval of the probation officer and
defendant may only use and possess cell phones that are limited by design
to vocal telephone communication without the capability to access the
Internet or store or create images or video.
(6) The defendant shall notify employers, family, friends and others with
whom the defendant has regular contact of defendant's conviction(s) as a
sex offender and that the defendant is being supervised by a probation
officer.
(7) The defendant shall not engage in any forms of exhibitionism, voyeurism,
obscene phone calls or other lewd or lascivious behavior toward a minor,
nor engage in "grooming" behavior that is apt to attract, seduce or reduce
sexual resistance or inhibitions of a minor.
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(8) The defendant shall not own, use or have access to the services of any
commercial mail receiving agency or storage unit nor shall the defendant
open or maintain a post office box or storage unit without the prior
approval of the probation officer. The defendant shall provide the
probation officer with a list of all P.O. boxes and/or storage units the
defendant can access.
(9) The defendant shall not possess sadomasochistic or similar bindings or
handcuffs, or like forms of restraint.
(10) The defendant shall not possess minor's clothing, toys, games, or the like
without permission of the probation officer.
(11) The defendant shall not be employed in any position or participate as a
volunteer in any activity that involves contact with minors without written
permission from the probation officer. The defendant may not engage in
an activity that involves being in a position of trust or authority over any
minor.
(12) The defendant shall participate in the District's computer monitoring
program and pay any costs associated therewith and abide by all special
conditions therein, as directed by the probation officer. Participation in
this program is contingent upon all program criteria being met.
(13) The defendant shall not possess pictures of minors, unless the pictures
are of the defendant's children.
LR Cr P 32.1.1. Modification or Revocation of Probation or Supervised Release
(a) Petition for Modification or Revocation.
(1) A petition for modification or revocation of probation or supervised
release shall be set forth on the form adopted for that purpose by the
Administrative Office of the United States. The petition shall be presented
to the sentencing judge. The sentencing judge shall determine whether the
petition shall be filed.
(2) The petition shall set forth the facts allegedly constituting the violation of
probation or supervised release. The petition shall also seek either a
summons or an arrest warrant, modification of the terms of release, or no
action.
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(3) A petition ordered filed shall be served upon the probationer or releasee,
the attorney for the government, and last known counsel of record except
that in all cases in which prior counsel was appointed pursuant to the
Criminal Justice Act, the Office of the Federal Public Defender shall be
served in lieu of service upon prior counsel. Unless the court orders an
arrest warrant be issued, the petition shall be served upon the probationer
or releasee after arrest, but in no event later than the initial appearance.
(b) Disclosure of Evidence.
The probation officer shall, without further request by the probationer, or releasee,
or his/her counsel, disclose to the probationer or releasee or his/her counsel, all
evidence against the probationer or releasee, including any potential oral
statement and any potentially exculpatory material. Any information disclosed by
the probation officer to an attorney for the government shall be promptly
disclosed by the probation officer to probationer or releasee or to his/her counsel.
(c) Recommendation for Revocation of Probation or Supervised Release.
If after a hearing the defendant is found to have violated the terms of probation or
supervised release, the probation officer may make a recommendation to the
court. The reasons supporting the recommendation shall be disclosed to the
parties if such reasons are evidence against the probationer or releasee, as shall
any response by the probation officer to recommendations by counsel.
(d) Request for Modification of the Terms of Probation or Supervised Release.
No terms of probation or supervised release shall be modified upon a waiver of
counsel by the probationer or releasee unless and until the probationer or releasee
shall have consulted with counsel regarding the advisability of waiving counsel.
Any such waiver of counsel must certify that the probationer or releasee consulted
with counsel prior to executing such waiver. In the alternative, waiver of counsel
may be made by the probationer or releasee before a magistrate judge.
LR Cr P 44.1. Admission of Attorneys
(a) Admission as Member of Bar or Court.
Any person who is admitted to practice before the Supreme Court of Appeals of
West Virginia and who is in good standing as a member of its bar is eligible for
admission as a member of the bar of this court. An eligible attorney may be
admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
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admitted. If the motion for admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorneys= register, and pay the
clerk the admission fee.
Any person who has been subject to disciplinary suspension or disbarment by the
West Virginia Supreme Court of Appeals but has been readmitted to practice by
the Supreme Court and is in good standing as a member of its bar, is eligible for
re-admission as a member of the bar of this court. The attorney may be
re-admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
re-admitted. If the motion for re-admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorney=s register, and pay the
clerk the admission fee.
(b) Sponsorship of Visiting Attorneys by Members of Court.
The Sponsoring Attorney must be a member of the bar of this court, have an
office for the practice of law in West Virginia, and practice law primarily in West
Virginia.
(c) Appearance by Assistant United States Attorneys and Assistant Federal Public
Defenders.
Any attorney employed by the United States Attorney or the Federal Public
Defender for this judicial district must qualify as a member of the bar of this court
within one year of his or her employment. Until so qualified, the attorney may
appear and practice under the sponsorship of the appointing officer.
(d) Appearance by Federal Government Attorneys.
Federal government attorneys who are not members of the bar of this court need
not complete the Statement of Visiting Attorney. In cases where the United States
Attorney is associated with other government attorneys in proceedings involving
the Federal government, the United States Attorney (except in student loan
collection cases), in addition to other Federal government attorneys, shall sign all
pleadings, notices, and other papers filed and served by the United States. All
pleadings, notices, and other papers involving the Federal government may be
served on the United States Attorney in accordance with the service requirements
of the Federal Rules of Civil Procedure and the Federal Rules of Criminal
Procedure.
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LR Cr P 44.2. Legal Assistance by Law Students
(a) Written Consent.
With the written consent of an indigent and his or her attorney of record, an
eligible law student may appear on behalf of that indigent. With the written
consent of the United States Attorney or his or her representative, an eligible law
student may also appear on behalf of the United States. With the written consent
of the Federal Public Defender, an eligible law student may appear on behalf of
the Federal Public Defender. With the written consent of the Attorney General of
the State of West Virginia or his or her representative, an eligible law student may
also appear on behalf of the State of West Virginia. In each case in which an
eligible law student appears, the consent shall be filed with the clerk.
(b) Responsibilities of Attorneys of Record.
An eligible law student may assist in the preparation of pleadings, briefs, and
other documents to be filed in this court, but such pleadings, briefs, or documents
must be signed by the attorney of record. An eligible law student may also
participate in hearings, trials, and other proceedings with leave of court, but only
in the presence of the attorney of record. The attorney of record shall assume
personal professional responsibility for the law student's work. The attorney of
record shall be familiar with the case and be prepared to supplement or correct
any written or oral statement made by the law student.
(c) Eligibility Requirements.
To be eligible to appear pursuant to this rule, the law student must:
(1) be enrolled in a law school approved by the American Bar Association;
(2) have successfully completed legal studies for at least 4 semesters, or the
equivalent if the school is on some basis other than a semester basis;
(3) be certified by the dean of his or her law school as being of good character
and competent legal ability. The dean's certification shall be filed with the
clerk. This certification may be withdrawn by the dean at any time without
notice or hearing and without any showing of cause by notifying the clerk
in writing, or it may be terminated by the court at any time without notice
of hearing and without any showing of cause. Unless withdrawn or
terminated, the certification shall remain in effect for 18 months after it
has been filed with the clerk or until the law student has been admitted as
a permanent member of the bar of this court, whichever is earlier;
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(4) certify in writing to the clerk that he or she has read the Code of
Professional Conduct of the American Bar Association;
(5) be introduced to the court by a permanent member of the bar of this court;
and
(6) neither ask for nor receive any compensation or remuneration of any kind
for services from the party assisted, but this shall not prevent an attorney,
legal services program, law school, public defender agency, the State of
West Virginia, or the United States from paying compensation to the law
student, nor from making appropriate charges for such services.
LR Cr P 44.3. Representation of Parties
Every party to proceedings in this court, except parties appearing pro se, shall be
represented by a member of the bar of this court and may be represented by a Visiting
Attorney and Sponsoring Attorney as provided in these rules. A corporation or
unincorporated association cannot appear pro se.
LR Cr P 44.4. Termination of Representation
No attorney who has entered an appearance in any criminal action shall withdraw the
appearance or have it stricken from the record, except by order.
LR Cr P 44.5. Pro se Appearances
A party who represents himself or herself shall file with the clerk his or her complete
name and address where pleadings, notices, orders, and other papers may be served on
him or her, and shall include his/her telephone number. A pro se party must advise the
clerk promptly of any changes in name, address, and telephone number.
LR Cr P 44.6. Admission of Visiting Attorneys
(a) Procedure for Admission.
Any person who has not been admitted to practice before the Supreme Court of
Appeals of West Virginia, but who is a member in good standing of the bar of the
Supreme Court of the United States, the bar of the highest court of any other state
in the United States, or the bar of the District of Columbia, shall be permitted to
appear as a Visiting Attorney in a particular case in association with a Sponsoring
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Attorney as herein provided. The Sponsoring Attorney must be a member of the
bar of this court, have an office for the practice of law in West Virginia, and
practice law primarily in West Virginia. The Visiting Attorney shall file with the
clerk, at or before his or her initial appearance (including signing a pleading), the
Statement of Visiting Attorney adopted by order of this court, which is available
from the clerk and on the court=s website, and shall pay the Visiting Attorney fee.
The Statement shall designate a Sponsoring Attorney, upon whom pleadings,
notices, and other papers may be served. The Sponsoring Attorney shall consent
to the designation and shall thereafter sign all papers that require the signature of
an attorney. Any paper filed by a Visiting Attorney not in compliance with this
Rule may be stricken from the record after 14 days written notice transmitted to
the Visiting Attorney at his or her address as known to the clerk. Upon
compliance with this rule and introduction of the Visiting Attorney to the court by
the Sponsoring Attorney, the Sponsoring Attorney, with the consent of the court,
may be excused from further attendance during the proceedings and the Visiting
Attorney may continue to appear in that particular case.
(b) Motion Not Required.
Filing a properly completed Statement of Visiting Attorney and paying the
Visiting Attorney fee constitute all steps necessary to qualifying as a Visiting
Attorney for a particular case and no motion to appear as a Visiting Attorney is
required.
(c) Payment of Visiting Attorney Fee.
(1) Fee Payable to Clerk.
The court will charge a Visiting Attorney fee, payable to the Clerk, United
States District Court, in an amount to be set by order. Pursuant to Judicial
Conference policy, the fees will be used only for Apurposes which inure to
the benefit of the members of the bench and the bar in the administration
of justice.@ Other than library materials, the fees will not be used to
supplement appropriated funds and will not be used to pay for materials or
supplies available from statutory appropriations. The fees will be placed in
a fund administered by the clerk as custodian of the fund. Disbursements
will be made only at the direction of a committee, the members of which
will be appointed by the Chief Judge, in accordance with a written plan.
(2) West Virginia State Bar Pro Hac Vice Fee.
Page 68 of 80
The pro hac vice fee imposed by the Supreme Court of Appeals of West
Virginia applicable to Visiting Attorneys shall be paid to The West
Virginia State Bar and is not payable to the clerk of the district court.
(d) Exceptions to Payment of Visiting Attorney Fee.
(1) Miscellaneous Cases.
A Visiting Attorney who files a miscellaneous case which does not require
judicial action (e.g., one filed in order to obtain a subpoena) is exempt
from paying the Visiting Attorney fee, from associating with a Sponsoring
Attorney, and from filing the Statement of Visiting Attorney. A Visiting
Attorney who files a miscellaneous case which does require judicial action
(e.g., motion to compel testimony at a deposition) must comply with Rule
44.6.
(2) Federal Government Attorneys.
Attorneys employed by the United States Department of Justice or any
other Federal department or agency will not be required to pay the Visiting
Attorney fee.
(3) Law Students.
Law students who participate in a case in accordance with these Rules will
not be charged a Visiting Attorney fee.
(e) Waiver of Payment of Visiting Attorney Fee.
A Visiting Attorney and his/her Sponsoring Attorney may file a motion
requesting a waiver of the Visiting Attorney fee in a particular case or cases, for
good cause shown. The motion will be decided by the judge assigned to the case;
the motion should be filed within 21 days of the assignment of the case to the
judge. If a waiver is granted, the Visiting Attorney will pay such Visiting
Attorney fee in an amount as ordered by the presiding district judge.
(f) Revocation of Visiting Attorney Privilege.
For good cause, the presiding district judge may revoke the privilege of an
attorney to be a Visiting Attorney in one or more specified cases.
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LR Cr P 44.7. Code of Professional Conduct
In all appearances, actions and proceedings within the jurisdiction of this court, attorneys
shall conduct themselves in accordance with the Rules of Professional Conduct and the
Standards of Professional Conduct promulgated and adopted by the Supreme Court of
Appeals of West Virginia, and the Model Rules of Professional Conduct published by the
American Bar Association. Judicial officers of this court must comply with the Code of
Conduct for United States Judges adopted by the Judicial Conference of the United
States; judiciary employees of this court must comply with the Code of Conduct for
Judicial Employees, also adopted by the Judicial Conference.
LR Cr P 44.8. Bias and Prejudice
The United States District Court for the Southern District of West Virginia aspires to
achieve absolute fairness in the determination of cases and matters before it and expects
the highest standards of professionalism, human decency, and considerate behavior
toward others from its judicial officers, lawyers, and court personnel, as well as from all
witnesses, litigants, and other persons who come before it. As to matters in issue before
the court, conduct and statements toward one another must be without bias with regard to
such factors as gender, race, ethnicity, religion, handicap, age, and sexual orientation
when such conduct or statements bear no reasonable relationship to a good faith effort to
argue or present a position on the merits. Judicial officers must ensure that appropriate
action is taken to preserve a neutral and fair forum for all persons. Nothing in this Local
Rule, however, is intended to infringe unnecessarily or improperly upon the otherwise
legitimate rights, including the right of freedom of speech, of any person, nor to impede
or interfere with the aggressive advocacy of causes and positions by lawyers and litigants.
LR Cr P 49.1. Filing Papers
Except as otherwise permitted or required by the Federal Rules, these Local Rules, or
order, the original of all papers not electronically filed shall be filed with the court at the
clerk=s office at the point of holding court in which the particular action or proceeding is
docketed. In emergency situations, due to travel conditions, time limitations or other
factors, filings may be made at any of the clerk=s offices, in which event the papers so
filed shall be forwarded by the receiving clerk=s office to the clerk=s office at the point of
holding court in which the particular action or proceeding is docketed. When
electronically filing documents with the clerk=s office, a paper courtesy copy to the
assigned judicial officer is not required except where any motion, memorandum,
response, or reply, together with documents in support thereof, is 50 pages or more in
length.
Page 70 of 80
LR Cr P 49.2. Filing by Facsimile or Electronic Means
(a) The clerk=s office will not accept any facsimile transmission for filing unless
ordered by the court.
(b) Pursuant to FR Cr P 49(d), the clerk=s office will accept pleadings or documents
filed, signed or verified by electronic means that are consistent with the technical
standards, if any, established by the Judicial Conference of the United States. A
pleading or document filed by electronic means in compliance with this Rule
constitutes a written paper for the purpose of applying these Rules and the Federal
Rules of Criminal Procedure. All electronic filings shall be governed by the
court=s Administrative Procedures for Filing, Signing, and Verifying Pleadings
and Papers by Electronic Means for Criminal Cases, the provisions of which are
incorporated by reference, and which may be amended from time to time by the
court.
LR Cr P 49.1.1. Privacy Protection for Filings Made with the Court
(a) Documents.
In compliance with the policy of the Judicial Conference of the United States, and
the E-Government Act of 2002 and its amendments, and in order to promote
electronic access to case files while also protecting personal privacy and other
legitimate interests, parties shall refrain from including, or shall partially redact
where inclusion is necessary, the following personal data identifiers from all
pleadings filed with the court, including exhibits thereto, whether filed,
electronically or in paper, unless otherwise ordered by the court.
(1) Social Security numbers. If an individual's social security number must
be included in a pleading, only the last four digits of that number should
be used.
(2) Names of minor children. If the involvement of a minor child must be
mentioned, only the initials of that child should be used.
(3) Dates of birth. If an individual's date of birth must be included in a
pleading, only the year should be used.
(4) Financial account numbers. If financial account numbers are relevant,
only the last four digits of these numbers should be used.
In compliance with the E-Government Act of 2002, a party wishing to file a
document containing the personal data identifiers listed above may file an
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unredacted document under seal or may file a reference list under seal. This
document shall be retained by the court as part of the record. The court will
require the party to file a redacted copy for the public file.
The responsibility for redacting these personal identifiers rests solely with counsel
and the parties. The Clerk will not review each pleading for compliance with this
rule.
(b) Transcripts of Hearings.
If information listed in Section (a) of this Rule is elicited during testimony or
other court proceedings, it will become available to the public when the official
transcript is filed at the courthouse unless, and until, it is redacted. The better
practice is to avoid introducing this information into the record in the first place.
If a restricted item is mentioned in court, any party or attorney may ask to have it
stricken from the record or partially redacted to conform to the privacy policy, or
the court may do so on its own motion.
LR Cr P 53.1. Photography in and Broadcasting from Courtroom
The taking or transmitting of photographs by any means or device in the courtroom, or in
the corridors immediately adjacent, during judicial proceedings or during any recess, and
the transmitting or sound recording of proceedings by radio, television, wireless device,
land-line device, or other device is not permitted. Upon approval of the court and under
its supervision, proceedings, other than judicial proceedings, designed and conducted as
ceremonies, such as administering oaths of office to appointed officials of the court,
presentation of portraits, naturalization proceedings, and similar ceremonial occasions,
may be photographed in or broadcast from the courtroom.
LR Cr P 53.2. Impoundment of Photography and Broadcasting Equipment
The United States Marshal may impound any camera, recording, broadcasting and other
related equipment brought into the courtroom or the adjacent corridors in violation of LR
Cr P 53.1. The impounded equipment shall be returned to its owner or custodian after
the proceedings have concluded.
Page 72 of 80
LR Cr P 55.1. Custody and Disposition of Exhibits
(a) During Trial or Hearing.
(1) Custody of the Clerk. Unless the court otherwise orders, all marked and
identified exhibits of a documentary nature that are admitted into evidence
during trial or hearing, and that are suitable for filing and transmission to
the court of appeals as a part of the record on appeal, must be placed in the
custody of the clerk of court.
(2) Custody of the Parties. Unless the court otherwise orders, all marked and
identified exhibits, models and materials of unusual bulk or weight
admitted into evidence during trial that cannot be conveniently stored in
the clerk=s facilities will be retained in the custody of the party offering
them. The party will execute a receipt for the exhibits and will grant the
reasonable request of any party to examine or reproduce the exhibit for use
in the proceeding. With approval of the court, photographs may be
substituted for said exhibits once they have been introduced into evidence.
(3) Custody of the United States Marshal. Unless the court otherwise orders,
all marked and identified exhibits admitted into evidence that are sensitive
in nature will be retained in the custody of the United States Marshal, who
shall execute a receipt therefor. Such exhibits will include, but not be
limited to, the following types of sensitive exhibits or evidence: controlled
substances, firearms, ammunition, explosive devices, pornographic
materials, jewelry, poisonous or dangerous chemicals, intoxicating liquors,
money or articles of high monetary value, and counterfeit money. With
approval of the court, photographs may be substituted for said exhibits
once they have been introduced into evidence.
(b) After Trial or Hearing.
(1) Custody of the Clerk. Where the clerk of court does take custody of
exhibits that are documentary in nature under subsection 55.1.a.1 of this
rule, such exhibits may not be taken from the custody of the clerk until
final disposition of the matter, except upon order of the court and
execution of a receipt that identifies the exhibits taken, which receipt will
be filed in the case. Copies approved by counsel and unrepresented
parties must be filed in place of the original exhibits.
After final judgment and one year after the time for motion for new trial
and appeal has passed, or upon the filing of a stipulation waiving and
abandoning the right to appeal and to move for a new trial, the clerk is
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authorized, without further court order, to return all exhibits to the parties
or their counsel.
(2) Custody of the Parties. Unless the court orders otherwise, the party
offering exhibits of the kind described in subsection 55.1.a.2 of this rule
will retain custody of them and be responsible for preserving them in their
condition as of the time admitted.
(3) Custody of the United States Marshal. Where the United States Marshal
does take custody of exhibits under subsection 55.1.a.3 of this rule, such
exhibits will be returned to the offering party following the trial or hearing
for preservation in their condition as of the time admitted.
(4) Retention of and Access to Exhibits by the Parties. Upon reasonable
request, parties are to make available any and all exhibits in their custody
for use by this court or by any appellate court for a period of two years
after the conclusion of the case and any direct appeal For the purpose of
this rule, the Aconclusion of the case and any direct appeal@ refers to the
time when a conviction becomes final for the purposes of 28 U.S.C.
' 2255.
(c) Alternative Procedures for Custody and Disposition of Exhibits.
In its discretion, on a case-by-case basis, the court may provide the Clerk with
alternative procedures for custody and instruction for disposition of specific
exhibits.
LR Cr P 55.2. Removal of Papers from Custody of Clerk
Papers on file in the office of the clerk shall be produced pursuant to subpoena from a
court of competent jurisdiction directing their production.
Papers may be removed from the files of the clerk only upon order except that the clerk
may permit temporary removal of papers by a district court judge, bankruptcy judge, a
magistrate judge, or a master in matters relating to their official duties.
The person receiving the papers shall provide to the clerk a signed receipt identifying the
papers removed.
Page 74 of 80
LR Cr P 56.1. Sessions
The court is considered open and in continuous session in all divisions of the district on
all business days throughout the year in accordance with the provisions of 28 U.S.C.
' 139, FR Cr P 56, and other controlling statutes and rules.
LR Cr P 57.1. Courthouse Security
(a) Entry of Federal Courthouse Buildings.
All persons wishing to enter a federal building housing a United States Court
within the Southern District of West Virginia (the building) must first properly
clear the security screening post located in the main lobby at each facility. Court
security officers staff the security screening post during normal business hours.
The purpose for the security screening post is to ensure that no weapons,
including guns, knives, explosives or other items that are deemed to be a possible
weapon, are brought into the building. Any person refusing to submit to such
inspection, including inspection of all carried items, shall be denied entrance to
the building.
(b) Persons Requiring Access.
All persons, other than those who are stationed in the building, having business in
the building (i.e. contractors, work crews, repair persons) shall enter and leave the
court facilities through the designated screening posts. Persons needing to use
other entrances must make arrangements with court security prior to bypassing
the screening posts. Workers seeking to work after hours must obtain prior
approval from the appropriate officials. The court security officers are charged
with the enforcement of these regulations.
(c) Weapons.
The United States Marshal and Deputy United States Marshals may possess and
oversee possession of firearms or other weapons in the building. Only members of
the United States Marshals Service and those specifically designated by that
service may possess firearms and other weapons in the space occupied and
controlled by this court.
(d) Identification Card.
All employees will use an identification card issued by the employee=s agency.
Employees will be required to display or show the identification card to the court
security officers to pass through the security screening post. If an employee fails
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to present their issued identification card, he or she must successfully pass
through the security screening post.
(e) Wireless Communication Devices.
Only attorneys, court reporters and court interpreters conducting official business
at a federal courthouse in a federal courthouse in this District are permitted
limited use of wireless communication devices, such as cellular telephones,
pagers, personal data assistants (PDAs), BlackBerrys, and laptop computers.
Audio or video recording or the taking of any photographs with such devices
while in the courthouse is prohibited. Cellular telephones and pagers must be
programmed so they will not emit any audible noise while in a courtroom.
