Don't Get Bullied by Local Court Rules and Procedures

• Pages: 22-22
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Daniel P. Elms
• Subject Matter: Administrative & Public Law

Published i n Litigation News Volu me 50, Number 4 , Summer 2025. © 2 025 by the Americ an Bar Associa tion. Reprodu ced with permiss ion. All rights r eserved. Thi s information or any p ortion

thereof may not b e copied or dis seminated in a ny form or by any mea ns or stored in a n electroni c database or r etrieval syst em without the ex press writt en consent of th e American B ar Associa tion.

irtually all federal district court case management

and scheduling orders instruct counsel to, among

other things, consult the court’s local rules and pro-

cedures. And judges sometimes seem to take outsized

glee in calling out counsel’s failure to comply with local

rules in some manner or another. No one doubts the wisdom of

allowing district courts to create their own sets of rules to ensure

the most efcient and fair resolution of cases. But practitioners

should remember that a local rules regime cannot conict with

either the language or purpose of any of the Federal Rules of

Civil Procedure or other federal statute.

Local Court Rules and Procedures Abound

There are currently 94 federal district courts and over 650

district judges throughout the United States and its territories,

meaning there are hundreds of different sets of local rules and

judge-specic instructions that must be navigated. In my home

base of the Northern District of Texas, for example, there are

separate sets of local rules for civil matters, criminal matters,

and bankruptcy matters. And every one of the 25 judges, senior

judges, and magistrates has “Judge Specic Procedures” posted

to the court’s website.

The Federal Rules of Civil Procedure permit local court

rules. Rule 83 provides that “[a]fter giving public notice and an

opportunity for comment, a district court, acting by a majority

of its district judges, may adopt and amend rules governing its

practice.” It further instructs, however, than any such local rule

“must be consistent with—but not duplicate”—all federal stat-

utes and the Federal Rules of Civil Procedure.

The Rules Have to Play by th e Rules

Although federal appellate courts generally give deference to

local district court rules, they will invalidate a local rule that

genuinely conicts with the language or purpose of a Federal

Rule of Civil Procedure.

For example, two judges in the Middle District of Georgia

issued various “Policies and Procedures,” including some gov-

erning motions for summary judgment. Those procedures stated

that such motions are “frequently a waste of your time, oppos-

ing counsel’s time, our clerk’s time, and the court’s time—not

to mention the expense of each party and the taxpayers.” They

required that any party seeking to le a summary judgment

motion must rst submit a letter to the judge explaining why

it thought such a motion would be meritorious. They also

allowed the opposing party to submit a response explaining why

it believed a summary judgment motion would be unwarranted.

In Brown v. Crawford County, the U.S. Court of Appeals for

the Eleventh Circuit characterized these procedures as requiring

an “advance screening” of a party’s summary judgment motion.

It held that “[o]stensibly, the local ‘procedure’ purports to ‘to

facilitate’ and not ‘to prohibit’ the ling of summary judgment

motions. It appears, however, that the district judges utilizing

this ‘procedure’…effectively are precluding parties from ling

summary judgment motions[.]” The court invalidated the judges’

procedures because they violated litigants’ procedural and sub-

stantive rights under Rule 56.

In other cases, federal appellate courts will not void a sus-

pect local rule or procedure but instead will provide instruc-

tion on how it can be applied. In O2 Micro International, Ltd.

v. Monolithic Power Systems, the U.S. Court of Appeals for the

Ninth Circuit considered an extensive district court rules regime

governing amendments in patent infringement cases. Those local

rules provided hard deadlines for when a party could amend its

infringement contentions. And they required a court order “upon

a showing of good cause” for any amendment after that deadline.

The plaintiff challenged that local rule on the grounds that

it unduly limited discovery in patent cases. Notably, the appel-

late court observed that a local rule “need not be directly con-

tradictory to a federal rule to be invalid; a local rule that is

inconsistent with the purpose of a federal rule is also invalid.”

The appellate court did not invalidate the local rules governing

the identication of infringement claims but instead held that

amendments must be led with diligence and that diligence is

an aspect of good cause. Thus, so long as a party investigated

additional infringement claims with diligence, good cause for

amendment would exist and the hard deadlines in the local

rules would be moot.

The Ultimate Bodyguard

The risk of a local rules conict may be heightened when the

Federal Rules of Civil Procedure or a federal statute with proce-

dural aspects undergoes a change. For example, the U.S. Supreme

Court is currently considering changes, to become effective

December 1, 2025, to provide that Rule 16 reports will include

how to deal with the withholding and logging of privileged infor-

mation. There are almost certainly district court rules out there

that could potentially conict with this change, or with the parties’

agreement or other provisions on handling that process.

The lessons here are straightforward. First, know and fol-

low the local rules and procedures where your case is pend-

ing. Second, use those local rules when possible and ethically

appropriate to create an advantage for your client. Third, and

perhaps most importantly, do not let your opponent or a court

push you around with a local rule of procedure that under-

cuts or limits rights provided by the Federal Rules of Civil

Procedure or other applicable federal statute.

RESOURCES

28 U.S.C .A. § 2072.

Tampa Bay Water v. HDR Eng’g , Inc., 731 F.3d 1171 ( 11th Cir. 2013).

Don’t Get Bullied by Local Court Rules

and Procedures

By Daniel P. Elms, Litigation News Immediate-Past Editor-in-Chief

SUMMER 2 025 • VOL. 50 NO. 4

22 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE