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Proposed Amendments To Southern District of Florida Rules - 2009-61 (12-7-2009)
Proposed Amendments To Southern District of Florida Rules - 2009-61 (12-7-2009)
ORDERED that the Clerk of the Court is directed, for the next 30 days: (a) to publish
this Order (without the attachments) three times per week in the Daily Business Review (in
the editions published in Miami-Dade, Broward, and Palm Beach Counties, Florida); and (b)
to offer every person who files any papers in any action in this Court, and to give to anyone
who so desires, a copy of this Order with the attached proposed rule amendments.
IT IS FURTHER ORDERED that the Court will conduct an en banc public hearing
on the proposed rule amendments on the 14th day of January, 201 0, at two o'clock p.m. at the
Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami Avenue, Miami, Florida,
in Courtroom 13-3. Those who desire to appear and offer oral comments on the proposed rule
amendments at this hearing shall file written notice to that effect with the Clerk of the Court
no later than five days prior to the hearing. Those who desire to offer only written comments
on the proposed rule amendments must file their written comments with the Clerk of the Court
no later than ten days prior to the hearing.
Copies to:
Honorable Joel F. Dubina, Chief Judge, United States Court of Appeals for the
Eleventh Circuit
All Southern District Judges and Magistrate Judges
James Gerstenlauer, Circuit Executive, Eleventh Circuit
Thomas Meeks, Chair, Ad Hoc Committee on Rules & Procedures
All members of the Ad Hoc Committee on Rules and Procedures
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LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA
GENERAL RULES
A.(a) Title and Citation. These Local Rules shall be known as the Local
Rules of the United States District Court for the Southern District of
Florida. They may be cited as "S.D. Fla. L.R."
B.(b) Effective Date. These Local Rules became effective February 15,
1993, provided, however, that the 1994 amendments took effect on December
1, 1994, the 1996 amendments took effect on April 15, 1996, and each
subsequent year's amendments take effect on April 15 of that year, and
shall govern all proceedings thereafter commenced and, insofar as just
and practicable, all proceedings then pending.
C.(c) Scope of Rules. These Local Rules shall apply in all proceedings
in civil and criminal actions except where indicated otherwise.
Additional Local Rules governing procedures before Magistrate Judges and
in admiralty may be found herein.
D.(d) Relationship to Prior Rules. These Local Rules supersede all prior
Local Rules promulgated by this Court or any Judge of this Court.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1997; April 15, 1998; April 15, 1999; April 15, 2000; April 15, 2001;
April 15, 2002; April 15, 2003; April 15, 2004; April 15, 2005; April
15, 2006; April 15, 2007; April 15, 2008; April 15, 2009; April 15,
2010.
Authority
(1993) Model Rule 1.1 (All references to "Model Rules" refer to the Local
Rules Project of the Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States.)
Comment
B.(b) Sessions of this Court shall be held at the places enumerated above
as required by Title 28, United States Code, Section 89, and as ordered
by the Court.
D.(d) Monroe County actions and proceedings shall be tried at Key West,
Florida.
F.(f) Palm Beach County actions and proceedings shall be tried at West
Palm Beach, Florida.
G.(g) Highlands, Indian River, Martin, Okeechobee and St. Lucie County
actions and proceedings shall be tried at Fort Pierce, Florida.
Authority
(1993) Former Local Rules 1 and 2. Collier, Hendry and Glades Counties
were transferred to the Middle District of Florida by P.L. 100–702.
Comment
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A.(a) Separate dockets for all actions and proceedings shall be
maintained in the following categories:
1.(1) Civil.
2.(2) Criminal.
Authority
Comment
Authority
(1993) Former Local Rule 4. Model Rule 3.1; paragraph allowing for
filing certain cover sheets to be added nunc pro tunc and pro se
exemption omitted.
A.(a) All civil and criminal cases, including those within a weighted
category, shall be assigned on a blind random basis so that the District
workload is fairly and equally distributed among the active Judges
irrespective of jury division; provided that, whenever necessary in the
interest of justice and expediency, the Court may modify the assignments
made to active or senior Judges.
B.(b) The Clerk of the Court shall not have any power or discretion in
determining the Judge to whom any action or proceeding is assigned, the
Clerk of the Court's duties being ministerial only. The method of
assignment shall assure that the identity of the assigned Judge shall not
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be disclosed to the Clerk of the Court nor to any other person, until
after filing.
D.(d) The District is divided into five (5) Divisions: the Fort Pierce
Division (Highlands, Indian River, Martin, Okeechobee and St. Lucie
Counties); the West Palm Beach Division (Palm Beach County); the Fort
Lauderdale Division (Broward County); the Miami Division (Miami–Dade
County); and the Key West Division (Monroe County). Cases are assigned
by the Automated Case Assignment System to provide for blind, random
assignment of cases and to equitably distribute the District's case load.
Each Judge in the District has chambers in one (1) of three (3) Divisions
(Miami, Fort Lauderdale or West Palm Beach). A Judge with chambers in
one (1) Division may be assigned a case with venue in another Division.
Effective Dec. 1, 1994. Amended effective April 15, 2000; April 15,
2007.
Authority
Comments
(2000) Clarifies the Divisions of the Court and the manner in which cases
are assigned.
Authority
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(1993) Former Local Rule 5.1.
Comment
In the event of recusal in any matter, the assigned Judge shall enter the
fact of recusal on the record and refer the matter to the Clerk of the
Court for permanent reassignment to another Judge in accordance with the
blind random assignment system.
Authority
Comment
B.(b) Any emergency matter arising in a case pending before a Judge who
is physically absent from the District or who is unavailable due to
illness, or is on vacation, may, upon written certification as to each
matter from the Judge's office setting forth such grounds therefor, be
referred to the Clerk of the Court for reassignment under a blind random
assignment procedure. Such assignment, when effected, shall be of
temporary duration, limited only to the immediate relief sought, and the
case for all other purposes or proceedings shall remain on the docket of
the Judge to whom it was originally assigned.
D.(d) The Clerk of the Court shall not have any discretion in determining
the Judge to whom any such matter is assigned, nor shall the Clerk of the
Court disclose the name of the Judge to attorneys or other persons until
after the assignment has been made.
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Authority
Comment
Rule 3.8 Notice of Transfer of Refiled and Similar Actions and Procedures
Effective Dec. 1, 1994. Amended effective April 15, 2006; April 15,
2007.
Authority
Comments
2.(2) When filing a civil complaint for which issuance of initial process
is requested, one (1) copy of the complaint must be submitted for each
summons.
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3.(3) Be on standard size 8–1/2″ × 11″ white, opaque paper.
4.(4) Be plainly typed or written on one (1) side with 1″ margins on top,
bottom, and each side. All typewritten documents, except for quoted
material of fifty words or more and footnotes, both of which may be
single-spaced, shall have not less than one and one-half (1 1/2) spaces
between lines. Fonts for typewritten documents, including footnotes and
quotations, must be no smaller than twelve (12) point. All typewritten
documents must be paginated properly and consecutively at the bottom
center of each page. Only one (1) side of the paper may be used.
(c)(C) The style of the action, which fills no more than the left
side of the page, leaving sufficient space on the right side for the
Clerk of the Court to affix a filing stamp; and
Exception:
6.(6) Include (a)(A) a signature block with the name, street address,
telephone number, facsimile telephone number, e-mail address, and Florida
Bar identification number of all counsel for the party and (b)(B) a
certificate of service which refers to an attached Service List
containing the name, street address, telephone number, facsimile
telephone number, and e-mail address of all counsel for all parties,
including the attorney filing the pleading, motion, or other paper. See
Form following this Local Rule.
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compliance with the CM/ECF Administrative Procedures; however, pro se
parties are exempted from this requirement pursuant to Section 2C of the
CM/ECF Administrative Procedures. The requirements of paragraphs A.2–
A.5(a)(2)-(a)(5) above shall apply to documents filed via CM/ECF. See
Section 3A of the CM/ECF Administrative Procedures.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1998; April 15, 1999; April 15, 2000; April 15, 2001; paragraph E
added effective April 15, 2003; April 15, 2007; April 15, 2009.
Authority
(1993) Former Local Rule 7; Model Rule 5.1; Administrative Order 90–64
(A.6, B).
Comments
(2003) The addition of Local Rule 5.1.D is intended to assist the Court
in understanding the purpose for which materials are filed.
Authority
(1993) Former Local Rule 7; Model Rule 5.2 (does not require certificate
of service); Clerk of the Court's administrative rule on issuance of
initial process.
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Administrative Order 2001–72 IN RE: REPEAL OF S.D. FLA. L.R. 5.2.D.
IT IS FURTHER ORDERED that the repeal of Local General Rule 5.2.D shall
take effect nunc pro tunc on December 1, 2001, and shall govern all
proceedings then pending and all proceedings thereafter commenced.
IT IS FURTHER ORDERED that the Clerk of the Court is hereby directed, for
the next 60 days: (a) to publish this Order twice a week in the Daily
Business Review (in the editions published in Dade, Broward and Palm
Beach Counties, Florida); and (b) to offer every person who files any
papers in any action in this Court, and to give to anyone who so desires,
a copy of this Order.
D.(d) Closed Files. Upon order of the Chief Judge, the files in all
actions or proceedings not pending nor on appeal may be forwarded to the
Federal Records Center serving this District. Thereafter, persons
desiring use of any such files may, upon payment of the appropriate fee
and completion of a request form furnished by the Clerk of the Court,
request that such files be returned for examination in the Clerk's
Office.
Authority
Comments
B.(b) Procedure for Filings Under Seal. A party seeking to make a filing
under seal shall:
1.(1) Deliver to the Clerk's Office an original and one (1) copy of the
proposed filing, each contained in a separate plain envelope clearly
marked as "sealed document" with the case number and style of the action
noted on the outside. The Clerk's Office shall note on each envelope the
date of filing and docket entry number.
C.(c) Court Ruling. If the Court grants the motion to seal, the Clerk's
Office shall maintain the matter under seal as specified in the Court
order. If the Court denies the motion to seal, the original and copy of
the proposed filing shall be returned to the party in its original
envelope.
Effective April 15, 2000; amended effective April 15, 2001; April 15,
2005; April 15, 2007.
Comments
(2000) This Local Rule codifies existing procedure. By its terms, this
Local Rule does not apply to materials covered by specific statutes,
rules or court orders authorizing, prescribing or requiring secrecy.
However, the Clerk's Office and litigants may find it helpful to complete
a "Sealed Filing Cover Sheet" in the form set forth at the end of this
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Local Rule for materials being filed under seal after the entry of, and
pursuant to, a protective order governing the use and disclosure of
confidential information.
(2005) The form order previously prescribed by this Local Rule has been
deleted. This Local Rule is intended to conform to current case law.
See, e.g., Press–Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986); Globe
Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982); Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555 (1980); Nixon v. Warner Communications,
Inc., 435 U.S. 589 (1978); United States v. Valenti, 987 F.2d 708 (11th
Cir. 1993); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983). The
sealed document tracking form is an administrative requirement.
Comments
(2003) Federal Rule of Civil Procedure 5(e) gives the federal courts the
authority to permit electronic filing. This Local Rule only authorizes
the Clerk of the Court to accept electronic filings, leaving the
processes, procedures, standards, etc., to be established by subsequent
order of the Court. This was done in order to give the Court the
flexibility to adapt, refine, and redefine the process as it grows in
acceptance. Relevant Administrative Orders will be available on the
Court's Web site (http://www.flsd.uscourts.gov) as they are issued. Upon
payment of copying costs, copies also may be obtained at any courthouse
or intake counter in the District or by mailing a written request to the
following address: E-Filing Administrator, Office of the Clerk, U.S.
District Court, 301 North Miami Avenue, Room 321, Miami, Florida 33128.
A.(a) Filing.
(j)(J) motion for extensions of time providing the good cause supporting
it is set forth in the motion;
(k)(K) motion for refund of bond, provided the good cause supporting it
is set forth in the motion; and
1.(1) A party who desires oral argument or a hearing of any motion shall
request it in writing by separate request accompanying the motion or
opposing memorandum. The request shall set forth in detail the reasons
why a hearing is desired and would be helpful to the Court and shall
estimate the time required for argument. The Court in its discretion may
grant or deny a hearing as requested, upon consideration of both the
request and any response thereto by an opposing party.
a.(A) any motion or other matter which has been pending and fully briefed
with no hearing set thereon for a period of ninety (90)_days, and
b.(B) any motion or other matter as to which the Court has conducted a
hearing but has not entered an order or otherwise determined the motion
or matter within ninety (90)_days of the hearing,
the movant or applicant, whether party or non-party, shall file and serve
on all parties and any affected non-parties a "Notification of Ninety
Days Expiring" which shall contain the following information:
(1)(i) the title and docket entry number of the subject motion or other
application, along with the dates of service and filing;
(2)(ii) the title and docket number of any and all responses or opposing
memoranda, along with the dates of service and filing, or if no such
papers have been filed, the date on which such papers were due;
(3)(iii) the title and docket entry number of any reply memoranda, or any
other papers filed in connection with the motion or other matter, as well
as the dates of service and filing; and
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(4)(iv) the date of any hearing held on the motion or other matter.
The movant may, within fiveseven (7) days after service of an opposing
memorandum of law, serve a reply memorandum in support of the motion,
which reply memorandum shall be strictly limited to rebuttal of matters
raised in the memorandum in opposition without reargument of matters
covered in the movant's initial memorandum of law. No further or
additional memoranda of law shall be filed without prior leave of Court.
1.(1) Time. Time shall be computed under this Local Rule as follows:
(aA) If the motion or memorandum was served by mail or filed via CM/ECF,
count tenfourteen (14) days (fiveseven (7) days for a reply) beginning
from the dateday after the motion, response, or memorandum to which one
is responding was certified as having been mailed or filed via CM/ECF.
Do not include Saturdays, Sundays, or legal holidays. If the due date
falls on a Saturday, Sunday, or legal holiday, the due date is the next
business day. Beginning on the next calendar day, including Saturday,
Sunday, or a legal holiday, count three (3) days. The third day is the
due date for the opposing memorandum or reply. If the third day falls on
a Saturday, Sunday, or legal holiday, the due date is the next business
day.
(bB) If, in addition to being filed via CM/ECF, the motion or memorandum
was served by hand delivery, start counting ten or five fourteen (14)
days (seven (7) days for a reply)on the business day beginning the day
after after receipt of the motion, response, or memorandum was hand-
delivered, excluding Saturdays, Sundays and legal holidays. The tenth or
fifthfourteenth or seventh day is the due date for the opposing
memorandum or reply, respectively. If the due date falls on a Saturday,
Sunday, or legal holiday, the due date is the next business day.
2.(2) Length. Absent prior permission of the Court, no party shall file
any legal memorandum exceeding twenty (20) pages in length, with the
exception of a reply which shall not exceed ten (10) pages in length.
Title pages preceding the first page of text in a memorandum, signature
pages, certificates of good faith conferences, and certificates of
service shall not be counted as pages for purposes of this rule. The
practice of filing multiple motions for partial summary judgment shall be
prohibited, absent prior permission of the Court.
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3.(3) Supporting and Opposing Materials. To the extent a party wants the
Court to consider affidavits, declarations, or other materials in support
of or in opposition to the motion, then: (a)(A) the movant must serve
with the motion all such materials; and (b)(B) the opposing party must
serve with the opposing memorandum all such materials in opposition to
the motion. The movant may serve a reply memorandum with affidavits,
declarations, or other materials provided that all such materials are
strictly limited to rebuttal of matters raised in the opposing
memorandum.
D.(d) Orders Made Orally in Court. Unless the Court directs otherwise,
all orders orally announced in Court shall be prepared in writing by the
attorney for the prevailing party and taken to the Judge within two (2)
days thereafter.
E.(e) Emergency Motions. The Court may, upon written motion and good
cause shown, waive the time requirements of this Local Rule and grant an
immediate hearing on any matter requiring such expedited procedure. The
motion shall set forth in detail the necessity for such expedited
procedure.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1997; April 15, 2000; April 1, 2004; April 15, 2005; April 15, 2006;
April 15, 2007; April 15, 2009.
Comments
I hereby certify that counsel for the movant has conferred with all
parties or non-parties who may be affected by the relief sought in this
motion in a good faith effort to resolve the issues but has been unable
to do so or has made reasonable efforts to confer with all parties or
non-parties who may be affected by the relief sought in the motion, but
has been unable to do so.
_____________
Attorney Name
ALTERNATIVELY,
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CERTIFICATE OF GOOD FAITH CONFERENCE
I hereby certify that counsel for the movant has conferred with all
parties or non-parties who may be affected by the relief sought in this
motion in a good faith effort to resolve the issues raised in the motion
and states that the following issues have been resolved:
____________________. The following issues remain unresolved:
__________.
_____________
Attorney Name
Effective Dec. 1, 1994. Amended effective April 15, 2003; April 15,
2007.
Authority
Comments
(2003) Unifies the time within which a moving party must file a
memorandum in support of a motion pending at the time of removal or
transfer by eliminating the option of waiting until the Court denies a
motion to remand. The moving party now has ten days from the date of the
filing of the notice of removal or the entry of an order of transfer
within which to file a supporting memorandum, irrespective of any motion
to remand.
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A. Motions for Attorneys Fees and/or Costs Upon Entry of Final Judgment
or Order. Any motion for attorneys fees and/or costs: (i) must specify
the judgment and the statute, rule, or other grounds entitling the moving
party to the award; (ii) must state the amount or provide a fair estimate
of the amount sought; (iii) shall disclose the terms of any agreement
with respect to fees to be paid for the services for which the claim is
made; (iv) describe in detail the number of hours reasonably expended,
the bases for those hours, the hourly rate(s) charged, and identity of
the timekeeper(s); (v) shall describe in detail all reimbursable
expenses; (vi) shall be verified; (vii) shall be supported by an
affidavit of an expert witness; and (vii) shall be filed and served
within thirty days of entry of a Final Judgment or other appealable order
that gives rise to a right to attorneys fees and/or costs. Any such
motion shall be accompanied by a certification that counsel has fully
reviewed the time records and supporting data and that the motion is well
grounded in fact and justified. Prior to filing a motion for attorneys
fees and/or costs, counsel shall confer with opposing counsel and make a
certified statement in the motion in accordance with Local Rule 7.1.A.3.
The motion shall also state whether a hearing is requested by any party
and indicate the length of time desired for the hearing. The prospects
or pendency of supplemental review or appellate proceedings shall not
toll or otherwise extend the time for filing of a motion for fees and/or
costs with the Court.(a) Motions for Attorneys Fees and/or Costs. A
motion for an award of attorneys fees and/or costs arising from the
entry of a final judgment or order shall:
(1) not be filed until a good faith effort to resolve the motion,
as described in paragraph (b) below, has been completed;
(2) be filed within sixty (60) days of the entry of the final
judgment or order giving rise to the claim, regardless of the
prospect or pendency of supplemental review or appellate
proceedings;
(3) identify the judgment or other order which gives rise to the
motion, as well as the statute, rule, or other grounds entitling
the moving party to the award;
(6) provide:
(7) describe and document with invoices all incurred and claimed
fees and nontaxable expenses;
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(8) be verified;
Within fourteen (14) days after filing and service of the motion, the
respondent shall describe with reasonable particularity each time entry
or nontaxable expense to which it objects, both as to issues of
entitlement and as to amount, and shall provide supporting legal
authority. If a party objects to an hourly rate, its counsel must
submit an affidavit giving its firm’s hourly rates for the matter and
include any contingency, partial contingency, or other arrangements
that could change the effective hourly rate. Pursuant to Federal Rule
of Civil Procedure 54(d)(2)(C), either party may move the Court to
determine entitlement prior to submission on the issue of amount. This
Local Rule’s requirements of disclosure are not intended to require the
disclosure of privileged, immune, or protected material.
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whichthat gives rise to a right to tax costs under the circumstances
listed in Title 28, United States Code, Section 192028 U.S.C. § 1920. An
application for a bill of costs must be submitted on form (or in form
substantially similar to) AO 133 of the Administrative Office of the
United States Courts. The bill of costs should attach copies of any
documentation showing the amount of costs. The prospects or pendency of
supplemental review or appellate proceedings shall not toll or otherwise
extend the time for filing a bill of costs with the Court.
Effective Dec. 1, 1994; amended effective April 15, 1999; April 15,
2001; April 15, 2005; April 15, 2006; April 15, 2007.
Authority
Comments
(1994) The changes are designed to make certain portions of the Local
Rule (but not the time period for filing) consistent with Federal Rule of
Civil Procedure 54(d)(2)(B), as amended effective December 1, 1993, and
to correct grammatical or typographical errors which appear in the
current Local Rule. Local Rule 54(d)(2)(B) as amended leaves the
disclosure of the fee agreement to the discretion of the Court. This
Local Rule directs disclosure in every case.
(1999) This Local Rule has been amended to clarify that a motion for fees
and costs must only be filed when a judgment or appealable order has been
entered in the matter. A motion for fees and costs may be made before
such a judgment or order has been entered where appropriate, such as when
sanctions have been awarded during the course of such proceeding.
However, in no event may a motion for fees or costs be made later than
the date provided for in this Local Rule.
A.(a) Motions for Summary Judgment. Motions for summary judgment shall
be accompanied by a memorandum of law, necessary affidavits, and a
concise statement of the material facts as to which the movant contends
there exists no genuine issue to be tried.
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Effective Dec. 1, 1994; amended effective April 15, 1999; April 15,
2002; April 15, 2005; April 15, 2007; April 15, 2008.
Authority
Comments
(1999) Adds a page limit for the statement of material facts and makes
clear that only one such statement shall be submitted with a motion for
summary judgment.
(2005) Local Rule 7.5.D is amended to clarify that the Court will not
grant summary judgment unless supported by a review of evidence in the
record. See United States v. One Piece of Real Prop. Located at 5800 S.W.
74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n. 6 (11th Cir. 2004).
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Authority
(1993) Former Local Rule 11. Renumbered in accordance with Model Rules.
Effective Dec. 1, 1994. Amended effective April 15, 2003; April 15,
2007.
Authority
Comments
Authority
Comment
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Rule 11.1 Attorneys
A.(a) Roll of Attorneys. The Bar of this Court shall consist of those
persons heretofore admitted and those who may hereafter be admitted in
accordance with the Special Rules Governing the Admission and Practice of
Attorneys in this District.
B.(b) Contempt of Court. Any person who before his or her admission to
the Bar of this Court or during his or her disbarment or suspension
exercises in this District in any action or proceeding pending in this
Court any of the privileges of a member of the Bar, or who pretends to be
entitled to do so, may be found guilty of contempt of Court.
7.(7) Only one (1) attorney on each side shall examine or cross-examine a
witness, and not more than two (2) attorneys on each side shall argue the
merits of the action or proceeding unless the Court shall otherwise
permit.
E.(e) Relations With Jury. All attempts to curry favor with juries by
fawning flattery, or pretend solicitude for their personal comfort are
unprofessional. Suggestions of counsel, looking to the comfort or
convenience of jurors, and propositions to dispense with argument, should
be made to the Court out of the jury's hearing. Before, during, and
after the trial, a lawyer should avoid conversing or otherwise
communicating with a juror on any subject, whether pertaining to the case
or not. Provided, however, after the jury has been discharged, upon
application in writing and for good cause shown, the Court may allow
counsel to interview jurors to determine whether their verdict is subject
to legal challenge. In this event, the Court shall enter an order
limiting the time, place, and circumstances under which the interviews
shall be conducted. The scope of the interviews should be restricted and
caution should be used to avoid embarrassment to any juror and to avoid
influencing the juror's action in any subsequent jury services.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15,
2007.
Authority
Comments
(2002) Local Rule 11.1.D.7. deleted, as the issue addressed by this Local
Rule deals with an ethical rule, see Rule 4–3.7 of the Rules of
Professional Conduct of the Rules Regulating the Florida Bar, subject to
exceptions and distinctions not encompassed by the Local Rule.
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Rule 12.1 Civil RICO Case Statement
2.(b) List each defendant, and separately state the misconduct and basis
of liability of each defendant.
