In the Winter 2012 edition of Litigation News, this column considered the proliferation of local rules, forms, and guidelines in the U.S. district courts throughout the country. The question posed was whether the unbridled expansion of such local rules advanced the intent of the Federal Rules’ drafters that the codified rules of procedure further “the just, speedy, and inexpensive determination of every action and proceeding.” While suggesting that the answer was “no,” I acknowledged that, as a practical matter, the trend toward expansion of local rules would likely continue.
This means that counsel must know not only the local rules in the lawyer’s home district, but also the local rules in every district in which he or she is prosecuting or defending an action. Nothing can be taken for granted. A couple bicoastal examples illustrate why.
The United States District Court for the Central District of California, based in Los Angeles, has a Local Rule 7-3, titled “Conference of Counsel Prior to Filing of Motions.” This sounds like the “meet and confer” requirement incident to the filing of a discovery motion under Rule 37(a) of the Federal Rules. In fact, Rule 7-3 does not apply to discovery motions, which are governed by a separate set of local rules. Rather, Rule 7-3 applies to virtually all other motions, including motions to dismiss and motions for summary judgment. The rule requires that:
[C]ounsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution. If the proposed motion is one which under the F.R. Civ. P. must be filed within a specified period of time . . . then this conference shall take place at least five (5) days prior to the last day for filing the motion; otherwise, the conference shall take place at least ten (10) days prior to the filing of the motion. If the parties are unable to reach a resolution which eliminates the necessity for a hearing, counsel for the moving party shall include in the notice of motion a statement to the following effect: “This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on (date).”
Assume that you are a D.C. lawyer whose client in New York was served two weeks ago with a complaint filed against him in the Central District of California. You read the complaint and quickly conclude that you have a winning Rule 12(b)(6) motion to dismiss. You instruct your associate to draft the motion, which you file within the 21 days allotted under Rule 12(a)(1)(A)(i) for responses to complaints. While that seems pretty straightforward, your otherwise-winning motion to dismiss is liable to be denied for failure to follow Local Rule 7-3.
Conversely, assume that the client is in California, and has just been sued in the Eastern District of New York, based in Brooklyn. Same complaint, same deadline, same motion. It may be denied for an entirely different reason. At least one judge in that court has an “Individual Rule” requiring that a party filing a motion under Rules 12, 15, or 56, or for a change of venue, first file a request for a pre-motion conference with the court in a “letter not to exceed three pages in length setting forth the basis for the anticipated motion.” The respondent may serve a response not to exceed three pages. The Court will then consider whether to hear the motion on the merits.
The imposition of these additional procedural hurdles—and the risks in ignoring them—might seem contrary to the goal of streamlining the litigation process. One could argue that the denial of a substantively winning motion to dismiss for failure to state a claim on the ground that moving counsel failed to discuss with opposing counsel the merits of the motion in advance, or failed to submit to the court a letter requesting a pre-motion conference, needlessly prolongs, rather than simplifies, the litigation process. The judges who enforce these rules, however, doubtless would argue that in their experience the opposite is true, and that the requirement for consultation ultimately saves time and expense. In either event, counsel proceed at their own peril when they overlook these variegated local rules that the district courts take very seriously.
Charles S. Fax is an associate editor for Litigation News.