The Myth of Uniformity in Federal Civil Procedure: Federal Civil Rule 83 and District Court Local Rulemaking Powers

• Publication year: 1985

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 3SPRING 1985

The Myth of Uniformity in Federal Civil Procedure: Federal Civil Rule 83 and District Court Local Rulemaking Powers

David M. Roberts(fn*)

Rule 83 of the Federal Rules of Civil Procedure gives district courts the authority to promulgate local practice rules "not inconsistent" with the federal rules themselves.(fn1) The stated objective of rule 83 is to preserve federal procedural consistency without proscribing some flexibility. On the one hand, the crafters of the rules saw superfluous rulemaking as contrary to the simplicity and uniformity achieved by the 1938 federal rules. On the other hand, they recognized that local rulemaking may be the best means to achieve some important efficiencies, accommodate local practice conditions and needs, and promote procedural innovation and reform. Although the need for local rules originally was viewed as quite limited,(fn2) the district courts have taken up their rulemaking power with an enthusiasm that would astound the framers of rule 83. In the past four-and-one-half decades, the district courts have promulgated nearly 3000 local rules.(fn3) The rules cover a wealth of areas, ranging from the trivial to the profound. In some districts, they are now nearly as important as the federal rules themselves.

At its last annual meeting, the Judicial Conference of the United States, acting on the recommendation of its Committee on Rules of Practice and Procedure,(fn4) forwarded a proposed amendment of federal rule 83 to the Supreme Court for adoption.(fn5) Noting criticism both of the local rulemaking process and of the validity of many local rules,(fn6) the committee proposed reform by requiring public notice and an opportunity for comment before district court judges adopt local rules. In addition, the rules could be abrogated by the Circuit Judicial Council.(fn7) The Administrative Office of the United States Courts, rather than the Supreme Court, would become the repository of copies of all local rules, which would be made available to the public.

Notice and comment rulemaking and circuit council review are important ameliorative reforms, but further re-thinking is necessary to preserve the benefits of local rulemaking without the costs of undermining the integrity and uniformity of federal civil procedure through a proliferation of local rules. The proposed changes do not address some of the most fundamental difficulties of rule 83. In particular, the proposed amendment does not jettison the rule's sole guideline for testing the validity of a local rule-that it must not be "inconsistent" with the Federal Rules of Civil Procedure. "Inconsistency" has not been a useful standard against which to measure local rules.(fn8)

This Article begins by demonstrating that the proliferation of local rules indeed poses a threat to the integrity and uniformity of federal procedure. The Article next examines the general policies relating to local rulemaking. Based on that analysis, the final section presents specific proposals for rethinking rule 83 to permit informed local control over truly local matters, while placing beyond the reach of district courts those matters that are national in scope.

Reviewing existing local rules in 1940, a committee of judges-the Knox Committee-concluded that most local rules were dispensable because they conflicted with the letter or the spirit of the federal rules, unnecessarily repeated or restated federal rules, covered pre-empted ground, or provided rigid procedural detail in areas deliberately unregulated.(fn9) A survey of local rules today supports the same conclusions and criticisms. Rather than uniformity, a high degree of local diversity has been introduced into almost every phase of federal pretrial procedure, including laying of venue, pleading, the use of motions directed to the pleadings, discovery, and even the substitution of alternative methods of dispute resolution for the litigation process itself. Many local rules arguably are consistent with the explicit language of the Federal Rules of Civil Procedure, but conflict with their underlying purpose or fundamental policies. Other local rules are unwise, confusing, or poorly drafted.

Rule 83 has not precluded district court adoption of local rules that, on their face and by their inescapable plain meaning, erect procedural standards contrary to the letter of the federal rules. The Northern District of Texas, for example, prohibits motions for a more definite statement "when the information sought can be obtained by discovery."(fn10) Federal rule 12(e), however, has no such limitation; it permits the motion whenever "a pleading . . . is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." The local rule requires a would-be movant to plead responsively before obtaining, through discovery, the very information necessary to frame his pleading.

At the other extreme from the Northern District of Texas' distaste for rule 12(e) motions is the apparent affection of its neighboring district in New Mexico for motions under rule 12(b). A local rule in that district requires a party who files an answer or other pleading that raises one of the seven defenses specified in rule 12(b) to request in writing that it be treated as a motion.(fn11) Except for jurisdictional motions, any defenses articulated in the pleadings, but not reduced to a motion, are to be treated as waived.(fn12) This "mandatory motion" and waiver provision conveniently ignores the language of federal rule 12(b) itself, which explicitly gives to the pleader an option whether to raise the defenses by motion or by pleading.

Other clear inconsistencies between local rules and federal rules and statutes are pervasive.(fn13) Many districts, for example, require that certain civil rights complaints be verified,(fn14) although federal rule 11 provides otherwise.(fn15) Some of these districts also provide that venue in prisoner condition-of-confine-ment cases may be laid only in the district in which the plaintiff resides,(fn16) while the federal venue statute affords a significantly broader choice.(fn17) Summary judgment has proven to be a particularly fertile ground for local variations. By stipulating that the failure of a party to file a brief in connection with a summary judgment motion "shall be deemed an admission" that the opponent's position on the motion is well taken,(fn18) at least one district has effectively displaced the uniform standard adopted by Congress and the Supreme Court in rule 56.(fn19) Other districts have shown a similar penchant for unnecessary paperwork in their requirement that all motions for summary judgment be accompanied by suggested findings of fact and conclusions of law.(fn20) Inoperative in these districts is federal rule 52(a), which states that findings of fact and conclusions of law "are unnecessary on decisions of motions under rules 12 or 56."

Distressing though such blatant inconsistencies are, other inconsistencies pose greater difficulties because they are more subtle and more difficult to expose. These arise when a local rule conflicts, not with the express language of a federal rule, but rather with the general policies or purposes underlying the federal rule-what the 1940 Knox Committee termed "conflict with the spirit of the federal rules."(fn21) At least three classes of these local rules can be identified.

One such class of local rules are those that mandate wholesale and unthinking application of ad hoc discretionary powers granted by the federal rules to deviate from general procedural norms. An instance of this process is found in districts that have provided by local rule for the routine bifurcation of liability and damages issues in, for example, personal injury cases.(fn22) Although federal rule 42(b) authorizes entry of such orders "to avoid prejudice" or when "conducive to expedition and economy," it does not envision bifurcation as a matter of course. A perceptive article by Judge Weinstein exposes the policy foundations supporting this presumption: the results of bifurcated and unitary trials are likely to differ.(fn23) Although undoubtedly motivated by a desire to advance local dockets, a procedural change with such substantive overtones is inappropriate for the local rulemaking process.(fn24)

A second class of local rules inconsistent with the policies underlying the federal rules are those prescribing areas intended to be regulated on a case-by-case basis as an exercise of judicial discretion. Many districts limit pretrial discovery, for example, by imposing a flat ceiling on the number of interrogatories that may be submitted by any party without obtaining leave of the court for good cause shown. The limit varies, depending on the district, from twenty to fifty.(fn25) Several of these districts have added restrictions on the number of requests for admission that may be filed without leave.(fn26) At least one district similarly limits the number of depositions that may be taken as a matter of course; moreover, the limit is not waivable by the parties.(fn27) The federal rules, however, curb abusive or unproductive overdis-covery by articulating substantive, not numerical, standards and by calling for judicial oversight, intervention, and sanctioning only on a case-by-case basis as actual circumstances warrant.(fn28)

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