MOTIONS

27.1 No Oral Argument Except When Ordered Motions are considered and decided by the court upon the motion papers and briefs without oral argument unless ordered by the court or a judge thereof. Counsel may assume there will not be oral argument unless advised by the clerk to appear at a time and place fixed by the court. Source: 1988 Court Rule 11.1 Cross-references: FRAP 8, 9, 18, 21, 27, 34, 40; 3d Cir. L.A.R. 8.1, 9.0, 18.0 Committee Comments: This rule was renumbered by the 1995 revision of the rules; no substantive change from prior Court Rule 11.1 is intended.

Table of Contents 17 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 27.2 Service (a) Counsel must file electronically all motions, responses to motions, and replies to such responses in accordance with the procedures of L.A.R. Misc. 113. No paper copies of motions need be filed unless directed by the clerk. (b) Service of electronically filed documents is governed by L.A.R. Misc.

113.4. If the opposing party has not consented to electronic service, the filer must use an alternate method of service prescribed FRAP 25(c). The method of service, whether electronic through the court’s docketing system or by alternate means, must be specified in the certificate of service. Motions must ordinarily be served on other parties by means equally expeditious to those used to file the motion with the court.

When time does not permit actual service on other parties, or the moving party has reason to believe that another party may not receive the motion in sufficient time to respond before the court acts (as in certain emergency motions), the moving party should notify such other parties by telephone, e-mail, or facsimile of the filing of the motion. (c) Certain personal identifiers must be excluded or redacted from all documents filed with the court as specified in L.A.R. Misc. 113.12 and Judicial Conference Policy. Source: None Cross-references: FRAP 8, 9, 18, 25, 27, 41; 3d Cir.

L.A.R. 8.1, 9.0, 18.0 and L.A.R. Misc. 113.4 Committee Comments: New provision in 1995. The period for filing a response provided by FRAP 27(a) runs from the time of service. If service is not effectuated promptly, the disposition of the motion may be delayed or parties opposing the motion may not have an opportunity to respond before the court rules on the motion.

Amendments made in 2008 regarding electronic filing. The notice of docket activity generated by cm/ecf notes whether notice has been sent to opposing parties by the court’s electronic docketing system. This does not substitute for a certificate of service. 27.3 Uncontested Motions Each uncontested motion must be certified as uncontested by counsel.

In the absence of a timely response, the court may treat a motion without such certification as uncontested. Source: None Cross-references: FRAP 8, 9, 18, 27, 41; 3d Cir. L.A.R. 8.1, 9.0, 18.0 Committee Comments: New provision in 1995. The period for filing a response provided by FRAP 27(a) is unnecessary where a motion is uncontested.

A certification to that effect will aid in the speedy disposition of the Table of Contents 18 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 motion. The rule was amended in 2008 to clarify that an uncontested motion is not automatically granted. 27.4 Motions for Summary Action a) A party may move for summary action affirming, enforcing, vacating, remanding, modifying, setting aside or reversing a judgment, decree or order, alleging that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action. In addition, the court may sua sponte list a case for summary action. b) Except for a change in circumstances or a change in law, motions for summary action or dismissal should be filed before appellant’s brief is due.

The court or the clerk may at any time refer a motion for summary action to a merits panel and direct that briefs be filed. Source: Third Circuit Internal Operating Procedures 10.6 (1990) Cross-references: 28 U.S.C. §2106; FRAP 27; Third Circuit Internal Operating Procedure 10.6 (1994) Committee Comments: No substantive change from current practice or IOP 10.6 is intended. The filing of a motion for summary action does not stay the regular briefing schedule set forth in FRAP 31(a). 27.5 Powers of Single Judge A single judge of the court may not grant or deny a motion that the court has ordered to be acted on by the court or a panel thereof, and ordinarily a single judge will not entertain and grant or deny a motion for release or for modification of the conditions of release pending review in a criminal case, a motion for leave to intervene, or a motion to postpone the oral argument in a case which has been included by the clerk in the argument list for a particular weekly session of the court.

The action of a single judge may be reviewed by a panel of the court. Source: 1988 Court Rule 2.4 Cross-references: FRAP 27(c); Third Circuit Internal Operating Procedure 10.5 (1994) Committee Comments: Prior Court Rule 2.4 provided that a single judge could not entertain a motion for leave to file a brief as amicus curiae or a motion that a party requests be heard orally by the Court. 3d Cir. L.A.R. 27.5 removes these restrictions and permits a single judge to entertain such motions.

Table of Contents 19 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 27.6 Motions Decided by the Clerk The clerk may entertain and dispose of any motion that can ordinarily be disposed of by a single judge of this court under the provisions of FRAP 27(c) and 3d Cir. L.A.R. 27.5, provided the subject of the motion is ministerial, relates to the preparation or printing of the appendix and briefs on appeal, or relates to calendar control. If application is promptly made, the action of the clerk may be reviewed in the first instance by a single judge or by a panel of the court. Source: 1988 Court Rule 11.5 Cross-references: FRAP 27 Committee Comments: This rule was renumbered by the 1995 revision of the rules; no substantive change from prior Court Rule 11.5 is intended.

27.7 Motions in Which Expedited Consideration is Requested If the court or clerk determines that a motion requires expedited consideration, the court or the clerk will direct that a response in opposition, if any, must be filed within 7 days after service of the motion and any reply within 3 days after service of the response unless a shorter time is directed by the court or clerk. Service of documents filed under this rule, including the initial motion must be in accordance with L.A.R. 27.2 and 113.4 unless the court or clerk directs that a more expeditious method of service be used. To the fullest extent possible, the clerk must be given advance notice by telephone that a motion requiring expedited or urgent consideration may be filed. Source: New Provision added in 2002.

Cross-references: