# ill~ITED STATES DISTRICT COURT (2010)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Arid%3A20d8a2521b924624

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

ill~ITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

IN RE:

lvlisc.

LOCAL RULES COiVIIviiTTEE

06-102

ORDER
Pursuant to L. R. Gen l.L3 and by agreement of the Judges of this
Court, C. Russell Bengtson, Steven M. Richard, Terrence P. Donnelly,
Raymond A. Marcaccio, t:itacey .NaKasian, and Raymond Ripple a.Le hereby
appointed to the Local Rules Review Committee effective July 1, 2010.
James T. Murphy and David A. Wollin are hereby appointed as Co-Chairs of
the Committee effective July 1, 2010.
Therefore, the Local Rules Review Committee shall be composed of the
following individuals, whose terms expire on the dates indicated next to
their respective narnes.

Term Expires
James

1'.

ivicCormick,

.J::!,Sq.

Anthony F. Muri, Esq.
James T. Murphy, Esq.
R. Daniel Prentiss, Esq.
Sara A. Rapport, Esq.
Mary McElroy, Esq.

June '0 2011
June 30, 2011
June 30, 2011
'"l n, ,
June ""
ov,
~u,

,,

'"',....
u U.llC:::

June
June
June
June
June
June
June

C. Russell Bengtson, Esq.
Terrence P. Donnelly, AUSA
Ray~ond A. Marcaccio, Esq.
Stacey P. Nakasian, Esq.
Steven M. Richard, Esq.
Raymond M. Ripple, Esq.

June
June
June
June
June
June

Paul Goodale, ex officio reporter

n/a

I

f)''

Chief Judqe
Date: r - 3 ,

.;)..(>{0

I

lZho<e Been made
to FecoveF the judgment.

Return of Execution.

*****

13

* Unless otherwise indicated, the suggestion was made by the Comi.

Full Committee Action
PROPOSED CHANGE ACCEPTED

Court
Action

Civil Rules

Rule
Number

Suggestion Received*

Subcommittee Recommendation

LR Cv 72

LRCv 72 AUTHORITY OF
MAGISTRATE JUDGES IN CIVIL CASES

The Civil Rules Subcommittee endorses the
proposed change and recommends adoption
by the Court.

*****
(c)

Appeals from Rulings on
Nondispositive Matters.
(1)

Time for Appeal; Failure to File.
Any appeal from an order or other
ruling by a magistrate judge in a
nondispositive matter shall be filed
and served within fourteen (14) days
after such order or ruling is served on
the appellant. The a12J2ellant shall also
order a transcri]2t of any evidentia!:Y
hearing(s} before the magistrate judge
within the same 14-day 12eriod.
Failure to file specific objections and
order the transcri]2t in a timely manner
constitutes waiver of the right to
review by the district judge and the
right to appeal the Court's decision.

(2)

Content of Appeal. Any such appeal
shall consist of a notice of appeal
setting forth the basis for the appeal,
and a memorandwn of law which
complies with LR Cv 7,....arui-a
ffaE:S6fij3t of aft)' e,,,iEleffiiaFJ' l=teaFiagEsj
eefefe ffl6 magistrate j H:age aH:Ebior aay
statemeffis ey the magistfate jHElge of
the Feasons fuF the ordeF Of mling.

*****
Objections to Reports and
Recommendations.

(d)

(1)

Time for Objections; Failure to File.
Any objection to a Report and
Recommendation by a magistrate

14

* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action
PROPOSED CHANGE ACCEPTED

Court
Action

Civil Rules

Suggestion Received*

Rule
Number

Subcommittee Recommendation

Full Committee Action

The Civil Rules Subcommittee considered the
proposal, but declined to recommend a
change.

The Full Committee accepted the
subcommittee's recommendation.

The Civil Rules Subcommittee considered the
comments, but declined to recommend any
changes.

The Full Committee accepted the
subcommittee's recommendation.

judge shall be filed and served within
fourteen (14) days after such Report
and Recommendation is served on the
objecting party. The objecting party
shall also order a transcri]2t of any
evidentim hearing(s) before the
magistrate judge within the same 14day 12eriod. Failure to file specific
objections and order the transcri]2t in a
timely manner constitutes waiver of
the right to review by the district judge
and the right to appeal the Court's
decision.

I

I

I

(2)

Content of Objections. An objection
to a magistrate judge's Report and
Recommendation shall be
accompanied by a memorandum of
law specifying the fmdings and/or
recommendations to which objection
is made, and the basis for the
objection, ffi3:El a tfae:sefij:Jt sf afry
eviaemiary heaFing(s) befofe the
magistfate juage. The memorandum
shall comply with LR Cv 7.
*****

Attorney John Tarantino submitted a change
suggesting that the LRRC consider an
amendment allowing for the submission of
I supplemental authority similar to Fed. R. App.
Proc. 28(j).
The LRRC also received four comments from
Ms. Carol Pisani of Jolmston, Rhode Island
suggesting various changes to the Local Rules.
Copies of the comments are attached to this
document.

15
*Unless otherwise indicated, the suggestion was made by the Court.