PDAs, BlackBerrys and laptop computers may be used to assist attorneys in their
cases. The use of wireless communication devices for purposes of transmitting
and/or receiving data while in a courtroom is prohibited. The use of wireless
communication devices shall not be disruptive to court proceedings. Wireless
communication devices are not permitted in a grand jury room while the grand
jury is in session unless utilized by an agent or representative of the United Sates
Attorney=s Office for evidence presentation. Each judicial officer may modify this
rule as circumstances warrant.
Any other individual who brings a wireless communication device into a federal
courthouse in this District, excepting federal employees, elevator response
personnel and PBX telephone technicians, will be required by the court security
officers to deposit such device in storage facilities as provided at the front entry of
the building, to be retrieved upon leaving the courthouse.
Appropriate signage will be posted outside the courthouse and at the security
posts, published on the court=s external web site and in notices provided to jurors.
The court authorizes the United States Marshal to allow wireless communication
devices for emergency situations as deemed appropriate.
LR Cr P 58.1. Authority of Magistrate Judges in Misdemeanor Cases
Magistrate judges are specially designated to try persons accused of, and sentence
persons convicted of, misdemeanors committed within the Southern District of West
Virginia, as provided in 18 U.S.C. ' 3401.
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LR Cr P 58.2. Assignment of Misdemeanors and Petty Offenses
Upon the filing of an information, complaint, or violation notice, or the return of an
indictment, all misdemeanor and petty offense cases shall be assigned to a magistrate
judge, who shall proceed in accordance with the provisions of 18 U.S.C. ' 3401 and FR
Cr P 58.
LR Cr P 58.3. Petty Offenses
(a) Schedule of Petty Offenses.
The Appendix to the Local Criminal Rules contains a Schedule of Petty Offenses.
The Schedule, which may be modified by the Chief Judge, lists petty offenses, as
defined in 18 U.S.C. ' 19, that occur within the territorial jurisdiction of the
United States, whether originating under federal statute or regulation or under
applicable state statute by virtue of the Assimilated Crimes Act, 18 U.S.C. ' 13.
(b) Forfeiture of Collateral in Lieu of Appearance.
A defendant charged with a petty offense listed in the Schedule may post the
collateral for that offense, in lieu of appearing before a magistrate judge to answer
the charge, unless the offense is noted as Amandatory appearance@ or the arresting
or citing officer deems the offense to be Aaggravated.@ Posting the collateral
signifies that the defendant does not contest the charge or request a hearing before
the designated magistrate judge. The posted collateral shall be administratively
forfeited.
(c) Failure to Post Collateral.
If a defendant does not post the collateral and fails to appear before the designated
magistrate judge for trial on the cited petty offense(s), the collateral amount listed
for the offense on the Schedule shall be forfeited to the United States. Forfeiture
of the collateral shall be tantamount to a finding of guilty. Failure by a defendant
to appear to answer an offense for which appearance is mandatory, or an offense
that is aggravated, may result in an arrest warrant being issued for the defendant.
(d) Certification of Convictions of Traffic Violations.
Either the clerk or the designated magistrate judge shall certify to the proper
authority the record of any conviction of a traffic violation, as required by the
applicable state statutes.
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(e) Arrest.
Nothing contained in this Local Rule shall prohibit a law enforcement officer
from arresting an offender for committing any offense, including petty offenses
for which collateral may be posted and forfeited, and upon arrest, taking the
person charged without unnecessary delay before the nearest magistrate judge.
LR Cr P 59.1. General Authority of Magistrate Judges
A magistrate judge is a judicial officer of the district court. A magistrate judge of this
district is designated to perform, and may be assigned, any duty allowed by law to be
performed by a magistrate judge. Performance of a duty by a magistrate judge will be
governed by the applicable provisions of federal statutes and rules, the general procedural
rules of this court, and the requirements specified in any order or reference from a district
judge. In performing a duty, a magistrate judge may determine preliminary matters;
require parties, attorneys, and witnesses to appear; require briefs, proofs, and argument;
and conduct any hearing, conference, or other proceeding the magistrate judge deems
appropriate.
LR Cr P 59.2. Statutory Duties
Magistrate judges are authorized or specially designated to perform the duties prescribed
by 28 U.S.C. ' 636, and such other duties as may be assigned by the court or a district
judge which are not inconsistent with the Constitution and laws of the United States.
LR Cr P 59.3. Duties Under the Federal Rules of Criminal Procedure
Magistrate judges are authorized or specially designated to perform all duties attributed to
magistrate judges by the Federal Rules of Criminal Procedure.
LR Cr P 59.4. Miscellaneous Duties
Magistrate judges are also authorized to:
(a) exercise general supervision of criminal calendars, conduct calendar and status
calls, conduct hearings, and determine motions to expedite or postpone the trial of
cases for the district judges;
Page 78 of 80
(b) conduct pretrial conferences, scheduling conferences, and related pretrial
proceedings;
(c) conduct arraignments in criminal cases not triable by a magistrate judge and take
not guilty pleas in such cases;
(d) with the consent of the parties, conduct arraignments in criminal cases not triable
by a magistrate judge, receive a defendant=s guilty plea, and submit proposed
findings of fact and recommendations as to whether the presiding district judge
should accept the guilty plea, and find the defendant guilty;
(e) impanel grand juries, conduct hearings as to prospective jurors who fail to appear
for grand jury duty, determine the qualification of specific grand jurors to
participate in the investigation of particular matters, determine motions to quash
grand jury subpoenas, and receive grand jury returns;
(f) with the consent of the parties, conduct voir dire and preside over the selection of
petit juries;
(g) accept waivers of indictment;
(h) conduct necessary proceedings leading to the potential revocation of probation or
supervised release;
(i) 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 for court proceedings;
(j) order the exoneration or forfeiture of bonds;
(k) conduct proceedings for initial commitment of narcotic addicts under Title III of
the Narcotic Addict Rehabilitation Act, 42 U.S.C. '' 3401 et seq.;
(l) order the examination of a defendant to determine his or her mental competence
to understand the nature and consequences of the proceeding against the
defendant or to assist properly in his or her defense, and conduct hearings on a
defendant=s mental competence, and to determine if a defendant is presently
suffering from a mental disease or defect which would give rise to the defense of
insanity, or which is inconsistent with the mental state required for the offense
charged, all as provided in 18 U.S.C. ' 4241 et seq.;
(m) supervise proceedings conducted pursuant to letters rogatory as provided in
28 U.S.C. ' 1782(a);
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(n) issue orders of withdrawal of funds from the court registry pursuant to 28 U.S.C.
' 2042;
(o) conduct extradition proceedings in accordance with 18 U.S.C. ' 3184;
(p) issue orders or warrants authorizing acts necessary in the performance of the
duties of administrative and regulatory agencies and departments of the United
States; and
(q) serve with designated committees or other judicial officers, participate in
promulgation of local rules and procedures, administration of the forfeiture of
collateral system, and other functions of court governance as approved by the
Chief Judge.
LR Cr P 59.5. Assignment of Matters to Magistrate Judges by Division
To the extent not provided for in these Local Rules and the Federal Rules of Criminal
Procedure, criminal cases shall be assigned to the magistrate judge for the division in
which the alleged offense(s) occurred. In the case of offense(s) which allegedly occurred
in more than 1 division, the case shall be assigned to the magistrate judge for the division
in which the majority of the allegedly criminal conduct occurred.
LR Cr P 59.6. Other Duties Assigned and Matters Referred
Individual district judges may, in their discretion, assign or request magistrate judges to
perform such other duties as are not inconsistent with the Constitution and laws of the
United States, including but not limited to conducting hearings, including evidentiary
hearings, and submitting proposed findings of fact and recommendations for the
disposition of motions to dismiss or quash an indictment or information, and to suppress
evidence.
Page 80 of 80
UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
LOCAL RULES OF PROCEDURE
effective December 1, 2009
amended February 1, 2011
amended June 30, 2011
amended November 18, 2013
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES DISTRICT JUDGES
Robert C. Chambers, Chief Judge, Huntington, West Virginia
John T. Copenhaver, Jr., Judge, Charleston, West Virginia
Joseph R. Goodwin, Judge, Charleston, West Virginia
Thomas E. Johnston, Judge, Charleston, West Virginia
Irene C. Berger, Judge, Beckley, West Virginia
UNITED STATES SENIOR DISTRICT JUDGES
David A. Faber, Senior Judge, Bluefield, West Virginia
UNITED STATES MAGISTRATE JUDGES
R. Clarke VanDervort, Beckley and Bluefield, West Virginia
Cheryl A. Eifert, Huntington, West Virginia
Dwane L. Tinsley, Charleston, West Virginia
CLERK OF U. S. DISTRICT COURT
Teresa L. Deppner, Charleston, West Virginia
TABLE OF CONTENTS
The numbering of local rules must conform to the uniform numbering system
established by the Judicial Conference. At its March 1996 session, the
Judicial Conference adopted a resolution prescribing a numbering system for
local rules that corresponds with the numbers used in the relevant Federal
Rules of Practice and Procedures. These local rules conform to that
numbering system.
I. LOCAL RULES OF CIVIL PROCEDURE ................................................................. 1
LR Civ P 3.1. Assignment of Cases ............................................................................. 1
LR Civ P 3.2. Reassignment, Referral and Intra-District Transfer of Cases ............... 1
LR Civ P 3.3. Assignment of Urgent Cases or Matters ............................................... 1
LR Civ P 3.4. Local Filing Requirements .................................................................... 1
(a) Civil Docket Cover Sheet. ................................................................... 1
(b) State Court Docket Sheet. ................................................................... 1
LR Civ P 3.5. Proceedings without Prepayment of Fees and Costs ............................ 2
LR Civ P 4.1. Waiver of Service ................................................................................. 2
LR Civ P 4.1.1. Initiation of Civil Contempt Proceedings ............................................. 2
LR Civ P 4.1.2. Issues; Trial by Jury .............................................................................. 3
LR Civ P 4.1.3. Order of the Court; Confinement of Contemnor................................... 3
LR Civ P 5.1. Filing Pleadings and Other Papers ........................................................ 4
(a) Filing of Papers. .................................................................................... 4
(b) Filing by Facsimile Transmission. ...................................................... 4
(c) Filing by Electronic Means. ................................................................ 4
LR Civ P 5.2.1. Privacy Protection for Filings Made with the Court ............................. 4
(a) Documents. ........................................................................................... 4
(b) Transcripts of Hearings. ...................................................................... 5
LR Civ P 6.1. Definitions............................................................................................. 5
LR Civ P 7.1. Motion Practice ..................................................................................... 6
(a) Motions and Supporting Memoranda. .............................................. 6
(1) General. .................................................................................... 6
(2) Length....................................................................................... 6
(3) Paper Size, Line Spacing and Margins. ................................ 6
i
(4) Typeface and Type Styles. ..................................................... 7
(5) Courtesy Copies of Memoranda. .......................................... 7
(6) Motions to Dismiss ................................................................ 7
(7) Filing Deadlines for Response and Reply Memoranda ..... 7
(8) Referral to Magistrate Judge .................................................. 7
(9) Action on Motions ................................................................. 7
(10) Courtroom Technology ......................................................... 8
LR Civ P 9.1. Scope and Assignment .......................................................................... 8
(a) Scope. ..................................................................................................... 8
(b) Appeals of Social Security Claims. ..................................................... 8
LR Civ P 9.2. Initiation of Action - Complaint ........................................................... 8
LR Civ P 9.3. Commissioner=s Response .................................................................... 9
(a) Filing and Service. ................................................................................ 9
(b) Privacy. ................................................................................................... 9
(c) Form. .................................................................................................... 10
(d) Discovery. ............................................................................................ 10
(e) Material Defect in Administrative Transcript. ............................... 10
LR Civ P 9.4. Briefs ................................................................................................... 10
(a) Time for Filing and Service............................................................... 10
(b) Form of Briefs. ................................................................................... 10
LR Civ P 9.5. Motions to Dismiss or Remand........................................................... 11
(a) Time for Filing by Commissioner. ................................................... 11
(b) Time for Filing by Plaintiff. .............................................................. 11
(c) Briefs. ................................................................................................... 11
LR Civ P 9.6. Petition or Motion for Attorney=s Fees ............................................... 11
LR Civ P 9.7. Electronic Filing.................................................................................. 12
LR Civ P 9.8. Oral Argument .................................................................................... 12
LR Civ P 9.9. Other Local Rules in Conflict ............................................................. 12
LR Civ P 11.1. Verification of Pleadings .................................................................... 12
LR Civ P 11.2. Stipulations ......................................................................................... 12
LR Civ P 12.1. Extensions of Answer Date................................................................. 12
LR Civ P 16.1. Scheduling Conferences...................................................................... 13
ii
(a) Convening of Scheduling Conferences; Removed and
Transferred Actions. .......................................................................... 13
(b) Obligation of the Parties to Meet. ................................................... 13
(c) Written Report on the Meeting of the Parties; Cancellation of
Scheduling Conference. ..................................................................... 14
(d) Conduct of Scheduling Conferences. .............................................. 14
(e) Scheduling Orders. ............................................................................. 15
(f) Modification of Scheduling Order. .................................................. 15
(g) Categories of Actions Exempted. .................................................... 16
LR Civ P 16.2. Case-Management Conferences in Complex Cases ........................... 17
(a) Conduct of Case-Management Conferences. ................................. 17
(b) Obligation of Counsel to Confer. .................................................... 18
(c) Number of Case-Management Conferences and Conference
Orders. ................................................................................................. 18
LR Civ P 16.3. Pretrial Conferences in Non-Complex Cases ..................................... 18
(a) Convening of Pretrial Conferences. ................................................ 18
(b) Pretrial Conference Orders. .............................................................. 19
LR Civ P 16.4. Authority Regarding Settlement, Stipulations and Admissions at
Conferences......................................................................................... 19
LR Civ P 16.5. Sanctions ............................................................................................. 19
LR Civ P 16.6. Mediation ............................................................................................ 19
(a) Cases to be Mediated. ........................................................................ 19
(b) Motion for Exception to Mandatory Mediation. ........................... 19
LR Civ P 16.6.1. Timing of Mediation ........................................................................... 20
LR Civ P 16.6.2. Selection of Mediator; Notice of Nomination .................................... 20
LR Civ P 16.6.3. Appointment of Mediator ................................................................... 20
LR Civ P 16.6.4. Attendance at Mediation ..................................................................... 20
LR Civ P 16.6.5. Mediation Statements; Confidentiality ............................................... 21
LR Civ P 16.6.6. Impartiality of Mediator ...................................................................... 21
LR Civ P 16.6.7. Compensation of Mediator ................................................................. 21
LR Civ P 16.6.8. Notification to Judicial Officer; Report of Mediator .......................... 21
LR Civ P 16.7. Final Pretrial and Settlement Conferences; Pretrial Order ................. 21
(a) Obligation of Counsel to Meet; Pretrial Disclosures Under FR
iii
Civ P 26(a)(3). ..................................................................................... 21
(b) Proposed Pretrial Order. ................................................................... 22
(c) Final Pretrial Conference. ................................................................. 23
(d) Final Pretrial Order. ........................................................................... 23
(e) Final Settlement Conference............................................................. 23
(f) Settlement Before Trial...................................................................... 23
LR Civ P 26.1. Control of Discovery........................................................................... 24
(a) Initial Disclosures Under FR Civ P 26(a)(1). ................................. 24
(b) Disclosures Under FR Civ P 26(a)(2) Regarding Experts. ........... 24
(c) Further Discovery. ............................................................................. 24
LR Civ P 26.2. Uniform Definitions in Discovery Requests ....................................... 25
(a) Incorporation by Reference and Limitations. ................................ 25
(b) Effect on Scope of Discovery. ......................................................... 25
(c) Definitions. .......................................................................................... 25
LR Civ P 26.3. Court Filings and Costs ....................................................................... 26
(a) Non-Filing of Discovery Materials Other than Certificates of
Service. ................................................................................................. 26
(b) Inspection of Documents and Copying Expense. ........................ 27
LR Civ P 26.4. Protective Orders and Sealed Documents ........................................... 27
(a) Protective Orders. .............................................................................. 27
(b) Sealed Documents. ............................................................................. 27
LR Civ P 33.1. Interrogatories ..................................................................................... 28
(a) Form of Response. ............................................................................. 28
(b) Reference to Records. ........................................................................ 28
(c) Answers to Interrogatories Following Objections. ....................... 29
LR Civ P 34.1. Document Production ......................................................................... 29
(a) Form of Response. ............................................................................. 29
(b) Objections to Document Requests.................................................. 29
(c) Answers to Document Requests Following Objections. ............. 29
LR Civ P 36.1. Admissions.......................................................................................... 29
(a) Form of Response. ............................................................................. 29
(b) Statements in Response to Requests for Admission Following
Objections. .......................................................................................... 29
iv
LR Civ P 37.1. Discovery Disputes ............................................................................. 30
(a) Objections to Disclosures or Discovery. ........................................ 30
(b) Duty to Confer. .................................................................................. 30
(c) Motions to Compel. ........................................................................... 30
(d) Telephonic Conferences During Discovery Events. .................... 30
LR Civ P 41.1. Dismissal of Actions ........................................................................... 31
LR Civ P 43.1. Addressing the Court; Examination of Witnesses .............................. 31
LR Civ P 47.1. Trial Juries ............................................................................................. 31
(a) Examination of Prospective Jurors.................................................. 31
(b) Jury Lists. ............................................................................................. 32
LR Civ P 48.1. Contact with Jurors ............................................................................. 32
LR Civ P 51.1. Cases to be Tried by Jury; Proposed Jury Instructions ....................... 32
LR Civ P 52.1. Cases to be Tried by the Court; Proposed Findings of Fact and
Conclusions of Law ............................................................................ 32
LR Civ P 54.1. Fees and Costs..................................................................................... 33
LR Civ P 58.1. Entry of Judgments and Orders ............................................................. 33
LR Civ P 65.1.1. Approval of Bonds by the Clerk ......................................................... 33
LR Civ P 67.1. Deposits Pursuant to FR Civ P 67....................................................... 34
LR Civ P 71.1. Land Condemnation Actions; Manner of Filing, Docketing, Recording,
and Reporting ...................................................................................... 34
LR Civ P 72.1. Authority of Magistrate Judges ........................................................... 34
(a) General. ................................................................................................ 34
(b) Statutory Duties. ................................................................................. 35
(c) Habeas Corpus and Collateral Relief. .............................................. 35
(d) Post-Conviction Habeas Corpus and Related Actions. ................ 35
(e) Miscellaneous Duties. ........................................................................ 35
(f) Method of Assignment of Matters to Magistrate Judges.............. 37
LR Civ P 72.2. Effect of Magistrate Judge Ruling Pending Objection ....................... 37
LR Civ P 73.1. Special Designation of Magistrate Judges .......................................... 37
(a) Consent of the Parties. ...................................................................... 37
(b) Notice of Consent Option. ............................................................... 37
(c) Execution of Consent. ....................................................................... 38
v
(d) Vacating a Reference.......................................................................... 38
LR Civ P 77.1. Principal Offices ................................................................................. 38
LR Civ P 77.2. Divisions ............................................................................................. 38
LR Civ P 77.3. Sessions ............................................................................................... 39
LR Civ P 77.4. Court Library ...................................................................................... 39
LR Civ P 78.1. Hearing on Motions ............................................................................ 39
LR Civ P 79.1. Custody and Disposition of Exhibits .................................................. 40
(a) During Trial or Hearing. ................................................................... 40
(b) After Trial or Hearing. ....................................................................... 40
(c) Alternative Procedures for Custody and Disposition of Exhibits.
