Local Rules of the Western District of North Carolina

Filing 6

Adopted Local Rules effective 12/1/2018. (thh)

RULES OF
PRACTICE AND PROCEDURE
OF THE
UNITED STATES
DISTRICT COURT
FOR THE WESTERN DISTRICT
OF NORTH CAROLINA
_________
2017 Edition
(as revised, effective December 1, 2018)

Local Rules Governing Civil Cases
&
Local Rules Governing Criminal Cases

TABLE OF CONTENTS
I.

Local Rules Governing Civil Cases

LCvR 1.1

Application of Local Civil Rules

…5

LCvR 3.1

Filing Fee, Bond, Security, Prohibited Sureties, Payment of Fees
Electronically, and Refunds

…5

LCvR 4.1.1

Service of Summons and Complaint

…7

LCvR 4.2

Publication of Notice by the United States in Civil Forfeiture
Actions

…7

LCvR 4.3

Waiver of Service upon Current and Former North Carolina
Department of Public Safety Employees in Civil Rights
Actions filed by North Carolina State Prisoners

…7

LCvR 5.2.1

Filing of Papers, Filing of Redacted
Pleadings, and Presenting Judgments, Orders, and
Communications to Judges

…9

LCvR 6.1

Sealed Filings and Public Access

…9

LCvR 7.1

Motions in Civil Cases, Brief Requirements, Exhibit Numbering, ..12
Page Limits, and Proposed Orders

LCvR 7.2

Social Security Cases

..15

LCvR 16.1

Pretrial Conferences, Initial Attorney’s Conference, Joint
Stipulation of Consent to United States Magistrate Judge
Jurisdiction, and Initial Pretrial Conference

..18

LCvR 16.2

Mediation or Alternative Dispute Resolution (“ADR”)

..22

LCvR 16.3

Rules Applicable to Mediation or ADR

..22

LCvR 16.4

Pro Se Settlement Assistance Program

..25

LCvR 26.1

Commencement of Discovery

..27

LCvR 26.2

Discovery Material Not to Be Filed Unless Ordered or Needed

..27

2

LCvR 42.1

Motion for Consolidation of Cases

..28

LCvR 45.1

Production of Subpoenaed Material by Certain Non-Parties,
Custodians of Records

..28

LCvR 45.2

Notice of Document Subpoena to Non-Party

..30

LCvR 47.1

Contact with Jurors before Trial and During Voir Dire

..31

LCvR 54.1

Taxation of Costs Other Than Attorney Fees

..32

LCvR 67.1

Registry Funds

..35

LCvR 72.1

Authority of United States Magistrate Judges in Civil Matters,
Standing Orders of Reference

..39

LCvR 73.1

Trial by Consent Before a United States Magistrate Judge, Initial ..40
Assignment of Cases, Duty of Parties, and Failure to File the Joint
Stipulation

LCvR 77.1

Orders and Judgments the Clerk of Court May Grant

..42

LCvR 79.1

Presentation, Custody, and Disposition of Evidence, Models,
Exhibits, and Depositions

..43

LCvR 83.1

Attorney Admission and Eligibility, Establishment of an ECF
Account before Admission, Definitions of Types of Admissions

..44

LCvR 83.2

Attorney Discipline and Disbarment

..51

LCvR 83.3

Use of Electronic Devices and Cameras in the Courthouse

..52

II.

Local Rules Governing Criminal Cases

LCrR 1.1

Application of Local Criminal Rules

..55

LCrR 11.1

Electronic Recording of Rule 11 Inquiry

..55

LCrR 11.2

Plea Hearings and Factual Basis for Pleas

..55

LCrR 17.2

Subpoenas in Criminal Cases

..56

LCrR 17.3

Applications for Writs in Criminal Cases

..56

3

LCrR 20.1

Consolidation and Transfer of Cases

..57

LCrR 23.1

Fair Trial and Free Press in Criminal Cases

..57

LCrR 32.2.1

Authority of United States Magistrate Judges in Criminal
Forfeiture Cases and Publication of Notice in Forfeiture Cases

..58

LCrR 32.3

Disclosure of Presentence or Probation Records

..59

LCrR 32.4

Statement of Relevant Conduct

..60

LCrR 32.5

Sentencing Hearing, Presentence Reports, Identities of Victims,
and Sentencing Memoranda

..61

LCrR 44.1

Admission, Appearance, Appointment, Discipline, and Disbarment ..62
of Counsel

LCrR 47.1

Motions Practice in Criminal Cases, Requirement of Briefs,
Responses Required by the Government, and Proposed Orders

..63

LCrR 49.1.1

Sealed Records and Public Access

..64

LCrR 49.1.2

Filing of Papers, Filing of Redacted Pleadings, and
..68
Presenting Judgments, Orders, and Other Communications to Judges

LCrR 55.2

Presentation, Custody, and Disposition of Evidence, Models,
Exhibits, and Depositions

..69

LCrR 58.1

Forfeiture of Collateral Security in Lieu of Appearance

..69

LCrR 58.2

Procedures Applicable to Collateral Forfeitures, Petty Offenses,
and Class A Misdemeanors

..69

LCrR 59.1

United States Magistrate Judge Duties in Felony Cases

..74

4

LOCAL RULES GOVERNING CIVIL CASES

LCvR 1.1

APPLICATION OF LOCAL CIVIL RULES
The Local Civil Rules which follow are intended to provide case participants with

procedures that supplement the Federal Rules of Civil Procedure. They are not intended to bind
any judicial officer to any particular course of action or result. Each judicial officer retains the
discretion to apply the Local Civil Rules in a manner consistent with the demands of the case.

LCvR 3.1

FILING FEE, BOND, SECURITY, PROHIBITED SURETIES, PAYMENT
OF FEES ELECTRONICALLY, AND REFUNDS

(a)

Filing Fee and Cost Bond. When a party commences or removes an action to this

Court, the party must pay a filing fee in such amount as established by law. In a civil case
commenced in this Court, no bond, or cash deposit in lieu of such bond, as security for costs is
required except on motion and for good cause shown.
(b)

Security. Bonds or other securities shall be allowed and taken with security, or one

or more securities, as provided by the federal statutes or the Federal Rules of Civil 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.
(c)

Prohibited Sureties. Neither counsel of record, administrative officers, Court

employees, nor the United States Marshal or the Marshal’s deputies or assistants, may act as surety
in any suit, action, or proceeding in this Court, except by leave of the Court.
(d)

Payment of Filing and Other Fees Electronically. Where the Federal Rules of

Civil Procedure or the Local Rules of this Court require payment of filing, admission, special
5

admission, or other fees, such may be accomplished through secure electronic means as established
by the Clerk of Court.
(e)

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

order or where the payment was made in error.
(1)

Refunds by the Clerk of Court for Erroneous Payments. The Clerk of

Court (or the Clerk’s designee) may, in their discretion and without a Court order, refund fees
accepted in error.

Examples are duplicate payments, payments to the wrong district,

overpayments, and payments made in error by attorneys through the Electronic 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 payment amount, the case in which the
payment was made, and the nature of the error. Such requests may be submitted by accessing the
Court’s internet website and clicking on the “Contact Us” tab. 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 payment refunds that were not made

in error by the payor will ordinarily be referred to the presiding judge. Such refunds will be made
only at the direction of the Court.
(3)

Refunds Where Payee Has an Outstanding Balance. The Clerk of 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,
6

including Court regulations governing the Electronic Payment System.
(2)

Conventional Payments. As to conventional payments received through

the mail or by the Clerk of Court, the Clerk of Court will attempt 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 Section (e).

LCvR 4.1.1

SERVICE OF SUMMONS AND COMPLAINT

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

LCvR 4.2

PUBLICATION OF NOTICE BY THE UNITED STATES IN CIVIL
FORFEITURE ACTIONS

In any civil judicial forfeiture case filed in this district, unless otherwise required by statute,
rule, or specific order of this Court, the government may satisfy its requirement of publication of
notice through 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 4.3

(a)

WAIVER OF SERVICE UPON CURRENT AND FORMER NORTH
CAROLINA DEPARTMENT OF PUBLIC SAFETY EMPLOYEES
IN CIVIL RIGHTS ACTIONS FILED BY NORTH CAROLINA
STATE PRISONERS
Waiver of Service of Complaint and Summons. When the Court allows any

portion of a state prisoner’s civil rights case to proceed past initial review under 28 U.S.C. § 1915,
7

the Clerk of Court shall prepare and file requests for waiver of service for all remaining defendants
who are current or former employees of the North Carolina Department of Public Safety
(“NCDPS”) and transmit electronic copies of the requests for waiver of service and the Complaint
to an e-mail inbox designated by the NCDPS. By 5:00 p.m. the following business day, an NCDPS
employee shall acknowledge receipt of the transmission by a return e-mail.
(b)

Response to Requests for Waiver by the NCDPS. The NCDPS shall have sixty

(60) days from the filing of the request for waiver of service to accept or refuse service of process
upon the NCDPS employee. The NCDPS must undertake a good-faith effort to further identify
the named or intended defendants where needed and to procure defendants’ signatures on the
waivers of service.
(c)

Filing of the Waiver of Service. When the NCDPS has obtained a defendant’s

waiver of service, the NCDPS or the North Carolina Attorney General must file the waiver with
the Court, under seal if necessary.
(1)

Time to Answer or Otherwise Respond Where Waiver Obtained and Filed.

Any defendant for whom a waiver of service has been filed shall have sixty (60) days from the
date of the filing of the waiver to answer or otherwise respond to the Complaint.
(2)

Procedure Where Waiver Not Obtained and Filed. Where the NCDPS

cannot procure a defendant’s waiver of service for any reason, such as when a defendant is no
longer an NCDPS employee, within the time provided by LCvR 4.3(b), the NCDPS or the North
Carolina Attorney General must file a response that either provides the Court with the full name
and last known address of the defendant, or informs the Court that no such address is available and
describes the NCDPS’s efforts to obtain the information. The NCDPS or the Attorney General
8

may provide the information under seal if required by state or federal privacy laws, and the Court
will disclose the information only to those engaged in providing service of process.
Advisory Committee Notes
This Rule is a joint effort between this district and the North Carolina Attorney General
and mirrors similar provisions in the Eastern District of North Carolina. It is designed to
streamline service of process on current and former state employees in prisoner litigation,
resulting in substantial savings to the taxpayer in U.S. Marshal Service fees and more rapid
disposition of cases.

