LOCAL RULES
United States District Court
for the
Southern District of Florida
Revised December 1, 2020
2
UNITED STATES DISTRICT JUDGES
Chief Judge K. Michael Moore
(305) 523-5160 Miami
Judge Ursula Ungaro
(305) 523-5550 Miami
Judge Donald M. Middlebrooks
(561) 514-3720 West Palm Beach
Judge William P. Dimitrouleas
(954) 769-5650 Fort Lauderdale
Judge Jose E. Martinez
(305) 523-5590 Miami
Judge Cecilia M. Altonaga
(305) 523-5510 Miami
Judge Marcia G. Cooke
(305) 523-5150 Miami
Judge Kathleen M. Williams
(305) 523-5540 Miami
Judge Robert N. Scola, Jr.
(305) 523-5140 Miami
Judge Darrin P. Gayles
(305) 523-5170 Miami
Judge Beth Bloom
(305) 523-5690 Miami
Judge Robin L. Rosenberg
(561) 803-3430 West Palm Beach
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Judge Roy K. Altman
(954) 769-5680 Fort Lauderdale
Judge Rodolfo A. Ruiz II
(954) 769-5560 Fort Lauderdale
Judge Rodney Smith
(954) 769-5440 Fort Lauderdale
Judge Raag Singhal
(954) 769-5430 Fort Lauderdale
Judge Aileen M. Cannon
(772) 467-2340 Fort Pierce
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SENIOR UNITED STATES DISTRICT JUDGES
Senior Judge James Lawrence King
(305) 523-5000 Miami
Senior Judge Jose A. Gonzalez, Jr.
(305) 523-5001 Fort Lauderdale
Senior Judge William J. Zloch
(954) 769-5480 Fort Lauderdale
Senior Judge Federico A. Moreno
(305) 523-5110 Miami
Senior Judge Donald L. Graham
(305) 523-5130 Miami
Senior Judge Daniel T. K. Hurley
(305) 523-5001 West Palm Beach
Senior Judge Joan A. Lenard
(305) 523-5500 Miami
Senior Judge Patricia A. Seitz
(305) 523-5530 Miami
Senior Judge Paul C. Huck
(305) 523-5520 Miami
Senior Judge Kenneth A. Marra
(561) 514-3760 West Palm Beach
Senior Judge James I. Cohn
(954) 769-5490 Fort Lauderdale
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UNITED STATES MAGISTRATE JUDGES
Chief Magistrate Judge John J. O’Sullivan
(305) 523-5920 Miami
Magistrate Judge Lurana S. Snow
(954) 769-5460 Fort Lauderdale
Magistrate Judge Edwin G. Torres
(305) 523-5750 Miami
Magistrate Judge Chris M. McAliley
(305) 523-5890 Miami
Magistrate Judge Jonathan Goodman
(305) 523-5720 Miami
Magistrate Judge Dave Lee Brannon
(561) 803-3470 West Palm Beach
Magistrate Judge Alicia M. Otazo-Reyes
(305) 523-5740 Miami
Magistrate Judge William Matthewman
(561) 803-3440 West Palm Beach
Magistrate Judge Patrick M. Hunt
(954) 769-5470 Fort Lauderdale
Magistrate Judge Alicia O. Valle
(954) 769-5750 Fort Lauderdale
Magistrate Judge Shaniek Maynard
(772) 467-2320 Fort Pierce
Magistrate Judge Lauren Fleischer Louis
(305) 523-5710 Miami
Magistrate Judge Bruce E. Reinhart
(561) 514-3710 West Palm Beach
Magistrate Judge Lisette M. Reid
(305) 523-5780 Miami
Magistrate Judge Jacqueline Becerra
(305) 523-5930 Miami
Magistrate Judge Jared M. Strauss
(954) 769-5450 Fort Lauderdale
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OFFICE OF THE CLERK OF COURT
http://www.flsd.uscourts.gov
Angela E. Noble
Court Administrator • Clerk of Court
400 North Miami Avenue, Room 8N09, Miami, Florida 33128-7716 (305) 523-5100
301 North Miami Avenue, Room 389, Miami, Florida 33128-7788 (305) 523-5100
299 East Broward Boulevard, Room 108, Fort Lauderdale, Florida 33301 (954) 769-5400
701 Clematis Street, Room 202, West Palm Beach, Florida 33401 (561) 803-3400
101 South U.S. Highway 1, Fort Pierce, Florida 34950 (772) 467-2300
301 Simonton Street, Room 130, Key West, Florida 33040 (305) 295-8100
AFTER HOURS EMERGENCIES - CLERK’S OFFICES
Miami (305) 588-8662
Fort Lauderdale (561) 606-9376
West Palm Beach (561) 606-9376
UNITED STATES ATTORNEY
Ariana Fajardo Orshan
Miami (305) 961-9000
Fort Lauderdale (954) 356-7255
West Palm Beach (561) 820-8711
Fort Pierce (772) 466-0899
Key West (305) 294-7070
UNITED STATES MARSHAL
Gadyaces Serralta
Miami (786) 988-6655
Fort Lauderdale (954) 356-7256
West Palm Beach (561) 655-1827
Fort Pierce (772) 293-0650
Key West (786) 538-3730
FEDERAL PUBLIC DEFENDER
Michael Caruso
Miami (305) 536-6900/(305) 530-7000
Fort Lauderdale (954) 356-7436
West Palm Beach (561) 833-6288
Fort Pierce (772) 489-2123
Key West (305) 296-9265 (unstaffed)
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Table of Rules
GENERAL RULES ................................................................................................................................................... 12
INTRODUCTORY STATEMENT .................................................................................................................................. 12
RULE 1.1 SCOPE OF THE LOCAL RULES ..................................................................................................................... 12
RULE 3.1 DOCKETING AND TRIAL ............................................................................................................................ 12
RULE 3.3 CIVIL COVER SHEET ................................................................................................................................... 13
RULE 3.8 NOTICE OF TRANSFER OF REFILED AND SIMILAR ACTIONS AND PROCEDURES ........................................ 13
RULE 5.1 FILING AND COPIES................................................................................................................................... 14
(a)
Form of Conventionally Filed Documents ..................................................................................................... 14
(b)
Service and Filing of Documents Via CM/ECF .............................................................................................. 15
(c)
Restriction on Courtesy Copies ...................................................................................................................... 15
(d)
Notices of Filing; Form and Content ............................................................................................................. 15
(e)
Consent to Service ......................................................................................................................................... 15
(f)
Inaccessibility of Clerk’s Office ....................................................................................................................... 15
RULE 5.2 PROOF OF SERVICE AND SERVICE BY PUBLICATION .................................................................................. 16
(a)
Certification of Service .................................................................................................................................. 16
(b)
Multiple Copies Unnecessary ........................................................................................................................ 16
(c)
Publication .................................................................................................................................................... 16
RULE 5.3 FILES AND EXHIBITS .................................................................................................................................. 16
(a)
Removal of Original Papers .......................................................................................................................... 16
(b)
Exhibits .......................................................................................................................................................... 16
(1) Delivery to and Retention by Clerk ....................................................................................................................... 16
(2) Mandatory Electronic Filing .................................................................................................................................. 17
(3) Exemptions from Mandatory Electronic Filing ...................................................................................................... 17
(4) Certification of Compliance Requirement ............................................................................................................. 18
(5) Attorney Responsibility and Failure to Comply ..................................................................................................... 18
(6) Dismissals, Acquittals, and Voluntary Dismissals ................................................................................................. 18
(c)
Removal of Exhibits ....................................................................................................................................... 18
RULE 5.4 FILINGS UNDER SEAL; DISPOSAL OF SEALED MATERIALS.......................................................................... 19
(a)
General Policy ............................................................................................................................................... 19
(b)
Procedure for Filing Under Seal in Civil Cases ............................................................................................... 19
(c)
Procedure for Filing Under Seal in Criminal Cases ......................................................................................... 20
(d)
Procedure for Filing Ex Parte......................................................................................................................... 20
(e)
Court Ruling .................................................................................................................................................. 21
RULE 7.1 MOTIONS, GENERAL ................................................................................................................................. 21
(a)
Filing ............................................................................................................................................................. 21
(b)
Hearings ........................................................................................................................................................ 22
(c)
Memorandum of Law .................................................................................................................................... 23
(d)
Emergency Motions and Expedited Motions ................................................................................................ 24
(e)
Applications Previously Refused .................................................................................................................... 25
RULE 7.2 MOTIONS PENDING ON REMOVAL OR TRANSFER TO THIS COURT .......................................................... 25
RULE 7.3 ATTORNEYS FEES AND COSTS ................................................................................................................... 26
(a)
Motions for Attorneys’ Fees and/or Non-Taxable Expenses and Costs......................................................... 26
(b)
Good Faith Effort to Resolve Issues by Agreement ....................................................................................... 27
(c)
Bill of Costs .................................................................................................................................................... 27
RULE 7.6 CONTINUANCES OF TRIALS AND HEARINGS ............................................................................................. 28
RULE 7.7 CORRESPONDENCE TO THE COURT .......................................................................................................... 28
RULE 11.1 ATTORNEYS ............................................................................................................................................ 28
(a)
Roll of Attorneys ........................................................................................................................................... 28
(b)
Contempt of Court ........................................................................................................................................ 28
(c)
Professional Conduct ..................................................................................................................................... 28
(d)
Appearance by Attorney ............................................................................................................................... 29
(e)
Relations with Jury ........................................................................................................................................ 30
8
(f)
Relation to Other Rules .................................................................................................................................. 30
(g)
Responsibility to Maintain Current Contact Information .............................................................................. 30
RULE 15.1 FORM OF A MOTION TO AMEND AND ITS SUPPORTING DOCUMENTATION .......................................... 30
RULE 16.1 PRETRIAL PROCEDURE IN CIVIL ACTIONS ............................................................................................... 31
(a)
Differentiated Case Management in Civil Actions ........................................................................................ 31
(b)
Scheduling Conference and Order ................................................................................................................. 31
(c)
Pretrial Conference Mandatory ..................................................................................................................... 34
(d)
Pretrial Disclosures and Meeting of Counsel ................................................................................................ 34
(e)
Pretrial Stipulation Must Be Filed ................................................................................................................. 34
(f)
Unilateral Filing of Pretrial Stipulation Where Counsel Do Not Agree ........................................................... 36
(g)
Record of Pretrial Conference Is Part of Trial Record .................................................................................... 36
(h)
Discovery Proceedings .................................................................................................................................. 36
(i)
Newly Discovered Evidence or Witnesses ...................................................................................................... 36
(j)
Memoranda of Law........................................................................................................................................ 36
(k)
Proposed Jury Instructions or Proposed Findings of Facts and Conclusions of Law ...................................... 36
(l)
Penalty for Failure to Comply ......................................................................................................................... 37
RULE 16.2 COURT ANNEXED MEDIATION................................................................................................................
37
(a)
General Provisions ........................................................................................................................................ 37
(b)
Certification; Qualification of Certified Mediators; Compensation of Mediators ......................................... 37
(c)
Types of Cases Subject to Mediation ............................................................................................................. 39
(d)
Procedures to Refer a Case or Claim to Mediation ....................................................................................... 40
(e)
Party Attendance Required ........................................................................................................................... 40
(f)
Mediation Report; Notice of Settlement; Judgment ...................................................................................... 41
(g)
Trial upon Failure to Settle ............................................................................................................................ 41
RULE 16.3 CALENDAR CONFLICTS ........................................................................................................................... 42
RULE 16.4 NOTICE OF SETTLEMENT ........................................................................................................................ 42
RULE 23.1 CLASS ACTIONS....................................................................................................................................... 42
RULE 24.1 CONSTITUTIONAL CHALLENGE TO ACT OF CONGRESS OR STATE STATUTE ............................................ 43
(a)
Act of Congress ............................................................................................................................................. 43
(b)
State Statute ................................................................................................................................................. 44
(c)
No Waiver ..................................................................................................................................................... 44
RULE 26.1 DISCOVERY AND DISCOVERY MATERIAL (CIVIL)...................................................................................... 44
(a)
Generally ....................................................................................................................................................... 44
(b)
Service and Filing of Discovery Material ....................................................................................................... 44
(c)
Discovery Material to Be Filed at Outset of Trial or at Filing of Pre-trial or Post-trial Motions ..................... 44
(d)
Completion of Discovery ............................................................................................................................... 44
(e)
Interrogatories and Production Requests ..................................................................................................... 44
(f)
Invocation of Privilege during Depositions ................................................................................................... 47
(g)
Discovery Motions ........................................................................................................................................ 47
(h)
Reasonable Notice of Taking Depositions ..................................................................................................... 48
(i)
Subpoenas; Cooperation ............................................................................................................................... 48
RULE 47.1 TAXATION OF COSTS FOR UNDUE INCONVENIENCE TO JURIES .............................................................. 49
RULE 56.1 MOTIONS FOR SUMMARY JUDGMENT .................................................................................................. 49
(a)
Statements of Material Facts........................................................................................................................ 49
(b)
Form Required for Statements of Material Facts.......................................................................................... 50
(c)
Effect of Failure to Controvert Undisputed Facts .......................................................................................... 51
(d)
Consequences of Non-Compliance ................................................................................................................ 51
RULE 62.1 APPEAL BONDS OR OTHER SECURITY ..................................................................................................... 52
RULE 67.1 COURT REGISTRY AND WRITS OF GARNISHMENT .................................................................................. 52
RULE 77.1 PHOTOGRAPHING, BROADCASTING, TELEVISING .................................................................................. 53
RULE 77.2 RELEASE OF INFORMATION IN CRIMINAL AND CIVIL PROCEEDINGS ...................................................... 54
RULE 87.1 AUTHORITY OF BANKRUPTCY JUDGES TO MAKE LOCAL RULES .............................................................. 56
RULE 87.2 REFERENCE OF BANKRUPTCY MATTERS ................................................................................................. 56
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RULE 87.3 MOTIONS FOR WITHDRAWAL OF REFERENCE OF CASE OR PROCEEDING FROM THE BANKRUPTCY
COURT ..................................................................................................................................................................... 57
RULE 87.4 BANKRUPTCY APPEALS ........................................................................................................................... 57
(a)
Assignment ................................................................................................................................................... 57
(b)
Docketing of Notice of Appeal in District Court ............................................................................................. 57
(c)
Limited Authority of Bankruptcy Court to Enter Orders Prior to Transmittal of Record to District Court ...... 57
(d)
Motions for Stay and Other Intermediate Requests for Relief ...................................................................... 58
(e)
Motions for Leave to Appeal ......................................................................................................................... 58
(f)
Briefs .............................................................................................................................................................. 58
(g)
Oral Argument .............................................................................................................................................. 59
(h)
Judgment ...................................................................................................................................................... 59
(i)
Appeal ............................................................................................................................................................ 59
(j)
Notice ............................................................................................................................................................. 59
(k)
Court Discretion ............................................................................................................................................ 59
(l)
Sealed Documents .......................................................................................................................................... 59
RULE 87.5 DESIGNATION OF BANKRUPTCY JUDGES TO CONDUCT JURY TRIALS ...................................................... 59
RULE 88.1 APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN CRIMINAL PROCEEDINGS
....................... 60
RULE 88.2. POST CONVICTION, HABEAS CORPUS, AND CIVIL RIGHTS PROCEEDINGS .............................................. 60
RULE 88.3. PETTY AND CERTAIN MISDEMEANOR OFFENSES ................................................................................... 61
(a)
Covered Offenses .......................................................................................................................................... 61
(b)
Collateral and Mandatory Appearance ......................................................................................................... 61
(c)
Forfeiture of Collateral .................................................................................................................................. 61
(d)
Failure to Post Collateral ............................................................................................................................... 62
(e)
Arrest ............................................................................................................................................................ 62
RULE 88.5 SPEEDY TRIAL REPORTS .......................................................................................................................... 62
RULE 88.7 RETAINED CRIMINAL DEFENSE ATTORNEYS ........................................................................................... 63
RULE 88.8 PRESENTENCE INVESTIGATIONS ............................................................................................................. 64
RULE 88.9 MOTIONS IN CRIMINAL CASES ................................................................................................................ 65
RULE 88.10 CRIMINAL DISCOVERY .......................................................................................................................... 66
RULE 88.11 AFTER HOURS CRIMINAL DUTY PROCEDURES ...................................................................................... 68
TABLE OF REPEALED AND RELOCATED LOCAL RULES ............................................................................................ 70
ADMIRALTY AND MARITIME RULES .....................................................................................................................
72
RULE A. GENERAL PROVISIONS ............................................................................................................................... 72
(1)
Scope of the Local Admiralty and Maritime Rules ........................................................................................ 72
(2)
Citation Format ............................................................................................................................................. 72
(3)
Application of Local Admiralty and Maritime Rules ...................................................................................... 72
(4)
Designation of “In Admiralty” Proceedings ................................................................................................... 72
(5)
Verification of Pleadings, Claims and Answers to Interrogatories ................................................................ 72
(6)
Issuance of Process ....................................................................................................................................... 73
(7)
Publication of Notices ................................................................................................................................... 73
(8)
Form and Return of Process in In Personam Actions ..................................................................................... 73
(9)
Judicial Officer Defined ................................................................................................................................. 73
(10)
Forms .......................................................................................................................................................... 73
RULE B. ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS ....................................................................... 75
(1)
Definition of “Not Found Within the District.” .............................................................................................. 75
(2)
Verification of Complaint Required ............................................................................................................... 75
(3)
Pre-seizure Requirements ............................................................................................................................. 75
(4)
Notification of Seizure to Defendant ............................................................................................................. 76
(5)
Post-attachment Review Proceedings........................................................................................................... 77
(6)
Procedural Requirement for the Entry of Default.......................................................................................... 77
(7)
Procedural Requirements for the Entry of Default Judgment ....................................................................... 77
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RULE C. ACTION IN REM .......................................................................................................................................... 79
(1)
Verification Requirements ............................................................................................................................. 79
(2)
Pre-seizure Requirements ............................................................................................................................. 79
(3)
Special Requirements for Actions Involving Freight, Proceeds and/or Intangible Property .......................... 80
(4)
Publishing Notice of the Arrest as Required by Supplemental Rule C(4) ....................................................... 81
(5)
Undertaking in Lieu of Arrest ........................................................................................................................ 81
(6)
Time for Filing Claim or Answer .................................................................................................................... 81
(7)
Post-arrest Proceedings ................................................................................................................................ 82
(8)
Procedural Requirements Prior to the Entry of Default ................................................................................. 82
(9)
Procedural Requirements for the Entry of Default Judgment ....................................................................... 82
RULE D. POSSESSORY, PETITORY, AND PARTITION ACTIONS ................................................................................... 85
(1) Establishing Dates for the Return of Process ................................................................................................ 85
RULE E. ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS ................................................................... 86
(1)
Statement of Itemized Damages and Expenses Required ............................................................................. 86
(2)
Requirements and Procedures for Effecting Intervention ............................................................................. 86
(3)
Special Requirements for Salvage Actions .................................................................................................... 88
(4)
Form of Stipulation or Bonds ........................................................................................................................ 88
(5)
Deposit of Marshal’s Fees and Expenses Required Prior to Effecting Arrest, Attachment and/or
Garnishment ...................................................................................................................................................... 88
(6)
Property in Possession of a United States Officer ......................................................................................... 90
(7)
Process Held in Abeyance ............................................................................................................................. 90
(8)
Release of Property in Accordance With Supplemental Rule E(5) ................................................................. 90
(9)
Application to Modify Security for Value and Interest .................................................................................. 92
(10)
Custody and Safekeeping ............................................................................................................................ 92
(11)
Preservation, Humanitarian and Repatriation Expenses ............................................................................ 94
(12)
Property in Incidental Custody and Otherwise Not Subject to the Arrest or Attachment ........................... 95
(13)
Dismissal ..................................................................................................................................................... 96
(14)
Judgments ................................................................................................................................................... 96
(15)
Stay of Final Order ...................................................................................................................................... 97
(16)
Notice of Sale .............................................................................................................................................. 97
(17)
Sale of a Vessel or Property......................................................................................................................... 97
(18)
Post-Sale Claim ........................................................................................................................................... 99
RULE F. ACTIONS TO LIMIT LIABILITY ..................................................................................................................... 102
(1)
Monition, Injunction and Publication of the Notice .................................................................................... 102
(2)
Proof of Publication .................................................................................................................................... 103
(3)
Security and Appraisals Pursuant to Supplemental Rule F(7) ..................................................................... 103
(4)
Objections to the Appraisal ......................................................................................................................... 103
(5)
Fees of the Appraiser .................................................................................................................................. 103
(6)
Order of Proof at Trial ................................................................................................................................. 103
MAGISTRATE JUDGE RULES................................................................................................................................ 105
RULE 1. AUTHORITY OF UNITED STATES MAGISTRATE JUDGES ............................................................................. 105
(a)
Duties under 28 U.S.C. § 636(a) .................................................................................................................. 105
(b)
Disposition of Misdemeanor Cases—18 U.S.C. § 3401; Federal Rule of Criminal Procedure 58 .................. 105
(c)
Determination of Non-dispositive Pretrial Matters-28 U.S.C. § 636(b)(1)(A) .............................................. 105
(d)
Recommendations Regarding Case–Dispositive Motions-28 U.S.C. § 636(b)(1)(B) ..................................... 105
(e)
Prisoner Cases Under 28 U.S.C. §§ 2254 and 2255 ...................................................................................... 106
(f)
Prisoner Cases Under 42 U.S.C. § 1983 ........................................................................................................ 106
(g)
Special Master References .......................................................................................................................... 106
(h)
Conduct of Trials and Disposition of Civil Cases Upon Consent of the Parties–28 U.S.C. § 636(c) ............... 106
(i)
Other Duties ................................................................................................................................................. 107
RULE 2. ASSIGNMENT OF MATTERS TO MAGISTRATE JUDGES .............................................................................. 108
RULE 3. PROCEDURES BEFORE THE MAGISTRATE JUDGE ...................................................................................... 108
11
(a)
In General ................................................................................................................................................... 108
(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) ............................................................................................................. 108
RULE 4. REVIEW AND APPEAL ................................................................................................................................ 109
(a)
Appeal of Non-dispositive Matters-Government Appeal of Release Order ................................................. 109
(b)
Review of Case-Dispositive Motions and Prisoner Litigation-28 U.S.C. § 636(b)(1)(B) ................................ 110
(c)
Special Master Reports—28 U.S.C. § 636(b)(2) ........................................................................................... 110
(d)
Appeal From Judgments in Misdemeanor Cases—18 U.S.C. § 3402 [Deleted] ........................................... 110
(e)
Appeal From Judgments in Civil Cases Disposed of on Consent of the Parties—28 U.S.C. § 636(c) ............ 110
RULES GOVERNING THE ADMISSION, PRACTICE, PEER REVIEW, AND DISCIPLINE OF ATTORNEYS ...................... 111
RULE 1. QUALIFICATIONS FOR ADMISSION ........................................................................................................... 111
RULE 2. PROCEDURE FOR APPLYING FOR ADMISSION AND PROOF OF QUALIFICATIONS ..................................... 111
RULE 3. RETENTION OF MEMBERSHIP IN THE BAR OF THIS COURT ....................................................................... 111
RULE 4. APPEARANCES .......................................................................................................................................... 111
(a)
Who May Appear Generally ........................................................................................................................ 111
(b)
Appearance Pro Hac Vice ............................................................................................................................ 112
(c)
Appearance Ad Hoc ..................................................................................................................................... 112
(d)
Government Attorneys ................................................................................................................................ 112
RULE 5. STUDENT PRACTICE .................................................................................................................................. 113
(a)
Purpose ....................................................................................................................................................... 113
(b)
Student Requirements ................................................................................................................................ 113
(c)
Program Requirements ............................................................................................................................... 113
(d)
Supervisor Requirements ............................................................................................................................ 114
(e)
Certification of Student, Program and Supervising Attorneys ..................................................................... 114
(f)
Activities ...................................................................................................................................................... 115
(g)
Court Administration .................................................................................................................................. 116
RULE 6. COMMITTEE ON ATTORNEY ADMISSIONS, PEER REVIEW, AND ATTORNEY GRIEVANCE .......................... 116
(a)
Establishment and Membership ................................................................................................................. 116
(b)
Purpose ....................................................................................................................................................... 116
(c)
Procedures................................................................................................................................................... 118
(d)
Immunity ..................................................................................................................................................... 121
(e)
Obligation to Cooperate With Committee. ................................................................................................. 121
(f)
Confidentiality. ............................................................................................................................................ 121
(g)
Notice .......................................................................................................................................................... 122
RULE 7. ATTORNEYS CONVICTED OF CRIMES ........................................................................................................ 122
RULE 8. DISCIPLINE IMPOSED BY OTHER COURTS ................................................................................................. 123
RULE 9. DISCIPLINE ON CONSENT, RESIGNATION, OR INACTIVE STATUS IN OTHER COURTS ................................. 124
RULE 10. DISCIPLINE ON CONSENT WHILE UNDER DISCIPLINARY INVESTIGATION OR PROSECUTION .................. 125
RULE 11. INCAPACITY ............................................................................................................................................ 125
RULE 12. REINSTATEMENT .................................................................................................................................... 126
(a)
After Disbarment or Suspension ................................................................................................................. 126
(b)
Time of Application Following Disbarment/Suspension .............................................................................. 126
(c)
Hearing on Application ................................................................................................................................ 126
(d)
Conditions of Reinstatement ....................................................................................................................... 126
(e)
Successive Petitions..................................................................................................................................... 127
(f)
Deposit for Costs of Proceeding ................................................................................................................... 127
RULE 13. DUTIES OF THE CLERK WITH RESPECT TO CONVICTIONS OR DISCIPLINE BY OTHER COURTS
.................. 127
RULE 14. ATTORNEYS SPECIALLY ADMITTED ......................................................................................................... 128
RULE 15. APPOINTMENT OF COUNSEL .................................................................................................................. 128
RULE 16. SERVICE OF PAPER AND OTHER NOTICES ............................................................................................... 128
12
LOCAL RULES
OF THE
UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF FLORIDA
GENERAL RULES
INTRODUCTORY STATEMENT
Members of the bar and the Court are proud of the long tradition of courteous practice in the
Southern District of Florida. Indeed, it is a fundamental tenet of this Court that attorneys in this
District be governed at all times by a spirit of cooperation, professionalism, and civility. For
example, and without limiting the foregoing, it remains the Court’s expectation that counsel will
seek to accommodate their fellow practitioners, including in matters of scheduling, whenever
reasonably possible and that counsel will work to eliminate disputes by reasonable agreement to
the fullest extent permitted by the bounds of zealous representation and ethical practice.
RULE 1.1 SCOPE OF THE LOCAL RULES
These Local Rules shall apply in all proceedings in civil and criminal actions except where otherwise
indicated.
When used in these Local Rules, the word “counsel” shall be construed to apply to a party if that
party is proceeding pro se.
Effective December 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;
December 1, 2011; December 1, 2014; December 1, 2015.
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.)
RULE 3.1 DOCKETING AND TRIAL
Actions and proceedings shall be tried in their county of origin, except that Highlands, Indian River,
Martin, Okeechobee and St. Lucie County actions and proceedings shall be tried at Fort Pierce,
Florida.
13
Notwithstanding the foregoing, any civil or criminal proceeding or trial may, upon Order of Court
and in the interest of justice, the status of the docket, or to assure compliance with requirements
imposed under the Speedy Trial Act, be conducted at any jury division within the District.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1, 2011;
December 1, 2015.
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.
RULE 3.3 CIVIL COVER SHEET
Every Complaint or other document initiating a civil action shall be accompanied by a completed
civil cover sheet. See form available on the Court’s website (www.flsd.uscourts.gov). This
requirement is solely for administrative purposes, and matters appearing only on the civil cover sheet
have no legal effect in the action. If counsel becomes aware of an error in the civil cover sheet,
counsel shall file and serve a notice that identifies the error.
Effective December 1, 1994. Amended effective April 15, 2007; December 3, 2012; December 1,
2015; December 3, 2018.
