9014-1 MOTION CALENDAR PROCEDURE
9014-1 Motion Calendar and Procedure(a) Applicability. Parties shall file, serve, and set for hearing all contested matters,
including motions, whether filed in the bankruptcy case or in an adversary proceeding, objections, applications, and other matters for which a hearing is necessary (hereafter referred to collectively as motions), in accordance with this Local Rule, any other applicable Local Rules, and the applicable provisions of Title 11 of the United States Code and the Federal Rules of Bankruptcy Procedure. Except as otherwise provided in LBR 3007-1, this Local Rule shall apply to objections to proofs of claim.
(b) Motion Calendar.
(1) Each judge of the court shall maintain his or her department’s individual motion calendar. All hearings shall be set on the motion calendar of the department to which the case is assigned. A party shall self-set a motion for hearing on the dates and times specified on each department’s motion calendar.
(2) Each judge’s motion calendar and instructions for self-setting hearings are posted on the court’s Internet site, www.caeb.uscourts.gov, and are also available from the Clerk’s Office at the public counters. 1 See Form EDC 2-071, Courtroom Locations and Nomenclature, Appendix I
(c) Docket Control Number.
(1) In motions filed in the bankruptcy case, a Docket Control Number (designated as DC No.) shall be included by all parties immediately below the case number on all pleadings and other documents, including proofs of service, filed in support of or opposition to motions.
(2) In motions filed in adversary proceedings, the Docket Control Number shall
be placed immediately below the adversary number.
(3) The Docket Control Number shall consist of not more than three letters, which may be the initials of the attorney for the moving party (e.g., first, middle, and last name) or the first three initials of the law firm for the moving party, and the number that is one number higher than the number of motions previously filed by said attorney or law firm in connection with that specific bankruptcy case.
Example: The first Docket Control Number assigned to attorney John D. Doe would be DC No. JDD-1, the second DC No. JDD-2, the third DC No. JDD-3, and so on. This sequence would be repeated for each specific bankruptcy case and adversary proceeding in which said attorney or law firm filed motions.
(4) Once a Docket Control Number is assigned, all related papers filed by any
party, including motions for orders shortening the amount of notice, shall include the same number. However, motions for reconsideration and countermotions shall be treated as separate motions with a new Docket Control Number assigned in the manner provided for above.
(d) Format and Content of Motions and Notices.
(1) Format. All pleadings and documents filed in support and in opposition to a motion shall contain in the caption the date and time of the hearing and the courtroom1 in which the hearing will be held. All pleadings and documents filed in support and in opposition to a motion shall conform with the Court’s Guidelines for the Preparation of Documents, effective December 1, 1999, or as thereafter amended.
(2) Separate Notice. Every motion shall be accompanied by a separate notice of
hearing stating the docket control number, the date and time of the hearing, the location of the courthouse1, the name of the judge hearing the motion, and the courtroom1 in which the hearing will be held.
(3) Contents of Notice. The notice of hearing shall advise potential respondents whether and when written opposition must be filed, the deadline for filing and serving it, and the names and addresses of the persons who must beserved with any opposition. If written opposition is required, the notice of hearing shall advise potential respondents that the failure to file timely written opposition may result in the motion being resolved without oral argument and the striking of untimely written opposition.
(4) Service of Notice Only. When notice of a motion is served without the motion or supporting papers, the notice of hearing shall also succinctly and sufficiently describe the nature of the relief being requested and set forth the essential facts necessary for a party to determine whether to oppose the motion. However, the motion and supporting papers shall be served on those parties who have requested special notice and those who are directly affected by the requested relief.
(5) Legal Authority. Each motion, opposition, and reply shall cite the legal authority relied upon by the filing party.
(6) Evidence. Every motion shall be accompanied by evidence establishing its
factual allegations and demonstrating that the movant is entitled to the relief
requested. Affidavits and declarations shall comply with FRCivP 56(e).
(e) Service and Proof of Service.
(1) Service of all pleadings and documents filed in support of, or in opposition
to, a motion shall be made on or before the date they are filed with the court.
(2) A proof of service, in the form of a certificate of service, shall be filed with
the Clerk concurrently with the pleadings or documents served, or not more than three (3) days after they are filed.
