LBR 9013-1. MOTION PRACTICE AND CONTESTED MATTERS

LBR 9013-1. MOTION PRACTICE AND CONTESTED MATTERS

(a) Applicability.
(1) Unless otherwise ordered by the court, parties must file, serve, and set for hearing
all contested matters, including motions, whether filed in the bankruptcy case or
an adversary proceeding, objections, applications, orders to show cause, and other
matters for which a hearing is necessary (collectively, “motions”), in accordance
with this rule, any other applicable LBR, the FRBP, and the Bankruptcy Code.
(2) This rule applies to objections to claims, except as provided in LBR 3007-1.
(3) This rule applies to motions for summary judgment, except as provided in LBR
7056-1.
(4) This rule does not apply to a motion to reject a collective bargaining agreement
which is governed by 11 U.S.C. § 1113.
(b) Motion Calendar.
(1) Each judge of the court maintains a motion calendar and instructions for selfsetting
hearings that are available from the clerk and posted on the court’s website.
(2) A party must self-set a motion for hearing at a date and time permitted on the
judge’s motion calendar in accordance with the judge’s self-set calendaring
instructions.
(3) If a judge’s calendar does not permit the self-setting of a hearing on a particular
type of motion or the judge does not schedule a regular law and motion day, a
hearing on the motion must be noticed only with the approval of the judge or
courtroom deputy.
(c) Form and Content of Motion and Notice.
(1) Oral Motions. Unless otherwise provided by rule or order of the court, an oral
motion is not permitted except during trial.
(2) Notice of Motion. Every motion must be accompanied by written notice of motion
specifying briefly the relief requested in the motion and, if applicable, the date,
time, and place of hearing. Except as set forth in LBR 7056-1 with regard to
motions for summary judgment or partial summary adjudication, or as otherwise
ordered, the notice of motion must advise the opposing party that LBR 9013-1(f)
requires a written response to be filed and served at least 14 days before the
hearing. If the motion is being heard on shortened notice pursuant to LBR 9075-1,
the notice must specify the deadline for responses set by the court in the order
approving the shortened notice.
(3) Motion. There must be served and filed with the motion and as a part thereof:
(A) Duly authenticated copies of all photographs and documentary evidence
that the moving party intends to submit in support of the motion, in addition to the declarations required or permitted by FRBP 9006(d); and
(B) A written statement of all reasons in support thereof, together with a memorandum of the points and authorities upon which the moving party will rely.
(4) Exception. Unless warranted by special circumstances of the motion, or otherwise
ordered by the court, a memorandum of points and authorities is not required for
applications to retain or compensate professionals, motions for relief from
automatic stay, or motions to sell, use, lease, or abandon estate assets.
(d) Time Limits for Service and Filing of Motions.
(1) Persons or Entities to be Served with the Notice and Motion. Except for a motion
under LBRs 2014-1(b), 2016-1(a)(2), 3015-1(w) and (x), 7026-1(c), and 9075-1,
and subject to LBR 2002-2(a) and FRBP 9034, a motion and notice thereof must
be served upon the adverse party (by serving the adverse party’s attorney of record,
if any; or if the adverse party is the debtor, by serving the debtor and the debtor’s
attorney, if any; or the adverse party, if there is no attorney of record).
(2) Deadline for Filing and Serving of Notice and/or Notice and Motion. The notice
of motion and motion must be filed and served not later than 21 days before the
hearing date designated in the notice except as set forth in: (A) LBR 7056-1 with
regard to motions for summary judgment or partial summary adjudication; (B)
LBRs 2014-1(b), 2016-1(a)(2), 3015-1(w) and (x), and 9013-1(o) with regard to
motions and matters that may not require a hearing; (C) LBR 3007-1 with regard
to motions for orders disallowing claims; and (D) LBR 9075-1 with regard to
motions to be heard on an emergency or shortened notice basis. The court, for
good cause, may prescribe a different time.
(e) Proof of Service. Every paper filed pursuant to this rule must be accompanied by a proof of service in the form specified in LBR 9013-3.
(f) Opposition, Joinders, and Responses to Motions. Except as set forth in LBR 7056-1 with regard to motions for summary judgment or partial summary adjudication, LBRs 2014-1(b), 2016-1(a)(2), 3015-1(w) and (x), and 9013-1(o) with regard to motions and matters that may not require a hearing, LBR 9075-1 with regard to motions to be heard on an emergency or shortened notice basis or unless otherwise ordered by the court, each interested party opposing, joining, or responding to the motion must file and serve on the moving party and the United States trustee not later than 14 days before the date designated for hearing either:
(1) A complete written statement of all reasons in opposition thereto or in support or
joinder thereof, declarations and copies of all photographs and documentary
evidence on which the responding party intends to rely, and any responding
memorandum of points and authorities. The opposing papers must advise the
adverse party that any reply to the opposition must be filed with the court and
served on the opposing party not later than 7 days prior to the hearing on the
motion; or
(2) A written statement that the motion will not be opposed.
