You have a lot less time to respond to summary judgment motions in federal court than in California state court.

Lawyers accustomed to practicing in Superior Court get a generous amount of time to prepare oppositions to summary judgment or adjudication motions. They’re in for a surprise in federal court.

In California state court, a motion for summary judgment or adjudication and all supporting papers must be filed at least 75 calendar days before the date of the hearing on the motion. (CCP 437c(a).) An opposition to a motion for summary judgment must be filed and served at least 14 days (calendar days, not court days) before the hearing. Thus, the party opposing a motion for summary judgment in state court usually has at least two months to prepare. Of course, those two months are often spent conducting written discovery and depositions to use in the opposition. Still, two months is pretty generous.

Not so in federal practice. The Federal Rules generally require that any motion, including a motion for summary judgment, must be served at least 14 days before the time set for hearing. (FRCP 6(c)(1).) However, most federal courts have local rules requiring longer notice.

In the Central District of California, a summary judgment motion must be served at least 28 days before the hearing if served personally and 31 days if served by mail. (CD CA L.R. 6–1.) In the Eastern District of California and Southern District of California, a summary judgment motion must be filed at least 28 calendar days before the hearing. (ED CA L.R. 230(b); SD CA L.R. 7.1(e).) The Northern District of California requires at least 35 days after service of a summary judgment motion. (ND CA L.R. 7–2(a).)

This is often the same amount of notice as litigants must give for much less important and complex motions. With only about a month between the filing and service of the MSJ and the hearing, opposing parties have much less time to respond. For example, in the Eastern District, an opposition has to be filed and served at least 14 days before the hearing. (ED CA L.R. 230(c).)

So in federal court, you could have as few as two weeks to prepare an opposition to an MSJ or MSA.  Of course, you would get more time if the moving party set the hearing date out more than the required minimum 28 days or if the court’s calendar requires hearings set further out. The practice tip for federal court, then, is that you should really get your discovery done as soon as possible because you don’t want to be caught off guard when the opposing party files a summary judgment motion and you haven’t even taken a deposition yet.

Disclaimer: Local Rules are modified regularly.

New 7-HOUR Limit for California Depositions

On January 1, 2013, Assembly Bill 1875 became effective. It adds Code of Civil Procedure § 2025.290, which limits depositions of any person in California state court proceedings to seven hours. Parties can, of course, stipulate or move the Court to take longer depositions. There are also several major exceptions: depositions of experts under CCP §§ 2034.210 – 2034.310; cases designated as complex; cases brought by employees or job applicants against employers for acts or omissions arising out of or relating to the employment relationship; and depositions of persons most qualified. In addition, any party who has appeared in the action after the deposition has concluded may notice another deposition subject to the 7-hour limit. The new law will make deposition-taking in California similar to federal practice under Rule 30 of the Federal Rules of Civil Procedure (FRCP).

Go to AB 1875

Beware of short deadlines in bankruptcy court appeals

A party seeking to appeal a bankruptcy court decision only has ten (10) days to file a Notice of Appeal. The Notice of Appeal must be filed with the clerk of the bankruptcy court, not with the Bankruptcy Appellate Panel (“BAP”) or District Court. (Fed. R. Bankr. P. 8001.) Contrast this with the amount of time a litigant would have to file a Notice of Appeal in a non-bankruptcy federal case: thirty (30) days under the Federal Rules of Appeal or F.R.A.P. However, where a litigant can show excusable neglect in missing the 10-day deadline to file its Notice of Appeal, the time can be extended by court order up to 20 additional days.

Furthermore, within ten (10) days of filing the Notice of Appeal, the appellant must file both a Designation of the Record on Appeal and a Statement of Issues. An appeal may be dismissed under Bankruptcy Rule 8001(a) if the Appellant fails to take the required steps other than filing a Notice of Appeal. Once the appeal is “docketed” in the appropriate appellate court (whether to the BAP in Circuits with BAPs or to the local District Court), the litigants again face short briefing deadlines. Appellant’s opening brief is due within fifteen (15) days of the appeal being docketed. (Fed. R. Bankr. P. 8009.) Respondent’s brief is due within fifteen (15) days of service of the opening brief. Appellant’s Reply brief is due within ten (10) days of service of the Respondent’s brief. Thus, from bankruptcy court decision to completion of appellate briefing, the whole process could take less than two months.

One of the reasons for short deadlines in bankruptcy appeals is the greater chance of appellate relief becoming moot (e.g. if a plan is approved while an appeal is pending).

 

Serving Deposition Subpoenas with Document Requests On Non-parties in Federal Court vs. California state court

In both California state court cases and federal cases, a non-party must be personally served with a subpoena to secure his or her attendance and production of documents at a deposition. In California state cases, you simply personally serve the non-party once with a deposition subpoena (Judicial Council Form SUBP-020 for testimony and production of documents) and serve a copy on all other parties.

In federal cases, however, taking the deposition of a non-party with production of documents is a two-step process.

First, notice of any commanded document production must be served on each party before the subpoena is served on the deponent (thus affording each party time to object to production). (FRCP 45(b)(1).) To afford adequate time for objection, notice must be given well in advance of the production date.

In Vondersaar v. Starbucks Corp.  WL 1915746, **2-3 (N.D. Cal. 2013), the District Court for the Central District of California found that a deposing party violated the plain language of Rule 45(b)(1) by failing to serve a notice of the subpoenas on defendant Starbucks prior to serving the subpoenas on the deponents. When such a violation occurs, “[c]ourts generally respond to Rule 45(b)(1) violations by striking the subpoenas, or allowing opposing counsel an opportunity to object.” (McCurdy v. Wedgewood Capital Mgmt. Co., Inc., CIV. A. 97–4304, 1998 WL 964185, at *7 (E.D. Pa. Nov. 16, 1998) (citations omitted).) However, the court in Vondersaar declined to quash the subpoena, finding that Starbucks had suffered no prejudice from the violation of Rule 45(b)(1) because: (1) it was served notice of the subpoenas only a few days after the service of the subpoenas on the third parties, (2) defendants still had ample time to object to the subpoena before the production date, and (3) the deponents had filed their own objection, so no harm occurred from the delay of the notice. (Vondersaar, supra, WL 1915746 at **2 -3.)

Thus, while FRCP 45(b)(1) requires that you serve a notice of deposition for attendance and production of documents on all parties before you serve the deposition subpoena on the deponent, a court is unlikely to quash the deposition subpoena unless the violation causes prejudice.

Common Mistakes Made By Pro Se Litigants In Appeals

  • Not understanding the difference between the Notice of Appeal and the opening appellate brief.
  • Not understanding the short deadline to file the Appellant’s Notice Designating the Record on Appeal once they file the Notice of Appeal.
  • Not understanding that critical mistakes made in the trial court, such as failing to object or make certain arguments, cannot be “undone” before the Court of Appeal.
  • Not paying for a court reporter at critical hearings and even at trial or arbitration.
  • But the most common mistake is not realizing how much representing themselves harmed their case and led to its dismissal at what was probably still the pleading stage of litigation.

By the time you’re at the appeal stage, it could be too late. While your case is still alive in the trial court, money is often well spent getting a lawyer’s help crafting your complaint or responding to a demurrer.

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