LCvR 5.2.1

(a)

FILING OF PAPERS, FILING OF REDACTED PLEADINGS, AND
PRESENTING JUDGMENTS, ORDERS, AND COMMUNICATIONS TO
JUDGES
Place of Conventional Filing, when Allowed. Where conventional filing is

permitted by the Administrative Procedures or by the assigned judge, all papers may be filed in
Asheville, Charlotte, or Statesville, regardless of the division in which the case is pending.
(b)

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. Such proposed documents may be submitted through Cyberclerk,
or alternatively 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 6.1
(a)

SEALED FILINGS AND PUBLIC ACCESS
Scope of Rule.

To further openness in civil case proceedings, there is a

presumption under applicable common law and the First Amendment that materials filed in this
9

Court will be filed unsealed. This Rule governs any party’s request to seal, or otherwise restrict
public access to, any materials filed with the Court or used in connection with judicial decisionmaking. As used in this Rule, “materials” includes pleadings and documents of any nature and in
any medium or format.
(b)

Filing under Seal. No materials may be filed under seal except by Court order,

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 party’s request to file

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

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

(2)

A statement indicating why sealing is necessary and why there are no

alternatives to filing under seal;
(3)

Unless permanent sealing is sought, a statement indicating how long the

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

Supporting statutes, case law, or other authority.

To the extent the party must disclose any confidential information in order to support the motion
to seal, the party may provide that information in a separate memorandum filed under seal.
(d)

Filing of an Unredacted Copy Allowed. The party seeking to file material under

seal may submit an unredacted version of the material under seal for review by the Court along
with the motion to seal.
10

(e)

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

determined without reasonable public notice. Notice is deemed reasonable where a motion is filed
in accordance with LCvR 6.1(c). Other parties, intervenors, and non-parties may file objections
and briefs opposing or supporting the motion within the time provided by LCvR 7.1 and may move
to intervene under Fed. R. Civ. P. 24. Where the Court acts before the response, any party or nonparty may move to unseal at any time.
(f)

Orders Sealing Documents. When addressing motions to seal, the Court must

consider alternatives to sealing. If the Court determines that sealing is necessary, it will state its
reasons with findings supporting its decision. The Court will also specify whether the sealing is
temporary or permanent, and also may redact such orders in its discretion.
(g)

Filings Subsequent to Entry of an Order Sealing Documents. After entry of an

order permitting a filing under seal, materials filed pursuant to that order must be filed with a nonconfidential description of the materials filed.
(h)

Motions to Unseal. Nothing in this Rule limits the right of a party, intervenor, or

non-party to file a motion to unseal material. Such motion must state why the material should be
unsealed and any change in circumstances warranting unsealing.
(1)

Case Closing. Unless permanent sealing was ordered by the Court, any

sealed case file or documents may be subject to unsealing by the Court upon the closing of the
case.
(2)

Access to Sealed Documents. The Clerk of Court may provide access to

documents and cases under Court seal only pursuant to Court order.
(i)

Impact on Designation of Confidential Materials. Nothing in this Rule limits the
11

parties’ ability, 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. 26(c) for a protective order governing such
materials.
Advisory Committee Notes
The Local Rules governing sealed filings have been reworked to ensure compliance with
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) and its progeny, including In re
Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). The language concerning the
presumption under the common law and First Amendment was inserted in the text in light of
Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989), which recognizes that the qualified
common law right of access to judicial documents includes notice and opportunity to object to the
sealing of public documents. The decision to seal documents must be made “after independent
review by a judicial officer, and supported by findings and conclusions specific enough for
appellate review.” Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005)
(citation and corresponding quotation marks deleted).

LCvR 7.1

(a)

MOTIONS IN CIVIL CASES, BRIEF REQUIREMENTS, EXHIBIT
NUMBERING, PAGE LIMITS, AND PROPOSED ORDERS
Motions in Writing. Unless made during a hearing or trial, all motions must be

written and filed as provided by LCvR 5.2.1 and must state with particularity the grounds for the
motion and the relief or order sought. Motions ordinarily will be ruled on without oral argument.
(b)

Requirement of Consultation. Civil motions must show that counsel have

conferred and attempted in good faith to resolve areas of disagreement, or describe the timely
attempts of the movant to confer with opposing counsel. A motion that fails to show that the
parties have properly conferred or attempted to confer may be summarily denied. Consultation is
not required for: (1) dispositive motions; (2) motions where the moving party is represented and
the non-moving party is unrepresented; or (3) motions for an extension of time to file a responsive
pleading to a complaint, counterclaim, crossclaim, or any other initial petition for relief.
12

(c)

Requirement of Briefs. A brief must be filed contemporaneously with the motion,

except no brief is required to support timely motions for admissions pro hac vice, extensions of
time, continuances, or early discovery. Supporting exhibits must be attached as appendices as
specified in the Administrative Procedures. Factual contentions must be supported as specifically
as possible by citation to exhibit number and page.
(1)

Motions Contained in Initial Responsive Pleadings. Motions to dismiss in

answers to complaints, replies to counterclaims, or answers to crossclaims are deemed to be made
merely to preserve the issue and will not be addressed by the Court. A party seeking a decision
on any preserved motion must file a separate motion and supporting brief.
(2)

Motions Not to Be Included in Responsive Briefs. Motions shall not be

included in responsive briefs. Each motion must be set forth as a separately filed pleading.
(3)

Exhibits Must Be Numbered and Filed as a Separate Attachment. All

exhibits, and all pages within an exhibit, must be numbered before filing. Each exhibit must be
filed as a separate attachment to the pleading it supports. Exhibits previously filed may be
incorporated into any other pleading by reference to the docket entry, exhibit number, and page.
(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 or in the Case Management Order entered in the particular matter. Absent such
requirements in the Standing Civil Order or the Case Management 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
13

to motions must be filed within fourteen (14) days of the date on which the motion is served. A
reply to the response to a motion, if any, must be filed within seven (7) days of the date on which
the response is served. 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, the party must
promptly inform the Court and opposing counsel in a filed notice.

Surreplies are neither

anticipated nor allowed by this Rule, but leave of Court may be sought to file a surreply when
warranted.
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. Examples of such actions include, but are not limited
to, Social Security disability and Supplemental Security Insurance benefit actions and ERISA
claims. Where a Scheduling Order is entered, the Scheduling Order preempts the briefing
requirements in LCvR 7.1(e).
(f)

Continuance Motions. A motion seeking continuance of a hearing or trial must be

filed promptly upon counsel learning of the need for same.
(g)

Proposed Orders. Proposed orders are not required, unless otherwise ordered by

the Court. If directed to provide a proposed order, parties must submit the order through
Cyberclerk and serve the proposed order on all parties.
(h)

Electronic Format for Briefs, Motions, and Pleadings. Briefs, motions, and

pleadings must be filed in a PDF readable format, rather than an electronically copied format,
whenever possible.
(i)

Notice to Official Court Reporter for Certain Proceedings. Where a party knows
14

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 must, before
the hearing, notify the Official Court Reporter serving such judicial officer of the need.
(j)

Citation of Supplemental Authority. If pertinent and significant authorities come

to a party’s attention after the party’s final brief has been filed and before a decision has been
rendered, a party must promptly advise the Court by filing a Notice of Supplemental Authority
setting forth the citations to such authorities.

The notice must state the reasons for the

supplemental citations, referring either to the page of the brief or to a point argued orally, but shall
not contain any further argument. The notice must not exceed two pages and any response must
be made promptly and is similarly limited.
Advisory Committee Notes
Changes to sections (a) through (i) of this Rule are not substantive. The language of these
sections has been amended as part of a general restyling of the Local Rules to make them more
easily understood and to make style and terminology consistent throughout the Rules. Section (j)
is a new Rule intended to mirror FRAP 28(i), which provides the appellate procedure for noticing
supplemental authority.

LCvR 7.2
(a)

SOCIAL SECURITY CASES
The plaintiff must file a Motion for Summary Judgment and supporting

Memorandum of Law on or before the date to be set in the Social Security Scheduling Order
entered in the case.
(b)

The plaintiff’s Memorandum of Law must provide the following information and

be organized as follows:
15

(1)

Summary of Case. The first section of the Memorandum must, in no more

than two pages, provide the following information: the medical condition(s) causing the claimed
disability; the alleged onset date for the claimed disability; the name and specialty of the plaintiff’s
treating physician(s) and citations to the record pages of relevant evidence from such treating
physician(s); the plaintiff’s date of application for benefits; the specific type of benefits sought
(e.g., Title II, Title XVI, Childhood); the date the plaintiff was last insured (if applicable); the
plaintiff’s age, level of education, and work history; the step of the sequential evaluation process
at which the ALJ denied the claim(s); citations to the record pages where the alleged errors of the
ALJ are to be found; the identity of the physician where the plaintiff contends that the ALJ failed
to give proper weight to such physician’s opinion, identifying that physician’s specialty and
whether such physician was a treating, consulting, or reviewing physician, and providing citation
to the record pages where such opinion is set forth; and the specific relief requested.
(2)

Procedural History. The second section of the Memorandum must briefly

set forth the case’s procedural history.
(3)

Standard of Review and Relevant Law.

The third section of the

Memorandum must set forth the standard of review and federal statutes, regulations, and case law
relevant to the issues presented for review.
(4)

Issues Presented. The fourth section of the Memorandum must succinctly

list the issues presented for review, separately identifying and enumerating each alleged error of
the ALJ.
(5)

Argument.

The fifth section of the Memorandum must set forth the

plaintiff’s arguments in separate subsections that address each issue and alleged error presented
16

for review.
(6)

Conclusion and Relief Requested. The final section of the Memorandum

must set forth a brief conclusion and a statement of the specific relief requested.
(c)

The Commissioner must file a Motion for Summary Judgment and supporting

Memorandum of Law on or before the date set by the Social Security Scheduling Order entered in
the case.
(d)

The Commissioner’s Memorandum of Law must provide the following information

and be organized as follows:
(1)

Summary of the Case. The first section of the Memorandum must, in no

more than two pages, summarize why the plaintiff’s appeal should be denied or otherwise
summarize how the Commissioner applied the correct legal standards and how substantial
evidence supports the Commissioner’s decision.
(2)

Procedural History. The second section of the Memorandum must briefly

set forth the case’s procedural history.
(3)

Standard of Review and Relevant Law.

