Category Archives: Civil Procedure

*New York Official Reports Style Manual with 2009 Supplement

I have added to my Links The New York Official Reports Style Manual with 2009 Supplement (effective November 2009,) in both PDF and HTML versions.

*Signing Federal papers. If you missed the changes, here they are.

I haven’t been in Federal Court lately, so I have had no occasion to violate two changes in the rules that went into play shortly after I went out on my own. But for those like myself who missed it, there is no need on Federal papers to use your initials and four digit identifier (see change in local rule), but you do now have to add your e-mail address (see change in F.R.C.P.) Remember, F.R.C.P. trumps Local Rules. Current rules set forth below.

F.R.C.P. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name–or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

Local Civil Rule 11.1. Form of Pleadings, Motions, and Other Papers
(a) Every pleading, written motion, and other paper must (1) be plainly written, typed, printed, or copied without erasures or interlineations which materially deface it, (2) bear the docket number and the initials of the judge and any magistrate judge before whom the action or proceeding is pending, and (3) have the name of each person signing it clearly printed or typed directly below the signature.

*Some judges do have a sense of humor, and a knowledge of the law regarding amendments to pleadings

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.,** 2009 NY Slip Op 52217(U) October 23, 2009 Appellate Term, Second Department

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I strenuously disagree with the majority gratuitously raising a nonexistent issue, namely that a Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) may be disallowed if “prejudice or surprise would result therefrom.” This impression was created by the majority in choosing here to excise an important requirement with regard to the law of amending an answer. The actual statement by the Court of Appeals in McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp. (59 NY2d 755, 757 [1983] [emphasis added, citations and internal quotations marks omitted]) is that, “Leave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay.”

To me, it is extremely unlikely that an individual who creates a fraudulent entity for the purpose of defrauding an insurance company would forget that he/she did so and be prejudiced or surprised when it was discovered. Such would be akin to a person running a “Ponzi” scheme deciding to invest in his own firm because it was obtaining such good results

**Case brought to my attention by The Rogak Report

*Time computation changes to Local Rules for the EDNY and SDNY

If you are not signed up for ECF in the EDNY or the SDNY, you would not have received the enclosed useful chart that sets forth the new time computation changes set forth in the Local Rules for the Eastern and Southern Districts of New York, which were made due to the changes in the F.R.C.P., all effective December 1, 2009. Also included is the Report of the joint committee on local rules concerning amendments to the local rules of the SDNY and EDNY required as a result of the time computation amendments to the federal rules

The major change is the discontinuance of not counting weekends and Federal holidays in certain instances. Now they are all counted, but the times to act have been extended in those instances when you would not have counted those days. Saturdays, Sundays, and legal holidays are no longer excluded in computing periods of time. If the last day of the period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Also most time periods have been adjusted to be week orientated, i.e. multiples of 7.

Chart – Time Computation – Local Rules NYED and NYSD – December 1 2009

The complete local rules on the SDNY site (Includes Amendments through December 1, 2009)

The complete local rules on the EDNY site (Includes Amendments through December 1, 2009)