May 27, 2018

U.S. District Court of Colorado to Remain Open During Shutdown

The United States District Court for the District of Colorado issued General Order 2013-4: Lapse in Appropriations Plan on October 10.  The court will continue operations after October 18th even if no appropriations bill is passed by then. Because every current court employee is performing an essential function necessary to the court’s constitutional duty to hear and decide cases without interruption, all court employees will continue to work full time during any lapse in appropriations.

Non-adjudicative functions such as naturalization ceremonies and bar organization functions at the court will not take place during any lapse in appropriations period. In addition to other suspended activities, no employees will be hired, nor will interns or pro bono law clerks be allowed to start.

Attorneys should continue checking the court’s website for updates. As of October 10, the Tenth Circuit Court of Appeals has also announced its intention to remain open and suggests people continue to check its website for updates.

Federal Judiciary to Remain Open Temporarily During Government Shutdown

The United States District Court for the District of Colorado and the Tenth Circuit Court of Appeals announced that during the government shutdown beginning October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.

Other federal agencies affected by a government shutdown have announced contingency plans on their websites. For example, the Equal Employment Opportunity Commission will seek extensions of time from the federal courts, as explained in its Shutdown Contingency Plan.

Revised United States District Court Local Rules Appendices C, J, and K

The United States District Court of the District of Colorado has revised its Local Rules of Practice, which originally went into effect on December 1, 2011. Since then, revisions have been made to Appendix C, Appendix J, and Appendix K. The updated appendices can be reviewed below.

  • Appendix K – “Statement by Defendant in Advance of Plea of Guilty”

Change of Address, Bounce-Back Email, and Non-Admitted Appearance Processes Revised by United States District Court for Colorado

The United States District Court for the District of Colorado has revised its rules regarding how the court will process attorney address changes, email bounce-backs, and appearances by non-admitted attorneys. It is important for attorneys to be aware of their obligations to the courts, especially regarding how to proceed when you change your physical address or email address or when you need to appear before the court when you are not admitted:

Change of Address:

Currently, clerk’s office staff compare the signature block of an attorney’s most recent filing with the attorney’s contact address information in CM/ECF and, when needed, will update the contact information to comport with the most recent provided address. The current process of checking for address changes for attorneys is very time consuming and impedes on the time needed to address the efficient docketing of case filings and court actions.

Compliance with local rules D.C.COLO.LCivR 10.1M and D.C.COLO.LCrR 49.3M regarding notice of change of address falls exclusively upon attorneys. Clerk’s office staff should not provide attorney support work regarding the checking for a need to update an address. Staff will, therefore, no longer automatically check for address update information and will rely on proper notice by the attorney as required by the Court’s local rules. This revised process will go into effect on April 9, 2012.

Bounce-back Emails:

In 2005, when the court went live on electronic filing, the clerk’s office began to monitor bounce-back emails related to electronic case entries posted by clerk’s office staff, chambers staff, or attorney counsel. Typically, bounce-back emails occur as a result of counsel’s failure to update their email addresses. The monitoring process was initially implemented as a check to the innovative use of electronic filing and service and notice of the same. Use of electronic filing is now the standard process for all attorneys to post and receive case information.

As directed by local rules D.C.COLO.LCivR 5.2D, D.C.COLO.LCivR 10.1M, D.C.COLO.LCrR 49.2D, and D.C.COLO.LCrR 49.3M, counsel are to inform the court of any change of email address within 5 days of the change. Whenever an attorney filer’s email address changes, the attorney is to electronically update her/his ECF electronic profile to activate the new email address. As long as an attorney is in good standing with the bar of the Court, it is the attorney’s responsibility to keep his/her email address(es) current regardless of place of employment, whether or not counsel of record in an open or closed case, or even if no longer practicing law.

It has been the experience of clerk’s office staff that bounce-back emails resulting from wrong email addresses occur in a variety of situations. Attempts to determine correct email addresses are very time consuming and often unproductive due to non-responsive attorneys. A number of opinions from district and appellate courts exist citing the responsibility of counsel to monitor the docket of the court for the need to address such matters as maintaining up-to-date contact information, including current email addresses. Therefore, effective April 9, 2012, the clerk’s office will no longer monitor bounce-back emails. Should chambers have a question about a specific attorney’s email address, clerk’s office staff will certainly assist with any effort to address the question.

