Local Rule 7007-1: MOTION PRACTICE (in APs)

7007-1 MOTION PRACTICE (in APs)

(a) General All motions, unless made in open Court during a hearing, shall be in writing and filed with the Clerk. Any letter that is received by the Clerk may, but need not be, considered to be a motion. A motion will not be accepted by telephone, email, or facsimile without the prior consent of the Clerk or the Court and an original document must be subsequently mailed or e-filed through CM/ECF with the Clerk. Unless otherwise directed by the Court, Clerk, or these Local Rules, a proposed order should accompany all motions, which, if entered, would grant the relief sought in the motion. A motion to continue is governed by N.D.W. Va. LBR 5071-1.

(b) Supporting Documentation

(1) Legal Authorities Copies of legal authorities cited in a motion or a supporting memorandum are not required unless specifically requested by the Court.

(2) Dispositive Motions A dispositive motion is one that seeks a final determination as to a claim or issue raised in a previously filed pleading. Dispositive motions shall be accompanied by a supporting memorandum, or incorporate a memorandum of law within the motion, and by copies of depositions (or pertinent portions thereof), admissions, documents, affidavits, or other such material upon which the motion relies.

(3) Non-Dispositive Motions.

Non-dispositive motions do not seek a final determination as to a claim or issue raised in a previously filed pleading. No memorandum is required for non-dispositive motions; provided, however, that a motion for sanctions shall be accompanied by a supporting memorandum and exhibits.

(c) Time of Filing Unless the pre-trial order contains an applicable deadline, a motion in an adversary proceeding may be filed at any time consistent with the Federal Rules of Bankruptcy Procedure.

(d) Response; Time for Response A response may, but need not, be accompanied by affidavits and other supporting documents. A response, if any, to a motion shall be filed within 21 days from the date of the filing of the motion with the Clerk, or three days before the date of the hearing on the motion, whichever is earlier, unless otherwise provided by these Local Rules, the Federal Rules of Bankruptcy Procedure, Court order, or in the notice issued by the Clerk. The Court, in its discretion, may grant or deny a non-dispositive motion before the response deadline has expired (such as the grant or denial of a motion to continue).

(e) Reply A reply, if any, to a response to a motion shall be filed within 7 days from the date of the filing of the response with the Clerk, or three days before the date of the hearing on the motion, whichever is earlier, unless otherwise provided by these Local Rules, the Federal Rules of Bankruptcy Procedure, Court order, or in the notice issued by the Clerk. If the application of this subparagraph would require the reply to be due the same day as the response, then the reply is due two days before the scheduled hearing. A sur-reply is not authorized without Court permission. A party may attach a sur-reply as an exhibit to the party's motion to allow the filing of a sur-reply.

(f) Hearing on Motion / Adjudication without a Hearing

(1) Either the Court or the Clerk sets all hearing dates.

(2) If no response is timely filed to a motion, unless otherwise provided by these Local Rules, the Federal Rules of Bankruptcy Procedure, or by order of this Court, motions shall be deemed submitted for adjudication. IN THE ABSENCE OF A TIMELY FILED WRITTEN RESPONSE TO A MOTION, THE COURT MAY DEEM THE FACTUAL ALLEGATIONS IN THE MOTION AS TRUE AND GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT THE NEED FOR A FURTHER HEARING.

(3) The Court, in its discretion, may set any motion for hearing even in the absence of a filed response. Any party that intends to appear at such hearing to contest the relief sought should endeavor to file a written response with the Court at least three days before the scheduled hearing.

(4) In the event that a timely response to a motion is filed pursuant to subsection (d), the motion is deemed ripe for adjudication on the day that the reply is filed, or when the time to file a reply has expired, whichever is earlier.

(5) All motions in adversary proceedings may be considered and decided by the Court on the pleadings, admissible evidence in the record, and motions, papers and supporting memoranda, without hearing or oral argument, unless otherwise directed by the Court. Special considerations thought by counsel to be sufficient to warrant a hearing or oral argument may be brought to the Court's attention in the motion or response.

(g) Expedited Relief When a movant requests that the response period set forth in this Local Rule be shortened, the movant shall follow the procedures outlined in Bankr. N.D.W. Va. R. 9013-1.