............................................................................................................... 41
LR Civ P 79.2. Removal of Papers from Custody of Clerk ......................................... 41
LR Civ P 83.1. Admission of Attorneys ...................................................................... 41
(a) Admission as Member of Bar or Court........................................... 41
(b) Sponsorship of Visiting Attorneys by Members of Court. .......... 42
(c) Appearance by Assistant United States Attorneys and Assistant
Federal Public Defenders. ................................................................. 42
(d) Appearance by Federal Government Attorneys. ........................... 42
LR Civ P 83.2. Legal Assistance by Law Students ..................................................... 43
(a) Written Consent. ................................................................................ 43
(b) Responsibilities of Attorneys of Record. ........................................ 43
(c) Eligibility Requirements. ................................................................... 43
LR Civ P 83.3. Representation of Parties .................................................................... 44
LR Civ P 83.4. Termination of Representation ........................................................... 44
LR Civ P 83.5. Pro se Appearances............................................................................. 44
LR Civ P 83.6. Admission of Visiting Attorneys ........................................................ 44
(a) Procedure for Admission. ................................................................. 44
(b) Motion Not Required. ....................................................................... 45
(c) Payment of Visiting Attorney Fee. .................................................. 45
(d) Exceptions to Payment of Visiting Attorney Fee. ......................... 46
(e) Waiver of Payment of Visiting Attorney Fee. ................................ 46
(f) Revocation of Visiting Attorney Privilege. ..................................... 47
vi
LR Civ P 83.7. Codes of Professional Conduct ........................................................... 47
LR Civ P 83.8. Bias and Prejudice............................................................................... 47
LR Civ P 83.9. Opening Statements and Closing Arguments to Jury ......................... 47
(a) Opening Statements. .......................................................................... 47
(b) Closing Arguments. ............................................................................ 48
LR Civ P 83.10. Photography in and Broadcasting from the Courtroom ...................... 48
LR Civ P 83.11. Impoundment of Photography and Broadcasting Equipment ............. 49
LR Civ P 83.12. Scheduling Conflicts ........................................................................... 49
LR Civ P 83.13. Referral of Cases to Bankruptcy Court ............................................... 49
LR Civ P 83.14. Appeal of a Bankruptcy Court Judgment, Order, or Decree to the
District Court ...................................................................................... 49
LR Civ P 83.15. Courthouse Security ............................................................................ 49
(a) Entry of Federal Courthouse Buildings. ......................................... 49
(b) Persons Requiring Access. ................................................................ 50
(c) Weapons. ............................................................................................. 50
(d) Identification Card. ............................................................................ 50
(e) Wireless Communication Devices. .................................................. 50
II. LOCAL RULES OF CRIMINAL PROCEDURE ..................................................... 52
LR Cr P 5.1. Initial Appearance ............................................................................... 52
(a) Pretrial Services Interview. ................................................................ 52
(b) Disclosure of Pretrial Services Information. .................................. 52
(c) Standard Terms and Conditions for Release on Bond. ................ 52
(d) Modification of Conditions of Pretrial Release. ............................ 53
LR Cr P 7.1. Assignment of Cases ........................................................................... 53
LR Cr P 7.2. Reassignment, Referral and Intra-District Transfer of Cases ............. 53
LR Cr P 10.1. Arraignment and Plea ......................................................................... 53
(a) Notice of Date and Time. ................................................................. 53
(b) Notice of Motion to Dismiss............................................................ 54
(c) No Further Notice. ............................................................................ 54
LR Cr P 12.1. Pretrial Motions .................................................................................. 54
(a) Date for Filing Pretrial Motions in Lieu of Standard Request for
Discovery. ............................................................................................ 54
vii
(b) Date for Filing Pretrial Motions in Addition to Standard Request
for Discovery. ..................................................................................... 54
(c) Time for Response to Pretrial Motions. ......................................... 54
(d) Pretrial Hearing. .................................................................................. 54
(e) Courtroom Technology. .................................................................... 54
LR Cr P 16.1. Arraignment and Standard Discovery Requests ................................. 55
(a) Standard Discovery Request Form. ................................................. 55
(b) Reciprocal Discovery. ........................................................................ 55
(c) Time for Government Response. .................................................... 55
(d) Time for Reciprocal Discovery Response. ..................................... 55
(e) Defense Discovery Request Deemed Speedy Trial Motion......... 55
(f) Duty to Supplement. .......................................................................... 56
LR Cr P 18.1. Principal Offices ................................................................................. 56
LR Cr P 18.2. Divisions ............................................................................................. 56
LR Cr P 23.1. Opening Statements in Criminal Trials............................................... 57
LR Cr P 26.1. Addressing the Court; Examination of Witnesses .............................. 57
LR Cr P 30.1. Jury Instructions .................................................................................. 57
LR Cr P 31.1. Contact with Jurors ............................................................................. 58
LR Cr P 32.1. Presentence Interview ......................................................................... 58
LR Cr P 32.2. Disclosure of Presentence Reports, Statement of Reasons and Probation
Records ............................................................................................... 58
(a) Disclosure of Presentence Reports. ................................................. 58
(b) Statement of Reasons......................................................................... 59
(c) Disclosure of Probation Office Recommendation. ...................... 59
LR Cr P 32.3. Standard Conditions of Probation and Supervised Release in all
Criminal Cases .................................................................................... 59
LR Cr P 32.4. Standard and Optional Conditions of Probation and Supervised Release
in all Sex Offense Cases ..................................................................... 60
(a) Standard Conditions. ......................................................................... 60
(b) Optional Conditions. ......................................................................... 62
LR Cr P 32.1.1. Modification or Revocation of Probation or Supervised Release ....... 63
(a) Petition for Modification or Revocation......................................... 63
(b) Disclosure of Evidence. .................................................................... 64
viii
(c) Recommendation for Revocation of Probation or Supervised
Release.................................................................................................. 64
(d) Request for Modification of the Terms of Probation or
Supervised Release. ............................................................................ 64
LR Cr P 44.1. Admission of Attorneys ...................................................................... 64
(a) Admission as Member of Bar or Court........................................... 64
(b) Sponsorship of Visiting Attorneys by Members of Court. .......... 65
(c) Appearance by Assistant United States Attorneys and Assistant
Federal Public Defenders. ................................................................. 65
(d) Appearance by Federal Government Attorneys. ........................... 65
LR Cr P 44.2. Legal Assistance by Law Students ..................................................... 65
(a) Written Consent. ................................................................................ 65
(b) Responsibilities of Attorneys of Record. ........................................ 66
(c) Eligibility Requirements. ................................................................... 66
LR Cr P 44.3. Representation of Parties .................................................................... 67
LR Cr P 44.4. Termination of Representation ........................................................... 67
LR Cr P 44.5. Pro se Appearances............................................................................. 67
LR Cr P 44.6. Admission of Visiting Attorneys ........................................................ 67
(a) Procedure for Admission. ................................................................. 67
(b) Motion Not Required. ....................................................................... 68
(c) Payment of Visiting Attorney Fee. .................................................. 68
(d) Exceptions to Payment of Visiting Attorney Fee. ......................... 68
(e) Waiver of Payment of Visiting Attorney Fee. ................................ 69
(f) Revocation of Visiting Attorney Privilege. ..................................... 69
LR Cr P 44.7. Code of Professional Conduct ............................................................ 69
LR Cr P 44.8. Bias and Prejudice............................................................................... 70
LR Cr P 49.1. Filing Papers ....................................................................................... 70
LR Cr P 49.2. Filing by Facsimile or Electronic Means ............................................ 70
LR Cr P 49.1.1. Privacy Protection for Filings Made with the Court ........................... 71
(a) Documents. ......................................................................................... 71
(b) Transcripts of Hearings. .................................................................... 72
LR Cr P 53.1. Photography in and Broadcasting from Courtroom ............................ 72
LR Cr P 53.2. Impoundment of Photography and Broadcasting Equipment ............. 72
ix
LR Cr P 55.1. Custody and Disposition of Exhibits .................................................. 72
(a) During Trial or Hearing. ................................................................... 72
(b) After Trial or Hearing. ....................................................................... 73
(c) Alternative Procedures for Custody and Disposition of Exhibits.
............................................................................................................... 74
LR Cr P 55.2. Removal of Papers from Custody of Clerk ......................................... 74
LR Cr P 56.1. Sessions ............................................................................................... 74
LR Cr P 57.1. Courthouse Security ............................................................................ 74
(a) Entry of Federal Courthouse Buildings. ......................................... 74
(b) Persons Requiring Access. ................................................................ 75
(c) Weapons. ............................................................................................. 75
(d) Identification Card. ............................................................................ 75
(e) Wireless Communication Devices. .................................................. 75
LR Cr P 58.1. Authority of Magistrate Judges in Misdemeanor Cases ..................... 76
LR Cr P 58.2. Assignment of Misdemeanors and Petty Offenses ............................. 76
LR Cr P 58.3. Petty Offenses ..................................................................................... 76
(a) Schedule of Petty Offenses. .............................................................. 76
(b) Forfeiture of Collateral in Lieu of Appearance. ............................. 77
(c) Failure to Post Collateral. .................................................................. 77
(d) Certification of Convictions of Traffic Violations. ....................... 77
(e) Arrest. ................................................................................................... 77
LR Cr P 59.1. General Authority of Magistrate Judges ............................................. 77
LR Cr P 59.2. Statutory Duties .................................................................................. 78
LR Cr P 59.3. Duties Under the Federal Rules of Criminal Procedure ..................... 78
LR Cr P 59.4. Miscellaneous Duties .......................................................................... 78
LR Cr P 59.5. Assignment of Matters to Magistrate Judges by Division .................. 79
LR Cr P 59.6. Other Duties Assigned and Matters Referred ..................................... 80
x
I. LOCAL RULES OF CIVIL PROCEDURE
LR Civ P 3.1. Assignment of Cases
Cases filed shall be assigned by the clerk to a judge at the direction of the Chief Judge or
through the use of random electronic methods. The clerk shall not reveal the case
assignment allocation or sequence of the electronic method to anyone, unless ordered to
do so by a district judge. A record of all assignments made shall be kept by the clerk.
LR Civ P 3.2. Reassignment, Referral and Intra-District Transfer of Cases
The clerk is authorized to sign orders to effectuate the reassignment, referral or
intra-district transfer of cases when needed and as directed by a judge of this court.
LR Civ P 3.3. Assignment of Urgent Cases or Matters
In matters requiring urgent and immediate attention by a judge and for which a district
judge has not yet been assigned, such as a complaint and motion for temporary
restraining order or injunctive relief, the filing party shall contact the clerk after filing the
document(s). The clerk, after consulting with the Chief Judge, shall forthwith assign such
urgent case or matter to an available judge in the District.
LR Civ P 3.4. Local Filing Requirements
(a) Civil Docket Cover Sheet.
A civil docket cover sheet, in a form supplied by the clerk, must be completed and
submitted with any complaint commencing an action or any notice of removal
from state court. Each cover sheet must cite the title and section of the United
States Code or relevant statute pursuant to which the action or notice is filed.
(b) State Court Docket Sheet.
When any notice of removal from state court is filed, the filing party must also
attach to the notice of removal a copy of the docket sheet from the circuit court
from which the case is being removed in addition to any other documents required
by federal rule or statute.
Page 1 of 80
LR Civ P 3.5. Proceedings without Prepayment of Fees and Costs
Application to proceed without prepayment of fees and costs shall be made upon a form
available from the clerk and on the court=s web site.
In all cases initiated without payment of fees and costs, the affiant shall stipulate in his or
her affidavit that any recovery in the action shall be paid to the clerk, who shall pay
therefrom any remaining unpaid costs taxed against the plaintiff and remit the balance to
the plaintiff, if pro se, or, otherwise, to the plaintiff and his or her attorney jointly.
LR Civ P 4.1. Waiver of Service
A plaintiff who intends to obtain service of summons on a defendant under the provisions
of FR Civ P 4(d)(1) shall, within 14 days of the filing of the complaint, dispatch the
notice and request through first-class mail or other reliable means to the defendant and
file a copy thereof with the clerk. If a plaintiff fails to dispatch and file the notice and
request within the period specified, service of the summons shall be effectuated by means
other than by waiver of service unless otherwise ordered. A plaintiff who dispatches a
notice and request under the provisions of FR Civ P 4(d)(1) shall allow the defendant not
less than 30 days nor more than 45 days from the date on which the notice and request is
sent, or not less than 60 days nor more than 75 days from that date if the defendant is
addressed outside any judicial district of the United States, within which to return the
waiver of service. The plaintiff shall file the waiver of service with the clerk within 7
days after its return.
LR Civ P 4.1.1. Initiation of Civil Contempt Proceedings
A proceeding to adjudicate a person in civil contempt of court shall be commenced by the
service of a notice of motion or order to show cause. The affidavit upon which the notice
of motion or order to show cause is based shall state with particularity the misconduct
complained of, the claim, if any, for damages, and any evidence that is available to the
moving party as to the amount of damages. A reasonable attorney=s fee, necessitated by
the contempt proceeding, may be included as an item of damage. Where the alleged
contemnor has appeared by an attorney, the notice of motion or order to show cause and
the papers upon which it is based may be served upon his or her attorney; otherwise,
service shall be made personally in the manner provided for by the Federal Rules of Civil
Procedure for the service of a summons. If an order to show cause is sought, the order,
upon a showing of necessity, may include a direction to the United States Marshal to
arrest the alleged contemnor and hold him or her on bail in an amount fixed by the order,
conditioned for his or her appearance at the hearing, and further conditioned that the
Page 2 of 80
alleged contemnor will hold himself or herself thereafter amenable to all orders of the
court for his or her surrender.
LR Civ P 4.1.2. Issues; Trial by Jury
If the alleged contemnor puts in issue his or her alleged misconduct or the damages
sought, he or she shall, upon demand, be entitled to have evidence taken, either before the
court or before a master appointed by the court. When the alleged contemnor is entitled to
a trial by jury, he or she shall make written demand therefor at least 7 days before the
trial date; otherwise he or she will have waived a trial by jury.
LR Civ P 4.1.3. Order of the Court; Confinement of Contemnor
In the event the alleged contemnor is found to be in contempt of court, an order shall be
entered:
(a) reciting the verdict or findings of fact upon which the adjudication is based;
(b) setting forth the amount of the damages to which the complainant is entitled;
(c) fixing the fine, if any, imposed by the court (with the fine to include the damages)
and naming the person to whom the fine shall be payable;
(d) stating any other conditions necessary to purge the contempt; and
(e) directing the arrest of the contemnor by the United States Marshal and his or her
confinement until the performance of the conditions in the order and the payment
of the fine, or until the contemnor is otherwise lawfully discharged.
Unless the order specifies otherwise, the place of confinement shall be in a federally
approved jail facility in the area where the court is sitting. No party shall be required to
pay or to advance to the marshal any expenses for the upkeep of the prisoner. A certified
copy of the order committing the contemnor shall be sufficient warrant to the marshal for
the arrest and confinement of the contemnor. The aggrieved party shall also have the
same remedies against the property of the contemnor as if the order awarding the
judgment or fine were a final judgment.
In the event the alleged contemnor is found not guilty of the charges, he or she shall be
discharged from the proceeding and, at the discretion of the court, may have judgment
against the complainant for his or her costs and disbursements and a reasonable attorney=s
fee.
Page 3 of 80
LR Civ P 5.1. Filing Pleadings and Other Papers
(a) Filing of Papers.
Except as otherwise permitted or required by the Federal Rules, these local rules,
or order, the original of all papers, not electronically filed, that must be filed with
the court shall be filed at the clerk=s office at the point of holding court in which
the particular action or proceeding is docketed. In emergency situations, due to
travel conditions, time limitations or other factors, filings may be made at any of
the clerk=s offices, in which event the papers so filed shall be forwarded by the
receiving clerk=s office to the clerk=s office at the point of holding court in which
the particular action or proceeding is docketed.
(b) Filing by Facsimile Transmission.
The clerk=s office will not accept any facsimile transmission for filing unless
ordered by the court.
(c) Filing by Electronic Means.
AElectronic Filing@ means uploading a document directly from the filer=s computer
using the Court=s Case Management/Electronic Filing System (CM/ECF) onto the
case docket.
Pursuant to FR Civ P 5(d)(4), the clerk=s office will accept pleadings or
documents filed, signed or verified by electronic means that are consistent with
the technical standards, if any, that the Judicial Conference of the United States
establishes. A pleading or document filed by electronic means in compliance with
this Rule constitutes a written paper for the purpose of applying these Rules and
the Federal Rules of Civil Procedure. All electronic filings shall be governed by
the court=s Administrative Procedures for Electronic Case Filing, the provisions of
which are incorporated by reference, and which may be amended from time to
time by the court.
LR Civ P 5.2.1. Privacy Protection for Filings Made with the Court
(a) Documents.
In compliance with the policy of the Judicial Conference of the United States, and
the E-Government Act of 2002 and its amendments, and in order to promote
electronic access to case files while also protecting personal privacy and other
legitimate interests, parties shall refrain from including, or shall partially redact
where inclusion is necessary, the following personal data identifiers from all
Page 4 of 80
pleadings filed with the court, including exhibits thereto, whether filed,
electronically or in paper, unless otherwise ordered by the court.
(1) Social Security Numbers. If an individual's social security number must
be included in a pleading, only the last four digits of that number should
be used.
(2) Names of Minor Children. If the involvement of a minor child must be
mentioned, only the initials of that child should be used.
(3) Dates of Birth. If an individual's date of birth must be included in a
pleading, only the year should be used.
(4) Financial Account Numbers. If financial account numbers are relevant,
only the last four digits of these numbers should be used.
In compliance with the E-Government Act of 2002, a party wishing to file a
document containing the personal data identifiers listed above may file an
unredacted document under seal or may file a reference list under seal. This
document shall be retained by the court as part of the record. The court will
require the party to file a redacted copy for the public file.
The responsibility for redacting these personal identifiers rests solely with counsel
and the parties. The Clerk will not review each pleading for compliance with this
rule.
(b) Transcripts of Hearings.
If information listed in Section (a) of this Rule is elicited during testimony or
other court proceedings, it will become available to the public when the official
transcript is filed at the courthouse unless, and until, it is redacted. The better
practice is to avoid introducing this information into the record in the first place.
If a restricted item is mentioned in court, any party or attorney may ask to have it
stricken from the record or partially redacted to conform to the privacy policy, or
the court may do so on its own motion.
LR Civ P 6.1. Definitions
For the purpose of these Local Rules of Civil Procedure, Ajudicial officer@ means a
district judge or, when authorized by a district judge, a statute, the Federal Rules of Civil
Procedure, or these Local Rules of Civil Procedure, a magistrate judge.
Page 5 of 80
LR Civ P 7.1. Motion Practice
(a) Motions and Supporting Memoranda.
(1) General. All motions shall be concise, state the relief requested
precisely, and be filed timely but not prematurely. Copies of depositions
(or pertinent portions thereof), admissions, documents, affidavits, and
other such materials or exhibits upon which the motion relies shall be
attached to the motion, not the supporting memorandum.
(2) Length. A memorandum of not more than 20 pages in length must
accompany the following types of motions: (1) to intervene; (2) to
transfer; (3) to vacate; (4) to reconsider; (5) for rehearing; (6) for attorney
fees; (7) for clarification; (8) to realign parties; (9) to consolidate; (10) to
recuse; (11) to dismiss; (12) to remand; (13) for summary judgment; (14)
for sanctions; (15) for default judgment; (16) for declaratory judgment;
(17) to compel arbitration; (18) for injunctive relief or for a temporary
restraining order; (19) for a new trial, to reconsider or to alter or amend
judgment; (20) to reinstate or reopen a civil action; (21) to substitute a
party; (22) to stay; (23) to seal; or (24) to show cause.
In addition to these motions, the court has discretion to direct a movant to
submit a memorandum to accompany any other type of motion. If a
movant deems appropriate, a memorandum of not more than 20 pages in
length may accompany any other type of motion even if not required by
this rule or the court. Any response and reply memoranda shall adhere to
the same page limitation.
Motions to exceed the page limitation are disfavored and will be denied
absent a showing of good cause. Unless extraordinary circumstances exist,
a motion to exceed the page limitation for a supporting memorandum of
law, memorandum in response, and a memorandum in reply, must be
tendered to the presiding judge at least 3 days in advance of filing the
proposed oversized memorandum.
If a memorandum is not submitted as required by this rule or by the court,
the motion will be denied without prejudice.
(3) Paper Size, Line Spacing and Margins. All memoranda must be on 82
by 11 inch paper. The text must be double-spaced, but quotations more
than two lines long may be indented and single-spaced. Headings and
footnotes may be single-spaced. Margins must be at least one inch on all
Page 6 of 80
four sides. Page numbers may be placed in the margins, but no text may
appear there.
(4) Typeface and Type Styles. Either a proportionally spaced or monospaced
face may be used. A proportionally spaced face must be 12-point or larger.
A monospaced face may not contain more than 102 characters per inch.
The font must be either Times New Roman, Courier New, or Arial.
(5) Courtesy Copies of Memoranda. When electronically filing documents
with the clerk=s office, a paper courtesy copy to the assigned judicial
officer is not required except where any motion, memorandum, response,
or reply, together with documents in support thereof, is 50 pages or more
in length, or where any administrative record is 75 pages or more in
length.
(6) Motions to Dismiss. Motions to dismiss shall be given priority status
provided they are designated prominently as a motion to dismiss and filed
as a separate pleading.
(7) Filing Deadlines for Response and Reply Memoranda. Memoranda and
other materials in response to motions shall be filed and served on
opposing counsel and unrepresented parties within 14 days from the date
of service of the motion. Any reply memoranda shall be filed and served
on opposing counsel and unrepresented parties within 7 days from the date
of service of the memorandum in response to the motion. Surreply
memoranda shall not be filed except by leave of court. These times for
serving memoranda may be modified by the judicial officer to whom the
motion is addressed.
(8) Referral to Magistrate Judge. Non-dispositive discovery and pretrial
motions relating to discovery practice are referred to a magistrate judge
unless otherwise ordered by the district judge assigned to the case. All
other non-dispositive motions and any dispositive motion may be referred
to a magistrate judge by the district judge assigned to the case.
(9) Action on Motions. All motions shall be decided expeditiously to
facilitate compliance with the deadlines established by the scheduling
order. Failure of a judicial officer to rule on a dispositive motion may be
good cause for modification of a scheduling order upon motion of a party.
District judges may impose time limits on referred motions and monitor
those time limits.
Page 7 of 80
(10) Courtroom Technology: If any courtroom technology is required for a
hearing, counsel must request any such technology by filing a certification
that the court=s technology staff has been notified. The certification
regarding such notification shall be filed with the clerk no later than 7
days before the scheduled commencement of the hearing.
LR Civ P 9.1. Scope and Assignment
(a) Scope.
These rules apply to actions in which an individual seeks district court review of a
final decision of the Commissioner of Social Security (Commissioner), pursuant
to 42 U.S.C. ' 405(g).
(b) Appeals of Social Security Claims.
When an appeal of a Social Security claim is filed, it will be referred to the
magistrate judge. The clerk will provide to each party and/or attorney a AConsent
to Proceed Before U.S. Magistrate Judge@ form along with a notice to return the
completed consent form within 21 days. If the United States Attorney offers to
consent in all Social Security appeals by providing the clerk with a letter to that
effect, it will not be necessary for the Commissioner of Social Security to
complete the consent form; a copy of the letter will be placed in the file when the
plaintiff=s consent is filed. When the parties in a Social Security appeal consent to
proceed before a magistrate judge, it is not necessary for a district judge to sign an
order of reference.
LR Civ P 9.2. Initiation of Action - Complaint
A plaintiff shall file a complaint to initiate an action to seek review of a final decision of
the Commissioner pursuant to 42 U.S.C. ' 405(g) by:
(a) completing and filing the form AComplaint for Review of the Decision of the
Commissioner of Social Security@ appended to these Rules, or
(b) filing a complaint that contains the following information:
(1) the street address, city, county, and state of the plaintiff=s residence;
(2) the plaintiff=s Social Security number(s), date(s) of birth, names of minor
children (with cases involving children under age eighteen, both the parent
or guardian and the child claimant);
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(3) the date of the decision of the Appeals Council;
(4) an allegation that the decision of the Commissioner is not supported by
substantial evidence and/or a description of other error alleged by the
plaintiff;
(5) a demand for the specific relief claimed; and
(6) the address, telephone, facsimile number, and e-mail address of plaintiff=s
attorney.
If the plaintiff is not represented by an attorney, the plaintiff shall also provide the
plaintiff=s telephone number and facsimile number and e-mail address, if any.
LR Civ P 9.3. Commissioner=s Response
(a) Filing and Service.
No later than 60 days after the plaintiff serves the summons and complaint, the
Commissioner shall file and serve on the plaintiff either:
(1) a motion and memorandum in support as described in LR Civ P 9.5(a)(1),
or
(2) an answer alleging generally that the Commissioner=s decision is
supported by substantial evidence and a certified copy of the
administrative transcript.
The motion or answer shall include the name, telephone number, facsimile
number, and e-mail address of the Assistant United States Attorney who is
responsible for the case.
(b) Privacy.
In addition to the docket sheet, the public may view an opinion, order, judgment,
or other disposition of the court in Social Security cases via remote internet
access. However, the remainder of the Social Security case files, including the
Administrative records, will be available only to the court and to the parties
through their counsel via the court=s remote electronic filing system. Social
Security files are still available at the courthouse in their entirety to the general
public.
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(c) Form.
Social Security case documents are exempt from the court=s civil case redaction
requirements.
(d) Discovery.
Discovery is not permitted in these cases.
(e) Material Defect in Administrative Transcript.
If a party discovers an omission from, improper submission with, or other similar
defect in the administrative transcript, the party may notify the court and opposing
party by filing a motion to correct the transcript. Upon a finding that a defect in
the transcript is material, the court may enter an order requiring the defendant to
file a supplemental certified administrative transcript. Deadlines for filing briefs
will run from the date of filing of the certified administrative transcript or the
supplemental certified administrative transcript, whichever occurs last.
LR Civ P 9.4. Briefs
(a) Time for Filing and Service.
The plaintiff shall file and serve a brief in support of the complaint no later than
30 days after the date of service of the certified (or supplemental) administrative
transcript. The Commissioner shall file and serve a brief in support of the
defendant=s decision no later than 30 days after the date of service of the
plaintiff=s brief. The plaintiff may file and serve a reply brief no later than 14 days
after the date of service of the Commissioner=s brief.
(b) Form of Briefs.
The plaintiff=s brief shall contain a statement of issues, a statement of the facts,
and an argument on each issue asserted. The statement of facts shall cite by
transcript page number to the evidence on which the plaintiff relies. The argument
on each issue shall identify the findings which are alleged not to be supported by
substantial evidence, and other errors which are alleged to have been made, with
citations to the pertinent transcript pages and to relevant regulations, rulings, and
cases. The Commissioner=s brief shall contain a statement of facts and an
argument in response to each issue raised by the plaintiff. Opening and
responding briefs shall not exceed 20 double-spaced pages and the reply brief
shall not exceed 10 double-spaced pages, except with leave of court. Neither a
table of contents nor a table of authorities is required.
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LR Civ P 9.5. Motions to Dismiss or Remand
(a) Time for Filing by Commissioner.