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.
RULE 3.8 NOTICE OF TRANSFER OF REFILED AND SIMILAR ACTIONS AND
PROCEDURES
It shall be the continuing duty of the attorneys of record in every action or proceeding to bring
promptly to the attention of the Court and opposing counsel the existence of other actions or
proceedings as described in Section 2.15.00 of the Court’s Internal Operating Procedures, as well as
the existence of any similar actions or proceedings then pending before another court or
administrative agency. Such notice shall be given by filing with the Court and serving a “Notice of
Pending, Refiled, Related or Similar Actions,” containing a list and description thereof sufficient for
identification.
Effective December 1, 1994. Amended effective April 15, 2006; April 15, 2007; December 1, 2015.
Authority
(1993) Former Local Rule 6.
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RULE 5.1 FILING AND COPIES
(a)
Form of Conventionally Filed Documents. All civil and criminal pleadings, motions, and other
papers exempted from the requirement that they be filed via CM/ECF and that are instead tendered
for conventional (non-CM/ECF) filing shall:
(1)
Be bound only by easily-removable paper or spring-type binder clips, and not stapled or
mechanically bound or fastened in any way. Voluminous pleadings, motions, or documents
may be bound with a rubber band. Attachments may not be tabbed; reference characters
should be printed or typed on a blank sheet of paper separating each attached document.
(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.
(3)
Be on standard size 8-1/2” x 11” white, opaque paper.
(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.
(5)
Include a caption with:
(A)
The name of the Court centered across the page;
(B)
The docket number, category (civil or criminal), and the last names of the
assigned District Judge and Magistrate Judge, centered across the page;
(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
(D)
The title of the document, including the name and designation of the party (as
plaintiff or defendant or the like) on whose behalf the document is submitted,
centered across the page.
Exception:
The requirements of (a)(3)-(5) do not apply to: (i) exhibits submitted for filing; (ii) papers
filed in removed actions prior to removal from the state courts; and (iii) forms provided by
the Court.
(6)
For each counsel for any party, include: a signature block with the counsel’s name, street
address, telephone number, e-mail address, and Florida Bar or other applicable bar
identification number.
.
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(7)
Not be transmitted to the Clerk of the Court or any Judge by facsimile.
(8)
Be submitted with sufficient copies to be filed and docketed in each matter if styled in
consolidated cases.
(b)
Service and Filing of Documents Via CM/ECF. All documents required to be served shall be
filed in compliance with the CM/ECF Administrative Procedures; except for: (A) documents
exempted under Section 5 of the CM/ECF Administrative Procedures; and (B) documents that are
not permitted to be filed at the time of service by rule, statute, or other proscription. Pro se parties
are exempted from this requirement pursuant to Section 2C of the CM/ECF Administrative
Procedures. Nonetheless, and notwithstanding any certificate of service to the contrary, the date that
a submission from a party who is exempt from electronic filing is docketed by the Clerk of Court shall
be deemed the date that such submission is served. The requirements of paragraphs (a)(2)(6) above
shall apply to documents filed via CM/ECF. See Section 3A of the CM/ECF Administrative
Procedures.
(c)
Restriction on Courtesy Copies. Counsel shall not deliver extra courtesy copies to a Judge’s
Chambers except when requested by a Judge’s office.
(d)
Notices of Filing; Form and Content. The title of a notice of filing shall include (1) the name
and designation of the party (as plaintiff or defendant or the like) on whose behalf the filing is
submitted, and (2) a description of the document being filed. A notice of filing shall identify by title
the pleading, motion or other paper to which the document filed pertains and the purpose of the
filing, such as in support of or in opposition to a pending motion or the like.
(e)
Consent to Service. Registration as an electronic filing user pursuant to Southern District of
Florida CM/ECF Administrative Procedures §3B constitutes consent to receive service electronically
pursuant to Fed. R. Civ. P. 5(b)(2)(E) and Fed. R. Crim. P. 49 and waiver of any right to receive
service by any other means. Service of papers required to be served pursuant to Fed. R. Civ. P. 5(a)
and Fed. R. Crim. P. 39 but not filed, such as discovery requests, may be made via email to the address
designated by an attorney for receipt of notices of electronic filings.
(f)
Inaccessibility of Clerk’s Office. During the time that the Court (or the Courthouse located in
a particular division of the Court) is closed pursuant to Administrative Order 2007-44 (In Re:
Emergency Closure of Courthouse) or pursuant to separate order, the Clerk’s Office for the Court
(or the particular division of the Court where the Courthouse is closed) shall be deemed inaccessible
for purposes of Fed. R. Civ. 6(a)(3) and Fed. R. Crim. P. 45(a)(3).
Effective December 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; April 15, 2010; April 15, 2011; December 1, 2011; December 1, 2015; December 1, 2016;
December 3, 2018; December 2, 2019; December 1, 2020.
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Authority
(1993) Former Local Rule 7; Model Rule 5.1; Administrative Order 90–64 (A.6, B).
RULE 5.2 PROOF OF SERVICE AND SERVICE BY PUBLICATION
(a)
Certification of Service. If a pleading or paper required by Federal Rule of Civil Procedure 5 to
be served on the other parties is served on any party by a method other than CM/ECF, that pleading
or paper shall include a certificate of service that identifies the persons or firms served, their
relationship to the action or proceeding, their street address, telephone number, and email address, and the
date and method of service. See form available on the Court’s website (www.flsd.uscourts.gov).
Signature by the party or its attorney on the certificate of service constitutes a representation that
service has been made.
(b)
Multiple Copies Unnecessary. Any document permitted to be filed via CM/ECF, including the
corporate disclosure statement required by Federal Rule of Civil Procedure 7.1, shall be deemed to
have been delivered in multiple if multiple copies are required to be filed.
(c)
Publication. Publication required by law or rule of court shall be made in a newspaper of general
circulation. The Daily Business Review and such other newspapers as the Court from time to time
may indicate are designated as official newspapers for the publication of notices pertaining to
proceedings in this Court; provided, however, that publication shall not be restricted to the aforesaid
periodicals unless an order for publication specifically so provides.
Effective December 1, 1994. Amended effective December 1, 2001; April 15, 2007; April 15, 2010;
April 15, 2011; December 1, 2015; December 1, 2020.
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.
(1994) D. Rule 1.07(c), Local Rules, Middle District of Florida.
RULE 5.3 FILES AND EXHIBITS
(a)
Removal of Original Papers. Except as provided in this rule, no original papers in the custody
of the Clerk of the Court shall be removed by anyone without order of the Court until final
adjudication of the action or proceeding and disposition of the appeal, if one is filed, or expiration of
the appeal period without appeal being filed, and then only with permission and on terms of the Clerk
of the Court. However, official court reporters, special masters, or commissioners may remove
original papers as may be necessary.
(b)
Exhibits.
(1)
Delivery to and Retention by Clerk. Except as provided by Section 5H of the CM/ECF
Administrative Procedures, each exhibit offered or introduced in evidence at any hearing or trial
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shall be delivered to the Clerk of the Court, who shall keep the exhibit in the Clerk of the Court’s
custody, until the exhibit is electronically filed and served with the Court in accordance with
subsection (b)(2) of this rule. However, when a party offers or introduces into evidence an
exhibit that consists of narcotics, cash, counterfeit notes, weapons, precious stones or other items
which, because of size or nature, require special handling, that party shall contemporaneously
deliver to the Clerk of the Court a photograph of that physical exhibit, which shall later be
electronically filed and served with the Court in accordance with subsection (b)(2) of this rule,
and that party shall retain that exhibit (or a representative sample in the case of narcotics and
other contraband substances) during the pendency of the proceeding and any appeal, and, in a
criminal case, shall retain the exhibit for an additional period of one year after the date on
which the pertinent defendant’s judgment of conviction becomes final. Nothing contained in
this Local Rule shall prevent the Court from entering an order with respect to the handling,
custody or storage of any exhibit. The Clerk of the Court shall permit United States Magistrate
Judges and official court reporters to have custody of exhibits as may be necessary.
(2)
Mandatory Electronic Filing. Unless otherwise ordered by the Court, within ten (10) days
of the conclusion of a hearing or trial, a party must file and serve in the CM/ECF system (a) an
electronic version of each documentary exhibit that the party offered or introduced into
evidence and (b) a digital photograph of each non-documentary physical exhibit that the party
offered or introduced into evidence. Before the electronic filing and service of such exhibits,
the filer must review each exhibit and redact any sensitive, confidential, or private information
in accordance with Fed. R. Civ. P. 5.2, Fed. R. Crim. P. 49.1, and CM/ECF Administrative
Procedures, Section 6, Redaction of Personal Information, Privacy Policy, and Inappropriate
Materials, or seek an order from the Court either to seal the exhibit or to exempt the exhibit
from electronic filing and service under subsection (b)(3)(C) of this rule. Copies of any items
filed under this rule shall also be served pursuant to Fed. R. Civ. P. 5(b)(2) on any pro se
parties.
(3)
Exemptions from Mandatory Electronic Filing. The following exhibits shall be exempt
from mandatory electronic filing and service in the CM/ECF system:
(A)
Sealed and ex parte exhibits in criminal cases, which must be conventionally filed
in accordance with Rule 5.4.
(B)
Contraband images, audio recordings, and video recordings, which must be
physically filed with the Clerk of the Court within ten (10) days of the conclusion of
the hearing or trial, unless otherwise ordered, in the following form: (i) on a CD, DVD,
or other electronic medium containing a copy of the exhibit that included the
contraband image, audio recording, or video recording, if the exhibit was offered or
introduced at trial in electronic form; or (ii) in original physical form if the contraband
image was not offered or introduced at trial in electronic form.
(C)
When permitted by order of the Court, exhibits containing voluminous amounts of
confidential information that is subject to privacy protections in accordance with Fed.
R. Civ. P. 5.2, Fed. R. Crim. P. 49.1, or other applicable rule or statute; within ten (10)
days of the conclusion of the hearing or trial, unless otherwise ordered, such exhibits
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must be delivered to the Clerk of the Court either in original physical form or on a CD,
DVD, or other electronic medium containing a copy of the exhibit, but such exhibits
are not to be filed and served in the CM/ECF system, and the filer is not required to
comply with CM/ECF Administrative Procedures, Section 6, Redaction of Personal
Information, Privacy Policy, and Inappropriate Materials.
(4)
Certification of Compliance Requirement. When the exhibits that were offered or
introduced at a trial or hearing are: (i) electronically filed and served by a party; or (ii) delivered
to the Clerk of the Court in accordance with the procedures for exhibits that are exempt from
electronic filing and service, the attorney for that party shall also complete and electronically
file and serve a Certification of Compliance Re Admitted Evidence form, which can be found
at the Court’s website (http://www.flsd.uscourts.gov).
(5)
Attorney Responsibility and Failure to Comply. Unless otherwise ordered, the
responsibility for discharging a party’s obligations under subsection (b) belongs to the attorney
who represented that party at the trial or hearing at which that party offered or introduced an
exhibit. A party’s failure to timely file and serve exhibits electronically as required by this rule
or to timely file and serve its Certification of Compliance Re Admitted Evidence may result in
the imposition of sanctions.
(6)
Dismissals, Acquittals, and Voluntary Dismissals. Unless the Court, sua sponte or on
motion of a party, orders compliance with subsection (b), such compliance is not required for
a criminal jury trial that has concluded in a verdict of acquittal and/or pre-verdict dismissal
pursuant to Fed. R. Crim. P. 29(a)-(b) on all charges, or for a civil case that has been dismissed
pursuant to Fed. R. Civ. P. 41(a)(1).
(c)
Removal of Exhibits. Within ten (10) days after a party electronically files and serves the
exhibits it offered or introduced into evidence at a hearing or trial, the party shall make
arrangements with the Clerk of the Court to retrieve all of the original exhibits that were
electronically filed and served. Any original exhibits that have been returned to or retained by the
filing party after either electronic filing and service or the submission of electronic copies pursuant
to subsections (b)(3)(B) or (b)(3)(C) shall be kept for safe keeping until the conclusion of any
appeals, and, in a criminal case, shall be retained for an additional period of one year after the date
on which the pertinent defendant’s judgment of conviction becomes final; upon order of the Court,
the filing party must return the original exhibits to the Clerk of the Court. For any other original
exhibit that was offered or introduced in evidence at a hearing or trial and that was retained by the
Clerk of the Court because the exhibit was exempt from electronic filing and service, the party that
offered or introduced that exhibit shall retrieve the exhibit from the Clerk of the Court within three
(3)
months after final adjudication of the action or proceeding and disposition of any appeal and, in
a criminal case, shall retain the exhibit until one year after the date on which the pertinent defendant’s
judgment of conviction becomes final; otherwise, such original exhibit may be destroyed or
otherwise disposed of as the Clerk of the Court may deem proper.
[Subsection (d) has been moved to Court’s I.O.P.]
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Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1,
2015; December 1, 2017; December 2, 2019.
Authority
(1993) Former Local Rule 8, as amended by Administrative Order 91-54.
RULE 5.4 FILINGS UNDER SEAL; DISPOSAL OF SEALED MATERIALS
(a)
General Policy. Unless otherwise provided by law, Court rule, or Court order, proceedings in
the United States District Court are public and Court filings are matters of public record. Where not
so provided, a party seeking to file matters under seal and/or ex parte shall follow the procedures
prescribed by this Local Rule and Sections 5A, 5K, 9A-D, and 10B, as applicable, of the CM/ECF
Administrative Procedures. In criminal matters, the procedures prescribed by this Local Rule and by
the CM/ECF Administrative Procedures concerning the filing of ex parte documents shall only apply
to cases in which a person already has been charged by criminal complaint, criminal information,
or indictment.
(b)
Procedure for Filing Under Seal in Civil Cases. A party seeking to file information or
documents under seal in a civil case shall:
(1)
In a case that is not otherwise sealed in its entirety as permitted or required by federal
law, file and serve electronically via CM/ECF a motion to file under seal that sets forth the
factual and legal basis for departing from the policy that Court filings are public and that
describes the information or documents to be sealed (the “proposed sealed material”) with as
much particularity as possible, but without attaching or revealing the content of the proposed
sealed material. The proposed sealed material shall not be filed unless the Court grants the
motion to file under seal. The motion to file under seal shall specify the proposed duration
of the requested sealing. The motion to file under seal and the docket text shall be publicly
available on the docket. If, prior to the issuance of a ruling on the motion to file under seal,
the moving party elects or is required to publicly file a pleading, motion, memorandum, or
other document that attaches or reveals the content of the proposed sealed material, then the
moving party must redact from the public filing all content that is the subject of the motion
to file under seal. If the Court grants the motion to file under seal, then the moving party
shall file any pleading, motion, memorandum, or other document that has been authorized to
be filed under seal via CM/ECF using events specifically earmarked for sealed civil filings,
but if a redacted filing previously has been made or is accompanying the sealed filing, then
the material that is being filed under seal shall be filed as an attachment to a “Notice of Sealed
Filing” which shall be filed via CM/ECF (using events specifically earmarked for sealed civil
filings). The moving party must complete any required service of the sealed filing or Notice
of Sealed Filing conventionally, indicating the corresponding docket number of the sealed
filing or Notice of Sealed Filing.
(2)
A party appearing pro se seeking to make a filing under seal in a civil case that is not
otherwise sealed in its entirety as permitted or required by federal law must comply with the
procedures set forth in Local Rule 5.4(b)(1), except that the motion to file under seal shall be
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filed conventionally with the Clerk of Court and, if the Court grants the motion to file under
seal, the sealed filing or Notice of Sealed Filing shall be submitted to the Clerk of Court in a
plain envelope clearly marked “sealed document” with the case number and style of the case
noted on the outside. The pro se party must also complete any required service of the sealed
filing or Notice of Sealed Filing conventionally indicating the corresponding docket number
of the sealed filing or Notice of Sealed Filing.
(3)
A party or pro se party seeking to seal a case in its entirety must file a motion to seal
conventionally with the Clerk of Court in a plain envelope clearly marked “sealed document”
with the style of the case noted on the outside of the envelope. The motion to seal must set
forth the factual and legal basis for departing from the policy that Court filings be public,
describe the proposed sealed filing with as much particularity as possible without revealing
the confidential information, and specify the proposed duration of the requested sealing. If
the motion is granted, subsequent filings shall be filed conventionally with the Clerk of Court
as sealed documents in a plain envelope clearly marked “sealed document” with the case
number and style of the case noted on the outside. The filer must complete any required
service of the sealed document(s) conventionally.
(c)
Procedure for Filing Under Seal in Criminal Cases. A party seeking to make a filing under
seal in a criminal case shall:
(1)
Conventionally file a motion to seal that sets forth the factual and legal basis for
departing from the policy that Court filings be public and that describes the proposed
sealed filing with as much particularity as possible without revealing the confidential
information. The motion shall specify the proposed duration of the requested sealing.
Unless the Court expressly orders otherwise, the motion to seal will itself be sealed
from public view and the docket text appearing on the public docket shall reflect only
that a sealed filing has been made.
(2)
Conventionally file the proposed sealed filing in a plain envelope clearly marked
“sealed document” with the case number and style of the case noted on the outside.
(d)
Procedure for Filing Ex Parte. A party submitting an ex parte filing shall:
(1)
Include the words “ex parte” in the title of the motion and explain the reasons for ex
parte treatment. Upon submission, unless the Court directs otherwise the ex-parte
filing will be restricted from public view and the docket text appearing on the public
docket will reflect only that a restricted filing has been made. Counsel need not serve
motions filed ex parte and related documents unless and until the Court so orders.
(2)
In criminal matters, conventionally file the ex parte filing in a plain envelope clearly
marked “ex parte” with the case number and style of the case noted on the outside.
(3)
In civil matters, electronically file the ex parte filing via CM/ECF as a restricted
document using the events specifically earmarked for ex parte filings as described in
Section 9 of the CM/ECF Administrative Procedures.
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(4)
A party appearing pro se must file documents conventionally.
(e)
Court Ruling.
(1)
Sealed Filings. An order granting a motion to seal shall state the period of time that
the sealed filing shall be sealed.
(2)
Ex Parte Filings. Access to ex parte motions and related filings will remain restricted
unless the Court orders otherwise.
Effective April 15, 2000. Amended effective April 15, 2001; April 15, 2005; April 15, 2007; April
15, 2010; December 2, 2013; December 1, 2014; December 1, 2015; December 1, 2017; December
2, 2019.
RULE 7.1 MOTIONS, GENERAL
(a)
Filing.
(1)
Every motion when filed and served shall incorporate a memorandum of law citing
supporting authorities, except that the following motions need not incorporate a
memorandum:
(A)
petition for writ of habeas corpus ad testificandum or ad prosequendum;
(B)
motion for out-of-state process;
(C)
motion for order of publication for process;
(D)
application for default;
(E)
motion for judgment upon default;
(F)
motion to withdraw or substitute counsel;
(G)
motion for continuance, provided the good cause supporting it is set forth in the
motion and affidavit required by Local Rule 7.6;
(H)
motion for confirmation of sale;
(I)
motion to withdraw or substitute exhibits;
(J)
motion for extensions of time providing the good cause supporting it is set forth
in the motion;
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(K)
motion for refund of bond, provided the good cause supporting it is set forth in
the motion;
(L)
application for leave to proceed in forma pauperis; and
(M)
motion for admission pro hac vice.
(2)
Those motions listed in (a)(1) above, as well as any motion seeking emergency or ex
parte relief or a temporary restraining order, shall be accompanied by a proposed order that
is filed and served submitted via e-mail to the Court as prescribed by Section 3I(6) of the
CM/ECF Administrative Procedures.
(3)
Pre-filing Conferences Required of Counsel. Prior to filing any motion in a civil case,
except a motion for injunctive relief, for judgment on the pleadings, for summary judgment,
to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim
upon which relief can be granted, for pro hac vice admission, or to involuntarily dismiss an
action, for garnishment or other relief under Federal Rule of Civil Procedure 64, or otherwise
properly filed ex parte under the Federal Rules of Civil Procedure and these Local Rules, or
a petition to enforce or vacate an arbitration award, counsel for the movant shall confer
(orally or in writing), or make reasonable effort to confer (orally or in writing), with all parties
or non-parties who may be affected by the relief sought in the motion in a good faith effort
to resolve by agreement the issues to be raised in the motion. Counsel conferring with
movant’s counsel shall cooperate and act in good faith in attempting to resolve the dispute.
At the end of the motion, and above the signature block, counsel for the moving party shall
certify either: (A) that counsel for the movant has conferred with all parties or non-parties
who may be affected by the relief sought in the motion in a good faith effort to resolve the
issues raised in the motion and has been unable to do so; or (B) that counsel for the movant
has made reasonable efforts to confer with all parties or non-parties who may be affected by
the relief sought in the motion, which efforts shall be identified with specificity in the
statement (including the date, time, and manner of each effort), but has been unable to do so.
If certain of the issues have been resolved by agreement, the certification shall specify the
issues so resolved and the issues remaining unresolved. Failure to comply with the
requirements of this Local Rule may be cause for the Court to grant or deny the motion and
impose on counsel an appropriate sanction, which may include an order to pay the amount
of the reasonable expenses incurred because of the violation, including a reasonable
attorney’s fee. See forms available on the Court’s website (www.flsd.uscourts.gov).
(b)
Hearings.
(1)
No hearing will be held on motions unless set by the Court.
(2)
A party who desires oral argument or a hearing of any motion shall request it within the
motion or opposing memorandum in a separate section titled “request for hearing.” 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
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grant or deny a hearing as requested, upon consideration of both the request and any response
thereto by an opposing party.
(3)
Discovery motions may be referred to and heard by a United States Magistrate Judge.
(4)
With respect to:
(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)
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 within fourteen (14) days
thereafter a “Notification of Ninety Days Expiring” which shall contain the following
information:
(i)
the title and docket entry number of the subject motion or other application,
along with the dates of service and filing;
(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;
(iii)
the title and docket entry number of any reply memoranda, or any other
papers filed and served in connection with the motion or other matter, as well as
the dates of service and filing; and
(iv)
the date of any hearing held on the motion or other matter.
(c)
Memorandum of Law.
(1)
Requirements and Timing. For all motions, except motions served with the summons
and complaint, each party opposing a motion shall file and serve an opposing memorandum
of law no later than fourteen (14) days after service of the motion. Failure to do so may be
deemed sufficient cause for granting the motion by default. The movant may, within seven
(7) days after service of an opposing memorandum of law, file and 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 and served without prior leave of Court. All materials in support of any
motion, response, or reply, including affidavits and declarations, shall be served with the
filing. For a motion served with the summons and complaint, the opposing memorandum of
law shall be due on the day the response to the complaint is due.
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Time shall be computed under this Local Rule in accordance with applicable federal rules of
procedure (e.g., Fed. R. Civ. P. 6(a) and Fed. R. Crim. P. 45(a)).
(2)
Length. Absent prior permission of the Court, neither a motion and its incorporated
memorandum of law nor the opposing memorandum of law shall exceed twenty (20) pages;
a reply memorandum shall not exceed ten (10) pages. As long as no substantive part of the
submission appears on the same page(s), the following items do not count toward page
limitations for purposes of this rule and any other rules or orders setting forth page
limitations: title pages preceding the first page of text, tables of contents, tables of citations,
“request for hearing” sections, signature pages, certificates of good faith conferences, and
certificates of service. Filing and service of multiple motions for partial summary judgment
is prohibited, absent prior permission of the Court. This prohibition does not preclude a party
from filing both a motion for summary judgment asserting an immunity from suit and a
later motion for summary judgment addressing any issues that may remain in the case. This
prohibition also is not triggered when, as permitted by Fed. R. Civ. P. 12(d), the Court elects
to treat a motion filed pursuant to Fed. R. Civ. P. 12(b) or 12(c) as a summary judgment
motion.
(d)
Emergency Motions and Expedited Motions. The Court may, upon written motion and good
cause shown, waive the time requirements of this Local Rule and grant an immediate or expedited
hearing on any matter requiring such expedited procedure. A filer may seek expedited consideration
through either an emergency motion or an expedited motion in accordance with the following
requirements:
(1)
Emergency Motions. A filer requesting emergency action must include the words
“Emergency Motion” in the title of the motion and must set forth in detail the nature of the
emergency, the date by which a ruling is necessary, and the reason the ruling is needed by
the stated date. The unwarranted designation of a motion as an emergency motion may result
in sanctions. The filer must certify that the matter is a true emergency by including the
following certification before the motion’s signature block:
After reviewing the facts and researching applicable legal principles, I certify
that this motion in fact presents a true emergency (as opposed to a matter that
may need only expedited treatment) and requires an immediate ruling
because the Court would not be able to provide meaningful relief to a critical,
non-routine issue after the expiration of seven days. I understand that an
unwarranted certification may lead to sanctions.
As prescribed by Section 10 of the CM/ECF Administrative Procedures, a party seeking to file an
emergency motion must file and serve the documents electronically via CM/ECF using the events
specifically earmarked for emergency matters. Motions are not considered emergencies if the
urgency arises because of the attorney’s or party’s own dilatory conduct. Generally, unless a motion
will become moot if not ruled on within seven (7) days, the motion should not be filed as an
emergency motion.
(2)
Expedited Motions. A filer whose time-sensitive motion does not qualify as an emergency
motion but who nonetheless requires an expedited ruling by a date certain may file an
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expedited motion in lieu of an emergency motion. The motion must include the words
“Expedited Motion” in the title and must set forth in detail the date by which an expedited
ruling is needed and the reason the ruling is needed by the stated date.
In criminal cases, emergency motions and expedited motions that are also ex parte or sealed must be
conventionally filed.
A party appearing pro se must conventionally file emergency motions and expedited motions.
(e)
Applications Previously Refused. Whenever any motion or application has been made to any
Judge or Magistrate Judge and has been refused in whole or in part, or has been granted conditionally,
and a subsequent motion or application is made to a different District Judge or Magistrate Judge for
the same relief in whole or in part, upon the same or any alleged different state of facts, it shall be
the continuing duty of each party and attorney seeking such relief to present to the District Judge or
Magistrate Judge to whom the subsequent application is made an affidavit setting forth the material
facts and circumstances surrounding each prior application, including: (1) when and to what District
Judge or Magistrate Judge the application was made; (2) what ruling was made thereon; and (3)
what new or different facts and circumstances are claimed to exist which did not exist, or were not
shown, upon the prior application. For failure to comply with the requirements of this Local Rule,
any ruling made on the subsequent application may be set aside sua sponte or on ex parte motion.
Effective December 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; April 15, 2010; April
15, 2011; December 1, 2011; December 1, 2014; December 1, 2015; December 1, 2016; December
1, 2017; December 3, 2018; December 2, 2019; December 1, 2020.
RULE 7.2 MOTIONS PENDING ON REMOVAL OR TRANSFER TO THIS COURT
When a court transfers or a party removes an action to this Court, a true and legible copy of: (a) any
pending motion and all documents previously filed in support thereof; and (b) any opposition to any
such motion and all documents previously filed in opposition to any such motions, shall be filed and
served by the moving party within seven (7) days of the entry of the order of transfer or the filing of
the notice of removal unless those materials already have been made part of the case file in this
Court. If there is a motion pending upon transfer or removal for which the moving party has not
submitted a memorandum in support, the moving party shall file and serve such memorandum within
fourteen (14) days after the filing of the notice of removal or the entry of the order or transfer. If the
moving party filed a memorandum in support of the motion prior to removal but any party opposing
the motion has not yet filed a memorandum in opposition, any party opposing the motion shall file
and serve such memorandum within fourteen (14) days after the filing of the notice of removal or
the entry of the order of transfer. All parties shall then comply with the briefing deadlines provided
in Local Rule 7.1(c).
Effective December 1, 1994. Amended effective April 15, 2003; April 15, 2007; April 15, 2010;
December 1, 2015; December 2, 2019.
26
Authority
(1993) Former Local Rule 10D.
