Great Lawyers May Know the Judge, But the Federal Rules Still Control

Client Advisory

October 22, 2015

It is a familiar mantra to many litigators in federal court: before taking any action, check the Federal Rules of Civil Procedure, your District Court’s Local Rules and, finally, your Judge’s Individual Practices. You are not competently serving your client unless you do so. One can therefore be forgiven for taking the saying “good lawyers know the law; great lawyers know the judge” to mean that your chief goal is to conform to your Judge’s Individual Practices when they apply. Although generally good advice, the United States Court of Appeals for the Second Circuit recently weighed in on what happens when there is a tension between the Individual Practices and the Federal Rules. And the message is clear: the Federal Rules will control in the event of a conflict.

The first decision, Loreley Financing (Jersey) No. 3. Ltd. v. Wells Fargo Securities, LLC, concerned a fairly common pre-motion conference procedure where the District Court “required the parties to attend a pre-motion conference and to exchange, in preparation, letters of no more than three pages regarding Defendants' anticipated motion to dismiss for failure to state a claim.”[1]  The Second Circuit stated, approvingly, that such conferences are “not in themselves problematic” and, in fact, may be useful to “efficiently narrow and/or resolve open issues, obviating the need for litigants to incur the cost of more extensive filings.” But the District Court’s Individual Practices went further, providing that plaintiff’s failure to seek a pre-briefing amendment of the complaint would cut off a future right to amend the complaint under Fed. R. Civ. P. 15. 

The Second Circuit found this procedure improper because it “presented Plaintiffs with a Hobson's choice: agree to cure deficiencies not yet fully briefed and decided or forfeit the opportunity to replead.”[2] Indeed, the Second Circuit found that the condensed procedure failed to serve its underlying purpose because “[w]ithout the benefit of a ruling, many a plaintiff will not see the necessity of amendment or be in a position to weigh the practicality and possible means of curing specific deficiencies.”[3] The Second Circuit therefore found that a plaintiff does not forfeit the “protections afforded by [Fed. R. Civ. P.] 15” by deciding to “stand by the complaint” in the “critical absence of a definitive ruling[,]” as this would be “inconsistent with the course of litigation prescribed by the Federal Rules.”[4] 

Two months later, the Second Circuit weighed in on a far more serious consequence of complying with individual practices that conflict with the time limitations contained in the Federal Rules of Appellate Procedure. In Weitzner v Cynosure, Inc., the plaintiff forfeited his right to appeal a judgment when he complied with a Judge’s “bundling” rule in briefing his motion for reconsideration. The judge’s rule provided that the moving party should serve its motion papers on its adversary, but that the moving papers should not be filed until the motion was fully briefed.[5] Although the individual rule specifically prohibited appellant from “filing” his motion for reconsideration, evidence in the record showed that the court was notified of the service of the motion within the applicable time period, and met with the parties to set a briefing schedule.[6] When the reconsideration motion, which normally would have tolled the time for appeal, was exhausted plaintiff filed his appeal from the judgment.[7] 

On appeal plaintiff was in for a nasty surprise when defendant successfully argued that the appeal was untimely because, although the Second Circuit concluded that the time limit imposed by Fed. R. App. P. 4(a)(4)(A)(vi) was a non-jurisdictional “claim-processing” rule, and thus subject to equitable exceptions, it found that plaintiff did not overcome that burden because (among other things) he failed to request a deviation from the individual practices.[8] Nevertheless, although the Second Circuit did not find the result in this case troubling due to the plaintiff’s actions, it did find “deeply troubling” the “possibility that a party might forfeit a meritorious appeal because the district judge announced a personal rule prohibiting the filing of motions[.]”[9] This was not a new concern limited to this particular Judge’s rules, and the Second Circuit reiterated its exhortation to “district courts to modify such rules ‘so they do not lead the unwitting to believe they have preserved a right to appeal when in fact they have not.’”[10] This concern was not limited to the particular facts of the case, and the Second Circuit specifically noted that this extends to rules that “prohibit the filing of a motion, either until after a conference with the court, or until completion of briefing on the motion.”[11] 

As the Second Circuit noted in Weitzner, “[i]t is a virtual certainty that such rules will continue, on occasion, to cause litigants to forfeit important rights in the good-faith, but erroneous, belief that they cannot be held to have defaulted for failure to file a motion when they are commanded by the judge not to file the motion.”[12] The message being sent by the Second Circuit is clear: Individual Practices issued by District Judges serve an important purpose in managing busy dockets, but they don’t override the Federal Rules.

For more information concerning the matters discussed in this publication, please contact the author, Alexander G. Malyshev (212-238-8618,, or your regular CL&M attorney.


[1]< 797 F.3d 160, 190 (2d Cir. 2015). 

[2]< Wells Fargo, 797 F.3d at 190.

[3]< Id

[4]< Id

[5]< -- F.3d -- , 2015 WL 5438804, (2d Cir. 2015). The Individual Practice provided as follows: “No motion papers shall be filed until the motion has been fully briefed. The notice of motion and all supporting papers are to be served on the other parties along with a cover letter setting forth whom the movant represents and the papers being served. Only a copy of the cover letter shall be filed electronically, as a letter, not as a motion. On the day the motion is fully briefed, each party shall electronically file its moving papers.” fn. 1 (emphasis added).

[6]< Weitzner, 2015 WL 5438804, at * 2. 

[7]< Id

[8]< Weitzner, 2015 WL 5438804, at *5 (finding that plaintiff “had ample opportunity … to ask the district judge to be excused from delaying the filing until the briefing of the motion was complete, so that the judge's individual rule would not cause Plaintiffs to forfeit their right of appeal.”).

[9]< Id. at *6. 

[10]< Id. citing Camacho v City of Yonkers, New York, 236 F3d 112, 117 (2d Cir. 2000).

[11]< See Weitzner, 2015 WL 5438804, at *6. 

[12]< 2015 WL 5438804, at *6.  

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