Effective July 1, 2024, the United States District Court for the Southern and Eastern Districts of New York will impose a series of changes to their joint local rules. These changes mark the culmination “of a multi-year effort by the Joint Local Rules Committee” that is “intended to align the Local Rules with recent changes to the Federal Rules” by eliminating outdated rules and making rules more uniform. The updated rules apply in all civil actions and proceedings governed by the Federal Rules of Civil Procedure. These changes will govern actions pending or filed on or after July 1, 2024.
Local Civil Rule 1.4 – Withdrawal or Displacement of Attorney of Record
The most significant change to Local Rule 1.4 concerns the procedure for becoming an attorney of record. Attorneys appearing on behalf of a party will need to file a notice of appearance in each case. This requirement would not apply to attorneys who file case-initiating documents, such as a complaint or notice of removal.
The previous local rule governed the withdrawal or displacement of an attorney of record but did not identify the procedure by which one becomes an attorney of record. The Federal Rules of Civil Procedure likewise did not include a procedure for becoming an attorney of record. Accordingly, the local rule has been amended to require attorneys appearing in a matter to file a notice of appearance and lists the items of information that the notice of appearance must contain.
While the requirements for withdrawing or replacing an attorney of record will not change, those for substitution of counsel do. Under the revised rules, an affidavit is no longer necessary when substitution of counsel is stipulated or when counsel from the same firm already entered a notice of appearance.
Local Civil Rule 1.8. Electronic Equipment and Recording, Broadcasting, and Streaming of Court Matters
Under the new Rule 1.8, no one may take a photograph or video of any proceeding or communication with the court without the presiding judge’s authorization. This rule has been expanded to encompass remote proceedings and conversations with court personnel, including employees of the court and mediators acting at the judge’s direction.
Local Civil Rule 5.2. Requirements for Electronic Filing and Service; Duty to Review Underlying Orders
Rule 5.2 now requires parties to file highly sensitive documents in hard copy. Additionally, counsel must file electronic documents in accordance with the requirements of the Electronic Case Files system. However, a party may be exempted from electronic filing by Court order or Federal Rule of Civil Procedure 5.
Local Civil Rule 6.3 – Motions for Reconsideration or Reargument
Under the new Local Rule 6.3, a notice of motion for reconsideration must be served within 14 days after entry of the court’s order. This rule changes the requirement that the motion for reconsideration be served within 14 days of the court’s determination of the original motion or entry of the judgment.
The new rule establishes the following maximum-page requirements: 10 pages for the memorandum that is served with the notice of motion, 10 pages for any answering memoranda, and five pages for any reply memoranda.
Local Civil Rule 7.1(d) – Letter Motions
Under the new Local Rule 7.1(d), regardless of the particular judge’s rules, the following motions may be brought by letter motion: extensions or adjournments, applications for a pre-motion conference, and similar non-dispositive matters.
Other motions may be brought by letter motion only if the particular judge’s rules or orders permit it.
Regarding documents to be filed, the new Local Rule 11.1(b) maintains the old rule’s requirements — typeface, margins, and spacing — but adds that a judge’s individual rules may maintain otherwise. Thus, the particular judge’s rules would govern.
Local Civil Rule 15.1(a) – Amending or Supplementing Pleadings
The new Local Rule 15.1(a) establishes requirements for amending or supplementing pleadings. Parties will need to file not only a copy of the proposed pleading, but also a version that indicates the changes made, such as via redlines or strikeouts.
Local Civil Rule 15.1(b) – Amending or Supplementing Pleadings (continued)
Under the new Local Rule 15.1(b), after a court grants a motion to amend or supplement, the moving party must file the new pleading within seven days of the court’s order.
Local Civil Rule 26.2(c)(2) – Assertion of Claim of Privilege
The change to Local Rule 26.2(c)(2) introduces “metadata” to the local rules.
The change encourages parties to use a metadata log that would be sufficient to support a privilege claim. The new rule also prevents parties from objecting to a privilege log on the basis of categorical or metadata grouping.
Local Civil Rule 30.1. Counsel Fees on Taking Depositions More Than 100 Miles From Courthouse.
