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STATE OF THE UNION AND RECOMMENDATIONS

 
 
ican711nm
 
  1  
Reply Tue 7 Mar, 2006 09:06 pm
http://www.txnd.uscourts.gov/publications/atty_book/attyhb_III.html#A

III. Commencement of a Civil Action A. Requirements For All New Civil Cases 1. Civil Cover Sheet 2. Filing Fee 3.
Service of Process
a. Summons
1. Service by the United States Marshal
2. Service by Mail
3. Service through the Secretary of State
4. Service on the United States
5. Service on a Foreign Country
6. Service by Publication
b. Waiver of Service of Summons
4. Civil Complaint 5. Certificate of Interested Persons 6. Request to Seal 7. Jury Demand 8. Consent to Proceed before a Magistrate Judge B.
Specific Types of Actions
1. Notice of Removal
2. Application for Writ of Garnishment
3. Transfer of Bankruptcy Matters to the District Court
a. Appeals
b. Leave to Appeal Interlocutory Bankruptcy Orders
c. Withdrawal of Reference
4. Emergency Appeals From Bankruptcy Court
5. Interpleader
6. Federal Tort Claims


A civil case is initiated by filing a complaint with the District Clerk's Office. Once received, the Clerk's Office gives the complaint an action number and assigns it to a district judge and magistrate judge. In a division with more than one judge, the Clerk's Office uses a random assignment system. The District Clerk has no discretion in the assignment of a case (see LR 83.3 and LCrR 57.3).
A. Requirements For A New Civil Case
1. Civil Cover Sheet
A filer must submit a completed Civil Cover Sheet (JS 44 Form) with each new complaint. Click here to view a Guide For Filing A Federal Civil Suit in the Northern District of Texas. The filer must prepare the Civil Cover Sheet in accordance with the instructions on page two of the form and present it for filing. For a case originally filed in state court and removed to the Northern District of Texas, the filer must also submit a Supplemental Civil Cover Sheet. Click here to view a Guide for Filing Notice of Removal in the Northern District of Texas.
2. Filing Fee
The filing fee for a regular civil action is $250.00. The filing fee for a Petition for Writ of Habeas Corpus is $5.00. No filing fee is required for a Petition for Stay of Execution or for a Motion under 28 USC § 2255 to Vacate Sentence. All checks are to be made payable to Clerk, United States District Court. The Amarillo, Dallas, Ft. Worth and Lubbock Clerk's Offices also accepts credit cards (MasterCard, Visa, American Express, Discover, and Diners Club).

A party who cannot afford to pay the requisite filing fee may submit a motion to proceed in forma pauperis with supporting affidavit contemporaneously with the complaint. If the motion to proceed in forma pauperis is granted, no filing fee will be required.

The Clerk will refuse to file a complaint unless the filing party submits the full filing fee or a motion to proceed in forma pauperis.
3. Service of Process
Detailed instructions for service of process can be found in Rule 4 of the Federal Rules of Civil Procedure. Service can be satisfied by one of the methods described below.
a. Summons
A summons is required for each defendant named as a party to the suit. The following information should be typed or printed on the summons: (a) the name of the first plaintiff (followed by et al. if there is more than one plaintiff), (b) the name of the first defendant (followed by et al. if there is more than one defendant), (c) the name and address of the defendant being served, (d) the name and address of the plaintiff's attorney (or the name of the pro se litigant), and (e) the number of days the defendant has to answer.

The District Clerk's Office must issue a summons for it to be valid. To issue a summons, a deputy of the District Clerk's Office signs, dates, and seals the summons form.

The attorney or pro se litigant should complete and submit for issuance two summonses for each defendant named in the complaint. The District Clerk's Office will return one summons to the filing party for service with the complaint on the defendant. The District Clerk will retain one copy for the Court record. The filing party should bring an additional summons if he or she wishes to retain a copy.

