Local Rules of the Western District of North Carolina

Filing 1

Adopted Local Rules effective 1/1/2012. (tmg)

RULES OF
PRACTICE AND PROCEDURE
OF THE
UNITED STATES
DISTRICT COURT
FOR THE WESTERN DISTRICT
OF NORTH CAROLINA

Local Rules of Civil Procedure
&
Local Rules of Criminal Procedure
______________
Revised and Effective January 1, 2012

TABLE OF CONTENTS
LOCAL RULES OF PRACTICE AND PROCEDURE
I.

Local Rules of Civil Procedure
LCvR

3.1

LCvR
LCvR

4.1
4.2

LCvR

5.2.1

LCvR
LCvR
LCvR

5.3
6.1
7.1

LCvR

16.1

LCvR

16.2

LCvR

16.3

LCvR
LCvR

26.1
26.2

LCvR

45.1

LCvR

47.1

LCvR
LCvR
LCvR

54.1
67.1
72.1

LCvR

73.1

LCvR

77.1

LCvR

79.1

Filing Fee, Bond, Security, Prohibited Sureties,
Payment of Fees Electronically and Refunds
Service of Summons and Complaint
Publication of Notice by the United States in Civil
Forfeiture Actions
Electronic Filing Authorized, Filing of Papers, Filing
of Redacted Pleadings, and Presenting Judgments,
Orders and Communications to Judges
Service by Electronic Means
Sealed Filings and Public Access
Motions in Civil Cases, Brief Requirements, Exhibit
Numbering, Page Limits and Proposed Orders
Pretrial Conferences, Initial Attorney Conference,
Joint Stipulation of Consent to Magistrate Judge
Jurisdiction,
Initial Pretrial Conference
Mediation or Alternative Dispute Resolution
(“ADR”)
Rules Applicable to Mediation or Alternative Dispute
Resolution(“ADR”)
Commencement of Discovery
Discovery Material Not To Be Filed Unless Ordered
or Needed
Production of Subpoenaed Material By Certain NonParties, Custodians of Records
Contact With Jurors Before Trial and During Voir
Dire
Taxation Of Costs Other Than Attorneys’ Fees
Registry Funds
Authority of Magistrate Judges In Civil Matters,
Standing Orders of Reference
Trial By Consent Before A United States Magistrate
Judge, Initial Assignment of Cases, Duty of Parties
and Failure to File the Joint Stipulation
Orders and Judgments Which the Clerk of Court May
Grant
Custody and Disposition of Evidence, Models,

LCvR
LCvR
II.

Exhibits and Depositions
83.1 Attorney Admission and Eligibility, Establishment of
an ECF Account Prior to Admission, Definition of
Types of Admissions
83.2 No Photographing, Televising, or Broadcasting of
Court

Local Rules of Criminal Procedure
LCrR

5.2

LCrR
LCrR
LCrR
LCrR
LCrR
LCrR
LCrR
LCrR

5.3
11.1
17.2
17.3
20.1
23.1
32.3
32.4

LCrR
LCrR

44.1
47.1

LCrR
LCrR
LCrR

55.1
57.1
58.1

LCrR

58.2

Appendix A
Appendix B
Appendix C

Electronic Filing of Papers, Filing of Redacted
Pleadings and Presenting Judgments, Orders, and
Other Communications to Judges.
Service of Documents by Electronic Means
Electronic Recording of Rule 11 Inquiry
Subpoenas in Criminal Cases
Applications for Writs in Criminal Cases
Consolidation and Transfer of Cases
Fair Trial and Free Press in Criminal Cases
Disclosure of Presentence or Probation Records
Assignment of Authority to Magistrate Judges in
Criminal Forfeiture Cases and Publication of Notice
in Forfeiture Cases
Admission and Appointment of Counsel
Motions Practice in Criminal Cases, Requirement of
Briefs, Responses Required by the Government and
Proposed Orders
Sealed Records and Public Access
Authority of Magistrate Judges in Criminal Matters
Forfeiture of Collateral Security in Lieu of
Appearance
Procedures Applicable to Collateral Forfeitures, Petty
Offenses, and Class A Misdemeanors
Form for Certification and Report of Initial
Attorneys’ Conference
Joint Stipulation of Magistrate Judge Consent Form
Entities With a Direct Financial Interest in Litigation
Form

LOCAL RULES GOVERNING CIVIL CASES
LCvR 3.1
(A)

FILING FEE, BOND, SECURITY AND PROHIBITED
SURETIES.

Filing Fee and Cost Bond. In every civil action commenced in or

removed to this Court, there shall be filed at the time of commencing or removal
a filing fee in such amount as determined according to law. In a civil case
commenced in this Court, no bond, or cash deposit in lieu of such bond, as
security for costs shall be required except on motion and for good cause shown.
Schedule of fees
(B)

Security. In both civil and criminal actions, bonds shall be allowed and

taken with security, or one or more securities, as provided by the federal
statutes, the Federal Rules of Civil Procedure, and the Federal Rules of Criminal
Procedure. The judges of this district may, for good cause, enter orders
restricting any bonding company or surety company from being accepted as
surety upon any bond in any case or matter in this district. Accepted Sureties
(C)

Prohibited Sureties.

Counsel of record, administrative officers or

employees of this Court, or the United States Marshal and his deputies or
assistants, shall not act as surety in any suit, action, or proceeding pending in
this Court, except by leave of Court.
(D)

Payment of Filing and Other Fees Electronically. Where the Federal

Rules of Civil Procedure or the Local Rules of this Court require the payment
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of filing, admission, special admission, or other fees, such may be accomplished
through secure electronic means as may be established by the Clerk of Court.
(E)

Fee Refunds. Fees paid to the Clerk of Court will only be refunded where

the payment was made in error or upon Court Order.
(1)

Refunds by the Clerk of Court for Erroneous Payments. When

fees are accepted by the Clerk of Court in error, such may be refunded in the
discretion of the Clerk of Court. Examples of payments in error are duplicate
payments, payments to the wrong district, overpayments, and payments made
in error by attorneys through the Electronic Filing Payment System. To receive
a refund from the Clerk of Court based on an erroneous payment, the payor must
submit a written request to the Clerk of Court indicating the amount of payment,
the case in which the payment was made, and the nature of the error. Once it
has been determined through reconciliation that payment was made in error, the
payment may be refunded at the discretion the Clerk of Court or his designee
without a Court Order. Refunds of electronic payments will be credited
electronically to the payor’s credit card. No cash refunds will be made.
(2)

Refunds by Court Order. Requests for refunds of payments which

were not made in error by the payor will be referred to the presiding judge.
Such refunds will only be made at the direction of the Court.
(3)

Refunds Where Payee Has an Outstanding Balance. The Clerk of
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Court will not refund payments made in error if it is determined that the payor
owes any other debt to the Court.
(F)

Clerk of Court’s Responsibilities as to Payments and Refunds.
(1)

Electronic Payments. As to electronic payments, in conducting

Electronic Case Filing training, the Clerk of Court will train attorneys on the
Electronic Payment System, including Court regulations governing the
Electronic Payment System.
(2)

Conventional Payments. As to conventional payments that are

received through the mail or by the Clerk of Court, every effort will be made by
the Clerk of Court to confirm that each payment is proper before it is deposited
and a receipt is issued. If a conventional payment is deposited and receipted in
error, it will be refunded to the payor by a United States Treasury check, which
will issue at the discretion of the Clerk of Court as explained in Subsection (E)
of this Local Rule.
LCvR 4.1

SERVICE OF THE SUMMONS AND COMPLAINT.

Service of the summons and complaint by electronic means is not
permitted for purposes of obtaining personal jurisdiction.

Administrative

Procedures, Section II, A2(d) and A3(d)
LCvR 4.2

PUBLICATION OF NOTICE BY THE UNITED
STATES IN CIVIL FORFEITURE ACTIONS.

Unless otherwise required by statute, rule, or specific Order of this Court,
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in any civil judicial forfeiture case filed in this district, the government may
satisfy its requirement of publication of notice by publishing once in a
newspaper of general circulation. Publication in such manner shall be deemed
to satisfy the publication requirements of 21 U.S.C. § 853(n)(1) and Rules C(4)
and G of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions.
LCvR 5.2.1

(A)

FILING
OF PAPERS, PRESENTING
JUDGMENTS,
ORDERS,
AND
COMMUNICATIONS TO JUDGE.

Electronic Filing Authorized. The Court will accept for filing documents

submitted, signed or verified by electronic means that comply with the Federal
Rules of Civil Procedure, these Local Rules, and the “Administrative Procedures
Governing

Filing

and

Service

by

Electronic

Means”

(hereinafter

“Administrative Procedures”) adopted by this Court. Administrative Procedures
(B)

Mandatory Electronic Filing. All documents submitted for filing in this

district shall be filed electronically unless expressly exempted from electronic
filing either by the Administrative Procedures or by the assigned judge.
Administrative Procedures
(C)

Filing of Papers. All pleadings, motions, memoranda, orders, and

judgments shall be filed electronically with the Court. In circumstances where
conventional filing is permitted by the Administrative Procedures, all papers of
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every sort may be filed in Asheville, Charlotte, or Statesville, regardless of the
division in which the case may be pending as may suit the convenience of
counsel.
(D)

Motion for Consolidation of Cases. A motion for consolidation shall be

filed in only one of the related cases with a notice of the motion being filed in
the proposed member case(s).

Absent an Order to the contrary, after

consolidation, all further proceedings will be docketed and filed in the
designated lead case only.
(E)

Presenting Judgments, Orders, and Other Communications to Judges.

As provided by the Administrative Procedures, parties may submit proposed
orders, memoranda of decision, judgments, bills of costs, and other proposed
documents for consideration and entry by the Court or the Clerk of Court
electronically. Such proposed documents must be submitted through cyberclerk
and may also be submitted as attachments to a motion, brief, or notice that
relates to the proposed relief sought. In any event, such proposed documents
must be served on all parties.
LCvR 5.3
(A)

SERVICE BY ELECTRONIC MEANS.

Service By Electronic Means for Registered Users After Service of

Process. Other than the document upon which an action is commenced,
registered users may serve all papers through the Court’s Electronic Case Filing
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(“ECF”) system. Issuance of the “Notice of Electronic Filing” (“NEF”), which
is automatically generated by the Court’s electronic filing system, constitutes
proof of service of the filed document upon all registered users unless the filing
party learns that such attempted service was not successful. Administrative
Procedures, Section II, B2 While the NEF constitutes proof of service, it is not
a substitute for the Certificate of Service, which is still required as discussed
below.
(B)

Conventional Service of and by Parties and Attorneys Exempt from

Electronic Case Filing. Parties and attorneys who are not registered users must
be served conventionally in accordance with the Federal Rules of Civil
Procedure, the Local Rules, and this district’s Administrative Procedures.
Administrative Procedures, Section II, B4
(C)

Certificate of Service Required. A certificate of service must be included

with all documents, including those filed electronically, indicating thereon that
service was or will be accomplished through the Notice of Electronic Filing for
parties and counsel who are registered users and indicating how service was or
will be accomplished as to non-registered users. Administrative Procedures
LCvR 6.1
(A)

SEALED FILINGS AND PUBLIC ACCESS.

