PRACTICE AND PROCEDURE (1995)

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RULES OF

PRACTICE AND PROCEDURE

THE UNITED STATES

DISTRICT COURT

FOR THE MIDDLE DISTRICT

OF NORTH CAROLINA

•

GENERAL RULES

CIVIL RULES

CRIMINAL RULES

MAGISTRATE JUDGE

RULES

RULES OF

DISCIPLINARY

ENFORCEMENT

MEDIATION RULES

APPENDIX OF FORMS

.Tu.Iv 1. 1995

CITE THESE RULES AS:

Local Rule___

ft\D NC

THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF NORTH CAROLINA

CHIEF JUDGE

Frank W. Bullock, Jr.

P.O. Box 3223

Greensboro, NC 27402

DISTRICT JUDGE

N. Carlton Tilley, Jr.

P.O. Box 3443

Greensboro, NC 27402

DISTRICT JUDGE

William L. Osteen

P.O. Box 3485

Greensboro, NC 27402

DISTRICT JUDGE

James A. Beaty, Jr.

Suite 248, Federal Building

251 North Main Street

Winston-Salem, NC 27101

******

SENIOR JUDGE

Eugene A. Gordon

P.O. Box 3285

Greensboro, NC 27402

SENIOR JUDGE

Hiram H. Ward

Suite 246, Federal Building

251 N. Main St.

Winston-Salem, NC 27101

SENIOR JUDGE

Richard C. Erwin

Suite 223A, Federal Building

251 N. Main Street

Winston-Salem, NC 27101

********

MAGISTRATE JUDGE

Russell A. Eliason

Suite 224, Federal Building

Winston-Salem, NC 27101

MAGISTRATE JUDGE

P. Trevor Sharp

P.O. Box 3195

Greensboro, NC 27402

CLERK

J.P. Creekmore

P.O. Box 2708

Greensboro, NC 27402

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF NORTH CAROLINA

IN THE MATTER OF RULES

OF PRACTICE AND

PROCEDURE IN THIS

COURT

)

ORDER ADOPTING

RULES OF PRACTICE

AND PROCEDURE

For good cause appearing to the Court,

IT IS ORDERED that:

The following Rules of Practice and Procedure in the

United States District Court for the Middle District of North Carolina be

and they hereby are adopted, effective at 12:01 a.m., on the 1st day of

July 1995. At that time these local rules shall supersede local rules

theretofore in effect and shall apply to all pending cases, unless the Court

finds that their application in a specific case would result in injustice or

hardship.

These rules are adopted in compliance with and pursuant

to the authority of Rule 83, Fed.R.Civ.P.; Rule 57, Fed.R.Crim.P.; and

other federal rules and statutes providing for district court local rules.

The Clerk is directed to make appropriate arrangements

to see that these rules are published promptly and that copies of the rules

are made available for distribution to the bar and the public.

This the 11th day of May, 1995.

s/ Frank W. Bullock, Jr.

Chief United States District Judge

s/ N. Carlton Tilley, Jr.

United States District Judge

s/ William L. Osteen

United States District Judge

s/ James A. Beaty. Jr.

United States District Judge

s/ Eugene A. Gordon

Senior United States District Judge

s/ Hiram H. Ward

Senior United States District Judge

s/ Richard C. Erwin

Senior United States District Judge

RULES OF PRACTICE

AND PROCEDURE

TABLE OF RULES

I. GENERAL RULES

RULE 101

PHILOSOPHY OF RULES

RULE 102

SCOPE OF RULES

RULE 103

ATTORNEYS

(a)

(b)

(c)

(d)

(e)

RULE 104

Roll of Attorneys

Eligibility and Admission

Litigants Must Be Represented by

a Member of the Bar of This Court

Special Appearance

Withdrawal of Appearance

COURT SCHEDULE AND CONDUCT

OF BUSINESS

(a)

(b)

(c)

(d)

RULE 105

Headquarters

Scheduling

Naturalization

Divisions of the Court

EXTENSIONS OF TIME AND

CONTINUANCES OF HEARINGS

(a)

(b)

RULE 106

Motions for Extension of Time

to Perform an Act

Motions for Continuance

FORM OF PLEADINGS AND PAPERS

(a)

(b)

(c)

(d)

(e)

Form

Identification of Documents

Telephone Numbers and Addresses

Exhibits to Pleadings .~·Papers

Civil Rights Actions by Prisoners,

42 U.S.C. §1983

RULE 107

BRIEFS

(a)

(b)

(c)

(d)

(e)

RULE 108

Contents

Citation of Cases

Citation of Unpublished Decisions

Citation of Decisions Not Appearing in

Certain Published Reports

Additional Copies of Briefs for Court Ui

ORDERS AND JUDGMENTS

GRANT ABLE BY CLERK

(a)

(b)

RULE 109

Orders and Judgments

Clerk's Action Reviewable

ACCESS TO COURT RECORDS

(a)

(b)

RULE 110

Access

Copies

SURETIES

(a)

(b)

(c)

Security

Individual Sureties

Approval

REGISTRY FUNDS

RULE 111

(a)

(b)

RULE 112

Deposit with the Treasury

Investment in Income-Earning

Account

JURIES IN CIVIL AND CRIMINAL

CASES

(a)

(b)

(c)

(d)

Examination of Jurors

Contacts Prohibited

Disclosure of Names and Addresses

of Prospective Jurors

Number of Jurors in Civil,,Cases

RULE 113

JURY ARGUMENTS AND

INSTRUCTIONS

(a)

(b)

RULE 114

Jury Arguments

Instructions to Jury

COURTROOM PRACTICES

(a)

(b)

RULE 115

Addressing the Court

Questioning Witnesses

CUSTODY AND DISPOSITION OF

TRIAL EXHIBITS, SEALED

DOCUMENTS, AND FILED

DEPOSITIONS

(a)

(b)

(c)

(d)

Custody with the Clerk

Custody with the Offering Party

Disposition of Exhibits, Sealed

Documents, and Filed Depositions

by Clerk

Depositions

RULE 116

DESIGNATION OF CONTENTS OF

RECORD ON INTERLOCUTORY

APPEAL

RULE 117

DISPOSITION OF PRIVATE PROPERTY

(a)

(b)

Disposition

Sanctions

RULE 118

OFFICIAL COURT REPORTERS

RULE 119

PHOTOGRAPHS,RECORDINGS,AND

BROADCASTS

RULE 120

COURT LIBRARIES

RULE 121

RELEASE OF INFORMATION BY

COURT PERSONNEL

iii

SANCTIONS

RULE 122

(a)

(b)

Imposition of Sanctions

Sanctions within the Discretion

of the Court

RULE 123

MARSHAL SECURITY

RULES 124-199:

RESERVED FOR FUTURE PURPOSES

II. CIVIL RULES

COMMENCEMENT OF ACTIONS

RULE 201

(a)

(b)

(c)

Civil Docket Cover Sheet

~ R2.c.-o~ \ a

t: Re'IIA.

Additional Copies for Court Use

MOTION PRACTICE

RULE 202

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

Form

Content

Decided on Motion Papers and Briefs

Limitations on Length of Briefs

Movant's Supporting Documents and Briefs

Response to Motion and Brief

Extension of Time for Filing Supporting

Documents and Briefs

Reply Brief

Motions Not Requiring Briefs

Failure to File and Serve Motion Papers

INITIAL PRETRIAL PROCEEDINGS

RULE 203

(a)

(b)

(c)

(d)

(e)

Requirement for Initial Pretrial Order

Meeting of the Parties

Initial Pretrial Order by Conference

Initial Pretrial Order upon the Joint Rule

26(f) Report

Discovery with Respect to Expert Witnesses

RULE 204

DIFFERENTIATED CASE

MANAGEMENT AND DISCOVERY

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

Differentiated Case Management

Discovery Procedures and Materials

Conference of Attorneys with Respect to

Motions and Objections Relating to

Discovery

Expedited Resolution of Some Discovery

Disputes

Award of Expenses of Discovery Motion

Completion of Discovery

Extension of the Discovery Period or

Request for More Discovery

Trial Preparation After the Close of

Discovery

MEDIATED SETTLEMENT

CONFERENCES

RULE 205

(a)

(b)

(c)

Mediated Settlement Conferences during

Discovery

Automatic Selection by these Rules

Exemption from Mediated Settlement

Conference

SUMMARY JUDGMENT MOTIONS

RULE 206

(a)

(b)

(c)

(d)

(e)

(f)

(g)

Notice of Dispositive Motion

Filing of Dispositive Motions

Limitations on Length of Briefs

Form of Briefs -- Summary Judgment

Motion by Claimant

Form of Briefs -- Summary Judgment

Motion by Defending Party

Summary Judgment Motions and Trial Dates

Failure to Timely File Dispositive Motions

TRIAL DATES AND FINAL PRETRIAL

PREPARATION

RULE 207

(a)

Establishment of Trial Date

(b)

(c)

Continuance of Trial

Final Pretrial Preparation

TRIAL PROCEDURE

RULE 208

(a)

(b)

(c)

RULE 209

Opening Statements in Civil Actions

Documents, Other than Exhibits,

Used at Trial

Absence During Return of Verdict

TAXATION OF COSTS

(a)

(b)

(c)

(d)

(e)

Filing Bill of Costs

Objections to Bill of Costs

Taxable Costs

Costs in Settlements

Payment of Costs

RULE 210

AWARD OF STATUTORY

ATTORNEY'S FEES

RULE 211

INJUNCTIONS AND TEMPORARY

RESTRAINING ORDERS

(a)

(b)

Form of Application

Hearing

CLASS ACTIONS

RULE 212

(a)

(b)

(c)

(d)

Class Action Complaint

Motion for Class Action Determination

Class Action Counterclaims or Cross-Claims

Burden of Proof; Notice

MINORS AND INCOMPETENTS AS

PARTIES

RULE 213

(a)

(b)

(c)

(d)

Capacity to Sue or Be Sued

Appointment of Guardian ad !item

Termination of Actions; Court Hearing and

Approval

Fees

(e)

(t)

RULE 214

Consent Judgments Approving Settlement("

Payment of Judgment

CLAIM OF UNCONSTITUTIONALITY;

THREE-JUDGE COURTS

(a)

(b)

Notification

Additional Copies

RULE 215

SETTLEMENT

RULES 216-299:

RESERVED,FOR FUTURE PURPOSES

III. CRIMINAL RULES

RULE 301

PROMPT DISPOSITION OF CRIMINAL

CASES

RULE 302

PRETRIAL MOTIONS IN CRIMINAL

CASES

(a)

(b)

(c)

(d)

Time for Filing

Extension of Time for Filing

Motions Adopting Other Motions

Discovery Motions

RULE 303

REPRESENTATION OF CERTAIN

DEFENDANTS

RULE 304

PAYMENT OF FIXED SUM IN LIEU OF

APPEARANCE IN CERTAIN

MISDEMEANOR CASES

RULE 305

FAIR TRIAL DIRECTIVES

(a)

(b)

RULE 306

Prohibited Statements; Attorney's

Obligations

Attorney's Employees and Associates

SENTENCING RECOMMENDATIONS

BY PROBATION OFFICERS

RULES 307-399:

RESERVED FOR FUTURE PURPOSES

PART IV. MAGISTRATE JUDGE RULES

RULE 401

AUTHORITY OF MAGISTRATE JUDGES

(a)

(b)

RULE 402

Designation to Conduct Trials and to

Perform Other Duties

Authority to Perform Additional Duties

CONSENT TO CIVIL TRIAL

JURISDICTION

(a)

(b)

(c)

Consent to Exercise of Civil Trial

Jurisdiction

Withdrawal of Consent

Reference Discretionary

CONSENT TO DESIGNATION OF

MAGISTRATE JUDGE AS A SPECIAL

MASTER

RULE 403

(a)

(b)

Consent

Reference

RULE 404

ASSIGNMENT OF MATTERS TO

MAGISTRATE JUDGES

RULE 405

OBJECTIONS; APPEALS; STAY OF

ORDER

(a)

(b)

(c)

(d)

RULES 406-499:

Objections to Magistrate Judge's Order

Objections to Magistrate Judge's

Recommendation

Appeal from Judgment

Application for Stay of Magistrate Judge's

Order

RESERVED FOR FUTURE PURPOSES

viii

V. RULES OF DISCIPLINARY ENFORCEMENT

RULE 501

PURPOSE OF DISCIPLINARY RULES

RULE 502

ATTORNEYS CONVICTED OF A

CRIME

(a)

(b)

(c)

(d)

(e)

RULE 503

Suspension Upon Filing of Judgment

Definition of Serious Crime

Conviction of Serious Crime

Conviction of Other Crime

Reinstatement after Suspension

DISCIPLINE IMPOSED BY ANOTHER

COURT OR BYA STATE BAR

(a)

(b)

(c)

Duty to Inform the Clerk

Show Cause Order

Imposition of Discipline

RULE 504

DISBARMENT ON CONSENT OR

RESIGNATION IN ANOTHER COURT

OR BEFORE A STATE BAR

RULE 505

STANDARDS FOR PROFESSIONAL

CONDU:CT

(a)

(b)

RULE 506

DISCIPLINARY PROCEEDINGS

(a)

(b)

(c)

(d)

RULE 507

Disciplinary Enforcement

Standards for Conduct

Referral of Complaints to Counsel or to a

State Bar

Recommendation by Counsel

Initiation of Disciplinary Proceedings

Hearing

DISBARMENT ON CONSENT WHILE

UNDER DISCIPLINARY

INVESTIGATION OR PROSECUTION

(a)

(b)

(c)

RULE 508

Consent to Disbarment

Order of Disbarment

Record

REINSTATEMENT

(a)

(b)

(c)

(d)

(e)

(t)

Automatic Reinstatement; Reinstatement

by Order

Time for Petition

Procedure

Costs

Order of Reinstatement

Successive Petitions

RULE 509

ATTORNEYS SPECIALLY APPEARING

RULE 510

SERVICE OF PAPERS AND OTHER

NOTICES

RULE 511

APPOINTMENT OF COUNSEL

RULE 512

DUTIES OF THE CLERK

(a)

(b)

(c)

(d)

Obtaining Certificate of Conviction

Obtaining Certificate of Disciplinary

Judgment or Order

Clerk to Inform Other Jurisdictions

Clerk to Inform the National Discipline

Data Bank

RULE 513

JURISDICTION

RULES 514-599:

RESERVED FOR FUTURE PURPOSES

VI. RULES FOR MEDIATED

SETTLEMENT CONFERENCES

RULE 601

PURPOSE OF MEDIATED

SETTLEMENT CONFERENCES

RULE 602

SELECTION OF CASES FOR

MEDIATED SETTLEMENT

CONFERENCES

(a)

(b)

(c)

(d)

RULE 603

MEDIATORS

(a)

(b)

(c)

RULE 604

Certification

Compensation of Mediators

Compensation of Mediators when a Party

is Unable to Pay

SELECTION OF THE MEDIATOR

(a)

(b)

(c)

(d)

RULE 605

Selection by Agreement

Selection by the Clerk

Disqualification

Copies of the Pleadings

PROCEDURES FOR MEDIATED

SETTLEMENT CONFERENCES

(a)

(b)

(c)

(d)

(e)

(t)

(g)

(h)

RULE 606

Automatic Selection by these Rules

Discretionary Selection by the Court

Stipulated Selection by the Parties

Exemption from Mediation

Time Period for Mediated Settlement

Conference

Scheduling the Mediated Settlement

Conference

Submission of Position Papers to

Mediator

Duties of Parties, Representatives,

and Attorneys

Authority of the Mediator

Duties of the Mediator

Agreement to Modify Mediation

Procedures

Sanctions for Failure to Appear

COMPLETION OF THE MEDIATED

SETTLEMENT CONFERENCE

RULE 607

EVALUATION OF THE MEDIATION

PROGRAM

RULES 608-699:

RESERVED FOR FUTURE PURPOSES

APPENDIX OF FORMS

FORM 1

JOINT RULE 26(t) REPORT

FORM2

RULE 26(t) REPORT

xii

GENERAL RULES

July 1, 1995

RULE 101

PHILOSOPHY OF RULES

These rules shall be construed and enforced in such

manner as to avoid technical delay, permit just and prompt

determination of all proceedings, and promote the efficient

administration of justice.