Non-Admitted Appearing Attorneys:

In the past, when an attorney made an appearance pursuant to D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A, and the attorney was not admitted to practice in this court, clerk’s office staff would contact the attorney by phone, email, or letter informing her/him of the duty to seek admission or withdraw his/her appearance. An attorney may be contacted multiple times over a protracted period. Unfortunately, this time consuming process does not usually result in the attorney taking the requested action. When no action is taken by the attorney, the clerk’s office notifies chambers that the attorney has been unresponsive.

To streamline this procedure and focus the responsibility on the attorney’s obligation to comply with the local rules, the clerk’s office will begin using the following docket entry in place of the an attempt to gain compliance via direct contact:

“The Court construes that (name of attorney) has entered an appearance as an attorney in (cite the case number.) Pursuant to (D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A), only members admitted to the bar of this court can enter an appearance as an attorney. The attorney records of the court do not reflect that (name of the attorney) is a member of the bar. Unless an application for admission to the bar is received within 20 days of the date this entry, further action may be taken by the court.”

Streamlining the procedure will eliminate letters, emails, and phone calls by clerk’s office staff and may further assist in reducing associated work performed by chambers staff. The docket entry will provide notice to appearing attorneys and chambers. This procedure will go into effect on April 9, 2012.

United States District Court for Colorado Seeking New Magistrate Judge

The Judicial Conference of the United States has authorized the appointment of a part-time United States magistrate judge for the District Court of the District of Colorado in Grand Junction. A merit selection panel composed of attorneys and other members of the community will review all applicants and recommend to the district court judges in confidence the five persons it considers best qualified.

A qualified applicant must:

  1. Be, and have been for at least five years, a member in good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years (with some substitutes authorized);
  2. Be competent to perform all the duties of the office; be of good moral character; be emotionally stable and mature; be committed to equal justice under the law; be in good health; be patient and courteous; and be capable of deliberation and decisiveness;
  3. Be less than seventy years old; and
  4. Not be related to a judge of the district court.

Application forms may be obtained from the Office of the Clerk of Court, located at 901 19th Street, Denver, Colorado or the Human Resources Division located at 1929 Stout Street, Suite C102, Denver, Colorado; or on the Court’s website.

All applications must be received by April 18, 2012. A completed original application plus eight copies should be delivered or mailed to: U. S. District Court – Human Resources Division, Attn: Ronna Duncan, Human Resources Administrator, 1929 Stout Street, Suite C102, Denver, CO 80294

Click here for more information.

Attorneys to Be Surveyed About Colorado Bankruptcy Court Judges

The Bankruptcy Judges of the United States Bankruptcy Court for the District of Colorado have asked the Federal Judicial Center (FJC) to survey attorneys who have practiced in the district to assess the performance of each of the Bankruptcy Judges. The surveys are a part of the court’s ongoing commitment to provide the highest level of public service possible. The FJC is the research and education organization for the federal courts.

The start-date of the surveys will be staggered over the next eleven weeks. Click here to view the schedule for each judge.

On the start date for each survey, the FJC will send an email to attorneys who have practiced before the particular Bankruptcy Judge. The email will explain how to access and complete an online questionnaire.

The FJC will compile and analyze the survey responses and will provide each judge a report, including a statistical summary and a compilation of the comments that are received. No identifying information about survey respondents will be given to the judges. The results are exclusively for the judge’s use in improving his or her performance; they will not be provided to anyone other than the judge and will not be used in the reappointment process.

If you do not receive an email from the FJC and want to participate, please contact Ms. Beth Wiggins of the FJC at (410) 308-3751 or (202) 502-4076 or by email at fjc_survey@fjc.gov.

Click here for more information about the survey process.

Attorneys Required to Open Cases via CM/ECF in United States District Court for Colorado

On February 23, 2012, attorneys will be required to open civil cases in the United States District Court for the District of Colorado via ECF and provide payment via pay.gov. Other changes that will occur (some before February 23) include:

  • The clerk’s office will no longer return your filed complaint via email. You will receive a Notice of Electronic Filing (NEF) when your case is opened.
  • Summons forms, if provided, will be issued through ECF. You will receive a NEF with the summons and the magistrate consent form. A new event has been created for filing the civil summons called “Summons Request.” Please note you should use the national summons form, not the local form.
  • The fee for filing an appeal may be paid online at the time of filing.
  • A new event has been created for filing the corporate disclosure statement and entering corporate parents in CM/ECF.