___

,_,_~---,

"~---'~'

Court
Action

Criminal Rules
Rule
Number
LRCr
32(a)

Suggestion Received*

Subcommittee Recommendation

Full Committee Action

LR Cr32 SENTENCING AND
PRESENTENCE REPORTS

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

(a)

Sentenees GHtsiEle ef the Gaiaeline
Range. Any FeEfHest feF a sentenee
em:si:Ele e:f the aJ3:f3l:i:eaele gHi:Eleli:He F<mge
shaU l:le maae l:ly a metieR :B:lea ana
sep,<ea at least ele,,cen El ±1 Elays :FJFieF te
the Elate seheElHlea Eef seB:teB:ei:Hg ana
shalll:le aeeeffi:FJanieEll:ly a memeFanElHm
setting ferth fue faerual ana legal gF8HHEls
Eef the F8EfHBSt

fbj(a)

Sentencing Witnesses; Expert Report.

*****
fe)(b)

Presentence Investigative Report.

*****
LRCr
57.1

LRCr 57.1 APPLICATIONS FOR POSTCONVICTION RELIEF
(a)

Form. Any prose petition* for postconviction relief filed pursuant to 28 U.S. C. §
2254 or 28 U.S. C. § 2255 shall be on a form
provided by the Clerk's Office. The Clerk
shall make the form available upon request
and without charge.

*In this context, "Qetition" refers to both Qetitions
for relief under §2254 and motions to vacate, set
aside, or correct a sentence under§ 2255; and
"Qetitioner" refers to both Qetitioners seeking relief
under §2254, and movants seeking to vacate, set
aside, or con·ect a sentence under §2255.

16

* Unless otherwise indicated, the suggestion was made by the Court.

··-----···---·-

--·

----·

. -··--···-·--

--- -------

- - - - · · - - ---·-···--·---·-·--·.

Court
Action

Criminal Rules
Rule
Number
LRCr
57.2

i

Suggestion Received*

Subcommittee Recommendation

Full Committee Action

LR Cr 57.2 AUTHORITY OF
MAGISTRATE JUDGES IN CRIMINAL
CASES
*****

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

(c)

Appeals from Rulings On Nondispositive
Matters.
(1) Time for Appeal. Any appeal from an
order or other ruling by a magistrate judge
in a nondispositive matter shall be filed
and served within fourteen (14) days after
such order or ruling is served on the
appellant. The a12:12ellant shall also order a
transcri];lt of any evidentiar:y hearing(s)
before the magistrate judge within the
same 14-day J2eriod.
(2) Content of Appeal. Any such appeal
shall consist of a notice of appeal setting
forth the basis for the appeal, and a
memorandum of law which complies with
LR Cr 4 7, ana a tfaE:s GFij3t ef: aBJ'
e,,,iElemiary hearingEsj l:lefere the
magistfate jHElge anEI,ier aEJ' si:atemeBi:s l:ly
the magistrate jHElge ef the reasom for the
erEler or rulmg.
*****

(d)

Objections to Reports and
Recommendations.
(1) Time for Objections. Any objection to a
Report and Recommendation by a
magistrate judge shall be filed and served
within fourteen (14) days after such
Report and Recommendation is served on
the objecting party. The objecting party
shall also order a transcriQt of any
evidentiary hearing(s) before the

17
*Unless otherwise indicated, the suggestion was made by tl1e Court.

Court
Action

Criminal Rules
Rule
Number

Suggestion Received*

Subcommittee Recommendation

magistrate judge within the same 14-day
period.
(2) Content of Objections. An objection to
a magistrate judge's Report and
Recommendation shall be accompanied
by a memorandum of law specifying the
findings and/or recommendations to
which objection is made,-and the basis for
the objection, ana a tfanS6fij3t ef any
eviaentiary heaFing(s) befeFe l:he
magistFate juage. The memorandum shall
comply with LR Cr 4 7.

*****

18

* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

Other Comments/Changes
Suggestion Received*
Rule
Number

I

Subcommittee Recommendation

Full Committee Action

N!A

PROPOSED CHANGE ACCEPTED

The Court proposed to restyle all numerical
references as Arabic numbers only. For example,
all references to "twenty-one days" or "twentyone (21) days" would be restyled as "21 days."

I

19

* Unless otherwise indicated, the suggestion was made by the Court .

. ··---·-

··~~-····~·---··---

Court
Action

In accordance with the discussion during the District of Rhode Island break-out session at the First Circuit Judicial
Conference, I request that LR Civ 55 either be eliminated as unnecessary (based on Fed.R.Civ.P. 55) or be changed so
as not to require that the party who has not appeared be given notice of a motion for either entry of default or entry of
default judgment by both regular mail, postage prepaid, and by certified or registered mail, return receipt requested (with a
copy of the return receipt appended to the certification).
The rationale for the requested elimination or change is as follows. The party against whom a default or default judgment
is being sought has already failed to answer or otherwise plead to the complaint and a copy of the proof of service has
already been filed with the clerk of the court. If a party has not appeared, then I question the necessity of having to serve
that party with a notice seeking a default or default judgment and requiring a return receipt to be appended to the
certification. This added requirement seems to be inconsistent with Fed.R.Civ.P. 55, which states that if a party against
whom judgment for a form of relief is sought has failed to plead or otherwise defend and the failure is shown by affidavit or
otherwise, the clerk must enter the party's default. With respect to LR Civ 55, if the defaulted party does not claim the
certified or registered mail, then a copy of the return receipt cannot be appended to the certification and it will be difficult to
meet the requirements of the rule. Finally, even if a default is obtained using this procedure and the defaulted party still
has not appeared, the procedure must be repeated yet again if a defau/tjudgment is sought. Consequently, under LR Civ
55, even if the party has not appeared, the party must be notified before a default can be obtained and once again before
a default judgment can be obtained, each time by regular mail and certified or registered mail; and in each case the return
receipt must be appended. In my experience, LR Civ 55 causes both confusion and unnecessary delay.
Should you have any questions, I would be happy to address them.
Best regards.
John