When service is to be made through the Commissioner of Insurance or the Commissioner of Highways, the filing party must submit three summonses for issuance. The Clerk's Office will return two to the filing party for service on the Secretary or Commissioner and retain the third for the Court's record.

No summons will be issued for cases removed from state court unless service was: (a) not issued in state court or (b) was defective. Also, unless ordered by the presiding judge, a summons will not be issued in cases where in forma pauperis status is granted.

Service of a summons together with a copy of the complaint must be made pursuant to Rule 4 of the Federal Rules of Civil Procedure. Rule 4(c)(2) provides for personal service by anyone eighteen years of age or older who is not a party to the suit. Other methods of service are described below.
1. Service by the United States Marshal
The United States Marshals Service will effectuate service if ordered to do so by the Court. The Marshals Service will need a completed USM Form 285, the summons, and attached complaint for each defendant. The party requesting service should obtain the USM Form 285 from the Marshals Service.
2. Service by Mail
Service of a summons may be made by mailing a copy of the summons and a copy of the complaint to each defendant by registered or certified mail, return receipt requested. See Rule 4(e)(1) of the Federal Rules of Civil Procedure and Rule 106 of Texas Rules of Civil Procedure.
3. Service through the Secretary of State
For service through the Secretary of State in Austin, Texas, please refer to the Texas Long Arm Statute (set forth at Tex. Civ. Prac. & Rem. Code Ann., ' 17.041 et seq.). The filing party must submit three summonses with copies of the complaint for each defendant. Contact the Secretary of State's Office for information regarding the appropriate fee.
4. Service on the United States
Rule 4(i) of the Federal Rules of Civil Procedure governs service on the United States of America, the Attorney General, and the agencies, officers, employees, and corporations of the United States. The United States Attorney's Office can be served personally or via registered or certified mail addressed as follows:
Civil Process Clerk
U.S. Attorney for the Northern District of Texas
Division Name
Address
City, State & Zip Code
See the Guide for Filing Federal Civil Suits Against the United States, an Agency Official, or an Employee of the United States Government in the Northern District of Texas for more information on filing a civil suit against the United States.
5. Service on a Foreign Country
An attorney seeking to serve a foreign country or party in a foreign country should refer to information on the State Department website at www.travel.state.gov/judicial_assistance.html.
6. Service by Publication
Upon order of the Court, the United States Marshals Service will serve a summons by publication.

b. Waiver of Service of Summons
Rule 4(d)(2) of the Federal Rules of Civil Procedure provides for waiver of service of summons when the defendant is subject to service under subsection (e), (f), or (h) of Rule 4. Waiver is accomplished when the defendant consents to the waiver and completes and returns a waiver form. A plaintiff seeking waiver must send a Notice of Lawsuit and Request for Waiver of Service of Summons form, a Waiver of Service of Summons form, and a copy of a newly filed civil complaint to the defendant. The defendant may sign the waiver agreeing to waive service by summons or may decline to waive service using the same form. The Notice of Lawsuit and Request for Waiver of Service form and Waiver of Service of Summons form are available in the District Clerk's Office.

A defendant who is served with a Notice of Lawsuit and Request for Waiver of Service must return the executed Waiver of Service of Summons form to the plaintiff, either waiving service or declining to waive service, within thirty days from the date the Notice of Lawsuit and Request for Waiver of Service forms were mailed. An answer must be filed within sixty days of the date the plaintiff mailed the waiver. The only exception to this rule is for a defendant in a foreign country who will be allowed sixty days to return the waiver and ninety days to file an answer.Note that all deadlines are calculated from date of mailing, not from date of receipt.

4. Civil Complaint
A filer must ensure that each document submitted to the District Clerk's Office for filing (except exhibits or unless otherwise provided by local rule) is on paper measuring 8-1/2 x 11 inches, stapled in the upper left-hand corner, and two-hole punched at the top. Additionally, each document should be typed or legibly handwritten on numbered pages. If a document is too large to staple, the filer should secure the top with metal prongs or other durable fasteners (see LR 10.1 and LCrR 49.3).