No later than 60 days after the plaintiff serves the summons and complaint, the
Commissioner may file and serve either:
(1) a motion to dismiss pursuant to FR Civ P 12 and
memorandum in support, or
(2) a motion to remand to the Commissioner for further action pursuant to
either sentence four or sentence six of 42 U.S.C. ' 405(g).
(b) Time for Filing by Plaintiff.
After the Commissioner has filed and served an answer and certified
administrative transcript, the plaintiff may file and serve a motion to remand
under sentence six of 42 U.S.C. ' 405(g) and a memorandum in support of such
motion, based on presentation of new and material evidence.
(c) Briefs.
The time periods for filing and serving responses and replies to motions to
dismiss or to remand are the same as for briefs.
LR Civ P 9.6. Petition or Motion for Attorney=s Fees
The time limits set forth in FR Civ P 54(d) do not apply to petitions or motions for
attorney=s fees in Social Security cases. If the plaintiff seeks attorney=s fees pursuant to
the Equal Access to Justice Act, a motion for such fees shall be filed within 90 days of
the entry of final judgment, pursuant to 28 U.S.C. ' 2412(d) and served on the United
States Attorney. If the plaintiff seeks attorney=s fees pursuant to 42 U.S.C. ' 406(b), such
motion for fees shall be filed promptly after the plaintiff receives notice of the amount of
past-due benefits, shall be itemized, shall be limited to the time expended in the
representation of the plaintiff in federal court, and shall be served on the United States
Attorney.
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LR Civ P 9.7. Electronic Filing
Electronic filing of documents is required. In addition to the electronic filing, a paper
copy of the certified administrative transcript (and certified supplemental administrative
transcript, if any), however, shall be provided by the Commissioner to the chambers of
the magistrate judge assigned to the action when the answer is filed.
LR Civ P 9.8. Oral Argument
The court will generally decide Social Security appeals on the pleadings and briefs,
without oral argument. A judicial officer may hear oral argument, either sua sponte or at
the request of either party.
LR Civ P 9.9. Other Local Rules in Conflict
These Rules governing Social Security appeals take precedence over other Local Rules in
conflict with them.
LR Civ P 11.1. Verification of Pleadings
Attorneys for parties in proceedings in this court shall not verify pleadings or other
papers except where required by statute or rule. The court may grant exceptions to this
rule for good cause. Violations of this rule will not void or impair any pleading,
document or paper to the detriment of the parties.
LR Civ P 11.2. Stipulations
Unless otherwise ordered, stipulations under the Federal Rules of Civil Procedure and
these Local Rules of Civil Procedure must be in writing, signed by the parties making
them or their counsel, and promptly filed with the clerk.
LR Civ P 12.1. Extensions of Answer Date
Unless otherwise ordered, the time to answer or otherwise respond to a complaint may be
extended by stipulation. For purposes of LR Civ P 16.2 only, the stipulation shall
constitute an appearance by any defendant who is a party to it. An extension by
stipulation will not affect other deadlines established by the Federal Rules of Civil
Procedure, these Local Rules of Civil Procedure, or the court.
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LR Civ P 16.1. Scheduling Conferences
(a) Convening of Scheduling Conferences; Removed and Transferred Actions.
Except in actions exempted by paragraph (g) of this rule or as otherwise ordered,
a judicial officer shall convene a scheduling conference as soon as practicable, but
in any event within 80 days after the appearance of a defendant and within 110
days after the complaint has been served on a defendant.
By entry of an Order and Notice, a judicial officer shall establish the date, time,
and place of the scheduling conference, and inform the parties of their right to
consent to proceed before a magistrate judge under FR Civ P 73(b). As soon as
practicable, but in no event later than 7 days after the appearance of a defendant,
the clerk shall transmit a notice of the conference to all counsel then of record and
to each then unrepresented party for whom an address is available from the
record. The notice shall also establish the date by which a meeting of the parties
must be held pursuant to FR Civ P 26(f) and paragraph (b) of this rule, and the
date by which a written report on the meeting of the parties must be submitted to
the court pursuant to FR Civ P 26(f) and paragraph (c) of this rule.
In a case removed or transferred to this court, a judicial officer shall convene a
scheduling conference as soon as practicable, but in no event later than 60 days
after removal or transfer. The notice required under this paragraph shall be
transmitted to all parties or their attorneys no later than 7 days after the case is
removed or transferred.
(b) Obligation of the Parties to Meet.
The parties shall, as soon as practicable and in any event at least 21 days before
the date set for the scheduling conference, meet in person or by telephone to
discuss and report on all FR Civ P 16 and 26(f) matters, and to:
(1) consider, consistent with paragraph (d) of this rule, whether the case is
complex and appropriate for monitoring in an individualized and
case-specific manner through one or more case-management conferences,
and, if it is, to propose for the court=s consideration 3 alternative dates and
times for the first conference;
(2) agree, if they can, upon the disputed facts that have been alleged with
particularity in the pleadings;
(3) consider consenting to trial by a magistrate judge; and
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(4) consider alternative dispute resolution processes such as the one in LR Civ
P 16.6.
Counsel and all unrepresented parties who have appeared in the case are jointly
responsible for arranging and being present or represented at the meeting,
agreeing on matters to be considered at the scheduling conference, and
considering a prompt settlement or resolution of the case.
(c) Written Report on the Meeting of the Parties; Cancellation of Scheduling
Conference.
Counsel and all unrepresented parties who were present or represented at the
meeting are jointly responsible for submitting to the court, no later than 14 days
before the date set for the scheduling conference, a written report on their
meeting. The written report submitted by the parties shall follow a form available
from the clerk and on the court=s web site.
In the report on the meeting, any matters on which the parties differ shall be set
forth separately and explained. The parties= proposed pretrial schedule and plan of
discovery and disclosures shall advise the court of their best estimates of the time
needed to accomplish specified pretrial steps.
The parties= report on their meeting shall be considered by the judicial officer as
advisory only. If, after the date fixed for filing the written report, the judicial
officer determines that the scheduling conference is not necessary, it may be
cancelled and the scheduling order may be entered.
(d) Conduct of Scheduling Conferences.
Except in a case in which a scheduling conference has been cancelled pursuant to
paragraph (c) of this rule, a judicial officer shall convene a scheduling conference,
which may be held by telephone, within the mandatory time frame specified in
paragraph (a) of this rule regardless of whether the parties have met pursuant to
paragraph (b) of this rule or filed a written report pursuant to paragraph (c) of this
rule.
At the scheduling conference, the judicial officer shall consider any written report
submitted by the parties and discuss with them time limits and other matters they
were obligated to consider in their meeting and that may be addressed in the
scheduling order.
At or following the scheduling conference if one is held, or as soon as practicable
after the date fixed for filing the written report if the scheduling conference is
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cancelled, the judicial officer shall determine whether the case is complex or
otherwise appropriate for careful and deliberate monitoring in an individualized
and case-specific manner. The judicial officer shall consider assigning in the
scheduling order any case so categorized to a case-management conference or
series of conferences under LR Civ P 16.2. If the case is so assigned, the
scheduling order, notwithstanding paragraph (e) of this rule, may be limited to
establishing time limits and addressing other matters that should not await the first
case-management conference. The factors to be considered by the judicial officer
in determining whether the case is complex include:
(1) the complexity of the issues, the number of parties, the difficulty of the
legal questions and the uniqueness of proof problems;
(2) the amount of time reasonably needed by the parties and their attorneys to
prepare the case for trial;
(3) the judicial and other resources required and available for the preparation
and disposition of the case;
(4) whether the case belongs to those categories of cases that involve little or
no discovery,
(A) ordinarily require little or no additional judicial intervention, or
(B) generally fall into identifiable and easily managed patterns;
(5) the extent to which individualized and case-specific treatment will
promote the goal of reducing cost and delay; and
(6) whether the public interest requires that the case receive more intense
judicial attention.
(e) Scheduling Orders.
Following the scheduling conference, if one is held, or as soon as practicable after
the date fixed for filing the written report if the scheduling conference is
cancelled, but in any event within 90 days after the appearance of a defendant and
within 120 days after the complaint has been served on a defendant, the judicial
officer shall enter a scheduling order pursuant to FR Civ P 16(b).
(f) Modification of Scheduling Order.
(1) Time limits in the scheduling order for the joinder of other parties,
amendment of pleadings, filing of motions, and completion of discovery,
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and dates for conferences before trial, a final pretrial conference, and trial
may be modified for good cause by order.
(2) Subject to subparagraph (3), stipulations to modify disclosure or discovery
procedures or limitations will be valid and enforced if they are in writing,
signed by the parties making them or their counsel, filed promptly with the
clerk, and do not affect the trial date or other dates and deadlines specified
in subparagraph (1).
(3) A private agreement to extend discovery beyond the discovery completion
date in the scheduling order will be respected by the court if the extension
does not affect the trial date or other dates and deadlines specified in
subparagraph (1). A discovery dispute arising from a private agreement to
extend discovery beyond the discovery completion date need not,
however, be resolved by the court.
(g) Categories of Actions Exempted.
In addition to those actions and proceedings identified in FR Civ P 81 to which
the Federal Rules of Civil Procedure do not apply, the following categories of
actions are exempted from the requirements of FR Civ P 16(b), 26(a)(1)-(4) and
26(f), and of the Local Rules of Civil Procedure relating thereto unless otherwise
ordered:
(1) habeas corpus cases and motions attacking a federal sentence;
(2) procedures and hearings involving recalcitrant witnesses before federal
courts or grand juries pursuant to 28 U.S.C. ' 1826;
(3) actions for injunctive relief;
(4) review of administrative rulings;
(5) Social Security cases;
(6) prisoner petitions pursuant to 42 U.S.C. ' 1983 and ABivens-type@ actions
in which plaintiff is unrepresented by counsel;
(7) condemnation actions;
(8) bankruptcy proceedings appealed to this court;
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(9) collection and forfeiture cases in which the United States is plaintiff and
the defendant is unrepresented by counsel;
(10) Freedom of Information Act proceedings;
(11) certain cases involving the assertion of a right under the Constitution of
the United States or a federal statute, if good cause for exemption is
shown;
(12) post-judgment enforcement proceedings and debtor examinations;
(13) enforcement or vacation of arbitration awards;
(14) civil forfeiture actions;
(15) student loan collection cases;
(16) actions which present purely legal issues, require no resolution of factual
issues, and which may be submitted on the pleadings, motions and
memoranda of law; and
(17) actions filed pursuant to the Employment Retirement Income Security Act
(ERISA), 29 U.S.C. ' 1001 et seq.; and
(18) such other categories of actions as may be exempted by standing order.
LR Civ P 16.2. Case-Management Conferences in Complex Cases
(a) Conduct of Case-Management Conferences.
Case-management conferences shall be presided over by a judicial officer who, in
furtherance of the scheduling order required by LR Civ P 16.1, may:
(1) explore the possibility of settlement;
(2) identify the principal issues in contention;
(3) prepare a specific discovery schedule and plan that may
(A) identify and limit the discovery available to avoid unnecessary,
unduly burdensome or expensive discovery, and
Page 17 of 80
(B) sequence discovery into two or more stages, and include time
limits for the completion of discovery;
(4) establish deadlines for filing motions and a schedule for their disposition;
(5) consider the bifurcation of issues for trial as set forth in FR Civ P 42(b);
and
(6) explore any other matter appropriate for the management of the case.
(b) Obligation of Counsel to Confer.
The judicial officer may require counsel and unrepresented parties to confer
before a case-management conference and prepare a statement containing:
(1) an agenda of matters that any party believes should be addressed at the
case-management conference; and
(2) a report of whether the case is progressing within the allotted time limits
and in accord with specified pretrial steps.
This statement is to be filed no later than 7 days before the case-management
conference.
(c) Number of Case-Management Conferences and Conference Orders.
The judicial officer may convene as many case-management conferences as
appropriate. After a case-management conference, the judicial officer shall enter
an order reciting the action taken. The order shall control the subsequent course of
the action and may be modified in the same manner as a scheduling order under
LR Civ P 16.1(f).
LR Civ P 16.3. Pretrial Conferences in Non-Complex Cases
(a) Convening of Pretrial Conferences.
In addition to any scheduling conference and the final pretrial conference, the
judicial officer to whom the case is assigned for trial may convene as many
pretrial conferences as the judicial officer determines will reduce cost and delay in
the ultimate disposition of the case and may require the parties to meet or confer
in advance of a pretrial conference.
Page 18 of 80
(b) Pretrial Conference Orders.
After a pretrial conference, the judicial officer shall enter an order reciting the
action taken. The order shall control the subsequent course of the action and may
be modified in the same manner as a scheduling order under LR Civ P 16.1(f).
LR Civ P 16.4. Authority Regarding Settlement, Stipulations and Admissions at
Conferences
At least one of the attorneys for each party and all unrepresented parties participating in
any conference before trial shall have authority to make decisions as to settlement,
stipulations and admissions on all matters that the participants reasonably anticipate may
be discussed.
LR Civ P 16.5. Sanctions
Counsel and parties are subject to sanctions for failures and lack of preparation specified
in FR Civ P16(f) respecting pretrial conferences or orders and are subject to the payment
of reasonable expenses, including attorneys fees, as provided in FR Civ P 37(g) for
failure to participate in good faith in the development and submission of a proposed
discovery plan as required by FR Civ P 26(f) and LR Civ 16.1.
LR Civ P 16.6. Mediation
(a) Cases to be Mediated.
The judicial officer may order mediation sua sponte or at the request of any party.
When so ordered, the following provisions of this local rule shall control. The
Southern District of West Virginia also supports the voluntary use of alternative
dispute resolution and will endeavor to facilitate mediation or similar proceedings
when the presiding judicial officer finds a request to do so appropriate and timely.
The parties are free to engage in mediation without court involvement so long as
it does not interfere with court-ordered deadlines.
(b) Motion for Exception to Mandatory Mediation.
An attorney or a pro se party may file a motion for leave not to engage in
mediation. The presiding judicial officer may grant the motion for good cause
shown.
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LR Civ P 16.6.1. Timing of Mediation
Mediation shall take place at any time ordered by the court. The parties may consult with
each other and agree upon a mutually convenient date, time, and place for the mediation
and ask the court to approve such arrangements.
LR Civ P 16.6.2. Selection of Mediator; Notice of Nomination
The parties are expected to agree upon a mediator, the amount of the mediator=s fee, and
the responsibility for payment. Not later than 7 days before the date set for mediation, or
as otherwise directed by the court, the parties shall file a notice of nomination with the
clerk, setting forth the name, address, telephone number, facsimile number, and e-mail
address of the nominated mediator. The form ANotice of Nomination,@ available from the
clerk and on the court=s web site, shall be used. If the parties are unable to agree on a
mediator, then the parties shall promptly notify the presiding judicial officer, who shall
without delay appoint a mediator, set the amount of the mediator=s fee, and assign
responsibility for payment. The parties may request that a judicial officer (who is not the
presiding judicial officer) conduct the mediation. Such requests are particularly
appropriate in complex cases or in cases in which a party is financially unable to bear its
proportionate share of the mediation expense.
LR Civ P 16.6.3. Appointment of Mediator
Upon the filing of a Notice of Nomination, or upon selection of a mediator by the
presiding judicial officer, an Order Appointing Mediator will be entered, using the form
available from the clerk and on the court=s web site.
LR Civ P 16.6.4. Attendance at Mediation
Unless the court directs otherwise, the following persons shall attend the entire mediation
in person: (a) all lead trial counsel; and (b) any party who is prosecuting a claim (i.e., the
plaintiff(s) and any defendant who has made a counterclaim, cross-claim, or third-party
complaint). Unless the court directs otherwise, any other party or his/her/its
representative who is knowledgeable about the facts of the case, and who has full
authority to negotiate on behalf of the party and to approve or recommend a settlement,
shall attend the entire mediation in person or, with prior approval of the judicial officer,
by telephone or other electronic means such as video-conference.
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LR Civ P 16.6.5. Mediation Statements; Confidentiality
The mediator may require the submission of written mediation statements. If the mediator
does not require submission of written mediation statements, any party may submit a
written mediation statement. Mediation statements submitted in writing to the mediator
are confidential. Oral statements made during the mediation are confidential.
LR Civ P 16.6.6. Impartiality of Mediator
A mediator shall not serve in a case in which the mediator=s impartiality might reasonably
be questioned. Possible conflicts of interest shall be promptly disclosed by the mediator
to counsel and pro se parties.
LR Civ P 16.6.7. Compensation of Mediator
Mediators will be compensated at the rate established when the mediator was selected,
with payment as agreed by the parties or ordered by the presiding judicial officer.
LR Civ P 16.6.8. Notification to Judicial Officer; Report of Mediator
Immediately upon the completion of mediation resulting in the settlement of all or part of
a case, the parties shall notify the chambers of the presiding judicial officers. Within 7
days of the close of mediation, the mediator will file with the clerk a report which states
that all or part of the case was settled (specifying which part of the case settled) or that it
was not settled. If all or part of the case was settled, the parties shall, at the mediation,
place in writing the terms of the settlement, and all participants shall sign the terms of the
settlement, with the mediator retaining the original. Within 30 days of the mediation, the
parties shall submit to the chambers of the presiding judicial officer, an agreed order of
dismissal as to all or part of the case that was settled.
LR Civ P 16.7. Final Pretrial and Settlement Conferences; Pretrial Order
(a) Obligation of Counsel to Meet; Pretrial Disclosures Under FR Civ P 26(a)(3).
Unless otherwise ordered by the judicial officer to whom the case is assigned for
trial, counsel and unrepresented parties shall meet no later than 21 days before the
date of the final pretrial conference to conduct settlement negotiations. Lead
counsel for the plaintiff first named in the complaint shall take the initiative in
scheduling the meeting. If the action is not settled, and if there is no order or
stipulation to the contrary, counsel and unrepresented parties shall make all FR
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Civ P 26(a)(3) disclosures at the meeting. The parties shall prepare a proposed
pretrial order for submission to the judicial officer. Counsel and unrepresented
parties must be prepared at the final pretrial conference to certify that they tried in
their meeting to settle the case.
(b) Proposed Pretrial Order.
Unless otherwise ordered by the judicial officer to whom the case is assigned for
trial, counsel and unrepresented parties shall file, no later than 7 days prior to the
final pretrial conference, a proposed pretrial order setting forth:
(1) the pre-trial disclosures required by FR Civ P 26(a)(3) and any objections
thereto;
(2) contested issues of law requiring a ruling before trial;
(3) a realistic and brief statement by counsel for plaintiff(s) and third-party
plaintiff(s) of essential elements which must be proved to establish any
meritorious claim remaining for adjudication and the damages or relief
sought, accompanied by supporting legal authorities; and by counsel for
defendant(s) and third-party defendant(s) of essential elements which must
be proved to establish any meritorious defense(s), accompanied by
supporting legal authorities. Corresponding statements must also be
included for counterclaims and cross-claims;
(4) in all cases, for each party, a brief summary of the material facts and
theories of liability or defense;
(5) in all cases, for each party, a single listing of the contested issues of fact;
and a single listing of the contested issues of law, together with case and
statutory citations;
(6) stipulations;
(7) suggestions for the avoidance of unnecessary proof and cumulative
evidence;
(8) suggestions concerning any need for adopting special procedures for
managing potentially difficult or protracted aspects of the trial that may
involve complex issues, multiple parties, difficult legal questions or
unusual proof problems;
(9) a list of special voir dire questions, if any, that counsel request be asked of
the jury panel;
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(10) a statement setting forth a realistic estimate of the number of trial days
required;
(11) any courtroom technology requested for use at trial and a certification that
the court=s technology staff has been notified regarding such use no later
than 7 days before the scheduled commencement of trial; and
(12) any other matters relevant for pretrial discussion or disposition, including
those set forth in FR Civ P 16.
(c) Final Pretrial Conference.
The judicial officer to whom the case is assigned for trial shall preside at the final
pretrial conference. The final pretrial conference shall be attended by
unrepresented parties and by lead trial counsel for each represented party rather
than Aby at least one of the attorneys who will conduct the trial for each of the
parties@ as provided in FR Civ P 16(d). Individuals with full authority to settle the
case for each party shall be present in person or immediately available by
telephone. The agenda of the final pretrial conference shall include consideration
of those matters in the proposed pretrial order and any other appropriate matter,
including those set forth in FR Civ P 16(c) and (d).
(d) Final Pretrial Order.
Following the final pretrial conference, the judicial officer shall enter a final
pretrial order, which shall be modified only to prevent manifest injustice.
(e) Final Settlement Conference.
Unless otherwise ordered, a final settlement conference shall be held in each case.
The conference shall be conducted by the judicial officer and attended by
unrepresented parties and lead trial counsel for each represented party.
Individuals with full authority to settle the case for each party shall be present in
person or otherwise available as the court permits.
(f) Settlement Before Trial.
All fees and juror costs shall be imposed upon the parties unless counsel have
notified the court and the clerk=s office of any settlement not later than 3:00 p.m.
of the last business day before trial. The costs shall be assessed equally against the
parties and their counsel unless otherwise ordered.
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LR Civ P 26.1. Control of Discovery
(a) Initial Disclosures Under FR Civ P 26(a)(1).
Unless otherwise ordered or stipulated by the parties, the disclosures required
under FR Civ P 26(a)(1) shall be made no later than 30 days after the meeting
required under FR Civ P 26(f).
(b) Disclosures Under FR Civ P 26(a)(2) Regarding Experts.
Unless otherwise ordered or stipulated by the parties, the making, sequence, and
timing of disclosures under FR Civ P 26(a)(2) will be as follows:
(1) the party bearing the burden of proof on an issue shall make the
disclosures required by FR Civ P 26(a)(2)(A) and (B) for that issue to all
other parties or their counsel no later than 60 days prior to the discovery
completion date;
(2) the party not bearing the burden of proof on an issue shall make the
disclosures required by FR Civ P 26(a)(2)(A) and (B) for that issue to all
other parties or their counsel no later than 30 days prior to the discovery
completion date; and
(3) all parties shall provide no later than 14 days prior to the discovery
completion date the disclosures required by FR Civ P 26(a)(2)(A) and (B)
if the evidence is intended solely to contradict or rebut evidence on the
same issue identified by another party under FR Civ P 26(a)(2)(B).
The disclosures described in FR Civ P 26(a)(2)(B) shall not be required of
physicians and other medical providers who examined or treated a party or party=s
decedent unless the examination was for the sole purpose of providing expert
testimony in the case.
(c) Further Discovery.
After the opportunities for discovery pursuant to the Federal Rules of Civil
Procedure, stipulation of the parties, or order have been exhausted, any requests
that the parties may make for additional depositions, interrogatories, or requests
for admissions shall be by discovery motion.
The judicial officer shall not consider any discovery motion under this rule unless
it is accompanied by a certification that the moving party has made a reasonable
Page 24 of 80
and good-faith effort to reach agreement with counsel or unrepresented parties
opposing the further discovery sought by the motion.
LR Civ P 26.2. Uniform Definitions in Discovery Requests
(a) Incorporation by Reference and Limitations.
The full text of the definitions set forth in paragraph (c) of this rule is
incorporated by reference into all discovery request, but shall not preclude:
(1) the definition of other terms specific to the particular case;
(2) the use of abbreviations; or
(3) a narrower definition of a term defined in paragraph (c).
(b) Effect on Scope of Discovery.
This rule does not broaden or narrow the scope of discovery permitted by the
Federal Rules of Civil Procedure or these Local Rules.
(c) Definitions.