3.(c) List the wrongdoers, other than the defendants listed above, and
separately state the misconduct of each wrongdoer.
4.(d) List the victims, and separately state when and how each victim was
injured.
c.(3) if the RICO claim is based on the predicate offenses of wire fraud,
mail fraud, fraud in connection with a case under Title 11, United States
Code, or fraud as defined under Florida Statutes Chapter 817, the
“circumstances constituting fraud or mistake shall be stated with
particularity.” Federal Rule of Civil Procedure 9(b) (identify the time,
place, and contents of the misrepresentation or omissions, and the
identity of persons to whom and by whom the misrepresentations or
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omissions were made);
d.(4) state whether there has been a criminal conviction for any of the
predicate acts/incidents of criminal activity;
d.(4) state whether any defendants are associated with the enterprise,
and if so, how;
f.(6) state whether you allege (i)(A) that the defendants are individuals
or entities separate from the enterprise, or (ii)(B) that the defendants
are the enterprise itself, or (iii)(C) that the defendants are members of
the enterprise; and
7.(g) State whether you allege, and describe in detail, how the pattern
of racketeering/criminal activity and the enterprise are separate or have
merged into one (1) entity.
8.(h) Describe the relationship between the activities and the pattern of
racketeering/criminal activity. Discuss how the racketeering/criminal
activity differs from the usual and daily activities of the enterprise,
if at all.
9.(i) Describe what benefits, if any, the enterprise and each defendant
received from the pattern of racketeering/criminal activity.
b.(2) state who received the income/proceeds derived from the pattern of
racketeering/criminal activity or through the collection of an unlawful
debt and the date of that receipt;
c.(3) describe how and when such income/proceeds were invested or used in
the acquisition of the establishment or operation of the enterprise;
d.(4) describe how you were directly injured by the investment or use;
and
e.(5) state whether the same entity is both the liable “person” and the
“enterprise” under the Title 18, United States Code, Section18 U.S.C. §
1962(a) or Florida Statutes Section§ 772.103(1) claim.
d.(4) state whether the same entity is both the liable “person” and the
“enterprise” under the Title 18, United States Code, Section18 U.S.C. §
1962(b) or Florida Statutes Section§ 772.103(2) claim.
b.(2) describe what each such person did to conduct or participate in the
enterprise’s affairs;
c.(3) describe how you were directly injured by such person’s conducting
or participating in the enterprise’s affairs; and
d.(4) state whether the same entity is both the liable “person” and the
“enterprise” under the Title 18, United States Code, Section18 U.S.C. §
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1962(c)or Florida Statutes Section§ 772.103(3) claim.
16.(p) Describe the nature and extent of the relationship between the
injury and each separate RICO violation.
17.(q) For each claim under a subsection of Title 18, United States Code,
Section18 U.S.C. § 1962 or Florida Statutes Section§ 772.103, list the
damages sustained by reason of each violation, indicating the amount for
which each defendants is liable.
Effective April 15, 1998. Amended effective April 15, 2006; April 15,
2007.
Comments
(1998) Local Rule 12.1, modeled on section 41.54 of the Manual for
Complex Litigation, Third (1995), is designed to establish uniform and
efficient procedure for handling civil RICO claims asserted under federal
and Florida law.
A party who moves to amend a pleading shall attach the original of the
amendment to the motion in the manner prescribed by Section 3H(1) of the
CM/ECF Administrative Procedures. Any amendment to a pleading, whether
filed as a matter of course or upon a successful motion to amend, must,
except by leave of Court, reproduce the entire pleading as amended, and
may not incorporate any prior pleading by reference. When a motion to
amend is granted, the amended pleading shall be separately filed and
served forthwith.
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(1993) Model Local Rule 15.1.
Comments
(1993) This Local Rule has been circulated within the Clerk’s Office and
the comments were favorable. The Clerk’s Office thinks this Local Rule
would be helpful.
2.(2) Case Management Tracks. There shall be three (3) case management
tracks, as follows:
(b)(B) Standard Track—a case requiring three (3) to ten (10) days of
trial may be assigned to a standard track in which discovery shall be
completed within 180 to 269 days from the date of the Scheduling Order.
(c)(C) Complex Track—an unusually complex case requiring over ten (10)
days of trial may be assigned to the complex track in which discovery
shall be completed within 270 to 365 days from the date of the Scheduling
Order.
(c)(C) Any agreements the parties reach for asserting claims of privilege
or protection of trial preparation material after production;
(e)(E) A space for insertion of a date certain for filing all pretrial
motions;
(g)(G) Any proposed use of the Manual on Complex Litigation and any other
need for rule variations, such as on deposition length or number of
depositions;
(h)(H) A space for insertion of a date certain for the date of pretrial
conference (if one is to be held); and
In all civil cases (except those expressly exempted below) the Court
shall enter a Scheduling Order as soon as practicable but in any event
within ninety (90) days after the appearance of a defendant and within
120 days after the complaint has been served on a defendant. It is within
the discretion of each Judge to decide whether to hold a scheduling
conference with the parties prior to entering the Scheduling Order.
3.(3) Simplify the issues and stipulate to as many facts and issues as
possible.
4.(4) Examine all trial exhibits, except that impeachment exhibits need
not be revealed.
1.(1) A short concise statement of the case by each party in the action.
A—Authenticity
R—Relevancy
H—Hearsay
P—Privileged
Counsel may agree on any other abbreviations for objections, and shall
identify such codes in the exhibit listing them.
J.(j) Memoranda of Law. Counsel shall serve and file memoranda treating
any unusual questions of law, including motions in limine, no later than
five seven (7) days prior to the pretrial conference, or if no pretrial
conference is held, five seven (7) days prior to the call of the
calendar.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1997; April 15, 1998; April 15, 2001; April 15, 2004; April 15, 2007.
Authority
(1993) Former Local Rule 17. Changes have been made in recognition of
the fact that the call of the calendar is a benchmark for deadlines if no
pretrial conference is held; the need for more specificity in expert
resumes; and some modifications were needed to pretrial stipulation
rule. All counsel now share responsibility to prepare a pretrial
stipulation. Codes are provided for the customary objections to
exhibits.
Comments
(1998) Local Rule 16.1.B.6 is modified to make clear that, at the time of
the scheduling conference, counsel should discuss whether there is a need
to modify any standard procedure, not just whether the Manual for Complex
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Litigation should be used. Local Rule 16.1.B.7(f) is modified to make
clear that the Joint Proposed Scheduling Order should contain any joint
or unilateral requests to exceed deposition limitations in length and
number, as well as any other proposed variations from these Local Rules
or the Federal Rules of Civil Procedure that are not specifically
addressed in other paragraphs of this Local Rule.
(2001) Local Rules 16.1.B, D and E amended to conform with the December
2000 amendments to Federal Rule of Civil Procedure 26.
The mediation process does not allow for testimony of witnesses. The
mediator does not review or rule upon questions of fact or law, or render
any final decision in the case. Absent a settlement, the mediator will
report to the presiding Judge only as to whether the case settled (in
full or in part) or was adjourned for further mediation, whether the
mediator declared an impasse, and pursuant to Local Rule 16.2.E(e),
whether any party failed to attend the mediation.
(d)(D) have been certified and remain in good standing as a circuit court
mediator under the rules adopted by the Supreme Court of Florida.
The Chief Judge shall constitute an advisory committee from lawyers who
represent those categories of civil litigants who may utilize the
mediation program and lay persons to assist in formulating policy and
additional standards relating to the qualification of mediators and the
operation of the mediation program and to review applications of
prospective mediators and to recommend certification to the Chief Judge
as appropriate.
5.(5) Oath Required. Every certified mediator shall take the oath or
affirmation prescribed by Title 28, United States Code, Section28 U.S.C.
§ 453 upon qualifying as a mediator.
(a)(A) Direct mediation be conducted not later than sixty (60) days
before the scheduled trial date which shall be established no later than
the date of the issuance of the order of referral.
(b)(B) Direct the parties, within fifteen fourteen (14) days of the date
of the order of referral, to agree upon a mediator. The parties are
encouraged to utilize the list of certified mediators established in
connection with Local Rule 16.2.B.(b) but may by mutual agreement select
any individual as mediator. The parties shall file a "Notice of
Selection of Mediator" within that period of time. If the parties are
unable to agree upon a mediator, plaintiff's counsel, or plaintiff if
self-represented, shall file a "Request For Clerk To Appoint Mediator,"
and the Clerk will designate a mediator from the list of certified
mediators on a blind, random basis.
(c)(C) Direct that, at least ten fourteen (14) days prior to the
mediation date, each party give the mediator a confidential written
summary of the case identifying issues to be resolved.
1.(1) Mediation Report. Within five seven (7) days following the
mediation conference, the mediator, if an authorized user of the Court's
electronic filing system (CM/ECF), shall electronically file a Mediation
Report. If the mediator is not an authorized CM/ECF user, the mediator
shall file the Mediation Report in the conventional manner. The report
shall indicate whether all required parties were present and whether the
case settled (in full or in part), whether the mediation was adjourned or
whether the mediator declared an impasse.
__________<COL> <COL>
<COL>:<COL>
<COL>:<COL>
<COL>:<COL>
<COL>:<COL>
CAPTION <COL>:<COL>
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<COL>:<COL>
<COL>:<COL>
<COL>:<COL>
__________.<COL><COL>
ORDER OF REFERRAL
Trial having been set in this matter for __________, 20___, pursuant to
Federal Rule of Civil Procedure 16 and Local Rule 16.2, it is hereby
6. At least ten fourteen (14) days prior to the mediation date, each
party shall present to the mediator a confidential brief written summary
of the case identifying issues to be resolved.
7. The Court may impose sanctions against parties and/or counsel who do
not comply with the attendance or settlement authority requirements
herein who otherwise violate the terms of this Order. The mediator shall
report non-attendance and may recommend imposition of sanctions by the
Court for non-attendance.
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8. The mediator shall be compensated in accordance with the standing
order of the Court entered pursuant to Local Rule 16.2.B.6(b)(6), or on
such basis as may be agreed to in writing by the parties and the mediator
selected by the parties. The cost of mediation shall be shared equally
by the parties unless otherwise ordered by the Court. All payments shall
be remitted to the mediator within forty-five (45) days of the date of
the bill. Notice to the mediator of cancellation or settlement prior to
the scheduled mediation conference must be given at least three (3) full
business days in advance. Failure to do so will result in imposition of
a fee for two (2) hours.
10. Within five seven (7) days following the mediation conference, the
mediator shall file a Mediation Report indicating whether all required
parties were present. The report shall also indicate whether the case
settled (in full or in part), was adjourned, or whether the mediator
declared an impasse.
11. If mediation is not conducted, the case may be stricken from the
trial calendar, and other sanctions may be imposed.
__________
Copies furnished:
__________<COL> <COL>
<COL>:<COL>
<COL>:<COL>
<COL>:<COL>
<COL>:<COL>
CAPTION<COL>:<COL>
<COL>:<COL>
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<COL>:<COL>
<COL>:<COL>
__________.<COL><COL>
__________
Copies furnished:
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1997; April 15, 1999; April 15, 2004; April 15, 2005; April 15, 2007;
April 15, 2009.
Comments
[C.] This revision expands the types of cases subject to mediation based
on experience demonstrating the effectiveness of mediation in resolving
disputes.
Effective April 15, 2000. Amended effective April 15, 2006; April 15,
2007.
Authority
Comments
(2000) The adoption of this Local Rule was prompted by the Resolution of
the Florida State–Federal Judicial Council Regarding Calendar Conflicts
Between State and Federal Courts.
1.(a) The complaint shall bear next to its caption the legend "Complaint—
Class Action."
2.(b) The complaint shall contain under a separate heading, styled "Class
Action Allegations:"
(i)(A) the size (or approximate size) and definition of the alleged class
(ii)(B) the basis upon which the plaintiff (or plaintiffs) claims
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(iv)(D) in actions claimed to be maintainable as class actions under
Federal Rule of Civil Procedure 23(b)(3), allegations thought to support
the findings required by that subdivision.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
2001; April 15, 2004; April 15, 2007.
Authority
(1993) Former Local Rule 19. Renumbered per Model Rules. In accordance
with Model Rule 23.1.
Comments
(1996) Local Rule 23.1 has been amended to delete Sections B and C in
their entirety. Sections B and C of Local Rule 23.1 had been modeled
verbatim from the Manual for Complex Litigation App. Sec. 1.41. Section
B barred counsel for parties in class actions to communicate directly or
indirectly with potential or actual class members without advance
approval from the Court. Section C created exceptions for
attorney-client communications initiated by a client or a prospective
client, and communications by public officials in the regular course of
business or in the performance of their duties.
A.(a) Act of Congress. Upon the filing of any action in which the
constitutionality of an Act of Congress affecting the public interest is
challenged, and to which action the United States or an agency, officer,
or employee thereof is not a party in its or their official capacity,
counsel representing the party who challenges the Act shall forthwith
notify the Court of the existence of the constitutional question. The
notice shall contain the full title and number of the action and shall
designate the statute assailed and the grounds upon which it is assailed,
so that the Court may comply with its statutory duty to certify the fact
to the Attorney General of the United States as required by Title 28,
United States Code, Section 2403. The party challenging
constitutionality shall also so indicate on the pleading or paper which
first does so by stating, immediately following the title of the pleading
or paper, "Claim of Unconstitutionality."
B.(b) State Statute. Upon the filing of any action in which the
constitutionality of a state statute, charter, ordinance, or franchise is
challenged, counsel shall comply with the notice provisions of Florida
Statutes Section 86.091.
C.(c) No Waiver. Failure to comply with this Local Rule will not be
grounds for waiving the constitutional issue or for waiving any other
right the party may have. Any notice provided under this rule, or lack
of notice, will not serve as a substitute for, or as a waiver of, any
pleading requirements set forth in the Federal Rules of Civil Procedure
or statutes.
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b.(B) A party may depose any person who has been identified as an expert
whose opinions may be presented at trial. The deposition shall not be
conducted until after the expert summary or report required by Local Rule
16.1.K.(k) is provided.
(i) The attorney asserting the privilege shall in the objection to the
interrogatory or document demand, or subpart thereof, identify the nature
of the privilege (including work product) which is being claimed and if
the privilege is being asserted in connection with a claim or defense
governed by state law, indicate the state's privilege rule being invoked;
and
(B)(b) For oral communications: (1) the name of the person making the
communication and the names of persons present while the communication
was made and, where not apparent, the relationship of the persons present
to the person making the communication; (2) the date and the place of
communication; and (3) the general subject matter of the communication.
(b)(B) The producing party shall make available any electronically stored
information or summaries thereof that it either has or can adduce by a
relatively simple procedure, unless these materials are privileged or
otherwise immune from discovery.
(d)(D) The business records and materials shall be made available for
inspection and copying within tenfourteen (14) days after service of the
answers to interrogatories or at a date agreed upon by the parties.
1.(1) Time for Filing. All motions related to discovery, including but
not limited to motions to compel discovery and motions for protective
order, shall be filed within thirty (30) days of the occurrence of
grounds for the motion. Failure to file a discovery motion within thirty
(30) days, absent a showing of reasonable cause for a later filing, may
constitute a waiver of the relief sought.
3.(3) Motions for Protective Order. Except for motions for an order to
protect a party or other person from whom discovery is sought from having
to respond to an entire set of written discovery, from having to appear
at a deposition, or from having to comply with an entire subpoena for
production or inspection, motions for protective order under Federal Rule
of Civil Procedure 26(c) shall, for each separate interrogatory question,
request for production, request for admission, subpoena request, or
deposition question, state: (a)(A) verbatim the specific item of
discovery; (b)(B) the type of protection the party requests; and (c)(C)
the reasons supporting the protection. The party shall write this
information in immediate succession (e.g., specific request for
protection, protection sought for that request for production, reasons to
support protection; next request for production, protection sought for
that request for production, reasons to support protection; and so on)
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to enable the Court to rule separately on each individual item in the
motion.
Failure by the party taking the oral deposition to comply with this rule
obviates the need for protective order.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1998; April 15, 2001; paragraph G.3 amended effective April 15, 2003;
April 15, 2004; April 15, 2005; April 15, 2007; April 15, 2009.
Authority
(1993) Former Local Rule 10I. New portions of Section E [1994, now
Subsections G.2–8] are based on S.D.N.Y. local rule.
Comments
(1994) A., F., G.1., J. (third paragraph). The amendments are necessary
in light of the December 1, 1993 amendment to Federal Rules of Civil
Procedure 26, 32(a)(3), and 33(a).
(1996)[F.1.] Local Rule 26.1.F.1. was added to make the timing of expert
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witness depositions consistent with that prescribed by Federal Rule of
Civil Procedure 26(b)(4)(A).
(2001) Local Rules 26.1.A, B, F, G and K are amended to conform with the
December 2000 amendments to Federal Rules of Civil Procedure 5, 26 and
30. Local Rule 26.1.I is amended to make clear that the obligation to
confer in advance of moving to compel production of documents,
electronically stored information or things sought from a non-party by
subpoena includes consultation with all parties who may be affected by
the relief sought and with the non-party recipient of the subpoena.
(2003) The amendment to Local Rule 26.1.G.3 is based on N.D. Okla. Local
Rule 26.4(b) and eliminates the requirement to include in a privilege log
(1) communications between a party and its counsel after commencement of
the action, and (2) work product material created after commencement of
the action.
C.(c) The Court, if it anticipates deposition abuse, may order that any
deposition be taken at the courthouse or special master's office so that,
at the request of any party, witness, or counsel, any dispute may be
heard and decided immediately by the Court or special master.
Adopted effective April 15, 1996; amended effective April 15, 2001;
April 15, 2007.
Authority
Comments
Comment
[Repealed.]
Effective Dec. 1, 1994. Amended effective April 15, 2007. Repealed April
15, 2008.
[Repealed.]
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Effective Dec. 1, 1994. Repealed April 15, 2008.
A.(a) Counsel shall prepare all subpoenas for deposition and trial in
civil cases. At the option of counsel, counsel may present them to the
Clerk of the Court for issuance. Alternatively, counsel may issue
subpoenas pursuant to Federal Rule of Civil Procedure 45, as amended
effective December 1, 1991.
Authority
Comment
A.(a) Civil Cases. A jury for the trial of civil cases shall consist of
at least six (6) persons.
B.(b) Taxation of Costs. Whenever a civil case that has been set for
jury trial is settled or otherwise disposed of, counsel shall so inform
the office of the Judge assigned to the case at least one (1) full
business day prior to the day the jury is scheduled to be selected or the
trial is scheduled to commence, in order that the jurors may be notified
not to attend. If such notice is not given to the Clerk of the Court's
Office, then except for good cause shown, juror costs, including
attendance fees, mileage, and subsistence, may be assessed equally
against the parties and their counsel, or otherwise assessed as directed
by the Court.
Authority
Comment
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(1993) Renumbered per Model Rules.
Comment
C.(c) All funds placed by the Clerk of the Court in the Court-designated
depository bank shall earn interest at a competitive market rate
negotiated by the Clerk of the Court for similar deposits. However, the
Chief Judge may determine from time to time a minimum amount below which
funds need not be deposited in an interest-bearing account. Deposits for
attorney's fees, costs and expenses required before the issuance of any
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writs of garnishment are exempt from this requirement and will be placed
in a non-interest bearing U.S. Treasury account. At the time of
disbursement of funds from the registry, the litigant shall advise the
Court as to the proper recipient of any earned interest and prior to the
release of funds shall provide the Clerk of the Court's Financial
Administrator or other designated deputy clerk with the proper tax number
or tax status of the recipient for subsequent reporting to the Internal
Revenue Service.
E.(e) The Clerk of the Court shall assess a user's fee as promulgated by
the Judicial Conference of the United States on deposits in the
interest-bearing Court registry. Such fees shall be deducted at
disbursement and be deposited into a special fund established to
reimburse the Judiciary for maintaining registry accounts.
F.(f) Nothing in this rule shall prevent the Court from granting the
motion of interested parties for special arrangements for investment of
funds. If such investments are in the name of or assigned to the Clerk
of the Court, the account will be subject to the collateral provisions of
Treasury Circular 176 (31 C.F.R. § 202) and the requirements of Local
Rule 67.1.B.(b) as well as other applicable statutes, orders, rules and
requirements of the Court.
G.(g) In any case where an Order of Court directs the Clerk of the Court
to handle a specific investment in a different manner than Section C(c)
of this Local Rule, the interested party shall serve a copy of the Order
upon the Clerk of the Court personally or a deputy clerk specifically
designated in accordance with the wording of Federal Rule of Civil
Procedure 67, to-wit:
"The party making the deposit shall serve the Order permitting deposit on
the Clerk of this Court."
1.(1) The Clerk of the Court shall pay such deposit to the garnishee (or
garnishee's counsel, if so requested) for the payment or partial payment
of attorney's fees which the garnishee expends or agrees to expend in
obtaining representation in response to the writ. Such payment shall be
made upon the garnishee's demand, in writing, at any time after the
service of the writ, unless otherwise directed by the Court.
4.(4) If garnishment cost deposit monies remain on deposit with the Clerk
of the Court more than five (5) years after the conclusion of a case or
post-judgment proceedings, including all appeals, and if the Clerk of the
Court has made reasonable attempts to provide notice to the depositing
party or to distribute those monies without success, those unclaimed
monies shall be moved into the appropriate U.S. Treasury Unclaimed Funds
account pursuant to Title 28, United States Code, Section 2042, without
further order of Court. Any monies deposited with the U.S. Treasury
under these provisions as unclaimed are available for immediate
disbursement to any party by the Clerk of the Court upon application and
further Court order.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15,
2007.
Authority
(1993) Former Local Rule 24. Renumbered per Model Rules project.
(2002) Federal Rule of Civil Procedure 69, Florida Statute Section 77.28,
and Administrative Orders 90–104, 98–51 and 2001–69.
Comments
Authority
(1993) Former Local Rule 20. Renumbered per Model Rules. Model Rules
Project has recommended that a rule be included in the Federal Rules of
Civil Procedure.
A.(a) By Attorneys.
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(d)(D) The identity, testimony, or credibility of prospective witnesses,
except that the lawyer or law firm may announce the identity of the
victim if the announcement is not otherwise prohibited by law.
The foregoing shall not be construed to preclude the lawyer or law firm
during this period, in the proper discharge of the lawyer's or its
official or professional obligations, from announcing the fact and
circumstances of arrest (including time and place of arrest, resistance,
pursuit, and use of weapons), the identity of the investigating and
arresting officer or agency, and the length of the investigation; from
making an announcement, at the time of seizure of any physical evidence
other than a confession, admission, or statement, which is limited to a
description of the evidence seized; from disclosing the nature,
substance, or text of the charge, including a brief description of the
offense charged; from quoting or referring without comment to public
records of the Court in the case; from announcing the scheduling or
result of any stage in the judicial process; from requesting assistance
in obtaining evidence; or from announcing without further comment that
the accused denies the charges made against the accused.
4.(4) During the trial of any criminal matter, including the period of
selection of the jury, no lawyer or law firm associated with the
prosecution or defense shall give or authorize any extrajudicial
statement or interview, relating to the trial or the parties or issues in
the trial which a reasonable person would expect to be disseminated by
means of public communication, except that the lawyer or law firm may
quote from or refer without comment to public records of the Court in the
case.
7.(7) A lawyer or law firm associated with a civil action shall not
during its investigation or litigation make or participate in making an
extrajudicial statement, other than a quotation from or reference to
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public records, which a reasonable person would expect to be disseminated
by means of public communication if there is a reasonable likelihood that
such dissemination will interfere with a fair trial and which relates to:
(e)(E) Any other matter reasonably likely to interfere with a fair trial
of the action.
Authority
(1993) Former Local Rule 21. Rule 4–3.6 of the Rules Regulating The
Florida Bar.
Comment
Comments
Former Local Rule 87.2 amended and renumbered as Local Rule 87.4, and new
Local Rule 87.2 adopted effective April 15, 1996. Amended effective
April 15, 2007.
Comment
(1996) This new Local Rule codifies the General Order of Reference, and
explains the filing procedure for referred cases.