(g) Reply Papers. Except as set forth in LBR 7056-1 with regard to motions for summary judgment or partial summary adjudication, or unless otherwise ordered by the court, the moving party (or the opposing party in instances where a joinder has been filed) may file and serve a reply memorandum not later than 7 days before the date designated for hearing.
(1) The reply memorandum and declarations or other evidence attached, must respond directly to the opposition papers.
(2) Service of reply papers is required only upon the United States trustee subject to
FRBP 9034 and LBR 2002-2(a) and on persons or entities (or their attorneys, if
any) who filed an opposition to a motion, and must be made by personal service,
e-mail, or by overnight mail delivery service. A judge’s copy of the reply must be
served on the judge in chambers in accordance with LBR 5005-2(d).
(3) Unless the court finds good cause, a reply paper not filed or served in accordance
with this rule will not be considered.
(h) Failure to File Required Papers. Papers not timely filed and served may be deemed by the court to be consent to the granting or denial of the motion, as the case may be.
(i) Evidence on Motions, Responses to Motions, or Reply Papers. Factual contentions involved in any motion, opposition or other response to a motion, or reply papers, must be presented, heard, and determined upon declarations and other written evidence. The verification of a motion is not sufficient to constitute evidence on a motion, unless otherwise ordered by the court.
(1) The court may, at its discretion, in addition to or in lieu of declaratory evidence,
require or allow oral examination of any declarant or any other witness in
accordance with FRBP 9017. When the court intends to take such testimony, it
will give the parties 2 days notice of its intention, if possible, or may grant such
a continuance as it may deem appropriate.
(2) An evidentiary objection may be deemed waived unless it is (A) set forth in a
separate document; (B) cites the specific Federal Rule of Evidence upon which the
objection is based; and (C) is filed with the responsive or reply papers.
(3) In lieu of oral testimony, a declaration under penalty of perjury will be received
into evidence.
(4) Unless the court orders otherwise, a witness need not be present at the first hearing on a motion.
(5) If the court decides to hear oral testimony, the matter may be continued to another
date for final hearing.
(j) Appearance at Hearing.
(1) Appearance is Mandatory. Counsel for the moving and opposing parties, and the
moving and opposing parties who are appearing without counsel, must be present
at the hearing on the motion and must have such familiarity with the case as to
permit informed discussion and argument of the motion. The failure of counsel or
an unrepresented party to appear, unless excused by the court in advance, may be
deemed consent to a ruling upon the motion adverse to that counsel’s or
unrepresented party’s position.
(2) Waiver of Personal Appearance. With the consent of the court, counsel may waive personal appearance at the hearing. Counsel who have agreed to waive personal appearance must advise the courtroom deputy of such agreement by telephone message or letter which reaches the courtroom deputy by no later than noon on the third day preceding the hearing date. The courtroom deputy will advise the parties by no later than noon on the day preceding the hearing date as to whether the court has consented to the waiver of personal appearance.
(3) Oral Argument. If the court decides in its discretion to dispense with oral
argument on any motion, the courtroom deputy will attempt to give counsel and
unrepresented parties notice of the court’s intention to do so at least 24 hours prior
to the hearing date and time. The court may also dispense with oral argument and
waive appearance by tentative or final ruling posted on the court’s web site the day
before the hearing.
(4) Telephonic Appearance at Hearing. A party who wishes to appear telephonically
must consult the court’s web site to determine whether a telephonic appearance on
a particular matter is permissible and to review the judge’s procedures for
telephonic appearances. See LBR 9074-1.
(k) Voluntary Dismissal of Motion.
A party who seeks to voluntarily dismiss a motion must, not less than 2 days prior to the hearing date: (1) give telephonic notice thereof to opposing counsel and the courtroom deputy of the judge before whom the matter is pending; and (2) file with the court, and serve on the United States trustee and persons or entities who have filed an opposition or other response to the motion, a notice thereof with the court. An order may be required.
(l) Motion Previously Denied. Whenever any motion for an order or other relief has been made to the court and has been denied in whole or in part, or has been granted
conditionally or on terms, and a subsequent motion is made for the same relief in whole or in part upon the same or any allegedly different state of facts, it is the continuing duty of each party and attorney seeking such relief to present to the judge to whom any subsequent motion is made, a declaration of a party or witness or certified statement of an attorney setting forth the material facts and circumstances surrounding each prior motion including:
(1) The date of the prior motion;
(2) The identity of the judge to whom the prior motion was made;
(3) The ruling, decision or order on the prior motion; and
(4) The new or different facts and circumstances claimed to exist, which either did not
exist or were not shown upon the prior motion. The failure to comply with the foregoing requirement is grounds for the court to set aside any order or ruling made on the subsequent motion, and subjects the offending party or attorney to sanctions.
(m) Continuance.