The following definitions apply to all discovery requests:
(1) Acommunication@ means the transmittal of information (in the form of
facts, ideas, inquiries, or otherwise);
(2) Adocument@ is synonymous in meaning and equal in scope to the usage of
this term in FR Civ P 34(a). A draft or non-identical copy is a separate
document;
(3) Aidentify@ when referring to a person means to give, to the extent known,
the person=s full name and present or last known address. Once a person
has been identified in accordance with this subparagraph, only the name of
that person need be listed in response to subsequent discovery requesting
the identification of that person;
(4) Aidentify@ when referring to documents means to give, to the extent
known, the
(A) type of document,
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(B) general subject matter,
(C) author(s), addressee(s), and recipient(s), and
(D) date the document was prepared;
(5) Aplaintiff,@ Adefendant,@ a party=s full or abbreviated name, or a pronoun
referring to a party, mean the party, and, where applicable, its officers,
directors, employees, and partners. This definition does not impose a
discovery obligation on any person who is not a party to the case;
(6) Aperson@ means any natural person or any business, legal or governmental
entity or association; and
(7) Aconcerning@ means referring to, describing, evidencing, or constituting.
LR Civ P 26.3. Court Filings and Costs
(a) Non-Filing of Discovery Materials Other than Certificates of Service.
Disclosures pursuant to FR Civ P 26(a)(1), (2) and (3), depositions upon oral
examination or written questions, notices of receipt of depositions, interrogatories,
requests pursuant to FR Civ P 34, requests for admissions, and answers and
responses thereto shall not be filed unless ordered or required under these Local
Rules of Civil Procedure. Certificates of service of discovery materials shall be
filed. Unless otherwise stipulated or ordered, the party taking a deposition or
obtaining any material through discovery is responsible for its custody,
preservation and delivery to the court if needed or ordered, and the responsibility
shall not terminate upon dismissal of any party while the action is still pending.
The custodial responsibility of the dismissed party may be discharged by
stipulation of the parties to transfer the custody of the discovered material to one
or more of the remaining parties. If for any reason a party or concerned citizen
believes that any of the named documents should be filed, an ex parte request
may be made that the document be filed, stating the reasons therefor. The court
may also order filing sua sponte. If relief is sought under FR Civ P 26(c) or 37,
copies of the relevant portions of disputed documents shall be filed with any
motion. If the moving party under FR Civ P 56 or the opponent relies on
discovery documents, copies of the pertinent parts shall be filed with the motion
or opposition.
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(b) Inspection of Documents and Copying Expense.
(1) Inspection of Documents. Except as otherwise provided in an order
pursuant to FR Civ P 26(c), all parties to an action shall be entitled to
inspect documents produced by another party pursuant to FR Civ P 33(d)
or 34 at the location where they are produced.
(2) Copies of Documents. Except as otherwise provided in an order pursuant
to FR Civ P 26(c), upon request of any party, and upon that party=s
agreement to pay the reasonable copying costs at the time of delivery, a
party who produces documents pursuant to FR Civ P 33(d) or 34 shall
provide copies of all or any specified part of the documents. No party shall
be entitled to obtain copies of documents produced by another party
pursuant to FR Civ P 33(d) or 34 without paying the reasonable copying
costs. Parties are encouraged, but not required, to provide copies of
documents in electronic format.
LR Civ P 26.4. Protective Orders and Sealed Documents
(a) Protective Orders.
If a party, or parties jointly, seek entry of a protective order to shield information
from dissemination, the movant or movants must demonstrate with specificity that
(1) the information qualifies for protection under FR Civ P 26(c), and (2) good
cause exists for restricting dissemination on the ground that harm would result
from its disclosure.
(b) Sealed Documents.
(1) General. The rule requiring public inspection of court documents is
necessary to allow interested parties to judge the court=s work product in
the cases assigned to it. The rule may be abrogated only in exceptional
circumstances.
(2) Submission. Unless otherwise authorized by law, a motion to seal shall
be filed electronically pursuant to the Administrative Procedures for
Electronic Case Filing and accompanied by a memorandum of law which
contains:
(A) the reasons why sealing is necessary, including the reasons why
alternatives to sealing, such as redaction, are inadequate;
(B) the requested duration of the proposed seal; and
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(C) a discussion of the propriety of sealing, giving due regard to the
parameters of the common law and First Amendment rights of
access as interpreted by the Supreme Court and our Court of
Appeals.
LR Civ P 33.1. Interrogatories
(a) Form of Response.
Each answer, statement or objection shall be preceded by the interrogatory to
which it responds.
(b) Reference to Records.
Whenever a party answers any interrogatory by reference to records from which
the answer may be derived or ascertained, as permitted in FR Civ P 33(d):
(1) the producing party shall make available any computerized information or
summaries thereof that it either has or can adduce by a relatively simple
procedure, unless these materials are privileged or otherwise not subject to
discovery;
(2) the producing party shall provide any relevant compilations, abstracts, or
summaries in its custody or readily obtainable by it, unless these materials
are privileged or otherwise not subject to discovery;
(3) the documents shall be made available for inspection and copying within
14 days after service of the answers to interrogatories or at a date agreed
upon by the parties; and
(4) If a party answers an interrogatory by reference to a deposition in the
action, the party shall identify the deponent and the pages of specific
transcripts where the answer may be found. If a party answers an
interrogatory by reference to a deposition in another action, the party shall
identify the deponent, the date of deposition, the style of the action, the
pages of a specific transcript where the answer may be found and shall
make the deposition available for inspection and copying.
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(c) Answers to Interrogatories Following Objections.
When it is ordered that interrogatories to which objections were made must be
answered, the answers shall be served within 14 days of the order, unless the court
directs or the parties stipulate otherwise.
LR Civ P 34.1. Document Production
(a) Form of Response.
Each answer, statement, or objection shall be preceded by the request to which it
responds.
(b) Objections to Document Requests.
(1) When an objection is made to any document request or sub-part, it shall
state with specificity all grounds for the objection. Any ground not stated
in an objection within the time provided by the FR Civ P 34, or within any
extensions of time, is waived.
(2) No part of a document request shall be left unanswered because an
objection was interposed to another part of the document request.
(c) Answers to Document Requests Following Objections.
When it is ordered that document requests to which objections were made must be
answered, the answers shall be served within 14 days of the order, unless the court
directs or the parties stipulate otherwise.
LR Civ P 36.1. Admissions
(a) Form of Response.
Each answer, statement or objection shall be preceded by the request for
admission to which it responds.
(b) Statements in Response to Requests for Admission Following Objections.
When it is ordered that a request for admission to which objections were made is
proper, the matter shall be deemed admitted unless within 14 days of the order the
party to whom the request was directed serves a statement denying the matter or
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setting forth the reasons why that party cannot admit or deny the matter, as
provided in FR Civ P 36.
LR Civ P 37.1. Discovery Disputes
(a) Objections to Disclosures or Discovery.
Objections to disclosures or discovery that are not filed within the response time
allowed by the Federal Rules of Civil Procedure, the scheduling order(s), or
stipulation of the parties pursuant to FR Civ P 29, whichever governs, are waived
unless otherwise ordered for good cause shown. Objections shall comply with FR
Civ P 26(g) and any claim of privilege or objection shall comply with
FR Civ P 26(b)(5).
(b) Duty to Confer.
Before filing any discovery motion, including any motion for sanctions or for a
protective order, counsel for each party shall make a good faith effort to confer in
person or by telephone to narrow the areas of disagreement to the greatest
possible extent. It shall be the responsibility of counsel for the moving party to
arrange for the meeting.
(c) Motions to Compel.
A motion to compel disclosure or discovery must be accompanied by a statement
setting forth verbatim each discovery request or disclosure requirement and any
response thereto to which an exception is taken. In addition, the movant may
include a statement of the grounds and pertinent authorities relied upon and shall
file such a statement if requested by the court. If the discovery request or
disclosure requirement is ignored, the movant need only file a motion to compel
without setting forth verbatim the discovery request or disclosure requirement.
Motions to compel or other motions in aid of discovery not filed within 30 days
after the discovery response or disclosure requirement was due are waived, and in
no event provide an excuse, good cause or reason to delay trial or modify the
scheduling order.
(d) Telephonic Conferences During Discovery Events.
If a dispute arises during a discovery event, the parties must attempt in good faith
to resolve the matter without judicial intervention. If a good faith conferral fails to
resolve the dispute and if its disposition during the discovery event is likely to
result in savings of substantial time and expense, a party or counsel may contact
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the chambers= staff of the magistrate judge to whom the case is assigned to
request a telephone conference during the discovery event.
LR Civ P 41.1. Dismissal of Actions
When it appears in any pending civil action that the principal issues have been
adjudicated or have become moot, or that the parties have shown no interest in further
prosecution, the judicial officer may give notice to all counsel and unrepresented parties
that the action will be dismissed 30 days after the date of the notice unless good cause for
its retention on the docket is shown. In the absence of good cause shown within that
period of time, the judicial officer may dismiss the action. The clerk shall transmit a copy
of any order of dismissal to all counsel and unrepresented parties. This rule does not
modify or affect provisions for dismissal of actions under FR Civ P 41 or any other
authority.
LR Civ P 43.1. Addressing the Court; Examination of Witnesses
Attorneys and pro se litigants must stand and speak clearly when addressing the court.
Only one attorney for each party may participate in examination and cross-examination
of a witness. With the court=s permission, the attorney may approach a witness to present
or inquire about an exhibit.
LR Civ P 47.1. Trial Juries
(a) Examination of Prospective Jurors.
The judicial officer shall conduct the examination of prospective jurors called to
serve in civil actions. In conducting the examination, the judicial officer shall
identify the parties and their respective counsel and briefly outline the nature of
the action. The judicial officer shall interrogate the jurors to elicit from them
whether they have any prior knowledge of the case and what connections they
may have, if any, with the parties or their attorneys. Inquiries directed to the
jurors shall embrace areas and matters designed to discover basis for challenge for
cause, to gain knowledge enabling an intelligent exercise of peremptory
challenges, and to ascertain whether the jurors are qualified to serve in the case on
trial. The judicial officer may consult with the attorneys, who may request or
suggest other areas of juror interrogation. To the extent deemed proper, the
judicial officer may then supplement or conclude his or her examination of the
jurors.
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(b) Jury Lists.
Names of jurors drawn for jury service from the court=s qualified jury wheel may
be disclosed only in accordance with the court=s Jury Selection Plan, approved
and made effective February 25, 2009, and as it may be modified. Jury lists
prepared by the clerk shall be made available to counsel and unrepresented parties
as provided in the Jury Selection Plan.
LR Civ P 48.1. Contact with Jurors
After conclusion of a trial, no party, nor his or her agent or attorney, shall communicate
or attempt to communicate with any member of the jury, including alternate jurors who
were dismissed prior to deliberations, about the jury=s deliberations or verdict without
first applying for (with notice to all other parties) and obtaining for good cause an order
allowing such communication.
LR Civ P 51.1. Cases to be Tried by Jury; Proposed Jury Instructions
Not less than 7 days prior to the trial date, counsel and unrepresented parties shall, in jury
cases, submit to the judicial officer proposed jury instructions with supporting statutory
and case authority, special interrogatories, and a verdict form. Counsel and unrepresented
parties shall exchange copies of the proposed instructions, special interrogatories and
verdict form prior to their submission to the judicial officer. Submissions pursuant to this
local rule shall not be filed and made a part of the record unless ordered by the judicial
officer.
LR Civ P 52.1. Cases to be Tried by the Court; Proposed Findings of Fact and
Conclusions of Law
Counsel and unrepresented parties shall submit to the judicial officer 14 days prior to trial
proposed findings of fact and conclusions of law for cases to be tried to the court.
Counsel and unrepresented parties shall exchange copies of the proposals prior to
submission to the judicial officer. The suggested findings of fact should contain a detailed
listing of the relevant and material facts that the party intends to prove. They should not
be in formal language, but should be in simple narrative form. The proposed conclusions
of law should contain a full discussion of the principles of law relied upon, with statutory
and case citations.
Submissions pursuant to this local rule shall not be filed and made a part of the record
unless ordered by the judicial officer.
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LR Civ P 54.1. Fees and Costs
Fees and costs shall be taxed and paid in accordance with the provisions of 28 U.S.C. ''
1911-1929, and other controlling statutes and rules. If costs are awarded, the reasonable
premiums or expenses paid on any bond or other security given by the prevailing party
shall be taxed as part of the costs.
The prevailing party shall prepare a bill of costs within 30 days after entry of the final
judgment on the form supplied by the clerk. The bill of costs shall contain an itemized
schedule of the costs and a statement signed by counsel for the prevailing party that the
schedule is correct and the charges were actually and necessarily incurred. The original of
the bill of costs shall be filed with the clerk and a copy served on counsel for the adverse
party or on the unrepresented adverse party.
If an adverse party makes specific objections to any item of costs filed by the prevailing
party, within 14 days after service of a bill of costs, the clerk shall set the matter for
hearing or may assess costs based on the papers submitted.
LR Civ P 58.1. Entry of Judgments and Orders
Except for good cause, no judgment or order may be presented for entry unless it bears
the signature of all counsel and unrepresented parties. This rule does not apply to
judgments or orders drawn or prepared by the court. When counsel or an unrepresented
party responsible for the preparation and presentation of a judgment or order
unreasonably delays or withholds its presentation, the court may proceed to enter such
judgment or order.
LR Civ P 65.1.1. Approval of Bonds by the Clerk
Except in criminal cases or for supersedeas bonds pursuant to FR Civ P 62, or where
another procedure is prescribed by law, the clerk may approve bonds without an order if:
(a) the amount of the bond has been fixed by prior order, local rule, or statute; and
(b) the bond is secured by
(1) the deposit of cash or obligations of the United States,
(2) the guaranty of a corporate surety holding a certificate of authority from
the Secretary of the Treasury, or
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(3) the guaranty of a qualified property owner when the guaranty is
accompanied by an acceptable certificate of justification.
LR Civ P 67.1. Deposits Pursuant to FR Civ P 67
In accordance with FR Civ P 67, funds paid to the clerk for deposit into the court=s
registry shall be placed in an interest-bearing account or instrument as ordered, and shall
remain so deposited pending disposition by subsequent court order. Any order obtained
by a party that directs the clerk to invest funds pursuant to 28 U.S.C. ' 2041 shall provide
for payment by check made payable to the Clerk, United States District Court, for deposit
in a renewable time certificate, treasury bill, passbook savings account, or other secure
instrument. Any order authorizing disbursement of funds on deposit shall provide for
payment of the statutory administrative registry fee from the income earnings prior to any
other distribution of the account. If any individual or entity receives payment of earned
interest in excess of $10.00 per annum, parties shall provide identification by name,
address and social security or tax identification number in compliance with Title 26 of the
United States Code, and Internal Revenue Service regulations, as a condition of the
release of said funds. A copy of any order affecting the deposit, investment or
disbursement of funds in the court=s registry shall be served on the clerk.
LR Civ P 71.1. Land Condemnation Actions; Manner of Filing, Docketing, Recording,
and Reporting
The guidelines for filing, docketing, recording and reporting land condemnation
proceedings approved by the Judicial Conference of the United States are adopted for use
in this jurisdiction. Copies of the guidelines are available on the court=s web site.
LR Civ P 72.1. Authority of Magistrate Judges
(a) General.
A magistrate judge is a judicial officer of the district court. A magistrate judge of
this district is designated to perform, and may be assigned, any duty allowed by
law to be performed by a magistrate judge. Performance of a duty by a magistrate
judge will be governed by the applicable provisions of federal statutes and rules,
the general procedural rules of this court, and the requirements specified in any
order or reference from a district judge. In performing a duty, a magistrate judge
may determine preliminary matters; require parties, attorneys, and witnesses to
appear; require briefs, proofs, and argument; and conduct any hearing,
conference, or other proceeding the magistrate judge deems appropriate.
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(b) Statutory Duties.
Magistrate judges are authorized or specially designated to perform the duties
prescribed by 28 U.S.C. ' 636, and such other duties as may be assigned by the
court or a district judge which are not inconsistent with the Constitution and laws
of the United States.
(c) Habeas Corpus and Collateral Relief.
Magistrate judges are authorized to perform the duties imposed upon district
judges by Rules for Proceedings Under 28 U.S.C. ' 2254 and Rules for
Proceedings Under 28 U.S.C. ' 2255, in accordance with Rule 10 of those Rules
and 28 U.S.C. ' 636.
(d) Post-Conviction Habeas Corpus and Related Actions.
The following matters are referred to magistrate judges:
(1) Post-conviction habeas corpus, filed pursuant to 28 U.S.C. '' 2241, 2254,
2255, and 18 U.S.C. ' 3582(c), and related actions;
(2) Prisoner challenges to conditions of confinement, filed pursuant to 42
U.S.C. ' 1983, and Bivens, and related actions;
(3) Appeals of administrative decisions under the Social Security Act, and
related actions, including motions or petitions for attorney=s fees arising
out of such appeals;
(4) Discovery disputes and pretrial motions relating to discovery practice;
(5) Applications to proceed without prepayment of fees and costs; and
(6) Actions filed by persons who are proceeding pro se, whether or not they
are in custody, until such person is represented by retained counsel.
(e) Miscellaneous Duties.
Magistrate judges are authorized to:
(1) exercise general supervision of civil calendars, conduct calendar and status
calls, conduct hearings to resolve discovery disputes, and determine
motions to expedite or postpone the trial of cases for the district judges;
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(2) analyze civil cases to determine an appropriate schedule; report findings to
the assigned district judge; and, in complex and other selected cases,
conduct conferences at which a schedule for the completion of various
stages of the litigation will be established, the possibility of early
settlement will be evaluated, and alternative dispute resolution
mechanisms will be considered;
(3) conduct pretrial conferences, scheduling conferences, mediations,
settlement conferences, omnibus hearings, and related pretrial
proceedings;
(4) with the consent of the parties, conduct voir dire and preside over the
selection of petit juries;
(5) accept petit jury verdicts in the absence of the district judge;
(6) issue subpoenas, writs of habeas corpus ad testificandum, or other orders
necessary to obtain the presence of parties, witnesses, or evidence for
court proceedings;
(7) rule on applications for disclosure of tax returns and tax return
information, pursuant to 26 U.S.C. ' 6103(i)(1);
(8) order the exoneration or forfeiture of bonds;
(9) conduct proceedings for the collection of civil penalties of not more than
$200 assessed under the Federal Boat Safety Act of 1971, pursuant to 46
U.S.C. '' 4311(d) and 12309(c);
(10) determine post-judgment discovery motions and conduct examinations of
judgment debtors pursuant to FR Civ P 69;
(11) supervise proceedings conducted pursuant to letters rogatory as set forth in
28 U.S.C. ' 1782(a);
(12) issue orders of withdrawal of funds from the court registry pursuant to 28
U.S.C. ' 2042;
(13) issue orders or warrants authorizing acts necessary in the performance of
the duties of administrative and regulatory agencies and departments of
the United States; and
(14) conduct extradition proceedings in accordance with 18 U.S.C.' 3184; and
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(15) serve with designated committees or other judicial officers, participate in
promulgation of local rules and procedures, administration of the
forfeiture of collateral system, and other functions of court governance as
approved by the Chief Judge.
(f) Method of Assignment of Matters to Magistrate Judges.
The method for assignment of duties to a magistrate judge shall be by Standing
Order or case-specific order unless otherwise provided for in these Local Rules,
the Federal Rules of Civil Procedure, the Rules for Proceedings Under 28 U.S.C.
' 2254, and the Rules for Proceedings Under 28 U.S.C. ' 2255. Individual district
judges may, in their discretion, assign or request magistrate judges to perform
such other duties as are not inconsistent with the Constitution and the laws of the
United States.
LR Civ P 72.2. Effect of Magistrate Judge Ruling Pending Objection
When an objection to a magistrate judge=s ruling on a non-dispositive pretrial motion is
filed pursuant to FR Civ P 72(a), the ruling remains in full force and effect unless and
until it is stayed by the magistrate judge or by a district judge.
LR Civ P 73.1. Special Designation of Magistrate Judges
(a) Consent of the Parties.
Upon consent of the parties, magistrate judges are specially designated by the
district judges to exercise civil jurisdiction pursuant to 28 U.S.C. ' 636(c)(1), and
to conduct any or all proceedings in a jury or nonjury civil matter and order the
entry of judgment in the case.
(b) Notice of Consent Option.
The Order and Notice entered by a judicial officer under LR Civ P 16.1(a) shall
inform the parties of their right to consent to proceed before a magistrate judge.
Parties added to an action after reference to a magistrate judge shall be notified by
the clerk of their right to consent to the exercise of jurisdiction by a magistrate
judge. In the event an added party does not consent to the magistrate judge=s
jurisdiction, the action shall be returned to the district judge for further
proceedings. Additional notices may be furnished by the clerk to the parties at
later stages of the proceeding, and may be included with pretrial notices and
instructions. The consent form may be filed at any time prior to trial; however, no
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civil action shall be referred to a magistrate judge unless a district judge has
signed an order of reference.
(c) Execution of Consent.
Any party may deliver a consent form to the clerk. An alternative and acceptable
consent form is a FR Civ P 26(f) Parties= Report of Planning Meeting, signed by
all parties or their counsel, which states that all parties consent to the exercise of
jurisdiction by a magistrate judge. No consent form shall be made available, nor
will its contents be made known to any district judge or magistrate judge, unless
all parties have consented to the reference to the magistrate judge. No magistrate
judge, district judge or other court official may attempt to persuade or induce any
party to consent to the reference of any matter to a magistrate judge. This rule,
however, shall not preclude a district judge or magistrate judge from informing
the parties that they may have the option of referring the case, or one or more
case-dispositive motions, to a magistrate judge.
(d) Vacating a Reference.
A district judge may, on his or her own motion, or under extraordinary
circumstances shown by any party, vacate the reference to a magistrate judge of a
case in which the parties have filed consents.
LR Civ P 77.1. Principal Offices
The headquarters of the United States District Court for the Southern District of West
Virginia and of its Clerk is located in the Robert C. Byrd United States Courthouse,
Room 2400, 300 Virginia Street East, Charleston, West Virginia. The mailing address is
P.O. Box 2546, Charleston, West Virginia 25329.
LR Civ P 77.2. Divisions
The Southern District of West Virginia is composed of 23 counties. Each of these
counties is assigned to one of four administrative divisions. Each division is given the
name of the city in the division where the court and offices of its clerk are located. The
divisions, addresses of division offices, and counties comprising each division are as
follows:
Division 1: Bluefield
Elizabeth Kee Federal Building
Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Counties Composing Division: Mercer, Monroe and McDowell
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Division 2: Charleston
Robert C. Byrd United States Courthouse
Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301
Mailing address: P.O. Box 2546, Charleston, West Virginia 25329
Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln, Logan,
Mingo, Nicholas Roane, Wirt and Wood
Division 3: Huntington
Sidney L. Christie Federal Building
Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Counties Composing Division: Cabell, Mason, Putnam and Wayne
Division: 5: Beckley
Robert C. Byrd Federal Building and Courthouse
Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801
Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming
The court will occasionally convene at Parkersburg to deal with matters falling in the
Huntington or Charleston Divisions, as needed, and at Lewisburg to deal with matters
falling within either the Beckley or Bluefield Division, as needed.
LR Civ P 77.3. Sessions
The court is considered open and in continuous session in all divisions of the district on
all business days throughout the year in accordance with the provisions of 28 U.S.C.
' 139, FR Civ P 77(c), and other controlling statutes and rules.
LR Civ P 77.4. Court Library
Attorneys and other persons authorized by the court may use the court=s library. Library
books may not be removed from the court=s premises. Persons using library books shall
be responsible for their care and preservation and shall return them to their proper places
in the library.