John A. Tarantino
Adler Pollock & Sheehan P.C.
One Citizens Plaza, 8th Floor
Providence, RI 02903

17

David,
As I explained to you during our recent telephone conversation, I suggest that the Local Rules Committee consider
adding a rule to deal with the filing of supplemental authority, and address situations where relevant authority becomes
available that was not available at the time the parties submitted their memoranda or even after oral argument has
taken place, but where the matter is still sub judice. The Rules of Appellate Procedure deal with this issue in Federal
Rule of Appellate Procedure 28(j). I suggest that we have a similar rule in our district court so that the parties can bring
to the attention of the court relevant authority that was not available at the time of briefing, oral argument or both, but
to also make it clear that what is intended is that the court be provided with the authority as well as a short, non
argumentative explanation of the relevance of the supplemental authority to a position stated in a party's
memorandum or to a point made during oral argument, again similar to what is provided in Rule 28 (j).
Should you have any questions, please let me know.
Best Regards,
John

John A. Tarantino
Adler Pollock & Sheehan P.C.
One Citizens Plaza, 8th Floor
RI 02903
Providen

19

ADLER POLLCJ~K ®_sliEEHAN I~C.

One Citizens Plaza, 8th floor
Providence, RI 02903·1345
Telephone 401·274·7200
Fax 401·751-0604 / 351-4607
17 5 Federal Street
Boston, MA 02110·2210
Telephone 617-482·0600
fax 61 H82·0604

February 28, 2011

www.apslaw.com

Via E-Mail
Local Rules@rid. uscourts.gov

Clerk's Office
Attn: Local Rules
United States District Court
One Exchange Terrace
Providence, RI 02903

Re:

LR CV 69- Writs of Execution

Dear Clerk of Court:
I am writing to suggest that LR CV 69 entitled "Writs ofExecution" be amended to delete
Section (b). First, the procedure in (b) is not required by Federal Rule of Civil Procedure 69.
FRCP 69 states, in part, that "The procedure on execution - and in proceedings supplementary to
and in aid of judgment or execution- must accord with the procedure of the state where the court
is located, but a federal statute governs to the extent it applies." There is no similar procedure
under the state rules of civil procedure requiring an affidavit described in Section (b). On the
state side, once a judgment issues, upon request and payment of a fee, the Superior Court clerk
issues the writ of execution for service on the judgment defendant.
Second, the requirement in Section (b) is superfluous. The amount due on the judgment is
identified in the judgment entered by the Court as calculated by the prevailing party. The
demand for payment and efforts to recover the judgment, in the first instance, are generally done
by service of the writ of execution. The requirement for an affidavit is inconsistent with FRCP
69 and creates an unnecessary step in the collection process. Accordingly, I would suggest that
Section (b) be deleted in its entirety.
If you have any questions, please contact me. Thank you for your consideration.

~·K_ &i.r
PATRICIA K. ROCHA
PKR:dh

cc:

David DiMarzio (via e-mail)
Paulette Dube (via e-mail)

56356LJ

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United States District Court
for the District of Rhode Island

PROPOSED AMENDMENTS TO LOCAL RULES

General/Attorney Rules
Rule
Suggestion Received*
Number
LR Gen
106

LR Gen 106 REFERRALS TO AND
FROM OTHER DISTRICTS
*****
Trials and Other Proceedings. Conferences and
hearings may be held in either district. Jury trials
shall be held in the district where the case
originates unless all parties agree otherwise.

(c)

LR Gen
109

LR Gen 109 BANKRUPTCY
*****
(f)

Subcommittee Recommendation
The General Rules Subcommittee
endorses the proposed change and
recommends adoption by the Court.

The General Rules Subcommittee
endorses the proposed change and
recommends adoption by the Court.

Appeals to District Court
*****
(1)

Notice of Appeal. When a notice of appeal is
filed with the bankruptcy clerk, the bankruptcy
clerk shall, forthwith, transmit a copy of the
notice of appeal to the District Court clerk,
together with a copy of the judgment, order or
decree that is the subject of the appeal and the
Appeal Cover Sheet. The District Court clerk,
thereupon, shall treat the matter administratively
as a newly filed case, but in accordance with
Interim Bankruptcy Rule 8001(f)(2), the matter
shall not be deemed “pending” in this Court until
the record has been transmitted and docketed.