Scope of Rule. This rule shall govern any request by a party to seal, or

otherwise restrict public access to, any materials filed with the Court or utilized
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in connection with judicial decision-making. As used in this rule, “materials”
shall include pleadings as well as documents of any nature and in any medium.
(B)

Filing Under Seal. No materials may be filed under seal except by Order

of the Court, pursuant to a statute, or in accordance with a previously entered
Rule 26(e) Protective Order.
(C)

Motion to Seal or Otherwise Restrict Public Access.

A request by a party

to file materials under seal shall be made by formal motion, separate and apart
from the motion or other pleading sought to be sealed, pursuant to LCvR 7.1.
Such motion shall be filed electronically under the designation “Motion to
Seal.” The motion or supporting brief shall set forth:
(1)

a non-confidential description of the material sought to be sealed;

(2)

a statement as to why sealing is necessary and why there are no

alternatives to filing under seal;
(3)

unless permanent sealing is sought, a statement as to the period of

time the party seeks to have the material maintained under seal and as to how
the matter is to be handled upon unsealing; and
(4)
(D)

supporting statutes, case law or other authority.

Filing of an Unredacted Copy Allowed. If necessary, information

deemed confidential by a party may be redacted from the filed motion or brief
and an unredacted version submitted under seal for in camera review. Materials
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deemed confidential may be submitted under seal for in camera review via
cyberclerk.
(E)

Public Notice. No motion to seal or otherwise restrict public access shall

be determined without reasonable public notice. Notice shall be deemed
reasonable where a motion is filed in accordance with the provisions of LCvR
6.1(C). Other parties, interveners, and non-parties may file objections and briefs
in opposition or support of the motion within the time provided by LCvR 7.1
and may move to intervene under Fed. R. Civ. P. 24.
(F)

Orders Sealing Documents. Orders sealing or otherwise restricting

access shall reflect consideration of the factors set forth in LCvR 6.1(C). In the
discretion of the Court, such orders may be filed electronically or conventionally
and may be redacted.
(G) Filings Subsequent to Entry of an Order Sealing Documents. After an
Order permitting the filing under seal has been entered, any materials filed
pursuant to that Order shall be filed electronically with a non-confidential
description of the materials filed. Administrative Procedures
(H) Motions to Unseal. Nothing in this Local Rule shall limit the right of a
party, intervenor, or non-party to file a motion to unseal material at any time.
Such a motion to unseal shall include a statement of reasons why the material
should be unsealed and any change in circumstances that would warrant
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unsealing.
(1)

Case Closing. Unless otherwise ordered by a Court, any case file

or documents under Court seal that have not previously been unsealed by the
Court shall be unsealed at the time of final disposition of the case.
(2)

Access to Sealed Documents. Unless otherwise ordered by the

Court, access to documents and cases under Court seal shall be provided by the
Clerk of Court only pursuant to Court Order. Unless otherwise ordered by the
Court, the Clerk of Court shall make no copies of sealed cases files or
documents.
(I)

Impact on Designation of Confidential Materials. Nothing in this Local

Rule shall limit the ability of parties, by agreement, to restrict access to
discovery or other materials not filed with the Court or to submit motions
pursuant to Fed. R. Civ. P. for a Protective Order governing such materials.

LCvR 7.1
(A)

MOTIONS IN CIVIL ACTIONS.

Motions in Writing. Unless made during a hearing or trial, all motions

must be put in writing and filed as provided by LCvR 5.2(C) and shall state with
particularity the grounds of the motions and shall set forth the relief or Order
sought. Motions will ordinarily be ruled upon without oral argument, unless
otherwise ordered by the Court.
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(B)

Requirement of Consultation. Any motions other than for dismissal,

summary judgment, or default judgment shall show that counsel have conferred
or attempted to confer and have attempted in good faith to resolve areas of
disagreement and set forth which issues remain unresolved. The requirement
of consultation also applies to motions for extension of time and to motions for
continuance of a trial or other proceeding. Consultation is not required where
the moving party is represented and the non-moving party is unrepresented, or
where the motion is for an extension of time to file a responsive pleading to a
complaint, counterclaim, crossclaim, or any other initial petition for relief.
(C)

Requirement of Briefs. Briefs shall be filed contemporaneously with the

motion, except no brief is required in support of timely motions for extension
of time, continuances, admission pro hac vice, or early discovery. Exhibits in
support of a brief shall be attached as appendices as specified in the
Administrative Procedures.

Factual contentions shall be supported as

specifically as possible by citation to exhibit number and page.
(1)

Motions Contained in Initial Responsive Pleadings. Motions to

dismiss contained in answers to complaints, replies to counterclaims, or answers
to crossclaims are considered by the Court to be preserved. A party wishing to
have decided any preserved motion shall file a separate motion and supporting
brief.
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(2)

Motions Not to Be Included in Responsive Briefs. Motions shall

not be included in responsive briefs. Each motion should be set forth as a
separately filed pleading.
(3)

Exhibits Shall be Numbered and Filed as a Separate Attachment.

All exhibits as well as all pages within an exhibit shall be numbered prior to
filing. Exhibits previously filed shall not be re-filed by any party and may be
incorporated into any other pleading by specific reference to the docket entry,
exhibit number, and page. Each exhibit shall be filed as a separate attachment
to the pleading it supports. [HYPERLINK to Admin. Order, Page 14, Part 4(a)]
(D)

Page Limits, Fonts, and Spacing. Page limits, font sizes, spacing, and

other formatting requirements are governed by the Standing Civil Order of the
judge to whom the case is assigned. Standing Civil Orders Absent such
requirements in the Standing Civil Order of the judge to whom the case is
assigned, the page limit for any brief is 25 pages, the font size is a minimum of
12 point, lines are double spaced, margins are one inch, and each page is
numbered.
(E)

Time Frames for the Filing of Responses to Motions and for Replies.
Responses to motions, if any, shall be filed within fourteen (14) days of

the date on which the motion is served, as evidenced by the certificate of service
attached to said motion. A reply to the response to a motion, if any, shall be
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filed within seven (7) days of the date on which the response is served, as
evidenced by the certificate of service attached to said response. The filing of
a reply brief is not mandatory. In any event, a reply brief should be limited to
a discussion of matters newly raised in the response. If the party making the
motion does not wish to file a reply brief, it must so inform the Court and
opposing counsel promptly in an electronically filed notice.
In an action seeking judicial review of a final administrative decision, the
court may enter a Scheduling Order providing for the filing of cross motions for
summary judgment or other relief with no responsive or reply briefs allowed.
Where such a Scheduling Order is entered, the briefing requirements of Local
Civil Rule 7.1(E) are preempted by the requirements of the Scheduling Order.
Examples of such actions include, but are not limited to, Social Security
disability and Supplemental Security Insurance benefit actions and ERISA
claims.
(F)

Seeking a Continuance. Any motion seeking continuance of a hearing

or trial shall be filed immediately upon counsel learning of the need for same.
(G) Proposed Orders. Proposed orders must be submitted through cyberclerk
and may also be submitted as attachments to a motion, brief, or notice that
relates to the proposed relief sought. In any event, such proposed document
must be served on all parties.
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(H) Electronic Format for Briefs, Motions, and Pleadings. Briefs, motions,
and pleadings shall be filed in a PDF readable format, rather than an
electronically copied format, whenever possible. Filing pleadings and briefs in
a PDF readable format allows the court and the parties to fully utilize electronic
filings.
(I)

Notice to Official Court Reporter for Certain Proceedings. Where a

party knows in advance that a transcript will be required of a hearing before a
United States Magistrate Judge or other judicial officer (before whom
proceedings are digitally recorded), the party shall endeavor to notify the
Official Court Reporter serving such judicial officer of the need in advance of
the hearing.
LCvR 16.1
(A)

PRETRIAL CONFERENCES

Initial Attorney’s Conference. As soon as is practicable, and in any event

not later than fourteen (14) days from joinder of the issues (as defined in Section
(D) below), the parties or their counsel shall confer as provided by Fed. R. Civ.
P. 26(f), and conduct an “Initial Attorney’s Conference” (“IAC”). In addition,
counsel shall also discuss at such conference consent to magistrate judge
jurisdiction. See LCvR 73.1(C). Where the parties believe that the filing of an
amended complaint or other amended initial pleading justifies changes to the
Scheduling Order, the parties shall conduct a supplemental attorney’s
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conference and file an appropriate motion with the court.
(B)

Deadline for Filing the Certification of Initial Attorney’s Conference.

Within seven (7) days of the IAC, the parties shall complete and file the
Certification of Initial Attorney’s Conference (“CIAC”), which shall include a
proposed discovery plan. The CIAC shall serve as a guideline for the Court in
issuing a Scheduling Order as provided by Fed. R. Civ. P. 16(b). If the parties
choose to stipulate out of, or object to, the mandatory initial disclosure
procedure required by Fed. R. Civ. P. 26(a)(1), they must so indicate in the
discovery plan.
(C)

Filing Of Joint Stipulation Of Consent To Magistrate Jurisdiction.

Where all parties agree to magistrate judge jurisdiction, the Joint Stipulation of
Consent to Exercise of Jurisdiction by a United States Magistrate Judge shall be
filed simultaneously with either the CIAC as provided in Local Civil Rule
73.1(C), or within seven (7) days of the Court’s ruling on a motion to stay.
(D)

Joinder of the Issues. For the limited purpose of these Local Civil Rules,

“joinder of the issues” occurs when the final answer to a complaint, third-party
complaint, or crossclaim or the final reply to counterclaim has been filed, or the
time for doing so has expired. Rule 12 motions contained in an Answer, but not
supported by a brief, act as placeholders and do not prevent joinder of the issues.
Where Rule 12 motions are filed and briefed, issues will not join until such
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motions are resolved by the court, unless otherwise ordered by the Court.
(E)

Joinder of the Issues and Outstanding Discovery in Removed or

Transferred Cases.
(1)

Procedure Where Issues Already Joined.