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Upon disposition of a motion for withdrawal of reference the Clerk of the
District Court shall transmit a copy of the order to the Clerk of the
Bankruptcy Court.
Adopted effective April 15, 1996. Amended effective April 15, 1999;
April 15, 2007.
Comments
(1996) This new Local Rule specifies the proper Court for filing motions
for withdrawal of reference. By stating all motions to withdraw
reference in the same case or proceeding are "similar" and, therefore,
require the parties to comply with Local Rule 3.8, the District Court can
consolidate these related motions to eliminate the possibility of
conflicting orders from different Judges addressing the same issue. The
second paragraph has been added because it is critical that the
Bankruptcy Court be promptly advised of whether the reference has been
withdrawn in whole or in part, since adversary proceedings and cases are
not stayed by the filing of a motion to withdraw the reference.
C.(c) Motions for Stay and Other Intermediate Requests for Relief.
Motions for stay pending appeal pursuant to Federal Rule of Bankruptcy
Procedure 8005, motions to review Bankruptcy Court orders entered under
Federal Rule of Bankruptcy Procedure 9006(b), and other motions
requesting intermediate relief as set forth in Federal Rule of Bankruptcy
Procedure 8007(c), shall be accepted for filing in the District Court and
shall be assigned a miscellaneous memo case number which will apply only
to the motion. No filing fee shall be charged in the District Court.
The Clerk of the District Court shall immediately notify the Clerk of the
Bankruptcy Court of the assigned case number and Judge. When the record
on appeal is transmitted it will be assigned a new case number but will
be assigned to the same Judge who considered the motion. The movant
shall provide copies of any relevant portions of the Bankruptcy Court
record necessary for the District Court to rule on the motion. It shall
be the duty of the Clerk of the District Court to immediately transmit a
copy of the order ruling on said motion to the Clerk of the Bankruptcy
Court.
Local Rule 7.1 shall apply to motions for stay and other motions seeking
intermediate appellate relief from the District Court.
D.(d) Motions for Leave to Appeal. A motion for leave to appeal shall be
filed in the Bankruptcy Court pursuant to Local Bankruptcy Rule 8003–1.
Upon transmittal of the motion and related documents to the District
Court the matter shall be assigned in the same manner as other
miscellaneous motions described in subsection C(c) above of this Local
Rule.
Upon disposition of the motion, the Clerk of the District Court shall
immediately transmit a copy of the District Court order to the Clerk of
the Bankruptcy Court. If the motion is granted the Clerk of the
Bankruptcy Court will proceed to prepare and transmit the record on
appeal. A new District Court case number will be assigned to the appeal
but it will be assigned to the same Judge who granted the motion for
leave to appeal.
E.(e) Briefs.
2.(2) Length of Briefs. Absent prior permission from the District Court,
the appellant's initial or principal briefs and the appellee's response
or principal brief shall not exceed twenty-five (25) pages in length, and
appellant's reply briefs, if any, shall not exceed fifteen (15) pages.
F.(f) Oral Argument. Any party requesting oral argument shall make the
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request within the body of the principal or reply brief, not by separate
motion. The setting of oral argument is within the discretion of the
District Court.
G.(g) Judgment. Upon receipt of the District Court's opinion, the Clerk
of the District Court shall enter judgment in accordance with Federal
Rule of Bankruptcy Procedure 8016(a) and in accordance with Federal Rule
of Bankruptcy Procedure 8016(b), shall immediately transmit to each party
and to the Clerk of the Bankruptcy Court a notice of entry together with
a copy of the District Court's opinion.
H.(h) Appeal. If an appeal remains pending three (3) months after its
entry on the District Court docket, the appealing party shall file and
serve on all parties a "Notice of 90 Days Expiring" in the manner
prescribed by Local Rule 7.1.B.3(b)(3).
Former Local Rule 87.2 amended and renumbered as new Local Rule 87.4,
effective April 15, 1996; amended effective April 15, 1999; April 15,
2007; April 15, 2009.
Authority
Former Local Rule 27; (1996) renumbered from Local Rule 87.2 (1993).
Comments
B. This Local Rule has been amended to expand the Bankruptcy Court's
authority to dismiss an appeal for the appellant's failure to pay the
filing fee required for a notice of appeal and failure to provide copies
of every item designated as required by Federal Rule of Bankruptcy
Procedure 8006. It also clarifies the means for review of orders entered
under Federal Rule of Bankruptcy Procedure 9006(b), by referencing new
subsection C below.
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This rule further provides for the subsequent assignment of the appeal to
the same District Judge. This should conserve judicial resources since,
for example, the disposition of a motion for stay pending appeal will
usually require the District Judge to become familiar with the issues on
appeal.
D. Adds reference to the local bankruptcy rule for filing motions for
leave to appeal, provides for assignment in the District Court and
clarifies that a new case number will be assigned for the appeal.
This rule further provides for the subsequent assignment of the appeal to
the same District Judge. This should conserve judicial resources since
the disposition of a motion for leave to appeal will usually require the
District Judge to become familiar with the issues on appeal.
Comment
Authority
Comment
For A.–C.(a)(1)-(3) above, an original and one (1) copy of the petition
or motion, signed under penalty of perjury by petitioner/movant or by a
person authorized to sign it for petitioner/movant, together with filing
fee, if any, shall be filed in the Clerk's Office. For D.–E.(a)(4)-(5)
above, an original and one (1) copy of a civil rights complaint, plus one
(1) copy for each defendant, signed under penalty of perjury by plaintiff
or by a person authorized to sign it for plaintiff, together with the
filing fee, if any, shall be filed in the Clerk's Office.
Authority
Comment
2.(2) Collateral may not be posted for any covered offense if the alleged
violator has previously been convicted of any such offense.
1.(1) Any person issued a violation notice for a covered offense for
which collateral can be posted may, upon request of the issuing officer,
post the required amount by placing cash, personal check or money order
in the official violation notice envelope and, after sealing same,
delivering it to authorized personnel at a designated office where a
receipt will be given. All such envelopes received will be forwarded via
mail each day, except for those containing cash which shall be personally
delivered to the Clerk of the Court.
2.(2) The posting of collateral shall signify that the offender does not
wish to appear nor request a hearing before the Judge. Collateral so
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posted shall be forfeited to the United States and the proceedings shall
be terminated.
Effective Dec. 1, 1994; amended effective April 15, 2006; April 15,
2007; April 15, 2009.
Authority
Comment
A.(a) Covered Offenses. This Local Rule shall apply to petty offenses,
as defined in Title 18, United States Code, Section 1918 U.S.C. § 19, and
to certain misdemeanors as shall be identified from time to time by the
Court in collateral schedules. Collectively, these petty offenses and
identified misdemeanors shall be referred to for purposes of this Local
Rule as "covered offenses".
2.(2) Collateral may not be posted for any covered offense if the alleged
violator has previously been convicted of any such offense.
1.(1) Any person issued a violation notice for a covered offense for
which collateral can be posted may, upon request of the issuing officer,
post the required amount by placing cash, personal check or money order
in the official violation notice envelope and, after sealing same,
delivering it to authorized personnel at a designated office where a
receipt will be given. All such envelopes received will be forwarded via
mail each day, except for those containing cash which shall be personally
delivered to the Clerk of the Court.
2.(2) The posting of collateral shall signify that the offender does not
wish to appear nor request a hearing before the Judge. Collateral so
posted shall be forfeited to the United States and the proceedings shall
be terminated.
Effective Dec. 1, 1994. Amended effective April 15, 2000; April 15,
2006; April 15, 2007.
Authority
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Comments
B.(b) Speedy Trial Reports. Counsel for the Government and counsel for
each defendant shall, within twenty-one (21) days after arraignment and
every twenty-one (21) days thereafter until trial or plea of guilty or
nolo contendere, file with the Court a status report as to each defendant
which shall include a concise statement of:
3.(3) Computation of the gross time, excludable time, net time remaining,
and the final date upon which the defendant can be tried in compliance
with the Speedy Trial Plan of this Court.
Effective Dec. 1, 1994; amended effective April 15, 1998; April 15,
1999; April 15, 2007.
Authority
(1993) Former Local Rule 25. Title 18, United States Code, Section 3161.
Comments
Authority
Comment
(1993) Renumbered per Model Rules. Title 21, United States Code, Section
849 was repealed by Pub.L. 98–473, effective October 1, 1987. The
Sentencing Reform Act requires the Sentencing Commission to specify
sentences at or near the maximum term for offenders with prior
convictions.
In cases where the defendant moves the Court to proceed in forma pauperis
on appeal, or for appointment of Criminal Justice Act appellate counsel,
the Court will consider, in passing upon such applications, factors such
as (1)(a) the defendant's qualified Sixth Amendment right to counsel of
choice, recognizing the distinction between choosing a trial lawyer and
choosing an appellate lawyer; (2)(b) the contract between the defendant
and trial counsel; (3)(c) the defendant's present financial condition
and ability to have retained only trial counsel; (4)(d) retained
counsel's appellate experience; (5)(e) the financial burden that
prosecuting the appeal would impose upon trial counsel, in view of the
fee received and the professional services rendered; and (6)(f) all
other relevant factors, including any constitutional guarantees of the
defendant.
Authority
(1993) This rule is new in its entirety. Added at the request of the
Eleventh Circuit.
3.(c) Within five seven (7) days following entry of a guilty plea or a
verdict of guilty, counsel for the defendant and the probation officer
will have made arrangements for the initial interview of the defendant
for the PSI.
4.(d) Within fourteen (14) days of receipt of the report, counsel for the
defendant and the government must communicate any objections, in writing,
to each other and to the probation officer. The probation officer may
meet with counsel and the defendant to discuss the objections and may
conduct a further investigation and revise the report as appropriate.
5.(e) Seven (7) days prior to the sentencing proceeding, the probation
officer must submit to the Court the final report and an addendum
containing unresolved issues. The PSI, if revised, and the addendum will
also be made available to all counsel.
6.(f) Counsel for the parties shall confer no later than seven (7) days
prior to the scheduled sentencing hearing proceeding with respect to the
anticipated length of the sentencing and the number of witnesses to be
called. If either party reasonably anticipates that the sentencing
proceeding will exceed one hour, the party shall file a notice with the
Clerk of the Court and shall hand deliver a courtesy copy to the United
States Probation Office no later than five (5) days prior to the
sentencing proceeding. The notice shall advise the Court of the number
of witnesses to be called and the estimated time required for the
sentencing proceeding. Additionally, counsel for the parties shall file
within the same time period any notice for enhancement of sentence or
requests for departure.
Authority
A.(a) Motions in criminal cases are subject to the requirements of, and
shall comply with, Local Rule 7.1. with the following exceptions:
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1997; April 15, 1998; April 15, 2003; April 15, 2007.
Authority
(1996) B. From Local Rule 7.5 and former Local Rule 10.H.
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Comments
(1998) Local Rule 88.9 C. is added to reflect the filing time previously
prescribed by the Standing Order on Criminal Discovery of the Southern
District, with additional flexibility for motions arising from later
events.
A.(a) The government shall permit the defendant to inspect and copy the
following items or copies thereof, or supply copies thereof, which are
within the possession, custody or control of the government, the
existence of which is known or by the exercise of due diligence may
become known to the government:
2.(2) The substance of any oral statement made by the defendant before or
after his arrest in response to interrogation by a then known-to-be
government agent which the government intends to offer in evidence at
trial;
B.(b) The defendant shall permit the government to inspect and copy the
following items, or copies thereof, or supply copies thereof, which are
within the possession, custody or control of the defendant, the existence
of which is known or by the exercise of due diligence may become known to
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the defendant:
C.(c) The government shall reveal to the defendant and permit inspection
and copying of all information and material known to the government which
may be favorable to the defendant on the issues of guilt or punishment
within the scope of Brady v. Maryland, 373 U.S. 83 (1963), and United
States v. Agurs, 427 U.S. 97 (1976).
D.(d) The government shall disclose to the defendant the existence and
substance of any payments, promises of immunity, leniency, preferential
treatment, or other inducements made to prospective government witnesses,
within the scope of Giglio v. United States, 405 U.S. 150 (1972), and
Napue v. Illinois, 360 U.S. 264 (1959).
E.(e) The government shall supply the defendant with a record of prior
convictions of any alleged informant who will testify for the government
at trial.
F.(f) The government shall state whether defendant was identified in any
lineup, showup, photospread or similar identification proceeding, and
produce any pictures utilized or resulting therefrom.
G.(g) The government shall advise its agents and officers involved in
this case to preserve all rough notes.
I.(i) The government shall state whether the defendant was an aggrieved
person, as defined in Title 18, United States Code, Section 2510(11), of
any electronic surveillance, and if so, shall set forth in detail the
circumstances thereof.
J.(j) The government shall have transcribed the grand jury testimony of
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all witnesses who will testify for the government at the trial of this
cause, preparatory to a timely motion for discovery.
K.(k) The government shall, upon request, deliver to any chemist selected
by the defense, who is presently registered with the Attorney General in
compliance with 21 U.S.C. §§ 822 and 823, and 21 C.F.R. Section§
101.22(8), a sufficient representative sample of any alleged contraband
which is the subject of this indictment, to allow independent chemical
analysis of such sample.
L.(l) The government shall permit the defendant, his counsel and any
experts selected by the defense to inspect any automobile, vessel, or
aircraft allegedly utilized in the commission of any offenses charged.
Government counsel shall, if necessary, assist defense counsel in
arranging such inspection at a reasonable time and place, by advising the
government authority having custody of the thing to be inspected that
such inspection has been ordered by the court.
M.(m) The government shall provide the defense, for independent expert
examination, copies of all latent fingerprints or palm prints which have
been identified by a government expert as those of the defendant.
O.(o) The parties shall make every possible effort in good faith to
stipulate to all facts or points of law the truth and existence of which
is not contested and the early resolution of which will expedite the
trial.
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1.(1) Discovery which is to be made in connection with a pre-trial
hearing other than a bail or pre-trial detention hearing shall be made
not later than forty-eight (48) hours prior to the hearing. Discovery
which is to be made in connection with a bail or pre-trial detention
hearing shall be made not later than the commencement of the hearing.
Effective Dec. 1, 1994; amended effective April 15, 1996; April 15,
1998; April 15, 2000; April 15, 2003; April 15, 2005; April 15, 2007.
Authority
Comments
When a defendant is arrested after hours (in the evening, on the weekend,
on a holiday, or in the daytime during the business week at a time that
does not permit an appearance at the prescribed session of Magistrate
Court), the Duty Assistant United States Attorney shall contact the Duty
Magistrate Judge for the purpose of having a bond set.
Once the Duty Magistrate Judge sets a bond, the Duty Assistant United
States Attorney shall transmit the bond information to the Duty Marshal
and/or to the arresting agents who shall transmit the bond information to
the booking officials at the receiving institution. A "permanent" bond
shall be set for the defendant at the next available prescribed Duty
Magistrate Judge Court session when the defendant appears for initial
appearance.
For arrests that occur during the business week, prior to the end of the
business day but subsequent to a time when an initial appearance at the
prescribed session of Magistrate Judge Court can be made, the Duty
Assistant United States Attorney shall contact the Duty Magistrate Judge
in chambers for the purpose of having a temporary bond set. As with
after hours arrests, the Duty Assistant United States Attorney shall
transmit the bond information to the Duty Marshal and/or the arresting
agents. If the Duty Magistrate Judge is on the bench when a Duty
Assistant United States Attorney calls for the purpose of having a
temporary bond set, the Duty Magistrate Judge will return the Duty
Assistant United States Attorneys call as soon as the Duty Magistrate
Judge gets off the bench.
For after hours arrests, the Duty Assistant United States Attorney shall
leave a message on the Duty Magistrate Judge's beeper or cell phone. If
by beeper, the call will be returned by the Duty Magistrate Judge. Once
the Duty Magistrate Judge sets a bond, the Duty Assistant United States
Attorney shall transmit the bond information to the Duty Marshal and/or
the arresting agents for transmittal to the receiving institution.
Routine arrests occurring after 10:00 p.m. need not be communicated to
the Duty Magistrate Judge that night, but shall be reported by the Duty
Assistant United States Attorney to the Duty Magistrate Judge the
following morning. In emergency situations, the Duty Magistrate Judge
may be contacted directly at any hour.
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Comment
(2006) The Duty Assistant United States Attorney shall transmit the bond
information to assure that any interested party can readily ascertain the
temporary bond which has been set for a particular defendant. The Duty
Assistant United States Attorney (evening or weekend) should contact the
Duty Magistrate Judge the Friday before the Duty Assistant United States
Attorney's tour of duty, to discuss the Duty Magistrate Judge's
preference regarding taking duty calls. Some Magistrate Judges may
prefer to have the Duty Assistant United States Attorney contact them
directly, rather than by beeper. All after-hours Duty matters should be
coordinated through the Duty Assistant United States Attorney. For
example, when an arrest is authorized by a non-Duty Assistant United
States Attorney, that arrest should be coordinated through and/or with
the Duty Assistant United States Attorney. At a minimum, the Duty
Assistant United States Attorney should be made aware of all after-hours
Duty activities by other Assistant United States Attorney's. There are
at least two reasons for the procedure that all after-hours Duty arrests
must be reported to the Duty Magistrate Judge. First, there may be
confusion as to whether an "endorsed" bond is a judge-set bond or an
Assistant United States Attorney recommended bond. Second, the Duty
Magistrate Judge must be made aware of all arrests occurring after hours,
to enable the Duty Magistrate Judge to respond to related inquiries.
APPENDICES
APPENDICES
ORDERED as follows:
1. This Order and the Discovery Practices Handbook, in the form attached
to this Order, shall be published as an appendix to the Local Rules.
2. The practices set forth in the Discovery Practices Handbook shall not
have the force of law, but may be looked to by practitioners for guidance
in conducting discovery in this District.
DONE AND ORDERED in Chambers at the United States Federal Building and
Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida this
27th day of June, 1996.
I. DISCOVERY IN GENERAL
(1) General Rule. In accordance with Federal Rule of Civil Procedure 5(d)
and Local Rule 26.1.B(b), Southern District of Florida, disclosures under
Federal Rules of Civil Procedure 26(a)(1) or (2), and discovery materials
shall not be filed with the Court as a matter of course. Disclosures and
discovery materials may later be filed if necessary in presentation and
consideration of a motion to compel, a motion for protective order, a
motion for summary judgment, a motion for injunctive relief, or other
similar proceedings.
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(2) Court–Ordered Filing of Discovery Materials. In circumstances
involving trade secret information or other categories of information,
the Court may order that discovery be filed with the Court in order to
preserve the integrity of the information. However, such practice is
only permitted after the Court has determined, upon timely motion, that
filing with the Court is necessary to safeguard the interests jeopardized
by the normal discovery process. When such situations arise, counsel are
encouraged to formulate agreements governing discovery that minimize the
judicial role in administering routine discovery matters.
(4) Sanctions. Because lawyers are expected to respond when the Federal
Rules of Civil Procedure require, Federal Rule of Civil Procedure 37
provides that if an opposing lawyer must go to Court to make the
recalcitrant party answer, the moving party may be awarded counsel fees
incurred in compelling the discovery. Federal Rule of Civil Procedure 37
is enforced in this District. Further, if a Court order is obtained
compelling discovery, unexcused failure to provide a timely response is
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treated by the Court with the gravity it deserves; willful violation of
a Court order is always serious and may be treated as contempt.
E. Completion of Discovery.
II. DEPOSITIONS
B. Objections.
(1) Every subpoena shall (A) state the name of the court from which it is
issued; and (B) state the title of the action, the name of the court in
which it is pending, and its civil action number; and ... (2) ... A
subpoena for attendance at a deposition shall issue from the court for
the district designated by the notice of deposition as the district in
which the deposition is to be taken.
b. Prior to the taking of any deposition, the witness shall be first duly
sworn by an officer authorized to administer oaths, before whom the
deposition is being taken. If the deposition is recorded other than
stenographically, the officer designated by Federal Rule of Civil
Procedure 28, shall state on the record (a) the officer's name and
business address, (b) the date, time and place of the deposition, (c) the
deponent's name, (d) administer the oath, and (e) identify all parties
present. Items (a) through (c) must be repeated at the beginning of each
unit of recorded tape or other recording medium. See Federal Rule of
Civil Procedure 30(b)(4).
c. If any objections are made, the objections shall be ruled upon by the
Court on the basis of the stenographic transcript, and if any questions
or answers are stricken by the Court, the videotape and sound recording
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must be edited to reflect the deletions so that it will conform in all
respects to the Court's rulings.
i. Any other party may, if it so desires, arrange for its own private
stenographic transcription or electronic recording at its own expense,
which expense will not be taxed as court costs except upon showing of
some extraordinary reason.
E. Depositions of Experts. A party may depose any person who has been
identified as an expert whose opinions may be presented at trial. See
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Federal Rule of Civil Procedure 26(b)(4)(A). However, Local Rule
26.1.F.1.b(f)(1)(B) provides that an expert's deposition may not be
conducted until after the expert summary or report required by Local Rule
16.1.K(k) is provided.
IV. INTERROGATORIES
(7) Form Interrogatories. There are certain kinds of cases which lend
themselves to interrogatories which may be markedly similar from case to
case, such as employment discrimination and maritime cargo damage suits,
for example, or diversity actions in which form interrogatories have been
approved by state law. Except for the standard form interrogatories set
forth in Appendix B to the Local Rules, interrogatories which parties
seek to propound under Local Rules 26.1.G.3(g)(3) and 26.1.G.4(g)(4)
should be carefully reviewed to make certain that they are tailored to
the individual case.
5. All of the actual clerical data extraction work should be done by the
interrogating party unless agreed to the contrary, or unless, after
actually beginning the effort, it appears that the task could be
performed more efficiently by the producing party. In that event, the
interrogating party may ask the Court to review the propriety of Federal
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Rule of Civil Procedure 33(d) election. In other words, it behooves the
producing party to make the search as simple as possible, or the
producing party may be required to answer the interrogatory in full.
V. PRIVILEGE
(a) The attorney asserting the privilege shall identify during the
deposition the nature of the privilege (including work product) which is
being claimed and if the privilege is being asserted in connection with a
claim or defense governed by state law, indicate the state privilege rule
being invoked; and
(c) After a claim of privilege has been asserted, the attorney seeking
disclosure shall have reasonable latitude during the deposition to
question the witness to establish other relevant information concerning
the assertion of the privilege, unless divulgence of such information
would cause disclosure of privileged information, including:
(iii) circumstances which may result in the privilege having been waived,
and
C. Time for Filing. Local Rule 26.1.H.1(h)(i) requires that all motions
related to discovery, including but not limited to motions to compel
discovery and motions for protective order, be filed within thirty (30)
days of the occurrence of grounds for the motion. Failure to file a
discovery motion within thirty (30) days, absent a showing of reasonable
cause for a later filing, may constitute a waiver of the relief sought.
Amended effective April 15, 1999; April 15, 2001; April 15, 2006; April
15, 2007; April 15, 2009.
PLAINTIFF X<COL>
<COL>
Plaintiff,<COL>
<COL>
vs.<COL>
<COL>
DEFENDANT Y<COL>
<COL>
Defendant.<COL>
<COL>
__________<COL>/
DEFINITIONS
(b) The singular shall include the plural and vice versa; the terms
"and" or "or" shall be both conjunctive and disjunctive; and the term
"including" mean "including without limitation".
(c) "Date" shall mean the exact date, month and year, if ascertainable
or, if not, the best approximation of the date (based upon relationship
with other events).
(d) The word "document" shall mean any writing, recording, electronically
stored information or photograph in your actual or constructive
possession, custody, care or control, which pertain directly or
indirectly, in whole or in part, either to any of the subjects listed
below or to any other matter relevant to the issues in this action, or
which are themselves listed below as specific documents, including, but
not limited to: correspondence, memoranda, notes, messages, diaries,
minutes, books, reports, charts, ledgers, invoices, computer printouts,
microfilms, video tapes or tape recordings.
