[Post by Minnesota Litigator Contributor: Chad Kelsch]
Procedural rules that trial lawyers must know and follow are not particularly fascinating to most people, but they can often be quite important and differences between various courts’ rules can substantially change how justice is meted out.
Rule 9006-1 of the Local Rules of the United States Bankruptcy Court for the District of Minnesota, which governs motion practice in bankruptcy court, is distinguishable in its language from the rules governing motion practice in Minnesota State District Courts (Rule 115, General Rules of Practice For the District Courts) and the Federal District Court of Minnesota (Rule 7.1, Local Rules of the United States District Court for the District of Minnesota) in one significant respect: unlike its counterparts, the bankruptcy rule provides that reply documents need not be served and filed (“No reply documents to the responsive documents need be served and filed.”)
At first blush, this difference may appear to be one of no consequence, but on closer examination and in practice, it can have a direct bearing on the outcome of motions. The purpose of a reply memorandum, at least according to Minnesota state district court’s Rule 115.03(c) of the General Rules of Practice, is to provide the moving party with an opportunity to address “new legal or factual matters raised by an opposing party’s response to a motion.” Rule 7.1(b)(3) of the U.S. District Court for the District of Minnesota strikes accord with the state court rule, limiting the reply to matters raised in the response and prohibiting any arguments that “raise new grounds for relief or present matters that do not relate to the response.”
Although one may argue that the dissuasion from serving and filing reply memorandums in bankruptcy court does not prejudice the moving party given that the rule does not prohibit the filing of reply briefs, coupled with the opportunity a movant is afforded to present any counters during oral argument, this argument is weakened in those instances where decision is reached based solely on the initial memorandum and response. A strong case could be made that in this situation the due process “rug” is essentially yanked out from under a movant who is not clearly afforded through the rules an opportunity to present evidence that contradicts the law and/or facts contained in a response, especially if those responsive factual assertions run counter to the truth.
Based on the prejudice a movant stands to suffer from not having a clear-cut opportunity to address positions taken in a response, serious consideration should be given to revisiting this rule and possibly amending it to afford the movant with an unambiguous opportunity to submit a reply, together with a definitive deadline for doing so. This will ensure that a movant is given a full stage from which to present a motion, and will remove from the movant any doubt that he/she did not receive a fair shake from the bench. It will also cause no prejudice to the responding party as the movant obviously carries the ultimate burden of proof on the motion.