The correct heading for a new complaint is shown below (see Rule 10 of the Federal Rules of Civil Procedure).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
(Insert Appropriate City) DIVISION
_______________________ '
Plaintiff's Complete Name '
(List All) '
' Civil Action No.:
v. ' ______________
_______________________ '
Defendant's Complete Name
(List All)

ORIGINAL COMPLAINT
In the title of the complaint, the plaintiff must list the names of all parties to the action and must not use the et al. abbreviation. The plaintiff must submit an original and one copy of the complaint to the Clerk's Office for filing and bring an additional copy if he or she wants to retain a file stamped copy.

The clerk's office will assign a case number to each civil action and, in a division with more than one sitting judge, will choose a presiding district judge and magistrate judge by random draw. The case number is composed of five parts. The first digit is the division where the case was filed (1: Abilene, 2: Amarillo, 3: Dallas, 4: Fort Worth, 5: Lubbock, 6: San Angelo, and 7: Wichita Falls). For example, a case filed in Amarillo would start with 2 and Dallas with 3. After the division number and colon is the year the case was filed (e.g., 03, 04) and "cv" for civil. This is followed by the sequential case number, a hyphen, and the alpha designation of the District Judge assigned to the case.
Sample Case Number: 3:03-CV-0001-H
The sample above would be the first civil case filed in the Dallas Division in 2003, and it would be assigned to Senior Judge Sanders.
To file a complaint, the attorney or pro se litigant must have an original signature on the complaint and on any pleadings filed with the complaint. The signature block must consist of the attorney's (or pro se litigant's) name typed or printed under the signature, the attorney's state bar number, the address (law firm name, street, including suite number, city, state, and zip code), telephone number, and fax number (if available) of the attorney or pro se litigant.
5. Certificate of Interested Persons
A plaintiff must submit, along with the complaint, a separately signed certificate of interested persons that contains a complete list of all persons, associations of persons, firms, corporations, partnerships, guarantors, insurers, affiliates, parent or subsidiary corporations, or other legal entities who are financially interested in the outcome of the case (see LR 3.1). A defendant must submit, with the initial responsive pleading, a separately signed certificate of interested persons, or the defendant may adopt a certificate previously filed.
The party who removes a civil action from state court must provide a separately signed certificate of interested persons that complies with LR 3.1(f). The plaintiff in the state court action may either adopt the removing party's certificate or file another certificate (see LR 81.1 and 81.2).
6. Request to Seal
A party who desires to file a complaint under seal must, at the time the complaint is presented for filing, demonstrate that a judge has ordered that the case be filed under seal or that a statute or rule requires or permits the clerk to file it under seal (see LR 79.4 and LCrR 55.3). If the party presents the complaint with a motion to file under seal, the clerk will defer opening the case until a judge has ruled on the motion.
7. Jury Demand
There is no fee in federal court for filing a jury demand. The jury demand may be filed as a separate document or may be requested in the complaint. If requested in the complaint, the title of the complaint must also state . . . AND JURY DEMAND. Designating a jury demand on the Civil Cover Sheet alone does not constitute a proper request.
8. Consent to Proceed Before a Magistrate Judge
The Court has experienced magistrate judges. A magistrate judge may, upon the consent of all parties in a civil action, conduct any or all proceedings, including a jury or non-jury civil trial, and order entry of a final judgment pursuant to 28 U.S.C. § 636. To consent to trial before a magistrate judge, the parties must execute and return a Consent to Proceed Before a United States Magistrate Judge to the District Clerk's Office.

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B. Specific Types of Actions
1. Notice of Removal
A party who removes a civil case from state court to the United States District Court must pay a $250.00 filing fee (see Rule 81(c) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1441 et seq.). The removing party must submit an original and one copy of a completed JS 44 Civil Cover Sheet, an original and one copy of a Supplemental Civil Cover Sheet, and an original and one copy of the Notice of Removal. The party also must comply with all the requirements of LR 81.1. Typically, no summons will be issued for a case removed from state court (see 28 U.S.C. § 1448: Process After Removal).