(2)

Motion for Leave to Appeal. When a motion
for leave to appeal is filed with the bankruptcy
clerk, the bankruptcy clerk shall, forthwith,
transmit a copy of the motion to the District
Court clerk, together with copies of the notice of
appeal, the judgment, order or decree that is the
subject of the proposed appeal, and any
memorandum of counsel submitted in support of
or in opposition to the motion. The District
Court clerk, thereupon, shall treat the matter

2
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

General/Attorney Rules
Rule
Suggestion Received*
Number

Subcommittee Recommendation

administratively as a newly filed case, but in
accordance with Interim Bankruptcy Rule
8001(f)(2), the matter shall not be deemed
“pending” in this Court until leave to appeal has
been granted.
(3)

Requests for Certification. Any request by a
party for the certification of an appeal directly to
the Court of Appeals filed in the District Court
pursuant to 28 U.S.C. 158(d)(2) and Interim
Bankruptcy Rule 8001(f) shall be in the form of
a motion complying with LR Cv 7.
*****

(5)

Dismissal of Appeals by Bankruptcy Judge.
A bankruptcy judge may dismiss an appeal if:
*****
(B)

the appellant has failed to file a
designation of the record or a statement
of the issues within the time specified in
Bankruptcy Rule 8006 or any extension
thereof; or
*****

3
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

General/Attorney Rules
Rule
Suggestion Received*
Number
LR Gen
209

LR Gen 209

BASIS FOR DISCIPLINARY ACTION
*****

(c)

Subcommittee Recommendation
The General Rules Subcommittee
endorses the proposed change and
recommends adoption by the Court.

Misconduct. Misconduct for which an attorney
may be disciplined pursuant to this Rule 209 may
include:
(a)(1) Violation of the Standards of Professional
Conduct referred to in LR Gen 208;
(b)(2) Intentional violation of these Local Rules or
any order of this Court;
(c)(3) Failure to promptly provide the notifications
required by LR Gen 203(b)(1)(B) and/or (C);
(d)(4) Conduct which resulted in suspension,
disbarment or any other disciplinary action
taken against the attorney by any other court or
disciplinary body having disciplinary authority
over attorneys; and/or
(e)(5) Conviction of a crime.

4
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

General/Attorney Rules
Rule
Suggestion Received*
Number
LR Gen
210

LR Gen 210

DISCIPLINARY PROCEEDINGS

*****
Commencement of Formal Proceedings.

(c)
(3)

Subcommittee Recommendation
The General Rules Subcommittee
endorses the proposed change and
recommends adoption by the Court.

*****
The attorney shall file a written response to the
show cause order and the allegations of
misconduct contained therein within fourteen
(14) days after service from the date of the
order. If any issue of fact is raised in the
response or if the attorney wishes to be heard in
mitigation, the Court shall set the matter for
hearing in accordance with subsection (d) of
this Rule.
*****

(d)

Hearing
(1)

Forum.
*****
(C) Within fourteen (14) days after being served
from the date of the order, the attorney
and/or any special prosecutor appointed by
the Court may serve and file written
objections to the report. Failure to file an
objection within the fourteen-day period
shall be deemed a waiver of any objection.
Those portions of the magistrate judge’s
findings and recommendations to which
objection is made shall be reviewed by the
Court de novo based on the record compiled
before the magistrate judge. The Court may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by
the magistrate judge or it may receive
further evidence or recommit the matter to
the magistrate judge with instructions.
*****

5
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

General/Attorney Rules
Rule
Suggestion Received*
Number
LR Gen
213

LR Gen 213
(a)

CRIMINAL CONVICTIONS

Criminal Convictions
(1)

Summary Suspension. The Court shall enter an
order immediately suspending an attorney who
is a member of the Bar of this Court or who is
admitted to practice pro hac vice from practicing
before this Court upon receipt of:

Subcommittee Recommendation

Full Committee Action

Court
Action

Due to time considerations, this suggested
amendment was not referred to the
General Rules Subcommittee, but was
considered by the full LRRC at the June 1,
2011 meeting.

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

(A) An official record of a finding of guilt or the
return of a guilty verdict as to a serious crime,
as hereinafter defined, or the entry of a plea of
guilty or nolo contendere to , a serious such
crime, as hereinafter defined, in any court of
the United States, the District of Columbia,
any state, territory, commonwealth or
possession of the United States, or;
(B) A certified copy of a judgment showing
conviction of a serious crime, as hereinafter
defined, in any court of the United States, the
District of Columbia, any state, territory,
commonwealth or possession of the United
States.
A copy of such order shall immediately be
served upon the attorney as provided in LR
Gen 210(c)(2). Upon good cause shown, the
Court may set aside such order when it
appears in the interest of justice to do so.
(2)

Disciplinary proceeding. In addition to
suspending the attorney, the Court shall issue a
show cause order as provided in LR Gen 210(c),
provided, however, that a disciplinary
proceeding so instituted shall not be brought to
final hearing until all appeals from the
conviction are concluded.
An official record showing the entry of the
finding of guilt, the return of a guilty verdict, or
a plea of guilty or nolo contendere, or a certified

6
* Unless otherwise indicated, the suggestion was made by the Court.

General/Attorney Rules
Rule
Suggestion Received*
Number

Subcommittee Recommendation

Full Committee Action

Court
Action

PROPOSED CHANGE
ACCEPTED

COURT
APPROVED
CHANGE

copy of a judgment of conviction of an attorney
for any crime shall be conclusive evidence of the
commission of that crime in any disciplinary
proceeding instituted against that attorney based
upon the conviction.
*****
LR Gen
214

LR Gen 214 ACTION TAKEN BY OTHER
COURTS OR DISCIPLINARY AGENCIES
(a)

The General Rules Subcommittee
endorses the proposed change and
recommends adoption by the Court.