July 1, 1995

RULE 102

SCOPE OF RULES

These rules shall govern the procedure in all proceedings before this court, except for proceedings before the

bankruptcy court. As used in these rules, the terms "judge"

and "court" refer to either a United States District Judge or

United States Magistrate Judge, unless the context or any rule

of law indicates otherwise.

July 1, 1995

RULE 103

ATTORNEYS

(a)

Roll of Attorneys. The bar of this court shall

consist of those attorneys admitted to practice before this

court.

(b)

Eligibility and Admission. To be eligible for

admission to the bar of the court, a person must be admitted

to the practice of law in this state and in good standing with

the Supreme Court of North Carolina. A judge will consider

a request for admission only upon motion made in open court

by a member of the bar of this court. Prior to being admitted

to practice, an attorney must certify, on the application for

admission to practice form provided for use in this court, that

the attorney has read and is familiar with the Federal Rules of

Civil Procedure, the Federal Rules of Criminal Procedure, the

Federal Rules of Evidence, the Local Rules of this Court, and

the North Carolina Code of Professional Responsibility.

Attorneys seeking admission to practice in this court must take

an oath or make an affirmation in a form approved by the

court and pay the filing fee required by the Administrative

Office of the United States Courts for admission to practice in

this district. When the application form prescribed for use by

this court is completed and the appropriate filing fee has been

paid to the Clerk of Court of this court, a judge or magistrate

judge of the Eastern or Western Districts of North Carolina,

upon being presented evidence that the above-mentioned

application has been filed and that the requisite fees have been

paid, may admit an attorney who is qualified according to

these rules to practice before this court. 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 Western 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 admitting the attorney to practice in either of the

aforementioned districts.

(c)

Litigants Must Be Represented by a Member

of the Bar of this Court.

(1)

Litigants in civil and criminal actions and

parties in bankruptcy proceedings before this court, except

governmental agencies and parties appearing prose, must be

represented by at least one attorney who is a member of the

bar of this court. The service of all pleadings and papers

permitted by the Federal Rules of Civil and Criminal Procedure, shall be sufficient if made upon such attorney.

· (2)

All pleadings and papers presented to the clerk

for filing, except by attorneys representing governmental

agencies or parties appearing pro se, shall be rejected by the

clerk unless signed by a member of the bar of this court.

(d)

Special Appearance.

(1)

Attorneys who are members in good standing of

the bar of the highest court of any state or the District of

Columbia may practice in this court for a particular case in

association with a member of the bar of this court. By

entering an appearance, an attorney agrees that:

(i)

the attorney will be responsible for

ensuring the presence of an attorney

who is familiar with the case and has

authority to control the litigation at all

conferences, hearings, trials and other

proceedings; and that

(ii)

the attorney submits to the disciplinary

jurisdiction of the court for any misconduct in connection with the litigation for

which the attorney is specially appearing.

(2)

A member of the bar of this court who accepts

employment in association with a specially

appearing attorney is responsible to this court

for the conduct of the litigation or proceeding

and must sign all pleadings and papers, except

for certificates of service. Such member must

be present during pretrial conferences, potentially dispositive proceedings, and trial.

(e)

Withdrawal of Appearance.

No attorney

who has entered an appearance in any civil or criminal action

shall be permitted to withdraw an appearance, or have it

stricken from the record, except on order of the court.

July 1, 1995

RULE 104

COURT SCHEDULE AND CONDUCT OF BUSINESS

(a)

Headquarters.

The headquarters of the

court shall be located in Greensboro. AU pleadings and

papers submitted for filing shall be presented to the clerk in

Greensboro, except that papers may be filed in open court in

any court location when permitted by a judge.

(b)

Scheduling.

Conferences, hearings, and

trials will be scheduled by the court or by the clerk at the

court's direction. All sessions of court will commence at 9:30

a.m. unless otherwise announced.

Naturalization.

Petitions for naturalization

(c)

will be considered by the court at Greensboro, North Carolina, on Fridays after the third Mondays in February, May,

August, and on the Friday before Thanksgiving in November.

In its discretion, the court may at other times consider

petitions for naturalization when made by members of the

armed services, seamen on merchant vessels registered under

the laws of the United States, members of the immediate

families and dependents of such personnel, or other persons in

exceptional circumstances.

( d)

Divisions of the Court.

There are five

divisions of the court, as follows:

Division

Counties Comprising Division

Chatham

Durham

Lee

Orange

Person

Durham

Greensboro

Alamance

Caswell

Guilford

Randolph

Rockingham

Hoke

Montgomery

Moore

Richmond

Scotland

Salisbury

Cabarrus

Davidson

Davie

Rowan

Stanly

Winston-Salem

Forsyth

Stokes

Surry

Yadkin

July 1, 1995

RULE 105

EXTENSIONS OF TIME AND CONTINUANCES

OF HEARINGS

(a)

Motions for an Extension of Time to Perform

an Act.

All motions for an extension of time to perform

an act required or allowed to be done within a specified time

must show good cause, prior consultation with opposing

counsel, and the views of opposing counsel. Extensions will

not be allowed unless the motion is made before the expiration

of the specified time, except upon a showing of excusable

neglect. Consent orders extending time may be signed by the

clerk to the extent provided by Local Rule 108.

(b)

Motions for Continuance.

All motions to

continue a pretrial conference, hearing on a motion, or the

trial of an action must be presented through the clerk's office

for the court's consideration reasonably in advance of the

hearing date and must reflect the views of opposing counsel.

July 1, 1995

RULE 106

FORM OF PLEADINGS AND PAPERS

(a)

Form.

Pleadings, motions, briefs, and

other papers submitted for filing must be typewritten, printed,

or legibly handwritten on letter size paper. The pages shall be

unfolded and shall be bound at the top and numbered at the

bottom, without manuscript cover. The margin at the top of

each page shall not be less than one and one-quarter inches.

Typewritten documents should be double spaced or one and

one-half spaced. Mechanically reproduced copies which bear

an original signature will be accepted by the court as originals.

Identification of Documents.

All papers

(b)

submitted for filing shall follow the heading format set out in

the Appendix of Forms, Fed.R.Civ.P., and papers submitted

subsequent to the original complaint shall bear the case

number.

(c)

Telephone Numbers and Addresses. Parties

or attorneys signing papers submitted for filing must state

their telephone numbers, as well as their addresses, and the

N. C. State Bar number of attorneys who are admitted to

practice before this court.

(d)

Exhibits to Pleadings or Papers.

Bulky or

voluminous materials should not be submitted for filing with

a pleading or paper, or incorporated by reference therein,

unless such materials are essential. The court may order any

pleading or paper stricken if filed in violation of this rule.

(e)

Civil Rights Action5by Prisoners, 42 U.S.C.

§ 1983.

All pro se complaints filed by state prisoners

seeking relief under 42 U.S.C § 1983 shall be filed with the

clerk in compliance with the instructions of the clerk and on

appropriate forms which are available without charge in the

clerk's office. In each action, an original and one copy of the

complaint for the court and one copy of the complaint for each

defendant must be provided by the plaintiff.

July 1, 1995

RULE 107

BRIEFS

(a)

Contents.

AU briefs filed with the court

shall contain:

(1)

A statement of the nature of the matter before

the court.

A concise statement of the facts. Each state(2)

ment of fact should be supported by reference to a part of the

official record in the case.

A statement of the question or questions

(3)

presented.

(4)

The argument, which shall refer to all statutes,

rules and authorities relied upon.

(b)

Citation of Cases. Cases cited should include

parallel citations, the year of the decision, and the court

deciding the case. I(:'petition for certiorari was filed in the

United States Suprem~ Court, disposition of the case should

be shown with three parallel citations [e.g. Carson v. Warlick,

238F.2d 724 (4th. Cir. 1956), cert. denied, 353 U.S. 910, 77

S.Ct. 665, 1 L.Ed.2d.664 (1957)].

(c)

Citation of Unpublished Decisions.

Unpublished decisions may be cited only if the unpublished

decision is furnished to the court and to opposing parties or

their counsel when the brief is filed. Unpublished decisions

should be cited as follows: Wise v. Richardson, No. C-70-191S (M.D.N.C., Aug. 11, 1971).

(d)

Citation of Decisions Not Appearing in

Certain Published Reports.

Decisions published in

reports other than the West Federal Reporter System, the

official North Carolina reports and the official United States

Supreme Court reports (e.g., C.C.H. Reports, Labor Reports,

U.S.P.Q. reported decisions of other states or other specialized reporting services) may be filed only if the decision is

furnished to the court and to opposing parties or their counsel

when the brief is filed.

Additional Copies of Briefs for Court Use.

At the time the original of a brief is filed, a working copy of

the brief for use by the judge shall be delivered to the clerk.

(e)

Corrected

July 10, 1995

RULE 108

ORDERS AND JUDGMENTS GRANTABLE BY

CLERK

(a)

Orders and Judgments.

The clerk is

authorized to grant the following orders and judgments

without direction by the Court:

(1)

Consent orders for the substitution of attorneys.

(2)

Upon a showing of good cause, consent orders

in civil actions for extending for not more than 30 days (plus

an additional 30 days in exceptional circumstances) the time

within which to answer or otherwise plead or to respond to

motions.

(3)

Consent orders dismissing an action, except in

cases governed by Fed.R.Civ.P. 23 or 66.

(4)

Entry of default and judgment by default as

provided for in Fed.R.Civ.P. 55(a) and 55(b)(l).

(5)

Orders canceling liability on bonds other than

orders disbursing funds from the court's registry account.

(6)

Orders appointing persons to serve process

pursuant to Fed.R.Civ.P. 4(c).

(7)

Ex parte orders as authorized in Local Rule

202(g). Applications for extensions of time, orders or judgments shall be accompanied by a proposed order.

(b)

Clerk's Action Reviewable.

The actions of

the clerk may be suspended, altered, or rescinded by the court

upon cause shown.

July 1, 1995

RULE 109

ACCESS TO COURT RECORDS

(a)

Access.

The public records of the court

are available for examination in the clerk's office during

normal business hours.

(1)

No file, pleading or paper, or index card may

be removed from the clerk's office without the approval of a

judge.

(2)

When removal of a file or document is authorized, the clerk will set a date for its return and will require

a written receipt for its release.

(b)

Copies.

The clerk will make and furnish

copies of official court records upon request and upon

payment of prescribed fees. The official court record consists

of items filed on the right-hand side of the case folder. Items

filed on the left hand side of the case folder, while available

for public examination, may not be copied without the written

approval of a judge. Requests for copies of items filed on the

left hand side of the case folder must be submitted in writing

to the clerk of court, who will refer the matter to the appropriate judge and advise the requester of the judge's decision.

July 1, 1995

RULE 110

SURETIES

(a)

Security.

Except as otherwise provided by

law or by order of the court, all bonds, guaranties, and

undertakings must be secured by:

(1)

Deposit of cash, certified check, certificate of

deposit, bank draft, Post Office money order, negotiable bond,

note of the United States as defined in 6 U.S. C. § 15, or other

bond or note of the United States with the agreement provided

for in 6 U.S.C. § 15,J

(2)

Undertaking of guaranty of a company holding

a certificate of authority from the U.S. Department of

Treasury as an acceptable surety on federal bonds; which

company has filed with the clerk the designation of a resident

of this district as agent, dated not more than three years

earlier than the date of the undertaking, upon whom process

may be served; and which company is otherwise qualified by

having met all requirements of the law of North Carolina and

of 6 U.S.C. §§6-13~ or

(3)

Undertaking of individual surety or sureties who

are residents of North Carolina and own property within the

state worth double the amount of the bond or undertaking over

all exemptions, debts, liabilities and other obligations.

(b)

Individual Sureties.

(1)

An individual surety must execute an affidavit

of justification giving full name, occupation, residence

address, business address, and facts showing his financial

qualification to act as surety.

(2)

A husband and wife are considered as one

surety.

(3)

Members of the bar, officers and employees of

this court, and employees of the Department of Justice serving

in this district may not serve as sureties in any suit, action, or

proceeding in this court.

Approval.

All bonds, guaranties, undertak(c)

ings, and individual sureties must be approved by a judge or

the clerk. Individual sureties who justify on the basis of

ownership of real or personal property may be required to

provide proof of ownership such as a certificate.of title, and

a title search conducted by an attorney other ih~'·the attorney

representing the party on whose behalf the bond is being

posted, and give security in the form of a proper security

instrument or deed of trust.