The style of the Notice of Removal must be identical to the style of the original petition filed in state court. All parties must be listed in the style of the case. Use of the abbreviation "et al." is not acceptable in a Notice of Removal. The Notice of Removal must also contain a certificate of service signed by the party or attorney stating that service has been effected as required.
2. Application for Writ of Garnishment
In general, a person applying for a Writ of Garnishment should follow the Texas State Court Rules (see Tex. Civ. Prac. & Rem. Code Ann. § 63.001, et seq.). The filer is responsible for providing an original and one copy of a completed application for Writ of Garnishment along with a $250.00 filing fee. In a prejudgment case, the filer must also submit a proposed order to issue the writ.
3. Transfer of Bankruptcy Matters to the District Court
A filing party must reference the bankruptcy case number and/or adversary case number on all documents filed in connection with a bankruptcy matter transferred to the District Court. Any proposed order should also reference the bankruptcy case number and/or adversary case number. For more specific instructions regarding bankruptcy procedures, contact the Clerk of the Bankruptcy Court.
a. Appeals
To appeal the ruling of a Bankruptcy Judge, an appellant must submit a Notice of Appeal to the Bankruptcy Clerk along with the appropriate filing fee made payable to AClerk, United States Bankruptcy Court. Within 20 days of the filing of the Notice of Appeal, payment of appropriate filing fee, and filing of designations of items to be included in the record, the parties who have filed designations must provide copies of the designated items to the Bankruptcy Clerk. The Bankruptcy Clerk will transmit to the District Clerk a complete or incomplete record that will include an original and one copy of a volume consisting of: a) the notice of appeal; b) the judgment, order or decree appealed from; c) any opinion, findings of fact, and conclusions of law of the Bankruptcy Court; d) the docket sheet; and e) each party's designated record, assembled and paginated according to LBR 8006.4. Upon receipt of the record, the District Clerk will assign a case number and a district judge and magistrate judge by random draw.

After the District Clerk enters the appeal on the docket, the Clerk will release the record on appeal to the designated attorney for the appellant at the appellant's request. To make the request, the appellant must execute and deliver to the District Clerk the Notice of Transfer of the Record on Appeal form. Thereafter, each time the appeal record changes hands, from appellant to appellee and from appellee back to the Clerk, the attorney releasing custody of the record and the attorney receiving custody of the record must execute and deliver to the District Clerk the Notice of Transfer of the Record on Appeal.
b. Leave to Appeal Interlocutory Bankruptcy Orders
To appeal an interlocutory bankruptcy order, an appellant must submit a Motion for Leave to Appeal and a Notice of Appeal to the Bankruptcy Clerk, accompanied by an acknowledgment of service. Once responses are filed, the Bankruptcy Clerk will transmit the motion and accompanying papers to the District Clerk's Office. The District Clerk's Office will give the appeal a case number and will assign it to a district judge and magistrate judge.
c. Withdrawal of Reference
In a bankruptcy matter that may be tried by a district judge, a party may request that the case be heard in District Court by filing a Motion to Withdraw Reference with the Bankruptcy Clerk and submitting the appropriate filing fee. The Bankruptcy Clerk will transmit the Motion to Withdraw Reference to the District Clerk's Office where it will be assigned a case number. A district judge will then be assigned to rule on the application. If the district judge grants the Motion to Withdraw Reference, the case will be heard in District Court in the usual manner.
4. Emergency Appeals From Bankruptcy Court
An appellant may file an emergency appeal from Bankruptcy Court with the Clerk of the District Court or with the Clerk of the Bankruptcy Court. There is no filing fee. Before an emergency appeal may be filed, the attorney presenting the appeal must certify in writing that the matter has been presented to and ruled on by a bankruptcy judge or that no bankruptcy judge is available.