(3) The proof of service for all pleadings and documents filed in support or opposition to a motion shall be filed as a separate document and shall bear the Docket Control Number. Copies of the pleadings and documents served shall not be attached to the proof of service. Instead, the proof of service shall identify the title of the pleadings and documents served.
(f) Amount of Notice.
(1) Motions set on 28 days’ notice. Unless additional notice is required by the
Federal Rules of Bankruptcy Procedure or these Local Rules, or the moving party elects to give the notice permitted by LBR 9014-1(f)(2), the moving party shall file and serve the motion at least twenty-eight (28) days prior to the hearing date.
(i) If the motion is a motion for relief from the automatic stay, it shall be the duty of the moving party to set a hearing within thirty (30) daysof the filing of the motion. The failure of the moving party to set the hearing within thirty (30) days shall be deemed a waiver of the time constraints of 11 U.S.C. § 362(e).
(ii) Opposition. Opposition, if any, to the granting of the motion shall be in writing and shall be served and filed with the court by the responding party at least fourteen (14) days preceding the date or continued date of the hearing. Opposition shall be accompanied by evidence establishing its factual allegations. Without good cause, no
party shall be heard in opposition to a motion at oral argument if written opposition to the motion has not been timely filed. Failure of the responding party to timely file written opposition may be deemed a waiver of any opposition to the granting of the motion or may result in the imposition of sanctions. The opposition shall specify whether the responding party consents to the Court’s resolution of disputed material factual issues pursuant to FRCivP 43(e) as made applicable by FRBP 9017. If the
responding party does not so consent, the opposition shall include a separate statement identifying each disputed material factual issue. The separate statement shall enumerate discretely each of the disputed material factual issues and cite the particular portions of the record demonstrating that a factual issue is both material and in
dispute. Failure to file the separate statement shall be construed as consent to resolution of the motion and all disputed material factual issues pursuant to FRCivP 43(e).
(iii) Reply. The moving party may, at least seven (7) days prior to the date of the hearing, serve and file with the court a written reply to any written opposition filed by a responding party. If the moving party does not consent to the Court’s resolution of
disputed material factual issues pursuant to FRCivP 43(e), the moving party shall file and serve, within the time required for a reply, a separate statement identifying each disputed material factual issue. The separate statement shall enumerate discretely each of the disputed material factual issues and cite the particular portions of the record demonstrating that a factual issue is both material and in dispute. Failure to file the separate statement shall be construed as consent to resolution of the motion and all disputed material factual issues pursuant to FRCivP 43(e). Unless the Court determines that an evidentiary hearing is necessary, the evidentiary record closes upon expiration of the time for the filing of the reply.
(iv) Prior to the noticed hearing date, counsel may bring to the Court’s attention relevant judicial opinions published after the date the opposition or reply was filed by filing and serving a Statement of Recent Development, containing a citation to and providing a copy of the new opinion without argument. No memoranda, declarations
or documents other than those specified in this Local Rule shall be filed without prior Court approval.
(2) Motions set on 14 days’ notice. Alternatively, unless additional notice is required by the Federal Rules of Bankruptcy Procedure or these Local Rules, the moving party may file and serve the motion at least fourteen (14) days prior to the hearing date.
(i) This alternative procedure shall not be used for a motion filed in connection with an adversary proceeding.
(ii) The use of this alternative procedure in connection with a motion for relief from the automatic stay shall be deemed a waiver of the time limitations contained in 11 U.S.C. § 362(e).
(iii) When fewer than twenty-eight (28) days’ notice of a hearing is given, no party in interest shall be required to file written opposition to the motion. Opposition, if any, shall be presented at the hearing on the motion. If opposition is presented, or if there is other good cause, the Court may continue the hearing to permit the filing of evidence and briefs.
(3) Orders Shortening Time. In appropriate circumstances and for good cause
shown, the Court may order that the amount of notice of a hearing on a motion be shortened to fewer than fourteen (14) days. Unless otherwise ordered, when the time for service is shortened to fewer than fourteen (14) days, no written opposition is required. If the motion for which notice is to be shortened has not been filed, a copy
of it or a summary shall be filed with the application as a separate exhibit document. If the motion or a summary cannot be filed as an exhibit, the application shall describe the motion with particularity and explain why the moving party is unable either to file the motion or file it as an exhibit to the application.