July 1, 1995

RULE 111

REGISTRY FUNDS

(a)

Deposit with the Treasury.

Unless otherwise ordered by the court, the clerk shall deposit registry

funds in the Treasury of the United States.

(b)

Investment in Income-Earning Account.

Upon motion or upon consent of the parties, the court may

order the clerk to invest certain registry funds in an incomeearning account. The order may issue upon a consent request

of the parties or upon motion by an interested party, in

accordance with the following procedures:

(1)

A consent request must demonstrate the assent

of all interested and potentially interested parties. The

agreement must demonstrate that the investment will be in

compliance with applicable provisions of the law regulating

the investment of public monies, provide for proper disposition of future earnings, and set out with particularity the

following information:

(i)

the form of deposit;

(ii)

the amount to be invested;

(iii)

the type of investment to be made by

the clerk of court; i.e., passbook savings, insured money fund, CD, etc:.;

(iv)

the name and address of the private

institution where the deposit is to be

made;

(v)

the rate of interest at which the deposit

is to be made, if possible;

(vi)

the length of time the money should be

invested, whether it should automatically be reinvested, etc., keeping in mind

that some investments include a penalty

for early withdrawal;

(vii) the name and address of the designated

beneficiary or beneficiaries;

(viii)

the form of additional collateral to be

posted by the private institution in the

event that the standard F.D.I.C. coverage is insufficient to insure the total

amount of deposit; and

(ix)

such other information that may be

deemed appropriate under the facts and

circumstances of the particular case.

The consent request shall be accompanied by a proposed order

directing the clerk to proceed with the investment.

(2)

A motion may be filed ex pa,te by an interested

party, and the court may enter an order in advance of the

filing of any response thereto. The motion must set forth the

showings required in subsection (b)(l) concerning the investment and must include a proposed order. The motion must be

served on all known interested parties who do not join therein.

If an order is entered prior to the filing of a response in

opposition, the motion will be reconsidered by the court. The

court may determine the motion upon the record or may, in its

discretion, call for a hearing on the matter.

(3)

The clerk of court shall deduct from the income

earned a fee, equal to the first 45 days income earned on the

investment or the income earned if the investment is for a

period less than 45 days, whenever such income becomes

available for deduction, for deposit to the credit of the

Judiciary, without order of the court.

July 1, 1995

RULE 112

JURIES IN CIVIL AND CRIMINAL CASES

Examination of jurors.

(1)

The court will conduct the examination of

prospective jurors.

(2)

When the court's examination is completed,

attorneys and parties appearing pro se may request that the

court ask additional questions to the prospective jurors.

(b)

Contacts Prohibited.

(1)

All parties, witnesses, and attorneys shall avoid

any extra-judicial contact or communication with a grand juror

or member of a petit jury venire or panel who has been or

may be selected in a case in which that person is involved.

No person may have any extra-judicial contact or communication, either directly or indirectly, with a grand juror, member

of a petit jury venire or panel which may reasonably have the

effect of influencing, or which is intended to influence, the

grand juror, potential petit juror, or sitting petit juror.

(2)

Attorneys for parties shall inform their clients

and witnesses of this rule.

(3)

No person shall approach a juror, either directly

or through any member of his immediate family, in an effort

to secure information concerning the juror's background.

(4)

No provision of this rule is intended to prohibit

communication with a petit juror after the juror has been

dismissed from further service, so long as the communication

does not tend to harass, humiliate, or intimidate the juror in

any fashion.

(c)

Disclosure of Names and Addresses of

Prospective Jurors.

(1)

The names of prospective jurors for any session

of court or for a specific case may not be disclosed prior to

their reporting for duty except in compliance with instructions

of the court. The clerk will make available to counsel for the

parties, and to any parties appearing pro se, a list which sets

(a)

forth the name, general address, and occupation of each

potential juror when court is opened for the session for which

the jurors have been summoned.

(2)

The names, address, and telephone numbers of

persons who have served as jurors may not be disclosed by

the clerk's office without court permission.

(d)

Number of Jurors in Civil Jury Cases.

civil jury cases the jury shall consist of six (6) or more

members.

July 1, 1995

RULE 113

JURY ARGUMENTS AND INSTRUCTIONS

(a)

Jury Arguments.

In the trial of civil actions

the party having the burden of proof shall have the right to

open and close the jury argument, without regard to whether

the defendant has offered evidence. If each of the parties has

the burden of proof on one or more issues, the court, in its

discretion, shall determine the order of arguments. All

arguments shall be subject to such time limitations as may be

imposed by the court.

Instructions to Jury.

In all cases tried to a

(b)

jury, a party who desires the jury to be instructed on a

particular point must set it out in writing and furnish it to the

court before jury arguments commence.

July 1, 1995

RULE 114

COURTROOM PRACTICES

(a)

Addressing the Court.

Attorneys or pro

se litigants shall rise when addressing the court, and shall

make all statements to the court from behind the counsel table

or the lectern facing the court. They shall not approach the

bench, except upon the permission of the court.

(b)

Questioning Witnesses.

While questioning

witnesses, attorneys or pro se litigants shall remain seated or

standing behind the counsel table or standing at the lectern.

They shall not approach the witness except for the purpose of

examining the witness with respect to an exhibit. Only one

attorney for each party may participate in the examination or

cross-examination of a witness.

July 1, 1995

RULE 115

CUSTODY AND DISPOSITION OF TRIAL EXHIBITS,

SEALED DOCUMENTS, AND FILED DEPOSITIONS

(a)

Custody with the Clerk. Unless otherwise

directed by the court, all trial exhibits admitted into evidence

in criminal and civil actions shall be placed in the custody of

the clerk, except as provided in section (b) below,

(b)

Custody with the Offering Party.

All

exhibits not suitable for filing and transmission to the court of

appeals as a part of a record on appeal shall be retained in the

custody of the party offering them, subject to the orders of the

court. Such exhibits shall include, but not be limited to, the

following types of bulky or sensitive exhibits: narcotics and

other controlled substances, firearms, ammunition, explosive

devices, jewelry, liquor, poisonous or dangerous chemicals,

money or articles of high monetary value, counterfeit money,

and documents or physical exhibits of unusual bulk or weight.

At the conclusion of a trial or proceeding, the party

offering such exhibits shall retain custody of them and be

responsible to the court for preserving them in their condition

as of the time admitted until any appeal is resolved or the time

for appeal has expired, The party retaining custody shall

make such exhibits available to opposing counsel for use in

preparation of an appeal and be responsible for their safe

transmission to the appellate court, if required,

(c)

Disposition of Exhibits, Sealed Documents,

and Filed Depositions by Clerk.

Any exhibit, sealed

document, or filed deposition in the clerk's custody more than

30 days after the time for appeal, if any, has expired, or an

appeal has been decided and mandate received, may be

returned to the parties or destroyed by the clerk, Complaints,

answers, motions, responses and replies, whether sealed or

not, must be forwarded to the General Services Administration

for permanent storage, The confidentiality of sealed documents cannot be assured after the case file is transferred to the

General Services Administration for records holding.

(d)

Depositions. Depositions read into the court

record are considered exhil;Jits for which the parties shall be

responsible as provided in section (b) above. Depositions on

file admitted into evidence but not read into the record shall

be retained in the clerk's custody and disposed of as authorized in section (c) of this rule.

July 1, 1995

RULE 116

DESIGNATION OF CONTENTS OF RECORD ON

INTERLOCUTORY APPEAL

With respect to an interlocutory appeal, the clerk shall

certify and forward to the court of appeals a record consisting

of copies of the docket entries, all pleadings (complaints,

counterclaims, cross claims, and answers thereto), and the

order from which the appeal is taken.

July 1, 1995

RULE 117

DISPOSITION OF PRIVATE PROPERTY

(a)

Disposition. Whenever, during the course of

an investigation, a trial of any action, or any other proceeding

in this court, money, contraband, or other private property

comes into the possession or custody of a law enforcement

officer or an officer of the court, which win require an order

of this court to determine its ownership or proper disposition,

it is the responsibility of the attorney representing the party

having original custody or control of such property to apply

to the court for an order determining its ownership and

directing its disposition.

(1)

This application must be made before the

conclusion of the litigation while all parties, are before the

court in person or through their attorneys.

(2)

If the court cannot determine ownership or the

proper disposition on the basis of the record or information

from the parties before it, application must be made for an

order providing for temporary custody pending institution of

appropriate civil proceedings to determine final ownership or

disposition.

(b)

Sanctions.

The court may impose sanctions

as provided in Local Rule 122 against any party or attorney

whose failure to comply with this rule necessitates a subsequent hearing or court proceeding which would otherwise not

have been necessary.

July 1, 1995

RULE 118

OFFICIAL COURT REPORTERS

The duties and responsibilities of official court reporters of this court are set forth in the Court Reporters Management Plan which is a public document on file with the office

of the clerk.

July 1, 1995

RULE 119

PHOTOGRAPHS, RECORDINGS,

AND BROADCASTS

Radio or television broadcasting and the use of

photographic,' electronic, or mechanical reproduction or

recording equipment without court permission is prohibited in

courtrooms or their environs. "Environs" is defined to mean

the courtrooms, the offices of the judges, clerk, probation

officers, or any corridor connecting,. qr adjas,~nt t;l}~:i;eto.

Ceremonial proceedings such as the ~~~ii I fsf'd'afus of

office to appointed officials of the court, naturalization, and

presentation of portraits, may be photographed in or broadcast

from the courtroom under the supervision of the court. This

rule does not apply to courtroom proceedings by other

government agencies.

July 1, 1995

RULE 120

COURT LIBRARIES

The court's libraries are maintained for the exclusive

use of the judges and the clerk.

July 1, 1995

RULE 121

RELEASE OF INFORMATION BY COURT

PERSONNEL

All court personnel, including, among others, the

United States Marshal and deputies, the clerk of court and

deputies, the chief probation officer and officers, the chief

pretrial services officer and officers, bailiffs, and court

reporters, are prohibited from disclosing to any person,

without authorization by the court, information relating to a

case that is not part of the public records of the court. This

proscription applies to the divulgence of information concerning arguments and hearings held in chambers or otherwise

outside the presence of the public.

July 1, 1995

RULE 122

SANCTIONS

Imposition of Sanctions.

If an attorney or

(a)

a party fails to comply with a local rule of this court, the

court may impose sanctions against the attorney or party, or

both. The court may make such orders as are just under the

circumstances of the case, including the following:

(1)

an order that designated matters or facts shall

be taken as established for purposes of the action;

(2)

an order refusing to allow the failing party to

support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters in evidence;

(3)

an order striking out pleadings or parts thereof,

or staying proceedings until the rule is complied with, or

dismissing the action or any part thereof, or rendering a

judgment by default against the failing party;

(4)

an order imposing costs, including attorney's

fees, against the party, or the party's attorney, who has failed

to comply with a local rule.

(b)

Sanctions Within the Discretion of the

Court.

The imposition of sanctions for violation of a

local rule is discretionary with the court. In considering the

imposition of sanctions, the court may consider whether a

party's failure was substantially justified or whether other

circumstances make the imposition of sanctions inappropriate.

A'7

July 1, 1995

RULE 123

MARSHAL SECURITY

The United States Marshal or a deputy shall be present

at all proceedings held in open court, unless otherwise ordered

by the court.

Rules 124-199:

Reserved for future purposes.

II.

CIVIL RULES

July 1, 1995

RULE 201

COMMENCEMENT OF ACTIONS

AND FILING OF PAPERS

(a)

Civil Docket Cover Sheet.

A civil docket

cover sheet, in a form supplied by the clerk, must be completed and submitted in triplicate with any complaint commencing

an action or any notice of removal from state court.

Records to be Removed. Upon removal of

(b)

an action from state court, the removing party shall cause a

complete copy of the state court file to be filed in this court.

Additional Copies for Court Use.

A copy

(c)

of the following documents shall be delivered to the clerk for

use by the court when the original is filed:

(1)

A brief.

(2)

Proposed findings of fact and conclusions of

law.

(3)

Requests for jury instructions.

July 1, 1995

RULE 202

MOTION PRACTICE

(a)

Form.

All motions, unless made during

a hearing or at trial, shall be in writing and shall be accompanied by a brief except as provided in section (i) of this rule.

Each motion shall be set out in a separate pleading.

(b)

Content.

All motions shall state with

particularity the grounds therefor, shall cite any statute or rule

of procedure relied upon, and shall set forth the relief or order

sought.

(c)

Decided on Motion Papers and Briefs.

(1)

Motions shall be considered and decided by the

court on the pleadings, admissible evidence in the official

court file, and motion papers and briefs, without hearing or

oral argument, unless otherwise ordered by the court. Special

considerations thought by counsel sufficient to warrant a

hearing or oral argument may be brought to the court's

attention in the motion or response.

(2)

The clerk shall give at least five days' notice of

the date and place of oral argument. The court, however, for

good cause shown may shorten the five-day notice period.

(d)

Limitations on Length of Briefs.

Briefs in

support of motions and responsive briefs are limited in length

to 20 pages, and reply briefs are limited to 10 pages.

(e)

Movant's Supporting Documents and Briefs.

When allegations of facts not appearing of record are relied

upon to support a motion, affidavits, parts of depositions, and

other pertinent documents then available shall accompany the

motion. If supporting documents are not then available, the

party may move for an extension of time in accordance with

section (g) of this rule.

(f)

Response to Motion and Brief. The respondent, if opposing a motion, shall file a response, including

brief, within 20 days after service of the motion (30 days if

the motion is for summary judgment; see Local Rule 206[d]

and [e].) If supporting documents are not then available, the

respondent may move for an extension of time in accordance

with section (g) of this rule. For good cause appearing

therefor, a respondent may be required to file any response

and supporting documents, including brief, within such shorter

period of time as the court may specify.

(g)

Extension of Time for Filing Supporting

Documents and Briefs.

Upon proper motion accompanied

by a proposed order, the clerk may enter an ex parte order,

specifying the time within which supporting documents and

briefs may be filed pursuant to sections (e) and (f), if it is

shown in writing that such documents are not available or

cannot be filed contemporaneously with the motion or response. The time allowed to an opposing party for filing a

response shall not run during any such extension. If good

cause to grant the motion is not apparent upon the face of the

motion, the clerk may direct that the motion be served upon

the opposing party, who shall be allowed 10 days to respond.

(h)

Reply Brief.

A reply brief may be filed

within 10 days after service of the response. A reply brief is

limited to discussion of matters newly raised in the response.

A suggestion of subsequently decided controlling authority,

without argument, may be filed at any time prior to the

court's ruling and shall contain only the citation to the case

relied upon, if published, or a copy of the opinion if the case

is unpublished.

(i)

Motions Not Requiring Briefs.

No brief is

required by either movant or respondent, unless otherwise

directed by the court, with respect to the following motions:

(1) discovery motions in which the parties have agreed to the

expedited procedures described in Local Rule 204(d); (2) for

extension of time for the performance of an act required or

allowed to be done, provided request therefor is made before

the expiration of the period originally prescribed or as

extended by previous orders; (3) to continue a pretrial

conference, hearing, or the trial of an action; (4) to add

parties; (5) to amend the pleadings; (6) to file supplemental

pleadings; (7) to appoint a next friend or guardian ad litem;

(8) for substitution of parties; and (9) to stay proceedings to

enforce judgment. The above motions, while not required to

be accompanied by a brief, must state good cause therefor and

cite any applicable rule, statute, or other authority justifying

the relief sought. These motions must be accompanied by a

proposed order.

Failure to File and Serve Motion Papers.

The failure to file a brief or response within the time specified

in this rule shall constitute a waiver of the right thereafter to

file such brief or response, except upon a showing of excusable neglect. A motion unaccompanied by a required brief

may, in the discretion of the court, be summarily denied. A

response unaccompanied by a required brief may, in the

discretion of the court, be disregarded and the pending motion

may be considered and decided as an uncontested motion. If

a respondent fails to file a response within the time required

by this rule, the motion will be considered and decided as an

uncontested motion, and ordinarily will be granted without

further notice.

July 1, 1995

RULE 203

INITIAL PRETRIAL PROCEEDINGS

(a)

Requirement for Initial Pretrial Order.

There shall be an initial pretrial order entered pursuant to the

provisions of Fed.R.Civ.P. 16(b) and 26(t) in every civil case,

except in:

(1)

Social Security cases and other actions for

review of administrative decisions;

(2)

Prisoner petitions;

(3)

Summons or subpoena enforcement proceedings;

(4)

Bankruptcy appeals;

(5)

Government collection cases and forfeiture

proceedings; and

(6)

Cases brought by prose plaintiffs.

The above categories of cases are exempted from the

timing-and-sequence-of-discovery provisions of Rule 26(d),

and the meeting of parties described in Rule 26(f). Category

(1), (2), (3), and (4) cases require no pretrial management and

are ready for adjudication on the pleadings of the parties,

unless the court orders otherwise. Category (5) cases (government collections and forfeitures) shall be governed by a 90day period of discovery from the filing of answer or other

response, with dispositive motions due in accordance with

Local Rule 206. Category (6) cases (brought by pro se

plaintiffs) shall be governed by a scheduling order entered by

the court after an initial pretrial conference, unless the Court

determines, in its discretion, that no conference is necessary.

(b)

Meeting of the parties. Within the time set

by Fed.R.Civ.P. Rule 16(b), the clerk shall schedule an initial

pretrial conference and give at least thirty (30) days notice

thereof. The parties must hold their Fed.R.Civ.P. 26(t)

meeting at least 14 days before the scheduled initial pretrial

conference and submit to the court their report within 10 days

thereafter. The parties may not stipulate out of the Rule 26(t)

meeting but must meet to discuss a proposed discovery plan.

The parties are not required to make the initial disclosures

identified in Fed.R.Civ.P. 26(a)(l), as the court elects to be

exempt from the provisions of Rule 26(a)(l). At the Rule

26(t) meeting, the parties shall discuss:

(1)

All matters identified in Rules 16(b) and (c)

and 26(t),

(2)

The possibility of settlement,

(3)

The proper management track for the case

under Local Rule 204,

(4)

The timing of any mediated settlement conference under Local Rules 205 and 602, and the

identity of any agreed-upon mediator,

(5)

The nature of the documents and information

believed necessary for the case,

(6)

Issues of burden and relevance and the discoverability of different types of documents,

(7)

A preliminary schedule for depositions, to be

updated at reasonable intervals upon communication between the parties, and

(8)

The decision of each party whether or not to

consent to the trial jurisdiction of a magistrate

judge.

Lead counsel for each party must meet and discuss the

above-listed matters in a face-to-face meeting unless the

offices of the parties' lead counsel are separated by more than

150 miles, in which event lead counsel may conduct the

conference by telephone. In the absence of agreement to the

contrary, the meeting of the parties shall be held in the office

of the attorney nearest the court location where the initial

pretrial conference is scheduled.

The parties shall jointly prepare a Rule 26(t) Report

(Local Rule Form 1) if they are in agreement concerning a

discovery plan for the case. If they do not agree, each shall

file a separate Rule 26(t) Report (Local Rule Form 2), setting

forth its position on disputed matters. The Reports must be

filed with the court within 10 days of the Rule 26(t) meeting.

Initial Pretrial Order by Conference. If the

(c)

parties are unable to reach agreement on a discovery plan and

therefore submit separate Rule 26(f) Reports (Form 2), they

shall appear for the scheduled initial pretrial conference. Each

party shall personally appear or be represented by an attorney

who has full authority to bind the party on the matters for

discussion at the conference. After hearing from the parties,

the court will enter an initial pretrial order that will control

the conduct of the litigation.

(d)

Initial Pretrial Order upon the Joint Rule

26(f) Report. If the parties reach agreement on a discovery

plan and submit a joint Rule 26(f) Report, the court will enter

an order on the basis of the proposed plan as submitted or as

modified by the court. The parties shall submit to the clerk

sufficient copies of the joint Report so that all parties can

receive a copy after approval by the court. The court may, on

its own motion, modify the plan if it finds in its discretion that

the plan provides for an excessive amount of discovery or the

parties selection of a case management track under Local Rule

204 is unreasonable. The scheduled initial pretrial conference

is automatically canceled upon the submission to the court of

the joint Rule 26(f) Report.

(e) Discovery with Respect to Expert Witnesses.

The initial pretrial order, whether based upon a joint Rule

26(f) Report or a conference following the filing of separate

reports, shall provide that discovery with respect to experts be

conducted within the discovery period established in the case.

The order shall set the date on which disclosure of expert

information under Fed.R.Civ.P. 26(a)(2) must be made.

July 1, 1995

RULE 204

DIFFERENTIATED CASE MANAGEMENT

AND DISCOVERY

(a)

Differentiated Case Management.

Every

case in which an initial pretrial order is entered pursuant to

Local Rule 203(b)-(d) shall be assigned, by agreement of the

parties (if adopted by the court) or by order of the court, to

one of three case-management tracks. The three tracks are

defined as follows:

Standard.

Discovery (including all discov(1)

ery with respect to experts) in cases assigned to this track

shall be completed within four (4) months from the date of the

initial pretrial order. Presumptively, subject to stipulation of

the parties or order of the court on good cause shown,

interrogatories (including subparts) and requests for admission

are limited to 15 in number by each party. Depositions are

presumptively limited to four (4) depositions (including any

experts) by the plaintiffs, by the defendants, and by third-party

defendants.

Complex.

Discovery (including all discov(2)

ery with respect to experts) in cases assigned to this track

shall be completed within six (6) months from the date of the

initial pretrial order, subject to agreement of the parties for a

larger discovery period, if approved by the court. Presumptively, subject to stipulation of the parties or order of the court

on good cause shown, interrogatories (including subparts) and

requests for admission are limited to 25 in number by each

party. Depositions are presumptively limited to seven (7)

depositions (including any experts) by the plaintiffs, by the

defendants, and by third-party defendants.

Exceptional.

Discovery (including all

(3)

discovery with respect to experts) in cases assigned to this

track shall be completed within nine (9) months from the date

of the initial pretrial order. Presumptively, subject to stipulation of the parties or order of the court on good cause shown,

interrogatories (including subparts) and requests for admission

are limited to 30 in number by each party. Depositions are

presumptively limited to 10 depositions (including any experts)

by the plaintiffs, by the defendants, and by third-party

defendants. This management track is reserved for cases of

exceptional complexity. It is not to be used for ordinary

federal cases even though such cases have some complexity·.

and require significant discovery.

(b)

Discovery Procedures and Materials.

(1)

The court expects counsel to conduct discovery

in good faith and to cooperate and be courteous with each

other in all phases of the discovery process. As a part of their

Rule 26(f) Report, the parties must formulate a preliminary

deposition schedule. They must continue to communicate

throughout the discovery period to update the schedule.

(2)

Depositions shall be conducted in accordance

with the following guidelines:

(i)

Counsel shall not direct or request that a witness not answer a question, unless that counsel

has objected to the question on the ground that

the answer is protected by a privilege or a

limitation on evidence directed by the court.

(ii)

Counsel shall not make objections or statements

which might suggest an answer to a witness.

Counsels' statements when making objections

should be succinct, stating the basis of the

objection and nothing more.

(iii)

Counsel and their witness-clients shall not

engage in private, off-the-record conferences

while the deposition is proceeding in session,

except for the purpose of deciding whether to

assert a privilege.

(iv)

Deposing counsel shall provide to the witness's

counsel a copy of all documents shown to the

witness during the deposition. The copies shall

be provided either before the deposition begins

or contemporaneously with the showing of each

document to the witness. The witness and the

witness's counsel do not have the right to

discuss documents privately before the witness

answers questions about them.

(3)

Interrogatories, requests for production of

documents, or requests for admission shall be numbered

consecutively by each party regardless of the number of sets

into which they are divided.

(4)

Depositions and deposition notices, interrogatories, requests for documents, requests for admission, and

answers and responses thereto shall not be filed unless the

court so orders or unless the court will need such documents

in a pretrial proceeding. All discovery papers must be served

on other counsel or parties. The party taking a deposition or

obtaining any material through discovery is responsible for its

preservation and delivery to the court when needed or

ordered. Any party seeking to compel discovery or other

pretrial relief based upon discovery material which has not

been filed with the clerk must identify the specific portion of

the material which is directly relevant and ensure that it is

filed as an attachment to the application for relief.

( c)

Conference of Attorneys With Respect to

Motions and Objections Relating to Discovery. The court

will not consider motions and objections relating to discovery

unless moving counsel files a certificate that after personal

consultation and diligent attempts to resolve differences the

parties are unable to reach an accord. The certificate shall set

forth the date of the conference, the names of the participating

attorneys, and the specific results achieved. It shall be the

responsibility of counsel for the movant to arrange for the

conference and, in the absence of an agreement to the contrary, the conference shall be held in the office of the attorney

nearest the court location where the initial pretrial conference

was convened or, in the absence thereof, nearest to Greensboro. Alternatively, at any party's request, the conference

may be held by telephone.

(d)

Expedited Resolution of some Discovery

If, after a Local Rule 204(c) conference, the

Disputes.

parties agree that a discovery dispute can be ruled upon in a

telephone conference of no more than 30 minutes, the magistrate judge will schedule such a conference and rule on the

dispute without briefing by the parties. Alternatively, if the

parties agree that the dispute can be ruled upon in an in-court

hearing of no more than one hour, without briefing, the

magistrate judge will schedule an early hearing. The fact that

these proceedings an~. sxpedited and without briefing does not

alter the application.fee Fed.R.Civ.P. 37(a)(4) and subsection

(e) of this rule regarding the imposition of sanctions in

discovery motions.

(e)

Award of Expenses of Discovery Motion.

Any ruling on a discovery motion shall ordinarily result in the

imposition of sanctions under Fed. R. Civ. P. 37(a)(4) unless the

court determines that the position taken by the losing party

was justifiable or some other circumstances would make a

sanction unjust.

(f)

Completion of Discovery.

The requirement

that discovery be completed within a specified time means that

adequate provisions must be made for interrogatories and

requests for admission to be answered, for documents to be

produced, and for depositions to be held within the discovery

period.

(g)

Extension of the Discovery Period or Request

Motions seeking an extension of the

for More. Discovery.

discovery period or permission to take more discovery than is

permitted under the initial pretrial order must be made or

presented prior to the expiration of the time within which

discovery is required to be completed. They must set forth

good cause justifying the additional time and will be granted

or approved only upon a showing that the parties have

diligently pursued discovery. The court will permit additional

depositions only on a showing of exceptional good cause.

(h)

Trial Preparation After the Close of Discovery. For good cause appearing therefor, the physical or

mental examination of a party may be ordered at any time

prior to trial. Ordinarily, the deposition of a material witness

not subject to subpoena should be taken during discovery.

However, the deposition of a material witness who agrees to

appear at trial, but who later becomes unable or refuses to

attend, may be ordered at any time prior to trial.

July 1, 1995

RULE 205

MEDIATED SETTLEMENT CONFERENCES

(a)

Mediated Settlement Conferences during

Discovery. In selected civil cases (see section [b] for a

description of cases automatically selected for mediation) there

shall be conducted a mediated settlement conference in

accordance with Local Rule 601 et. seq. The conference may

be set for any time during the discovery period, as agreed by

the parties. In appropriate cases, the parties may wish to

schedule the mediation early in the discovery period, after a

first round of depositions or other discovery. In other cases,

the parties may choose to set the conference near the end of

the discovery period after all, or substantially all, discovery is

complete. The parties shall discuss the timing of the mediated

settlement conference during the Rule 26(f) meeting of the

parties.

(b)

Automatic Selection by these Rules.

Several categories of civil cases are automatically selected for

mediated settlement conferences, without specific order by the

court. These categories include, according to designations on

the civil cover sheet (1) contract [categories 110-140 and 160195, specifically excluding 150-153], (2) tort [all categories,

310-385], (3) civil rights [all categories, 440-444], (4) labor

[all categories, 710-791], (5) property rights [all categories,

820-840], (6) antitrust [category 410], (7) banks and banking

[category 430], (8) securities/ commodities/exchange [category

850] and (9) environmental matters [category 893] ..... ,The

parties to these actions shall discuss mediation plans ¼! the

Fed.R.Civ.P. 26(f) meeting of the parties and report such

plans in their Rule 26(f) Report in preparation for the entry of

an initial pretrial order. See Local Rule 203 (b)(c) and (d).