The third section of the

Memorandum must set forth the standard of review and federal statutes, regulations, and case law
relevant to the issues presented for review.
(4)

Argument. The fourth section of the Memorandum must, seriatim, address

the separate issues and arguments advanced by the plaintiff.
(5)

Conclusion and Relief Requested. The final section of the Memorandum

must set forth a brief conclusion and statement of the specific relief requested.
(e)

The plaintiff shall be permitted one Reply brief to be filed fourteen (14) calendar
17

days after the Commissioner has submitted its Motion for Summary Judgment and Memorandum
of Law. Such Reply shall be limited to five pages and may only address issues raised for the first
time in the Commissioner’s Motion and Memorandum.
(f)

The matter shall be decided on the cross Motions for Summary Judgment and the

plaintiff’s Reply (if applicable), supporting briefs, and review of the Administrative Record. Oral
arguments are not anticipated or allowed unless otherwise ordered by the Court.
(g)

If not specifically covered by this Rule, all briefs must comply with this Court’s

Local Rules, including, but not limited to, the font size and page limitations in LCvR 7.1(d).

Advisory Committee Notes
This new Rule incorporates the interim rules governing Social Security cases put in place
by way of a Standing Order, 3:13mc198. That Standing Order, in turn, was prompted by concern
from the Civil Division of the USAO as to lack of uniformity in appeals, making it difficult for
SAUSAs to discern the issues raised on appeal by claimants. In reducing the Standing Order to a
Local Rule, the Local Rules Subcommittee has been faithful to the substance of the original order,
but has attempted to restyle the language to make the Rules more easily understood by attorneys.
The language has been further edited to make style and terminology consistent throughout the
Rules.

LCvR 16.1

(a)

PRETRIAL CONFERENCES, INITIAL ATTORNEY’S CONFERENCE,
JOINT STIPULATION OF CONSENT TO UNITED STATES
MAGISTRATE JUDGE JURISDICTION, AND INITIAL PRETRIAL
CONFERENCE
Initial Attorney’s Conference. As soon as 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 must confer as provided by Fed. R. Civ. P. 26(f) and conduct an “Initial Attorney’s
Conference” (“IAC”). Counsel must also discuss at the IAC each party’s willingness to consent
18

to jurisdiction of the United States Magistrate Judge. See LCvR 73.1(c). Where the parties believe
the filing of an amended complaint or other amended initial pleading justifies changing the
Scheduling Order, the parties must conduct a supplemental attorney’s conference and file an
appropriate motion with the Court.
(b)

Deadline for Filing the Certificate of Initial Attorney’s Conference. Within seven

(7) days of the IAC, the parties must file the Certificate of Initial Attorney’s Conference which
must include a proposed discovery plan. The Certificate of Initial Attorney’s Conference will
serve as a guideline for the Court in issuing a Scheduling Order as provided by Fed. R. Civ. P.
16(b). Parties stipulating out of, or objecting to, the mandatory initial disclosure procedure under
Fed. R. Civ. P. 26(a)(1) must so indicate in the discovery plan.
(c)

Filing of Joint Stipulation of Consent to United States Magistrate Judge

Jurisdiction. Where all parties consent to the jurisdiction of a United States Magistrate Judge, the
Joint Stipulation of Consent to Exercise of Jurisdiction by a United States Magistrate Judge must
be filed either with the Certificate of Initial Attorney’s Conference as provided in LCvR 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 Rules, “joinder of the

issues” occurs when the final answer to a complaint, third-party complaint, or crossclaim or the
final reply to a 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 the Court
resolves such motions. Where a party files a motion to dismiss fewer than all claims and files an
Answer as to the remaining claims, the Court in its discretion may consider issues joined.
19

(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 before removal or transfer, the parties must conduct an Initial Attorney’s
Conference (“IAC”) in this district and file the Certificate of Initial Attorney’s Conference within
the time provided by Section (a). The time to do so is 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

before removal or transfer, Section (d) applies. With the exception of consensual discovery and
Rule 34 requests as set forth in Fed. R. Civ. P. 26(d)(2), official Court-enforceable discovery does
not commence until issuance of a Scheduling Order in this district. Where non-Rule 26(d)(2)
discovery requests remain outstanding or a Scheduling Order was entered by the transferor district,
such obligations are stayed pending entry of a new Scheduling Order in this district. The parties
must bring the need for a new Scheduling Order to the attention of the Court by filing a motion.
This provision does not, however, affect the admissibility and use of evidentiary material produced
before transfer or removal.
(f)

Early Discovery. The parties may engage in consensual discovery at any time.

However, Court-enforceable discovery does not commence until issues have joined and a
Scheduling Order has been entered, with the exception that early Rule 34 requests may be used
pursuant to Fed. R. Civ. P. 26(d)(2). A party seeking early Court-enforceable discovery may file
a motion for leave to take early discovery stating the reasons therefor.
memorandum is required.
20

No supporting

(g)

Initial Pretrial Conference. The parties may request an Initial Pretrial Conference

in the proposed discovery plan. Unless otherwise directed by a United States District Judge,
United States Magistrate Judges preside over Initial Pretrial Conferences. Counsel for all parties
must personally appear unless the judicial officer conducting the conference allows them to appear
by telephone. The Court will schedule the Initial Pretrial Conference within fourteen (14) days
after receiving the proposed discovery plan, unless the judicial officer conducting the conference
deems otherwise appropriate.
Unless otherwise directed by a United States District Judge, a United States Magistrate
Judge will issue the Scheduling Order in each case and manage the pretrial activity through direct
involvement in the establishment, supervision, and enforcement of the Scheduling Order and other
applicable rules of procedure. Matters considered during the Initial Pretrial Conference may
include, but are not limited to: consent to United States Magistrate Judge jurisdiction; discovery
guidelines and deadlines; Rule 26 disclosures; interrogatories and requests for admission;
maintenance of discovery material; video depositions; protective orders; motions deadlines;
motions hearings; responses to motions; trial subpoenas; counsel’s duties before trial; the trial date;
proposed jury instructions; exhibits; mediation; and production of electronically stored
information (“ESI”).
Advisory Committee Notes
Changes to this Rule are intended to bring the Local Civil Rules into conformity with the
2015 Amendments to the Federal Rules of Civil Procedure. In Section (e), the Local Rules Civil
Subcommittee conformed our Local Rules, which generally speak to Court-enforceable discovery
not commencing until issues have joined and a scheduling order issued, to the provisions of the
federal amendments which allow certain discovery requests to be served with the complaint. The
Rule revises but retains language providing for consensual discovery at any time. The 2015
Amendment to Fed. R. Civ. P. 16(b)(3)(B)(V), which provides for first attempting to resolve
21

discovery disputes by conference with the Court, has not been included in this provision, as the
Federal Rule specifically directs that such requirement be placed in the Scheduling Order. The
Local Rules Advisory Committee recommends that each judge place such a requirement in their
respective Scheduling/Pretrial Orders.

LCvR 16.2
(a)

MEDIATION OR ALTERNATIVE DISPUTE RESOLUTION (“ADR”)
Mandatory Mediated Settlement Conference. All parties to a civil action must

attend a mediated settlement conference, unless otherwise ordered by the Court. A mediated
settlement conference is a pretrial, Court-ordered (by Local Rule) conference of the parties to a
civil action and their representatives conducted by a mediator. The procedure for the conference
is provided in LCvR 16.3. The Court maintains a non-exclusive list of Court-approved mediators.
(b)

Cases Not Suitable For ADR. The rules for mandatory ADR do 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 a party’s motion, that any other case is not suitable
for ADR, in which case no ADR procedure will be ordered.

LCvR 16.3
(a)

RULES APPLICABLE TO MEDIATION OR ADR
Time for Proceeding. The Court favors the use of ADR, ordinarily in the form of

a mediated settlement conference, for the efficient and orderly resolution of civil cases.
Accordingly, in the Certificate of Initial Attorney’s Conference, the parties must indicate their
opinion(s) regarding the usefulness of ADR, the preferred method of ADR, and the most
advantageous time to commence ADR. If the parties fail to submit, or cannot agree on, a proposed
ADR method, a mediated settlement conference will be selected as the default. The presiding
22

United States Magistrate Judge or other judicial officer will, in the Scheduling Order or an ADR
Order issued shortly thereafter, select the ADR method and schedule the deadline for its
completion after considering counsel’s responses in the Certificate of Initial Attorney’s
Conference.
(b)

Rules for Proceeding. Upon entry of an ADR Order, the case shall proceed as

follows:
(1)

Rules Governing Mediation.

If a mediated settlement conference is

ordered, it 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-38.1 (the “Mediation Rules”), and by these Local Rules.
(A)

Interpretation of State Court Terms. Where the Mediation Rules

refer to “Senior Resident Superior Court Judge” and “Administrative Office of the Court,” this
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 a facility as 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 the Mediation Rules, these Local
Rules, and by such other procedural rules submitted by the parties and approved by the judicial
officer. In addition to rules regarding the actual proceeding, the rules submitted by the parties
must include provisions setting a deadline for completion of the proceeding; the location of the
proceeding; pre-proceeding submissions; and the method for selecting and compensating a
23

mediator, evaluator, or other neutral person to preside over the proceeding.
(3)

Impact on Federal Law. Nothing in this Local Rule overrides 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 a

party’s motion, permit exceptions or deviations from the Mediation Rules or these Local Rules.
(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. No record shall be made of any ADR proceedings.

(2)

Attendance. All mediated settlement conferences must 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 must be issued within seven (7) days of the conclusion of the Mediated Settlement
Conference. The mediator may submit the report on a report form provided by the Clerk of Court,
or by using the mediator’s own letterhead or individually developed mediation report form. The
mediator may file the report electronically or by conventional means.
(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 Effect

Settlement. A person with full authority to settle all pending claims must attend the settlement
24

conference and, for purposes of this Rule, the “person with full authority to settle” shall not be the
attorney. Recognizing that governmental entities may not be able to comply with such requirement,
government attorneys must bring as much binding authority to settle as is feasible under the
circumstances. Telephonic attendance by a representative with full settlement authority may be
permitted by the Court on a case-by-case basis.
(3)

Presiding Judicial Officer. Usually, 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. The judicial officer to whom the case is assigned
for disposition may, in such judicial officer’s discretion, preside over such conference.

LCvR 16.4
(a)

PRO SE SETTLEMENT ASSISTANCE PROGRAM
Purpose of the Program. The purpose of the Pro Se Settlement Assistance

Program (“Program”) is to assist the just, speedy, and inexpensive determination of civil actions
and proceedings by providing civil pro se litigants with limited advice and representation at
expedited settlement conferences.
(b)

Scope of the Program. The Program is available for voluntary application to all

civil cases in which any party appears pro se, except:
(1)

Cases in which the pro se party is a prisoner or pretrial detainee;

(2)

Cases filed under 28 U.S.C. § 2254 or § 2255;

(3)

Bankruptcy appeals;

(4)

Social Security cases;

(5)

Appeals from rulings of administrative agencies; and
25

(6)

Cases involving forfeitures of seized property.