The appellant must submit to the Bankruptcy Clerk an original and one copy of a completed Certification Regarding Request for Emergency Hearing form and an original and one copy of a Motion to Stay. The Bankruptcy Clerk will transmit the bankruptcy record to the District Clerk's Office. The District Clerk's Office will give the appeal a case number and will assign a district and magistrate judge. It is the filing party's responsibility to present the emergency matter to the district judge to whom the case is assigned.
5. Interpleader
An interpleader action is a civil action initiated by a party who has possession of money or property that is claimed by two or more other parties. The initiation of an interpleader action and deposit of the money or property with the Court may absolve a party of liability that could accrue if the property or money was given to an improper claimant.

Under 28 U.S.C. ' 1335, federal District Courts have original jurisdiction over interpleader actions if two conditions are met: (a) the money or property has a value of $500 or more and (b) two or more of the adverse claimants are of diverse citizenship as defined in 28 U.S.C. ' 1332.

To file an interpleader action, the filing party must submit: (a) an original and one copy of the Complaint of Interpleader; (b) funds in the amount specified in the Complaint of Interpleader; (c) an original and two copies of a completed Civil Cover Sheet; and (d) a $250.00 filing fee.
6. Federal Tort Claims
A party seeking to pursue a federal tort claim should obtain an SF-95 claim form from the U.S. Department of Justice website at www.usdoj.gov/civil/forms/sf95.pdf or obtain a printed copy by writing to:
Federal Tort Claims Act StaffU.S. Department of Justice, Civil DivisionP.O. Box 888 Benjamin Franklin StationWashington, DC 20044
0 Replies
 
ehBeth
 
  1  
Reply Tue 14 Mar, 2006 02:56 pm
Quote:


half of an article <I believe registration is still free>

http://www.namic.org/topnews/060314st1.asp
0 Replies
 
Foxfyre
 
  1  
Reply Tue 14 Mar, 2006 03:06 pm
I read recently that there is currently one lawyer for every 220+ Americans which is down from one lawyer for every 333 or so Americans just a decade or so ago. Now mind you not all are working in what would be called a law practice, and even separating out those who do practice law responsibly and ethically, you still have a lot of lawyers needing to make a living doing something.

Way too many of these don't seem to care who gets hurt just so they win their case. And a disproportionate number of those run for public office and populate the lion's share of state and federal legislative bodies.

I wonder if Ican's lawsuit will stand a chance against a legislature doggedly determined not to screw anything up for themselves if they wind up back in private practice?
0 Replies
 
ican711nm
 
  1  
Reply Mon 19 Jun, 2006 04:38 pm
Foxfyre wrote:
I read recently that there is currently one lawyer for every 220+ Americans which is down from one lawyer for every 333 or so Americans just a decade or so ago. Now mind you not all are working in what would be called a law practice, and even separating out those who do practice law responsibly and ethically, you still have a lot of lawyers needing to make a living doing something.

Way too many of these don't seem to care who gets hurt just so they win their case. And a disproportionate number of those run for public office and populate the lion's share of state and federal legislative bodies.

I wonder if Ican's lawsuit will stand a chance against a legislature doggedly determined not to screw anything up for themselves if they wind up back in private practice?

Hi!
I thought I'd review this thread just to make sure that it continues to be accessible.

I've probably already posted this question I obtained from a patent attorney, but I feel like posting it again:

What have you got when you have a million lawyers up to their necks in sand?
...
...
...
Not enough sand Exclamation

My lawsuit needs five things to work.
1. More sand; :wink:
2. Enough volunteer plaintiffs to file this lawsuit in each of the Federal District Courts;
3. Each plaintiff must be able to show that they have been "damaged" by the prevailing usurpation of Constitutional authority;
4. The damage suffered must be demonstrable via valid evidence;
5. "Originalist" judges.
0 Replies
 
 

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