Local Rule 9: the Key to More Effective Motion Practice in Connecticut's United States District Court
| Pages | 369 |
| Publication year | 2021 |
69 CBJ 369. Local Rule 9: The Key to More Effective Motion Practice in Connecticut's United States District Court
Most lawsuits are settled before trial. (fn1) This means that most of the "litigation" that takes place in our legal system prior to a case's settlement involves motion practice. If there is a key to effective motion practice in Connecticut's United States District Court, it is Rule 9 of the Local Rules of Civil Procedure. (fn2) That rule contains a wealth of practical information that can spare counsel CONSiderable time, save a client unnecessary expenses, and make federal practice a much more enjoyable experience. This article provides an overview of Local Rule 9 and offers some practical suggestions on how to proceed under it.
Local Rule 9 begins by addressing the legal memorandum, which is the traditional and preferred way by which federal practitioners should communicate with the court about a pending
motion. (fn3) The rule does not require the filing of a legal memorandum with every motion, but instead requires that a memorandum accompany "any motion involving disputed issues of law ......"
In deciding whether a motion must be accompanied by a memorandum, counsel should err on the side of preparing and filing one. This is clearly the safer course, since it is usually not difficult to CONStruct an argument that virtually every motion implicates at least some disputed legal issue. The memorandum need not be long or complicated, and in an appropriate case need do little more than report moving counsel's opinion that the motion does not present a legal dispute or that it is unopposed. (fn4) Since the failure to file an accompanying memorandum may be seen as cause to deny a motion, there is no real disadvantage to filing such a precautionary memorandum. (fn5)
The first paragraph of Local Rule 9(a) also sets the timetable by which opposing memoranda must be filed. (fn6) The rule states that, unless the court orders otherwise , all memoranda in opposition to any motion must be filed within twenty-one (21) days of the filing of the motion . Where the circumstances require a shorter timetable, counsel may file a motion asking the
court to shorten the time within which to file responsive memoranda. Such a motion may be particularly appropriate as the date for trial or an evidentiary hearing approaches and time becomes of the essence. (fn7)
The first paragraph of the rule also makes it clear that the "[f]ailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion," except where it is clear from the record that the motion should be denied. When the court grants a motion believing that it is not opposed, some notation is ordinarily made to reflect that the motion was granted "absent objection" or without the benefit of an opposing memorandum. In such circumstances, counsel who believe the court has acted mistakenly should promptly seek appropriate relief from the court. This may be accomplished by filing a "Motion to ReCONSider," although such a motion might be more appropriately styled as a "Motion for Relief from Order."
Even where counsel believes that an adversary's motion has been improperly filed without an accompanying legal memorandum, it is not the better practice to leave the motion unaddressed by an opposing memorandum. It is usually far better to explain in a timely opposing memorandum why an adversary's motion is unmeritorious than it is to argue that an adverse ruling made absent objection ought to be vacated to allow counsel yet another opportunity to address the motion. Unfortunately, in the crush of its caseload, it is easy for the court to misinterpret counsel's failure to file an opposing memorandum as acquiescence in a motion.
It is not necessary to file in Connecticut's U.S. District Court a separate document entitled "opposition" by which a party formally declares that it opposes a motion. Indeed, while the filing of such documents may be commonplace in state practice, it serves no useful purpose in federal practice, signals that a practitioner is not familiar with local federal procedure, and may lead to confusion in the captioning of related memoranda.
Instead, in Connecticut the federal practitioner normally registers an objection to a motion simply by filing a memoran
dum opposing the motion. The memorandum should identify the motion to which it relates, for example, "Memorandum in Opposition to Motion to Dismiss." Filing a superfluous document entitled "Opposition" not only creates docket clutter, but sometimes leads to the formulation of comically convoluted captions for memoranda as, for example, "Memorandum in Support of Opposition to Motion to Dismiss" or, worse yet, "Memorandum in Reply to Memorandum in Support of Opposition to Motion to Dismiss."
In federal practice, a supporting memorandum would ordinarily be entitled simply, for example, "Memorandum in Support of Motion to Dismiss." And the opposing memorandum would normally be captioned, "Memorandum in Opposition to Motion to Dismiss." Similarly, a reply memorandum would be entitled, "Reply Memorandum in Support of Motion to Dismiss." In multi-party cases, it is also often to counsel's advantage to identify moving and opposing parties by name in a document's caption. This can be of great assistance to the court in quickly identifying who is seeking precisely what relief from whom. An example might be, "Defendant White's Motion to Dismiss," or "Plaintiff Green's Memorandum Opposing Defendant Black's Motion for Summary judgment." In deciding what to caption a particular motion or memorandum, counsel should strive for simplicity and clarity.
The first paragraph of Local Rule 9(a) also instructs counsel how to request oral argument. A movant may request oral argument by indicating in the lower margin of the first page of the motion whether oral argument is desired. This is usually accomplished by a typewritten notation, "Oral Argument is Requested" or "Oral Argument is Not Requested." An opponent makes its preference known by placing a similar notation in the lower margin of the first page of its opposing memorandum.
Although a great many attorneys request oral argument as a matter of course, the actual holding of oral argument now appears to be the exception rather than the rule in Connecticut's federal court. As Local Rule 9 indicates, the court has discretion to grant or deny a request for oral argument, and the policy on oral argument varies among the judges and depends on the type of motion under CONSideration. Requesting oral argument is certainly not viewed as an expression of confidence in the merits of
a motion, nor does the court infer un-meritoriousness from an attorney's not seeking oral argument.
The second paragraph of Local Rule 9(a) sets a page limit on briefs or memoranda, and instructs counsel where within the district the original of all briefs, memoranda, and motion papers must be filed. Briefs and memoranda may not exceed forty (40) 8 1/2" by 11" pages of standard double-spaced type, exclusive of tables of contents, table of cases "or the like." Counsel are ill-advised to disregard this page limitation. In those rare instances where more than forty pages are required to state a party's position, counsel are free to move for leave to file a memorandum in excess of forty pages. Such motions are relatively rare. Memoranda which exceed the forty-page limit without leave of the court are subject to a motion to strike.
There is no correlation between the length of a memorandum and the likelihood of success of the motion to which it is related. There is often a correlation between the quality of memoranda and the result reached by the court. Courts seem receptive to memoranda which quickly and clearly address the pivotal issues and supply the controlling authority. Where there is a particular passage in an opinion which is especially apposite, counsel should not hesitate to quote it. Care should be taken, however, not to provide the court with a string of unnecessarily lengthy quotations of questionable relevance to the key issues before the court. An unduly long brief may sometimes sabotage the very motion it has been submitted to support as, for example, where an unnecessarily long memorandum is filed to persuade the court that a case is sufficiently clear to justify entry of summary judgment.
This portion of the rule also provides that "[t]he original of all motions or briefs shall be filed with the Clerk, and a copy shall be simultaneously delivered to the chambers of the presiding judge." The four seats of court in Connecticut are Hartford, New Haven, Bridgeport, and Waterbury. Therefore, the original of all papers must be filed with the Clerk at the seat of court where the presiding district judge sits. The initials of the district judge to whom a case is assigned appear in parentheses in the case caption...
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