Application to the Program is not intended to, does not, and may not be relied on to create any
rights, substantive or procedural, enforceable at law by any party in any civil matter. Furthermore,
application to the Program does not guarantee participation in the Program.
(c)

Opt-In Notice Following Joinder of Issues. Upon the joinder of issues within the

meaning of LCvR 16.1, the Clerk’s Office will send the pro se litigant a Notice of Availability of
Pro Se Settlement Assistance Program (“Opt-In Notice”) to inform the pro se litigant that the
matter is eligible for the Program.
(1)

The pro se litigant shall have fourteen (14) days from receipt of the Opt-In

Notice to opt into the Program (“Opt-In Period”) by marking the Opt-In Notice where indicated
and returning it to the Clerk's Office. The deadline for conducting an Initial Attorney’s Conference
(“IAC”) is tolled during the Opt-In Period. Requests for extension of the Opt-in Period are
discouraged but may be considered on a case-by-case basis.
(2)

If the pro se litigant either expressly opts out of the Program or does not

respond to the Opt-In Notice within the Opt-In Period, the case will not be admitted into the
Program and a regular IAC notice will be issued, advising the parties that an IAC must be
conducted.
(3)

If at any time the presiding judge finds in the judge’s sole discretion that

participation in the Program for a particular case will not serve the Program’s purpose or that the
Program is not appropriate under the circumstances of a particular case, the presiding judge will
notify the parties and a regular IAC notice will be issued, advising the parties that an IAC must be
conducted.
26

(4)

For all cases admitted into the Program, the parties and Court should follow

the procedures set forth in the documents governing the Pro Se Settlement Assistance Program,
found on the Court’s website.
Advisory Committee Notes
This new Rule incorporates the substantive provisions of the pilot Pro Se Settlement
Assistance Program sponsored in part by the Western District Federal Bar Association.

LCvR 26.1

COMMENCEMENT OF DISCOVERY

Subject to the exception for Rule 34 requests as set forth in Fed. R. Civ. P. 26(d)(2), official
Court-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).

Advisory Committee Notes
Changes to this Rule are intended to bring the Local Civil Rules into conformity with the
2015 Amendments to the Federal Rules of Civil Procedure. The revisions are made in tandem
with those made to LCvR 16.1.

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) the materials are needed for an in-Court proceeding;
or (3) the materials are filed to support or oppose a motion or petition.
27

Materials filed to support or oppose a motion or petition shall be labeled as an “Appendix”
or “Attachment” thereto and shall be limited to those portions of the material directly necessary to
support or oppose the motion or petition. All such materials 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 preserving and delivering the material to the Court if needed or so ordered.

LCvR 42.1

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.
Advisory Committee Notes
This Rule was relocated from former LCvR 5.2.1(d) to better correspond with the Federal
Rule governing consolidation.

LCvR 45.1

(a)

PRODUCTION OF SUBPOENAED MATERIAL BY CERTAIN NONPARTIES, CUSTODIANS OF RECORDS
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 may, in lieu of a personal appearance, tender to the Clerk of 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
28

effect.
(b)

Custodians of Medical Records. Where a subpoena commands the custodian of

medical 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 Clerk of Court, by
certified mail or 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

maintained in electronic format should, if readily retrievable, be submitted in electronic format.
Certification of copies of such electronically provided records may be accomplished by
appropriate affidavit in the same manner as described in the preceding paragraphs.
(d)

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

not be inspected or copied by any persons, except the parties and their attorneys, unless ordered
published by the judge at the time of the hearing or trial. Nothing contained herein shall be
29

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 the patient’s
written consent, 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 must stamp the first page or cover sheet of any such material as
“Received,” and place the materials in an official Court envelope or other container indicating that
the materials are sealed. The Clerk of Court must bring such filing to the Court’s attention at an
appropriate time in the proceedings.
Unless such materials are made part of the record, the Clerk of Court may destroy the
materials 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 45.2

NOTICE OF DOCUMENT SUBPOENA TO NON-PARTY

A notice of the issuance of a document subpoena to a non-party and a copy of the subpoena,
30

as required by Fed. R. Civ. P. 45(a)(4), shall be served on all other parties at least three (3) calendar
days before the date on which the subpoena is served on the non-party. This notice period may be
altered by agreement of the parties or order of the Court.
Advisory Committee Notes
This new Rule is intended to avoid surprise and allow opposing counsel an opportunity to
move to quash non-party subpoenas before they are served, resulting in more cost-effective
litigation. Fed. R. Civ. P. 45(a)(4), while requiring notice, does not provide a specific time frame
for serving the notice, resulting in some cases of nearly simultaneous service of opposing counsel
and the third-party custodian of documents. The Local Rule provides that such notice be served
on other parties at least three days before service of the subpoena.

LCvR 47.1
(a)

CONTACT WITH JURORS BEFORE TRIAL AND DURING VOIR DIRE
Juror Information.
(1)

Disclosure to Case Participants. When jurors are drawn for a term of

Court, counsel of record is entitled to 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 the questionnaires will also be made available to counsel. Depending on the needs of the case,
such disclosure shall be made when 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 Court order. A request for disclosure shall be made to the presiding judge.
(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
31

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 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 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
(a)

TAXATION OF COSTS OTHER THAN ATTORNEY FEES
Filing Bill of Costs. A prevailing party may request the Clerk of Court to tax

allowable costs, other than attorney fees, in a civil action as a part of a judgment or decree by 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)

Filing of the Bill of Costs. The original bill of costs must be filed with the Clerk

of Court, with copies served on adverse parties.
32

(c)

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

constitutes 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 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 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 filing a motion within seven (7) days after entry of the Clerk of Court’s
order. 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:
(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 or other securities;

(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
33

counsel;
(5)

Costs associated with private process servers;

(6)

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

(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:
(1)

Multiple copies of depositions;

(2)

daily, expedited, real time, or hourly copies of transcripts, unless prior Court

approval has been obtained;
(3)

Attorney fees and attorney travel expenses;

(4)

Costs of shipping/mailing transcripts;

(5)

Costs for computer-aided legal research including paralegal charges and

computerized indices or optical discs produced for counsel’s benefit;
(6)

Costs associated with mediation;

(7)

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

(8)

Pro hac vice fees;

(9)

Costs for extraction and/or electronic configuration of data (e-mails) for the

convenience of counsel absent any agreement among the parties pertaining to these costs;
(10)

Costs associated with condensing a transcript, putting transcripts on a

diskette, or providing E-transcripts in addition to counsel receiving the original transcript;
(11)

Expert or witness hourly or appearance or consultation fees for attending a

deposition, hearing, or trial other than that authorized by statute or Court order;
34

(12)

Travel time for expert or witnesses other than that authorized by statute or

(13)

Costs associated with videoconferences of meetings, conferences, or

Court order;

depositions other than the direct cost of the original videotape/electronic record of a deposition
and the appearance fee of a videographer in lieu of the costs of a transcript of the deposition; and
(14)
(h)

Fees associated with researching potential jurors.

Costs in Settlements. The Clerk of 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 bears its own costs.
(i)

Payment of Costs.

Costs are to be paid directly to the party entitled to

reimbursement, not to the Clerk of Court.

LCvR 67.1
(a)

REGISTRY FUNDS
Court Registry Investment System. In accordance with Internal Revenue Service

(“IRS”) regulations, the Court has in place a Court Registry Investment System (“CRIS”). In
compliance with those regulations, the following Rules govern the deposit, investment, and
withdrawal of funds deposited into CRIS.
(b)

When Deposits Permitted. No funds shall be submitted to the Clerk of Court for

deposit without the depositor first obtaining an order by a judge in the case or proceeding
permitting such deposit.
(c)

Manner of Making Deposit. When making a deposit or transferring funds to CRIS,

the depositor must serve the Clerk of Court and the Court’s Financial Section with a copy of the
35

order allowing such deposit.
(d)

Duties of the Clerk of Court. Unless otherwise provided in this Rule, the Clerk of

Court must, in turn, deposit funds received with the Treasurer of the United States in the name and
to the credit of this Court through depositories designed by the Treasury to accept such deposits,
all in accordance with 28 U.S.C. § 2041.
(1)

Placement in Interest-bearing Accounts or Instruments. When by Court

order made in accordance with Fed. R. Civ. P. 67, funds are directed to be placed in an interestbearing account or invested in a Court-approved, interest-bearing instrument, the Clerk of Court
satisfies the order by placing the funds into CRIS, which is administered by the Administrative
Office of the United States Courts (“AO”). CRIS is the only investment or interest-bearing account
mechanism authorized.
(2)

Placement of Interpleader Funds. When deposited in accordance with 28

U.S.C. § 1335, interpleader funds are deemed Disputed Ownership Funds (“DOF”) in accordance
with the applicable IRS definition. Unless the Court orders otherwise, the Clerk of Court must
deposit interpleader funds in the DOF account established within CRIS.