In a removed or

transferred case in which issues joined prior to removal or transfer, the parties
shall conduct an Initial Attorneys’ Conference (“IAC”) in this district and file
the Certificate of Initial Attorneys’ Conference (“CIAC”) within the time
provided by Subsection (A), supra. The time for doing so shall be measured
from the date the removed or transferred action is filed in this district.
(2)

Procedure Where Issues Not Previously Joined. Where issues did

not join prior to removal or transfer, the provisions of Subsection (D), supra,
apply. Outstanding discovery requests and any previously entered Scheduling
Orders are null and void, with discovery not commencing or recommencing
until such time as a new Scheduling Order is entered. The admissibility and use
of evidentiary material produced prior to transfer or removal is not, however,
diminished by this provision.
(F)

Early Discovery. While the parties may engage in consensual discovery

at any time, Court enforceable discovery does not commence until issues have
joined and a Scheduling Order is entered. If a party believes that early court
sanctioned discovery is warranted, such party may file a motion for leave to take
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early discovery therein showing good cause. No supporting memorandum of law
is required for such a motion.
(G) Initial Pretrial Conference (“IPC”). An Initial Pretrial Conference
(“IPC”) may be requested by the parties in the proposed discovery plan. Unless
otherwise directed by a district judge, magistrate judges will preside over the
IPC in all cases. Counsel for all parties must appear in person. Permission to
appear by telephone will be determined by the judicial officer conducting the
conference. Not later than 14 days after receipt of the proposed discovery plan,
the court will set the date for the IPC unless the judicial officer conducting the
conference deems otherwise appropriate.
Unless otherwise directed by a district judge, magistrate judges will issue
the Scheduling Order in all cases and manage the pretrial activity of the case
through direct involvement in the establishment, supervision and enforcement
of the Scheduling Order and other applicable rules of procedure. Courtsanctioned discovery does not commence until issuance of the Scheduling
Order.
Matters which may be considered during the IPC may include, but are not
limited to the following: consent to magistrate judge jurisdiction; discovery
guidelines and deadlines; Rule 26 disclosures; responses to interrogatories and
requests for admission; maintenance of discovery material; video depositions;
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protective orders; motions deadlines; motions hearings; response to motions;
trial subpoenas; counsel’s duties prior to trial; trial date; proposed jury
instructions; exhibits; mediation; and production of electronically stored
information (“ESI”).
LCvR 16.2
(A)

M EDIATION OR ALTERNATIVE DISPUTE
RESOLUTION (“ADR”).

Mandatory Mediated Settlement Conference. All parties to civil actions

are required to attend a Mediated Settlement Conference, unless otherwise
ordered by the Court. A mediated settlement conference is a pretrial, Courtordered (by Local Rule) conference of the parties to a civil action and their
representatives conducted by a mediator. The procedure for the conference shall
be as provided in LCvR 16.3. A non-exclusive list of Court-approved mediators
is maintained by the Court.
(B)

Cases Not Suitable For ADR. These rules for mandatory ADR shall not

apply to habeas corpus proceedings or other actions for extraordinary writs,
appeals from rulings of administrative agencies, forfeitures of seized property,
and bankruptcy appeals. The judicial officer may determine, either sua sponte
or on application of any party, that any other case is not suitable for ADR, in
which case no ADR procedure will be ordered.
LCvR 16.3

RULES APPLICABLE TO MEDIATION OR
ALTERNATIVE DISPUTE RESOLUTION (ADR).
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(A)

Time for Proceeding. The Court favors the use of alternative dispute

resolution (ADR), ordinarily in the form of a mediated settlement conference,
for the efficient and orderly resolution of civil cases. Accordingly, in the CIAC,
the parties shall indicate their opinion(s) regarding the usefulness of ADR, the
preferred method of ADR, and the most advantageous time at which to
commence ADR. If the parties fail to submit, or are unable to agree on, a
proposed method of ADR, a mediated settlement conference shall be selected
as the default. The presiding magistrate judge or other judicial officer will in
the Scheduling Order, or an Order for Alternative Dispute Resolution issued
shortly thereafter, select the ADR method and order it to commence on a
schedule after due consideration of the applicable responses given by counsel
in the CIAC.
(B)

Rules for Proceeding. Upon entry of an Order for Alternative Dispute

Resolution, the case shall proceed as follows:
(1)

Rules Governing Mediation. If a mediated settlement conference

is ordered, the conduct of the ADR proceeding shall be governed by the Rules
Governing Mediated Settlement Conferences in Superior Court Civil Actions
promulgated by the North Carolina Supreme Court pursuant to N. C. Gen. Stat.
§7A-38 (the “Mediation Rules”), and by the supplemental rules set forth herein.
(a)

Interpretation of State Court Terms.
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Wherever the

Mediation Rules refer to “Senior Resident Superior Court Judge” and
“Administrative Office of the Court,” it shall mean “judicial officer” and “Clerk
of Court” of the United States District Court, respectively.
(b)

Appropriate Facilities. Rule 3(a) of the Mediation Rules is

modified to permit the mediated settlement conference to be held in an
appropriate facility anywhere as may be agreed to by the parties or allowed by
the Court.
(2)

Rules Governing Alternative ADR Proceeding. If an Alternative

ADR Procedure is ordered, the ADR proceeding shall be governed by these
Rules and by such other procedural rules submitted by the parties and approved
by the judicial officer. The rules submitted by the parties shall include, in
addition to rules regarding the actual proceeding, provisions setting a deadline
for completion of the proceeding; the location for the proceeding; preproceeding submissions; and the method for selection and compensation of a
mediator, evaluator or other “neutral” to preside over the proceeding.
(3)

Impact on Federal Law.

Nothing in this alternative dispute

resolution program shall be deemed to override the Federal Arbitration Act or
any other provision of the United States Code.
(4)

Exceptions to Rules. The judicial officer may, either sua sponte or

on motion of any party, permit exceptions or deviations from these rules.
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(C)

Supplemental Rules for Mediated Settlement Conferences. In addition

to the Mediation Rules, the following rules shall also apply to mediated
settlement conferences in the Western District:
(1)

No Record Made.

There shall be no record made of any

proceedings under these rules.
(2)

Telephonic Attendance. All mediated settlement conferences shall

be conducted in person, unless leave is otherwise granted by the mediator.
(3)

Mediator’s Report of Outcome. The mediator’s report required by

the Mediation Rules shall be issued within seven (7) days of the conclusion of
the Mediated Settlement Conference. The mediator may submit his or her report
on a report form provided by the Clerk of Court, or by using his or her own
letterhead or individually developed mediation report form. Such report may
be filed by the mediator electronically or by conventional means unless
otherwise directed by the court.
(D)

Judicial Settlement Conference.
(1)

Mandatory Consideration. The judicial officer to whom a case is

assigned may, at any time, order the parties to participate in a settlement
conference to be convened by the Court. Any party may also request a judicial
settlement conference.
(2)

Mandatory Attendance by Representatives with Full Authority to
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Effect Settlement. A person with full authority to settle all pending claims must
be present at the settlement conference and, for purposes of this rule, the “person
with full authority to settle” shall not be the attorney. Such rule is not applicable
to government attorneys and federal agency parties. Government attorneys are
required to bring as much binding authority to settle as is feasible under the
circumstances.
(3)

Presiding Judicial Officer. Any judicial officer of the district other

than the judicial officer to whom the case is assigned for disposition may preside
over a judicial settlement conference convened by the Court.
LCvR 26.1

COMMENCEMENT OF DISCOVERY.

Official Court-ordered and enforceable discovery does not commence
until issuance of the Scheduling Order. While parties are encouraged to engage
in consensual discovery before such period and up to trial, the Court will only
enforce discovery that is conducted within the context of the Scheduling Order
or where leave is granted in accordance with LCvR 16.1(f).
LCvR 26.2

DISCOVERY MATERIAL NOT TO BE FILED
UNLESS ORDERED OR NEEDED.

The parties shall not file any initial disclosures, designations of expert
witnesses and their reports, discovery requests or responses thereto, deposition
transcripts, or other discovery material unless: (1) directed to do so by the Court;
(2) such materials are necessary for use in an in-court proceeding; or (3) such
-24-

materials are filed in support of, or in opposition to, a motion or petition.
Materials filed in support of, or in opposition to, a motion or petition shall
be appropriately labeled as an “Appendix” or “Attachment” thereto and shall be
limited to those portions of the material directly necessary to support the motion
or petition. All such papers must be served on other counsel or parties entitled
to service of papers filed with the Clerk of Court as provided in the
Administrative Procedures. The party taking a deposition or obtaining any
material through discovery is responsible for its preservation and delivery to the
Court if needed or so ordered.
LCvR 45.1.
(A)

PRODUCTION OF SUBPOENAED MATERIAL BY
CERTAIN NON-PARTIES.

Custodians of Public Records. Where a subpoena commands any

custodian of public records to appear for the sole purpose of producing certain
records in their custody, the custodian subpoenaed may, in lieu of a personal
appearance, tender to the Court, by registered mail or personal delivery, certified
copies of the records requested, on or before the date and time specified in the
subpoena, together with a copy of the subpoena and an affidavit by the
custodian as to the authentication of the record tendered or, if no such records
are in their custody, an affidavit to that effect.
(B)

Custodians of Medical Records. Where a subpoena commands the

custodian of medical records to appear for the sole purpose of producing certain
-25-

records in their custody, the custodian subpoenaed may, in lieu of a personal
appearance, tender to the Clerk of Court, by certified mail or by personal
delivery, certified copies of the records requested, on or before the time
specified in the subpoena, together with a copy of the subpoena and an affidavit
by the custodian testifying to the identity and authenticity of the records, that
they are true and correct copies, and as appropriate, that the records were made
and kept in the regular course of business at or near the time of the acts,
conditions, or events recorded, and that they were made by persons having
knowledge of the information set forth; or if no such records are in their
custody, an affidavit to that effect. When the copies of medical records are
personally delivered, a receipt shall be obtained from the person receiving the
records.
(C)

Admissibility and Format. Any original or certified copy of any public

or medical records, or affidavit, delivered according to the provisions of this rule
shall not be held inadmissible in any action or proceeding on the grounds that
it lacks certification, identification, or authentication, and it shall be received as
evidence if otherwise admissible. Any data that is maintained in electronic
format should, if readily retrievable, be submitted in electronic format,
preferably on a compact disc. Certification of copies of such electronically
provided records may be accomplished by appropriate affidavit in the same
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manner as described in the preceding paragraphs.
(D)

Protection of Privacy. The copies of public or medical records so

tendered shall not be open to inspection or copying by any persons, except the
parties and their attorneys, unless and until ordered published by the judge at the
time of the hearing or trial. Nothing contained herein shall be construed to
waive the physician-patient privilege or to require any privileged
communications under law to be disclosed.
Unless the underlying subpoena for medical records is accompanied by
a written consent of the patient, the materials submitted to the Court in response
thereto shall not be disclosed to anyone, including the parties and their
attorneys, except upon judicial finding that disclosure is necessary to the proper
administration of justice.
(E)

Duties of the Clerk of Court. The Clerk of Court will sign or mark as

“Received” a receipt if such is tendered by the subpoenaed party. The Clerk of
Court has no duty to generate a receipt or mail a receipt back to the responding
party unless a receipt and self addressed stamped envelope is provided. The
Clerk of Court will not file, scan, or otherwise make the proffer part of the
official record unless instructed to do so by a judge of the Court. Upon
presentation to the Court, the Clerk of Court shall stamp the first page or cover
sheet of any such material as “Received”, and place such materials in an official
-27-

Court envelope or other container indicating that the materials are sealed. The
Clerk of Court shall bring such filing to the Court’s attention at an appropriate
time in the proceedings.
Unless such materials are made part of the record, they shall be destroyed
by the Clerk of Court within a reasonable time after the case is closed and
appeals are exhausted.

