Changes to Local Uniform Civil Rules (effective December 1, 2014)

Article by Terryl Rushing Featured Author

Posted September 2014

In contrast to some prior years, the Local Uniform Civil Rules Committee for the Northern and Southern Districts of Mississippi have proposed relatively few changes in those Rules this year. The changes have been posted on the courts’ websites and approved by the District Judges of both Districts, and they will be transmitted to the Fifth Circuit’s Judicial Council for review and ultimate approval. There are currently no proposed changes to the Local Uniform Criminal Rules.

A minor change has been made to Rule 7, “Motions and Other Papers,” to provide, in section (b)(2) on “Motion Practice,” that declarations under 28 U.S.C. § 1746 must be filed as an exhibit to the related motion. Additionally, a provision has been added to the Rule to require that proposed amended pleadings be attached as an exhibit to the related motion to amend. This provision is necessary to ensure that opposing parties have sufficient information on which to base their response to the motion. While most attorneys attach the amended pleading as a matter of course, the amendment is designed to provide notice that the exhibit is required, thereby precluding the necessity of ordering that the motion be re-filed or supplemented.

Another change to Rule 7 has been made to establish the format in which memorandum briefs must be submitted to the court. This revision responds to numerous requests from the Bar that the courts establish consistent requirements for the content of memorandum briefs, in light of the page limitation. The changes are based on the Federal Appellate and Fifth Circuit Rules, modified for local practice, and provide, in section (5)(A), the following:

1. Paper Size, Line Spacing, and Margins: All memorandum briefs must be on 8½ by 11 inch paper. The text must be double-spaced, but quotations may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
2. Typeface: Either a proportionally spaced or a monospaced face may be used. A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. Text must be 12-point or larger, except that footnotes may be 11-point or larger.
3. Type Styles: All memorandum briefs must be set in a plain, roman style, although italics, highlighting or boldface may be used for emphasis. Case names must be italicized or underlined.

In conjunction with the revision to Rule 7, Rule 15 will also be amended to provide that a proposed amended pleading must be included as an exhibit to a motion for leave to file such pleading.

At the request of several members of the Bar, Rule 26(a)(2) has been changed to require that disclosure of expert witness information be made “by serving the disclosure on all counsel of record and concomitantly filing a Notice of Service of Expert Disclosure with the court.”

Rule 45 has been revised to clarify which parties are entitled to request that a subpoena be issued without prepaying attendance and mileage fees for the witness. Even where a party has been granted leave to proceed in forma pauperis, no public funds are available by law to satisfy those costs except in habeas corpus cases brought by prisoners in state custody (28 U.S.C. § 2254) or in cases arising under 28 U.S.C. § 2255 (attacks on sentences brought by prisoners in federal custody). See 28 U.S.C. § 1825(b). Prisoners attacking the conditions of their confinement under 42 U.S.C. § 1983 are not entitled to request a subpoena without prepaying witness fees, even if they are granted in forma pauperis status.

Rule 72 previously provided that objections to a magistrate’s ruling should be filed and served, “and will be promptly transmitted to the assigned district judge and to the magistrate judge.” This requirement had caused confusion, particularly with pro se litigants, who believed that their objections could be sent directly to the judge, rather than being filed. The failure to file the objections prevented them from being recorded in the courts’ electronic filing systems, and the paper copies, on occasion, did not come to the judge’s attention for some time, resulting in delay in obtaining a ruling. The provision was also unnecessary, since anything that is filed is immediately available to the district and magistrate judge via the CM/ECF system. For that reason, the language quoted above has been deleted.

Previously, Rule 83.1 provided that an attorney who was a member of the Mississippi Bar and was seeking admission to the district court produce a copy of his certification of admission to practice in Mississippi from the Mississippi Supreme Court. There was no requirement as to how recent the certificate had to be. The amendment requires that the certificate be no more than sixty days old. The Mississippi Bar is actually the licensing authority for the State, and it was added as an alternate source of a certificate of admission. Since the courts added the sixty-day requirement, it was suggested by committee members that attorneys be given some flexibility in choosing whichever source was more expedient.

Rule 83.4 governs the possession and use of electronic devices in the courthouses in the districts. It was originally titled, “Photographs and Broadcasting,” and lawyers complained that the title was somewhat inaccurate and made finding the policy on electronic devices hard for them and for the public to locate. The title of the Rule has been changed to “Cameras and Electronic Devices.” Additionally at the suggestion of the Administrative Office, the Southern District has posted its Cell Phone Policy on its website, under “Court Information.”

Finally, the Case Management Order Form has been amended to change the requirement, in section 6.E.3, that the plaintiff execute “a waiver of the medical privilege” to providing that the plaintiff execute “an appropriate, HIPAA-compliant medical authorization.”

Both the Local Uniform Civil Rules Committee and the Local Uniform Criminal Rules Committee continually monitor changes to the Federal Rules to determine whether those changes mandate amendments to the Local Rules. The Committees meet as often as is considered necessary by their chairpersons. In the case of the Civil Rules, the Committee is chaired by Magistrate Judge S. Allan Alexander of the Northern District and Magistrate Judge Keith Ball of the Southern District. The Criminal Rules Committee is chaired by Magistrate Judge Robert Walker of the Southern District and Magistrate Judge David Sanders of the Northern District. Comments about the Rules may be addressed to the Judges or to the Clerks of each District.