Local Rule LBR 9013-1: Motion Practice

LBR 9013-1. Motion Practice

(a) In General.

(1) Applicability. For purposes of this rule, a motion is a written request for an order, whether denominated as a motion, application, objection, notice, or otherwise. This rule applies to any motion unless another local rule or court-issued form specifically provides for a different procedure.

(2) Moving Party's Burden. The motion must state the legal basis for the relief requested and must include admissible evidence to support the factual basis of the motion.

(3) Authority to Enter Final Order. In a motion filed in a contested matter under Bankruptcy Rule 9014, the moving party must raise in that motion any objection or challenge to the bankruptcy court's authority to enter a final order on the motion. In a response to a motion filed under Bankruptcy Rule 9014, the responding party must raise in that response any objection or challenge to the bankruptcy court's authority to enter a final order on the motion. Failure to raise an objection or challenge to the bankruptcy court's authority as provided in this rule will be deemed consent to the bankruptcy court's entry of a final order on the motion.

(b) Ex Parte Motions.

(1) An ex parte motion is a motion presented to the court with no notice to any other party and which the court may consider without a hearing.

(2) The court will grant an ex parte motion only if applicable statutes and rules permit the court to dispense with notice and hearing, and (i) the relief requested will have no material adverse effect on the rights of any other party or (ii) an emergency situation, not created by the moving party's own acts or omissions, makes it impossible to give notice without inflicting irreparable harm on the moving party.

(3) In addition to satisfying the requirements applicable to any motion, an ex parte motion must (i) state the legal basis and include admissible evidence of the facts which the moving party contends permit the court to act without notice or hearing, (ii) establish that the requirements of subdivision (b)(2) of this rule are satisfied, (iii) state specific reasons why the court should proceed without notice or hearing, and (iv) describe any efforts made to confer with the party or parties affected by the motion and whether or not any of them oppose the motion.

(4) Examples of motions properly brought on an ex parte basis include (i) a motion to approve the retention or professionals where the Office of the U.S. Trustee does not object to the retention, (ii) a motion to reopen a case, (iii) a motion to shorten time for notice or hearing or to limit notice, and (iv) a motion for an extension of time to file a response or reply.

(c) Motions that Must Be Set for Hearing.

(1) Unless the court directs otherwise by way of a local rule, order, or court-issued form, a party filing a motion must obtain a hearing date from the courtroom deputy and give notice to all parties entitled to notice not later than 28 days before the hearing. The notice must substantially conform to the local form (Notice of Hearing).

(2) All responses to the motion must be filed and served on the moving party not less than 14 days before the hearing date. The moving party is not required to file a reply but may do so not less than 7 days before the hearing date. No surreply or further briefing is permitted without leave of court. The court may disregard any untimely or impermissible memorandum or impose other appropriate sanctions.

(3) If no one files a timely response to the motion, the moving party may file a declaration substantially conforming to the local form (Declaration and Request for Entry of Order) and submit a proposed order granting the motion. The court may either cancel the hearing and enter the order or direct that the hearing be held. The moving party may request that a matter remain on calendar even if no objection is filed by filing such a request not later than the deadline for filing a response to the motion.

(4) The court generally will not cancel the hearing on: (A) dispositive motions in adversary proceedings; (B) motions governed by Bankruptcy Rule 4001(b) or (c); (C) motions to convert or dismiss, except for motions by a debtor and motions by the Office of the United States Trustee under § 1112(e); and (D) motions in chapter 11 cases, including motions to appoint a trustee or examiner, approval of disclosure statements, and confirmation of plans, but not including motions seeking purely procedural relief or approval of stipulations.

(d) Countermotions.

(1) In General. A respondent may file, together with the response to the motion, a countermotion raising only the same specific issues, claims, or defenses presented in the original motion. The countermotion may be scheduled and noticed for hearing on the same date as the original motion only by obtaining the approval of the courtroom deputy.

(2) Response to Countermotion. A party's response to a countermotion may be included with that party's reply memorandum in support of the original motion.

(3) Reply Memorandum in Support of Countermotion. The party filing the countermotion may file a reply memorandum in support of the countermotion not later than 3 days before the hearing.

(4) Limitations on Memoranda. Memoranda including countermotions and combined with a reply to another motion are subject to the limitations stated in LBR 9013-2.

(5) Objection to Countermotion's Subject Matter. The moving party may file an ex parte objection to the court's consideration of any issue, claim, or defense being raised in a countermotion which was not the subject of the original motion. The court may dispose of the objection by overruling the objection, continuing the hearing on the motion and countermotion, or scheduling the countermotion's offending subject matter for a separate hearing.

(e) Joinder. A party filing a joinder, rather than an independent motion, cross motion, or countermotion, is not entitled to an order granting the relief requested in the motion in favor of the joining party unless: (1) filing fee is associated with the underlying motion; (2) the joinder would have been timely if it had been filed as an independent motion; and (3) any party against whom relief is sought receives the same quality of notice, has the same opportunity to object, and suffers no other burden or prejudice by virtue of the fact that the joining party filed a joinder rather than an independent motion.

(f) Enlarging or Shortening Time. The time periods specified under this rule may be enlarged or shortened pursuant to LBR 9006(b).