RULE 7.3 ATTORNEYS FEES AND COSTS
(a)
Motions for Attorneys’ Fees and/or Non-Taxable Expenses and Costs. This rule provides a
mechanism to assist parties in resolving attorneys fee and costs disputes by agreement. A motion for
an award of attorneys’ fees and/or non-taxable expenses and costs arising from the entry of a final
judgment or order shall not be filed until a good faith effort to resolve the motion, as described in
paragraph (b) below, has been completed. The motion shall:
(1)
be filed and served 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;
(2)
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;
(3)
state the amount sought;
(4)
disclose the terms of any applicable fee agreement;
(5)
provide:
(A)
the identity, experience, and qualifications for each timekeeper for whom fees are
sought;
(B)
the number of hours reasonably expended by each such timekeeper;
(C)
a description of the tasks done during those hours; and
(D)
the hourly rate(s)claimed for each timekeeper;
(6)
describe and document with invoices all incurred and claimed fees and expenses not
taxable under 28 U.S.C. § 1920;
(7)
be verified; and
(8)
certify that a good faith effort to resolve issues by agreement occurred pursuant to Local
Rule 7.3(b), describing what was and was not resolved by agreement and addressing
separately the issues of entitlement to fees and amount.
Within fourteen (14) days after 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
27
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.
A party shall seek costs that are taxable under 28 U.S.C. § 1920 by filing and serving a bill of costs
and supporting memorandum in accordance with paragraph 7.3(c) below. The costs and expenses
sought in a motion under this paragraph shall not include any cost sought in a bill of costs.
(b)
Good Faith Effort to Resolve Issues by Agreement. Except as to any aspect of a fee claim
upon which the parties agree, a draft motion compliant with Local Rule 7.3(a)(1)-(8) must be served
but not filed at least thirty (30) days prior to the deadline for filing any motion for attorneys’ fees
and/or costs that is governed by this Local Rule. Within twenty-one (21) days of service of the draft
motion, the parties shall confer and attempt in good faith to agree on entitlement to and the amount
of fees and expenses not taxable under 28 U.S.C. § 1920. The respondent shall describe in writing
and 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 federal
statute provides a deadline of fewer than sixty (60) days for a motion governed by Local Rule 7.3(a),
the parties need not comply with this paragraph’s requirements.
(c)
Bill of Costs. A bill of costs pursuant to 28 U.S.C. § 1920 shall be filed and served within thirty
(30) days of entry of final judgment or other appealable order that gives rise to a right to tax costs
under the circumstances listed in 28 U.S.C. § 1920. Prior to filing the bill of costs, the moving party
shall confer with affected parties under the procedure outlined in S.D.Fla.L.R.7.1(a)(3) in a good
faith effort to resolve the items of costs being sought.
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 and shall be limited to the costs
permitted by 28 U.S.C. § 1920. Expenses and costs that the party believes are recoverable although
not identified in § 1920 shall be moved for as provided in paragraph 7.3(a) above. The bill of costs
shall attach copies of any documentation showing the amount of costs and shall be supported by a
memorandum not exceeding ten (10) pages. 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 December 1, 1994. Amended effective April 15, 1999; April 15, 2001; April 15, 2005;
April 15, 2006; April 15, 2007; April 15, 2010; April 15, 2011; December 1, 2011; December 3,
2012; December 1, 2015; December 2, 2019; December 1, 2020.
Authority
(1993) Former Local Rule 10F, renumbered per Model Rules.
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RULE 7.6 CONTINUANCES OF TRIALS AND HEARINGS
A continuance of any trial, pretrial conference, or other hearing will be granted only on exceptional
circumstances. No such continuance will be granted on stipulation of counsel alone. However, upon
written notice served and filed at the earliest practical date prior to the trial, pretrial conference, or
other hearing, and supported by affidavit setting forth a full showing of good cause, a continuance
may be granted by the Court.
Effective December 1, 1994.
Authority
(1993) Former Local Rule 11. Renumbered in accordance with Model Rules.
RULE 7.7 CORRESPONDENCE TO THE COURT
Unless invited or directed by the presiding Judge, attorneys and any party represented by an attorney
shall not: (a) address or present to the Court in the form of a letter or the like any application
requesting relief in any form, citing authorities, or presenting arguments; or (b) furnish the Court
with copies of correspondence between or among counsel, or any party represented by an attorney,
except when necessary as an exhibit when seeking relief from the Court. Local Rule 5.1(c) above
governs the provision of “courtesy copies” to a Judge.
Effective December 1, 1994. Amended effective April 15, 2003; April 15, 2007; December 1, 2015.
Authority
(1993) Former Local Rule 10M.
RULE 11.1 ATTORNEYS
(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 Rules Governing the Admission,
Practice, Peer Review, and Discipline of Attorneys.
(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.
(c)
Professional Conduct. The standards of professional conduct of members of the Bar of this
Court shall include the current Rules Regulating The Florida Bar. For a violation of any of these
canons in connection with any matter pending before this Court, an attorney may be subjected to
appropriate disciplinary action.
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(d)
Appearance by Attorney.
(1)
The filing of any pleading, written motion, or other paper shall constitute an appearance
by the person who signs such paper unless the paper specifies otherwise.
(2)
Unless they have noticed their appearance by filing a pleading, written motion, or other
paper, any attorney appearing on behalf of a non-party witness at a hearing shall file and
serve a notice of appearance prior to the attorney’s appearance on behalf of the attorney’s
client at the hearing. When the appearance relates to a grand jury matter, the notice of
appearance shall be filed with the Clerk of the Court in such manner as to maintain the
secrecy requirements of grand jury proceedings, if applicable.
(3)
Withdrawal of appearance.
(A)
Except as provided by subpart (B) herein, no attorney shall withdraw the attorney’s
appearance in any action or proceeding except by leave of Court after notice served on
the attorney’s client and opposing counsel. A motion to withdraw shall include a current
mailing address for the attorney’s client or the client’s new or remaining counsel.
(B)
The appearance of an Assistant Federal Public Defender, Assistant United States
Attorney, or other federal, state, or local government attorney is withdrawn when a notice
of reassignment or notice of substitution is filed in which an attorney from the
withdrawing attorney’s office provides notice of that substitute attorney’s appearance in
the action or proceeding.
(4)
Whenever a party has appeared by attorney, the party cannot thereafter appear or act on
the party’s own behalf in the action or proceeding, or take any step therein, unless an order
of substitution shall first have been made by the Court, after notice to the attorney of such
party, and to the opposite party; provided, that the Court may in its discretion hear a party in
open court, notwithstanding the fact that the party has appeared or is represented by an
attorney.
(5)
When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an
action or proceeding for whom the attorney was acting as counsel must, before any further
proceedings are had in the action on the party’s behalf, appoint another attorney or appear in
person, unless such party is already represented by another attorney.
(6)
No agreement between parties or their attorneys, the existence of which is not conceded,
in relation to the proceedings or evidence in an action, will be considered by the Court unless
the same is made before the Court and noted in the record or is reduced to writing and
subscribed by the party or attorney against whom it is asserted.
(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.
30
(e)
Relations with Jury. Before and during the trial, a lawyer shall avoid communicating with a
juror in a case with which a lawyer is connected about any subject, whether pertaining to the case or
not. After the jury has been discharged, a lawyer shall not communicate with a member of the jury
about a case with which the lawyer and the juror have been connected without leave of Court granted
for good cause shown. In such case, the Court may allow counsel to interview jurors to determine
whether their verdict is subject to legal challenge, and may limit the time, place, and circumstances
under which the interviews may be conducted. The Court also may authorize certain other post-trial
lawyer/jury communications in specific cases as the Court may determine to be appropriate under
the circumstances. During any Court-conducted or authorized inquiry, a lawyer shall not ask
questions of or make comments to a juror that are calculated to harass or embarrass the juror or to
influence the juror’s actions in future jury service. Nothing in this rule shall prohibit a lawyer from
communicating with a juror after the jury has been discharged where the communication is not
related to the case and either the juror initiates the communication or the lawyer encounters the juror
in a social or business setting unrelated to the case.
(f)
Relation to Other Rules. This Local Rule governing attorneys is supplemented by the Rules
Governing the Admission, Practice, Peer Review, and Discipline of Attorneys.
(g)
Responsibility to Maintain Current Contact Information. Each member of the Bar of the
Southern District, any attorney appearing pro hac vice, and any party appearing pro se shall maintain
current contact information with the Clerk of Court. Each attorney shall update contact information
including e-mail address within seven (7) days of a change. A party appearing pro se shall
conventionally file a Notice of Current Address with updated contact information within seven (7)
days of a change. The failure to comply shall not constitute grounds for relief from deadlines imposed
by Rule or by the Court. All Court Orders and Notices will be deemed to be appropriately served if
directed either electronically or by conventional mail consistent with information on file with the
Clerk of Court.
Effective December 1, 1994. Amended effective April 15, 2002; April 15, 2007; April 15, 2010;
April 15, 2011; December 1, 2011; December 1, 2015; December 1, 2016; December 2, 2019;
December 1, 2020.
Authority
(1993) Former Local Rule 16. Renumbered per Model Rules.
RULE 15.1 FORM OF A MOTION TO AMEND AND ITS SUPPORTING
DOCUMENTATION
A party who moves to amend a pleading shall attach the original of the amendment to the motion in
the manner prescribed by Section 3I(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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Effective December 1, 1994. Amended effective April 15, 2007; December 1, 2015.
Authority
(1993) Model Local Rule 15.1.
RULE 16.1 PRETRIAL PROCEDURE IN CIVIL ACTIONS
(a)
Differentiated Case Management in Civil Actions.
(1)
Definition. “Differentiated Case Management” is a system for managing cases based on
the complexity of each case and the requirement for judicial involvement. Civil cases having
similar characteristics are identified, grouped and assigned to designated tracks. Each track
employs a case management plan tailored to the general requirements of similarly situated
cases.
(2)
Case Management Tracks. There shall be three (3) case management tracks, as follows:
(A)
Expedited-a relatively non-complex case requiring only one (1) to three (3) days
of trial may be assigned to an expedited track in which discovery shall be completed
within the period of ninety (90) to 179 days from the date of the Scheduling Order.
(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)
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.
(3)
Evaluation and Assignment of Cases. The following factors shall be considered in
evaluating and assigning cases to a particular track: the complexity of the case, number of
parties, number of expert witnesses, volume of evidence, problems locating or preserving
evidence, time estimated by the parties for discovery and time reasonably required for trial,
among other factors. The majority of civil cases will be assigned to a standard track.
(4)
The parties shall recommend to the Court in their proposed Scheduling Order filed
pursuant to Local Rule 16.1(b), to which particular track the case should be assigned.
(b)
Scheduling Conference and Order.
(1)
Party Conference. Except in categories of proceedings exempted from initial disclosures
under Federal Rule of Civil Procedure 26(a)(1)(B), or when otherwise ordered, counsel for
the parties (or the party, if proceeding pro se), as soon as practicable and in any event at least
twenty-one (21) days before a scheduling conference is held or a scheduling order is due
32
under Federal Rule of Civil Procedure 16(b), must meet in person, by telephone, or by other
comparable means, for the purposes prescribed by Federal Rule of Civil Procedure 26(f).
(2)
Conference Report. The attorneys of record and all unrepresented parties that have
appeared in the case are jointly responsible for submitting to the Court, within fourteen (14)
days of the conference, a written report outlining the discovery plan and discussing:
(A)
the likelihood of settlement;
(B)
the likelihood of appearance in the action of additional parties;
(C)
proposed limits on the time:
(i)
to join other parties and to amend the pleadings;
(ii)
to file and hear motions; and
(iii)
to complete discovery.
(D)
proposals for the formulation and simplification of issues, including the
elimination of frivolous claims or defenses, and the number and timing of motions
for summary judgment or partial summary judgment;
(E)
the necessity or desirability of amendments to the pleadings;
(F)
the possibility of obtaining admissions of fact and of documents, electronically
stored information or things which will avoid unnecessary proof, stipulations
regarding authenticity of documents, electronically stored information or things, and
the need for advance rulings from the Court on admissibility of evidence;
(G)
suggestions for the avoidance of unnecessary proof and of cumulative evidence;
(H)
suggestions on the advisability of referring matters to a Magistrate Judge or
master;
(I)
a preliminary estimate of the time required for trial;
(J)
requested date or dates for conferences before trial, a final pretrial conference, and
trial;
(K)
any issues about:
(i)
disclosure, discovery, or preservation of electronically stored information,
including the form or forms in which it should be produced;
33
(ii)
claims of privilege or of protection as trial-preparation materials, including -
- if the parties agree on a procedure to assert those claims after production --
whether to ask the court to include their agreement in an order under Federal Rule
of Evidence 502; and
(iii)
when the parties have agreed to use the ESI Checklist available on the Court’s
website (www.flsd.uscourts.gov), matters enumerated on the ESI Checklist; and
(L)
any other information that might be helpful to the Court in setting the case for
status or pretrial conference.
(3)
Joint Proposed Scheduling Order. The Report shall be accompanied by a Joint Proposed
Scheduling Order which shall contain the following information:
(A)
Assignment of the case to a particular track pursuant to Local Rule 16.1(a) above;
(B)
The detailed discovery schedule agreed to by the parties;
(C)
Any agreements or issues to be decided by the Court regarding the preservation,
disclosure, and discovery of documents, electronically stored information, or things;
(D)
Any agreements the parties reach for asserting claims of privilege or protection
of trial preparation material after production;
(E)
A limitation of the time to join additional parties and to amend the pleadings;
(F)
A space for insertion of a date certain for filing all pretrial motions;
(G)
A space for insertion of a date certain for resolution of all pretrial motions by the
Court;
(H)
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;
(I)
A space for insertion of a date certain for the date of pretrial conference (if one is
to be held); and
(J)
A space for insertion of the date certain for trial.
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 sixty (60) days after the appearance of a
defendant and within ninety (90) 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.
34
(4)
Notice of Requirement. Counsel for plaintiff, or plaintiff if proceeding pro se, shall be
responsible for giving notice of the requirements of this subsection to each defendant or
counsel for each defendant as soon as possible after such defendant’s first appearance.
(5)
Exempt Actions. The categories of proceedings exempted from initial disclosures under
Federal Rule of Civil Procedure 26(a)(1)(B) are exempt from the requirements of this
subsection. The Court shall have the discretion to enter a Scheduling Order or hold a
Scheduling Conference in any case even if such case is within an exempt category.
(6)
Compliance with Pretrial Orders. Regardless of whether the action is exempt pursuant
to Federal Rule of Civil Procedure 26(a)(1)(B), the parties are required to comply with any
pretrial orders by the Court and the requirements of this Local Rule including, but not limited
to, orders setting pretrial conferences and establishing deadlines by which the parties’
counsel must meet, prepare and submit pretrial stipulations, complete discovery, exchange
reports of expert witnesses, and submit memoranda of law and proposed jury instructions.
(c)
Pretrial Conference Mandatory. A pretrial conference pursuant to Federal Rule of Civil
Procedure 16(a), shall be held in every civil action unless the Court specifically orders otherwise.
Each party shall be represented at the pretrial conference and at meetings held pursuant to paragraph
(d) hereof by the attorney who will conduct the trial, except for good cause shown a party may be
represented by another attorney who has complete information about the action and is authorized to
bind the party.
(d)
Pretrial Disclosures and Meeting of Counsel. Unless otherwise directed by the Court, at least
thirty (30) days before trial each party must provide to the other party and promptly file and serve
with the Court the information prescribed by Federal Rule of Civil Procedure 26(a)(3). No later than
fourteen (14) days prior to the date of the pretrial conference, or if no pretrial conference is held,
fourteen (14) days prior to the call of the calendar, counsel shall meet at a mutually convenient time
and place and:
(1)
Discuss settlement.
(2)
Prepare a pretrial stipulation in accordance with paragraph (e) of this Local Rule.
(3)
Simplify the issues and stipulate to as many facts and issues as possible.
(4)
Examine all trial exhibits, except that impeachment exhibits need not be revealed.
(5)
Exchange any additional information as may expedite the trial.
(e)
Pretrial Stipulation Must Be Filed. It shall be the duty of counsel to see that the pretrial
stipulation is drawn, executed by counsel for all parties, and filed and served on all parties and filed
with the Court no later than seven (7) days prior to the pretrial conference, or if no pretrial conference
is held, seven (7) days prior to the call of the calendar. The pretrial stipulation shall contain the
following statements in separate numbered paragraphs as indicated:
35
(1)
A short concise statement of the case by each party in the action.
(2)
The basis of federal jurisdiction.
(3)
The pleadings raising the issues.
(4)
A list of all undisposed of motions or other matters requiring action by the Court.
(5)
A concise statement of uncontested facts which will require no proof at trial, with
reservations, if any.
(6)
A statement in reasonable detail of issues of fact which remain to be litigated at trial. By
way of example, reasonable details of issues of fact would include: (A) As to negligence or
contributory negligence, the specific acts or omissions relied upon; (B) As to damages, the
precise nature and extent of damages claimed; (C) As to unseaworthiness or unsafe condition
of a vessel or its equipment, the material facts and circumstances relied upon; (D) As to
breach of contract, the specific acts or omissions relied upon.
(7)
A concise statement of issues of law on which there is agreement.
(8)
A concise statement of issues of law which remain for determination by the Court.
(9)
Each party’s numbered list of trial exhibits, other than impeachment exhibits, with
objections, if any, to each exhibit, including the basis of all objections to each document,
electronically stored information and thing. The list of exhibits shall be on separate schedules
attached to the stipulation, should identify those which the party expects to offer and those
which the party may offer if the need arises, and should identify concisely the basis for
objection. In noting the basis for objections, the following codes should be used:
A–Authenticity
I–Contains inadmissible matter (mentions insurance, prior conviction, etc.) R–
Relevancy
H–Hearsay
UP–Unduly prejudicial-probative value outweighed by undue prejudice
P–Privileged
Counsel may agree on any other abbreviations for objections, and shall identify such codes
in the exhibit listing them.
(10)
Each party’s numbered list of trial witnesses, with their addresses, separately identifying
those whom the party expects to present and those whom the party may call if the need arises.
36
Witnesses whose testimony is expected to be presented by means of a deposition shall be so
designated. Impeachment witnesses need not be listed. Expert witnesses shall be so
designated.
(11)
Estimated trial time.
(12)
Where attorney’s fees may be awarded to the prevailing party, an estimate of each party
as to the maximum amount properly allowable.
(f)
Unilateral Filing of Pretrial Stipulation Where Counsel Do Not Agree. If for any reason the
pretrial stipulation is not executed by all counsel, each counsel shall file and serve separate proposed
pretrial stipulations not later than seven (7) days prior to the pretrial conference, or if no pretrial
conference is held, seven (7) days prior to the call of the calendar, with a statement of reasons no
agreement was reached thereon.
(g)
Record of Pretrial Conference Is Part of Trial Record. Upon the conclusion of the final
pretrial conference, the Court will enter further orders as may be appropriate. Thereafter the pretrial
stipulation as so modified will control the course of the trial, and may be thereafter amended by the
Court only to prevent manifest injustice. The record made upon the pretrial conference shall be
deemed a part of the trial record; provided, however, any statement made concerning possible
compromise settlement of any claim shall not be a part of the trial record, unless consented to by all
parties appearing.
(h)
Discovery Proceedings. All discovery proceedings must be completed no later than fourteen
(14) days prior to the date of the pretrial conference, or if no pretrial conference is held, fourteen (14)
days prior to the call of the calendar, unless further time is allowed by order of the Court for good
cause shown.
(i)
Newly Discovered Evidence or Witnesses. If new evidence or witnesses are discovered after
the pretrial conference, the party desiring their use shall immediately furnish complete details thereof
and the reason for late discovery to the Court and to opposing counsel. Use may be allowed by the
Court in furtherance of the ends of justice.
(j)
Memoranda of Law. Counsel shall serve and file memoranda treating any unusual questions of
law, including motions in limine, no later than seven (7) days prior to the pretrial conference, or if
no pretrial conference is held, seven (7) days prior to the call of the calendar.
(k)
Proposed Jury Instructions or Proposed Findings of Facts and Conclusions of Law. At the
close of the evidence or at an earlier reasonable time that the Court directs, counsel may submit
proposed jury instructions or, where appropriate, proposed findings of fact and conclusions of law
to the Court, with copies to all other counsel. At the close of the evidence, a party may file and serve
additional instructions covering matters occurring at the trial that could not reasonably be
anticipated; and with the Court’s permission, file and serve untimely requests for instructions on any
issue.
37
(l)
Penalty for Failure to Comply. Failure to comply with the requirements of this Local Rule will
subject the party or counsel to appropriate penalties, including but not limited to dismissal of the
cause, or the striking of defenses and entry of judgment.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 1997; April 15, 1998;
April 15, 2001; April 15, 2004; April 15, 2007; April 15, 2010; April 15, 2011; December 1, 2011;
December 3, 2012; December 1, 2015; December 1, 2017; December 2, 2019.
Authority
(1993) Former Local Rule 17.
RULE 16.2 COURT ANNEXED MEDIATION
(a)
General Provisions.
(1)
Definitions. Mediation is a supervised settlement conference presided over by a qualified,
certified, and neutral mediator, or anyone else whom the parties agree upon to serve as a
mediator, to promote conciliation, compromise and the ultimate settlement of a civil action.
A certified mediator is an attorney, certified by the Chief Judge in accordance with these
Local Rules, who possesses the unique skills required to facilitate the mediation process
including the ability to suggest alternatives, analyze issues, question perceptions, use logic,
conduct private caucuses, stimulate negotiations between opposing sides, and keep order.
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), whether any party failed to attend the mediation.
(2)
Purpose. It is the purpose of the Court, through adoption and implementation of this
Local Rule, to provide an alternative mechanism for the resolution of civil disputes leading
to disposition before trial of many civil cases with resultant savings in time and costs to
litigants and to the Court, but without sacrificing the quality of justice to be rendered or the
right of the litigants to a full trial in the event of an impasse following mediation. Mediation
also enables litigants to take control of their dispute and encourages amicable resolution of
disputes.
(b)
Certification; Qualification of Certified Mediators; Compensation of Mediators.
(1)
Certification of Mediators. The Chief Judge shall certify those persons who are eligible
and qualified to serve as mediators under this Local Rule, in such numbers as the Chief Judge
shall deem appropriate. Thereafter, the Chief Judge shall have complete discretion and
authority to withdraw the certification of any mediator at any time.
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(2)
Lists of Certified Mediators. Lists of certified mediators shall be maintained in the offices
of the Clerk of the Court and shall be made available to counsel and the public upon request.
(3)
Qualifications of Certified Mediators. An individual may be certified to serve as a
mediator in this District provided that the individual shall:
(A)
be an attorney who has been admitted for at least ten (10) consecutive years to
one or more State Bars or the Bar of the District of Columbia; and
(B)
currently be a member in good standing of The Florida Bar and the Bar of this
Court; and
(C)
have substantial experience either as a lawyer or mediator in matters brought in
any United States District Court or Bankruptcy Court; and
(D)
have been certified and remain in good standing as a circuit court mediator under
the rules adopted by the Supreme Court of Florida; and
(E)
have substantial experience as a mediator.
The advisory committee may recommend for certification an attorney to serve as a mediator
in this District if it determines that, for exceptional circumstances, the applicant should be
certified who is not otherwise eligible for certification under this section.
Any individual who seeks certification as a mediator shall agree to accept at least two (2)
mediation assignments per year in cases where at least one (1) party lacks the ability to
compensate the mediator, in which case the mediator’s fees shall be reduced accordingly or
the mediator shall serve pro bono (if no litigant is able to contribute compensation).
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.
(4)
Standards of Professional Conduct for Mediators. All individuals who mediate cases
pending in this District shall be governed by the Standards of Professional Conduct in the
Florida Rules for Certified and Court-Appointed Mediators adopted by the Florida Supreme
Court (the “Florida Rules”) and shall be subject to discipline and the procedures therefor set
forth in the Florida Rules. Every mediator who mediates a case in this District consents to
the jurisdiction of the Florida Dispute Resolution Center and the committees and panels
authorized thereby for determining the merits of any complaint made against any mediator in
this District.
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(5)
Oath Required. Every certified mediator shall take the oath or affirmation prescribed by
28 U.S.C. § 453 upon qualifying as a mediator.
(6)
Disqualification of a Mediator. Any person selected as a mediator may be disqualified
for bias or prejudice as provided in 28 U.S. C. § 144, and shall be disqualified in any case in
which such action would be required of a justice, judge, or Magistrate Judge governed by 28
U.S.C. § 455.
(7)
Compensation of Mediators. Mediators shall be compensated (a) at the rate provided by
standing order of the Court, as amended from time to time by the Chief Judge, if the mediator
is appointed by the Clerk on a blind, random basis; or (b) at such rate as may be agreed to in
writing by the parties and the mediator, if the mediator is selected by the parties. Absent
agreement of the parties to the contrary, the cost of the mediator’s services shall be borne
equally by the parties to the mediation conference. A mediator shall not negotiate or mediate
the waiver or shifting of responsibility for payment of mediation fees from one party to the
other. All mediation fees payable under this rule shall be due within forty-five (45) days of
invoice and shall be enforceable by the Court upon motion.
(c)
Types of Cases Subject to Mediation. Unless expressly ordered by the Court, the following
types of cases shall not be subject to mediation pursuant to this rule:
(1)
Habeas corpus cases;
(2)
Motion to vacate sentence under 28 U.S.C. § 2255;
(3)
Social Security cases;
(4)
Civil forfeiture matters;
(5)
IRS summons enforcement actions;
(6)
Land condemnation cases;
(7)
Default proceedings;
(8)
Student loan cases;
(9)
Naturalization proceedings filed as civil actions;
(10)
Statutory interpleader actions;
(11)
Truth-in-Lending Act cases not brought as class actions;
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(12)
Letters rogatory; and
(13)
Registration of foreign judgments.
(d)
Procedures to Refer a Case or Claim to Mediation.
(1)
Order of Referral. In every civil case excepting those listed in Local Rule 16.2(c), the
Court shall enter an order of referral similar in form to the proposed order available on the
Court’s website (www.flsd.uscourts.gov), which shall:
(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)
Direct the parties, within 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) but may by mutual
agreement select any individual as mediator. The parties shall file and serve 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 and serve
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)
Direct that, at least 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.
(2)
Coordination of Mediation Conference. Plaintiff’s counsel (or another attorney agreed
upon by all counsel of record) shall be responsible for coordinating the mediation conference
date and location agreeable to the mediator and all counsel of record.
(3)
Stipulation of Counsel. Any action or claim may be referred to mediation upon stipulation
of the parties.
(4)
Withdrawal from Mediation. Any civil action or claim referred to mediation pursuant to
this rule may be exempt or withdrawn from mediation by the presiding Judge at any time,
before or after reference, upon application of a party and/or determination for any reason that
the case is not suitable for mediation.
(e)
Party Attendance Required. Unless excused in writing by the presiding Judge, all parties and
required claims professionals (e.g., insurance adjusters) shall be physically present at the mediation
conference (i.e., in person if the party is a natural person or by personal attendance of a corporate
representative if the party is an entity) with full authority to negotiate a settlement. If a party to a
mediation is a public entity required to conduct its business pursuant to Florida Statutes Chapter 286,
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and is a defendant or counterclaim defendant in the litigation, that party shall be deemed to appear
at a mediation conference by the physical presence of a representative with full authority to negotiate
on behalf of the entity and to recommend settlement to the appropriate decision-making body of the
entity. The representative shall not be solely the public entity’s counsel (or firm) of record, however,
the representative may be the public entity’s in-house counsel where another counsel of record for
the public entity is also present. In cases where the in-house counsel is counsel of record, that counsel
and another representative may act as duly authorized representatives of the public entity. In cases
where the parties include a public entity and/or individuals who were or are employed by a public
entity or elected officials of a public entity, such individual parties do not need to attend the
mediation conference if all claims asserted against the individuals are covered by insurance or by an
indemnification from the public entity for purposes of mediation. Notwithstanding the foregoing,
counsel representing the individual defendants shall provide the individual defendants with notice of
the mediation conference and the individual defendants shall have the right to attend the mediation
conference. The mediator shall report non-attendance to the Court. Failure to comply with the
attendance or settlement authority requirements may subject a party to sanctions by the Court.
(f)
Mediation Report; Notice of Settlement; Judgment.
(1)
Mediation Report. Within seven (7) days following the mediation conference, the
mediator shall provide the parties with a Mediation Report. If the mediator is an authorized
user of the Court’s electronic filing system (CM/ECF) then the mediator shall electronically
file and serve a Mediation Report. If the mediator is not an authorized CM/ECF user, the
mediator shall either: (a) file the Mediation Report conventionally; or (b) with the consent of
the parties, arrange for one of the parties to file a “Notice of Filing Mediator’s Report,” which
shall attach the report as an exhibit.
(2)
Notice of Settlement. In the event that the parties reach an agreement to settle the case or
claim, counsel shall promptly notify the Court of the settlement pursuant to the requirements
of S.D. Fla. L.R. 16.4.
(g)
Trial upon Failure to Settle.
(1)
Trial upon Failure to Settle. If the mediation conference fails to result in a settlement, the
case will be tried as originally scheduled.
(2)
Restrictions on the Use of Information Derived During the Mediation Conference. All
proceedings of the mediation shall be confidential and are privileged in all respects as
provided under federal law and Florida Statutes § 44.405. The proceedings may not be
reported, recorded, placed into evidence, made known to the Court or jury, or construed for
any purpose as an admission against interest. A party is not bound by anything said or done
at the conference, unless a written settlement is reached, in which case only the terms of the
settlement are binding.
Effective December 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; April 15, 2010; December 1, 2011;
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December 3, 2012; December 1, 2014; December 1, 2015; December 1, 2017; December 3, 2018;
December 2, 2019.
RULE 16.3 CALENDAR CONFLICTS
Calendar conflicts will be resolved and notice shall be given in accordance with the Resolution of
the Florida State-Federal Council Regarding Calendar Conflicts Between State and Federal Courts
(available on the Court’s website: www.flsd.uscourts.gov ) or as otherwise agreed to between the
Judges in a given case.
Effective April 15, 2000. Amended effective April 15, 2006; April 15, 2007; December 1, 2011;
December 1, 2015.
Authority
(2000) Resolution of the Florida State-Federal Council Regarding Calendar Conflicts Between State
and Federal Courts. See also Fla.R.Jud.Admin. 2.052.
(2006) Krasnow v. Navarro, 9 F.2d 451 (11th Cir. 1990).
RULE 16.4 NOTICE OF SETTLEMENT
If the parties reach an agreement to settle the entire case or certain claims or issues therein, counsel
shall notify the Court of such settlement by filing and serving a notice of settlement within two (2)
Court days of such agreement being reached. The notice shall be filed and served jointly by counsel
for all parties to the settlement. Alternatively, the parties may file and serve a notice or stipulation,
as applicable, pursuant to Fed. R. Civ. P. 41. But unless such notice or stipulation is filed within two
(2) Court days of the parties reaching a settlement, the parties are still required to file and serve a
separate notice of settlement.
Effective December 1, 2017; December 3, 2018; December 2, 2019.
RULE 23.1 CLASS ACTIONS
In any case sought to be maintained as a class action:
(a)
The pleading shall bear next to its caption the legend “Class Action.”
(b)
The pleading shall contain under a separate heading, styled “Class Action Allegations:”
(1)
A reference to the portion or portions of Federal Rule of Civil Procedure 23 under
which it is claimed that the suit is properly maintainable as a class action.
(2)
Appropriate allegations thought to justify such claim, including, but not
necessarily limited to:
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(A)
the size (or approximate size) and definition of the alleged class
(B)
the basis upon which the plaintiff (or plaintiffs) claims
(i)
to be an adequate representative of the class, or
(ii)
if the class is composed of defendants, that those named as parties are
adequate representatives of the class
(C)
the alleged questions of law and fact claimed to be common to the class, and
(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.
(c)
In ruling on any motion by a putative class action plaintiff for a determination under
Federal Rule of Civil Procedure 23(c)(1) as to whether an action is to be maintained as a
class action, the Court may allow the action to be so maintained, may disallow and strike the
class action allegations, or may order postponement of the determination pending discovery
or such other preliminary procedures as appear to be appropriate and necessary in the
circumstances. Whenever possible, where it is held that the determination should be
postponed, a date will be fixed by the Court for renewal of the motion.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 2001; April 15,
2004;April 15, 2007; April 15, 2010; December 1, 2011; December 1, 2015.
Authority
(1993) Former Local Rule 19. Renumbered per Model Rules. In accordance with Model Rule 23.1.
RULE 24.1 CONSTITUTIONAL CHALLENGE TO ACT OF CONGRESS OR STATE
STATUTE
(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 28 U.S.C.
§ 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.”
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(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 § 86.091.
(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.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1, 2015.
Authority
(1993) Former Local Rule 9; Model Rule 24.1.
RULE 26.1 DISCOVERY AND DISCOVERY MATERIAL (CIVIL)
(a)
Generally. Parties may stipulate in writing to modify any practice or procedure governing
discovery hereunder unless doing so would violate a Court-ordered deadline, obligation, or
restriction.
(b)
Service and Filing of Discovery Material. Initial and expert disclosures and the following
discovery requests, responses, objections, notices or any associated proof of service shall not be filed
until they are used in the proceeding or the court orders their filing: (1) deposition transcripts; (2)
interrogatories; (3) requests for documents, electronically stored information or things, or to permit
entry upon land; (4) requests for admission; (5) notices of taking depositions or notices of serving
subpoenas; and (6) privilege logs.
(c)
Discovery Material to Be Filed at Outset of Trial or at Filing of Pre-trial or Post-trial
Motions. If any written discovery is to be used at trial or is necessary to a pre-trial or post-trial
motion, the portions to be used shall be filed with the Clerk of the Court, and served on all parties,
at the outset of the trial or at the filing and service on all parties of the motion insofar as their use can
be reasonably anticipated by the parties having custody thereof.
(d)
Completion of Discovery. Party and non-party depositions must be scheduled to occur, and
written discovery requests and subpoenas seeking the production of documents must be served in
sufficient time that the response is due on or before the discovery cutoff date. Failure by the party
seeking discovery to comply with this paragraph obviates the need to respond or object to the
discovery, appear at the deposition, or move for a protective order.
(e)
Interrogatories and Production Requests.
(1)
Each interrogatory objection and/or response must immediately follow the quoted
interrogatory, and no part of an interrogatory shall be left unanswered merely because an
objection is interposed to another part of the interrogatory.
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(2)
Assertion of Privilege:
(A)
Where an objection is made to any interrogatory or subpart thereof or to any
production request under Federal Rule of Civil Procedure 34, the objection shall state
with specificity all grounds. Any ground not stated in an objection within the time
provided by the Federal Rules of Civil Procedure, or any extensions thereof, shall be
waived.
(B)
Where a claim of privilege is asserted in objecting to any interrogatory or
production demand, or sub-part thereof, and a complete answer is not provided on
the basis of such assertion, within the time provided by subpart (D) below:
(i)
The party 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
(ii)
The following information shall be provided in the objection, unless
divulgence of such information would cause disclosure of the allegedly
privileged information:
(a)
For documents or electronically stored information, to the extent the
information is readily obtainable from the witness being deposed or otherwise:
(1)
the type of document (e.g., letter or memorandum) and, if electronically
stored information, the software application used to create it (e.g., MS Word,
MS Excel); (2) general subject matter of the document or electronically stored
information; (3) the date of the document or electronically stored information;
and (4) such other information as is sufficient to identify the document or
electronically stored information for a subpoena duces tecum, including, where
appropriate, the author, addressee, and any other recipient of the document or
electronically stored information, and, where not apparent, the relationship of
the author, addressee, and any other recipient to each other;
(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.
(C)
This rule requires preparation of a privilege log with respect to all documents,
electronically stored information, things and oral communications withheld on the
basis of a claim of privilege or work product protection except the following: written
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and oral communications between a party and its counsel after commencement of the
action and work product material created after commencement of the action.
(D)
Timing for Party Discovery: Unless the parties agree on a different time frame
or the Court orders otherwise, the privilege log required under subpart (C) above
shall be served no later than fourteen (14) days following service of: (i) any
interrogatory response or document production from which some information or
documents are withheld on the basis of such privilege or protection; or (ii) the
response to the request for production if all responsive documents are being
withheld on the basis of such privilege or protection.
(E)
Timing for Non-Party Discovery: Unless the party propounding a non-party
subpoena under Federal Rule of Civil Procedure 45(e)(2)(A) and the recipient of
such a subpoena agree on a different time frame or the Court orders otherwise, the
information required to be provided under Federal Rule of Civil Procedure
45(e)(2)(A)(ii) shall be served no later than (14) days following service of: (i) any
document production provided in response to such a subpoena from which some
documents are withheld on the basis of a claim of privilege or work product
protection; or (ii) any claim of privilege or work product protection in response to
the subpoena if all responsive documents are being withheld on the basis of such
privilege or protection.
(3)
Whenever a party answers any interrogatory by reference to records or materials from
which the answer may be derived or ascertained, as permitted in Federal Rule of Civil
Procedure 33(d), the answering party shall make available:
(A)
any electronically stored information or summaries thereof that it either has or
can adduce by a relatively simple procedure, unless those materials are privileged or
otherwise immune from discovery.
(B)
any relevant compilations, abstracts or summaries in its custody or readily
obtainable by it, unless those materials are privileged or otherwise immune from
discovery.
(C)
the records and materials for inspection and copying within fourteen (14) days
after service of the answers to interrogatories or at a date agreed upon by the parties.
(4)
A party need not provide discovery of electronically stored information from sources that
the party identifies as not reasonably accessible because of undue burden or cost. On motion
to compel discovery or for a protective order, the party from whom discovery is sought must
show that the information is not reasonably accessible because of undue burden or cost. If
that showing is made, the Court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Federal Rule of Civil
Procedure 26(b)(2)(C). The Court may specify conditions for the discovery. Absent
exceptional circumstances, the Court may not impose sanctions under these Local Rules on
47
a party for failing to provide electronically stored information lost as a result of the routine,
good-faith operation of an electronic information system.
(5)
The documents, electronically stored information, or things should be referenced to
specific paragraphs of a request for production where practicable, unless the producing party
exercises its option under Federal Rule of Civil Procedure 34(b) to produce documents as
they are kept in the usual course of business. The party producing documents in response to
a request for production has an obligation to explain the general scheme of record-keeping
to the inspecting party. The objective is to acquaint the inspecting party generally with how
and where the documents, electronically stored information, or things are maintained.
(6)
Each page of any document produced in a non-electronic format must be individually
identified by a sequential number that will allow the document to be identified but that does
not impair review of the document.
(f)
Invocation of Privilege during Depositions.
(1)
Where a claim of privilege is asserted during a deposition and information is not provided
on the basis of such assertion, upon request the attorney or deponent asserting the privilege
shall state the specific nature of the privilege being claimed unless divulgence of such
information would cause disclosure of privileged information.
(2)
After a claim of privilege has been asserted, unless divulgence of requested information
would cause disclosure of privileged information, the attorney or party seeking disclosure
shall have reasonable latitude during the deposition to question the witness to establish other
relevant information concerning the assertion of the privilege, including questions about the
topics set forth in Local Rule 26.1(e)(2)(B)(ii) above.
(g)
Discovery Motions.
(1)
Time for Filing. All disputes related to discovery shall be presented to the Court by
motion (or, if the Court has established a different practice for presenting discovery disputes,
by other Court-approved method) within (30) days from the: (a) original due date (or later
date if extended by the Court or the parties) of the response or objection to the discovery
request that is the subject of the dispute; (b) date of the deposition in which the dispute arose;
or (c) date on which a party first learned of or should have learned of a purported deficiency
concerning the production of discovery materials. Failure to present the dispute to the Court
within that timeframe, absent a showing of good cause for the delay, may constitute a waiver
of the relief sought at the Court’s discretion. The thirty (30) day period set forth in this rule
may be extended once for up to seven (7) additional days by an unfiled, written stipulation
between the parties, provided that the stipulation does not conflict with a Court order.
(2)
Motions to Compel. Except for motions grounded upon complete failure to respond to
the discovery sought to be compelled or upon assertion of general or blanket objections to
discovery, motions to compel discovery in accordance with Federal Rules of Civil Procedure
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33, 34, 36 and 37, or to compel compliance with subpoenas for production or inspection
pursuant to Federal Rule of Civil Procedure 45(c)(2)(B), shall, for each separate
interrogatory, question, request for production, request for admission, subpoena request, or
deposition question, state: (A) verbatim the specific item to be compelled; (B) the specific
objections; (C) the grounds assigned for the objection (if not apparent from the objection);
and (D) the reasons assigned as supporting the motion as it relates to that specific item. The
party shall write this information in immediate succession to enable the Court to rule
separately on each individual item in the motion.
(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) verbatim the
specific item of discovery; (B) the type of protection the party requests; and (C) the reasons
supporting the protection. The party shall write this information in immediate succession to
enable the Court to rule separately on each individual item in the motion.
(h)
Reasonable Notice of Taking Depositions. Unless otherwise stipulated by all interested parties,
pursuant to Federal Rule of Civil Procedure 29, and excepting the circumstances governed by Federal
Rule of Civil Procedure 30(a), a party desiring to take the deposition within the State of Florida of
any person upon oral examination shall give at least seven (7) days’ notice in writing to every other
party to the action and to the deponent (if the deposition is not of a party), and a party desiring to
take the deposition in another State of any person upon oral examination shall give at least fourteen
(14) days’ notice in writing to every other party to the action and the deponent (if the deposition is
not of a party).
Failure to comply with this rule obviates the need for protective order.
Notwithstanding the foregoing, in accordance with Federal Rule of Civil Procedure 32(a)(5)(A), no
deposition shall be used against a party who, having received less than eleven (11) calendar days’
notice of a deposition as computed under Federal Rule of Civil Procedure 6(a), has promptly upon
receiving such notice filed and served a motion for protective order under Federal Rule of Civil
Procedure 26(c)(1)(B) requesting that the deposition not be held or be held at a different time or
place and such motion is pending at the time the deposition is held.
(i)
Subpoenas; Cooperation. Whenever a party, before trial, receives objections, documents,
electronically stored information, or other things from a non-party in response to a subpoena, the
party receiving same shall promptly notify all other parties of such receipt, and shall, upon request,
make the materials available for inspection to all other parties in the same form or format as received
from the non-party. The other parties may request copies of objections, documents, electronically
stored information, or other things, but the expense associated with providing such copies shall be
borne by the party requesting the copies, except by order of the Court for good cause shown. Nothing
49
in this subdivision is intended to create, eliminate, enlarge, or reduce any post-judgment notice,
disclosure, production, or inspection obligations.
Effective December 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; April 15, 2010; April 15, 2011; December 1, 2011; December 1, 2014; December 1,
2015; December 1, 2016; December 3, 2018; December 2, 2019.
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.
RULE 47.1 TAXATION OF COSTS FOR UNDUE INCONVENIENCE TO JURIES
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.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1,
2011; December 1, 2015.
Authority
(1993) Former Local Rule 15.
RULE 56.1 MOTIONS FOR SUMMARY JUDGMENT
(a)
Statements of Material Facts.
(1)
A motion for summary judgment and the opposition to it shall each be accompanied by
a separate and contemporaneously filed and served Statement of Material Facts. The
movant’s Statement of Material Facts shall list the material facts that the movant contends
are not genuinely disputed.
(2)
An opponent’s Statement of Material Facts shall clearly challenge any purportedly
material fact asserted by the movant that the opponent contends is genuinely in dispute. An
opponent’s Statement of Material Facts also may thereafter assert additional material facts
that the opponent contends serve to defeat the motion for summary judgment.
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(3)
The movant shall respond to any additional facts asserted in the opponent’s Statement of
Material Facts even if the movant does not serve a reply memorandum. The due date for the
Reply Statement of Material Facts is the due date for the reply memorandum.
(b)
Form Required for Statements of Material Facts.
(1)
All Statements of Material Facts. All Statements of Material Facts (whether filed by the
movant or the opponent) shall be filed and served as separate documents and not as exhibits
or attachments. In addition, the Statements of Material Facts shall:
(A)
Not exceed ten (10) pages;
(B)
Consist of separately numbered paragraphs, limited as far as practicable to a
single material fact, with each fact supported by specific, pinpoint references to
particular parts of record material, including depositions, documents, electronically
stored information, affidavits, stipulations (including those made for purposes of the
motion only), admissions, and interrogatory answers (e.g., Exhibit D, Smith
Affidavit, ¶2; Exhibit 3, Jones deposition, p. 12/lines 4-9).
The pinpoint citations shall reference pages (and line numbers, if appropriate, of
exhibits, designate the number and title of each exhibit, and provide the ECF number
of all previously filed materials used to support the Statement of Material Facts.
When a material fact requires specific evidentiary support, a general citation to an
exhibit without a page number or pincite (e.g., “Smith Affidavit” or “Jones
Deposition” or “Exhibit A”) is non-compliant. If not already in the record on
CM/ECF, the materials shall be attached to the statement as exhibits specifically
titled within the CM/ECF system (e.g., Smith Affidavit dated April 12, 2017, Jones
Deposition dated May 19, 2018). Reference to a previously filed exhibit shall use
the “ECF No.” format.
(2)
Opponent’s Statement of Material Facts.
(A)
In addition to complying with the requirements of sub-section (b)(1), an
opponent’s Statement of Material Facts shall correspond with the order and paragraph
numbering format used by the movant, but it shall not repeat the text of the movant’s
paragraphs.
(B)
An opponent’s Statement of Material Facts shall use, as the very first word in
each paragraph-by-paragraph response, the word “disputed” or “undisputed.”
(C)
If an opponent’s Statement of Material Facts disputes a fact in the movant’s
Statement of Material Facts, then the evidentiary citations supporting the opponent’s
position must be limited to evidence specific to that particular dispute.
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(D)
Any additional facts that an opponent contends are material to the motion for
summary judgment shall be numbered and placed immediately after the opponent’s
response to the movant’s Statement of Material Facts. The additional facts shall use
separately numbered paragraphs beginning with the next number following the
movant’s last numbered paragraph. The additional facts shall be separately titled as
“Additional Facts” and may not exceed five (5) pages (beyond the ten(10)-page limit
for the opponent’s Statement of Material Facts.
(3)
Reply Statement of Material Facts.
(A)
If an opponent’s Statement of Material Facts includes additional facts, then the
movant shall respond to each additional fact in a separately served Reply Statement
of Material Facts.
(B)
The Reply Statement of Material Facts shall correspond with the order and
paragraph numbering format used in the opponent’s additional facts, identifying with
the very first word in each fact as “disputed” or “undisputed” at the beginning of each
paragraph in the statement, and, if disputed, citing to particular parts of materials in
the record in the same manner as required by subsections (b)(1) and (b)(2).
(C)
The movant may file and serve a reply memorandum of law, which is separate
and distinct from the required Reply Statement of Material Facts addressing the
opponent’s additional facts.
(c)
Effect of Failure to Controvert Undisputed Facts. All material facts in any party’s Statement
of Material Facts may be deemed admitted unless controverted by the other party’s Statement of
Material Facts, provided that: (i) the Court finds that the material fact at issue is supported by
properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply.
(d)
Consequences of Non-Compliance. If a party files and serves any Statement of Material Facts
that does not comply with this rule, then the Court may strike the Statement, require immediate
compliance, grant relief to any opposing party for any prejudice arising from a non-compliant
statement or response, or enter other sanctions that the Court deems appropriate.
Effective December 1, 1994. Amended effective April 15, 1999; April 15, 2002; April 15, 2005;
April 15, 2007; April 15, 2008; April 15, 2010; April 15, 2011; December 1, 2011; December 1,
2015; December 2, 2019.
Authority
(1993) Former Local Rule 10J.
52
RULE 62.1 APPEAL BONDS OR OTHER SECURITY
A supersedeas bond or other security staying execution of a money judgment shall be in the amount
of 110% of the judgment, to provide security for interest, costs, and any award of damages for delay.
Upon its own motion or upon application of a party the Court may direct otherwise.
Effective April 15, 2000. Amended effective April 15, 2007; April 15, 2010; December 1, 2015;
December 3, 2018.
RULE 67.1 COURT REGISTRY AND WRITS OF GARNISHMENT
(a)
Upon the issuance of any Order of Disbursement on the Court registry, the concerned party shall
provide a copy of such Order to the Clerk of the Court’s Financial Administrator or other designated
deputy.
(b)
In any case where an Order of Court directs the Clerk of the Court to handle a specific investment
in a different manner than specified by Internal Operating Procedures, 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.”
(c)
A party applying for the issuance of a writ of garnishment shall pay the amount prescribed by
applicable Florida law to the garnishee. The payment is for the attorneys’ fees of the garnishee.
Monies previously required to be deposited in the non-interest-bearing registry of the Court shall be
disbursed as follows:
(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.
(2)
In cases of a pre-judgment writ of garnishment, if the garnishee fails to make written
demand within sixty (60) days of the conclusion of the case, including all appeals, the Clerk
of the Court shall return such deposit to the depositing party (or their counsel) without further
order or request, unless otherwise directed by the Court.
(3)
In cases of a post-judgment writ of attachment, if the garnishee fails to make written
demand within sixty (60) days after post-judgment proceedings on the writ have concluded,
including all appeals concerning the writ, the Clerk of the Court shall return such deposit to
the depositing party (or their counsel) without further order or request, unless otherwise
directed by the Court.
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(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 December 1, 1994. Amended effective April 15, 2002; April 15, 2007; April 15, 2010;
December 1, 2011; December 1, 2014; December 1, 2015.
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.
RULE 77.1 PHOTOGRAPHING, BROADCASTING, TELEVISING
Other than required by authorized personnel in the discharge of official duties, all forms of equipment
or means of photographing, audio- or video- recording, broadcasting or televising within the
environs of any place of holding court in the District, including courtrooms, chambers, adjacent
rooms, hallways, doorways, stairways, elevators or offices of supporting personnel, whether the
Court is in session or at recess, is prohibited; except that: (a) photographing in connection with
naturalization hearings or other special proceedings, as approved by a Judge of this Court, will be
permitted; and (b) following a declaration of a local, state, or national emergency, audio and video
recording may be permitted by order of the Court.
Effective December 1, 1994. Amended effective April 15, 2007; December 1, 2011; December 1,
2015; December 3, 2018; December 1, 2020.
Authority
(1993) Former Local Rule 20.
(2011) Amended to provide for participation in pilot program for the study of camera use in district
courtrooms pursuant to those guidelines issued by the Judicial Conference Committee on Court
Administration and Case Management (www.uscourts.gov).
54
RULE 77.2 RELEASE OF INFORMATION IN CRIMINAL AND CIVIL PROCEEDINGS
(a)
It is the duty of the lawyer or law firm not to release or authorize the release of information
or opinion which a reasonable person would expect to be disseminated by means of public
communication, in connection with pending or imminent criminal litigation with which the
lawyer or the firm is associated, if there is a reasonable likelihood that such dissemination
will interfere with a fair trial or otherwise prejudice the due administration of justice.
(b)
With respect to a grand jury or other pending investigation of any criminal matter, a
lawyer participating in or associated with the investigation shall refrain from making any
extrajudicial statement which a reasonable person would expect to be disseminated by means
of public communication, that goes beyond the public record or that is not necessary to
inform the public that the investigation is underway, to describe the general scope of the
investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any
dangers, or otherwise to aid in the investigation.
(c)
From the time of arrest, issuance of an arrest warrant, or the filing of a complaint,
information, or indictment in any criminal matter until the commencement of trial or
disposition without trial, a lawyer or law firm associated with the prosecution or defense shall
not release or authorize the release of any extrajudicial statement which a reasonable person
would expect to be disseminated by means of public communication, relating to that matter
and concerning:
(1)
The prior criminal record (including arrests, indictments, or other charges of
crime), or the character or reputation of the accused, except that the lawyer or law
firm may make a factual statement of the accused’s name, age, residence, occupation,
and family status, and if the accused has not been apprehended, a lawyer associated
with the prosecution may release any information necessary to aid apprehension or
to warn the public of any dangers the accused may present.
(2)
The existence or contents of any confession, admission, or statement given by the
accused, or the refusal or failure of the accused to make any statement.
(3)
The performance of any examinations or tests or the accused’s refusal or failure
to submit to an examination or test.
(4)
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.
(5)
The possibility of a plea of guilty to the offense charged or a lesser offense.
(6)
Any opinion as to the accused’s guilt or innocence or as to the merits of the case
or the evidence in the case.
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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.
(d)
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.
(e)
After the completion of a trial or disposition without trial of any criminal matter, and prior
to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense
shall refrain from making or authorizing any extrajudicial statement which a reasonable
person would expect to be disseminated by means of public communication if there is a
reasonable likelihood that such dissemination will affect the imposition of sentence.
(f)
Nothing in this Local Rule is intended to preclude the formulation or application of more
restrictive rules relating to the release of information about juvenile or other offenders, to
preclude the holding of hearings or the lawful issuance of reports by legislative,
administrative, or investigative bodies, or to preclude any lawyers from replying to charges
of misconduct that are publicly made against the lawyer or law firm.
(g)
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 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:
(1)
Evidence regarding the occurrence or transaction involved.
(2)
The character, credibility, or criminal record of a party, witness, or prospective
witness.
(3)
The performance or results of any examinations or tests or the refusal or failure
of a party to submit to such.
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(4)
The lawyer’s opinion as to the merits of the claims or defenses of a party, except
as required by law or administrative rule.
(5)
Any other matter reasonably likely to interfere with a fair trial of the action.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1, 2011;
December 1, 2015.
Authority
(1993) Former Local Rule 21. Rule 4-3.6 of the Rules Regulating The Florida Bar.
RULE 87.1 AUTHORITY OF BANKRUPTCY JUDGES TO MAKE LOCAL RULES
The Bankruptcy Judges of the United States Bankruptcy Court in this District may, by action of a
majority of the Bankruptcy Judges, make local rules of practice and procedure to govern all cases,
proceedings and other matters in the Bankruptcy Court.
Effective December 1, 1994. Amended effective April 15, 2007; December 1, 2015.
RULE 87.2 REFERENCE OF BANKRUPTCY MATTERS
(a)
General Order of Reference. Pursuant to 28 U.S.C. § 157(a) and the Order of Reference entered
March 27, 2012 (see Order of Reference available on Court’s website, www.flsd.uscourts.gov), all
cases under Title 11, United States Code, and all proceedings under Title 11, United States Code or
arising in or related to cases under Title 11, United States Code, are referred to the Bankruptcy Judges
for this District and shall be commenced in the Bankruptcy Court pursuant to the Local Bankruptcy
Rules. The Order of Reference also applies to notices of removal pursuant to 28 U.S.C. § 1452(a),
which shall be filed with the Clerk of the Bankruptcy Court for the Division of the District where
such civil action is pending. The removed claim or cause of action shall be assigned as an adversary
proceeding in the Bankruptcy Court.
(b)
Authority of Bankruptcy Judges. If a Bankruptcy Judge or District Judge determines that entry
of a final order or judgment by a Bankruptcy Judge would not be consistent with Article III of the
United States Constitution in a particular case or proceeding referred under the Order of Reference
and determined to be a core matter, the Bankruptcy Judge shall, unless otherwise ordered by the
District Court, hear the case or proceeding and submit proposed findings of fact and conclusions of
law stated on the record or in an opinion or memorandum of decision.
(c)
Authority of District Court to Treat Final Orders as Proposed Findings and Conclusions.
As provided in Federal Rule of Bankruptcy Procedure 8018.1, if, on appeal, the District Court
determines that the Bankruptcy Court did not have the power under Article III of the United States
Constitution to enter the judgment, order, or decree appealed from, the District Court may treat such
judgment, order, or decree as proposed findings of fact and conclusions of law.
57
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; April 15, 2010; December 1,
2015; December 2, 2019.
RULE 87.3 MOTIONS FOR WITHDRAWAL OF REFERENCE OF CASE OR
PROCEEDING FROM THE BANKRUPTCY COURT
A motion to withdraw the reference pursuant to 28 U.S.C. § 157(d) shall be filed with the Clerk of
the Bankruptcy Court in accordance with the requirements of Local Bankruptcy Rule 5011-1 and
served on all parties. Subsequently filed motions for withdrawal of reference in the same case or
proceeding shall be regarded as similar actions and proceedings under Local Rule 3.8 and the
attorneys of record shall notify the District Court of all such pending actions and proceedings in
compliance with Local Rule 3.8. and, if applicable, provide the notice required by Local Rule 7.1(f).
Effective April 15, 1996. Amended effective April 15, 1999; April 15, 2007; April 15, 2010;
December 1, 2015; December 2, 2019.
RULE 87.4 BANKRUPTCY APPEALS
Bankruptcy appeals to the District Court are governed by the Federal Rules of Bankruptcy
Procedure, particularly Rules 8001 through 8028, and the Local Rules of the Bankruptcy Court. As
is authorized by Federal Rule of Bankruptcy Procedure 8026, those rules are supplemented as
follows:
(a)
Assignment. Appeals from orders or judgments entered by the Bankruptcy Court shall generally
be assigned in accordance with the Court’s Internal Operating Procedures. Appeals from orders in a
bankruptcy case or proceeding in which appeals have been taken from prior orders in the same case
or proceeding shall be regarded as similar actions and proceedings under Local Rule 3.8 and it will
be the continuing obligation of the Clerk of the District Court and the attorneys of record to comply
with Local Rule 3.8.
(b)
Docketing of Notice of Appeal in District Court. All notices of appeal filed in the Bankruptcy
Court under Federal Rule of Bankruptcy Procedure 8003 and 8004 shall be electronically transmitted
promptly to the Clerk of the District Court by the Bankruptcy Clerk resulting in the opening of a new
civil case in District Court’s automated case management system CM/ECF.
(c)
Limited Authority of Bankruptcy Court to Enter Orders Prior to Transmittal of Record to
District Court. After the notice of appeal is electronically transmitted to the District Court and a
civil case is opened but before the record is transmitted to the District Court, the Bankruptcy Court
is authorized and directed to dismiss an appeal for appellant’s: (1) failure to pay the prescribed filing
fees; (2) failure to comply with the time limitations specified in Federal Rule of Bankruptcy
Procedure 8002; or (3) failure to file a designation of the items for the record or copies thereof or a
statement of the issues as required by Federal Rule of Bankruptcy Procedure 8009, and Local
Bankruptcy Rule 8009-1. The Bankruptcy Court is further authorized and directed to hear, under
58
Federal Rule of Bankruptcy Procedure 9006(b), motions to extend the foregoing deadlines and to
consolidate appeals that present similar issues from a common record. The Bankruptcy Court is also
authorized to consider motions for stay pending appeal filed under Federal Rule of Bankruptcy
Procedure 8007(a). Bankruptcy Court orders entered under this subsection shall be docketed in the
Bankruptcy Court docket and transmitted to the District Court for docketing in the District Court
case. Bankruptcy Court orders entered under this subsection may be reviewed by the District Court
on motion filed in the District Court within fourteen (14) days after entry of the order on the District
Court docket. A motion seeking review shall be filed pursuant to section (d) of this Local Rule.
(d)
Motions for Stay and Other Intermediate Requests for Relief. Motions for stay pending
appeal filed in the District Court pursuant to Federal Rule of Bankruptcy Procedure 8007(b), 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
8010(c), shall be filed in the District Court case opened upon transmittal to the District Court of the
notice of appeal and served on all parties. The movant shall designate 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 immediately to transmit a copy of the order ruling on said motion
to the Clerk of the Bankruptcy Court. Local Rules 5.1 and 7.1 shall apply to motions for stay and
other motions seeking intermediate appellate relief from the District Court.
(e)
Motions for Leave to Appeal. A motion for leave to appeal and notice of appeal shall be filed
in the Bankruptcy Court pursuant to Local Bankruptcy Rule 8004-1 and served on all parties. Upon
transmittal of the notice, motion, and related documents to the District Court, a civil case shall be
opened as provided in subsection (b) of this Local Rule.
Upon disposition of the motion, the Clerk of the District Court immediately shall transmit a copy of
the District Court order to the Clerk of the Bankruptcy Court. If the motion for leave to appeal is
granted, the appeal will proceed under the original case number and the Clerk of the Bankruptcy
Court will prepare and transmit the record on appeal.
(f)
Briefs.
(1)
Briefing Schedule. The briefing schedule specified by Federal Rule of Bankruptcy
Procedure 8018 may be altered only by order of the District Court. If the Clerk of the District
Court does not receive appellant’s brief within the time specified by Federal Rule of
Bankruptcy Procedure 8018, and there is no motion for extension of time pending, the Clerk
of the District Court shall furnish to the judge to whom the appeal is assigned a proposed
order for dismissal of the appeal.
(2)
Form and Length of Briefs. The form and length of briefs specified by Federal Rule of
Bankruptcy Procedure 8015, and summarized in the Federal Rules of Bankruptcy Procedure
Part VIII Appendix: Length Limits Stated in Part VIII of the Federal Rules of Bankruptcy
Procedures, may be altered only by the order of the District Court. Failure to comply with
Federal Rule of Bankruptcy Procedure 8015 may result in the striking of a brief. District
Court Local Rules 5.1 and 7.1 do not apply to briefs governed by Federal Rule of Bankruptcy
59
Procedure 8015.
(g)
Oral Argument. Any party requesting oral argument shall make the 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.
(h)
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 8024(a) and, in
accordance with Federal Rule of Bankruptcy Procedure 8024(b), immediately shall 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.
(i)
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)(4).
(j)
Notice. The Clerk of the Bankruptcy Court shall provide reference to this Local Rule with the
notice of appeal provided to each party in accordance with Federal Rule of Bankruptcy Procedure
8003(c)(1). Failure to receive such a copy will not excuse compliance with all provisions of this
Local Rule.
(k)
Court Discretion. This Local Rule is not intended to exhaust or restrict the District Court’s
discretion as to any aspect of any appeal.
(l)
Sealed Documents. Pursuant to Federal Rule of Bankruptcy Procedure 8009(f), if a document
sealed by the Bankruptcy Court is to be included in the record on appeal, a motion must be filed in
the District Court to accept the sealed document and served on all parties. If the motion is granted,
the Bankruptcy Clerk promptly will transmit the sealed document to the District Court Clerk.
Effective April 15, 1996. Amended effective April 15, 1999; April 15, 2007; April 15, 2009; April
15, 2010; December 1, 2011; December 1, 2015; December 2, 2019.
Authority
Former Local Rule 27; (1996) renumbered from Local Rule 87.2 (1993).
RULE 87.5 DESIGNATION OF BANKRUPTCY JUDGES TO CONDUCT JURY TRIALS
The Bankruptcy Judges of this District are specially designated to conduct jury trials, with the
express consent of all parties, in all proceedings under 28 U.S.C. § 157 in which the right to a jury
trial applies. Pleading and responding to a jury trial demand in bankruptcy cases is governed by
Local Bankruptcy Rule 9015-1. Local Rule 47.1 shall apply to jury trials conducted by Bankruptcy
Judges under this rule.
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Effective April 15, 1999. Amended effective April 15, 2007; April 15, 2010; December 1, 2015.
Comment
(1999) Incorporates the provisions of Administrative Order 96-03 “In re: Designation of Bankruptcy
Judges to Conduct Jury Trials” available on the Court’s website (www.flsd.uscourts.gov).
RULE 88.1 APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN
CRIMINAL PROCEEDINGS
The appointment of counsel and counsel’s obligations in the representation of indigent defendants
in criminal proceedings pursuant to Federal Rule of Criminal Procedure 44 shall be in accordance
with the “Plan of the United States District Court for the Southern District of Florida Pursuant to the
Criminal Justice Act of 1964, as Amended.” The current plan is available on the Court’s website
(www.flsd.uscourts.gov).
Effective December 1, 1994. Amended effective April 15, 2007; December 3, 2012; December 1,
2015.
Authority
(1993) Former Local Rule 17, updated.
RULE 88.2. POST CONVICTION, HABEAS CORPUS, AND CIVIL RIGHTS
PROCEEDINGS
(a)
The following petitions, motions, and complaints must substantially follow the forms, if any,
prescribed by the Court and obtained from the Clerk of the Court upon request:
(1)
Petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (common law habeas
corpus),
(2)
Petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (state prisoner attacking
conviction),
(3)
Motions to Vacate pursuant to 28 U.S.C. § 2255 (federal prisoner attacking conviction),
(4)
Civil rights complaints pursuant to 42 U.S.C. § 1983 (Constitutional deprivation under
color of state law),
(5)
Civil rights complaints pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971) (Constitutional deprivation under color of federal law).
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Each must be signed under penalty of perjury by petitioner/movant or by a person authorized to sign
it for petitioner/movant and, together with filing fee, if any, shall be filed in the Clerk’s Office and
served according to Federal Rule of Civil Procedure 5.
(b)
When a petition, motion to vacate, or complaint is submitted in forma pauperis, the
petitioner/movant/plaintiff shall submit the form “Application to Proceed Without Prepayment of
Fees and Affidavit,” which may be obtained from the Clerk of the Court, or an affidavit which
substantially follows the form, and shall, under oath, set forth information which establishes that he
or she is unable to pay the fees and costs of the proceedings referenced above.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2011; December 1, 2015.
Authority
(1993) Former Local Rule 18.
RULE 88.3. PETTY AND CERTAIN MISDEMEANOR OFFENSES
(a)
Covered Offenses. This Rule shall apply to petty offenses, as defined in 18 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 Rule as “covered offenses.”
(b)
Collateral and Mandatory Appearance.
(1)
Covered offenses that are committed on or within the perimeter of Federally-owned or
controlled buildings or within the boundaries of National Parks, Preserves, Historic Sites, or
Government Reservations, including but not limited to military installations, and violations
under various Treaties and Wildlife Acts, for which collateral may be posted and forfeited in
lieu of appearance by the person charged, together with the amount of collateral to be posted
and offenses for which a mandatory appearance is required shall be in accordance with
schedules which may from time to time be approved by the Court and filed with the Clerk of
the Court.
(2)
Collateral may not be posted for any covered offense if the alleged violator has previously
been convicted of any such offense.
(c)
Forfeiture of Collateral.
(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.
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(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.
(d)
Failure to Post Collateral.
(1)
If a person charged with a covered offense for which collateral is required fails to post
and forfeit collateral, any punishment, including fine, imprisonment or probation may be
imposed within the limits established by law upon conviction by plea or after trial.
(2)
No person shall be detained for failure to post collateral for a covered offense for which
collateral may be posted unless the person is placed under arrest.
(e)
Arrest. Nothing contained in these Local Rules shall prohibit a law enforcement officer from
arresting an alleged violator for the commission of any offense, including those for which collateral
may be posted or mandatory appearance required, and forthwith notifying a Magistrate Judge for the
purpose of appearance or setting bail.
(Schedule of fines and mandatory appearance is on file with Clerk’s Office and agencies charged
with enforcement thereof.)
Effective December 1, 1994. Amended effective April 15, 2006; April 15, 2007; April 15, 2009;
April 15, 2010; December 1, 2011, December 1, 2015; December 2, 2019.
Authority
(1993) Former Local Rule 22.
(2011) Amended to merge Local Rule 88.4 into Local Rule 88.3.
RULE 88.5 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 and serve on all parties a status report as to each defendant which shall include a
concise statement of:
(a)
All excludable time as recorded on the docket on which there is agreement, including the
applicable statutes. Such agreement shall be conclusive as between the parties, unless it has
no basis in fact or law.
(b)
All excludable time as recorded on the docket on which there is conflict, including the
applicable statutes or law.
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(c)
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.
(d)
Any agreement by the parties as to excludable time which exceeds the amount recorded
on the docket shall have no effect unless approved by the Court.
Effective December 1, 1994. Amended effective April 15, 1998; April 15, 1999; April 15, 2007;
April 15, 2010; December 1, 2011; December 1, 2015; December 2, 2019.
Authority
(1993) Former Local Rule 25. Title 18, United States Code, Section 3161.
(2011) Amended to eliminate authority of Court to accept a waiver of Speedy Trial rights. See
Zedner v. United States, 547 U.S. 489 (2006).
RULE 88.7 RETAINED CRIMINAL DEFENSE ATTORNEYS
(a)
Retained criminal defense attorneys are expected to make financial arrangements satisfactory to
themselves and sufficient to provide for representation of each defendant until the conclusion of the
defendant’s case at the trial level. Failure of a defendant to pay sums owed for attorney’s fees, or
failure of counsel to collect a sum sufficient to compensate him for all the services usually required
of defense counsel, will not constitute good cause for withdrawal after arraignment. Every defendant,
of course, has a right to appeal from any conviction.
(b)
All notices of permanent appearance in the District Court, and motions for substitution of
counsel, shall state whether the appearance of counsel is for trial only or for trial and appeal.
(c)
At arraignment, the Magistrate Judge will inquire of each defendant and counsel whether counsel
has been retained for trial only or for trial and appeal. Where counsel indicates that he or she has
been retained only for trial, the defendant will be notified that it is the defendant’s responsibility to
arrange for counsel for any necessary appeals.
(d)
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 (i) the defendant’s qualified Sixth Amendment right to counsel of
choice, recognizing the distinction between choosing a trial lawyer and choosing an appellate lawyer;
(ii) the contract between the defendant and trial counsel; (iii) the defendant’s present financial
condition and ability to have retained only trial counsel; (iv) retained counsel’s appellate experience;
(v) the financial burden that prosecuting the appeal would impose upon trial counsel, in view of the
fee received and the professional services rendered; and (vi) all other relevant factors, including any
constitutional guarantees of the defendant.
(e)
In assessing whether the legal fees previously paid to defense counsel should reasonably
encompass appellate representation, the Court is to apply the provisions of Rule 4-1.5 of the Rules
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Regulating The Florida Bar. The Court is to consider the following factors as guides in determining
the reasonableness of the fee: (i) the time and labor required, the novelty, complexity, and difficulty
of the questions involved, and the skill requisite to perform the legal service proffered; (ii) the
likelihood that the acceptance of the particular employment precluded other employment by the
lawyer; (iii) the fee, or rate of fee, customarily charged in the locality for legal services of a
comparable or similar nature; (iv) the significance of, or amount involved in, the subject matter of
the representation, the responsibility involved in the representation, and the results obtained; (v) the
time limitations imposed by the client or by the circumstances and, as between attorney and client,
any additional or special time demands or requests of the attorney by the client; (vi) the nature and
length of the professional relationship of the client; and (vii) the experience, reputation, diligence and
ability of the lawyer or lawyers performing the service and the skill, expertise or efficiency of efforts
reflected in the actual providing of such services.
In determining a reasonable fee, the time devoted to the representation and the customary rate of fee
are not the sole or controlling factors; nor should the determination be governed by fees or rates of
fee provided under the Criminal Justice Act. All factors set out in this Local Rule and in the Rules
Regulating The Florida Bar should be considered, and may be applied, in justification of a fee higher
or lower than that which would result from application of only the time and rate factors.
(f)
Those parts of proceedings undertaken pursuant to paragraphs (d) and (e) of this Local Rule that
involve confidential or privileged information or communications shall be held in camera, ex-parte,
and under seal.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 2, 2013; December 1, 2015.
Authority
(1993) New added at the request of the Eleventh Circuit.
RULE 88.8 PRESENTENCE INVESTIGATIONS
(a)
Within 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.
(b)
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 and serve on all parties 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.
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(c)
The recommendation as to sentencing made to the Court by the United States Probation Office
shall remain confidential.
(d)
Counsel for the parties may retain the PSI in their custody, and counsel for the defendant shall
provide a copy to the defendant. However, the PSI is a confidential document and neither the parties
nor their counsel are authorized to duplicate or disseminate it to third parties without prior permission
of the Court.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1, 2011;
December 1, 2015; December 2, 2019.
Authority
Administrative Order 95-02.
RULE 88.9 MOTIONS IN CRIMINAL CASES
(a)
Motions in criminal cases are subject to the requirements of, and shall comply with, Local Rule
7.1. with the following exceptions:
Section 7.1(a)(3), which is superseded by this Local Rule.
Section 7.1(b), which pertains to hearings. Hearings on criminal motions may be set by the Court
upon appropriate request or as required by the Federal Rules of Criminal Procedure and/or
Constitutional Law.
In addition, at the time of filing motions in criminal cases, counsel for the moving party shall file
with the Clerk of the Court a statement certifying either: (1) that counsel have conferred in a good
faith effort to resolve the issues raised in the motion and have been unable to do so; or (2) that counsel
for the moving party has made reasonable effort (which shall be identified with specificity in the
statement) to confer with the opposing party but has been unable to do so. This requirement to confer
shall not apply to ex parte filings.
(b)
Motions in criminal cases which require evidentiary support shall be accompanied by a concise
statement of the material facts upon which the motion is based.
(c)
Motions in criminal cases shall be filed and served within twenty-eight (28) days from the
arraignment of the defendant to whom the motion applies, except that motions arising from a post-
arraignment event shall be filed and served within a reasonable time after the event.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 1997; April 15, 1998;
April 15, 2003; April 15, 2007; April 15, 2010; December 1, 2014; December 1, 2015; December 2,
2019.
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Authority
(1994) Formerly Local Rule 10G; inadvertently omitted in 1993 revision.
(1996) B. From Local Rule 7.5 and former Local Rule 10.H.
RULE 88.10 CRIMINAL DISCOVERY
(a)
A defendant’s request to the Court for entry of the Standing Discovery Order shall constitute a
discovery request by the defendant under Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), (E), and (F),
and, following entry of the Standing Discovery Order, the government shall comply with the
obligations imposed upon it by Fed. R. Crim. P. 16(a)(1)(A-F), and shall permit the defendant to
inspect and copy the written or recorded statements made by the defendant, 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, all subject to the provisions of Fed. R. Crim. P. 16(a)(2).
(b)
Following a defendant’s request to the Court for entry of the Standing Discovery Order and the
Court’s entry of the Standing Discovery Order, the defendant, subject to the provisions of Fed. R.
Crim. P. 16(b)(2), shall:
(1)
after the government complies with Fed. R. Crim. P. 16(a)(1)(E), comply with the
obligations that arise under Fed. R. Crim. P. 16(b)(1)(A); and
(2)
after the government complies with Fed. R. Crim. P. 16(a)(1)(F), comply with the
obligations that arise under Fed. R. Crim. P. 16(b)(1)(B).
(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)
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)
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)
The government shall state whether defendant was identified in any lineup, showup, photo array
or similar identification proceeding, and produce any pictures utilized or resulting therefrom.
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(g)
The government shall advise its agents and officers involved in this case to preserve all rough
notes.
(h)
The government shall comply with the notice obligations set forth in Federal Rule of Evidence
404(b).
(i)
The government shall state whether the defendant was an aggrieved person, as defined in 18
U.S.C. § 2510(11), of any relevant electronic surveillance that was authorized pursuant to 18 U.S.C. § 2516
and 18 U.S.C. § 2518 and that has been unsealed in accordance with 18 U.S.C. § 2518, and if so, shall set
forth in detail the circumstances thereof.
(j)
The government shall have transcribed the grand jury testimony of all witnesses who will testify
for the government at the trial of this cause, preparatory to a timely motion for discovery.
(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. § 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)
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)
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.
(n)
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.
(o)
Schedule of Discovery.
(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.
(2)
Discovery which is to be made in connection with trial shall be made not later than
fourteen (14) days after the arraignment, or such other time as ordered by the court.
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(3)
Discovery which is to be made in connection with post-trial hearings (including, by way
of example only, sentencing hearings) shall be made not later than seven (7) days prior to the
hearing. This discovery rule shall not affect the provisions of Local Rule 88.8 regarding pre-
sentence investigation reports.
(4)
It shall be the continuing duty of counsel for both sides to immediately reveal to opposing
counsel all newly discovered information or other material within the scope of this Local
Rule.
(5)
In accordance with Fed. R. Crim. P. 16.1(a), no later than fourteen (14) days after a
defendant’s arraignment, the attorney for the government and the defendant’s attorney must
confer and try to agree on:
(A)
any anticipated request for modification of the timetables and procedures for
pretrial disclosure prescribed by this rule and Fed. R. Crim. P. 16; or
(B)
a timetable and procedures for pretrial disclosure under Rule 16 if the Standing
Discovery has not been requested and entered.
In accordance with Fed. R. Crim. P. 16.1(b), to facilitate preparation for trial, one or both
parties may ask the court to modify the time, place, manner, or other aspects of disclosure
prescribed by this rule or Fed. R. Crim. P. 16, or to determine the time, place, manner or
other aspects of disclosure that have not already been determined by this rule or Fed. R. Crim.
P. 16.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 1998; April 15, 2000;
April 15, 2003; April 15, 2005; April 15, 2007; April 15, 2010; December 2, 2013; December 1,
2015; December 1, 2016; December 2, 2019, December 1, 2020.
Authority
(1994) Former Standing Order on Criminal Discovery of the Southern District, as amended after
public hearing in 1994.
Comments
(2000) With regard to discovery practices related to search warrants in criminal cases see September
7, 1999, letter from the then United States Attorney for the Southern District of Florida which has
been posted at the U.S. Attorney’s website at
http://www.usdoj.gov/usao/fls/Discovery_Practices.html.
RULE 88.11 AFTER HOURS CRIMINAL DUTY PROCEDURES
When a defendant is arrested after hours (in the evening, on the weekend, on a holiday, or in the
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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.
Since a probable causes determination must be made within forty-eight (48) hours of all arrests,
except as Federal Rule of Criminal Procedure 4.1 may otherwise provide, a criminal complaint must
be presented directly to a Magistrate Judge for review and approval in all cases where the initial
appearance will not take place within forty-eight (48) hours of an arrest.
All after-hours Duty arrests (including but not limited to arrests on warrants where bonds have
already been endorsed/set) shall be reported to the Duty Magistrate Judge by the Duty Assistant
United States Attorney.
Effective April 15, 2006. Amended effective April 15, 2007; December 1, 2011; December 1, 2015.
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TABLE OF REPEALED AND RELOCATED LOCAL RULES
The following Local Rules have been repealed or relocated since December 1, 2008:
RULE 3.2 SEPARATE DOCKETS
[Repealed December 1, 2011; reserved for future use.]
RULE 3.4 ASSIGNMENT OF ACTIONS AND PROCEEDINGS
[Repealed December 1, 2011 and relocated to the Court’s Internal Operating Procedures; reserved
for future use.]
RULE 3.5 RESPONSIBILITY FOR ACTIONS AND PROCEEDINGS
[Repealed December 1, 2011 and relocated to the Court’s Internal Operating Procedures; reserved
for future use.]
RULE 3.6 RECUSALS
[Repealed December 1, 2011 and relocated to the Court’s Internal Operating Procedures; reserved
for future use.]
RULE 3.7 REASSIGNMENT OF CASES DUE TO RECUSAL, TEMPORARY
ASSIGNMENT OR EMERGENCY
[Repealed December 1, 2011 and relocated to the Court’s Internal Operating Procedures; reserved
for future use.]
RULE 5.5 ELECTRONIC FILING THROUGH CM/ECF
[Repealed December 1, 2011; reserved for future use.]
RULE 12.1 CIVIL RICO CASE STATEMENT
[Repealed December 1, 2011; reserved for future use.]
RULE 30.1 SANCTIONS FOR ABUSIVE DEPOSITION CONDUCT
[Repealed December 1, 2011.]
RULE 34.1 MARKING DOCUMENTS
[Repealed December 1, 2011 and relocated to Local Rule 26.1(g); reserved for future use.]
RULE 40.1 NOTICE THAT ACTION IS AT ISSUE
[Repealed April 15, 2008; reserved for future use.]
RULE 41.1 DISMISSAL FOR WANT OF PROSECUTION
[Repealed April 15, 2008; reserved for future use.]
RULE 45.1 SUBPOENAS FOR DEPOSITION AND TRIAL
[Repealed December. 1, 2011; reserved for future use.]
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RULE 88.4 CERTAIN OFFENSES PERTAINING TO NATIONAL PARKS, PRESERVES,
GOVERNMENT RESERVATIONS, HISTORIC SITES, TREATIES AND WILDLIFE
ACTS
[Repealed December 1, 2011; reserved for future use.]
RULE 88.6 DANGEROUS SPECIAL OFFENDER NOTICE
[Repealed December 1, 2011; reserved for future use.]
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ADMIRALTY AND MARITIME RULES
RULE A. GENERAL PROVISIONS
(1)
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.
(2)
Citation Format.
(a)
The Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules
of Civil Procedure shall be cited as “Supplemental Rule ( )”.
(b)
The Local Admiralty and Maritime Rules shall be cited as “Local Admiralty Rule
( )”.
(3)
Application of Local Admiralty and Maritime Rules. The Local Admiralty Rules shall apply
to all actions governed by Local Admiralty Rule A(1), 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.
(4)
Designation of “In Admiralty” Proceedings. Every complaint filed as a Federal Rule of Civil
Procedure 9(h) action shall boldly set forth the words “IN ADMIRALTY” following the designation
of the Court. This requirement is in addition to any statements which may be contained in the body
of the complaint.
(5)
Verification of Pleadings, Claims and Answers to Interrogatories. Every complaint and claim
filed pursuant to Supplemental Rules B, C and/or D shall be verified on oath or solemn affirmation
by a party, or an officer of a corporate party.
If a party or corporate officer is not within the District, verification of a complaint, claim and/or
answers to interrogatories may be made by an agent, an attorney-in-fact, or the attorney of record.
Such person shall state briefly the source of his or her knowledge, or information and belief, and
shall declare that the document affirmed is true to the best of his or her knowledge, and/or
information and belief. Additionally, such person shall state that he or she is authorized to make this
representation on behalf of the party or corporate officer, and shall indicate why verification is not
made by a party or a corporate officer. Such verification will be deemed to have been made by the
party to whom the document might apply as if verified personally.
Any interested party may move the Court, with or without a request for stay, for the personal oath
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.
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(6)
Issuance of Process. Except as limited by the provisions of Supplemental Rule B(1) and Local
Admiralty Rule B(3) or Supplemental Rule C(3) and Local Admiralty Rule C(2); or in suits
prosecuted in forma pauperis and sought to be filed without prepayment of fees or costs, or without
security; all process shall be issued by the Court without further notice of Court.
(7)
Publication of Notices. Unless otherwise required by the Court, or applicable Local Admiralty
or Supplemental Rule, whenever a notice is required to be published by any statute of the United
States, or by any Supplemental Rule or Local Admiralty Rule, such notice shall be published at least
once, without further order of Court, in an approved newspaper in the county or counties where the
vessel or property was located at the time of arrest, attachment, or seizure, and if different, in the
county within the Southern District of Florida where the lawsuit is pending.
For purposes of this subsection, an approved newspaper shall be a newspaper of general circulation,
designated from time to time by the Court. A listing of these approved newspapers will be made
available in the Clerk’s Office during normal business hours.
(8)
Form and Return of Process in In Personam Actions. Unless otherwise ordered by the Court,
Federal Rule of Civil Procedure 9(h) process shall be by civil summons, and shall be returnable
twenty-one (21) days after service of process; except that process issued in accordance with
Supplemental Rule B shall conform to the requirements of that rule.
(9)
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.
(10)
Forms. The forms presented on the Court’s website (www.flsd.uscourts.gov) provide an
illustration of the format and content of papers filed in admiralty and maritime actions within the
Southern District of Florida. While the forms are sufficient, they are neither mandatory nor
exhaustive.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2015.
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.
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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.
Reference to the former Local Admiralty Rules refers to the former Local Rules of the Southern
District of Florida.
(b)
Comments on Specific Sections. These Local Admiralty Rules are substantially similar to the
Local Rules for the Middle District and therefore provide for consistency and uniformity in admiralty
and maritime claims in the state.