More Information

Cases That Must Be Filed via Email and Will Be Opened by the Clerk’s Office

  1. Sealed (qui tam, etc.).
  2. Discovery motions in civil cases pending in another court.
  3. Petition to Quash an IRS summons.
  4. Petition for Judicial Assistance for Discovery from Foreign Tribunal pursuant to 28 U.S.C. § 1782.
  5. Petition to Perpetuate Testimony pursuant to Federal Rule 27.
  6. Petition to enforce administrative subpoenas or summons.
  7. Applications for civil seizure warrant.
  8. Application for warrants for inspection, entry and investigation or to determine need for and to undertake response action.
  9. Motions for Extension of Time to File Forfeiture Action.
  10. Filings of complaints and orders for appointment of receiver pursuant to 28 U.S.C. § 7547.
  11. Request to issue subpoena pursuant to the Digital Millennium Copyright Act.
  12. Applications pursuant to 12 U.S.C. § 3409.
  13. Certifications of judgments from other districts.

Click here to read the full announcement from the United States District Court for the District of Colorado.

D. Colo. Civil Settlement Conferences No Longer Routine

In a surprise move by the Colorado federal district court last month, the customary D. Colo. magistrate judge settlement conference has essentially been cut back significantly. Apparently frustrated with the typical half-day exercise, sometimes stretching over several sessions, featuring oft-times unprepared litigants, the district judges implemented revised Local Rule 16.6, effective December 1, 2011. The revised rule and the redline edits can be viewed below.

As Magistrate Judge Boland explained at the Faculty of Federal Advocates annual meeting in mid-December, parties will now need to file a motion with their district judge, or the magistrate judge if exercising consent jurisdiction, to warrant a classic settlement conference: “It is going to be hard to obtain, and you will have to persuade a judge that you are close to settlement and need help.” In short, for those parties who historically dropped in unprepared for an early settlement meeting, or did not wish to make the first move – hoping that the magistrate judge would extract offers, uncover and convey key information, and do the heavy lifting in settlement – the game is over. As Boland elaborated, “there is a booming industry of private mediators, and there is only a small cadre who can adjudicate cases. It makes sense in a very busy court to use resources to adjudicate.”

The revised rule puts the burden on counsel to show some good reason (the rule does not require the high showing of “good cause”) to trigger the traditional magistrate-judge-led settlement conference. Though probably not very early in the litigation process, as it appears that any “early” request will qualify only for “early neutral evaluation” (“ENE” in the ADR vernacular) (Rule 16.6A), which theoretically could be quite an abbreviated effort. Thus, parties will likely need to turn to private ADR options unless they can explain in detail to the court that far reaching settlement steps have already been taken by both sides, or perhaps that one of the litigants cannot afford his or her half of the cost of a private neutral.

The revised rule is somewhat controversial. The comment period was relatively short and no comments were disclosed by the court, though several respondents went public with their opposition to the change. In addition, several senior Article III judges were concerned that the freeing up of magistrate judges from settlement work would inexorably lead to an unconstitutional expansion of adjudications by the Article I magistrate judges. Read Judge Kane’s dissent concerning revised Rule 72.2 on magistrate judge consent jurisdiction here.

It is too early to speculate about the ultimate impact of the Rule 16.6 revision. Each judge retains the right to direct the parties, presumably either by motion or sua sponte, to pursue either ENE or an “other” (undefined) ADR proceeding:  this could presumably still be the traditional magistrate judge settlement conference, or more likely a private-sector mediation, or any of a host of different ADR approaches, such as binding arbitration, so-called med/arb (mediation, followed by binding arbitration), a mini-trial, or whatever the parties might jointly consent to. Public reports indicate that the dissenting senior judges are continuing with their traditional approach, and that some other district judges have granted requests for settlement conferences since the revision was implemented in December. Nonetheless, given the new approach, it seems likely that at least a few hundred cases each year will no longer receive free settlement help from the District Court.

There were approximately 700 settlement conferences convened in the District last year. Some 25% involved employment and ERISA disputes, 10% involved personal injury matters, and single-digit percentages were taken up by, in order, contract disputes, civil rights complaints, fair debt collection work, insurance disputes, intellectual property cases, and business and product liability matters. (Notably, the vast majority of these cases settled for less than anticipated defense costs through trial).

How will these now be handled? Although the D. Colo. clerk of the court is designated to “implement, administer, oversee, and evaluate” the court’s ADR program (Rule 16.6 D), the court has quite purposefully chosen not to assemble a referral roster of potential neutrals, as it does not wish to provide an imprimatur for any private person or group. It will thus be left to the ADR professionals in the district to help litigants make their way in the new paradigm.