(g) The words "pertain to" or "pertaining to" mean: relates to, refers
to, contains, concerns, describes, embodies, mentions, constitutes,
constituting, supports, corroborates, demonstrates, proves, evidences,
shows, refutes, disputes, rebuts, controverts or contradicts.
(i) The term "action" shall mean the case entitled Plaintiff X v.
Defendant Y, Case No. ___, pending in the Unites States District Court
for the Southern District of Florida.
INSTRUCTIONS
(5) if an oral communication: the place where it was made, the names of
the persons present while it was made, and, if not apparent, the
relationship of the persons present to the declarant; and
INTERROGATORIES
2. Please state the specific nature and substance of the knowledge that
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you believe the person(s) identified in your response to interrogatory
no. 1 may have.
3. Please provide the name of each person whom you may use as an expert
witness at trial.
Effective April 15, 1998; amended effective April 15, 2007; April 15,
2009.
<COL>
Plaintiff,<COL>
<COL>
vs.<COL>
<COL>
<COL>
Defendants.<COL>
<COL>
__________<COL>/
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DEFENDANT'S WAIVER OF STATUTORY RIGHT TO SPEEDY TRIAL
__________
Defendant
EXECUTED in Open Court in the Southern District of Florida, this ____ day
of _______, 20__.
Respectfully submitted,
__________
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ADMIRALTY AND MARITIME RULES
(1)(a) Scope of the Local Admiralty and Maritime Rules. The Local Admiralty
and Maritime Rules apply to the procedures in admiralty and maritime claims
within the meaning of Federal Rule of Civil Procedure 9(h), which in turn are
governed by the Supplemental Rules for Certain Admiralty and Maritime Claims of
the Federal Rules of Civil Procedure.
(a)(1) The Supplemental Rules for Certain Admiralty and Maritime Claims of the
Federal Rules of Civil Procedure shall be cited as "Supplemental Rule (_____)".
(b)(2)The Local Admiralty and Maritime Rules shall be cited as "Local Admiralty
Rule (_____)".
(3)(c) Application of Local Admiralty and Maritime Rules. The Local Admiralty
Rules shall apply to all actions governed by Local Admiralty Rule A(1)1(a), and
to the extent possible should be construed to be consistent with the other
Local Rules of this Court. To the extent that a Local Admiralty Rule conflicts
with another Local Rule of this Court, the Local Admiralty Rule shall control.
Any interested party may move the Court, with or without a request for stay,
for the personal oath or affirmation of a party or all parties, or that of a
corporate officer. If required by the Court, such verification may be obtained
by commission, or as otherwise provided by Court order.
(9)(i) Judicial Officer Defined. As used in these Local Admiralty Rules, the
term "judicial officer" or "Court" shall mean either a United States District
Judge or a United States Magistrate Judge.
Advisory Notes
(1994) These Local Admiralty Rules were amended in 1994 to make them gender
neutral.
(1993) (a) General Comments. These Local Admiralty Rules were prepared and
submitted to the Court through the Rules Committee of the Southern District of
Florida, at the request of a Subcommittee of the Admiralty Law Committee of The
Florida Bar.
The Local Admiralty and Maritime Rules are promulgated pursuant to this Court's
rule making authority under Federal Rule of Civil Procedure 83, and have been
drafted to complement the Supplemental Rules for Certain Admiralty and Maritime
Claims of the Federal Rules of Civil Procedure.
The Committee has arranged these Local Admiralty Rules to correspond generally
with the ordering of the Supplemental Rules, e.g., Local Admiralty Rule A
corresponds generally with Supplemental Rule A, and each sequentially lettered
Local Admiralty Rule addresses the subject matter of the corresponding
next-in-order Supplemental Rule.
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Reference to the former Local Admiralty Rules refers to the former Local Rules
of the Southern District of Florida.
A(7) enlarges upon former Local Admiralty Rule 3(a) which addressed notice by
publication only in cases filed pursuant to Supplemental Rule C(4). The
revised rule extends the publication provisions to all Federal Rule of Civil
Procedure 9(h) actions for which notice by publication is required.
In addition, the existing provisions have been altered to require that the
publication shall be made both in the county where the vessel, or other
property, was located at the time of arrest, attachment or seizure; and if
different, in the county within the Division of this Court in which the suit is
pending.
A(9) adopts the definition of "Court" provided in the Advisory Notes to the
August 1, 1985, amendments to the Supplemental Rules.
Where the terms "Court" and "judicial officer" are not used, these Local
Admiralty Rules contemplate that without further order of Court, the
responsibility of taking the specific action shall be vested with a District
Judge.
A(10) provides for an Appendix of Forms to the Local Admiralty Rules. The
former Local Admiralty Rules incorporated the text of some forms within the
specific Local Admiralty Rules and included some forms in an Appendix. The
Appendix of Forms provides an alternate method of presenting the format and
content of necessary admiralty forms.
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As noted in the revised Local Admiralty Rules, these forms are provided as
examples, and are not intended to be mandatory. In addition to the specific
forms referred to in the Local Admiralty Rules, the Appendix also includes
other commonly used admiralty forms for the use and convenience of counsel.
(1998) These Local Admiralty Rules are amended in 1998 to correct scrivener's
errors and to require the custodian or substitute custodian to comply with
orders of the Captain of the Port, United States Coast Guard.
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
If the Court finds that probable cause exists to issue the process of
attachment and garnishment, plaintiff shall prepare an order for the Court's
signature directing the Clerk of the Court to issue the process. This order
shall substantially conform in format and content to the form identified as SDF
1 in the Appendix of these Local Admiralty Rules.
Upon receipt of the signed order, the Clerk of the Court shall file the order
and, in accordance with Local Admiralty Rule B(3)(c)2(c)(3), issue the summons
and process of attachment and garnishment. Thereafter the Clerk of the Court
may issue supplemental process without further order of Court.
(d)(4) Marshal's Return of Service. The Marshal shall file a return of service
indicating the date and manner in which service was perfected and, if service
was perfected upon a garnishee, the Marshal shall indicate in the return the
name, address, and telephone number of the garnishee.
(b)(2) Hearing on the Answer and Claim. The claimant may be heard before a
judicial officer not less than three seven (7) days after the answer and claim
has been filed and service has been perfected upon the plaintiff.
If the Court orders that the seizure be vacated, the judicial officer shall
also award attorney's fees, costs and other expenses incurred by any party as a
result of the seizure.
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If the seizure was predicated upon a showing of "exigent circumstances" under
Local Admiralty Rule B(3)(b)2(c)(2), and the Court finds that such exigent
circumstances did not exist, the judicial officer shall award attorney's fees,
costs, and other expenses incurred by any party as a result of the seizure.
Upon review of the motion, memorandum, and other proof, the Clerk of the Court
shall, where appropriate, enter default in accordance with Federal Rule of
Civil Procedure 55(a). Thereafter, the Clerk of the Court shall serve notice
of the entry of default upon all parties represented in the action.
(7)(g) Procedural Requirements for the Entry of Default Judgment. Not later
than thirty (30) days following notice of the entry of default, the party
seeking the entry of default judgment shall file a motion and supporting legal
memorandum, along with other appropriate exhibits to the motion sufficient to
support the entry of default judgment. The moving party shall serve these
papers upon every other party to the action and file a Certificate of Service
indicating the date and manner in which service was perfected.
A party opposing the entry of default judgment shall have five seven (7) days
from the receipt of the motion to file written opposition with the Court.
Thereafter, unless otherwise ordered by the Court, the motion for the entry of
default judgment will be heard without oral argument.
If the Court grants the motion and enters the default judgment, such judgment
shall establish a right on the part of the party or parties in which favor it
is entered. The judgment shall be considered prior to any claims of the owner
of the defendant property against which it is entered, and to the remnants and
surpluses thereof; providing, however, that such a judgment shall not
establish any entitlement to the defendant property having priority over
non-possessory lien claimants. Obtaining a judgment by default shall not
preclude the party in whose favor it is entered from contending and proving
that all, or any portion, of the claim or claims encompassed within the
judgment are prior to any such non-possessory lien claims.
Effective Dec. 1, 1994. Amended effective April 15, 1998; April 15, 2000;
April 15, 2007.
Advisory Notes
(1993) (a) General Comments. Local Admiralty Rule B is intended to enhance and
codify the local procedural requirements uniquely applicable to actions of
maritime attachment and garnishment under Supplemental Rule B. Other local
procedural requirements involving actions in rem and quasi in rem proceedings
can be found in Local Admiralty Rule E.
When read in conjunction with Supplemental Rule B and E, Local Admiralty Rules
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B and 5 are intended to provide a uniform and comprehensive method for
constitutionally implementing the long-standing and peculiar maritime rights of
attachment and garnishment. The Committee believes that Local Admiralty Rules
B and E correct the deficiencies perceived by some courts to exist in the
implementation of this unique maritime provision. Schiffahartsgesellschaft
Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 552 F.Supp. 771
(S.D.Ga.1982); Cooper Shipping Company v. Century 21, 1983 A.M.C. 244
(M.D.Fla.1982); Crysen Shipping Co. v. Bona Shipping Co., Ltd., 553 F.Supp.
139 (N.D.Fla.1982); and Grand Bahama Petroleum Co. v. Canadian Transportation
Agencies, Ltd., 450 F.Supp. 447 (W.D.Wa.1978), discussing Supplemental Rule (B)
proceedings in light of Fuentes v. Shevin, 407 U.S. 67, [92 S.Ct. 1983, 32
L.Ed.2d 556] (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337, [89
S.Ct. 1820, 23 L.Ed.2d 349] (1969).
(b) Comments on Specific Sections. Local Admiralty Rule B(1) codifies the
governing law of this Circuit as set forth in LaBanca v. Ostermunchner, 664
F.2d 65 (5th Cir., Unit B, 1981).
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
If the Court finds that probable cause exists for an action in rem, plaintiff
shall prepare an order for the Court's signature directing the Clerk of the
Court to issue a warrant of arrest and/or summons. This order shall
substantially conform in format and content to the form identified as SDF 2 in
the Appendix to these Local Admiralty Rules.
Upon receipt of the signed order, the Clerk of the Court shall file the order
and, in accordance with Local Admiralty Rule C(2)(c)3(b)(3), issue the warrant
of arrest and/or summons. Thereafter the Clerk of the Court may issue
supplemental process without further order of the Court.
The warrant of arrest shall substantially conform in format and content to the
form identified as SDF 4 in the Appendix to these Local Admiralty Rules, and
shall in all cases give adequate notice of the post-arrest provisions of Local
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Admiralty Rule C(7)3(g).
(1)(A) File a claim within tenfourteen (14) days, beginning on the next
calendar day, including Saturday, Sunday, or a legal holiday, count fourteen
days after service of the summons in accordance with Local Admiralty Rule
C(6)(a)4(f)(1); or
(2)(B) Deliver or pay over to the Marshal, the freight, proceeds, and/or
intangible property, or a part thereof, sufficient to satisfy plaintiff's
claim.
The summons shall also inform the person having control of the freight,
proceeds, and/or intangible property that service of the summons has the effect
of arresting the property, thereby preventing the release, disposal or other
distribution of the property without prior order of the Court.
The claim shall be served upon the plaintiff, the Marshal, and all other
parties to the litigation. Additionally, the claimant shall file a Certificate
of Service indicating the date and manner in which service was perfected.
Unless otherwise ordered by the Court, the person tendering control of the
freight, proceeds, and/or intangible property shall be excused from any further
duty with respect to the property in question.
(b)(2) Proof of Publication. Plaintiff shall file with the Clerk of the Court
proof of publication not later than tenfourteen (14) days following the last
day of publication. It shall be sufficient proof for the plaintiff to file the
sworn statement by, or on behalf of, the publisher or editor, indicating the
dates of publication, along with a copy or reproduction of the actual
publication.
(6)(f) Time for Filing Claim or Answer. Unless otherwise ordered by the Court,
any claimant of property subject to an action in rem shall:
(a)(1) File the claim within tenfourteen (14) days, beginning on the next
calendar day, including Saturday, Sunday, or a legal holiday, after process has
been executed; and
(b)(2) Serve an answer within twenty-one (21) days after the filing of the
claim.
The party seeking the entry of default shall also file such other proof
sufficient to demonstrate that due notice of the action and arrest have been
given by:
(a)(1) Service upon the master or other person having custody of the property;
and
The party seeking entry of default judgment under Local Rule C(8)3(h) may be
excused for failing to give notice to such "other person" upon a satisfactory
showing that diligent effort was made to give notice without success; and
Upon review of the motion, memorandum, and other proof, the Clerk of the Court
may, where appropriate, enter default in accordance with Federal Rule of Civil
Procedure 55. Thereafter, the Clerk of the Court shall serve notice of the
entry of default upon all parties represented in the action.
(9)(i) Procedural Requirements for the Entry of Default Judgment. Not later
than thirty (30) days following notice of the entry of default, the moving
party shall file a motion, and supporting legal documents, for the entry of
default judgment pursuant to Federal Rule of Civil Procedure 55(b). The moving
party may also file as exhibits for the motion such other documentation as may
be required to support the entry of default judgment. Thereafter the Court
will consider the motion as indicated below:
(a)(1) When No Person Has Filed a Claim or Answer. Unless otherwise ordered by
the Court, the motion for default judgment will be considered by the Court
without oral argument.
(b)(2) When Any Person Has Filed an Appearance, But Does Not Join in the Motion
for Entry of Default Judgment. If any person has filed an appearance in
accordance with Local Admiralty Rule C(6)3(f), but does not join in the motion
for entry of default judgment, the party seeking the entry of default judgment
shall serve notice of the motion upon the party not joining in the motion, and
thereafter the opposing party shall have five seven (7) days from receipt of
the notice to file written opposition with the Court.
If the Court grants the motion and enters the default judgment, such judgment
shall establish a right on the part of the party or parties in whose favor it
is entered. The judgment shall be considered prior to any claims of the owner
of the defendant property against which it is entered, and to the remnants and
surpluses thereof; providing, however, that such a judgment shall not
establish any entitlement to the defendant property having priority over
non-possessory lien claimants. Obtaining a judgment by default shall not
preclude the party in whose favor it is entered from contending and proving
that all, or any portion, of the claim or claims encompassed within the
judgment are prior to any such non-possessory lien claims.
Effective Dec. 1, 1994. Amended effective April 15, 1998; April 15, 2000;
April 15, 2001; April 15, 2007.
Advisory Notes
This procedure made available through this rule has proven effective. Maryland
Ship Building & Dry–Dock Co. v. Pacific Ruler Corp., 201 F.Supp. 858 (SDNY
1962). In fact, the procedure established by this local rule goes beyond that
encountered in Merchants Nat'l Bank v. Dredge Gen. G.L. Gillespie, supra, or
Maryland Ship Building & Dry–Dock Co. v. Pacific Ruler Corp., supra.
Under this rule, the claimant or intervenor may petition the Court to order the
plaintiff to establish probable cause for the arrest of the property.
Therefore at an early stage of the litigation, plaintiff can be required to
establish a prima facie case that he is asserting a claim which is entitled to
the dignity and status of a maritime lien against the arrested property. This
rule contemplates the entry of an order with conclusory findings following the
post-arrest proceedings. More detailed findings may be requested by any party.
The rule is not intended to provide a method for contesting the amount of
security to be posted for the release of the vessel. Once a prima facie case
for the maritime lien has been established, or the question of lien status
remains uncontested, the matter of security is left to the provisions of Local
Admiralty Rule E.
C(3). Supplemental Rule C(3) also addresses the less commonly encountered
action in rem to enforce a maritime lien against freights, proceeds or other
intangible property. The revision to this rule designates the United States
Marshal to take custody of all tangible and intangible properties arrested in
accordance with this rule, and to bring these properties under the control of
the Court. This is the practice in many other districts, and when implemented
will provide the greatest uniformity in the treatment of tangible and
intangible property.
C(5). Although this section is new to the local rules, it reflects the current
local practice with respect to undertakings and stipulations in lieu of arrest.
Such undertakings and stipulations have been held effective to permit a Court
to exercise its in rem admiralty jurisdiction so long as either at the time the
undertaking or stipulation is given, or at any subsequent time prior to the
filing of the action, the vessel or other property is, or will be, present
within the District.
C(8) and (9). These sections are designed to mesh Supplemental Rule (C) with
Federal Rule of Civil Procedure 55. For purpose of default and default
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judgments, the rule recognizes two distinct groups of in rem claimants.
The time in which the second category of claimants may intervene is governed by
the provisions of Local Admiralty Rule E. Such lien claimants are not
obligated, and indeed are probably not entitled to file a claim of possession
to the vessel, or to answer and defend in the name of the vessel. As to them,
in accordance with Federal Rule of Civil Procedure 8, the essential averments
of all the complaints are taken as automatically denied.
(2000) Local Admiralty Rule C(9) is amended to give the party seeking entry of
a default judgment up to thirty days, rather than five days, to file a motion
and supporting legal memorandum.
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
If the Court shortens the time, the Court shall specify the date upon which the
answer must be filed, and may also set a hearing date to expedite the
disposition of the possessory action. When possible, possessory actions shall
be given preference on a judicial officer's calendar.
Advisory Notes
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
Upon receipt of the intervening complaint and supplemental process, the Clerk
of the Court shall conform a copy of the intervening complaint and shall issue
the supplemental process. Thereafter, the offering party shall deliver the
conformed copy of the intervening complaint and supplemental process to the
Marshal for execution. Upon receipt of the intervening complaint and
supplemental process, the Marshal shall re-arrest or re-attach the vessel or
property in the name of the intervening plaintiff.
Counsel for the intervening party shall serve a copy of the intervening
complaint, and copies of all process and exhibits upon all other counsel of
record, and shall thereafter file a certificate of service with the Clerk of
the Court indicating the manner and date of service.
(b)(2) Permissive Intervention When the Vessel or Property Has Been Scheduled
for Sale by the Court. Except as indicated below, and subject to any other
rule or order of this Court, no person shall have an automatic right to
intervene in an action where the Court has ordered the sale of the vessel or
property, and the date of the sale is set within fifteen twenty-one (21) days
from the date the party moves for permission to intervene in accordance with
this subsection. In such cases, the person seeking permission to intervene
must:
(1)(A) File a motion to intervene and indicate in the caption of the motion a
request for expedited hearing when appropriate.
(3)(C) Prepare and offer for filing a supplemental warrant of arrest and/or a
supplemental process of attachment and garnishment.
(4)(D) Serve copies of the motion to intervene, with exhibits and proposed
supplemental process upon every other party to the litigation.
(5)(E) File a certificate of service indicating the date and manner of service.
Thereafter, the Court may permit intervention under such conditions and terms
as are equitable to the interests of all parties; and if intervention is
permitted, shall also direct the Clerk of the Court to issue the supplemental
process.
Upon receipt of the order permitting intervention, the Clerk of the Court shall
file the originally signed intervening complaint, conform a copy of the
intervening complaint and issue the supplemental process.
Thereafter, the offering party shall deliver the conformed copy of the
intervening complaint and supplemental process to the Marshal for execution.
Upon receipt of the intervening complaint and supplemental process, the Marshal
shall re-arrest or re-attach the vessel or property in the name of the
intervening plaintiff.
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Counsel for the intervening party shall also serve a copy of the intervening
complaint, exhibits, and supplemental process upon every other party of record
and shall thereafter file a Certificate of Service with the Clerk of the Court
indicating the manner and date of service.
(a)(1) Deposit Required Before Seizure. Any party seeking the arrest or
attachment of property in accordance with Supplemental Rule E shall deposit a
sum with the Marshal sufficient to cover the Marshal's estimated fees and
expenses of arresting and keeping the property for at least tenfourteen (14)
days. The Marshal is not required to execute process until the deposit is
made.
(b)(2) Proration of Marshal's Fees and Expenses Upon Intervention. When one or
more parties intervene pursuant to Local Admiralty Rule E(2)(a)5(b)(1) or
(b)(2), the burden of advancing sums to the Marshal sufficient to cover the
Marshal's fees and expenses shall be allocated equitably between the original
plaintiff, and the intervening party or parties as indicated below:
(1)(A) Stipulation for the Allocation and Payment of the Marshal's Fees and
Expenses. Immediately upon the filing of the intervening complaint, counsel
for the intervening plaintiff shall arrange for a conference between all other
parties to the action, at which time a good faith effort shall be made to
allocate fees and expenses among the parties. Any resulting stipulation
between the parties shall be codified and filed with the Court and a copy
served upon the Marshal.
(2)(B) Allocation of Costs and Expenses in the Event That Counsel Cannot
Stipulate. The Court expects that counsel will resolve the allocation of costs
and expenses in accordance with the preceding paragraph. In the event that
such an arrangement cannot be made, the parties shall share in the fees and
expenses of the Marshal in proportion to their claims as stated in the original
and intervening complaints.
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In order to determine the proportionate shares of each party, counsel for the
last intervening plaintiff shall determine the total amounts claimed by each
party. The individual claims shall be determined from the original and amended
complaint, and all other intervening complaints subsequently accepted and
processed by the Marshal in accordance with Local Admiralty Rule E(2)(a)5(b)(1)
or (b)(2).
Thereafter, counsel for the last intervening plaintiff shall deliver to the
Marshal a list which summarizes each party's claim, and the proportion which
each party's claim bears to the aggregate claims asserted in the litigation,
determined to the nearest one-tenth of one percentage point.
Upon receipt of this listing, the Marshal shall determine the total expenses
incurred to date and shall estimate the expenses to be incurred during the next
tenfourteen (14) days. For the purpose of making this calculation, the total
fees and expenses shall be calculated from the date when continuous and
uninterrupted arrest or attachment of the property began, and not prorated from
the date a particular party's intervening complaint was filed.
The Marshal shall then apply the percentages determined in the listing, and
shall compute the amount of the intervening party's initial deposit
requirements. The Marshal shall also utilize this listing to compute any
additional deposit requirements which may be necessary pursuant to Local
Admiralty Rule E(5)(c)5(e)(3).
The Marshal need not re-arrest or re-attach the vessel and/or property until
the deposit is received from the intervening plaintiff.
(d)(4) Judicial Relief From Deposit Requirements. Any party aggrieved by the
deposit requirements of Local Admiralty Rule E(5)(b)5(e)(2) may apply to the
Court for relief. Such application shall be predicated upon a showing that
owing to the relative priorities of the claims asserted against the vessel or
other property, the deposit requirements operate to impose a burden
disproportionate to the aggrieved party's recovery potential.
The judicial officer may adjust the deposit requirements, but in no event shall
the proportion required of an aggrieved party be reduced to a percentage less
than that imposed upon the claimant whose claim is the smallest among that of
claims which the aggrieved party stipulates as having priority over its claim;
or, in the absence of such stipulation, the greatest percentage imposed upon
any claimant participating in the deposit requirements.
In the event that a party questions its obligations to advance monies required
by this rule, the Marshal may apply to the Court for instructions concerning
that party's obligation under the rule.
The Marshal shall direct the officer, employee or custodian not to relinquish
custody of the property until ordered to do so by the Court.
The stipulation, bond, or other security shall be posted in an amount equal to,
or greater than, the amount required for the following types of action:
(1)(A) Actions Entirely for a Sum Certain. The amount alleged to be due in the
complaint, with interest at six percent per annum from the date claimed to be
due to a date twenty-four months after the date the claim was filed, or by
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filing an approved stipulation, or bond for the amount alleged plus interest as
computed in this subsection.
The person consenting or stipulating to the release shall also file a claim in
accordance with Local Admiralty Rule E(2)(a)5(b)(1) or (b)(2).
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(3)(C) Execution of Process. The arrest of a vessel covered by a general bond
shall be stayed in accordance with Supplemental Rule E(5)(b), however, the
Marshal shall serve a copy of the complaint upon the master or other person in
whose charge or custody the vessel is found. If neither the master nor another
person in charge of custody is found aboard the vessel, the Marshal shall make
the return accordingly.
(9)(i) Application to Modify Security for Value and Interest. At any time, any
party having an interest in the subject matter of the action may move the
Court, on due notice and for cause, for greater, better or lesser security, and
any such order may be enforced by attachment or as otherwise provided by law.