A(1) and A(3) continue in substance former Local Admiralty Rule 1(a).
A(4) continues the “IN ADMIRALTY” designation requirements of former Local Admiralty Rule
7(a). Under the revised rule, the “IN ADMIRALTY” designation is required to be posted to all
complaints even if the complaint is filed as a Federal Rule of Civil Procedure 9(h) action and
jurisdiction would exist on another basis, e.g., federal question or diversity jurisdiction.
A(5) continues the requirements of former Local Admiralty Rule 8.
A(6) continues the requirements of former Local Admiralty Rule 2(a).
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(8) continues the requirements of former Local Admiralty Rule 2(c).
A(9) adopts the definition of “Court” provided in the Advisory Notes to the August 1, 1985,
amendments to the Supplemental Rules.
As defined in these Local Admiralty Rules, the terms “Court” or “judicial officer” shall extend to
United States Magistrates Judges assigned to the Southern District of Florida. The committee notes
that the delegation of the duties contemplated by this definition are consistent with the jurisdictional
grant to the United States Magistrate Judges as set forth in Title 28, United States Code, Section
636(a).
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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 that forms pertinent to the Local Admiralty Rules are found at the Court’s website
(www.flsd.uscourts.gov). 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 forms (now
found on the Court’s website) provide an alternate method of presenting the format and content of
necessary admiralty forms.
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 Court’s website 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.
RULE B. ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS
(1)
Definition of “Not Found Within the District.” In an action in personam filed pursuant to
Supplemental Rule B, a defendant shall be considered “not found within the District” if the defendant
cannot be served within the Southern District of Florida with the summons and complaint as
provided by Federal Rule of Civil Procedure 4(e)(1) or (2), (g), or h(1).
(2)
Verification of Complaint Required. In addition to the specific requirements of Local
Admiralty Rule A(5), whenever verification is made by the plaintiff’s attorney or agent, and that
person does not have personal knowledge, or knowledge acquired in the ordinary course of business
of the facts alleged in the complaint, the attorney or agent shall also state the circumstances which
make it necessary for that person to make the verification, and shall indicate the source of the
attorney’s or agent’s information.
(3)
Pre-seizure Requirements. In accordance with Supplemental Rule B(1), the process of
attachment and garnishment shall issue only after one of the following conditions has been met:
(a)
Judicial Review Prior to Issuance. Except as provided in Local Admiralty Rule B(3)(b),
a judicial officer shall first review the verified complaint, and any other relevant case papers,
prior to the Clerk of the Court issuing the requested process of attachment and garnishment.
No notice of this pre-arrest judicial review is required to be given to any person or prospective
party.
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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 on the Court’s website (www.flsd.uscourts.gov).
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), issue the summons and process of attachment and
garnishment. Thereafter the Clerk of the Court may issue supplemental process without
further order of Court.
(b)
Certification of Exigent Circumstances. If the plaintiff files a written certification that
exigent circumstances make review by the Court impracticable, the Clerk of the Court shall,
in accordance with Local Admiralty Rule B(3)(c), issue a summons and the process of
attachment and garnishment.
Thereafter at any post-attachment proceedings under Supplemental Rule E(4)(f) and Local
Admiralty Rule B(5), plaintiff shall have the burden of showing that probable cause existed
for the issuance of process, and that exigent circumstances existed which precluded judicial
review in accordance with Local Admiralty Rule B(3)(a).
(c)
Preparation and Issuance of the Process of Attachment and Garnishment. Plaintiff shall
prepare the summons and the process of attachment and garnishment, and deliver the
documents to the Clerk of the Court for filing and issuance.
The process of attachment and garnishment shall substantially conform in format and content
to the form identified as SDF 2 on the Court’s website (www.flsd.uscourts.gov), and shall
in all cases give adequate notice of the postseizure provisions of Local Admiralty Rule B(5).
(d)
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.
(4)
Notification of Seizure to Defendant. In an in personam action under Supplemental Rule B, it
is expected that plaintiff and/or garnishee will initially attempt to perfect service of the notice in
accordance with Supplemental Rule B(2)(a) or (b).
However, when service of the notice cannot be perfected in accordance with Supplemental Rule
B(2)(a) or (b), plaintiff and/or garnishee should then attempt to perfect service in accordance with
Supplemental Rule B(2)(c). In this regard, service of process shall be sufficiently served by leaving
a copy of the process of attachment and garnishment with the defendant or garnishee at his or her
usual place of business.
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(5)
Post-attachment Review Proceedings.
(a)
Filing a Required Answer. In accordance with Supplemental Rule E(4)(f), any person
who claims an interest in property seized pursuant to Supplemental Rule B must file an
answer and claim against the property. The answer and claim shall describe the nature of the
claimant’s interest in the property, and shall articulate reasons why the seizure should be
vacated. The claimant shall serve a copy of the answer and claim upon plaintiff’s counsel,
the Marshal, and any other party to the litigation. The claimant shall also file and serve a
Certificate of Service indicating the date and manner in which service was perfected.
(b)
Hearing on the Answer and Claim. The claimant may be heard before a judicial officer
not less than 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.
If the seizure was predicated upon a showing of “exigent circumstances” under Local
Admiralty Rule B(3)(b), 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.
(6)
Procedural Requirement for the Entry of Default. In accordance with Federal Rule of Civil
Procedure 55, a party seeking the entry of default in a Supplemental Rule B action shall file and
serve a motion and supporting legal memorandum and shall offer other proof sufficient to
demonstrate that due notice of the action and seizure have been given in accordance with Local
Admiralty Rule B(4).
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)
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 seven (7) days from the receipt of the
motion to file written opposition with the Court and serve the written opposition on all parties.
Thereafter, unless otherwise ordered by the Court, the motion for the entry of default judgment will
be heard without oral argument.
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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 December 1, 1994. Amended effective April 15, 1998; April 15, 2000; April 15, 2007;
April 15, 2010; April 15, 2011; December 1, 2014; December 1, 2015; December 2, 2019
.
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 B and E 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).
Although the Committee is aware of the Eleventh Circuit’s decision in Schiffahartsgesellschaft
Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 732 F.2d 1543 (1984), the Committee believes
that from both a commercial and legal viewpoint, the better practice is to incorporate the pre-seizure
scrutiny and post-attachment review provisions provided by this Local Admiralty Rule. These
provisions protect the rights of any person claiming an interest in the seized property by permitting
such persons to file a claim against the property, and thereafter permitting a judicial determination
of the propriety of the seizure.
(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).
Local Admiralty Rule B(2) codifies the verification requirements of Supplemental Rule B(1) and
former Local Admiralty Rule 8.
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B(3) incorporates the “pre-seizure” and “exigent circumstances” provisions of the August 1, 1985,
revision to Local Supplemental Rule B(1). In the routine case, the rule contemplates that issuance of
the process of attachment and garnishment be preconditioned upon the exercise of judicial review.
This ensures that plaintiff can make an appropriate maritime claim, and present proof that the
defendant cannot be found within the District. The rule also contemplates that upon a finding of
probable cause, a simple order directing the Clerk of the Court to issue the process shall be entered
by the Court.
This rule also incorporates the “exigent circumstances” provision of Supplemental Rule B(1). Read
in conjunction with Local Admiralty Rule B(5)(b), this rule requires that the plaintiff carry the burden
of proof at any post-attachment proceedings to establish not only the prima facie conditions of a
maritime attachment and garnishment action under Supplemental Rule B, but also that “exigent
circumstances” precluded judicial review under Local Admiralty Rule B(3)(a). The Committee
believes that this additional requirement will place upon plaintiff’s counsel a burden of extra caution
before invoking the “exigent circumstance” provision of the rule.
Local Admiralty Rule B(5) establishes the post-attachment review provisions potentially applicable
to maritime attachment and garnishment proceedings. These proceedings may be invoked by any
person claiming an interest in the seized property.
(2000) Local Admiralty Rule B(7) 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.
(2014) Local Admiralty Rule (B)(1) amended to update references to the Federal Rules of Civil
Procedure.
RULE C. ACTION IN REM
(1)
Verification Requirements. Every complaint and claim filed in an in rem proceeding pursuant
to Supplemental Rule C shall be verified in accordance with Local Admiralty Rules A(5) and B(2).
(2)
Pre-seizure Requirements. In accordance with Supplemental Rule C(3), the process of arrest in
rem shall issue only after one of the following conditions has been met:
(a)
Judicial Review Prior to Issuance. Except as provided in Local Admiralty Rule 3(b)(2),
a judicial officer shall first review the verified complaint, and any other relevant case papers,
prior to the Clerk of the Court issuing the warrant of arrest and/or summons in rem. No notice
of this pre-seizure judicial review is required to be given to any person or prospective party.
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
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and/or summons. This order shall substantially conform in format and content to the form
identified as SDF 2 on the Court’s website (www.flsd.uscourts.gov).
Upon receipt of the signed order, the Clerk of the Court shall file the order and, in accordance
with Local Admiralty Rule 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.
(b)
Certification of Exigent Circumstances. If the plaintiff files a written certification that
exigent circumstances make review by the Court impracticable, the Clerk of the Court shall,
in accordance with Local Admiralty Rule B(3)(b), issue a warrant of arrest and/or summons.
Thereafter at any post-arrest proceedings under Supplemental Rule E(4)(f) and Local
Admiralty Rule C(7), plaintiff shall have the burden of showing that probable cause existed
for the issuance of process, and that exigent circumstances existed which precluded judicial
review in accordance with Local Admiralty Rule C(2)(a).
(c)
Preparation and Issuance of the Warrant of Arrest and/or Summons. Plaintiff shall
prepare the warrant of arrest and/or summons, and file them electronically with the Clerk of
the Court for issuance. If a filing is an emergency matter, the documents must be
electronically filed using the events specifically earmarked for emergency motions as
described in Section 10 of the CM/ECF Administrative Procedures. A party appearing pro
se must file such matters conventionally.
The warrant of arrest shall substantially conform in format and content to the form identified
as SDF 4 on the Court’s website (www.flsd.uscourts.gov), and shall in all cases give adequate
notice of the post-arrest provisions of Local Admiralty Rule C(7).
(3)
Special Requirements for Actions Involving Freight, Proceeds and/or Intangible Property.
(a)
Instructions to Be Contained in the Summons. Unless otherwise ordered by the Court,
the summons shall order the person having control of the freight, proceeds and/or intangible
property to either:
(i)
File a claim within fourteen (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 D(6)(a); or
(ii)
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.
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(b)
Requirements for Claims to Prevent the Delivery of Property to the Marshal. Any claim
filed in accordance with Supplemental Rule E(4) and Local Admiralty Rule C(5)(a) shall
describe the nature of claimant’s interest in the property, and shall articulate reasons why the
seizure should be vacated.
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.
(c)
Delivery or Payment of the Freight, Proceeds, and/or Intangible Property to the United
States Marshal. Unless a claim is filed in accordance with Supplemental Rule E(4)(f), and
Local Admiralty Rule C(6)(a), any person served with a summons issued pursuant to Local
Admiralty Rule C(2)(a) or C(2)(b), shall within fourteen (14) days, beginning on the next
calendar day, including Saturday, Sunday, or a legal holiday, after execution of service,
deliver or pay over to the Marshal all, or part of, the freight, proceeds, and/or intangible
property sufficient to satisfy plaintiff’s claim.
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.
(4)
Publishing Notice of the Arrest as Required by Supplemental Rule C(4).
(a)
Time for Publication. If the property is not released within fourteen (14) days after the
execution of process, the notice required by Supplemental Rule C(4) shall be published by
the plaintiff in accordance with Local Admiralty Rule A(7). Such notice shall be published
within twenty-one (21) days after execution of process. The notice shall substantially
conform to the form identified as SDF 7 on the Court’s website (www.flsd.uscourts.gov).
(b)
Proof of Publication. Plaintiff shall file with the Clerk of the Court proof of publication
not later than fourteen (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.
(5)
Undertaking in Lieu of Arrest. If, before or after the commencement of an action, a party
accepts any written undertaking to respond on behalf of the vessel and/or other property in return for
foregoing the arrest, the undertaking shall only respond to orders or judgments in favor of the party
accepting the undertaking, and any parties expressly named therein, to the extent of the benefit
thereby conferred.
(6)
Time for Filing Claim or Answer. Unless otherwise ordered by the Court, any claimant of
property subject to an action in rem shall:
82
(a)
File and serve the claim within fourteen (14) days, beginning on the next calendar day,
including Saturday, Sunday, or a legal holiday, after process has been executed; and
(b)
File and serve an answer within twenty-one (21) days after the filing of the claim.
(7)
Post-arrest Proceedings. Coincident with the filing of a claim pursuant to Supplemental Rule
E(4)(f), and Local Admiralty Rule C(6)(a), the claimant may also file and serve a motion and
proposed order directing plaintiff to show cause why the arrest should not be vacated. If the Court
grants the order, the Court shall set a date and time for a show cause hearing. Thereafter, if the Court
orders the arrest to be vacated, the Court shall award attorney’s fees, costs, and other expenses
incurred by any party as a result of the arrest.
Additionally, if the seizure was predicated upon a showing of “exigent circumstances” under Local
Admiralty Rule C(2)(b), and the Court finds that such exigent circumstances did not exist, the Court
shall award attorneys’ fees, costs and other expenses incurred by any party as a result of the seizure.
(8)
Procedural Requirements Prior to the Entry of Default. In accordance with Federal Rule of
Civil Procedure 55, a party seeking the entry of default judgment in rem shall first file a motion and
supporting legal memorandum.
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)
Service upon the master or other person having custody of the property; and
(b)
Delivery, or by certified mail, return receipt requested (or international effective
equivalent), to every other person, including any known owner, who has not appeared or
intervened in the action, and who is known to have, or claims to have, a possessory interest
in the property.
The party seeking entry of default judgment under Local Rule 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
(c)
Publication as required by Supplemental Rule C(4) and Local Admiralty Rule C(4).
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)
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
83
required to support the entry of default judgment. Thereafter the Court will consider the motion as
indicated below:
(a)
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)
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), 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 seven (7) days from receipt
of the notice to file and serve 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 December 1, 1994. Amended effective April 15, 1998; April 15, 2000; April 15, 2001;
April 15, 2007; April 15, 2010; April 15, 2011; December 3, 2012; December 1, 2015; December 2,
2019.
Advisory Notes
(1993) C(2). Well-reasoned authority has upheld Supplemental Rule C, specifically holding that a
pre-seizure judicial hearing is not required where a vessel, freight, or intangible property is proceeded
against to enforce a maritime lien. Amstar Corporation v. SS Alexandros T, 664 F.2d 904 (4th
Cir.1981); Merchants Nat’l Bank v. Dredge Gen. G.L. Gillespie, 663 F.2d 1338 (5th Cir. Unit A,
1981); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 732 F.2d 1543
(11th Cir.1984).
The desirability of providing by local admiralty rule an available avenue for reasonably prompt and
effective post-arrest judicial relief is indicated. See, Merchants Nat’l Bank v. Dredge Gen. G.L.
Gillespie, supra, at 1334, 1350. This provision is incorporated in Local Admiralty Rule C(7).
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.
84
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(4). The substance of former Local Admiralty Rule 3(c) is continued.
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(6). The substance of former Local Admiralty Rule 2(b) is continued.
C(7). See the comments for Local Admiralty Rule C(2).
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 judgments, the rule recognizes two distinct groups
of in rem claimants.
The first category of claimants include those who by ownership or otherwise, would, but for the
arrest of the property, be entitled to its possession. Pursuant to Supplemental Rule C(6), these
claimants must file and serve a claim setting forth their interest in the property, demand their right
to receive possession, and to appear and defend the action. In the case of such claimants, the operation
of standard default procedures foreclose their rights to contest positions of the party in whose favor
the default is rendered, and the entry of default judgment is both fair and appropriate.
The second category of claimants embodies a potentially numerous and varying class of claimants.
The claims of these other claimants do not give rise to a right of possession of the vessel from the
marshal or other appropriate custodian, but rather invoke the power of the Court in admiralty to
85
foreclose against the property by the ultimate rendering of a judgment in rem against property
entitlements. Such judgments would be predicated upon non-possessory liens.
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.
No default judgments entered pursuant to this rule will operate to adjudicate priorities among
competing non-possessory lien claimants.
In attempting to reconcile the traditional notions of default and default judgments with the concept
of in rem proceedings, the final language has been formulated to maintain the efficacy of the default
procedure without resulting in premature adjudication effecting priorities and distributions.
The default procedure establishes in favor of the holder of such a default judgment, a lien position
against the proceeds of the property, resulting from any sale or disposition, or, if currency is involved,
the ultimate adjudication, inferior to all other competing priorities, except the otherwise escheating
right of the property owner to the remnants and surpluses after all full-claims satisfactions. At the
same time, the right of a person obtaining a default judgment to contend and compete with other
claimants for priority distribution remains unaffected.
(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.
(2001) Corrections to rule number references.
(2010) Amended to conform tabulation to the style used in the Federal Rules of Civil Procedure.
(2012) Amended to correct tabulation and internal citation errors in C(6) and C(7) and to relocate
appendix of forms to the Court’s website.
RULE D. POSSESSORY, PETITORY, AND PARTITION ACTIONS
(1) Establishing Dates for the Return of Process. In possessory actions filed pursuant to
Supplemental Rule D, the Court may order that process be returnable at a time shorter than that
prescribed by Federal Rule of Civil Procedure 12(a).
If the Court shortens the time, the Court shall specify the date upon which the answer must be filed
and served, 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.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 2, 2019.
86
Advisory Notes
(1993) This rule continues in substance the provisions of former Local Admiralty Rule 15.
The rule recognizes the equity in allowing for a prompt resolution in possessory actions. Since a
possessory action is brought to reinstate an owner of a vessel alleging wrongful deprivation of
property, rather than to allow original possession, the rule permits the Court to expedite these actions,
thereby providing a quick remedy for the one wrongfully deprived of his rightful property. See Silver
v. Sloop Silver Cloud, 259 F.Supp. 187 (S.D.N.Y. 1966).
Since a petitory and possessory action can be joined to obtain original possession, The Friendship,
Fed.Cas. No. 5,123 (CCD Maine, 1855), this rule contemplates that an expedited hearing will only
occur in purely possessory actions.
(2010) Amended to conform tabulation to the style used in the federal rules of procedure.
RULE E. ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS
(1)
Statement of Itemized Damages and Expenses Required. Every complaint in a Supplemental
Rule B and C action shall state the amount of the debt, damages, or salvage for which the action is
brought. In addition, the statement shall also specify the amount of any unliquidated claims,
including attorneys’ fees.
(2)
Requirements and Procedures for Effecting Intervention. Whenever a vessel or other
property is arrested or attached in accordance with any Supplemental Rule, and the vessel or property
is in the custody of the United States Marshal, or duly authorized substitute custodian, any other
person having a claim against the vessel or property shall be required to present their claim as
indicated below:
(a)
Intervention of Right When No Sale of the Vessel or Property Is Pending. Except as
limited by Local Admiralty Rule E(2)(b), any person having a claim against a vessel or
property previously arrested or attached by the Marshal may, as a matter of right, file an
intervening complaint at any time before an order is entered by the Court scheduling the
vessel or property for sale.
Coincident with the filing of an intervening complaint, the offering party shall prepare and
file a supplemental warrant of arrest and/or a supplemental process of attachment and
garnishment.
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.
87
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 and serve
a certificate of service with the Clerk of the Court indicating the manner and date of service.
(b)
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 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:
(i)
File and serve a motion to intervene and indicate in the caption of the motion a
request for expedited hearing when appropriate.
(ii)
Include a copy of the anticipated intervening complaint as an exhibit to the motion
to intervene.
(iii)
Prepare and offer for filing a supplemental warrant of arrest and/or a
supplemental process of attachment and garnishment.
(iv)
Serve copies of the motion to intervene, with exhibits and proposed supplemental
process upon every other party to the litigation.
(v)
File and serve 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.
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 and serve a Certificate of Service with the Clerk of the Court indicating
the manner and date of service.
88
(3)
Special Requirements for Salvage Actions. In cases of salvage, the complaint shall also state
to the extent known, the value of the hull, cargo, freight, and other property salvaged, the amount
claimed, the names of the principal salvors, and that the suit is instituted in their behalf and in behalf
of all other persons associated with them.
In addition to these special pleading requirements, plaintiff shall attach as an exhibit to the complaint
a list of all known salvors, and all persons believed entitled to share in the salvage. Plaintiff shall
also attach a copy of any agreement of consortship available and known to exist among them
collegially or individually.
(4)
Form of Stipulation or Bonds. Except in cases instituted by the United States through
information, or complaint of information upon seizures for any breach of the revenues, navigation,
or other laws of the United States, stipulations or bonds in admiralty and maritime actions need not
be under seal and may be executed by the agent or attorney of the stipulator or obligor.
(5)
Deposit of Marshal’s Fees and Expenses Required Prior to Effecting Arrest, Attachment
and/or Garnishment.
(a)
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 fourteen (14) days. The Marshal is not required to execute process until the deposit is
made.
(b)
Proration of Marshal’s Fees and Expenses upon Intervention. When one or more parties
intervene pursuant to Local Admiralty Rule E(2)(a) or (b), 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:
(i)
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.
(ii)
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.
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
89
subsequently accepted and processed by the Marshal in accordance with Local Admiralty
Rule E(2)(a) or (b).
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 fourteen (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).
The Marshal need not re-arrest or re-attach the vessel and/or property until the deposit is
received from the intervening plaintiff.
(c)
Additional Deposit Requirements. Until the property arrested or attached and garnished
has been released or otherwise disposed of in accordance with Supplemental Rule E, the
Marshal may require from any original and intervening party who has caused the arrest or
attachment and garnishment of a vessel or property, to post such additional deposits as the
Marshal determines necessary to cover any additional estimated fees or expenses.
(d)
Judicial Relief from Deposit Requirements. Any party aggrieved by the deposit
requirements of Local Admiralty Rule E(5)(b) 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.
(e)
Consequence of Failing to Comply With Additional Deposit Requirements. Any party
who fails to make the additional deposit as requested by the Marshal may not participate
further in the proceeding, except for the purpose of seeking relief from this rule.
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Additionally, the Marshal shall notify the Court in writing whenever any party fails to make
additional deposits as required by Local Admiralty Rule E(5)(c).
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.
(6)
Property in Possession of a United States Officer. Whenever the property to be arrested or
attached is in custody of a United States officer, the Marshal shall serve the appropriate process upon
the officer or employee; or, if the officer or employee is not found within the District, then to the
custodian of the property within the District.
The Marshal shall direct the officer, employee or custodian not to relinquish custody of the property
until ordered to do so by the Court.
(7)
Process Held in Abeyance.
(a)
When Permitted. In accordance with Supplemental Rule E(3)(b), a plaintiff may ask the
Clerk of the Court not to issue process, but rather to hold the process in abeyance. The Clerk
of the Court shall docket this request, and thereafter shall not be responsible for ensuring that
process is issued at a later date.
(b)
When Intervention Is Subsequently Required. It is the intention of these rules that a vessel
or other property should be arrested or attached pursuant to process issued and effected in
only one civil action. Therefore, if while process is held in abeyance on one action, the vessel
or property is arrested or attached in another action, it shall be the responsibility of the
plaintiff who originally requested process be held in abeyance in the first action to voluntarily
dismiss without prejudice the first action, insofar as that action seeks to proceed against the
property arrested or attached in the second action, and promptly intervene in the second
action pursuant to Local Admiralty Rule E(2)(a) or (b).
In order to prevent undue hardship or manifest injustice, motions to consolidate in rem
actions against the same vessel or property will be granted only in exceptional circumstances.
(8)
Release of Property in Accordance With Supplemental Rule E(5).
(a)
Release by Consent or Stipulation. Subject to the limitations imposed by Supplemental
Rule E(5)(c), the Marshal may release any vessel, cargo or property in the Marshal’s
possession to the party on whose behalf the property is detained. However, as a precondition
to release, the Marshal shall require a stipulation, bond, or other security, expressly
authorizing the release. The authorizing instrument shall be signed by the party, or the party’s
attorney, on whose behalf the property is detained. 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:
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(i)
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 filing an approved
stipulation, or bond for the amount alleged plus interest as computed in this
subsection.
The stipulation or bond shall be conditioned to abide by all orders of the Court, and
to pay the amount of any final judgment entered by this Court or any appellate Court,
with interest. This provision applies regardless of whether any vessel, cargo, or
property has been detained.
(ii)
Actions other than Possessory, Petitory or Partition. Unless otherwise ordered by
the Court, the amount of the appraised or agreed value of the property seized, with
interest. If an appraised value cannot be agreed upon by the parties, the Court shall
order an appraisal in accordance with Local Admiralty Rule F(3).
The stipulation or bond shall be conditioned to abide by all orders of the Court, and
to pay the amount of any final judgment entered by this Court or any appellate Court,
with interest.
The person consenting or stipulating to the release shall also file a claim in
accordance with Local Admiralty Rule E(2)(a) or (b).
(iii)
Possessory, Petitory or Partition Actions. The Marshal may release property in
these actions only upon order of Court, and upon the subsequent deposit of security
and compliance with such terms and/or conditions as the Court deems appropriate.
(b)
Release Pursuant to Court Order. In accordance with Supplemental Rule E(5)(c), a party
may petition to release the vessel pursuant to Court order. A party making such application
shall file and serve a Request for Release which shall substantially conform in format and
content to the form identified as SDF 8 on the Court’s website (www.flsd.uscourts.gov).
Additionally, the party shall prepare, and offer for filing, a proposed order directing the
release. This order shall substantially conform in format and content to the form identified as
SDF 9 on the Court’s website (www.flsd.uscourts.gov).
However, as a precondition to the release, the Marshal shall require a stipulation, bond, or
other security, as specified in Local Admiralty Rule E(8)(a)(i), (ii), or (iii), as appropriate.
(c)
Upon the Dismissal or Discontinuance of an Action. By coordinating with the Marshal
to ensure that all costs and charges of the Court and its officers have first been paid.
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(d)
Release Subsequent to the Posting of a General Bond.
(i)
Requirements of a General Bond. General bonds filed pursuant to Supplemental
Rule E(5)(b) shall identify the vessel by name, nationality, dimensions, official
number or registration number, hailing port and port of documentation.
(ii)
Responsibility for Maintaining a Current Listing of General Bonds. The Clerk of
the Court shall maintain a current listing of all general bonds. This listing should be
maintained in alphabetical order by name of the vessel. The listing will be available
for inspection during normal business hours.
(iii)
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.
Thereafter, it shall be plaintiff’s responsibility to advise the owner or designated
agent, at the address furnished in the general bond, of (1) the case number; (2) nature
of the action and the amount claimed; (3) the plaintiff and name and address of
plaintiff’s attorney; and (4) the return date for filing a claim.
(9)
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.
(10)
Custody and Safekeeping.
(a)
Initial Responsibility. The Marshal initially shall take custody of any vessel, cargo, and/or
other property arrested or attached in accordance with these rules. (Practitioner’s Note:
Notwithstanding the foregoing, in this District it is the practice of the Marshal to not take
custody of any arrested vessel or execute an arrest warrant until as a substitute custodian is
in place.) If the Marshal takes custody of any such arrested or attached property before a
substitute custodian is authorized in accordance with Local Admiralty Rule E(10)(c), then
the Marshal shall be responsible for providing adequate and necessary security for the
safekeeping of the property until the substitute custodian is appointed.
In the discretion of the Marshal, such 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.
(b)
Limitations on the Handling, Repairing and Subsequent Movement of Vessels or
Property. Subsequent to the arrest or attachment of a vessel or property, and except as
provided in Local Admiralty Rule E(10)(a), no person may handle cargo, conduct repairs, or
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move a vessel without prior order of Court. Notwithstanding the foregoing, the custodian or
substitute custodian is obligated to comply with any orders issued by the Captain of the Port, United
States Coast Guard, including an order to move the vessel; and to comply with any applicable federal,
state, or local laws or regulations pertaining to vessel and port safety. Any movement of a vessel
pursuant to such requirements must not remove the vessel from the District and shall be reported to
the Court within twenty-four hours of the vessel’s movement.