Because the AO

administers CRIS, the AO is responsible for meeting all DOF tax administration requirements.
(e)

Duties of the Administrative Office. The Director of the AO is designated as the

Custodian for all CRIS funds, and the Director and/or his or her designee shall perform the duties
of Custodian. Funds held in CRIS remain subject to this Court’s control and jurisdiction.
(1)

Investment of CRIS funds. Funds deposited in CRIS shall be pooled with

other CRIS funds on deposit with the Treasury from other courts and in other cases and used to
purchase Government Account Series securities through the Bureau of Public Debt.
36

Such

securities shall be held by the Treasury in an account in the name and to the credit of the Custodian.
Pooled funds shall be invested in accordance with the principles of the CRIS Investment Policy as
approved by the Registry Monitoring Group.
(2)

Creation of Accounts for Deposited Funds. For each case giving rise to a

deposit invested in pooled funds, an account will be established in that case’s name. Income
generated from the investments of pooled funds shall be distributed to each account based on the
ratio of each account’s principal and earnings to the aggregate principal and income total in the
fund after applying the CRIS fee. Reports showing the interest earned and the principal amounts
contributed in each case will be prepared and distributed to each court participating in the CRIS
and made available to litigants and/or their counsel.
(3)

Creation of Accounts for DOF Funds. For each interpleader case, an

account shall be established in the CRIS DOF in that case’s name. Income generated from the
investment of DOF funds will be distributed to each account after the DOF fee has been applied
and tax withholdings have been deducted. Reports showing the interest earned and the principal
amounts contributed in each case will be prepared and made available through the FedInvest/CMS
application to each court participating in the CRIS and made available to litigants and/or their
counsel. On appointment of an Administrator authorized to incur expenses on behalf of the DOF
in a case, the case DOF funds should be transferred to another investment account as directed by
Court order.
(f)

Court Authorization of the Custodian. The Court authorizes the Custodian, as

follows:
(1)

Deduction of CRIS Fee. For management of the investments in CRIS, the
37

Custodian is authorized and directed to deduct the CRIS fee, which shall be comprised of an
annualized ten (10) basis points on assets on deposit for all CRIS funds, excluding the case funds
held in the DOF. In accordance with the Miscellaneous Fee Schedule, the CRIS fee is assessed
from interest earnings of the pool before a pro rata distribution of earnings is made to court cases.
(2)

Deduction of DOF Fee. For management of the investments and tax

administration in the DOF funds, the Custodian is authorized and directed to deduct the CRIS fee,
which shall be comprised of an annualized ten (10) basis points on assets on deposit for all CRIS
funds, excluding the case funds held in the DOF. In accordance with the Miscellaneous Fee
Schedule, the CRIS fee is assessed from interest earnings of the pool before a pro rata distribution
of earnings is made to court cases. The Custodian is also authorized and directed to withhold and
pay federal taxes due on behalf of the DOF.
(g)

Additional Provisions. The following additional provisions apply to Registry

Funds.
(1)

Existing Investments.

The Clerk of Court shall deposit all existing

investments into the CRIS account. Deposits to the CRIS DOF will not be transferred from any
existing CRIS funds. Only new deposits made pursuant to 28 U.S.C. § 1335 on or after December
1, 2016, will be placed in the CRIS DOF.
(2)

Opting Out of CRIS. Parties not wishing to have funds placed in the CRIS

fund may seek Court approval by filing a motion to have the funds transferred to or deposited with
the litigants or their designee; however, all funds on deposit with the Court shall be placed in the
proper CRIS fund.
(3)

Abrogation of Prior Orders and Rules.
38

This Rule, along with the

underlying Order (3:16mc205), abrogates all prior orders of this Court regarding deposit and
investment of registry funds.
Advisory Committee Notes
Changes to this Rule are consistent with the Court’s interim Standing Order applicable to
the Western District’s Registry Investment System Fund, In re Money Deposited into the Court
Registry Fund, 3:16mc205. The substantial revisions to this Rule are in compliance with Internal
Revenue Service Regulations, which appear designed to ensure proper tax administration of,
among other things, funds management in a Disputed Ownership Fund.

LCvR 72.1

(a)

AUTHORITY OF UNITED STATES MAGISTRATE JUDGES IN CIVIL
MATTERS, STANDING ORDERS OF REFERENCE
United States Magistrate Judges are Authorized and Designated to Exercise the

Following Functions and Duties Regarding Civil Actions in this 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 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 United States Magistrate Judge, and thereafter to submit to the
United States District Judge 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 on any dispositive motion in a case wherein

the parties have consented to the jurisdiction of the United States 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
39

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 United States District Judge to do so on a case-by-case basis;
(7)

To accept petit jury verdicts in civil cases in the absence of a United States

(8)

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

District Judge;

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);
(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 consistent 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 United States

District Judge may enter a Standing Order of Reference concerning the extent to which such
judge’s matters are referred to United States Magistrate Judges.

LCvR 73.1

(a)

TRIAL BY CONSENT BEFORE A UNITED STATES MAGISTRATE
JUDGE, INITIAL ASSIGNMENT OF CASES, DUTY OF PARTIES, AND
FAILURE TO FILE THE JOINT STIPULATION
Initial Assignment of Cases. All cases shall be initially assigned to a United States
40

District Judge.
(b)

Duties of the Proponent of the Litigation. The plaintiff or the removing party in a

removal action must serve the Case Assignment Notice, the Notice of Availability of a United
States 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 United States

Magistrate Judge jurisdiction at any time. The parties or their counsel must discuss the issue of
consent to the jurisdiction of a United States 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. If all parties consent, the executed Joint Stipulation of Consent to Exercise
of Jurisdiction by a United States Magistrate Judge form must be filed. The completed form must
be returned by the deadline established in LCvR 16.1(c).
(d)

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

the time provided, such failure is presumed to be a declination of consent.
(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 United States District Judge to whom the case is assigned.
(f)

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

parties are joined during litigation, the plaintiff or removing party must provide such parties with
the documents specified in Section (b). The new party must inform the Clerk of Court, in a notice
accompanying its first responsive pleading, whether the party consents to the United States
41

Magistrate Judge’s jurisdiction. Such notice of election must be communicated to the Clerk of
Court and not disclosed to the Court.
(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 Sections (a) through (f) otherwise apply to cases transferred from another federal
district.

LCvR 77.1

ORDERS AND JUDGMENTS THE CLERK OF COURT MAY GRANT

Pursuant to Fed. R. Civ. P. 77(c), the Clerk of Court, or any authorized Deputy Clerk within
the district, may grant and enter the following orders and judgments without further direction by
the Court, although the Court may suspend, alter, or rescind the orders and judgments for good
cause shown:
(1)

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. §195; and
(2)

orders waiving the filing fee or directing the inmate to pay a partial filing fee

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

42

LCvR 79.1

(a)

PRESENTATION, CUSTODY, AND DISPOSITION OF EVIDENCE,
MODELS, EXHIBITS, AND DEPOSITIONS
Presentation of Evidence.

Evidence must be presented in electronic format

through use of the presentation technology available in the courtroom to display evidence to the
jury and the Court. Requirements for courtroom technology training and the format of exhibits
can be found on the district court’s website at www.ncwd.uscourts.gov.
(b)

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

provided in Section (c), all trial exhibits admitted into 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 remain in the offering party’s custody,
including, but not 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 end of a trial or proceedings, the party offering the exhibits must retain custody and
preserve 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 must make the exhibits available to opposing
counsel for use in preparing an appeal and shall also be responsible for their safe transmission to
the appellate court, if required.
43

(d)

Disposition of Exhibits, Sealed Documents, and Filed Depositions by Clerk of

Court. Any exhibit, sealed document, or filed deposition in the Clerk 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 LCvR 6.1.
(e)

Depositions. Depositions read into the Court record are considered exhibits for

which the parties are responsible as provided in Section (c). Depositions 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).
LCvR 83.1

(a)

ATTORNEY ADMISSION AND ELIGIBILITY, ESTABLISHMENT OF AN
ECF ACCOUNT BEFORE ADMISSION, DEFINITIONS OF TYPES OF
ADMISSIONS
Eligibility for Regular Admission. Any attorney 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 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 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
44

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 candidate 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.
(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 of 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
45

Order of the judge to whom the case is assigned.
(2)

A motion seeking admission under this Rule must be submitted to the Court

upon the forms prescribed by this Court:
(A)

The motion must be filed by local counsel;

(B)

The motion must include the e-mail address of the attorney seeking

(C)

The motion must be accompanied by a District Application Fee plus

admission; and

the National Admission Fee established by the Judicial Conference of the United States.
(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, further participation
of such counsel is subject to compliance with this Court’s admission practices.
(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 before filing
any documents or cases in this district. To establish an ECF account, an attorney must complete
ECF training 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 the attorney’s ECF User ID issued upon establishment of the ECF account. For example,
where multiple attorneys, either in the same firm or different firms, represent a party, each attorney
must file an individual notice of appearance, using the attorney’s own User ID to receive electronic
46

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 must

file written consent of their client to their withdrawal, which shall become effective only upon
Court approval. Absent the client’s consent, withdrawal may be obtained by filing a motion to
withdraw, showing good cause for the withdrawal. The motion must include the client’s last
known address.
(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 compliance with the requirements set forth in this Rule. The judicial
officer considering the admission of any student may, however, make such exceptions to this Rule
as the judicial officer deems just and equitable.
(2)

Student Eligibility. An eligible student must:
(A)

Be duly enrolled in an accredited, provisionally accredited, or

(B)

Have completed at least half the required credit hours for a juris

(C)

Have a working knowledge of all applicable court rules, including

approved law school;

doctor degree;

47

but not limited to the Federal Rules of Civil and/or Criminal Procedure; the Federal Rules of
Evidence; the North Carolina Rules of Professional Conduct; and this Court’s Local Rules;
(D)

Be supervised by a supervising attorney, as defined herein;

(E)

Be certified by the dean of the law school (or the dean’s designee)

where the student is enrolled, as:
(i)

Being of good character;

(ii)

Possessing a sufficient legal ability; and

(iii)

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 the student may receive a stipend from a law
firm or other employer through an internship or clerkship program that is not contingent on
services provided to a client in this Court; and
(H)

Have completed ECF training in this district, or certify that they
have completed training in another federal district.

(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 before seeking admission of the

(C)

Have at least two years’ experience as a member of the Bar of this

student; and

48

Court, or
(i)

Maintain faculty, adjunct faculty, or fellowship status at a

law school where part of the supervisor’s duties includes supervising students in a clinical
program; or
(ii)

Have 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 Defender for the Western District of North Carolina, the
North Carolina Attorney General, or a tribal counsel for the Eastern Band of Cherokee Indians;
(D)

Be certified by the Court as having demonstrated the ability to

(E)

Be present with the student at all times while they are in court, and

supervise students;

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 the student’s work quality, and 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 the student’s oral or written work as needed to ensure

proper representation of the client.
(4)

Certification of Student and Supervisor after Completion of ECF
49

Training and Establishment of an ECF Account.
(A)

Student. The Court’s certification of a student to practice under this

Rule will be entered with the Clerk of Court and will remain in effect for eighteen (18) months or
until the student graduates from law school, whichever is earlier. The Court may at any time, in
its discretion and without cause, withdraw certification to appear generally or in a particular case.
To assist the Court in maintaining a list of students certified to practice under this Rule, the
supervising attorney must notify the Court of the student’s graduation from law school.
(B)

Supervising Attorney. The Court’s certification of the supervising

attorney will be entered with the Clerk of Court, and will 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 supervising attorney’s

supervision:
(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 attorney has given written approval of that appearance;
(B)

Represent a client in any criminal, civil, or administrative 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 the client’s behalf in all ways a licensed attorney may; however, a student shall make no binding
50

commitments on a client’s behalf, absent prior client and supervisor approval. The supervising
attorney must accompany the student in any matter involving the taking of testimony, including
depositions. The supervising attorney must read, approve, and co-sign documents filed by the
student. The Court may establish exceptions to such activities.
(6)

Scope of Participation Statement.