Originals may be returned to the custodian if

arrangements are made with the Clerk of Court at the time of tender.
LCvR 47.1
(A)

CONTACT WITH JURORS BEFORE TRIAL AND
DURING VOIR DIRE.

Juror Information.
(1)

Disclosure to Case Participants. When jurors for a term of Court

are drawn, counsel of record shall be allowed to have a copy of the list of
potential jurors. (The list of potential jurors shall not include the street address
of any juror). If questionnaires are used, the responses to such questionnaires
will also be made available to counsel. Depending on the needs of the case,
such disclosure shall be made at a time deemed appropriate by the Court. Pro
se parties may apply to the Court for similar pretrial access.
(2)

Disclosure of Names of Jurors. Names of prospective and sitting

petit jurors shall not be disclosed to members of the Bar, media, or public
outside open court, except upon Order of the Court. A request for disclosure
shall be made to the presiding judge.
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(B)

Pretrial Contact With Potential Jurors Prohibited. No attorney or party

to an action, or persons acting on their behalf, shall contact any potential juror,
either directly or through any member of his or her immediate family, in an
effort to secure information concerning his or her background.
(C)

Voir Dire. Ordinarily, in the interest of time, the Court will conduct the

examination of prospective jurors, but may permit counsel to do so. If the Court
conducts the examination, counsel or pro se parties may suggest additional
questions.
(D)

Contact With Jurors During or After Trial. No attorney or party to an

action, or persons acting on their behalf, shall personally or through their
designees, directly or indirectly, interview, examine or question or communicate
in any way with any juror, relative, friend, or associate thereof during the
pendency of the trial, or with respect to the deliberations or verdict of the jury
in any action, except on leave of the presiding judge upon good cause shown.
Incidental contacts with jurors during the course of a trial, such as the exchange
of pleasantries, are likely due to close confines of the courthouse and do not
violate this rule. Contacts of substance, however, should be promptly reported
by the attorney or pro se party to the presiding judge outside the hearing of the
jury.
LCvR 54.1

TAXATION OF COSTS OTHER THAN ATTORNEYS’
FEES.
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(A)

Filing Bill of Costs. A prevailing party may request the Clerk of Court

to tax allowable costs, other than attorneys’ fees, in a civil action as a part of a
judgment or decree by electronically filing a bill of costs on a form available
from the Clerk of Court, within thirty (30) days after:
(1)

the expiration of time allowed for appeal of a final judgment or

decree; or
(2)

receipt by the Clerk of Court of the mandate or other Order

terminating the action on appeal.
(B)

Electronic Filing of the Bill of Costs. The original of the bill of costs

shall be filed electronically with the Clerk of Court, with copies served on
adverse parties via NEF or mail as set forth in these Local Rules and by the
Administrative Procedures.
(C)

Failure to File. The failure of a prevailing party to timely file a bill of

costs shall constitute a waiver of any claim for costs.
(D)

Objections to Bill of Costs. If an adverse party objects to the bill of costs

or any item claimed by a prevailing party, that party may file an objection to the
bill of costs with supporting brief within fourteen (14) days after the electronic
filing of the bill of costs. Within seven (7) days thereafter, the prevailing party
may electronically file a response with brief to any filed objections. Unless a
hearing is ordered by the Clerk of Court, a ruling will be made by the Clerk of
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Court on the record.
(E)

Objections to the Ruling of the Clerk of Court. A party may request

review of the Clerk of Court's ruling by electronically filing a motion within
seven (7) days after the action of the Clerk of Court. The Court's review of the
Clerk of Court's action will be made on the existing record unless otherwise
ordered.
(F)

Taxable Costs. Items normally taxed include, without limitation:
(1)

those items specifically listed on the bill of costs form. The costs

incident to the taking of depositions (when allowable as necessarily obtained for
use in the litigation) normally include only the reporter's attendance fee and
charge for the original transcript of the deposition;
(2)

premiums on required bonds;

(3)

actual mileage, subsistence, and attendance allowances for necessary

witnesses at actual cost, but not to exceed the applicable statutory rates, whether
they reside in or out of this district;
(4)

one copy of the trial transcript for each party represented by separate

counsel;
(5)

costs associated with private process servers;

(6)

fees for service of summons, subpoena, and notices by private firms;

and
-31-

(7)

costs of the original videotape of a deposition and the appearance

fee of a videographer in lieu of the costs of a transcript of the deposition.
(G) Non-Taxable Costs. Items normally not taxed include, without limitation:
(1)

multiple copies of depositions;

(2)

daily copy of trial transcripts, unless prior Court approval has been

obtained;
(3)

copies of documents filed electronically; and

(4)

attorney fees and attorney travel expenses;

(5)

costs of shipping/mailing transcripts;

(6)

costs for computer aided legal research including paralegal charges

and computerized indices or optical discs produced for the benefit of counsel;
(7)

costs associated with mediation;

(8)

copy costs for any documents filed or served in electronic format;

(9)

pro hac vice fees;

(10) costs for extraction and/or electronic configuration of data (emails)
for the convenience of counsel absent any agreement among the parties
pertaining to these costs; and
(11) costs associated with condensing a transcript, putting transcripts on
a diskette or providing E-transcripts in addition to counsel receiving the original
transcript.
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(H) Costs in Settlements.

The Court will not tax costs in any action

terminated by compromise or settlement. Settlement agreements must resolve
any issue relating to costs. In the absence of specific agreement, each party will
bear its own costs.
(I)

Payment of Costs. Costs are not to be paid to the Clerk of Court, but are

to be paid directly to the party entitled to reimbursement.

LCvR 67.1.
(A)

REGISTRY FUNDS.

Deposit with the Treasury. All registry funds less than $5,000.00 shall

be placed in the Treasury of the United States where they earn no interest unless
otherwise specifically ordered by the Court.
(B)

Investment In Income-Earning Account. The Clerk of Court shall invest

all registry funds in the amount of $5,000.00 or more in an income-earning
account which will be the Court Registry Investment System.
(1)

Proposed Order. A person requesting disbursement must submit a

proposed Order in accordance with LCvR 5.2(G) to disburse any registry funds,
which must contain the following information:
(a)

the amount to be disbursed;

(b)

the name, address, and tax identification number of the

designated beneficiary or beneficiaries; and
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(c)

such other information that may be deemed appropriate under

the facts and circumstances of the particular case.
(2)

Service Fee. A service fee shall be charged by the Clerk of Court

for the investment of registry funds.
(C)

Interest on Registry Funds - “Settlement Funds.” Funds invested with

the Court for the purpose of settlement are subject to additional rules under 26
U.S.C. § 468B. To comply with the requirements found in Section 468B, the
proposed Order required above must also contain the following information:
(1)

that the deposit is identified as a “settlement fund”;

(2)

that liability is resolved by the settlement agreement as described in

26 U.S.C. §468B or 26 C.F.R. §1.468B-1(c); and
(3)

designation of a person outside the Court as the administrator

responsible for obtaining the employer identification number for the fund, filing
all fiduciary tax returns, and paying any tax.
LCvR 72.1
(A)

AUTHORITY OF MAGISTRATE JUDGES IN CIVIL
MATTERS.

Magistrate Judges are Authorized and Designated to Exercise the

Following Functions and Duties Regarding Civil Actions in the Western
District:
(1)

to perform the duties prescribed in 28 U.S.C. § 636(a);

(2)

to hear and decide non-dispositive procedural or discovery motions
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and other pretrial matters, as provided by 28 U.S.C. § 636(b)(1)(A);
(3)

to hear any dispositive motions involving cases in which the parties

have not consented to jurisdiction of the magistrate judge, and thereafter to
submit to the district court proposed findings of fact and recommendations for
disposition of such motions, as provided by 28 U.S.C. § 636(b)(1)(B);
(4)

to make a final determination upon any dispositive motion in a case

wherein the parties have consented to the jurisdiction of the magistrate judge,
subject to right of appeal to the United States Court of Appeals for the Fourth
Circuit;
(5)

to serve as a special master in appropriate civil cases in accordance

with 28 U.S.C. § 636(b)(2) and Fed. R. Civ. P. 53;
(6)

upon the consent of all parties, to conduct jury voir dire in civil

cases when designated by the district court to do so on a case-by-case basis;
(7)

to accept petit jury verdicts in civil cases in the absence of a district

judge;
(8)

upon the consent of all parties, to conduct the trial and order entry

of judgment, as authorized by 28 U.S.C. § 636(c);
(9)

to issue orders or warrants authorizing acts necessary in the

performance of the duties of administrative and regulatory agencies and
departments of the United States government pursuant to 28 U.S.C. § 636(b)(3);
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(10) to conduct proceedings of the Court under the Federal Debt
Collection Procedures Act, consistent with the Constitution and the laws of the
United States as authorized by 28 U.S.C. § 3008; and
(11) to perform any additional duties that are not inconsistent with the
Constitution or the laws of the United States, as shall be assigned or delegated
by the district court.
(B)

Standing Orders of Reference. In addition to the above paragraph, a

district judge may enter a Standing Order of Reference concerning the extent to
which such judge’s matters are referred to magistrate judges.
(C)

Objections and Responses to a Memorandum and Recommendation.

Any objections to a Memorandum and Recommendation issued by a magistrate
judge or responses to objections shall be filed within the time frames provided
in 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b). An additional three (3)
days shall be added to the prescribed periods for the filing of said objections or
responses pursuant to Fed. R. Civ. P. 6(d).

LCvR 73.1
(A)

TRIAL BY CONSENT BEFORE A UNITED STATES
MAGISTRATE JUDGE.

Initial Assignment of Cases. All cases shall be initially assigned to a

district judge.
(B)

Duties of the Proponent of the Litigation. The plaintiff or the removing
-36-

party in a removal action shall serve the Case Assignment Notice, the Notice of
Availability of a Magistrate Judge to Exercise Jurisdiction, and the Joint
Stipulation of Consent to Exercise of Jurisdiction by a United States Magistrate
Judge form on all parties with the complaint or notice of removal.
(C)

Duty of All Parties.