(c)
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 on the Court’s website (www.flsd.uscourts.gov).
(i)
Notification of the Marshal Required. When an application for change in custody
arrangements is filed, either before or after the Marshal has taken custody of the
vessel or property, the filing party shall serve notice of the application on the Marshal
in sufficient time to permit the Marshal to review the indemnification and insurance
arrangements of the filing party and substitute custodian. The application shall also
be served upon all other parties to the litigation.
(ii)
Indemnification Requirements. Any motion for the appointment of a substitute
custodian or facility shall include as an exhibit to the motion, a consent and
indemnification agreement signed by both the filing party, or the filing party’s
attorney, and the proposed substitute custodian.
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 on the Court’s website (www.flsd.uscourts.gov).
(iii)
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.
(d)
Insurance Requirements.
(i)
Responsibility for Initially Obtaining Insurance. Concurrent with the arrest or
attachment of a vessel or property, the Marshal shall obtain insurance to protect the
Marshal, the Marshal’s deputies, keepers, and custodians from liability arising from
the arrest or attachment.
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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.
(ii)
Payment of Insurance Premiums. It shall be the responsibility of the party
applying for the arrest or attachment of a vessel, cargo and/or property to promptly
reimburse the Marshal for premiums paid to effect the necessary insurance.
The party applying for change in custody arrangements shall be responsible for
paying the Marshal for any additional premium associated with the change.
(iii)
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.
(11)
Preservation, Humanitarian and Repatriation Expenses.
(a)
Limitations on Reimbursement for Services and/or Supplies Provided to a Vessel or
Property in Custody. Except in cases of emergency or undue hardship, no person will be
entitled to claim as an expense of administration the costs of services or supplies furnished
to a vessel, cargo and/or property unless such services or supplies have been furnished to the
Marshal upon the Marshal’s order, or pursuant to an order of this Court.
Any order issued pursuant to this subsection shall require the person furnishing the services
or supplies to file a weekly invoice. This invoice shall be set forth in the format prescribed
in Local Admiralty Rule E(11)(e).
(b)
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.
(c)
Expenses for Care and Maintenance of a Crew. Except in an emergency, or upon the
authorization of a judicial officer, neither the Marshal nor substitute custodian shall incur
expenses for feeding or otherwise maintaining the crew.
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 and served 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 fourteen (14) days from
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receipt of the application to file and serve a written response, beginning on the next calendar
day, including Saturday, Sunday, or a legal holiday.
Expenses for feeding or otherwise maintaining the crew, when incurred in accordance with
this subsection, shall be taxed as an expense of administration and not as an expense of
custody.
(d)
Repatriation Expenses. Absent an order of Court expressly ordering the repatriation of
the crew and/or passengers, and directing that the expenses be taxed as a cost of
administration, no person shall be entitled to claim these expenses as expenses of
administration.
(e)
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.
(12)
Property in Incidental Custody and Otherwise Not Subject to the Arrest or Attachment.
(a)
Authority to Preserve Cargo in Incidental Custody. The Marshal, or an authorized
substitute custodian, shall be responsible for securing, maintaining and preserving all
property incidentally taken into custody as a result of the arrest or attachment of a vessel or
property. Incidental property may include, but shall not be limited to, laden cargo not itself
the subject of 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.
Any person claiming entitlement to possession of property incidentally taken into custody
shall be required, as a precondition of receiving possession, to reimburse the Marshal for
such separately accounted expenses. Monies received by the Marshal will be credited against
both the expense of custody and administration.
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(b)
Separation, Storage and Preservation of Property in Incidental Custody. Any party, or
the Marshal, may petition the Court to permit the separation and storage of property in
incidental custody from the property actually arrested or attached.
When separation of the property is ordered to protect the incidentally seized property from
undue deterioration; provide for safer storage; meet an emergency; reduce the expenses of
custody; or to facilitate a sale of the vessel or other property pursuant to Local Admiralty
Rule E(16); the costs of such separation shall be treated as an expense of preservation and
taxed as a cost of custody.
(c)
Disposal of Unclaimed Property. Property incidentally in custody and not subsequently
claimed by any person entitled to possession, shall be disposed of in accordance with the
laws governing the disposition of property abandoned to the United States of America.
Except when prohibited by prevailing federal statute, the resulting net proceeds associated
with the disposition of abandoned property shall be applied to offset the expense of
administration, with the remainder escheating to the United States of America as provided
by law.
(13)
Dismissal.
(a)
By Consent. No action may be dismissed pursuant to Federal Rule of Civil Procedure
41(a) unless all costs and expenses of the Court and its officials have first been paid.
Additionally, if there is more than one plaintiff or intervening plaintiff, no dismissal may be
taken by a plaintiff unless that party’s proportionate share of costs and expenses has been
paid in accordance with Local Admiralty Rule E(6).
(b)
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)
Judgments.
(a)
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.
(b)
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.
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(15)
Stay of Final Order.
(a)
Automatic Stay for Fourteen 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 fourteen (14) days after the entry of the judgment
or order of dismissal.
(b)
Stays Beyond the Fourteen Day Period. If within the fourteen (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.
(16)
Notice of Sale.
(a)
Publication of Notice. In an action in rem or quasi in rem, and except in suits on behalf
of the United States of America where other notice is prescribed by statute, the Marshal shall
publish notice in any of the newspapers approved pursuant to Local Admiralty Rule A(7).
(b)
Duration of Publication. Unless otherwise ordered by the Court, applicable
Supplemental Rule, or Local Admiralty Rule, publication of the notice of sale shall be made
at least twice; the first publication shall be at least fourteen (14) days prior to the date of the
sale, and the second at least seven (7) days prior to the date of the sale.
(17)
Sale of a Vessel or Property.
(a)
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;
(i)
If the Bid Is Not More Than $500.00. The successful bidder shall immediately
pay the full purchase price.
(ii)
If the Bid Is More Than $500.00. The bidder shall immediately deposit 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 seven (7) days.
If an objection to the sale is filed within the time permitted by Local Admiralty Rule
E(17)(g), the successful bidder is excused from paying the remaining purchase price
until seven (7) days after the Court confirms the sale.
(b)
Method of Payment. Unless otherwise ordered by the Court, payments to the Marshal
shall be made in cash, certified check or cashier’s check.
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(c)
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)(ii), 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)
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)
Marshal’s Report of Sale. At the conclusion of the sale, the Marshal shall file and serve
a written report of the sale to include the date of the sale, the price obtained, and the name
and address of the buyer.
(f)
Confirmation of Sale. Unless an objection is timely filed in accordance with this rule, or
the purchaser is in default for failing to pay the balance of the purchase price, plaintiff shall
proceed to have the sale confirmed on the day following the last day for filing objections.
In order to confirm the sale, plaintiff’s counsel shall file and serve a “Request for
Confirmation of Sale” on the day following the last day for filing an objection. See forms
available on the Court’s website (www.flsd.uscourts.gov). Plaintiff’s counsel shall also
prepare and offer for filing a “Confirmation of the Sale.” See forms available on the Court’s
website (www.flsd.uscourts.gov). 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 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.
(g)
Objections to Confirmation.
(i)
Time for Filing Objections. Unless otherwise permitted by the Court, an objection
must be filed within seven (7) 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 and serve a Certificate of Service indicating the date and
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manner of service. Opposition to the objection must be filed within 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.
(ii)
Deposit of Preservation or Maintenance Costs. In addition to filing and serving
written objections, any person objecting to the sale shall also deposit with the Marshal
the cost of keeping the property for at least fourteen (14) days. Proof of the deposit
with the Marshal’s Office shall be delivered to the Clerk of the Court’s Office by the
moving party. The Court will not consider the objection without proof of this deposit.
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.
(h)
Confirmation of Title. Failure of a party to give the required notice of an action and arrest
of a vessel, property and/or cargo, or failure to give required notice of a sale, may afford
grounds for objecting to the sale, but such failure does not affect the title of a good faith
purchaser of the property.
(18)
Post-Sale Claim. Claims against the proceeds of a sale authorized by these rules, except for
seamen’s wages, will not be admitted on behalf of lienors who file and serve their claims after the
sale.
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 December 1, 1994. Amended effective April 15, 1998; April 15, 2007; April 15, 2010;
April 15, 2011; December 1, 2014; December 1, 2015; December 1, 2017; December 3, 2018;
December 2, 2019.
Advisory Notes
(1993) Local Admiralty Rule E(1). This section continues the provisions of former Local Rule 7(c).
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
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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.
Past experience indicates that not infrequently vessels or other properties arrested for nonpayment
of incurred obligations will be ultimately sold for satisfaction, to the extent possible, of pending
claims. In such cases, substitute security is never given, and the property must be retained in custody
for a sufficient period of time to permit the Court to determine the status of the situation and to order
appropriate procedures. In such instances, custodial costs tend to be substantial and, by the very
nature of the circumstances, the claimants and potential claimants can be both large in number and
will vary markedly in the amounts of their respective individual claims. Apportioning the obligation
to make advances against custodial costs over this range of claims and claimants has resulted in
frequent calls for judicial intervention.
It was the Committee’s view that a system initially self-executing and ministerial would minimize
situations calling for judicial intervention while affording the Marshal the protection of assured and
certain procedures. At the same time, the Committee was strongly of the opinion that the rules
should do substantial equity as between claims showing wide variation in amounts and potential
priorities and, at the same time, should be so structured as to require all potential claimants to come
forward and share in the cost of custody, discouraging the sometime practice of claimants’ waiting
to intervene until the last moment in order to allow other parties to bear the burdens of making such
advances.
A concern was expressed about the position of parties having large, but clearly inferior claims, who,
in equity should not be required to share on a prorated value-of-the-claim-asserted basis with
claimants who have obvious priority. A typical example of such a situation would involve a
mortgagee of a foreign-flag vessel appearing as a claimant in an action along with lien claimants
alleging to have supplied necessaries to a vessel in ports of the United States, the mortgagee’s
position being subordinated by virtue of Title 46, United States Code, Section 951. After considering
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all possible alternatives, it was obvious that this limited range of situations could not be addressed
through a mechanism for automatic administration and, consequently, the provision providing for
judicial relief in the event of hardship or inequity was included.
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 and re-
serve 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 former 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(10). 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 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
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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(12). Section (12) is new. It addresses a situation which has arisen in the
District in the past and which can be foreseen as possibly arising in the future. While the subject is
not addressed in other local rules studied by any oft-cited leading cases, it was the opinion of the
Advisory Committee that the area should be addressed by Local Admiralty Rule and that the
provisions of Section (12) are both consistent with the general maritime laws of the United States
and designed to permit efficient administration without the necessity for undue judicial intervention.
As with the claims of intervenors and the allocation of deposits against custodial costs, the provisions
of Section (12), in keeping with the design of these Local Admiralty Rules, are intended to be
essentially self-executing, with the emphasis on the ministerial role of Court officers and services.
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) Local Admiralty Rule E(16)(b). The dates of publication were changed to conform with the
2009 changes to the deadline calculations of the Federal Rules.
(2014) Local Admiralty Rule (E)(17) was amended to clarify that forms referenced in the rule are
found on the Court’s website rather than in the Appendix.
RULE F. ACTIONS TO LIMIT LIABILITY
(1)
Monition, Injunction and Publication of the Notice. Upon the plaintiff’s filing of an Ad
Interim Stipulation of Value or otherwise posting a deposit or transfer in compliance with
Supplemental Rules F(1) and F(2), the Court shall immediately issue a Monition and Injunction
pursuant to Supplemental Rule F(3). The Monition and Injunction shall: enjoin the further
prosecution of any action or proceeding against the plaintiff or the plaintiff’s property with respect
to any claim subject to limitation in the action; order that all persons asserting claims with respect to
which the complaint seeks limitation to file and serve their respective claims pursuant to
Supplemental Rule F(4); order that public notice be effectuated by the plaintiff pursuant to
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Supplemental Rule F(4); and approve the Ad Interim Stipulation of Value or other form of deposit,
transfer or security if it meets the requirements of Supplemental Rules F(1) and F(2). Upon the
issuance of the Monition and Injunction by the Court, the plaintiff shall effect publication of the
notice in accordance with the provisions set forth in Supplemental Rule F(4) and Local Admiralty
Rule A(7). This Local Rule does not affect a claimant’s right to assert the insufficiency of the fund
or security under Supplemental Rule F(7).
(2)
Proof of Publication. Plaintiff shall file and serve proof of publication of the notice to claimants
with the Court within seven (7) days after the date fixed by the Court pursuant to Supplemental Rule
F(4). It shall be sufficient proof for plaintiff to file and serve the sworn statement or a declaration
pursuant to 28 U.S.C. § 1746 by, or on behalf of, the publisher or editor, indicating the dates of
publication, along with a copy or reproduction of the actual publication.
(3)
Security and Appraisals Pursuant to Supplemental Rule F(7). Upon the filing and serving of
a claimant’s motion pursuant to Supplemental Rule F(7) demanding an increase in the funds
deposited in Court or the security given by plaintiff, the Court shall order an appraisement of the
value of the plaintiff’s interest in the vessel and pending freight.
Upon receipt of the order directing the appraisal, the parties shall have seven (7) days to file and
serve 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 and serve a Certificate of Service indicating the date and manner in which service was
perfected.
At such time that the parties agree to the quantum of the plaintiff’s Ad Interim Stipulation of Value,
deposit or security, or alternatively, the Court finds that the plaintiff’s Ad Interim Stipulation of
Value is insufficient or excessive, the Court shall order that a deposit or security be effectuated for
the amount agreed by the parties or the amount found by the Court to be sufficient, after the date for
objections to the appraisal under Supplemental Rule F(4) has passed and the Court has ruled on the
objections. The Joint Stipulation of the Parties as to the Value of the Vessel shall substantially
conform to the form identified as SDF 18 on the Court’s website (www.flsd.uscourts.gov).
(4)
Objections to the Appraisal. Any party may move to set aside the appraisal within fourteen
(14) days following the filing of the appraisal with the Clerk of the Court.
(5)
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).
(6)
Order of Proof at Trial. In an action where plaintiff seeks to limit liability, the claimants shall
offer their proof at trial first, whether the right to limit arises as a claim or as a defense.
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Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2015.
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 of former Local
Admiralty Rule 10.
(2010) Local Admiralty Rule F(1). The Advisory Committee determined that the publication of
the notice without court order did not meet the self-executing aspect of the rule as contemplated in
1993.
Amended to conform tabulation to the style used in the federal rules of procedure.
Local Admiralty Rule F(2). The advisory Committee believes that the previous language “not later
than the return date” was vague. The language was changed to remove any confusion on the
definition of “return date” and the time by which the plaintiff is required to file the proof of
publication. The addition of the language “or a declaration pursuant to 28 U.S.C. § 1746" was added
to deal with any exigent circumstances.
Local Admiralty Rule F(3). The Advisory Committee determined that while the previous Local
Rule references a claimant’s demand for an increase, it fails to consider instances where the claimants
accept the plaintiff’s Ad Interim Stipulation of Value, obviating the need to post further security.
Local Admiralty Rule F(6). The Maritime Law Association of the United States (“MLA”) has
approved Model Local Admiralty Rules dated May 2, 2008. The Advisory Committee has adopted
MLA Model Local Admiralty Rule F(2) because the Committee believes that although petitioners
in limitation of liability proceedings are the plaintiffs, in practice they are defending claims of
claimants and therefore the claimants should offer proof at trial first.
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MAGISTRATE JUDGE RULES
RULE 1. AUTHORITY OF UNITED STATES MAGISTRATE JUDGES
(a)
Duties under 28 U.S.C. § 636(a). Each United States Magistrate Judge of this Court is
authorized to perform the duties prescribed by 28 U.S.C. § 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 18 U.S.C. § 3146,
and take acknowledgments, affidavits, and depositions; and
(3)
Conduct extradition proceedings, in accordance with 18 U.S.C. § 3184.
(b)
Disposition of Misdemeanor Cases—18 U.S.C. § 3401; Federal Rule of Criminal Procedure
58.
A Magistrate Judge may-
(1)
Arraign and try persons accused of, and sentence persons convicted of, misdemeanors
committed within this District in accordance with 18 U.S.C. § 3401 and Federal Rule of
Criminal Procedure 58;
(2)
Direct the Probation Office of the Court to conduct a presentence investigation in any
misdemeanor case; and
(3)
Conduct a jury trial in any misdemeanor case where the defendant so requests and is
entitled to trial by jury under the Constitution and laws of the United States.
(c)
Determination of Non-dispositive Pretrial Matters-28 U.S.C. § 636(b)(1)(A). A Magistrate
Judge may hear and determine any procedural or discovery motion or other pretrial matter in a civil
or criminal case, other than the motions which are specified in subsection 1(d), infra, of these rules.
(d)
Recommendations Regarding Case–Dispositive Motions-28 U.S.C. § 636(b)(1)(B).
(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)
Motions for injunctive relief, including temporary restraining orders and
preliminary and permanent injunctions;
(B)
Motions for judgment on the pleadings;
(C)
Motions for summary judgment;
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(D)
Motions to dismiss or permit the maintenance of a class action;
(E)
Motions to dismiss for failure to state a claim upon which relief may be granted;
(F)
Motions to involuntarily dismiss an action;
(G)
Motions for review of default judgments;
(H)
Motions to dismiss or quash an indictment or information made by a defendant;
and
(I)
Motions to suppress evidence in a criminal case.
(2)
A Magistrate Judge may determine any preliminary matters and conduct any necessary
evidentiary hearing or other proceeding arising in the exercise of the authority conferred by
this subsection.
(e)
Prisoner Cases Under 28 U.S.C. §§ 2254 and 2255. A Magistrate Judge may perform any or
all of the duties imposed upon a District Judge by the rules governing proceedings in 28 U.S.C. §§
2254 and 2255. In so doing, a Magistrate Judge may issue any preliminary orders and conduct any
necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a
report containing proposed findings of fact and recommendations for disposition of the petition by
the District Judge. Any order disposing of the petition may only be made by a District Judge.
(f)
Prisoner Cases Under 42 U.S.C. § 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.
(g)
Special Master References. A Magistrate Judge may be designated by a District Judge to serve
as a special master in appropriate civil cases in accordance with 28 U.S.C. § 636(b)(2) and Federal
Rules of Civil Procedure 53. Upon the consent of the parties, a Magistrate Judge may be designated
by a District Judge to serve as a special master in any civil case, notwithstanding the limitations of
Federal Rule of Civil Procedure 53(b).
(h)
Conduct of Trials and Disposition of Civil Cases Upon Consent of the Parties–28 U.S.C. §
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 28 U.S.C. § 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 case-
dispositive motions.
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(i)
Other Duties. A Magistrate Judge is also authorized to-
(1)
Exercise general supervision of civil and criminal calendars, conduct calendar and status
calls, and determine motions to expedite or postpone the trial of cases for the District Judges;
(2)
Conduct pretrial conferences, settlement conferences, omnibus hearings, and related
pretrial proceedings in civil and criminal cases;
(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);
(5)
Accept waivers of indictment, pursuant to Federal Rule of Criminal Procedure 7(b);
(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;
(8)
Conduct necessary proceedings leading to the potential revocation of probation;
(9)
Issue subpoenas, writs of habeas corpus ad testificandum or habeas corpus ad
prosequendum, or other orders necessary to obtain the presence of parties, witnesses or
evidence needed for Court proceedings;
(10)
Order the exoneration or forfeiture of bonds;
(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 46 U.S.C. § 1484(d);
(12)
Conduct examinations of judgment debtors in accordance with Federal Rule of Civil
Procedure 69;
(13)
Conduct proceedings for initial commitment of narcotics addicts under Title III of the
Narcotic Addict Rehabilitation Act;
(14)
Perform the functions specified in 18 U.S.C. §§ 4107, 4108 and 4109, regarding
proceedings for verification of consent by offenders to transfer to or from the United States
and the appointment of counsel therein;
(15)
Preside at naturalization hearings and ceremonies; and
(16)
Perform any additional duty as is not inconsistent with the Constitution and laws of the
United States.
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Effective December 1, 199. Amended effective April 15, 1998; April 15, 2007; April 15, 2010;
December 1, 2015.
RULE 2. ASSIGNMENT OF MATTERS TO MAGISTRATE JUDGES
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.
No specific order of reference shall be required except as otherwise provided in 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.
Effective December 1, 1994. Amended effective April 15, 2007.
RULE 3. PROCEDURES BEFORE THE 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 the Magistrate Judge who is assigned to the case at the time of the consent
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, and serving the executed consent form on all parties. 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 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.
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(3)
References. After the consent form has been executed, filed and served, 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 the Magistrate Judge assigned
to the case, by specific order of reference. Once the case has been assigned to that 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.
Effective December 1, 1994. Amended effective April 15, 2007; December 1, 2011; December 1,
2015; December 2, 2019.
RULE 4. REVIEW AND APPEAL
(a)
Appeal of Non-dispositive Matters-Government Appeal of Release Order.
(1)
Appeal of Non-dispositive Matters—28 U.S.C. § 636(b)(1)(A). Any party may appeal
from a Magistrate Judge’s order determining a motion or matter under subsection 1(c) of
these rules, supra, within fourteen (14) days after being served with the Magistrate Judge’s
order, unless a different time is prescribed by the Magistrate Judge or District Judge. Such
party shall file with the Clerk of the Court, and serve on all parties, written objections which
shall specifically set forth the order, or part thereof, appealed from; a concise statement of the
alleged error in the Magistrate Judge’s ruling; and statutory, rule, or case authority, in support
of the moving party’s position. Any party may respond to another party’s objections within
fourteen (14) days after being served with a copy thereof, or within such other time as may
be allowed by the Magistrate Judge or District Judge. Absent prior permission from the
Court, no party shall file any objections or responses to another party’s objections exceeding
twenty pages in length. The District Judge shall consider the appeal and shall set aside any
portion of the Magistrate Judge’s order found to be clearly erroneous or contrary to law. The
District Judge may also reconsider sua sponte any matter determined by a Magistrate Judge
under this rule.
(2)
Government Appeal of Release Order. At the conclusion of a hearing pursuant to 18
U.S.C. § 3142 in which a Magistrate Judge has entered an order granting pretrial release,
the government may make an ore tenus motion that the Magistrate Judge exercise
discretion to stay the release order for a reasonable time, to allow the government to pursue
review or appeal of the release order, in accordance with 18 U.S.C. § 3145.
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 (48) 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.
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(b)
Review of Case-Dispositive Motions and Prisoner Litigation-28 U.S.C. § 636(b)(1)(B). Any
party may object to a Magistrate Judge’s proposed findings, recommendations or report under
subsections 1(d), (e), and (f) of these rules, supra, within fourteen (14) days after being served with
a copy thereof, or within such other time as may be allowed by the Magistrate Judge or District
Judge. Such party shall file with the Clerk of the Court, and serve on all parties, written objections
which shall specifically identify the portions of the proposed findings, recommendations or report to
which objection is made, the specific basis for such objections, and supporting legal authority. Any
party may respond to another party’s objections within fourteen (14) days after being served with a
copy thereof, or within such other time as may be allowed by the Magistrate Judge or District Judge.
Absent prior permission from the Court, no party shall file and serve any objections or responses to
another party’s objections exceeding twenty (20) pages in length. A District Judge shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the Magistrate Judge. The District Judge, however, need
conduct a new hearing only in his discretion or where required by law, and may consider the record
developed before the Magistrate Judge, making his own determination on the basis of that record.
The District Judge may also receive further evidence, recall witnesses, or recommit the matter to the
Magistrate Judge with instructions.
(c)
Special Master Reports—28 U.S.C. § 636(b)(2). Any party may seek review of, or action on,
a special master report filed by a Magistrate Judge in accordance with the provisions of Federal Rules
of Civil Procedure 53(e).
(d)
Appeal From Judgments in Misdemeanor Cases—18 U.S.C. § 3402 [Deleted]. Replaced by
Federal Rule of Criminal Procedure 58.
(e)
Appeal From Judgments in Civil Cases Disposed of on Consent of the Parties—28 U.S.C. §
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 28 U.S.C. § 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 28 U.S.C. § 636(c)(4) and (5).
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 1997; April 15, 1998;
April 15, 1999; April 15, 2007; April 15, 2010; December 1, 2011; December 1, 2015; December 2,
2019; December 1, 2020.
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RULES GOVERNING THE ADMISSION, PRACTICE, PEER REVIEW, AND
DISCIPLINE OF ATTORNEYS
RULE 1. QUALIFICATIONS FOR ADMISSION
An attorney is eligible for admission to the bar of this District if the attorney is currently a member
in good standing of The Florida Bar.
Effective December 1, 1994. Amended effective Jan. 1, 1996; April 15, 2002; April 15, 2006; April
15, 2007; December 3, 2012; December 1, 2015; December 1, 2017.
RULE 2. PROCEDURE FOR APPLYING FOR ADMISSION AND PROOF OF
QUALIFICATIONS
Each applicant for admission shall submit a verified petition setting forth the information specified
on the form available on the Court’s website (www.flsd.uscourts.gov) and shall also pay the
application fee in the amount set by the Court. Upon receipt of the application fee, the Clerk of the
Court shall require each qualified practitioner to sign the oath of admission and shall place such
applicant on the roll of attorneys of the bar of this Court. In accordance with Court procedure, the
Clerk of the Court shall refer to the Ad Hoc Committee on Attorney Admissions, Peer Review, and
Attorney Grievance any applicant for further investigation under Rule 6.
Effective December 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007; December 3, 2012;
December 1, 2015; December 1, 2017.
RULE 3. RETENTION OF MEMBERSHIP IN THE BAR OF THIS COURT
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. Attorneys who are not in good standing of the bar of this Court may not practice before the
Court.
Effective December 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007; December 1, 2011;
December 1, 2015; December 1, 2017.
RULE 4. APPEARANCES
(a)
Who May Appear Generally. Except when an appearance pro hac vice is permitted by the
Court, only members of the bar of this Court may appear as attorneys before this Court. Attorneys
residing within this District and practicing before this Court are expected to be members of the bar
of this Court.
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(b)
Appearance Pro Hac Vice.
(1)
An 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 submission of a pro
hac vice motion filed and served by co-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 Local Rules shall accompany the pro hac vice motion together with such
appearance fee as may be required by administrative order. If permission to appear pro hac
vice is granted, such appearance shall not constitute formal admission or authorize the
attorney to file documents via CM/ECF.
(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, the filing of more than three
motions to appear pro hac vice 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)
The pro hac vice motion shall designate at least one member of the bar of this Court 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 and serve all
documents and things that may be filed and served electronically, and who shall be
responsible for filing and serving documents in compliance with the CM/ECF
Administrative Procedures. See Section 2B of the CM/ECF Administrative Procedures. The
pro hac vice motion must be accompanied by a written statement consenting to the
designation, and the address and telephone number of the named designee(s). Upon written
motion and for good cause shown the Court may waive or modify the requirements of such
designation.
(c)
Appearance Ad Hoc. An attorney acting on behalf of this Court’s Volunteer Attorney Program
may, upon written motion and by leave of court, be permitted to appear for an individual proceeding
pro se in a civil matter for the sole purpose of assisting in the 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 ad hoc appearance is terminated.
(d)
Government Attorneys. Any full-time United States Attorney, Assistant United States
Attorney, Federal Public Defender and Assistant Federal Public Defender and attorney employed
full time by and representing the United States government, or any agency thereof, and any Attorney
General and Assistant Attorney General of the State of Florida may appear and participate in
particular actions or proceedings on behalf of the attorney’s employer in the attorney’s official
capacity without petition for admission. Any attorney so appearing is subject to all rules of this
Court.
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Effective December 1, 1994. Amended effective Jan. 1, 1996; April 15, 2007; April 15, 2010;
December 1, 2014; December 1, 2015; December 1, 2017; December 3, 2018.