(a)(1) Initial Responsibility. The Marshal shall initially take custody of any
vessel, cargo and/or other property arrested, or attached in accordance with
these rules. Thereafter, and until such time as substitute custodians may be
authorized in accordance with Local Admiralty Rule E(10)(c)5(j)(3), the Marshal
shall be responsible for providing adequate and necessary security for the
safekeeping of the vessel or property.
In the discretion of the Marshal, adequate and necessary security may include
the placing of keepers on or near the vessel and/or the appointment of a
facility or person to serve as a custodian of the vessel or property.
(c)(3) Procedures for Changing Custody Arrangements. Any party may petition
the Court to dispense with keepers, remove or place the vessel, cargo and/or
other property at a specified facility, designate a substitute custodian for
the vessel or cargo, or for other similar relief. The motion shall
substantially conform in format and content to the form identified as SDF 5 in
the Appendix of these Local Admiralty Rules.
The consent and indemnification agreement shall expressly release the Marshal
from any and all liability and responsibility for the care and custody of the
property while in the hands of the substitute custodian; and shall expressly
hold the Marshal harmless from any and all claims whatsoever arising from the
substitute custodianship. The agreement shall substantially conform in format
and content to the form identified as SDF 6 in the Appendix to these Local
Admiralty Rules.
(3)(C) Court Approval Required. The motion to change custody arrangements, and
indemnification and consent agreement shall be referred to a judicial officer
who shall determine whether the facility or substitute custodian is capable of
safely keeping the vessel, cargo and/or property.
The insurance shall also protect the Marshal and the Marshal's deputies or
agents from any liability arising from performing services undertaken to
protect the vessel, cargo and/or property while that property is in the custody
of the Court.
The party applying for change in custody arrangements shall be responsible for
paying the Marshal for any additional premium associated with the change.
(3)(C) Taxation of Insurance Premiums. The premiums charged for the liability
insurance will be taxed as an expense of custody while the vessel, cargo and/or
property is in custodia legis.
(b)(2) Preservation Expenses for the Vessel and Cargo. The Marshal, or
substitute custodian, is authorized to incur expenses reasonably deemed
necessary in maintaining the vessel, cargo and/or property in custody for the
purpose of preventing the vessel, cargo and/or property from suffering loss or
undue deterioration.
Applications for providing food, water and necessary medical services for the
maintenance of the crew may be submitted, and decided ex parte by a judicial
officer, providing such an application is made by some person other than the
owner, manager or general agent of the vessel.
Such applications must be filed within thirty (30) days from the date of the
vessel's initial seizure. Otherwise, except in the case of an emergency, such
applications shall be filed and served upon all parties, who in turn shall have
tenfourteen (14) days from receipt of the application to file a written
response, beginning on the next calendar day, including Saturday, Sunday, or a
legal holiday.
(e)(5) Claim by a Supplier for Payment of Charges. Any person who claims
payment for furnishing services or supplies in compliance with Local Admiralty
Rule E(11), shall submit an invoice to the Marshal's Office for review and
approval.
The claim shall be presented in the form of a verified claim, and shall be
submitted within a reasonable time after furnishing the services or supplies,
but in no event shall a claim be accepted after the vessel, or property has
been released. The claimant shall file a copy of the verified claim with the
Marshal, and also serve the substitute custodian and all other parties to the
litigation.
The Marshal shall review the claim, make adjustments or recommendations to the
claim as are appropriate, and shall thereafter forward the claim to the Court
for approval. The Court may postpone the hearing on an individual claim until
a hearing can be set to consolidate other claims against the property.
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(12)(l) Property in Incidental Custody and Otherwise Not Subject to the Arrest
or Attachment.
The Marshal or other custodian shall maintain a separate account of all costs
and expenses associated with the care and maintenance of property incidentally
taken into custody.
(13)(m) Dismissal.
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(2) Involuntary Dismissal. If the Court enters a dismissal pursuant to Federal
Rule of Civil Procedure 41(b), the Court shall also designate the costs and
expenses to be paid by the party or parties so dismissed.
(14)(n) Judgments.
(1) Expenses of Sureties as Costs. If costs are awarded to any party, then all
reasonable premiums or expenses paid by the prevailing party on bonds,
stipulations and/or other security shall be taxed as costs in the case.
(2) Costs of Arrest or Attachment. If costs are awarded to any party, then all
reasonable expenses paid by the prevailing party incidental to, or arising from
the arrest or attachment of any vessel, property and/or cargo shall be taxed as
costs in the case.
(a)(1) Automatic Stay for TenFourteen Days. In accordance with Federal Rule
of Civil Procedure 62(a), no execution shall issue upon a judgment, nor shall
seized property be released pursuant to a judgment or dismissal, until
tenfourteen (14) days after the entry of the judgment or order of dismissal.
(b)(2) Stays Beyond the TenFourteen Day Period. If within the tenfourteen (14)
day period established by Federal Rule of Civil Procedure 62(a), a party files
any of the motions contemplated in Federal Rule of Civil Procedure 62(b), or a
notice of appeal, then unless otherwise ordered by the Court, a further stay
shall exist for a period not to exceed thirty (30) days from the entry of the
judgment or order. The purpose of this additional stay is to permit the Court
to consider an application for the establishment of a supersedeas bond and to
order the date upon which the bond shall be filed with the Court.
(a)(1) Payment of the Purchase Price. Unless otherwise provided in the order
of sale, the person whose bid is accepted shall pay the Marshal the purchase
price in the manner provided below;
(1)(A) If the Bid Is Not More Than $500.00. The successful bidder shall
immediately pay the full purchase price.
(2)(B) If the Bid Is More Than $500.00. The bidder shall immediately deposit
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with the Marshal $500.00, or ten percent of the bid, whichever sum is greater.
Thereafter the bidder shall pay the remaining purchase price within three seven
(7) working days.
(c)(3) Custodial Costs Pending Payment. When a successful bidder fails to pay
the balance of the bid within the time allowed by Local Admiralty Rule
E(17)(a)(2)5(q)(1)(B), or within the time permitted by order of the Court, the
Marshal shall charge the successful bidder for the cost of keeping the property
from the date payment of the balance was due, to the date the bidder takes
delivery of the property.
The Marshal may refuse to release the property until these additional charges
have been paid.
(d)(4) Default for Failure to Pay the Balance. The person who fails to pay the
balance of the bid within the time allowed shall be deemed to be in default.
Thereafter a judicial officer may order that the sale be awarded to the second
highest bidder, or may order a new sale as appropriate.
Any sum deposited by the bidder in default shall be forfeited, and the amount
shall be applied by the Marshal to any additional costs incurred because of the
forfeiture and default, including costs incident to resale. The balance of the
deposit, if any, shall be retained in the registry and subject to further order
of the Court.
(e)(5) Marshal's Report of Sale. At the conclusion of the sale, the Marshal
shall file a written report of the sale to include the date of the sale, the
price obtained, and the name and address of the buyer.
In order to confirm the sale, plaintiff's counsel shall file a "Request for
Confirmation of Sale" on the day following the last day for filing an
objection. The "Request for Confirmation of Sale" shall substantially conform
in format and content to the form identified as SDF 10 in the Appendix to these
Local Admiralty Rules. Plaintiff's counsel shall also prepare and offer for
filing a "Confirmation of the Sale." The "Confirmation of Sale" shall
substantially conform in format and content to the form identified as SDF 11 in
the Appendix to these Local Admiralty Rules. Thereafter the Clerk of the Court
shall file and docket the confirmation and shall promptly transmit a certified
copy of the "Confirmation of Sale" to the Marshal's Office.
Unless otherwise ordered by the Court, if the plaintiff fails to timely file
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the "Request for Confirmation of Sale" and proposed "Confirmation of Sale," the
Marshal shall assess any continuing costs or expenses for custody of the vessel
or property against the plaintiff.
(1)(A) Time for Filing Objections. Unless otherwise permitted by the Court, an
objection must be filed within three seven (7) working days following the sale.
The party or person filing an objection shall serve a copy of the objection
upon the Marshal and all other parties to the action, and shall also file a
Certificate of Service indicating the date and manner of service. Opposition
to the objection must be filed within five seven (7) days after receipt of the
objection of the sale.
The Court shall consider the objection, and any opposition to the objection,
and shall confirm the sale, order a new sale, or grant other relief as
appropriate.
If the objection is sustained, the objector will be reimbursed for the expense
of keeping the property from the proceeds of any subsequent sale, and any
remaining deposit will be returned to the objector upon Court order.
If the objection is denied, the sum deposited by the objector will be applied
to pay the fees and expenses incurred by the Marshal in keeping the property
from the date the objection was filed until the sale is confirmed. Any
remaining deposit will be returned to the objector upon order of Court.
Unless otherwise ordered by the Court, any claims filed after the date of the
sale shall be limited to the remnants and surplus arising from the sale.
Effective Dec. 1, 1994. Amended effective April 15, 1998; April 15, 2007.
Advisory Notes
(1993) Local Admiralty Rule E(1). This section continues the provisions of
former Local Rule 7(c).
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Local Admiralty Rule E(2). This section is new. The rules do not require an
intervening plaintiff to undertake the formal steps required to issue the
original process of arrest or attachment pursuant to Local Admiralty Rule B(3)
or C(2); rather the Committee believes that intervening parties need only
apply for supplemental process, which in accordance with the August 1, 1985,
amendments to Supplemental Rule B and C, may be issued by the Clerk of the
Court without further order of the Court. The Committee recommends the
re-arrest or re-attachment provisions of this rule in order to accommodate the
administrative and records keeping requirements of the Marshal's Office.
The revision also reflects the elimination of the initial security deposit
formerly required by Local Admiralty Rule 5(e). The Marshal shall, however,
assess custodial costs against the intervening plaintiff in accordance with
Local Admiralty Rule E(5)(b).
Local Admiralty Rule E(3). This section continues the provisions of former
Local Rule 7(e).
Local Admiralty Rule E(4). This section continues the provisions of former
Local Rule 6.
Local Admiralty Rule E(5). The Marshal, as an officer of the Court whose fiscal
affairs are regulated by statute and order, is precluded by law from expending
funds of the United States to maintain custody of vessels or other property
pursuant to claims being asserted by the several states, any foreign
sovereigns, or any private parties. This prohibition extends to incurring
obligations which, if not satisfied, otherwise might be asserted as a claim
against the United States. Consequently, before undertaking to arrest or
attach property, the Marshal must receive funds in advance of incurring such
obligations sufficient to satisfy them.
Local Admiralty Rule E(6). Section (6) is new. It reflects the approach
embodied in the local rules of those districts which have addressed the
question of properties subject to arrest but already in the possession of an
officer of the United States.
Local Admiralty Rule E(7). The provisions of Section (7) are new. Paragraph
(a), following rules promulgated in other districts, states what is understood
by the Advisory Committee to have been the practice in this District.
Paragraph (b) is designed to mesh the concept of process held in abeyance with
the requirements of Local Admiralty Rule E(2) regarding intervening claims, and
is designed to foreclose the possibility of a vessel or other property being
arrested or attached in the District as a result of more than one civil action.
Since under Local Rule 5(b), the automatic, permissive intervention is not
triggered until the vessel or other property has been arrested, attached or
seized, a suit in rem in which process is held in abeyance will not form the
basis for such an intervention. On the other hand, once the property is
arrested, attached or seized, the issuance of process in the earlier suit would
be destructive of the "only one civil action" concept, and, consequently
paragraph (b) requires a party whose process was held in abeyance to refile as
an intervenor pursuant to Local Admiralty Rule E(2), making provision for the
proper disposition of the earlier action.
Local Admiralty Rule E(8). Section (8) continues the provisions of Local Rule
11.
Local Admiralty Rule E(9). Section (9) is new. The provisions of Section (j)
are expressly authorized by Supplemental Rule E(6) and offer some potential
relief from the automatic operations and other provisions of Supplemental Rule
E regarding security for value and interest. The decision in Industria
Nacional del Papel, C.A. M V Albert F., 730 F.2d 622 (11th Cir. 1984),
indicates that such an application must be made prior to the entry of judgment.
Local Admiralty Rule E(1). Section (10) is new. It is designed to reflect the
actual practice in the District, and follows the rules promulgated in several
other districts. In formulating this Local Admiralty Rule, the Committee
studied Section 6.3 of the "Marshal's Manual," the internal operating guide for
the United States Marshal's Service. Section 10(b) was amended in 1998 to
permit substitute custodians to move arrested vessels, pursuant to an order of
the United States Coast Guard Captain of the Port ("COTP"), without first
obtaining permission from the Court. The change was prompted by instances
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where substitute custodians declined to obey a COTP order to move an arrested
vessel, citing Local Admiralty Rule E(10)(b) and its requirement that Court
permission be first obtained. Any movement of a vessel pursuant to a COTP
order must not take the vessel out of the District. A corresponding change was
made in Form 5, paragraph (5).
Local Admiralty Rule E(11). Section (11) is new. It addresses areas which in
recent litigation in the District have called excessively for interim judicial
administration. While the subject matter is covered in the rules promulgated
in other districts, Section (11) differs from the approach of other districts
in providing for a more positive control of expenses being incurred in
connection with vessels or other property in the custody of the Court, and is
designed to avoid accumulated costs being advanced for the first time well
after having been incurred.
Local Admiralty Rule E(13). Section (13) continues the provisions of former
Local Rule 17(a). It follows Federal Rule of Civil Procedure 41, and addresses
the necessarily greater concern for costs and expenses inherent in the in rem
admiralty procedure.
Local Admiralty Rule E(14). Section (14) continues the provisions of former
Local Rule 13.
Local Admiralty Rule E(15). Section (15) incorporates the provisions of former
Local Rule 14.
Local Admiralty Rule E(16) and (17). The provisions of former Local Rule 4 have
been expanded to provide a standardized procedure governing sales of property,
which procedure the Court, at its option, may utilize, in whole or in part,
thus shortening and simplifying orders related to sales and accompanying
procedures.
Local Admiralty Rule E(18). Consistent with the provision of Local Admiralty
Rule E(2), this section gives express notice of the distinct positions of
claims pre-sale and post-sale.
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
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(1)(a) Publication of the Notice. Immediately upon the commencement of an
action to limit liability pursuant to Supplemental Rule F, plaintiff shall,
without further order of Court, effect publication of the notice in accordance
with the provisions set forth in Supplemental Rule F(4) and Local Admiralty
Rule A(7)1(g).
Upon receipt of the order directing the appraisal, the parties shall have three
seven (7) working days to file a written stipulation to an appraiser. In the
event that the parties do not file a stipulation, the Court shall appoint the
appraiser.
The appraiser shall promptly conduct an appraisal and thereafter file the
appraisal with the Clerk of the Court and serve a copy of the appraisal upon
the moving party and the plaintiff. The appraiser shall also file a
Certificate of Service indicating the date and manner in which service was
perfected.
(4)(d) Objections to the Appraisal. Any party may move to set aside the
appraisal within tenfourteen (14) days following the filing of the appraisal
with the Clerk of the Court.
(5)(e) Fees of the Appraiser. The Court shall establish the fee to be paid the
appraiser. Unless otherwise ordered by the Court, the fee shall be taxed
against the party seeking relief under Supplemental Rule F(7).
Advisory Notes
(1993) Local Admiralty Rule F(1). This section incorporates the publication
provisions of Local Admiralty Rule A(7), and applies them to limitation of
liability actions. The rule provides for the publication of the notice
required by Supplemental Rule F(4) without further order of the Court. The
Advisory Committee believes that this self-executing aspect of the rule will
save judicial time and at the same time will not impair the rights of any party
or claimant.
Local Admiralty Rule F(2). The Advisory Committee determined that filing proof
of publication with the Clerk of the Court was essential in order to establish
an adequate record of the publication.
Local Admiralty Rule F(3). This section continues in substance the provisions
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of former Local Admiralty Rule 10.
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
Pursuant to Supplemental Rule B(1) and Local Admiralty Rule B(3)(a)3(c)(1), the
Clerk of the Court is directed to issue the summons and process of attachment
and garnishment in the above-styled action.
DONE AND ORDERED at _______, Florida, this _______ day of _______, _______.
__________
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
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<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
The complaint in the above-styled case was filed in the _______ Division of
this Court on _______, _______.
DESCRIPTION
You shall also give notice of the attachment and garnishment to every person
required by appropriate Supplemental Rule, Local Admiralty Rule, and the
practices of your office.
CLERK
By: __________
Deputy Clerk
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
SPECIAL NOTICE
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
Pursuant to Supplemental Rule C(1) and Local Admiralty Rule C(2)(a)3(b)(1), the
Clerk of the Court is directed to issue a warrant of arrest and/or summons in
the above-styled action.
DONE AND ORDERED at _______, Florida, this _______ day of _______, _______.
__________
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
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Defendant.<COL><COL>
_________________________<COL><COL>
TO THE UNITED STATES MARSHAL FOR THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
The complaint in the above-styled in rem proceeding was filed in the _______
Division of this Court on _______, _______.
You shall also give notice of the arrest to all persons required by appropriate
Supplemental Rule, Local Admiralty Rule, and the practices of your office.
CLERK
By: __________
Deputy Clerk
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
SPECIAL NOTICE
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
(2) On _______, _______, the Clerk of the Court issued a Warrant of Arrest
against the vessel _______, directing the United States Marshal to take custody
of the vessel, and to retain custody of the vessel pending further order of
this Court.
(3)(a) Subsequent to the issuance of the Warrant of Arrest, the Marshal will
take steps to immediately seize the vessel. Thereafter, continual custody by
the Marshal will require the services of at least one custodian at a cost of at
least $_______ per day. (This paragraph would be applicable only when the
motion for appointment is filed concurrent with the complaint and application
for the warrant of arrest.)
—or—
(3)(b) Pursuant to the previously issued Warrant of Arrest, the Marshal has
already arrested the vessel. Continued custody by the Marshal requires the
services of _______ custodians at a cost of at least $_______ per day. (This
paragraph would be applicable in all cases where the Marshal has previously
arrested the vessel.)
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(4) The vessel is currently berthed at _______, and subject to the approval of
the Court, the substitute custodian is prepared to provide security, wharfage,
and routine services for the safekeeping of the vessel at a cost substantially
less than that presently required by the Marshal. The substitute custodian has
also agreed to continue to provide these services pending further order of this
Court.
(5) The substitute custodian has adequate facilities for the care, maintenance
and security of the vessel. In discharging its obligation to care for, maintain
and secure the vessel, the substitute custodian shall comply with all orders of
the Captain of the Port, United States Coast Guard, including but not limited
to, an order to move the vessel; and any applicable federal, state, and local
laws, regulations and requirements pertaining to vessel and port safety. The
substitute custodian shall advise the Court, the parties to the action, and the
United States Marshal, of any movement of the vessel pursuant to an order of
the Captain of the Port, United States Coast Guard within twenty-four hours of
such vessel movement.
(6) Concurrent with the Court's approval of the Motion for Appointment of the
Substitute Custodian, Plaintiff and the substitute custodian will file a
Consent and Indemnification Agreement in accordance with Local Admiralty Rule
E(10)(c)(2)5(j)(3)(B).
__________
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
Substitute Custodian
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SPECIAL NOTE
Plaintiff's attorney shall also prepare for the Court's signature and
subsequent filing, a proposed order for the Appointment of Substitute
Custodian.
Effective Dec. 1, 1994. Amended effective April 15, 1998; April 15, 2001;
April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
Plaintiff _______, (by the undersigned attorney) and _______, the proposed
Substitute Custodian, hereby expressly release the United States Marshal for
this District, and the United States Marshal's Service, from any and all
liability and responsibility for the care and custody of _______ (describe the
property) while in the hands of _______ (substitute custodian).
Plaintiff and _______ (substitute custodian) also expressly agree to hold the
United States Marshal for this District, and the United States Marshal's
Service, harmless from any and all claims whatsoever arising during the period
of the substitute custodianship.
__________<COL> <COL>__________
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
In accordance with Supplemental Rule C(4) for Certain Admiralty and Maritime
Action of the Federal Rules of Civil Procedure, and Local Admiralty Rule
C(4)(3(d), notice is hereby given of the arrest of _______, in accordance with
a Warrant of Arrest issued on _______, _______.
Pursuant to Supplemental Rule C(6), and Local Admiralty Rule C(6)3(f), any
person having a claim against the vessel and/or property shall file a claim
with the Court not later than tenfourteen (14) days after process has been
effected, and shall file an answer within twenty-one (21) days from the date of
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filing their claim.
__________
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
__________
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
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ORDER DIRECTING THE RELEASE OF A VESSEL OR PROPERTY
IN ACCORDANCE WITH SUPPLEMENTAL RULE (E)(5)
__________
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
(1) Date of Sale: In accordance with the Court's previous Order of Sale,
plaintiff represents that the sale of _______ (describe the property) was
conducted by the United States Marshal on _______, _______.
(2) Last Day for Filing Objections: Pursuant to Local Admiralty Rule
E(17)(g)(1)5(q)(7)(A), the last day for filing objections to the sale was
_______, _______.
(3) Survey of Court Records: Plaintiff has surveyed the docket and records of
this case, and has confirmed that as of _______, _______, there were no
objections to the sale on file with the Clerk of the Court.
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THEREFORE, in light of the facts presented above, plaintiff requests the Clerk
of the Court to enter a Confirmation of Sale and to transmit the confirmation
to the Marshal for processing.
__________
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
"IN ADMIRALTY"
Plaintiff,<COL> <COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
Defendant.<COL><COL>
_________________________<COL><COL>
CONFIRMATION OF SALE
The records in this action indicate that no objection has been filed to the
sale of property conducted by the United States Marshal on _______, _______.
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THEREFORE, in accordance with Local Admiralty Rule E(17)(f)5(q)(6), the sale
shall stand confirmed as of _______, _______.
CLERK
By: __________
Deputy Clerk
Counsel of Record
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
<COL>Plaintiff,
<COL>
<COL>v.
<COL>
<COL>Defendant.
SUMMONS AND PROCESS OF MARITIME ATTACHMENT AND GARNISHMENT THE PRESIDENT OF THE
UNITED STATES OF AMERICA
TO: THE UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF FLORIDA.
GREETING:
WHEREAS, this process is issued pursuant to such prayer and requires that a
garnishee shall serve his answer within twenty-one (21) days after service of
process upon him and requires that a defendant shall serve his answer within
thirty (30) days after process has been executed, whether by attachment of
property or service on the garnishee,
NOW, THEREFORE, you are hereby commanded that if the said defendant cannot be
found within the District you attach goods, chattels, credits and effects
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located and to be found at _______ and described as follows: _______, or in the
hands of _______, the garnishee, up to the amount sued for, to-wit: __________
and how you shall have executed this process, make known to this Court with
your certificate of execution thereof written.
__________
Judge of said Court at _______, Florida, in said District, this _______ day of
_______, _______.
_____________________, CLERK
BY: __________
Deputy Clerk
NOTE: This process is issued pursuant to Rule B(1) of the Supplemental Rules
for Certain Admiralty and Maritime Claims of the Federal Rules of Civil
Procedure.
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
<COL>Plaintiff,
<COL>
<COL>v.
<COL>
<COL>Defendant.
TO ALL PERSONS having control of the freight of the vessel _______ or control
of the proceeds of the sale of said vessel or control of the proceeds of the
sale of any property appurtenant thereto or control of any other intangible
property appurtenant thereto.
The service of this summons upon you brings said property within the control of
the Court.
__________
Judge of said Court at _______, Florida, in said District, this _______ day of
_______, _______.
_____________________, CLERK
BY: __________
Deputy Clerk
Date:
Good cause for shortening the periods required by the foregoing summons having
been shown by affidavit of _______, verified the _______ day of _______,
_______, the period of notice of the appearance in all respects required by the
foregoing summons is hereby fixed as _______ days.
__________
NOTE: This summons is issued pursuant to Rule C(3) of the Supplemental Rules
for Certain Admiralty Maritime Claims of the Federal Rules of Civil Procedure.
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
<COL>Plaintiff,
<COL>
<COL>v.
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<COL>
<COL>Defendant.