Show Cause Order. When a certified copy of a
judgment or order is filed with this Court showing
that an attorney who is a member of the Bar of this
Court or who is admitted to practice before this
Court pro hac vice has been disciplined or found
incapacitated to practice by any other court of the
United States, the District of Columbia, any state,
territory, commonwealth or possession of the
United States or by any agency having disciplinary
authority over attorneys, whether by reason of
misconduct, mental infirmity or addiction to drugs
or intoxicants, this Court shall, forthwith:
(1)

provide the attorney with a copy of the
judgment or order; and

(2)

issue an order directing the attorney to
show cause, within fourteen (14) days
after service from the date of the order,
why this Court should not impose the
identical discipline and/or make a similar
finding of incapacity.

In the event the action imposed in the other
jurisdiction has been stayed there, any reciprocal
action taken by this Court shall be deferred until
such stay expires.
*****

7
* Unless otherwise indicated, the suggestion was made by the Court.

Civil Rules
Rule
Number

Subcommittee Recommendation

Full Committee Action

Court Action

The Civil Rules Subcommittee endorses the
proposed change and recommends adoption
by the Court.

PROPOSED CHANGE
ACCEPTED

COURT APPROVED
CHANGE

The Civil Rules Subcommittee endorses the
proposed change and recommends adoption
by the Court.

PROPOSED CHANGE
ACCEPTED

COURT APPROVED
CHANGE

Suggestion Received*

LR Cv 5

LR Cv 5

FORM AND FILING OF
DOCUMENTS
*****

(b)

Civil Cover Sheet. Counsel Any person
filing a complaint in a civil case or any
other document that requires a file to be
opened shall contemporaneously file a
completed AO Form JS-44 Civil Cover
Sheet describing the type of case and
identifying any related case previously
filed or pending in this Court. The Clerk
may reclassify a case if the cover sheet
does not accurately describe its type.
Cover sheets shall be provided by the
Clerk upon request.
*****

LR Cv 5.1

LR Cv 5.1

SERVICE AND PROOF OF
SERVICE
*****

(b)

Private Process Servers.
(2) To be considered for appointment, an
applicant shall file an affidavit application
setting forth the applicant’s age, citizenship,
criminal record (if any), and relevant
experience and qualifications for the service
of process. The application shall be on a
form provided by the Clerk. In order to be
appointed, an applicant must demonstrate:
(A) sufficient knowledge and/or other
experience to perform the duties
required by law; and
(B) sufficiently good character to
discharge the duties of a process
server.

8
* Unless otherwise indicated, the suggestion was made by the Court.

Civil Rules
Rule
Number

Subcommittee Recommendation

Full Committee Action

Court Action

N/A

After conferring by email, the
LRRC unanimously agreed that
LR Cv 24 should be eliminated.

COURT APPROVED
CHANGE

The Civil Rules Subcommittee proposed the
following revision to the amendment that the
Court tabled after the 2009-10 cycle:

After debate over the Civil
Rules Subcommittee’s
proposal, the LRRC decided to
approve the following revision:

COURT APPROVED
CHANGE

Suggestion Received*
*****
(4) Appointments will be made on an annual
basis for the period of July1 through
June 30 may be renewed annually upon
the filing of an affidavit stating that all
information in the original affidavit and
application is correct, together with a
bond in the required amount.
*****

LR Cv 24

On September 12, 2011, the Court issued an
Administrative Order suspending LR Cv 24. The
Court suspended LR Cv 24 due to a conflict
between the Local Rule and Fed. R. Civ. P. 5.1(a)
regarding the notice and service requirements
relating to constitutional challenges to federal or
state statutes.
In addition to suspending the rule, the Court also
suggested that the LRRC consider eliminating LR
Cv 24 from the Court’s Local Rules.

LR Cv 26

In the 2009-2010 review cycle, the LRRC
recommended a new section to LR Cv26. The
section would have allowed counsel to serve
requests for admissions “at any time prior to
trial.” The Judges tabled this new
recommendation, and asked the LRRC to
consider adding a definite time period to the
suggested amendment before resubmitting it.

(d) Unless the Court orders otherwise,
requests for admission may be served at any
time prior to trial. The pendency of
outstanding requests for admission shall not
be a basis for continuance of the trial date.

9
* Unless otherwise indicated, the suggestion was made by the Court.

(d) Requests for admission
may be served following the
discovery closure date with
leave of court, upon motion
which includes the proposed
requests.

Civil Rules
Rule
Number
LR Cv 55

Suggestion Received*

Subcommittee Recommendation

Full Committee Action

Court Action

Attorney John Tarantino submitted a comment
asking that the requirement in LR Cv 55 directing
counsel to serve, with return receipt, motions for
entry of default and motions for default judgment
be removed from the rule.

The Civil Rules Subcommittee considered
Mr. Tarantino’s request, and opted to revise
the rule as follows:

PROPOSED CHANGE
ACCEPTED

COURT DECLINED
TO ACCEPT
PROPOSED
CHANGE.

A motion for entry of default or entry of a
default judgment made against a party not
represented by counsel shall be accompanied by
a certification that:
(a)

Notice of the motion was given to the
party against whom a default or default
judgment is sought by both regular
mail, postage prepaid, and by certified
or registered mail, return receipt
requested. A copy of the return receipt
shall be appended to the certification;
Default: The Clerk shall enter a default
upon an application by the plaintiff that
conforms to the requirements of Fed. R.
Civ. P. 55(a)

(b)

To the best of the movant’s knowledge,
the address set forth in such
certification is the last known address
of that party; and Default Judgment:
Not less than 14 days after filing of a
motion for entry of default judgment
made against a party not represented by
counsel, the moving plaintiff shall file
with the Court a certification that:
(c)(1) The party against whom a
default or default judgment is sought is
not in the military service of the United
States as defined in the Soldiers’ and
Sailors’ Civil Relief Act of 1940, as
amended.; and
(2)

Notice of the motion was

10
* Unless otherwise indicated, the suggestion was made by the Court.