Cases wherein the United States is a party or the plaintiff

appears pro se are not included within this automatic selection

for mediation.

F,.7

(c)

Exemption from Mediated Settlement Conference. Any party, or parties jointly, may move for exemption

from the requirement for a mediated settlement conference.

The court will grant such a request only for good cause. A

general assertion that settlement is unlikely or only a remote

possibility does not serve as good cause for exemption.

July 1, 1995

RULE 206

SUMMARY JUDGMENT MOTIONS

(a)

Notice of Dispositive Motion.

Any party

who intends to file a motion for summary judgment, or any

other dispositive motion, must file and serve notice of

intention to file a dispositive motion within 10 days following

the close of the discovery period.

Filing of Dispositive Motions.

All disposi(b)

tive motions and supporting briefs must be filed and served

within 30 days following the close of the discovery period.

The page

(c)

Limitations of Length of Briefs.

limitations for briefs on all motions, established by Local Rule

202(d), apply to summary judgment briefs. Principal briefs

are limited to 20 pages, and reply briefs are limited to 10

pages.

(d)

Form of Briefs -- Summary Judgment Motion

by Claimant. A party requesting summary judgment on its

claim shall set out a statement of the nature of the matter

before the court, a statement of facts, and a statement of the

questions presented as provided in Local Rule 107 (a)(l)-(3).

The party shall also set out the elements that it must prove

(with citations to supporting authority), and the specific,

authenticated facts existing in the record or set forth in

accompanying affidavits that would be sufficient to support a

jury finding of the existence of those elements.

In a responsive brief the opposing party may, within 30

days after service of the summary judgment motion and brief,

set out the statements required by Local Rule 107(a)(l)-(3)

and also set out the elements that the claimant must prove

(with citations to supporting authority), and either identify any

element as to which evidence is insufficient (and explain why

the evidence is insufficient), or point to specific, authenticated

facts existing in the record or set forth in accompanying

affidavits that show a genuine issue of material fact, or

explain why some rule of law (e.g., and applicable statute of

limitations) would defeat the claim. The failure to file a

response may cause the court to find that the motion is

uncontested.

In a reply brief the claimant may, within 10 days of

service of the response, address matters newly raised in the

response.

(e)

Form of Briefs -- Summary Judgment Motion

by Defending Party.

A party moving for summary

judgment upon an opposing party's claim shall set out a

statement of the nature of the matter before the court, a

statement of facts, and a statement of the questions presented

as provided in Local Rule 107(a)(l)-(3). The party shall also

set out the elements that the claimant must prove (with

citations to supporting authority), and explain why the

evidence is insufficient to support a jury verdict on an element

or elements, or why some other rule of law would defeat the

claim.

In a responsive brief the party having made the

challenged claim may, within 30 days after service of the

summary judgment motion and brief, file with the court a

response that sets out the statements required by Local Rule

107(a)(l)-(3) and also sets out the elements that it must prove

(with citations to supporting authority), and the specific,

authenticated facts existing in the record or set forth in

accompanying affidavits that would be sufficient to support a

jury finding of the existence of the disputed elements. The

failure to file a response may cause the court to find that the

motion is uncontested.

In a reply brief the defending party may, within 10

days of service of the response, address matters newly raised

in the response.

(f)

Summary Judgment Motions and Trial

The pendency of summary judgment motions

Dates.

will not serve to delay trial on the date set by the court in

accordance with Local Rule 207. If by the time set for trial,

the court has been unable to reach any pending summary

judgment motion, the case will nonetheless be reached

according to the trial calendar. The court will rule on the

motion at the outset of trial.

(g)

Failure to Timely File Dispositive Motions.

A dispositive motion which is not noticed and filed within the

prescribed time will not be reached by the court prior to trial

unless the court determines that its consideration will not

cause delay to the proceedings.

July 1, 1995

RULE 207

TRIAL DATES AND FINAL PRETRIAL

PREPARATION

(a)

Establishment of Trial Date.

While the

case is in discovery, the clerk shall establish a trial date and

give at least 4 months' notice thereof to the parties. The case

may be set on a trial calendar of the assigned judge or placed

on a master calendar to be called by one or more district

judges. A magistrate judge may assist with the master

calendar, although no case may be referred to the magistrate

judge for trial unless the parties consent to the magistrate

judge's trial jurisdiction.

The court will

(b)

Continuance of Trial.

consider a request to continue a trial date only if the request

is signed by both the party and counsel for the party.

The parties

(c)

Final Pretrial Preparation.

shall comply in all respects with Fed.R.Civ.P. 26(a)(3)

regarding final pretrial disclosure, including the time requirements set out therein. The pretrial disclosures mandated by

that rule shall be served on other parties but should not be

filed with the court. No later than 20 days before trial, each

party shall file a trial brief, along with proposed instructions

on the issues (jury cases) or findings of fact and conclusions

of law (non-jury cases). Any party, or the court on its own

motion, may request a pretrial hearing or telephone conference

to address matters relating to final pretrial preparation or

settlement of the case. At any settlement conference, the

court may require the attendance of parties and insurers.

July 1, 1995

RULE 208

TRIAL PROCEDURE

(a)

Opening Statements in Civil Actions.

the commencement of the trial of civil actions, the party with

the burden of proof may, without argument, state his cause of

action and the evidence by which he expects to sustain his

claim. The adverse party may then, without argument, state

his defense and the evidence by which he expects to sustain

his defense. If the trial is to a jury, the opening statement

shall be made immediately after the jury is sworn. If the trial

is to the court, the opening statement shall be made immediately after the case is called for trial. Opening statements

shall be subject to such time limitations as may be imposed by

the court.

(b)

Documents, Other than Exhibits, Used at

Trial.

When counsel expects to examine or cross-examine

a witness concerning a document which will not be offered as

an exhibit, counsel shall have at trial a copy of the document

for use by the judge.

(c)

Absence During Return of Verdict.

In a

jury trial, if a party or counsel is voluntarily absent from the

courtroom prior to the return of the verdict, it shall be

conclusively presumed that such party or counsel waived

presence.

July 1, 1995

RULE 209

TAXATION OF COSTS

(a)

Filing Bill of Costs.

(1)

A prevailing party may request the clerk to tax

allowable costs in a civil action as a part of a judgment or

decree by filing a bill of costs, on a form available in the

clerk's office, within 30 days

(i)

after the expiration of time allowed for appeal

of a final judgment or decree, or

(ii)

after receipt by the clerk of an order terminating the action on appeal.

(2)

The original of the bill of costs shall be filed

with the clerk, with copies served on adverse parties.

(3)

The failure of a prevailing party to timely file

a bill of costs shall constitute a waiver or any claim for costs.

(b)

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 must state

objection in a motion for disallowance with a supporting brief

within 10 days after the filing of the bill of costs. Within five

days thereafter, the prevailing party may file a response and

brief. Unless a hearing is ordered by the clerk, a ruling will

be made by the clerk on the record.

(2)

A party may request review of the clerk's ruling

by filing a motion within five days after the action of the

clerk. The court's review of the clerk's action will be made

on the existing record unless otherwise ordered.

(c)

Taxable Costs.

(1)

Items normally taxed include, without limitation:

(i)

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

(1)

(ii)

(iii)

(iv)

(2)

charge for the original transcript of the deposition.

Premiums on required bonds.

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.

One copy of the trial transcript for each party

represented by separate counsel.

Items normally not taxed include, without

limitation:

Witness fees, subsistence, and mileage for

individual parties, real parties in interest,

parties suing in representative capacities, and

the officers and directors of corporate parties.

(ii)

Copies of depositions.

(iii)

Daily copy of trial transcripts, unless prior

court approval has been obtained.

(d)

Costs in Settlements.

The court will not

tax costs in any action terminated by compromise or settlement. Settlement agreements must resolve any issue relating

to costs. In the absence of specific agreement, each party will

bear its own costs.

Payment of Costs. Costs are to be paid

(e)

directly to the party entitled to reimbursement, who must file

a certificate of satisfaction within 20 days of receipt of

payment.

(i)

July 1, 1995

RULE 210

AWARD OF STATUTORY ATTORNEY'S FEES

The court will not consider a motion to award statutory

attorney's fees until moving counsel shall first advise the court

in writing that after consultation the parties are unable to

reach an agreement in regard to the fee award. The statement

of consultation shall set forth the date of the consultation, the

names of the participating attorneys, and the specific results

achieved.

Within 60 days after the entry of final judgment, (i) the

parties shall file an appropriate stipulation and request for an

order if they have reached an agreement on an award of

statutory attorney's fees; or (ii) if the parties have not reached

such an agreement, the moving party shall file the statement

of consultation required by this rule and a motion, supported

by affidavits, time records, or other evidence, setting forth the

factual basis for each criterion which the court will consider

in making such an award.

July 1, 1995

RULE 211

INJUNCTIONS AND TEMPORARY

RESTRAINING ORDERS

(a)

Form of Application.

A prayer for a

temporary restraining order or preliminary injunction set forth

in a pleading will not bring the issue before the court prior to

the time of trial. If a ruling before trial is desired, a party

must separately file a motion and brief.

Hearing.

A motion seeking a preliminary

(b)

injunction will be considered and determined on the official

court file including affidavits, briefs and other documents filed

in support thereof without oral argument or testimony unless

otherwise ordered by the court. A request for leave to present

oral argument or testimony in support of or in opposition to

such motion must be included in the motion or response.

July 1, 1995

RULE 212

CLASS ACTIONS

(a)

Class Action Complaint.

The complaint

shall bear next to its caption the legend, "Complaint -- Class

Action. " The complaint shall contain under a separate

heading, styled "Class Action Allegations":

(1)

A reference to the portion or portions of Rule

23, Fed.R.Civ.P., under which it is claimed that the suit is

properly maintainable as a class action.

(2)

Appropriate allegations thought to justify such

claim, including, but not necessarily limited to:

(i)

the size and definition of the alleged

class,

(ii)

the basis upon which the plaintiff claims

(A)

to be an adequate representative

of the class, or

(B)

if the class is comprised of

defendants, that those named as

parties are adequate representatives of the class"

(iii)

the alleged questions of law or fact

claimed to be common to the class, and

(iv)

for actions sought to be maintained

under Rule 23(b)(3), Fed.R.Civ.P.,

allegations thought to support the findings required by that subdivision.

(b)

Motion fo:r Class Action Determination.

Within 90 days after the filing of a complaint in a class action,

unless this period is extended by court order, the plaintiff shall

file a separate motion for a determination under Rule 23(c)(l),

Fed.R.Civ.P., as to whether the case may be maintained as a

class action. If a party wishes to present oral testimony to

support or oppose the class action motion, the party must so

inform the court in its motion or opposition. In ruling upon

such a motion, the court may allow the action to be so

maintained, may disallow and strike the class action allegations, or may order postponement of the determination

pending discovery or such other preliminary procedures as

appear to be appropriate and necessary in the circumstances.

Whenever possible, where it is held that the determination

should be postponed, a date will be fixed by the court for

renewal of the motion.

(c)

Class Action Counterclaims or CrossThe foregoing provisions shall apply, with

Claims.

appropriate adaptatio~, to any counterclaim or cross-claim

alleged to be brought for or against a class.

Burden of Proof; Notice. The burden shall

(d)

be upon any party seeking to maintain a case as a class action

to present an evidentiary basis to the court showing that the

action is properly maintainable as such. If the court determines that an action may be maintained as a class action, the

party obtaining that determination shall initially bear the

expenses of and be responsible for giving such notice as the

court may order to members of the class.

July 1, 1995

RULE 213

MINORS AND INCOMPETENTS

AS PARTIES

(a)

Capacity to Sue o:r Be Sued.

Minors and

incompetent persons may sue or defend only by their general

or testamentary guardians within this state or by guardians ad

!item appointed by this court.

(b)

Appointment of Guardian ad Litem.

(1)

Application for the appointment of a guardian

ad !item to sue on behalf of a minor or incompetent may be

made by motion submitted contemporaneously with a complaint. The complaint may be filed when the appointment is

made by a judge.

(2)

Application for the appointment of a guardian

ad litem to defend on behalf of a minor or incompetent person

may be filed after service of summons and complaint and

before time has expired to answer or otherwise to respond.

(3)

Applications for the appointment of a guardian

ad !item by this court must:

(i)

set out facts requiring such appointment,

suggest a natural person suitable for

(ii)

appointment,

(iii)

contain information about that person,

including willingness to serve, upon

which the court can judge his or her

qualifications, and

(iv)

be accompanied by a proposed order of

appointment.

(c)

Termination of Actions; Court Hearing and

Approval.

(1)

No civil action or proceeding in which a minor

or incompetent person is a party may be compromised,

settled, dismissed, or otherwise terminated without the

approval of the court.

(2)

In order to obtain court approval, a party must

file a motion setting forth reasons justifying the termination

and explaining its effect upon the rights of the minor or

incompetent person.

(3)

The court will conduct a hearing to determine

whether the termination is fair, reasonable, and in the best

interest of the minor or incompetent. The following persons

must be present at the hearing unless excused by the court:

(i)

attorneys for all parties,

(ii)

the minor or incompetent party,

(iii)

the guardian ad litem or other legal

representative, and

(iv)

a parent or other person in loco parentis.

(4)

At the hearing the parties must establish to the

satisfaction of the court:

(i)

the facts giving rise to the cause of

action and the contentions of the parties

with respect to liability and damage;

(ii)

the facts concerning the nature and

extent of any injury or damage suffered

by the minor or incompetent person,

supported by medical records and reports in personal injury cases;

(iii) medical and hospital expenses, if an);

incurred or likely to be incurred;

(iv)

the concurrence of the attorney, guardian ad litem or other legal representative that the proposed settlement is fair,

reasonable, and in the best interest of

the minor or incompetent person;

(v)

the facts with respect to any related

claims or liens, including separate

claims of parents for expenses, and the

disposition or status of such other

claims.

(5)

Ordinarily, the requirements of section (c)(4) of

this rule may be satisfied by summaries made by the parties

or their attorneys. In every case, the parties may present

sworn testimony of witnesses, affidavits or documentary

evidence, and the court reserves the right to call for such

evidence at any time.

(d)

Fees. At the hearing, the court will consider

requests for counsel fees and a fee for services by the guardian ad litem or other legal representative and may make

appropriate orders relating to payment of fees.

(e)

Consent Judgments Approving Settlement.