AFFIDAVIT
(Foreign Attachment)
As attorney for the above-styled plaintiff, the undersigned does hereby certify
to the Court, the Clerk of the Court and the United States Marshal that the
undersigned has made a diligent search and inquiry to ascertain the name and
address of a person or party upon whom can be served process in personam which
will bind the above-styled defendant.
That based upon such diligent search and inquiry the undersigned has been
unable to ascertain the name and address of any person or party within the
District upon whom service of process would bind said defendant.
The United States Marshal is hereby directed to promptly serve said Writ of
Foreign Attachment upon _______ (name of vessel) which vessel is presently
located at _______.
__________
Firm Name
Street Address
Telephone: (xxx)xxx–xxxx
Facsimile: (xxx)xxx–xxxx
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By: __________
Deputy Clerk
Effective Dec. 1, 1994. Amended effective April 15, 2001; April 15, 2007.
(a) Duties Under Title 28, United States Code, Section 636(a). Each United
States Magistrate Judge of this Court is authorized to perform the duties
prescribed by Title 28, United States Code, Section 636(a), and may—
(1) Exercise all the powers and duties conferred or imposed upon United States
Commissioners by law and the Federal Rules of Criminal Procedure;
(2) Administer oaths and affirmations, impose conditions of release under Title
18, United States Code, Section 3146, and take acknowledgments, affidavits, and
depositions; and
(1) Arraign and try persons accused of, and sentence persons convicted of,
misdemeanors committed within this District in accordance with Title 18, United
States Code, Section 3401 and Federal Rule of Criminal Procedure 58;
(3) Conduct a jury trial in any misdemeanor case where the defendant so
requests and is entitled to trial by jury under the Constitution and laws of
the United States.
(1) A Magistrate Judge may submit to a District Judge of the Court a report
containing proposed findings of fact and recommendations for disposition by the
District Judge of the following pretrial motions in civil and criminal cases:
A.(A) Motions for injunctive relief, including temporary restraining orders and
preliminary and permanent injunctions;
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B.(B) Motions for judgment on the pleadings;
E.(E) Motions to dismiss for failure to state a claim upon which relief may be
granted;
(2) A Magistrate Judge may determine any preliminary matters and conduct any
necessary evidentiary hearing or other proceeding arising in the exercise of
the authority conferred by this subsection.
(e) Prisoner Cases Under Title 28, United States Code, Sections 2254 and 2255.
A Magistrate Judge may perform any or all of the duties imposed upon a District
Judge by the rules governing proceedings in Title 28, United States Code,
Sections 2254 and 2255. In so doing, a Magistrate Judge may issue any
preliminary orders and conduct any necessary evidentiary hearing or other
appropriate proceeding and shall submit to a District Judge a report containing
proposed findings of fact and recommendations for disposition of the petition
by the District Judge. Any order disposing of the petition may only be made by
a District Judge.
(f) Prisoner Cases Under Title 42, United States Code, Section 1983. A
Magistrate Judge may issue any preliminary orders and conduct any necessary
evidentiary hearing or other appropriate proceeding and shall submit to a
District Judge a report containing proposed findings of fact and recommendation
for the disposition of petitions filed by prisoners challenging the conditions
of their confinement.
(h) Conduct of Trials and Disposition of Civil Cases Upon Consent of the
Parties—Title 28, United States Code 636(c). Upon the consent of the parties,
a full-time Magistrate Judge may conduct any or all proceedings in any civil
case which is filed in this Court, including the conduct of a jury or nonjury
trial, and may order the entry of a final judgment, in accordance with Title
28, United States Code 636(c). In the course of conducting such proceedings
upon consent of the parties, a Magistrate Judge may hear and determine any and
all pre-trial and post-trial motions which are filed by the parties, including
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case-dispositive motions.
(3) Conduct arraignments in criminal cases not triable by the Magistrate Judge
and take not guilty pleas in such cases;
(4) Receive grand jury returns in accordance with Federal Rule of Criminal
Procedure 6(f);
(6) Conduct voir dire and select petit juries for the Court;
(7) Accept petit jury verdicts in civil cases in the absence of a District
Judge;
(11) Conduct proceedings for the collection of civil penalties of not more than
$200 assessed under the Federal Boat Safety Act of 1971, in accordance with
Title 46, United States Code, Section 1484(d);
(14) Perform the functions specified in Title 18, United States Code, Sections
4107, 4108 and 4109, regarding proceedings for verification of consent by
offenders to transfer to or from the United States and the appointment of
counsel therein;
(16) Perform any additional duty as is not inconsistent with the Constitution
and laws of the United States.
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Effective Dec. 1, 1994; amended effective April 15, 1998; April 15, 2007.
Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
All civil and criminal cases in this District shall be filed with the Clerk of
the Court and assigned to a District Judge in accordance with Local Rules 1
through 7. Responsibility for the case remains with the District Judge
throughout its duration, except that the District Judge may refer to a
Magistrate Judge any matter within the scope of these Magistrate Judge Rules.
Nothing in these Magistrate Judge Rules shall preclude a District Judge from
reserving any proceeding for conduct by a District Judge rather than a
Magistrate Judge.
(a) In General. In performing duties for the Court, a Magistrate Judge shall
conform to all applicable provisions of federal statutes and rules, to the
general procedural rules of this Court, and to the requirements specified in
any order of reference from a District Judge.
(b) Special Provisions for the Disposition of Civil Cases by a Magistrate Judge
on Consent of the Parties—Title 28, United States Code, Section 636(c).
(1) Notice. The Clerk of the Court shall notify the parties in all civil cases
that they may consent to have a Magistrate Judge conduct any or all proceedings
in the case and order the entry of a final judgment. Such notices shall be
handed or mailed to the plaintiff or his representative at the time an action
is filed and to other parties as attachments to copies of the complaint and
summons, when served. Additional notices may be furnished to the parties at
later stages of the proceedings, and may be included with pretrial notices and
instructions.
(2) Execution of Consent. The Clerk of the Court shall not accept a consent
form unless it has been signed by all the parties in a case. The plaintiff
shall be responsible for securing the execution of a consent form by the
parties and for filing such form with the Clerk of the Court. No consent form
will 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 a Magistrate Judge. No Magistrate Judge, District Judge, or other Court
official may attempt to persuade or induce any party to consent to the
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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 a case to a Magistrate Judge.
(3) References. After the consent form has been executed and filed, the Clerk
of the Court shall transmit it to the District Judge to whom the case has been
assigned for consideration of approval and possible referral of the case to a
Magistrate Judge, by specific order of reference. Once the case has been
assigned to a Magistrate Judge, the Magistrate Judge shall have the authority
to conduct any and all proceedings to which the parties have consented and to
direct the Clerk of the Court to enter a final judgment in the same manner as
if a District Judge had presided.
If a stay is ordered pursuant to this rule, the Clerk of the Court is directed
to obtain the tape recording or cassette immediately after the hearing and
deliver the cassettes or tapes promptly to the appropriate court reporter so
that an expedited transcript can be delivered to the District Judge within
forty-eight hours of the hearing at which the release order is entered. The
United States Attorney's Office is to pay the court reporter's charges.
(c) Special Master Reports—Title 28, United States Code, Section 636(b)(2).
Any party may seek review of, or action on, a special master report filed by a
Magistrate Judge in accordance with the provisions of Federal Rules of Civil
Procedure 53(e).
(d) Appeal From Judgments in Misdemeanor Cases—Title 18, United States Code,
Section 3402 [Deleted]. Replaced by Federal Rule of Criminal Procedure 58.
(e) Appeal From Judgments in Civil Cases Disposed of on Consent of the Parties—
Title 28, United States Code, Section 636(c).
(1) Appeal to the Court of Appeals. Upon the entry of judgment in any civil
case disposed of by a Magistrate Judge on consent of the parties under
authority of Title 28, United States Code, Section 636(c) and subsection 1(h)
of these rules, supra, an aggrieved party shall appeal directly to the United
States Court of Appeals for this Circuit in the same manner as an appeal from
any other judgment of this Court.
(2) Appeal to a District Judge [Deleted]. See Pub.L. No. 104–317 § 207, 110
Stat. 3847 (Oct. 19, 1996) (repealing Title 28, United States Code, Section
636(c)(4) and (5).
Effective Dec. 1, 1994. Amended effective April 15, 1996; April 15, 1997;
April 15, 1998; April 15, 1999; April 15, 2007.
Comments
(1994) Magistrate Judge Rule 4(a) now conforms to language of Title 28, United
States Code, Section 636(b)(1)(A) and Federal Rule of Civil Procedure 72.
(1996) Section (a)(1) prescribes a time within which a party may respond to
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another party's objections to a Magistrate Judge's order on a non-dispositive
motion determined under Title 28, United States Code, Section 636(b)(1)(A).
(1999) Magistrate Judge Rules 4(a)(1) and (b) are amended to impose page
limitations on objections, and responses to objections, to Magistrate Judges'
non-dispositive orders under Title 28, United States Code, Section 636(b)(1)(A)
and reports and recommendations under Title 28, United States Code, Section
636(b)(1)(B)).
MAGISTRATE FORMS
In accordance with the provisions of Title 28, United States Code, Section
636(c), you are hereby notified that the full-time Magistrate Judges of this
District, in addition to their other duties, may, upon the consent of all the
parties in a civil case, conduct any or all proceedings in a civil case,
including a jury or non-jury trial, and order the entry of a final judgment.
Copies of appropriate consent forms for this purpose are available from the
Clerk of the Court.
You should be aware that your decision to consent, or not to consent, to the
referral of your case to a Magistrate Judge for disposition is entirely
voluntary and should be communicated solely to the Clerk of the Court. Only if
all the parties to the case consent to the reference to a Magistrate Judge will
either a District Judge or Magistrate Judge be informed of your decision.
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__________<COL>)<COL>
Plaintiff,<COL>)<COL>
<COL>)<COL>
vs.<COL>)<COL>
__________<COL>)<COL>
Defendant.<COL>)<COL>
__________<COL>)<COL>
In accordance with the provisions of Title 28, United States Code, Section
636(c), the parties to the above-captioned civil matter hereby waive their
right to proceed before a District Judge of this Court and consent to have a
Magistrate Judge conduct any and all further proceedings in the case (including
the trial) and order the entry of judgment.
NOTE: Return this form to the Clerk of the Court only if it has been executed
by all parties to the case.
__________
ORDER OF REFERENCE
__________<COL>__________
Comment
(2006) The form for Consent to Proceed Before a United States Magistrate Judge
is amended to reflect the amendments to Title 28, United States Code, Section
636(c), which eliminated appeals by consent of the parties to District Judges.
Effective Dec. 1, 1994. Amended effective Jan. 1, 1996; April 15, 2002;
April 15, 2006; April 15, 2007.
Comment
Each applicant for admission shall submit a verified petition setting forth the
information specified on the form provided by the Clerk of the Court, together
with an application fee in the amount set by the Court and payable to "U.S.
Courts". A showing of good standing shall be made by The Florida Bar. The
Clerk of the Court shall examine such petition to determine that the applicant
is qualified for admission and upon successful completion of the examination,
the Clerk of the Court shall require the applicant to sign the oath of
admission, receive the admission fee and shall place such applicant on the roll
of attorneys of the bar of this District.
Effective Dec. 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007.
Comment
To remain an attorney in good standing of the bar of this Court, each member
must remain an active attorney in good standing of The Florida Bar,
specifically including compliance with all requirements of the Rules Regulating
The Florida Bar, as promulgated by the Supreme Court of Florida.
Effective Dec. 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007.
Rule 4. Appearances
A.(a) Who May Appear Generally. Except when an limited appearance pro hac vice
is permitted by the Court, only members of the bar of this Court may appear as
attorneys in the Courts of this District. Attorneys residing and practicing
within this District are expected to be members of the bar of this Court.
1.(1) Any attorney who is a member in good standing of the bar of any United
States Court, or of the highest Court of any State or Territory or Insular
Possession of the United States, but is not admitted to practice in the
Southern District of Florida may, upon written application filed by counsel
admitted to practice in this District, be permitted to appear and participate
in a particular case. A certification that the applicant has studied the
lLocal rRules shall accompany the application together with such appearance fee
as may be required by administrative order. If permission to appear pro hac
vice is granted, such limited appearance shall not constitute formal admission
or authorize the attorney to file documents via CM/ECF.
2.(2) Lawyers who are not members of the bar of this Court shall not be
permitted to engage in general practice in this District. For purposes of this
rule, more than three appearances within a 365-day period in separate
representations before the Courts of this District shall be presumed to be a
"general practice." Upon written motion and for good cause shown the Court may
waive or modify this prohibition.
3.(3) The application shall designate a member of the bar of this Court, who
maintains an office in this State for the practice of law and who is authorized
to file through the Court's electronic filing system, with whom the Court and
opposing counsel may readily communicate regarding the conduct of the case,
upon whom filings shall be served, and who shall be required to electronically
file all documents and things that may be filed electronically, and who shall
be responsible for filing documents in compliance with the CM/ECF
Administrative Procedures. See Section 2B of the CM/ECF Administrative
Procedures. The application must be accompanied by a written statement
consenting to the designation, and the address and telephone number of the
named designee. Upon written motion and for good cause shown the Court may
waive or modify the requirements of such designation.
C.(c) Special Appearance Ad Hoc. A member of the bar of this Court acting on
behalf of its Volunteer Lawyers' Project may, upon written motion and by leave
of court, be permitted a special appearance to appear for an individual
proceeding pro se in a civil matter for the sole purpose of assisting in the
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discovery process. If the appearance is permitted, when its purpose has been
completed the attorney shall give notice to the Court, the pro se civil
litigant, and opposing counsel that the specialad hoc appearance is terminated.
Effective Dec. 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007.
Comments
(2007) Allows a member of the bar of this District to appear as local counsel
so long as he or she maintains an office in Florida; limits the number of pro
hac vice (limited) appearances within a year; provides that where limited
appearances have been permitted, all filings are to be made by designated local
counsel as provided for in the Court's electronic filing protocols; amended to
conform to CM/ECF Administrative Procedures, which exclude non-members of the
local bar from filing via CM/ECF, and creates a special appearance category to
facilitate the efforts of the Court's Volunteer Lawyers' Project.
A.(a) Purpose. It is recognized that the Court and the bar have a joint
obligation to improve the level of professional performance in the courtroom.
To this end, the purposes to be accomplished through the Ad Hoc Committee on
Attorney Admissions, Peer Review and Attorney Grievance (the "Committee") are
to determine whether individual attorneys are failing to perform to an adequate
level of competence necessary to protect the interests of their clients, to
establish and administer a remedial program designed to raise the competence of
an attorney who is not performing adequately, to refer such attorneys to
appropriate institutions and professional personnel for assistance in raising
his or her level of competency, to determine through evaluation, testing or
other appropriate means whether an attorney who has been referred for
assistance has attained an adequate level of competency, and to report to the
Court any attorney who refuses to cooperate by participating in a remedial
program to raise his or her level of competence, or fails to achieve an
adequate level of competence within a reasonable time.
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1.(1) Referral. Any District Judge, Magistrate Judge, or Bankruptcy Judge
shall refer in writing to the Committee the name of any attorney he or she has
observed practicing law in a manner which raises a significant question as to
the adequacy of such attorney's ability to represent clients in a competent
manner. The referral shall be accompanied by a statement of the reasons why
such question is raised.
3.(3) Remedial Action. If the Initial Screening Committee deems that the
matter warrants further action, it shall so advise the Chairman who shall then
cause a Review Committee to be selected consisting of three members (other than
those who served on the Initial Screening Committee). The Review Committee may
pursue such inquiries as it deems appropriate and may recommend to the attorney
that the attorney take steps to improve the quality of the attorney's
professional performance and if so the nature of the recommended action
designed to effect such improvement. The attorney shall be advised of any such
recommendation in writing and be given the opportunity to respond thereto, to
seek revision or revocation of the recommendation or to suggest alternatives
thereto. The Review Committee after receiving such response may modify, amend,
revoke or adhere to its original recommendation and shall notify the attorney
of its final recommendation. Any attorney who takes exception to the proposed
Review Committee's final recommendation shall have the right to have it
considered by the full Committee. Any recommendation finally promulgated shall
be entered in the records of the Committee. The Committee may develop an
appropriate remedial program, including, but not limited to, mandatory
participation in continuing legal education programs and participation in group
and individual study programs. The Committee may monitor the attorney's
progress in following the remedial program developed for him or her. If the
attorney's lack of competency relates to drug or alcohol abuse, the Committee
may require the attorney to seek treatment for that condition and require the
attorney to submit periodic reports from the individuals responsible for such
treatment.
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Effective Dec. 1, 1994. Amended effective April 15, 2000; April 15, 2002;
April 15, 2007.
Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
3.(3) have knowledge of the Federal Rules of Civil and Criminal Procedure and
of Evidence, and the Code of Professional Responsibility;
4.(4) be enrolled for credit in a law school clinical program which has been
certified by the Court;
5.(5) be certified by the dean of the law school, or the dean's designee, as
being of good character and sufficient legal ability, and as being adequately
trained, in accordance with paragraphs (1)–(4) above, to fulfill his or her
other responsibilities as a legal intern to both his or her client and the
Court;
7.(7) neither ask for nor receive any compensation or remuneration of any kind
for his or her services from the person on whose behalf he or she renders
services, but this shall not prevent a lawyer, legal aid bureau, law school,
public defender agency, or the state from paying compensation to the eligible
law student (nor shall it prevent any agency from making such charges for its
services as it may otherwise properly require).
1.(1) must be a law school clinical practice program for credit, in which a law
student obtains academic and practice advocacy training, under supervision of
qualified attorneys including federal or state government attorneys or private
petitioners;
5.(5) must arrange for the designation and maintenance of an office in this
District to which may be sent all notices which the Court may from time to time
have occasion or need to send in connection with this Rule or any legal
representation provided pursuant to this Rule.
5.(5) co-sign all pleadings or other documents filed with this Court;
7.(7) assist the student in his preparation to the extent the supervising
attorney considers it necessary.
1.(1) Students.
2.(2) Program.
(a)(A) Certification of a program by the Court shall be filed with the Clerk of
the Court and shall remain in effect indefinitely unless withdrawn by the
Court;
(d)(D) Any Judge of this Court retains the authority to withdraw or limit a
supervising attorney's participation in any individual case before the Judge.
F. (f) Activities.
1.(1) An eligible law student may appear in this Court on behalf of any
indigent person if the person on whose behalf he or she is appearing has
indicated in writing his or her consent to that appearance and the supervising
attorney has also indicated in writing approval of that appearance.
2.(2) An eligible law student may also appear in any criminal matter on behalf
of the government with the written approval of the prosecuting attorney or his
or her authorized representative and of the supervising attorney.
3.(3) An eligible law student may also appear in this Court in any civil matter
on behalf of the government, with the written approval of the attorney
representing that entity.
4.(4) In each case, the written consent and approval referred to above shall be
filed in the record of the case and shall be brought to the attention of the
Judge.
5.(5) The Board of Governors of The Florida Bar shall fix the standards by
which indigency is determined under this Rule upon the recommendation of the
largest voluntary bar association located in the state judicial circuit in
which this program is implemented.
(d)(D) each document or pleading must contain the name of the eligible law
student who has participated in drafting it. If he or she participated in
drafting only a portion of it, that fact may be mentioned.
G.(g) Court Administration. The Chief Judge, or one or more members of the
Court appointed by the Chief Judge, shall act on behalf of the Court in
connection with any function of this Court under this Rule. The Ad Hoc
Committee on Attorney Admissions, Peer Review and Attorney Grievance shall
assist the Court to administer this Rule including the review of applications
and continuing eligibility for certification of programs, supervising
attorneys, and students.
Effective Dec. 1, 1994. Amended effective April 15, 1996; April 15, 2002;
April 15, 2007.
Comments
(1996) [D.2.] Deletion of reference to Trial Bar to conform to new Local Rules
1 through 4 of the Special Rules Governing the Admission and Practice of
Attorneys, effective January 1, 1996.
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
Effective Dec. 1, 1994. Amended effective April 15, 1996; April 15, 2002;
April 15, 2007.
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Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
These Rules shall become effective and shall apply to all members of and
applicants for admission to the bar as of January 1, 1996.
Comment
Prefatory Statement
Nothing contained in these Rules shall be construed to deny the Court its
inherent power to maintain control over the proceedings conducted before it nor
to deny the Court those powers derived from statute, rule or procedure, or
other rules of court. When alleged attorney misconduct is brought to the
attention of the Court, whether by a Judge of the Court, any lawyer admitted to
practice before the Court, any officer or employee of the Court, or otherwise,
the Court may, in its discretion, dispose of the matter through the use of its
inherent, statutory, or other powers; refer the matter to an appropriate state
bar agency for investigation and disposition; refer the matter to the Ad Hoc
Committee on Attorney Admissions, Peer Review and Attorney Grievance as
hereinafter defined; or take any other action the Court deems appropriate.
These procedures are not mutually exclusive.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15, 2007.
Source
Comments
(1993) The new Rules are intended to substitute for the existing Rules of
Disciplinary Enforcement and Rules of Grievance Committee in their entirety.
(1996) These Rules have been amended to delete references to the Code of
Professional Responsibility, and to correctly identify the Rules of
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Professional Conduct, Chapter 4 of the Rules Regulating The Florida Bar.
A.(a) Acts and omissions by an attorney admitted to practice before this Court,
individually or in concert with any other person or persons, which violate the
Rules of Professional Conduct, Chapter 4 of the Rules Regulating The Florida
Bar shall constitute misconduct and shall be grounds for discipline, whether or
not the act or omission occurred in the course of an attorney/client
relationship. Attorneys practicing before this Court shall be governed by this
Court's Local Rules, by the Rules of Professional Conduct, as amended from time
to time, and, to the extent not inconsistent with the preceding, the American
Bar Association Model Rules of Professional Conduct, except as otherwise
provided by specific Rule of this Court. [Attorneys practicing before the
Court of Appeals shall be governed by that Court's Local Rules and the American
Bar Association Model Rules of Professional Conduct, except as otherwise
provided by Rule of the Court].
B.(b) Discipline for misconduct defined in these Rules may consist of (a1)
disbarment, (b2) suspension, (c3) reprimand, (d4) monetary sanctions, (e5)
removal from this Court's roster of attorneys eligible for practice before this
Court, or (f6) any other sanction the Court may deem appropriate.
Effective Dec. 1, 1994. Amended effective April 15, 1996; April 15, 2007.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
Rule II2. Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney
Grievance
B.(b) Purpose and Function. The purpose and function of the Committee is to
conduct, upon referral by the Court, a District Judge, Magistrate Judge or
Bankruptcy Judge of the Court, investigations of alleged misconduct of any
member of the Bar of this Court, or any attorney appearing and participating in
any proceeding before the Court; to conduct, upon referral by the Court, a
District Judge, Magistrate Judge or Bankruptcy Judge of the Court, inquiries
and investigations into allegations of inadequate performance by an attorney
practicing before the Court, as hereinafter provided; to conduct and preside
over disciplinary hearings when appropriate and as hereinafter provided; and
to submit written findings and recommendations to the Court or referring
District Judge, Magistrate Judge or Bankruptcy Judge for appropriate action by
the Court, except as otherwise described herein. The members of the Committee,
while serving in their official capacities, shall be considered to be
representatives of and acting under the powers and immunities of the Court, and
shall enjoy all such immunities while acting in good faith and in their
official capacities.
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C.(c) Jurisdiction and Powers.
(1) The Court may, in its discretion, refer to the Committee any accusation or
evidence of misconduct by way of violation of the disciplinary rules on the
part of any member of the bar with respect to any professional matter before
this Court for such investigation, hearing, and report as the Court deems
advisable. [The Court of Appeals may, in addition to or instead of referring a
disciplinary matter to its own Grievance Committee, refer a complaint to the
Chief Judge of a District Court for referral to the District Court's
Committee.] The Committee may, in its discretion, refer such matters to an
appropriate state bar for preliminary investigation, or may request the Court
to appoint special counsel to assist in or exclusively conduct such
proceedings, as hereinafter provided in these Rules. (See Rule XI11, infra.)