LR Civ P 78.1. Hearing on Motions
The judicial officer may require or permit hearings on motions, and the hearings may be
by telephone.
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LR Civ P 79.1. Custody and Disposition of Exhibits
(a) During Trial or Hearing.
(1) Custody of the Clerk. Unless the court otherwise orders, all marked and
identified exhibits of a documentary nature that are admitted into evidence
during trial or hearing, and that are suitable for filing and transmission to
the court of appeals as a part of the record on appeal, must be placed in the
custody of the clerk of court.
(2) Custody of the Parties. Unless the court otherwise orders, all marked and
identified exhibits, models and materials of unusual bulk or weight
admitted into evidence during trial that cannot be conveniently stored in
the clerk=s facilities will be retained in the custody of the party offering
them. The party will execute a receipt for the exhibits and will grant the
reasonable request of any party to examine or reproduce the exhibit for use
in the proceeding. With approval of the court, photographs may be
substituted for said exhibits once they have been introduced into evidence.
(3) Custody of the United States Marshal. Unless the court otherwise orders,
all marked and identified exhibits admitted into evidence that are sensitive
in nature will be retained in the custody of the United States Marshal.
Such exhibits will include, but not be limited to, the following types of
sensitive exhibits or evidence: controlled substances, firearms,
ammunition, explosive devices, pornographic materials, jewelry,
poisonous or dangerous chemicals, intoxicating liquors, money or articles
of high monetary value, and counterfeit money. With approval of the
court, photographs may be substituted for said exhibits once they have
been introduced into evidence.
(b) After Trial or Hearing.
(1) Custody of the Clerk. Where the clerk of court does take custody of
exhibits that are documentary in nature under subsection 79.1.a.1 of this
rule, such exhibits may not be taken from the custody of the clerk until
final disposition of the matter, except upon order of the court and
execution of a receipt that identifies the exhibits taken, which receipt will
be filed in the case. Copies approved by counsel and unrepresented parties
must be filed in place of the original exhibits.
After final judgment and one year after the time for motion for new trial
and appeal has passed, or upon the filing of a stipulation waiving and
abandoning the right to appeal and to move for a new trial, the clerk is
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authorized, without further court order, to return all exhibits to the parties
or their counsel.
(2) Custody of the Parties. Unless the court orders otherwise, the party
offering exhibits of the kind described in subsection 79.1.a.2 of this rule
will retain custody of them and be responsible for preserving them in their
condition as of the time admitted.
(3) Custody of the United States Marshal. Where the United States Marshal
does take custody of exhibits under subsection 79.1.a.3 of this rule, such
exhibits will be returned to the offering party following the trial or hearing
for preservation in their condition as of the time admitted.
(4) Retention of and Access to Exhibits by the Parties. Upon reasonable
request, parties are to make available any and all exhibits in their custody
for use by this court or by any appellate court for a period of two years
after the conclusion of the case and any direct appeal.
(c) Alternative Procedures for Custody and Disposition of Exhibits.
In its discretion, on a case-by-case basis, the court may provide the Clerk with
alternative procedures for custody and instruction for disposition of specific
exhibits.
LR Civ P 79.2. Removal of Papers from Custody of Clerk
Papers on file in the office of the clerk shall be produced pursuant to subpoena from a
court of competent jurisdiction directing their production.
Papers may be removed from the files of the clerk only upon order except that the clerk
may permit temporary removal of papers by a district judge, a bankruptcy judge, a
magistrate judge, or a master in matters relating to their official duties.
The person receiving the papers shall provide to the clerk a signed receipt identifying the
papers removed.
LR Civ P 83.1. Admission of Attorneys
(a) Admission as Member of Bar or Court.
Any person who is admitted to practice before the Supreme Court of Appeals of
West Virginia and who is in good standing as a member of its bar, is eligible for
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admission as a member of the bar of this court. An eligible attorney may be
admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
admitted. If the motion for admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorneys= register, and pay the
clerk the admission fee.
Any person who has been subject to disciplinary suspension or disbarment by the
West Virginia Supreme Court of Appeals but has been readmitted to practice by
the Supreme Court and is in good standing as a member of its bar, is eligible for
re-admission as a member of the bar of this court. The attorney may be
re-admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
re-admitted. If the motion for re-admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorney=s register, and pay the
clerk the admission fee.
(b) Sponsorship of Visiting Attorneys by Members of Court.
The Sponsoring Attorney must be a member of the bar of this court, have an
office for the practice of law in West Virginia, and practice law primarily in West
Virginia.
(c) Appearance by Assistant United States Attorneys and Assistant Federal Public
Defenders.
Any attorney employed by the United States Attorney or the Federal Public
Defender for this judicial district must qualify as a member of the bar of this court
within one year of his or her employment. Until so qualified, the attorney may
appear and practice under the sponsorship of the appointing officer.
(d) Appearance by Federal Government Attorneys.
Federal government attorneys who are not members of the bar of this court need
not complete the Statement of Visiting Attorney. In cases where the United States
Attorney is associated with other government attorneys in proceedings involving
the Federal government, the United States Attorney (except in student loan
collection cases), in addition to other Federal government attorneys, shall sign all
pleadings, notices, and other papers filed and served by the United States. All
pleadings, notices, and other papers involving the Federal government may be
served on the United States Attorney in accordance with the service requirements
of the Federal Rules of Civil Procedure and the Federal Rules of Criminal
Procedure.
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LR Civ P 83.2. Legal Assistance by Law Students
(a) Written Consent.
With the written consent of an indigent and his or her attorney of record, an
eligible law student may appear on behalf of that indigent. With the written
consent of the United States Attorney or his or her representative, an eligible law
student may also appear on behalf of the United States. With the written consent
of the Federal Public Defender, an eligible law student may appear on behalf of
the Federal Public Defender. With the written consent of the Attorney General of
the State of West Virginia or his or her representative, an eligible law student may
also appear on behalf of the State of West Virginia. In each case in which an
eligible law student appears, the consent shall be filed with the clerk.
(b) Responsibilities of Attorneys of Record.
An eligible law student may assist in the preparation of pleadings, briefs, and
other documents to be filed in this court, but such pleadings, briefs, or documents
must be signed by the attorney of record. An eligible law student may also
participate in hearings, trials, and other proceedings with leave of court, but only
in the presence of the attorney of record. The attorney of record shall assume
personal professional responsibility for the law student=s work. The attorney of
record shall be familiar with the case and be prepared to supplement or correct
any written or oral statement made by the law student.
(c) Eligibility Requirements.
To be eligible to appear pursuant to this rule, the law student must:
(1) be enrolled in a law school approved by the American Bar Association;
(2) have successfully completed legal studies for at least 4 semesters, or the
equivalent if the school is on some basis other than a semester basis;
(3) be certified by the dean of his or her law school as being of good character
and competent legal ability. The dean=s certification shall be filed with the
clerk. This certification may be withdrawn by the dean at any time without
notice or hearing and without any showing of cause by notifying the clerk
in writing, or it may be terminated by the court at any time without notice
of hearing and without any showing of cause. Unless withdrawn or
terminated, the certification shall remain in effect for 18 months after it
has been filed with the clerk or until the law student has been admitted as
a permanent member of the bar of this court, whichever is earlier;
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(4) certify in writing to the clerk that he or she has read the Code of
Professional Conduct of the American Bar Association;
(5) be introduced to the court by a permanent member of the bar of this court;
and
(6) neither ask for nor receive any compensation or remuneration of any kind
for services from the party assisted, but this shall not prevent an attorney,
legal services program, law school, public defender agency, the State of
West Virginia, or the United States from paying compensation to the law
student, nor from making appropriate charges for such services.
LR Civ P 83.3. Representation of Parties
Every party to proceedings in this court, except parties appearing pro se, shall be
represented by a member of the bar of this court and may be represented by a Visiting
Attorney and Sponsoring Attorney as provided in LR Civ P 83.1(a), 83.1(b), and 83.6.
A corporation or unincorporated association cannot appear pro se.
LR Civ P 83.4. Termination of Representation
No attorney who has entered an appearance in any civil action shall withdraw the
appearance or have it stricken from the record, except by order.
LR Civ P 83.5. Pro se Appearances
A party who represents himself or herself shall file with the clerk his or her complete
name and address where pleadings, notices, orders, and other papers may be served on
him or her, and his/her telephone number. A pro se party must advise the clerk promptly
of any changes in name, address, and telephone number.
LR Civ P 83.6. Admission of Visiting Attorneys
(a) Procedure for Admission.
Any person who has not been admitted to practice before the Supreme Court of
Appeals of West Virginia, but who is a member in good standing of the bar of the
Supreme Court of the United States, the bar of the highest court of any other state
in the United States, or the bar of the District of Columbia, shall be permitted to
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appear as a Visiting Attorney in a particular case in association with a Sponsoring
Attorney as herein provided. The Sponsoring Attorney must be a member of the
bar of this court, have an office for the practice of law in West Virginia, and
practice law primarily in West Virginia. The Visiting Attorney shall file with
the clerk, at or before his or her initial appearance (including signing a pleading),
the Statement of Visiting Attorney adopted by order of this court, which is
available from the clerk and on the court=s web site, and shall pay the Visiting
Attorney fee. The Statement shall designate a Sponsoring Attorney, upon whom
pleadings, notices, and other papers may be served. The Sponsoring Attorney
shall consent to the designation and shall thereafter sign all papers that require the
signature of an attorney. Any paper filed by a Visiting Attorney not in compliance
with this rule may be stricken from the record after 14 days written notice
transmitted to the Visiting Attorney at his or her address as known to the clerk.
Upon compliance with this rule and introduction of the Visiting Attorney to the
court by the Sponsoring Attorney, the Sponsoring Attorney, with the consent of
the court, may be excused from further attendance during the proceedings and the
Visiting Attorney may continue to appear in that particular case.
(b) Motion Not Required.
Filing a properly completed Statement of Visiting Attorney and paying the
Visiting Attorney fee constitute all steps necessary to qualifying as a Visiting
Attorney for a particular case and no motion to appear as a Visiting Attorney is
required.
(c) Payment of Visiting Attorney Fee.
(1) Fee Payable to Clerk. The court will charge a Visiting Attorney fee,
payable to the Clerk, United States District Court, in an amount to be set
by order. Pursuant to Judicial Conference policy, the fees will be used
only for Apurposes which inure to the benefit of the members of the bench
and the bar in the administration of justice.@ Other than library materials,
the fees will not be used to supplement appropriated funds and will not be
used to pay for materials or supplies available from statutory
appropriations. The fees will be placed in a fund administered by the clerk
as custodian of the fund. Disbursements will be made only at the direction
of a committee, the members of which will be appointed by the Chief
Judge, in accordance with a written plan.
(2) West Virginia State Bar Pro Hac Vice Fee. The pro hac vice fee
imposed by the Supreme Court of Appeals of West Virginia applicable to
Visiting Attorneys shall be paid to The West Virginia State Bar and is not
payable to the clerk of the district court.
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(d) Exceptions to Payment of Visiting Attorney Fee.
(1) Bankruptcy Cases. The Visiting Attorney fee will apply in every
bankruptcy case in which the reference to the Bankruptcy Court has been
withdrawn, and in every appeal of a bankruptcy case to the District Court.
Otherwise, the imposition of a Visiting Attorney fee in a bankruptcy case
will be governed by the Local Rules for Bankruptcy Court.
(2) Multidistrict Litigation Cases. Pursuant to the Rules of Procedure of the
Judicial Panel on Multidistrict Litigation, a Visiting Attorney fee will not
be charged in any case which is filed in this court pursuant to a transfer
under said Rules.
(3) Miscellaneous Cases. A Visiting Attorney who files a miscellaneous
case which does not require judicial action (e.g., one filed in order to
obtain a subpoena) is exempt from paying the Visiting Attorney fee, from
associating with a Sponsoring Attorney, and from filing the Statement of
Visiting Attorney. A Visiting Attorney who files a miscellaneous case
which does require judicial action (e.g., motion to compel testimony at a
deposition) must comply with LR Civ P 83.6(a).
(4) Federal Government Attorneys. Attorneys employed by the United
States Department of Justice or any other Federal department or agency
will not be required to pay the Visiting Attorney fee.
(5) Law Students. Law students who participate in a case in accordance with
these Rules will not be charged a Visiting Attorney fee.
(e) Waiver of Payment of Visiting Attorney Fee.
A Visiting Attorney and his/her Sponsoring Attorney may file a motion
requesting a waiver of the Visiting Attorney fee in a particular case or cases, for
good cause shown. The motion will be decided by the judge assigned to the case;
the motion should be filed within 21 days of the assignment of the case to the
judge. Examples of cases in which waiver may be appropriate are: numerous
collection actions filed by one plaintiff; numerous negligence actions filed by one
firm representing many plaintiffs against one defendant or group of defendants
arising out of a single incident or related incidents (e.g., a catastrophic fire, or
exposure to a toxic substance). If a waiver is granted, the Visiting Attorney will
pay such Visiting Attorney fee in an amount as ordered by the presiding district
judge.
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(f) Revocation of Visiting Attorney Privilege.
For good cause, the presiding district judge may revoke the privilege of an
attorney to be a Visiting Attorney in one or more specified cases.
LR Civ P 83.7. Codes of Professional Conduct
In all appearances, actions and proceedings within the jurisdiction of this court, attorneys
shall conduct themselves in accordance with the Rules of Professional Conduct and the
Standards of Professional Conduct promulgated and adopted by the Supreme Court of
Appeals of West Virginia, and the Model Rules of Professional Conduct published by the
American Bar Association. Judicial officers of this court must comply with the Code of
Conduct for United States Judges adopted by the Judicial Conference of the United
States; judiciary employees of this court must comply with the Code of Conduct for
Judicial Employees, also adopted by the Judicial Conference.
LR Civ P 83.8. Bias and Prejudice
The United States District Court for the Southern District of West Virginia aspires to
achieve absolute fairness in the determination of cases and matters before it and expects
the highest standards of professionalism, human decency, and considerate behavior
toward others from its judicial officers, lawyers, and court personnel, as well as from all
witnesses, litigants, and other persons who come before it. As to matters in issue before
the court, conduct and statements toward one another must be without bias with regard to
such factors as gender, race, ethnicity, religion, handicap, age, and sexual orientation
when such conduct or statements bear no reasonable relationship to a good faith effort to
argue or present a position on the merits. Judicial officers must ensure that appropriate
action is taken to preserve a neutral and fair forum for all persons. Nothing in this local
rule, however, is intended to infringe unnecessarily or improperly upon the otherwise
legitimate rights, including the right of freedom of speech, of any person, nor to impede
or interfere with the aggressive advocacy of causes and positions by lawyers and litigants.
LR Civ P 83.9. Opening Statements and Closing Arguments to Jury
(a) Opening Statements.
At the commencement of the trial, the party upon whom rests the burden of proof
may state, without argument, its claim and the evidence expected to support it.
The adverse party may then state, without argument, its defense and the evidence
expected to sustain it. If the trial is to the jury, the opening statements shall be
made immediately after the jury is impaneled. If the trial is to the court, the
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opening statements shall be made immediately after the case is called for trial.
Opening statements shall be subject to time limitations imposed by the assigned
judicial officer. In actions involving several parties and unusual procedures, the
judicial officer, after conferring with attorneys and unrepresented parties, shall
direct the order and time of the opening statements in a manner appearing just and
proper.
(b) Closing Arguments.
The right to open and close the arguments shall belong to the party who has the
burden of proof, without regard to whether the defendant offers evidence. Where
each of the parties has the burden of proof on one or more issues, the judicial
officer shall determine the order of arguments. In actions involving several parties
and unusual procedures, the judicial officer, after conferring with attorneys for the
parties, shall determine the order of arguments in a manner appearing just and
proper. Arguments shall be subject to time limitations imposed by the judicial
officer, giving due consideration to the length of the trial, the number of witnesses
and exhibits, the complexity of issues, and the nature of the case.
The opening argument of plaintiff before the jury shall be a fair statement of
plaintiff=s case and shall consume at least one-half of the entire time allotted to
plaintiff=s counsel for opening argument. In the event that one-half of the allotted
time is not used, one-half shall nevertheless be charged by the judicial officer to
plaintiff=s opening argument.
After plaintiff=s opening argument, counsel for defendant may elect to argue the
case or may decline. If counsel for defendant declines to present argument, the
case will be submitted without further argument by plaintiff and defendant.
LR Civ P 83.10. Photography in and Broadcasting from the Courtroom
The taking of photographs in the courtroom, or in the corridors immediately adjacent,
during judicial proceedings or during any recess, and the transmitting or sound recording
of proceedings for broadcast by radio or television, is not permitted. Upon approval of the
court and under its supervision, proceedings, other than judicial proceedings, designed
and conducted as ceremonies, such as administering oaths of office to appointed officials
of the court, presentation of portraits, naturalization proceedings, and similar ceremonial
occasions, may be photographed in or broadcast from the courtroom.
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LR Civ P 83.11. Impoundment of Photography and Broadcasting Equipment
The United States Marshal may impound any camera, recording, broadcasting and other
related equipment brought into the courtroom or the adjacent corridors in violation of LR
Civ P 83.10. The impounded equipment shall be returned to its owner or its custodian
after the proceedings have concluded.
LR Civ P 83.12. Scheduling Conflicts
All scheduling conflicts with West Virginia state courts will be resolved pursuant to the
provisions of West Virginia Trial Court 5.
LR Civ P 83.13. Referral of Cases to Bankruptcy Court
Pursuant to 28 U.S.C. ' 157(a), all cases under Title 11, and all proceedings arising under
Title 11 or arising in or related to a case under Title 11, are referred to the Bankruptcy
Court for disposition. Filings in bankruptcy actions shall be made directly with the Clerk
of the Bankruptcy Court. Requests to withdraw this reference shall be filed with the Clerk
of the Bankruptcy Court, who will transmit the motion to withdraw reference to the Clerk
of the District Court. See FR Br P 5011, Advisory Committee Note (1987).
LR Civ P 83.14. Appeal of a Bankruptcy Court Judgment, Order, or Decree to the
District Court
A notice of appeal from a judgment, order, or decree of a bankruptcy judge to the district
court shall be filed with the Clerk of the Bankruptcy Court pursuant to Part VIII of the
Federal Rules of Bankruptcy Procedure. The Clerk of the Bankruptcy Court shall
transmit to the Clerk of the District Court the notice of appeal, the record designation and
statement of issues, and the record. On receipt of the transmission, the Clerk of the
District Court shall enter the appeal on the docket, establish a briefing schedule, and
notice the parties of the date on which the appeal was docketed and of the time for filing
supporting memoranda.
LR Civ P 83.15. Courthouse Security
(a) Entry of Federal Courthouse Buildings.
All persons wishing to enter a federal building housing a United States Court
within the Southern District of West Virginia (the building) must first properly
clear the security screening post located in the main lobby at each facility. Court
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security officers staff the security screening post during normal business hours.
The purpose for the security screening post is to ensure that no weapons,
including guns, knives, explosives or other items that are deemed to be a possible
weapon, are brought into the building. Any person refusing to submit to such
inspection, including inspection of all carried items, shall be denied entrance to
the building.
(b) Persons Requiring Access.
All persons, other than those who are stationed in the building, having business in
the building (i.e. contractors, work crews, repair persons) shall enter and leave the
court facilities through the designated screening posts. Persons needing to use
other entrances must make arrangements with court security prior to bypassing the
screening posts. Workers seeking to work after hours must obtain prior approval
from the appropriate officials. The court security officers are charged with the
enforcement of these regulations.
(c) Weapons.
The United States Marshal and Deputy United States Marshals may possess and
oversee possession of firearms or other weapons in the building. Only members of
the United States Marshals Service and those specifically designated by that
service may possess firearms and other weapons in the space occupied and
controlled by this court.
(d) Identification Card.
All employees will use an identification card issued by the employee=s agency.
Employees will be required to display or show the identification card to the court
security officers to pass through the security screening post. If an employee fails
to present their issued identification card, he or she must successfully pass
through the security screening post.
(e) Wireless Communication Devices.
Only attorneys, court reporters and court interpreters conducting official business
at a federal courthouse in a federal courthouse in this District are permitted
limited use of wireless communication devices, such as cellular telephones,
pagers, personal data assistants (PDAs), BlackBerrys, and laptop computers.
Audio or video recording or the taking of any photographs with such devices
while in the courthouse is prohibited. Cellular telephones and pagers must be
programmed so they will not emit any audible noise while in a courtroom.
PDAs, BlackBerrys and laptop computers may be used to assist attorneys in their
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cases. The use of wireless communication devices for purposes of transmitting
and/or receiving data while in a courtroom is prohibited. The use of wireless
communication devices shall not be disruptive to court proceedings. Wireless
communication devices are not permitted in a grand jury room while the grand
jury is in session unless utilized by an agent or representative of the United Sates
Attorney=s Office for evidence presentation. Each judicial officer may modify this
rule as circumstances warrant.
Any other individual who brings a wireless communication device into a federal
courthouse in this District, excepting federal employees, elevator response
personnel and PBX telephone technicians, will be required by the court security
officers to deposit such device in storage facilities as provided at the front entry of
the building, to be retrieved upon leaving the courthouse.
Appropriate signage will be posted outside the courthouse and at the security
posts, published on the court=s external web site and in notices provided to jurors.
The court authorizes the United States Marshal to allow wireless communication
devices for emergency situations as deemed appropriate.
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II. LOCAL RULES OF CRIMINAL PROCEDURE
LR Cr P 5.1. Initial Appearance
(a) Pretrial Services Interview.
Pretrial services officers (or probation officers acting in the capacity of pretrial
services officers), to the extent practicable, shall attempt notification of counsel
prior to conducting pretrial services interviews. If counsel cannot attend an
interview, the information provided by the defendant shall be made available to
counsel upon request, in accordance with LR Cr P 5.1.(b).
(b) Disclosure of Pretrial Services Information.
A written pretrial services report will, if possible, be provided to counsel in the
courtroom when a defendant makes an initial appearance, and will be provided to
counsel in the courtroom when a defendant appears for a detention hearing.
Pretrial services information is confidential, pursuant to the provisions of 18
U.S.C. ' 3153(c) and regulations promulgated by the Administrative Office of the
United States Courts. Judicial officers may disclose pretrial services information,
in whole or in part, upon a showing of good cause. When a demand for disclosure
of pretrial services information regarding a defendant is made by service of a
subpoena or other judicial process upon a probation officer, the probation officer
may petition in writing seeking instructions from the court regarding a response to
the subpoena.
(c) Standard Terms and Conditions for Release on Bond.
(1) The defendant shall not violate any local, state or federal laws;
(2) The defendant shall not possess a firearm, destructive device or other
dangerous weapon (felony offense only);
(3) The defendant=s travel is restricted to the Southern District of West
Virginia unless otherwise permitted by the court;
(4) The defendant shall submit to random urine screens, as directed by the
probation department or the court, for detection of use of controlled
substances; and
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(5) The defendant shall not contact, either directly or indirectly, any victim or
potential witnesses in the case, except through counsel (for witness/victim
protection where needed).
(d) Modification of Conditions of Pretrial Release.
The pretrial services or probation officer may, in the exercise of his/her discretion,
meet with the defendant and defense counsel and modify conditions of release.
Following such meeting, if any, a Consent to Modify Conditions of Release (PS
42) shall be completed and submitted to the judicial officer for signature and
filing.