A significant change is the removal of Rule 30.1. Previously, a party had to request the court to issue an order providing that, prior to an examination, a party pay for another’s expenses associated with attending the examination. However, this rule has now been withdrawn because of the availability and increased us of depositions via electronic means.
Local Civil Rule 33.1. Answering Interrogatory by Reference to Records
Rule 33.1 has been intentionally omitted from the local rules without explanation. Formerly, Rule 33.1 allowed parties to answer interrogatories by reference to records from which the answer could be derived or ascertained so long as the record was sufficiently identified, and the producing party also provided any relevant computerized information, summaries, compilations, and abstracts.
Local Civil Rule 37.2 Mode of Raising Discovery Disputes with the Court
Amended Local Civil Rule 37.2 simplifies practice by including both the E.D.N.Y. and S.D.N.Y. under a single consolidated rule. The consolidated rule emphasizes that litigants should consult the individual practices of judges before raising discovery disputes, as individual practices often diverge from Local Civil Rule 37.2. It also eliminates the reference to ECF filing, because all motions presumptively must be filed on ECF. Lastly, it adds Rule 45 motions for subpoena enforcement to the motions covered by the rule, because such motions are best understood as discovery motions.
Rule 37.3 has been intentionally omitted from the local rules. This rule previously required extra steps for meet and confer for E.D.N.Y. cases, but is now consolidated into a single rule for both S.D.N.Y. and E.D.N.Y. in Rule 37.2.
Local Civil Rule 55.1 – Certificate of Default
The new rules for obtaining a certificate of default are among the most important changes for litigators. The revised Local Rule 55.1 changes the required request from a “clerk’s certificate of default” to a “request to enter default.”
Furthermore, where an affidavit alone sufficed under the old rule, the new rule allows for either an affidavit or a declaration. Unlike an affidavit, which a notary must witness and sign, only the declarant signs a declaration.
The new rule also changes what the affidavit or declaration must demonstrate. The moving party no longer has to show the other party’s competence and/or demonstrate that the requirements of Federal Rule of Civil Procedure 4 were met.
Local Civil Rule 55.2 – Obtaining a Default Judgment
The change to default judgment procedure mandates an affidavit or declaration with three showings regardless of whether the party seeks default judgment by the clerk or by the court. The moving party will need to indicate that the clerk entered default under Local Rule 55.1, include a certificate of service, and if applicable, present Local Rule 7.1 motion papers.
While the new rules would require those three filings regardless of whether a party seeks default by the court or by the clerk, the proposed Local Rule 55 contains additional requirements for each.
The revised Local Rule 55.2(b) maintains affidavit requirements to receive a certificate of default by the clerk but adds that someone with personal knowledge must make the required showing of the principal amount due. Likewise, Local Rule 55.2(b) would require someone with personal knowledge to show the proposed damages and the basis for each element of damages.
Local Civil Rule 56.1. Statements of Material Facts on Motion for Summary Judgment
Rule 56.1 has two notable changes. First, Rule 56.1(b) now expressly requires the papers opposing a motion for summary judgment to include correspondingly numbered paragraphs admitting or denying, and otherwise responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing separate, short, and concise statements of additional material facts as to which it is contended that there exists a genuine issue to be tried.
Second, a new subpart (e) now requires that in any case where all parties are represented by counsel, any party moving for summary judgment must provide all other parties with an electronic copy of the moving party’s Statement of Material Facts. Additionally, the counterstatement required by rule 56.1 must include each entry in the moving party’s statement and set out the opposing party’s response directly beneath it.
Local Civil Rule 72.1. Powers of Magistrate Judges
The new Rule 72.1 reflects the Committee’s intention to grant magistrate judges full powers available to them under federal law. The rule now promulgates a “general grant of authority” that makes the specific enumeration of powers unnecessary and obsolete.
Key Takeaways
These changes are a helpful step in modernizing and simplifying the local rules of the Southern and Eastern Districts. There are many clarifications and changes to the local rules for the S.D.N.Y and E.D.N.Y, that litigator will want to familiarize themselves with. The above list is not comprehensive, and attorneys would be well-advised to consult these rule changes and attorneys who regularly practice in each court to ensure that they comply.
A special thanks to summer associate, Reece Napierski, for his appreciated work and help with this article.