Before a judgment approving a compromise

settlement of claims of a minor or incompetent is presented to

the court, it shall be consented and agreed to by counsel for

the parties to the action and by the guardian ad litem or other

legal representative of the minor or incompetent.

(2)

The judgment presented should provide, inter

alia, that the parties have agreed to a settlement of all matters

in controversy between them and the amount of the settlement;

that the court has conducted a hearing on the matter; that the

court has found that the proposed compromise settlement is

fair, reasonable, and in the best interest of the minor or

incompetent; and that the court has approved the compromise

settlement agreement.

(f)

Payment of Judgment.

The amount of the

judgment shall be paid into the office of the clerk of this

court, and the clerk shall make such disbursements from the

proceeds as provided by the judgment of the court. The

balance of the proceeds of the judgment shall be paid to the

legal guardian of the minor or incompetent, if within this

state. If there is no such guardian, the balance of the proceeds shall be paid to the clerk of superior court of the county

in this state in which the minor or incompetent resides. If the

minor or incompetent does not reside within this state, the

balance shall be paid to a legal guardian approved by the

court.

(1)

July 1, 1995

RULE 214

CLATh1 OF UNCONSTITUTIONALITY;

THREE-JUDGE COURTS

If at any time prior to the trial

(a)

Notification.

of an action to which (1) neither the United States nor any of

its officers, agencies, or employees is a party and a party

draws in question the constitutionality of an act of Congress

affecting the public interest, or (2) neither the state or any of

its agencies, officers, or employees is a party and a party

draws in question the constitutionality of any statute of that

state affecting the public interest, that party, to enable the

court to comply with 28 U.S. C § 2403, shall notify the court.

The notice shall be in writing, stating the title of the action,

the statute in question, and the respects in which it is claimed

the statute is unconstitutional and a copy shall be served upon

the Attorney General of the United States and the United

States Attorney in this district or the North Carolina Attorney

General, as applicable.

(b)

Additional Copies. In any action or proceeding required by act of Congress to be heard and determined by

a district court of three judges, all pleadings, papers, and

documents filed subsequent to the designation of the court, as

provided in 28 U.S.C § 2284(a), shall be filed in triplicate,

original and two copies, with the clerk. The clerk shall make

timely distribution of these documents to the designated

judges.

July 1, 1995

RULE 215

SETTLEMENT

Attorneys or pro se litigants shall immediately notify

the clerk of an agreement in principle reached by the parties

which resolves the litigation as to any or all parties. Whenever any civil action scheduled for a jury trial is settled or

otherwise disposed of in advance of the actual trial, then,

except for good cause shown, all jurors costs, including

marshal's fees, mileage and per diem, may be assessed

equally against the parties or otherwise assessed as determined

by the court, unless the clerk's office is notified at least one

full business day prior to the date on which the action is

scheduled for trial or in sufficient time to notify jurors that

their presence will not be required.

RULES 216-299:

Reserved for future purposes.

III.

CRIMINAL RULES

July 1, 1995

RULE 301

PROMPT DISPOSITION OF CRIMINAL CASES

The Court's Plan for Prompt Disposition of Criminal

Cases in compliance with Rule 50(b) of the Federal Rules of

Criminal Procedure, the Speedy Trial Act of 1974 (18 U.S.C

§ 3161, et seq.), and the Federal Juvenile Delinquency Act

(18 U.S.C. §§ 5036, 5037), as approved by the Judicial

Council, is a public document available through the office of

the clerk of this court. The Court's Plan for the Prompt

Disposition of Criminal Cases as it now exists and as it is

hereafter amended and approved by the Judicial Council shall

have the same force and effect as a local rule of this court.

o.::;

July 1, 1995

RULE 302

PRETRIAL MOTIONS IN CRIMINAL CASES

(a)

Time for Filing.

The time for filing pretrial

motions and responses thereto shall be set by the court at

arraignment in all cases in which a defendant pleads not

guilty.

(b)

Extensions of Time for Filing.

Motions for

an extension of time to file pretrial motions must be made

within the time set for the filing of motions and will be

granted only upon a showing of good cause for delay.

(c)

Motions Adopting Other Motions. Motions

adopting motions filed by codefendants must clearly identify

by character and date of filing the motions adopted. General

adoptions which do not identify specifically the motions

adopted may be summarily denied by the court.

(d)

Discovery Motions. Discovery motions filed

by a defendant who is represented by counsel must include a

statement that counsel has fully reviewed the government's

case file before bringing the motion or a statement that such

file is not available for counsel's review. The filing of a

discovery motion which does not include such certification

may cause the court to deny the motion, to disapprove

payment to court-appointed counsel in regard to a motion

made unnecessary by examination of the file, or to impose

other sanctions under Local Rule 122 in the discretion of the

court.

July 1, 1995

RULE 303

REPRESENTATION OF CERTAIN DEFENDANTS

The Court's Plan for Furnishing Representation and

Services to defendants who are financially unable to obtain an

adequate defense, pursuant to the Criminal Justice Act of

1964, as amended, is a public document available through the

office of the clerk of this court. The court's plan as it now

exists and as it is hereinafter amended shall have the same

force and effect as a local rule of this court. When deemed

appropriate by the court, the court may appoint an attorney to

represent a defendant even though such attorney's name does

not appear on the panel of attorneys drawn pursuant to the

plan.

July 1, 1995

RULE 304

PAYMENT OF FIXED SUM IN LIEU OF

APPEARANCE IN CERTAIN MISDEMEANOR CASES

Pursuant to Fed.R.Crim.P. 58(d) and in the interest of

justice and good court administration, collateral may be posted

in lieu of the appearance of an offender for certain misdemeanors under federal statutes and regulations or state statutes

made applicable by the Assimilative Crimes Statute (18

U.S.C. § 13). There shall be maintained in the office of the

clerk a list of the misdemeanors and fines applicable thereto

for which forfeiture of collateral security may be posted.

The posting of collateral signifies that the defendant

does not contest the charge nor request a trial. Such collateral

shall be administratively forfeited to the United States.

Forfeiture of collateral in lieu of personal appearance is not

permitted for any listed offense denominated a "mandatory

appearance" offense, for an aggravated or major offense, or

for multiple offenses arising out of the same facts or sequence

of events.

The clerk shall certify the record of any forfeiture of

collateral for a traffic violation to the proper state authority.

101

July 1, 1995

RULE 305

FAIR TRIAL DIRECTIVES

(a)

Prohibited Statements; Attorney's Obliga-

tions.

(1)

An attorney participating in or associated with

a grand jury or other investigation of a criminal matter shall

not make or participate in making any extrajudicial statement

which a reasonable person would expect to be disseminated by

means of public communication and which does more than

state without elaboration:

(i)

Information contained in a public record.

(ii)

That the investigation is in progress.

(iii)

The general scope of the investigation

including a description of the offense

and, if permitted by law, the identity of

the victim.

(iv)

A request for assistance in apprehending

a suspect or assistance in other matters

and the information necessary thereto.

(v)

A warning to the public of any dangers.

(2)

An attorney associated with the prosecution or

defense of a criminal case to be tried by a jury shall not make

or participate in making any extrajudicial statement which a

reasonable person would expect to be disseminated by means

of public communication which relates to:

(i)

The character, reputation, or prior

criminal record (including arrests,

indictments, or other charges of crime)

of the accused.

(ii)

The possibility of a plea of guilty to the

offense charged or to a lesser offense.

(iii)

The existence or contents of any confession, admission, or statement given by

the accused or his refusal or failure to

103

make a statement.

The performance or results of any

examinations or tests or the refusal or

failure of the accused to submit to

examinations or tests.

(v)

The identity, testimony, or credibility of

a prospective witness.

(vi)

Any opinion as to the guilt or innocence

of the accused, the evidence, or the

merits of the case.

(3)

Section (a)(2) above does not preclude an

attorney from announcing:

(i)

The name, age, residence, occupation,

and family status of the accused.

(ii)

Any information necessary to aid in the

apprehension of an accused or to warn

the public of any dangers.

(iii)

A request for assistance in obtaining

evidence.

(iv)

The identity of the victim of the crime.

(v)

The fact, time, and place of arrest,

resistance, pursuit, and use of weapons.

(vi)

The identity of investigating and arresting officers or agencies and the length

of the investigation.

(vii) The nature, substance, or text of the

charge.

(viii) Quotations from or references to public

records of the court in the case.

(ix)

The scheduling or result of any step in

the judicial proceedings.

(x)

That the accused denies the charges.

(4)

The foregoing provisions of this rule do not

preclude an attorney from replying to charges of misconduct

publicly made against the attorney or from participating in the

proceedings of legislative, administrative, or other investigative bodies.

(iv)

104

(b)

Attorney's Employees and Associates. An

attorney must exercise reasonable care to prevent employees

and associates from making any extrajudicial statement which

the attorney would be prohibited from making under this rule.

105

July 1, 1995

RULE 306

SENTENCING RECOMMENDATIONS

BY PROBATION OFFICERS

Any sentencing recommendation made to the court by

a probation officer is for the judge's use only and shall not be

disclosed to the parties at any time.

RULES 307-399:

Reserved for future purposes.

107

IV. MAGISTRATE JUDGE RULES

July 1, 1995

RULE 401

AUTHORITY OF MAGISTRATE JUDGES

Designation to Conduct Trials and to Perform

(a)

Other Duties.

(1)

Magistrate judges are authorized and designated

to exercise the powers and authority and to perform the duties

enumerated in 28 U.S.C § 636(b)(l) and (2).

(2)

Magistrate judges serving this court are

specially designated to:

(i)

exercise civil jurisdiction to conduct any or all

proceedings injury or non-jury cases and order

the entry of judgment in any case referred to

them for that purpose, pursuant to 28 U.S.C. §

636(c), and

(ii)

exercise jurisdiction to try persons accused of,

and sentence persons convicted of, criminal

misdemeanors.

(b)

Authority to Perform Additional Duties.

Pursuant to 28 U.S.C. § 636(b)(3), magistrate judges are

authorized to perform additional functions and duties, including the following:

(1)

Conduct pretrial conferences, settlement

conferences, omnibus hearings, and related pretrial proceedings;

(2)

Conduct calendar and status calls for civil and

criminal calendars, and determine motions to expedite or

postpone the trial of cases;

(3)

Conduct arraignments in cases not triable by the

magistrate judge to the extent of taking a not guilty plea or

noting a defendant's intention to plead guilty or nolo contendere and ordering a presentence report in appropriate cases;

(4)

Conduct voir dire and select petit juries for the

court;

(5)

Accept petit jury verdicts in civil cases in the

absence of a district judge;

111

(6)

Conduct preliminary proceedings relating to the

potential revocation of probation;

(7)

Issue subpoenas, writs of habeas corpus ad

testificandum or habeas corpus ad prosequendum, or other

orders necessary to obtain the presence of parties or witnesses

or evidence needed for court proceedings;

(8)

Order the exoneration or forfeiture of bonds;

(9)

Conduct proceedings for the collection of civil

penalties of not more than $200 assessed under the Federal

Boat Safety Act of 1971, in accordance with 46 U.S.C. §

1484(d);

(10) Conduct examinations of judgment debtors, in

accordance with Rule 69 of the Federal Rules of Civil

Procedure;

(11) Review petitions in civil commitment proceedings under Title III of the Narcotic Addict Rehabilitation Act;

(12) Conduct such hearings as are necessary or

appropriate, and submit to a district judge proposed findings

of fact and recommendations for disposition of applications for

judgment by default pursuant to Rule 55(b) of the Federal

Rules of Civil Procedure, or motions to set aside judgments

by default pursuant to Rule 55(c) of the Federal Rules of Civil

Procedure;

(13) Consider an application by complainant pursuant to 42 U.S.C. § 2000e-5(f)(l), and in such circumstances

as may be deemed just, appoint an attorney for such complainant, and authorize the commencement of an action without

payment of fees, costs, or giving security therefor;

(14) 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;

(15) Conduct extradition proceedings, in accordance

with 18 U.S.C. § 3184;

( 16) Supervise proceedings conducted pursuant to

letters rogatory, in accordance with 28 U.S.C. § 1782;

(17) Require compliance with local rules with regard

to prose petitions under 42 U.S.C. § 1983;

11 ')

(18) Issue orders of withdrawal from the court

registry of funds pursuant to 28 U.S.C. § 2042; and

(19) Perform any additional duty which is not

inconsistent with the Constitution and laws of the United

States.

113

July 1, 1995

RULE 402

CONSENT TO CIVIL TRIAL JURISDICTION

(a)

Consent to Exercise of Civil Trial Jurisdic-

tion.

(1)

The consent of a party to the exercise of civil

trial jurisdiction authorized in 28 U.S.C. § 636(c)(l) may be

communicated to the clerk by letter, or by a form available in

the clerk's office, signed by the party or the party's attorney.

(2)

The consent of a party will be placed in the

public court file only when the court has ordered the case

referred to a magistrate judge.

(b)

Withdrawal of Consent.

After a case has

been referred, the consent of the parties to the exercise of a

magistrate judge's jurisdiction may not be withdrawn without

the approval of the district judge who signed the order of

reference.

(c)

Reference Discretionary.

Reference of a

case to a magistrate judge after consent of all parties is within

the discretion of the court.

11 "

July 1, 1995

RULE 403

CONSENT TO DESIGNATION OF

MAGISTRATE JUDGE AS A SPECIAL MASTER

(a)

Consent.

Upon the written consent of the

parties, a magistrate judge may be designated to serve as a

special master in any civil proceeding without a showing of

exceptional conditions or that the issues are complicated.

(b)

Reference. Reference of· a case to a magistrate judge as a special master is within the discretion of the

court, but the consent of the parties may not thereafter be

withdrawn without approval of the referring district judge.

117

July 1, 1995

RULE 404

ASSIGNMENT OF MATTERS TO MAGISTRATE

JUDGES

Duties and cases may be assigne4 or referred to a

magistrate judge by a court order entered in the action or by

the clerk in compliance with standing orders or the instructions of a district judge.

119

July 1, 1995

RULE 405

OBJECTIONS; APPEAL~ STAY OF ORDER

(a)

Objections to Magistrate Judge's Order.

The procedure for filing objections to an order in a

nondispositive matter shall be as set forth in Rule 72(a),

Fed.R.Civ.P.