It is worth noting that this new approach is the way that many federal districts already operate. For those raised in this district court, it might have been assumed that all 94 districts have magistrate judge settlement conferences, but that is not the case. For instance, the Utah federal court refers out its settlement cases, as does the Southern District of Florida, for the most part.

It is possible that the district court or the ADR-designee clerk of the court might later choose to establish a more formal program, or at least a roster of eligible neutrals. The Alternative Design Resolution Act of 1998, 28 U.S.C. § 651, found that “alternative dispute resolution, when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits . . . .” The Act provides that the district designee, who should be knowledgeable in ADR practices and processes, “may also be responsible for recruiting, screening, and training attorneys to serve as neutrals and arbitrators” in the court’s ADR program.

Although the private sector ADR community in Colorado is very active (the Dispute Resolution section of the CBA has over 250 members), there are only a few seasoned veterans of this District Court who are serving as neutrals locally, mainly former magistrate judges and senior federal litigators. There is no formal “federal neutral” roster, and the FFA and other similar groups may wish to establish some training programs and eligibility rosters to help fill this gap. As Vice-Chair of the DR section of the CBA, I will personally be contacting the Federal Judicial Center and the Administrative Office of the U.S. Courts to find out what assistance they may make available pursuant to the Act.

Revised Rule:

D.C.COLO.LCivR 16.6 – ALTERNATIVE DISPUTE RESOLUTION

A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. A district judge or a magistrate judge exercising consent jurisdiction may direct the parties to a suit to engage in an early neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Redline Edits:

D.C.COLO.LCivR 16.6 – A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. At any stage of the proceedings, on a A district judge’s initiative or [sic – or] a magistrate judge exercising consent jurisdiction pursuant to motion or stipulation of counsel or the pro se parties, a district judge may direct the parties to a suit to engage in an early settlement conference neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause. Unless otherwise ordered by a judicial officer, cases exempt from this rule are:

1. those in which the plaintiff is a prisoner proceeding pro se; and

2. habeas corpus actions.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Greg Whitehair, Esq., is a nationally certified mediator and arbitrator and Vice-Chair of the Dispute Resolution Section of the Colorado Bar Association. He is in the process of creating the website www.DColoADR.com to keep track of developments in the Colorado federal ADR community. He also owns IP Resolution Co. LLC, a national ADR consultancy specializing in intellectual property and high-tech commercial disputes. He can be contacted at jgw@ipresolutionco.com.

Chief Justice Roberts Issues 2011 Year-End Report on the Federal Judiciary

United States Supreme Court Chief Justice John Roberts, Jr. has issued his 2011 Year-End Report on the Federal Judiciary. The Report discusses federal judges’ Code of Conduct, financial disclosures and gift regulation, and recusal. Justice Roberts’ Report also provides an appendix covering the workload of the many federal courts over the last year:

In 2011, caseloads increased in the U.S. district courts and in the probation and pretrial services offices, but decreased in the U.S. appellate and bankruptcy courts. Total case filings in the district courts grew 2% to 367,692. The number of persons under post-conviction supervision rose 2% to 129,780. Cases opened in the pretrial services system also went up 2%, reaching 113,875. In the U.S. courts of appeals, though, filings dropped 1.5% to 55,126. Filings in the U.S. bankruptcy courts, which had climbed 14% in 2010, declined 8% this year to just below 1.5 million petitions.

The Supreme Court of the United States

The total number of cases filed in the Supreme Court decreased from 8,159 filings in the 2009 Term to 7,857 filings in the 2010 Term, a decrease of 3.7%. The number of cases filed in the Court’s in forma pauperis docket decreased from 6,576 filings in the 2009 Term to 6,299 filings in the 2010 Term, a 4.2% decrease. The number of cases filed in the Court’s paid docket decreased from 1,583 filings in the 2009 Term to 1,558 filings in the 2010 Term, a 1.6% decrease. During the 2010 Term, 86 cases were argued and 83 were disposed of in 75 signed opinions, compared to 82 cases argued and 77 disposed of in 73 signed opinions in the 2009 Term.

The Federal Courts of Appeals

Filings in the regional courts of appeals fell 1.5% to 55,126. Growth occurred in original proceedings and bankruptcy appeals. Appeals arising from the district courts decreased. Although civil appeals remained fairly stable, reductions occurred in many types of criminal appeals. Appeals of administrative agency decisions declined as a result of the continued drop in filings related to the Board of Immigration Appeals.