Civil Rules
Rule
Number

Subcommittee Recommendation

Suggestion Received*

Full Committee Action

Court Action

PROPOSED CHANGE
ACCEPTED

COURT APPROVED
CHANGE

served on the party against whom the
judgment is sought by first class mail
and certified mail, return receipt
requested, at the address where the
party was served with process, and the
party’s last known address, if different.
The certification shall include the
return receipt, or, if unavailable, a
statement of the measures taken to
attempt service and verify receipt by
the defaulted party.
LR Cv 67

LR Cv 67 PARTIES' FUNDS DEPOSITED
WITH CLERK OF COURT
*****
(c)

The Civil Rules Subcommittee endorses the
proposed change and recommends adoption
by the Court.

Deduction of Court Fees. Any order
obtained by a party that directs the Clerk
to invest in an interest-bearing account
or investment funds deposited in the
Registry of the Court shall contain
wording which directs the Clerk,
pursuant to 28 U.S.C. § 1914(b), to
deduct a fee in accordance with the
schedule set by the Judicial Conference
of the United States from the income
earned on the funds deposited or
invested a fee in the amount of ten
percent (10%) of the income earned,
whenever such income becomes
available for such deduction, and
without further order of the Court. Such
a provision shall be included in the order
regardless of the nature of the case in
which the deposit was made.

11
* Unless otherwise indicated, the suggestion was made by the Court.

Civil Rules
Rule
Number
LR Cv 69

Suggestion Received*

Subcommittee Recommendation

Attorney Pat Rocha submitted a comment
suggesting that section (b) of the rule be deleted
because: (1) the procedure outlined in LR Cv
69(b) is not required under state law (as required
by Fed. R. Civ. P. 69); and (2) the requirement of
an affidavit creates an unnecessary and
superfluous step in the collection process.

The Civil Rules Subcommittee accepted the
suggestion and modified the rule as follows:
LR Cv 69

WRITS OF EXECUTION
*****

(b)

(c)(b)

Requests for Writ of Execution. A
request for a writ of execution shall be
accompanied by an affidavit that states:
(1)

the amount due on the
judgment and an explanation
of how that amount has been
calculated;

(2)

that a demand for payment has
been made and refused; and

(3)

what efforts have been made
to recover the judgment.

Return of Execution.
*****

12
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action
PROPOSED CHANGE
ACCEPTED

Court Action
INITIALLY, COURT
APPROVED
CHANGE, BUT UPON
RECEIPT OF A
PUBLIC COMMENT,
THE COURT
REVOKED ITS
APPROVAL OF THE
LRRC’S
RECOMMENDATION
AND WILL REFER IT
BACK TO THE LRRC
FOR FURTHER
CONSIDERATION.

Civil Rules
Rule
Number
LR Cv 72

Suggestion Received*

Subcommittee Recommendation

LR Cv 72 AUTHORITY OF
MAGISTRATE JUDGES IN CIVIL CASES

The Civil Rules Subcommittee endorses the
proposed change and recommends adoption
by the Court.

*****
(c)

Appeals from Rulings on
Nondispositive Matters.
(1)

Time for Appeal; Failure to File.
Any appeal from an order or other
ruling by a magistrate judge in a
nondispositive matter shall be filed
and served within fourteen (14) days
after such order or ruling is served on
the appellant. The appellant shall also
order a transcript of any evidentiary
hearing(s) before the magistrate judge
within the same 14-day period.
Failure to file specific objections and
order the transcript in a timely manner
constitutes waiver of the right to
review by the district judge and the
right to appeal the Court’s decision.

(2)

Content of Appeal. Any such appeal
shall consist of a notice of appeal
setting forth the basis for the appeal,
and a memorandum of law which
complies with LR Cv 7, and a
transcript of any evidentiary hearing(s)
before the magistrate judge and/or any
statements by the magistrate judge of
the reasons for the order or ruling.
*****

(d)

Objections to Reports and
Recommendations.
(1)

Time for Objections; Failure to File.
Any objection to a Report and
Recommendation by a magistrate

13
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action
PROPOSED CHANGE
ACCEPTED

Court Action
COURT APPROVED
CHANGE

Civil Rules
Rule
Number

Subcommittee Recommendation

Full Committee Action

Court Action

The Civil Rules Subcommittee considered the
proposal, but declined to recommend a
change.

The Full Committee accepted
the subcommittee’s
recommendation.

N/A

The Civil Rules Subcommittee considered the
comments, but declined to recommend any
changes.

The Full Committee accepted
the subcommittee’s
recommendation.