The parties or their counsel may consent to

magistrate judge jurisdiction at any time. The parties or their counsel are
REQUIRED to discuss the issue of consent to the jurisdiction of a magistrate
judge as part of their Initial Attorney’s Conference (Fed. R. Civ. P. 26(f)
Conference) and certify such within the Certificate Of Initial Attorney’s
Conference (“CIAC”). If all parties consent, the executed Joint Stipulation of
Consent to Exercise of Jurisdiction by a United States Magistrate Judge form
shall be filed electronically. The completed form shall be returned as part of and
by the deadline established for filing the completed CIAC. See LCvR 16.1(A).
(D)

Failure to File the Joint Stipulation. Where the Joint Stipulation is not

filed within the time provided, such failure shall be presumed to be a declination
of consent and the parties need take no further action.
(E)

Consents After the Deadline. Where the parties wish to consent after

such deadline, the presumption of declination may be overcome by the filing of
the Joint Stipulation and approval of the reassignment by the district judge to
whom the case was assigned.
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(F)

Addition of Parties. When the initial parties to an action consent and

additional parties are joined during the course of litigation, the plaintiff or
removing party shall provide such parties with the documents specified in
paragraph (B) above. The new party is to inform the Clerk of Court of his or her
decision to consent or not to consent to the exercise of jurisdiction by a
magistrate judge with the first responsive pleading. Such election shall be
communicated to the Clerk of Court and not disclosed to the Court. For the
purpose of this rule, any pleading filed by the new party, including a motion to
dismiss, shall be deemed its first responsive pleading.
(G) Cases Transferred From Another Federal Judicial District. When a case
is transferred into this district from another federal judicial district, the Clerk of
Court shall send all parties the information required by this rule and establish an
appropriate deadline for the completion and electronic filing of the consent of
the newly added parties. The procedures specified in paragraphs (A) through (F)
are, otherwise, applicable to cases transferred from another federal district.
Notice and Consent Form
LCvR 77.1.

ORDERS AND JUDGMENTS WHICH THE CLERK OF
COURT MAY GRANT.

Pursuant to the provisions of Fed. R. Civ. P. Rule 77(c), the Clerk of
Court, or any authorized Deputy Clerk within the district, is authorized to grant
and enter the following orders and judgments without further direction by the
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Court, although any such action may be suspended, altered or rescinded by the
Court for good cause shown:
(1)

orders directing inmates to file sworn statements showing

exhaustion of all administrative remedies through the North Carolina
Department of Correction pursuant to 42 U.S.C. § 1997(e);
(2)

orders directing inmates and the correctional facility in which the

inmate is housed to file a copy of the inmate’s trust fund account statement (or
institutional equivalent) pursuant to 28 U.S.C. § 1915; and
(3)

orders waiving the filing fee or directing a partial filing fee be paid

by the inmate pursuant to Section 804 of the Prison Litigation Reform Act of
1995. These orders may also include directing the correctional facility at which
the inmate is incarcerated to deduct monthly payments from the inmate’s trust
fund account and forward said payment to the Clerk of Court.
LCvR 79.1

(A)

PRESENTATION, CUSTODY AND DISPOSITION OF
EVIDENCE, MODELS, EXHIBITS AND
DEPOSITIONS.

Presentation of Evidence. Evidence shall be presented in electronic

format through the use of the presentation technology available in the courtroom
to display evidence to the jury and the Court. See Administrative Procedures.
(B)

Custody with Clerk of Court. Unless otherwise directed by the Court, or

except as provided in Section (C) of this rule, all trial exhibits admitted into
-39-

evidence in criminal and civil actions shall be placed in the custody of the Clerk
of Court. See Standing Orders.
(C)

Custody with the Offering Party. All exhibits shall be retained in the

custody of the party offering them, subject to the orders of the Court. Exhibits
presented in electronic format will be available for transmission to the Court of
Appeals as part of a record on appeal. Any physical evidence presented during
a court proceeding shall be remain in the custody of the offering party which
shall include, but not be limited to, the following types of bulky or sensitive
exhibits: narcotics and other controlled substances; firearms; ammunition;
explosive devices; jewelry; liquor; poisonous or dangerous chemicals; money
or articles of high monetary value; counterfeit currency; biological hazards; and
documents or physical exhibits of unusual bulk or weight.
At the conclusion of a trial or proceedings, the party offering such exhibits
shall retain custody of them and be responsible to the Court for preserving them
in their condition as of the time admitted until any appeal is resolved or the time
for appeal has expired. The party retaining custody shall make such exhibits
available to opposing counsel for use in preparation of an appeal and be
responsible for their safe transmission to the appellate court, if required.
(D)

Disposition of Exhibits, Sealed Documents, and Filed Depositions by

Clerk of Court. Any exhibit, sealed document, or filed deposition in the Clerk
-40-

of Court’s custody more than thirty (30) days after (1) the time for appeal, if
any, has expired or (2) an appeal has been decided and mandate received, may
be returned to the parties or destroyed by the Clerk of Court. The unsealing of
sealed documents is governed by L.Cv.R. 6.1.
(E)

Depositions. Depositions read into the Court record are considered

exhibits for which the parties shall be responsible as provided in Section (C)
above. Depositions on file admitted into evidence but not read into the record
shall be retained in the Clerk of Court’s custody and disposed of as authorized
in Section (D) of this rule.
LCvR 83.1
(A)

ATTORNEY ADMISSION AND ELIGIBILITY.

Eligibility for Regular Admission. Any lawyer who is a member in good

standing of the North Carolina State Bar is eligible for admission to practice
before this Court upon motion of a member of the Bar of this Court, which
admission shall be granted as a matter of course upon payment of all admission
fees and upon taking the prescribed oath.
Attorneys already admitted to the Bars of either the United States District
Court for the Eastern District of North Carolina or the United States District
Court for the Middle District of North Carolina may be admitted to the Bar of
this Court upon tendering the application and fees required by this rule, together
with a copy of the Order or Certificate of Admission admitting the attorney to
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practice in either of the aforementioned districts.
Counsel representing governmental or tribal agencies who are members
in good standing of the Bar of a United States District Court, the Bar of the
highest Court of any state, or the District of Columbia, are neither required to
associate local counsel nor required to pay an attorney admission fee. By
making an appearance, such attorney agrees to abide by the Local Rules, the
North Carolina Rules of Professional Conduct, and to submit themselves to this
Court for the enforcement of such rules.
(B)

Other Types of Admissions. In addition to regular admission, an attorney

may be admitted to practice before the Bar of this Court under the following
types of admission:
(1)

Pro Hac Vice Admissions. A pro hac vice admission is defined as

an admission to the Bar of this Court in a particular case by an attorney who is
a member in good standing of the Bar of a United States District Court, the Bar
of the highest Court of any state, or the District of Columbia Bar. Such a
candidate for admission must associate local counsel and be accompanied by
local counsel at all hearings unless otherwise permitted by the Court.
(2)

Special Admissions. A special admission is defined as a conditional

admission to the Bar of this Court in a particular case without association of
local counsel.
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(3)

Nunc Pro Tunc Admissions. A nunc pro tunc admission is defined

as retroactive admission to the Bar of this Court. A nunc pro tunc admission
is normally allowed at the time of a hearing or trial on behalf of an attorney who
failed to be admitted to this Bar by regular, special, or pro hac vice admission.
Nunc pro tunc admission is only temporary admission and must be followed up
by seeking admission in one or the manners set forth above.
(C)

Procedures and Forms Applicable to Special, Pro Hac Vice, and Nunc

Pro Tunc Admissions.
(1)

Special, pro hac vice, and nunc pro tunc admissions are

discretionary and additional requirements or expectations for such admissions
may be found in the Standing Civil Order of the judge to whom the case is
assigned.
(2)

A motion seeking admission under this Rule shall be submitted to

the Court upon the forms prescribed by this Court [Hyperlink to forms NOT
Available at this time];
(a)

the motion shall be filed electronically by local counsel who

must be registered to file electronically;
(b)

the motion shall include the e-mail address of the attorney

seeking admission; and
(c)

the motion shall be accompanied by a District Application Fee
-43-

plus the National Admission Fee established by the Judicial Conference of the
United States. Fees
(3)

Upon admission by the Court, the pro hac vice or special admission

attorney will be added to the docket and will receive only electronic notices
from the Clerk of Court.
(4)

The Clerk of Court may permit the pre-admission filing of papers

at the request of non-admitted counsel where justice requires; provided,
however, the further participation of such counsel is subject to compliance with
the admission practices of this Court.
(D)

An ECF Account Must Be Established After Admission. Any attorney

admitted to practice before this Court must establish an ECF account with the
Clerk of Court prior to filing any documents or cases in this district. To
establish an ECF account, an attorney must complete ECF training made
available in this district or certify that they have completed training in another
federal district.
(E)

ECF Requirements Where a Party is Represented by Multiple

Attorneys. Each attorney appearing of record in any matter must file an
individual entry or notice of appearance using his or her ECF User ID issued
upon the establishment of the ECF account. For example, where multiple
attorneys, either in the same firm or different firms, represent a party in a case,
-44-

each attorney must file an individual notice of appearance, using his or her own
User ID in order to receive electronic notification of future filings. The
electronic filing system does not “read” the names of the attorneys who sign a
document, but only notes the appearance of attorney(s) whose ECF passwords
are used to file the document.
(F)

Withdrawal of Counsel. In support of a motion, counsel seeking to

withdraw shall electronically file written consent of their client to their
withdrawal which shall become effective, however, only upon Court approval.
Absent consent of the client, withdrawal may be obtained by electronically
filing a motion to withdraw showing good cause for the withdrawal. This
motion is to include the last known address of the client. Even in the absence
of consent, withdrawal may still be allowed upon good cause shown.
(G) Substitution of Counsel.

Substitution of counsel is accomplished

automatically when the new attorney files a “Notice of Substitution of Counsel,”
which automatically terminates previous counsel and substitutes the new
attorney as counsel of record.
(H) Law Student Practice Rule.
(1)

Generally. Law students may participate as counsel in civil and

criminal cases in this Court subject to their compliance with all of the
requirements set forth in this Rule.
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(2)

Student Eligibility.
(a)

An eligible student must:

be duly enrolled in an accredited, provisionally accredited or

approved law school;
(b)

have completed at least half the required credit hours for a

juris doctor degree;
(c)

have a working knowledge of all applicable rules of Court,

included but not to: the Federal Rules of Civil and/or Criminal Procedure; the
Federal Rules of Evidence; the North Carolina Rules of Professional Conduct;
and the Local Rules of this Court;
(d)

be supervised by a supervising attorney, as defined herein;

(e)

be certified by the dean of the law school where the student

is enrolled, or the dean's designee, as:
(1)

being of good character;

(2)

possessing a sufficient legal ability; and

(3)

having been adequately trained to fulfill the

responsibilities to both the client and the Court;
(f)

be certified by the Court to practice pursuant to this rule

(g)

decline personal compensation for legal services performed

in this Court from a client or any other source, except that such student may
receive a stipend from a law firm or other employer through an internship or
-46-

clerkship program that is not contingent on services provided to a client in this
Court; and
(h)

have completed ECF training made available in this District,

or certify that they have completed training in another federal district.
(i)

The judicial officer who is considering the admission of any

student may make such exceptions to this rule as such judicial officer deems just
and equitable.
(3)

Supervising Attorney Eligibility and Responsibilities.