The Court may also, in its discretion, refer to the Committee any matter
concerning an attorney's failure to maintain an adequate level of competency in
his or her practice before this Court, as hereinafter provided. (See Rule
VIII8, infra.) The Committee may under no circumstances initiate and
investigate such matters without prior referral by the Court.
(2) The Committee shall be vested with such powers as are necessary to conduct
the proper and expeditious disposition of any matter referred by the Court,
including the power to compel the attendance of witnesses, to take or cause to
be taken the deposition of any witnesses, and to order the production of books,
records, or other documentary evidence, and those powers described elsewhere in
these Rules. The Chairman, or in his or her absence each member of the
Committee, has the power to administer oaths and affirmations to witnesses.
Effective Dec. 1, 1994. Amended effective April 15, 2000; April 15, 2002;
April 15, 2007.
Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
B.(b) Should the Committee conclude, after investigation and review, that a
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formal disciplinary proceeding should not be initiated against an attorney
because sufficient evidence is not present or for any other valid reason, the
Committee shall file with the Court a recommendation for disposition of the
matter, whether by dismissal, admonition, deferral, or any other action. In
cases of dismissal, the attorney who is the subject of the investigation need
not be notified that a complaint has been submitted or of its ultimate
disposition. All investigative reports, records, and recommendations generated
by or on behalf of the Committee under such circumstances shall remain strictly
confidential.
E.(e) Upon receipt of the Committee's finding that misconduct occurred, the
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Court shall issue an order requiring the attorney to show cause why the
Committee's recommendation should not be adopted by the Court. The Court may,
after considering the attorney's response, by majority vote of the active
District Judges thereof, adopt, modify, or reject the Committee's findings that
misconduct occurred, and may either impose those sanctions recommended by the
Committee or fashion whatever penalties provided by the rules which it deems
appropriate.
Effective Dec. 1, 1994. Amended effective April 15, 2000; April 15, 2002;
April 15, 2007.
Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
A.(a) Upon the filing with this Court of a certified copy of a judgment of
conviction demonstrating that any attorney admitted to practice before the
Court has been convicted in any court of the United States, or the District of
Columbia, or of any state, territory, commonwealth, or possession of the United
States of any serious crime as herein defined, the Court shall enter an order
immediately suspending that attorney, whether the conviction resulted from a
plea of guilty, nolo contendere, verdict after trial, or otherwise, and
regardless of the pendency of any appeal. The suspension so ordered shall
remain in effect until final disposition of the disciplinary proceedings to be
commenced upon such conviction. A copy of such order shall be immediately
served upon the attorney. Upon good cause shown, the Court may set aside such
order when it appears in the interest of justice to do so.
B.(b) The term "serious" crime shall include any felony and any lesser crime a
necessary element of which, as determined by the statutory or common law
definition of such crime in the jurisdiction in which it was entered, involves
false swearing, misrepresentation, fraud, deceit, bribery, extortion,
misappropriation, theft, or the use of dishonesty, or an attempt, conspiracy,
or solicitation of another to commit a "serious crime."
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until all appeals from the conviction are concluded.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15, 2007.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
A.(a) An attorney admitted to practice before this Court shall, upon being
subjected to suspension or disbarment by a court of any state, territory,
commonwealth, or possession of the United States, or upon being subject to any
form of public discipline, including but not limited to suspension or
disbarment, by any other court of the United States or the District of
Columbia, promptly inform the Clerk of the Court of such action.
1.(1) A copy of the judgment or order from the other court, and
2.(2) An order to show cause directing that the attorney inform this Court,
within thirty (30) days after service of that order upon the attorney, of any
claim by the attorney predicated upon the grounds set forth in subsection E,
supra, that the imposition of identical discipline by the Court would be
unwarranted and the reasons therefor.
C.(c) In the event that the discipline imposed in the other jurisdiction has
been stayed there, any reciprocal disciplinary proceedings instituted or
discipline imposed in this Court shall be deferred until such stay expires.
D.(d) After consideration of the response called for by the order issued
pursuant to subsection B, supra, or after expiration of the time specified in
that order, the Court may impose the identical discipline or may impose any
other sanction the Court may deem appropriate.
E.(e) A final adjudication in another court that an attorney has been guilty of
misconduct shall establish conclusively the misconduct for purpose of a
disciplinary proceeding in this Court, unless the attorney demonstrates and the
Court is satisfied that upon the face of the record upon which the discipline
in another jurisdiction is predicated it clearly appears that:
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1.(1) the procedure in that other jurisdiction was so lacking in notice or
opportunity to be heard as to constitute a deprivation of due process; or
3.(3) the imposition of the same discipline by this Court would result in grave
injustice; or
F.(f) This Court may at any stage ask the Committee to conduct disciplinary
proceedings or to make recommendations to the Court for appropriate action in
light of the imposition of professional discipline by another court.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15, 2007.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
A.(a) Any attorney admitted to practice before this Court shall, upon being
disbarred on consent or resigning from any other bar while an investigation
into allegations of misconduct is pending, promptly inform the Clerk of the
Court of such disbarment on consent or resignation.
B.(b) An attorney admitted to practice before this Court who shall be disbarred
on consent or resign from the bar of any other court of the United States or
the District of Columbia, or from the bar of any state, territory,
commonwealth, or possession of the United States while an investigation into
allegations of misconduct is pending shall, upon the filing with this Court of
a certified copy of the judgment or order accepting such disbarment on consent
or resignation, cease to be permitted to practice before this Court and be
stricken from the roll of attorneys admitted to practice before this Court.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
A.(a) Any attorney admitted to practice before this Court who is the subject of
an investigation into, or a pending proceeding involving, allegations of
misconduct may consent to disbarment, but only by delivering to this Court an
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affidavit stating that the attorney desires to consent to disbarment and that:
1.(1) the attorney's consent is freely and voluntarily rendered; the attorney
is not being subjected to coercion or duress; the attorney is fully aware of
the implications of so consenting;
3.(3) the attorney acknowledges that the material facts so alleged are true;
and
4.(4) the attorney so consents because the attorney knows that if charges were
predicated upon the matters under investigation, or if the proceeding were
prosecuted, the attorney could not successfully defend himself.
B.(b) Upon receipt of the required affidavit, this Court shall enter an order
disbarring the attorney.
C.(c) The order disbarring the attorney on consent shall be a matter of public
record. However, the affidavit required pursuant to the provisions of this
Rule shall not be publicly disclosed or made available for use in any other
proceeding except upon order of this Court.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
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C.(c) If after meeting with the attorney and conducting its preliminary
inquiries the Committee deems the matter warrants further action, it may
recommend to the attorney that the attorney take steps to improve the quality
of his or her professional performance and shall specify the nature of the
recommended action designed to effect such improvement. The attorney shall be
advised of any such recommendation in writing and be given the opportunity to
respond thereto, to seek review or revocation of the recommendation, or to
suggest alternatives thereto. The Committee may, after receiving such
response, modify, amend, revoke, or adhere to its original recommendation. If
the attorney agrees to comply with the Committee's final recommendation, the
Committee shall report to the referring Judge that the matter has been resolved
by the consent of the affected attorney. The Committee may monitor the
affected attorney's compliance with its recommendation and may request the
assistance of the Court in ensuring that the attorney is complying with the
final recommendation.
D.(d) If the Committee finds that there is a substantial likelihood that the
affected attorney's continued practice of law may result in serious harm to the
attorney's clients pending completion of the remedial program, it may recommend
that the Court consider limiting or otherwise imposing appropriate restrictions
on the attorney's continuing practice before the Court. The Court may take any
action which it deems appropriate to effectuate the Committee's recommendation.
E.(e) Any attorney who takes exception with the Committee's final
recommendation shall have the right to have the Court, consisting of the active
Judges thereof, consider the recommendation and the response of the affected
attorney. The Court may, after considering the attorney's response, by
majority vote of the active Judges thereof, adopt, modify, or reject the
Committee's recommendations as to the necessary remedial actions and may take
whatever actions it deems appropriate to ensure the attorney's compliance.
G.(g) Nothing contained herein and no action taken hereunder shall be construed
to interfere with or substitute for any procedure relating to the discipline of
any attorney as elsewhere provided in these Rules. Any disciplinary actions
relating to the inadequacy of an attorney's performance shall occur apart from
the proceedings of the Committee in accordance with law and as directed by the
Court.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15, 2007.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
F.(f) Deposit for Costs of Proceeding. Petitions for reinstatement under this
Rule shall be accompanied by a deposit in an amount to be set from time to time
by the Court in consultation with the Committee to cover anticipated costs of
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the reinstatement proceeding.
Effective Dec. 1, 1994. Amended effective April 15, 2002; April 15, 2006;
April 15, 2007.
Comments
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
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A.(a) Upon being informed that an attorney admitted to practice before this
Court has been convicted of any crime, the Clerk of the Court shall determine
whether the court in which such conviction occurred has forwarded a certificate
of such conviction to this Court. If a certificate has not been so forwarded,
the Clerk of the Court shall promptly obtain a certificate and file it with
this Court.
B.(b) Upon being informed that an attorney admitted to practice before this
Court has been subjected to discipline by another court, the Clerk of the Court
shall determine whether a certified or exemplified copy of the disciplinary
judgment or order has been filed with this Court, and, if not, the Clerk of the
Court shall promptly obtain a certified or exemplified copy of the disciplinary
judgment or order and file it with this Court.
C.(c) Whenever it appears that any person who has been convicted of any crime
or disbarred or suspended or censured or disbarred on consent by this Court is
admitted to practice law in any other jurisdiction or before any other court,
this Court shall, within ten fourteen (14) days of that conviction, disbarment,
suspension, censure, or disbarment on consent, transmit to the disciplinary
authority in such other jurisdiction, or for such other court, a certificate of
the conviction or a certified or exemplified copy of the judgment or order of
disbarment, suspension, censure, or disbarment on consent, as well as the last
known office and residence addresses of the disciplined attorney.
D.(d) The Clerk of the Court shall, likewise, promptly notify the National
Discipline Bank operated by the American Bar Association of any order imposing
public discipline on any attorney admitted to practice before this Court.
Comment
(2010) Amended to conform tabulation to the style used in the federal rules
of procedure.
SECTION 1. INTRODUCTION
1A. Terms.
CM/ECF: the federal judiciary's electronic case filing system known as Case
Management/Electronic Case Filing (see our website).
Conventional Manner: the manner used for filing documents (e.g., in person or
by U.S. mail) prior to the implementation of e-filing and CM/ECF.
Judge: a United States District Judge or Magistrate Judge for the Southern
District of Florida.
User(s): anyone (including attorneys, the Court, and the Clerk of the Court)
who is authorized to use the CM/ECF system in the Southern District of Florida.
1B. The Electronic Record and the Authorization for Electronic Filing. In
1996, the Southern District of Florida began to convert its paper Court files
into an electronic format, while continuing to maintain the paper file as the
official record. Though the file was converted to an electronic format once
received by the Clerk's Office, the filing itself was still accomplished in the
conventional manner, creating parallel paper and electronic records. By 2002,
technology had advanced to the point that Administrative Order 2002–36
authorized attorneys in this District to use an optional electronic filing
system developed by local staff; however, both electronic and paper records
continued to be maintained for all cases.
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The evolutionary process has continued, and, in conjunction with Federal Rule
of Civil Procedure 5(e) and Federal Rule of Criminal Procedure 57, the
electronic filing system known as CM/ECF has been designated for use nationwide
by the United States Courts.
2B. Attorneys Making Limited Appearances (Pro Hac Vice). An attorney who has
been permitted to make a limited appearance (i.e., admitted pro hac vice) will
not be permitted to register as a User in this District, but may access the
electronic record through the PACER System (see Section 7B). With the
exception of the original motion to make a limited appearance, attorneys so
admitted will be required to electronically file all documents through their
local counsel (who must be associated with the case pursuant to Local Rule 4.B
of the Rules Governing the Admission and Practice of Attorneys). A motion to
make a limited appearance must be filed in the conventional manner along with
the applicable filing fee.
Although attorneys admitted pro hac vice will not be permitted to file
electronically, they will be able to electronically receive Notices of
Electronic Filing. Such requests should be included in motions to appear pro
hac vice and in the accompanying proposed order. E–mail addresses must be
provided in both the motion and proposed order in order to receive electronic
notices.
3C. Login and Password. Each User will be issued one login and password. When
a User files a document electronically using his/her login and password, that
document shall be considered signed by the attorney to whom the login and
password were issued for purposes of the Local Rules and Federal Rules of Civil
Procedure and Federal Rules of Criminal Procedure, including Rule 11 of the
Federal Rules of Civil Procedure. After registering, Users may change their
passwords.
Users shall be responsible for all documents filed with their passwords,
whether by Users or any other person.
3D. Changes of Address and Contact Information. Users shall maintain current
contact information (Administrative Order 2005–38). Upon the change of a
User's e-mail address, mailing address, telephone or fax number, the User shall
complete the following within five business days:
• Update the User's e–mail address in CM/ECF Maintain User Account; and
• Update the User's mailing address, telephone and fax numbers in CM/ECF
Maintain User Account. If the system does not allow the User to update the
mailing address, the Attorney Admissions Clerk will update the information upon
the filing of a Notice of Change of Address in all the User's pending cases.
3E. Government Attorneys Who Leave Government Agencies. Upon request, CM/ECF
logins/passwords are issued to attorneys employed by government agencies. Upon
transfer to different government agencies, Users must fax notification to the
Attorney Admissions Clerk and include updated U.S. mail and e-mail addresses in
order for their logins/passwords to remain valid. Users who leave government
agencies and do not transfer to other government agencies must fax notification
to the Attorney Admissions Clerk so that their logins/passwords may be
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deactivated. Users associated with government agencies who leave government
practice must already be or become members of the Bar of the Southern District
of Florida in order to register for CM/ECF logins/passwords.
Government agencies must also notify the Attorney Admissions Clerk when Users
leave their agencies. A notice of substitution of counsel must be filed in
order for a government agency to receive future CM/ECF notices regarding case
activity associated with a User who is no longer with their agency.
3F. Changes of Name. Requests for name changes must be made in writing and
forwarded to the Attorney Admissions Clerk. In order for the Clerk's Office to
process a name change request, the request must be accompanied by a copy of a
name change order from the Supreme Court of Florida. In the absence of such an
order, a name change request will not be processed and a User must continue to
file under the name listed on the roll of attorneys of the Bar of the Southern
District of Florida. Further, if the name change order is not submitted,
Attorney Admissions may be unable to verify that a User is listed on the roll
of attorneys.
• PDF reader software, such as Adobe, which may be obtained free of charge from
the Adobe website or the Court's website. Users may find it useful to purchase
PDF writer software which has additional features for creating, editing, and
saving PDF's. Various companies market PDF writer software and the cost and
features vary;
(3) Size Limitation for Any Electronically–Filed Document. CM/ECF will inform
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Users if they are attempting to file a document larger than five megabytes (5
MB). Any document over this size will be rejected by the system due to its
inability to upload/download properly; thus, the document must be saved and
transmitted in segments not exceeding five megabytes. Please contact the Help
Desk if further instruction is needed.
(4) Hyperlinks. Pursuant to the policy set forth in Rule 13 of the Model Local
Rules for Electronic Case Filing, endorsed by the Judicial Conference in
October 2005, a hyperlink contained in a filing is no more than a convenient
mechanism for accessing material cited in a document. A hyperlink reference is
extraneous to any filed document and is not part of the Court's record. In
order to preserve the integrity of the Court record, Users wishing to insert
hyperlinks in Court filings shall continue to use the conventional citation
method for the cited authority, in addition to the hyperlink.
(2) Abolishment of the Nightbox Policy. With the implementation of CM/ECF the
Court's nightbox policy, as provided for in Administrative Order 2003–10, will
be abolished. Electronic documents will be considered "filed" as stated above
in 3G(1). Documents filed in the conventional manner will be considered
"filed" on the date they are physically received by the Court.
(3) Court CM/ECF System Hours and Help Desk Information. CM/ECF is designed to
provide system access 24 hours a day; however, parties are encouraged to file
documents in advance of filing deadlines and during normal business hours.
Users may access the CM/ECF Help Desk either by telephone, 1–888–318–2260, or
in person. The Help Desk will respond to questions regarding the electronic
filing system and registration process. Please refer to the Help Desk website
for further information.
The outage notice will inform Users of the expected duration of the outage and
will provide alternative filing instructions if the outage is of such a nature
to cause alternative filing to be necessary. Generally, alternative filing
instructions will advise Users to file in the conventional manner on the same
day. Should Users be instructed to file in the conventional manner, the
conventional filing must be accompanied by Form A (attached hereto). In the
event that conventional filing is required, such filings may be delivered to
any courthouse in the District, with the exception of emergency matters.
Emergency motions and hearings must be filed conventionally in the division
where the Judge is chambered (see Section 5F).
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In the unlikely event that a technical failure occurs after regular business
hours on the day a User's filing is due or a filing is otherwise made untimely
as a result of a CM/ECF technical failure, Users may have to seek relief from
the Court. Users are cautioned that in some circumstances, the Court lacks the
authority to grant an extension of time to file (see, e.g., Rule 6(b) of the
Federal Rules of Civil Procedure); thus Users are strongly encouraged to file
documents in advance of filing deadlines and during regular business hours.
(7) Additional User Information. Additional information for using CM/ECF can
be found on the Court's website at www.flsd.uscourts.gov/cmecf/.
(2) Documents that Include Personal Identifiers. See Section 6 for special
requirements for filing documents that contain personal data identifiers.
(5) Mediation. A request for the Clerk of Court to appoint a mediator pursuant
to Local Rule 16.2.D.1(b) shall be submitted electronically as a "Request for
Clerk to Appoint Mediator". This request category may be found on the CM/ECF
website, under "Civil," "Other Filings," "Mediation Documents." Such a request
shall not be filed as a motion.
Users will submit the final version of the proposed document by e-mail in
WordPerfect or Word format. The e–mail subject line and the name of the
attachment should include the case number, followed by a short description of
the attachment (e.g., 05–cv–20534 Order). The following e-mail addresses are
to be used only to submit documents as described above unless otherwise
specifically permitted by the Judge.
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>o'[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
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<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>[email protected]
<COL>[email protected]<COL>
<COL>[email protected]<COL>
<COL>[email protected]<COL>
<COL>[email protected]<COL>
<COL>[email protected]<COL>
s/Pat T. Lawyer Pat T. Lawyer (Florida Bar Number: 12345) Attorney E–mail
address: [email protected] XYZ Law Firm 123 Main Street Miami, Florida 33128
Telephone: (305) 123–4567 Facsimile: (786) 123–4567 Attorneys for
Plaintiff/Defendant [Party Name(s)]
(2) Notices of Electronic Filing and "One Free Look". If the recipient is a
User or otherwise authorized to electronically receive Notices of Electronic
Filing (e.g., a pro hac vice attorney), CM/ECF will produce a Notice of
Electronic Filing for that party and it shall be the equivalent of service by
U.S. mail. The Notice of Electronic Filing will contain a hyperlink to the
document in PACER. Under the condition set forth in the paragraph below,
recipients of Notices of Electronic filing will be allowed one "free look" at
the document and may view, print, or download it. After the one "free look,"
normal PACER usage fees apply. (CAUTION: double clicking the hyperlink
instead of single clicking it will use up the one "free look.")
Only Users who are listed as active attorneys on a particular case, will
receive Notices of Electronic Filing (at both their primary and secondary
e-mail addresses) that contain hyperlinks allowing them one free look at
documents filed in that case. Users who have tagged cases on which they are
not listed as active attorneys but for which they, nevertheless, wish to
receive Notices of Electronic Filing, will also receive Notices of Electronic
Filing (at both their primary and secondary e-mail addresses) that contain
hyperlinks allowing them to view documents filed in the cases tagged. CAUTION:
Users who are not listed as active attorneys on cases for which they have
chosen to receive Notices of Electronic Filing will automatically incur PACER
charges by clicking on the hyperlink. Regular PACER usage fees will apply.
(3) Service and Notice of Electronic Filing for Parties Who Are Not Authorized
to Electronically Receive Notices of Electronic Filing. A party who is not a
User or is not otherwise authorized to electronically receive Notices of
Electronic Filing is entitled to a paper copy of any electronically-filed
document. It is the responsibility of the filing party to provide the party
with the electronically-filed document according to the Federal Rules of Civil
Procedure. When mailing paper copies of documents that have been
electronically filed, the filing party must include the Notice of Electronic
Filing to provide the recipient with proof of the filing.
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(4) Certificates of Service. A certificate of service on all parties entitled
to service or notice is still required when a party files a document
electronically. The certificate must state the manner in which service or
notice was accomplished on each party. A model form (Form B) is attached
hereto.
Federal Rule of Civil Procedure 6(e) for service by mail shall also apply to
service by electronic means. Attorneys should be aware that response and reply
deadlines which appear in docket text or deadline queries are for Court use
only.
(5) Notices of Electronic Filing Are Not Sent to Terminated Attorneys. A User
who is terminated as an attorney on a case in the Southern District of Florida
will not receive notices regarding future case activity; however, Users will
continue to receive NEFs after cases are closed as long as they have not been
terminated as attorneys on the closed cases. This affects notices to Users who
receive notices electronically and to attorneys who receive notices through the
U.S. mail.
Users who want to continue receiving electronic notices in a case after they
have been terminated must take the following steps:
• Press Submit.
(2) Correcting Docket Entries. CM/ECF will not permit the filing party to make
changes to a document or docket entry once the transaction has been accepted.
A document filed incorrectly may be the result of posting the wrong PDF file to
a docket entry, selecting the wrong document type from the menu, or entering
the wrong case number and not catching the error before the transaction is
completed. If a User makes an error during the filing process, the User should
contact the CM/ECF Help Desk, 1–888–318–2260, as soon as possible with the case
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number and document number for which the correction is being requested. If
appropriate, the Clerk's Office will make an entry indicating the document was
filed in error. The filing party will be advised if the document needs to be
re-filed.
An attorney who is a registered User may apply to the Judge for permission to
file documents in the conventional manner in a specific case upon a showing of
good cause. Documents filed in the conventional manner must be accompanied by
Form A (attached hereto). Even though a Judge may initially grant an attorney
permission to file documents in the conventional manner, the Judge may withdraw
that permission at any time during the pendency of a case and require that the
attorney file documents using CM/ECF.
5A. Documents Filed under Seal. Attorneys are prohibited from filing sealed
documents electronically. Sealed documents shall be filed in the conventional
paper format accompanied by a motion to seal, a sealed document tracking form,
and copies for the Judge as described in Local Rule 5.4.
A case filed under seal shall be maintained in the electronic filing system for
indexing purposes. Documents filed under seal will not be available for
inspection by case participants or the public. Litigants must serve a notice
of filing upon all other parties by conventional means and must file such
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notice with the sealed document. For complete procedures for filing under
seal, see Local Rule 5.4.B.
(2) Filing and Uploading of Civil Complaints—Time and Date. A complaint will
be filed by the Clerk's Office on the same day it is received. A complaint
received before 2:00 p.m. will normally be available for viewing on CM/ECF the
same day while those received between 2:00 p.m. and close of business will
normally be available for viewing in CM/ECF no later than 12:00 noon on the
next business day.
5D. E–mail Option for Certain Civil Documents Not Requiring a Filing Fee. The
following civil initiating documents, which do not require a filing fee, may be
filed in the conventional manner or may be sent by e-mail: recovery of student
loan, bankruptcy appeal, bankruptcy withdrawal of reference, recovery of
veteran's benefits, and appointment of receiver. These documents will be filed
by the Clerk's Office on the same day as they are received, whether submitted
conventionally or by e-mail. If sent by e-mail, such documents must be in PDF
format and sent to [email protected]. The filing party will receive a
return e-mail indicating the case number and Judge. All civil initiating
documents must be accompanied by a civil cover sheet (JS44). Initiating
documents not listed above, must be filed in the conventional manner.
(4) Plea Agreements. Fully executed plea agreements must be filed in the
conventional manner.