Before a certified student orally

participates in a hearing or trial, the supervising attorney must advise the Court of the scope of
anticipated participation.

LCvR 83.2
(a)

ATTORNEY DISCIPLINE AND DISBARMENT
Whenever an attorney who has been admitted to practice before the Court:
(i)

Has engaged in conduct a judge of this Court reasonably believes violates

the North Carolina Rules of Professional Conduct or any law or regulation; or
(ii)

Is disbarred or suspended from the practice of law in any court or by any

state bar, disciplinary board, or other state licensing agency,
a judge of this Court may enter an order immediately suspending that attorney from practice before
this Court or taking such other lesser action the Court deems appropriate. Upon entry of such
order, the attorney may within 40 days thereof file a response to the order and show cause as to
why the attorney’s admission to practice before this Court should not be revoked or the attorney
should not be subject to discipline, and may in such response request an opportunity to be heard.
The appropriate procedure for addressing such response shall be determined by the Board of

51

Judges. An appropriate order addressing the question of any discipline will be entered by the Court
after a vote of the Board of Judges.
(b)

This Rule in no way limits or otherwise affects the authority of a judge of this Court

to hold an attorney in contempt and award appropriate relief or otherwise impose appropriate
penalties, fines, or other sanctions.
(c)

This Rule does not apply to special, pro hac vice, or other limited admissions, which

may be revoked at any time by a judge in the case in which such admission was allowed.

Advisory Committee Notes
This new Rule is modeled on the United States Supreme Court’s attorney discipline rule,
but certain arcane language in the Supreme Court rule was modified and procedural protections
were explained in greater depth. Violations of Court orders and rules are covered in Section (b).
For the rare case where attorney discipline becomes an issue, the new Rule is intended to
provide a skeletal procedure that is compliant with Due Process and efficient administration of
justice.

LCvR 83.3

(a)

USE OF ELECTRONIC DEVICES AND CAMERAS
IN THE COURTHOUSE
Broadcasts, Photography, and Use of Cameras during Court Proceedings.
(1) Photography and Electronic Recording Prohibited. The taking of still or

moving photographs and/or the audio recording of any Court proceedings in the courtroom or in
the corridors immediately adjacent thereto, during the progress of judicial proceedings or during
any recess, is prohibited. Such prohibition includes, but is not limited to, the transmittal or sound
recording of such proceedings for broadcast by radio, television, internet, and social or any other
52

media.
(2)

Exceptions for Ceremonial and Educational Proceedings. Ceremonial

proceedings, such as administration of oaths of office, presentation of portraits, investitures, and
similar occasions, may be photographed, broadcast, or televised from the courtroom with the
permission and under the supervision of the Court. Seminars conducted in the courtroom, such as
Continuing Legal Education seminars, may also be recorded and broadcast by the program sponsor
under the Court’s supervision.
(3)

Naturalization

Proceedings.

During

Naturalization

Proceedings,

participants, spectators, and the media may bring cameras and cell phone cameras into the
courthouse and use such devices during the ceremonies. Such devices are, however, subject to
screening by a United States Marshal or Court Security Officer.
(b)

Cell Phones, Computers, and Other Electronic Devices.
(1)

Persons Permitted to Bring Electronic Devices Into the Courthouse. The

following persons may bring computers, cell phones, and similar electronic devices (hereinafter
“devices”) into the courthouse after such devices have been screened by the United States Marshal
Service or a Court Security Officer: (1) attorneys; (2) paralegals; (3) federal employees; (4) law
firm staff when accompanied by an attorney; (5) state, county, or tribal law enforcement or
emergency services personnel on official business; (6) jurors who have been selected to serve on
a jury; (7) invited guests of the Court for ceremonial proceedings; and (8) service and delivery
personnel. Where a pro se litigant needs to use a personal device during Court proceedings, the
litigant should contact the Clerk of Court in advance of that proceeding to secure permission from
the Court.
53

(2)

Prohibited Use. Unless otherwise permitted by this Rule, all devices must

be powered off in the courtroom. No device shall be used to record Court proceedings under any
circumstances. Use of such devices for voice or video communication from the courtroom or from
the corridors near courtrooms is prohibited. Use of devices for purposes of streaming of audio
and/or video and for gaming is also prohibited. Improper use may be treated as a contempt of
Court.
(3)

Permitted Use.

Where a permitted device has been brought into the

courthouse by a permitted person, a device may be used in conjunction with a proceeding, in
preparation for an upcoming proceeding, and to work on other matters while waiting for upcoming
proceedings. Use of devices to communicate by e-mail, texting, and instant messaging is permitted
if the use is not disruptive.
Advisory Committee Notes
This new Rule, drafted by the Local Rules Courtroom Technology Subcommittee, generally
prohibits disruptive or unlawful uses of electronic devices while allowing authorized persons to
work on their devices in a non-disruptive manner while awaiting upcoming proceedings.

54

LOCAL RULES GOVERNING CRIMINAL CASES
LCrR 1.1

APPLICATION OF LOCAL CRIMINAL RULES

The Local Criminal Rules which follow are intended to provide case participants with
procedures that supplement the Federal Rules of Criminal Procedure. They are not intended to
bind any judicial officer to any particular course of action or result. Each judicial officer retains
the discretion to apply the Local Criminal Rules in a manner consistent with the demands of the
case.

LCrR 11.1

ELECTRONIC RECORDING OF RULE 11 INQUIRY

When a United States Magistrate Judge conducts an inquiry under Fed. R. Crim. P. 11, the
electronic recording of the proceeding constitutes the verbatim record of the proceeding.

LCrR 11.2

PLEA HEARINGS AND FACTUAL BASIS FOR PLEAS

Submission of a Written Factual Basis. Before the Court schedules a Rule 11 hearing to
consider the acceptance of a bargained-for plea, the parties must file with the Court a fully executed
copy of the Plea Agreement and a Factual Basis showing facts sufficient to establish guilt as to
each element of each offense as to which a plea of guilty is being offered. The Factual Basis shall
be signed by an attorney for the government and defense counsel, who shall certify that he/she has
discussed the Factual Basis with the defendant, and that the defendant does not dispute the Factual
Basis.

55

Advisory Committee Notes
New LCrR 11.2 substantially implements the provisions of the Superseding Order,
3:14mc005, concerning a written factual basis for the plea. While the Standing Order required a
factual proffer that included “offense conduct,” id. at ¶ 3, the Local Rules Criminal Subcommittee
determined that such requirement reduced to a local rule might not be supportable under Libretti
v. United States, 516 U.S. 29 (1995), which held that an “element of the sentence … falls outside
the scope of Rule 11(f) [now Rule 11(b)(3)].” See also United States v. Dunbar, 9 Fed. Appx. 411,
413 (6th Cir. 2001) (holding that “the required inquiry relates to whether there is a factual basis
for a finding that the defendant is guilty of the crime charged”). After a series of meetings with
stakeholders, the Local Rules Advisory Committee drafted Rule 11.2 to mirror the language of the
Superseding Order concerning certification by counsel. The requirements of the Superseding
Order for “offense conduct” have been split off and paired with the Rules concerning sentencing,
specifically LCrR 32.4, see infra.

LCrR 17.2

SUBPOENAS IN CRIMINAL CASES

Requests for Subpoenas Where Defendant is Unable to Pay. All defense motions seeking
service of subpoenas by the United States Marshal at government expense must be filed with the
Court at least fourteen (14) days before either the hearing date or the first day of the term of Court,
whichever is earlier, for which the witness’s presence is being requested. Any subpoena request
not made at least fourteen (14) days before the applicable date may be denied as untimely. Upon
a finding of good cause, however, a judicial officer may 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
Marshals Service. 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:
56

(1)

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

(2)

If the prisoner is within the district, at least fourteen (14) days before the hearing
date, or the first day of the term of Court, whichever 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 honor an untimely writ application.

LCrR 20.1

CONSOLIDATION AND TRANSFER OF CASES

Consolidation or Transfer of Related Cases. If a related case is pending before another
United States District Judge, the government or defendant must move for consolidation before, or
transfer to, the judge assigned to the lowest case number. 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 latter case to the judge presiding in
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 attorney’s duty, in connection with pending or imminent criminal litigation with
which the attorney 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
57

justice.

LCrR 32.2.1 AUTHORITY OF UNITED STATES MAGISTRATE JUDGES IN
CRIMINAL FORFEITURE CASES AND PUBLICATION OF NOTICE IN
FORFEITURE CASES
(a)

United States 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
United States Magistrate Judge may 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 on the parties’ stipulation or other proper showing,

the United States Magistrate Judge may make any related finding of fact contemplated by Fed. R.
Crim. P. 32.2, provided that defendant consents to those findings.
(2)

Waiver of Notice. Defendant may waive the notice required by Fed. R.

Crim. P. 32.2, either through written consent in the plea agreement or through written consent of
defendant and defendant’s counsel in a proposed order and/or judgment.
(3)

Ancillary Proceedings.
(A)

Where a forfeiture consists of a money judgment or where no 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 United States Magistrate Judge shall not conduct an ancillary

proceeding unless instructed by a United States District Judge to do so.
(C)

Where a United States Magistrate Judge conducts an ancillary

proceeding, the order and judgment entered in connection with the Rule 11 proceeding is deemed
58

a “preliminary order” for purposes of Fed. R. Crim. P. 32.2(c) and may be amended, if necessary,
by a further order and judgment of a United States 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 satisfies 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 32.3

DISCLOSURE OF PRESENTENCE OR PROBATION RECORDS

The probation officer’s sentencing recommendation is a confidential record and shall not
be disclosed except pursuant to Court order. The recommendation shall not contain any fact not
otherwise disclosed in the Presentence Report. If any additional facts are contained in the
recommendation, they will be disclosed by the Court at sentencing if the Court intends to rely on
those facts.
Advisory Committee Notes
In response to comments from federal defenders concerning the non-public nature of
USPO’s sentencing recommendation, the Local Rules Criminal Subcommittee conducted research
under Federal Rule 32 to determine whether any court had ever held the practice to be unlawful.
No cases to such effect were found and it was determined that the practice was lawful and that
Local Criminal Rule 32.3 complies with the procedural requirements of Federal Criminal Rule
32(e)(3) in making the recommendation confidential. In United States v. Whitlock, 639 F.3d 935
(9th Cir. 2011), that court held that a district court must “disclose any factual information in the
confidential recommendation on which it relied in sentencing” to comply with the requirements of
Due Process. Id. at 937 (citation omitted). That court found the District of Idaho’s Local Criminal
Rule dealing with the sentencing recommendation complied with Due Process. While USPO has
assured the Advisory Committee that its recommendations never contain such additional facts, the
59

Advisory Committee has included, proactively, a disclosure provision in the unlikely event a fact
is inadvertently contained in a recommendation upon which the sentencing court wishes to rely.