RULE 5. STUDENT PRACTICE
(a)
Purpose. The following Rule for Student Practice is designed to encourage law schools to
provide clinical instructions in litigation of varying kinds, and thereby enhance the competence of
lawyers in practice before the United States courts.
(b)
Student Requirements. An eligible student must:
(1)
be duly enrolled in a law school;
(2)
have completed at least four semesters of legal studies or the equivalent;
(3)
have knowledge of the Federal Rules of Civil and Criminal Procedure and of Evidence,
and the Code of Professional Responsibility;
(4)
be enrolled for credit in a law school clinical program which has been certified by the
Court;
(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;
(6)
be certified by the Court to practice pursuant to this Rule;
(7)
neither ask for nor receive any compensation or remuneration of any kind for the student’s
services from the person on whose behalf the student 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).
(c)
Program Requirements. The program:
(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 practitioners;
(2)
must be certified by the Court;
(3)
must be conducted in such a manner as not to conflict with normal Court schedules;
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(4)
must be under the direction of a member or members of the regular or adjunct faculty of
the law school;
(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.
(d)
Supervisor Requirements. A supervising attorney must:
(1)
be a lawyer whose service as a supervising attorney for this program is approved by the
dean of the law school in which the law student is enrolled and who is a member of The
Florida Bar in good standing;
(2)
be a member in good standing of the bar of this Court;
(3)
be certified by the Court as a student supervisor;
(4)
be present with the student when required by the Court;
(5)
co-sign all pleadings or other documents filed with this Court;
(6)
assume full personal professional responsibility for a student’s guidance in any work
undertaken and for the quality of a student’s work, and be available for consultation with
represented clients;
(7)
assist the student in his preparation to the extent the supervising attorney considers it
necessary.
(e)
Certification of Student, Program and Supervising Attorneys.
(1)
Students.
(A)
Certification by the law school dean or his designee, if said certification is
approved by the Court, shall be filed with the Clerk of the Court, and served upon all
parties, and unless it is sooner withdrawn, shall remain in effect until the expiration
of eighteen months;
(B)
Certification to appear in a particular case may be withdrawn by the Court at any
time, in the discretion of the Court, and without any showing of cause. Notice of
termination may be filed with the Clerk of the Court.
(2)
Program.
(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;
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(B)
Certification of a program may be withdrawn by the Court at the end of any
academic year without cause, or at any time, provided notice stating the cause for
such withdrawal is furnished to the law school dean.
(3)
Supervising Attorney.
(A)
Certification of a supervising attorney by the law school dean, if said certification
is approved by the Court, shall be filed with the Clerk of the Court, and shall remain
in effect indefinitely unless withdrawn by the dean or by the Court;
(B)
Certification of a supervising attorney may be withdrawn by the Court at the end
of any academic year without cause, or at any time upon notice and a showing of
cause;
(C)
Certification of a supervising attorney may be withdrawn by the dean at any time
by mailing of notice to that effect to the Clerk of the Court;
(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)
Activities.
(1)
An eligible law student may participate in proceedings in open court in the Bankruptcy
Court on behalf of any indigent person if the person on whose behalf the student is appearing
has indicated in writing their consent to that appearance and the supervising attorney has also
indicated in writing approval of that appearance. The written consent and approval shall be
filed in the record of the case, served upon all parties, and shall be brought to the attention of
the Judge.
(2)
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.
(3)
In addition, an eligible law student may engage in other activities, under the general
supervision of a member of the bar of this Court, but outside the personal presence of that
lawyer, including:
(A)
preparation of pleadings and other documents to be filed in any matter in which
the student is eligible to appear, but such pleadings or documents must be signed by
the supervising attorney;
(B)
preparation of briefs, abstracts and other documents to be filed in appellate courts,
but such documents must be signed by the supervising attorney;
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(C)
except when the assignment of counsel in the matter is required by any
constitutional provision, statute or rule of this Court, assistance to indigent inmates
of correctional institutions or other persons who request such assistance in preparing
applications for and supporting documents for post-conviction relief. If there is an
attorney of record in the matter, all such assistance must be supervised by the attorney
of record, and all documents submitted to the Court on behalf of such a client must
be signed by the attorney of record;
(D)
each document or pleading must contain the name of the eligible law student who
has participated in drafting it. If the student participated in drafting only a portion of
it, that fact may be mentioned.
(g)
Court Administration. The Chief Judge
1
, 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 December 1, 1994. Amended effective April 15, 1996; April 15, 2002; April 15, 2007;
April 15, 2010; December 1, 2015; December 1, 2017; December 2, 2019; December 1, 2020.
RULE 6. COMMITTEE ON ATTORNEY ADMISSIONS, PEER REVIEW, AND
ATTORNEY GRIEVANCE
(a)
Establishment and Membership. There shall be an Ad Hoc Committee on Attorney
Admissions, Peer Review, and Attorney Grievance (the “Committee”). The Committee shall consist
of attorneys practicing within this District. The Chief Judge, or one or more members of the Court
appointed by the Chief Judge, shall appoint the members of the Committee. In addition to other
considerations given by the Court to establish a Committee that reflects the diversity of the Bar of
the Court, the geographic location of the members should also be weighed in the Court’s selection
of members of the Committee. The members shall serve renewable terms of three (3) years and shall
be staggered so that one third of the members’ terms expire each year. The Chief Judge shall select
the Committee Chair. Selections shall be made by Administrative Order entered by the Chief Judge.
All persons appointed to the Committee shall serve at the pleasure of the Court. The Committee
shall not exceed twenty-five (25) members.
(b)
Purpose. Subject to the direction of the Court, the Committee shall have the authority and
perform the functions assigned by these Rules and shall otherwise assist the Court in the
implementation and evaluation of these Rules. The Committee may under no circumstances initiate
and investigate such matters without prior referral by the Court.
1
In these Rules, references to the Chief Judge shall mean to the Chief Judge or the Chief Judge’s
designee.
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(1)
Peer Review. 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, one of the
Committee’s primary functions is to determine whether individual attorneys are failing
to perform to an adequate level of competence necessary to protect the interests of their
clients. In furtherance of that objective, the Committee shall have the authority to
establish and administer a remedial program designed to raise the competence of an
attorney who is not performing adequately; to refer an attorney 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 the attorney’s level of competence, or fails to achieve an adequate level
of competence within a reasonable time.
(2)
Attorney Discipline. The other primary function of the Committee shall be to conduct
investigations of alleged misconduct of any attorney—whether a member of the Bar of
this Court or not; to conduct and preside over disciplinary hearings when appropriate and
as hereinafter provided; and to submit written findings and recommendations for
appropriate action by the Court, except as otherwise described herein.
(A)
Standards for Professional Conduct. 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 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 and by the Rules of Professional Conduct,
except as otherwise provided by specific Rule of this Court.
(B)
Discipline. Discipline for misconduct defined in these Rules may consist of (1)
disbarment, (2) suspension, (3) reprimand, (4) monetary sanctions, (5) removal
from this Court’s roster of attorneys eligible for practice before this Court, or (6)
any other sanction the Court may deem appropriate.
(C)
Court’s Retention of Inherent Power. Nothing contained in these Rules shall be
construed to deny the Court its inherent power to maintain control over the
proceedings conducted before it or to deny the Court those powers derived from
statute, rule, or procedure. 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, the Supreme
Court of Florida, 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 Committee; or take any other action the Court deems appropriate.
These procedures are not mutually exclusive.
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(c)
Procedures.
(1)
Internal Referral. Any District Judge, Magistrate Judge, or Bankruptcy Judge may, in
the Judge’s discretion, refer in writing to the Committee the name of any attorney the
Judge observed practicing law in a manner which either: (a) raises a significant question
as to the adequacy of such attorney’s ability to represent clients in a competent manner
(See Rule 6(b)(1) Peer Review); and/or (b) whose acts or omissions may violate the
Standards for Professional Conduct (See Rule 6(b)(2)(A)). Each referral shall document
the facts of the matter, with the Committee having the discretion to determine the type of
review after its initial investigation unless the referral so directs.
(2)
Investigation and Proceedings. Promptly after receipt of such a referral the Chairperson
of the Committee shall select an Investigative Committee consisting of at least three
members of the Committee. The Investigative Committee may request that the attorney
meet with it informally to explain the circumstances which gave rise to the referral and
may conduct such inquiries as it deems appropriate. Following the initial inquiry, the
Investigative Committee shall report its findings and recommendations to the Committee
and the Committee may, at its discretion, further investigate, including but not limited to
having the attorney appear before the Committee. If the Committee determines that
additional investigation is not warranted the Committee shall document the findings in
writing and close the investigation. No further action shall be taken unless the Court
takes exception to the findings. Upon closing a matter the Chairman shall notify the
referring Judge, Chief Judge, Clerk of Court, and the attorney. Otherwise the matter shall
proceed to peer review or disciplinary proceedings as further described in subsections
(A)
and (B) below.
(A)
Peer Review –
i. If the Committee determines that the attorney’s conduct raises a significant
question as to the adequacy of such attorney’s ability to represent clients in
a competent manner, it shall report its findings to the Chief Judge, Clerk of
Court, and the attorney and describe the recommended remedial program
designed to raise the competence of the attorney. The remedial program can
include, but is not limited to, ordering mandatory participation in
continuing legal education programs and participation in group and
individual study programs, referring the attorney to appropriate institutions
and professional personnel for assistance in raising his or her level of
competency, requiring the attorney obtain co-counsel in matters before the
Court, and, if the attorney’s lack of competency relates to drug or alcohol
abuse, requiring the attorney to seek treatment for that condition and
requiring the attorney to submit periodic reports from the individuals
responsible for such treatment.
ii. If the attorney objects to the Committee’s findings or recommendations, the
attorney shall have the right to, within fourteen (14) days of receipt of the
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Committee’s findings and recommendations, serve a written response
seeking revision or revocation of, or suggesting alternatives to, the findings
or proposed recommendations. The Committee shall consider the attorney’s
response and thereafter shall issue its final Report and Recommendation to
the Court.
iii. The Committee is authorized to monitor the attorney’s progress to ensure
that it is consistent with the Court’s Order adopting the Committee’s Report
and Recommendation, in whole or in part, and may make such interim
reports or periodic reports relative to its activities as requested by the Court.
Upon completion of the Committee’s activities in respect to each attorney
referred by the Court, the Committee may file and serve a supplemental
Report and Recommendation to the Court. The Supplemental Report and
Recommendation shall include documentation as to the Committee’s
evaluation, testing, or other appropriate means used to determine whether
the attorney has attained an adequate level of competency or if the attorney
fails to achieve an adequate level of competency within a reasonable time.
If the Committee finds that the attorney has not complied with the Court’s
order and there is a substantial likelihood that the attorney’s continued
practice of law may result in serious harm to the attorney’s clients, the
Committee may undertake disciplinary proceedings pursuant to section (B),
infra.
(B)
Discipline –
i.If the Committee determines that probable cause exists to support a finding
that the attorney has violated the Standards for Professional Conduct it shall
provide the attorney with a written Report and Recommendation
specifying: (1) its findings of fact supporting a finding of misconduct; and
(2)
its proposed recommendations as to the disciplinary measures to be
applied by the Court. The Report and Recommendation shall also notify
the attorney of the attorney’s rights and obligations under these Rules.
ii.An attorney who objects to the Committee’s Report and Recommendation
shall have the right to, within fourteen (14) days of receipt of the
Committee’s Report and Recommendation, serve a written response
seeking revision or revocation of, or suggesting alternatives to, the
recommendation, and/or requesting a hearing before the Committee.
iii. If the attorney does not serve a written response within fourteen (14) days,
the Committee shall file and serve its Report and Recommendation with the
Court, noting that the attorney failed to respond, and shall apply to the Court
for the issuance of an order requiring the attorney to show cause within
fourteen (14) days after service of that order why the attorney should not be
disciplined.
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iv. If the attorney serves a written response and requests a hearing, the
Committee may, in its discretion, hold a hearing. If no hearing is requested,
the Committee shall review the response and make a final Report and
Recommendation to the Court. If the attorney fails to appear at the hearing,
then the Committee shall take the steps outlined in subsection (B)(iii),
supra. If the attorney does appear for the hearing, the attorney shall be
entitled to be represented by counsel, to present witnesses and other
evidence on his or her behalf, and to confront and cross examine witnesses
against the attorney. The attorney does not have the right to confront or
cross examine members of the Court or members of the Committee. The
disciplinary proceedings before the Committee shall be guided by the
Federal Rules of Evidence. The Committee may call the accused attorney
as a witness to make specific and complete disclosure of all matters material
to the charge of misconduct unless the attorney asserts a privilege or right
properly available to the attorney under applicable federal or state law.
Upon the conclusion of the hearing, the Committee shall file and serve a
final Report and Recommendation to the Court.
v.Upon receipt of the Committee’s final Report and Recommendation, the
Chief Judge shall issue an order requiring the attorney to show cause within
fourteen (14) days why the Committee’s final Report and Recommendation
should not be adopted by the Court. The Chief Judge 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.
(3)
Relationship Between Peer Review and Attorney Discipline Functions and Procedures.
Unless otherwise ordered by the Chief Judge, the Committee has discretion to proceed
with peer review or undertake disciplinary action. This discretion continues throughout
the proceedings to allow the Committee to elevate a peer review action to a disciplinary
action or vice versa depending on the facts discovered during the investigation. At any
time a State or Federal Bar is investigating the same or similar action of the attorney
under review by the Committee, upon review, the Committee may recommend to the
Court to stay the proceedings pending the resolution of the investigation. If the Court
approves of the stay, the attorney must notify the Court by written notice when the
investigation is concluded. Any deadlines imposed under these rules will resume upon
receipt of the notice.
(4)
Timing. Within one hundred and eighty (180) days of receipt of the referral, unless
additional time is requested for good cause, the Committee must have submitted its final
Report and Recommendation to the Court, setting forth, inter alia, the procedures
undertaken and under which rule; what standards of professional conduct have been
violated, if any, or competency questioned; recommendations as to remedial or
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disciplinary measures to be applied; and a recommendation regarding the next steps
that the Court should take. The Committee shall include its findings of fact as to
the charges of misconduct, recommendations as to whether or not the accused
attorney should be found guilty of misconduct justifying disciplinary actions by
the Court, and recommendations as to the disciplinary measures to be applied by
the Court. The Report and Recommendation shall be accompanied by a transcript
of the proceedings before the Committee, all pleadings, and all evidentiary
exhibits.
(5)
Interim Restrictions on Practice. If the Committee finds that there is a substantial
likelihood that the attorney’s continued practice of law may result in serious harm to the
attorney’s clients pending completion of an investigation, it may recommend that the
Court limit or otherwise impose appropriate restrictions on the attorney’s continued
practice in the District Court.
(d)
Immunity. Any Committee determination that a referred attorney is adequately competent does
not render the Committee potentially liable as a guarantor of the validity of that determination. The
Committee is not liable for the misconduct or nonconduct of any referred attorney. Unauthorized
disclosure of confidential information is outside the scope of the Committee’s responsibilities. 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.
(e)
Obligation to Cooperate With Committee. Any member of the bar of this Court, who is
referred to the Committee for any reason shall regard it to be an obligation as an officer of this Court
to cooperate fully with the Committee, which constitutes an official arm of the Court. Any failure
to cooperate and/or to meet any deadline imposed by the rules, the Committee, or the Court, without
good cause shown, will be reported to the Chief Judge and recorded in the records of the Committee
and may constitute separate grounds for suspension or disbarment.
(f)
Confidentiality. All matters referred to the Committee, all information in the possession of the
Committee and all recommendations or other actions taken by the Committee are matters relating to
the administration of the Court and shall be confidential, and shall be disclosed only by order of the
Court. Correspondence, records and all written material coming to the Committee shall be retained
in an office designated by the Court and are documents of the Court and shall be kept confidential
unless the Court directs otherwise. No statement made by the attorney to the Committee shall be
admissible in any action for malpractice against the attorney, nor shall any part of the Committee’s
investigative files be admissible in such proceedings. No statement made by the attorney to the
Committee shall be admissible in any 28 U.S.C. § 2255 collateral attack for incompetency of counsel
in a criminal case, nor shall any part of the Committee’s investigative files be admissible in
proceedings under 28 U.S.C. § 2255. Likewise, any information given by a client of the attorney to
the Committee shall be privileged to the same extent as if the statements were made by the client to
the attorney.
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(g)
Notice. All referrals, orders, and recommendations shall be provided to the Chief Judge, referring
judge, attorney, and the Clerk of Court, unless otherwise specified. Any resulting orders shall be
served in accordance with Rule 16.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 2002; April 15, 2007;
April 15, 2010; December 1, 2015; December 1, 2017; December 2, 2019.
RULE 7. ATTORNEYS CONVICTED OF CRIMES
(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.
(1)
Adjudication Withheld. Where a criminal proceeding results in an adjudication being
withheld, the Court shall issue an Order to Show Cause for the attorney to respond within
thirty (30) days before the issuance of any discipline.
(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.”
(c)
A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive
evidence of the commission of that crime in any disciplinary proceeding instituted against that
attorney based on the conviction.
(d)
Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime,
the Court may, in addition to suspending that attorney in accordance with the provisions of this Rule,
also refer the matter to the Committee for institution of disciplinary proceedings in which the sole
issue to be determined shall be the extent of the final discipline to be imposed as a result of the
conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be
brought to final hearing until all appeals from the conviction are concluded.
(e)
An attorney suspended under the provisions of this Rule will be reinstated immediately upon the
filing of a certificate demonstrating that the underlying conviction of a serious crime has been
reversed, but the reinstatement will not terminate any disciplinary proceedings then pending against
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the attorney, the disposition of which shall be determined by the Committee on the basis of all
available evidence pertaining to both guilt and the extent of the discipline to be imposed.
Effective December 1, 1994. Amended effective April 15, 2002; April 15, 2007; April 15, 2010;
December 1, 2015; December 1, 2017.
RULE 8. DISCIPLINE IMPOSED BY OTHER COURTS
(a)
An attorney admitted to practice before this Court shall, upon being subjected to reprimand,
discipline, suspension, or disbarment by a court of any state, territory, commonwealth, or possession
of the United States, or by any other court of the United States or the District of Columbia, shall
promptly inform the Clerk of the Court of such action.
(b)
Upon the filing of a certified copy of a judgment or order demonstrating that an attorney admitted
to practice before this Court has been disciplined by another court as described above, this Court
may refer the matter to the Committee for a recommendation for appropriate action, or may issue a
notice directed to the attorney containing:
(1)
A copy of the judgment or order from the other court, and
(2)
An order to show cause directing that the attorney inform this Court, within thirty (30)
days after service of the order to show cause of any claim by the attorney predicated upon
the grounds set forth in subsection (e), infra, that the imposition of identical discipline by the
Court would be unwarranted and the reasons therefor.
(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)
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)
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:
(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
(2)
there was such an infirmity of proof establishing misconduct as to give rise to the clear
conviction that this Court could not, consistent with its duty, accept as final the conclusion
on that subject; or
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(3)
the imposition of the same discipline by this Court would result in grave injustice; or
(4)
the misconduct established is deemed by this Court to warrant substantially different
discipline.
(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 December 1, 1994. Amended effective April 15, 2002; April 15, 2007; April 15, 2010;
December 1, 2015; December 1, 2017.
RULE 9. DISCIPLINE ON CONSENT, RESIGNATION, OR INACTIVE STATUS IN
OTHER COURTS
(a)
Any attorney admitted to practice before this Court shall, upon being suspended or disbarred on
consent, resigning, or being placed on inactive status with any other bar while an investigation into
allegations of misconduct is pending, promptly inform the Clerk of the Court of such suspension or
disbarment on consent, resignation, or inactive status, within thirty (30) days of its occurrence.
(b)
An attorney admitted to practice before this Court who shall be suspended or disbarred on
consent, resign, or placed on inactive status with 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 suspension or disbarment
on consent, resignation, or inactive status, cease to be permitted to practice before this Court and be
stricken from the roll of attorneys admitted to practice before this Court until further order of the
Court.
(c)
Any attorney who has resigned from or been placed on inactive status with The Florida Bar while
an investigation into allegations of misconduct is pending shall inform the Clerk of the Court within
thirty (30) days. Upon receipt of notice of such action, the attorney’s ability to practice before this
Court shall be administratively suspended and the attorney may not resume practice before this Court
until they certify that they are an active attorney in good standing with The Florida Bar. There is no
inactive status other than for government attorneys in this Court. An attorney may resign from the
bar of this Court by notifying the Clerk of Court in writing and only if the attorney is in good
standing, is not counsel of record in an active case, and is not subject to any disciplinary proceedings.
Upon receipt of the notice of resignation, the attorney will be ineligible to practice in this Court and
must reapply for admission pursuant to Rule 2 of these rules.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2015; December 1, 2017.
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RULE 10. DISCIPLINE ON CONSENT WHILE UNDER DISCIPLINARY
INVESTIGATION OR PROSECUTION
(a)
Any attorney admitted to practice before this Court who is the subject of an investigation into, or
a pending proceeding by a court of any state, territory, commonwealth, or possession of the United
States, or by any other court of the United States or the District of Columbia involving allegations
of misconduct may consent to suspension or disbarment, but only by delivering to this Court an
affidavit stating that the attorney desires to consent to suspension or disbarment and that:
(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;
(2)
the attorney is aware that there is a presently pending investigation or proceeding
involving allegations that there exist grounds for the attorney’s discipline the nature of which
the attorney shall specifically set forth;
(3)
the attorney acknowledges that the material facts so alleged are true; and
(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 themself.
(b)
Upon receipt of the required affidavit, this Court shall enter an order suspending or disbarring
the attorney.
(c)
The order suspending or 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.
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2015; December 1, 2017.
RULE 11. INCAPACITY
When it comes to the attention of the Court that an attorney has been judicially declared incompetent,
involuntarily committed to a mental hospital, placed on inactive status or resigned, or has been
suspended by another jurisdiction due to such mental incompetence or incapacity or on the basis of
physical infirmity or illness, the Court, upon proper proof of the fact, shall enter an order immediately
placing the attorney on the Court’s inactive list until further order of the Court. If the Court becomes
aware that an attorney is incapacitated by reason of mental infirmity or illness or because of the use
of drugs or intoxicants, it shall also refer the matter to the Committee to investigate the matter in
accordance with the procedures herein.
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Effective December 1, 1994. Amended effective April 15, 2002; April 15, 2007; April 15, 2010;
December 1, 2015; December 1, 2017.
RULE 12. REINSTATEMENT
(a)
After Disbarment or Suspension. An attorney suspended for ninety (90) days or less shall be
automatically reinstated at the end of the period of suspension upon the filing with this Court of an
affidavit of compliance with the provisions of the order. An attorney suspended for more than ninety
(90) days or disbarred may not resume the practice of law before this Court until reinstated by order
of the Court. An attorney seeking reinstatement after reciprocal disbarment or suspension must meet
the same criteria as an attorney seeking original admission under Rule 2, in that the attorney must
first seek and obtain reinstatement by The Florida Bar. An attorney seeking reinstatement after
disbarment or suspension originating in this Court must first certify their good standing with The
Florida Bar.
(b)
Time of Application Following Disbarment/Suspension. An attorney who has been disbarred
after hearing or consent may not apply for reinstatement until the expiration of at least three (3) years
from the effective date of disbarment. An attorney who has been suspended for more than ninety
(90) days may not apply for reinstatement until expiration of the suspension or in the case of
reciprocal discipline, upon proof that the attorney has been reinstated by the court in which the
attorney was disciplined.
(c)
Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under
this Rule shall be filed with the Chief Judge of this Court. If the disciplinary action was reciprocal,
the Chief Judge may rule on the petition or submit it to the active Judges of the Court to be
determined by majority vote. If the disciplinary action originated in this Court then it shall be
submitted to the active Judges of the Court and determined by majority vote. Prior to submitting the
petition to the active Judges of the Court, the Chief Judge may refer the petition to the Committee
which shall within sixty (60) days of the referral schedule a hearing at which the petitioner shall have
the burden of establishing by clear and convincing evidence that the attorney has the moral
qualifications, competency, and learning in the law required for admission to practice before this
Court and that the attorney’s resumption of the practice of law will not be detrimental to the integrity
and standing of the bar or the administration of justice, or subversive of the public interest. Upon
completion of the hearing the Committee shall make a full report to the Court. The Committee shall
include its findings of fact as to the petitioner’s fitness to resume the practice of law and its
recommendations as to whether or not the petitioner should be reinstated.
(d)
Conditions of Reinstatement. If after consideration of the Committee’s Report and
Recommendation the Court finds that the petitioner is unfit to resume the practice of law, the petition
shall be dismissed. If after consideration of the Committee’s Report and Recommendation the Court
finds that the petitioner is fit to resume the practice of law, the Court shall reinstate the attorney,
provided that the judgment may make reinstatement conditional upon the payment of all or part of
the costs of the proceedings, and on the making of partial or complete restitution to all parties harmed
by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the
petitioner has been suspended or disbarred for five (5) years or more, reinstatement may be
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conditioned, in the discretion of the Court, upon the furnishing of proof of competency and learning
in the law, which proof may include certification by the bar examiners of a state or other jurisdiction
of the attorney’s successful completion of an examination for admission to practice subsequent to the
date of suspension or disbarment. Provided further that any reinstatement may be subject to any
conditions which the Court in its discretion deems appropriate.
(e)
Successive Petitions. No petition for reinstatement under this Rule shall be filed within three
(3) years following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same
person.
(f)
Deposit for Costs of Proceeding. Petitions for reinstatement under this Rule shall be
accompanied by a deposit in an amount to be set by the Court in consultation with the Committee to
cover anticipated costs of the reinstatement proceeding.
Effective December 1, 1994. Amended effective April 15, 2002; April 15, 2006; April 15, 2007;
April 15, 2010; December 1, 2015; December 1, 2017.
RULE 13. DUTIES OF THE CLERK WITH RESPECT TO CONVICTIONS OR
DISCIPLINE BY OTHER COURTS
(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, file it with this Court, and serve
it upon the attorney.
(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, file it with this Court, and serve it upon the attorney.
(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 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)
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.
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Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; December 1,
2015; December 1, 2017; December 2, 2019.
RULE 14. ATTORNEYS SPECIALLY ADMITTED
Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular
proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary
jurisdiction upon this Court for any alleged misconduct arising in the course of or in the preparation
for such a proceeding which is a violation of this Court’s Local Rules and/or the Rules of
Professional Conduct adopted by this Court as provided in these Rules.
Effective December 1, 1994. Amended effective April 15, 2010; December 1, 2017.
RULE 15. APPOINTMENT OF COUNSEL
Whenever, at the direction of the Court or upon request of the Committee, counsel is to be appointed
pursuant to these rules to investigate or assist in the investigation of misconduct, to prosecute or
assist in the prosecution of disciplinary proceedings, or to assist in the disposition of a reinstatement
petition filed by a disciplined attorney, this Court, by a majority vote of the active Judges thereof,
may appoint as counsel any active member of the bar of this Court, or may, in its discretion, appoint
the disciplinary agency of the highest court of the state wherein the Court sits, or other disciplinary
agency having jurisdiction.
Effective December 1, 1994. Amended effective April 15, 2002; April 15, 2010; December 1, 2017.
RULE 16. SERVICE OF PAPER AND OTHER NOTICES
Service of an order to show cause instituting a formal disciplinary proceeding shall be made by
personal service or by registered or certified mail addressed to the affected attorney at the address
shown on the roll of attorneys admitted to practice before this Court or by email upon consent of the
affected attorney to waive formal service. Service of any other papers or notices required by these
Rules subsequent to the original order to show cause shall be deemed to have been made if such
paper or notice is mailed to the attorney at the address shown on the roll of attorneys admitted to
practice before the Court, or to counsel or the respondent’s attorney at the address indicated in the
most recent pleading or document filed by them in the course of any proceeding, or any other method
permitted by Federal Rule of Civil Procedure 5(b).
Effective December 1, 1994. Amended effective April 15, 2007; April 15, 2010; April 15, 2011;
December 1, 2015; December 1, 2017.
