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The Judicial Conference Committee on Rules of Practice and Procedure has approved publication of proposed amendments to appellate, bankruptcy and civil rules.
According to a report detailing the amendments, a proposed amendment to Appellate Rule 39 — which governs costs on appeal — would clarify “the distinction between (1) the court of appeals deciding which parties must bear the costs and, if appropriate, in what percentages and (2) the court of appeals, the district court (or the clerk of either) calculating and taxing the dollar amount of costs upon the proper party or parties.”
The amendment would also codify the holding in City of San Antonio v. Hotels.com, 141 S. Ct. 1628 (2021), in which the U.S. Supreme Court held that Rule 39 doesn’t permit a district court to alter a court of appeals’ allocation of costs, even costs that are taxed by the district court.
A proposed amendment to Appellate Rule 6 — which deals with appeals in bankruptcy cases — would add a sentence to Appellate Rule 6(a): “But the reference in Rule 4(a)(4)(A) to the time allowed for motions under certain Federal Rules of Civil Procedure must be read as a reference to the time allowed for the equivalent motions under the applicable Federal Rule of Bankruptcy Procedure, which may be shorter than the time allowed under the Civil Rules.”
The committee also proposed an “overhaul” to Rule 6(c) by making it “largely self-contained.”
“Parties will not need to refer to Rule 5 unless expressly referred to a specific provision of Rule 5 by Rule 6(c) itself,” the report says. “Rule 6(c) makes Rule 5 inapplicable except to the extent provided for in other parts of Rule 6(c).”
The committee added “a few additional substantive and stylistic changes” to Bankruptcy Rule 3002.1, which were previously published.
“Because the changes to the originally published amendments are substantial and further public input would be beneficial, the Advisory Committee asks to have the proposed amendments to Rule 3002.1 republished,” the report says.
Proposed changes to Civil Rule 26 include addressing concerns about application of the requirement in Rule 26(b)(5)(A) that producing parties describe materials withheld on grounds of privilege or as trial-preparation materials.
Civil Rule 16(b) would be amended in tandem with the amendment to Rule 26(f)(3)(D).
The committee is also proposing the creation of Rule 16.1 on managing multidistrict litigation proceedings.
The rule would include language about how a transferee court should handle initial management conferences and order the parties to meet and prepare a report to be submitted to the court before the conference begins.
The comment period for proposed amendments closes Feb. 16, 2024.
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