LCrR 32.4
(a)

STATEMENT OF RELEVANT CONDUCT
Submission by United States Attorney’s Office. Upon acceptance of the plea or

entry of a verdict of guilty, the United States Attorney’s Office must submit to the United States
Probation Office, and provide defendant with a copy of, a “Statement of Relevant Conduct.” Such
submission must include: (1) the loss and drug amounts the government believes are supportable
by the evidence; (2) facts the government believes support any agreed-upon offense level
computations in the plea agreement; and (3) facts warranting any non-agreed-upon Chapter 2 or 3
enhancements or reductions. When practicable, the government should reflect consultation with
counsel for defendant and note therein whether defendant concurs or opposes such statement.
(b)

Response by Defendant. Defendant may submit to the United States Probation

Office a response or objection to the government’s submission within seven (7) days. Where
defendant elects not to respond initially, no inference is raised that defendant concurs with the
government’s proposed submission and defendant may wait until a Draft Presentence Report is
issued to lodge objections. By filing an initial response within seven (7) days, defendant does not
waive the right to later file objections to the Draft and Final PSRs.

Advisory Committee Notes
This new Rule is intended to implement the second part of the Superseding Order,
3:14mc005, by providing USPO with a statement of relevant conduct promptly upon acceptance
of the plea or entry of a verdict. This Rule does not, however, require defendant to concur in the
statement, but instead provides the defendant with an opportunity to promptly respond to the
60

government’s proffer without waiving their procedural rights under Fed. R. Crim. P. 32, and
without shifting the burden of proof from the government to prove sentencing enhancements.
United States v. Mitchell, 825 F.3d 422, 425-26 (8th Cir. 2016) (“Application of sentencing
enhancements must be supported by a preponderance of the evidence, and the government has the
burden to prove the factual basis for an enhancement.”).

LCrR 32.5

(a)

SENTENCING HEARING, PRESENTENCE REPORTS, IDENTITIES OF
VICTIMS, AND SENTENCING MEMORANDA
Presentence Completion Date. In every case, it is anticipated that there will be a

“Presentence Completion Date” of approximately ninety (90) days after a plea is accepted or a
guilty verdict is returned. The Presentence Completion Date is the date by which the Final
Presentence Report and confidential Sentencing Recommendation is anticipated to be filed by
probation.
(b)

Notice of Sentencing Hearing. Once a final presentence report is filed, the Clerk

of Court will issue a Notice of Sentencing Hearing providing the date and time for sentencing.
Sentencing is ordinarily anticipated to occur within sixty (60) days of the Presentence Completion
Date.
(c)

Sentencing Memoranda and Supporting Letters.

Sentencing memoranda,

supporting letters, and other materials should be filed as soon as possible after entry of the Final
Presentence Report and not later than seven (7) days before the Sentencing Hearing. Recognizing
that letters may not be received by such deadline, the United States District Judge may determine
on a case-by-case basis whether to accept late-filed materials for consideration under 18 U.S.C. §
3553(a).
(d)

Filing of Sentencing Memoranda, Exhibits, and Supporting Letters.

Recognizing the public’s right of access to documents filed in criminal proceedings and
61

the need to protect legally recognized personal privacy interests and vulnerable witnesses in
fulfilling the Court’s duties under 18 U.S.C. § 3553(a), sentencing memoranda, exhibits, and
supporting letters shall not be filed under seal unless leave is first secured from the Court in the
manner provided in Local Civil Rule 6.1.
(e)

Advising the Court of a Good-Faith Estimate of Time Needed for Sentencing

Hearing. Once sentencing memoranda have been filed, counsel for the respective parties must
file a Notice of Time Needed for Sentencing Hearing if greater than the time typically allotted by
the sentencing judge.
(f)

Rule 35, 5K, and § 3553(e) Motions Sealed. All motions under Fed. R. Crim. P.

35, U.S.S.G. § 5K, and 18 U.S.C. § 3553(e) based on cooperation with the government shall be
sealed and there shall be no public access to the motion unless ordered by the Court.
Advisory Committee Notes
This new Rule is intended to implement the district’s goal of being ready for sentencing
within 90 days of acceptance of the plea or verdict. Recognizing that judges have schedules that
may not allow for pinpoint scheduling six months out, the 90 days for sentencing readiness and
the 60 days for the Court to thereafter hold a sentencing hearing are intentionally soft to avoid
any implication that sentencing within that period is an entitlement and to reduce motions practice.

LCrR 44.1

ADMISSION, APPEARANCE, APPOINTMENT, DISCIPLINE,
AND DISBARMENT OF COUNSEL

The admission, appearance, discipline, and disbarment of counsel are governed by LCvR
83.1 and LCvR 83.2, which are fully adopted herein. Title 18 of the United States Code and this
district’s Criminal Justice Act Plan govern appointment of counsel.
Advisory Committee Notes
The Rule has been substantially reduced by simply referencing the Local Civil Rules for
62

admission and discipline of counsel. A criminal defendant’s right to counsel of choice is not
impaired by those Rules, making the restatement of those Rules here redundant.
LCrR 47.1

(a)

MOTIONS PRACTICE IN CRIMINAL CASES, REQUIREMENT OF
BRIEFS, RESPONSES REQUIRED BY THE GOVERNMENT, AND
PROPOSED ORDERS
Motions in Writing. Unless made during a hearing or trial, all motions must be

written, filed as provided by LCrR 49.1.2, and must state with particularity the grounds of the
motion and the relief or order sought. Motions will ordinarily be ruled on 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 counsel, notice of appearance,
notice of intent to present certain types of evidence, etc.) must include a certification that the
moving party has conferred with opposing counsel and state opposing counsel's position on the
relief sought, or explain why conferring should not be required under the circumstances. If a
hearing on a motion is requested, counsel should estimate the length of the hearing.
(c)

Requirement of Briefs. A brief must be filed contemporaneously with any

potentially dispositive pretrial or post-trial motion submitted in a criminal action. No brief is
required to support timely motions for admission pro hac vice, extensions of time, continuances,
or uncontested requests.
(d)

Response Required by the Government. Unless otherwise directed by the Court,

the government must respond to all potentially dispositive defense motions in a criminal case.
Examples 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
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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 filing pretrial motions, and the time for filing responses and replies to motions, is
governed by the practice of the presiding judge consistent with Fed. R. Crim. P. 12 and 47. Unless
otherwise directed by the Court, responses to motions, if any, must be filed within seven (7) days
of the date on which the motion is served. Neither the motions deadlines set in an Arraignment
Order, nor operative deadlines under this Local Rule, entitle any party to continuance of a trial
date.
(f)

Proposed Orders. Proposed orders are not required, unless otherwise ordered by

the Court. If directed to provide a proposed order, parties must submit the order through
Cyberclerk and serve the proposed order on all parties.
(g)

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 the right to counsel in the presence of a judicial officer after being fully
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 49.1.1 SEALED RECORDS AND PUBLIC ACCESS
(a)

Presumption of Public Filing. To further openness in criminal case proceedings,

there is a presumption under applicable common law and the First Amendment that pleadings filed
64

in this Court will be filed unsealed. Unless allowed by the United States Code, the Federal Rules
of Criminal Procedure, or these Local Criminal Rules, decisions as to whether to seal a particular
pleading or any portion thereof will be made on a case-by-case basis by the Court upon the filing
of a motion, with findings specific enough that a reviewing court can determine whether the sealing
is consistent with the First Amendment or the common law right to public access. Motions to seal
a particular pleading or any portion thereof and orders disposing of such motions are governed by
the requirements for sealing provided by LCvR 6.1, incorporated herein by reference.
(b)

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 part of the
documents in the criminal case be sealed. After the Court considers alternatives to sealing, the
Court may enter either its own order or adopt a proposed order submitted by the government if the
facts justify sealing. The Clerk of Court shall seal the case or documents as specified in the order.
(c)

Unsealing Criminal Cases. Unless the Court grants a motion to keep a case or

document(s) sealed, 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)
(d)

Upon motion of the government to unseal.

Pending Cases. Upon a motion filed separately from the motion or pleading sought

to be sealed, the Court may enter an order sealing a pending case or any portion thereof after the
65

moving party has provided such notice as required by law or these Rules. After the Court considers
alternatives to sealing, the Court may enter either its own order or adopt a proposed order if the
facts justify sealing. The sealing motion and proposed order presented to the Court should
specifically identify the part of the record 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.
(e)

Documents. Documents sealed by the Court or otherwise required to be sealed by

statute shall be marked as such within the document caption. If the document is sealed pursuant
to a prior Court order, the pleading caption must 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:
(1)
(2)

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

(3)
(f)

It has been sealed by prior order of the Court;

It contains material subject to a protective order entered by the Court.

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

documents under seal have not previously been unsealed by Court order, all sealed files, sealed
pleadings, or any portions thereof shall remain sealed indefinitely until otherwise ordered by the
Court on a case-by-case basis.
66

(g)

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

documents and cases under 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
files or documents.
(h)

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 before the execution or delivery of all warrants. The government
may move to continue the seal after the execution of all warrants. After the Court considers
alternatives to sealing, the Court may enter either its own order or adopt a proposed order submitted
by the government if the facts justify sealing.
(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 nonmoving party to respond to the motion to seal, other parties and non-parties may submit
memoranda supporting or opposing the motion and may designate all or part of the memoranda as
confidential. Any confidential memorandum will be treated as sealed pending the outcome of the
ruling on the motion. While the Court may act on a motion to seal before the time for response has
run, motions to unseal may be filed at any time by a party or third person.
Advisory Committee Notes
Proposed LCrR 49.1(a) remedies the earlier issues raised under former LCrR 55.1(h) by
providing that parties must seek leave of Court to file matters under seal unless allowed to seal as
a matter of federal law, a federal rule, or these Local Rules. The new Rule then incorporates by
67

reference LCvR 6.1, which details procedures and what must be shown to seal a filing. It should
be noted that submissions to the Court by USPO are not technically sealed, but are “non-public”
submissions. See Fed. R. Crim. P. 32 & 49.1 (Advisory Committee Notes, 2007 Adoption). The
Advisory Committee notes that while counsel in criminal litigation have experience in seeking
leave to file under seal, it may be appropriate for a subgroup, perhaps drawn from IP litigation,
to form an advisory group to provide examples of effective motions and briefs. Likewise, due to
the anticipated increase in motions to seal, the Court may wish to develop template orders
touching on Rule 6.1 concerns.