LR Cr P 7.1. Assignment of Cases
Cases filed shall be assigned by the clerk to a judge at the direction of the Chief Judge or
through the use of random electronic methods. The clerk shall not reveal the case
assignment allocation or sequence of the electronic method to anyone, unless ordered to
do so by a district judge. A record of all assignments made shall be kept by the clerk.
LR Cr P 7.2. Reassignment, Referral and Intra-District Transfer of Cases
The clerk is authorized to sign orders to effectuate the reassignment, referral or
intra-district transfer of cases when needed and as directed by a judge of this court.
LR Cr P 10.1. Arraignment and Plea
(a) Notice of Date and Time.
The attorney for the government shall timely notify the defendant of the date and
time of defendant=s arraignment and plea to an indictment. The government
attorney shall furnish a copy of the notice concurrently to defendant=s counsel if
counsel=s name and address are shown on the docket or known to the government.
When the indictment is based on substantially similar allegations that form the
basis of an earlier complaint before a magistrate judge, the government attorney
shall notify counsel who appeared for defendant before the magistrate judge of the
date and time of the arraignment. If a defendant is without counsel, the
government attorney shall promptly notify the appropriate judicial officer of that
fact, so early provision of counsel may be considered.
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(b) Notice of Motion to Dismiss.
The government attorney shall serve on the defendant=s counsel or on an
unrepresented defendant a notice of a motion to dismiss a complaint pending
before a judicial officer.
(c) No Further Notice.
No other or further notice of arraignment and plea or motion to dismiss need be
given by the clerk except on order of the court.
LR Cr P 12.1. Pretrial Motions
(a) Date for Filing Pretrial Motions in Lieu of Standard Request for Discovery.
If a defendant does not elect to use the standard request for discovery, the
magistrate judge shall, at arraignment, set a date 14 days prior to the pretrial
motions hearing date for filing defendant=s pretrial motions.
(b) Date for Filing Pretrial Motions in Addition to Standard Request for Discovery.
If defendant elects to use the standard request for discovery, defendant must file
any additional pretrial motions (i.e., non-discovery) by the date established in the
Arraignment Order and Standard Discovery Request Form available from the
clerk and on the court=s website.
(c) Time for Response to Pretrial Motions.
The government has 7 days to respond to motions filed by defendant under
paragraphs (a) and (b) of this rule.
(d) Pretrial Hearing.
The pretrial hearing will be held at least 14 days prior to trial, unless otherwise
ordered by the court sua sponte or on motion for good cause. If the parties agree a
hearing is not necessary, they must inform the district judge immediately. If the
pretrial hearing requires the taking of evidence, the parties must notify the district
judge in advance.
(e) Courtroom Technology.
If any courtroom technology is required, counsel must request any such
technology for use at trial or other proceeding and make a certification that the
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court=s technology staff has been notified. The certification regarding such
notification shall be filed with the clerk no later than 7 days before the scheduled
commencement of the trial or other proceeding.
LR Cr P 16.1. Arraignment and Standard Discovery Requests
(a) Standard Discovery Request Form.
At arraignment on an indictment, or on an information or complaint in a
misdemeanor case, counsel for the defendant and the government may make
standard requests for discovery as contained in the Arraignment Order and
Standard Discovery Request form available from the clerk and on the court=s
website. The form shall be signed by counsel for the defendant and the
government and entered by the magistrate judge.
(b) Reciprocal Discovery.
If counsel for the defendant requests discovery under FR Cr P 16(a)(1)(E), (F) or
(G), in an Arraignment Order and Discovery Request form, the defendant is
obligated to provide any reciprocal discovery that may be available to the
government under FR Cr P 16(b)(1)(A), (B) or (C).
(c) Time for Government Response.
Unless the parties agree otherwise, or the court so orders, within 14 days of the
Standard Discovery Request, the government must provide the requested material
to counsel for the defendant and file with the clerk a written response to each of
defendant's requests.
(d) Time for Reciprocal Discovery Response.
Defendant must provide all reciprocal discovery due the government within 14
days of receiving the materials and the filing and serving of responses in
paragraph (c).
(e) Defense Discovery Request Deemed Speedy Trial Motion.
Any request made by the defendant pursuant to this rule will be deemed a motion
under the provisions of the Speedy Trial Act, 18 U.S.C. ' 3161.
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(f) Duty to Supplement.
All duties of disclosure and discovery in this rule are continuing. The parties must
produce any additional discovery as soon as they receive it, and in no event later
than the time for such disclosure as required by law, rule of criminal procedure, or
order of the court, and without the necessity of further request by the opposing
party.
LR Cr P 18.1. Principal Offices
The headquarters of the United States District Court for the Southern District of West
Virginia and its Clerk is located in the Robert C. Byrd United States Courthouse, Room
2400, 300 Virginia Street East, Charleston, West Virginia. The mailing address is P.O.
Box 2546, Charleston, West Virginia 25329.
LR Cr P 18.2. Divisions
The Southern District of West Virginia is composed of 23 counties. Each of these
counties is assigned to 1 of 5 administrative divisions. Each division is given the name of
the city in the division where the court and offices of its clerk are located. The divisions,
addresses of division offices, and counties comprising each division are as follows:
Division 1: Bluefield
Elizabeth Kee Federal Building
Address: Room 2303, 601 Federal Street, Bluefield, West Virginia 24701
Counties Composing Division: Mercer, Monroe and McDowell
Division 2: Charleston
Robert C. Byrd United States Courthouse
Address: Room 2400, 300 Virginia Street East, Charleston, WV 25301
Mailing address: P.O. Box 2546, Charleston, West Virginia 25329
Counties Composing Division: Boone, Clay, Fayette, Jackson, Kanawha, Lincoln, Logan,
Mingo, Nicholas Roane, Wirt and Wood
Division 3: Huntington
Sidney L. Christie Federal Building
Address: Room 101, 845 Fifth Avenue, Huntington, West Virginia 25701
Counties Composing Division: Cabell, Mason, Putnam and Wayne
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Division: 5: Beckley
Robert C. Byrd Federal Building and Courthouse
Address: Room 119, 110 North Heber Street, Beckley, West Virginia 25801
Counties Composing Division: Greenbrier, Summers, Raleigh and Wyoming
The court will occasionally convene at Parkersburg to deal with matters falling in the
Huntington or Charleston Divisions, as needed, and at Lewisburg to deal with matters
falling within either the Beckley or Bluefield Division, as needed.
LR Cr P 23.1. Opening Statements in Criminal Trials
At the commencement of trial in a criminal action, the government and the defendant
may make non-argumentative opening statements as to their theories of the case and the
manner in which they expect to offer their evidence. If the trial is to a jury, the opening
statements shall be made immediately after the jury is empaneled, and, if the trial is to the
court, the opening statements shall be made immediately after the case is called for trial;
but, for good cause shown, the court, on request of the defendant, may defer the opening
statement for a defendant until the time for commencing presentation of that defendant's
direct evidence. Opening statements shall be subject to time limitations imposed by the
court. If the action involves more than one defendant, the court, after conferring with
the parties to the action, shall determine the order and time of the opening statements.
LR Cr P 26.1. Addressing the Court; Examination of Witnesses
Attorneys and pro se litigants must stand and speak clearly when addressing the court.
Only one attorney for each party may participate in examination and cross-examination
of a witness. With the court's permission, the attorney may approach a witness to present
or inquire about an exhibit.
LR Cr P 30.1. Jury Instructions
In all criminal cases, counsel for the defendant and for the government shall submit jury
instructions to the court prior to the commencement of a jury trial, or earlier if ordered by
the court. When it is necessary for counsel for the defendant to submit one or more jury
instructions on an ex parte basis, those instructions must be disclosed to the government
no later than the charge conference or when specified by the court. Subject to court
approval, counsel may amend or supplement jury instructions after commencement of
trial.
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LR Cr P 31.1. Contact with Jurors
After conclusion of a trial, no party, nor his or her agent or attorney, shall communicate
or attempt to communicate with any member of the jury, including alternate jurors who
were dismissed prior to deliberations, about the jury's deliberations or verdict without
first applying for (with notice to all other parties) and obtaining, for good cause, an order
allowing such communication.
LR Cr P 32.1. Presentence Interview
Probation officers shall notify counsel, prior to conducting the presentence interview of
the defendant, of the date, time and place of the interview. If counsel cannot attend an
interview, the information provided by the defendant shall be made available to counsel
upon request in accordance with LR Cr P 32.2.
LR Cr P 32.2. Disclosure of Presentence Reports, Statement of Reasons and Probation
Records
(a) Disclosure of Presentence Reports.
Disclosure of presentence reports is governed by 18 U.S.C. ' 3552(d) and FR Cr
P 32. Except as specifically provided by statute, rule, regulation, or guideline
promulgated by the Administrative Office of the United States Courts, or LR Cr P
32.3, no confidential records of the court maintained by the probation office,
including presentence reports and probation or supervised release records, shall be
producible except as set forth below or by written petition to the court,
particularizing the need for specific information. When a demand for disclosure of
presentence and probation records is made by way of subpoena or other judicial
process to a probation officer, the probation officer may petition in writing
seeking instructions from the court regarding a response to the subpoena. No
disclosure shall be made except upon order of the court.
Presentence reports prepared by the probation office, as well as objections to the
report filed by counsel, shall be filed electronically under seal via the Case
Management/Electronic Case Filing System (CM/ECF). These documents will be
made part of the case record for the purposes of appeal. The probation officer is
authorized to provide a copy of the presentence report, without the officer=s
recommendation as to the sentence, to the defendant=s appellate counsel. In
addition, the probation officer is authorized to forward a copy of the presentence
report, without the officer=s recommendation as to the sentence, to counsel in
revocation proceedings upon request without further order of the court. The copy
of the presentence report shall be used by counsel for the purpose of the
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revocation proceeding only. Further, the probation officer, upon request, is
authorized to provide a copy of the presentence report to another federal probation
officer without further order of the court.
(b) Statement of Reasons.
The Clerk is directed to SEAL the Statement of Reasons in all criminal cases
before this court and shall forward a SEALED copy to counsel of record and to
the probation office in this District. The probation office shall forward the
Statement of Reasons to the United States Sentencing Commission and the
Bureau of Prisons. The probation office is further directed to make the sealed
Statement of Reasons an attachment to, and part of, any copy of the presentence
report made available to the Bureau of Prisons, the Fourth Circuit Court of
Appeals and appellate counsel for the defendant. In addition, the probation
office is authorized to forward a copy of the Statement of Reasons to counsel in
revocation proceedings upon request and without further order of the court. The
copy of the Statement of Reasons shall be used by counsel for the purpose of the
revocation proceeding only.
(c) Disclosure of Probation Office Recommendation.
The probation officer shall not disclose to anyone other than the court the officer=s
recommendation as to the sentence.
LR Cr P 32.3. Standard Conditions of Probation and Supervised Release in all
Criminal Cases
In addition to the Standard Conditions of Supervised Release and Probation
promulgated by the Administrative Office of the United States Courts (National
Form AO 245B), the following five conditions are forthwith adopted as standard
conditions of probation and supervised release for all defendants sentenced in
criminal cases in the District.
(1) If the offender is unemployed, the probation officer may direct the
offender to register and remain active with Workforce West Virginia.
(2) Offenders shall submit to random urinalysis or any drug screening method
whenever the same is deemed appropriate by the probation officer and
shall participate in a substance abuse program as directed by the probation
officer. Offenders shall not use any method or device to evade a drug
screen.
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(3) As directed by the probation officer, the defendant will make co-payments
for drug testing and drug treatment services at rates determined by the
probation officer in accordance with a court-approved schedule based on
ability to pay and availability of third-party payments.
(4) A term of community service is imposed on every offender on supervised
release or probation. Fifty hours of community service is imposed on
every offender for each year the offender is on supervised release or
probation. The obligation for community service is waived if the offender
remains fully employed or actively seeks such employment throughout the
year.
(5) The defendant shall not possess a firearm, ammunition, destructive device,
or any other dangerous weapon.
LR Cr P 32.4. Standard and Optional Conditions of Probation and Supervised
Release in all Sex Offense Cases
The following standard and optional conditions of probation or supervised release shall
be included in the Judgment as appropriate in all cases where the offense of conviction,
or a defendant=s prior state or federal conviction, would qualify as a Asex offense@ as
defined in the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.
' 16911(5) or otherwise result in a reporting obligation by the defendant to any state or
federal sex offender registry. Within those conditions requiring an offender to obtain
approval by the probation officer for certain actions, the court retains the ultimate
authority to grant the approval requested, along with the right to review the probation
officer=s decision upon the offender=s written request.
(a) Standard Conditions.
(1) The defendant shall have no direct or indirect contact, at any time, for any
reason, with the victim(s) identified in the presentence report or the
victim's family.
(2) The defendant shall submit to an evaluation by a qualified mental health
professional, approved by the probation officer, who is experienced in
treatment of sexual offenders. The defendant shall take all medications
reasonably related to treatment of his or her condition, complete all
treatment recommendations and abide by all rules, requirements and
conditions imposed by the professional. The defendant must do so until
discharged from treatment by the professional. Prior to being required to
submit any proposed course of treatment, the defendant or the United
States may seek review by the presiding district judge of any facet of the
prescribed course of treatment. The United States and the defendant shall
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also have the right to seek review by the presiding district judge of any
continuation or discontinuation of such treatment.
(3) The defendant shall submit to risk assessments, psychological and
physiological testing, which may include, but is not limited to, a polygraph
examination or other specific tests to monitor the defendant's compliance
with probation or supervised release treatment conditions, at the direction
of the probation officer.
(4) The defendant's residence and employment shall be approved by the
probation officer. Any proposed change in residence or employment must
be provided to the probation officer at least 10 days1 prior to the change
and pre-approved before the change may take place.
(5) The defendant shall not possess any materials depicting and/or describing
"child pornography" as defined in 18 U.S.C. ' 2256, nor shall the
defendant knowingly enter, or knowingly remain in, any location, without
the prior approval of the probation officer, where such materials can be
accessed, obtained or viewed, including pictures, photographs, books,
writings, drawings, videos or video games.
(6) The defendant shall not use, purchase, possess, procure or otherwise
obtain any computer or electronic device that can be linked to any
computer networks, bulletin boards, Internet, Internet service providers or
exchange formats involving computers unless approved by the probation
officer for such purposes as defendant's lawful gainful employment by a
business entity or use by an immediate family member living in
defendant's same household or for other legitimate purposes. Such
computers, computer hardware or software possessed solely by the
defendant is subject to searches and/or seizures by the probation office.
(7) The defendant shall register with any local and/or State Sex Offender
Registration agency in any state where the defendant resides, is employed,
carries on a vocation, or is a student, pursuant to state law.
(8) The defendant shall provide the probation officer access to any requested
financial records.
1
Pursuant to WV Code ' 55-12-3
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(b) Optional Conditions.
(1) The term "minor" with respect to any condition of supervised release
refers to one who is under the age of eighteen (18) years.
(2) The defendant shall not associate or have verbal, written, telephonic or
electronic communications with any minor except: 1) in the presence of
the parent or legal guardian of said minor; 2) on the condition that the
defendant notifies the parent or legal guardian of the defendant's sex
offender conviction(s); and 3) with written approval from the probation
officer. This provision does not encompass minors working as waiters,
cashiers, ticket vendors, and similar service personnel with whom the
defendant must deal in order to obtain ordinary and usual commercial
services.
(3) The defendant shall not loiter within 100 feet of any parks, school
property, playgrounds, arcades, amusement parks, daycare centers,
swimming pools, community recreation fields, zoos, youth centers, video
arcades, carnivals, circuses or other places that are primarily used or can
reasonably be expected to be used by minors without prior written
permission of the probation officer.
(4) The defendant shall not frequent any businesses whose primary function is
to serve alcoholic beverages.
(5) The defendant shall not purchase, possess or control cameras, camcorders,
or movie cameras without prior approval of the probation officer and
defendant may only use and possess cell phones that are limited by design
to vocal telephone communication without the capability to access the
Internet or store or create images or video.
(6) The defendant shall notify employers, family, friends and others with
whom the defendant has regular contact of defendant's conviction(s) as a
sex offender and that the defendant is being supervised by a probation
officer.
(7) The defendant shall not engage in any forms of exhibitionism, voyeurism,
obscene phone calls or other lewd or lascivious behavior toward a minor,
nor engage in "grooming" behavior that is apt to attract, seduce or reduce
sexual resistance or inhibitions of a minor.
(8) The defendant shall not own, use or have access to the services of any
commercial mail receiving agency or storage unit nor shall the defendant
open or maintain a post office box or storage unit without the prior
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approval of the probation officer. The defendant shall provide the
probation officer with a list of all P.O. boxes and/or storage units the
defendant can access.
(9) The defendant shall not possess sadomasochistic or similar bindings or
handcuffs, or like forms of restraint.
(10) The defendant shall not possess minor's clothing, toys, games, or the like
without permission of the probation officer.
(11) The defendant shall not be employed in any position or participate as a
volunteer in any activity that involves contact with minors without written
permission from the probation officer. The defendant may not engage in
an activity that involves being in a position of trust or authority over any
minor.
(12) The defendant shall participate in the District's computer monitoring
program and pay any costs associated therewith and abide by all special
conditions therein, as directed by the probation officer. Participation in
this program is contingent upon all program criteria being met.
(13) The defendant shall not possess pictures of minors, unless the pictures
are of the defendant's children.
LR Cr P 32.1.1. Modification or Revocation of Probation or Supervised Release
(a) Petition for Modification or Revocation.
(1) A petition for modification or revocation of probation or supervised
release shall be set forth on the form adopted for that purpose by the
Administrative Office of the United States. The petition shall be presented
to the sentencing judge. The sentencing judge shall determine whether the
petition shall be filed.
(2) The petition shall set forth the facts allegedly constituting the violation of
probation or supervised release. The petition shall also seek either a
summons or an arrest warrant, modification of the terms of release, or no
action.
(3) A petition ordered filed shall be served upon the probationer or releasee,
the attorney for the government, and last known counsel of record except
that in all cases in which prior counsel was appointed pursuant to the
Criminal Justice Act, the Office of the Federal Public Defender shall be
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served in lieu of service upon prior counsel. Unless the court orders an
arrest warrant be issued, the petition shall be served upon the probationer
or releasee after arrest, but in no event later than the initial appearance.
(b) Disclosure of Evidence.
The probation officer shall, without further request by the probationer, or releasee,
or his/her counsel, disclose to the probationer or releasee or his/her counsel, all
evidence against the probationer or releasee, including any potential oral
statement and any potentially exculpatory material. Any information disclosed by
the probation officer to an attorney for the government shall be promptly
disclosed by the probation officer to probationer or releasee or to his/her counsel.
(c) Recommendation for Revocation of Probation or Supervised Release.
If after a hearing the defendant is found to have violated the terms of probation or
supervised release, the probation officer may make a recommendation to the
court. The reasons supporting the recommendation shall be disclosed to the
parties if such reasons are evidence against the probationer or releasee, as shall
any response by the probation officer to recommendations by counsel.
(d) Request for Modification of the Terms of Probation or Supervised Release.
No terms of probation or supervised release shall be modified upon a waiver of
counsel by the probationer or releasee unless and until the probationer or releasee
shall have consulted with counsel regarding the advisability of waiving counsel.
Any such waiver of counsel must certify that the probationer or releasee consulted
with counsel prior to executing such waiver. In the alternative, waiver of counsel
may be made by the probationer or releasee before a magistrate judge.
LR Cr P 44.1. Admission of Attorneys
(a) Admission as Member of Bar or Court.
Any person who is admitted to practice before the Supreme Court of Appeals of
West Virginia and who is in good standing as a member of its bar is eligible for
admission as a member of the bar of this court. An eligible attorney may be
admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
admitted. If the motion for admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorneys= register, and pay the
clerk the admission fee.
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Any person who has been subject to disciplinary suspension or disbarment by the
West Virginia Supreme Court of Appeals but has been readmitted to practice by
the Supreme Court and is in good standing as a member of its bar, is eligible for
re-admission as a member of the bar of this court. The attorney may be
re-admitted as a member of the bar of this court upon motion of a member
(Sponsoring Attorney) who shall sign the register of attorneys with the person
re-admitted. If the motion for re-admission is granted, the applicant shall take the
attorney=s admission oath or affirmation, sign the attorney=s register, and pay the
clerk the admission fee.
(b) Sponsorship of Visiting Attorneys by Members of Court.
The Sponsoring Attorney must be a member of the bar of this court, have an
office for the practice of law in West Virginia, and practice law primarily in West
Virginia.
(c) Appearance by Assistant United States Attorneys and Assistant Federal Public
Defenders.
Any attorney employed by the United States Attorney or the Federal Public
Defender for this judicial district must qualify as a member of the bar of this court
within one year of his or her employment. Until so qualified, the attorney may
appear and practice under the sponsorship of the appointing officer.
(d) Appearance by Federal Government Attorneys.
Federal government attorneys who are not members of the bar of this court need
not complete the Statement of Visiting Attorney. In cases where the United States
Attorney is associated with other government attorneys in proceedings involving
the Federal government, the United States Attorney (except in student loan
collection cases), in addition to other Federal government attorneys, shall sign all
pleadings, notices, and other papers filed and served by the United States. All
pleadings, notices, and other papers involving the Federal government may be
served on the United States Attorney in accordance with the service requirements
of the Federal Rules of Civil Procedure and the Federal Rules of Criminal
Procedure.
LR Cr P 44.2. Legal Assistance by Law Students
(a) Written Consent.
With the written consent of an indigent and his or her attorney of record, an
eligible law student may appear on behalf of that indigent. With the written
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consent of the United States Attorney or his or her representative, an eligible law
student may also appear on behalf of the United States. With the written consent
of the Federal Public Defender, an eligible law student may appear on behalf of
the Federal Public Defender. With the written consent of the Attorney General of
the State of West Virginia or his or her representative, an eligible law student may
also appear on behalf of the State of West Virginia. In each case in which an
eligible law student appears, the consent shall be filed with the clerk.
(b) Responsibilities of Attorneys of Record.
An eligible law student may assist in the preparation of pleadings, briefs, and
other documents to be filed in this court, but such pleadings, briefs, or documents
must be signed by the attorney of record. An eligible law student may also
participate in hearings, trials, and other proceedings with leave of court, but only
in the presence of the attorney of record. The attorney of record shall assume
personal professional responsibility for the law student's work. The attorney of
record shall be familiar with the case and be prepared to supplement or correct
any written or oral statement made by the law student.
(c) Eligibility Requirements.
To be eligible to appear pursuant to this rule, the law student must:
(1) be enrolled in a law school approved by the American Bar Association;
(2) have successfully completed legal studies for at least 4 semesters, or the
equivalent if the school is on some basis other than a semester basis;
(3) be certified by the dean of his or her law school as being of good character
and competent legal ability. The dean's certification shall be filed with the
clerk. This certification may be withdrawn by the dean at any time without
notice or hearing and without any showing of cause by notifying the clerk
in writing, or it may be terminated by the court at any time without notice
of hearing and without any showing of cause. Unless withdrawn or
terminated, the certification shall remain in effect for 18 months after it
has been filed with the clerk or until the law student has been admitted as
a permanent member of the bar of this court, whichever is earlier;
(4) certify in writing to the clerk that he or she has read the Code of
Professional Conduct of the American Bar Association;
(5) be introduced to the court by a permanent member of the bar of this court;
and
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(6) neither ask for nor receive any compensation or remuneration of any kind
for services from the party assisted, but this shall not prevent an attorney,
legal services program, law school, public defender agency, the State of
West Virginia, or the United States from paying compensation to the law
student, nor from making appropriate charges for such services.
