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Local Rules

7024 Unconstitutionality, Claim Of

7024-2.  NOTICE OF CLAIM OF UNCONSTITUTIONALITY  

If at any time prior to the trial of any adversary proceeding or contested matter, to which neither the United States, an individual state, nor any agency, officer or employee of either is a party, a party draws in question the constitutionality of an Act of Congress or a state statute affecting the public interest, the party shall, in writing, notify the  Bankruptcy Court of the existence of such question and specifically identify the statute and the respects in which it is claimed to be unconstitutional. See, 28 U.S.C. § 2403(a) and (b).

[Former Rule 23]

7026 Discovery

7026-1.  COOPERATION OF COUNSEL   

No motion for discovery and production of documents under Rules 7026 through 7037 Fed.R.Bankr.P. shall be heard unless and until moving counsel certify that they have attempted to resolve the discovery dispute on their own.

[Former Rule 29]

7040 Assignment of Adversary Proceedings

7040-1.  The assignment of the bankruptcy case to a Judge includes, subject to LBR 1073-1(B) herein, the assignment of adversary proceedings and contested matters arising in the case.

[Former Rule 10 C]
 

7054 Costs - Taxation/Payment

7054-1.  COSTS IN THE BANKRUPTCY CASE  

A.  A party entitled to recover costs shall file with the Bankruptcy Clerk, upon forms provided by the Clerk, a verified bill of costs.  The date on which the parties will appear before the Clerk for taxation of the costs and proof of service of a copy upon the party liable for the costs shall be endorsed thereon.  The Clerk’s action may be reviewed by the Court if a motion to retax the costs is filed within five (5) days after the costs are taxed.

B.  Standards for Taxing Costs

1. The Clerk’s filing fee is allowable if paid by the claimant.

2. Fees of the marshal as set forth in 28 U.S.C. § 1921 are allowable to the extent actually incurred. Fees for service of process by someone other than the marshal are allowable to the extent that they do not exceed those permitted by 28 U.S.C. §1921.

3. Reporters’ transcripts:

(a) The cost of transcripts necessarily obtained for an appeal are allowable.

(b) The cost of a transcript of a statement by a Judge from the bench which is to be reduced to a formal order prepared by counsel is allowable.

(c) The cost of other transcripts is not normally allowable unless, before it is incurred, it is approved by a Judge or stipulated to be recoverable by counsel.

4. Depositions:

(a) The cost of an original and one copy of any deposition used for any purpose in connection with the case is allowable.

(b) The expenses of counsel in attending depositions are not allowable.

(c) The cost of reproducing exhibits to depositions is allowable where the cost of the deposition is allowable.

(d) Notary fees incurred in connection with taking depositions are allowable.

(e) The attendance fee of a reporter when a witness fails to appear is allowable if the claimant made use of available process to compel the attendance of the witness.

5. Reproduction and Exemplification:

(a)  The cost of reproducing and certifying or exemplifying government records for use in the case is allowable.

(b)  The cost of reproducing documents used for any purpose in connection with the trial is allowable.

(c)  The cost of reproducing copies of motions, pleadings, notices and other routine case papers is not allowable.

(d)  The cost of reproducing trial exhibits is allowable to the extent that a Judge requires copies to be provided.

(e)  The cost of preparing charts, diagrams and other visual aids to be used as exhibits is allowable if such exhibits are reasonably necessary to assist the jury or the Court in understanding the issues at the trial.

(f)  The cost of reproducing the required number of copies of the Clerk’s record on appeal is allowable.

6. Witness Expenses. Per diem, subsistence and mileage payments for witnesses are allowable to the extent reasonably necessary. No other witness expenses, including fees for expert witnesses, are allowable.

7. Such other costs, not heretofore provided for, authorized under Rule 39, Federal Rules of Appellate Procedure, are allowable.

8. Premiums on undertaking bonds and costs of providing security required by law, by order of a Judge, or otherwise necessarily incurred are allowable.

9. The certificate of counsel required by 28 U.S.C. § 1924 shall be prima facie evidence of the facts recited therein. The burden is on the opposing party to establish that a claim is incorrectly stated, unnecessary or unreasonable.

[Former Rule 34]

7055 Default - Failure to Prosecute [SO 12/5/83; SO 4/19/84]

7055-1.  PROCEDURE FOR GRANTING OF DEFAULT JUDGMENTS

Before seeking default judgment, plaintiff’s attorney should make certain that he or she has (1) properly and timely served the defendant, and (2) filed an accurate certificate of service. Then, once the time to answer has expired, he or she may seek entry of default judgment, following the procedures described below.