(b)

Objections to Magistrate Judge's RecommenThe procedure for filing objections to a recomdation.

mendation on a dispositive or other matter shall be as set forth

in Rule 72(b), Fed.R.Civ.P.

(c)

Appeal from Judgment.

The procedure for

appeal from a judgment in an action tried by consent to a

magistrate judge shall be as set forth in Rules 73 through 76,

Fed.R.Civ.P.

(d)

Application for Stay of Magistrate Judge's

Application for stay of a magistrate judge's order

Order.

pending review of objections made thereto must first be made

to the magistrate judge.

RULES 406-499:

Reserved for future purposes.

121

V. RULES OF DISCIPLINARY

ENFORCEMENT

July 1, 1995

RULE 501

PURPOSE OF

DISCIPLINARY RULES

The court, in furtherance of its inherent power and

responsibility to supervise attorneys who practice before it,

adopts these rules of disciplinary enforcement.

125

July 1, 1995

RULE 502

ATTORNEYS CONVICTED OF A CRIME

(a)

Suspension Upon Filing of Judgment.

Upon the filing of a certified copy of a judgment of conviction

demonstrating that any attorney practicing before the court has

been convicted in any court of the United States, or the

District of Columbia, or of any state, territory, commonwealth

or possession of the United States, of a serious crime as

herein defined, the court may enter an order immediately

suspending that attorney from practice until final disposition

of a disciplinary proceeding before this court, or until final

disposition is made by the appropriate state bar.

"Serious

(b)

Definition of Serious Crime.

crime" shall include any felony and also any other crime

which involves false swearing, misrepresentation, fraud,

willful failure to file income tax returns, deceit, bribery,

extortion, misappropriation, theft, or an attempt or a conspiracy of solicitation of another to commit a "serious crime."

Upon the

(c)

Conviction of Serious Crime.

filing of a certified copy of a judgment of conviction of an

attorney for a serious crime, the court may refer the matter to

counsel for institution of a disciplinary proceeding before the

court, providing that a disciplinary proceeding so instituted

will not be brought to final hearing until all appeals from the

conviction are concluded. Alternatively, the court may refer

the matter to the appropriate state bar.

Upon the

(d)

Conviction of Other Crime.

filing of a certified copy of a judgment of conviction of an

attorney for a crime not constituting a "serious crime," the

court may refer the matter to counsel for whatever action

counsel may deem warranted, including the institution of a

disciplinary proceeding before the court. Alternatively, the

court may refer the matter to the appropriate state bar.

127

(e)

Reinstatement after Suspension.

attorney suspended under the provisions of this rule will be

reinstated immediately upon the filing of a certificate demonstrating that the conviction of a serious crime has been

reversed, but the reinstatement will not terminate any disciplinary proceeding then pending, the disposition of which shall

be determined by the court on the basis of all available

evidence pertaining to both guilt and the extent of discipline

to be imposed.

128

July 1, 1995

RULE 503

DISCIPLINE ThfPOSED BY ANOTHER

COURT OR BY A STATE BAR

(a)

Duty to Info:rm the Clerk.

Any attorney

practicing before this court shall, upon being subjected to

public discipline by any court or by the state bar of any state,

promptly inform the clerk of such action.

(b)

Show Cause Order.

Upon the filing of a

certified copy of a judgment or order demonstrating that an

attorney has been disciplined by another court or by a state

bar, this court shall forthwith issue a notice containing a copy

of the judgment or order and an order to show cause directing

that the attorney inform this court within 20 days why

imposition of the identical discipline by this court would be

unwarranted and the reasons therefor.

Imposition of Discipline.

Upon expiration

(c)

of 20 days from service of the show cause order, this court

will presume the misconduct to have been established and will

impose the identical discipline unless the attorney demonstrates that upon the face of the record upon which the

discipline in another jurisdiction is predicated it clearly

appears:

(1)

that the attorney was deprived of due process;

(2)

that there was such an infirmity of proof that

this court could not accept as final the conclusion on that

subject; or

(3)

that the imposition of the same discipline by this

court would result in grave injustice; or

(4)

that the misconduct established is deemed by

this court to warrant substantially different discipline. Where

this court determines that any of said elements exist, it shall

enter such order as it deems appropriate. The grant of a stay

of discipline by the other jurisdiction shall constitute grounds

for a similar grant by this court.

July 1, 1995

RULE 504

DISBARMENT ON CONSENT OR RESIGNATION IN

ANOTHER COURT OR BEFORE A STATE BAR

Any attorney practicing before this court who shall be

disbarred on consent or resign from the bar of any court or

state while an investigation into allegations of misconduct is

pending, shall promptly inform the clerk, and upon the filing

with this court of a certified copy of the judgment or order

accepting such disbarment on consent or resignation, shall

cease to be permitted to practice before this court.

131

July 1, 1995

RULE 505

STANDARDS FOR PROFESSIONAL CONDUCT

Disciplinary Enforcement. For misconduct

(a)

defined in these rules, and after notice of an opportunity to be

heard, any attorney practicing before this court may be

disbarred, suspended from practice, reprimanded, or subjected

to such other disciplinary action as the circumstances may

warrant.

Standards for Conduct.

Acts or omissions

(b)

by an attorney practicing before this court which violate the

Code of Professional Responsibility adopted by this court shall

constitute misconduct and shall be grounds for discipline,

whether or not the act or omission occurred in the course of

an attorney-client relationship. The Code of Professional

Responsibility adopted by this court is the Code of Professional Responsibility adopted by the Supreme Court of North

Carolina, as amended from time-to-time by that state court,

except as otherwise provided by a specific rule of this court.

133

July 1, 1995

RULE 506

DISCIPLINARY PROCEEDINGS

Referral of Complaints to Counsel or to a

State Bar.

When allegations of misconduct by an attorney

practicing before this court come to the attention of a judge of

this court, whether by complaint or otherwise, the judge may

refer the matter to counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of

such other recommendation as may be appropriate. Alternatively, the judge may refer the matter to the appropriate state

bar.

(b)

Recommendation by Counsel.

Should

counsel conclude after investigation that a formal disciplinary

proceeding should not be initiated against the attorney, counsel

shall file with the court a recommendation for disposition of

the matter, whether by dismissal, admonition, or deferral and

shall set forth the reasons for such recommendation.

(c)

Initiation of Disciplinary Proceedings. To

initiate formal disciplinary proceedings, counsel shall obtain

an order of the court upon a showing of probable cause

requiring the attorney to show cause within 20 days after

service of the order why the attorney should not be disciplined.

(d)

Hearing.

Upon the attorney's answer to the

order to show cause, if any issue of fact is raised or the

attorney wishes to be heard, the court shall set the matter for

prompt hearing.

(a)

July 1, 1995

RULE 507

DISBARMENT ON CONSENT WHILE UNDER

DISCIPLINARY INVESTIGATION OR

PROSECUTION

(a)

Consent to Disbarment.

Any attorney

practicing before this court who is the subject of an investigation into, or a pending proceeding involving, allegations of

misconduct may consent to disbarment by delivering to this

court an affidavit stating that the attorney desires to consent to

disbarment and that:

(1)

the attorney's consent is freely given,

(2)

the attorney is aware of the pending investigation or proceeding,

(3)

the attorney acknowledges the material facts of

misconduct, and

(4)

the attorney consents because the attorney

knows that he or she could not defend successfully against

charges of misconduct.

(b)

Order of Disbarment.

Upon receipt of the

required affidavit, this court shall enter an order disbarring the

attorney.

(c)

Record.

The order disbarring the attorney

on consent shall be a matter of public record. However, the

affidavit required under the provisions of this rule shall not be

publicly disclosed or made available for use in any other

proceeding except upon order of this court.

137

July 1, 1995

RULE 508

REINSTATEMENT

(a)

Automatic Reinstatement; Reinstatement by

Order.

An attorney suspended for 3 months or less shall

be automatically reinstated at the end of the period of suspension upon filing with the court an affidavit of compliance with

the provisions of the suspension order. An attorney suspended

for more than three months or disbarred may not resume

practice until reinstated by order of this court.

Time for Petition.

An attorney who has

(b)

been disbarred after hearing or by consent may not petition for

reinstatement until the expiration of at least 5 years from the

effective date of disbarment.

(c)

Procedure.

Petitions for reinstatement by a

disbarred or suspended attorney under this rule shall be filed

with the court. Upon receipt of the petition, the chief judge

shall assign the matter for a prompt hearing before a judge (or

judges) of the court and may, in the chief judge's discretion,

refer the petition to counsel for investigation. The judge

assigned to the matter shall schedule a hearing at which

petitioner shall have the burden of demonstrating by clear and

convincing evidence that the attorney has the moral qualifications, competency, and learning of the law required for

admission to practice law before this court, and that the

attorney's resumption of the practice of law will not be

detrimental to the integrity and standing of the Bar or the

administration of justice or subversive of the public interest.

In all proceedings upon a petition for reinstatement, crossexamination of the witnesses of the attorney and the submission of evidence, if any, in opposition to the petition shall be

conducted by counsel if the matter has been referred to

counsel by the court.

(d)

Costs.

Petitions for reinstatement under this

rule shall be accompanied by an advanced cost deposit in an

amount to be set from time-to-time by the court to cover

139

anticipated costs of the reinstatement proceeding.

Order of Reinstatement. If the petitioner is

(e)

found to be unfit to resume the practice of law, the petition

shall be dismissed. If the petitioner is found to be fit to

resume the practice of law, the judgment shall reinstate the

petitioner, provided that the judgment may make reinstatement

conditionf \ipon the payment of all or part of the costs of the

proceedings, and upon the making of partial or complete

restitution to parties harmed by the petitioner whose conduct

led to the suspension or disbarment. Provided further, that if

the petitioner has been suspended or disbarred for 5 years or

more, reinstatement may be conditioned, in the discretion of

the judge, upon the furnishing of proof of competency and

learning in the law, which proof may include certification by

the bar examiners of North Carolina of the attorney's successful completion of an examination for admission to practice

subsequent to the date of suspension or disbarment.

(t)

Successive Petitions.

No petition for

reinstatement under this rule shall be filed within 1 year

following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

140

July 1, 1995

RULE 509

ATTORNEYS SPECIALLY APPEARING

Whenever an attorney appears for purposes of a

particular proceeding, the attorney shall be deemed thereby to

have conferred disciplinary jurisdiction upon this court for any

alleged misconduct of that attorney arising in the course of or

in preparation for such proceeding.

141

July 1, 1995

RULE 510

SERVICE OF PAPERS AND OTHER NOTICES

Service of an order to show cause instituting a formal

disciplinary proceeding shall be made by personal service or

by registered or certified mail addressed to the attorney.

Service of any other papers or notices required by these rules

shall be deemed to have been made if such paper or notice is

addressed to the attorney or to the attorney's counsel and is

posted by regular mail.

1 A'.l

July 1, 1995

RULE 511

APPOINTMENT OF COUNSEL

Whenever counsel is to be appointed by these rules to

investigate allegations of misconduct or to prosecute disciplinary proceedings or in conjunction with a reinstatement

petition, the court may appoint as counsel the disciplinary

agency of the Supreme Court of North Carolina or any other

disciplinary agency having jurisdiction. Alternatively, the

court may appoint as counsel one or more members of the

Bar; provided, however, that the respondent-attorney may

move to disqualify an attorney so appointed who is or who has

been engaged as an adversary of the respondent-attorney in

any manner. Counsel, once appointed, may not resign unless

permission to do so is given by the court. Nothing in this rule

limits the Court's authority to refer any matter to the appropriate state bar for investigation, prosecution of disciplinary

proceedings, or reinstatement.

145

July 1, 1995

RULE 512

DUTIES OF THE CLERK

(a)

Obtaining Certificate of Conviction. Upon

being informed that an attorney practicing before this court

has been convicted of any crime, the clerk shall determine

whether the clerk of the court in which such conviction

occurred has forwarded a certificate of such conviction to this

court. If certificate has not been so forwarded, the clerk shall

promptly obtain a certificate and file it with this court.

(b)

Obtaining Certificate of Disciplinary Judgment or Order.

Upon being informed that an attorney

practicing before this court has been subjected to discipline by

another court or a state bar, the clerk shall determine whether

a certified copy of the disciplinary judgment or order has been

filed with this court, and, if not, the clerk shall promptly

obtain a certified copy of the disciplinary judgment or order

and file it with this court.

(c)

Clerk to Inform Other Jurisdictions.

Whenever it appears that any attorney convicted of any crime,

disbarred, suspended, censured, or disbarred on consent by

this court is admitted to practice law in any other jurisdiction

or before any other court, the clerk shall, within 10 days of

that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such

other jurisdiction, or for such other court, a certificate of the

conviction or a certified copy of the judgment or order of

disbarment, suspension, censure, or disbarment on consent, as

well as the last known office and residence addresses of the

attorney.

(d)

Clerk to Inform the National Discipline Data

Bank.

The clerk shall, likewise, promptly notify the

National Discipline Data Bank operated by the American Bar

Association of any order imposing public discipline upon any

attorney practicing before this court.

147

July 1, 1995

RULE 513

JURISDICTION

Nothing contained in these rules shall be construed to

deny to this court such powers as are necessary for the court

to maintain control over proceedings conducted before it, such

as proceedings for contempt under Title 18 of the United

States Code or under Rule 42 of the Federal Rules of Criminal

Procedure or other sanctions under the Federal· Rules of Civil

Procedure or these Local Rules.

Rules 514-599:

Reserved for future purposes.

149

Vl. RULES FOR MEDIATED

SETTLEMENT CONFERENCES

July 1, 1995

RULE 601

PURPOSE OF MEDIATED SETTLEMENT

CONFERENCES

These rules govern reference of selected civil actions

for mediated settlement conferences. Their purpose is to

provide for an informal process conducted by a mediator with

the objective of helping the parties reach a mutually acceptable

settlement of their dispute. The rules are not intended to force

settlement upon any party. The rules shall be construed to

secure the speedy, fair, and economical resolution of controversies while preserving the right of all parties to a conventional trial.

153

July 1, 1995

RULE 602

SELECTION OF CASES

FOR MEDIATED SETTLEMENT CONFERENCES

(a)

Automatic Selection by these Rules.