A

supervising attorney must:
(a)

be a member of the Bar of this Court;

(b)

have established an ECF account prior to seeking admission

of the student; and
(c)

have at least two years experience as a member of the Bar of

this court, or
(i)

maintains faculty, adjunct faculty, or fellowship status

at a law school at which a portion of the supervisor's duties includes supervision
of students in a clinical program; or
(ii)

has substantial similar experience as an attorney

employed by the United States Department of Justice, the United States
Attorney for the Western District of North Carolina, the Office of the Federal
-47-

Defender for the Western District of North Carolina, the North Carolina
Attorney General, or a tribal counsel for the Eastern Band of Cherokee Indians.
Any such attorney
(d)

be certified by the Court as having demonstrated the ability

to supervise students;
(e)

be present with the student at all times while they are in Court,

and at other proceedings in which testimony is taken;
(f)

co-sign all pleadings or other documents filed with the Court;

(g)

assume full personal and professional responsibility for a

student's guidance, any work undertaken, and for the quality of the student's
work, and to be available for consultation with represented clients;
(h)

assist and counsel the student in the “activities” discussed

below and review such activities with the student, all to the extent required for
proper practical training of the student and the protection of the client; and
(i)

supplement oral or written work of the student as necessary

to insure proper representation of the client.
(4)

Certification of Student and Supervisor After Completion of
ECF Training and the Establishment of an ECF Account.
(a)

Student. The Court's certification of a student to practice

under this Local Rule shall be entered with the Clerk of Court and shall remain
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in effect for eighteen (18) months or until the student graduates from law school,
whichever is earlier. Certification to appear generally or 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. In order to assist the Court in maintaining a
current list of students certified to practice under this Local Rule, the
supervising attorney shall notify the Court of the student's graduation from law
school.
(b)

Supervising Attorney. The Court’s certification of the

supervising attorney shall be entered with the Clerk of Court, and shall remain
in effect indefinitely unless withdrawn by the Court, in its discretion, and
without any showing of cause. The Supervising Attorney's ECF account will
allow the supervisor to accept electronic service on behalf of the student
practicing under this Local Rule.
(5)

Activities. A certified student may, under the personal supervision

of his or her supervisor:
(a)

represent any client including federal, state or local

governmental bodies, if the client on whose behalf the certified student is
appearing has consented in writing to that appearance and the supervising
lawyer has given written approval of that appearance;
(b)

represent a client in any criminal, civil or administrative
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matter; however, the Court retains the authority to limit a student's participation
in any individual case; and
(c)

in connection with matters in this Court, engage in other

activities on behalf of the client in all ways that a licensed attorney may, under
the general supervision of the supervising lawyer; however, a student shall make
no binding commitments on behalf of a client absent prior client and supervisor
approval.

In any matter involving the taking of testimony, including

depositions, the student must be accompanied by the supervising lawyer.
Documents or papers which are filed by the student shall be read, approved, and
co-signed by the supervising lawyer. The Court retains the authority to establish
exceptions to such activities.
(6)

Scope of Participation Statement.

Prior to oral participation by

a certified student in a hearing or trial, the supervising attorney shall advise the
Court of the scope of participation anticipated on the part of the certified
student.

LCvR 83.2.

NO PHOTOGRAPHING, TELEVISING, OR
BROADCASTING OF COURT PROCEEDINGS.

The taking of photographs in the courtroom, or in the corridors
immediately adjacent thereto, during the progress of judicial proceedings, or
during any recess, and the transmitting or sound recording of such proceedings
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for broadcasting by radio or television or any other media, shall not be
permitted.

However, proceedings that are designed and conducted as

ceremonies, such as administering oaths of office to appointed officials of the
Court, presentation of portraits, naturalization ceremonies, and similar
ceremonial occasions, may be photographed and/or broadcasted or televised
from the courtroom, with the permission and under the supervision of the Court.

LOCAL RULES GOVERNING CRIMINAL CASES
LCrR 5.2
(A)

FILING OF PAPERS, PRESENTING JUDGMENTS,
ORDERS, AND COMMUNICATIONS TO JUDGE.

Electronic Filing Authorized. The Court will accept for filing documents

submitted, signed or verified by electronic means that comply with the Federal
Rules of Criminal Procedure, Local Rules, and the Administrative Procedures
Governing Filing and Service by Electronic Means adopted by this Court
(hereinafter “Administrative Procedures”). Administrative Procedures
(B)

Mandatory Electronic Filing. All documents submitted for filing in this

district shall be filed electronically unless expressly exempted from electronic
filing either by the Administrative Procedures or by the assigned judge.
Administrative Procedures
(C)

Filing of Papers. All pleadings, motions, memoranda, orders, and

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judgments shall be filed electronically with the Court. In circumstances where
conventional filing is permitted by the Administrative Procedures, all papers of
every sort may be filed in Asheville, Charlotte, or Statesville, regardless of the
division in which the case may be pending as may suit the convenience of
counsel.
(D)

Motion for Consolidation of Cases. A motion for consolidation shall be

filed in accordance with LCrR 20.1.
(E)

Filing of a Redacted Pleading is Permitted to Eliminate Personal Data

Identifiers. In compliance with the Policy of the Judicial Conference of the
United States and the E-Government Act of 2002, and in order to promote
electronic access to case files while also protecting personal privacy and other
legitimate interests, parties shall refrain from including, or shall redact where
inclusion is necessary, the following personal data identifiers from all pleadings
filed with the Court, including exhibits thereto, whether filed electronically or
in paper form, unless otherwise ordered by the Court:
(1)

Social Security Numbers. If the individual’s Social Security

number must be included in a pleading, only the last four digits of that number
should be used.
(2)

Names of Minor Children. If the involvement of a minor child

must be mentioned in a pleading, only the initials of that child should be used.
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(3)

Dates of Birth. If the individual’s date of birth must be included

in a pleading, only the year should be used.
(4)

Financial Account Numbers. If financial account numbers are

relevant and must be included in a pleading, only the last four digits of the
financial account number should be used.
(5)

Other Identifying Information. Counsel may also redact any other

personal identifier information which they deem appropriate. This redacted
document will be made available in electronic format to the public. A reference
list containing the redacted personal information may be filed under seal. LCrR
55.1
The responsibility for redacting these personal identifiers rests solely with
counsel and parties. The Clerk of Court will not review each pleading for
compliance with this rule.
(F)

Filing of an Unredacted Pleading or Other Paper Under Seal Permitted.

In compliance with the E-Government Act of 2002, a party wishing to file a
document containing the personal data identifiers listed above may file an
unredacted document under seal. LCrR 55.1
(G) Presenting Judgments, Orders, and Other Communications to Judges.
As provided by the Administrative Procedures, parties may submit proposed
orders, memoranda of decision, judgments, bills of costs, and other proposed
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documents for consideration and entry by the Court or the Clerk of Court
electronically. Such proposed documents must be submitted through cyberclerk
and may also be submitted as attachments to a motion, brief, or notice that
relates to the proposed relief sought. In any event, such proposed document
must be served on all parties as provided by Rule 5, Fed. R. Civ. P., unless an
exception is provided by the Fed. R. Crim. P. for proceeding ex parte.
LCrR 5.3
(A)

SERVICE OF DOCUMENTS BY ELECTRONIC
MEANS.

Service By Electronic Means for Registered Users After Service of

Process. Other than the document upon which an action is commenced,
registered users may serve all papers through the Court’s Electronic Case Filing
(“ECF”) system. Issuance of the “Notice of Electronic Filing” (“NEF”), which
is automatically generated by the Court’s electronic filing system, constitutes
proof of service of the filed document upon all registered users unless the filing
party learns that such attempted service was not successful. Administrative
Procedures, Section II, B2 While the NEF constitutes proof of service, it is not
a substitute for the Certificate of Service, which is still required as discussed
below.
(B)

Conventional Service of and by Parties and Attorneys Exempt from

Electronic Case Filing. Parties and attorneys who are not registered users must
be served conventionally in accordance with the Federal Rules of Civil
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Procedure and the Federal Rules of Criminal Procedure, the Local Rules, and
this district’s Administrative Procedures. Administrative Procedures, Section II,
B4
(C)

Certificate of Service Required. Unless an exception for proceeding ex

parte is provided by the Federal Rules of Criminal Procedure, a certificate of
service must be included with all documents, including those filed
electronically, indicating thereon that service was or will be accomplished
through the NEF for parties and counsel who are registered users and indicating
how service was or will be accomplished as to non-registered users.
Administrative Procedures
LCrR 11.1

ELECTRONIC RECORDING OF RULE 11
INQUIRY.

When an inquiry under Fed. R. Crim. P. 11 is conducted by a magistrate
judge, the electronic recording of the proceeding shall constitute the verbatim
record of the proceeding.
LCrR 17.2

SUBPOENAS IN CRIMINAL CASES.

Requests For Subpoenas Where Defendant Is Unable To Pay. All defense
motions that seek service of subpoenas by the United States Marshal at
government expense must be filed with the Court at least fourteen (14) days in
advance of either the hearing date or the first day of the term of Court,
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whichever date is earlier, for which the witness’s presence is being requested.
Any subpoena request not made at least fourteen (14) days in advance of the
applicable date may be denied as untimely. Upon a finding of good cause,
however, a judicial officer may elect to honor an untimely subpoena request.
LCrR 17.3

APPLICATIONS FOR WRITS IN CRIMINAL
CASES.

Applications For Issuance Of Writs Of Habeas Corpus To Be Executed By
the United States Marshal’s Service. In order to ensure the prisoner’s presence
in the district at the requested time, applications for writs of habeas corpus (ad
prosequendum and/or ad testificandum) that are to be executed by the United
States Marshal must be filed with the Court within the time frames provided
below:
(i)

if the prisoner is out-of-district, at least twenty-one (21) days in
advance of the hearing date, or the first day of the term of Court,
whichever date is earlier, for which the prisoner is needed;

(ii)

if the prisoner is within the district, at least fourteen (14) days in
advance of the hearing date, or the first day of the term of Court,
whichever date is earlier, for which the prisoner is needed.

Any writ application not made within the time period prescribed herein may be
denied as untimely. Upon a finding of good cause, however, a judicial officer
may elect to honor an untimely writ application.
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LCrR 20.1

CONSOLIDATION AND TRANSFER OF CASES.

Consolidation or Transfer of Related Cases. If a related case is pending before
another district judge, the government or defendant shall move for consolidation
before or transfer to the judge assigned to the lowest case number and submit
a proposed Order for the Court. The motion for consolidation or transfer may
be filed in either of the cases with proper notice of the motion in the related
case. Upon execution of the Order, the Clerk of Court shall re-assign the later
case to the judge presiding on the lowest case number, unless otherwise set forth
in the Order.
LCrR 23.1

FAIR TRIAL AND FREE PRESS IN CRIMINAL
CASES.