When the underlying action is a core matter

The Clerk of the Bankruptcy Court may enter the default judgment if:

A.  the underlying action is a core matter; and

B.  the default judgment is for a sum certain.

In order to obtain a default judgment, in this circumstance, the attorney for the plaintiff is to file (1) an application for default judgment addressed to the Clerk of Court; (2) a certificate of default; (3) a request for judgment by default and affidavit of amount due; and (4) an affidavit of non-military service.

When the underlying action is a non-core matter

A.  The Bankruptcy Judge to whom the matter has been assigned may execute a recommendation that default judgment be entered, without requiring a hearing, if the judgment is for a sum certain. When it is a non-core matter at issue, final judgment - even default judgment - must be entered in the District Court.

In order to obtain such a recommendation, the plaintiff’s attorney is to file: (1) a recommendation for default judgment addressed to the Bankruptcy Judge; (2) an affidavit of non-military service;   (3) an order to transmit record in a non-core proceeding to District Court, combined with findings of fact, conclusions of law and recommendation regarding plaintiff’s request for entry of default judgment; (4) an affidavit of amount due; and (5) judgment (for execution by a U.S. District Judge).

B.  When the Bankruptcy Judge, on the basis of the submitted recommendation for default judgment, determines that a hearing is necessary, the Clerk will inform the parties of the date of that hearing. (For example, if the defendant appeared, but did not answer, the defendant has a right to be heard on the question of the amount of damages.) After that hearing, the plaintiff’s attorney is to submit a revised order to transmit, a revised affidavit of amount due, and a judgment (for execution by the U.S. District Judge).

Appropriate sample forms are available from the Bankruptcy Court Clerk.

The Clerk of Court shall enter the fact of default in an adversary proceeding only when requested to do so by the nondefaulting party.  Upon entry of the fact of default under Fed.R.Civ.P. Rule 55(a), the nondefaulting party may seek judgment by default from the Clerk or the Court as appropriate under Fed.R.Civ.P. Rule 55(b), (d), and (e). Where relief has been sought against multiple parties not all of whom have failed to plead or defend, the fact of default may be entered as to any party who failed to plead or defend, but no judgment by default shall be entered against such party until the case shall have been decided with respect to the nondefaulting parties, unless the Court orders otherwise. A plaintiff entitled to a default for the failure to answer a complaint must request entry of the fact of default, and make suitable request for judgment, within 60 days after the last day to answer. Failure to make these requests will result in the entry of an order placing the proceeding on a calendar for a hearing on the question of why the complaint should not be dismissed for want of prosecution.

[Former  Rule 33]

7069 Judgment, Payment Of [GO 1/3/84]

7069-1.

INTEREST ON JUDGMENTS.  Interest on Judgments entered in the United States Bankruptcy Court for the Western District of New York shall be based on the rate applicable in the Federal District Court, pursuant to Title 28 U.S.C. § 1961.

SATISFACTION OF JUDGMENTS.   [RESERVED]

[Former Rules 35 & 36 (RESERVED)]

 

8008 Appeals

8008-1.  FILING PAPERS - APPEAL

Upon filing a notice of appeal, the appellant shall furnish the Clerk with a sufficient number of copies thereof for mailing.

[Former Rule 14 F]

9004 Papers

9004-1. FORM OF PAPERS  

All pleadings and other papers shall be plainly and legibly written, preferably typewritten, printed or reproduced; shall be without erasures or interlineations materially defacing them; shall be in ink or its equivalent on durable, white paper of good quality; and, except for exhibits, shall be on letter size paper, and fastened in durable covers.

[Former Rule 13 A]

9004-2. CAPTION

All pleadings and other papers shall be captioned with the name of the Court, the title of the case, the proper docket number or numbers, including the initial at the end of the number indicating the Judge to whom the matter has been assigned, and a description of their nature. All pleadings and other papers, unless excepted under Rule 9011 Fed.R.Bankr.P., shall be dated, signed and have thereon the name, address and telephone number of each attorney, or if no attorney, then the litigant appearing.

[Former Rule 13 B]

9004-3.  Papers not conforming with this rule generally shall be received by the Bankruptcy Clerk, but the effectiveness of any such papers shall be subject to determination of the Court.

[Former Rule 13D]

9006 Time Periods

9006-1.  REDUCTION.   If a party wishes to shorten the notice requirements prescribed by Rule 9013 Fed.R.Bankr.P., the party must make written application to the appropriate Judge for an expedited hearing.

[Former Rule 14D]
 

9010 Attorneys - Notice of Appearance

9010-1.  STUDENT LAW CLERKS

A. An eligible law student may, with the approval of his or her law school dean or a member of the law school faculty and of a Bankruptcy Judge of the Western District of New York, serve as a part-time student law clerk to that Bankruptcy Judge.

