Local Rule 9013-1: MOTION PRACTICE

9013-1 MOTION PRACTICE

(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.

(1) No proposed order is necessary for continuing a hearing, wage withholding, or confirmation or modification of a Chapter 13 plan.

(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) Supporting Memorandum A party may include legal authorities, factual assertions, and analysis in a motion or other type of proceeding in lieu of submitting a supporting memorandum.

(3) Supporting Documentation When allegations of fact on which a motion or memorandum relies do not appear in the record, the source for that allegation of fact should be stated in the motion and supported by an exhibit.

(c) Service

(1) When a motion is to be served upon a represented debtor, the motion must be served on the debtor and debtor's counsel.

(2) When a party must notice or serve all parties on the mailing list, the certificate of notice or service may recite that notice or service was made on the case's mailing list on file with the Clerk in lieu of specifically including all the addresses on the mailing list on the certificate of notice or service.

(d) Response; Time for Response A response, if any, to a motion shall be filed within 21 days from the date of the filing of the motion, or 3 days before the date of the hearing on the motion, whichever is earlier, unless otherwise provided in the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, applicable rules in the Federal Rules of Civil Procedure, the Local Rules of this Court, Court order, or notice sent by the Clerk. The Clerk is authorized to except certain types of motions from this subparagraph and parties may appear at a scheduled hearing and be heard in the absence of a timely filed response.

(e) Content of Response

(1) All responses shall contain sufficient information to reasonably disclose the basis for the party's position and what specific issues are contested. A response may, but is not required to, contain affidavits and documents evidencing the facts stated in the response that do not appear in the record.

(2) If a response is not filed, or is not in compliance with this provision, the Court, in its discretion, may resolve the matter based on the moving party's submissions without a hearing, or take other action as the Court may deem appropriate.

(f) Hearing on Motion / Relief Without a Hearing

(1) The Court or the Clerk shall set all hearing dates. IN THE ABSENCE OF A TIMELY FILED WRITTEN RESPONSE TO A MOTION, THE COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT THE NEED FOR A FURTHER HEARING.

(2) Unless otherwise ordered, the Court, or the Clerk at the Court's direction, may set any motion for hearing even in the absence of any filed objections. Any party that intends to appear at the hearing to object should file a written objection with the Court at least three days before the scheduled hearing.

(g) Expedited Relief in 10 Days or More

(1) Unless otherwise directed by the Court, the party seeking to shorten a notice period shall serve the motion to shorten time together with the motion seeking the underlying relief. When the moving party is required to serve the notice and the motion together, the moving party is authorized to await entry of the Court order on the motion to shorten time before serving the motion and the notice on the affected parties. The date of service of the notice and motion must be reflected on a subsequently filed certificate of service.

(2) The Court, in its discretion, may grant ex-parte relief shortening the applicable notice period, and/or may set the motion to shorten time for a hearing on an expedited basis.

(3) Unless the movant is required to serve the notice, the Clerk will issue the order shortening time to the appropriate parties using the addresses on the case's mailing list. When a different method of service, or address for service, is required, it is the responsibility of the moving party to ensure service of the Court's order shortening time.

(h) Expedited Relief in Less than 10 Days

(1) Unless otherwise directed by the Court, the party seeking to shorten a notice period shall serve the motion to shorten time together with the motion seeking the underlying relief. Where appropriate, the motions should be transmitted to all applicable parties either by hand delivery, overnight delivery, facsimile, or other electronic transmission.

(2) The Court, in its discretion, may grant ex-parte relief shortening the applicable notice period, and/or may set the motion for a hearing on an expedited basis. Upon receipt of the order granting the motion for emergency relief that shortens the notice period (and/or sets a hearing), the movant shall serve notice on all parties entitled to notice of the underlying motion.