It is the duty of the lawyer, in connection with pending or imminent
criminal litigation with which he or she is associated, not to release or authorize
the release of information or opinion for dissemination by any means of public
communication, if there is a reasonable likelihood that such dissemination will
interfere with a fair trial or otherwise prejudice the due administration of justice.
LCrR 32.3

DISCLOSURE OF PRE-SENTENCE OR PROBATION
RECORDS.

The probation officer's sentencing recommendation is a confidential
record and shall not be disclosed, except pursuant to an Order of the Court. No
confidential records of this Court maintained by the probation office, including
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but not limited to the sentencing recommendation, shall be sought by an
applicant except by written petition to this Court establishing with particularity
the need for specific information in the records.
LCrR 32.4

(A)

ASSIGNMENT
OF
AUTHORITY TO
MAGISTRATE JUDGES IN CRIMINAL
FORFEITURE CASES AND PUBLICATION OF
NOTICE IN FORFEITURE CASES.

Magistrate Judge’s Duties in Criminal Forfeiture Cases. In any case

where a defendant pleads guilty and consents to forfeiture of property, a duly
appointed magistrate judge is authorized to enter one or more orders and
judgments of forfeiture in connection with the hearing under Fed. R. Crim. P.
11.
(1)

Findings of Fact. Based upon a stipulation of the parties or other

proper showing, the magistrate judge may make any related finding of fact
contemplated by Fed. R. Crim. P. 32.2, provided that the defendant consents to
those findings.
(2)

Waiver of Notice. The notice required by Fed. R. Crim. P. 32.2

may be waived by defendant either through written consent contained in the plea
agreement or through written consent of both defendant and defendant’s counsel
contained in a proposed Order and/or Judgment.
(3)

Ancillary Proceedings.
(a)

Where a forfeiture consists of a money judgment or where no
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third party files a timely petition, the Order of Forfeiture may become final
without conducting an ancillary proceeding to adjudicate third party interests.
(b)

A magistrate judge shall not conduct an ancillary proceeding

unless instructed by a district judge to do so.
(c)

Where an ancillary proceeding is conducted by a magistrate

judge, the Order and Judgment entered in connection with the Rule 11
proceeding is deemed to be a “Preliminary Order” for purposes of Rule 32.2(c)
and may be amended, if necessary, by a further Order and Judgment of a district
judge.
(B)

Publication of Notice by the Government. Unless otherwise required by

statute, rule, or specific Order of this Court, in any criminal judicial forfeiture
case filed in this district, the government may satisfy its requirement of
publication of notice by publishing once in a newspaper of general circulation.
Publication in such manner shall be deemed to satisfy the publication
requirements of 21 U.S.C. § 853(n)(1) and Rule C(4) of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions.
LCrR 44.1
(A)

ADMISSION AND APPOINTMENT OF COUNSEL

Civil Local Rules for Admission are Applicable to Admission in

Criminal Cases. The admission and appearance of counsel are governed by
LCvR 83.1. Such civil local rule is adopted herein as if fully set forth.
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Appointment of counsel is governed by Title 18 and the district’s Criminal
Justice Act Plan.
(B)

Additional Considerations for Representation in Criminal Proceedings.

The Sixth Amendment guarantees that each defendant in a criminal matter has
the right to be represented by an otherwise qualified attorney whom that
defendant can afford to hire, or who is willing to represent the defendant even
though he is without funds. The Court makes every effort to ensure that a
defendant’s right to counsel of his choice is protected. To that end, a defendant
has the following choices in a criminal matter and may
(1)

represent himself if he voluntarily elects to do so;

(2)

request that the Court appoint counsel based upon a showing of

indigency;
(3)

hire an attorney who is a member of the Bar of the Western District

of North Carolina; or
(4)

hire an attorney who is not a member of the Bar of the Western

District of North Carolina, but who meets at least one of the following criteria:
(a)

is a member in good standing of the Bar of the Eastern District

or Middle District of North Carolina;
(b)

is a member in good standing of any state, district, or

territorial Bar of the United States and is appearing with a member in good
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standing of the Bar of this Court, who moves on behalf of such out-of-state
attorney admission pro hac vice, which motion is granted; or
(c)

is a member in good standing of any state, district, or

territorial Bar, and moves for and is granted “special admission” upon a showing
of good and adequate cause.
“Special admission” (admission without association of local counsel) is
conditional admission to the Bar, and shall not be granted absent a showing of
good cause. The right to counsel includes the right to effective assistance of
counsel; therefore, a request for special admission requires averment of
familiarity with North Carolina trial practices as well as the Local Rules. Even
when special admission is allowed in a criminal matter, the Court reserves the
right to require specially admitted counsel to associate local counsel at any time.
LCrR 47.1
(A)

MOTIONS PRACTICE IN CRIMINAL CASES.

Motions In Writing. Unless made during a hearing or trial, all motions

must be made in writing, filed as provided by LCrR 5.2, and shall state with
particularity the grounds of the motion and shall set forth the relief or Order
sought. Unless otherwise ordered by the Court, motions will ordinarily be ruled
upon without oral argument.
(B)

Certificate Of Conference With Filing.

Pretrial motions, other than

motions to suppress, ex parte motions, and notices (notice of substitution of
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counsel, notice of appearance, notice of intent to present certain types of
evidence, etc.) shall include a certification that the moving party has conferred
with opposing counsel and state opposing counsel's position on the relief sought,
or an explanation as to why conferring should not be required under the
circumstances. If a hearing on a motion is requested, counsel should estimate
the length of such hearing.
(C)

Requirement of Briefs. Briefs shall be filed contemporaneously with any

potentially dispositive pretrial or post-trial motion submitted in a criminal
action. No brief is required in support of timely motions for extension of time,
continuances, admissions pro hac vice, etc.
(D)

Response Required by the Government. Unless otherwise directed by the

Court, the government shall respond to all potentially dispositive defense
motions filed in a criminal case. Examples of such motions include motions to
suppress and motions to dismiss the indictment. Unless otherwise directed by
the Court, the government is not required to respond to pro se motions filed by
a criminal defendant who is still represented by counsel and who has not
formally waived his or her right to counsel after appearing before a judicial
officer and being fully advised of the consequences of waiver.
(E)

Motions Deadline/Time For Filing Response.

Motions practice,

including deadlines for the filing of pretrial motions, and the time for filing
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responses and replies to motions, is governed by the practice of the presiding
judge consistent with Federal Rules of Criminal Procedure 12 and 47. Unless
otherwise directed by the Court, responses to motions, if any, shall be filed
within seven (7) days of the date on which the motion is served, as evidenced
by the certificate of service attached to said motion. Neither the motions
deadlines set within an Arraignment Order, nor operative deadlines under this
local rule, entitle any party to continuance of a trial date.
(F) Calculation of Deadlines. Deadlines for filing and serving responses and
replies (if allowed) are calculated consistent with Rule 45, Federal Rules of
Criminal Procedure.
(G) Proposed Orders. When a proposed Order is submitted, such proposed
documents must be submitted through “Cyberclerk,” but may also be submitted
as attachments to a motion, brief, or notice that relates to the proposed relief
sought. In any event, unless the motion is submitted ex parte, such proposed
document must be served on all parties.
(H) Pro Se Motions Filed By Criminal Defendants Who Have Not Waived
Their Right To Counsel. Except for challenges to the effective assistance of
counsel, the Court will not ordinarily entertain a motion filed by a criminal
defendant who is still represented by counsel and has not formally waived his
or her right to counsel in the presence of a judicial officer after being fully
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advised of the consequences of waiver. Exceptions to this general rule may be
made in the discretion of the judicial officer considering the pro se motion.
LCrR 55.1
(A)

SEALED RECORDS AND PUBLIC ACCESS.

Sealing Criminal Cases. At the time of filing a complaint or information,

or upon the return of an indictment, the government may move to seal such case
by accompanying the charging document with an ex parte motion and proposed
Order requesting that all or a portion of the documents in the criminal case be
sealed. After review by the Court and consideration of alternatives to sealing,
the Court may enter either its own Order or adopt a proposed Order submitted
by the government if the facts shown justify sealing. The Clerk of Court shall
seal the case or documents as specified in the Court's Order.
(B)

Unsealing Criminal Cases. Unless a motion is made to keep any case or

document(s) sealed and such motion is granted, the case or document(s) shall
be unsealed as follows:
(1)

where the case involves a single defendant, at the time of the
defendant's initial appearance;

(2)

where the case involves more than one defendant, at the time of the
last defendant’s initial appearance; or

(3)
(C)

upon motion of the government to unseal.

Pending Cases. Upon motion filed separate and apart from the motion or
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pleading sought to be sealed, the Court may enter an Order sealing a pending
case or any portion thereof after such notice as required by law or these rules has
been provided by the moving party. After review by the Court and consideration
of alternatives to sealing, the Court may enter either its own Order or adopt a
proposed Order if the facts shown justify sealing. The sealing motion and
proposed Order presented to the Court should specifically identify that portion
of the record which is to be sealed, such as:
(1)

the case file;

(2)

the case docket;

(3)

a specific pleading and/or its docket entry; or

(4)

the identity of new defendants brought into the case.

Any documents sought to be filed under seal may be submitted to the Court for
in camera review in person or via cyberclerk.
(D)

Documents. Unless otherwise ordered by the Court, documents sealed by

the Court or otherwise required to be sealed by statute shall be marked as such
within the document caption and filed electronically. Administrative Procedures
If the document is sealed pursuant to a prior Order of the Court, the pleading
caption shall include a notation that the document is being filed under Court seal
and include the Order's entry date. No document shall be designated by any
party as "filed under seal" or "confidential" unless:
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(1)

the document has been sealed by prior Order of the Court;

(2)

it is being filed in a case that the Court has ordered sealed; or

(3)

it contains material that is the subject of a Protective Order entered
by the Court.

(E)

Case Closing. After final disposition of any criminal case where the file

or documents under Court seal have not previously been unsealed by Court
Order, unless otherwise ordered by the Court, the filing party shall be
responsible for filing a motion unsealing the matter with a proposed Order for
the Court’s execution.
(F)

Access to Sealed Documents. Unless otherwise ordered by the Court,

access to documents and cases under Court seal shall be provided by the Clerk
of Court only pursuant to Court Order. Administrative Procedures Unless
otherwise ordered by the Court, the Clerk of Court shall make no copies of
sealed files or documents.
(G) Arrest, Search, and Seizure Warrants. Any application for an arrest,
search, or seizure warrant shall be sealed until all the warrants have been
executed and returned to the Court. No motion to seal shall be required for such
materials. The government, defendant, or interested nonparties may move to
unseal prior to the execution or delivery of all warrants. The government may
move to continue the seal after the execution of all warrants. After review by
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the Court and consideration of alternatives to sealing, the Court may enter either
its own Order or adopt a proposed Order submitted by the government if the
facts shown justify sealing.
(H) Sentencing Materials. All portions of pleadings, motions and objections
which incorporate or refer to a defendant's pre-sentence report shall, if filed, be
filed under seal. No motion to seal shall be required for such materials. The
defendant, government, and United States Probation Office shall be notified by
the moving party of any motion to unseal pre-sentence materials, sentencing
memoranda, pre-sentence report, or any related materials and given an
opportunity to respond to such motion within the times set forth in Local
Criminal Rule 12.5(E) before any such material is publicly disclosed.
(I)

Public Notice. The Clerk of Court shall provide public notice by

docketing the motion in a way that discloses it as a motion to seal unless
otherwise ordered by the Court consistent with this Rule and applicable law.
Within the time allowed by the Court for the non-moving party to respond to the
motion to seal, other parties and non-parties may submit memoranda in support
of or in opposition to the motion, and may designate all or part of such
memoranda as confidential. Any confidential memoranda will be treated as
sealed pending the outcome of the ruling on the motion. Where the Court
allows no response, such as where the motion to seal is consented to by all
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parties, interested non-parties may thereafter file a Motion to Unseal.
LCrR 55.2

PRESENTATION,
CUSTODY AND
DISPOSITION OF EVIDENCE, MODELS,
EXHIBITS AND DEPOSITIONS.