Suggestion Received*
judge shall be filed and served within
fourteen (14) days after such Report
and Recommendation is served on the
objecting party. The objecting party
shall also order a transcript of any
evidentiary hearing(s) before the
magistrate judge within the same 14day period. Failure to file specific
objections and order the transcript in a
timely manner constitutes waiver of
the right to review by the district judge
and the right to appeal the Court’s
decision.
(2)

Content of Objections. An objection
to a magistrate judge’s Report and
Recommendation shall be
accompanied by a memorandum of
law specifying the findings and/or
recommendations to which objection
is made, and the basis for the
objection, and a transcript of any
evidentiary hearing(s) before the
magistrate judge. The memorandum
shall comply with LR Cv 7.
*****

Attorney John Tarantino submitted a change
suggesting that the LRRC consider an
amendment allowing for the submission of
supplemental authority similar to Fed. R. App.
Proc. 28(j).
The LRRC also received four comments from
Ms. Carol Pisani of Johnston, Rhode Island
suggesting various changes to the Local Rules.
Copies of the comments are attached to this
document.

14
* Unless otherwise indicated, the suggestion was made by the Court.

N/A

Criminal Rules
Rule
Number
LR Cr
32(a)

Suggestion Received*

Subcommittee Recommendation

Full Committee Action

Court
Action

LR Cr 32 SENTENCING AND
PRESENTENCE REPORTS

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

COURT
APPROVED
CHANGE

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

COURT
APPROVED
CHANGE

(a)

Sentences Outside of the Guideline
Range. Any request for a sentence
outside of the applicable guideline range
shall be made by a motion filed and
served at least eleven (11) days prior to
the date scheduled for sentencing and
shall be accompanied by a memorandum
setting forth the factual and legal grounds
for the request.

(b)(a)

Sentencing Witnesses; Expert Report.

*****
(c)(b)

Presentence Investigative Report.
*****

LR Cr
57.1

LR Cr 57.1 APPLICATIONS FOR POSTCONVICTION RELIEF
(a)

Form. Any pro se petition* for postconviction relief filed pursuant to 28 U.S.C. §
2254 or 28 U.S.C. § 2255 shall be on a form
provided by the Clerk’s Office. The Clerk
shall make the form available upon request
and without charge.

*In this context, “petition” refers to both petitions
for relief under §2254 and motions to vacate, set
aside, or correct a sentence under § 2255; and
“petitioner” refers to both petitioners seeking relief
under §2254, and movants seeking to vacate, set
aside, or correct a sentence under §2255.

15
* Unless otherwise indicated, the suggestion was made by the Court.

Criminal Rules
Rule
Number
LR Cr
57.2

Suggestion Received*

Subcommittee Recommendation

Full Committee Action

Court
Action

LR Cr 57.2 AUTHORITY OF
MAGISTRATE JUDGES IN CRIMINAL
CASES
*****
(c) Appeals from Rulings On Nondispositive
Matters.

The Criminal Rules Subcommittee endorses
the proposed change and recommends
adoption by the Court.

PROPOSED CHANGE ACCEPTED

COURT
APPROVED
CHANGE

(1) Time for Appeal. Any appeal from an
order or other ruling by a magistrate judge
in a nondispositive matter shall be filed
and served within fourteen (14) days after
such order or ruling is served on the
appellant. The appellant shall also order a
transcript of any evidentiary hearing(s)
before the magistrate judge within the
same 14-day period.
(2) Content of Appeal. Any such appeal
shall consist of a notice of appeal setting
forth the basis for the appeal, and a
memorandum of law which complies with
LR Cr 47, and a transcript of any
evidentiary hearing(s) before the
magistrate judge and/or any statements by
the magistrate judge of the reasons for the
order or ruling.
*****
(d) Objections to Reports and
Recommendations.
(1) Time for Objections. Any objection to a
Report and Recommendation by a
magistrate judge shall be filed and served
within fourteen (14) days after such
Report and Recommendation is served on
the objecting party. The objecting party
shall also order a transcript of any
evidentiary hearing(s) before the

16
* Unless otherwise indicated, the suggestion was made by the Court.

Criminal Rules
Rule
Number

Suggestion Received*

Subcommittee Recommendation

magistrate judge within the same 14-day
period.
(2) Content of Objections. An objection to
a magistrate judge’s Report and
Recommendation shall be accompanied
by a memorandum of law specifying the
findings and/or recommendations to
which objection is made, and the basis for
the objection, and a transcript of any
evidentiary hearing(s) before the
magistrate judge. The memorandum shall
comply with LR Cr 47.
*****

17
* Unless otherwise indicated, the suggestion was made by the Court.

Full Committee Action

Court
Action

Other Comments/Changes
Suggestion Received*
Rule
Number
The Court proposed to restyle all numerical
references as Arabic numbers only. For example,
all references to “twenty-one days” or “twentyone (21) days” would be restyled as “21 days.”

Subcommittee Recommendation

Full Committee Action

Court
Action

N/A

PROPOSED CHANGE ACCEPTED

COURT
APPROVED
CHANGE

18
* Unless otherwise indicated, the suggestion was made by the Court.