LCrR 49.1.2 FILING OF PAPERS, FILING OF REDACTED PLEADINGS, AND
PRESENTING
JUDGMENTS,
ORDERS,
AND
OTHER
COMMUNICATIONS TO JUDGES
(a)

Place of Conventional Filing, when Allowed. Where conventional filing is

permitted by the Administrative Procedures or by the assigned judge, all papers may be filed in
Asheville, Charlotte, or Statesville, regardless of the division in which the case is pending.
(b)

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. 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
Fed. R. Civ. P. 5, unless an exception is provided for proceeding ex parte under the Federal Rules
of Criminal Procedure.
Advisory Committee Notes
The requirements for electronic filing in Sections (b) and (c) were redundant. Section (c)
has been amended to address the place of filing when conventional filing is permitted. Former
section (d) has been eliminated as has its civil analogue in LCvR 5.2.1(d). The Rule has been
moved to its present location to better correspond with the corresponding Federal Rule of
Criminal Procedure.
68

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 LCvR 79.1, incorporated herein by reference.

LCrR 58.1

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 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 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 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 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
69

court days for the hearing of petty and misdemeanor offenses as the Clerk of Court deems
necessary.
(2)

Attendance. Persons charged and the charging officer must be present on

scheduled court days. Most cases will be resolved at the first court day, and persons charged with
offenses and charging officers should be prepared to dispose of their cases that day. The Clerk of
Court or any judicial officer may adjudicate pretrial motions to continue. Continuances upon good
cause shown will be the exception, not the rule.
(3)

Charging Instruments. Determining which charging instruments to issue,

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

Initial Charging Instrument. Any misdemeanor (Class A, petty, or

infraction) may be commenced by issuing a violation notice.
(B)

Sending the Violation to CVB.

In accordance with the rules

promulgated by the Central Violations Bureau (“CVB”), any officer issuing a violation notice must
mail the notice to the CVB within three (3) business days of issuance. Failure to do so may result
in summary dismissal of the violation notice, 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 through a violation notice, the government should be prepared
by the first scheduled court day to supersede the violation notice with an appropriate trial
70

instrument or stipulate that it is only proceeding on the lesser-included petty offense.
(4)

Plea Negotiations. Plea negotiations are anticipated by the Federal Rules

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

Collaterals on the Day of Court. The government has 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. Court will commence after the government indicates it has

had sufficient time for plea negotiations.
(7)

Taking of Pleas. Where a charge is resolved through a plea of guilty, the

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

Appointment of Counsel. The Court will consider appointing counsel in

cases where the government indicates there is a possibility of imprisonment. Persons desiring
Court-appointed counsel should fill out an appropriate affidavit of indigency the day of court. The
Federal Defender may assist persons in making such requests, which may be tendered for approval
before court so 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
71

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 United States Magistrate Judge, such
charges will be transferred to a United States District Judge. Once transferred to a United States
District Judge, “Class A” misdemeanors will only be remanded to the United States Magistrate
Judge where the United States District Judge so directs.
(10)

Sentencing. If 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 presentence report is required. In a Class A misdemeanor, a person charged
may waive preparation of a presentence 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 must provide the Clerk of Court with his or her Social Security
number, driver’s license 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, allowing either payment of twice the
collateral in lieu of arrest or an arrest without bond. The United States Marshal may contact the
government or a United States Magistrate Judge (or the 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
72

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. The charging officer must 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 eight (8)

months shall be disposed of in a manner consistent with the rules, regulations, and standards
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 may issue unsecured “field bonds” on forms

approved by the Court to assure any person’s appearance. The forms may be used 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 must 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 United States Magistrate Judge is not reasonably available, before a state judicial officer as
authorized by 18 U.S.C. § 3041. The arresting officer must use best efforts to contact the Clerk of
73

Court and advise the Court of such arrest before arriving at the courthouse.
(3)

Custody. The United States Marshal only takes custody of a defendant who

is arrested by another agency after a United States Magistrate Judge has found probable cause for
the arrest. See 28 C.F.R. § 0.111(k). Where an officer houses a defendant in a facility overnight,
the arresting officer must secure the defendant from the local jail facility and promptly take the
defendant before a United States Magistrate Judge for an initial appearance. See Fed. R. Crim. P.
5(a). The arresting officer must use best efforts to contact the Clerk of Court and advise the Court
of such arrest before arriving at the courthouse.

LCrR 59.1

UNITED STATES MAGISTRATE JUDGE DUTIES IN FELONY CASES

In addition to the powers and duties in 28 U.S.C. § 636(a), after an indictment is returned
or an information is filed in a felony case, United States Magistrate Judges are hereby authorized
under 28 U.S.C. § 636(b), to perform any duties assigned to them by any United States District
Judge of this Court that are consistent with the Constitution and laws of the United States.
(a)

Pretrial Matters. In the absence of a United States District Judge’s decision to

reserve a proceeding for decision by a United States District Judge, and with the exception of the
motions and petitions listed herein, a United States Magistrate Judge of this Court is authorized
and assigned to hear and determine pretrial matters including, but not limited to:
(1)

Accepting criminal complaints and issuing arrest warrants or summonses;

(2)

Conducting initial appearances and imposing release conditions;

(3)

Conducting preliminary examinations;

(4)

Receiving grand jury returns in accordance with Fed. R. Crim. P. 6(f);
74

(5)

Accepting waivers of indictment;

(6)

Receiving executed or cancelling unexecuted arrest warrants;

(7)

Conducting arraignments not triable by the United States Magistrate Judge

and taking pleas of not guilty in such cases;
(8)

Hearing motions and entering orders for examinations to determine mental

(9)

Hearing and determining discovery motions and motions to sever;

(10)

Issuing subpoenas, writs of habeas corpus ad testificandum or habeas

competency;

corpus ad prosequendum, or other orders necessary to obtain the presence of parties, witnesses, or
evidence needed for court proceedings;
(11)

Conducting initial appearances and preliminary hearings in probation and

supervised release revocation proceedings;
(12)

Conducting proceedings for defendants arrested in this district under a

warrant issued in another district for allegedly failing to appear or violating release conditions and
issuing all necessary orders incident thereto;
(13)

Issuing search warrants and receiving warrant returns;

(14)

Authorizing the installation of pen registers and devices including trap and

trace devices (and issuing orders to assist), beeper devices (transponders), and clone beepers;
(15)

Determining if defendants have knowingly and voluntarily waived counsel,

appointing attorneys for defendants who cannot afford them, and approving attorney expense
vouchers;
(16)

Determining issues of release or detention of defendants, material
75

witnesses, and confidential informants;
(17)

Ordering exoneration or forfeiture of bonds;

(18)

Determining the propriety of joint representation of criminal defendants;

(19)

Hearing and determining applications for admission to practice before this

(20)

Directing the payment of basic transportation and subsistence expenses for

Court;

defendants financially unable to bear the costs of travel to required court appearances;
(21)

Conducting initial proceedings upon the appearance of an individual

accused of an act of juvenile delinquency;
(22)

Performing the functions specified in 18 U.S.C. §§ 4107, 4108, and 4109

regarding offenders’ verification of consent to transfer to or from the United States and attorney
appointments; and
(23)

Conducting a plea hearing and rejecting or accepting a plea and

recommending rejection or acceptance of a plea by the United States District Judge.
(b)

Additional Pretrial Matters. Upon written order or a United States District Judge’s

specific oral referral, a United States Magistrate Judge may also:
(1)

Rule on pre-indictment challenges to grand jury subpoenas or other motions

related to grand jury proceedings;
(2)

Exercise general supervision of criminal calendars, including the handling

of calendar and status calls, and motions to continue or expedite trials;
(3)

Conduct pretrial conferences in a criminal case; and

(4)

Conduct a plea hearing and reject or accept a plea and recommend rejection
76

or acceptance of a plea by the United States District Judge.
(c)

Continuance of Felony Cases from District Court Docket. At arraignment, a

United States Magistrate Judge is authorized to grant a single presumptive continuance while
considering the requirements of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and ensuring that
the ends of justice are served by granting the continuance. It is anticipated that most such
continuances will occur where trial is set less than thirty (30) days from arraignment. A United
States Magistrate Judge may also resolve any objections to this presumptive continuance.
(d)

Dispositive Matters.
(1)

United States Magistrate Judge’s Recommendation. A United States

Magistrate Judge is authorized to submit to a United States District Judge a report containing
proposed findings of fact and a recommendation for disposition by the United States District Judge
of the following matters:
(A)

Motions to dismiss or quash an indictment or information;

(B)

Motions to suppress evidence;

(C)

With the consent of the parties and the assigned United States

District Judge, make such recommendations regarding the taking and accepting of guilty pleas as
may be necessary;
(D)

Petitions to revoke probation and supervised release, including the

conduct of the final probation or supervised release revocation hearing; and
(E)

Petitions for habeas corpus and motions for post-conviction relief

filed under 28 U.S.C. §§ 2241, 2254, and 2255.
(2)

Authority to Conduct Proceedings. A United States Magistrate Judge is
77

authorized to issue any preliminary order and conduct any necessary evidentiary hearing or other
proceeding arising in the exercise of the authority conferred by this subsection.
(e)

Exception. Nothing in this Rule precludes a United States District Judge from (1)

reserving any proceeding for conduct by a United States District Judge, rather than a United States
Magistrate Judge, or (2) modifying the method of assigning matters to a United States Magistrate
Judge, as circumstances warrant.
Advisory Committee Notes
This local rule delineates what matters are referred to a magistrate judge. It remains
necessary because §§ 636(b)(1)(A) & (B) provide that an Article III judge “may designate” a
Magistrate Judge to hear certain enumerated matters and even though each District Judge has a
Standing Order, it is possible that unless the District Judge checks all the boxes, some matters may
not be deemed properly referred. It is also important to have a district-wide “blanket” designation
because certain preliminary matters are handled by Magistrate Judges before a District Judge is
assigned to the matter and before that judge’s Standing Order is, thereby, invoked.

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