LR Cr P 44.3. Representation of Parties
Every party to proceedings in this court, except parties appearing pro se, shall be
represented by a member of the bar of this court and may be represented by a Visiting
Attorney and Sponsoring Attorney as provided in these rules. A corporation or
unincorporated association cannot appear pro se.
LR Cr P 44.4. Termination of Representation
No attorney who has entered an appearance in any criminal action shall withdraw the
appearance or have it stricken from the record, except by order.
LR Cr P 44.5. Pro se Appearances
A party who represents himself or herself shall file with the clerk his or her complete
name and address where pleadings, notices, orders, and other papers may be served on
him or her, and shall include his/her telephone number. A pro se party must advise the
clerk promptly of any changes in name, address, and telephone number.
LR Cr P 44.6. Admission of Visiting Attorneys
(a) Procedure for Admission.
Any person who has not been admitted to practice before the Supreme Court of
Appeals of West Virginia, but who is a member in good standing of the bar of the
Supreme Court of the United States, the bar of the highest court of any other state
in the United States, or the bar of the District of Columbia, shall be permitted to
appear as a Visiting Attorney in a particular case in association with a Sponsoring
Attorney as herein provided. The Sponsoring Attorney must be a member of the
bar of this court, have an office for the practice of law in West Virginia, and
practice law primarily in West Virginia. The Visiting Attorney shall file with the
clerk, at or before his or her initial appearance (including signing a pleading), the
Statement of Visiting Attorney adopted by order of this court, which is available
from the clerk and on the court=s website, and shall pay the Visiting Attorney fee.
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The Statement shall designate a Sponsoring Attorney, upon whom pleadings,
notices, and other papers may be served. The Sponsoring Attorney shall consent
to the designation and shall thereafter sign all papers that require the signature of
an attorney. Any paper filed by a Visiting Attorney not in compliance with this
Rule may be stricken from the record after 14 days written notice transmitted to
the Visiting Attorney at his or her address as known to the clerk. Upon
compliance with this rule and introduction of the Visiting Attorney to the court by
the Sponsoring Attorney, the Sponsoring Attorney, with the consent of the court,
may be excused from further attendance during the proceedings and the Visiting
Attorney may continue to appear in that particular case.
(b) Motion Not Required.
Filing a properly completed Statement of Visiting Attorney and paying the
Visiting Attorney fee constitute all steps necessary to qualifying as a Visiting
Attorney for a particular case and no motion to appear as a Visiting Attorney is
required.
(c) Payment of Visiting Attorney Fee.
(1) Fee Payable to Clerk.
The court will charge a Visiting Attorney fee, payable to the Clerk, United
States District Court, in an amount to be set by order. Pursuant to Judicial
Conference policy, the fees will be used only for Apurposes which inure to
the benefit of the members of the bench and the bar in the administration
of justice.@ Other than library materials, the fees will not be used to
supplement appropriated funds and will not be used to pay for materials or
supplies available from statutory appropriations. The fees will be placed in
a fund administered by the clerk as custodian of the fund. Disbursements
will be made only at the direction of a committee, the members of which
will be appointed by the Chief Judge, in accordance with a written plan.
(2) West Virginia State Bar Pro Hac Vice Fee.
The pro hac vice fee imposed by the Supreme Court of Appeals of West
Virginia applicable to Visiting Attorneys shall be paid to The West
Virginia State Bar and is not payable to the clerk of the district court.
(d) Exceptions to Payment of Visiting Attorney Fee.
(1) Miscellaneous Cases.
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A Visiting Attorney who files a miscellaneous case which does not require
judicial action (e.g., one filed in order to obtain a subpoena) is exempt
from paying the Visiting Attorney fee, from associating with a Sponsoring
Attorney, and from filing the Statement of Visiting Attorney. A Visiting
Attorney who files a miscellaneous case which does require judicial action
(e.g., motion to compel testimony at a deposition) must comply with Rule
44.6.
(2) Federal Government Attorneys.
Attorneys employed by the United States Department of Justice or any
other Federal department or agency will not be required to pay the Visiting
Attorney fee.
(3) Law Students.
Law students who participate in a case in accordance with these Rules will
not be charged a Visiting Attorney fee.
(e) Waiver of Payment of Visiting Attorney Fee.
A Visiting Attorney and his/her Sponsoring Attorney may file a motion
requesting a waiver of the Visiting Attorney fee in a particular case or cases, for
good cause shown. The motion will be decided by the judge assigned to the case;
the motion should be filed within 21 days of the assignment of the case to the
judge. If a waiver is granted, the Visiting Attorney will pay such Visiting
Attorney fee in an amount as ordered by the presiding district judge.
(f) Revocation of Visiting Attorney Privilege.
For good cause, the presiding district judge may revoke the privilege of an
attorney to be a Visiting Attorney in one or more specified cases.
LR Cr P 44.7. Code of Professional Conduct
In all appearances, actions and proceedings within the jurisdiction of this court, attorneys
shall conduct themselves in accordance with the Rules of Professional Conduct and the
Standards of Professional Conduct promulgated and adopted by the Supreme Court of
Appeals of West Virginia, and the Model Rules of Professional Conduct published by the
American Bar Association. Judicial officers of this court must comply with the Code of
Conduct for United States Judges adopted by the Judicial Conference of the United
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States; judiciary employees of this court must comply with the Code of Conduct for
Judicial Employees, also adopted by the Judicial Conference.
LR Cr P 44.8. Bias and Prejudice
The United States District Court for the Southern District of West Virginia aspires to
achieve absolute fairness in the determination of cases and matters before it and expects
the highest standards of professionalism, human decency, and considerate behavior
toward others from its judicial officers, lawyers, and court personnel, as well as from all
witnesses, litigants, and other persons who come before it. As to matters in issue before
the court, conduct and statements toward one another must be without bias with regard to
such factors as gender, race, ethnicity, religion, handicap, age, and sexual orientation
when such conduct or statements bear no reasonable relationship to a good faith effort to
argue or present a position on the merits. Judicial officers must ensure that appropriate
action is taken to preserve a neutral and fair forum for all persons. Nothing in this Local
Rule, however, is intended to infringe unnecessarily or improperly upon the otherwise
legitimate rights, including the right of freedom of speech, of any person, nor to impede
or interfere with the aggressive advocacy of causes and positions by lawyers and litigants.
LR Cr P 49.1. Filing Papers
Except as otherwise permitted or required by the Federal Rules, these Local Rules, or
order, the original of all papers not electronically filed shall be filed with the court at the
clerk=s office at the point of holding court in which the particular action or proceeding is
docketed. In emergency situations, due to travel conditions, time limitations or other
factors, filings may be made at any of the clerk=s offices, in which event the papers so
filed shall be forwarded by the receiving clerk=s office to the clerk=s office at the point of
holding court in which the particular action or proceeding is docketed. When
electronically filing documents with the clerk=s office, a paper courtesy copy to the
assigned judicial officer is not required except where any motion, memorandum,
response, or reply, together with documents in support thereof, is 50 pages or more in
length.
LR Cr P 49.2. Filing by Facsimile or Electronic Means
(a) The clerk=s office will not accept any facsimile transmission for filing unless
ordered by the court.
(b) Pursuant to FR Cr P 49(d), the clerk=s office will accept pleadings or documents
filed, signed or verified by electronic means that are consistent with the technical
standards, if any, established by the Judicial Conference of the United States. A
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pleading or document filed by electronic means in compliance with this Rule
constitutes a written paper for the purpose of applying these Rules and the Federal
Rules of Criminal Procedure. All electronic filings shall be governed by the
court=s Administrative Procedures for Filing, Signing, and Verifying Pleadings
and Papers by Electronic Means for Criminal Cases, the provisions of which are
incorporated by reference, and which may be amended from time to time by the
court.
LR Cr P 49.1.1. Privacy Protection for Filings Made with the Court
(a) Documents.
In compliance with the policy of the Judicial Conference of the United States, and
the E-Government Act of 2002 and its amendments, and in order to promote
electronic access to case files while also protecting personal privacy and other
legitimate interests, parties shall refrain from including, or shall partially redact
where inclusion is necessary, the following personal data identifiers from all
pleadings filed with the court, including exhibits thereto, whether filed,
electronically or in paper, unless otherwise ordered by the court.
(1) Social Security numbers. If an individual's social security number must
be included in a pleading, only the last four digits of that number should
be used.
(2) Names of minor children. If the involvement of a minor child must be
mentioned, only the initials of that child should be used.
(3) Dates of birth. If an individual's date of birth must be included in a
pleading, only the year should be used.
(4) Financial account numbers. If financial account numbers are relevant,
only the last four digits of these numbers should be used.
In compliance with the E-Government Act of 2002, a party wishing to file a
document containing the personal data identifiers listed above may file an
unredacted document under seal or may file a reference list under seal. This
document shall be retained by the court as part of the record. The court will
require the party to file a redacted copy for the public file.
The responsibility for redacting these personal identifiers rests solely with counsel
and the parties. The Clerk will not review each pleading for compliance with this
rule.
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(b) Transcripts of Hearings.
If information listed in Section (a) of this Rule is elicited during testimony or
other court proceedings, it will become available to the public when the official
transcript is filed at the courthouse unless, and until, it is redacted. The better
practice is to avoid introducing this information into the record in the first place.
If a restricted item is mentioned in court, any party or attorney may ask to have it
stricken from the record or partially redacted to conform to the privacy policy, or
the court may do so on its own motion.
LR Cr P 53.1. Photography in and Broadcasting from Courtroom
The taking or transmitting of photographs by any means or device in the courtroom, or in
the corridors immediately adjacent, during judicial proceedings or during any recess, and
the transmitting or sound recording of proceedings by radio, television, wireless device,
land-line device, or other device is not permitted. Upon approval of the court and under
its supervision, proceedings, other than judicial proceedings, designed and conducted as
ceremonies, such as administering oaths of office to appointed officials of the court,
presentation of portraits, naturalization proceedings, and similar ceremonial occasions,
may be photographed in or broadcast from the courtroom.
LR Cr P 53.2. Impoundment of Photography and Broadcasting Equipment
The United States Marshal may impound any camera, recording, broadcasting and other
related equipment brought into the courtroom or the adjacent corridors in violation of LR
Cr P 53.1. The impounded equipment shall be returned to its owner or custodian after
the proceedings have concluded.
LR Cr P 55.1. Custody and Disposition of Exhibits
(a) During Trial or Hearing.
(1) Custody of the Clerk. Unless the court otherwise orders, all marked and
identified exhibits of a documentary nature that are admitted into evidence
during trial or hearing, and that are suitable for filing and transmission to
the court of appeals as a part of the record on appeal, must be placed in the
custody of the clerk of court.
(2) Custody of the Parties. Unless the court otherwise orders, all marked and
identified exhibits, models and materials of unusual bulk or weight
admitted into evidence during trial that cannot be conveniently stored in
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the clerk=s facilities will be retained in the custody of the party offering
them. The party will execute a receipt for the exhibits and will grant the
reasonable request of any party to examine or reproduce the exhibit for use
in the proceeding. With approval of the court, photographs may be
substituted for said exhibits once they have been introduced into evidence.
(3) Custody of the United States Marshal. Unless the court otherwise orders,
all marked and identified exhibits admitted into evidence that are sensitive
in nature will be retained in the custody of the United States Marshal, who
shall execute a receipt therefor. Such exhibits will include, but not be
limited to, the following types of sensitive exhibits or evidence: controlled
substances, firearms, ammunition, explosive devices, pornographic
materials, jewelry, poisonous or dangerous chemicals, intoxicating liquors,
money or articles of high monetary value, and counterfeit money. With
approval of the court, photographs may be substituted for said exhibits
once they have been introduced into evidence.
(b) After Trial or Hearing.
(1) Custody of the Clerk. Where the clerk of court does take custody of
exhibits that are documentary in nature under subsection 55.1.a.1 of this
rule, such exhibits may not be taken from the custody of the clerk until
final disposition of the matter, except upon order of the court and
execution of a receipt that identifies the exhibits taken, which receipt will
be filed in the case. Copies approved by counsel and unrepresented
parties must be filed in place of the original exhibits.
After final judgment and one year after the time for motion for new trial
and appeal has passed, or upon the filing of a stipulation waiving and
abandoning the right to appeal and to move for a new trial, the clerk is
authorized, without further court order, to return all exhibits to the parties
or their counsel.
(2) Custody of the Parties. Unless the court orders otherwise, the party
offering exhibits of the kind described in subsection 55.1.a.2 of this rule
will retain custody of them and be responsible for preserving them in their
condition as of the time admitted.
(3) Custody of the United States Marshal. Where the United States Marshal
does take custody of exhibits under subsection 55.1.a.3 of this rule, such
exhibits will be returned to the offering party following the trial or hearing
for preservation in their condition as of the time admitted.
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(4) Retention of and Access to Exhibits by the Parties. Upon reasonable
request, parties are to make available any and all exhibits in their custody
for use by this court or by any appellate court for a period of two years
after the conclusion of the case and any direct appeal For the purpose of
this rule, the Aconclusion of the case and any direct appeal@ refers to the
time when a conviction becomes final for the purposes of 28 U.S.C.
' 2255.
(c) Alternative Procedures for Custody and Disposition of Exhibits.
In its discretion, on a case-by-case basis, the court may provide the Clerk with
alternative procedures for custody and instruction for disposition of specific
exhibits.
LR Cr P 55.2. Removal of Papers from Custody of Clerk
Papers on file in the office of the clerk shall be produced pursuant to subpoena from a
court of competent jurisdiction directing their production.
Papers may be removed from the files of the clerk only upon order except that the clerk
may permit temporary removal of papers by a district court judge, bankruptcy judge, a
magistrate judge, or a master in matters relating to their official duties.
The person receiving the papers shall provide to the clerk a signed receipt identifying the
papers removed.
LR Cr P 56.1. Sessions
The court is considered open and in continuous session in all divisions of the district on
all business days throughout the year in accordance with the provisions of 28 U.S.C.
' 139, FR Cr P 56, and other controlling statutes and rules.
LR Cr P 57.1. Courthouse Security
(a) Entry of Federal Courthouse Buildings.
All persons wishing to enter a federal building housing a United States Court
within the Southern District of West Virginia (the building) must first properly
clear the security screening post located in the main lobby at each facility. Court
security officers staff the security screening post during normal business hours.
The purpose for the security screening post is to ensure that no weapons,
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including guns, knives, explosives or other items that are deemed to be a possible
weapon, are brought into the building. Any person refusing to submit to such
inspection, including inspection of all carried items, shall be denied entrance to
the building.
(b) Persons Requiring Access.
All persons, other than those who are stationed in the building, having business in
the building (i.e. contractors, work crews, repair persons) shall enter and leave the
court facilities through the designated screening posts. Persons needing to use
other entrances must make arrangements with court security prior to bypassing
the screening posts. Workers seeking to work after hours must obtain prior
approval from the appropriate officials. The court security officers are charged
with the enforcement of these regulations.
(c) Weapons.
The United States Marshal and Deputy United States Marshals may possess and
oversee possession of firearms or other weapons in the building. Only members of
the United States Marshals Service and those specifically designated by that
service may possess firearms and other weapons in the space occupied and
controlled by this court.
(d) Identification Card.
All employees will use an identification card issued by the employee=s agency.
Employees will be required to display or show the identification card to the court
security officers to pass through the security screening post. If an employee fails
to present their issued identification card, he or she must successfully pass
through the security screening post.
(e) Wireless Communication Devices.
Only attorneys, court reporters and court interpreters conducting official business
at a federal courthouse in a federal courthouse in this District are permitted
limited use of wireless communication devices, such as cellular telephones,
pagers, personal data assistants (PDAs), BlackBerrys, and laptop computers.
Audio or video recording or the taking of any photographs with such devices
while in the courthouse is prohibited. Cellular telephones and pagers must be
programmed so they will not emit any audible noise while in a courtroom.
PDAs, BlackBerrys and laptop computers may be used to assist attorneys in their
cases. The use of wireless communication devices for purposes of transmitting
and/or receiving data while in a courtroom is prohibited. The use of wireless
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communication devices shall not be disruptive to court proceedings. Wireless
communication devices are not permitted in a grand jury room while the grand
jury is in session unless utilized by an agent or representative of the United Sates
Attorney=s Office for evidence presentation. Each judicial officer may modify this
rule as circumstances warrant.
Any other individual who brings a wireless communication device into a federal
courthouse in this District, excepting federal employees, elevator response
personnel and PBX telephone technicians, will be required by the court security
officers to deposit such device in storage facilities as provided at the front entry of
the building, to be retrieved upon leaving the courthouse.
Appropriate signage will be posted outside the courthouse and at the security
posts, published on the court=s external web site and in notices provided to jurors.
The court authorizes the United States Marshal to allow wireless communication
devices for emergency situations as deemed appropriate.
LR Cr P 58.1. Authority of Magistrate Judges in Misdemeanor Cases
Magistrate judges are specially designated to try persons accused of, and sentence
persons convicted of, misdemeanors committed within the Southern District of West
Virginia, as provided in 18 U.S.C. ' 3401.
LR Cr P 58.2. Assignment of Misdemeanors and Petty Offenses
Upon the filing of an information, complaint, or violation notice, or the return of an
indictment, all misdemeanor and petty offense cases shall be assigned to a magistrate
judge, who shall proceed in accordance with the provisions of 18 U.S.C. ' 3401 and FR
Cr P 58.
LR Cr P 58.3. Petty Offenses
(a) Schedule of Petty Offenses.
The Appendix to the Local Criminal Rules contains a Schedule of Petty Offenses.
The Schedule, which may be modified by the Chief Judge, lists petty offenses, as
defined in 18 U.S.C. ' 19, that occur within the territorial jurisdiction of the
United States, whether originating under federal statute or regulation or under
applicable state statute by virtue of the Assimilated Crimes Act, 18 U.S.C. ' 13.
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(b) Forfeiture of Collateral in Lieu of Appearance.
A defendant charged with a petty offense listed in the Schedule may post the
collateral for that offense, in lieu of appearing before a magistrate judge to answer
the charge, unless the offense is noted as Amandatory appearance@ or the arresting
or citing officer deems the offense to be Aaggravated.@ Posting the collateral
signifies that the defendant does not contest the charge or request a hearing before
the designated magistrate judge. The posted collateral shall be administratively
forfeited.
(c) Failure to Post Collateral.
If a defendant does not post the collateral and fails to appear before the designated
magistrate judge for trial on the cited petty offense(s), the collateral amount listed
for the offense on the Schedule shall be forfeited to the United States. Forfeiture
of the collateral shall be tantamount to a finding of guilty. Failure by a defendant
to appear to answer an offense for which appearance is mandatory, or an offense
that is aggravated, may result in an arrest warrant being issued for the defendant.
(d) Certification of Convictions of Traffic Violations.
Either the clerk or the designated magistrate judge shall certify to the proper
authority the record of any conviction of a traffic violation, as required by the
applicable state statutes.
(e) Arrest.
Nothing contained in this Local Rule shall prohibit a law enforcement officer
from arresting an offender for committing any offense, including petty offenses
for which collateral may be posted and forfeited, and upon arrest, taking the
person charged without unnecessary delay before the nearest magistrate judge.
LR Cr P 59.1. General Authority of Magistrate Judges
A magistrate judge is a judicial officer of the district court. A magistrate judge of this
district is designated to perform, and may be assigned, any duty allowed by law to be
performed by a magistrate judge. Performance of a duty by a magistrate judge will be
governed by the applicable provisions of federal statutes and rules, the general procedural
rules of this court, and the requirements specified in any order or reference from a district
judge. In performing a duty, a magistrate judge may determine preliminary matters;
require parties, attorneys, and witnesses to appear; require briefs, proofs, and argument;
and conduct any hearing, conference, or other proceeding the magistrate judge deems
appropriate.
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LR Cr P 59.2. Statutory Duties
Magistrate judges are authorized or specially designated to perform the duties prescribed
by 28 U.S.C. ' 636, and such other duties as may be assigned by the court or a district
judge which are not inconsistent with the Constitution and laws of the United States.
LR Cr P 59.3. Duties Under the Federal Rules of Criminal Procedure
Magistrate judges are authorized or specially designated to perform all duties attributed to
magistrate judges by the Federal Rules of Criminal Procedure.
LR Cr P 59.4. Miscellaneous Duties
Magistrate judges are also authorized to:
(a) exercise general supervision of criminal calendars, conduct calendar and status
calls, conduct hearings, and determine motions to expedite or postpone the trial of
cases for the district judges;
(b) conduct pretrial conferences, scheduling conferences, and related pretrial
proceedings;
(c) conduct arraignments in criminal cases not triable by a magistrate judge and take
not guilty pleas in such cases;
(d) with the consent of the parties, conduct arraignments in criminal cases not triable
by a magistrate judge, receive a defendant=s guilty plea, and submit proposed
findings of fact and recommendations as to whether the presiding district judge
should accept the guilty plea, and find the defendant guilty;
(e) impanel grand juries, conduct hearings as to prospective jurors who fail to appear
for grand jury duty, determine the qualification of specific grand jurors to
participate in the investigation of particular matters, determine motions to quash
grand jury subpoenas, and receive grand jury returns;
(f) with the consent of the parties, conduct voir dire and preside over the selection of
petit juries;
(g) accept waivers of indictment;
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(h) conduct necessary proceedings leading to the potential revocation of probation or
supervised release;
(i) 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 for court proceedings;
(j) order the exoneration or forfeiture of bonds;
(k) conduct proceedings for initial commitment of narcotic addicts under Title III of
the Narcotic Addict Rehabilitation Act, 42 U.S.C. '' 3401 et seq.;
(l) order the examination of a defendant to determine his or her mental competence
to understand the nature and consequences of the proceeding against the
defendant or to assist properly in his or her defense, and conduct hearings on a
defendant=s mental competence, and to determine if a defendant is presently
suffering from a mental disease or defect which would give rise to the defense of
insanity, or which is inconsistent with the mental state required for the offense
charged, all as provided in 18 U.S.C. ' 4241 et seq.;
(m) supervise proceedings conducted pursuant to letters rogatory as provided in
28 U.S.C. ' 1782(a);
(n) issue orders of withdrawal of funds from the court registry pursuant to 28 U.S.C.
' 2042;
(o) conduct extradition proceedings in accordance with 18 U.S.C. ' 3184;
(p) issue orders or warrants authorizing acts necessary in the performance of the
duties of administrative and regulatory agencies and departments of the United
States; and
(q) serve with designated committees or other judicial officers, participate in
promulgation of local rules and procedures, administration of the forfeiture of
collateral system, and other functions of court governance as approved by the
Chief Judge.
LR Cr P 59.5. Assignment of Matters to Magistrate Judges by Division
To the extent not provided for in these Local Rules and the Federal Rules of Criminal
Procedure, criminal cases shall be assigned to the magistrate judge for the division in
which the alleged offense(s) occurred. In the case of offense(s) which allegedly occurred
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in more than 1 division, the case shall be assigned to the magistrate judge for the division
in which the majority of the allegedly criminal conduct occurred.
LR Cr P 59.6. Other Duties Assigned and Matters Referred
Individual district judges may, in their discretion, assign or request magistrate judges to
perform such other duties as are not inconsistent with the Constitution and laws of the
United States, including but not limited to conducting hearings, including evidentiary
hearings, and submitting proposed findings of fact and recommendations for the
disposition of motions to dismiss or quash an indictment or information, and to suppress
evidence.
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