In accordance with the discussion during the District of Rhode Island break-out session at the First Circuit Judicial
Conference, I request that LR Civ 55 either be eliminated as unnecessary (based on Fed.R.Civ.P. 55) or be changed so
as not to require that the party who has not appeared be given notice of a motion for either entry of default or entry of
default judgment by both regular mail, postage prepaid, and by certified or registered mail, return receipt requested (with a
copy of the return receipt appended to the certification).
The rationale for the requested elimination or change is as follows. The party against whom a default or default judgment
is being sought has already failed to answer or otherwise plead to the complaint and a copy of the proof of service has
already been filed with the clerk of the court. If a party has not appeared, then I question the necessity of having to serve
that party with a notice seeking a default or default judgment and requiring a return receipt to be appended to the
certification. This added requirement seems to be inconsistent with Fed.R.Civ.P. 55, which states that if a party against
whom judgment for a form of relief is sought has failed to plead or otherwise defend and the failure is shown by affidavit or
otherwise, the clerk must enter the party's default. With respect to LR Civ 55, if the defaulted party does not claim the
certified or registered mail, then a copy of the return receipt cannot be appended to the certification and it will be difficult to
meet the requirements of the rule. Finally, even if a default is obtained using this procedure and the defaulted party still
has not appeared, the procedure must be repeated yet again if a defau/tjudgment is sought. Consequently, under LR Civ
55, even if the party has not appeared, the party must be notified before a default can be obtained and once again before
a default judgment can be obtained, each time by regular mail and certified or registered mail; and in each case the return
receipt must be appended. In my experience, LR Civ 55 causes both confusion and unnecessary delay.
Should you have any questions, I would be happy to address them.
Best regards.
John

John A. Tarantino
Adler Pollock & Sheehan P.C.
One Citizens Plaza, 8th Floor
Providence, RI 02903

17

David,
As I explained to you during our recent telephone conversation, I suggest that the Local Rules Committee consider
adding a rule to deal with the filing of supplemental authority, and address situations where relevant authority becomes
available that was not available at the time the parties submitted their memoranda or even after oral argument has
taken place, but where the matter is still sub judice. The Rules of Appellate Procedure deal with this issue in Federal
Rule of Appellate Procedure 28(j). I suggest that we have a similar rule in our district court so that the parties can bring
to the attention of the court relevant authority that was not available at the time of briefing, oral argument or both, but
to also make it clear that what is intended is that the court be provided with the authority as well as a short, non
argumentative explanation of the relevance of the supplemental authority to a position stated in a party's
memorandum or to a point made during oral argument, again similar to what is provided in Rule 28 (j).
Should you have any questions, please let me know.
Best Regards,
John

John A. Tarantino
Adler Pollock & Sheehan P.C.
One Citizens Plaza, 8th Floor
RI 02903
Providen

19

ADLER POLLCJ~K ®_sliEEHAN I~C.

One Citizens Plaza, 8th floor
Providence, RI 02903·1345
Telephone 401·274·7200
Fax 401·751-0604 / 351-4607
17 5 Federal Street
Boston, MA 02110·2210
Telephone 617-482·0600
fax 61 H82·0604

February 28, 2011

www.apslaw.com

Via E-Mail
Local Rules@rid. uscourts.gov

Clerk's Office
Attn: Local Rules
United States District Court
One Exchange Terrace
Providence, RI 02903

Re:

LR CV 69- Writs of Execution

Dear Clerk of Court:
I am writing to suggest that LR CV 69 entitled "Writs ofExecution" be amended to delete
Section (b). First, the procedure in (b) is not required by Federal Rule of Civil Procedure 69.
FRCP 69 states, in part, that "The procedure on execution - and in proceedings supplementary to
and in aid of judgment or execution- must accord with the procedure of the state where the court
is located, but a federal statute governs to the extent it applies." There is no similar procedure
under the state rules of civil procedure requiring an affidavit described in Section (b). On the
state side, once a judgment issues, upon request and payment of a fee, the Superior Court clerk
issues the writ of execution for service on the judgment defendant.
Second, the requirement in Section (b) is superfluous. The amount due on the judgment is
identified in the judgment entered by the Court as calculated by the prevailing party. The
demand for payment and efforts to recover the judgment, in the first instance, are generally done
by service of the writ of execution. The requirement for an affidavit is inconsistent with FRCP
69 and creates an unnecessary step in the collection process. Accordingly, I would suggest that
Section (b) be deleted in its entirety.
If you have any questions, please contact me. Thank you for your consideration.

~·K_ &i.r
PATRICIA K. ROCHA
PKR:dh

cc:

David DiMarzio (via e-mail)
Paulette Dube (via e-mail)

56356LJ

20

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Michael Simoncelli
From:
Sent:
To:
Subject:

Sherman, Deming [DSherman@edwardswildman.com]
Friday, October 14, 2011 2:15 PM
Local Rules
FW: Comment on Proposed Amendments to Local Rules

My coment relates to LR Cv 69 Writs of Execution.
First, I do not understand why subsection (b) was removed. I think it is a reasonable requirement.
Second, the rule as it now stands allows a writ of execution to be obtained 14 days after judgment is
entered. This effectively shortens the appeal period to 14 days. If the appeal period is 30 days, then
the time to apply for a writ should be no sooner than 30 days. At least the affidavit requirement was a
shield against a premature writ, but now that that is proposed to be eliminated, there is no shield
unless the appellant posts a bond within 14 days of the judgment. This does not seem reasonable.
The rule could provide for emergency exceptions in the discretion of the court. But as a matter of
routine, I would allow 30 days to pass before a writ may be issued.
Deming Sherman
Deming E. Sherman
Partner
Edwards Wildman Palmer LLP
2800 Financial Plaza
Providence, RI 02906
Direct: + 1 401 276 6443
Fax: + 1 401 276 6611
Cell + 1 401 529 2303
Main: + 1 401 274 9200
www.edwardswildman.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Arid%3A20d8a2521b924624. Public record. Not legal advice.