(4) “First Day Orders.” In chapter 11, 12, and 13 cases, preliminary hearings on
motions for “first day orders,” including, but not limited to, motions to use cash collateral, borrow money, and pay employees, shall generally be heard by the Court within two (2) days of the filing of the petition. Counsel for the debtor or the trustee shall contact the chambers of the assigned judge immediately upon the filing of the petition to ascertain what notice will be required and the date and time of the hearing.
(g) Evidentiary Hearings.
(1) If the Court determines that there is a disputed material factual issue that must be resolved before the relief requested in the motion can be granted or denied, testimony shall be taken in accordance with FRCivP 43(a) unless the parties waive such right or consent to proceeding under FRCivP 43(e).
(2) The Court’s procedures for scheduling an evidentiary hearing will be set forth in a General Order. The current General Order is 02-01. It, and any General Order supplanting it, are available from the Clerk’s Office at the public counters or on the court’s Internet site, www.caeb.uscourts.gov.
(h) Oral Argument; Removal from Calendar; Tentative Rulings. Unless the assigned
judge determines that the resolution of the motion does not require oral argument, he or she may hear appropriate and reasonable oral argument. Alternatively, the motion may be submitted upon the record and briefs on file if the parties stipulate thereto, or the judge so orders, subject to the power of the judge to reopen the matter for further briefs, oral argument or both. Parties can ascertain which matters are resolved without oral argument and can view tentative rulings by checking the court’s Internet site at www.caeb.uscourts.gov after 4:00 p.m. the day before the hearing. Parties appearing telephonically shall view the tentative ruling prior to the hearing.
(i) Related and Countermotions. Any countermotion or other motion related to the
general subject matter of the original motion set for hearing pursuant to this Local Rule may be filed and served no later than the time opposition to the original motion is required to be filed. In the event a counter or related motion is filed by the responding party, the judge may continue the hearing on the original and all related motions so as to give the responding and moving parties reasonable opportunity to serve and file oppositions and replies to all pending motions. No written opposition need be filed to any related matter unless the matter is continued by the Court. Nothing herein shall be construed to require the filing of a counter or related motion.
(j) Continuances. Continuances of hearings must be approved by the Court. A request for a continuance may be made orally at the scheduled hearing or in advance of it if made by written application. A written application shall disclose whether all other parties in interest oppose or support the request for a continuance.
(k) Opportunity for Hearing.
(a) The notice of opportunity for hearing procedure, as defined in 11 U.S.C. §
102(1), may only be used as permitted in the Court’s General Order dealing with chapter 13 practice. In all other matters, if an order is necessary or is desired by the moving party, the motion should be set for hearing pursuant to this Local Rule.
(b) When the notice of opportunity for hearing procedure is used, the notice
(i) Succinctly describe the action to be taken;
(ii) State that unless written objections and/or a request for a hearing are served on the moving party and filed with the Clerk on or before the date specified in the notice, the action shall be taken;
(iii) Provide a minimum of fourteen (14) days after service (or the longer periods required by, e.g., FRBP 2002 or 3007) for the filing of the request for hearing or objections by a party-in-interest; and
(iv) Be filed with the Clerk and served by the moving party on all
creditors, the debtor, the trustee or other persons as appropriate or
(c) No hearing date shall be set by the moving party unless an objection or a request for hearing is made by a party-in-interest, in which event, the moving party shall promptly set the matter for hearing by filing a notice of hearing with the Clerk and serving the notice in accordance with this Local Rule.
(d) If no objection or request for hearing is timely filed, the moving party may
proceed to take any proposed action that does not require Court approval.
(l) Sanctions. Failure to comply with the requirements of this Local Rule or the
provisions of other Local Rules applicable to motion practice shall constitute grounds, without limitation, to deny the motion, strike late-filed pleadings and documents, continue the hearing on the motion, deem the moving party to have waived the time limitations of 11 U.S.C. § 362(e), deny the offending party the ability to appear by telephone, or assess other appropriate sanctions.