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(5) Filing and Uploading of Criminal Matters—Time and Date. New criminal
matters are deemed filed the day the Clerk's Office receives the initiating
document. The U.S. Attorney's Office will be notified electronically when a
new case has been opened and a number and Judge assigned. New criminal
complaints/cases received before 2:00 p.m. will normally be available for
viewing on CM/ECF the same day while those received between 2:00 p.m. and close
of business, will normally be available for viewing on CM/ECF no later than
12:00 noon the next business day.
5G. Summonses. Summonses will be issued and returned to the requesting party
for service. Summonses are available on the Court's website in the "Forms"
section. They are in fillable PDF format, but must be printed and submitted to
the Clerk's Office as described below.
The party requesting the summons must complete the top portion of the form and
forward the summons to the Clerk's Office in the conventional manner. If
sending the summons by U.S. mail, the party must also submit a stamped,
self-addressed envelope. The Clerk's Office will issue the summons, make an
entry on the Court docket indicating that a summons was issued, and return the
issued summons to the requesting party for service in person or by U.S. mail.
A party may not electronically serve a summons (refer to the Federal Rule of
Civil Procedure 5(b) and Federal Rule of Criminal Procedure 49(b)). Instead,
parties must perfect service in accordance with Rule 4 of the Federal Rules of
Civil Procedure and Rule 4 of the Federal Rules of Criminal Procedure.
5H. Surety Bonds. The Clerk of Court must maintain the original surety bond
with the original power of attorney for bonds attached in the Court file until
such time as a Judge orders that it be returned to the filing party.
5I. Proposed Trial Exhibits. Exhibits offered or admitted at trial will not be
filed electronically or conventionally unless so ordered by the Court.
6B. Exemptions from the Redaction Requirement. In compliance with the Federal
Rules of Criminal and Civil Procedure (effective December 1, 2007), the
redaction requirement noted in Section 6A does not apply to the following:
• Filing made in an action brought under 28 U.S.C. § 2241 that does not relate
to the petitioner's immigration rights;
• Employment history;
Counsel is strongly urged to share this information with all clients so that an
informed decision about the inclusion, redaction, and/or exclusion of certain
materials may be made. It is the sole responsibility of counsel and the
parties to ensure the redaction of personal identifiers. The Clerk's Office
will not review any document for redaction purposes. SPECIAL NOTICE: It is
the filing party's responsibility to provide the U.S. Attorney's Office with
the social security number of the plaintiff upon the filing of a new social
security case.
7A. Access at the Courthouse. The electronic docket and documents in CM/ECF
can be viewed by the public at no charge at the Clerk's Office during regular
business hours. A copy fee for an electronic reproduction is required in
accordance with 28 U.S.C. § 1930.
7B. Access to PACER Via the Internet. Remote electronic access to CM/ECF for
viewing and printing purposes is available only to PACER system subscribers. A
fee will be charged to access any document on the PACER system. Trial and
hearing transcripts are not available on PACER at this time and may only be
obtained from court reporters. Please refer to the PACER website at
www.pacer.psc.uscourts.gov. for further information.
7C. Certified Documents. Documents available in PACER are only copies of the
Court record. Certified copies are only available through the Clerk's Office.
FORM A
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____________________<COL><COL>
<COL><COL>
Plaintiff(s),<COL><COL>
<COL><COL>
vs<COL><COL>
<COL><COL>
____________________<COL><COL>
<COL><COL>
Defendant(s).<COL><COL>
__________<COL>/<COL>
Please take notice that the foregoing [name of document] is being filed
conventionally for the following reason:
Respectfully submitted,
Firm Name
Street Address
FORM B
v.<COL><COL>
<COL><COL>
Defendant. <COL><COL>
__________<COL>/<COL>
Certificate of Service
SERVICE LIST
FORM C
__________<COL><COL>
Plaintiff,<COL><COL>
<COL><COL>
v.<COL><COL>
<COL><COL>
__________<COL><COL>
Defendant.<COL><COL>
__________<COL>/<COL>
NOTICE OF ENDORSEMENT
On behalf of __________.
Respectfully submitted,
Firm Name
Street Address
Revised August 18, 2006; October 12, 2006; October 10, 2007; October 15,
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2007; May 27, 2008.
The Judicial Conference of the United States has revised its national policy
addressing electronic availability of transcripts of court proceedings filed
with the court. The Judicial Conference Policy on Electronic Availability of
Transcripts applies to any transcript of a court proceeding that is
subsequently filed with the court and made available to the public via
electronic access. In furtherance of the implementation of this policy
locally, effective for any transcript filed on or after the date of this order
(regardless of when the proceeding took place) it is
ORDERED that transcripts of proceedings before the United States District Court
for the Southern District of Florida taken or transcribed by Official Court
Reporters and Contract Court Reporters are now required to be filed with the
Court in electronic format. The Court will follow the Judicial Conference
Policy on Electronic Availability of Transcripts of court proceedings before
making official transcripts electronically available to the public. The policy
will apply to all transcripts of proceedings or parts of proceedings ordered on
or after this date, regardless of when the proceeding took place, unless
otherwise ordered by the Court. For specifics as to the policy, please see the
attached New Transcript Policy;
A. Does not affect in any way the obligation of the court reporter to file
promptly with the Clerk of Court the court reporter's original records of a
proceeding or the inclusion of a filed transcript with the records of the court
pursuant to 28 U.S.C. § 753.
B. Does not affect the obligation of the Clerk to make the official transcript
available for copying by the public without further compensation to the court
reporter 90 days after the transcript is filed pursuant to Judicial Conference
policy.
DONE and ORDERED in Chambers at Miami, Florida, this 29%GTH%G day of September,
2008.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
At its September 2007 session, the U.S. Judicial Conference approved a new
policy regarding the availability of transcripts of court proceedings. A new
release of CM/ECF, Version 3.2., includes software that facilitates the
implementation of this policy. The policy states:
(2) During the 90–day period, a copy of the transcript may be obtained from the
court reporter or transcriber at the rate established by the Judicial
Conference, the transcript will be available within the court for internal use,
and an attorney who obtains the transcript from the court reporter or
transcriber may obtain remote electronic access to the transcript through the
court's CM/ECF system for purposes of creating hyperlinks to the transcript in
court filings and for other purposes.
(3) After the 90–day period has ended, the filed transcript will be available
for inspection and copying in the clerk's office and for download from the
court's CM/ECF system through the judiciary's PACER system.
Transcripts must be compliant with the new Federal Privacy Rules, Civ. 5.2 and
Crim. 49.1. The Judicial Conference approved procedures for applying the
redaction requirements to transcripts of court proceedings and CM/ECF Version
3.2 has been designed to include those procedures.
During the 90–day period (which may be extended by the court), access to the
transcript in CM/ECF is restricted to the following users:
• court staff
• attorneys of record or parties who have purchased the transcript from the
court reporter or transcriber; and
Except for public terminal viewers, persons authorized to view or download the
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transcript can also create hyperlinks to the transcript.
Court reporters will either email a PDF version of the transcript to the
clerk's office for uploading/docketing or the court reporter will upload
/docket transcript into CM/ECF. When an official transcript of a court
proceeding has been filed, parties will be notified via CM/ECF notice of
electronic filing (NEF) which will include various standard deadlines:
• 21 calendar days after the filing of the transcript, party to file the
Redaction Request, if necessary;
• 31 calendar days after the filing of the transcript, court reporter to file
the redacted transcript, if requested;
• 90 calendar days after the filing of the transcript, normal release of remote
restrictions, unless redaction issues are pending.
Any party needing to review the transcript for redaction purposes may purchase
a copy from the court reporter/transcriber or view the transcript at the
courthouse using a public terminal. If a party purchases the transcript from
the court reporter, and he or she is an attorney on the case, he or she will be
given remote access to the transcript via CM/ECF and PACER. PACER fees apply
at all times when accessing transcripts remotely. The clerk's office will
grant remote access upon notification from the court reporter that payment was
received.
Unless otherwise ordered by the court, the attorney is responsible for privacy
compliance of the following portions of the transcript:
• sentencing proceedings;1
2. Financial account numbers: use only the last four numbers of the account;
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3. Social Security numbers: use only the last four numbers;
5. Home addresses: use only the city and state (applicable in criminal cases
only).
For example, if a party wanted to redact the Social Security number 123–45–6789
on page 10, line 12 of a transcript the Redaction Request would include the
information: Page 10, line 12, SSN to read xxx–xx–6789. Access to the
Transcript Redaction Request document will be restricted in PACER and CM/ECF to
the court and the attorneys of record in the case.
Within 31 calendar days from the filing of the transcript with the Clerk (or
longer if ordered by the court), if redaction is requested, the court reporter
will file the redacted transcript.
Motion to Redact (other than five listed personal identifiers within 21 days)
__________
Plaintiff(s)<COL>
<COL>
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<COL>v.<COL>
<COL><COL>
<COL><COL>
Defendant(s)<COL>
<COL>/
<COL>Doc#<COL>Page<COL>Line<COL>Identifier<COL>Redaction Requested
<COL><COL><COL><COL> <COL>
<COL>53<COL>25<COL>2<COL>Taxpayer ID Number<COL>xx–xxxx5678
<COL>70<COL>32<COL>14<COL>Date of Birth<COL>xx/xx/1954
<COL><COL><COL><COL> <COL>
<COL>Respectfully submitted,
<COL>
<COL>Firm Name
<COL>Street Address
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<COL>Attorneys for Plaintiff/Defendant [Party Name(s)]
Certificate of Service
The Court was recently made aware of a local rule in the United States District
Court for the Northern District of Georgia limiting to six hours depositions in
civil cases. As part of the Court's continuing efforts to reduce delay and
expense in civil matters, the Court asked the Federal Judicial Bar & Community
Liaison Committee and the Advisory Committee on Rules and Procedures to
consider whether the Court should consider a similar limitation. Both
committees have recommended that the Court implement a pilot program, limiting
depositions to six hours absent court order or agreement of the parties and any
affected non-party witness. Upon consideration of these recommendations, it is
hereby
ORDERED that in all civil actions commenced on or after July 1, 1996, unless
otherwise ordered by the Court or agreed to by all parties and, with respect to
depositions of non-party witnesses, as agreed to by the non-party witness, no
deposition of any party or witness shall last more than six (6) hours. This
Administrative Order shall remain in effect through December 31, 1997.
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DONE AND ORDERED in chambers at the United States Federal Building and
Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida this 17th day
of June, 1996.
The Court is considering the 1997 report and recommendations of its Advisory
Committee on Local Rules and Procedure (the "Advisory Committee") concerning
proposed amendments to the local rules. The Advisory Committee has recommended
that Local Rule 26.1.K be added to limit depositions to six hours absent court
order or agreement of the parties and any affected non-party witness. The
proposed local rule would codify a pilot program implemented pursuant to
Administrative Order 96–26. By its express terms, Administrative Order remains
in effect until December 31, 1997, whereas any amendments to the local rules
will take effect on April 15, 1998. Therefore, it is hereby
ORDERED that Administrative Order 96–26 is hereby extended and shall remain in
full force and effect until April 15, 1998.
DONE AND ORDERED at the James Lawrence King Federal Justice Building, 99
Northeast Fourth Street, Miami, Florida this 17th day of December, 1997.
Federal Rule of Civil Procedure 83 authorizes the Court to make rules governing
its practices. Federal Rule of Civil Procedure 5(e) encourages the district
court to make rules and promulgate practices and procedures governing the
filing of pleadings by electronic means. Pursuant to that authority, it is
hereby
v) the state court record and other Rule 5 materials in habeas corpus case
under 28 U.S.C. § 2254
ix) any document which the Court may hereinafter require be filed on paper with
original signature
Electronically filed documents must include a signature block, and must set
forth the name, address, phone number, fax numbers and E–Mail address of the
signor. In addition, the name of the authorized user who electronically filed
the document must be typed on the signature line, preceded by an "s/".
Documents requiring multiple signatures must list all other signatories and
type their names on the individual signature line, preceded by an "s/". By
submitting such a document, the filer certifies that each of the other
signatories has expressly agreed to the form and substance of the document and
that the filer has their actual authority to submit the document
electronically. The filer must retain any records evidencing the concurrence of
the other signatories for subsequent production to the Court if so ordered.
4) Original Documents. The original document from which the PDF file was
generated must be retained by the filer for one year. The filer may be required
to submit the original to the Court for its review at any time. A Clerk's
Office-generated paper copy of the PDF document shall serve as the official
Court file and shall be retained pursuant to the guidelines currently governing
the retention of the Court's paper files.
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1) Confirmation of Filing. When a document is downloaded from the Internet
Site, opened by a deputy clerk, and found to be sufficiently compliant with all
local rules to allow its filing, the PDF document will be electronically
stamped "filed" with the date of filing and the initials of the deputy clerk
who electronically stamped it. An electronic copy of the stamped PDF file will
then be returned to the sender as an acknowledgment of receipt and filing.
Unless such return is received, the sender should not assume that the document
has been received and file.
3) Time of Filing.* Users will have the ability to electronically file at any
time. Although electronic filings will be processed only during business hours,
a successfully uploaded document that sufficiently complies with all relevant
rules governing filing will be deemed filed when electronically received, and
will be stamped with the date on which the successful upload was completed. A
document that is not what the filer has represented it to be, is obviously not
intended for filing, or does not sufficiently comply with applicable rules to
be accepted for filing, will be returned unfiled. Again, user error which
results in a failure of or delay in filing will not toll the time for filing
nor constitute cause to excuse a late filing. Thus, parties who file after
business hours on the day a pleading is due do so at their own risk.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
28th day of August, 2002.
*
Publisher's Note: So in original.
ORDERED that electronic filings be accepted by this Court's Clerk's Office from
the United States Attorney or his Assistants. The Clerk of Court will define
the class of case in which the U.S. Attorney may file electronically, and may
from time to time expand that list, by posting adequate notice on this Court's
Website and in the public areas of the Courthouse.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
17th day of September, 2002.
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The Court's current policy regarding "nightbox" filing allows, upon request of
the filer, pleadings filed before 10:00 a.m. on any business day to be
backdated with the previous business day's date. Because filing the morning
after a deadline has expired is not an emergency, and the filing date of a true
emergency pleading should always be recorded as the date and time it was
actually filed, it is hereby
ORDERED that the Clerk's Office file-stamp all pleadings that are purported in
any manner, in writing or verbally, to concern emergency matters, with the date
the pleading was actually received.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
21st day of February, 2003.
ORDERED that the Clerk of the Court accept electronic filings from authorized
users in any class of cases, civil and criminal. The Clerk may hereinafter
restrict or expand the class of litigants who may file electronically and/or
the type of documents that may be filed by posting adequate notice on the
Court's website and in the public areas of the Courthouse.
DONE AND ORDERED in Chambers at For Lauderdale, Broward County, Florida, this
23rd day of September, 2003.
This Court currently maintains an official paper record in all cases. Since
1996, the Court has also maintained a parallel electronic record which largely
duplicates the aforementioned official paper record. With the advances in
technologies over the last decade, the advent of electronic filing, and this
District's long experience in creating and maintaining a parallel electronic
record, the process of maintaining the paper record has become redundant and
the allocation of resources to continue the process inordinately expensive. It
is thus herein
ORDERED that, effective October 28, 2004, the official record of the Court
shall be the electronic file and, where practicable, documents shall be
maintained on the Court's servers. This shall include documents filed with the
Court in electronic form as well as documents filed in paper form and converted
to an electronic image by the Clerk's Office. It is further
ORDERED that the Clerk's Office cease maintaining as part of the paper case
file any case documents filed after October 27, 2004, except as otherwise
provided below:
3. Exhibits or attachments that are voluminous and contain materials that may
be difficult to convert to an electronic image (e.g., two-sided copy or
irregularly sized paper) may, at the discretion of the Clerk, be maintained as
a paper supplement to the electronic record;
5. Administrative records that are voluminous and contain materials that may be
difficult to convert to an electronic record may, at the discretion of the
Clerk, be maintained as a paper supplement to the electronic record;
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
14th day of October, 2004.
It is further ORDERED that Southern District of Florida bar members provide the
Clerk of Court with updated or corrected contact information in writing within
five business days of any change, and that counsel simultaneously provide the
Clerk of Court with an accurate listing of all pending cases in which counsel
has filed an appearance.
It is further ORDERED that all counsel appearing pro hac vice and parties
appearing pro se provide the Court with accurate contact information at the
time of first appearance, and case-specific notice in writing within five days
of any change in contact information.
Finally, it is ORDERED that the failure of counsel or any party appearing pro
se to provide such information to the Clerk of Court as herein prescribed shall
not constitute grounds for relief from deadlines imposed by Rule or by the
Court. It is counsels' responsibility to regularly review the docket in all
matters pending before the Court for which an appearance has been filed.
ORDERED that the following procedures will be strictly adhered to regarding the
introduction of electronic equipment into the federal courthouse facilities
within the Southern District of Florida:
D. Any Special Agent for the United States Government or other law enforcement
officer authorized to enforce the law within the Southern District of Florida,
having official business within the courthouse facility and possessing a valid
agency/department issued identification badge; or,
F. *A judge shall have the discretion to allow members of a seated jury panel
to bring their cellular phones—with or without integrated cameras—into the
courthouse. A judge must provide the United States Marshals Service with a
list of seated jurors who will be allowed to bring cellular phones to the
courthouse during a trial. The list must indicate the judge, case number,
courthouse, dates of empanelment, and each juror's name and regular cellular
phone number or camera cellular phone number and should be provided to the
Marshals Service in the form accompanying this Administrative Order as
Attachment A.
II. Cameras and Cellular Phones with Integrated Camera Device. Pursuant to
Southern District of Florida Local Rule 77.1, cameras of any type are not
allowed in any of the federal courthouse facilities without a written order
signed by a judge and verified by the United States Marshals Service.
Notwithstanding that local rule, those persons permitted to bring a cellular
phone into a federal courthouse facility, pursuant to the exceptions listed,
may bring that cellular phone, even if it contains an integrated camera device,
into any federal courthouse facility. No cellular phones of any kind may be
used in a courtroom or jury deliberations room and no photographs of any kind
may be taken in any federal courthouse facility.
ORDERED that persons not meeting at least one of the exceptions listed will not
be permitted to bring an electronic device of any kind, including a cellular
phone, into the federal courthouse facilities within the Southern District of
Florida (i.e., the general public, etc.). It is further
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ORDERED that the penalty for violating this Administrative Order includes a
sentence of 30 days in jail and/or a fine of $5,000.00; and/or punishment for
contempt of court. See Local Rule 77.1; 41 C.F.R. §§ 102–74.385; 102–74.420;
102–74.450; 18 U.S.C. § 401.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
28%gth%g day of July 2006.
The Clerk's Office for the United States District Court for the Southern
District of Florida implemented its Case Management/Electronic Case Filing
(CM/ECF) system on October 12, 2006. Under Administrative Procedures adopted
in connection with this system, Section 2A specifies that it is mandatory for
members of the District's Bar to file documents electronically. Section 3B
further requires that Bar members register to receive a system login.
CM/ECF system registration was opened to Bar members on the Court's Internet
site on February 17, 2006. Southern District of Florida Bar members were
specifically advised of registration and training requirements through a
Clerk's Notice sent to their last-known office address on or about April 10,
2006. The attorney registration and training requirement has also be published
in the Daily Business Review and reference to it has been posted on the
District's Internet site.
The first general training session for Bar members was offered on March 7, 2006
in Miami, and training has been offered continuously in Miami and Fort
Lauderdale throughout the spring and summer. The training sessions
collectively offered the capacity to conduct training for over 5,400 members of
the District's Bar.
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It is further ORDERED that any member of the Southern District of Florida Bar
who seeks to file a document in the conventionally manner because the attorney
has not obtained a CM/ECF system login must appear in-person at the nearest
Court Division Clerk's Office during published business hours with proper
identification and Florida Bar credentials to conventionally file the document;
and
It is further ORDERED that effective November 6, 2006 and until further notice,
except for documents which must be filed conventionally pursuant to Section 5
of he Administrative Procedures, The Clerk of Court shall issue and Order to
Show Cause before me to any member of the District's Bar who submits a document
for filing in he conventional manner.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
25th day of October 2006.
On July 31, 2006, former Chief Judge William J. Zloch issued Administrative
Order 2006–16, which superseded Administrative Order 2003–92. The 2006–16
Order shall be amended as follows:
Paragraph I.F. shall be deleted and replaced with the following language.
F. Prospective jurors and seated jurors and witnesses with subpoenas shall be
permitted to bring into the Federal Courthouses their cellular phones—with or
without their integrated cameras.
The clear intent of this order is to expand the list of individuals permitted
to bring cellular telephones into the courthouse. In the past, only judges
were permitted to bring cellular telephones into the courthouse. Subsequently,
members of the Bar, Assistant United States Attorneys, Federal Public
Defenders, courthouse employees, and Special Agents of the Federal Government
were added to the list of those permitted to bring their cellular telephones
into the courthouse. Jurors as "judges of the facts," to whom we entrust to
decide the most important decisions in the courthouse should likewise be
included in the list of permitted cellular telephone carriers. Witnesses, with
proper identification and a copy of a subpoena that requires their presence in
the courthouse, should also be on that list.
In today's modern world, security concerns are paramount. Yet these security
concerns are satisfied by airlines, the White House, and the majority of
courthouses in the United States where cellular telephones are permitted.
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Expanding the list to include these individuals will not diminish the security
provided to the occupants of the courthouse, while at the same time enhance the
availability of jurors and witnesses to participate in our court proceedings.
All other provisions of the prior Order 2006–16 shall remain in effect,
including the prohibition of the use of cellular phones in a courtroom or jury
deliberations room, or the use of any recording device or camera in the
courthouse. Violators shall continue to be subject to the contempt order
issued by former Chief Judge William J. Zloch in Administrative Order 2006–16.
Any District Judge can, of course, modify this order as it relates to the
possession of cellular telephones within the courtroom over which that judge is
presiding. Any modification, however, should consider the fact that a uniform
rule assists the Deputy United States Marshals and the Court Security Officers
in enforcing the rules and protecting us.
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of March, 2008.
It has been more than ten years since the Court last set the rate at which
mediators, certified under S.D. Fla. L.R. 16.2, would be compensated if
appointed by the Clerk of the Court, in accordance with S.D. Fla. L.R.
16.2.B.(7) and D.1.(b), on a blind rotating basis from the Southern District's
list of certified mediators. With the recommendation of the Court's Ad Hoc
Advisory Committee on Court Annexed Mediation, and in consideration of the rate
of inflation over the last ten years and current prevailing hourly rates for
mediators in the Southern District of Florida, it is
ADJUDGED that, in cases where the parties have not agreed on the selection of a
mediator which results in the Clerk of the Court designating a mediator on a
blind rotating basis under S.D. Fla. L.R. 16.2.D.1.(b) after the date of this
Order, such designated mediators shall be compensated at the rate of Two
Hundred Fifty Dollars ($250) per hour, which includes the mediator's time
preparing for and conducting the mediation.
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of March, 2008.
The Court heard oral argument at the en banc hearing from representatives of
both the U.S. Attorney's Office and the defense bar. After the hearing, a
substantial majority of the District Judges voted to rescind the interim policy
and to provide complete remote electronic access to plea agreements. The sense
of the Court is that the public's interest in access must prevail in this
instance and that restricting access to all plea agreements is overly broad.
Other means are available to the prosecution and defense to insure that the
public record does not contain information about cooperation arrangements in
those instances where the interests of safety or other considerations require
different treatment. This applies to plea agreements that are NOT sealed. Each
district judge may, in accordance with the law, order specific plea agreements
sealed and those sealed plea agreements will not be accessible electronically.
Accordingly, it is
ORDERED AND ADJUDGED that as of February 20, 2009, the Southern District of
Florida's current policy of providing limited electronic access to plea
agreements is rescinded. All plea agreements filed on or after February 20,
2009 will be public documents, with full remote access available to all members
of the public and the bar, unless the Court has entered an Order in advance
directing the sealing or otherwise restricting a plea agreement;
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