(1) Ex Parte Motion for Continuance. Unless otherwise ordered, an ex parte motion
for the continuance of a hearing under this rule must be filed with the court and
served upon all previously noticed parties by facsimile, e-mail, personal service,
or overnight mail at least 3 days before the date set for the hearing.
(A) The motion must set forth in detail the reasons for the continuance, state whether any prior continuance has been granted, and be supported by the declaration of a competent witness attesting to the necessity for the continuance.
(B) A proposed order for continuance must, in accordance with LBR 9021-1(b),
be lodged with the court upon the filing of the motion.
(C) Unless the ex parte motion for continuance is granted by the court at least 1 day before the hearing, the parties must appear at the hearing.
(2) Stipulations For Continuances. Parties stipulating to a continuance of a hearing
under this rule must notify the courtroom deputy immediately of their agreement
for a continuance. The stipulation is subject to approval by the court under
subsection (m)(3) of this rule. Unless the continuance is approved by the court at
least 1 day before the hearing, the parties must appear at the hearing. A stipulation
for continuance must contain facts establishing cause for the requested continuance
and be submitted to the court in accordance with LBR 9021-1(b)(2) and LBR
9071-1.
(3) Court Approval. A continuance (whether stipulated to by counsel or not) is not
effective unless the continuance is granted in open court, the court approves the
continuance in writing, or the clerk or court staff informs the parties that the court
has authorized a continuance.
(4) Extension of Time Due to Continuance of Hearing Date. Unless an order for
continuance states otherwise, a continuance of the hearing of a motion automatically extends the time for filing and serving opposing papers and reply papers.
(n) Discovery. Unless otherwise ordered by the court, Fed.R.Civ.P. 26(a), (d) and (f), as incorporated into FRBP 7026 and LBR 7026-1, do not apply to contested matters under FRBP 9014 and this rule.
(o) Motions and Matters Not Requiring a Hearing.
(1) Matters That May Be Determined Upon Notice of Opportunity to Request Hearing.
Except as to matters specifically noted in subsection (o)(2) below, and as otherwise
ordered by the court, any matter that may be set for hearing in accordance with
LBR 9013-1 may be determined upon notice of opportunity to request a hearing.
(A) Notice. When the notice of opportunity for hearing procedure is used, the
notice must:
(i) Succinctly and sufficiently describe the nature of the relief sought and set forth the essential facts necessary for a party in interest to determine whether to file a response and request a hearing;
(ii) State that LBR 9013-1(o)(1) requires that any response and request for hearing must be filed with the court and served on the movant and the United States trustee within 14 days after the date of service of the notice; and
(iii) Be filed with the court and served by the moving party on all creditors and other parties in interest who are entitled to notice of the particular matter.
(B) Motion. The motion and supporting papers must be filed with the notice, but must be served only on the United States trustee and those parties who are directly affected by the requested relief.
(2) Matters that May Not be Determined Upon Notice of Opportunity to Request Hearing. Unless otherwise ordered by the court, the following matters may not be determined by the procedure set forth in subsection (o)(1) above:
(A) Objections to claims;
(B) Motions regarding the stay of 11 U.S.C. § 362;
(C) Motions for summary judgment and partial summary adjudication;
(D) Motions for approval of cash collateral stipulations;
(E) Motions for approval of postpetition financing;
(F) Motions for continuance;
(G) Adequacy of chapter 11 disclosure statements;
(H) Confirmation of plans in chapter 9, chapter 11, chapter 12, and chapter 13
cases;
(I) Motions for orders establishing procedures for the sale of the estate’s assets
under LBR 6004-1(b);
(J) Motions for recognition of a foreign proceeding as either a main or a nonmain proceeding;
(K) Motions for the adoption of a chapter 15 administrative order; and
(L) Motions for the adoption of a cross-border protocol.
(3) No Response and Request for Hearing. If the response period expires without the
filing and service of any response and request for hearing, the moving party must
do all of the following:
(A) File Declaration of Service and Non-response. Promptly file a declaration
attesting that no timely response and request for hearing was served upon the moving party. A copy of the motion, notice, and proof of service of the notice and motion must be attached as exhibits to the declaration. No service is required prior to filing the declaration.
(B) Lodge Proposed Order. Lodge a proposed order in accordance with LBR
9021-1, except that: (i) the proposed order need not be served prior to lodging, except as otherwise required in these rules; and (ii) the Notice of Entered Order and Service List must limit service by the court to only the debtor or debtor in possession (and debtor’s attorney, if any), and the United States trustee.
(C) Deliver Copies to Court. Promptly deliver to the court: (i) a copy of the declaration; and (ii) the appropriate proposed order, copies, and envelopes, as specified in LBR 9021-1 and the LOU Procedures.
(4) Response and Request for Hearing Filed. If a timely response and request for
hearing is filed and served, within 21 days from the date of service of the response
and request for hearing the moving party must schedule and give not less than
14 days notice of a hearing to those responding and to the United States trustee.
If movant fails to obtain a hearing date, the court may deny the motion without
prejudice, without further notice or hearing.
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