The presentation, custody and disposition of evidence, models, exhibits
and depositions in a criminal case are governed by Local Civil Rule 79.1, which
is incorporated herein by reference.

LCrR 57.1
(A)

AUTHORITY OF MAGISTRATE JUDGES IN
CRIMINAL MATTERS.

Magistrate judges are authorized and designated to exercise the following

functions and duties in criminal actions:
(1)

to perform the duties prescribed in 28 U.S.C. § 636(a);

(2)

to try and sentence, if found guilty, persons charged with petty

offenses and misdemeanors, and to direct the United States Probation Office to
prepare a pre-sentence report in any such case, as provided by 18 U.S.C. § 3401;
(3)

to hear and decide non-dispositive procedural or discovery motions

and other pretrial matters, as provided by 28 U.S.C. § 636(b)(1)(A);
(4)

to hear any dispositive motions involving cases in which the parties

have not consented to jurisdiction of the magistrate judge and thereafter to
submit to the district court proposed findings of fact and recommendations for
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disposition of such motions, as provided by 28 U.S.C. § 636(b)(1)(B);
(5)

to issue preliminary orders and conduct necessary evidentiary

hearings or other appropriate proceedings in connection with cases filed
pursuant to 28 U.S.C. §§ 2254 and 2255, and to submit to the district court a
report containing proposed findings of fact and recommendations for disposition
of such cases (unless consent is obtained for final disposition);
(6)

to accept returns of true bills of indictment from the grand jury;

(7)

to issue orders or warrants authorizing acts necessary in the

performance of the duties of administrative and regulatory agencies and
departments of the United States government pursuant to 28 U.S.C. § 636(b)(3);
(8)

to perform any additional duties that are not inconsistent with the

Constitution or the laws of the United States, as shall be assigned or delegated
by a district judge; and
(9)

LCrR 58.1

to conduct, take, and accept pleas under Fed. R. Crim. P. 11.

FORFEITURE OF COLLATERAL SECURITY IN
LIEU OF APPEARANCE.

Pursuant to Fed. R. Crim. P. 58 and 28 U.S.C. § 636(b)(3), and upon
motion made by the government in the interest of justice, good Court
administration, and sound law enforcement, the Unified Collateral Forfeiture
Schedule implemented April 14, 2004, is hereby adopted and incorporated
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herein by reference as if fully set forth, as amended by the “2004 Supplement
to the Unified Collateral Forfeiture Schedule.” In accordance with Fed. R.
Crim. P. 58, the Board of Judges may periodically supplement the Collateral
Forfeiture Schedule by and through subsequent orders issued by a majority of
the Board of Judges.
LCrR 58.2

(A)

PROCEDURES
APPLICABLE TO
COLLATERAL FORFEITURES, PETTY
OFFENSES, AND CLASS A MISDEMEANORS.

Effect of Payment of a Collateral Forfeiture. The payment of a

collateral in lieu of appearance is a “civil penalty,” is not an admission of guilt,
and shall not be deemed to be a “criminal conviction” for any purpose.
(B)

Procedures Applicable to Processing and Trial of Petty and Class A

Misdemeanor Offenses
(1)

Scheduling of Court Days. The Clerk of Court shall establish and

calendar Court days for the hearing of petty and misdemeanor offenses at such
times and places as the Clerk of Court deems necessary.
(2)

Attendance. Persons charged, as well as the charging officer, shall

be present on scheduled Court days. Pretrial motions to continue shall be
determined by the Clerk of Court or any judicial officer. Most cases will be
resolved at the first Court day, and persons charged with offenses as well as
charging officers should be prepared to dispose of their cases that day.
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Continuances upon good cause shown will be the exception, not the rule.
(3)

Charging Instruments. Decisions as to which charging instruments

to issue, and the charging instruments on which to proceed, are within the sound
discretion of the government as provided by Fed. R. Crim. P. 58(b)(1).
(a)

Initial Charging Instrument. Any misdemeanor (Class A,

Petty, or Infraction), may be commenced through the issuance of a violation
notice.
(b)

Sending the Violation to CVB. In accordance with the rules

promulgated by the Central Violations Bureau (“CVB”), any officer who issues
a violation notice must mail the violation notice to the CVB within three (3)
business days of issuance. Failure to do so may result in summary dismissal of
the ticket, referral of the matter to the government, or further Court action.
(c)

Charging Instrument Sufficient for Trial. Trial of a petty

offense or infraction may proceed on a violation notice. Fed. R. Crim. P.
58(b)(1). Trial of a Class A misdemeanor may proceed on an indictment,
information, or complaint. Id. Where a Class A misdemeanor is initially
charged by way of a violation notice, the government should be prepared by the
first scheduled Court day to supersede the violation notice with an appropriate
trial instrument or stipulate that it is only proceeding on the lesser included
petty offense.
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(4)

Plea Negotiations. Plea negotiations are anticipated by the Federal

Rules of Criminal Procedure. See Fed. R. Crim. P. 11. A period of time will
be set aside at the beginning of the Court day sufficient for each person charged
or their attorney to discuss their charges with the government.
(5)

Collaterals on the Day of Court. The government has, as a matter

of law, full authority to dispose of any charge before trial in any manner the
government deems appropriate. In recognition of this important duty, the
government may, within the confines of plea negotiations, allow resolution of
any violation notice by way of payment of a collateral forfeiture (“collateral”),
may raise or lower a collateral (not to exceed the maximum possible fine), and
may convert a mandatory appearance into a collateral up to and through the day
of Court. Fed. R. Crim. P. 58(d)(1).
(6)

Calendar Call. After the government indicates that it has had

sufficient time for plea negotiations, Court will commence.
(7)

Taking of Pleas. Where a charge is to be resolved through a plea

of guilty, the Court will provide the person charged with a combined and brief
initial appearance, an abbreviated Rule 11 proceeding, and a sentencing hearing.
(8)

Appointment of Counsel. The Court will consider the appointment

of counsel in cases where the government indicates that there is a possibility of
imprisonment. Persons desiring Court-appointed counsel should fill out an
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appropriate affidavit of indigency the day of Court. The Federal Defender may
assist persons in making such requests and such requests may be tendered for
approval before Court so that the Federal Defender may participate in the plea
negotiation process.
(9)

Trials. Where a person charged tenders a plea of not guilty, the

Court will afford such person a bench trial. In Class A misdemeanors where a
jury trial is requested or where the person charged does not consent to proceed
before a magistrate judge, such charges will be transferred to a district judge.
Once transferred to a district judge, “Class A” misdemeanors will only be
remanded to the magistrate judge where the district judge so directs.
(10) Sentencing. In the event a person is found guilty after either a plea
or trial, the Court will proceed immediately to sentencing. In a Class B
misdemeanor or infraction (also known as “petty offenses”), no pre-sentence
report is required. In a Class A misdemeanor, a person charged may waive
preparation of a pre-sentence report or the Court may direct the preparation of
an abbreviated report.
(11) Payment of Fines. Immediate payment of the fine and special
assessment is required by way of mail payment. The Court does not accept cash
payments. Where the Court allows deferred payment, defendant shall provide
the Clerk of Court with his or her Social Security number, driver’s license
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number, and phone number.
(12) Failure to Appear. At the conclusion of all matters, the Court will
determine who has failed to appear. Where a person fails to appear on an
offense for which a collateral was issued, a warrant for arrest shall issue which
shall allow either payment of twice the collateral in lieu of arrest or an arrest
without bond.

The United States Marshal is authorized to contact the

government or a United States Magistrate Judge (or such judge’s staff) for
permission to accept a lesser amount as circumstances may warrant. Where a
person fails to appear on an offense for which a mandatory appearance was
issued, the Court shall issue a warrant for arrest.
(13) Dismissal for Insufficient Address. Where a person charged with
an offense cannot be located and noticed to come to Court by the CVB based on
the information provided by the charging officer, the Court will administratively
dismiss such violation notice without prejudice. See U.S.M.J. Manual, CVB,
at 4-5 (2003). The charging officer may, thereafter, issue a new violation notice
to such person if further investigation provides the issuing officer with a better
address. It is the responsibility of the charging officer to check with the CVB
or the government, not the Clerk of Court, as to the status of any violation
notice.
(14) Non-Current Warrants. Warrants that have not been served after
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eight (8) months shall be disposed of in a manner consistent with the rules,
regulations, and standards set forth and promulgated by the CVB. Any such
dismissal shall be without prejudice as to the charging agency or the government
taking whatever action it deems appropriate in further prosecution of such
alleged offenses.
(C)

Arrests
(1)

Field Bonds. Officers are authorized to issue unsecured “field

bonds” on forms approved by the Court to assure the appearance of any person.
Unsecured Field Bond Form Such forms may be utilized where the accused is
not a danger to himself and/or the community and has no known history of
failure to appear. If the person arrested qualifies for a field bond, the officer
shall advise the arrestee of the right to be taken before a judicial officer within
a reasonable time and that by signing a field bond, the arrestee waives that right.
(2)

Appearance Before a Judicial Officer. Unless a field bond is used,

an arrested person shall be promptly brought before a United States Magistrate
Judge or, in the event a federal magistrate judge is not reasonably available,
before a state judicial officer as authorized by 18 U.S.C. § 3041. The arresting
officer shall use best efforts to contact the Clerk of Court and advise the Court
of such arrest prior to arriving at the courthouse.
(3)

Custody. The United States Marshal only takes custody of a
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defendant who is arrested by another agency after a federal magistrate judge has
found that there was probable cause for the arrest. See 28 C.F.R. ¶ 0.111(k).
Where an officer houses a defendant in a facility overnight, it is the duty of the
arresting officer to secure the defendant from the local jail facility and promptly
take such person before a federal magistrate judge for an initial appearance. See
Fed. R. Crim. P. 5(a). The arresting officer shall use best efforts to contact the
Clerk of Court and advise the Court of such arrest prior to arriving at the
courthouse.

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