The Federal District Courts

Civil filings in the U.S. district courts grew 2% to 289,252 cases. Fueling this growth was a 2% increase in federal question cases (i.e., actions under the Constitution, laws, or treaties of the United States in which the United States is not a party in the case), which resulted mainly from cases addressing civil rights, consumer credit, and intellectual property rights.

Cases filed with the United States as a party climbed 9%. Those with the United States as plaintiff increased in response to a surge in defaulted student loan cases. Cases with the United States as defendant rose largely because of growth in Social Security cases.

Although criminal case filings (including transfers) remained stable (up by 12 cases to 78,440), the number of criminal defendants increased 3% to set a new record of 102,931. Growth in filings occurred for defendants charged with drug crimes, general offenses, firearms and explosives offenses, sex offenses, and property offenses.

Filings for defendants charged with immigration offenses fell for the first time since 2006, decreasing 3%. The southwestern border districts accounted for 74% of the Nation’s total immigration defendant filings, up from 73% in 2010.

The Bankruptcy Courts

Filings of bankruptcy petitions declined 8% to 1,467,221. This was the first reduction since 2007, when filings plunged after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect. Filings for 2011 were lower in 87 of the 90 bankruptcy courts. Nonbusiness petitions fell 8%, and business petitions dropped 14%.

Bankruptcy petitions decreased 10% under chapter 7, 16% under chapter 11, and 4% under chapter 13.

The Federal Probation and Pretrial Services System

The 129,780 persons under post-conviction supervision on September 30, 2011, represented an increase of 2% over the total from the previous year. The number of persons serving terms of supervised release after their departure from correctional institutions grew 2% to 105,037, and amounted to 81% of all persons under supervision.

Cases opened in the pretrial services system in 2011, including pretrial diversion cases, rose 2% to 113,875.

Click here to read the full report issued by the United States Courts.

Revised Local Rules Now Effective for the U.S. District Court for Colorado

The United States District Court of the District of Colorado has reviewed and approved revisions to its Local Rules of Practice, which became effective December 1, 2011. The rules are published online and available to view as an entire set, with a hyperlinked table of contents, index, and appendices.

Click here to view the Finalized Local Rules with Appendices.

Click here to view the red line/strikethrough edits to the finalized rules.

Click here for list of the individual appendices.

The Advisory Committee on the Local Rules of Practice also invites your participation in the 2012 Local Rules revision cycle. The Advisory Committee welcomes comments from court users, members of the bar, everyone working in and for the Court, and the public at large. Comments and suggestions for rule revisions and additions should be sent to LocalRule_Comments@cod.uscourts.gov.

Although comments can be sent at any time, those received by June 1, 2012 will be considered in the 2012 rules cycle. The Advisory Committee will review all comments and, where appropriate, propose rule modifications to the Court. Rule changes approved by the Court will be published for review and comment during the Fall of 2012. After consideration of comments, the Court will announce all rule changes. Such changes will likely become effective on December 1, 2012 to correspond with the effective date of any changes in the Federal Rules.

Click here for more information.

Colorado Bankruptcy Court Launches New Online Creditor Entry System

The United States Bankruptcy Court for the District of Colorado has launched a new Online Creditor Entry page, which allows persons filing cases in the District to create and submit their creditor matrix online using any computer or web enabled device.

The interface enables users to create their creditor matrix in the online system, allowing the information to be quickly and easily accessed by the court when the case is filed, eliminating the need for floppy disks, CDs, DVDs, etc.

The creditor entry system will also format the creditors automatically to ensure compliance with Local Bankruptcy Rule 1007-2APP (Local Bankruptcy Rule 1007-2APP).

Click here for more information and click here to access the new system.

U.S. Federal Courts Increase Many Fees, Including for Electronic Public Access

At its session in September 2011, the Judicial Conference of the United States approved a recommendation of its Committee on Court Administration and Case Management that would amend the miscellaneous fee schedules for the courts of appeals, district courts, bankruptcy courts, U.S. Court of Federal Claims, and Judicial Panel on Multidistrict Litigation. The amendments increase certain fees for inflation and are effective on November 1, 2011.

Click here for the list of fee increases for federal courts.

Additionally, the Judicial Conference authorized an increase in the Judiciary’s electronic public access (EPA) fee in response to increasing costs for maintaining and enhancing the EPA system. The increase in the EPA fee, from $0.08 to $0.10 per page, will take effect on April 1, 2012. The change is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary’s Case Management/Electronic Case Filing system.

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The courts estimate that the expanded exemption still means that 75%-80% of all users will pay no fees.

Click here for more information about the EPA fee increase.