B. In order to so serve, the law student shall:

(1) be duly enrolled in a law school approved by the American Bar Association;

(2) have completed legal studies amounting to at least two semesters or the equivalent;

(3) be enrolled in a course or program at his or her law school offering academic credit for serving as a part-time law clerk to a Judge or be certified by the dean of his or her law school for non-credit clinical experience;

(4)  be supervised by a member of a law school faculty. This faculty advisor shall, to the extent possible, review all aspects of the student’s work before it is submitted to the
Judge;

(5) be certified by the dean or a faculty member of his or her law school as being of good character and competent legal ability. This certification may be withdrawn by the certifier at any time by mailing a notice to the Judge supervising the student. Termination of certification by the certifier shall not reflect on a student’s character or ability unless otherwise specified. A copy of such certification and decertification shall be filed with the Clerk of the Court;

(6) neither be entitled to ask for not receive compensation of any kind from the Court or anyone in connection with service as a part-time law clerk to a Judge;

(7) certify in writing, which certification shall be filed with the Clerk of the Bankruptcy Court, that he or she:

(a) has read and is familiar with and will comply with the Code of Professional Responsibility, and relevant provisions of the Code of Judicial Conduct for United States Judges, and

(b) will abstain from revealing any information and making any comment at any time, except to his or her faculty advisor or to the Court personnel as specifically permitted by the Judge to whom he or she is assigned, concerning any proceeding pending or impending in this Court while he or she is serving as a part-time clerk.

C. A Judge supervising a part-time clerk may terminate or limit the clerk’s duties at any time without notice or hearing and without showing of cause. Such termination or limitation shall not be considered a reflection on the character or ability of the part-time clerk unless otherwise specified.

D. An attorney in a pending proceeding may at any time request that a part-time clerk not be permitted to work on or have access to information concerning that proceeding and, on a showing that such restriction is necessary, a Judge shall take appropriate steps to restrict the clerk’s contact with the proceeding.

E. For the purpose of Canons 3-A(4) and 3-A(6) of the Code of Judicial Conduct for United States Judges, a part-time law clerk is deemed to be a member of the Court’s personnel.

F. Forms for designating compliance with the rule are available in the Clerk’s office.

[Former Rule 6]

9010-2.  STUDENT PRACTICE

A. An eligible law student, with the Court’s approval, under supervision of an attorney, may appear on behalf of any person, including the United States Attorney, who has consented in writing.

B. The attorney who supervises a student shall:

(1) be admitted to bankruptcy practice in the United States District and Bankruptcy Courts for the Western District of New York;

(2) assume personal professional responsibility for the student’s work;

(3) assist the student to the extent necessary;

(4) appear with the student in all proceedings before the Court;

(5) indicate in writing his or her consent to supervise the student.

C. In order to appear, the student shall:

(1) be duly enrolled in a law school approved by the American Bar Association;

(2) have completed legal studies amounting to at least two semesters or the equivalent;

(3) be certified by either the dean or a faculty member of his or her law school as qualified to provide the legal representation permitted by these rules. This certification may be withdrawn by the certifier at any time by mailing a notice to the Clerk or by termination by the Judge presiding in the case in which the student appears without notice or hearing and without showing of cause.   The loss of certification by action of a Judge shall not be considered a reflection on the character or ability of the student;

(4) be introduced to the Court by an attorney admitted to bankruptcy practice before the Court;

(5) neither ask for nor receive any compensation or remuneration of any kind for his or her services from the person on whose behalf he or she renders services, but this shall not prevent an attorney, legal aid bureau, law school, a state or the United States from paying compensation to the eligible law student, nor shall it prevent any agency from making proper charges for its services;

(6) certify in writing that he or she is familiar with and will comply with the Code of Professional Responsibility of the American Bar Association;

(7) certify in writing that he or she is familiar with the procedural and evidentiary rules relevant to the action in which he or she is appearing.

D. The law student, supervised in accordance with these rules, may:

(1) appear as counsel in Court or at other proceeding when written consent of the client (on the form available in the Clerk’s Office) or of the United States Attorney, when the client is the United States, and the supervising attorney have been filed, and when the Court has approved the student’s request to appear in the particular case to the extent that the Judge presiding at the hearing or trial permits;

(2) prepare and sign motions, petitions, answers, briefs, and other documents in connection with any matter in which he or she had met the conditions of “1" above; each such document also shall be signed by the supervising attorney.

E. Forms for designating compliance with this rule shall be available in the Bankruptcy Court Clerk’s Office. Completed forms shall be filed with the Bankruptcy Clerk.

F. Participation by students under the rule shall not be deemed a violation in connection with the rules for admission to the bar of any jurisdiction concerning practice of law before admission to that bar.

[Former Rule 7]

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