Several categories of civil cases are automatically selected for

mediated settlement conferences, without specific order by the

court. These categories include, according to designations on

the civil cover sheet (1) contract [categories 110-140 and 160195, specifically excluding 150-153], (2) tort [all categories,

310-385], (3) civil rights [all categories, 440-444], (4) labor

[all categories, 710-791], (5) property rights [all categories,

820-840], (6) antitrust [category 410], (7) banks and banking

[category 430], (8) securities/commodities/exchange [category

850], and (9) environmental matters [category 893]. The

parties to these actions shall discuss mediation plans at the

Fed.R.Civ.P. 26(f) meeting of the parties and report such

plans in their Rule 26(f) Report in preparation for the entry of

an initial pretrial order. See Local Rule 203(b)(c) and (d).

Cases wherein the United States is a party or the plaintiff

appears pro se are not included within this automatic selection

for mediation.

(b)

Discretionary Selection by the Court. In its

discretion, the court may order a mediated settlement conference in any action not automatically selected under section (a),

above. After entry of such an order, the parties shall have 20

days to file a statement identifying an agreed-upon mediator.

(c)

Stipulated Selection by the Parties. In any

case where selection for a mediated settlement conference is

not automatic under section (a) of this rule, the parties may

file a stipulation for mediation. In such stipulation, the parties

may state any agreements they have reached regarding the

identity of the mediator, the timing of the conference, and any

modification of the procedures described by these rules.

155

(d)

Exemption from Mediation.

Any party, or

parties jointly, may file a motion for exemption from mediation. Such a motion will be granted only on a showing of

good cause. A general assertion that a case is not likely to

settle or that settlement possibilities are remote does not

constitute good cause.

156

July 1, 1995

RULE 603

MEDIATORS

Certification.

The clerk shall maintain a list

(a)

of mediators who have agreed to serve under these rules. The

list shall identify areas of subject matter expertise of each

mediator (according to the categories identified in Local Rule

602[a]) and include such biographical information as each

mediator may wish to provide. Attorneys who have been

certified as mediators pursuant to the rules of the North

Carolina Supreme Court and who have at least 8 years of civil

trial practice or membership on the faculty of an accredited

law school may serve on the panel of mediators. Further,

attorneys who were on the court's panel of arbitrators as of

December 1, 1993 may serve on the panel of mediators.

Appointment to the list does not guarantee any mediator that

he or she will be appointed to serve in any case before the

court.

Compensation of Mediators. All mediators

(b)

under these rules, whether agreed upon by the parties or

selected by the clerk, shall be compensated by the parties at

the hourly rate set by the Chief Judge, except that the court

may permit a higher compensation rate to an agreed upon

mediator on joint application by the parties and a showing that

the case involves extraordinary complexities. The parties shall

make payment directly to the mediator at the termination of

the mediated settlement conference, whether or not the case is

settled. The mediator shall be compensated for up to 2 hours

of preparation time and for the time expended in the conference. The only compensable expense of the mediator is travel

mileage at the ordinary government rate. The mediator's fee

and travel expense shall be paid in one equal share by the

plaintiff (or plaintiffs), one equal share by the defendant (or

defendants), and one equal share by any third party (or

parties), unless otherwise agreed by all parties or ordered by

the court in the interest of fairness.

1 "7

(c)

Compensation of Mediators when a Party is

If a party contends it is unable to pay its

Unable to Pay.

share of the mediator's fee, that party shall, before the

conference, file a motion with the court to be relieved of the

obligation to pay. The motion shall be accompanied by an

affidavit of financial standing. The mediated settlement

conference should proceed without payment by the moving

party, and the court will rule on the motion upon completion

of the case. The court will take into consideration the

outcome of the case, whether by settlement or judgment, and

may relieve the party of its obligation to pay the mediator if

payment would cause a substantial financial hardship. If the

party is relieved of its obligation, the mediator shall remain

uncompensated as to that portion of his or her fee, a circumstance that reflects the mediator's duty of pro bono service.

158

July 1, 1995

RULE 604

SELECTION OF THE MEDIATOR

(a)

Selection by Agreement.

The parties are

encouraged to select their own mediator by agreement. If,

within 20 days of the initial pretrial order, the parties file with

the clerk a statement identifying an agreed-upon mediator,

such statement shall be effective to select the mediator, and

the clerk will notify the mediator of his or her selection. The

parties may select an agreed-upon mediator who is not on the

clerk's list of certified mediators, but any such mediator must,

prior to service, agree to be bound by all provisions of these

rules.

If no timely

(b)

Selection by the Clerk.

statement pursuant to section (a) of this rule is filed, the clerk

shall appoint a mediator from the certified list. The appointment is within the discretion of the clerk, who may consider

subject matter expertise in making the appointment. The clerk

shall give notice of the appointment to the mediator and the

parties.

On motion made to the

(c)

Disqualification.

court not later than 20 days before a scheduled mediated

settlement conference, a mediator may be disqualified by the

court for bias or prejudice as provided in 28 U.S. C. §144.

Further, a me(jjator shall disqualify himself or herself if the

mediator could be required to do so under 28 U.S.C. §455 if

he or she were a justice, judge, or magistrate judge.

On request of the

(d)

Copies of the Pleadings.

mediator, the clerk shall furnish to the mediator a copy of the

complaint, answer, and any third party pleadings in the action.

1 .C,Q

July 1, 1995

RULE 605

PROCEDURES FOR MEDIATED

SETTLEMENT CONFERENCES

(a)

Time Period for the Mediated Settlement

Conference.

The mediated settlement conference shall be

held during the discovery period unless the court specifically

orders otherwise.

(b)

Scheduling the Mediated Settlement Conference.

The mediated settlement conference shall ordinarily

be held in the office of the mediator, but may be held at any

other place agreed to by the parties and the mediator.

Because of space limitations, the federal courthouses are not

available for mediated settlement conferences. After conferring with the attorneys for the parties regarding scheduling

matters, the mediator shall determine the place and time of the

conference (within the period established by these rules), and

give notice to the parties.

Submission of Position Papers to Mediator.

(c)

No later than five (5) business days before the scheduled date

of the mediated settlement conference, any party may submit

a confidential position paper to the mediator. The position

paper shall be limited in length to five (5) pages, doublespaced, and may be accompanied by up to five (5) pages of

exhibits. Position papers are confidential, shall be held so by

the mediator, and need not be served on other parties. The

purpose of these submissions is to help the mediator become

familiar with the assertions of the parties, and the parties may

agree to the submission of additional information if they

believe the information will facilitate the mediated settlement

conference.

(d)

Duties of Parties, Representatives, and

Attorneys. The following persons shall be physically

present at the entire mediated settlement conference unless

excused by the mediator:

(1)

Individual parties; an officer, manager, or

director of a corporate or entity party, such

representative to have full authority to ne~9:.tiate

on behalf of the entity and to approve ~f\-ecommend a settlement;

(2)

At least one attorney of record for each represented party; and

(3)

A representative of the insurance carrier for

any party against whom a claim is made. The

representative must have full authority to settle

the claim and must be a person other than the

carrier's outside counsel.

Upon reaching a settlement agreement at a mediated

settlement conference, the parties shall forthwith reduce the

agreement to writing and prepare a stipulation of dismissal or

consent judgment for presentation to the court.

Authority of the Mediator.

The mediator

(e)

is authorized by these rules to exercise control over the

mediated settlement conference and to direct all proceedings

therein. The mediator is specifically authorized to meet or

consult privately with any party or their counsel during the

conference. The mediator may report in writing to the court,

with copies to the parties, any conduct of any party that may

be in violation of these rules for mediated settlement conferences.

(t)

Duties of the Mediator.

At the beginning

of the mediated settlement conference, the mediator shall

describe the following matters to the parties:

(1)

The process of mediation,

(2)

The differences between mediation and other

forms of conflict resolution,

(3)

The costs of the mediated settlement conference,

(4)

The fact that the mediated settlement conference is not a trial, the mediator is not a judge,

and the parties retain their right to trial if they

do not reach settlement,

(5)

The circumstances under which the mediator

may meet alone with either of the parties or

any other person,

162

(6)

The conditions under which communications

with the mediator will be held in confidence

during the conference,

(7)

The inadmissibility of negotiating statements

and offers at trial,

(8)

The fact that the court will not permit parties in

other litigations to conduct discovery regarding

the mediation in this case,

(9)

The duties and responsibilities of the mediator

and the parties, and

(10) The fact that any agreement reached will be

reached by mutual consent of the parties.

The mediator may recess or suspend the conference at

any time and set a schedule for reconvening. It is the duty of

the mediator to determine if an impasse has been reached or

mediation should for any reason be terminated. He shall then

inform the parties that mediation is terminated.

(g)

Agreement to Modify Mediation Procedures.

By agreement filed with the court, the parties, with the

consent of the mediator, may modify the mediation procedures

described in these rules, except that the parties may not alter

time limitations set by these rules or order of the court.

(h)

Sanctions for Failure to Appear.

If a

person fails to attend a mediated settlement conference without

good cause, the court may impose on that person (or any

associated party) any lawful sanction, including, but not

limited to, the imposing of the cost of attorney's fees,

mediator's fees, and expenses of persons incurred in attending

the conference.

July 1, 1995

RULE 606

COMPLETION OF THE

MEDIATED SETTLEMENT CONFERENCE

When the mediated settlement conference is completed,

the mediator shall immediately submit to the clerk a report of

the status of the case, on a form supplied by the clerk. If the

case is resolved, it is the duty of the parties to file a stipulation of dismissal or consent judgment. If the case is not

resolved, it proceeds without further order of the court in

accordance with the local rules of the court.

July 1, 1995

RULE 607

EVALUATION OF THE MEDIATION PROGRAM

The mediation program established by these rules is

experimental in nature and will be periodically reviewed by

the court. For purposes of evaluation of the program, the

mediator, the attorneys, and the litigants may be requested to

complete confidential evaluation reports at the completion of

the mediation. These reports shall be kept confidential by the

clerk and shall be maintained in a file separate and apart from

the case file. The clerk shall compile information from the

evaluation reports to assist the court in determining the

effectiveness of the mediation program.

RULES 608-699:

Reserved for future/purposes.

167

APPENDIX OF FORMS

FORM 1

(See Local Rule 203 [b] and [d])

Joint Rule 26(f) Report

Pursuant to Fed.R.Civ.P. 26(t) and Local Rule

203 (b), a meeting was held on

date

at place and

was attended by _ _ _ for Plaintiff(s), and _ _ _ for

Defendant(s).

Discovery Plan. The parties propose to the

court the following discovery plan:

Discovery will be needed on the following subjects:

(brief descriptions)

Discovery shall be placed on a case-management track

established in Local Rule 204. The parties agree that the

appropriate plan for this case (with any stipulated modification

by the parties as set out below) is that designated in Local

Rule 204(a) as:

Standard

Complex

Exceptional

The date for the completion of all discovery (general

and expert) is: _ __

Stipulated modifications to the case management track

include: - - - - - - - - - - - - - - - - - - Reports from retained experts under Rule

26(a)(2) are due during the discovery period:

From Plaintiff(s) by _ _ __

From Defendant(s) by _ _ __

Supplementations under Rule 26(e) are due: (time[s]

or interval[s])

Mediation. [For cases selected for mediation

under Local Rules 205 and 601, et seq.l

Mediation should be conducted [early][midway] [late] in the discovery period, the exact date to be set by

the mediator after consultation with the parties. The parties

171

agree that the mediator shall be

{identity)

(If the parties report no agreement, the clerk

will select a mediator from the court's panel of mediators.)

Preliminary Deposition Schedule. Preliminarily, the parties agree to the following schedule for depositions:

The parties will update this schedule at reasonable intervals.

Other items.

Plaintiff(s) should be allowed until date to request

leave to join additional parties or amend pleadings.

Defendant(s) should be allowed until date to request

leave to join additional parties or amend pleadings.

After these dates, the court will consider whether the

granting of leave would delay trial.

The parties have discussed special procedures for

managing this case, including reference of the case to a

magistrate judge on consent of the parties under 28 U.S. C.

§636(c), or appointment of a master:

{Report any agreements on these matters)

Trial of the action is expected to take approximately

_ days. A jury trial [has][has not] been demanded.

Date: - - Signatures of parties or counsel

Signatures of parties or counsel

ORDER OF APPROVAL

The court has reviewed the Joint Rule 26(f) Report

submitted by the parties. The order is approved without

modification.

For the Court

172

FORM2

(See Local Rule 203[b] and [d])

Rule 26(f) Report

Pursuant to Fed.R.Civ.P. 26(f) and Local Rule

203 (b), a meeting was held on

date

at place and

was attended by _ _ _ for Plaintiff(s), and _ _ _ for

Defendant(s).

Discovery Plan.

The undersigned party

proposes to the court the following discovery plan:

Discovery will be needed on the following subjects:

(brief descriptions)

Discovery shall be placed on a case-management track

established in Local Rule 204. The undersigned party

proposes that the appropriate plan for this case is that designated in Local Rule 204(a) as:

Standard

Complex

Exceptional

The date for the completion of all discovery (general

and expert) should be: _ _ __

Modifications to the case management track should

include:

Reports from retained experts under Rule

26(a)(2) are due during the discovery period:

From Plaintiff(s) by _ _ __

From Defendant(s) by _ _ __

Supplementation under Rule 26(e) should be due:

(time(s] or interval(s])

Mediation. [For cases selected for mediation

under Local Rules 205 and 601, et seq.]

Mediation should be conducted [early][midway][late] in the discovery period, the exact date to be set by

the mediator after consultation with the parties. The parties

agree that the mediator shall be

{identity)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ a .

173

(If the parties report no agreement, the clerk

will select a mediator from the court's panel of mediators.)

Preliminary Deposition Schedule. The undersigned proposes the following schedule for depositions:

The parties will update this schedule at reasonable intervals.

Other items.

Plaintiff(s) should be allowed until date to request

leave to join additional parties or amend pleadings.

Defendant(s) should be allowed until date to request

leave to join additional parties or amend pleadings.

After these dates, the court will consider whether the

granting of leave would delay trial.

The parties have discussed special procedures for

managing this case, including reference of the case to a

magistrate judge on consent of the parties under 28 U.S. C.

§636(c), or appointment of a master:

(Report any agreements on these matters)

Trial of the action is expected to take approximately

days. A jury trial [has][has not] been demanded.

Date: _ _ __

Signature of party or counsel

174

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